24 May 2023
Social housing company Communicare has secured a court order setting aside a decision by a “biased” Cape Town acting magistrate who refused to grant an eviction order in its favour.
In August last year, acting magistrate Venice Burgins took three hours to read out her 68-page order, on what many would have considered a straightforward eviction application.
What Communicare did not know at that time, was that Burgins was an anti-eviction activist, with a history of campaigning against the social housing company, and that she ran a social media campaign under the name of “United Action Group”.
She also participated in a social media campaign #CommunicareMustFall.
When this emerged after Communicare failed in its court bid to evict “tenants” who had not paid any rent — and had no contract — the company turned to the Western Cape High Court to have Burgins’ ruling reviewed and set aside.
Judge Ashley Binns-Ward, with Judge Nobahle Mangcu-Lockwood concurring, has now ordered that the case be heard afresh, before a different magistrate.
In his judgment, Judge Binns-Ward spells out the history of the international “Bangalore Principles of Judicial Conduct” which identify the core values of impartiality, integrity and independence for judges. These were used to flesh out South Africa’s codes of conduct.
In its review application, Communicare said Burgins’ ruling must be set aside, citing the Superior Courts Act which states that bias, malice and corruption on the part of a presiding officer would result in a gross irregularity in the proceedings.
Judge Binns-Ward said some days after the dismissal of the eviction application, a parcel had been delivered anonymously to Communicare’s offices. It contained various documents which led the company to believe that Burgins had been biased and should have recused herself. The documents showed that Burgins, on various occasions before she considered the eviction application, had published, or associated herself with, strongly worded and unambiguously hostile opinions about Communicare on social media.
In one, Burgins said: “The struggle continues and we SHALL expose the Communicare rot of exploiting our people”.
In its papers before the high court, Communicare said Burgins was a member of the social media group United Action Group and had been the administrator since February 2021 and was still the administrator. Posts on the group include some by another member, Colin Arendse, who wrote: “Massive court ruling against Communicare NPC” and stated that in a dramatic, three-hour, 63 page judgment of “seismic proportions”… the court had ruled against the company in an “epic case that is going to shake the foundations of state capture and reverberate through the corridors of justice for centuries to come”.
Arendse described Burgins’ judgment as “technically sound”.
Judge Binns-Ward, citing case law, said there was a strict duty on judicial officers to decline, of their own accord, to hear cases in which they had a personal interest in the outcome or the contested issues.
But Burgins had not opposed the application and had chosen not to explain or qualify the import of the social media posts.
“Individually, and all the more so collectively, they suggest a passionate interest in the activities of the applicant and its relationship with its tenants. They indicate that she holds the view that the applicant’s conduct is oppressive.”
“Her reference to ‘the rot at Communicare’ implies an allegation of corruption.”
Judge Binns-Ward said it was evident that Burgins’s interests and campaigning were closely related to the issue she was called upon to adjudicate.
“It was clear she nurtured a hostile view of the applicant’s management of its housing stock. She was under an ethical and legal duty in the circumstances to have declined to sit in the case.”
The Judge said while the merits of the case were not at issue, it would be “remiss” not to mention that the 63-page judgment “unfortunately contains passages that bear out that she did in fact introduce her personal issues”.
He said Communicare had initially asked for a costs order against Burgins but had retracted that, in light of her abiding by the decision of the court.
“The applicant may, of course, if so advised, pursue her impropriety with the Magistrates Commission.”