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[2017] ZAWCHC 126
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Stroebel v Witzenburg Municipality (A176/17) [2017] ZAWCHC 126 (2 November 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:
A
176/17
Ceres
MC Case Number:
1435/2014
In
the matter between:
ANTHONY
JOHN
STROEBEL
Appellant
and
WITZENBURG
MUNICIPALITY
Respondent
Coram
:
Baartman
et Boqwana JJ
Delivered:
2 November 2017
JUDGMENT
BOQWANA,
J
Introduction
[1]
This
is an appeal against an eviction order granted by the Ceres
Magistrates’ Court with costs, in favour of the respondent,
against the appellant and all other occupants who obtained occupation
through him, to vacate the property known as Erf [...], Ceres,
situated at[…], Plantation Street, Ceres, Western Cape
Province (‘the property’) on or before 30 July 2016,
or
be forcefully removed by the sheriff or the South African Police
Service anytime from 5 July 2016.
Background
facts
[2]
It
is common cause that the respondent is the registered owner of the
property. The appellant has occupied the property since 1991.
At that
time the appellant was an employee of the appellant, until his
employment was terminated for medical reasons on 31 August
2011.
[3]
It
is the respondent’s case that the appellant was granted
permission to occupy the house, as a free housing benefit, based
on
the performance of certain duties related to his employment agreement
with the appellant. It is perhaps relevant to refer to
the contents
of the letter dated 31 December 1991, for completeness. The
letter, addressed to the appellant, read as follows:
“
PERSONEEL:
BEHUISING: WONING TE KRAGSTASIE
Graag bevestig ek hiermee dat die raad tydens
sy vergadering van 27 Mei 1991 goedkeuring verleen het dat bogemelde
woning, wat tans
bewoon word deur mnr. J P Swart, deur u bewoon mag
word by ontruiming.
Bogemelde woning word kosteloos aan u
beskikbaar gestel inruil waarvoor u die nodige toesig oor die
kragstasie en die perseel moet
hou.
Aangesien mnr. J P Swart eersdaags die betrokke
woning ontruim, sal dit waardeer word indien u die nodige reëlings
kan tref
om dit spoedig moontlik daarna te beset. Besetting daarvan
sal ook gesien word as u aanvaarding van bogemelde voorwaardes.
…”
[4]
Upon
termination of his employment on 31 August 2011, due to ill health,
the appellant received notice to vacate the premises within
30 days
of receipt of the letter dated 31 October 2011. Again, on 31
July 2012 a letter was served on him giving him final
notice to
vacate the premises within 30 days. On 30 May 2013, further
notice was sent to the appellant, by the respondent’s
attorneys, for him to vacate the house by no later than 30 June 2013.
The letter also specified that any possible agreements which
the
appellant could rely on, whether express or
tacit
,
were cancelled and terminated therewith.
[5]
The
appellant having failed to vacate the premises, an application in
terms the Prevention of Illegal Eviction from and Unlawful
Occupation
of Land Act, 19 of 1998 (‘PIE Act’) was lodged by the
respondent on 19 December 2014.
[6]
In
his judgment, the magistrate considered it unnecessary to go beyond
the question of whether the employer could be expected to
keep a
person, whose services had been terminated, in a house for free that
had been intended for and tied to the person’s
employment with
it. Having found that the house was tied to the appellant’s
employment with the respondent, the magistrate
found that the
appellant and those occupying the house with him occupied the house
without the respondent’s consent and therefore
unlawfully. The
magistrate further held that this was not a case of an applicant who
was not offered alternative accommodation,
he was offered but failed
to exercise an option of taking it.
Grounds
of appeal
[7]
The
grounds of appeal are essentially that the magistrate erred by
concluding that the appellant was in unlawful occupation of the
property, because his right to occupy the property stems from an oral
agreement which the he alleges he entered into with the respondent.
According to him, the agreement was that he would perform duties as a
caretaker of the premises and the electrical power station
and,
although his employment was terminated, he still fulfilled the
aforesaid duties. He further alleges that the oral agreement
had not been terminated and/or that the respondent was not entitled
to unilaterally terminate it. Accordingly, so he argues,
the
magistrate misdirected himself by linking the lawful occupation of
the property to the employment contract.
[8]
The
appellant contends further that, should the court find that he is an
unlawful occupier, then it is relevant to determine whether
an
eviction order was just and equitable in the circumstances.
[9]
In
this connection, the appellant submits that he is disabled and
suffers from ill-health, hence he was medically boarded. He
has
also, since 1991, resided in the property with his wife and his
octogenarian mother, who also suffers from ill health. His
58
year old sister-in-law, who is disabled, also lives with them.
Therefore four people live in the house of whom three are
ill.
The occupiers therefore are persons considered as vulnerable
individuals in need of protection. Accordingly, the
magistrate
failed in his view, to consider that in light of these factors, that
he and his family members should not be evicted
unless and until
suitable alternative accommodation, comparable with their current
accommodation, had been provided.
[10]
The
appellant further submits that the Wendy house offered by the
respondent, measuring 3 x 6 metres and in an unsafe area, posed
a
real threat of victimisation and it was far from the available
medical facilities which the appellant and his family needed.
Furthermore as there was no structure that existed, there was no
electricity and water supply currently in existence either.
[11]
The
appellant argues therefore that the magistrate erred by failing to
consider whether or not the offer of alternative accommodation
was
suitable for him and his family, taking into account the unique
circumstances of their health and age. According to him,
the
magistrate erred by failing to consider that he lacked financial
means to seek alternate suitable accommodation for him and
his
family.
[12]
Lastly,
according to the appellant, the magistrate failed to consider that he
was not compelled to order an eviction, but should
have exercised his
discretion, having been satisfied that it was just and equitable to
do so, taking into account all the relevant
factors as required by
the PIE Act. Those factors would include: the vulnerability of
the occupants of the property, the
circumstances under which the
accommodation was provided, the period of occupation, the
availability of suitable alternative accommodation,
and that the
appellant would be reaching retirement age of 65 in some two and a
half years, at which time he will received his
pension pay out - the
list is not exhaustive.
Duties
of the Court
[13]
The
duties of the court when dealing with proceedings for the eviction
from residences, have been dealt with in many cases, and
were
recently re-iterated by the Constitutional Court in the decision of
Occupiers,
Berea v De Wet N.O. and Another
2017
(5) SA 346
(CC)
,
at para 47, where the Court observed that:
“…the duty that rests on the court
under s 26(3) of the Constitution and s 4 of PIE goes beyond the
consideration of
the lawfulness of the occupation. It is a
consideration of justice and equity in which the court is required
and expected
to take an active role. In order to perform its
duty properly the court needs to have all the necessary information.
The
obligation to provide the relevant information is first and
foremost on the parties to the proceedings. As officers of the
court, attorneys and advocates must furnish the court with all
relevant information that is in their possession in order for the
court to properly interrogate the justice and equity of ordering an
eviction. This may be difficult, as in the present matter,
where the unlawful occupiers do not have legal representation at the
eviction proceedings. In this regard, emphasis must
be placed
on the notice provisions of PIE, which require that notice of the
eviction proceedings must be served on the unlawful
occupiers and
‘must state that the unlawful occupier…has the right to
apply for legal aid”
[14]
The
Court in
Berea
went on to stress in para 48 that:
“[t]he court will grant an eviction order
only where: (a) it has all the information about the occupiers to
enable it to decide
whether the eviction is just and equitable; and
(b) the court is satisfied that the eviction is just and equitable,
having regard
to the information in (a). The two requirements
are inextricable, interlinked and essential.
An eviction
order granted in the absence of either one of the two requirements
will be arbitrary. I reiterate that the enquiry
has nothing to
do with the unlawfulness of occupation. It assumes and is only
due when the occupation is unlawful
.” (Own emphasis)
[15]
Section
4(7) stipulates that if an occupier has occupied the land for more
than six months, the court may grant an eviction order
if it is of
the opinion that it is just and equitable to do so, after considering
all relevant circumstances, including: “…
whether
land has been made available or can reasonably be made available by a
municipality or other organ of state or another land
owner for the
relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons
and households
headed by women
”.
[16]
If
the court is satisfied that all the requirements of section 4 have
been complied with and that no valid defence has been raised
by the
unlawful occupier, it must grant the order of eviction and determine
a just and equitable date of eviction, along with the
date on which
the eviction may be carried out if the unlawful occupier has not
vacated the land on the date stipulated. In
determining a just
and equitable date the court must have regard, amongst others, to the
period the unlawful occupier and his or
her family have resided on
the land in question (see sections 4 (8) and 4 (9) respectively).
The
question of the lawfulness of occupation
[17]
The
first issue to be determined in this case is the issue of consent to
occupy the property, which in terms of the PIE Act means
express or
tacit,
whether in writing or otherwise, by the owner or person in charge, to
the occupation by the occupier of the land in question.
If a
person occupies land without the express or
tacit
consent of the owner or person in charge, or without any right in law
to occupy such land, except in instances specifically excluded
by the
PIE Act (which are not applicable in this case), that person is said
to be an ‘
unlawful
occupier
’.
[18]
The
appellant bases his and his family’s right of occupation on an
alleged oral agreement, which he states gave him a right
to occupy
the property free of charge in exchange for acting as a caretaker
over the premises and over the power station situated
on the
premises. He alleges that he was never relieved of his duties
as a caretaker. This assertion is in my view unsustainable.
Firstly, it is clear from the facts that the appellant was given
occupation of the house by virtue of his employment with the
respondent. In other words, had he not been employed by the
respondent, he would not have had the benefit of living in the
house
purely on the basis that he was the caretaker of the premises. In
any event, even if that were the case, as Mr Wilkin,
who appeared for
the respondent, argued, there could be no basis to allege that the
property would be occupied permanently.
This is because apart
from earlier notices served on the appellant to vacate the premises,
the notice of termination given by the
respondent on 30 May 2013 was
unequivocal in stating that any possible agreements which the
appellant could rely on, whether express
or
tacit
,
were cancelled and terminated therewith. That being so, it does
not avail the appellant to seek to retain, or enforce some
kind of
right of retention or contract allowing him to occupy the property
in
perpetuum.
The magistrate was therefore correct to find that the appellant
and other occupants were in unlawful occupation of the property.
That
is, however, not the end of the enquiry, as I have already outlined.
The magistrate was enjoined to go further and consider
whether or not
it was just and equitable to grant the eviction order, taking into
account the relevant circumstances of this case.
Did
the magistrate take into account the relevant circumstances before
granting the eviction order
?
[19]
It
was submitted by Mr Wilkin that he did, because those factors appear
in his judgment. My reading of the court
a
quo
’s
judgment differs. The magistrate set out the common cause facts
and submissions made by the parties, including that
the appellant was
declared unfit to work, that he lived with his mother and later on
his sister-in-law; then later on in the context
of the notice to
vacate the premises the magistrate mentioned that the appellant had
been in the property for longer than 24 years.
Other than the
mentioning of those factors in the judgment, there is no further
assessment by him. It is clear in my view
that the magistrate
confined himself to the question of lawfulness in his adjudication of
the issues. This fact is spelt
out in the judgment, as follows:
“Hierdie hof ag dit nie nodig om verder
op die meriete van die saak te dwaal nie. Die vraag wat die hof
hom nou egter
verder moet afvra is, of dit die wetgewer se bedoeling
kan wees dat die werkgewer wat ‘n person in diens neem en
huisvesting
verskaf, hom steeds na beëindiging van sy diens
verder in die woning moet verdra. Hierdie hof is gedagtig
daaraan dat
elke saak op sy besondere meriete beoordeel moet word.”
[20]
Having
been persuaded that the appellant was an unlawful occupier, the
magistrate went no further and ordered the appellant and
other
occupants to vacate the property, having mentioned that this was not
a case of the appellant not having been offered alternative
accommodation. As a starting point, it is important to point
out that “
the
availability of suitable alternative accommodation is a consideration
in determining whether it is just and equitable to evict
the
occupiers, it is not determinative of that question”.
(See
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at para 58).
[21]
Other
than mentioning that this was not a case of the respondent not having
offered alternative accommodation, it is not clear what
persuaded the
magistrate to find that it was just and equitable to order the
eviction of the occupiers. In my view, the magistrate’s
judgment does not demonstrate that the peculiar circumstances of the
occupiers of the property were interrogated, as was postulated
by
Nkabinde J in
Pitje
v Shibambo and Others
2016 (4) BCLR 460
(CC) at para 19, where she held that: “…
courts
cannot necessarily restrict themselves to the passive application of
PIE. Even if there had been no rejoinder application,
courts
are obliged to probe and investigate the surrounding circumstances
when an eviction from a home is sought. This is
particularly
true when the prospective evictee is vulnerable. These
considerations would have enabled the High Court to apply
the
requirements of PIE justly”
.
[22]
In
that case, Mr Pitje was 76 years old and in ill-health. He had
lived on the property his whole life. I am mindful
of the fact
that in
Pitje
it appears that the issue of suitable alternative accommodation was
not considered at all by the High Court. In the instant
case,
although it is mentioned that the appellant exercised his choice to
decline an offer of alternative accommodation, the details
thereof
and what persuaded the magistrate, are not evident in the judgment.
They are also not apparent in the founding papers.
[23]
A
glimpse of the offered accommodation appears in the opposing
affidavit, wherein the appellant confirms that he had a meeting with
a Mr Kotze, of Hauptfleisch and Kotze Incorporated, where he was
offered a “Hop” house in Nduli, Ceres. In reply,
the respondent alleged that a wooden structure measuring 3m x 6m was
offered and that electricity would have been installed and
that the
appellant would have adequate access to ablution and running water.
Apart from that no other information is proffered
as to what kind of
structure the “Hop” house was, where Nduli, Ceres was and
whether it was suitable alternative accommodation.
Same can be said
about the wooden structure.
[24]
It
is upon a consideration of those circumstances, in my view, that a
conclusion such as was held in
Baron
and Others v Claytile (Pty) Ltd & Another
2017
(5) SA 329
(CC) could be found. In
Baron
the nature of the accommodation offered, and that the City had
addressed the concerns of the applicants to the best of its abilities
as to the ill-suited nature of the initial accommodation offered, was
a consideration that rendered refusal of the alternative
accommodation unreasonable.
[25]
In
Baron
the magistrate clearly considered the interests of both parties
before granting an eviction order. It is also important to
note
that the issues in
Baron
had
narrowed down to the single issue of suitable alternative
accommodation by the time the matter was before the Constitutional
Court. The thrust of the litigation in that case was,
therefore, homelessness. In that case the applicants had
rejected
the offer made by the City, due to the distance from their
places of employment and the children’s school. They further
submitted
that the housing units were inadequate structures, as the
units had been constructed with corrugated cladding. None of
these
issues have been considered at the Magistrates’ Court
level in the present case. The magistrate expressed no view as
to the suitability of the alternative accommodation offered and the
appellant’s unreasonableness in refusing it, taking into
account the vulnerabilities as mentioned.
[26]
Earlier
on, the magistrate had found that when the appellant became ill, it
was logical that he had to make provision for other
accommodation. I
am alive to the fact that there has been an allegation that the
appellant earns income to the tune of R9000,
is therefore not
indigent, as other evictees often are and would thus not be rendered
homeless as he can afford alternative accommodation.
His income
is apparently also supplemented by an undisclosed income that he
allegedly receives from work as a mechanic. That
is a valid
consideration which must be considered with all other factors and in
context; however it is not apparent from the papers
and was not
considered by the magistrate. It is imperative that the
appellant’s alleged financial independence be properly
assessed
so as to avoid a situation such as in
Arendse
v Arendse
2013 (3) SA 347
(WCC), at para 42, where the court
a
quo
was found to have apparently been swayed by the applicant’s
pension pay-out even though there was no evidence that that enabled
her to afford alternative accommodation. Consideration of the
relevant factors is a prerequisite prior to the forming of a view
by
the court as to whether an eviction order should be granted.
[27]
I
am not advocating that the appellant’s rights should trump
those of the respondent. All I am saying is that, once an eviction
is
brought in terms of PIE, constitutional and statutory considerations
kick-in. The magistrate is enjoined to consider all the
applicable
factors and that such should, in my view, be demonstrated in the
findings.
[28]
Whilst
it is upon the appellant to provide whatever information is relevant
for consideration by the court, one ought not to lose
sight of what
was held by the court in
Berea
in relation to the duty that the parties have to provide the court
with the necessary information. (See
Berea
supra at para 47)
[29]
This
fact was also observed by Wallis JA in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294
(SCA), at para 34, where he stated:
“[34] In my view, therefore, there are no
good reasons for saying that an applicant for an eviction order under
s 4(7) of
PIE does not bear the onus of satisfying the court that it
is just and equitable to make such an order. Cases where that
onus affects the outcome are likely to be few and far between because
the court will ordinarily be able to make the value judgment
involved
on the material before it.
However, the fact that an
applicant bears the onus of satisfying the court on this question
means that it has a duty to place evidence
before the court in its
founding affidavits that will be sufficient to discharge that onus in
the light of the court’s obligation
to have regard to all
relevant factors. The City’s contention, that that
common-law position continues to prevail and
that it is for the
occupiers to place the relevant facts before the court, is
incorrect.
Once that is recognised it should mean that
applicants go to greater lengths to place evidence of relevant facts
before the
court from the outset, and this will expedite the process
of disposing these applications, particularly in cases that are
unopposed,
as the need for the court to direct that further
information be obtained will diminish.” (Own emphasis)
[30]
It
is also worth reflecting on Sachs J’s remarks in
Port
Elizabeth Municipality,
supra, at para 32, where he emphasised that, “…
although
it is incumbent on the interested parties to make all relevant
information available, technical questions relating to onus
of proof
should not play an unduly significant role in its enquiry
”.
Conclusion
[31]
In
conclusion, I am not persuaded that the enquiries as envisaged by PIE
were undertaken in this case. Even though I have
found the
appellant and other occupiers of the property to be ‘
unlawful
occupiers
’,
it has been held that “
the
existence of unlawfulness is the foundation for the enquiry, not its
subject matter
’.
(See
Port
Elizabeth Municipality,
supra, at para 32.)
[32]
It
was argued on behalf of the respondent that, even if it were to be
found that the magistrate failed to take the relevant circumstances
into account, this court is well placed, and has all the information
necessary, to make a decision on the justness and equitability
of the
eviction of the occupiers. I do not think so. As I have
already mentioned, the details of the alternative structure,
or
accommodation, and other relevant circumstances are not clear from
the papers.
[33]
For
these reasons, this is a matter that should be remitted to the
Magistrates’ Court for reconsideration in my view. Parties
should be given leave to supplement their papers, to the extent
required.
[34]
In
view of the period that has lapsed since the eviction proceedings
were lodged, it is imperative that this matter be placed before
the
magistrate on an expedited basis.
[35]
Having
considered all the circumstances of the parties, a cost order would
not be appropriate.
[36]
In
the result, I would propose the following order:
1.
The
appeal is upheld and the order of the magistrate is set aside.
2.
The
matter is remitted to the magistrate for reconsideration in
accordance with this judgment.
3.
The
parties are given leave to supplement their papers to the extent
necessary.
4.
No
order as to costs.
____________________
N P
BOQWANA
Judge
of the High Court
I
agree and it so ordered.
_____________________
E D
BAARTMAN
Judge
of the High Court
APPEARANCES
For
the Appellant: Adv. K Felix
Instructed
by: Jean-Claude Barrish Attorneys, Mowbray
For
the Respondent: Adv. L F Wilkin
Instructed
by: O’Neal & Visser Attorneys, Worcester