About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 158
|
|
Jeremiah v Communicare, a non-profit company and Another (A55/2018) [2018] ZAWCHC 158 (21 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: A55/2018
In
the matter between:
Jenette
Nosipho Jeremiah
Appellant
And
Communicare,
a non-profit company
(REG
NO: 1929/01590/08)
First
Respondent
The
City of Cape Town
Second
Respondent
JUDGMENT DELIVERED ON 21 AUGUST
2018
BAARTMAN,
J
[1]
On 22 August 2017, the magistrate at Cape Town evicted the appellant,
in terms of the Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act, 19 of 1998 (
PIE
), from the premises
situated at […] S road, off Koeberg, Brooklyn (
the
property
). This is an appeal against that order. I deal with the
grounds of appeal to the extent necessary below.
[2]
It was common cause that Communicare, a non-profit company, (
the
first respondent
) was the registered owner of the property.
Pursuant to a written lease, the appellant has occupied the property
since 6 April
2011. In December 2016, the appellant
defaulted on her rental payment which was due on the first of the
month. The first letter
of demand, sent by registered post, was dated
8 December 2016. Nonetheless, the appellant also defaulted in respect
of the next
payment, due 1 January 2017. In similar correspondence,
dated 9 January 2017, the first respondent demanded that the
appellant
remedy the breach by 16 January 2017. She neglected to do
so. In correspondence, dated 23 January 2017, also sent by registered
post, the first respondent cancelled the lease agreement and demanded
that the appellant vacate the property immediately.
[3]
The appellant admitted that she had breached the lease agreement by
failing to meet her obligations in respect of the December
and
January rental payments. However, she alleged that she had approached
the first respondent before the December payment was
due and had
attempted to make arrangements to settled ‘the outstanding
amount the following year’. The appellant alleged
that she had
been advised to return in January 2017. Apparently, the staff who
could assist her were not available over the festive
season. She duly
returned in January and arranged to settle the rental arrears.
Pursuant to that arrangement, she settled the arrears
on 5 February
and in March. The appellant alleges that she did not receive the
registered post referred to above. The PIE notice
came as a shock as
she had honoured the arrangements to settle the arrears. The grounds
of appeal flow from this version.
[4]
Clause 28 of the lease provides the following in the event that the
tenant defaults:
‘
28.1 In the event that the
Tenant –
28.1.1
fails to pay any amount payable in terms of this Lease on due date;
…and fails to remedy such breach within 7 days
of receipt of
written notice calling upon the Tenant to do so,
Then and in such event the Landlord
shall be entitled to end this Lease without prejudice to any rights
of the Landlord and to sue
for and recover any payment or moneys due,
…’
[5]
The appellant took several points
in limine
, I deal with them
to the extent necessary below:
Failure
to comply with clause 29 of the lease agreement
[6]
Clause 29 of the lease agreement provides as follows:
‘
29.1 The Parties select as
their respective domicilia citandi et executandi for purposes of
giving or sending any notice provided
for or required under this
Lease…
29.2 All notices to be given in terms
of this Lease will be given in writing and will –
29.2.1
be delivered by hand or sent by telefax;
29.2.2
if delivered by hand during business hours, be presumed to have been
received on the date of delivery. Any notice delivered
after business
hours or on a day which is not a business day will be presumed to
have been received on the following business day;
and
29.2.3
if sent by telefax during business hours, be presumed to have been
received on the date of successful transmission of the
telefax. Any
telefax sent after business hours or on a day which is not a business
day will be presumed to have been received on
the following business
day.
29.3 Notwithstanding the above, any
notice given in writing, and actually received by the Party to whom
the notice is addressed,
will be deemed to have been properly given
and received, notwithstanding that such notice has not been given in
accordance with
this clause 29.’
[7]
The notices relevant to these proceedings were sent by registered
mail. It follows that clause 29.3 finds application. In terms
of that
clause, proof that the notice was ‘actually received’ is
required. The court
a quo
found:
‘
The burden of proof that the
respondent has not received any of the letters of demand sent by
registered post rests on her. It is
sufficient for the applicant to
have sent the letters of demand via registered post and to have
attached the registered proof of
postage. There is no reason to
believe that the respondent did not receive these letters of demand
and no reasons are forwarded
as to why she would not have received
same.’
[8]
It is not apparent on what basis the court
a quo
required the
appellant to prove that she did not receive the notices. It is
a basic principle of our law that he who alleges
must prove. On that
basis, in the circumstances of this matter, the first respondent has
the burden to show that the appellant
actually received the notices.
The court
a quo
, without any justification, shifted a negative
burden of proof to the appellant. The court erred. It should have
enquired whether
the first respondent met its burden of proof in
terms of clause 29.3, i.e. whether the appellant ‘actually’
received
the notices.
[9]
The dictionary meaning of
‘actually’ is: ‘as the truth or facts of a
situation. As a matter of fact; even.
[1]
’
In order to meet that burden, the first respondent annexed ‘the
registered proof of postage’. In the circumstances
of this
matter, the first respondent in so doing proved no more than that the
notices were sent. I can conceive of no reason, and
none was
proffered, for the first respondent’s inability to have
provided proof of actual receipt. The track and trace reports
were
not annexed and the reason for that the failure does not appear from
the record. In the circumstances of this matter, in the
absence of
proof that the registered posts were dispatched to the correct post
office, there are not even facts on which a court
can find on a
balance of probabilities that the notices reached the appellant.
[2]
[10]
The first respondent’s counsel submitted that it had to proceed
by way of registered post to meet the requirements set
in the
Magistrate’s Court Rules. However, that cannot relieve the
first respondent of its burden in terms of the lease nor
shift the
burden to the appellant. I also do not consider it onerous if
the first respondent, in these circumstances, sent
the same notice
via telefax obviating the need for actual proof of receipt.
[11]
In the circumstances of this matter, the first respondent has failed
to show that the appellant actually received the notices.
The first
respondent would only have been able to terminate the lease on
account of the admitted breach after a properly served
notice was not
complied with, within 7 days of receipt. There is nothing to gainsay
the appellant’s assertion that she did
not receive the notices.
It follows that the appellant was not placed
in mora
and that
the eviction proceedings were prematurely initiated.
Agreement
in respect of the arrears
[12]
Even if I am wrong, the first respondent has failed to deal with the
appellant’s allegation that she made arrangements
to settle her
arrears and complied with the arrangements which were satisfactory to
ward off the institution of eviction proceedings.
The appellant said
the following about the arrangement to settle her outstanding
arrears:
‘…
I again approached the
[first respondent’s] rental office during mid to end January
2017, to make arrangements for settling
my arrears. I was told I can
make payment on the arrears and did so as soon as I was financially
able.
I then, in terms of this arrangement,
made my first rental arrears payment on 5 February…
I was shocked, when…I was
served with an eviction notice and a summons…’
[13]
The response to these allegations was a terse denial. Nevertheless,
it found favour with the trial court which held:
‘…
There is no proof that
the [first respondent] or any of its representatives entered into any
further agreements with the [appellant].
In order for any further
agreement to be valid, it would have had to be reduced to writing.
The Court does not accept that the
[first respondent] had extended the period of the lease agreement
with the [appellant].
The mere fact that the [appellant]
alleges that arrangements were made with her to pay arrear rental
does not mean it included
an extension of the lease…’
[14]
The court
a quo
was prepared, it seems, to accept the
appellant’s version that she had approached the first
respondent as alleged. In the
absence of a version from the first
respondent as to the outcome of those negotiations, it is not clear
on what basis the trial
court rejected the appellant’s version
of the negotiations. It follows that the appellant’s version
that she had an
arrangement, which she honoured and which should have
warded off eviction proceedings, stands to be accepted. Nothing
prevented
the first respondent from not exercising its option to
cancel the contract which appears to have been the appellant’s
understanding
of the settlement arrangements. It follows that she
would have been shocked when she received the PIE application. It
follows that
also on this basis, the eviction proceedings were
prematurely instituted.
The
CPA finds application
[15]
In addition, the appellant submitted that section 14(2) of the
Consumer Protection Act, 68 of 2008 (
the CPA
) finds
application to the lease agreement. As indicated above, the lease may
be terminated upon failure to remedy a breach within
7 days of
demand. That notice period, so the submission went, fell foul of the
CPA because instead of 7 days it should have been
20 business days as
prescribed in the section in section 14(2)(b) (ii) that provides:
‘
(2) If a consumer agreement is
for a fixed term –
…
(ii) 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 rectified the failure within that
time.’
[16]
The court
a quo
held:
‘
The Court is in agreement with
the [respondent] when it argues that the [CPA] will only find
application if the lease is for a fixed
period. This Court does not
have the jurisdiction to extend the provisions of the Act to a lease
which is not for a fixed period.’
[17]
Challenged by the Makah
decision
[3]
,
the appellant sought – persuasively – to distinguish this
matter from the Makah judgement. In Makah, the court held:
‘
[11] An agreement which imposes
a month-to-month residential lease is a consumer agreement falling
within the ambit of the Act.
However, the point of departure is that
cancellation in terms of Section 14(2)(b)(ii) is only applicable to
fixed-term contracts.
It would be disproportionate to invoke a
20-business day notice to cancel a monthly lease…
[14] To read into the CPA that this
20-day notice requirement applies to a monthly and indefinite lease,
would be to offer protection
in circumstances not envisaged by the
Act....’
[18]
I accept that the lease relevant to these proceedings is an
indefinite lease which is intended to provide the appellant with
secure accommodation. Hence clause 3 provides as follows:
‘
3.1 This Lease will start
…endure indefinitely.
3.2 Either Party may end this Lease by
giving 1 (one) month’s written notice to that effect to the
other.’
[19]
The lease provides for incapacity as follows:
‘
20.2 In the event that the
Tenant is no longer able to care for himself adequately, …the
Landlord may, in its sole discretion,
elect to cancel this Lease on 2
(two) month’s written notice to the Tenant…’
[20]
I accept, considering the above
allowance, 1 month for choice cancellation and 2 months for
incapacity cancellation; a mere 7 days,
therefore, to remedy a breach
that may result in cancellation, in the circumstances of this matter,
offends public policy.
[4]
This must be so considering that homelessness might follow
cancellation of the lease and the appellant falls within the
low-income
group. There is a distinct financial benefit for the
consumer built into this indefinite lease – low cost and secure
housing
– which is lost within 7 days if the consumer fails to
remedy the breach. The protection the lease affords both parties to
the lease for voluntary cancellations and incapacity is lost to the
defaulting tenant without any obvious reason. This is against
the
spirit of the CPA, which has as its purpose, among others,
eradicating the difficulty that low-income communities experience
in
their economic life.
[5]
[21]
Regulation 5(1)
of the
Consumer Protection Act Regulation
, Government
Gazette, 1 April 2011 (No. 34180) provides:
‘
For purposes of section
14(4)(a) of the Act, the maximum period of a fixed-term consumer
agreement is 24 months from the date of
signature by the consumer –
(a)
unless such longer period is
expressly agreed with the consumer and the supplier can show a
demonstrable financial benefit to the
consumer…
’
[22]
The indefinite lease, in the circumstances of this matter, is for a
longer period – 7 years to date. The benefit
to the
consumer is obvious. A high premium is placed, for obvious reasons,
on secure and affordable housing for the lower income
group. The rent
payable in this matter was R1 821.14 per month when the
appellant fell into arrears. The property, in Brooklyn
in the Western
Cape, is close to transport, schools and the mainstream business
environment. The ‘Income Target’ is
described as follows
in the lease:
’
21.1.1 The Landlord has based
the Rental on the concept of an Economic Cost Recovery policy and
formal obligations which it owes
to various governmental bodies which
determines to whom it may let its premises; and
21.1.2 The Landlord cannot, in terms
of public regulation, let the Premises to a Tenant whose combined
monthly household income
exceeds the amount of R7 500…which
amount will be adjusted in line with future adjustments applied by
the Department
of Human Settlements to respond to inflation…’
[23]
The first respondent is a
private non-profit organisation that provides accommodation in the
normal course of business. It follows
that the provisions of the CPA
find application in this instance. The protections envisaged in the
CPA are those afforded to the
landlord and tenant in the lease’s
cancellation clauses referred to above. Denying that protection to
the tenant in the event
of a material breach seems contradictory, is
against the spirit of the CPA and offends the values of the
Constitution.
[6]
This is so because the rights to dignity and housing are compromised
for no apparent reason. The situation, in these circumstances,
can be
remedied with few, if any, consequences to the first respondent.
[24]
Conversely, it may have life altering or even life-threatening
consequences, i.e. homelessness, for persons in the position
of the
appellant. The appellant described her position when entering into
the lease as follows:
‘
2.2 …I was in dire need
of accommodation and had my minor daughter residing with me. I had
been forced to leave my boyfriend
at the time who was physically
abusive and threatened to kill me.
2.3 I was earning a limited salary of
about R3 000 per month at the time and was receiving no maintenance
from the biological father
of my child.
2.4 The [first respondent] …indicated
that we qualified for social housing assistance through their
organisation.’
[25]
In these circumstances, the
secure tenancy granted to the appellant is more than the 24 months
referred to in Regulation 5(1) and
exactly the circumstances in which
the CPA envisaged protection. I accept that this contract is
distinguishable from the one dealt
with in Makah and is one that has
‘
a demonstrable
financial benefit to the consumer…
’
I am persuaded that this contract is one envisaged in Regulation
5(1)(a) above. It follows that the 7-day notice period
is
unenforceable for non-compliance with the CPA; in addition, it
offends the values of the Constitution and public policy.
[7]
Instead, 20 business days’ notice should have been given to the
appellant. Also, on this ground, the appeal must succeed.
Conclusion
[26]
I, for the reasons stated above, make the following order with which
Parker J concurred:
(a) The appeal succeeds with costs.
(b) The order of the court
a quo
is set aside and replaced with:
‘
The
application is dismissed with costs
.’
_____________________________
BAARTMAN
J
I
concur.
_____________________________
PARKER
J
[1]
Concise Oxford English Dictionary.
[2]
Baliso v Firstrand Bank
Ltd t/a Wesbank
2017 (1) SA 292
and Kubyana v Standard Bank of
South Africa Ltd [2014] ZACC 1.
[3]
Makah v Magic Vending (Pty)
Ltd
2018 (3) SA 241
(WCC)
– at paras 11 and14.
[4]
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) para 29 -30.
[5]
The
Consumer Protection Act, 68 of 2008
, Chapter 1, Part B
section
3.
[6]
The Constitution, Act 108 of 1996.
[7]
Barkhuizen
above at para 29: ‘What public policy is and whether a term in
a contract is contrary to public policy must now
be determined by
reference to the values that underlie our constitutional democracy
as given expression by the provisions of
the Bill of Rights. Thus a
term in a contract that is inimical to the values enshrined in our
Constitution is contrary to public
policy and is, therefore,
unenforceable.’