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[2019] ZAWCHC 13
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Berman Brothers Property Holdings (Pty) Ltd v M and Others (23332/17) [2019] ZAWCHC 13; [2019] 2 All SA 685 (WCC) (25 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 23332/17
In
the matter between:
BERMAN
BROTHERS PROPERTY
HOLDINGS
(PTY)
LTD
Applicant
and
S M
(and
all those holding title through
her)
First
Respondent
N
L
(and
all those holding title through
her) Second
Respondent
THE
CITY OF CAPE
TOWN
Third
Respondent
Coram:
P.A.L.Gamble, J
Date of
Hearing: 14 August 2018
Date of
Judgment: 25 February 2019
JUDGMENT
DELIVERED ON MONDAY 25 FEBRUARY 2019
GAMBLE,
J:
INTRODUCTION
[1]
This application highlights the plight of
the many, many women in South Africa who have worked in the homes of
others, cleaning,
cooking and caring for children in a desparate
endeavour to eke out an existence. The first respondent (“
Ms
M
”) is but one of those women:
she is a 52 year old single mother of 3 who has been employed as a
domestic worker in Sea Point
since 1987. She currently resides in a
single room (“
Room 2
”)
which forms part of a small apartment (“
Flat
1
”) in a sectional title scheme
known as “
Canonbury Buildings
”
located at […] R Road, Sea Point. For the sake of convenience
I shall refer to Room 2 as “
the
property
”.
[2]
The second respondent, (“
N
”)
is Ms M’s 33 year old daughter who, at the time that this
application was launched, also resided in the property.
She has since
left but her 8 year old daughter (“
D
”)
continues to reside in the property with her grandmother together
with Ms M’s other 2 daughters, A (aged 17) and
L (aged 13).
[3]
The applicant (“
the
Berman Bros
”) is a property
holding company which currently owns Canonbury Buildings. Its
directors are Messrs. Paul and Saul Berman
as appears from the Berman
Bros website
[1]
,
which proclaims that the applicant is part of the Berman Bros Group,
a company which houses corporate entities that develop, sell
and rent
luxury properties along the Atlantic Seaboard of Cape Town.
[4]
On 20 December 2017 the Berman Bros
launched this application to evict Ms M, her daughters and
granddaughter from the property.
They say that, having purchased
Canonbury Buildings in August 2016, they wish to utilize it to
accommodate certain of their employees
who work at their offices just
a short distance away in a building known as “
The
Point
“, which is located at 76
Regent Road, Sea Point. The application is opposed by Ms M.
[5]
The Berman Bros. were represented by Adv.
L. Wilkin and Ms M by Adv. B. Atkins. Ms M is a part time employee of
Mr Atkins who was
instructed by a public interest law firm in these
proceedings. The court is indebted to counsel for their written heads
and detailed
oral arguments in this matter, which, it must be said,
is more complex than initially meets the eye.
BACKGROUND
DETAIL.
[6]
Ms. M’s life history is one with
which many working class women in this country will associate. She
grew up in rural surroundings
in Worcester where she was raised by
her grandparents while her parents lived in nearby Ceres. In 1984 and
while in Grade 9 at
the local high school, Ms M fell pregnant with N
who was born in 1985. She did not return to school but stayed home to
raise her
infant child.
[7]
In 1987 Ms M left N with her grandparents
and travelled to Cape Town in search of work. She was fortunate to
find employment as
a domestic worker with a family in Sea Point and
she rented a room in an apartment block in St. John’s Road
close to her
erstwhile place of employment. The locals would most
likely have referred pejoratively to such accommodation as “
the
servants’ quarters
”.
[8]
After about 4 years in her first job Ms M
was retrenched when her employer went overseas. That meant she lost
her accommodation
in St. John’s Road but she was fortunate to
find alternate employment close by as a domestic worker with an
elderly widow.
However, accommodation was not available there and Ms
M put up in a room with a man (“
Jonny
”)
who worked as a caretaker in a block of flats and had a single room
there which he shared with his girlfriend (“
Gertie
”).
[9]
When the widow died in 1997, Ms M was only
able to find part-time employment with 2 families in Sea Point while
continuing to stay
with Jonny and Gertie. When A was born in 2001,
she too stayed in the room with her mother, Jonny and Gertie. But in
2003 the body
corporate of the apartment block in which Jonny’s
room was located resolved that only persons who were employed in the
block
could continue to reside in the domestic workers’
accommodation there and so Ms M had to move again. She says that she
was
fortunate to find a room of her own in a block of flats on Sea
Point’s Main Road for which she paid R1200/month. That enabled
N (then aged 19) to move in with her mother and younger sibling,
while Ms M continued to render domestic service to the families
of
Sea Point.
THE
MOVE TO CANONBURY BUILDINGS
[10]
In 2005 Canonbury Buildings was owned by a
company called Kanirk Investments Share Block (Pty) Ltd (“
Kanirk
”).
Kanirk was controlled Mr Dirk Christiaan Johannes Joubert and his
wife Elfrede. Mr Joubert was a well-known figure in
Sea Point: not
only was he a City Councillor for the area but was also the co-owner
of a butchery which was famous throughout the
Western Cape for its
particular brand of biltong.
[2]
For the sake of convenience I shall refer Mr Joubert as “
Cllr.
Joubert
” in order to distinguish
him from his son of the same name who features later in the piece.
Cllr. Joubert was, by all accounts
as the papers reflect, a
benevolent, community-spirited person.
[11]
In 2005 Cllr. Joubert and Ms M concluded an
oral agreement of lease in respect of the property. Ms M says she was
introduced to
the room by a friend (“
Ivan
”)
who lived there and was looking for someone to take it over from him
when he moved out. Ivan introduced Ms M to Cllr. Joubert
and it was
agreed between the parties, so she says, that she could rent the room
for R2500/month for an indefinite period. Ms M
says that she was
under the impression that Cllr. Joubert was the owner of the building
as he told her that she could live in the
property for so long as she
needed to. She says, too, that Cllr. Joubert knew that she lived
there with N, A and L. Further, after
the birth of D in 2009, Ms M
says that she gave Cllr. Joubert the child’s details and he
informed her that he would endorse
his records accordingly. The
import of this allegation is that Cllr. Joubert accepted that D was
lawfully on the property.
[12]
Cllr. Joubert died on 27 February 2013.
Thereafter his son, Mr Dirk Joubert, (“
Dirk
Joubert
”) took over managment of
the property. On 1 November 2013 Dirk Joubert presented Ms M with a
written
pro forma
agreement
of lease of the variety which is customarily purchased from a
well-known stationary chain. For the sake of convenience
I shall
refer to this as “
the written
lease.
” It has a host of standard
terms and conditions (“
STC’s
”)
of the type customarily contained in such documents and a variety of
manuscript additions and annotations thereto of which
the following
are relevant –
·
The lessor was described as Mrs E.
Joubert of Bantry Bay c/o Dirk Joubert;
·
The lessee was S M;
·
The lessee’s address and the
subject of the lease was given as Canonbury Flats with the flat and
room numbers left open;
·
The monthly rental was R2200,
payable in arrears on the last day of the month;
·
The deposit was 1 month’s
rent;
·
The lease was to run from 1 January
to 31 December 2014 whereafter the lessee was to vacate the property;
·
The maximum number of persons
permitted to occupy the property was 2, unless otherwise agreed in
writing.
[13]
In the space allocated under the heading
“
SPECIAL CONDITONS”
there
are further manuscript additions purporting to be an amplification of
certain of the STC’s.
“
1. Clause 4a
[3]
:
Rental payable by last day of the month.
2……..
3. Clause 6k
[4]
:
A fine of R250 will be payable for any complaints received. After two
complaints Lessee will be required to vacate the premises
within 7
seven days.
4. Clause 9
[5]
:
If rent not paid within 7 days, lease will automatically be
cancelled.”
ATTEMPTS
TO CANCEL THE LEASE AND OBTAIN VACANT OCCUPATION
[14]
On 12 January 2015 a letter under the hand
of “
DC Joubert, Landlord
”
was written to Ms M of “
Unit 1
”,
Canonbury Flats. It was on the letterhead of “
Kanirk
Investments/E.Joubert”
which
reflected the business’ physical address as “
Canonbury
flats
(sic),
Regent
road
(sic)
,
Sea Point
” and further contained
the cellphone number and email address of Dirk Joubert. I shall
recite the contents thereof in full.
“
INCREASE OF RENTAL AND TERMINATION OF
LEASE
Please note that rental will increase from 1 February to R2350 per
month.
As stated in clause 2 of your lease agreement (see copy attached),
the current lease terminates on 31 December 2014 with no option
to
renew. This letter serves to confirm the termination of the lease.
Due however to late notice (delivered on 12 January 2015),
you are
only required to vacate the premises by 28 February 2015.
Please note that, assuming you occupy the flat until 28 February
2015, that (sic) your outstanding rental and fines are as follows:
·
Outstanding: was due on October
2014: R250 fine (see attached copy of letter delivered on 1 Oct 2014)
·
Outstanding: was due on 1 January
2015: R100 (only R 2100 rent paid on 7/1)
·
Due on 1 February: R2350
(February rental)
Kindly confirm by Friday 23 January at 5pm whether you intend
vacating the flat on 31 January or 28 February in order for us to
make the necessary arrangements for final inspection.
All the best for your future endeavours.”
It
would appear, in the circumstance, that the lessor had adopted a
lenient and tolerant attitude towards the lessee.
[15]
Notwithstanding the terms of the letter of
January 2015, Ms M continued to reside in the property for the
remainder of that year.
On 16 December 2015 a letter on the same
letterhead as before was written to her.
“
INCREASE OF RENTAL, CHANGE OF
OWNERSHIP AND TERMINATION OF LEASE
Please note that rental will increase from 1 January 2016 to
R2500
per
month.
As stated in the letter you received on 12 January 2015 you (sic)
lease was not renewed after its termination on 31 December 2014.
You
were given until 28 February 2015 to vacate the premises which you
did not adhere to. After I confronted you you asked for
a few weeks
to find alternative accommodation which never materialised and
despite several requests and warnings to vacate the
premises you have
refused to do so and have been illegally occupying the flat ever
since.
This letter confirms that the flat has since been sold to the
Berman Brothers Group who have confirmed that you will be
required
to vacate
the flat by 28 February 2016 to avoid further legal
action
.
Please note that all arrangements stay the same until then except
the bank account of E Joubert at FNB which is no longer in use
for
rental payments. All rental payments for January and February must be
paid in cash to the caretaker who will issue a receipt
at the same
time as receiving the money. This letter also confirms that your rent
is up to date until, and including your December
payment.
All the best for your future endeavours.”
Along
with other tenants in the block, Ms M was required to sign a form
acknowledging receipt of this letter, which she did on 17
December
2015.
[16]
Despite the contents of the letter of 16
December 2015, Ms M continued to reside in the property throughout
2016, notwithstanding
the aforesaid change of ownership which was
effected on 23 August 2016. And, it seems, she continued to pay rent
throughout that
period, which rental was accepted by the respective
landlords. However, subsequent thereto, and during 2017 and early
2018, there
were some defaults in the payment of rental, some in part
and some in full.
FIRST
MAGISTRATES’ COURT PROCEEDINGS
[17]
On 3 October 2016, and under case no
11821/16, the Berman Bros commenced proceedings under the Prevention
of Illegal Eviction from
and Unlawful Occupation of Land Act, 19 of
1998 (“
PIE
”)
in the Cape Town Magistrates’ Court for the eviction of Ms M
from the property. The founding affidavit therein was
similarly
deposed to by Mr Paul Berman who, relying on the aforesaid letter of
from Dirk Joubert of 16 December 2015, made the
following allegations
in support of the claim that Ms M was in unlawful occupation of the
property.
“
18. The First Respondent, as well as
any other persons that may occupy the property vis-à-vis the
First Respondent, is presently
in unlawful occupation of the property
in terms of a written notice to vacate, which was hand delivered to
the First Respondent
on 17 December 2015.
19. Despite the above-mentioned demand, the
First Respondent has failed to vacate the property on the date (28
February 2016) as
provided for in the notice to vacate or at all.
Continued occupation of the property is accordingly unlawful.
20. In light of the First Respondent’s
failure to comply with the notice to vacate, Applicant, as the
registered owner of
the property, is entitled to take repossession of
the property.”
[18]
That application was opposed and, after
opposing papers were filed, it was set down, by agreement, for
hearing on 6 July 2017. In
the founding affidavit in this matter Mr
Paul Berman says that the eviction application in the Magistrates’
Court “
was for diverse reasons not
proceeded with and subsequently withdrawn.”
Ms
M suggests in the present application that after she had filed her
answering affidavit in the first Magistrates’ Court
proceedings
it was clear that there was a dispute of fact that could not be
resolved on the papers and that that was the reason
that the Berman
Brothers backed off in that forum. She goes on to suggest that the
same dispute of fact has arisen on these papers
and that for that
reason alone this matter falls to be dismissed.
NEW
NOTICE TO QUIT
[19]
On 18 October 2017 the Sheriff served a
fresh notice on Ms M. This was contained in a letter dated 3 October
2017 from Oosthuizen
& Co (“
Oosthuizens
”),
attorneys acting for the Berman Bros herein.
[6]
I shall recite only the material portions thereof.
“
We
record
that you are currently in occupation of … [the property] which
premises you occupy by virtue of a month-to-month lease
entered into
between yourself and our client, alternatively our client’s
predecessor in title.
We hereby notify you, as we are authorised to do, that the lease
agreement between yourself and our client is herewith terminated,
alternatively will not be renewed, and you are afforded notice until
30 November 2017 to vacate the property together with all
those
holding title through you.
Further, insofar as you might allege any other right in law to
occupy the property, any such right is herewith terminated and you
are afforded until 30 November 2017 to vacate the property together
with all those holding title through you.
Without in any way conceding that it is in any way obliged to do
so, our client invites you to approach it, or us as you see fit,
to
discuss manners in which your vacation of the property can be in as
dignified a manner as possible with the minimum disruption
to you and
your household. Our client in this regard tenders the following
assistance.
1.
An agreed vacation of the property
on terms convenient to you;
2.
Assistance in relocating your
movable property elsewhere, including the provision of vehicles and
labour;
3.
Liaising on your behalf with the
local municipality or other landowners regarding sourcing alternative
accommodation;
4.
Any other assistance which you
believe would be helpful to you.
We wish to specifically record that the aforesaid is in no way a
limitation on the assistance which our client is prepared to provide
and we record specifically that we can discuss any reasonable manner
in which you believe your family’s relocation can be
dealt with
in as dignified a manner as possible and with as little disturbance
(sic) you and your family.
The aforesaid is (sic) no way to be interpreted as a concession of
any right to occupy the property subsequent to the termination
of
such rights as set out above.
Please note that in the event of your failure to vacate the
property as called upon to do, an application for your eviction from
the property will be instituted. Please do not see the institution of
this application as a bar to you contacting either us or
our client
as set out above and you are welcome at any time in the future to
contact us or our client to discuss your application
of the
property.”
[20]
Ms M did not take up the offer of
assistance to facilitate her removal from the property but took legal
advice from the Ndifuna
Ukwazi Law Centre (“
Ndifuna
”),
a public interest firm which subsequently entered an appearance as
her attorneys of record herein. In a letter dated 30
November 2017
Ndifuna wrote to Oosthuizens on a without prejudice basis.
Surprisingly, the letter was included in the founding
affidavit
herein and there was no objection thereto by Ms M’s legal
representatives. I shall therefore refer to the letter,
the relevant
portions whereof read as follows.
“
3. We confirm that we have been
instructed as follows:
3.1.
Our client resides at the property with her two minor children (aged
16 and 12) and grandchild (aged eight). Ms M (sic) is
employed as a
domestic worker in Sea Point and earns an average of R2250.00 per
month;
3.2.
Our client has made numerous attempts to secure alternate
accommodation since receiving the letter but despite her efforts,
she
has been unable to secure accommodation in Sea Point or its
surrounding areas as there are (sic) a shortage of affordable and
available rentals in the area;
3.3.
As such, our client confirms that she is unable to vacate the
property on 30 November 2017 as per your letter dated 3 October
2017;
3.4.
Our client has further advised that she is not in a position to
accept the proposed vacation date of 31 January 2018 as it
would,
particularly at this time of year, be difficult, if not impossible to
secure affordable alternative accommodation within
the proximity of
the property in which she currently resides and her place of
employment. This proposed date would also present
various
difficulties in relation to our client’s minor children and
grandchild, and their schooling and related financial
and practical
obligations.
4. Our client has accordingly instructed that
we request that your client agrees to continued accommodation by our
client and her
dependents for a further period to be mutually agreed
upon by all parties. Our client is also willing to arrange a meeting
with
your client to discuss this, and any further issues and forms of
assistance relating to our client’s tenancy at the Property.”
[21]
In the founding affidavit Mr Paul Berman
points out that, despite their best endeavours, the parties were
unable to reach agreement
enabling the Berman Bros to obtain vacant
occupation of the property. He further explains that the remaining
occupants of Canonbury
Flats who were given notice in October 2017
all vacated their repective premises by 31 January 2018 –
effectively they were
given an extra 2 months to quit.
[22]
When Ms M made it clear that she would not
vacate, the Berman Bros initiated the present application on 20
December 2017. The answering
affidavit was only filed in April 2018
and the reply early in May 2018.
THE
SECOND MAGISTRATES’ COURT PROCEEDINGS
[23]
In the meanwhile the Berman Bros kept up
the pressure on Ms M. On 5 March 2018 they issued summons in the Cape
Town Magistrates’
Court for a so-called “
automatic
rent interdict
” in terms of s32
of the Magistrates’ Court Act read with Form 3 in Annexure 1 to
the Magistrates’ Court Rules,
claiming,
inter
alia,
·
An order attaching movable property
belonging to Ms M to the value R7350,00 in respect of rental
allegedly due by her;
·
Cancellation, alternately
confirmation of cancellation, of the lease;
·
Payment of arrear rental in the sum
of R7350.00; and
·
Interest and costs.
Ms M
opposed those proceedings in which judgment is still pending.
[24]
On 23 March 2018, Mr Martin Oosthuizen of
Oosthuizens deposed to an affidavit filed in support of the s32
application in which he
made, inter alia, the following allegations.
“
7. On 1 November 2013 the defendant
(sic), acting personally, entered into a written lease
[7]
….
prior to the Applicant having taken ownership of the Flat and
Property, with the previous owners, of the Flat and Property,
being
Kankirk
(sic)
Investments
Share Block (Pty) Ltd,…. represented by Mr
(sic)
Elfrede Joubert, duly authorised,
and the express, alternatively tacit, alternatively implied terms of
the lease were as follows:
7.1.
The Tenant leased the Flat for a period of one year terminating on 31
December 2014.
7.2
Any right of renewal of the lease thereafter was specifically
precluded.
7.3
Rental would be payable in the amount of R2200.00…
7.4
In the event the lease agreement was terminated the Tenant would
continue paying an amount equivalent to the monthly rental
in terms
of the Lease in the event the Tenant remained in occupation.
7.5
No ‘relaxation, indulgence or waiver’ would be binding
against the landlord.
8. On 12 January 2015 the previous owner by
written notice reiterated that the Lease was terminated and required
the Tenant to vacate
by 28 February 2015 and to continue paying the
rental
[8]
….
9. A further notice was sent by the previous
owner to the Tenant on 16 December 2015
[9]
….
reiterating that the Lease was not renewed and informing the Tenant
that the Flat and Property had been sold and that
the Tenant was
required to vacate by 26 February 2016.
10. On or about 23 August 2016 the Applicant took ownership of the
Flat and Property and by operation of law all rights and obligations
of the previous owner of the Flat and Property transferred to the
Applicant and the Applicant stepped into the shoes of the previous
owner as regards all legal obligations that the previous owner had
entered into with relation to the Flat and Property in his capacity
as owner.
11. On 18 October 2017 the sheriff delivered to
the Tenant a notice informing the Tenant that any lease agreement
between the Tenant
and the Applicant and/or the previous owner was
terminated
[10]
…
20. Eviction proceedings have been instituted in the High Court,
Western Cape Division, Cape Town, under case number 23332/2017,
against the Tenant and despite the Termination Notice above the
Tenant still remains in occupation of the property….”
[25]
When Ms M opposed that application the
Berman Bros moved for summary judgment and Mr Paul Berman deposed to
the affidavit in support
thereof, confrirming the contents of the
particulars of claim filed in support of the automatic rent
interdict. The allegations
in the particluars of claim are, to all
intents and purposes, the same as those made by Mr Oosthuizen in his
affidavit of 23 March
2018.
[26]
The allegations in the automatic rent
interdict proceedings rely extensively on facts falling, not within
the knowledge of the Berman
Bros, but within the knowledge of Dirk
Joubert. Such allegations are also material to these proceedings, as
the affidavit of Mr
Paul Berman suggests. There are however no
confirmatory affidavits filed by either Dirk Joubert or his mother,
Ms Elfrede Joubert
in these proceedings. Such allegations are
therefore inadmissible hearsay and fall to be disregarded.
RELIANCE
ON THE
REI VINDICATIO
[27]
In seeking to evict, the Berman Bros have
relied on the
rei vindicatio,
claiming
that they are the owners of the property and that Ms M is in
possession thereof. The cause of action is in accordance with
the
approach set out in
Chetty
[11]
.
“
It is inherent in the nature of
ownership that possesion of the
res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with
some
right enforceable against the owner (e.g. a right of retention or a
contractual right). The owner, in instituting a
rei
vindicatio
need, therefore, do
no more than allege and prove that he is the owner and the defendant
is holding the
res
- the
onus
being on the defendant to a allege and establish any right to
continue to hold against the owner.”
[28]
This principle has not been eroded by the
development of the jurisprudence around PIE but it is now established
law that the occupier
must disclose circumstances for consideration
under s4(7) of PIE which are relevant to an eviction order.
[12]
Following the decision in
Ridgway
[13]
,
the onus is on Ms M to show why the ordinary consequences should not
ensue, i.e. that the Berman Bros. are entitled to vindicate
the
property.
[29]
The claim under the
rei
vindicatio
is resisted on a number of
grounds in this matter. Firstly, there is the claim that the case
made out by the Berman Bros. is based
on inadmissible hearsay
evidence on the basis already alluded to – that there are no
affidavits in these proceedings by Dirk
Joubert or Ms Elfrede
Joubert. This leads on to the second point: that there are disputes
of fact on the papers regarding the lawful
termination of the lease
in terms whereof Ms M occupies the property. There is also an attack
on the basis for the acquisition
of ownership of the property due to
certain alleged inconsistencies in the records of the Deeds Registry.
Then there is a point
taken under the Consumer Protection Act, 68 of
2008 (“
the CPA
”)
(which it is common cause is applicable in this matter) that Ms M was
not afforded the requisite 20 days’ notice
to comply with the
lease before the Berman Bros purported to cancel it. Finally, there
is a claim that the Berman Bros have not
complied with their
constitutional obligations under PIE and, in particular, failed to
submit to mediation under s7 thereof.
[30]
The case put up by the Berman Bros is
plagued by contradiction and inconsistency. It is suggested, firstly,
that Ms M occupied the
property in terms of the aforesaid written
lease with Kankirk and that that lease had been cancelled by Dirk
Joubert prior to the
sale of the property to the Berman Bros. The
consequence of this allegation is that Ms M’s right of
occupation terminated
when she was purportedly given notice by Mr
Dirk Joubert and that she was accordingly in unlawful occupation
thereof when the Berman
Bros acquired it. If this allegation is well
founded then Ms M would not discharge the
onus
of demonstrating a right to occupy
which might trump the
rei vindicatio.
[31]
As against that legal stance, there are
repeated allegations (both in this court and the magistrates’
court) that Ms M occupied
the property under a lease concluded with
the Berman Bros and that this lease was cancelled by Oosthuizens in
their letter to her
of 3 October 2017. The claim for the automatic
rent interdict is consistent with his approach.
[32]
Fundamental to Ms M’s case is a
determination whether the lease concluded with Cllr. Joubert was ever
terminated. If not,
then the principle of
huur
gaat voor koop
would have prevailed at
the time that the Berman Bros acquired ownership: they were obliged
to accept her tenancy and deal with
her accordingly.
THE
STATUS OF THE WRITTEN LEASE WITH KANIRK
[33]
It is beyond dispute that at the time of
his death, Ms M occupied the property lawfully with the consent of
Cllr. Joubert. At that
stage he was the sole director of Kanirk and
it can safely be assumed that Cllr. Jobert acted on behalf of the
company, and was
duly authorized to do so, when he agreed to Ms M and
her children continuing to stay in the property. There is no evidence
before
this court to suggest otherwise and, applying the principle of
ostensible authority, common sense and logic suggest that at all
times Cllr. Joubert purported to act on behalf of Kanirk and was duly
authorized to do so.
[34]
The next issue is whether the verbal lease
with Kanirk was ever cancelled. The answering affidavit incorporates
a companies’
search conducted in April 2018 which reflects that
after the demise of Cllr. Joubert in February 2013 his widow Elfrede
Joubert
(born in 1940) was at all times material hereto the sole
director of Kanirk. In the absence of any affidavit by either her or
Dirk
Joubert, there is simply no evidence before this court as to the
basis upon which the written lease of November 2013 was concluded
with Ms M. To be sure, Elfrede Joubert was not the owner of the
property (as the lease suggests) while the reference to the lessor
being cited “
c/o Dirk Joubert”
remains unexplained. And, to the extent
that it might be suggested that, for example, there was some form of
assignment of the verbal
lease through the incorporation thereof via
the written lease, there is once again no evidence to this effect
before this Court.
[35]
And, the description subsequently (in the
letters of 12 January and 16 December 2015 both written on behalf of
“
Kanirk Investments/E.Joubert
”)
of Dirk Joubert as the “
Landlord”
is equally untenable in the absence of any explanation for these
seemingly contradictory allegations. The explanation may be be
straight forward but in the absence of any evidence it is not for
this court to speculate as to the probabilities in this regard.
It
must be added that there is nothing to suggest that either Dirk
Joubert or his mother are unable (or unwilling) to depose to
affidavits in support of this application to evict.
[36]
The corporate affairs of Kanirk are
conducted by its public officers (its director/s) and any employee or
other agent duly authorized
to so act.
[14]
There is no evidence that the company took any decisions in relation
to Ms M’s tenancy of the property, either in 2013 or
subsequent
thereto. In the result I am unable to conclude that the verbal lease
with Kanirk was ever lawfully cancelled by the
company, nor that it
was substituted, assigned or novated by the written lease.
[37]
The written lease therefore, in my view, is
a purported act with no legal consequences. Accordingly, I am driven
to conclude that
when Kanirk sold the property to the Berman Bros. it
did so subject to an existing tenancy in favour of Ms M under the
verbal lease
with Cllr. Joubert and not the November 2013 written
lease as contended for by the Berman Bros.
HUUR
GAAT VOOR KOOP
[38]
In his reply, Mr Wilkin submitted that any
reliance upon an indeterminate right to occupy the property was
unsustainable in law.
He pointed to the fact that a long term lease
(in excess of 10 years) was only enforceable if it was registered as
such, which
was not the case in this matter. There is a long line of
cases which hold that the holder of an unregistered long term lease
is
not without rights in circumstances where the purchaser of the
property knew of the existence of the tenancy at the time the
property
was acquired
[15]
.
[39]
Be that as it may, it seems to me that the
proper interpretation to be placed on the verbal lease contended for
here is that the
duration thereof was left up to the determination of
the lessee, in which event the lease could not endure beyond the
lifetime
of Ms M.
[16]
Such a lease can nevertheless be terminated by the landlord on
reasonable notice to the tenant. What constitutes reasonable notice
in such circumstances will depend on “
local
custom or … the discretion of the judge.”
[17]
[40]
In
Tiopaizi
de Villiers JA held that
“…
(I)t may now be taken as settled
that in the absence of agreement or custom to the contrary, a monthly
contract of letting and hiring
for an indefinite period requires a
month’s notice, to expire, in all cases except in the case of
domestic or menial servants,
at the end of a month.”
[41]
The position then is that when the Berman
Bros. acquired the property in August 2016 Ms M lawfully occupied the
property as a lessee
and her tenancy could only be terminated by the
landlord on reasonable notice to her. In accordance with the
principal of
huur gaat voor koop
the
Berman Bros, who manifestly had knowledge of Ms M’s tenancy,
were obliged to respect such tenancy and could only terminate
it on
the same basis that Kanirk could.
[18]
The principle is neatly summed up by Stratford ACJ in
De
Wet
thus
“
This being a contract of lease, the
purchaser is bound on it by the doctrine of
huur
gaat voor koop
and bound also by
all its material terms.
[42]
Indeed, it seems as if the Berman Bros.
accepted this to be the case: that is the only reasonable
inference to be drawn from
the fact that they tolerated Ms M’s
occupancy and accepted her rental for about 15 months until they
instructed Oosthuizens,
albeit in the alternative, to cancel the
lease in October 2017. Their conduct in seeking the automatic rent
interdict is also consistent
with the acceptance of this position in
law.
DID
THE BERMAN BROS. LAWFULLY CANCEL THE LEASE?
[43]
The letter written to Ms M by Oosthuizens
on 3 October 2017 (and which is referred to in para 19 above) makes
it clear, at the very
least, that the Berman Bros. respected the
existence of the verbal lease with Kanirk. But the letter goes
further: it asserts that
Ms M occupied the property on a
month-to-month basis in terms of a lease concluded with the Berman
Bros. No substance, however,
is given to the alleged leased in the
founding affidavit and, in particular, there is no allegation by Mr
Paul Berman as to what
the contractual notice period was.
[44]
If the allegation of a month-to-month lease
is correct, the notice period would ordinarily be one month. A
similar notice period
would apply on the basis of the approach in
Tiopaizi
.
Notice was given to Ms M on 18 October 2017 when the Sheriff
delivered the letter to her. That notice required her to vacate by
the end of November 2017, which is more than the applicable period of
one month. In the circumstances, I must conclude that reasonable
notice was given and that the lease with Ms M was properly cancelled
by Berman Bros.
[45]
Significantly, the response by Ndafuna on
behalf of Ms M to the letter of cancellation does not dispute the
Berman Bros. entitlement
to cancel the lease. Rather, the attorneys
convey their client’s predicament and her inability to move
immediately, asking
for an indulgence to accommodate the plight of
her children and grandchild.
APPLICATION
OF THE PROVISIONS OF PIE – WHAT IS JUST AND EQUITABLE?
[46]
In light of the finding that the lease was
lawfully cancelled by the Berman Bros., it must follow that Ms M is
now in unlawful occupation
of the property. The owners are therefore
fully within their rights to seek her eviction from the property and
are constrained
only by the provisions of s4(7) of PIE, given that Ms
M has been in unlawful occupation for more than 6 months.
[47]
The jurisprudence that has developed in
cases such as
Blue Moonlight
[19]
and
Changing Tides
[20]
establishes that where the eviction is at the behest of a private
landowner (as opposed to an entity bearing a constitutional
obligation to provide housing) there is no duty on such private
entity to provide alternatve accommodation to the occupier. In
Changing Tides
the court made the following observations;
“
[18]…. The Constitutional Court
has said that private entities are not obliged to provide free
housing for other members
of the community indefinitely, but their
rights of occupation may be restricted, and they can be expected to
submit to some delay
in exercising, or some suspension of, their
right to possession of their property in order to accommodate the
immediate needs of
the occupiers. That approach makes it difficult to
see on what basis the availability of alternative land or
accommodation bears
on the question whether an eviction order
should
be granted, as opposed to the date of eviction and the conditions
attaching to such an order. One can readily appreciate that the
date
of eviction may be more immediate if alternative accommodation is
available, either because the circumstances of the occupiers
are such
that they can arrange such accommodation themselves, or because the
local authority has in place appropriate emergency
or alternative
accommodation. Conversely, justice and equity may require the date of
implementation of an eviction order to be
delayed if alternative
accommodation is not immediately available. It is, however, difficult
to see on what basis it affects the
question whether it is just and
equitable to make such an order. Perhaps, in the case where the
occupiers would be entitled to
a lengthy period of notice before
being required to vacate, the unavailability of alternative land or
accommodation might operate
as a factor to persuade the court that
the issue of an eviction order, at the stage that the application
came before it, would
not be just and equitable, but such cases are
likely to be rare. This does not mean that court may disregard the
question of the
availability of alternative land or accommodation -
that would ignore the express requirements of s4(7) -but the weight
this factor
will carry in making the initial decision whether an
eviction order is just and equitable may not be great.
[19] In most instances where the owner of
property seeks the eviction of unlawful occupiers, whether from land
or the buildings
situated on the land, and demonstrates a need for
possession and if there is no valid defence to the claim, it will be
just and
equitable to grant an eviction order. That is consistent
with the jurisprudence that has developed around this topic…
[20] Where the eviction is sought by a private
landowner the availability of alternative land or accommodation
assumes greater importance
in the second enquiry, namely, what is a
just and equitable date for eviction? It is here that the
constitutional obligations of
the appropriate form of government - in
our cities this is inevitably the municipality - come into focus and
assume their greatest
importance. The reason is that, even if it is
just and equitable to grant an eviction order, that is not the end of
the enquiry,
because any eviction order must operate from the date
fixed by the court and that date must be one that is just and
equitable.
[21] Accordingly the availability of
alternative land or accommodation is relevant to both enquiries into
what is just and equitable.
That link between the first and second
stages of the enquiry underpins the numerous decisions in which our
courts have held that,
before determining whether an eviction order
should be granted, the relevant authorities must be engaged in order
to ensure that
they will discharge their obligations to the
evictees……
[25] Reverting then to the relationship between
ss4(7) and (8), the position can be summarised as follows. A court
hearing an application
for eviction at the instance of a private
person or body, owing no obligations to provide housing or achieve
the gradual realisation
of the right of access to housing in terms of
s26(1) of the Constitution, is faced with two separate enquiries.
First it must decide
whether it is just and equitable to grant an
eviction order having regard to all relevant factors. Under s4(7)
those factors include
the availability of alternative accommodation.
The weight to be attached to that factor must be assessed in the
light of the property
owner’s protected rights under s25 of the
Constitution, and on the footing that a limitation of those rights in
favour of
the occupiers will ordinarily be limited in duration. Once
the court decides that there is no defence to the claim for eviction
and that it is just and equitable to grant an eviction order, it is
obliged to grant to that order. Before doing so, however, it
must
consider what justice and equity demands in relation to the date of
implementation of the order and it must consider what
conditions must
be attached to that order. In that second enquiry it must consider
the impact of an eviction order on the occupiers
and whether they may
be rendered homeless thereby or need emergency assistance to relocate
elsewhere. The order that it grants
as a result of these two discrete
enquiries is a single order. Accordingly it cannot be granted until
both enquiries have been
undertaken and the conclusion reached that
the grant of an eviction order, effective from a specified date, is
just and equitable.
Nor can the enquiry be concluded until the court
is satisfied that it is in possession of all the information
necessary to make
both findings based on justice and equity.”
[48]
In this matter there was some debate at an
earlier stage as to whether there had been proper engagement between
the City of Cape
Town and Ms M in relation to the mediation process
contemplated by s7 of PIE. That process has since run its course: a
mediation
report was placed before the court and it appears that
nothing productive has emerged from the process. On 14 August 2018
the City
indicated to the court that there was then emergency housing
immediately available to accommodate Ms M and the girls at its
temporary
relocation facility at Wolwerivier, adding that due to
demand it was only available for a day or two. Ms M declined the
offer on
account of the long distances the girls would be required to
commute to their schools and the unavailability of suitable public
transport. She was entitled to adopt such a stance but cannot then be
heard to complain that the City has not discharged its obligation
regarding the provision of emergency housing.
[21]
[49]
The Berman Bros put up evidence of
alternative accommodation available at rentals potentially affordable
by Ms M and she did likewise.
It seems as if the prospects of Ms M
finding suitable accommodation in Sea Point are remote in the
extreme: the going rentals in
the area are now simply beyond her
means. She will now have to relocate to an area much further away
than where she has lived for
more than 30 years and such a move has
implications for the schooling of the girls. It appears to me as if
the 2 younger girls
may well be able to relocate to another school
without too much disruption but the same cannot be said of the
eldest.
[50]
At the time of the hearing A was in Grade
11 at Sea Point High and was about to enter her matric year. It is to
be assumed now that
she has done so. L was in Grade 7 at Walmer
Estate Primary and D was in Grade 4 at Sea Point Primary. It was said
that A and D
walked to school in Sea Point while L made use of the
MyCiti bus service to travel to Walmer Estate.
[51]
It is of course necessary to have regard to
the provisions of s28(2) of the Constitution in this matter and
consider the paramountcy
of the childrens’ interests. In that
regard, it is my considered view that to expect A to change schools
at this stage of
her education (or for her to be subjected to a
transport regime that would cause a similar disruption in this
critical year of
her life) is not in her best interests. She does not
deserve to follow the misfortune which befell her mother all those
years ago.
In the constitutional democracy in which she is growing up
she is entitled to the advancement of her best interests.
[52]
In my view, then, it is just and equitable
to order the eviction of Ms M from the property but this should only
occur when A has
finished her matric year. I am fully aware that such
an arrangement will negatively affect the rights of the Berman Bros.
but that
effect will only be in respect of the accommodation
prospects of one or perhaps two of their employees. After all, it is
not as
if the Berman Bros. intend to develop the property and are
being held up with their plans in that regard. And, in any event,
they
would be entitled to recover rental income from Ms M for holding
over.
[53]
It is a matter of considerable irony that a
person who has managed to avoid domestic relocation under the
oppressive apartheid legislation
designed to ensure separate
residential areas for different race groups is now required to move
to an area distant to her place
of employment and suitable schools
for her children. No doubt the legislature had regard to this social
dynamic when it enacted
PIE which must thus be applied to ameliorate,
in so far as it is possible, the suffering of those who are the
innocent victims
of the advancement of commercial interests.
[54]
In the result, I conclude that the demands
of justice and equity will be met if Ms M is ordered to be evicted
from the property
at the end of November 2019. As far as the question
of costs is concerned, it is apparent that Ms M is a person of
limited means
and that those means should be put towards the
maintenance of the girls. Further, the matter has involved the
vindication by both
parties of constitutionally protected rights and
fairness demands that there should be no costs orders made.
ORDER
OF COURT
Accordingly
it is ordered that:
A.
The
First Respondent and all those occupying under her are ordered to
vacate Section 1, Room 2, Canonbury Building, situated at
number […]
R Road, Sea Point, Western Cape (“
the
property
”) by Sunday 30 November
2019.
B.
In
the event that the First Respondent and all those occupying under her
fail to vacate the property as aforesaid, the Sheriff of
this court
is authorized and directed to evict them therefrom on Tuesday 17
December 2019.
C.
There
will be no order as to costs
__________________
GAMBLE, J
[1]
www.bermanbros.co.za
[2]
www.joubertandmonty.co.za/about/history/
[3]
Clause 4 fixes the rental at R2200/month, payable
in arrears on the last day of the month.
[4]
Clause 6k is a warning to the lessee not to cause
a nuisance to the neighbours.
[5]
Clause 9 is the breach clause.
[6]
A letter in similar terms was sent to “
ALL THOSE OCCUPYING
FLAT 1 ROOM 1,2,3..
”
[7]
A copy of the lease referred to in para 12 above was attached.
[8]
The letter referred to in para 14 above was attached.
[9]
The letter referred to in para 15 above was
attached.
[10]
The letter referred to in para 19 above was attached.
[11]
Chetty v Naidoo
1974 (3) SA 13
(A) at 20C-D
[12]
Ndlovu v Ngcobo; Bekker and another v Jika
2003 (1) SA 113
(SCA) at [19]
[13]
Ridgway v Janse van Rensburg
2002 (4) SA 186
(C) at 192A-B
[14]
Northview Shopping Centre (Pty) Ltd v Revelas Properties
Johannesburg CC and another
2010 (3) SA 630
(SCA) at [20]
et
seq
[15]
Kessoopersadh en ‘n ander v Essop en ‘n ander
1970 (1) SA 265
(A) at 273H; 277A – 278H.
[16]
Ebrahim v Pretoria Stadsraad
1980 (4) SA 10
(T) at 15C-D
[17]
Tiopaizi v Bulawayo Municipality
1923 AD 317
at 326
[18]
De Wet v Union Government
1934 AD 59
at 63
[19]
Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd and another
2012 (2) SA 104 (CC)
[20]
City of Johannesburg v Changing Tides 74 (Pty)
Ltd and others
2012 (6) SA 294 (SCA)
[21]
Baron and others v Claytile (Pty) Ltd and another
2017 (5) SA
329
(CC)