Yeast City Housing v Kutumela and Others (62519/2020) [2020] ZAGPPHC 750 (15 December 2020)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO.

(2) OF INTEREST TO OTHER JUDGES: NO.

(3) REVISED.

15 DECEMBER 2020

CASE NO: 62519/2020

ln the matter between:

YEAST CITY HOUSlSNG

Applicant

and

MENTOR ROMARK THOMAS KUTUMELA

First Respondent

AGRINETTE SESUWI MORATO

Second Respondent

FULUFHELO NETSHIONGOLWE

Third Respondent

ANANIAS MOSIMA THANTSHA

Fourth Respondent

PHILEMON MALINDI

Fifth Respondent

JOHN KGATLA

Sixth Respondent

CITY OFTSHWANE METROPOLITAN MUNlCIPALITY

Seventh Respondent

VOLTANO METERING (PTY) LTD

Eighth Respondent

JUDGMENT

Allthough this matter has been heard in o pen court, it has still been heard in of the Directives of the Judge President of this Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and order are accordingly published and distributed electronically.

DAVIS, J

[1] Introduction

1.1 This is the judgment in one of 66 matters which came before the urgent court last week. This application is one of an interrelated pair of applications, the other being Case No 62 387/20 between Voltano Metering (Pty) Ltd (Voltano) and the City ofTshwane (the seventh respondent in the present application), Yeast City Housing NPC (the applicant in the present application) the Minister of Police and the Tshwane Metro Police. Voltano also features as the eight respondent in the present applicant.

1.2 The disputes between Yeast City Housing NPC (Yeast City) and Voltano arising from the two applications have been dealt with last week. It was done partially by agreement and with the South African Police Services (who were also represented in court) agreeing to render assistance to the implementation of the order made in case number 62 387/2020.For the sake of clarity, certainty and due to its relevance to this judgment, the relevant part thereof is quoted here:

"2. The First Respondent [City of Tshwane] is directed to suspend the supply of electricity services to the Thembelihle village with address 83 Struben Street, Pretoria on 18 December 2002 from 08h30 to 16h30 as per the Standard Electricity Supply by-laws adopted by the First Respondent (Government Gazette No 227).

3. The First Respondent is directed to ensure that the official in charge if the electricity undertaking of the First Respondent alternatively any other person duly authorised to perform this duty on behalf of such official attend the Thembelihle Village in order to determine whether a new certificate of compliance is required to be issued in relation to the improper and unsafe illegal connections carried out at the Thembelihle Village on or about 20 November 2020.

4. The First Respondent through the official in charge of the electricity undertaking of the First Respondent alternatively the person duly authorised to perform this duty on behalf of such official is directed to confirm the determination referred to in paragraph 3 above to the Applicant in writing within 5 working days of the determination being made.

5. The First Respondent is directed to restore the supply of electricity to the Thembelihle Village on 18 December 2020 as soon as the cause of suspension has been remedied, but by no later than 16h30.

6. The Second Respondent [Yeast City] is directed to take all necessary steps in order to ensure the safety and protection (housing) of all the electricity supply equipment found on the premises of the Thembelihle Village which is used to supply electricity to the tenants prior to the 8th of December 2020, the costs of which are to be borne by the Second Respondent.

7. The Applicant is directed to attend to the safe reconnection of the supply of electricity to the Thembelihle Village which reconnections were necessitated by the unsafe and improper reconnections affected by the residents, the costs of which will be borne by the Applicant.

8. The Third and Fourth Respondent [the SAPS and Tshwane Metro] are directed to assist the First Respondent, the Second Respondent and the Applicant on 18 November 2020 in order to give effect to their respective obligations under this order.

9. The Applicant will provide the Second, Third and Fourth Respondent with a copy of its operational plan to be implemented on 18 December 2020 on or before the close of business on 14 December 2020".

1.3 As can be gleaned from the above, illegal electricity connections were effected by residents of the Thembelihle Village. Attempts at restoring these, even under the auspices of a court order, were thwarted, leading to the current application for a finding of contempt of court against certain of those residents together with an eviction application against them.

1.4 The underlying principle applicable to the current application, has been aptly captured in the following quotation from the replying affidavit:

"Having a dispute as to whether you qualify for benefits in respect of the Indigent Programme does not however give you the authority to plunder and vandalise the property of both Yeast and Voltano, nor to harass, threaten and even kidnap its employees. It certainly does not allow the illegal connection and/or reconnection of electricity, which, in itself, is not only a threat to the property but also to the lives of thousands of individuals residing at Thembelihle Village.

This behaviour remains criminal and is further in contempt of the order of this Honourable Court" .

[2] The parties

2.1 Yeast City is the applicant in this application. It is a non-profit, social housing company in the City of Tshwane that operates within the framework of the Social Housing Act, No 16 of 2008. Its objective is to provide "decent, affordable and well-managed social housing to vulnerable and low income families". Thembelihle Village is one of the social housing initiatives managed by Yeast City, having some 2500 residents, including 800 children.

2.2 The eighth respondent is Voltano, who is responsible for the supply, metering and management of the electricity and water reticulation at the Thembelihle Village.

2.3 The seventh respondent is the City of Tshwane Metropolitan Municipality. It is the owner of the property on which the Thembelihle Village is situated and is also the relevant local authority and the organ of state responsible for the provision of alternative accommodation for persons facing imminent eviction.

2.4 The first to sixth respondents are Mentor Romark Thomas Kutumela, Agrinette Security Morata, Fulufhelo Netshiongolwe, Ananias Mosima Thantsha, Philemon Malindi and John Kgatla. In view of the order in case No 62387/2020 referred to above, they are the only remaining respondents featuring in this urgent application and shall accordingly collectively be referred to as "the respondents" .

[3] The court orders

3.1 The applicant alleges, under the heading "the hi-jacking of a village", that the respondents have "under the cloak of acting as advocates for tenant rights" conducted a relentless campaign of violence, intimidation and extortion over a period of three years at the Thembelihle Village. On 17 November 2020, this led to a violent clash with the SAPS. Numerous photographs presented confirm the allegations that the Village was turned into a virtual "war zone", with water cannons, tear gas and rubber bullets having to be employed. The trigger was the termination of electricity supply to non-paying residents who by then owed Voltano in excess of R1 million.

3.2 The electrical connections of the 91 affected units have been unlawfully, improperly and largely in an unsafe fashion, been reconnected. The units have been reconnected without circuit breakers, placing the buildings and the occupants thereof at immense risk. In addition, the secure housing of the electrical connections have been broken open and damaged.

3.3 On 9 July 2020, Khumalo J granted an order in this court in case no 28 217/2020 against the first and second respondents herein, interdicting and restraining them from "intimidating, threatening, harassing and/or assaulting" the employees of Yeast City and Voltano, from causing any damage to Yeast City's property (being the Thembelihle Village) and from preventing access to the property by the employees of Yeast city and Voltano. This order is referred to by the applicant as having been granted on 22 July 2020, but that is the date upon which the registrar of this court affixed its stamp to the order when it was processed.

3.4 On 19 August 20202, Raulinga, J joined a number of other respondents to the order, including the third to sixth respondents in this application .

3.5 The above orders were made subject to a rule nisi, returnable on the date of the hearing of the current urgent application and, on the understanding of the respondents, as I understood their legal practitioners, that order is now dependent on this application. It has not, however, been formally placed before me by any of the parties.

[4] The offending conduct

4.1 The conduct referred to in paragraph 3.1 above have been illustrated by a number of photographs, attached to the founding affidavit. Certain video clips were also referred to. During the standing down of this matter from last week Thursday to Friday, it was agreed that all parties view the video clips in order to attempt thereby to avoid disputes about the identities of persons visible in the video clips. This resulted in the first and second respondents being identified in conduct which I shall refer to hereunder, but which clearly contravenes the court order. The sixth respondent is identified in one video clip as "walking around"

the scene.

4.2 In addition to the conduct referred to above in general terms, the applicant allege that prior to that, on 22 October 2020, the first respondent "with the help of a taxi mob" , kidnapped two employees of Voltano. The employees' names are furnished and the occurrence of the incident is corroborated by a photograph of one of the employees receiving medical attention after being injured during his escape from the Village (he appears to be treated nearby to the scene). Further corroboration was provided by a photograph of the taxi, illustrating its registration number, affidavits of the two employees and of three eye-witnesses. Photographs were also provided of a vehicle belonging to Voltano, being towed away from the village after its tyres had been slashed, allegedly by the first respondent and his supporters.

4.3 The CCTV camera facing the scene where the tyres were slashed was vandalised by the fourth respondent and this is corroborated by video footage from the camera itself and by eye-witness statements and reports from two security guards.

4.4 The allegations of destruction of property, barricading of entrances and intimation of employees of Yeast made against the first respondent, were corroborated by photographs and affidavits from cleaners and eyewitnesses, who also confirmed having heard threats being made by some of the respondents that offices and vehicles (of Yeast and/or Voltano) were going to be burned down. The applicant's credit controller had to flee the village with his family.

4.5 The joinder of the third to sixth respondents by Raulinga, J clearly bound them to the previous order and this is how they themselves approached that matter in their opposition to the confinnation of the rule nisi. Their opposition also confums all the respondents' knowledge of the orders.

[5] Contempt of Court

5.1 The requirements for a finding of contempt of court are trite. They are that an applicant must prove the existence of all the elements of contempt beyond reasonable doubt. The elements are: the existence and the terms of the order relied on, notice of that order and non-compliance therewith in a willfull or malafide manner.

5.2 Once the applicant proves the existence of the order, notice thereof and non-compliance, the respondent bears the evidentiary burden to show the existence of a reasonable possibility that the non-compliance was not wilful or malafide. See: Fakie NO v CCII System (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).

5.3 In the present instance, the existence of the court orders and their terms are beyond doubt. So, clearly, is knowledge thereof.

5.4 The issue of wilfulness or mala fides can also, having regard to the nature of the conduct and the criminality of some aspects thereof (such as assault, Kidnapping and damage to property) not be in any doubt.

5.5 The only denials left, are the attempts at denying the occurrence of the conduct itself and the attempt to downplay the nature thereof. In respect of the first aspect, the individual detail of the various acts as referred to above and as described by the various deponents to affidavits, most of who were either victims or eye-witnesses, were not addressed in the answering affidavits. Instead, the respondents contented themselves with blanket allegations made in general terms to the effect that the applicant's evidence is "untrustworthy" or mere "fabrication". The details of the allegations , the extensive volume and varied particularly thereof and the clear corroboration by way of photographs and video clips, however, put the issue beyond doubt. I find that the applicant's allegations have been sufficiently proven beyond reasonable doubt.

5.6 As to the second issue namely the respondents' denial of the nature of the conduct, their legal practitioners attempted, both in oral and in written arguments, to suggest that the respondents were merely "toyi-toying" and engaging in peaceful participation in their rights of freedom of expression. The video's clearly refute this: they are agitating people to prevent Yeast City and Voltano employees from performing their duties, they are barricading access to Thembelihle Village and they are intimidating anyone who seeks to enter. The first respondent is the primary culprit and instigator in this regard. The photographs confirm that this conduct led to violence, all of which are interdicted by the court order.

5.7 I therefore find that the respondents are in contempt of the orders of this court of 9 July 2020 and 19 August 2020. The fact that there was no formal request for a confirmation of these orders does not mean that they were not in existence at the time when they were contravened.

5.8 The other "technical" defences raised by the respondents, such as lack of locus standi of Yeast City and arguments regarding the commissioning of one of the affidavits appear to me to be spurious and not a serious attempt to deal with the real issues raised.

5.9 As to the issue of sanction, the respondents are clearly not persons of means and the imposition of any monetary penalty would be out of place. Having regard to the nature of the conduct, detention would be appropriate. In the Notice of Motion, no specific period incarceration is called for and it is left to the discretion of this court.

5.10 The applicant also called for the eviction of the respondents as the perceived ringleaders of the criminal conduct being perpetrated at Thembelihle Village and the necessary notices of eviction in terms of the Prevention of Land Act, No 19 of 1998 have been authorised by Tlhapi J on 3 December 2020.

5.11 The reason set out in the application for the eviction of the respondents from the Thembelihle Village was put forward as the only solution to prevent the lawlessness from continuing. During argument of the urgent application, the applicant agreed to the postponement of this relief on condition that conduct contrary to the court orders do not occur again.

5.12 Of particular concern, is the envisaged operations contemplated in the order referred to in paragraph 1.2 above. The contention that the respondents were not part of that agreement and that it therefore is not binding on them is astounding if it is suggested thereby that unlawful prevention of the execution of that order might be permissible. The attorney for the respondents has, however, in open court confirmed that the respondents are also concerned about the safety of the illegal electricity connections.

5.13 Taking all of the above into account, I am of the view that the sanction imposed should be suspended. The conditions imposed, including the relief from costs, would simply mean that the respondents will not be incarcerated as long as they adhere to the interdicts imposed by this court, thereby not only acting lawfully but also maintaining the dignity of the court and the sanctity of orders granted by it. Insofar as it may be argued that the intention orders lapsed on 10 December 2020, their force are hereby extended for the period of suspension or until formally set aside by a court.

5.14 Subject to the above, I find no cogent reason why costs should not follow the event.

[6] Order

1. The first to sixth respondents are found to have acted in contempt of the orders of this court in case 28217/2020.

1. The first to sixth respondents are found to have acted in contempt of the orders of this court in case 28217/2020.

2. The first respondent is sentenced to 60 days imprisonment and each of the other respondents are sentenced to 30 days imprisonment for the aforesaid contempt of court.

3. The sentences imposed in paragraph 2 are suspended for five years on condition that the respondents do not make themselves guilty of any of the conduct referred to in the orders, committed during the period of suspension and do not commit any similar conduct or in any manner or fashion prevent or interfere with the execution of the order of this court dated 11 December 2020 in case no 62 387/2020.

4. The relief claimed regarding the eviction of the first to sixth respondents from the Thembelihle Village is postponed sine die, on condition that the said respondents comply with the conditions of suspension referred to in paragraph 3 above, failing which, the applicant is authorised re-enroll the matter and may supplement its papers in this regard.

5. The first to sixth respondents are jointly and severally ordered to pay the costs of this application but the recover y and execution of these costs orders are suspended indefinitely, but on the same conditions as those mentioned in paragraph 3 above.

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

Date of Hearing:

10 & 11 December 2020

Judgment delivered:

15 December 2020

APPEARANCES:

For the Applicant:

Adv. A M de Vos SC together with Adv. M Coetzee

Attorney for Plaintiff:

Gilfillan Du Plessis Attorneys, Pretoria

For the 1st to 6th Respondents: Adv. J Modiba together with Mr T Pillay

Attorney for 1st to 6th Respondents: Pillay Thesigan Inc., Pretoria

For the 8th Respondent:

Adv. M Meyer

Attorney for the 8th Respondent: Sanet De Lange Inc., Pretoria