TODAY'S ALERTS

Facts and issue: Appeal against the judgment and order of the court a quo authorising the eviction of the appellants. The respondents, as provisional trustees of the insolvent estate, brought an application seeking an order evicting the appellants. The appellants opposed the application on the basis that they are not unlawful occupiers as envisaged in the PIE Act as they had consent to occupy the premises. 

Discussion: The respondents, as provisional trustees were not authorised to bring the eviction proceedings. The inevitable result is that the proceedings before the court a quo were never properly authorised and are a nullity which cannot be ratified by a subsequent court order. The only proceedings a provisional liquidator can institute without authority are proceedings where he or she seeks such authority. The appellants are not unlawful occupiers as defined in PIE. They occupied the property on the basis of a rental agreement. Even if they did not, the presumption in section 5(5) of the Rental Housing Act applied after the expiration of the lease as they remained in the premises with the tacit consent of the erstwhile owner which had never been revoked or the agreement cancelled. The first to third respondents did not have authority to initiate the present proceedings and the lien that had been provisioned by the fourth respondent had expired. 

Findings and order: The appeal is upheld with costs. The application is dismissed with costs.

Facts and issue: This is an eviction application in which the subject matter is a six storey building. It is alleged that a syndicate of unidentified persons illegally gained control of the property and let it out to the respondent occupiers, and that the syndicate went as far as forcing the lawful tenants of the applicant to pay their monthly rental to them or to vacate the property if they refused to do so. The property is invaded and is no longer under the control of the applicant. The applicant’s claim is vindicatory.

Discussion: The applicant asserts that it is the owner of the property and that the first respondent occupiers are in unlawful occupation. The applicant’s case lies both in its failure to properly establish its alleged ownership of the property and in its reliance on a letter from the third respondent notifying of a report that the building is seriously shaking as well as a drone conditional assessment. The findings contained in the drone assessment are provisional, and in the absence of information about the technical specifications and capability of the drone, the process through which its data was extracted and by whom, the limitation in the applicant’s case becomes obvious particularly where no confirmatory affidavit has been forthcoming from its author. In vindicatory claims proof of ownership has to be adequate. With deficiencies, the claim to ownership loses legal traction and renders the application hopeless. The deponent to the applicant’s founding affidavit lacks personal knowledge of the contents of the documents including the DeedsWEB report despite his assertion that he has control of the documents and the facts to which he deposes are within his knowledge. The upshot is that the material stands as hearsay. Hearsay evidence not so admitted in terms of the Evidence Act is no evidence at all. 

Findings: To grant the applicant relief on the basis of the documentation included amongst its papers would be tantamount to a mere rubber-stamping exercise and an uncritical acceptance of evidence that has not been competently presented. No substantiated or sustainable basis exists for granting the eviction order, caedit quaestio.

Facts and issue: The appellant's application for the eviction of the respondents from a portion of the land housing a church and a storeroom in two prefabricated buildings was dismissed by the court a quo.  The prefabricated church building and the storeroom were located on certain land designated for a low-cost housing project. The appellant sought to evict the respondents so that contractors could prepare and install infrastructure for the proposed housing development. However, the refusal of the respondents to vacate these premises prevented them from performing the necessary work for the housing development to progress.

Discussion: This appeal presents an unusual situation in which it appears that the fate of this eviction application was decided based on a potential dispute between the appellant and two regulatory bodies over the interpretation of an environmental assessment that were not materially related to any discrete dispute between the appellant and the respondents. The respondents opposed the eviction application based on an incorrect interpretation of the incorporation statement, which they also say justified their continued use and occupation of the prefabricated buildings. The appellant remains constitutionally mandated to devise and implement a comprehensive and coordinated program progressively to realize the right of access to adequate housing within its available resources. 

Findings: The appellant was under no obligation to provide the respondents with a church. It is so that a constitutional obligation arises to protect and uphold individuals' rights to freely practice their religion if they do not infringe on the rights of others or break any laws. The principle of separation of church and state, also known as secularism, advocates for the separation of religious institutions and the government. The respondents failed to exhibit any rights to prevent their eviction from these prefabricated buildings.

Order: The appeal is upheld. Eviction granted. 

Facts and issue: The applicant seeks an order declaring him the sole holder of parental responsibilities and rights in respect of guardianship and care of the minor child, placing the minor child’s primary residence with applicant, terminating respondent’s rights of contact and applicant shall be entitled to appoint a guardian to the minor child in the event of his death.

Discussion: The parties were awarded jointly parental responsibilities and rights in respect of the minor child, but his primary residence and care were awarded to the father. The mother who was awarded contact rights. According to the father, he experiences various problems due to the absence of the mother. He has family in Namibia and cannot visit as he requires the mother’s consent to travel outside South Africa and he requires her consent to take the minor child. The father is of the view that it would not be in the minor child’s best interest to initiate contact with the mother as he does not know her. He is of the view that it would be best to terminate responsibilities and rights of the mother. The nature of the relationship between the child and his mother does not appear to be good as a result of the last physical contact with the child. This is an important matter that should be investigated to determine what may have strained the child’s relationship with the mother, and what can be done to improve their relationship.

Findings: Without a proper investigation into the best interest of the child by the family advocate and a social worker, a proper case has not been made out for the relief sought by the father. An assessment by a social worker and the family advocate will guide a court in respect of where the child is at emotionally, developmentally, and in respect of his relationship with the respective parties. Such assessment can further guide the parties in terms of how best to support the child in his relationship with each of the parties.

Order: The father’s application is dismissed. The mother’s counter application is granted.

Facts and issue: The plaintiff issued divorce proceedings against the defendant. There are two disputes for adjudication. The first one is the maintenance amount of the parties' minor child. The second dispute is the plaintiff's application for forfeiture of benefits of a marriage in community of property in respect of the parties' immovable property. The basis for forfeiture is that the defendant was not making a meaningful contribution to the joint estate.

Discussion: The plaintiff has failed to discharge her duty to prove infidelity or adultery on the part of the defendant or misconduct on the part of the defendant except to mention it in her papers and in her evidence. The plaintiff has emphasized allegations of adultery and lack of financial support by the defendant as reasons for the breakdown, amongst others. The fact which the parties are missing, is that their respective funds or money belongs to one undivided joint estate. The defendant will not benefit unduly if forfeiture is not granted. The defendant's failure to improve his academic qualification is an irrelevant factor. The plaintiff's claim on forfeiture stands to fail. 

Findings and order: The divorce decree is granted. The plaintiff's prayer for forfeiture of benefits and in respect of the parties' immovable properties is dismissed.

Facts and issue: The applicants allege that their dismissal by the respondent for operational reasons was substantively and procedurally unfair. The applicants seek reinstatement with retrospective effect. The human resources manager stated that the reason for the dismissal of the applicants for operation requirements was that a major client of the respondent had declared a force majeure and that there was no option but to retrench employees who were working on the contract because there would be no income during the period of the declared force majeure.

Discussion: Substantively, the applicants failed to put any version of substance to the respondent’s witness. In this regard, a failure to put one’s version to opposing witnesses means such a version cannot be accepted. The respondent’s version that it was not able to conduct its operations in terms of the Msobo Coal contract, under which the applicants were employed, with consequent financial hardship, must be accepted as it was not disputed. Under these circumstances, the respondent had a valid reason to contemplate retrenching the applicants. When the applicants were invited to provide alternatives to retrenchment, they did not accept the invitation and they provided no alternatives. They have no one to blame but themselves. The applicants’ dismissal was substantively fair.

Findings and order: The applicants’ unfair dismissal referral is dismissed.

Facts and issue: The applicant brought an application to review and set aside the decision of the second respondent. The second respondent was appointed as the presiding officer over the disciplinary enquiry against the first respondent. Despite having found the first respondent guilty of charges that relate to misrepresentation, the presiding officer recommended a sanction of a final written warning. The applicant impugns the reasonableness of the findings and the sanction of a final written warning.

Discussion: Unlike state employees, the State, as an employer, does not have an incidental dispute resolution process available to it in terms of the LRA other than to avail itself to its right of review in section 158(1)(h). The review application in terms of section 158(1)(h) is premised on the principle of legality. As such, the contention that the LRA is applicable is untenable and stands to be rejected. The relevant procedure when it comes to the filing of a record in judicial reviews is provided in rule 53 of the High Court Rules. Having found that the main application implicates the constitutional principle of legality, it follows that it had never lapsed or archived or deemed withdrawn as contemplated in the Practice Manual. To the extent that the main application is a legality review in terms of section 158(1)(h), it was never defunct. Thus, this application is rendered superfluous.

Findings and order: The main application is not defunct as it is a legality review in terms of section 158(1)(h) of the LRA.

Facts and issue: The applicant seeks to review and set aside an arbitration award issued by the commissioner. The applicant was dismissed for misconduct. The charges of misconduct were failure to follow company safety policy and procedure by putting the safety of herself and other employees at risk and dishonesty by giving incorrect accident information during the investigation by claiming that she had a blackout at the time of the accident. The commissioner found that the dismissal was both substantively and procedurally fair.

Discussion: The argument advanced on behalf of the applicant to the effect that the commissioner committed a reviewable irregularity in limiting the issues he had to determine to only those identified in the minute of the pre-arbitration meeting, is rejected. What could amount to a reviewable irregularity would be for a commissioner to disregard the content of a minute of a pre-arbitration meeting and determine an issue the parties have excluded from the purview of his consideration. The commissioner did not commit any reviewable irregularity in determining only the two issues that were identified in the minute signed by the parties at arbitration. No fault is found  with the commissioner’s decision with regard to the two issues he was called upon to determine. 

Findings: The commissioner’s finding that dismissal was an appropriate sanction for the misconduct committed is reasonable. The commissioner’s reasoning in justifying the decision he arrived at is eminently sound. 

Order: The application for review is dismissed.

Facts and issue: Action for damages arising from alleged unlawful arrest and unlawful detention of the plaintiffs by members of the South African Police Services. The defendant has conceded the merits. The trial proceeded on quantum. The plaintiffs in this matter were arrested for the alleged murder of three employees of the first plaintiff. Their killing received wide coverage in both print and electronic media. The appearance of the plaintiffs in court was widely publicised. In the end the charges against all the plaintiffs were withdrawn.

Discussion: The three plaintiffs testified that they were made to endure unbearable conditions in the respective cells where they were held. They were given small food rations or no food at all on some days. They had to wash with cold water and endure filthy and unhygienic cells. In addition, the cells both at the police stations and the Johannesburg Correctional Facility were made to hold an excess number of inmates. The blankets were filthy or no blankets or place to sleep was provided. The second plaintiff was subject to a humiliating and degrading treatment was forced to undress before male officers and was stripped searched for contrabands. This happened even when she was menstruating. The argument that all the three plaintiffs did not attend psychological treatment is an indication that they have healed is misplaced. They all explained that it was how they thought best to deal with their trauma. Each of the plaintiff told the court they were never arrested prior this incident. Both the second and sixth plaintiffs were teenagers when this incident befell them. 

Findings: In considering an amount to be awarded the court has to express the importance of the constitutional right to individual freedom. Each of the three plaintiffs have successfully proved their respective damages.

Order: The first plaintiff is awarded R500 000. The second plaintiff is awarded R600 000. The third plaintiff is awarded R500 000. 

Facts and issue: The applicants and the respondent are the owners of adjacent residential erven. The applicant’s erf is the higher lying of the two. The natural flow of water would accordingly be from the applicants’ property onto that of the respondents. The respondents had blocked the connection to the stormwater pipe in order to prevent a recurrence of flooding caused by the backing up of stormwater. The applicants launched this application which is aimed at restoring the status quo ante (the unblocking of the drainage pipe). 

Discussion: The requirements for interim interdictory relief are well known include the existence or a right, ongoing harm or a well-grounded apprehension of harm; the absence of a satisfactory alternative remedy and that the balance of convenience favours the granting of the relief sought. The applicants’ case regarding the right contended for was unclear on the papers. Turning to the statutory right contended for, the starting point is that the local authority must have expressed the opinion that it is impracticable for the stormwater to be drained to a public street, which is the default position.  There is no evidence that the local authority has expressed the required opinion, let alone sanctioned a solution. The fact that the local ward councilor was involved in coming up with the solution of the PVC pipe and improvised connection to the stormwater system also does not assist the applicants. Ward councillors are elected office bearers, not appointed officials. There is no evidence that the person in question was ever authorised to represent the third respondent.

Findings: The applicants have not made out any case at all in respect of the rights contended for and the application falls to be dismissed on this basis alone.

Order: The application is dismissed with costs.