Louis Case Reports

EVICTION – Student residence

Stay at South Point Properties v Mqulwana [2023] ZASCA 108

Applicability of PIE – Higher education institution – Residence not considered a home – Accommodation is of limited duration, for a specific purpose, time-bound by the academic year and subject to rotation – PIE not applicable to unlawful occupation by students – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Facts: Stay at South Point (appellant) leased a student residence to the Cape Peninsula University of Technology (CPUT). The respondents are all students who were studying at CPUT. They refused to vacate when their academic years were completed. The appellant summoned private security guards to remove them forcibly, but respondents resisted so the appellant approached the High Court for an eviction order.

Appeal: Against the order of the High Court discharging a rule nisi and dismissing the appellant’s application to evict the respondents.

Discussion: The contention by the respondents that the appellant was non-suited on the basis that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) were applicable and the appellant failed to bring the eviction proceedings in terms of PIE; that PIE gives effect to the constitutional protections against the peril of homelessness; the meaning of a home; that the students have homes other than the residence; that the provision of student accommodation is for a finite period of time; and the provision of student accommodation within the context of the Higher Education Act 101 of 1997.

Findings: Student accommodation is not a home. It is a residence, of limited duration, for a specific purpose, that is time-bound by the academic year, and that is, for important reasons, subject to rotation. PIE did not apply to the unlawful occupation by the respondents of their student accommodation. The appellant was entitled to secure their eviction.

Order: The appeal is upheld with no order as to costs. The order of the High Court is replaced with one declaring that PIE did not apply to the unlawful occupation by the respondents of their student accommodation and the applicant was entitled to secure their eviction. Each party to pay its own costs.

MALI AJA (SALDULKER JA, ZONDI JA, MABINDLA-BOQWANA JA and UNTERHALTER AJA concurring)

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CIVIL PROCEDURE – Ex parte order

Mazetti Management Services v amaBhungane [2023] 2023-050131 (GJ)

Abuse of process of court – Urgent ex parte order obtained against journalists in camera – Journalist who has received information in confidence is justified in refusing to perform an act which would unmask the source, unless the refusal would be inconsistent with the public interest – An interdict to restrain or forbid an intended publication by a journalist must be brought on appropriate notice to the journalist – Order set aside – Uniform Rule 6(12)(c).

Facts: Mazetti Management (applicants) obtained an order ex parte and in camera in the urgent motion court. The relief obtained was an order that digital documentation allegedly stolen from the applicants by an ex-employee and allegedly in the possession of the respondents (an investigative journalistic enterprise, and its individual journalists) be returned within 48 hours and an interdict forbidding publication of anything that was based on the documentation or in any other way using the documentation.

Application: Pursuant to Uniform Rule 6(12)(c) whereby a person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.

Discussion: That a key dimension of investigative journalism is receiving information from sources that wish to remain anonymous; the function of the courts in holding an appropriate balance between the rights of privacy and confidentiality in private matters and the public interest in a free flow of news and especially news exposing skulduggery; an evaluation of the initial ex parte application and that it was a most egregious abuse of the process of court; that the order granted should never have been sought ex parte, still less granted; and that there was not a smidgeon of justification for it being brought ex parte.

Findings: Throughout a period of three months of verbal jousting including between the attorneys representing the parties, the points of contestation between the parties were articulated repeatedly. The resistance to disgorgement of information on the ground of protecting a source is functional and not optional to the work-process of investigative journalism. A South African court shall not shut the mouth of the media unless the fact-specific circumstances convincingly demonstrate that the public interest is not served by such publication.

On the law: As a general principle, a journalist who has received information in confidence is justified in refusing to perform an act which would unmask the source, unless the refusal would be inconsistent with the public interest. As a general principle, an interdict to restrain or forbid an intended publication by a journalist must be brought on appropriate notice to the journalist.

On the facts: The ex parte application was an abuse of the process of court. The attempt in the proceedings in terms of Rule 6(12)(c) to claim fresh relief was an abuse of the process of the court. No cogent case has been made out to compel the respondents to disgorge the data files which are the subject matter of the application. No cogent case has been made out to interdict the respondents from publishing articles which refer to the data files provided to them.

Order: The order granted to the applicants on 1 June 2023 and amended on 3 June 2023 is set aside in its entirety. The applicants shall bear the costs of the first to fourth respondents on the attorney and client scale including the costs of two counsel. The applicants shall bear the costs of the amici on the party and party scale including, where employed, the costs of two counsel.

SUTHERLAND DJP

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MUNICIPALITY – Electricity – Failure to pay Eskom

Eskom Holdings v Emfuleni Municipality [2023] ZAGPPHC 497

Duties in terms of Constitution – To serves interests of citizens by providing access to affordable electricity – In breach of its obligations in terms of Electricity Regulation Act 4 of 2006 and its licence conditions – NERSA failing to exercise its mandate and municipality’s debt increasing – NERSA and Emfuleni have acted in contempt of earlier order – Conduct unconstitutional and unlawful – Just and equitable relief that Eskom undertakes the reticulation of electricity in Emfuleni.

Facts: Eskom generates and supplies electricity to Emfuleni which in turn sells the electricity to customers within its municipal area at marked-up tariffs to raise revenue to fund operations. The situation has manifested itself in a long-running dispute between Eskom and numerous municipalities such as Emfuleni Municipality, which is alleged not to be paying Eskom for the bulk electricity it supplies to the municipality.

Application: The relief sought is for the municipality and its municipal manager to be declared in contempt of the full court’s order of November 2018. Applicants ask for the court to find Emfuleni in contempt, terminate its agreement with Emfuleni, mandate NERSA to investigate (and impose remedial measures) and permit the end-users in Emfuleni to pay Eskom directly, with Eskom then paying Emfuleni’s portion back to it.

Discussion: How the judicial system becomes clogged up with cases which in terms of the Constitution ought to be resolved by state organs; that the full court judgment and order were underpinned by a finding that Emfuleni had failed to comply with Electricity Supply Agreement and its statutory obligations in terms of the Electricity Regulation Act 4 of 2006 (ERA) and its electricity licence; that significantly Emfuleni refused to comply with the order of the full court; that Emfuleni’s failure to service its debt properly has contributed to a cash shortfall in Eskom’s operational costs; the obligation of local government to supply electricity; and the provisions of the licence issued by NERSA to Emfuleni.

Findings: It is regrettable that NERSA has dismally failed to exercise its mandate. Emfuleni owes Eskom more than R3,5 billion for electricity and that the debt continues to spiral. Emfuleni contravened and remains in breach of its obligations in terms of ERA and its licence conditions. The only logical conclusion to be drawn is that NERSA intentionally refuses or fails to act against Emfuleni to address its failures to comply with ERA and its licence conditions. Both NERSA and Emfuleni have acted in contempt of the order and their conduct is both unconstitutional and unlawful. Emfuleni has acted in a way that undermines the ability of Eskom to fulfil its constitutional obligations of generating and supplying electricity. 

* Note para [98] about the effect of a municipality failing or refusing to cooperate with Eskom to ensure load-shedding being a potential collapse of the entire national grid.

Order: Emfuleni and the municipal manager are declared to be in contempt of the full court order of November 2018. The failures by NERSA are are declared to be unlawful and unconstitutional. Emfuleni must appoint Eskom as its service delivery agent and provider to perform all functions and provide all services relating to Emfuleni’s electricity business on behalf of Emfuleni. Directions are given for the listed customers to discharge the debts which they incur to Emfuleni in respect of the ongoing supply of electricity by making payment directly to Eskom.

BAQWA J, MALINDI J and DE VOS AJ

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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