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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case number : 36/2004
In the matter between :
THE UNLAWFUL OCCUPIERS
OF
THE SCHOOL SITE APPELLANT
and
THE CITY OF JOHANNESBURG RESPONDENT
CORAM : SCOTT, STREICHER, BRAND, LEWIS JJA and MAYA AJA
HEARD : 24 FEBRUARY 2005
DELIVERED : 17 MARCH 2005
Summary: Application for eviction of the appellants under s 6 of
Act 19 of 1998 ('PIE') –whether authority to bring application on
behalf
of the respondent had been established – whether s 4(2) of PIE had been
complied with – whether order granted
by the court a quo
impossible to carry
out.
_____________________________________________________
JUDGMENT
BRAND JA/
BRAND JA:
[1] This appeal has its origin in an
application by the respondent municipality ('the municipality') in the
Johannesburg High Court
for the eviction of the appellants under the provisions
of the Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act
19 of 1998 (PIE). In the court a quo the matter came before Mlambo J who
granted the order sought. The appeal against that order is with his leave.
[2] The municipality is the local authority responsible for the greater
Johannesburg area. Situated within that area is the densely
populated township
of Alexandra. In London Road, Alexandra there is a property zoned for schools
and referred to as the school site.
It belongs to the Province of Gauteng. On
the school site there are four schools accommodating about 5 000 pupils. It
is, however,
also the site of an informal settlement consisting of over 700
families. The appellants are part of that community. It is not in
dispute that
they have no permission to be on the site and that their occupation has always
been unlawful.
[3] The informal settlement on the school site started
more than 20 years ago, before any schools had been erected on the site. Later
on, when the schools were built, there was, so it seems, still enough room for
everyone. However, as often happens with settlements
of this kind, it kept
growing as more and more people joined the community and erected their shacks
wherever they found a vacant
spot. Eventually, the shacks sprawled out onto the
playgrounds of the schools to the extent that the children had virtually no
place
for recreation or play. What also happened was that, because the shacks
were built right up to the edge of roads leading to the schools,
children were
compelled to walk in the road itself and were knocked down by passing traffic.
On occasion children were also assaulted
and molested while threading their way
through densely built up areas on their way to school. In the end, both the
municipality and
the Province of Gauteng, as the authority responsible for the
schools and the owner of the property, found the situation intolerable.
[4] At the same time, the office of the President took the initiative in
a project for the general upgrading of the Alexandra township.
For this project,
officially referred to as the Alexandra Renewal Project, R1,3 billion was set
aside and it was publicly launched
by President Mbeki on 9 June 2001.
Implementation of the project required the 'de-densification' of the township as
a whole and the
consequent provision for alternative housing in other areas. To
this end, formal houses built of brick and mortar were set aside
for the school
site community in a developed area called Bramfischerville which is situated in
Roodepoort, some 37 kilometres from
Alexandra. In the interest of the schools,
the Province of Gauteng agreed to relax its standard qualifications for the
allocation
of provincial housing subsidies and to make these subsidies available
essentially to every household on the school site. For all
practical purposes,
the occupiers of the school site were therefore offered the alternative of free
formal housing in Bramfischerville.
[5] To facilitate both the allocation
of houses and the allotment of housing subsidies, the municipality conducted a
registration
process. Part of this process was to provide each shack on the
school site with a number. Heads of households were then requested
to have their
particulars registered by municipal officials with reference to their addresses
thus established. In the end, the heads
of households occupying 703 shacks,
which constituted all but a small number of the shacks on the site, were
registered.
[6] The municipality and the provincial authority decided
that the relocation from the school site to Bramfischerville would take
place in
December 2001. Over the preceding months the authorities actively sought
community agreement to the relocation. To this
end, a number of meetings were
held with local civic organisations where the relocation was discussed. In
addition two public meetings
were arranged during November 2001. These meetings
were advertised through the distribution of pamphlets. One of the pamphlets was
annexed to the municipality's founding papers. Apart from advertising the date
and place of public meetings, the pamphlet gave details
about the relocation
process. It also contained a succinct explanation why the relocation was thought
necessary.
[7] These attempts by the authorities at persuading the
community to relocate on a voluntary basis were largely unsuccessful. As a
result, the municipality found it necessary to apply for an eviction order under
PIE. Cited as respondents in the application were
the 703 heads of households
occupying the school site whose names and shack numbers appeared on the list
compiled during its registration
process. Of those respondents, 590 gave notice
of their intention to oppose. They are the appellants in this matter; they were
at
all times represented by counsel and attorneys, both in this court and in the
court a quo.
[8] PIE provides for essentially two different types of
eviction applications, under s 4 and s 6 respectively. Both sections presuppose
that those to be evicted are 'unlawful occupiers' as defined in s 1. The
difference is that under s 4 the applicant must be 'the
owner or person in
charge' of the occupied land while s 6 contemplates that the applicant is an
organ of state, such as a municipality,
with jurisdiction over the area
encompassing the occupied land. In its application papers, the municipality made
no specific reference
to s 6. At the same time, however, it did not claim to be
the owner or person in charge of the school site. On the contrary, its
relationship with the property was plainly set out in the founding affidavit. On
these facts it was apparent that the application
could only be founded on s 6.
That is how the matter was understood and dealt with by everybody concerned,
both in this court and
in the court a quo.
[9] In the answering
affidavits filed on behalf of the appellants, it was formally admitted that the
appellants were 'unlawful occupiers'
of the school site as defined by s 1 of PIE
and also that the school site fell within the area of jurisdiction of the
municipality.
The first two jurisdictional requirements of s 6 were therefore
common cause. With regard to the merits, the defence raised in the
answering
papers turned largely on the further requirement in s 6(1), namely that an
eviction order may only be granted if it is
considered by the court to be just
and equitable in all the circumstances.
[10] In the court a quo
the appellant's central argument as to why the eviction order sought would
not be just and equitable was that Bramfischerville was
too far from the
Alexandra area where many of them were gainfully employed and where their
children were at school. The municipality
did not deny that the relocation over
a distance of some 37 kilometres would be the cause of inconvenience and, in
many cases, even
hardship to the appellants. Its answer was that this could not
be avoided since it was simply impossible, both financially and practically,
to
find an area for relocation closer to Alexandra. The court a quo devoted
a considerable part of its judgment to the weighing up of all the arguments and
counter arguments on the merits. In the end
it came to the well-reasoned
conclusion that in all the circumstances, it was in fact just and equitable,
within the meaning of s
6 of PIE, to grant the eviction order sought. This
finding on the merits was not challenged on appeal. We therefore had to decide
the matter on the basis that the relocation of the appellants from the school
site to Bramfischerville would be in the public interest
and that in all the
circumstances the eviction order would neither be unjust nor
inequitable.
[11] The three grounds raised in the notice of appeal were
all of a technical or procedural nature, namely that:
(a) The municipality
had failed to prove that the deponent to its founding affidavit, Mr B M
Lefatola, had the requisite authority
to institute the application on its
behalf.
(b) The eviction application did not meet with the procedural
requirements of PIE.
(c) The order granted by the court a quo was not
capable of practical implementation.
[12] As to the issue giving rise to
the first ground of appeal, Lefatola's statement in the founding affidavit was
confined to the
following:
'I am duly authorised by delegated power to bring
this application and to make this affidavit on behalf of the applicant.'
The
response to this statement in the answering affidavit was equally bald. It
read:
'I deny that ... Lefatola is duly authorised to make the founding
affidavit ... or to bring proceedings for eviction on behalf of
the applicant.
The applicant is put to the proof thereof.'
In reply, Lefatola produced a
resolution of the municipal council which authorised him to launch proceedings
of the present kind
on behalf of the municipality 'in consultation with
the Executive Director : Corporate Services or the Director : Legal Services'.
(My emphasis.) With reference to this resolution Lefatola
then stated
that:
'I have consulted with the applicants' Director : Legal Services in
respect of this application.'
[13] Based on these facts the appellants
raised the argument that Lefatola had failed to prove that he had been duly
authorised, because
he did not say whether or not the Director of Legal Services
agreed with him that the application should be brought. Support for
this
argument was sought in those cases where a distinction had been drawn between
'in consultation with' and 'after consultation
with'. According to these
authorities, a decision 'in consultation with' another functionary requires the
concurrence of that functionary
while a decision 'after consultation with'
another functionary requires no more than that the decision must be taken in
good faith,
after consulting and giving serious consideration to the views of
the other functionary (see eg Premier Western Cape v President of the
Republic of South Africa 1999 (3) SA 657 (CC) para 85 note 94 and
President of the Republic of South Africa and others v South African Rugby
Football Union and others 1999 (4) SA 147 (CC) para 63)
[14] At the
hearing of the appeal, counsel for the appellants conceded that she could not
support this ground of appeal. I think the
concession was fairly made. The issue
raised had been decided conclusively in the judgment of Flemming DJP in Eskom
v Soweto City Council 1992 (2) SA 703 (W), which was referred to with
approval by this court in Ganes and another v Telecom Namibia Ltd 2004
(3) SA 615 (SCA) 624I-625A. The import of the judgment in Eskom is that
the remedy of a respondent who wishes to challenge the authority of a person
allegedly acting on behalf of the purported
applicant, is provided for in rule
7(1). The ratio decidendi appears from the following dicta (at
705D-H):
'The care displayed in the past about proof of authority was
rational. It was inspired by the fear that a person may deny that he
was party
to litigation carried on in his name. His signature to the process, or when that
does not eventuate, formal proof of authority
would avoid undue risk to the
opposite party, to the administration of justice and sometimes even to his own
attorney. ...
The developed view, adopted in Court Rule 7(1), is that the
risk is adequately managed on a different level. If the attorney is authorised
to bring the application on behalf of the applicant, the application necessarily
is that of the applicant. There is no need that
any other person, whether he be
a witness or someone who becomes involved especially in the context of
authority, should additionally
be authorised. It is therefore sufficient to know
whether or not the attorney acts with authority.
As to when and how the
attorney's authority should be proved, the Rule-maker made a policy decision.
Perhaps because the risk is
minimal that an attorney will act for a person
without authority to do so, proof is dispensed with except only if the other
party
challenges the authority. See Rule 7(1).'
And (at 706B-D):
'If
then applicant had qualms about whether the 'interlocutory application' is
authorised by respondent, that authority had to be
challenged on the level of
whether [the respondent's attorney] held empowerment. Apart from more informal
requests or enquiries,
applicant's remedy was to use Court Rule 7(1). It was not
to hand up heads of argument, apply textual analysis and make submissions
about
the adequacy of the words used by a deponent about his own
authority.'
[15] These remarks by Flemming DJP must be understood against
the background that rule 7(1) in its present form was only introduced
by way of
an amendment in 1987. Prior to the amendment an attorney was obliged to file a
power of attorney whenever a summons was
issued in an action, but not in motion
proceedings. The underlying reason for the distinction, so it was said, was that
in motion
proceedings there is always an affidavit signed by the applicant
personally or by someone whose authority appears from the papers
(see eg Ex
Parte De Villiers 1974 (2) SA 396 (NC)). On the basis of this reasoning it
is readily understandable why, before 1987, the challenge to authority could
only be directed at the adequacy of the averments in the applicant's papers and
pre-1987 decisions regarding proof of authority should
be read in that
light.
[16] However, as Flemming DJP has said, now that the new rule
7(1)-remedy is available, a party who wishes to raise the issue of authority
should not adopt the procedure followed by the appellants in this matter, ie by
way of argument based on no more than a textual analysis
of the words used by a
deponent in an attempt to prove his or her own authority. This method invariably
resulted in a costly and
wasteful investigation, which normally leads to the
conclusion that the application was indeed authorised. After all, there is
rarely
any motivation for deliberately launching an unauthorised application. In
the present case, for example, the respondent's challenge
resulted in the filing
of pages of resolutions annexed to a supplementary affidavit followed by lengthy
technical arguments on both
sides. All this culminated in the following
question: Is it conceivable that an application of this magnitude could have
been launched
on behalf of the municipality with the knowledge of but against
the advice of its own director of legal services? That question can,
in my view,
only be answered in the negative.
[17] For their second ground of
appeal, based on the contention that the procedural requirements of PIE were not
met, appellants relied
on s 6(6) read with s 4(2) of the Act. Though the
application was brought under s 6, it was expressly rendered subject to the
procedural
requirements of s 4 by the provisions of s 6(6). With reference to
the procedural requirements in s 4, the appellant's objection
primarily focussed
on s 4(2) as interpreted by this court in Cape Killarney Property Investments
(Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA). According to this
interpretation, s 4(2) requires that, apart from the service of the eviction
application
prescribed by the rules of court, an additional notice be served
upon a respondent at least fourteen days before the date upon which
the
application is to be heard. This notice, so it was held in Cape Killarney
Properties (at 1227G-H), must conform with the previously obtained
directions of the court, with reference to both its contents and the manner
in
which it is to be served. Furthermore, s 4(2) stipulates that this notice must
be 'written and effective' while s 4(5) provides
that:
'The notice of
proceedings contemplated in subsection (2) must –
(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupiers;
(b) indicate on what date and at what time the court will hear the
proceedings;
(c) set out the grounds for the proposed eviction;
and
(d) state that the unlawful occupier is entitled to appear before
the court and defend the case and, where necessary, has the right to
apply for
legal aid.'
[18] I revert to the facts pertaining to this issue. On 14
November 2001 the application papers were served by the sheriff on those
respondents who were identified in his return with reference to their names and
the numbers of their shacks. Thereupon an attorney,
acting on behalf of 590 of
the respondents (now the appellants), gave notice of their intention to oppose.
Answering affidavits were
filed on their behalf to which the municipality
responded in its replying affidavits.
[19] After all this, the
municipality, in an obvious attempt to give effect to the judgment of this court
in Cape Killarney Properties, approached the court a quo for its
prior approval of the contents of the proposed s 4(2) notice which it intended
to serve for directions as to the manner
in which this notice was to be served.
On 20 March 2002 the court (Gautschi AJ) granted the following
order:
(1) That the form and contents of the draft notice in terms of
s 4(2) of [PIE] annexed to the founding affidavit as 'X' be authorised
by
this court.
(2) The applicant is authorised and directed to serve the notice
in terms of s 4(2) of [PIE] on the respondents occupying the
shacks on the
school site, London Road, Alexandra by service at each shack as
follows:
2.1 by handing a copy thereof to any person found at that shack
and who is apparently over the age of 16 years; or
2.2 by affixing to the
principal door of such shack; or
2.3 by sliding a copy thereof under the
principal door of such shack.'
Annexure X to the founding affidavit
referred to in para 1 of the order read as follows:
'BE PLEASED TO TAKE
NOTICE THAT proceedings have been instituted in terms of s 4(1) of [PIE], for
the eviction of the above named
Respondents.
TAKE NOTICE FURTHER THAT the
hearing of such application will be heard by the above named Honourable Court,
situated at: Pritchard
Street, Johannesburg on Monday 8 April 2002 at 10h00 or
so soon thereafter as the matter may be heard.
TAKE NOTICE FURTHER THAT the
eviction application is based on the fact that the Respondents are in unlawful
occupation of properties
surrounding four schools situated in London Road,
Alexandra and that the Applicant requests an order of the Honourable Court to
relocate
the Respondents from the School Site property to
Bramfischerville.
TAKE NOTICE FURTHER THAT any Respondent is entitled to
appear before the court in order to defend the case, and if necessary, have
the
right to apply for legal aid.'
[20] According to the return of service
filed by the sheriff, s 4(2) notices were served on 20 March 2002, in a
manner prescribed
by the court order, on 587 respondents who were identified in
the return with reference to their names and shack numbers. The matter
was then
heard by the court on the date referred to in the notice, ie 8 April 2002. The
order eventually granted by Mlambo J specifically
provided that it would only
apply to those respondents who were:
(a) listed in the register prepared by
the municipal officials; and
(b) served with copies of the application;
and
(c) served with copies of the s 4(2) notice.
[21] The
appellants' objection to the contents of the notice and the manner in which it
was served was threefold. First, that, according
to the notice, the application
had been brought under s 4(1) of PIE whereas it was common cause that it was
brought under s 6. Second,
that the notice did not comply with s 4(5)(c) since
only one ground for the application was stated, namely that the occupiers were
in unlawful occupation of the land, whereas it was obvious that the municipality
relied on other grounds as well. Third, that the
notice was only in English and
only conveyed in written form while the overwhelming majority of the community
occupying the school
site spoke one or other indigenous African language and
many of them were functionally illiterate.
[22] As to the first and
second objections pertaining to the contents of the notice, it is clear that the
reference to s 4(1) of PIE
was a mistake. To that extent the notice was
therefore defective. I am also in agreement with the contention that the grounds
for
the application stated in the notice were too sparse to meet with the
requirements of s 4(5)(c). The respondents should at least
have been told that
their eviction was alleged to be in the public interest. As the appellants also
correctly pointed out, it was
held in Cape Killarney Property (1227E-F)
that the requirements of s 4(2) must be regarded as peremptory. Nevertheless, it
is clear from the authorities that even
where the formalities required by
statute are peremptory it is not every deviation from the literal prescription
that is fatal. Even
in that event, the question remains whether, in spite of the
defects, the object of the statutory provision had been achieved (see
eg
Nkisimane and others v Santam Insurance Co Ltd 1978 (2) SA 430 (A)
433H-434B; Weenen Transitional Local Council v Van Dyk 2002 (4) SA 653
(SCA) para 13).
[23] The purpose of s 4(2) is to afford the respondents
in an application under PIE an additional opportunity, apart from the
opportunity
they have already had under the rules of court, to put all the
circumstances they allege to be relevant before the court (see Cape Killarney
Property Investments 1229E-F). The two subsections of s 4(5) that had not
been complied with were (a) and (c). The object of these two subsections is,
in
my view, to inform the respondents of the basis upon which the eviction order is
sought so as to enable them to meet that case.
The question is therefore
whether, despite its defects, the s 4(2) notice had, in all the circumstances,
achieved that purpose. With
reference to the appellants who all opposed the
application and who were at all times represented by counsel and attorneys, the
s 4(2)
notice had obviously attained the legislature's goal. However, there
were also respondents who did not oppose and who might not have
had the benefit
of legal representation. It is with regard to these respondents that the
question arises whether the s 4(2) notice
had, despite its deficiencies achieved
its purpose. In considering this question it must be borne in mind that, as a
result of the
way in which the order of the court a quo was formulated,
it will only affect those respondents who had been served by the sheriff with
both the application papers and the
notice under s 4(2).
[24] The
question whether in a particular case a deficient s 4(2) notice achieved its
purpose, cannot be considered in the abstract.
The answer must depend on what
the respondents already knew. The appellant's contention to the contrary cannot
be sustained. It would
lead to results which are untenable. Take the example of
a s 4(2) notice which failed to comply with s 4(5)(d) in that it did not
inform
the respondents that they were entitled to defend a case or of their right to
legal aid. What would be the position if all
this were clearly spelt out in the
application papers? Or if on the day of the hearing the respondents appeared
with their legal
aid attorney? Could it be suggested that in these circumstances
the s 4(2) should still be regarded as fatally defective? I think
not. In this
case, both the municipality's cause of action and the facts upon which it relied
appeared from the founding papers.
The appellants accepted that this is so. If
not, it would constitute a separate defence. When the respondents received the s
4(2)
notice they therefore already knew what case they had to meet. In these
circumstances it must, in my view, be held that, despite
its stated defects, the
s 4(2) notice served upon the respondents had substantially complied with the
requirements of s 4(5).
[25] This brings me to the appellant's further
objection to the s 4(2) notice which raised the issues of language and literacy.
Support
for this objection was sought in the judgment of the Cape High Court in
Cape Killarney Property Investments (Pty) Ltd v Mahamba 2000 (2) SA 67
(C) where Hlophe DJP held that, in the circumstances of that case, where the
overwhelming majority of the respondents
were Xhosa speaking, a notice in the
English language unaccompanied by a Xhosa translation was not 'effective' within
the meaning
of s 4(2) (see 75C-76G). He also held that, since a substantial
proportion of the respondents were illiterate, the notice should
have been
conveyed, in Xhosa, by a loudhailer throughout the community (see 75C-G). In
this court the appeal was dismissed on other
grounds. It was therefore found
unnecessary to express any view on the correctness of these findings (see
Cape Killarney Properties Investments (Pty) Ltd v Mahamba 2001 (4) SA
1222 (SCA) 1229F-G).
[26] As the factual foundation for the objection
under consideration the appellants relied on a supplementary affidavit deposed
to
by Mr L L Monyela and filed on behalf of the appellants subsequent to the
filing of the municipality's replying affidavits. After
stating that he had been
a member of the school site community for 21 years and that he knew the
community well, Monyela alleged
that 'the overwhelming majority of the members
of the community occupying the school site are people whose primary language is
an
indigenous African language' and that 'very many of them do not speak or
understand English well'. Moreover, he alleged, 'many of
the members of the
community are functionally illiterate and would not be able to read and
understand a document such as [the s 4(2)
notice].
[27] However, in a
replying affidavit filed on behalf of the municipality it was said
that:
'Past experience has taught us that the news of an application such as
the present one spreads like wildfire in a high density informal
settlement such
as the one to which this application relates. I can confidently state that the
fact that this application is pending,
is well known amongst all the residents
in question.'
Neither Monyela nor anyone else responded to these statements
which therefore stand uncontradicted.
[28] It is obviously desirable
that, where practicable, the s 4(2) notice should be in a language and through a
medium of communication
which is most likely to be understood by its intended
audience. In the view that I hold on this issue, it is not necessary for me
to
decide whether, in the circumstances of this case, it would be practicable to
translate the notice into the unknown number of
languages allegedly spoken by
the members of the school site community. The question whether a s 4(2) notice
was effective is not
a question of law. It is a question of fact. More often
than not it would only be capable of determination after the event. It follows
that the question whether a notice in one language is sufficient or whether it
should be translated into a number of languages is
likewise a question of fact
to which there can be no answer of general validity. It can only be answered,
often with the benefit
of hindsight, with reference to the facts of that
particular case.
[29] According to the uncontradicted evidence presented
by the municipality in this case, the pending application was well known amongst
all the occupiers of the school site. In the light of that evidence, Monyela's
affidavit raised more questions than answers. Why
did he not dispute or even
qualify the positive statement on behalf of the municipality that the
respondents were aware of the pending
application? Why did he resort to
generalities and to a statement in guarded terms that many of the members of the
community did
not understand English well? Why is there no
reference to a single respondent who indicated that he or she was unable to
understand the notice?
[30] We know that the application had been
preceded by a widely publicised campaign in which the prospect of relocation was
the central
issue. With the benefit of hindsight, we also know that the
application was opposed by a substantial number of the respondents and
that this
opposition was coordinated to a large extent by the local area committee of the
National Civics Organisation of which Monyela
was the chairperson. In this
light, the overwhelming probabilities seem to indicate that all the occupants of
the school site would
have been approached to join the local area committee in
its opposition. In the circumstances I agree with the court a quo's
finding that the s 4(2) notice was effective.
[31] This brings me to the
third ground of appeal based on the contention that the order issued by the
court a quo would be impossible to carry out. There is no merit in this
contention. Though the implementation of the court order may be difficult,
I
cannot see why it would be impossible.
[32] It follows that the appeal
cannot succeed. The municipality did not ask for its costs of appeal. There will
accordingly be no
order as to costs.
[33] The appeal is dismissed.
...................
F D J BRAND
JUDGE OF APPEAL
Concur:
Scott JA
Streicher JA
Lewis JA
Maya AJA
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