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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

 

Reportable:    NO

Circulate to Judges:  YES

Circulate to Magistrates:    NO

Circulate to Regional Magistrates:    NO

HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

CASE NO: 1872/15

In the matter between:

SOL PLAATJIE MUNICIPALITY                                                                       APPLICANT

and

CHARLES TSHEPO RAMOSIE                                                                    RESPONDENT

Coram: Lever AJ

JUDGMENT

L Lever AJ

1.   This is an application under the provisions of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act[1] (PIE) to evict Mr Ramosie, the respondent, a fire fighter employed by the applicant, from flat number 7, section: Emergency Services, situated at [...] L. R. K. (the premises).

2.   The delivery of the judgment in this matter has been delayed. The main reasons for the delay inter alia include: The respondent filed his heads of argument on the 4 November 2016 but this first set of heads made reference to things witnesses were alleged to have testified about without any indication where this could be found on the record, an undertaking was given to file a proper set of Heads; and the respondent was convicted of statutory rape and the court that convicted him ordered that his name be entered on the Register of Sexual Offenders and attempts were made to verify this.

3.   Dealing with these causes of delay, firstly, the Matter was heard on the 9 November 2016 and I allowed the matter to proceed on that date on the strength of an undertaking from Mr Venter that heads with proper references to the relevant tracts on the record would be filed by Monday 14 November 2016. These heads were only filed on the 24 November 2016 and took a further few days to reach my chambers.

4.   The second reason for the delay, being that enquiries were made to establish whether the respondent’s name was indeed on the Register of Sexual Offenders. The Registrar of this Court has been in correspondence with the Administrator of the Register of Sexual Offenders. As at the date of this judgment I am informed that no clear answer has been received for the Administrator of the Register of Sexual Offenders. I decided not to delay this judgment any further. My reasons for making the decision are: It was never disputed by the respondent that the trial court that convicted him ordered his name to be placed on the Register of Sexual Offenders; If his name does not appear on the said Register, this is nothing more than an administrative error; and this was not the only reason for the court reaching the conclusion set out below. 

5.   Turning back to the present application. A similar application was brought by the applicant against the same respondent for essentially the same relief under case number 1899/14. This application was dismissed on technical grounds, hence the present application which ostensibly sought to correct the defects in the preceding application. At least one preliminary legal point raised by the respondent flows from the dismissal of this earlier application. I will return to these preliminary legal points presently.

6.   Mr Ramosie, the respondent, is employed by the applicant as a fire fighter who works shifts. Subject to certain internal procedures, which are also in dispute, he would ordinarily qualify for housing at the fire station, such as the premises he presently occupies. However, one of the issues in dispute is whether the said premises were properly allocated to him or whether the respondent improperly took possession of the said premises.

7.   A further aspect of the respondent’s background that is relevant to the applicant’s case is that on the 26 June 2012, the respondent was found guilty of statutory rape and was sentenced to three years imprisonment which was wholly suspended for five years. As a result of this conviction, the relevant trial court ordered that respondent’s name be entered into the Register of Sexual Offenders.

8.   The basis upon which applicant’s submission that the entry of respondent’s name into the Register of Sexual Offenders is relevant to the present application, is that other fire fighters with children reside on the same premises. The premises concerned is adjacent to the fire-station. In the context of the fire department, the said premises are an extension of the respondent’s and other fire fighters’ work environment. As when they work shifts and are on duty, they are required to stay either in the singles quarters or in their flats adjacent to the fire station. That by law the applicant could not allow the respondent access to children in the work environment. That if the applicant allowed the respondent to remain on the premises, in the circumstances it would allow the respondent access to such children in the extended work environment.  

9.   I pointed out to Mr Gilliland, who appeared for the applicant, that the mere eviction of the respondent from flat number 7 would not solve this problem. The evidence established that the applicant as a fire fighter employed on shifts would have to be accommodated at the fire station while he was on duty. That if he did not ordinarily reside on the relevant premises adjacent to the fire station, whilst on duty he would be accommodated in the singles quarters on the same premises. Which would still allow the respondent access to children in his extended work environment.

10.        In response to my concerns, Mr Gilliland made what was described as a tender, which was reduced to writing and handed up as exhibit “X21”. Whether or not this is properly described as a tender is not an issue that needs to detain the court further. It may more properly be described as an “undertaking”. In any event the terms of the tender or undertaking read as follows: “1.      Respondent will be redeployed to either Ritchie or Galashewe. 2.   Respondent will be accommodated in single quarters at Ritchie or Galashewe while he is working shifts.” Mr Gilliland informed me that there were no families resident at Ritchie or Galashewe and thus the respondent would not have access to children in his work environment. It may be necessary to return to this undertaking later in this judgment.

11.        When the application was originally heard, it became necessary to refer two questions to oral evidence. The two questions that were referred to oral evidence are:

11.1.          “Whether the flat committee had the authority and authorised Respondent to take occupation of flat […] situated at Section: Emergency Services of the Sol Plaatjie Municipality situate at [...] L. R., Kimberley”; and

11.2.          “Whether the letter dated 22 July 2014 as appears at page 32 of the indexed court papers was served on the Respondent.”

12. The court must first decide certain issues in the nature of special pleas or preliminary matters raised on the papers, being:

12.1.          The special plea of res judicata;

12.2.          The plea that the person who brought the present application on behalf of the applicant has not established his authority to bring the present application; and

12.3.          The plea of irregular service of the notice in terms of PIE. However, this plea was abandoned by respondent when heads of argument were filed on his behalf. Accordingly, the issue relating to the service of the PIE notice need not enjoy any further attention.

13. Then, in the event that the special pleas are unsuccessful, this court must decide the two issues that were referred to oral evidence. The relevant issues have already been quoted above.

14. Finally, and again in the event the special pleas are unsuccessful this court must decide, in the particular circumstances of this case, and depending on the findings referred to oral evidence, whether the respondent should be evicted from the premises. Further, if the court finds that respondent ought to be evicted from the premises, when such eviction should take place and whether or not any further special provisions are required in the Order this Court issues.

15. Turning now to the first of the two remaining preliminary matters, being the special plea of res judicata. The basis of this plea is the judgment of my sister Mamosebo AJ (as she then was) in case number 1899/2014. This was an application where the parties were: the present applicant, who was also the applicant in that matter; the present respondent who was the first respondent in that matter; and a witness in the present application, Irene Nombuyiselo May (Bungxu) who was the second respondent in that matter. Although the second respondent in case number 1899/2014 was not a party to the present application, the parties to that application and the parties to the present application are substantially the same.

16. In case number 1899/2014 the applicant sought inter alia the eviction of the respondent. Which is essentially the relief sought against the respondent in the present matter.

17. In her judgment delivered on the 2 December 2014 Mamasebo AJ discharged the rule nisi and dismissed the eviction application with costs on the basis that the deponent to the applicant’s affidavits and the Municipal Manager had not established their authority to bring such application on behalf of the applicant. In her judgment Mamasebo AJ specifically and expressly said that she did not deal with the merits of the said application.

18. Mr Venter, who appeared on behalf of the respondent, relying on a passage from Herbstein & Van Winsen[2] submitted that the defence of res judicata can be successfully raised where a judgment in an earlier case was given in a dispute between the same parties, for the same relief on the same ground or on the same cause of action.

19. Mr Venter then goes on to submit that respondent has established that the present application is between the same parties. That it involves the same relief and that such relief is sought on the same basis ie on the same cause of action. He then submits that the application should be dismissed with costs on an attorney and own client scale.

20. What Mr Venter fails to appreciate is, that it is implicit in the passage in Herbstein & Van Winsen that he cites in relation to the requirements for a plea of res judicata that in determining if the relief is based on the same cause of action, that the merits of such cause of action must have been finally determined by the court upon whose judgment his client seeks to rely, in raising the plea of res judicata. In fact, our courts have historically and consistently held that for a plea of res judicata to be upheld the original judgment must finally determine the merits of the cause of action between the parties.[3]

21. In her judgment in case number 1899/2014 Mamosebo AJ specifically and directly stated that she had not considered nor dealt with the merits of the matter. It is clear that in case number 1899/14 the matter was decided entirely on the issue of authority.  Accordingly, the respondent has not established that the matter is res judicata and this special plea is dismissed with costs.

22. Turning now to the question of authority to bring the present application. The respondent challenges the authority of the officers who acted on behalf of the applicant in launching the present application. The respondent maintains that the applicant has not established their authority to launch the present application.

23. The deponent to the founding affidavit is the applicant’s Municipal Manager. The fact that he is indeed the Municipal Manager is not in dispute. In order to consider the question whether this application was properly authorised, it is necessary to quote the relevant passages of the founding affidavit, which read:

“2.    My authorisation to depose this affidavit on behalf of the Applicant is based on the following:

2.1    The Municipal Council of the Applicant delegated the authority to institute legal proceedings on behalf of the applicant to me in my stated capacity as Municipal Manager;

2.2    In terms of the existing delegating authority of the Applicant the aforesaid authority was delegated by me in my capacity as Municipal Manager to the Executive Director: Corporate Services of the Applicant. A copy of the relevant pages of the existing delegation register of the applicant confirming this delegation is attached as annexure “GHA1” hereto; and

2.3    The current Executive Director: Corporate Services, namely Kootsi Ruth Sebolecwe, decided to institute these proceedings on the Applicant’s behalf as is evident from her confirmatory affidavit which is attached as annexure “GHA2” hereto and she requested me to depose this affidavit in the light of her decision she took in this regard.”

24. It is evident from the delegation annexed to the founding papers, read with the confirmatory affidavits filed that the relevant formalities required by the said delegation had been complied with.

25. It is evident from the passages in the founding affidavit quoted above, that the Municipal Manager states the source of his authority and the authority to launch the present application expressly.

26. The respondent in his answering affidavit states the Council resolution adopting the said delegation of powers was not annexed to the founding papers. The applicant then filed the relevant Council resolution to its replying affidavit.

27. Mr Venter who appeared on behalf of the applicant submitted that it is trite law that an applicant must make his case in his founding affidavit and that the applicant had not done so because the relevant resolution was only annexed to applicant’s replying affidavit. Mr Venter then submitted that the applicant had failed to prove the necessary authority to institute these proceedings, that the application for eviction should be dismissed with costs on an attorney and own client scale.

28. Whilst it is true that the best evidence of the authority to launch the present application would have been the Municipal Manager’s affidavit together with the relevant resolution. This is not required in every case.[4]   As Watermeyer J (as he then was) said: “Each case must be considered on its own merits and the Court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorised person on its behalf.”[5]

29. The present application is clearly distinguishable on the facts from the case of Kouga Municipality v South African Local Government Bargaining Council and Others[6] where no resolution was placed before the court. In the present application, the Municipal Manager has made specific averments about his authority. When challenged by the respondent to do so the relevant resolution was placed before the court albeit in reply. In my view, there are sufficient factual allegations to establish that indeed it is the applicant litigating. The relevant document setting out the delegations is sufficient and compelling evidence to establish that the applicant is indeed litigating and not some unauthorised person.

30. The production of the relevant resolution in reply is not unlike the procedure now dictated under Rule 7 of the Uniform Rules of Court. The respondent challenged the authority to act on the basis that a resolution of Council was not produced. In reply the respondent produced the required resolution which placed the matter beyond doubt.

31. Accordingly, this second preliminary point also stands to be dismissed with costs.

32. Turning now to the issues referred to oral evidence. The first question being whether or not the flat committee had the necessary authority to allocate a flat and indeed allocated flat number 7 to the respondent, Mr Ramosie.

33. On this question, the applicant called the following witnesses: Mr Andrews the present chairperson of the flat committee, who had also been a member of the previous flat committee; Mr Griesel, the logistics officer of the applicant’s fire department; Mr Pretorius the fire-chief and Mr Mornè Simons a fire fighter employed by the applicant, whose application for a flat was acknowledged by all parties to be a special case.

34. The respondent himself acknowledged that he had no knowledge of the powers of the committee. In order to support his version that the flat committee had the requisite authority to allocate a flat without having to refer the matter to management for a final approval, the respondent called the following witnesses: Mr Solomon the Deputy Chairperson of the present flat committee and Ms May, the Secretary of the present flat committee.

35. The evidence adduced on behalf of the applicant and the evidence adduced on behalf of the respondent is mutually exclusive and their respective versions are irreconcilable.

36. The law on how to approach the evidence in such situations has been set out in a number of cases, the essential features thereof, I will try to summarise hereunder.

37. The Supreme Court of Appeal (SCA) in the matter of SANTAM BPK v BIDDULPH[7] stated:

“However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story he tells are true.”[8]

38. Then dealing with the questions of ‘reliability’ and ‘credibility’ of a witness, the SCA in the matter of COMMISSIONER, SARS v CAPSTONE 556 (PTY) LTD[9], in analysing those questions, concluded:

“… The credibility and reliability of the evidence of the witness (for the taxpayer) must be determined in the light of the objective facts and inferences drawn therefrom, the probabilities and any evidence put up in contradiction thereto.”[10]

39. In the case of STELLENBOSCH FARMER’S WINERY GROUP LTD & ANOTHER v MARTELL ET CIE & OTHERS[11] the SCA also analysed the question of how to resolve factual disputes in evidence adduced before a court. The said analysis is set out in the following passage of the SCA’s judgment in the matter:

“… The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witnesses’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with the established facts or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared with other witnesses testifying about the same incident or events. As to (b), a witnesses’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience the or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”[12]    

40. The Appellate Division (AD), as it then was, in the matter of PEZZUTTO v DREYER & OTHERS[13] stated that where the evidence of a witness is left uncontradicted, plausible and unchallenged in any major respect, there is no justification for submitting the evidence to unduly critical analysis.

41. Mr Gilliland, who appeared for the applicant, referred the court to an instructive and comprehensive lecture given by Nicholas JA at the Oliver Schreiner Memorial Lecture delivered at the University of the Witwatersrand on the 28 August 1984 on the “Credibility of Witnesses”[14]. In the paragraphs that follow, I will be referring to a number of aspects dealt with by Nicholas JA in the said lecture.

42. On the subject of the veracity of a witness, Nicholas JA stated:

“A witness is proved to be in error where his statements are contradicted by the proved facts or where he is guilty of self-contradiction. … Yet error does not in itself establish a lie. It merely shows that in common with the rest of mankind, the witness is liable to make mistakes. A lie requires proof of conscious falsehood, proof that the witness had deliberately misstated something contrary to his own knowledge or belief”.[15]

43. In dealing with the situation where a witness has been found to have lied on a particular aspect of his evidence, Nicholas JA stated:

“There is, therefore, no rule that where a witness has lied his testimony must be rejected without more ado – all that can be said is that a witness whose evidence has been shown to be deliberately false on one point is liable to be regarded with suspicion and distrust, and the trier of fact may (not must) conclude that his evidence on another point cannot safely be accepted.

The question is not whether a witness is wholly truthful in all that he says, but whether the court can be satisfied, beyond a reasonable doubt in a criminal case, or on a balance of probabilities in a civil matter, that the story which the witness tells is a true one in its essential features.”[16] (references omitted)

44. In dealing with the issue of contradictions between witnesses Nicholas JA quotes with approval a passage from the work of Professor Starkie[17]:

“The consistency of testimony is also a strong and most important test for judging the credibility of witnesses. Where several witnesses bear testimony to the same transaction, and concur in their statement of a series of particular circumstances, and the order in which they occurred, such coincidences exclude all apprehension of mere chance and accident, and can be accounted for only by one or other of two suppositions; either the testimony is true, or the coincidences are the result of concert and conspiracy. If, therefore, the independency of the witnesses be proved, and the supposition of the previous conspiracy be disproved or rendered highly improbable, to the same extent will the truth of their testimony be established.

So far does this principle extend, that in many cases … the credit of the witnesses themselves for honesty and veracity may become wholly immaterial. Where it is once established that the witnesses to a transaction are not acting in concert, then, although individually they should be unworthy of credit, yet if the coincidences in their testimony be too numerous to be attributed to mere accident, they cannot possibly be explained on any other supposition than that of the truth of their statement.”[18]    

45. In dealing with this passage from the work of Professor Starkie, quoted above, Nicholas JA concludes:

“It follows that an argument based only on a list of contradictions between witnesses leads nowhere so far as veracity is concerned. The argument must go further, and show that one of the witnesses is lying. It may be that the court is unable to say where the truth lies as between contradictory statements, and that may affect the question whether the onus of proof has been discharged: but that has nothing to do with the veracity of the witnesses.”[19]

46. In dealing with the question of the demeanour of a witness, Nicholas JA stated:

“The deportment of witnesses in the box and the impression they make upon a trial court is often of great importance. ‘But a finding of credibility based baldly on demeanour alone is not satisfactory.’ For demeanour can often be misleading.”[20] (references omitted)

47. On the subject of crosscurrents, Nicholas JA said:

“A witness is liable to be deflected from the course of truth by crosscurrents operating in his mind. … These crosscurrents include partiality, prejudice, self-interest and corruption. Their range is great, from the gross to the subtle and their forms are protean. They may be so powerful as to lead to outright lying. They may be such as to lead to dilution or colouring of the evidence, to the suppression of inconvenient facts, or to additions.”[21]

and

“Although crosscurrents may influence the evidence of a witness, they do not necessarily do so, nor do they raise any substantial probability of falsehood. The existence of one or more of these factors is a ground for caution in the assessment of the evidence of a witness, but it is no more than that, and certainly it is not in itself a ground for preferring the evidence of another witness who has no interest.”[22]

48. In discussing the question of the reliability of a witness, Nicholas JA said the following:

“Here one is concerned, not with defects in moral character, but with the human tendency to honest mistake.”[23]

49. Further, on the subject of witness reliability Nicholas JA sets out certain experiments conducted by experimental psychologists on the ability of a number of persons to observe and recall the details of an incident that all observed in the same manner and at the same time.[24] Remarking on the results of such experiments, Nicholas JA concluded:

“In the light of the experimental evidence, it is not surprising that the eyewitness accounts are often not an accurate representation of reality, and that there are often profound differences in eyewitness accounts of the same event, even when it is observed by witnesses under the same external conditions.

This shows the futility of the exercise, frequently performed by cross-examiners, of raking at tedious length over the evidence of different eyewitnesses in order to uncover contradictions, variances, omissions, discrepancies, differences and inconsistencies. For the most part it shows no more than what is to be expected, namely that eyewitnesses differ from one another in their accounts and are liable to error.”[25]

50. Then Nicholas JA again goes on to quote Professor Starkie with approval, and sets out the following quote from his work:

“… partial variances in the testimony of different witnesses, on minute and collateral points, although they frequently afford the adverse advocate a topic for copious observation, are of little importance, unless they be of too prominent and striking a nature to be ascribed to mere inadvertence, inattention or defect of memory.”[26]

51. Finally, Nicholas JA discussed how the issue of ‘probability’ came into the assessment of oral evidence and pithily set out the relationship between such evidence and the issue of probability as follows:

“This is a matter which concerns, not the credibility of the witness as such, but the credit to be given to his story by reason of its inherent probability or improbability. Where an assertion is regarded as improbable, belief is slow and difficult.”[27] 

52. Mr Gilliland also correctly pointed out that the cross-examination of the applicant’s witnesses conducted on behalf of the respondent contained badly phrased questions which were difficult to understand or so ambiguous that they were likely to be misunderstood and/or long statements which contained a number of propositions which required of applicant’s witnesses an unqualified response. Further, applicant’s witnesses were also accused of not having answered questions which had in fact been answered. Mr Gilliland submitted that where this was the case, it should not impact negatively on the credibility of the applicant’s witnesses.

53. In support of this contention Mr Gilliland referred the court to a passage in the judgment of Marais J in the matter of S v Tswai,[28] where the following passage inter alia appears:

“In similar vein it may not be inappropriate to emphasise that belligerent assertions to the contrary by a cross-examiner are no substitute for pertinent, properly focused and accurate cross-examination. …”[29]

54. Mr Gilliland also submitted that having regard to the manner in which the respondent’s ‘defence’ unfolded and where the respondent was represented by Counsel a failure to cross-examine on an aspect of the applicant’s case means that the respondent has accepted such evidence. In support of this submission, Mr Gilliland referred to the following passage in the case of S v MNGOMEZULU[30]:

“No cross-examination on a point may mean that the evidence concerning such which the prosecutor has led is accepted by the defence, that the facts to which the witnesses for the state have testified in that regard are admitted, and in an appropriate case it will be so construed. Or it may warrant the inference, when the accused in turn takes the stand and says something different on the point, that this part of his evidence was a concoction brewed late in the day.”[31]

55. In applying these principles to the facts of the present case, it is necessary to start from the point where the evidence adduced on behalf of the respective parties diverged on the first question referred to oral evidence.

56. For the applicant, Mr Griesel (the logistics officer), Mr Andrews (the chairperson of the current flat committee) and Mr Pretorius (the fire-chief), all testified that the flat committee did not have the final say on assigning a flat to an applicant, but merely made a recommendation to management and the fire-chief made the final decision to assign a flat to the relevant applicant.

57. Mr Venter submitted, on behalf of the respondent, that this was the only material aspect of their evidence upon which all three of the applicant’s witnesses on this first question referred to oral evidence concurred. In making this submission, Mr Venter was clearly implying that that these three witnesses were colluding and had concocted this vital piece of evidence.

58. In all of the circumstances of this case, I find Mr Venter’s submission less then compelling. In my view, if these witnesses had conspired to concoct this evidence they would have ensured that they coordinated their story with greater care. In the circumstances, I find it is highly improbable that they conspired to concoct this one piece of evidence. Further, I consider the aspects referred to by Mr Venter as the differences in their respective evidence on this question referred to oral evidence to be peripheral. There are other aspects of the oral evidence adduced by the respective parties that have a far greater bearing on where the probabilities lie. These will be dealt with hereunder.

59. Mr Solomon and Ms May testified on behalf of the respondent that the flat committee made the final decision and assigned the flat to the relevant applicant. Mr Solomon’s evidence was that the new flat committee had the same authority to allocate or assign a flat as the old flat committee had. His position was that although he did not know where the flat committee acquired the authority to assign or allocate flats without referring to management for final approval, that both the old and the new flat committees had enjoyed the authority to assign flats without any reference to management.

60. The evidence of Mr Solomon on this point was materially different from the evidence of Ms May on this aspect. In fact, it cannot be reconciled with the evidence of Ms May. Ms May’s testimony on this aspect was that the fire-chief, Mr Pretorius, after the election of the new flat committee, told the new flat committee that he no longer wanted to be bothered by anything to do with the flats. She testified that she took this statement allegedly made by Mr Pretorius as granting the flat committee the authority to make the final decision on the allocation of flats without having to refer to management for final approval. This material contradiction casts serious doubt upon the credibility of both Mr Solomon and Ms May.

61. This version attested to by Ms May was put to Mr Pretorius in general terms, when he was cross-examined by Mr Venter, without reference to who would provide such evidence and without referring to the time place and context in which Mr Pretorius was alleged to have made the statement that he no longer wished to have anything to do with the flats. Mr Pretorius categorically denied having made such statement.

62. The evidence of Ms May is the high watermark of the respondent’s evidence on the question of the authority of the new flat committee. The question of the authority of the old flat committee will be dealt with presently.

63. Ms May, the secretary of the new flat committee, in her evidence relied on 3 examples where the said flat committee exercised its authority as she alleged it possessed, to prove that the flat committee had the power to allocate flats without reference to management. These 3 examples include: the occupation of flat 12 by Mr Solomon; the assignment of flat number 16 to Mr Simons; and the allocation of flat 7 to the respondent.

64. Ms May’s reliance on these examples to prove that the flat committee had the authority to allocate flats is clearly misplaced. Firstly, Mr Solomon did not in the true sense of the word, apply to the flat committee to be allocated flat 12. He was already a resident of the flats at that time. He was also a member of the relevant flat committee at that time. He approached respondent who had allegedly expressed an interest in applying to be allocated flat 12 and made a private arrangement with him, that if respondent stood aside and allowed Solomon to obtain flat 12 without competition, that the flat committee would then allocate the next available two-bedroomed flat to the respondent.

65. Neither Mr Solomon nor Ms May produced a letter in the same form as the permission letter furnished to the respondent indicating that the flat committee had allocated the flat to Mr Solomon. Ms May did not even produce an application letter from Mr Solomon or a minute of the flat committee to substantiate this, even though she was the secretary of the flat committee and would be expected to keep the relevant documents and records.

66. Mr Solomon’s manoeuvre to obtain occupation of flat 12 has all the hallmarks of an abuse of his position on the flat committee to obtain an advantage he was not entitled to. In fact, Mr Solomon said himself that if the policies and procedures of the flat committee and fire-department were followed, he would not have been allocated flat 12. In all of these circumstances, this cannot be used as an example of the flat committee legitimately exercising an alleged power to allocate flats without recourse to management.

67. The example of Mr Simons can also not be used as an example of the flat committee exercising its alleged power to allocate a flat without recourse to management. All parties agreed that Mr Simons’ case was an exception to the rule.

68. Much was made of the wording of a letter written by the flat committee in support of Mr Simon’s case. However, if this letter is read in its proper context the said letter was clearly written in support of the fire-chief’s motivation to a higher authority to make an exception and not apply the applicant’s housing policy, in order to come to the aid of Mr Simons. In fact, the decision to make an exception to the rule and not apply the applicant’s housing policy in Mr Simons case, was made at a management level above the fire-chief in the applicant’s hierarchy. In these circumstances, this is also not a legitimate example of the flat committee exercising a power to allocate a flat without recourse to management.

69. The final example raised by Ms May is that of the respondent himself. Where this is the central issue, or at worst one of the central issues in the present dispute, it is simply untenable to raise it as an example of the alleged power of the flat committee to allocate a flat without recourse to management.

70. Mr Pretorius, in his capacity as fire-chief signed certain documents referred to him by Mr Griesel to indicate management’s assent to the final allocation of the respective flats. Mr Venter criticised minor differences in how Mr Pretorius’ assent was indicated on the respective documents. In the context where all agreed that flats did not become available for allocation very often, these slight variations in the manner in which assent was indicated are both understandable and acceptable.

71. Furthermore, one cannot lose sight of the fact that the documents made available to the court were those of the logistics officer, Mr Griesel, who kept these records for the benefit of the logistics office. The fact that these records were never intended to be the formal record of the flat committee’s operations, would be a further satisfactory explanation for the lack of uniformity and formality in management indicating its consent on such documents. These records were only intended to fulfil Mr Griesel’s needs in the logistics office of the fire department.  

72. Furthermore, there is the issue of how the respondent obtained possession of flat number 7. Certain aspects of how respondent came to obtain possession of flat number 7 and how respondent handled the evidence adduced on this question, have a direct and meaningful effect on the probabilities as to where the final authority to allocate a flat resided.

73. Mr Griesel’s testimony was that once a flat had been vacated and the necessary inspections were completed he locked the flat and retained the keys until the relevant flat had been properly allocated to the next occupant. Mr Griesel testified that flat number 7 was locked and he kept the keys and that in fact he is still in possession of the keys to flat number 7 despite the respondent taking occupation of flat number 7. None of this evidence was challenged when Mr Venter cross-examined Mr Griesel.

74. Furthermore, it was never put to Mr Griesel under cross-examination that the respondent had requested the keys to flat number 7 from Mr Griesel and that Mr Griesel had refused to hand the said keys to the respondent. The fact that this was never put to Mr Griesel means that this court can only conclude that respondent never asked Mr Griesel for the relevant keys. The importance of this evidence is that if the flat committee had the final authority to allocate a flat, Mr Griesel would have no grounds to refuse to hand over the keys to the respondent and he would certainly have been confronted with this refusal.

75. Mr Andrews gave evidence that the respondent was informed by the fire-chief, Mr Pretorius, that respondent’s first application was forwarded to the Director Mr Setlogelo for his decision, given the fact that the court that convicted respondent ordered that respondents name be included in the register of sexual offenders. Furthermore, that Mr Solomon and Ms May were aware of this state of affairs. Neither of these contentions was challenged when Mr Andrews was cross-examined by Mr Venter. If the flat committee had the authority to allocate a flat without recourse to management, surely this evidence would have been challenged.

76. Similarly, Mr Pretorius gave evidence that Ms May and Mr Solomon approached him to enquire about respondent’s first application for a flat. Mr Pretorius testified that he informed them that the matter had been referred to the Director Mr Setlogelo for his decision on the matter. Again, neither of these contentions was challenged when Mr Pretorius was cross-examined by Mr Venter. The importance of this evidence is that Mr Solomon and Ms May would not have approached Mr Pretorius in this way if the flat committee indeed had the final authority to assign or allocate a flat.

77. The contention put to Mr Pretorius by Mr Venter that letters of approval similar to that given to the respondent, annexure “CTR3”, were issued by the new flat committee was not supported in the evidence of either Mr Solomon or Ms May. Further, no such letters were discovered by the respondent or produced in court. The fact that such contention was made and not substantiated by the relevant witnesses has a bearing both on the probabilities and the general credibility that can be assigned to the respondent’s version.  

78. Mr Venter argued that fire-chief made everything complicated. He could simply have vetoed the flat committee if he had that power. Mr Venter asked, why did he have to call a meeting of residents and refer the matter to Mr Setlogelo if he could simply exercise his veto. To this Mr Pretorius answered with the benefit of hindsight he might agree, but he did not think of it at the material time.

79. Having regard to the evidence of how Mr Pretorius conducted himself, it was clear that he was dealing with a new and unprecedented situation. He called the meeting of the 18 February 2014 to hear the concerns of residents. Due to the unprecedented nature of dealing with an applicant for a flat who was under a court order to be registered in the relevant register as a sex offender Mr Pretorius’ actions in calling a residents meeting, to hear the residents’ concerns is not unreasonable even though with the benefit of hindsight it may have been unnecessary.

80. The evidence establishes that Mr Pretorius and subsequently the applicant sought the guidance of local State Prosecutors who helped establish for the applicant that there were grounds for concern. Ultimately the applicant commissioned a formal legal opinion which we are informed highlighted the potential liability of the applicant in these circumstances. In my view, all of these steps show a concern for the residents that is not misplaced and is both prudent and justifiable in the circumstances. In my view Mr Venter’s criticism of Mr Pretorius on this aspect does not establish the authority of the current flat committee to allocate a flat without recourse to management.

81. Having regard to the issues relating to the credibility of the respondent’s witnesses highlighted above, including the fact that both Ms May’s and Mr Solomon’s credibility is seriously called into question by the material contradiction on the source of the flat committee’s authority to make a final decision. Contrasting that with the general credibility of the applicant’s witnesses. The fact that the applicant’s version did not suffer from the same inherent improbabilities as that of the respondent. I am satisfied that on a balance of probabilities the applicant’s version and contentions on the authority of the flat committee are true.

82. On the facts of the present case the issues relating to the opportunities the respective witnesses had to observe events does not really come to the fore. In the circumstances, this court is not required to deal with this aspect of assessing conflicts in oral evidence.

83. On the question of the probabilities on the first part of the first question, being whether the flat committee had the authority to allocate flat 7 to the respondent without referring the matter to management, for the reasons set out above, the probabilities are overwhelmingly in favour of the applicant’s version that the flat committee did not have the authority to make a final allocation.

84. Having regard to the finding made on the first part of the first question referred to oral evidence, the second part of that question being whether in fact the flat committee did in fact authorise the respondent to occupy flat number 7 is moot. This must be so because if the flat committee had no such authority it could not, on any basis, authorise respondent to occupy flat number 7.

85. Turning now to the second question referred to oral evidence, being whether or not Mr Setlogelo’s letter of the 22 July 2014 was served on the respondent.

86. As set out above this second question referred to oral evidence involves a letter dated 22 July 2014 from the Acting Executive Director: Community and Social Development Services of the applicant. The incumbent of that office at the material time was Mr S Setlogelo (Director Setlogelo).

87. The letter concerned appears at pages 32 and 33 of the record of the original application. An additional copy of this letter was presented to this court during the course of the oral evidence. This additional copy of such letter is to be found at pages “X1” and “X2” of bundle X. The relevance of this additional copy will be set out in due course.

88. In the chronology of the relevant events: there is the respondent’s first letter of application applying to be allocated flat number 7, which is dated 15 October 2013; then the meeting of residents that took place on the 18 February 2014; shortly after the residents’ meeting Mr Andrews wrote a letter to the fire-chief, which is dated 3 March 2014, requesting management to find a solution to the resident’s concerns regarding the accommodation of the respondent in the relevant flats; then followed the respondent’s second letter of application to the flat committee, which is dated the 5 March 2014, wherein respondent claims he is being victimised as a result of his conviction; then as a result of Mr Andrew’s letter to him the fire-chief wrote a letter to Director Setlogelo, which is dated 12 March 2014 in which the fire-chief recommended that the applicant should not approve the allocation of a flat to the respondent and sought a ruling from Director Setlogelo; this is followed by the purported letter of approval from the flat committee, dated 20 May 2014; then came the letter under discussion in the second question referred to oral evidence, which is dated the 22 July 2014; then there is a lull in events until certain interviews for a training officer took place in or around October 2014 where accommodation in flat number 7 was offered as an incentive to attract a training officer to Kimberley; and thereafter the respondent opened an account for electricity, paid the relevant deposit and took occupation of flat number 7 on the 28 October 2014.

89. In the context of the overall application to evict the respondent from flat number 7 this letter from Director Setlogelo is significant and of great importance. This letter informs the respondent that his application for a flat was not successful and that applicant’s reasons for refusing him accommodation, included inter alia that the court that had convicted him had ordered that his name be included in the register of sexual offenders. Further, that the provisions of the Criminal Law Sexual offences and Related Matters Amendment Act[32] (SORM) placed certain obligations on the applicant as an employer relating to access to children at the workplace.

90. If this letter was indeed delivered to the respondent, respondent clearly knew that management had refused his application to be accommodated in such flat before he took occupation of flat number 7 on the 28 October 2014.

91. In respect of the question as to whether this document was served on respondent, on behalf of the applicant two security officers, Mr Badenhorst and Ms Jantjies testified that they had served the document on the respondent. The respondent testified on his own behalf that the relevant document was never served on him. Again, the evidence led on behalf of the applicant and the respondent’s evidence on this question also cannot be reconciled.

92. The main contentions made by Mr Badenhorst in his evidence were that he and Ms Jantjies received the relevant letter from his senior Mr Verkoper on the same day as the letter is dated, being the 22 July 2014. That he and Ms Jantjies were instructed to serve the said letter on the respondent. Thereafter, he and Ms Jantjies went to the fire-station and they found the respondent standing on a flight of stairs at one of the blocks of flats that is adjacent to the fire-station. Respondent came towards them and Mr Badenhorst offered to read the letter to respondent. Respondent replied that he knew what was contained in the letter and further remarked that Badenhorst was doing the dirty work for Pierre de Villiers.

93. Mr Badenhorst then testified that respondent was handed a copy of the said letter. Then Mr Badenhorst testified that he, the respondent and Ms Jantjies signed the other copy of the letter in each others presence. Thereafter, such signed copy was returned to Mr Verkoper. This is where “X1” and “X2” become significant, as this is the copy of such letter that bears the additional signatures referred to herein.

94. Mr Badenhorst also testified that this was the only time he went to the fire-station flats to speak to the respondent. He also testified that he and the respondent knew each other as they had played soccer together at one time.

95. The contention made by Mr Badenhorst that he offered to read the relevant letter to the respondent was never challenged when Mr Venter cross-examined Mr Badenhorst.

96. The respondent considered himself to have been victimised and discriminated against as a result of his conviction on a charge of statutory rape. This is evident from his second letter dated the 5 March 2014. Considering this in the light of the fact that Mr Pierre de Villiers’ name appears on the letter presently under consideration, even though Mr De Villiers was not the author of that letter and his name is not mentioned in the body of that letter. Further, in the context that respondent’s case was discussed at the resident’s meeting of the 18 February 2014. Considered in the light of these facts, Mr Badenhorst’s evidence that respondent at the time that the relevant letter was served on him, stated, that he (Mr Badenhorst) was doing the dirty work for Mr Pierre de Villiers is simply too unique for Mr Badenhorst to have made that up. Furthermore, this spontaneous evidence of Mr Badenhorst was never challenged when he was subjected to a long and repetitive cross-examination by Mr Venter.

97. The respondent’s assertion that he was not aware that residents had concerns about him staying at the fire-department’s flats is simply not credible in the light of his own letter of the 5 March 2014 and the resident’s meeting of the 18 February 2014.

98. The only material aspects of Mr Badenhorst’s testimony that were challenged when he was cross-examined were: that he had not handed a letter to the respondent; and that the signature alleged to be that of the respondent acknowledging receipt was not in fact that of the respondent.

99. In argument, Mr Venter referred me to the affidavits signed and deposed by the respondent and invited me to compare them and submitted that they were not the same. Mr Venter overlooked the fact that Mr Badenhorst testified that he did not have a clipboard or book to support the document when respondent signed it and the only support he could offer the respondent whilst signing for the letter, were his open hands. Signing such document on an unstable surface could easily explain any differences in the respondent’s signatures on the relevant letter when compared to other documents.  

100. Further, other parts of Mr Badenhorst’s evidence was similarly left undisputed. For example: that a meeting actually took place between Mr Badenhorst, Ms Jantjies and respondent on the relevant date at the fire-department flats; although Mr Badenhorst and respondent knew each other from having played soccer together they did not socialise and in that sense, they were not friends; and Mr Badenhorst and respondent had met each other only once at such flats. It flows from these undisputed facts that the only reason that is apparent from the established facts to meet respondent at the said flats would be to serve the relevant letter on him.

101. It is true that Ms Jantjies was vague and open to criticism on some aspects of her testimony. She was sent with Mr Badenhorst to witness the document being served on respondent. It is evident that she was an inattentive witness. A fact which she readily acknowledged and to her credit did not try to disguise. Despite this she did corroborate Mr Badenhorst in material respects. Where there were differences, these were clearly on peripheral issues.

102. By contrast the respondent’s evidence was self-serving and lacked credibility. Respondent’s evidence that he did not know of other residents having concerns with him is simply not credible having regard to his letter of the 5 March 2014 and the resident’s meeting of the 18 February 2014. The two events are simply too close together in the chronology of events to be unconnected.

103. Respondent portrayed himself as a victim and he showed no appreciation and comprehension for the consequences of what he had done and the consequences that flowed from his conviction. He could not see further than his belief that he was being victimised. He showed no understanding for the concerns of the parents at the fire-station flats. He also showed no understanding as to the wrongfulness of the relationship he had entered into that led to his conviction and why children needed to be protected from the abuse of the power relationship that such interaction represents.

104. On respondent’s own version he and Mr Badenhorst were merely acquaintances who never had any difficulty with each other. There is no evidence as to where Mr Badenhorst could have obtained the information from to explain his evidence as to what respondent said to him when Mr Badenhorst offered to read the relevant letter to respondent. This evidence fits in with the other established facts and is too unique to be explained away.

105. In all of these circumstances, I find that the probabilities overwhelmingly support the applicant’s version that the letter of the 22 July 2014 was served on the respondent.

106. The consequences that flow from these findings establishes that the respondent took occupation of flat number 7 without any lawful basis. In all of the circumstances set out above, I conclude that it will be just and equitable to evict the respondent from the relevant premises.

107. Mr Gilliland, for the applicant, argued that for the purpose of s 4(6) of PIE, that the earlier application brought under case number 1899/2014 should be regarded as the time when proceedings were initiated to secure the eviction of the respondent.

108. As pointed out above, the application brought under case number 1899/2014 was dismissed on the grounds that the applicant had not established its authority to bring that application. It is not disputed that upon the ruling in case number 1899/2015 dismissing that application, that applicant applied for leave to appeal. Further, once leave to appeal was refused the applicant brought the present application without delay.   

109. By contrast Mr Venter argued that these proceedings stand on their own and these proceedings were initiated outside the 6-month period contemplated in s 4(6) of PIE and that the present application should fall under the provisions of s 4(7) of PIE. Further, Mr Venter submitted that the applicant had not established that other land or premises were made available to the respondent by the applicant municipality. Accordingly, it was submitted that the respondent should not be evicted.

110. Having regard to the fact that the earlier application was initiated whilst the respondent was taking occupation of the said flat and that such application was dismissed on a technical ground. Further, that an application for leave to appeal was brought and that once the application for leave to appeal was dismissed the present application was instituted without undue delay. In these circumstances, I believe it would be artificial to compartmentalise these two applications, which would be tantamount to ignoring the facts. I believe it is appropriate in these circumstances to conclude that proceedings were initiated under case number 1899/2014 for the eviction of the respondent, even though those proceedings were ultimately unsuccessful. Accordingly, I concluded that the provisions of s 4(6) of PIE must be applied in the present case.

111. Even though both the applicant and the respondent referred to SORM, having regard to the conclusions reached it is not necessary for me to deal with them. Save to the extent that the provisions of SORM dictate that applicant cannot allow the respondent to work shifts at the main fire-station in Kimberley as this would again expose the applicant to the risk of liability under SORM, as the respondent would have to live in the single quarters on the same premises whilst on duty. Accordingly, I shall have to order that the respondent be transferred to the Galashewe or Ritchie fire-stations where I am informed no families and no children reside.

112. Then I need to consider the period within which the respondent is to move out of the premises. Mr Gilliland submitted in all of the circumstances of the case that 30 calendar days would be reasonable and equitable for the respondent to find alternative accommodation. Considering the manner in which the respondent took occupation of the premises, the length of time that he has been in occupation, respondent’s family situation and the fact that the respondent is in full time employ and receives a monthly salary, in my view affording him 30 calendar days to find alternative accommodation is reasonable in all of the circumstances of this case.

113. The last question to be considered is the question of costs. Mr Gilliland submitted that due to the manner in which the proceedings were protracted by Mr Venter’s cross examination that I should make a punitive costs order that the respondent pay the costs on an attorney and client scale.

114. Mr Venter submitted that having regard to the fact that the respondent’s papers in case number 1899/2014 disclosed the disputes of fact this court had to deal with that the applicant should pay the costs regardless of the outcome. Mr Venter might have had a point if the disputes referred to were raised in a bona fide and honest way. In my view, this is not the case. In the present circumstances, the applicant being successful, I see no reason to deprive the applicant of its costs.

115. It is trite that the court has a discretion on the issue of costs to be exercised judicially. A punitive costs order is usually made to show the court’s displeasure at the way a party conducted its case. The cross-examination conducted on behalf of the respondent was tedious and accomplished very little, but I hesitate to find that it was of such a nature as to deserve special censure or that such censure should be visited on the respondent himself. I considered if an order against Mr Venter would be appropriate but due to the fact that applicant had abandoned this approach it initially indicated it would follow and the fact that whilst such cross-examination was tedious and inefficient, I could not go further than that, I decided against such an approach.   

116. If in future matters Mr Venter were to continue to conduct his cross-examination in this way and if circumstances were slightly different I may reach a different a different conclusion. In the circumstances the respondent will be ordered to pay the taxed or agreed party-and-party costs of the applicant. Such costs to include the costs of the preliminary matters dealt with above.

In the circumstances, the following order is made:

1.   That the respondent and/or all persons occupying the premises through him, known as flat number […] at the Section: Emergency Services Sol Plaatjie Local Municipality, situated at [...] L. R., Kimberley be evicted 30 (thirty) calendar days after the date of this Order.

2.   That should the respondent and/or any person occupying through him refuse or neglect to do so, the applicant – through the Sheriff of this Court – be authorised and directed to evict the said respondent 30 (thirty) calendar days after the date of this Order.

3.   That whilst the respondent is employed by the applicant as a fire fighter working shifts, he shall be transferred to and/or be deployed to either the Ritchie or Galashewe fire stations of the applicant.

4.   That the respondent shall pay the taxed or agreed party-and-party costs of this application. Such costs shall include the costs of the preliminary matters or special pleas placed before this court.

 

_______________

Lawrence Lever AJ

Northern Cape High Court, Kimberley

On behalf of Applicant  :                 Adv Gilliland               

On behalf of Respondents:            Adv Venter

 

Date of hearing:                          11/03/2016; 31/05-02/6/2016; 05-08/09/2016; 09-10/11/2016

Date of Judgment:                       17 May 2017

 

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