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[2018] ZAWCHC 40
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Transcend Residential Property Fund Limited v Mati and Others (14639/2017) [2018] ZAWCHC 40; 2018 (4) SA 515 (WCC) (20 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
No.:
14639/2017
Before the
Hon Holderness AJ
Hearing: 28
February 2018
Judgment
Delivered: 20 March 2018
In
the matter between:
TRANSCEND
RESIDENTIAL PROPERTY
FUND
LIMITED
Applicant
and
NORAH
SIYAMTHANDI
MATI
First Respondent
THE
MUNICIPALITY FOR THE
CITY
OF CAPE
TOWN
Second Respondent
UGOCHUKWU
ONU
Third Respondent
JUDGMENT
HOLDERNESS,
AJ:
Introduction
[1]
This is an application for the ejectment of the first and third
respondents from the premises described as Flat [...] R. M.,
D. D.,
Parklands, Cape Town (‘the premises’).
[2]
It is common ground that the first and third defendants are
‘occupiers’, as defined in Section 1 of the Prevention
of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(‘the PIE Act’).
[3]
The initial issues which arose for determination by this court were
the following:
3.1
Do the occupiers have a common law right to occupy the property?
3.2
If not, is it just and equitable that they be evicted;
3.3
If so, what would be a just and equitable period within which such
eviction is to be effected?
Common
cause facts
[4]
The applicant is the registered owner of the property on which the
premises are situated, comprising part of a residential block
of
flats known as Riverside Mews.
[5]
On 1 March 2017, the applicant and the first respondent concluded a
written lease agreement in terms of which the applicant
let the
premises to the first respondent (‘the agreement’). The
first respondent does not oppose the relief sought
in these
proceedings, and was not represented at the court at the hearing.
[6]
In terms of the agreement, the lease commenced on 1 March 2017 and
terminated on 29 February 2018 (‘the initial period’),
whereafter it would continue on a month to month basis, subject to
termination by either party on one calendar months’ written
notice.
[7]
The first respondent was the lessee in terms of the agreement, and
both she and the third respondent are identified as occupants
under
the list of occupants provided for in para 1.20 of the agreement. The
third respondent’s name is handwritten in under
the list of
occupants, together with his identity number. There is only one set
of initials next to this handwritten amendment.
The agreement
provides for a maximum of two occupants, and required that if the
occupant is a minor, the age should be indicated.
[8]
In terms of clause 6.3, should the lease continue on a month-to-month
basis, the provisions of section 14 will no longer apply
to the
lease.
[9]
The monthly rental payable in terms of the agreement is R6,000,
payable by the first respondent in advance without deduction
or
set-off on the first day of each month.
[10]
In addition, the first respondent is also liable for the costs of
electricity, water, sewage and other related charges in respect
of
the premises monthly on demand.
[11]
In the event of the first respondent failing to pay any amount due to
the applicant on due date during the initial period,
and remaining in
default for 20 business days after despatch of a written notice
calling upon her to remedy such breach, the applicant
shall be
entitled forthwith to cancel the lease and claim all arrear rentals
and/or any other damages from her, and claim repossession
of the
premises.
[12]
It appears that the third respondent has remained in occupation of
the premises since inception of the agreement, whereas the
first
respondent either vacated the premises shortly after the lease was
concluded, or never took occupation thereof.
The
evidence of the third respondent regarding non-payment and purported
cancellation
[13]
It is common cause that as at 9 May 2017, the first respondent was in
arrears with the rentals and related charges payable
by her in an
amount of R6,290.
[14]
In the answering affidavit filed on his behalf, the third respondent
denied that the first respondent resides or has ever resided
at the
premises.
[15]
The third respondent averred that he paid his rental up until
June 2017, whereafter he withheld his payments ‘in
an attempt
to compel the Applicant to enter into meaningful engagement regarding
my [his] numerous unaddressed grievances.’
These grievances
include the fact that his deposit was not invested in an
interest-bearing account, that the applicant’s
agents failed to
attend to his complaints regarding lack of maintenance of the
premises, and that he was being charged for parking
and water meter
rates without having consented thereto.
The
letter of demand
[16]
The applicant alleges that on 9 May 2017, it caused a letter of
demand to be delivered, by hand, to the first respondent. The
letter
was delivered by the building manager of the applicant’s
managing agents, Mr. Dylan Oelofse (‘Oelofse’).
Oelofse
filed a confirmatory affidavit confirming that the letter was
delivered by hand to the first respondent. He does not state
that he
handed it to her personally, nor where it was so delivered.
[17]
The third respondent placed this allegation in dispute. He denied
that a letter of demand was delivered to the first respondent.
However, he then goes on to confirm that he in fact received the
letter of demand, which he said had been pushed under the door
of the
premises.
[18]
The third respondent annexed a deposit slip reflecting a payment by
him of the amount of R6,000, which was made on 23 May 2018.
He
alleged that by making this payment within 20 business days from
receipt of demand, he paid ‘almost all of the outstanding
money
that was owing to the applicant. He admits failing to pay the balance
of R290,00, which he contends was made up of the applicant’s
unilaterally imposed charges for water and parking, with which he did
not agree.
[19]
The applicant annexed its statement for the period from April 2017 to
June 2017. The payment made on 23 May 2017 does not appear
on the
statement, and the balance due and owing for June 2017 is reflected
as being R12,580. It appears from the statement that,
notwithstanding
the May payment, the first respondent was still in arrears in an
amount of R6,580. Suffice it say it is common
cause that the first
(or third) respondent failed to make payment of the full amount due
and owing to the applicant, notwithstanding
the written demand which
he admits having received.
[20]
As a result of the failure to bring the arrears up to date within the
requisite 20-day period, the applicant cancelled the
agreement on 6
June 2017, exactly 20 business days after demand, by which time the
first respondent’s arrears had increased
to R12,580.
Has
the agreement been validly cancelled?
[21]
The third respondent admits receiving the letter of cancellation,
however he states that it was given to him by the security
in the
complex, and not by Oelofse as alleged by the applicant. Nothing
turns on this. The fact of the matter is that he did receive
it.
[22]
A central defence of the third respondent is that, in terms of s
14(2)(a)(ii) of the Consumer Protection Act of 2008 (‘the
CPA’), the lessor is obliged to provide the consumer, upon
breaching the lease agreement, an opportunity of 20 days within
which
to rectify such breach, before cancellation can be effected.
[23]
The letter of demand, dated 9 May 2017, provides
inter alia
as
follows:
‘
Dear
Ms NS Mati
1)
As
the managing agent duly authorised to act on behalf of the landlord
hereby wishes to inform you that your account is in arrears
with
R6,290
for
rent and/or additional charges, arising out of your tenancy of the
abovementioned premises;
2)
You
are required to pay this amount within 7 (seven) days of date hereof
kindly fax/email proof of payment to the writer hereof.
3)
Failure
to effect payment as aforesaid will result in a summons being issued
against you without further notification and could,
in certain
circumstances, result in the cancellation of any lease that may be in
force.’
[24]
The third respondent did not provide any proof that he emailed or
faxed proof of payment of R6,000 on 23 May 2017 to the applicant’s
agents. The payment was made out of the seven-day period stipulated
in the letter of demand, but was within the 20 business days
provided
for in s 14 of the CPA.
[25]
On 6 June 2017, a letter of cancellation, addressed to the first
respondent, was hand delivered to the third respondent. In
this
letter, the applicant’s agent recorded that, notwithstanding
the written demand of 9 May 2017, the first respondent
had failed to
effect payment in full within the stipulated time period of the
amount referred to therein. The applicant conveyed
its election to
cancel the agreement, and notified the first respondent that she was
required to vacate the premises forthwith,
and by no later than 15
June 2017, failing which the applicant would institute eviction
proceedings against her without further
notice, and at her cost.
[26]
The third respondent contended that the letter fails to take into
account the R6,000 payment, and is flawed for the further
reasons set
out hereunder.
Joinder
of the third respondent
[27]
On 21 September 2017 the first respondent indicated that she wished
to oppose the application. The matter was postponed to
27 October
2017 to afford her an opportunity to deliver a notice of intention to
oppose and an answering affidavit. She did not
deliver either by such
date, and does not now oppose the relief sought.
[28]
On 27 October 2017, the third applicant entered the fray. He was
joined in the application and the matter was again postponed
to 14
November 2017 to afford him an opportunity to deliver an answering
affidavit, on the basis that he was already legally represented
at
the time.
[29]
On 14 November 2017, O’Brien AJ postponed the matter to the
semi-urgent opposed roll for hearing on 28 February 2018
and further
ordered the first respondent to continue paying her rentals and
related charges pending the final determination of
the relief sought
by the applicant. In breach of this order, the enforceability of
which may be questionable, neither the first
nor the third
respondents have paid any further rental amounts in terms of the
agreement.
Further
issues arising for determination
Is
the third respondent a ‘consumer’ in terms of the CPA?
[30]
The principal complaint raised by the third respondent is that, in
contravention of s14(2)(a)(ii) of the CPA, in terms of which
he was
to be afforded 20 business days within which to rectify his breach,
the applicant only allowed him a seven day period within
which to do
so. Following from this, the third respondent alleged that the
agreement was not properly cancelled for want of proper
notice in
compliance with the requisite ‘statutory and contractual
requirements.’
[31]
The so-called CPA defence was alluded to in the answering affidavit,
but was not dealt with in either the applicant’s
nor the third
respondent’s heads of argument. At the request of the court, Mr
Newton who appeared on behalf of the applicant,
and Mr. Langenhoven,
who appeared for the third respondent, undertook to furnish me with
written supplementary submissions regarding
this defence, and more
particularly whether the third respondent could be regarded as a
‘consumer’ in terms of the
CPA. I was only in receipt of
both sets of submission on 7 March 2018, which has delayed the
finalisation of this judgment, which
I hoped to delivery shortly
after argument was heard in the matter.
[32]
I turn now to consider the relevant provisions of the CPA, in the
context of the peculiar facts of this matter.
[33]
In section 1 of the CPA, the relevant definition of a ‘consumer’
in respect of any particular goods or services,
is:
‘
(a)
….
(b)
a person who has entered into a transaction with a supplier in the
ordinary course of the
supplier’s business, unless the
transaction is exempt from the application of this Act by section
5(2) or in terms of section
5(3)
(c)
if the context so required or permits, a user of those particular
goods or a recipient
or beneficiary of those particular services,
irrespective of whether that user, recipient or beneficiary was a
party to a transaction
concerning the supply of those particular
goods or services.’
(d)
….’
[34]
The relevant definition of ‘transaction’ in terms of
section 1 is:
‘
(a)
in respect of a person acting in the ordinary course of business-
(i)
…
(ii)
…
(iii)
the
performance by, or at the direction of, that person of any services
for or at the direction of a consumer for consideration;’
[35]
Mr Langenhoven contended that paragraph (c) of the definition of
consumer is qualified by the words ‘if the context so
requires
or permits’. He argued that in the context of this case, the
third respondent, who is described in terms of the
agreement as an
‘occupant’, was clearly intended to be a beneficiary in
terms of the agreement, and that it was envisaged
by both parties,
presumably here he is referring to the applicant and the first
respondent, that he would be a beneficiary of services,
and therefore
falls within the definition of ‘consumer’ in terms of the
Act. He pointed out that given that a distinction
is made in the
definition between ‘require’ and ‘permit’,
the context of this specific transaction
required
that the third respondent fulfil the ‘conditions’ and
therefore must fall within the ambit of a ‘consumer’.
[36]
In the alternative, he submitted that having regard to the context,
it is ultimately permitted that the third respondent is
defined as a
consumer, as it is he who has been occupying the premises and paying
the rental to the applicant.
[37]
The applicant on the other hand, held the view that based on the
express wording of the agreement, the third respondent is
not a
consumer in terms of the CPA.
[38]
In his further submissions, Mr. Newton, who appeared on behalf of the
applicant, pointed out the following (his underlining
added):
38.1
In clause 1 of the agreement it is expressly recorded that the first
respondent is the
sole
tenant in terms of the agreement;
38.2 The deposit, rentals and
other charges payable in terms of the agreement are ‘Tenant
Costs’;
38.3
Clause 4 of the lease provides that ‘
The
Landlord leases the premises to the
Tenant
,
and the
Tenant
hires
the premises from the landlord, in terms of this Lease.’
[39]
He emphasised that every single right and obligation under the lease
is either that of the applicant or the first respondent,
which is
underscored by the fact that clauses 24 and 25 only deal with
breaches of the agreement by either the Tenant or the Landlord,
who
were the sole signatories to the agreement.
[40]
Mr Newton argued further that the mere fact that the tenant has been
notified, in advance, that the occupier (the third respondent)
would
occupy
the premises together with the Tenant (the first respondent), cannot
somehow make the occupier the tenant and saddle the occupier
with the
tenant’s obligations, or, for that matter, clothe him with the
tenant’s rights.
The
interpretation of the Act and s 61 in particular
The
applicable definitions and tools of interpretation
[41] In the recent decision of
Eskom
Holdings Ltd v Halstead-Cleak
[1]
,
the Supreme Court
of Appeal
,
in
interpreting the CPA, had regard to the principles enunciated
in
Natal Joint
Municipal Pension Fund v Endumeni
[2]
and
Novartis v
Maphil.
[3]
It found that the interpretative process involves ascertaining the
intention of the legislature, but considers the words used in
the
light of all relevant and admissible context, including the
circumstances in which the legislation came into being. Furthermore,
as was said in
Endumeni
,
'a sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results. . .'.
[42]
The long title of the CPA provides that it is to promote a —
'fair,
accessible and sustainable marketplace for consumer products and
services and for that purpose to establish national norms
and
standards relating to consumer protection, to provide for improved
standards of consumer information, to prohibit certain
unfair
marketing and business practices, to promote responsible consumer
behaviour, to promote a consistent legislative and enforcement
framework relating to consumer transactions and agreements . . .'.
[43]
Schoeman AJA, who wrote the judgment for the SCA in
Eskom Holdings
Ltd v Halstead-Cleak,
referred to the Green Paper discussion of
the CPA, from which it is clear that a broad spectrum of consumers
needed protection:
'Perhaps one of the greatest
pitfalls in most consumer protection laws in South Africa, is the
absence of a uniform definition
of a consumer. This has resulted in a
difficulty for enforcers to accurately identify individuals that the
State seeks to protect.
Consumers must be defined broadly as
individuals who purchase goods and services, and must include
third parties who act on
behalf of the consumer. . . .
'
[4]
[44]
In terms of the provisions of s 2(1), the CPA must be interpreted in
a manner that gives effect to the purpose of the CPA,
as set out in s
3. That purpose is to promote and advance the social and economic
welfare of consumers, in particular vulnerable
consumers, in South
Africa.
[5]
If there is an inconsistency between the CPA and any other
legislation both Acts apply concurrently, to the extent that it
is
possible. If it is not possible, the provisions that extend the
greater protection to a consumer prevail over the alternative
provisions.
[6]
[45]
Section 5 concerns the application of the CPA. The relevant
provisions apply to every transaction occurring within South Africa
for the supply of goods or services or the promotion of goods or
services. Section 5(5) provides that if any goods are
supplied within the Republic to any person in terms of an exempt
transaction, those goods and the producer are nevertheless subject
to
s 61.
[46]
In
Eskom Holdings
supra,
at para 15,
the Court stated as follows:
‘
The
definition of 'consumer' in s 1 is a person to whom goods or services
are marketed in the ordinary course of a supplier's business,
or who
has entered into a transaction with a supplier in the ordinary course
of a supplier's business. The definition includes
a person who is a
user of the goods or a recipient or beneficiary of the particular
service irrespective of whether that person
was a party to a
transaction concerning the supply of the goods or services. This
has the effect that the recipient of a gift
from a consumer would
also be considered a consumer in terms of the Act. The important
features to note are that there must be
a transaction to which a
consumer is party, or the goods are used by another person consequent
on that transaction. ‘
[47]
From the definitions, the preamble and purpose of the CPA, as
detailed in the
Eskom
Holdings
decision
supra
,
and restated above, it is clear that the whole tenor of the Act is to
protect consumers. A consumer is a person who buys goods
and
services, as well as persons who act on their behalf or use products
that have been bought by consumers. There are categories
of persons
who fall outside this definition, but they are deemed to be
consumers in terms of the provisions of s 5(6) as set
out above.
These purchases are made by way of transactions. The Act must
therefore be interpreted keeping in mind that its focus
is the
protection of consumers.
[48]
In light of the above, and the broad definition of ‘consumer’
as envisaged in terms of the CPA, in my view the
third respondent
falls within the definition of a consumer, and is accordingly
entitled to the protection of the CPA, and, if necessary,
to invoke
the provisions of the CPA which are applicable to the peculiar
circumstances of his occupancy of the premises.
[49]
In the event of this court finding that the third respondent is a
consumer, and that the cancellation was invalid as it did
not specify
that he had 20 days within which to remedy this breach, the applicant
relied, in the alternative, on the provision
in section 5(3)
(o)
of the Rental
Housing Act 50 of 1999 (‘the
Rental Housing Act&rsquo
;).
[50]
Section 5(3)
(o)
of the
Rental Housing Act provides
that:
‘
should
the tenant vacate the dwelling before expiration of the lease,
without notice to the landlord, the lease is deemed to have
expired
on the date that the landlord established that the tenant had vacated
the dwelling but in such event the landlord retains
all his or her
rights arising from the tenant’s breach of the lease;’
[51]
Relying on the aforementioned section, Mr. Newton contended that the
lease terminated on the date on which the third respondent’s
answering affidavit was served on it, as this was the first time it
became aware that the first respondent had never taken occupation
of
the premises.
[52]
My view is that, in the peculiar circumstances of this case, it
would not be appropriate to invoke
section 5(3)
(o).
However, in light
of my finding that the agreement has been validly cancelled, it is
not necessary in any event to make a finding
in this regard.
[53]
Proceeding from the premise that the third respondent is a consumer,
and was accordingly entitled to 20 business days’
notice in
terms of
section 14
of the CPA, the next question which arises for
determination is whether he
de
facto
received such
notice, notwithstanding the erroneous reference in the letter of
demand to seven days within which he was required
to remedy his
breach.
[54]
Section
14(2)
, read with
section 14(2)(
a)
(ii)
of the CPA, provides that if a consumer agreement is for a fixed
term, the supplier may cancel the agreement 20 business days
after
giving written notice to the consumer of a material failure by the
consumer to comply with the agreement, unless the consumer
has
rectified the failure within that time.
[54]
The somewhat formalistic argument relied upon by Mr. Langenhoven is
that the cancellation is a nullity, or the agreement was
never
validly cancelled, because the applicant failed to inform the first
respondent, and by implication him, of the right to remedy
the breach
within 20 days. In terms of the letter of demand the first respondent
was notified that she has seven days within to
remedy the breach.
[56]
To my mind this reads too much into what is required in terms of the
CPA. There is no requirement, express or implied, that
the consumer
must be expressly
notified
of the fact that he has twenty business days to remedy his defect.
The fact of the matter is that the letter of cancellation was
only
delivered after the full 20 business days had elapsed, and he
therefore had the full statutorily prescribed period within
to remedy
his defect. It is common cause that neither he nor the first
respondent made payment of the full amount due and owing
to the
applicant within the 20-day period. To my mind the applicant was
therefore entitled, in terms of
section 14
of the CPA, to cancel the
agreement, and the cancellation was accordingly valid.
[57]
It follows that from the date of cancellation, neither the first
respondent, nor the third respondent who occupied the premises
through the first respondent, had any right in law to remain in
occupation thereof.
[58]
The applicant is the owner of the property. The third respondent has
no lawful title to remain in occupation of the property.
He is an
unlawful occupier as envisaged in the PIE Act, and the applicant is
entitled to an order evicting him from the premises.
[59]
The only questions which therefore remain are whether it is just and
equitable to evict the third respondent, and if so, what
date will be
just and equitable for such eviction to be carried out.
[60]
Mr. Langenhoven enjoined the court, if it was decided that the third
respondent is to be evicted, to only grant such an order
after
consideration of all relevant circumstances.
[61]
The agreement commenced on 1 March 2017. These proceedings were
initiated on 15 August 2017. Accordingly section 4(7) of the
PIE Act,
which provides that where an unlawful occupier has occupied the land
in question for more than six months at the time
when the proceedings
are initiated, a court may grant an order for eviction if it is of
the opinion that it is just and equitable
to do so, after considering
all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant
to a mortgage, 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, does not apply.
[62]
Section 4(6) of
the PIE Act, which finds application in the present matter, provides
that
if
an unlawful occupier has occupied the land in question for less than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering all the
relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed by women.
[63]
The question of the availability of land for the relocation of the
third respondent and his family does not arise, notwithstanding
the
third respondent’s contention to the contrary.
[64]
Mr Langenhoven relied on the following passage in the SCA judgment in
The
Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele
[7]
,
in
support of his submission that this court should, in addition to the
factors listed in section 4(6), also have regard to the
availability
of alternative land:
‘
In terms of s 4(7) a court
is obliged, in addition to the circumstances listed in s 4(6),
namely, the rights and needs of the elderly,
children, disabled
persons and households headed by women, to give due weight to the
availability of alternative land. There is
nothing to suggest that in
an enquiry in terms of s 4(6), a court is restricted to the
circumstances listed in that section. The
court must have regard
to all relevant circumstances. The circumstances identified
are peremptory but not exhaustive.
14
The
court may, in appropriate cases, have regard to the availability of
alternative land. However, where the availability
of alternative land
is relevant, then it is obligatory for the court to have regard to
it.’
[65]
He further relied on the recent Constitutional Court decision in
Occupiers Erven 87
and 88 Berea v Christiaan De Wet
[8]
,
the court held
that:
‘
The
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 these 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.’
[66]
Mr. Newton in turn referred to the recent decision in this division
of
Jacobs
v Communicare and Another
[9]
where
the court (per: Gamble J and Kose AJ) stated the following in
relation to the distinction between applications under section
4(6)
and section 4(7) of the PIE Act:
‘
In
light of the fact that the appellant's period of unlawful occupation
did not exceed six months, the first respondent was entitled
to
approach the court in terms of the provisions of s 4(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 fewer than six 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 six months and
where the
provisions of s 4(7) of PIE are triggered.’
[67]
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 I 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)
'.
[68]
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.
[69]
Turning to the purpose of requiring a local authority to furnish such
information, the Supreme Court of Appeal in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
[10]
observed
as follows:
'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.’
[70]
Several of the cases to which I was referred by Mr. Langenhoven are
clearly distinguishable from this matter, on the facts.
They involve
occupiers who indeed face a real risk of homelessness. That is
clearly not so in the case of the third respondent,
and his
protracted opposition of the application strikes me as opportunistic.
[71]
In the
Berea v De
Wet Non
case
supra,
the provisions of
section 4(7) of the PIE Act applied. The court was accordingly
statutorily enjoined to consider the availability
of alternative
accommodation. Furthermore, the Constitutional Court observed as
follows:
‘
on
the facts before it homelessness was an undisputed risk. An order
that will give rise to homelessness could not be said to be
just and
equitable, unless provision been made to provide for alternative or
temporary accommodation. That risk triggered the duty
to join the
City as the authority that would have to take reasonable measures
within its available resources to alleviate homelessness
[11]
.
It follows that where there is a
risk that homelessness may result, the availability of alternative
accommodation becomes a relevant
circumstance that must be taken into
account. A court will not be able to decide the justice and
equity of an eviction without
hearing from the local authority upon
which a duty to provide temporary emergency accommodation may rest.
In such an instance the
local authority is a necessary party to the
proceedings. Accordingly, where there is a risk of homelessness,
the local authority
must be joined.
[12]
’
[72]
Does such a risk exist in the present matter? The third respondent is
employed as a designer and earns approximately R8,230
per month. His
wife, who is also a foreign notional, is employed as a call-centre
operator, and earns approximately R7,000 per
month. Their combined
household income is in excess of R15,000 per month. They have an
infant son, who was seven months old when
the answering affidavit was
deposed to, and who resides with them. There is another occupier, an
adult female described on the
papers only as ‘Cebile’,
who is working and studying according to the third respondent. It is
not clear what the basis
of her occupation is, whether she has pays
rental to the third respondent, and whether the first respondent has
ever been aware
that there is an additional person residing on the
premises together with the third respondent and his family.
[73]
The third respondent claims that he uses his income to pay the rental
and support his family, and that his wife’s income
is used to
pay all further expenses. He avers that they therefore do not have a
deposit saved to secure alternative accommodation.
[74]
What the third respondent fails to say is that he has not paid any
rental since 24 May 2017, a period of almost ten months.
He has been
living rent free in the premises, at the expense of the applicant. He
therefore should have in excess of R60,000 available
as a ‘saving’
to secure new premises. His explanation and claim that an eviction
will render them homeless accordingly
does not bear scrutiny.
[75]
The last arrow in the third respondent’s quiver is that, owing
to the fact that he and his wife are foreign nationals,
an eviction
order ‘without sufficient time to secure alternative
accommodation or to explore the possibility thereof through
meaningful engagement with the applicant and the second respondent,
will render us homeless and effectively on the streets.’
[76]
The third respondent was able to secure the premises as a ‘stand
in’ for the first respondent, and has not furnished
any details
of attempts made to secure alternative premises, notwithstanding that
he has been aware of these proceedings for his
eviction since the
middle of last year.
[77]
His son would not yet have been enrolled at school and there is no
reason given why he would not be able to secure alternative
premises
if not in the area in which he is living, then in another suitable
area.
[78]
The third respondent’s attorneys sought to raise a number of
further formalistic , and in opinion, baseless arguments
relating to
the applicant’s failure to maintain the premises and to
‘meaningfully engage’ with him regarding
his further
occupation.
[79]
The third respondent has made no attempt to pay any amount whatsoever
towards the arrear rental due and owing. When questioned
in this
regard at the hearing, his attorney was unable to furnish an
explanation for such failure. These arguments to my mind are
without
any merit and need not be dealt with further.
[80]
Having considered the third respondent’s and his family’s
circumstances, I am of the view that it is just and equitable
to
grant an eviction order.
[81]
I consider that a period of six weeks should suffice for the third
respondent to secure alternative accommodation.
[82]
I am not inclined to grant a punitive costs order as sought by the
applicant, however there is no reason why costs should not
follow the
result.
[83]
In the circumstances, the following order is made:
83.1
The first and third respondents and all those claiming occupation
through and under them are evicted
from Flat [...] R. M., D. D.,
Parklands, Cape Town, and are ordered to vacate Flat [...] R. M., D.
D., Parklands, Cape Town before
1 May 2018.
83.2 In the event of the first
and third respondents and all those claiming occupation through and
under
them failing to vacate Flat [...] R. M., D. D., Parklands, Cape
Town on or before 1 May 2018, the Sheriff of the above Honourable
Court or his lawful deputy is authorised, directed and empowered to
carry out the eviction order on the 03 May 2018;
83.3
The third respondent is ordered to pay the costs of this application.
___________________
HOLDERNESS
AJ
APPEARANCES
For the Applicant:
Adv A Newton
Instructed
by:
Lamprecht Attorneys
For the Third Respondent:
Mr Langenhoven
Instructed
by:
Langenhoven Attorneys
[1]
2017 (1) SA 333 (SCA)
[2]
2012 (4) SA 593
(SCA)
[3]
2016 (1) SA 518
(SCA)
[4]
Draft
Green Paper on the Consumer Policy Framework, GN 1957,
GG
26774
of 9 September 2004
[5]
The same purpose has been
set out in the preamble of the Act.
[6]
Eskom Holdings supra
at
para 12
[7]
(102/09) [2010] ZASCA 28
[8]
2017 (5) SA 346
(CC) at
para 48, and the authority cited there
[9]
2017(4) SA 412 (WCC)
[10]
2012
(6) SA 294 (SCA)
at
para 47
[11]
at para 57
[12]
at para 61 and the authorities cited in footnote
53