Njapha and Others v Govender (AR 516/06) [2008] ZAKZHC 13 (29 February 2008)

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

NATAL PROVINCIAL DIVISION

CASE NO: AR 516/06

In the matter between

XOLANI EMMANUELL NJAPHA FIRST APPELLANT

VUYISILE (VINCENT) MBELE SECOND APPELLANT

M GXALABA THIRD APPELLANT

ZAMAN FOURTH APPELLANT

TOOTSILE FIFTH APPELLANT

PRINCESS SIXTH APPELLANT

SALSILE SEVENTH APPELLANT

SIPHO EIGHTH APPELLANT

SYLVIA NINTH APPELLANT

MARIA TENTH APPELLANT

TALLMAN ELVENTH APPELLANT

SIMON TWELFTH APPELLANT

[1st to 6th and 10th to 13th Respondents in the Court a quo]

and

DASARATHAN GOVENDER RESPONDENT

______________________________________________________________

JUDGMENT

Delivered on: 29 February 2008

Jappie J

(1) The twelve Appellants reside on the property described as Erf 425 Dunn’s Grant Registration Division FT, Province of KwaZulu-Natal. (“The property”) The property is situate at 29 Sir Kurma Reddi Road, Clairwood, Durban. The Respondent, Dasarathan Govender, is the registered owner of the property. He acquired it in November 2004.

(2) The property does not consist of vacant land but at all material times had been a developed property with a main building and an outbuilding. Some of the Appellants occupy the main building whilst others occupy the outbuilding. Some of the Appellants occupy the basement of the main building. The remaining Appellants occupy various structures which had been illegally built on the property either by the Appellants themselves or by persons unknown to the Respondent. According to the Respondent the property presents the appearance of an informal settlement. It is common cause that all the Appellants occupy the property unlawfully in the sense that not one of the Appellants have a valid lease and their occupation is against the will of the Respondent.

(3) In May 2006 the Respondent brought an application for the ejectment of the Appellants. On the 21st of July 2006, Nicholson J, with the consent of all the parties, granted an order for the ejectment of the Appellants. The execution of the order was stayed until the 7th of August 2006. As to what occurred appears on the record at pages 112 and 113 :-

ON RESUMPTION

MR NAIDU M’Lord, I appear for the applicant. As I said to Your Lordship earlier, some of the respondents are present in court. They have agreed with my attorney, M’Lord, that the order must be stayed – the order can be granted but be stayed until the 7th. They will move out by 7 August, so the respondents can confirm that they will ask for an order …(inaudible).

NICHOLSON J How many are present here? Do you know the names?

MR NAIDU M’Lord, my attorney knows who they are. M’Lord, first respondent is here.

NICHOLSON J Is Mr Njapha here?

MR NAIDU Yes, M’Lord, and he’s a spokesperson for them.

NICHOLSON J Are you the spokesperson for the other respondents?

FIRST RESPONDENT (Inaudible)

NICHOLSON J And have you agreed to leave by the 7th August? Is that right?

FIRST RESPONDENT Yes.

MR NAIDU M’Lord, then I’ll move for an order in terms of paragraphs 1, 2 and 3 and the order in paragraph 1 to be executed only after 7 August. It shall not be executed prior to 7 August to be on the safe side, M’Lord.

NICHOLSON J Very well. So 1 to 3, is that right?

MR NAIDU That is correct.

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NICHOLSON J I grant an order in terms of paragraphs 1, 2 and 3 of the notice of motion.

The order in paragraphs 1 and 2 is not to be executed before 7 August 2006.

On the 14th of August 2006, the Appellants sought leave to appeal against the ejectment order. On the 25th of August 2006, Nicholson J granted the Appellants leave to appeal to this Court. In the judgment granting leave to appeal Nicholson J raised the point as to whether the Appellants ought not to have brought an application for the rescission of the order for their ejectment rather than taking the matter on appeal. Nicholson J did not quite answer the issue. In my view he ought to have approached the application for leave to appeal in the same manner as in the case of Fourie NO v Merchant Investors (Pty) Ltd and Another 2004(3) SA 422 (C). He nevertheless granted leave stating the following :

“this is a matter of grave concern to me on the basis that a Court is obliged by the relevant legislation to give an order that is just and equitable and it has to know if there is land available, either to be provided by a municipality or another organ of State.

Unless I am told as to what the situation is in so far as land is concerned, I cannot see how I can exercise that discretion properly. I also have doubt to what the role of the Court would be if the municipality says there is no land available and I know that there are twenty households headed by women with young children and the effect of my order is to cast them out into the street.

It seems to me that it is essential for the Court to consider a report by a municipality or other organ of State as to the availability of land before making an order such as this. In any event, I am not required to make such a positive finding. All I have to be convinced of is that there are reasonable prospects that another Court may make such a finding.

….I am advised that, in addition, an application will be brought to bring further evidence before the Court of Appeal relating to the circumstances of the present applicants. That factor inclines me to grant leave to the Full Bench of this division, rather than the Supreme Court of Appeal.”

(5) The Notice of Appeal sets out several grounds in respect of which Nicholson J erred when he granted the order for the eviction of the Appellants. When the matter came before this Court, the case advanced for the Appellants, was distilled to the single issue as to whether or not the court a quo had erred, regardless of the fact that Appellants had consented to vacate the property by the 7th of August 2006, in that the court a quo had failed to conduct an enquiry which it was called upon to conduct in terms of section 4 (7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“PIE”). It was submitted that the enquiry which the court a quo ought to have conducted should have been in the manner as laid down in the case of Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC). The relief which the Appellants sought on appeal was for this Court to set aside the order of the court a quo and either to receive further evidence or to have the matter referred to the court a quo to receive further evidence. The evidence the Appellants sought to place before the Court was as set out in an affidavit of First Appellant. The affidavit is annexed to the Appellant’s application for leave to appeal.

(6) In Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC), the Constitutional Court recognised that PIE required the Courts to perform a balancing act between the competing fundamental rights to dignity, housing and property. At paragraph 23 it stated the position as follows :

“In sum, the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right not arbitrarily to be deprived of a home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather, it is to balance out and reconcile the opposed claims in a just manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case.”

(7) The Constitutional Court further stated at paragraphs 32 and 36 :

“….What the Court is called upon to do is to decide whether, bearing in mind the values of the constitution, in upholding and enforcing land rights, it is appropriate to issue an order which has the effect of depriving people of their homes…..Both the language of this section and the purpose of the statute require the court to ensure that it is fully informed before undertaking the onerous and delicate task entrusted to it.”

“The Court is thus called upon to go beyond its normal functions and to engage in active judicial management according to equitable principles of ongoing, stressful and law-governed social process. This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make…”

(8) The above passages suggest no more than a modus procedendi for a Court to adopt in coming to the opinion as to whether or not it is just and equitable to grant an order for eviction in a particular case which falls within the ambit of the relevant provisions of PIE. These passages do not create an obligation on a Court to embark on an inquisitorial process in every case regardless of the circumstances before it.

(9) In my view, it would appear that PIE does no more than give “an unlawful occupier” some procedural and substantive protection against eviction from land. What it does not do is to expropriate the land owner and it cannot be used to expropriate a land owner indirectly. In Ndlovu v Ngcobo 2003(1) SA 113 (SCA) at paragraph 19 the Court made this point :

“Provided the procedural requirements have been met, the owner is entitled to approach the Court on the basis of ownership and the respondent’s unlawful occupation. Unless the occupier opposes and discloses circumstances relevant to the eviction order, the owner, in principle, will be entitled to an order for eviction. Relevant circumstances are nearly without fail facts within the exclusive knowledge of the occupier and it cannot be expected of an owner to negative in advance facts not known to him and not in issue between the parties.”

(10) In the case before us, the Appellants do not contend that their eviction is not just and equitable but rather that the court a quo failed to enquire whether it was just and equitable for them to vacate the property by the agreed date. In my view, this contention cannot be sustained.

(11) Where a party acquiesces in an order which is adverse to him his right to challenge that order on appeal is perempted. This is the position at common law. There is nothing in PIE which suggests otherwise. The conduct of the Appellants on the day when the order was made and their subsequent conduct leads to the clear conclusion that they themselves wanted the order which the court a quo made and which is now the subject of this appeal.

(12) The circumstances as to how it came about that the Appellants consented to the order and which subsequently transpired is set out in the affidavit of the First Appellant. Those circumstances are as follows :-

“21 On the 21st of July 2006 all the Respondents were present at Court, as directed. Sipho and I arrived late, only to see the Applicant’s attorney speaking with the rest of the Respondents, who informed him that I was their spokesman. We discussed the matter with the attorney and explained that we would leave the premises, provided we received a note from the owner allowing the municipality to place a mark on the building, paving the way for us to get alternative housing.

The attorney then informed us that he could have us evicted from the premises the next day, being 22nd July 20067 but that he would “fight for us” and ask the Court to enable us to leave on 7th August 2006. It seemed to us, on receiving this information, that our situation was hopeless in so far as resisting the Court proceedings was concerned and that we had no option but to accept whatever leniency the attorney was willing to show. We therefore thought that we should accept his proposal and continue to pursue other means to secure alternative accommodation. At this stage, based on our discussions with the municipal officials, we sought this “piece of paper” from the landowner, which would give us access to alternative housing. However, we were not able at that stage to persuade the attorney to agree to provide us with such a document, as the matter was due to be called. Nonetheless, we believed that if the municipality saw a court order providing for our eviction, this would be suitable proof for the municipal officials of our need to be accommodated elsewhere…

24.After the Court proceedings, the Respondents returned to the property and most of them carried on with their daily lives. Shortly thereafter the Sheriff served us with an order of court. Armed with this document, Sipho and I went to the offices of the municipality informing them we had received the “paper” from the Court and sought clarity on how they would place us on the list for alternative accommodation and where we could be relocated. We were told that nothing could be done for us and that we had to obey the order and move off the premises by 7th August 2006, failing which the sheriff would remove our belongings onto the streets.

25. It was only at this stage that we finally became fully aware that we faced the real prospect of eviction, without having access to alternative accommodation. The enormity of the situation dawned on us. Sipho and I hurried back to the property and explained the situation to the rest of the Respondents. The Responents (excluding the 7th to 9th Respondents) mandated Sipho and I to seek legal assistance in trying to undo the order and ensure that if we were to be evicted, we would not be left homeless.”

(13) It seems to me the circumstances outlined above falls within the doctrine mentioned by Hoexter JA in Administrator, Orange Free State v Mokopanele [1990] ZASCA 69; 1990 (3) SA 780 at 787 G.

“The legal doctrine here involved may perhaps best be described as that of election. But in a situation such as this the exact nomenclature is less important than a recognition of the fundamental principle that a contracting party who has once approbated cannot thereafter reprobate.”

(14) In an attempt to avoid the consequences of their consent, the Appellants advanced the argument that the effect of the apparent consent by the Appellants and Respondent to an eviction order was to purport to empower the court a quo to make an eviction order in terms of section 4(8) of PIE without complying with section 4 (7). The argument is untenable. Section 4 (8) of PIE provides that :

“If the Court is satisfied that all the requirements of this section has been complied with and that no valid defence had been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine :-

a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).

(15) As stated, PIE provides certain procedural and substantive protection to an unlawful occupier. It is common cause that the Respondent had complied with the procedural formalities contained in section 4 (2) read with section 4 (5) of PIE. The substantive requirement that needed to be satisfied was whether it was just and equitable in the circumstances of this case for the court a quo to grant an order for the eviction of the Appellants. The Appellants, having agreed to vacate by the 7th of August 2006 indicated to the Court that they were satisfied with an order for their eviction and therefore, did not intend to raise any defence against an order for their eviction. That being so there was no necessity for the court a quo to second guess the parties. To argue that the court a quo had erred by not embarking on an enquiry which neither the Appellants nor the Respondent, at the time, demanded, in my view is untenable. What the Appellants seek to do with this approach is to undo an agreement which they now find not to be to their satisfaction.

(16) It is clear from the First Appellant’s affidavit that the Appellants wanted a court order in the belief ”that if the municipality saw a court order providing for our eviction, this would be suitable proof for the municipal officials of our need to be accommodated elsewhere.”

When circumstances did not turn out as anticipated, some seven (7) days after the order had to be executed the Appellants were moved to launch this appeal.

(17) Further, it was argued that the effect of the Appellants consent to the eviction order was, having regard to the serious deficiencies in the information before the Court, a waiver of the Appellants rights under PIE.

(18) The question which this argument raises is what rights did the Appellants waive? PIE does not grant to an illegal occupier the right to indefinitely occupy the property of someone else. PIE creates a procedural regime which balances the right of the unlawful occupier to procedural justice which is fair and equitable with the substantive right of an owner not to be unlawfully deprived of his right to ownership.

(19) In all the circumstances of this case I am satisfied that the court a quo did not err or misdirect itself and that it acted as required in terms of the provisions of PIE.

(20) The question as to whether the matter ought to be remitted for further evidence is one only to be considered if it is shown that this Court ought to set aside the order of the court a quo. As I am unpersuaded that this Court ought to interfere with the order of the court a quo there is no necessity to consider the Appellants’ application to lead further evidence. As no cost order was requested by the parties involved in this appeal the order that I would propose is that the appeal be dismissed.

IT IS ORDERED THAT THE APPEAL IS DISMISSED

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JAPPE J

I agree

MSIMANG J

I agree

Madondo J