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[2018] ZAWCHC 138
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Afrikaanse Christelike Vroue Vereniging van Robertson and Another v Folscher and Another (23256/17) [2018] ZAWCHC 138 (29 October 2018)
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OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: 23256/17
In
the matter between:
DIE
AFRIKAANSE CHRISTELIKE VROUE VERENIGING
VAN
ROBERTSON
1
st
Applicant
DEDRIKA
MAGDALENA
SMIT
2
nd
Applicant
and
THE
HONOURABLE MAGISTRATE OF ROBERTSON,
MR
JH
FOLSCHER
1
st
Respondent
MICHAEL
CASPARUS
SWART
2
nd
Respondent
COURT:
HENNEYJ et CLOETE J
HEARD:
12 OCTOBER 2018
DELIVERED:
29 OCTOBER 2018
JUDGMENT
CLOETE,
J:
INTRODUCTION
[1]
This is an application for the review and setting aside of the
decision of the first respondent (“the magistrate”)
on 27
October 2017 postponing an application brought by the applicants for
the summary eviction of the second respondent (“Swart”)
pending determination of a High Court action in which Swart seeks to
hold the first applicant (“ACVV”) to a sale agreement
in
which he purchased a life right of occupation of a particular unit at
a retirement centre in Robertson. The second applicant
(“Smit”)
is the person to whom that life right was on-sold after ACVV advised
Swart in writing that the sale agreement
was cancelled. The
applicants also seek an order for Swart’s eviction by this
court under PIE
[1]
. The
application is only opposed by Swart.
[2]
The ground of review is that the magistrate committed a gross
irregularity in acting
ultra vires
the powers conferred upon him by the Magistrate’s Court Act 32
of 1944 (and rules promulgated thereunder). It is contended
that he did not have the power to effectively stay the determination
of the eviction application for such a period and was instead
obliged
to determine it on its merits.
[3]
The special circumstances upon which the applicants rely in seeking
to have this court make a finding on the merits of the eviction
application pertain primarily to the nature of the prejudice which
Smit and her daughter will continue to suffer if Swart is not
evicted
until the pending High Court action is finally determined.
[4]
Swart contends that it fell within the magistrate’s powers to
make the order that he did. He also maintains that
in any event
he is not an unlawful occupier but that, even if this is the case,
there is insufficient information before this court
to determine
whether it is just and equitable to evict him
[2]
.
BACKGROUND
[5]
On 1 June 2016 ACVV and Swart, currently 78 years old, concluded the
sale agreement in which Swart purchased the life right
for the sum of
R750 000. It is common cause that the life right is a
personal and not a real right.
[6]
Clause 1.2 of the sale agreement stipulated that the purchase price
was payable when Swart sold his house. According to
ACVV no
date by which this was to occur was specified because it accepted, in
good faith, Swart’s assurances that the sale
of his house was
imminent. Clause 2 provided that Swart was entitled to occupy
the unit (the subject matter of his life right)
as from 1 July 2016
and after all terms and conditions in the sale agreement were
fulfilled. However the same clause makes
provision for
occupational rental to be paid should the date of signature not
coincide with the date of occupation, namely R2 500
per month
for so long as Swart does not physically occupy the unit and R5 000
per month thereafter.
[7]
Clause 3 stipulates that risk and benefit pass on occupation, from
which date Swart is also liable for levies, and clause 4
that the
life right is only acquired on payment of the purchase price.
Finally, clause 10 provides that the sale agreement
may only be
varied, supplemented or cancelled by way of a further written
agreement. During argument before us it was conceded
by counsel
for Swart that a clause such as this does not apply in the case of a
breach of the agreement.
[8]
Swart paid R2 500 plus the levy of R665 monthly in advance for
the period July 2016 to January 2017, it being common cause
that he
did not physically occupy the unit during that period, although he
had been provided with a key for the unit and a remote
control device
for the entrance gate.
[9]
After 5 months Swart’s house had still not been sold, nor had
he paid the purchase price. The ACVV came under increasing
pressure from the previous owner who required reimbursement from the
proceeds of the sale to Swart. On 29 November 2016 ACVV
wrote
to Swart placing on record that his house had not yet been sold
despite the elapse of 5 months from conclusion of the sale
agreement. He was given a final opportunity to sell same under
an unconditional sale by not later than 31 December 2016,
failing
which ACVV would cancel the sale agreement on the basis that he had
not complied with clause 1.2 within a reasonable period.
He was
informed that, should the sale agreement be cancelled, the life right
would be on-sold to a third party.
[10]
Swart’s response was that the sale agreement could only be
varied or cancelled by means of a further written agreement
and that,
in the absence thereof, ACVV could not compel him to sell his house
within 30 days. He consequently ignored the
ultimatum. On
11 January 2017 ACVV cancelled the sale agreement (the letter of
cancellation was not included in the record
before us).
[11]
On 25 January 2017 ACVV on-sold the life right to Smit for R740 000.
She paid the purchase price within a few days.
But, because she
still resided in Kempton Park, Gauteng at the time, the key and
remote control were retained by ACVV on Smit’s
behalf for
collection upon her arrival. Smit has a 44-year old severely
mentally disabled daughter, Marika, and it was a
term of the sale
agreement between ACVV and Smit that Marika would be able to reside
with her, and be cared for by ACVV in the
event of Smit, who is 67
years old, predeceasing her. ACVV duly settled the amount owing
to the previous owner from the purchase
price received from Smit.
[12]
Swart was informed of the on-sale to Smit immediately after payment
was received from her by ACVV. He was called upon
to hand over
the key and remote control device, and to furnish his bank account
details so that he could be refunded occupational
rental and levies
paid subsequent to cancellation of the sale agreement. Swart
ignored these requests, steadfastly continuing
to pay the monthly
occupational rental and levy.
[13]
On 24 April 2017 ACVV became aware that Swart had moved certain
personal items into the unit. A demand was sent to his
attorney
for him to desist. This had the opposite effect, and Swart
moved more of his possessions into the unit under cover
of darkness,
despite an undertaking provided by his attorney to the contrary.
The ACVV advised that it intended taking back
possession on the basis
of counter-spoliation and proceeded to place a chain and lock on the
entrance gate, thereby preventing
Swart from gaining access.
[14]
Swart then obtained an interim spoliation order ex parte in the
magistrate’s court on 4 May 2017, with a return date
of 26 May
2017. The ACVV opposed the granting of final relief. The
matter was argued on 2 and 23 June 2017 and on 15
August 2017 the
magistrate handed down judgment, setting aside the interim order and
dismissing the application with costs.
[15]
Swart noted an appeal against the magistrate’s order. The
appeal was heard by Gamble and Sher JJ on 23 February
2018 and
dismissed with costs on 29 March 2018. It is apparent from the
appeal judgment that Swart had moved into the unit
permanently on 25
May 2017, i.e. one day before the scheduled return date of the
interim spoliation order. This was not disclosed
to the
magistrate and only to the appeal court when it insisted on being
provided with this information. The appeal was dismissed
on the
basis that it would have no practical effect in the circumstances.
[16]
On 2 May 2017 Swart issued summons in this court under case no
7573/17 for orders declaring his sale agreement with ACVV valid
and
enforceable and that ACVV “
take all
necessary steps to give effect to the said agreement, including
respecting (or alternatively giving) Plaintiff unfettered
occupation
of the property
”. He
simultaneously tendered payment of the purchase price, alleging that
his house had been sold for R1.4 million
on 5 April 2017. He
referred to the relevant deed of sale in his particulars of claim as
an annexure thereto but it does
not form part of the record before
us. Although Smit was cited as a co-defendant, no relief was
sought against her.
[17]
The ACVV delivered its plea on 20 June 2017. It pleaded at
paragraph 4.3.1 thereof that (as set out in clause 4 of the
sale
agreement) Swart only acquired the life right upon payment of the
purchase price. It was also pleaded at paragraph 8.1
thereof
that on 5 April 2017 Swart (it would appear, for the first time)
tendered payment of the purchase price on 30 April 2017,
which
payment date was 3½ months after ACVV had cancelled and about
3 months after the life right was transferred to Smit.
ACVV
denied that in the circumstances it was obliged to accept payment of
the purchase price.
[18]
On 25 August 2017 ACVV and Smit launched the urgent eviction
application in the magistrate’s court which gave rise to
the
present review before us. Smit had arrived to take physical
occupation of the unit, still occupied by Swart, with her
daughter
Marika. They were having to be accommodated by ACVV on a
temporary basis in a small guest room without private ablutions
on
any other facilities. I will return to this later in this
judgment.
[19]
The eviction application was brought in terms of section 5 of PIE,
which authorises the owner or person in charge of land to
institute
urgent proceedings for the eviction of an unlawful occupier pending
the outcome of proceedings for a final eviction order.
The
service order envisaged in section 5(2) of PIE informed Swart that
the following relevant relief was sought, namely his summary
eviction
within 24 hours and “
in case for an
order pendente lite, the setting of a date for the hearing of an
application for a final order
”. A
punitive costs order was also sought, but in paragraph 34 of the
founding affidavit the deponent, ACVV’s
manager, Ms Heidi van
der Merwe explained that what was asked for on an interim basis was
Swart’s eviction only, so that
he would be afforded the
opportunity to address the issue of costs on the return date.
[20]
At the time when the eviction application was launched, Swart’s
appeal against the dismissal of his spoliation application
was still
pending before this court. For this reason an order was also
sought in terms of section 78 of the Magistrate’s
Court Act
that his eviction not be suspended pending the outcome of the
appeal. ACVV acknowledged that the dismissal of the
spoliation
application did not constitute an order for performance by Swart, but
submitted that its effect was that, from at least
15 August 2017
(i.e. the date when the magistrate handed down his judgment in the
spoliation application), Swart was an unlawful
occupier.
[21]
In his answering affidavit Swart contended that the notice of motion
did not comply with section 5(1) of PIE “
as
relief is sought for a final order as no return date is set
”.
The other defences raised related to the relief exceeding the
monetary jurisdictional limit, which was incorrect
given the nature
of the application, and that his eviction should not be granted in
any event, primarily because he is not an unlawful
occupier.
[22]
Swart did not contend that he was occupying the unit with either
applicant’s express or tacit consent. He maintained
however that he has a right in law to occupy due to the sale
agreement concluded between himself and ACVV “
whom I hold
accountable in the terms claimed
” in the High Court
action. He also contended that since the magistrate’s
court has no jurisdiction to determine
the issue in the pending High
Court action, until such time as it is determined he has a “
clear
right
” to occupy the unit. In his words:
“
I fully
occupied the premises as a direct consequence of my contention that I
have acquired the life interest or the right thereto
by complying
with the terms of the agreement … if the court grants an order
in the terms requested … I shall suffer
irreparable harm and
prejudice in that adjudication on the main issue in the High Court
would then effectively be circumvented
”.
[23]
When the matter was argued before the magistrate on 21 September 2017
amended relief was sought in terms of a draft order,
namely the
summary eviction of Swart pending final determination of the High
Court action or the appeal, whichever occurs last.
[24]
In his judgment handed down on 27 October 2017 the magistrate
referred to the eviction application as one in terms of section
4 of
PIE. This appears to have been as a result of van der Merwe’s
submission in her replying affidavit that, given
that Swart had since
received at least 14 days notice, section 5(1) of PIE no longer
applied. The magistrate reasoned that,
since PIE only applies
to an unlawful occupier, and that the pending High Court action would
ultimately determine whether or not
Swart fell into this category,
the application should be postponed
sine die
pending that determination, whereafter it would likely resume in the
magistrate’s court (this is my loose translation of
the words
used).
[25]
During argument before us it emerged that, although pleadings closed
in the High Court action in June 2017, Swart and his attorney
have
nonetheless taken no steps to place the matter on the continuous roll
for a trial date. It also emerged that Swart has
not been
paying R5 000 per month as required for physical occupation in terms
of the sale agreement which he contends is valid
and enforceable,
although vague reference was made by his counsel to a previous tender
to this effect. (This is not on the
papers, and nor is any such
tender contained in the summons in the High Court action.)
WHETHER
THE MAGISTRATE ACTED
ULTRA VIRES
[26]
The applicants submit that despite the fact that the order issued by
the magistrate was characterised as a postponement, in
reality it
amounts to an order staying the eviction proceedings pending the
outcome of the High Court action for specific performance.
Put
differently, the application was not postponed
sine
die
(which would have enabled any of the
parties to re-enrol it on not less than 10 days’ notice) but on
the express condition
that it would remain postponed for this
undetermined period. During argument counsel for Swart was
constrained to concede
as much although he maintained that it was
nonetheless still a postponement.
[27]
It is argued by the applicants that, given that the magistrate’s
court is a creature of statute and has no inherent jurisdiction
[3]
,
it can only issue those orders which it is expressly authorised to
make, and is not empowered to protect and regulate its own
process,
taking into account the interests of justice. Reliance is
placed on
Ndamase
v Functions 4 All
[4]
,
where the Supreme Court of Appeal, in considering whether a
magistrate’s court has jurisdiction in respect of claims for
provisional sentence, stated:
“
[4] In terms of
s 1 of the Act ‘the rules’ means the rules referred to in
s 6 of the Rules Board for Courts of Law Act
107 of 1985. That
section provides that the Board may, with a view to the efficient,
expeditious and uniform administration
of justice in the lower courts
make rules for the lower courts regulating –
‘
(a) the
practice and procedure in connection with litigation’. …
[5] It is well-
established that the magistrate’s court has no jurisdiction and
powers beyond those granted by the Act …
and that in this
context, jurisdiction means ‘the power vested in a court by law
to adjudicate upon, determine and dispose
of a matter’ …
It is also well-established that powers may be conferred expressly or
by implication. Where the
Act is silent on a matter the general
rule is that by expressly conferring on the magistrates’ courts
jurisdiction in respect
of a particular matter, the Act confers by
implication the ancillary powers necessary to give effect to that
jurisdiction.
In regard to matters specifically provided for in
the Act, the Act will govern that situation … The primary
question to
be answered therefore is whether the Act expressly or by
implication confers on a magistrate’s court jurisdiction to
grant
provisional sentence.
”
[28]
The applicants also rely on
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO and Others
[5]
where it was held that if, when making an order, a Judge usurps a
power expressly reserved by statutory enactment for the Master,
such
order is a nullity and a pronouncement to that effect is
unnecessary. They submit that this means that if a court
exceeds
its jurisdiction (as they argue the magistrate did in this
matter) the consequence at common law is that such an order is null
and void. They also refer to
Nedbank
Limited v Jones and Others
[6]
in which the abovementioned authorities were cited in support of the
following finding:
“
[16] It is
trite that the magistrate’s court is a creature of statute and
exercises no inherent jurisdiction. It may
only exercise the
powers conferred upon it by statute and can accordingly not
adjudicate matters which fall outside of its jurisdiction.
Simply put it may only issue orders which it is expressly authorised
to do. And, if that court exceeds its jurisdiction,
at common
law the consequence is that such an order is null and void
.”
[29]
However in
Department
of Transport and Others v Tasima Pty Ltd
[7]
the Constitutional Court held that under section 165 of the
Constitution a court order is binding until set aside, irrespective
of its validity. Such orders are not nullities, but exist in
fact and may have legal consequences. Whether or not an
order
is enforceable depends on whether the Judge had the authority to make
it at the moment it was made.
[30]
Section 47(1) of the Magistrates’ Court Act provides that where
a defendant has a counterclaim exceeding its jurisdiction
which the
court is satisfied,
prima facie
,
has a reasonable prospect of success, the main action may be stayed
for a “
reasonable period
”
to enable the defendant to institute action in a competent court.
[31]
Sections 47(2) and (3) however make it clear that the magistrate must
determine what that reasonable period is. Section
47(2)
stipulates that should the period (so determined) expire before the
defendant has instituted action, the magistrate may,
on application,
either stay the main action for a further reasonable period or
dismiss the counterclaim (irrespective of whether
or not it has been
reduced to an amount falling within the magistrates’ courts
jurisdiction). Section 47(3) in turn
makes provision for
similar steps to be taken where the defendant nonetheless still fails
to institute action timeously in a competent
court, or his claim
instituted in that other court fails.
[32]
There is no express provision in either rule 31(dealing with
postponements) or rule 55 (dealing with applications) of the
magistrates’ courts rules which permits a magistrate to stay
pending proceedings for an indeterminate period.
[33]
Moreover there is direct authority to support the applicants’
argument. In
Esterhuizen
v Holmes
[8]
it was held that:
“
I know of no
provision in the Magistrates’ Courts Act whereby a magistrate
would be empowered to stay an action instituted
by a plaintiff
against a defendant in the magistrate’s court merely because
the defendant had, either previously to or after
the issue of summons
by the plaintiff in the magistrates’ court, issued a summons in
the Supreme Court against the plaintiff
.
”
[34]
That a magistrate is precluded from making an order such as that in
the present matter is furthermore borne out by section
48 of the
Magistrates’ Court Act which contains a
numerus
clausus
of judgments or orders that a magistrate is permitted to make.
Jones
and Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa
[9]
submit that section 48 also applies to motion proceedings. A
stay, even on application, is not permitted by section 48.
[35]
Having regard to the aforegoing it is my view that, in making the
order that he did, that magistrate indeed acted
ultra
vires
the
powers conferred upon him by the Magistrates Court Act and the rules
promulgated thereunder. To the extent that it may
be necessary,
I am also persuaded that the order was “
likely
in the ordinary course of things to cause substantial
prejudice
”
[10]
.
In
R v
Kruse
[11]
the Court explained that when it is said that the act must be
calculated to prejudice, the word “
calculated”
does not refer to the intention of the actor but is used in the sense
of “
likely
”
and “
the
meaning is that the act must be of such a nature as in the ordinary
course of things to be likely to prejudice
”.
[36]
The applicants have suffered severe prejudice as a result of the
magistrate’s order. The adjudication of their
application
to have Swart evicted from the premises has been frustrated, and they
have effectively been denied access to court
and the protection which
they are entitled to be afforded by the legal process for an
indefinite period. Given that more
than a year has elapsed
since pleadings closed in the High Court action, but Swart and his
attorney have yet to make application
for a date on the continuous
roll, it is fair to accept that the eviction application is not
likely to be heard within the next
two years.
[37]
Smit and her disabled daughter are especially prejudiced. Their
personal circumstances are set out in the papers. Smit
has had to store her belongings elsewhere at her own expense at a
minimum cost of R800 per month. Her daughter Marika’s
level of intelligence is akin to that of a 2 or 3-year old child and
it is crucially important for her mental wellbeing that she
lives in
an environment surrounded by familiar furniture and belongings and
which is conducive to a stable and predictable routine.
She did
not even cope when Smit attempted to stay with her own brother and
his family who also live in Robertson, apart from the
fact that this
involved a family member having to make her bedroom available to
them. Marika is traumatised by her current
living
circumstances.
[38]
She also has high anxiety levels and is scared of lifts. They
therefore have to climb the stairs to the guest bedroom
on the top
floor. This is painstaking because Marika is scared that she
will fall. She is utterly dependent on Smit
to attend to her
daily needs. Smit explained how it took some time to find a
retirement centre that was prepared to also
accommodate Marika, and
that because of her particular circumstances, accommodation needs to
be carefully selected.
[39]
It would appear that Smit has a monthly income of around R8 600
and available capital of about R870 000 to provide
for the needs
of herself and Marika for the remainder of their lives. She
cannot access the capital sum of R740 000
which she paid for the
unit in good faith.
[40]
The guest room which they occupy is 3 m X 4 m and has 2 single beds.
There are no cooking facilities, and no laundry
and ironing
facilities available to them. Smit has to wash and iron their
clothing at her brother’s home. They
have their main meal
at ACVV daily (for which Smit pays) and in the evenings have to eat
meals which do not require cooking facilities,
such as cereal or
take-aways. Their circumstances have caused Smit great anxiety as
well which in turn badly affects Marika.
[41]
The guest room made available to them as an emergency and temporary
measure by ACVV is meant to accommodate those who visit
residents in
frail care and need a place to stay overnight. ACVV rents it
out at R150 per person per night but has not charged
Smit any rental
because of the situation. The consequent inconvenience and loss
of income to ACVV, a non-profit organisation,
is self-evident.
WHETHER
THIS COURT SHOULD SUBSTITUTE ITS OWN DECISION
[42]
As stated in
Herbstein
and van Winsen: The Civil Practice of the High Courts of South
Africa
[12]
the general principle is that the matter will be remitted to the
court
a
quo
unless there are special circumstances giving reason for not doing
so.
[43]
Swart was not able to refute the allegations of severe prejudice
caused to the applicants by the magistrate’s order.
He
merely submitted that even though her current living circumstances
are not her first choice, Smit and Marika are more than adequately
accommodated. No explanation was provided.
[44]
It is common cause that the circumstances in which the applicants and
Marika find themselves have endured for more than a year.
Were
this court to remit the matter to the magistrate’s court for
determination on the merits, it is entirely unclear when
that
determination will be made. Moreover this court is equally
equipped to determine the merits. This is not a case
where
specialised knowledge is required. There is also the distinct
possibility that, given the history, Swart will note
an appeal if the
magistrate finds against him. He has an automatic right to do
so and does not first require leave from that
court. This will
entail further delay while the appeal runs its course in this court.
All of these considerations compel
me to conclude that special
circumstances indeed exist for this court to substitute its own
decision.
WHETHER
SWART IS AN UNLAWFUL OCCUPIER
[45]
As previously stated, Swart relies solely on the sale agreement in
contending that he has a right in law to occupy. The
trial
court in the pending High Court action will determine whether or not
the sale agreement is valid. It is only if that
determination
is in Swart’s favour that, in terms of the sale agreement, it
can be found that he has acquired a life right
to occupy the unit.
[46]
In the eviction proceedings Swart did not dispute the applicants’
allegations concerning delivery of the life right by
ACVV to Smit.
It was only in his answering affidavit in the review that Swart
contended, for the first time, that making
the key of the unit
available to Smit without physically handing it over to her did not
amount to delivery.
[47]
Suffice it to say that this court must determine the merits on the
papers that served before the magistrate. Given the
history
there is little doubt that if Swart had believed that there was any
merit in this “defence” he would have raised
it in his
answering affidavit in the eviction application. In any event,
the legal fiction of
constitutum possessorium
does not require that a key or other symbol of possession has to be
physically handed over to the transferee.
[48]
The effect of delivery of the life right to Smit is that Swart is
precluded from claiming specific performance in terms of
the sale
agreement but is left only with an action for damages against ACVV.
Swart made certain allegations that Smit was
forewarned of a
potential dispute between himself and ACVV. Not only are these
allegations disputed by Smit, but Swart is
not able to materially
dispute that Smit was a
bona fide
purchaser of the life right on-sold to her by ACVV.
[49]
Kerr,
The Principles of the Law of Contract
[13]
explains the legal position as follows:
“
In the case of
double sales other than those in which one party has an option in a
lease, if transfer is in fact passed to C and
C is
bona
fide
he
is entitled to retain the property and B is left with an action for
damages against A. However, if C knew of B’s
rights when
he bought or when he took transfer, then B can claim against C
transfer from C to himself or he can claim against A
and C
cancellation of the transfer to C and transfer from A to
himself
.”
[14]
[50]
Moreover, the dismissal of Swart’s appeal against the
magistrate’s order in the spoliation application means that
the
order of the magistrate stands. For present purposes, there is
thus a finding already in place that the unit is now in
the
possession of a
bona
fide
third party, i.e. Smit
[15]
.
I therefore do not accept the submission made by counsel for Swart
that because he was initially in lawful possession of
the property,
it followed that he could also lawfully take occupation of the
property at any time, and he therefore cannot be regarded
as an
unlawful occupier. I also do not accept his counsel’s
submission that the dispute concerning the lawfulness of
his
occupation of the unit goes to the heart of the pending High Court
Action. I am persuaded that Swart is an unlawful occupier
for
purposes of the present proceedings.
WHETHER
IT IS JUST AND EQUITABLE TO EVICT
[51]
I have already set out the personal circumstances of Smit and her
daughter Marika. The rather contrived argument was
advanced on
Swart’s behalf that because the eviction application was
brought in terms of section 5 (1) of PIE, Swart is prejudiced
by not
having been afforded the opportunity to place all relevant
circumstances before the court.
[52]
In his answering affidavit in the eviction application Swart stated
that “
for the reasons … below
”
he would suffer far greater hardship than the applicants and Marika
if he was evicted. The reasons provided were his
age, that he
does not possess “
any property
”
and that he does not have access to any other accommodation. He
also expressly took the view that the “
applicants
are asking for a final order against me
”
and maintained that “
if I am evicted
from the premises I would literally not have a place to stay
”.
It is thus fair to accept that he already knew, at that stage, that
he faced “final” eviction.
[53]
In her replying affidavit in the eviction application, van der Merwe
pointed out that, on his own version, Swart has R1.4m
cash available
to him. She also stated that Swart has 2 sons who both live in
Robertson who could presumably accommodate
him. She attached
photographs of the exterior of their respective homes which appear to
be fairly large, comfortable properties.
[54]
Swart was given a further opportunity in the proceedings before us to
place further information before the court if he wished,
given that
it was made clear by the applicants in their notice of motion that in
addition to the setting aside of the magistrate’s
order, relief
was also sought from this court for his eviction, and this court is
obliged to take any further information provided
into account in
light of the decision in
Occupiers,
Berea v De Wet NO and Another
[16]
.
By then of course Swart was aware of van der Merwe’s
allegations in her replying affidavit. However he simply
failed
to deal with them.
[55]
Swart does not contend that he is disabled or infirm. He must
also receive income because he was able to cover his living
expenses
before he received the proceeds of the sale of his house. He
does not appear to have any dependants who rely on
him for
accommodation or financial support. There is nothing before us
to indicate that his sons will not be able to accommodate
him on a
temporary basis until he can move elsewhere. He has ample
available cash resources to pay for alternative accommodation
pending
determination of the High Court action.
[56]
Taking all of these factors into account it is my view that it is
indeed just and equitable to order Swart’s eviction.
Given that he was able to move his belongings into the unit within a
day or so, there is no reason why he cannot move them out
within a
similar period.
[57]
The applicants seek costs against Swart on the scale as between
attorney and client. However, given that these proceedings
also
pertain to the review of the decision of the first respondent, the
appropriate costs order is the one that follows.
[58]
In the result the following order is made:
1. The decision made
by the first respondent on 27 October 2017 postponing the eviction
application brought by the applicants in
the Robertson magistrate’s
court under case number 411/2017 is reviewed and set aside.
2. The second
respondent is evicted from the unit occupied by him at the property
known as […], ACVV Huis Le Roux Tehuis
vir Bejaarde Persone at
[…] Street, Robertson alternatively […] Street
Robertson, pending final determination of
the High Court action under
case no 7573/17.
3. The second
respondent shall vacate the unit and remove his belongings, within 14
calendar days from date of this order. In the
event of him failing or
refusing to do so, the Sheriff is hereby authorised to carry out the
eviction.
4. The second
respondent shall pay the costs of this application.
_________________
CLOETE, J
I
agree.
_________________
HENNEY, J
[1]
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act 19 of 1998
.
[2]
Occupiers, Berea v de Wet NO and Another 2017 (5) SA 346 (CC).
[3]
Unlike the Superior Courts in terms of section 173 of the
Constitution.
[4]
2004(5) SA 602 SCA.
[5]
2012 (3) SA 325 (SCA).
[6]
2017 (2) SA 473 (WCC).
[7]
2017 (2) SA 622
(CC) at paras 180, 182 and 198.
[8]
1947 (2) SA 789
(T) at 797, cited with approval by another full
bench in Forrest Crest Properties CC v Matthee and Others (AR194/11)
[2012] ZAKZPHC
80 (30 July 2012) at para [43].
[9]
Volume 1 (10
th
Ed) at 322.
[10]
Johannesburg Liquor Licensing Board v Short
1946 AD 722.
[11]
1946 AD 524.
[12]
Vol 2 pp 1299-1300.
[13]
6
th
Ed p 673.
[14]
See also Gugu and Another v Zongwana and Others
[2013] JOL 31018
(ECM) at para 32.
[15]
The final paragraph of the judgment at p 16 of the record, relying
on Jivan v The National Housing Commission [1997] 4 All SA
156 (W).
[16]
2017 (5) SA 346
(CC).