John Hlophe’s meddling in eviction matter slammed by appeal court

The Supreme Court of Appeal has slammed former judge president John Hlophe for meddling in a straightforward eviction case. Photo: Ben Bezuidenhout via Wikimedia (CC BY-SA 4.0)

• The Supreme Court of Appeal (SCA) has slammed John Hlophe for intervening in a straightforward eviction case when he had been the judge president in the Western Cape.
• The SCA has found that Hlophe inappropriately and unnecessarily handpicked two judges to hear the case and had issued extensive directives, resulting in a flawed judgment.
• The court said the judgment in 2019 failed to recognise basic legal principles and had resulted in the owners paying enormous bills for services for the unlawful occupants.

John Hlophe has come under fire from the Supreme Court of Appeal for meddling in what should have been a straightforward eviction matter. This was before he was impeached and still the judge president in the Western Cape.

The application initially failed when it was heard by two Western Cape High Court judges handpicked by Hlophe, who then gave them extensive directives on how the case should be handled. This was a “matter of some surprise”, the judges, headed by Justice Nathan Ponnan, said in their ruling on Tuesday.

“Why it failed, induces some measure of alarm and cannot but provoke strong feelings of judicial disquiet,” they said, noting that the matter involved a “commonplace application by an owner for the evictions of certain unlawful occupiers from a property owned by it”.

The owner of the property in Kraaifontein, Cape Town, is the Mzamomhle Foundation Trust. Trustee Robert Paul Serne, in 2006, on a Habitat for Humanity tour to South Africa met Margaret Ngaleka, who was running an unregistered daycare centre. He and others assisted her fixing the roof and then purchased containers to house the centre.

In 2010, the non-profit trust was established to help with poverty relief, welfare and self-help projects.

In 2011, the City of Cape Town offered to sell a vacant stand to Ngaleka, but because she was unable to pay the nominal purchase price, she sought assistance from the trust, which paid the City R33,000.

The property was then transferred into the name of Mzamomhle Educare. The trust then agreed to construct an early childhood development centre (ECDC) on the property at a cost of more than R2-million. Ngaleka agreed to donate the property to the trust and the trust, in turn, concluded a lease agreement with her.

Ngaleka died in 2016. Her daughter and granddaughter took over the property, claiming to have inherited it from her. They were not qualified to run the centre and Mzamomhle Educare soon fell into rental arrears and did not pay municipal rates or other charges on time.

Attempts at resolving the issues came to nought. Eventually the trust instituted eviction proceedings.

Ngaleka’s daughter, Bongeka Mqolombeni, opposed the application. She said her mother was poorly educated and not proficient in English. She had not understood the import of the documents she signed. Her mother, she said, had not known that she had transferred the property to the trust and thought she was paying towards an insurance premium and not rental.

Hlophe meddles

The SCA judges said in November 2019 “in circumstances that are not apparent from the record”, Hlophe issued a directive that two judges, Babalwe Mantame and Lister Nuku, must hear the matter, and issued a 14-point directive as to what they must ask and consider.

“It is unclear why [Hlophe] saw fit to issue practice directives in this matter or how it came about that he did so. Given the nature of civil litigation in our adversarial system, it is for the parties, either in pleadings or affidavits, to set out and define the nature of their dispute. Not only did the practice directive range beyond the issues identified by the parties, but it rested in several fundamental respects, on a misconception as the essential nature of the application and the relief that was sought,” the SCA said.

“The judgment [refusing the eviction] was largely tailored to the issues identified in the practice directive rather than those defined in the pleadings.”

The SCA said there was simply no reason for the matter to have been heard by two judges.

“Aside from the undesirability in handpicking judges for matters such as this, the appointment of two judges to hear a straightforward eviction application meant that any appeal would have to be heard by this court. The consequence is that a matter such as this, which is not truly deserving of the attention of this court, adds to our already congested court roll and delays the finalisation of other matters that are more deserving.”

They said neither Hlophe nor the two judges hearing the matter had recognised that the answering affidavit was replete with hearsay and had not properly considered whether that evidence was even credible.

Even if Mqolombeni’s evidence had been properly scrutinised, she had failed hopelessly to raise any defence to the eviction.

The trust had attached a deed of transfer as well as a title deed reflecting it as the registered owner. Ngaleka had signed a lease agreement and she and the trust had complied with its terms up until her death.

“These facts bely the contention that she was fraudulently misled into donating the property or had any misgivings about its subsequent transfer to the trust,” the SCA judges said.

All the trust had to do was to prove that it was the owner of the property.

“The respondents cannot content themselves with a denial of the existence of the lease agreement and yet simply remain in occupation of the property in perpetuity without any lawful basis.

“No doubt, taking its cue from the Judge’s President’s directives, the High Court considered factors that would ordinarily be relevant to an application under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE). But the property is not a residential property so PIE does not find application.

“The High Court seemed concerned that the children who attended the ECDC would be evicted. That concern was misplaced. The trust stated that it was intent on continuing the educare facility on the property. Moreover, the eviction of the children was never sought by the trust.”

The SCA judges said the order of the High Court had placed the trust into an intolerable situation.

“It has, without proper justification, not only been deprived of the use of its property for several years, but has also been unable to fulfil an important condition registered against the title of the property, namely the operation of an ECDC. That notwithstanding, it continues to face enormous bills for utilities consumed by the respondents.”

The SCA judges upheld the appeal, with costs, and ordered the respondents to vacate the property within five days. They also granted an interdict against the respondents from re-occupation or interfering with the trust’s use and enjoyment of the property.

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