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Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No. 21717/2018

Before: The Hon. Mr Justice Binns-Ward

Hearing: 5, 24, 26 June; 5, 26 August 2019

Judgment: 2 September 2019

In the matter between:

OCEAN MONARCH CC                                                                                                     Applicant

and

BOSENGE GESMEN BUBU (MR JAZMAN)                                                       First Respondent

OTHER OCCUPIERS OF THE PROPERTY AT

309 VOORTREKKER ROAD, MAITLAND                                     Second to Ninth Respondents

CITY OF CAPE TOWN                                                                                          Tenth Respondent

 

JUDGMENT

BINNS-WARD J:

[1] The applicant, which is a close corporation, is the registered owner of immovable property situate at 309 Voortrekker Road, Maitland, Cape Town.  It has applied in these proceedings for the eviction of the respondents from the property on the grounds that they are in occupation without any legal right thereto and against the wishes of the owner.  The respondents have failed to vacate the property despite having been given notice to do so by 31 October 2018.  The proceedings for their eviction have been instituted in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’).  Papers commencing the proceedings were served on the respondents at the end of November 2018.  The respondents (or those of them who are still in occupation of the property at this stage) are ‘unlawful occupiers’ as defined in s 1 of PIE.

[2] The respondents had been in occupation of the property for more than six months when the proceedings for their eviction were instituted.  Accordingly, the provisions of PIE centrally applicable to the determination of the application are in s 4(7) - (9):

(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine-

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

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

(9) In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.

[3] It would seem that the property was occupied by various persons without the owner’s permission during 2015 or 2016.  How that happened is not clear.  The applicant had previously let the property to one Mbuta.  He apparently divided the available built space there into the five separate accommodation units currently occupied by some of the respondents.  Mbuta fell into arrears with the rental and appears to have abandoned the property, whereafter the owner came to an arrangement with the persons who had occupied the accommodation units under him that they might remain there subject to paying a monthly rental.  Indeed, the first respondent maintains that he was engaged by the owner’s property agent, who is the deponent to the applicant’s supporting affidavit, to collect the rentals from his fellow occupiers. 

[4] According to the founding papers, notice to vacate the property was given when the occupiers ceased to pay rent.  The notice to vacate, however, treated the occupiers as lessees on a month to month lease and gave no particular reason for the demand that they should vacate the property, stating merely that ‘[f]or various reasons our client is no longer prepared to allow you to occupy the premises and in as much as you occupy the premises on a monthly/periodic lease arrangement our client hereby gives you one month’s notice of the termination of your right to occupy the property’.

[5] The first respondent initially claimed in an answering affidavit deposed to on 13 May 2019 that he was not in unlawful occupation of the property, being entitled to be there in terms of his appointment as rental collector, as aforementioned.  By the time of the postponed hearing of the application on 26 August 2019, when the court heard oral evidence on an inquisitorial basis, it had become common ground, however, that all of the respondents were in unlawful occupation of the property, and that none of them had paid rental since at least the end of 2018.[1]  By that stage the respondents accepted that they were obliged to vacate the property.  They pleaded, however, that they needed time to put together sufficient funds to obtain alternative accommodation; a period of eight months was suggested.

[6] The proceedings were conducted on a somewhat ad hoc basis.  This was in large part due to the respondents’ legal representation having been afforded on an on-off basis - according to their attorneys’ financial instructions it would seem.  An answering affidavit was delivered only by the first respondent.  And most of the points taken in that affidavit were not persisted with when oral evidence was heard.  It became necessary in order for the court to enquire properly into the respondent’s circumstances to direct the City of Cape Town, which, as the local authority for the area in which the property is situated, had been cited as the 10^th respondent, to investigate and furnish a report on the situation and on the availability of alternative accommodation[2] and to invite those of them who were present in court to testify orally as to their personal circumstances.  It must be recorded that the respondents were not always cooperative about disclosing the particulars of their personal circumstances.

[7] In his aforementioned answering affidavit, the first respondent stated that to the best of his knowledge the only respondents apart from himself and his family that remained in occupation of the property were the third, fourth and sixth respondents.  He referred to the sixth respondent simply as ‘Bookert’, which is also the name by which that respondent was cited in the papers.  At the hearing on 26 August 2019, it emerged that the sixth respondent’s actual name is Abysta Kijali.  It also transpired that the second respondent is still in occupation at the premises and that he is also known as Sedrick Mukango, Sedrick Masikini or Sedrick Masikini Mokango.  (In the municipal questionnaire completed in the name of Sedrick Masikini, Noel Lubaki, the name by which the second respondent was cited, was named, together with Aime Masikini, as part of the relevant household.  The impression I gained when the respondents were giving oral evidence was that Sedrick Mukango and Noel Lubaki were one and the same person.  The other person in the unit was identified in the course of the oral evidence as Sedrick’s girlfriend.  It must be said that enquiring into the respondents’ personal circumstances was complicated at times, not only by language issues, but also on account of the confusion to which different names or aliases by which many of them went gave rise.)

[8] The respondents originate from the Democratic Republic of the Congo. 

[9] The first respondent, who is 34 years of age, is the holder of an asylum seeker permit issued in terms of s 22 of the Refugees Act 130 of 1998.  The permit was originally issued on 15 May 2015 and, having been extended on three occasions, it is currently due to expire on 15 December 2019.  According to a questionnaire completed for the municipality in connection with these proceedings, the first respondent stated that the property is in point of fact not his primary place of residence.  He gave 5 Norfolk Street, Maitland, as his primary place of residence.  Reference to readily available online maps indicates that the two addresses are several blocks apart from each other.  Furthermore, whereas his answering affidavit stated that he lived at 309 Voortrekker Road with his partner and young son, he stated in the questionnaire and in his oral evidence that the child was a two-year old girl.  He stated that he had resided at the address for four years, which would suggest that he must have settled there very shortly after his arrival in this country.

[10] The second respondent, who is 34 years of age, is also the holder of an asylum seeker temporary permit entitling him to be employed or study in South Africa.  His permit was originally issued in Cape Town on 1 September 2008.  It has been extended on 23 occasions and is currently due to expire on 10 February 2020.  He said that he has resided at the subject address for three years.  In the questionnaire he gave his monthly income as about R5 000, and his monthly expenditure as R3 800.  The City’s Director: Informal Housing reported that the second respondent’s collective household income had been reported as R12 000 per month.

[11] It was disclosed in the course of the oral evidence that Mabiala Aubin, the third respondent, had by 26 August already vacated the property.

[12] The fourth respondent, Arnold Iloko, lives with one other adult and a three-year old child in the unit that he occupies.  He is also a foreigner.  The report provided by the City of Cape Town records that he had not produced documentation from the Department of Home Affairs concerning his residence status.

[13] The fifth respondent, Bertin Mayoumy, lives with one other adult person in the unit that he occupies.  He reported a ‘collective household income’ of R7 000 to the municipal officials investigating the respondents’ circumstances.  He did not provide documentary proof of his residence status in South Africa.

[14] The sixth respondent, who, judged by the identity number given in his completed questionnaire form, also appears to be the holder of a refugee permit issued at Musina, is 33 years of age.  He says that he has lived at the property for five years.  He declared that his monthly income was R5 000 and his monthly expenditure R3 500.  Two other persons share his unit, both of whom appear to have South African identity numbers indicating their respective dates of birth as 23 November 1992 and 16 June 2018.  The City’s Director: Informal Housing reported that the sixth respondent’s ‘collective household income’ had been reported as R12 000 per month.  The sixth respondent also stated in the municipal questionnaire that the property was not his primary residence, and gave ‘160 Banny Street’, Kensington as his primary address.  As far as I have been able to ascertain from an online map of the area, there is no street by that name in Kensington.  The respondent may have intended to refer to Bunney Street, which is a road in that area.  Judicial notice may be taken that Kensington is a suburb immediately adjacent to Maitland.

[15] The oral evidence indicated that Zuma, the seventh respondent, who was not present during the hearing on 26 August, lived alone in his unit.  I gained the impression that he may previously have shared it with the third respondent.

[16] The evidence was to the effect that Rosalie, the eighth respondent, had left the property some time ago.

[17] It would appear that the ‘unknown occupiers’, collectively cited as the ninth respondents, are the other persons occupying the property as members of the various households identified above.

[18] On a conspectus of the information assembled by the court – with the assistance of the municipality and the attorney who represented the City in these proceedings, Mr Williams, to whom the court is indebted – it appears that there are no elderly, physically or sickly persons amongst the unlawful occupiers on the property who might have special needs that would fall to be taken into account.  It also appears that none of the respondents’ households are headed by women.  There is also nothing to indicate that the minor children on the property are not under adequate care by their respondent parents.  None of them is of school going age.  The first respondent’s minor daughter (as mentioned, she was erroneously described as a boy in the first respondent’s answering affidavit) attends a crèche in the Maitland area, but there is nothing to suggest that comparable arrangements could not be made for her care during the day if the first respondent and his partner were to relocate to another area.

[19] In the circumstances I am satisfied that - provided the respondents would not be rendered necessarily homeless were they to be evicted from the property - it would be just and equitable, having regard to the applicant’s property rights as vouchsafed by s 25 of the Bill of Rights, for them to be required to vacate the property upon notice within a time determined by the court to be just and equitable.

[20] The City of Cape Town has indicated that it is able to assist the respondents, should they be rendered homeless consequent upon their being required to vacate the property, by providing them with emergency housing at the emergency housing site at Kampies Informal Settlements, which is in the Philippi area, which the court can take judicial notice is approximately 20 kilometres from Maitland.  The site is situated opposite the Philippi police station.  A picture of the type of housing available there was attached to the ‘alternative housing report’ submitted by the City.  It is evident that the accommodation consists of container-like structures constructed from corrugated iron sheeting affording units 18m² in size with one small window to let in daylight.  According to the City’s report, the emergency housing units at Kampies have access to shared services for water standpipes and sanitation.  The site is reported to be located ‘in close proximity to public transport, medical facilities and social services’.

[21] In the alternative, the City would be willing to provide the respondents with emergency housing kits comprising material that would enable them to construct their own informal structures to a similar standard as those provided in Kampies.  The offer of housing kits would be conditional on the provision by the respondents in writing of particulars as to where the structures would be erected and confirmation of the consent of the owner or lawful possessor of the land concerned for the erection of the informal structures there.

[22] The respondents have indicated that they are unwilling to take up emergency housing at Kampies.  There is no indication that they would be able to find land on which the owner would be prepared to give permission for them to erect housing using the housing kits that the local authority is able to make available.

[23] The respondents ascribe their unwillingness to accept the offer of emergency housing to concerns about their personal safety.  They say that there is hostility to foreigners.  It is unfortunately true that xenophobic behaviour is commonplace in South Africa, as indeed it seems to be in many other places worldwide where, like here, there has been a large influx of refugees from other countries.  There was evidence that the community at Wolwerivier, which is another emergency housing site provided by the City of Cape Town, had been hostile to foreigners and had indicated its unwillingness to accept them being given housing there. 

[24] The respondents were not in a position, however, to counter the proposition put in questioning by the City’s attorney that his instructions were that there had been no incidents of xenophobic violence reported from the Kampies Informal Settlement.  I accept that the proposition put by the attorney is no guarantee against future incidents of xenophobic behaviour.  It cannot be.  Occasional outbreaks of xenophobic violence are known to occur in all parts of the country.  The respondents must accept, however, that the risk is part of the human condition in this country and therefore one that must be addressed on the basis of proportionality.  In the context of the risk of xenophobic violence at Kampies not being demonstrably obvious, it cannot constitute a cogent basis to justify the respondents’ refusal to consider relocating there or on that account to further extend the denial to the applicant of its property rights.

[25] In all the circumstances I am satisfied that the requirements of s 4 of PIE have been complied with and that the respondents have raised no lawful defence to the applicant’s claim that they vacate the property.  As alternative housing is available to them on an emergency basis, if they should be willing to accept it, it would be quite unreasonable to expect the applicant to wait out any period even approaching the eight-month period suggested by the respondents before the property is vacated.  In my judgment it would be just and equitable if the respondents were required to vacate the property by Sunday, 20 October 2019; failing which the applicant shall be authorised to cause a warrant for their eviction to be executed on or after Tuesday, 22 October 2019.

[26] Turning now to deal with the question of costs.  For various reasons, to be related presently, the hearing proceeded, mostly haltingly, over several days spread over a period of nearly three months.  The applicant sought an order for certain of its costs to be paid by the City; the rest to be paid by the other respondents.  I do not think it would be just and equitable to make a costs order against the other respondents.  The indications are that any costs order that could be made against them would in any event be nugatory, and it is well established that courts are disinclined to make any order that would be a brutum fulmen.[3]  The City tendered payment of the applicant’s costs in respect of the hearings on 24 and 26 June, whereas the applicant’s counsel submitted that the City should also be held liable for the applicant’s costs in respect of the hearing on 5 August.

[27] The circumstances in which the City, unusually in a matter like this, became exposed to an adverse costs order in favour of the applicant were the following.  It was apparent when the matter was first called before me on 5 June 2019 that there was insufficient information in the papers concerning the unlawful occupiers’ personal circumstances and no information whatsoever whether alternative emergency housing would be available for them should their eviction render them homeless.  As mentioned in paragraph [6] above, it was therefore necessary to call upon the local authority to come to the court’s assistance by providing a report on the situation (cf. the authority cited in footnote 2 and Drakenstein Municipality v Hendricks and Others [2009] ZAWCHC 228 (15 December 2009) at para. 28, per Blignault J, Dlodlo J concurring). 

[28] An order was therefore made at the request of the applicant’s counsel, in accordance with a draft prepared by her, directing the 10^th respondent ‘to investigate and compile a report setting out in detail the investigation the City Council has undertaken to determine the potential impact an eviction order in this application may have on vulnerable groups such as the elderly, children, disabled persons and households headed by women’.  The City was, in addition, directed to report on whether an eviction order would be likely to result in any or all of the occupiers being rendered homeless and on its ability to provide any such persons with emergency housing.  The order further directed the City to furnish the report by 13h00 on 17 June 2019 and to provide a copy thereof to the applicant and to the other respondents collectively at the subject address.  The date of 17 June was fixed with regard to counsel’s intimation that her instructions were that the City was ordinarily able to furnish such reports within 10 calendar days of receipt of a request for one.

[29] The hearing of the application was postponed to 24 June 2019 and the respondents who were present at court were advised by me to expect a visit by officials from the municipality and told that it would be in their best interests to cooperate with the officials so that a full account could be obtained as to their personal circumstances.  A copy of the order directing that the local authority investigate and report on the situation was served by email on an official at the City’s Department: Informal Settlements and Backyarders on 5 June.  And on the following day, a hard copy of the order was served by the applicant’s attorneys on another official in the same department, Ms Thembeka Damane, under cover of a letter from the attorneys drawing attention to the 13h00 deadline on 17 June for delivery of the report.  Ms Damane endorsed a copy of the letter with a handwritten note stating ‘City of Cape Town Report will be ready on Wednesday, 12 June 2019.  Collect from Thembi Damane 021 400 4586’.

[30] The report was not produced as promised by 12 June.  A candidate attorney from the applicant’s attorneys consequently contacted Ms Damane on 13 June and was then informed that the report would be ready for collection at 10h00 on the following day.  However, at 11h32 on Friday, 14 June, Ms Damane emailed the applicant’s attorneys requesting that further information be provided about the occupiers of the property, failing which she would be unable to provide the report.  According to an explanatory affidavit deposed to by the candidate attorney on 20 June, Ms Damane also informed the candidate attorney telephonically ‘that the City is unwilling to attend at the premises personally (sic) to conduct the investigation as this would amount to trespassing’.  The candidate attorney responded to Ms Damane’s email at 12h45 on 14 June requesting that Ms Damane provide an affidavit for the court providing reasons why she was unable to furnish the required report within the timeline directed in the court’s order.  Ms Damane did not acknowledge or respond to the candidate attorney’s email.  And no affidavit was filed by anyone at the City explaining its reported inability to comply with the court order.

[31] The applicant’s property manager attended at the property on 19 June in an endeavour to obtain from the occupiers the information that Ms Damane had indicated that she needed to be able to draw up the required report.  The occupiers were unwilling to co-operate, however, claiming that they wished first to communicate with their legal representative before volunteering any information.

[32] In the result when the matter came up again before me on 24 June there had been no compliance with the order made on 5 June and the information placed before me concerning the exchanges between Ms Damane and the candidate attorney implied an obtuse unwillingness by the City’s officialdom to comply with it, amounting to a prima facie indication of contempt.  In particular, it was patently nonsensical for anyone to suggest that the City’s officials would be guilty of trespassing on the property were they to attend at the property in compliance with the court order.  Apart from the authority conferred in terms of the order itself, it should have been apparent from the identity of the registered owner as the applicant in the matter that the investigation would, of necessity, also carry its blessing for its application could not be advanced without the report required by the court.  If the City had a reason for its failure or inability to comply with the order, its officials should have seen to it that the reason was effectively and timeously communicated to the court.  This is ordinarily done by means of an explanatory affidavit.

[33] An unexplained failure by the City to comply with a court direction that it produce a report in these circumstances was unprecedented in my more than 16 years of judicial experience in these matters.[4]  It evinced conduct that was irreconcilable with the local authority’s constitutional responsibilities as spelled out in several authoritative judgments in eviction matters under PIE, and also in breach of its duty in terms of s 165(4) of the Constitution to assist towards ensuring the effectiveness of the courts.  The unexplained non-compliance could not be ignored.  To allow the City’s apparent disregard for the court’s order to go unaddressed might serve only to encourage a repetition of the unacceptable conduct, with resultant prejudice to the court’s ability to effectively adjudicate many applications under PIE. 

[34] I therefore determined that the municipal manager, as the chief administrative officer and ultimately accountable official of the City,[5] and Ms Damane should appear in court on 26 June to explain the non-compliance with the court’s order.  Both of them were subpoenaed the same day.  I fixed the date of 26 June so as to afford them both a period of approximately 48 hours’ notice - which I considered reasonable in the circumstances - to make the necessary arrangements to be available.

[35] On 26 June Ms Damane was present in court, but the City Manager was absent.  The City had by that stage become represented by Mr Williams, who informed me, without giving any corroborating detail, that the period of notice given to the City Manager had been inadequate.  I rejected that explanation.  When the City Manager subsequently testified on 5 August, he explained that he had in point of fact not been in Cape Town at the time; information that might have mollified me somewhat had I been told about it on 26 June.  As it was I wished to hear the City Manager’s evidence before that of Ms Damane and the matter accordingly had to be postponed to 5 August, the relatively long interval being occasioned by the intervening court winter recess.

[36] The appointment by the City of an attorney to represent it at the further hearings did, however, contribute to the formulation of directions on that date that were incorporated in the order that was made postponing the matter to 5 August that were aimed at achieving some progress in resolving the merits of the case.  The order directed the first, third, fourth, sixth and ninth respondents to deliver affidavits by 15 July 2019 setting out their personal circumstances and details of their attempts to obtain alternative housing and of any other information that might be relevant to a consideration of an assessment of the risk of them being rendered homeless.  It also directed all of the parties to attend a meeting at the offices of the City of Cape Town at a time to be agreed to engage on the possible provision to the respondents by the local authority of emergency housing.  Regrettably, the respondents did not attend at the meeting that was convened.  They ascribed their lack of attendance to the fact that their attorneys had withdrawn their services.  It was a feeble excuse.

[37] The order made on 26 June reiterated the court’s direction that the City furnish a report.  The direction was amplified to require the City to deal in its report with allegations made by the respondents’ attorneys with reference to their experience in other similar matters about the refusal of the community at the City’s Wolwerivier emergency housing settlement to accept the provision of housing there to foreigners and the threats to use violence against any foreigners that were settled there.

[38] When he eventually gave evidence, the City Manager confirmed that he was conscious of the importance as a matter of general principle that the City should comply punctiliously with court orders and in particular of the need for compliance with requests by the courts for assistance in PIE-related matters.  He assured me that the unexplained non-compliance with the order in the current matter should not be seen as the start of a new and unfortunate trend, and accepted my admonition that systems need to be put in place to ensure that municipal officials are made aware of and conscientiously carry out their constitutional responsibilities.  It is sincerely to be hoped that these assurances will be reflected in the future conduct of the City’s officials and employees, and that there will be no further instances of unexplained non-compliance with court orders.

[39] Ms Damane followed the City Manager into the witness box.  It soon became apparent that her evidence was in direct conflict with that given on affidavit by the aforementioned candidate attorney in the office of the applicant’s attorneys.  I therefore gave directions that Ms Damane should first commit her version of events on affidavit before completing her evidence.  The matter was thereafter in any event not able to continue on 5 August on the merits of the eviction application because the occupiers indicated that they wanted a postponement to obtain legal representation and the different counsel appearing for the applicant on that day was in any event unprepared on the merits, mistakenly believing that they had already been argued.  In consequence, there was a further postponement of the hearing to 26 August.

[40] Ms Damane commenced her testimony on affidavit by describing how the City’s officials were reliant on support from the police and from the City’s law enforcement officers to attend on investigating circumstances on the ground in eviction matters concerning premises ‘in high risk areas’.  Quite why she thought it necessary to point that out in this case was not clear however, because she admitted in her oral evidence that the property in issue in the current matter is not situated in an area regarded by the local authority as ‘high risk’.  She also admitted that risk considerations had not played any part in the City’s failure to produce a report in compliance with the court order between the 6^th and the 14^th of June.  It was implied that different considerations might have applied after that date because, so she said, she had been informed on 14 June during a telephone conversation with the candidate attorney dealing with the matter that the applicant’s property manager did not feel safe going the property.

[41] Ms Damane explained that in a case such as this, in which the court requests a report, the officials in her department will extract a copy of the application served on the municipality in terms of s 4(2) of PIE from its archives and try to ascertain from the available information what the housing needs and qualifications of the affected occupiers are.  She acknowledged having been in receipt of the order granted in this matter on 6 June as described above.  She stated that ordinarily it takes up to 14 working days after receipt of a court order to provide a report.  She ascribed this as being due to the volume of requests that are received (four to six daily).  She said that she had endorsed the covering letter under which a copy of the order had been delivered to her in the manner described in paragraph [29] above ‘at the insistence of the messenger’.  Ms Damane’s explanation for her handwritten endorsement that the report would be available on 12 June is puzzling.  It was not clear whether she made the endorsement knowing at the time that it would not be possible to fulfil the undertaking, which would be dishonest, or whether the endorsement implied an intention by her to prioritise the provision of the report so that it would be available by the 12^th.

[42] If it were Ms Damane’s intention on 6 June to prioritise the preparation of the report, she did little to carry it out.  She sent a blank email to an employee in the archives department with the name of the case and court file number in the subject line at 10h25 on 6 June.  Ms Damane explained that that cryptic mode of communication was the standard manner in which requests for the retrieval of archival information were addressed, and that the recipient (in this case someone by the name of Priscilla Youssef) would know exactly what to do.  It is notable, however, that in the allegedly unusual circumstances of the current matter, in which very much shortened time lines were envisaged, the email failed to convey that an urgent response was required.  Ms Damane did testify that she walked to the archive office from time to time during the following days but that office had not yet obtained the documentation ‘from legal’.  Why the documents would be with ‘legal’, having been archived, was not clarified.  In my assessment it would be strange if Ms Damane had repeatedly followed the production of the file up with archives as she claims, that she would not have timeously informed the applicant’s attorneys, whom she had led to believe could collect the report on the 12^th, of the problems she was having in retrieving a copy of the court papers.  Apart from anything else, she should have appreciated that the attorneys would be able to solve the problem by themselves providing her with a copy.  Instead, there was no communication by Ms Damane with the attorneys at all until after the attorneys addressed a query to her on 13 June about the availability of the report. 

[43] In the circumstances I have not found Ms Damane’s explanation of the inactivity between 6 and 13 June persuasive.  As it was, despite her reported difficulties in obtaining the papers from archives, Ms Damane advised the applicant’s attorneys, when they enquired on the 13^th as to the availability of the report promised for the 12^th, that it would be ready the following day.  Even then, she did not explain that the delay was because she could not obtain a copy of the court papers.

[44] Whether coincidentally or not, the reportedly elusive papers were eventually retrieved from the archives on 14 June.  On that date Ms Damane advised the applicant’s attorneys by email that the City required further particulars about the occupiers in order to prepare a report for the court.  In this regard Ms Damane appears to have overlooked the terms of the court order, which directed the City, not the applicant, to undertake the investigation necessary for the purposes of obtaining the information that the court sought to obtain by means of a report from the local authority.

[45] Ms Damane stated that she had three telephone conversations with the candidate attorney at the applicant’s attorneys’ office during the course of 14 June.  Ms Damane and the candidate attorney have different recollections of the content of those conversations.  Most pertinently, Ms Damane denies that she said in the course of one of them that it would amount to trespassing if the City’s officials attended at the property to investigate the circumstances of the occupiers.  The candidate attorney conceded that she might have misunderstood Ms Damane.  Ms Damane said that it was in reaction to the intimation by the candidate attorney that the applicant’s property manager did not feel safe going to the property that she had told the candidate attorney that any officials visiting the property would need to arrange for support from the police or law enforcement. 

[46] The candidate attorney had no recollection of there having been any mention by Ms Damane of the police.  She said that she had told Ms Damane that the property manager received no cooperation from the occupiers when he visited the property.  As it was, an official from the City did pay a visit to the property later in the month, after the postponement of the matter when a report had not been made available for the hearing on 24 June.  He did so without arranging for assistance from the police or law enforcement.  He was only able to speak to an unidentified woman, who was reluctant to offer any information.

[47] What is certain, however, is that the candidate attorney sent an email to Ms Damane at 12h45 on 14 June requesting that she provide an affidavit to explain why the City would be unable to provide a report within the time directed in the court’s order.  When she gave oral evidence, the candidate attorney explained that the email had been sent on counsel’s advice.  Ms Damane did not respond to the email and an explanatory affidavit was not filed.  Taxed about her omission to make an explanatory affidavit, Ms Damane stated that she was not permitted to make an affidavit in litigation without permission from the director of her department.  She stated that she had been unable to consult with the director because the latter was busy attending to last minute tasks on 14 June before going on leave overseas that day.  Under questioning, Ms Damane confirmed, however, that another official had been designated to fill the director’s place during the latter’s furlough. 

[48] When pressed as to why leave had not been sought from the director’s stand-in for her to file an explanatory affidavit, Ms Damane claimed that she had not done so because by that stage she had already been subpoenaed to come to court to explain the City’s non-compliance with the court order.  Her answer was demonstrably false.  The court order had required the report to be available on 17 June for consideration by the parties before the hearing on 24 June.  It was only when the report was not before the court at the hearing on 24 June that directions were given for Ms Damane to be subpoenaed to appear in court on 26 June. 

[49] It is clear that, at best, Ms Damane thought that the City’s failure to comply with the court order would be adequately explained by her aforementioned email to applicant’s attorneys on 14 June stating that further information was required from the applicant concerning the occupiers’ particulars before a report could be provided.  At one stage of her evidence she indicated that she had thought that the email would be produced in court and that it would suffice.  She was wrong; as the evidence of the City Manager had indeed confirmed.  He rightly acknowledged that in a situation in which the City was for any reason unable to comply with an order of court it was incumbent on the relevant official to make an explanatory affidavit.

[50] Upon an overall assessment of the evidence reviewed in the preceding paragraphs I find the conduct of Ms Damane in relation to the court order made on 5 June and the explanations she has offered for it to be unsatisfactory in many respects.  Were I able to find with sufficient certainty that she had indeed told the candidate attorney that the City’s officials could not carry out the order because entering onto the property would amount to trespassing I would have been inclined to hold her personally liable for the wasted costs occasioned by the initial non-compliance with the order.  I cannot do so because of the candidate attorney’s concession that there may have been a misunderstanding.  As I shall explain, whether she should be liable for some of the costs on account of the other deficiencies in her conduct and explanations can better be determined in a domestic forum.

[51] As mentioned, the City has tendered the wasted costs occasioned by the postponements on 24 and 26 June, which is a tacit acknowledgment of the culpable shortcomings in its conduct with regard to the order of 5 June.  It appears from the factual context that I have described that the shortcomings were, as far as I have been able to determine, largely, if not exclusively, due to the role played by Ms Damane.  There is little doubt in my mind that the resultant expenditure by the City on the applicant’s costs of suit will qualify as ‘fruitless and wasteful expenditure’ within the meaning of that term in the Local Government: Municipal Finance Management Act 56 of 2003.[6]  And that the City Manager will consequently be required to deal with and report on it in the manner prescribed in s 32 of the Act.  It may be that the question of Ms Damane’s personal liability to reimburse the City for any of that expenditure might be revisited in that context.

[52] I am satisfied that the City’s tender to pay the wasted costs incurred by the applicant in respect of the hearings on 24 and 26 June adequately meets the justice of the case.  While it is true that the postponement to 5 August was occasioned by the non-appearance on 26 June of the City Manager, the hearing of the matter could probably have been completed on 5 August had it not been for the postponement requested by the occupier-respondents to obtain new legal representation.  I am therefore not persuaded by the applicant’s counsel’s submission that the City should also be liable for the applicant’s costs incurred for that day.

[53] The following order is made:

(a) Those of the respondents who are still in occupation of the applicant’s property at 309 Voortrekker Road, Maitland, Cape Town (‘the property’) are required to vacate the property by Sunday, 20 October 2019; failing which the applicant shall be, and is hereby, authorised to cause a warrant for their eviction to be executed on or after Tuesday, 22 October 2019.

(b) The tenth respondent is directed to make emergency housing available at the City of Cape Town’s Kampies emergency housing settlement at Philippi to any of the respondents who are displaced from the property pursuant to the terms of paragraph (a) of this order should any of such respondents request it; alternatively, at their election, to provide them, on the City’s standard conditions, with emergency housing kits.

(c) The tenth respondent shall pay the wasted costs incurred by the applicant in respect of the hearings on 24 and 26 June 2019.

 

 

A.G. BINNS-WARD

Judge of the High Court

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