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1 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG ( l) REPORT ABLE: NO (2J of INTEREST ro OTHER JUDG 7 ~ Yeo (3) REVISED: ~ /.' :2S J.<;11'fl. ~ tl-. DATE SIG NATURE Case no: 2016/16069 In the matter between: MADULLAMMOHO HOUSING ASSOCIATION (PTY) LTD (Association Inc under s 21) Registration Number: 2004/012568/08 Applicant and MBAMBO, A YANDA and 56 OTHERS as refrected 1st to 5yth Respondents on Annexure "A" to the Notice of Motion In re: MADULLAMMOHO HOUSING ASSOC IA Tl ON (PTY) LTD (Association Inc under s 21) Registration Number: 2004/012568/08 Applicant and 1

2 MBAMBO, AYANDA and 56 OTHERS as reflected 1st to 57th Respondents on Annexure "A" to the Notice of Motion THE MEC FOR HUMAN SETTLEMENTS & LOCAL GOVERNMENT, GAUTENG PROVINCE Interested Party JUDGMENT KATHREE-SETILOANE J: [1] This is an urgent application brought by Madullammoho Housing Association ("the applicant") in terms of s 18(1) and 18(3) of the Superior Courts Act 10 of 2013 (the Act) for an interlocutory order that the order of Fisher AJ under case number 2016/16069 is declared to be effective and enforceable pending finalisation of an application for leave to appeal to the Supreme Court of Appeal, or if leave is granted pending the finalisation of that appeal or any subsequent appeal. [2] Application for leave to appeal was refused by Fisher AJ on 23 May The Respondents have now made application to the SCA for leave to appeal. [3] The applicant is a non-profit company. It is the owner of a social housing complex known as Jabulani Views (the complex) situated between Roodepoort and Soweto. The complex comprises 300 units and is in very good condition. The Respondents occupied the complex pursuant to a lease agreement that was subsequently terminated. They lodged a complaint regarding the cost of services to the Gauteng Rental Housing Tribunal ("RHT"). It found in favour of the Applicant, and ordered the Respondents to make payment to the Applicant. The Respondents including approximately 36 others embarked on a rental boycott. (4] As a result of violent conduct on the part of the Respondents and threats against the Applicant, its officials and tenants in good standing including threats to burn down the units and physically harm the Applicant's employees, the Applicant sought an order from this court in terms of s 5 of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998(the PIE Act). An order was 2

3 granted by Keightley J on 20 April 2016 (the Keightley order) giving the Respondents until 25 April to vacate the property. Inexplicably, the MEC for Human Settlements then intervened and launched an application on 25 April 2016 seeking suspension of execution of the Keightley order. The matter came before Twala AJ who made an order, on 26 April 2016, suspending the execution of the Keightley order until 10 May 2016, and ordering the City of Johannesburg Metropolitan Municipality (the City): 'to immediately determine which of the fifth to further Respondents... will be rendered rendered homeless by the eviction order granted by [Keightley J] and thereafter provide such homeless persons with emergency accommodation.' [5] On 11 May 2016, the City's attorney deposed to an affidavit in which she stated that she only received the order from the MEC's attorneys on 5 May However on 29 April 2016 and prior to receipt of the order she requested the MEC's attorneys to provide her with the identity numbers and contact details of the 'evictees' for purposes of undertaking the assessment. When she did not receive a response, she sent a further on 2 May 2016 requesting the said information. On 3 May she received a response indicating that a representative of the Respondents could assist in providing the requisite information. On 4 May 2016, she again requested the information, mentioning in the letter that she only had until 10 May 2016 within which to undertake the assessment. She received the names and identity numbers of some 55 evictees from the Respondents' representative on 6 May The MEC's attorneys requested a meeting with her and this meeting was held on 6 May By this stage the MEC's attorneys also had instructions to represent the Respondents. The meeting concluded with the Respondents' attorney undertaking to discuss the matter with its clients. On 10 May 2016, it wrote to the City's attorney seeking a follow up on the options discussed at the meeting on 6 May 2016 and requesting a progress report. The City's attorney advised that she was considering advising the City to appoint a mediator to resolve the dispute between the parties in terms of s 7 of the PIE Act, and had requested a meeting with it for this purpose. The City's attorney forwarded the list of the evictees, which she only received at 14h30 on 6 May 2016, to the responsible officials of the City on 9 May The Citys' attorney concluded the affidavit by stating that in view of the lateness of the information provided to City, it would require at least an additional 3

4 fourteen days within which to properly undertake an assessment of the evictees and make a determination pursuant to the court order of Twala AJ. Twala AJ's order had, however, lapsed by this stage and had no force or effect. [6] The day after the lapse of the Twala AJ order, the Applicant instructed the Sheriff to give effect to the Keightley J order, which it duly did on the same day. Once the Sheriff left the complex, the Respondents overpowered the Applicant's guards and forced their way back into the units, denying the Applicant access to the complex. On 12 May 2016, the Applicant launched spoliation proceedings under case number 2016/ The MEC also launched an application seeking to interdict the Applicant from evicting the Respondents. This application was dismissed by Makume J. He, however, postponed the spoliation application to the urgent court roll of the next week in order to enable the Respondents to file answering papers. The matter came before Fisher AJ who granted the spoliation relief sought by the Applicants and ordered the Respondents to vacate the complex by no later than 23 May 2016 or show cause why they should not be held in contempt of the Keightly J order on 24 May On that day, the Respondent applied for leave to appeal the Fisher AJ order and it was refused on Monday, 23 May [7] The Applicant has made every effort since the refusal of the application for leave to appeal to execute the spoliation order, but the Public Order Police (POP) has not been available to assist the Sheriff to do so due to public protests and violence in the lead up to the local government elections. The POP was available on 14 June 2016 which coincided with a cold snap, and POP was advised that the MEC would be upset if they conducted an eviction during the cold weather. POP then 4

5 advised that they were available on 21 June 2016 to carry out the eviction, but cancelled due to a flair-up of violence in Pretoria. However, on 17 June 2016, the Respondents applied to the SCA for leave to appeal Fisher AJ's order [8] The Applicant has accordingly launched these proceedings in terms of s 18(3) of the Act to give effect to the spoliation order pending the outcome of the application for leave to appeal to the SCA and if leave is granted, pending the finalisation of that appeal or any subsequent appeal against that order. Section 18 of the Act provides: 'Suspension of decision pending appeal.- (1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. (2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal. (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. (4) If a court orders otherwise, as contemplated in subsection (1)- (i) the court must immediately record its reasons for doing so; (ii) the aggrieved party has an automatic right of appeal to the next highest court; (iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and (iv) such order will be automatically suspended, pending the outcome of such appeal. (5) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal 5

6 or a notice of appeal is lodged with the registrar in terms of the rules.' In lncubeta Holding (Pty) Ltd and another v Ellis and another2014 (3) SA 189 (GJ), Sutherland J described the test for applications of this nature as follows (at para 16): 'It seems to me that there is indeed a new dimension introduced to the test by the provisions of s 18. The test is two-fold. The requirements are: First, whether or not 'exceptional circumstances' exist; and Second, proof on a balance of probabilities by the applicant of - the presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and the absence of irreparable harm to the respondent/loser, who seeks leave to appeal.' In relation to what constitutes exceptional circumstances, Sutherland J stated as follows (at paras 17 to 24): 'What constitutes 'exceptional circumstances' has been addressed by Thring J in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C), where a summation of the meaning of the phrase is given as follows at C: 'What does emerge from an examination of the authorities, however, seems to me to be the following: 1. What is ordinarily contemplated by the words "exceptional circumstances" is something out of the ordinary and of an unusual nature; something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or different; "besonder", "seldsaam", "uitsonderlik", or "in hoe mate ongewoon". 2. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case. 3. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the Court must decide accordingly. 4. Depending on the context in which it is used, the word "exceptional" has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different. 5. Where, in a statute, it is directed that a fixed rule shall be departed 6

7 from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional.' Significantly, although it is accepted in that judgment that what is cognisable as 'exceptional circumstances' may be indefinable and difficult to articulate, the conclusion that such circumstances exist in a given case is not a product of a discretion, but a finding of fact. The context relevant to s 18 of the SC Act is the set of considerations pertinent to a threshold test to deviate from a default position, ie the appeal stays the operation and execution of the order. The realm is that of procedural laws whose policy objectives are to prevent avoidable harm to litigants. The primary rationale for the default position is that finality must await the last court's decision in case the last court decides differently - the reasonable prospect of such an outcome being an essential ingredient of the decision to grant leave in the first place. Where the pending happening is the application for leave itself, the potential outcome in that proceeding, although conceptually distinct from the position after leave is granted, ought for policy reasons to rest on the same footing. Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be 'exceptional' must be derived from the actual predicaments in which the given litigants find themselves. 1 am not of the view that one can be sure that any true novelty has been invented by s 18 by the use of the phrase. Although that phrase may not have been employed in the judgments, conceptually the practice as exemplified by the text of rule 49( 11 }, makes the notion of the putting into operation an order in the face of an appeal process a matter which requires particular ad hoc sanction from a court. It is expressly recognised, therefore, as a deviation from the norm, ie an outcome warranted only 'exceptionally'. [9] I turn now to consider whether exceptional circumstances warranting an order in terms of s 18(3) of the Act are present in this application. No less than four judges of this Court have found this matter to be urgent and Keightley J, in particular, has found the circumstances to warrant an order in s 5 of the PIE Act. Notwithstanding 7

8 .. ' : : the fact that this order was granted more than two months ago, the Respondents have, with the assistance of the MEC, abused the processes of this Court in order to frustrate the Keightley order, and have resorted to self-help by overpowering the Applicant's security guards and forcibly re-occupying units after execution of the order. Then, on 23 May 2016 after Fisher AJ had refused the application for leave to appeal the spoliation order, and when the Sheriff attempted to execute that order, he was prevented from doing so. The return of non-servicece states as follows in this regard: 'That on 23 May 2016 at 15h30 at JABULANI VIEWS FLATS the Sheriff and her Deputies were prevented from counting the vacant and reoccupied units. The numbers on the units have been cancelled with paints thus disabling the Sheriff to carry out the instructions. Furthermore some people wearing IFP T- shirts mobilised the tenants and within minutes there were more than 50 people obstructing the Sheriff. One was calling people with a loudspeaker and also instructing the children to bring the tyres so that they can burn them. The situation was getting tense and the Sheriff decided to leave.' The conduct of the Respondents as described above, in my view, in itself constitutes an exceptional circumstance as envisaged in s 18(2) of the Act. It is common cause that the Respondents continue not to pay rentals to the Applicant. The Applicant's officials and employees are denied access to the complex. [10] The Applicant is a social housing provider and a not for profit company. It is reliant on the collection of rentals to fund its low cost housing projects, and the maintenance and upkeep of the various buildings in these projects. In addition, the Social Housing Regulatory Authority (SHRA) requires a minimum of a 95% collection rate in respect of a social housing project. The Applicant's failure to meet this collection rate will impact upon its standing with the SHRA, and its ability to obtain further funding for other housing projects. In January, February and March 2015 the arrear rentals owing to the Applicant in respect of Jabulani Views (the complex in question) were within acceptable norms. By April 2015 (subsequent to the lodgement of complaints with the Rental Housing Tribunal) they escalated markedly, such that as at February 2016 it comprised ± 85% of the total arrears owing on all the Applicant's housing projects. The unchallenged evidence of the Applicant!s this: (a) It is unable to bear arrears of this scale and notwithstanding the rental 8

9 boycott, it is forced to continue servicing, maintaining, cleaning and securing the complex in order to prevent the remaining 216 tenants from joining the rental boycott. In order to achieve this, it has become necessary to crosssubsidise the complex from other projects, which is placing the Applicant's entire portfolio under pressure. (b) The Applicant manages 1797 units, with a further substantial number in the process of construction. If the rental boycott continues for much longer, and the Respondents are seen to be successful (and joined by other tenants in good standing), then the Jabulani View project of the Applicant has the potential of collapsing in its entirety, thus placing its entire housing portfolio under threat. (c) That Respondents' objective to force the Applicant into liquidation or at the very least to abandon the Jabulani View project is a very real concern of the Applicant. This would leave the Respondents (or their committee) in charge and in a position to collect rentals from the occupiers. If this should happen, the project will decline rapidly as hijackers do not maintain hijacked buildings. Since a complex of the size and scale of Jabulani Views requires regular maintenance in order to remain qualitatively intact, the Applicant cannot risk its deterioration. (d) The Respondents have threatened to burn down the project and the unit of any person who may be evicted. They have threatened that the Applicant's officials are not safe and demanded that the Applicant and its officials be removed from the property and be replaced by government management as the government is viewed as a weak manager thus making it possible for them to take control of the complex and collection of rentals. (e) In addition to their refusal to pay rental, the Respondents are also not prepared to pay for utilities such as water and electricity. Tied up in this matter is the dynamic of the politicisation of these issues which is high on the agenda of the upcoming local elections. (f) The ability of the Respondents to co-opt or intimidate the tenants in good standing is of concern to the Applicant. Having failed to achieve their aims through the Rental Housing Tribunal, the Respondents are now resorting to anarchy to achieve their aims of among other things to take control of the 9

10 complex. [11] As described below, many of the fears referred to above have now come to pass, but these allegations are met with bare denials from the Respondents in their answering affidavit. Significantly, in this regard, the complex has become a no-go area for the Applicant and its officials since the forceful spoliation of the units by Respondents. On one occasion, the Applicant's house manager attempted to visit the complex but was surrounded by a mob and was forced to flee for his life. His life is in danger and he refuses to go anywhere near the complex. Ten units in the complex have been sublet by some of the Respondents but since the Applicant is denied access, it cannot verify the units which have been sublet or the identities of the persons to whom they have been sublet. What is more, is that the payment levels for June 2016 have dropped substantially. Eighteen tenants previously in good standing have either joined the rent boycott or have declined to pay rental in protest at the dangerous and unpleasant environment at the complex. These circumstances, in my view, constitute 'exceptional circumstances' which warrant an order in terms of s 18(3) of the Act. Irreparable Harm to the Applicant [12] The rent boycott has resulted in the Applicant suffering substantial losses. This, in turn, has forced it to curtail services in other low cost accommodation which it owns and rents to tenants. This has placed the viability of those complexes at risk and has negatively impacted the Applicant's tenants, who are in good standing with payment of their rentals. There are currently in excess of 1700 families tenanted in the Applicant's various projects. It is likely that this number exceeds 7000 people. These tenants deserve a level of security and comfort in accordance with the rental which they pay to the Applicant each month. The losses suffered by the Applicant as a result of the rental boycotts and the associated losses arising from the payment of legal fees, sheriff's fees and security fees will have a direct impact on the level of the maintenance, cleaning and security services which the Applicant is able to provide to its tenants. The Applicant has already lost more than R1.5 million in unpaid rentals. It has already spent approximately R500, rn executing the eviction order of Keightley J on 12 May It anticipates spending at least the same amount on 10

11 Sheriff's fees, security costs and legal fees in executing the order of Fisher AJ. There is no prospect that these amounts will be recovered from the Respondents and the harm to the Applicant is, accordingly, irreparable. The Applicant states in its answering affidavit that: '[It] is literally at its wits end as to how it is going to afford everything that needs to be done to vindicate its own property. The Applicant is not a commercial venture: its funds are very tight and it has to use them cautiously. There is every chance that the complex may be lost in its entirety to the Applicant, which would be a travesty of justice; The Applicant is unlikely to survive the boycott for longer than another month-end cycle without abandoning the complex. I believe that this may be the strategy of the Respondents.' Needless to say, the Respondents make a bare denial and puts the Applicant to the proof thereof. This compels me to the conclusion that unless the court makes an order declaring the spoliation order of Fisher AJ to be effective and enforceable pending finalisation of the application for leave to appeal to the SCA, and if leave is granted, pending the finalisation of that appeal or any subsequent appeal, the Applicant will, indeed, suffer irreparable harm. Irreparable Harm to the Respondents [13) The Respondents allege that they will be rendered homeless if the order of Fisher AJ is declared executable pending the outcome of the application for leave to appeal to the SCA, or if leave to appeal is granted by the SCA, pending the finalisation of that appeal or any subsequent appeal. The deponent to the Respondents answering affidavit alleges that Jabulani Views is her primary residence and she has no other accommodation at present. She says that she resides there because financially she would not be able to afford any other accommodation, and that the Respondents are very poor and they cannot afford any other accommodation as well. She concedes that the accommodation is affordable and enables her to live in decent conditions with her family and consistently with the constitutional standard of human dignity. This notwithstanding, the Respondents admit that they are engaged in a rental boycott because pursuant to a ruling of the Rental Housing Tribunal the Applicant is owing them money. Although they deny the Applicant's allegation that the Rental Housing Tribunal v-.1as made in its favour, the Respondents do not attach the ruling to demonstrate this. They nonetheless proceed 11

12 to allege that the rental boycott should have been addressed by the Applicant through the normal procedures of the PIE Act and nots 5 thereof. Crucially, what is starkly absent from their answering affidavit is that nowhere do the Respondents state that they cannot afford to pay for alternative accommodation. The Applicants allege, in this regard, that: 'The Respondents however have built up a war chest of substantially more than R700, in unpaid rental and services, which they can easily utilise to pay for accommodation elsewhere. Because of the careful measurement the Applicant has to do with respect to compliance of its obligations in terms of social housing, all the Respondents have been very closely assessed as being able to afford the rental. Accordingly, and despite the protestations of the Respondents they will not be homeless upon eviction as they have the measured ability to afford rental. The harm, if evicted, will accordingly not be irreparable and will amount to no more than convenience.' [14] Other than a bare denial, the Respondents fail to deal issuably with these allegations. They are, in my view, authors of their plight. They have collectively elected to withhold their rental by embarking on a rental boycott. They admit this much. They also concede that they are able to afford the payment of rental, yet they simply fail to demonstrate what they have done with the rental monies which they have withheld from the Applicant; what efforts they have made to secure alternative accommodation; and why they are unable to afford such accommodation? [15] The Respondent's conduct is nothing short of contemptuous. First they failed to comply with a ruling of the Rental Housing Tribunal to make certain service payments to the Applicant. They, thereafter, acted in contempt of two court orders. Notwithstanding the fact that the Keightley order was granted more than two months ago, the Respondents took the law into their own hands by forcibly reinvading the units after the Sheriff executed the eviction order. Then, with the involvement of the MEC, they abused the process of this Court to frustrate the Keightley order by amongst other things persuading Twala AJ to suspend the order in order for the City to carry out a 'homelessness' assessment of the evictees, but then dragged their feet in providing the City with the requested information to enable it to carrying out the assessment within the time period provided in that order. Thereafter, and again with the assistance of the MEC, they sought to interdict the Applicants from executing the 12

13 ..... ~.... ' Keightley J order, but failed. I accordingly consider the Respondents' purported homelessness to be a consequence of their own conduct. In the event, I find that the Applicant has succeeded in proving that the Respondents will not suffer irreparable harm if the court makes an order declaring the order of Fisher AJ to be effective and enforceable pending finalisation of the application for leave to appeal to the SCA, and if leave is granted, pending the finalisation of that appeal or any subsequent appeal. [16] In the result, I make the following order: 1. The order of Fisher AJ under case number 2016/16069 is declared to be effective and enforceable pending finalisation of the application for leave to appeal to the Supreme Court of Appeal, and if leave is granted by the Supreme Court of Appeal, pending the finalisation of that appeal or any subsequent appeal. /) 2. The Respondents are ordered to pay the costs of this application jointly and :( severally, the one paying the other to be absolved. / /, I./J. -- /~-- J ~~tw-- ~LoANE JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG Counsel for the applicant: Advocate C Van der Merwe Instructed by: Vermaak & Partners For the first and second respondents: Advocate IS Mvobi Instructed by: Nompumza Attorneys Date of hearing: 24 Jui1e 20~ 6 Date of Judgement: 28 June

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