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[2017] ZAWCHC 24
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Jacobs v Communicare and Another (A389/2016) [2017] ZAWCHC 24; 2017 (4) SA 412 (WCC) (14 March 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
REPORTABLE
CASE
NO: A 389/2016
In the
matter between:
MR.R.P.JACOBS
Appellant
and
COMMUNICARE, A NON
PROFIT COMPANY
(REG
NO:
1929/001590/08)
First
Respondent
THE
CITY OF CAPE
TOWN
Second
Respondent
JUDGMENT
DELIVERED ON 14 MARCH 2017
GAMBLE, J:
[1]
The first respondent is a non-profit company operating in the Cape
Peninsula which makes available affordable, low-cost housing
to
deserving tenants. In 2002 it rented out a flat in the suburb of
Ruyterwacht to the appellant, his wife and their 2 sons. The
initial
rental payable was R 538,94. Thereafter the rent increased from time
to time in terms of clause 7.4
[1]
of the parties’ lease agreement and by 2015 had risen to R2055
per month.
[2] On 1 July 2014 the
first respondent increased the rental payable by the appellant once
again. Unhappy with the extent of the
increase, the appellant sought
assistance from the Rental Housing Tribunal (‘the Tribunal”).
A hearing was initially
set for 22 January 2015 but was rescheduled
by the Tribunal. During May 2015 the appellant received a letter from
the Tribunal
informing him that the hearing had been set down for
10h00 on 17 June 2016. However during July 2015 the appellant
received a letter
from the Tribunal informing him of a default ruling
which had been made in his absence as he had failed to appear on 17
June 2015. The appellant thereafter made enquiries and
established that the date furnished to him by the Tribunal (17 June
2016)
was erroneous: it should have been 2015.
[3] The appellant then
attempted to persuade the Tribunal to reconsider the matter but it
remained resolute that its ruling was
fixed. There being no appeal
procedure arising from such a ruling, the appellant’s only
remedy was to seek review of the
new rental determination. However,
he did nothing and continued paying the rental which had been in
place immediately before the
Tribunal’s ruling.
[4]
The appellant soon fell further behind with his rent
[2]
and on 8 October 2015 he received a letter demanding arrears in the
sum of R3788.95. He was afforded a week to rectify the breach
and
when he failed to do so, the first respondent cancelled the lease on
21 October 2015. It thereafter after moved swiftly to
secure his
eviction from the premises, approaching the magistrate’s court
in Goodwood immediately.
[5] That court then heard
an application for eviction in terms of s 4(1) of the Prevention of
Illegal Eviction From and Unlawful
Occupation of Land Act, 19 of 1998
(“PIE”) which was opposed by the appellant. In his
answering affidavit the appellant
highlighted the problem arising
from the incorrect date furnished by the Tribunal and went on to
point out that his personal circumstances
were dire. He said,
inter
alia,
that he and his wife were divorced and that only he and his
son Ray then resided in the flat. The appellant further alleged that
he suffered from Post Traumatic Stress Disorder (“PTSD”)
as a consequence of being involved in 2 vehicle hijackings
when he
had been employed as a driver.
[6] The appellant set out
his personal and domestic circumstances as follows:
“
21.
Insofar as my personal circumstances are concerned, I wish to apprise
this Court of the following:
21.1
I am (sic) 55 year old single male;
21.2
I am unemployed and receive a State disability grant;
21.3
I have no alternative accommodation and an eviction would render me
homeless;
21.4
I am afflicted (sic) by a disability and not only is (sic) unemployed
but unemployable;
21.5
I am financially independent (sic) and cannot afford to rent another
residence; and
21.6
My disability grant is simply not enough to afford alternative
accommodation.
22. Furthermore my
son, Ray, also occupies the property. His personal circumstances are
as follows:
22.1
He is a 26 year old single male; and
22.2
He is currently employed part-time at a Seven-Eleven in Goodwood,
Western Cape.”
[7] The appellant offered
no medical explanation or report relating to his alleged disability
(PTSD) or the prognosis in that regard
but did attach a copy of his
social security card issued by the South African Social Security
Agency. Further, he did not give
details regarding Ray’s
earning capacity, nor did he explain how he and Ray had been able to
maintain themselves on the limited
resources available to them.
[8] The appellant’s
affidavit before the magistrate’s court did not raise any
sustainable defence on the merits of the
claim for eviction. As I
have said, the problem relating to the incorrect date furnished by
the Tribunal did not afford the appellant
a defence against the first
respondent’s claim for vacant occupation of its premises. The
first respondent had lawfully exercised
its rights under clause 7 of
the lease to increase the rental and that increase would stand until
the Tribunal held otherwise.
And, once the appellant fell in arrears
in respect of the rental lawfully increased, the first respondent was
entitled to cancel
the lease after the appellant had been put to
terms and had failed to comply therewith. Once the lease was
cancelled, the appellant’s
continued occupation of the premises
became unlawful and the first respondent was fully within its rights
to approach the court
for an order for eviction, provided only that
it complied with the provisions of PIE.
[9] In light of the fact
that the appellant’s period of unlawful occupation did not
exceed 6 months, the first respondent
was entitled to approach the
court in terms of the provisions of s4(6) of PIE to secure his
eviction from the premises. In such
circumstances there was a duty on
the magistrate to consider “
all the relevant circumstances,
including the rights and needs of the elderly, children, disabled
persons and households headed
by women”,
whereafter an
order could be made on condition that it was just and equitable to do
so. Because the appellant’s occupation
had been unlawful for
less than 6 months, the magistrate was not statutorily enjoined to
consider the question of whether alternative
accommodation could be
made available by a municipality or another organ of State: that
enquiry is compulsory only where the occupier
has been in unlawful
occupation in excess of 6 months and where the provisions of s 4(7)
of PIE are triggered.
[10] Once the magistrate
was satisfied that all the requirements of s 4 of PIE had been
complied with and that no valid defence
had been raised by the
appellant, he was compelled to (“
must
”) grant an
order for eviction. When doing so the magistrate was required, by
virtue of the provisions of s 4(8) of PIE, to
determine-
“
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).”
[11] In determining what
a just and equitable date might be, the court is required, under s
4(9) of PIE, to “
have regard to all relevant factors,
including the period the unlawful occupiers and his or her family
have resided on the land
in question.”
In the case of the
appellant, that would be a period exceeding 12 years.
[12] Although this
application for eviction was not brought in terms of s 4(7) of PIE,
the first respondent purported to give notice
to the City of Cape
Town of the proceedings against the appellant. I say purported,
because although the City is cited as the third
respondent in the
proceedings in the lower court, and because the notice in terms of
PIE was designated for its attention, there
is no proof that the
application was in fact served on the City, nor is there any
indication of any participation in the proceedings
by the City.
[13] The record of
proceedings reflects that the presiding magistrate was sympathetic to
the appellant’s problem, and on 19
February 2016 the appellant
was afforded a postponement of 3 months to enable him to approach the
Tribunal to request it to reconsider
his objection to the rent
increase. The matter was due to be heard again by the same magistrate
on 19 May 2016, but it turned out
that the magistrate was otherwise
engaged in another matter on that day. Accordingly an order was only
made 3 June 2016 in terms
whereof the appellant was given until 31
July 2016 to quit the premises. In reality, the appellant was only
required to vacate
about 9 months after the first respondent
initiated proceedings.The record reflects further that the magistrate
carefully considered
the appellant’s personal circumstances and
took these into account when affording him a little extra time within
which to
vacate.
[14] However, what does
not appear from the record is what became of the notice to the City.
In argument before us Ms Steyn, for
the first respondent, was unable
to assist the court in understanding what information, if any, was
provided by the second respondent
to the magistrate. Experience in
this Division in matters similar to this informs us that the City of
Cape Town is able to provide
the court with information about the
availability of alternative housing and, in particular, the
availability of emergency housing
so as to avoid the spectre of
homelessness. However, neither the magistrate nor this court has been
made aware of the current position
in this regard.
[15]
When pressed in relation to the possible assistance to be found in a
report from the Municipality, Ms Steyn sought repeated
refuge in the
controversial judgment of Willis J in
Johannesburg
Housing
[3]
, and in particular in the
following passage-
“
[84]
No municipality, no government, no politician, no court, no king, no
emperor and no potentate can guarantee to any person unqualified
permanence in his or her place of residence.”
[16] On the strength of
the view held by the presiding judge in that matter of the
interpretation to be placed on the word “
homelessness”,
Ms Steyn sought to suggest to this court that no purpose would have
been served by the magistrate requiring the City to report
on the
availability of alternative housing for the appellant. The following
passage in the judgment of Willis J suggests that it
could be argued
that some municipalities have more important things to do than to
assist courts of law in coming to a determination
as to whether
a notice period in a particular PIE matter is a reasonable or not:
“
[92]
The high courts are duty bound to have regard to the provisions of
PIE and the injunction of the Constitutional Court to apply
their
minds to the contribution which municipalities make to the resolution
of the problems of housing. In doing so, it would be
intellectually
dishonest for a court not to take into account the real problem that
exists at a municipal level, with its capacity
in terms both of
finance and its administrative personnel, to solve problems. If a
city cannot even mend potholes properly and
resolve billing crises
expeditiously, what hope does it have of addressing adequately the
needs of housing? Courts cannot blink,
Bambi-like, at the real
dangers that are posed through a lack of capacity at a municipal
level….”
[17] The frustrations of
a judge sitting in this country’s commercial hub with the
inefficient functioning of a local authority
are not necessarily
shared by the judges in this Division. The City of Cape Town
regularly provides this court with useful information
regarding the
prospects of available emergency housing for persons in dire need of
a roof over their heads. To be sure, precisely
that kind of
information would have been invaluable in a situation like this to
determine, not necessarily whether there was permanent
council
housing available for the appellant (who already enjoys the benefit
of subsidised accommodation for people with low incomes),
but, what
was available by way of emergency housing, Indeed, were such
emergency accommodation to be have been made available to
the
appellant, and had he refused to take it up for whatever reason, the
magistrate would have been well placed to determine how
much time to
give the appellant to quit the premises.
[18]
The 2 leading appellate authorities on PIE evictions
[4]
have offered the lower courts considerable guidance in relation to
the adjudication of such matters and, in particular, the procedural
aspects thereof. Granted, both cases involved the application of s
4(7) of PIE and so the consideration by the court of the availability
of alternative housing was expressly required, but both judgments
stress that the court making the decision to evict must have
sufficient information before it to enable a just and equitable
decision to be made.
[19] In
Changing
Tides
the Supreme Court of Appeal dealt fully with the
reporting obligations of local authorities involved in eviction
proceedings.
“
[39]….
Now that it is clearly established that local authorities do owe
constitutional obligations to persons evicted from
their homes who
face homelessness as a result, it is appropriate to set out their
obligations to the court in proceedings of this
type. I deal only
with cases where, on the principles set out above, they are joined in
the litigation, and the applicant alleges
that the circumstances of
the eviction are such that it may result in homelessness, and engage
their constitutional obligations
with regard to the provision of
temporary emergency accommodation.”
Exactly that situation
obtained in the present case, given the joinder of the second
respondent and the allegation by the appellant
of the prospect of
homelessness.
[20] The Supreme Court of
Appeal then detailed its requirements for proper reporting from a
local authority in such circumstances
and went on to comment as
follows:
“
[41]
Those requirements have been distilled from the various orders made
by the courts in cases of this type. Provided that this
information
is furnished to the court at the outset, it should enable the court
to deal with the application without much, if any,
need for further
investigation and possibly without further involvement of the local
authority. I have no wish to add to the burden
of local authorities
in these cases. However, the additional burden should not be undue as
they are in any event
enjoined
by s 4(2) of PIE to file a report in all eviction proceedings.
[5]
All that this requires of them is, in certain cases, to amplify that
report in order to provide the court with the information
it needs to
decide whether to grant an eviction order. The more comprehensive the
report furnished by the local authority at the
outset, the less
likely that it will become embroiled in lengthy and costly
litigation, so that the additional effort at the outset
should
diminish costs in the long run and enable eviction cases to be dealt
with expeditiously in the interests of all concerned…
Where,
in response to that report, the applicant indicates that it intends
to seek an order that imposes duties upon the local
authority, it
goes without saying that the local authority must be furnished with
the proposed order in sufficient time to enable
it to consider its
terms, suggest amendments and if no agreement is reached, to appear
and make appropriate submissions to the
court on its terms.”
[21] Turning to the
purpose of requiring a local authority to furnish such information,
the Supreme Court of Appeal observed as
follows:
“
[47]
In considering the grant of an eviction order the court is concerned
with the plight of those who, as a result of poverty and
disadvantage, are unable to make alternative accommodation
arrangements themselves and require assistance from the local
authority
to do so. It is particularly concerned to ensure, so far as
possible, that those who face homelessness are provided at least with
temporary emergency accommodation. The ancillary orders attaching to
an eviction order will not affect those who are able to find
a roof
for their heads and a place of shelter without assistance, nor those
who for reasons of their own, such as an unwillingness
to have any
involvement with a public authority, will not seek assistance, even
if it means nights spent on the streets. The central
task before is
to identify those who require assistance from the local authority.
What the City needs to know is who requires temporary
emergency
accommodation and the nature of their needs, for example, whether
dormitory accommodation would suffice or whether a
flat of some sort
is required for a family with children, or whether an agent or
disabled person has some special needs. The question
is how this
information can most quickly and efficiently be communicated to the
City so that it can formulate an appropriate plan
to address the
needs of these people.”
[22] In the founding
affidavit the application for eviction the first respondent’s
general manager, Mr Adams, describes the
business of the first
respondent thus -
“
3…..
Applicant’s business is the facilitation of the provision of
affordable accommodation, through social investment
programmes for
the benefit of economically disadvantaged citizens of the Western
Cape.”
He stresses the
importance of good corporate governance pointing out that -
“
4…..
Tenants…are accordingly required, as with any other business,
to settle their liability to [the appellant] timeously
on due date in
order to assure [the appellant’s] continued functioning and
accordingly its continued ability to assist persons
in need of
affordable housing.”
[23] The undisputed facts
in the lower court were that the appellant suffers from PTSD, which
he describes as a disability and for
which he receives a State
disability grant. He claims that he is unemployable and that
homelessness will ensue if he is evicted
from the home which he
currently occupies. Given that the appellant’s current
accommodation was expressly provided by the
first respondent for “
the
benefit of economically disadvantaged citizens”,
and given
that he fell into arrears because of the short payment (rather than
non-payment) of rental, it is reasonable to infer
that the eviction
of the appellant might have lead to him being without a roof over his
head - certainly in the short term. In
such circumstances, the case
called out for a report from the local authority in relation to the
availability of at least emergency
housing.
[24]
The first respondent was the party which drew the onus of persuading
the court that eviction from its premises of the terms
sought was
just and equitable in the circumstances
[6]
.
It should therefore have ensured that a report was furnished by the
second respondent to inform the court of the relevant facts
and
circumstances relating to the appellant’s prospects of finding
suitable alternative accommodation, and in the absence
thereof, of
the availability of emergency housing. The steps which the first
respondent was required to take in this regard were
not onerous: it
had joined the second respondent as a party in the proceedings and it
was required to do no more than to ensure
that the papers were served
on it, and thereafter to request it to report to the court. Yet it
chose not to do so.
[25] The tenant in this
matter, like most of the first respondent’s tenants, falls to
be treated differently to a normal residential
tenant renting in the
suburbs of say Green Point or Wynberg. I say so because the property
was made available to the appellant
on the strength of his limited
financial means and his resultant need for affordable housing. It
stands to reason therefore that
when such persons are evicted from
their homes (in essence subsidized accommodation) on the basis of
non-payment of rental, the
prospects of them finding similar
affordable accommodation are slim. Simply put, if they cannot afford
to rent from the first respondent
they are not going to be able to
easily afford to rent elsewhere, other than perhaps in accommodation
provided by the City of Cape
Town. In such circumstances, a report
from the City as to alternative accommodation (be it permanent or
emergency) is imperative
before the court can make a determination as
to what notice period is just and equitable.
[26]
In
Changing
Tides
[7]
the court, in relation to the necessity to join the local authority,
observed that this duty did not arise in all instances but
suggested
that it would generally be a wise precaution to adopt that route.
“
[38]
…. That does not mean that the local authority will need to
become embroiled in every case in which an eviction under
PIE is
sought. The question in the first instance is always whether the
circumstances of the particular case are such as may (not
must)
trigger the local authority’s constitutional obligations in
regard to the provision of housing or emergency accommodation.
If
there are, the need for the local authority’s direct
involvement as a litigant will depend on its response to those
obligations.
If, by way of example, it filed a report stating that it
had adequate emergency accommodation available for all and any
persons
evicted from the premises and that the court could make an
order that it provide such accommodation to all evictees, that might
suffice, without more, subject to furnishing some details about the
nature and locality of the accommodation and the means by which
the
occupiers could obtain access to it.”
[27]
In my view, and having regard to the circumstances of this case, the
failure of the magistrate to consider a report by the
local authority
was a procedural defect in the proceedings in the court below which
had the effect that the magistrate did not
properly discharge his
constitutional obligations
[8]
.
However, the responsibility for that failure does not lie at the door
of the first respondent alone. As
Changing
Tides
[9]
demonstrates,
the magistrate also had a duty to respond proactively and to call for
a local authority report in a matter such as
this.
[28] The question that
then arises is what should be done in the present circumstances. Mr
Fisher, for the appellant, fairly conceded
that his client had no
defence on the merits of the claim for eviction and that the lease
had been validly cancelled. The real
issue was whether a fair notice
period had been granted or not. On the facts before the court at this
stage, and in the absence
of a report from the local authority, it is
not possible to say with any degree of certainty whether the
procedural defect was
fatal or not.
[29] However, the
appellant has known for a considerable period of time that his lease
has been terminated. And throughout that
time he has known of the
necessity to seek alternative accommodation. He has been the
beneficiary of more than one indulgence in
this court - his appeal
was reinstated after it had been struck from the roll for failure to
prosecute it timeously and his counsel
was permitted to argue the
matter notwithstanding the fact that his heads of argument had been
filed late.
[30] The first respondent
on the other hand has had to wait patiently for the litigation to
come to a conclusion, all the while
being unable to earn a fair
rental from its much-needed accommodation. In my view, in such
circumstances the prejudice to the first
respondent in sending the
matter back to the magistrate to reconsider the period of notice in
the light of that which has been
stated above, far outweighs the
prejudice to the appellant who has been enjoying a roof over his head
at a significantly reduced
rental for quite some while. Both counsel
were agreed that in the event that the matter was not remitted to the
magistrates court,
it would be just and equitable to order the
appellant to vacate the premises by the end of April 2017. For the
sake of clarity
such an order will be made.
[31] As far as costs are
concerned, I did not understand Ms Steyn to press for such an order.
While it is true that the appellant
has not achieved substantial
success on appeal, this court has found that the proceedings in the
court below might have been different
had the first respondent and
the magistrate adopted a more proactive approach. In the
circumstances it seems fair to me to make
no order as to costs.
ORDER OF COURT
I
t is ordered that:
A. The appeal is
dismissed with no order as to costs.
B. The appellant and all
those holding title under him shall vacate the premises situated at
[…], S. Crescent, Ruyterwacht,
Western Cape or before 30 April
2017.
C. The Sheriff of this
Court is authorised to eject the appellant and all those holding
title under him in terms of a warrant of
ejectment with effect from 2
May 2017.
__________________
GAMBLE
J
KOSE
AJ:
I
agree.
________________
KOSE
AJ
[1]
“
7.4
The Landlord shall have the right to vary the rental during the
lease period by giving the Tenant one clear calendar month's
notice."
[2]
He was already in arrears at that stage.
[3]
Johannesburg
Housing Corporation (pty) Ltd v Unlawful Occupiers , Newtown Urban
Village
2013
(1) SA 583 (GSJ)
[4]
City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties
38 (Pty) Ltd and Another
2012 (2) SA 104
(CC) ;
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294 (SCA)
[5]
The
dictum
is not
sustained by the wording of the section in question which reads as
follows –
“
4.2 At least
14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings of the unlawful occupiers and the municipality
having jurisdiction."
[6]
Changing
Tides
at [29] –[30]
[7]
At [38]
[8]
Changing
Tides
at [23] – [25]
[9]
At
[27]