Striving Mind Trading 960 CC v Mabelane and Others (20297/17) [2018] ZAGPPHC 521 (4 July 2018)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)

NOT REPORTABLE

(2)

NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case No: 20297/17

4/7/2018

In the matter between:

STRIVING MIND TRADING 960 CC

Applicant

and

JOSNIA

MABELANE

First Respondent

AKAAL'S

PROPERTY INVESTMENTS CC

Second Respondent

CITY

OF TSHWANE METROPOLITAN MUNICIPALITY

Third Respondent

THE

DE FACTO MANAGER OF THE CRECHE BEING

RUN FROM ERF 348, ASIATIC BAZAAR,

PTA

Fourth Respondent

JUDGMENT

ELLIS, AJ:

(1) The applicant is the registered owner of Erf 347, Asiatic Bazaar, Pretoria, Gauteng ("the property' ), which it acquired during May 2016. The property is presently a vacant lot and applicant is intent on development thereof. To this end, applicant submitted building plans to the City Council of Tshwane, who approved same on 26 April 2016. Moreover, applicant has also acquired the services of a building contractor whom it intends on using to construct a building on the property in accordance with the building plans. Applicant has already paid said building contractor an amount of R300 000.00.

(2) Applicant contends that first respondent, who operates an unregistered creche in a building situated on Erf 348, Asiatic Bazaar, Pretoria, (adjacent to applicant's property,) has wilfully and unlawfully prevented applicant from exercising its right to unfettered and unrestricted access to the property.

(3) First respondent allegedly caused the erection of a fence on the property along the street boundary with a gate and disallows applicant any access to the property. Further, first respondent from time to time gains access to Erf 348 through the gate, using a gravel road on the property that leads to the creche building, regardless of the fact that first respondent has ease of access to Erf 348 (a corner stand) from the western side (Sixth Street) and the southern side (Grand Street). Moreover, first respondent also uses the property as a makeshift playground for the children in the creche. Loose standing swings and playground equipment have been placed on the property close to the creche building situated on Erf 348. Applicant has never consented to any of the first respondent's actions described above and the first respondent has point blank refused applicant access to the property, in some instances against the threat of violence.

(4) In order to protect and secure its propriety rights over the property, applicant on numerous occasions approached the City of Tshwane, the SAPS and the Metro Police without any success. Instead, applicant was informed that it needs to obtain a court order before first respondent will vacate the property.

(5) Accordingly, applicant launched this application against the respondents seeking interim relief, alternatively final relief in respect of its right to unfettered and unrestricted access to the property. Second respondent is cited as the registered owner of Erf 348, Asiatic Bazaar, Pretoria, and third respondent is cited only because it may be an interested party.

(6) As it turns out, only first and fourth respondents oppose this application, essentially raising the following defences in their answering affidavit, namely that:

(6.1) The creche is the Boikhutsong Child Care Centre ("the BCCC"), a non-profit organisation registered in 2006, but the creche as such is not registered as a partial care facility in terms of the Children's Act.[1] [2]

(6.2) The applicant's relief is circumventing the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”') , which first and fourth respondents contend apply in this instance because applicant in effect seeks an eviction, without complying to the provisions of the PIE Act.

(6.3) The third respondent has permitted the BCCC to occupy stand 350 (which comprises of Erf 347 and Erf 348) from 2001 and according to first and fourth respondents, the BCCC has occupied the property since then, utilising the property exclusively for purposes of providing the children with a playground.

(6.4) During or about 2010, third respondent informed the BCCC by letter dated 19 February 2010, that the Minister of Agriculture and Land Affairs had approved the restoration of Erven 347, 348 and 373 Asiatic Bazaar, to its former owners,[3] that the BCCC's occupation of the said Erven with third respondent had come to an end and that the BCCC should negotiate a lease with the owners and submit proof thereof to third respondent. However, BCCC failed to negotiate any lease agreement in respect of Erven 347, 348 and 373 Asiatic Bazaar, because none of the owners had apparently came forth.

(6.5) As a result hereof, a meeting was held on 12 December 2012, attended by first respondent, Thivhulawi Nyambeni, Promise Mabasa and Lebo Makoka from the Department of Social Development as well as Laura Lourens on behalf of Reg 3.[4] According to first respondent, Promise Mabasa stated that they visit the creche regularly and are happy about the services rendered by the BCCC, wherefor there is nothing sinister about the fact that the BCCC is not registered as a partial care facility, because surely the Provincial Department of Social Welfare would have brought an immediate end to the creche if it was regarded as material.

(6.6) First and fourth respondents also submitted that it was during the aforesaid meeting that Mr Nyambeni was requested to set up a meeting with officials from the housing department to determine where and how the BCCC could be housed.

(6.7) Notwithstanding, the BCCC presently has no fixed premises of its own from where to conduct the creche.

(6.8) It is specifically submitted by first and fourth respondents that the fence on the property is there to ensure that the BCCC complies with the recommendations made by the Environmental Health Practitioner, which measure was obviously aimed at ensuring the safety of the children at the creche.

(6.9) First and fourth respondents concluded their opposition by repeating that applicant in effect seeks an eviction in terms of the PIE Act, alternatively that any eviction order can only be granted if it will be in the interest of the children as required by the Constitution; that they have not managed to secure alternative land to operate the creche from despite their ongoing attempts; and in the event that the order sought by applicant is granted, it will make it impossible for them to continue with the creche and no alternative facility similar to the BCCC is available to the children in the Marabastad area.

(7) However, during the hearing hereof counsel for first and fourth respondents attempted to raise the following issues, namely:

(7.1) That section 28(1)(h) of the Constitution[5] applies in this instance, which is clearly a matter in which a legal representative should be appointed on behalf of the children to prevent a substantial injustice or at the very least a curator should be appointed to report to court on how the order sought would affect the interest of the children concerned;

(7.2) That there is a material non-joinder of the MEC for Social Development, since the order sought by applicant concern a partial care facility as contemplated in the Children's Act, and

(7.3) That the application cannot proceed until such time as the aforesaid issues has been addressed.

(8) It is common cause that neither of the aforesaid issues have been raised by first and fourth respondents in their answering affidavit. The principle to be applied in this instance has been formulated as follows:

"...that a party to application proceedings is entitled to make any legal contention which is open to him on the facts (Van Rensburg v Van Rensburg an Andere[6] ) has been qualified, in the case of an applicant, by the proviso that it should not be applied if such application would be unfair to the respondent (see Minister van Wet en Orde v Matshoba[7] ). I shall assume that, in appropriate circumstances, the same proviso would apply to legal contentions raised by the respondent."[8]

(9) Moreover, counsel for first and fourth respondents even went so far as to submit that this application can only proceed after I have ordered the joinder of the MEC and appointed legal representation and/or a·curator for the children, without a counter application launched by first and fourth respondents to this effect.

(10) I am of the firm view that whether or not section 28(1)(h) of the Constitution applies in this case, will require a consideration of constitutional issues on whether or not these proceedings directly affect the rights of the children and whether the failure to have the children being represented by an independent legal representative or curator, would result in a substantial injustice.

(11) Apart from the fact that it is extremely unfair towards applicant for first and fourth respondents to have raised this issue for the first time in argument, I am also cautioned that where it is possible to decide a case without reaching as constitutional issue, that such is the course I must follow.[9]

(12) This rings true the reference by Chaskalson P in Zantsi v Council of State Ciskei and Others[10] to the approach adopted by Matthews J in Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigration,[11] where the following was stated:

"Never ... anticipate a question of constitutional law in advance of the necessity of deciding it; ... never ... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."[12]

(13) I do not agree with the first and fourth respondents that the facts in this matter necessitate a consideration of the applicability of section 28(1)(h) of the Constitution, nor that the application should be postponed pending the joinder of the MEC for Social Development.

(14) Accordingly, I am required to deal with first and fourth respondents' contention that the provisions of the PIE Act applies in this instance. It is trite that the PIE Act has its roots, inter alia, in section 26(3) of the Constitution.[13] The PIE Act therefore does not protect buildings and structures that do not perform the function of a form of dwelling or shelter for humans (e g commercial properties) or that are occupied by juristic persons.[14]

(15) It is common cause that the property is a vacant piece of land without any buildings or structures on it and used exclusively by first and fourth respondents as a playground for the children. It is further common cause that the apparatus on the playground consists of loose standing items, which can easily be moved and nothing is permanently affixed to the property. In the absence of any evidence adduced by first and fourth respondents to indicate that the property is being "occupied" as provided

for in the PIE Act, I am satisfied that the provisions of the PIE Act do not apply in this instance.

REQUISITES

FOR AN INTERDICT

(16) The granting of a final interdict depends on the presence of the following requisites:

(16.1) a clear right on the part of the applicant;

(16.2) an injury actually committed or reasonably apprehended; and

(16.3) the absence of any other satisfactory remedy available to the applicant.[15]

(17) In the event that the applicant establishes a clear right, an apprehension of irreparable harm need not be established.[16] Moreover, in the case of a vindicatory or quasi-vindicatory claim it is factually presumed until the contrary is shown that the applicant will suffer irreparable harm if the interdict is not granted.[17]

(18) It is clear from the facts of this matter that the applicant's ownership of the property is definitively established and first and fourth respondents do not proffer any evidence contesting this right. I am therefore satisfied that the applicant has proven on a balance of probability that it has a clear right which it seeks to protect.

(19) A reasonable apprehension of injury is one which a reasonable man might entertain on being faced with certain facts.[18] However, an applicant is not required to establish that, on a balance of probabilities flowing from that undisputed facts, injury will follow: he's only to show that it is reasonable to apprehend that injury will result.[19] The test for apprehension is therefore an objective one.[20]

(20) In view of the fact that applicant's claim is vindicatory i.e. the unfettered and unrestricted access to the property registered in its own name, I must presume, until the contrary is shown by first and fourth respondents, that applicant will suffer irreparable harm if the interdict is not granted.

(21) Instead, first and fourth respondents have adopted a stance in this matter that applicant must be prevented from exercising its vindicatory right, until they have obtained suitable premises for the BCCC, through the intervention of the MEC for Social Development. The fact that the BCCC has no suitable premises is clearly an issue which does not concern the applicant, but cannot be used as an excuse by first and fourth respondents to prevent applicant from exercising its right over the property. In addition, first and fourth respondents reiterated that the safety of the children cared for by the BCCC is of paramount importance, without adducing any evidence to indicate how the safety of the children will be affected if the interdict is granted in favour of applicant.

(22) To this end, applicant in its replying affidavit tendered an undertaking to immediately enclose all the boundary lines of the property by fencing or a boundary wall, more particularly the boundary line between the property and Erf 348, where the BCCC is situated and conducted.

(23) In any event, the provisions of sections 76 and 79 of the Children's Act,[21] places strict provisions on a person who provides partial care for children. First, the service is provided by agreement between the parents or care-givers of the child and the provider of the service. Second, the person providing the partial care must, inter alia, ensure a safe environment for the children. The aforesaid agreement and concomitant obligations rest with the first and fourth respondents

and the applicant is neither a party thereto, nor obliged to conform the property with the national norms and standards for partial care, as provided for in section 79 of the Children's Act.

(24) I am therefore of the firm view that the presumption that applicant will suffer irreparable harm if the interdict is not granted, is now conclusive in view ·of first and fourth respondents' failure to provide any evidence to the contrary.

(25) It is generally accepted that a court will not grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. Accordingly, an applicant for a permanent interdict must allege and establish, on a balance of probability, that he has no alternative legal remedy.[22]

(26) A court will also in general, decline to grant an interdict when the applicant can obtain adequate redress through an award of damages.[23] However, even where an injury may be capable of pecuniary evaluation and compensation, the court will generally grant an interdict if the respondent is a man of straw;[24] the injury is a continuing violation of the applicant's rights;[25] the damages will be difficult of assessment;[26] and the action for damages will be needlessly expensive and time-consuming.[27]

(27) It is quite apparent from the discussion of the facts above that the applicant has explored all possible avenues in order to resolve this issue, before having launched this application. Accordingly, I am satisfied that the applicant has demonstrated that it has no other remedy at its disposal. In any event, I am of the firm view that this case does not present a situation in which the applicant can obtain adequate redress by way of damages.

ORDER:

In the result l make the following order:

1. It is declared that applicant is entitled to unfettered and unrestricted access to the property known as Erf 347, Asiatic Bazaar, Pretoria, Gauteng ("the property");

2. The first and fourth respondents are interdicted and restrained from, in any way, interfering with the proprietary rights of applicant in respect of the property, which includes:

2.1 that first and fourth respondents may not prevent applicant or any of applicant's representatives or invitees any access to the property;

2.2 that first and fourth respondents are precluded from bringing onto the property any equipment, assets, or any playground equipment of any nature used to operate the creche, known as the Boikhutsong Child Care Centre ("BCCC"), situated and conducted on Erf 348, Asiatic Bazaar, Pretoria, Gauteng. Insofar as any such items are on the property as of date of this order, the first and fourth respondents are ordered to remove same within three (3) days from date of this order;

2.3 that first and fourth respondents are precluded from allowing any person on their instructions or with their leave to enter onto the property, including any children of the creche, known as BCCC, situated and conducted on Erf 348, Asiatic Bazaar, Pretoria, Gauteng;

2.4 that first and fourth respondents are precluded from locking the entrance gate to the property. Insofar as it is locked at the time this order is granted, first and fourth respondents are ordered to remove such lock within three (3) days from date of this order;

2.5 that first and fourth respondents may not enter the property or use the property as a means of entering into Erf 348, and may not allow any other person to do so;

2.6 that first and fourth respondents vacate the property within three (3) days from date of this order.

3. Should first and fourth respondents fail to remove any equipment, assets, or playground equipment from the property, or fail to remove the lock from the entrance gate to the property, or fail to vacate the property, within three (3) days from date of this order, the Sheriff of this Honourable Court is authorised and ordered to remove such equipment, assets or playground equipment, to unlock and/or remove any lock on the entrance gate to the property and to provide applicant with full possession of the property;

4. Applicant is ordered to immediately and upon being in full possession of the property, ensures that the boundaries of the property, more particularly the boundary line between Erf 348 and the property are enclosed by erecting fencing or a boundary wall, before commencing with any construction as per the building plans.

5. First and fourth respondents are ordered to pay the costs of this application on a party and party scale, including the costs of

counsel.

I . ELLIS

ACTING

JUDGE OF THE HIGH COURT

APPEARANCES:

ON BEHALF OF APPLICANT: Adv C.A. Boonzaaier

APPLICANT'S ATTORNEYS: TINTINGERS INCORPORATED

ON BEHALF OF 1ST AND 4TH RESPONDENTS: Adv A. Thompson

1ST AND 4TH RESPONDENTS ATTORNEYS: LAWYERS FOR HUMAN

RIGHTS

Date of hearing: 23 March 2018

Date of judgment: 4 July 2018

[1] 38 of 2005.

[2] Chapter 5 of the Children's Act 38 of 2005 specifically deals with partial care (ss 76-90). I only refer to the provisions of sections 76 to 80, which read as follows: "76. Partial care Partial care is provided when a person, whether for or without reward, takes care of more than six children on behalf of the parents or carer-givers during specific hours of the day or night, or for a temporary period, by agreement between the parents or care-givers

and the provider of the service, but excludes the care of a child: (a) by a school as part of tuition, training and other activities provided by the school; (b) as a boarder in a school hostel or other residential facility managed as part of a school; or (c) by a hospital or other medical facility as part of medical treatment provided to the child.

77. Strategy concerning partial care (1) The Minister, after consultation with interested persons and the Ministers of Education, Finance , Health, Provincial and Local Government and Transport, must include in the departmental strategy a comprehensive national strategy aimed at ensuring an appropriate spread of partial care facilities throughout the Republic, giving due consideration as provided in section 11, to children with disabilities or chronic illnesses. (2) The MEC for social development must: (a) maintain a record of all the registered partial care facilities in the province; and (b) within the national strategy contemplated in subsection (1}, provide for a provincial strategy to ensure an appropriate spread of partial care facilities in the province. (3) The MEC for social development must compile a provincial profile at the prescribed intervals in order to make the necessary information available for the development and review of the strategies contemplated in subsection's (1) and (2).

78. Provision of partial care (1) The MEC for social development may, from money appropriated by the relevant provincial legislature, provide and fund partial care facilities and services for the province, taking into consideration the national and provincial strategies contemplated in section 77. (2) A partial care facility referred to in subsection (1): (a) must be managed and maintained in accordance with this Act; and (b) must comply with: (i) the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed; and (ii) the structural safety, health and other requirements of the municipality of the area where the partial care facilities situated. (3) The owner or manager of a partial care facility or provider of a partial care service only qualifies for funding contemplated in subsection (1) if such owner, manager or provider complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed. (4) The funding of partial care facilities must be prioritised: (a) in communities where families lack the means of providing proper shelter, food and other basic necessities of life to the children; and (b) to make facilities assessable to children with disabilities.

79. National norms and standards for partial care (1) The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport, must determine national norms and standards for partial care by regulation. (2) The national norms and standards contemplated in subsection (1) must relate to the following: (a) A safe environment for children; (b) proper care for sick children or children that becomes ill; (c) adequate space and ventilation ; (d) safe drinking water; (e) hygienic and adequate toilet facilities; (f) safe storage of anything that may be harmful to children; (g) access to refuse disposal services or other adequate means of disposal of refuse generated at the facility; (h) a hygienic area for the preparation of food for children; (i) measures for the separation of children of different age groups; (u) the drawing up of action plans tor emergencies; and (k) the drawing up of policies and procedures regarding health care at the facility. (3) A partial care facility tor children with disabilities or chronic illnesses must in addition to the national norms and standards contemplated in subsection (1 ): ' (a) be assessable to such children; (b) provide facilities that meet the needs of such children· and (c) employed children that are trained in and provide' training to persons employed at the facility on: (i) the needs, health and safety of such children; (ii) appropriate learning activities and communications strategies for such children; and (iii) basics therapeutic interventions. (4) A partial care facility may offer programs appropriate to the developmental needs of the children in that facility as may be prescribed.

80. Partial care facility to be registered (1) Any person organisation may establish or operate a partial care facility provided that the facility: (a) is registered with the provincial government of the province where that facility is situated; (b) is managed and maintained in accordance with any conditions subject to which the facility is registered; and (c) complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed. (2) The Minister may by regulation exempt any person or organisation or any category of person or organisation from the requirement to register on such conditions as may be prescribed. (3) Partial care facilities operated or managed by a national or provincial state department or by a municipality must comply with subsection (1). (4) As from the date on which this section takes effect an existing place of care registered or deemed to be registered in terms of the Child Care Act must be regarded as having been registered in terms of this section as a partial care facility. (5) A facility referred to in subsection (4) is regarded as a registered partial care facility for a period of five years from the date on which that subsection takes effect, unless its registration is cancelled in terms of section 84 before the expiry of that period."

[2] Chapter 5 of the Children's Act 38 of 2005 specifically deals with partial care (ss 76-90). I only refer to the provisions of sections 76 to 80, which read as follows:

"76. Partial care

Partial care is provided when a person, whether for or without reward, takes care of more than six children on behalf of the parents or carer-givers during specific hours of the day or night, or for a temporary period, by agreement between the parents or care-givers

and the provider of the service, but excludes the care of a child:

(a) by a school as part of tuition, training and other activities provided by the school;

(b) as a boarder in a school hostel or other residential facility managed as part of a school; or

(c) by a hospital or other medical facility as part of medical treatment provided to the child.

77. Strategy concerning partial care

(1) The Minister, after consultation with interested persons and the Ministers of Education, Finance , Health, Provincial and Local Government and Transport, must include in the departmental strategy a comprehensive national strategy aimed at ensuring an appropriate spread of partial care facilities throughout the Republic, giving due consideration as provided in section 11, to children with disabilities or chronic illnesses.

(2) The MEC for social development must:

(a) maintain a record of all the registered partial care facilities in the province; and

(b) within the national strategy contemplated in subsection (1}, provide for a provincial strategy to ensure an appropriate spread of partial care facilities in the province.

(3) The MEC for social development must compile a provincial profile at the prescribed intervals in order to make the necessary information available for the development and review of the strategies contemplated in subsection's (1) and (2).

78. Provision of partial care

(1) The MEC for social development may, from money appropriated by the relevant provincial legislature, provide and fund partial care facilities and services for the province, taking into consideration the national and provincial strategies contemplated in section 77.

(2) A partial care facility referred to in subsection (1):

(a) must be managed and maintained in accordance with this Act; and

(b) must comply with:

(i) the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed; and

(ii) the structural safety, health and other requirements of the municipality of the area where the partial care facilities situated.

(3) The owner or manager of a partial care facility or provider of a partial care service only qualifies for funding contemplated in subsection (1) if such owner, manager or provider complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.

(4) The funding of partial care facilities must be prioritised:

(a) in communities where families lack the means of providing proper shelter, food and other basic necessities of life to the children; and

(b) to make facilities assessable to children with disabilities.

79. National norms and standards for partial care

(1) The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport, must determine national norms and standards for partial care by regulation.

(2) The national norms and standards contemplated in subsection (1) must relate to the following:

(a) A safe environment for children;

(b) proper care for sick children or children that becomes ill;

(c) adequate space and ventilation ;

(d) safe drinking water;

(e) hygienic and adequate toilet facilities;

(f) safe storage of anything that may be harmful to children;

(g) access to refuse disposal services or other adequate means of disposal of refuse generated at the facility;

(h) a hygienic area for the preparation of food for children;

(i) measures for the separation of children of different age groups;

(u) the drawing up of action plans tor emergencies; and

(k) the drawing up of policies and procedures regarding health care at the facility.

(3) A partial care facility tor children with disabilities or chronic illnesses must in addition to the national norms and standards contemplated in subsection (1 ): '

(a) be assessable to such children;

(b) provide facilities that meet the needs of such children· and

(c) employed children that are trained in and provide' training to persons employed at the facility on:

(i) the needs, health and safety of such children;

(ii) appropriate learning activities and communications strategies for such children; and

(iii) basics therapeutic interventions.

(4) A partial care facility may offer programs appropriate to the developmental needs of the children in that facility as may be prescribed.

80. Partial care facility to be registered

(1) Any person organisation may establish or operate a partial care facility provided that the facility:

(a) is registered with the provincial government of the province where that facility is situated;

(b) is managed and maintained in accordance with any conditions subject to which the facility is registered; and

(c) complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.

(2) The Minister may by regulation exempt any person or organisation or any category of person or organisation from the requirement to register on such conditions as may be prescribed.

(3) Partial care facilities operated or managed by a national or provincial state department or by a municipality must comply with subsection (1).

(4) As from the date on which this section takes effect an existing place of care registered or deemed to be registered in terms of the Child Care Act must be regarded as having been registered in terms of this section as a partial care facility.

(5) A facility referred to in subsection (4) is regarded as a registered partial care facility for a period of five years from the date on which that subsection takes effect, unless its registration is cancelled in terms of section 84 before the expiry of that period."

[3] Although first and fourth respondents contend that a copy of this letter is annexed to their answering affidavit marked "LHR2",

no such letter is attached thereto, nor was it tendered or handed up in court during the hearing hereof.

[4] Only the attendance register of this meeting is attached to first and fourth respondents answering affidavit marked Annexure "LH4" and no minutes of the said meeting was provided.

[5] Section 28(1)(h) of the Constitution provides that every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result.

[6] 1963 (1) SA 505 (A) at 509H-5108 .

[7] 1990 (1) SA 280 (A) at 285E-I.

[8] Angus and Another v Kosviner and Another 1996 (3) SA 215 (W) at 222G-H.

[9] S v Mhlungu and Others [1995] ZACC 4; 1995 (3) SA 867 (CC) at [59]; Zantsi v Council of State Ciskei and Others [1995] ZACC 9; 1995 (4) SA 615 at [3].

[10] 1995 (4) SA 615 (CC).

[11] 113 US 33 (1885).

[12] Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigration 113 US 33 (1885) at 39, referred to in Zantsi v Co4ncil of State Ciskei and Others supra at [2].

[13] Section 26(3) of the Constitution specifically provides that no one may be evicted from their home, or have their home demolished,

without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

[14] Shopite Checkers Ltd v Jardim 2004 (1) 502 (0) at 506E-507E; Dries v Venter NO 20058 (6) SA 67 (T) at 691-71C; Kanescho Realtors (Pty) ltd v Maphumulo 2006 (5) SA 92 (D) at 94F.

[15]Setlago v Setlogo 1914 AD 221.

[16] LF Boshoff Investments (Ply) Ltd v Cape Town Municipality, Cape Town Municipality v LF Boshoff Investments (Ply) Ltd 1969 (2) SA 256 (C) at 267.

[17] Antares International Ltd and Another v Lauw Coetzee & Malan Inc and Another 2014 (1) SA 172 (WCC) at [31].

[18]Free State Gold Areas v Merriespruit (OFS) Gold Mining Co Ltd 1961 (2) SA 505 (W) at 518A.

[19] Free State Gold Areas v Merriespruit (OFS) Gold Mining Co Ltd supra at 518A.

[20] Free State Gold Areas v Merriespruit (OFS) Gold Mining Co Ltd supra at 518C and 524C.

[21] See fn 2 supra.

[22]Chapmans Peak Hotel (Pty)Ltd v Jab and Annalene Restaurants CC tla O'Hagans [2001] 4 All SA 415 (C) at 420g.

[23] UDC Bank Ltd v Seacat Leasing and Finance Co Ltd 1979 (4) SA 682 (T) at 695D-696C.

[24] Lubbe v Die Administrateu,r Oranje-Vrystaat 1968 (1) SA 111 (0) at 11SD.

[25] Transvaal Property & Investment Co Ltd v SA Townships Mining & Finance Corp Ltd 1938 TPD 512.

[26] Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd 1976 (4) SA 218 (T) at 220A.

[27] Heroldt v Wills 2013 (2) SA 530 (GSJ) at 543E-G and 545G-546D.