IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT: MTHATHA) CASE NO : 1766/08. Date heard : 21 June Date delivered : 08 July 2010

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT: MTHATHA) CASE NO : 1766/08 Date heard : 21 June 2010 Date delivered : 08 July 2010 In the matter between: ATSON MADABASE PHUPHUMA Applicant and INTSIKA YETHU MUNICIPALITY 1 st Respondent THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT THE REGISTRAR OF THE HIGH COURT THE DEPUTY SHERIFF 2 nd Respondent 3 rd Respondent 4 th Respondent JUDGMENT

2 2 NHLANGULELA J: [1] The applicant seeks an interdictory relief prohibiting the first respondent from evicting him from Erf No. 1 Cofimvaba on the basis that the respondent has no right to do so. He seeks further ancillary relief that the first respondent be directed to reconstruct his stock kraals and dwelling structures which it destroyed when evicting him. A further relief that the first respondent be held to be in contempt of the court order dated 15 November 2007 was abandoned. The orders sought are intended to give protection to the applicant from being evicted from Erf 1 Cofimvaba without certain conditions having been complied with by the first respondent. [2] What triggered the bringing of the application is an alleged contravention by the first respondent of paragraph 1 of the order by Schoeman J dated 15 November The order reads: 1. The Applicant is to move the dipping tank to the land ear-marked by the Applicant for use by the Respondent on or before 31 December 2007.

3 3 2. If the Applicant had performed in terms of paragraph 1 above, then the Respondent to vacate and demolish the shacks on the premises or property known as Erf 1 Cofimvaba, better known as Central Business Development of Cofimvaba Municipality, together with other occupiers of the premises in the nature of labourers (shepherds) and or lodgers on or before 31 December The Sheriff of this Court is hereby ordered to evict the Respondent together with any other occupiers of the premises in the nature of labourers (shepherds) or lodgers, assisted if need be, by any member of the South African Police Services should the premises not have been vacated by the Respondent on the date set out in paragraph 2 above, if Applicant has performed in terms of 1 above. 4. THAT the Sheriff of this Court be and is hereby ordered, assisted by any member of South African Police Services, to demolish all the shacks relating to the Respondent and his shepherds on the site in question should such shacks not be demolished by the date set out in paragraphs1 & 2 above.

4 4 5. There shall be no order as to costs. [3] Therefore, the issue which this Court has to decide is whether the first respondent did comply with the terms of paragraph 1 of the order as aforementioned. A failure to comply would render the respondent liable to spoliation. [4] The applicant does not seek a substantive relief against the second, third and fourth respondents. [5] The background facts of this matter, which are not disputed, are the following: In the year 2006 the Council of Intsika Yethu Municipality (hereinafter to be referred as the respondent ) took a resolution to develop a portion of Erf 1, Cofimvaba which was occupied by many stock farmers including the applicant. That portion lies at the boarder area of Cofimvaba town extending to the river bank. It was the intention of the respondent to extend the central business district right down to the boarder area. To do this it was required to relocate the farmers together with their stock kraals and cattle to a new area which is situated on the other side of the river extending to the foot of the mountain. There is a dipping tank situated in

5 5 the boarder area, very close to the stock kraals and dwelling structures. The stock farmers were informed about the resolution at several public meetings which were held in a community hall. Although an agreement was reached in principle that the stock farmers would be relocated to the earmarked site the stock farmers raised a concern that financial assistance would be required to rebuild the stock kraals and dwelling structures at the earmarked site before vacating the boarder area. They expected the respondent to make funds available to them for that purpose. On the other hand the respondent lambasted the request and pledged impecuniosity. When a solution could not be found the respondent resorted to bringing an application for the eviction of the stock farmers including the applicant. Such action resulted in the order dated 15 November 2007 being granted against the stock farmers. [6] In early December 2007 the court order in question was discussed in a Council meeting of the respondent with a view of implementing a wholesale relocation of the stock farmers. At this meeting the respondent was confronted with a new issue of providing a dipping tank to the farmers. Since the existing dipping tank was not in use due to vandalism a resolution was taken that it should be renovated in July 2008 when an

6 6 appropriate budget would have been passed. The renovations were carried out accordingly. In the meantime the stock farmers remained in occupation of the boarder area. On 03 September 2008 the respondent instructed its attorneys to issue a warrant of execution of the order of 15 November 2007 through the third respondent. Then on 23 October 2008 it proceeded to the stock kraals and dwelling structures of the applicant where it took out the contents of the dwelling structures and destroyed the dwelling structures together with the stock kraals. It was assisted by the fourth respondent to do so. The applicant felt aggrieved by the conduct of the respondent, hence the decision to bring the present application. [7] In terms of the order of Dawood J dated 18 August 2009 some factual issues were referred to trial for hearing of oral evidence on the basis either that they lacked clarity and/or were disputed. Such issues arose from a denial by the respondent that paragraph 1 of the order of 15 November 2007 enjoined it to move the dipping tank to the land earmarked by the applicant for use by the respondent on or before 31 December The respondent averred that what the court required it to do was to renovate the existing dipping tank in the boarder area for it to be available for use by the applicant and other stock farmers permanently

7 7 despite the fact that they have been relocated to the earmarked land. It is common cause that the resolution of that issue calls for the interpretation of the order in question. To that end oral evidence was led; which I proceed to deal with in the paragraphs that follow: [8] The Court is indebted to the expert evidence given by Mr Lumko Makonza of the firm Lumko Makonza Engineers, East London. The thrust of his evidence was that it would be impracticable for the farmers and their cattle to use the existing dipping tank. He gave two reasons for such statement. Firstly, he stated that the short route from the earmarked area to the dipping tank is 150 metres. But that route was a dangerous proposition since there were steep and vertical changes (2,5 3 metres high) associated with soil erosion along the river banks; and the ground conditions, being a sandy soil, contribute to inaccessibility of the dipping tank. Secondly, the alternative route is access through an existing concrete bridge joining the old R61 road. On this route it would take farmers a distance of about 3 metres to reach the dipping tank and back to the earmarked land. The applicant testified that the time spent to cover such distance would vary according to weather conditions and unpredictable behaviour of the cattle. Mr Makonza concluded that since the bridge is on the R61 road this route

8 8 might present all sorts of public hazards to farmers and cattle due to vehicular traffic and movement of people crossing the bridge. Briefly stated, the opinion expressed by Mr Makonza is that the location of the dipping tank in Erf 1 Cofimvaba was not favourable. On this point the upshot of the evidence adduced by the applicant is that it is desirable for the dipping tank to be relocated to the earmarked land together with the cattle. [9] Mr Zamuxolo Shasha, the Municipal Manager who testified on behalf of the respondent, stated that the respondent had no obligation to relocate the dipping tank as renovating the existing dipping was sufficient compliance with the order of 15 November According to him financial considerations were not the reason for failing to relocate the dipping tank but it is that the tank was conveniently located and satisfied the dipping requirements of the farmers and their cattle. However, when cross examined he conceded that the respondent had not yet moved the dipping tank from Erf 1 to the earmarked land; and there was no plan for that to be done because the respondent has already provided the farmers with a dipping tank.

9 9 [10] In interpreting the order dated 15 November 2007 I must have regard to a useful passage in Herbstein & Van Winsen : The Civil Practice Of The High Courts Of South Africa, Vol 1 at page 936. That passage was brought to the attention of the Court by Mr Gagela. It reads: The basic rules for interpreting the judgment or order of a court are no different from those applicable to the construction of documents. The court s intention has to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules. Where the court order records an agreement of settlement, the basic principles of the interpretation of contracts need also to be applied to ascertain the meaning of the agreement. The judgment or order and the court s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify or supplement it. But if any uncertainty in meaning emerges, the extrinsic circumstances surrounding or leading up to the court s grant of the judgment or order may be investigated and taken into account in order to clarify it. The rule that no evidence is admissible to contradict, amend or add to an order which is clear and

10 10 unambiguous is a rule of law, not merely a rule of evidence that can be waived by the parties. Both counsel referred to case law which the above authors used to substantiate their statements regarding the rules of interpretation of a document (including orders). These cases are, inter alia, Firestone South Africa (Pty) Ltd v Genticuro A.G (4) SA 298 (A) at 304; Coopers & Lybrand And Another NNO v Senwens Ltd 2007 (3) SA 29 (SCA) at 32-33; and Administrator, Cape, And Another v Ntshwaqela And Others 1990 (1) SA 705 (A) at 715. [11] I raised a question during arguments whether the principles of interpreting a contract, as applied in the cases mentioned in the preceding paragraph, do apply in interpreting an order of court. I did not get a straight answer to that question because it is just an order, not a settlement agreement or judgment which is accompanied by reasons for it, that must be interpreted in this case. However, after reading the case of Ntshwaqela, supra, I came to the conclusion that the principles governing interpretation of a document, be it a contract or order/judgment of a court, are the same. The Appellate Division, now called the Supreme Court of Appeal, said the following at 715F-H:

11 11 In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) Trollip JA made some general observations about the rules for interpreting a Court s judgment or order. He said (at 304D-H) that the basic principles applicable to the construction of documents also apply to the construction of a Court s judgment or order: the Court s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules. As in the case of any document, the judgment or order and the Court s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, in such a case not even the Court that gave the judgment or order can be asked to state what its subjective intention was in giving it. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the Court s granting the judgment or order may be investigated and regarded in order to clarify it. [12] The hearing of oral evidence provided such extrinsic evidence. It is common cause from the oral evidence adduced that the place from which

12 12 the dipping tank was to be moved is Erf 1, Cofimvaba; and that the dipping tank would be moved across the river to the earmarked land to which the farmers, stock kraals and cattle were being relocated. In my view the distinction between Erf 1 and the earmarked land was never in serious dispute because the applicant had relied on the order of 15 November 2007 on which it is stated that the dipping tank is to be moved to the earmarked land. The earmarked land in question was well known to the applicant before this application was brought despite his averment in the affidavits that the land had not yet been identified. This becomes evident upon perusal of paragraph 6 of the respondent s replying affidavit in case No. 838/07 (where it is cited as the applicant). The paragraph in question reads: I admit that a letter was written by the applicant for Respondent to relocate their kraals together with their shacks, but deny that the place for relocation is unidentified. The place was identified and the Respondent is aware of same is across the river at the bottom of the mountain where cattle graze and officials of the Applicant are ready to show him if he wishes. (The underlining is mine)

13 13 [13] In the light of the evidence as set out above Mr Gagela submitted, correctly so, that the term: to move does not mean to renovate or to make available or to provide. It simply means that the farmers should stop using the existing dipping tank when a new dipping tank has been built for them in the earmarked land. In essence the farmers, stock kraals and cattle are being recccclocated together with the dipping tank. This interpretation is consistent with the resolution taken by the respondent to extend the development of the central business district to the area that is occupied by the stock farmers. In my view it was not the intention of the order of the court that the existing dipping tank should be renovated. That interpretation has been made clear by the extrinsic evidence of surrounding circumstances that led to the granting of paragraph 1 of the order dated 15 November [14] In all the circumstances of this case the version of the respondent that it has complied with the order of Schoeman J dated 15 November 2007 is wrong. It follows, therefore, that it was not entitled to evict the applicant from Erf 1. Similarly, the destruction of the stock kraals and dwelling structures of the applicant was unlawful. In the event, the respondent is liable to spoliation.

14 14 [15] The applicant does not only seek restoration of his right of possession of the site from which he was evicted. He also seeks an order that the respondent be directed to reconstruct the structures that it destroyed in the course of spoliation. The court in Ierse Trog CC v Sulra Trading CC And Another 1997 (4) SA 131 (C ) held that it is competent for a court to grant spoliation order requiring rebuilding of property destroyed by the spoliator. This principle of law has been stated in Ntshwaqela, supra, at 717E-F in the following terms: The accepted principle is that the mandament van spolie envisages not only the restitution of possession but also the performance of acts, such as repairs and rebuilding, which are necessary for the restoration of the status quo ante. There is therefore no legal basis to refuse the relief that the applicant s stock kraals and dwelling structures should be restored by the respondent. [16] The issue of costs should be decided in favour of the applicant as successful party.

15 15 [17] In the result the following order shall issue: 1. That execution of the warrant of execution dated 03 September 2008 pursuant to a court order of 15 th November 2007 be and is hereby declared unlawful. 2. That eviction of applicant pursuant to the execution of the warrant aforesaid be and is hereby declared unlawful. 3. That the first respondent be and is hereby ordered to restore possession to the applicant of the property which is described as Erf 1 Cofimvaba, better known as Central Business Development of Cofimvaba Municipality. 4. The first respondent be and is hereby ordered to reconstruct on the said Erf 1, Cofimvaba the stock kraals and dwelling structures of the applicant. 5. The first respondent to pay the costs of the application.

16 16 Z.M. NHLANGULELA JUDGE OF THE HIGH COURT Appearing for the applicant : Adv. F.S. Gagela Instructed by : B. Makade Inc MTHATHA Appearing for the 1 st respondent : Adv. J.R. Koekemoer Instructed by : Zepe & Co, Queenstown Locally represented by: V.V. Msindo & Associates MTHATHA

17 17