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[2018] ZAWCHC 137
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Pure Capital Property Trading CC v Hanslo and Others (15217/2018) [2018] ZAWCHC 137 (31 October 2018)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 15217/2018
In
the matter between:
PURE
CAPITAL PROPERTY TRADING
CC
Applicant
and
SHAMIELA
HANSLO
First
Respondent
YUSUF
HANSLO
Second
Respondent
FAAQIAH
HANSLO
Third
Respondent
ROUGAYAH
HENDRICKS
Fourth
Respondent
GALIED
HENDRICKS
Fifth
Respondent
ALL
THOSE HOLDING OCCUPATION ON
THE
PROPERTY
KNOWN AS SECTION 90 IN THE
SECTIONAL
TITLE SCHEME SCHOTSCHEKLOOF
(Scheme
Number
14/1999) Sixth
Respondent
CITY
OF CAPE TOWN
Seventh
Respondent
JUDGMENT DELIVERED ON
31 OCTOBER 2018
GAMBLE,
J:
INTRODUCTION
[1]
This application for eviction was set down
for hearing in the Motion Court on Tuesday 9 October 2018 pursuant to
the issue of an
order in terms of s4(2) of the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act, 19 of 1998 (“
PIE
”)
granted on 20 September 2018. When the matter was called the
applicant was represented by Adv. P.S. McKenzie but there
was no
appearance for the respondents nor did they appear in person. Mr.
McKenzie indicated to the court that he intended moving
for an order
as sought in the notice of motion.
[2]
The court was concerned about the legal
basis for the eviction, in particular what the status of the
occupants was on the premises
and, further, whether (as alleged in
the founding affidavit) the common law principle of “
huur
gaat voor koop
” had been
expressly excluded from the provisions of the sale of the property.
The court considered it appropriate to appoint
an
amicus
curiae
to assist in the resolution of
these issues and was most fortunate to notice that Adv.S.eCamara was
in court to attend to another
matter. Given Ms. eCamara’s
experience in these sort of matters the court had no hesitation in
asking counsel whether she
would accept an appointment as
amicus
at short notice, which Ms. eCamara
gracefully did. The matter stood down until Friday 12 October 2018
when full argument was presented.
The court is indebted to Ms.eCamara
for her valuable contribution in this application, assistance which
is in the finest traditions
of the Bar.
RELEVANT
BACKGROUND FACTS
[3]
The
applicant is described in the founding affidavit by its sole member,
Mr. Alon Philipe Kowen, only as a close corporation carrying
on
business at Century City, Cape Town. Its principal business is not
stated but on its website (referred to in its resolution
authorizing
the institution of these proceedings) at www.purecapital.co.za the
applicant says that it is a
“
private
equity boutique with a focus on the acquisition, management and
disposition of tangible asset-based opportunities that emanate
from
private, legal, corporate and institutional streams..”
and
that it operates in a
“
cyber
office remotely operating with the use of innovative technology.”
[4]
In the founding affidavit Mr. Kowen (who
says that he is an adult male carrying on business at Century City
and who is authorized
to act on behalf of the applicant) states that
the applicant purchased Unit […] in a sectional title scheme
known as Schotschekloof
Flats (Scheme No. 14/199 and hereinafter
referred to as “
the property”
)
on a sale in execution on 2 May 2018
.
The street address of the property appears to be […] Drive,
Schotschekloof, Cape Town, an inner city residential area on
the
slopes of Signal Hill known colloquially as “
Bo-Kaap.
”
[5]
From documents lodged in the Deeds Office
(and which are attached to the founding affidavit) it appears that
the property was purchased
by the applicant for R375 000,00 and
transferred to it on 13 July 2018. Those documents also reflect that
the property -
·
was originally owned by the City of Cape
Town;
·
was
transferred to Ms. Rougayah Hanslo
[1]
in 2003 with its value for purposes of transfer duty set at R2865,00;
and
·
was acquired by Ms. Nuraan Hanslo in 2014
with its value for purposes of transfer duty set at R590 000,00.
[6]
The
sale in execution was at the instance of ABSA Bank Ltd (“
ABSA
”)
which the papers also show had taken judgment
[2]
against an entity known as Gaylee Civil Contractors CC
[3]
(“
Gaylee”
)
and the aforesaid Nuraan Hanslo
[4]
,
a 48 year old female. The file in the principal action further shows
that ABSA’s claim against Gaylee was for an overdraft
which in
May 2016 stood at R910 623,50 and against Ms. Nuraan Hanslo in
her capacity as surety for Gaylee’s indebtedness
to the bank.
The suretyship was secured by a mortgage bond passed by Ms. Hanslo
over the property in favour of ABSA in July 2015
for R650 000 in
respect of capital and R130 000 in respect of costs.
[7]
The file in the principal action further
shows that on 4 November 2016 judgment was granted by Smuts AJ
against Gaylee and Ms. Nuraan
Hanslo jointly and severally in the
said amount with the property being declared immediately executable,
and that on 1 February
2017 the Registrar issued a writ of execution
in the said amount against Ms. Nuraan Hanslo only. In an affidavit
filed in terms
of Practice Note 33(2), an employee of ABSA told Smuts
AJ in 2016 that the Bank did not know whether the property was being
used
as Ms. Nuraan Hanslo’s primary residence or not.
THE
TERMS OF THE SALE IN EXECUTION
[8]
The conditions of the sale in execution by
the Sheriff (which are also attached to the founding affidavit)
reflect that the property
was to be sold to the highest bidder
without reserve in accordance with the provisions of Rule 46A of the
Uniform Rules. Of the
other 14 clauses only the following are
relevant for present purposes.
“
7.
RISK AND OCCUPATION
7.1
The Purchaser shall be entitled to possession of the property
immediately after signing these conditions of sale, payment of
the
Sheriff’s commission and the 10% deposit and securing the
balance of the purchase price in terms of clause 4.3 hereof
and
thereafter the property shall be at his sole profit, risk and/or
loss. The Execution Creditor and the Sheriff give no warranty
that
the Purchaser shall be able to obtain personal and/or vacant
occupation of the property or that the property is unoccupied
and any
proceedings to evict the occupier(s) shall be undertaken by the
Purchaser at his/hers/its own cost and expense….
9. SALE
SUBJECT TO EXISTING RIGHTS
9.1
The property is further sold in accordance with the conditions and
servitudes (if any) set forth in the original and subsequent
Deeds of
Transfer and to all such other conditions as may exist in respect
thereof, including any right reserved in favour of a
Developer Body
Corporate in terms of Section 25 of the Section Titles Act, no 95 of
1986 if applicable. However, the property is
sold free from any title
conditions pertaining to the reservation of personal servitudes in
favour of third parties and in respect
of which servitudes,
preference has been waived by the holder thereof in favour of the
Execution Creditor.
9.2
Where the Property is subject to a lease agreement the following
conditions apply:
9.2.1 Insofar as
the property is let to tenants and the Sheriff is aware of the
existence of such tenancy then:
9.2.1.1
if that lease was concluded before the Execution Creditor’s
bond was registered, then the property shall be sold subject
to such
tenancy;
9.2.1.2
if the lease was concluded after the Execution Creditor’s bond
was registered, the property shall be offered first
subject to the
lease and if the selling price does not cover the amount owing to the
Execution Creditor under that bond, including
interest, then the
property shall be offered immediately thereafter free of the lease.
9.2.2 Should it
be contended, after the sale, that the property is let in terms of a
lease which was not disclosed to the Sheriff
or the Execution
Creditor, the property shall be deemed to have been sold free of such
lease.
9.3
Notwithstanding any of these provisions, the Purchaser shall be
solely responsible for ejecting any person or other occupier
claiming
occupation, including a tenant, at the Purchaser’s cost. No
obligation to do so shall vest in the Sheriff and/or
the Execution
Creditor….
11.
CONFIRMATION BY THE PURCHASER
The Purchaser
confirms that the property is sold for an amount of:
R375 000:00
(Free of Lease)
(Three
Hundred and Seventy Five Thousand)
…
.
[5]
and accepts all further terms and
conditions as set out herein, which acceptance is confirmed by his
signature below.”
[9]
At the conclusion of the document the
Sheriff appended his/her signature under the following certification.
“
I, the
undersigned, Sheriff of
Cape Town
West
hereby certify that the
today the
2
day of
May
20
18
and as advertised, the aforementioned property was sold for
R357
000: 00
free of lease to
Pure
Capital Property Trading CC
”
Thereafter
appears the signature of the buyer who is described as
“
Paul
John Colquhoun obo Pure Capital Property Trading CC
”
THE
MATERIAL ALLEGATIONS IN THE FOUNDING AFFIDAVIT
[10]
To
procure an order of eviction in terms of the provisions of PIE it is
incumbent upon the applicant to establish, firstly, that
the
respondents are unlawful occupiers of the property as defined in s1
of PIE
[6]
,
and, secondly, that it is just and equitable to grant such an
order.
[7]
[11]
In asserting that the respondents occupy
the property unlawfully, Mr. Kowen makes the following repetitive
allegations in the founding
affidavit.
“
PURPOSES
OF THIS APPLICATION
12. The
Applicant purchased the property on a Sale in Execution on the 2
nd
May 2018. Subsequently; (sic) the property was registered in the name
of the Applicant on 13 July 2018. I annex a copy of the Conditions
of
Sale, marked ‘
APK5’
.
As can be deduced from the Conditions of Sale, the property was sold
without a lease agreement; hence the principle of ‘
huur
gaan (sic) voor koop’
does
not apply.
13. The First,
Second, Third, Fourth, Fifth and Six Respondents have no agreement
with the registered owner of the property, being
the Applicant to
occupy same, and can be termed as (sic) an unlawful occupier (sic)
with due consideration to (sic) the Prevention
of Illegal Eviction
Act (sic). Despite the knowledge that the property was sold on
auction, the Respondents have:
13.1
failed to vacate the property; and
13.2
failed to take any steps to legalise their occupation or tender to
pay any expenses for the property.
14. Further;
(sic) numerous attempts had (sic) been made to legalise the
occupants’ rights to the property; however they refuse
to deal
with the new owner. Accordingly they have no right to occupy the
property.
UNLAWFUL
OCCUPATION
15. As a result
of the Respondents having no agreement with the Applicant to occupy
the property, they are in unlawful occupation
of same. In terms of
the relevant (sic) Prevention of Illegal Eviction Act; (sic) an
unlawful occupier is defined as a person who
occupies the property
without the consent of the registered owner. Accordingly the First,
Second, Third, Fourth, Fifth, and Six
Respondents are in unlawful
occupation of the property.
16. Further;
(sic) numerous attempts had (sic) been made to legalise the
occupant’s (sic) rights to the property; (sic) however
they
refused to deal with the new owner. Accordingly they have no right to
occupy the property.
17. Further;
(sic) in the event of the Respondents having concluded any further
agreements with any third party, in terms of a rental
agreement;
(sic) or any right of occupation; (sic) such rights were terminated
by virtue of the sale in execution. The principle
of ‘HUUR GAAN
(sic) VOOR KOOP’ will not apply. The respondents thus cannot
raise a defence that they have any right
in law to occupy the
property.”
WHO
ARE THE OCCUPANTS?
[12]
While Mr. Kowen refers to the first to
fifth respondents as being in occupation of the property, he offers
no explanation for any
personal knowledge of this fact. His evidence
is therefore, strictly speaking, inadmissible hearsay. And yet, the
fact that certain
of the respondents might be found at the premises
must have been known to the applicant because it saw fit to cite them
as respondents,
and as persons allegedly in unlawful occupation
thereof. Further, in para’s 14 and 16 of the founding affidavit
it is said
that attempts were made by the applicant to legalise the
respondents’ rights of occupation. This implies that there were
negotiations of some sort – either face-to-face or through
correspondence with the occupants. The reason why the court was
not
informed of the details of the occupants known to the applicant, and
how it acquired that knowledge, is simply not explained.
[13]
The returns of service in this matter
relevant to the initial application in terms of s4(2) of PIE
authorizing the institution of
proceedings show that all process was
served by the Sheriff at the property at 18h23 on Monday 27 August
2018 as follows.
(i)
On the second respondent (Mr. Yusuf Hanslo)
personally in terms of Rule 4(1)(a)(i) ;
(ii)
On the first respondent (Ms. Shamiela
Hanslo) in terms of Rule 4(1)(a)(ii) through the aforesaid service on
the second respondent,
who is described as the husband of the first
respondent and a person ostensibly older than 16 years;
(iii)
On the third respondent (Ms. Faaqiah
Hanslo) similarly in terms of Rule 4(1)(a)(ii) through the service on
the second respondent,
who is described as the father of the third
respondent;
(iv)
On the fourth respondent (Rougayah
Hendricks) similarly in terms of Rule 4(1)(a)(ii) through service on
the second respondent, who
is described as the son-in-law of the
fourth respondent;
(v)
On the fifth respondent (Galied Hendricks)
similarly in terms of Rule 4(1)(ii) through service on the second
respondent, who is
described as the brother-in-law of the second
respondent; and
(vi)
Finally, service was effected on any other
occupiers of the premises similarly in terms of Rule 4(1) (ii)
through the aforesaid
service on the second respondent.
[14]
Service of the order granted by Nuku J in
terms of s4(2) of PIE was effected by the Sheriff at the property at
06h56 on Thursday
27 September 2018 as follows.
(i)
On Ms.S.Hanslo (probably the first
respondent) personally in terms of Rule 4(1)(a)(i); and
(ii)
On each of the second to sixth respondents
through service on the said Ms.S.Hanslo in terms of Rule 4(1)(a)(ii),
who is described
as the occupant of the property at the time of
service and ostensibly a responsible person in control thereof and
older than 16
years of age.
(iii)
It is expressly recorded that the other
respondents were not in occupation of the premises at the time of
service.
[15]
In the circumstances, the returns of
service suggest, firstly, that the property is occupied by some
members of the Hanslo family
and possibly their relatives. What is
troubling is the fact that, other than the first and second
respondents (who were apparently
not together at the property at the
same time), none of the alleged occupants were at the property at the
time of day that one
might expect occupants to be in residence
(dinner time and/or early morning).
[16]
Secondly, what the court does not know is
whether (or how) the alleged occupants are related to the former
owner of the property,
Ms. Nuraan Hanslo. Thirdly, the fact that the
applicant has cited the sixth respondent in the terms generally used
in matters such
as this suggests that there may be other persons in
occupation of the property whose names the applicant does not know.
Fourthly,
the court does not know either whether these persons are
related to the other respondents. Fifthly, the court is not informed
what
the ages of the occupants are, and so the court does not know
whether there are children or elderly persons in occupation of the
property. Sixthly, the court does not know whether there are any
disabled persons on the property and, finally, the court does
not
know who the head of the household is and whether that person is a
female.
[17]
Simply put, the court has scant knowledge
of essential details of the occupiers of the property in
circumstances where these are
material to the exercise of the court’s
discretion under the provisions of PIE.
UNLAWFUL
OCCUPATION
[18]
In the notice of motion the attention of
the respondents is drawn to the provisions of s4(6) of PIE. This
means that the applicant
claims that the respondents have been in
occupation of the premises for less than 6 months. Yet, Mr. Kowen
does not say when, or
under what legal right, the applicant alleges
that the respondents obtained occupation of the premises. And,
importantly, he does
not allege when that right to occupy was
terminated, or under what circumstances. This is an important factor
in PIE matters because
of the import of the distinction between
ss4(6) and (7), which places a different evidential burden on a party
seeking to evict
in the case of illegal occupation of 6 months or
more.
[19]
All
that the applicant asserts in this matter is that the common law
principle of “
huur
gaat voor koop
”
[8]
does not apply given that Mr. Kowen claims that the property was sold
without a lease. The application of that common law principle
was
defined thus in
Genna-Wae
[9]
“…
(I)n
terms of our law the alienation of leased property consisting of land
or buildings in pursuance of a contract of sale does
not bring the
lease to an end. The purchaser (new owner) is substituted
ex
lege
for the original lessor and the latter falls out of the picture. On
being so substituted, the new owner acquires by operation of
law all
the rights of the original lessor under the lease. At the same time
the new owner is obliged to recognise the lessee and
to permit him to
continue to occupy the premises in terms of the lease, provided that
he (the lessee) continues to pay the rent
and otherwise to observe
his obligations under the lease. The lessee, in turn, is also bound
by the lease and, provided that the
new owner recognises his rights,
does not have any option, or right of election, to resile from the
contract. This is the impact
of
huur
gaat voor koop
in our modern law.”
[20]
In
light of the fact that the court does not know what the basis was for
the right of the respondents to occupy the property, one
cannot even
begin to evaluate the potential application of the “
huur
gaat voor koop
”
principle. It is trite that in motion proceedings the affidavits
serve as both the pleadings and the evidence.
[10]
As the
amicus
pointed
out, in the absence of the inter-relationship between Ms. Nuraan
Hanslo (
qua
owner)
and the respondents (
qua
occupiers)
having been pleaded, this court does not know whether they occupy the
property in terms, for example, of a written lease,
an oral lease,
with tacit consent, under a personal servitude of
habitatio
or, at the very least, under the rights accruing from a
precarium
tenens.
[21]
The bald allegation in the founding
affidavit that one must deduce from the deed of sale that the
property was sold without a lease
is not sufficient in my view to
establish that fact. So, for example, if there was a lease in
existence which had not been cancelled,
it was not open to the
Sheriff to unilaterally put an end to that lease by simply declaring
that the property was to be sold without
a lease. That would be
counter to the general provisions of cl 9 of the conditions of sale
and would impinge on a lessee’s
rights under the common law
principle of “
huur gaat voor
koop”.
[22]
The
amicus
also drew the court’s attention
to the provisions of clauses 9.2.1.1 and 9.2.1.2 of the conditions of
sale set out above which
she suggested might find application in this
matter because of ABSA’s mortgage bond over the property. The
effect thereof
is that if the property is let to tenants and the
Sheriff is aware of the existence of such tenancy, the property must
be sold
subject to such tenancy if the lease predated the
registration of ABSA’s bond. This is, similarly, an issue which
has not
been clarified for the reasons which follow.
[23]
In the principal action, a copy of ABSA’s
bond is attached to the plaintiff’s particulars of claim. It
appears to have
been registered in July 2015. The Deeds Office
printout annexed to the founding affidavit shows that the property
was transferred
to one Rougayah Hanslo in 2003. Having regard to the
returns of service referred to earlier, it is possible that this was
the family
name of the fourth respondent, given her alleged affinity
to the second and fifth respondents: the court just does not know.
But
if it is so, there exists the possibility that the provisions of
cl 9.2.1.1. apply and that the right of occupation of one (or more)
of the respondents has not lapsed.
[24]
In the result, I am unable to conclude that
the applicant has established on a balance of probabilities that the
respondents are
unlawful occupiers of the property. The application
for eviction under PIE must therefore fail on this basis.
JUST
AND EQUITABLE?
[25]
If I am wrong in relation to my assessment
of the alleged unlawful occupation, I consider, in any event that the
applicant has not
established that it would be just and equitable to
evict the respondents at this stage. I alluded earlier to the
difference in
approach between ss4(6) and (7) of PIE. In both
instances the court is enjoined to grant an order that is just and
equitable after
considering all the relevant circumstances including
the rights and needs of the elderly, children, disabled persons and
households
headed by women.
[26]
However, under s4(7), in circumstances
where the unlawful occupation has endured in excess of 6 months the
court is required to
consider, in addition, whether land can
reasonably be made available by a municipality or organ of state for
the relocation of
the unlawful occupiers. But, the latter enquiry
under s4(7) does not apply in circumstances where the land is sold in
execution
pursuant to a mortgage. As I have said, in the absence of
an allegation as to precisely when the respondents’ occupation
of the property became unlawful (and they were manifestly not deemed
to be in unlawful occupation by Ms. Nuraan Hanslo), the court
does
not know whether the matter was properly brought under s4(6). That
having been said, upon perusal of the file in the principal
action it
appears that ABSA sought the right to immediately sell the property
when the matter was before Smuts AJ. In the circumstances
it is to be
assumed that the enquiry as to alternative land being made available
by the City of Cape Town is not mandated
in
casu.
The criteria in this matter
therefore appear to be those set out S4(6) regardless of the duration
of the unlawful occupation.
[27]
Once a court is satisfied that all of the
requirements of s4 as a whole have been met, and importantly that no
valid defence has
been been raised by the occupiers, s4(8) directs
that it must grant an eviction order on a date which is considered to
be just
and equitable in the circumstances. And, in considering what
date is just and equitable the court is required to consider all the
relevant factors, including the period the unlawful occupiers and
their family have resided on the land in question.
[28]
It
will be seen that there is therefore a two-fold test of justice and
equity to be undertaken by the court and that enquiry requires
the
court “
to
make a value
judgment
on the basis of all relevant facts.
”
[11]
In
Changing
Tides
the
Supreme Court of Appeal stressed
[12]
that it was for the applicant for eviction to place such facts before
the court as may fall for consideration in the exercise of
the
aforementioned discretions and that an applicant would ordinarily
have some knowledge of the persons that it would wish to
evict from
its premises. Importantly, the court noted
[13]
that in circumstances where an applicant failed to satisfy the court
that it was just and equitable to evict in the circumstances,
it was
proper to refuse the application.
[29]
In
Berea
[14]
the
Constitutional Court was confronted with a mass eviction under s4(7)
of 184 unlawful occupiers from a block of flats who had
concluded an
agreement to vacate with the legal representatives of the owner in
circumstances where they themselves did not enjoy
legal
representation. They later sought to avoid the consequences of their
consent.
[30]
The court conducted a thorough review of
all the case law over the past 15 years or so and, affirming the
approach in
Changing Tides
,
stressed that where the eviction sought was from a person’s
residence, and particularly where that person was not legally
represented, the duty was on the court to conduct its own
investigation so as to consider what was just and equitable in the
circumstances.
“
[46] It
deserves to be emphasised that the duty that rests on the court under
s26(3) of the Constitution and s4 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
in the notice
provisions of PIE, which required 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’.
[31]
And, in conclusion the court observed as
follows –
“
[48] 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; (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 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 unlawful.”
[32]
During the hearing of this application the
court enquired of Mr. McKenzie whether he could furnish any
information as to the age
of the occupiers, the presence of children
or disabled persons on the property or whether the head of the
household was female.
Counsel was unable to assist the court in this
regard and did not seek an opportunity to procure any of that
information by way
of a further affidavit. In such circumstances, as
Berea
cautions, an order for eviction would be arbitrary and manifestly not
just and equitable.
[33]
The
Bo-Kaap area is a suburb that is close to the High Court in Cape Town
– indeed one of its main arteries, Leeuwen Street,
runs down to
the steps of the Court’s main entrance. Bo-Kaap has a long and
fascinating history
[15]
dating back more than 250 years when the first Malaysian slaves were
accommodated there. It has a predominantly Muslim community
and is
sometimes casually referred to as “
The
Malay Quarter
”,
enticing dozens of tourists daily who visit Bo-Kaap’s various
cultural sites, colourfully painted houses and mosques.
It is
essentially an apartheid construct, formerly promoted for its
cultural heritage and, ironically, it is that very identity
which
spared it the ravages of the notorious Group Areas Act removals in
the 1960’s and 1970’s.
[34]
As an
area close to the city centre Bo-Kaap has increasingly become
attractive to property investors, speculators and developers
and much
has been said in the media and elsewhere about the so-called
“
gentrification”
of
the area
[16]
.
This has raised the ire of many residents who are desperate to
preserve the cultural identity of the area and who have, from time
to
time blocked off streets and even conducted protest action outside
specific developments, thereby necessitating the intervention
of this
court on occasion.
[17]
[35]
The residents of the area are, generally
speaking, not wealthy and Bo-Kaap is home to many poor and
working-class people. An eviction
of the type sought in this matter,
in which a group of related persons appear to occupy a family home
that was acquired from the
City of Cape Town some time ago, might
well render them homeless or at the very least require them to
relocate to one of the outlying
suburbs that are now home to the many
who fell foul of the Group Areas Act. If those circumstances obtain,
a court would be required
to think long and hard about the justice
and equity of ordering people to vacate a dwelling, long occupied,
which has been snapped
up by a buyer distant to the neighbourhood for
investment or development potential. Certainly, it is to be expected
of such buyers
that when they seek to move established families out
of their homes, they do their homework properly and place all
relevant facts
before the court.
ORDER
OF COURT:
The
application is refused.
__________________
GAMBLE, J
[1]
It is not clear whether this is the former name of the person cited
in the notice of motion as the fourth respondent, Rougayah
Hendricks.
[2]
In case no. 15381/2016 hereinafter referred to as “
the
principal action”.
[3]
As the first judgment debtor.
[4]
As the second judgment debtor.
[5]
All of that which is underlined above and below is written in
manuscript in the original document.
[6]
“
Unlawful occupier”
means a person who occupies the land without the express or tacit
consent of the owner person in charge,
or without any other right in
law to occupy such land…”
[7]
City of Johannesburg v
Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294
(SCA) at [34]
[8]
“
Hire takes
precedence over sale
”
per Corbett CJ in
Genna-Wae
Properties (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd
[1995] ZASCA 42
;
1995 (2) SA 926
(A) at 932E
[9]
At 939A-C
[10]
Masstores (Pty) Ltd v Pick
‘n Pay Retailers (Pty) Ltd
2017 (1) SA 613
(CC) at 625I-J
[11]
Changing Tides
at [29]
[12]
At [31]
[13]
At [30]
[14]
Occupiers, Berea v De Wet
NO and Another
2017 (5) SA
346 (CC)
[15]
Wikipedia On-Line
Encyclopedia
sv
Bo-Kaap
[16]
See
https://mg.co.za/article/2012-10-18-the-bar-that-caused-all-the-trouble-in-the-historic-bo-kaap
[17]
See for example
SJJMC (Pty)
Ltd v Bo -Kaap Civic and Ratepayers Association and 5 Others, Human
Rights Commission Intervening
Case
No 11843/2018, an urgent application brought during recess which was
heard in the Fast Track on Friday 6 July 2018.