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[2020] ZAWCHC 106
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Philander v Makiet and Others (A61/2020) [2020] ZAWCHC 106 (18 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: A61/2020
LLEWELLYN
JO-PETER
PHILANDER
APPELLANT
and
CHADLEY
MAKIET FIRST
RESPONDENT
(AND
ALL THOSE HOLDING TITLE UNDER HIM) SECOND
RESPONDENT
SWARTLAND
MUNICIPALITY THIRD
RESPONDENT
Coram:
Rogers J, Wille, J et Slingers, J
Heard:
28
th
of August 2020 (further submissions filed on the 3
rd
of September 2020)
Delivered:
Friday 18 September (by email and by same-day release to SAFLII
JUDGMENT
Wille
J
:
[1]
Eviction
applications frequently pit the two sides of our society against one
another. The applicant is invariably the property
owner who has
the resources necessary to access the civil justice system. The
respondent often does not have those resources,
neither at the time
that the initial eviction application is brought, nor thereafter.
This appeal concerns such a matter
as the first respondent did
not have the benefit of any legal assistance.
[2]
This
is an appeal against the refusal to issue out an eviction order
[1]
,
by the court a quo. Initially, the matter progressed by way of
application proceedings at the instance of the appellant.
These
proceedings morphed into application proceedings with oral evidence
at the direction of the presiding officer in the court
a quo.
[3]
This
was so, because the first respondent was unrepresented and, remains
so unrepresented. In any event, certain disputes
of fact
emerged during the proceedings, which, in order to be resolved,
required the leading of
viva
voce
evidence. The central alleged disputes of fact are connected
with the issues of as to ‘
when’
and ‘
how’
[2]
the first respondent became aware of the appellant’s right to
obtain an eviction order.
[4]
This
factual matrix raises interesting legal issues that require more and
careful scrutiny. The order is connected with a
residential
property namely,
Erf
[…], Darling.
[3]
The
appellant is the owner of the property, who is represented by Ms
Pratt. The first respondent and second respondents
[4]
are the occupiers of the property and took no part in these appeal
proceedings. The third respondent is the local municipality,
which similarly, took no part in these proceedings.
[5]
The
first respondent asserted that his rights to reside on the property
had been granted to him by the former owner of the property
[5]
,
this before the property had been sold and transferred to the
appellant.
It
is not in dispute that the appellant purchased the property from Mr
Langeveldt and that the said Mr Langeveldt was the first
respondent’s
uncle.
[6]
The
first respondent, initially resided in the property with his
mother
[6]
, who had sought to
obtain ownership of this property from the third respondent. I
pause to mention that this property is
what is colloquially known as
a ‘
RDP’
house.
[7]
It is in my
view, common cause, that Mr Langeveldt ‘
provided’
the first respondent, and by implication, the second respondent
[8]
,
the right to
occupy
the property. This was in the form of a personal right, akin to
that of a ‘
precarium’
to reside in the property.
[7]
I
say this because it is alleged that the first respondent’s
mother had originally applied to be allocated the property in
her
name. She however passed away before the property was formally
allocated to her by the third respondent. When she
passed away,
she had two dependents, the first respondent and his sister who were
very young children at the time of their mother’s
passing.
[8]
The
property could not be allocated and transferred into the name of the
first respondent’s grandparents, as they had already
been
allocated a home.
[9]
Mr
Langeveldt was on the evidence the only adult in the family that
qualified for the allocation of this RDP home.
[9]
The
precarium
argument
[10]
is that Mr
Langeveldt had promised to look after the first respondent and his
sister, and this was the sole reason as to why the
property was
allocated to him.
[10]
The
first respondent testified that the property could not be allocated
to his grandparents and that the sole reason for the allocation
of
the property to Mr Langeveldt, was because he had undertaken to look
after the first respondent and his sister. Mrs Langeveldt
corroborated this version of events and so did the representative of
the third respondent. It is common cause that no written
undertaking in this connection was entered into by either of the
parties. Initially, the first respondent resided in the
property with the seller, Mr Langeveldt.
[11]
It
was common cause that the first respondent’s grandparents and
his sister vacated the property and they again occupied the
property
after same had been sold and transferred to the appellant and once he
had initiated these eviction proceedings. During
subsequent
argument before us, it emerged that the appellant became aware of the
first respondent’s occupation of the property
during November
of 2018 after the property was registered into his name.
[12]
A
‘
precarium
’
falls to only be terminated on reasonable notice. The
occupation of the property by the first respondents
[11]
accordingly remains a ‘lawful’ occupation, pending the
lawful termination thereof and the lapse of a reasonable time
period
as set out in the appropriate notice.
[13]
In
the
Felix
[12]
matter
,
the
plaintiff instituted an action against the executor of the deceased
estate of a person who was alleged to have purchased fixed
property
subject to the express oral agreement that after transfer of the
property to the deceased, the plaintiff and the other
co-plaintiffs
would enjoy continued occupation of the property until their deaths
.
The
executor excepted to the action on the grounds that the alleged
agreement was invalid in that it failed to comply with the Alienation
of Land Act.
[13]
[14]
The
court in this case held that a person who holds the right to a
personal servitude does not hold a real right, but a personal
right
which may only entitle him to registration of a servitude in due
course.
[15]
Similarly,
in the
Brink
[14]
matter, the court held that an agreement in terms of which an owner
of land acquires a praedial servitude over the land of another
in
return for a sum of money representing the price paid by the former
for the grant of the servitude and ancillary rights connected
therewith, fell within the ambit of section 1 (1) of Act 68 of 1957.
[16]
In
Baront
Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and
Others
[15]
,
the full bench considered the question whether an oral agreement
creating a servitude was capable of being enforced. The court
held
that such oral servitude constituted an ‘
interest
in land
‘which
must be in writing.
[17]
It
seems to me that it is settled law that a real right only comes into
existence when an agreement has been registered.
[16]
In
Robarts
v Antoni N.O. and Others
[17]
the Supreme Court of Appeal held that an oral agreement whereby a
servitude was created, was invalid and stated the following:
‘
In
terms of s 1(b) of the Act ‘land’ includes ‘any
interest in land’ and ‘alienate’ which corresponds
with ‘alienation’, in relation to land, means ‘sell,
exchange or donate’. It is established that
a praedial
servitude (such as the height servitudes involved here) constitutes
an ‘interest in land’ as envisaged in
the Act’
[18]
The
appellant contends for the express termination of any ‘
precarium’
ostensibly in favour of the respondents, simply on the basis that he
is the new owner of the property and he is not bound by any
previous
rights given to the respondents to reside in the property. I
agree. However, even if it is accepted that he
obtained clean
and unencumbered rights to the property on registration of transfer
into his name, the issue which raises concern
with me is, in these
circumstances, was a reasonable period of time given to vacate the
property?
[19]
At the hearing of this appeal counsel for appellant was requested to
submit further submissions in connection with the following
questions
posed by the court:
[19.1] Whether, on
the evidence, the respondents` rights to occupy the property indeed
constituted a
precarium;
[19.2] If so,
whether the appellant as the purchaser of the property was bound to
honour such
precarium
or whether
the precarium
had
lapsed simply as a result of the change in ownership;
[19.3] Whether the
notice period provided by the appellant to the respondents was
reasonable;
[19.4] If the notice
period was not reasonable, whether the additional two months afforded
to the respondents between the time that
the notice was given and
when the eviction proceedings commenced, could be taken into
consideration for purposes of deciding whether
it was just and
equitable to grant an order for eviction;
[19.5] Whether an
eviction order may be granted under the Regulations issued under
Section 27(2)
of the
Disaster Management Act, 2002
, published
on the 18th of August 2020 in respect of Alert Level 2.
[20]
The nature of a
precarium
is dependent on the intention of the parties. It can either be
in the nature of a servitude, or a
precarium
proper, the latter being revocable at will.
[18]
A
precarium
proper is purely personal to the grantee and springs from liberality
or friendship. According to the older authorities the relationship
of
precarium
was originally regarded as
sui
generis
and binding, but not contractual in nature. In modern Roman
Dutch Law however, it is regarded as being contractual. It
can
thus be created tacitly or expressly.
[19]
[21]
The appellant submits that in order to bind successors in title, a
tacit re-grant of the concession under a
precarium
would be
necessary, where both the grantor and the grantee have knowledge of
the position. The argument being that there
must therefore
first be a
tacit
pactum
or contract with the successor
in title before he can be bound thereby. I agree. In my
view the court a quo erred in
its finding that in the circumstances
of this case, the appellant was technically not the owner of the
property. On this basis
alone the judgment of the court a quo falls
to be set aside.
[22]
In
casu
, it is common cause that Mr Langeveldt had permitted
the respondents to reside in the property for at least (8) years and
that
this grant was given gratuitously, in that the respondents never
paid any rental for their occupation of the property.
[23]
In
Dhayanundh
[20]
,
the respondent had purchased a property in terms of an agreement,
which stated that vacant possession would be granted to the
purchaser
on the signing of the agreement. The respondent initially
obtained an order for the appellant’s eviction,
but on appeal
it was held that the respondent had acquired the property with
knowledge of the fact that the appellant had enjoyed
an unregistered
right of
habitatio
over the property for a limited period. By reason of this
knowledge, the respondent was bound to ‘
respect’
such right. The court concluded that the appellant had
discharged the
onus
resting upon him to establish that the respondent had the requisite
knowledge and the appeal was upheld.
[24]
According to Mr
Langeveldt, he had
informed the first respondent at least four months prior, that he was
going to sell the property. It is
contended that such notice in
itself, constituted a reasonable period of notice of termination of
the first respondent`s
precarium
.
[25]
Presumably recognising the unequal battles that eviction proceedings
might spawn, the Legislature has bestowed a special power
on the
courts in terms of
section 4(7)
of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998 (‘
PIE
’).
[21]
A further special power has been conferred by section 4(8).
[26]
The section 4(7) power directs the courts to decide whether an
unlawful occupier should be evicted, the test being whether
it is
just and equitable to do so. All the relevant circumstances should be
considered. In giving this power to the court,
the legislature
has given effect to, and expanded upon, section 26 (3) of the
Constitution, in terms of which no-one may be evicted
from their home
‘
without an order of court made after considering all the
relevant circumstances
’.
[27]
The section 4(8) power is distinct from the section 4(7) power. It
comes into play after a court has decided that an
eviction is just
and equitable and is concerned with when and how the eviction is to
occur. Again, the court is enjoined
by the Legislature to
consider questions of justice and equity when making that
determination.
[28]
That those powers are central to PIE appears from its preamble, which
contemplates landowners not having an automatic right
to evict, but
rather having such a right only in ‘
appropriate
circumstances
’. The preamble also endorses the
imperative that no-one should be evicted from their homes without an
order of court
made after considering all the relevant circumstances.
[29]
The powers in sections 4(7) and 4(8) of PIE contain a legislative
recognition that, in the spectrum of eviction proceedings,
what the
courts will be expected to deal with is so broad and varied that it
was not possible to try and legislate for every conceivable
situation. The responsibility has been given to the courts to decide
the unique cases, not on principles of the law of property,
but on
principles of fairness and equity.
[30]
This legislative intent has been recognised by the courts, most
prominently by the Supreme Court of Appeal in
City
of Johannesburg v Changing Tides 74.
[22]
Wallis JA, writing for the court, said that in terms of section 4(7)
of PIE ‘
an
eviction order may only be granted if it just and equitable to do
so
’.
The Supreme Court of Appeal made the following statement
regarding the law of eviction under PIE (at para [12]):
‘
There
does not appear to have been a consideration of the precise
relationship between the requirements of s 4(7) (or s 4(6) if
the
occupiers have been in occupation for less than six months) and s
4(8) in the context of an application for eviction at the
instance of
a private landowner. In some judgments there is a tendency to blur
the two enquiries mandated by these sections into
one. The first
enquiry is that under s 4(7), the court must determine whether it is
just and equitable to order eviction having
considered all relevant
circumstances. Among those circumstances the availability of
alternative land and the rights and needs
of people falling into
specific
vulnerable groups are singled out for consideration. Under s 4(8) it
is obliged to order an eviction “if the …
requirements
of the section have been complied with” and no valid defence is
advanced to an eviction order. The provision
that no valid defence
has been raised refers to a defence that would entitle the occupier
to remain in occupation as against the
owner of the property, such as
the existence of a valid lease. Compliance with the requirements of s
4 refers to both the service
formalities and the conclusion under s
4(7) that an eviction order would be just and equitable. In
considering whether eviction
is just and equitable the court must
come to a decision that is just and equitable to all parties. Once
the conclusion has been
reached that eviction would be just and
equitable the court enters upon the second enquiry. It must then
consider what conditions
should attach to the eviction order and what
date would be just and equitable upon which the eviction order should
take effect.
Once again, the date that it determines must be one that
is just and equitable to all
parties’
[31]
That the court was indeed contemplating a situation where an eviction
order
might
be refused
on just and equitable grounds, even where the applicant was the owner
and the unlawful occupier had no legal right to remain on
the
property, is confirmed in footnote 22 of the judgment,
[23]
where Wallis JA gave the following hypothetical example:
‘
The
right of property owners is not absolute. One can imagine cases where
it would not be just and equitable to grant an eviction
order at the
instance of a private landowner, as in the case of a small portion of
undeveloped land that the owner had allowed
to be occupied for many
years by former employees, who were now aged, in circumstances where
the owner was not inconvenienced by
their presence. But that
situation has nothing to do with the availability of alternative land
or accommodation
’
[32]
The letter sent to the respondents at the behest of the appellant
expressly states that the appellant is solely relying on
the advice
received from Mr Langeveldt, to the effect that once the property had
been transferred into the appellant’s name,
Mr Langeveldt and
the respondents would vacate the property. Notably, this was
the only letter addressed to the respondents.
The letter dated
the 3
rd
of December 2018, in essence, merely recorded what
had been conveyed to the appellant by Mr Langeveldt, accompanied by a
threat
of eviction.
[33]
The ‘
reasonableness
’
of the notice period to be given is not only entirely dependent on
the facts of each case, but in certain circumstances,
where the right
to housing is at issue, falls to be ‘infused with
constitutionality’ within the South African context.
[34]
I am not by any means suggesting that it will (or should) frequently
be the case that eviction orders are refused where an
unlawful
occupier has no defence in law to eviction proceedings against them.
On the contrary, I recognise that in most cases
the court’s
focus will predominantly be on the section 4(8) enquiry, there being
no real dispute that, for example, a tenant
who holds over, must be
evicted.
[35]
I also do not suggest that the rights of the parties
inter se
and the law underlying those rights is irrelevant to the enquiry
mandated by section 4(7). Rather, the test might be considered
by asking why fairness and equity between the parties justify the
ordinary legal consequences being departed from in any given
case.
Why, for instance, does a particular case demand that a
property owner’s right of ownership give way before more
general principles of justice and equity? This is the enquiry
that the Constitutional Court has said must be embarked upon.
[36]
As far as the reasonable period of the notice is concerned, it was
held on appeal in
Tayor
[24]
,
that the court a quo erred in not taking into account and giving
sufficient weight to the time period that the respondents had
occupied the property since being given notice to vacate. In
the circumstances of this matter before us, the first respondent
has
been in occupation since January 2019, despite the notice to vacate.
[37]
Another aspect that deserves consideration are the Regulations under
the
Disaster Management Act. Regulation
53(1) provides that a
person may not be evicted from his or her land or home for the
duration of the national state of disaster
unless a competent court
has granted an order authorizing the eviction.
Regulation 53(2)
provides that such order of eviction ‘
may’
be
suspended or stayed until after the lapse of the termination of the
national state of disaster, unless the court is of the opinion
that
it is not just or equitable to stay the order.
Regulation 53(3)
(a) to (h) sets out the factors which must be taken into
consideration into not suspending or staying the order.
[38]
Factually,
the
respondents have now had more than 18 months to find suitable
alternative accommodation for themselves since expiry of the period
of notification to vacate the property. I am accordingly
persuaded that it would not be just and equitable to expect the
appellant, under these circumstances, to continue to provide
respondents, at his own cost, with free accommodation for any further
extended period of time.
[39]
Finally, I foreshadow and accept that I may attract some criticism
for raising the issue of the ‘
precarium’
in favour
of the respondents due to the fact that this was not specifically
raised by them on the papers or during their evidence
in the court a
quo.
[40]
The position on this score has recently been eloquently formulated by
Schippers JA, in the
Gun
Owners
[25]
case, as follows:
‘……
in
our adversarial system of litigation, a court is required to
determine a dispute as set out in the affidavits (or oral evidence)
of the parties to the litigation. It is a core principle of
this system that the judge remains neutral and aloof to the fray.
This court, has on more than one occasion emphasised that the
adjudication of a case is confined to the issues before court’
[41]
This is undoubtedly the correct legal position. I take the view
that this case is somewhat different, not solely because
the
respondents are unrepresented, but also because in matters involving
evictions, the powers in
sections 4(7)
and
4
(8) of PIE contain a
legislative recognition that what the courts will be expected to deal
with is so broad and varied that it was
not possible to try and
legislate for every conceivable situation. The responsibility
has been given to the courts to decide
the unique cases, not on
principles of the law of property, but on principles of fairness and
equity.
[42]
In the result, I am of the view that the following order should be
granted, namely:
1.
That
the appeal is upheld;
2. That the first
respondent and all those occupying through him are hereby ordered to
vacate the property
by no later than the 31st day of October
2020
, failing which the sheriff of the court is hereby duly
authorized to evict them from the immovable property known as Erf
[…],
Darling , situated at, […] M Street, Darling,
Western Cape;
3. That there shall
be no order as to costs.
Slingers
J
:
[43]
I
have had the advantage of reading the judgment of my colleague Wille
J. Although I agree with the conclusion reached therein
and
with the order he proposes, I am not in agreement with the reasoning
which resulted therein and have therefore prepared a separate
judgment.
[44]
This
is an appeal against the dismissal of an eviction application brought
in terms of The Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act (‘PIE’) by the Magistrate’s
Court for the district of Malmesbury. In dismissing
the
application the court
a
quo
found
that ‘
...the
first respondent and those who hold title under him together with
those who occupy under them cannot be seen as unlawful
occupiers in
the property and therefore remain lawful.’
In
this appeal, it has to be determined whether or not this finding was
correct.
[26]
[45]
The
first and second respondents, who were unrepresented, opposed the
eviction application but filed no papers in support of this
opposition. Consequently, the magistrate allowed them to
present oral evidence to substantiate their opposition to the
eviction
application. The first respondent, Chadley Mark Makiet
(‘Makiet’) and his grandmother, Marilyn Ingrid Langeveldt
(‘Mrs Langeveldt’), testified on behalf of the first and
second respondents (‘the respondents’) while Lereve
Langeveldt (‘Lereve’) testified on behalf of the
appellant. Sylvester Arendse, who was employed as a manager
with the third respondent, was called to testify by the court.
Background
[46]
The
biological mother of Makiet, Ms Simonita Cleophas (‘Cleophas’),
applied for a house in terms of the RDP housing
scheme.
Unfortunately, Cleophas passed away before she could be allocated a
house in terms of the RDP housing scheme.
However, as the
result of Mrs Langeveldt’s intervention, an RDP house situated
at Erf […], Darling, which is more
commonly known as […]
M Street, Darling, Western Cape (‘the property’), was
allocated to Lereve. The property
was allocated to Lereve to
enable him to look after Makiet and the latter’s younger
sister. Makiet at that time was eight
years old, turning nine, while
his sister was four or five years old. Mrs Langeveldt was
disqualified from receiving the
property as she had previously been
allocated a house in terms of the RDP housing scheme, which she later
sold.
[47]
After
the property was allocated to Lereve, Makiet together with his
younger sister and his grandparents (Mr and Mrs Langeveldt)
moved
onto the property with him. At some stage Makiet’s
grandparents and his younger sister vacated the property and
moved to
Caledon where they stayed with Mrs Langeveldt’s aunt. It
is common cause that Makiet’s younger sister
attended school in
Caledon.
[48]
The
respondents fervently believed that the property belonged to Cleophas
and not to Lereve because she had originally applied for
the property
that was allocated to him. Further, the respondents were of the
view that as the property belonged to Cleophas,
its ownership should
pass to Makiet and his younger sister and that the property did not
belong to Lereve. Therefore, he
was not legally entitled to
sell it. This was the basis of the respondents’
opposition to the eviction application.
[49]
In
June 2018 Lereve sold the property to the appellant, and it was
transferred to him on 15 October 2018. Thereafter, during
April
2019 Makiet’s grandparents and younger sister returned to the
property to assist him in retaining it.
[27]
[50]
In
his founding affidavit in the eviction application, the appellant
stated that during November 2018 he called at the property
and told
Makiet that he would need to vacate. The latter refused, saying that
the property belonged to his late mother (Cleophas).
On 3 December
2018 the appellant caused his legal representatives to notify Makiet
and all those occupying through him that their
right to occupy the
property had been terminated and that they were afforded until 31
December 2018 to vacate. As the respondents
failed to vacate
the property, eviction proceedings were instituted on 28 February
2019, with judgment in the court
a
quo
being
delivered on 15 November 2019.
The
merits
[51]
It
is undisputed that Makiet’s younger sister and grandparents
were not residing on the property when it was sold and transferred
to
the appellant. Furthermore, by that time Makiet was 19 years
old and no longer a minor.
[52]
PIE
defines an unlawful occupier as ‘
a
person who occupies land without the express or tacit consent of the
owner or person in charge, or without any right in law to
occupy such
land, excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act, 1997
, and excluding a person whose
informal right to land, but for the provision of this Act, would be
protected by the provisions of
the
Interim Protection of Informal
Land Rights Act, 1996
.’
[53]
In
light of Makiet’s evidence that he had no agreement or
arrangement with the appellant authorising him to stay on the
property,
it can be accepted that neither he nor those occupying the
property under him had the express or tacit consent of the owner (the
appellant) to stay on the property.
[28]
[54]
At
most the respondents could have occupied the property by way of a
precarium,
which
would have regulated their right to occupy the property with Lereve.
This is the view my colleague take in his judgment.
However, I
do not think that this is necessarily the correct characterisation of
the basis on which they occupied the property
prior to its transfer
to the appellant.
The
evidence presented in the court
a
quo
is
not consistent with the respondents having occupied the property by
way of a
precarium.
A
precarium
is
a concession granted upon a request. The right to occupy the
property did not result from a request directed by the respondents
to
Lereve. When Makiet and his sister began occupying the property with
Lereve, they were children. They were in no position to
conclude
contracts. They were more in the nature of dependent members of
Lereve’s household. Further, the respondents never
occupied the
property on an understanding that they were granted such a right by
Lereve. They occupied the property in the
mistaken belief that
Makiet was the owner thereof, and that such occupation was not
dependent on the grace and good nature of Lereve
[55]
However,
and assuming for the moment the existence of a
precarium
,
the
precarium
would have obliged Lereve, and not the appellant, to give the
respondents reasonable notice of the termination of their right to
occupy the property. It could not and would not regulate the
respondents’ right to occupy the property insofar as the
appellant was concerned. The rule
huur
gaat voor koop
is
confined to leases. For a
precarium
to
bind the appellant as a successor in title, there would have to have
been a tacit re-grant of the
precarium
,
with both the (new) grantor (the appellant) and grantee (the
respondents) having knowledge thereof
[29]
.
This is not the position in the present matter as it is undisputed
that the appellant had no knowledge of the first respondent’s
pre-existing arrangement and/or entitlement to occupy the property
and that at no stage after taking transfer did he grant Makiet
or
anyone else the right to occupy the property. It follows that the
appellant was under no contractual duty to give the respondents
reasonable notice to vacate, though the circumstances under which
they had previously occupied the property could no doubt properly
be
taken into account in determining the date by which they should
vacate for purposes of PIE.
[56]
As
the respondents did not have the appellant’s/owner’s
express or tacit consent to occupy the property and it was not
their
case that they were occupiers in terms of the
Extension of Security
of Tenure Act or
that they fell under the protection of the
Interim
Protection of Informal Land Rights Act, 1996
, it follows that they
were unlawful occupiers as defined in PIE.
[57]
Therefore,
the magistrate erred in her finding that the first respondent and
those holding title under him were not unlawful occupiers.
In my
view, they became unlawful occupiers for purposes of PIE as from the
date on which the appellant took transfer, 15 October
2018, because
as from that date they ceased to occupy the property with the consent
of the owner and person in charge.
[58]
The
respondents were given informal notice to vacate during November 2018
and formal notice to vacate the property on 3 December
2018, with the
eviction proceedings being instituted on 28 February 2019.
Consequently,
section 4(6)
of PIE is applicable and an order for
eviction may be granted if it is just and equitable to do so.
In determining whether
or not the grant of an eviction order is just
and equitable, all the relevant circumstances should be considered.
[59]
After
considering
inter
alia
the following factors:
[59.1]
Makiet’s younger sister and grandparents vacated the property
some time before the property was transferred to the
appellant and
returned thereto simply to assist Makiet in frustrating the
appellant’s use and enjoyment of the property;
[59.2]
the appellant paid a purchase price of R80 000 for the property
when the deed of sale was concluded on 8 June 2018;
[59.3]
Makiet was no longer a minor when the eviction proceedings were
instituted; and
[59.4]
the appellant had no knowledge of the arrangements pertaining to
Lereve looking after Makiet and his younger sister.
I
am of the view that it would be just and equitable to grant an
eviction order.
[60]
In
accordance with the provisions of
section 4(8)(a)
of PIE, a just and
equitable date on which the respondents must vacate the property has
to be determined. It is evident from
the respondents’
version that they were aware of the appellant’s title to the
property by October/November 2018.
This conclusion is
corroborated by the undisputed fact that Makiet’s grandparents
and younger sister returned to the property
to assist him in
retaining it.
[61]
Furthermore,
Makiet’s grandparents and younger sister had alternative
accommodation for approximately a year before they returned
to the
property.
[62]
I
am also cognisant of the fact that the appellant has been deprived of
the use and enjoyment of his property for a period approaching
two
years, despite the fact that he has remained responsible for paying
the rates and taxes on the property. To the extent that
the opening
paragraph of my colleague’s judgment implies that this case
involves a mismatch between a well-resourced property
owner and
indigent occupiers, I do not believe that the evidence supports such
a view. The appellant seems to be from the same
relatively modest
economic circumstances as the respondents. His patience must have
been sorely tested by the long legal road he
has had to travel. He
has placed his faith in the legal system; he has not tried to take
the law into his own hands. His counsel
informed us that she and her
instructing attorneys have for all practical purposes been acting for
him
pro
bono
.
She recognised that there was little purpose in asking for a costs
order in favour of the respondents. Although the magistrate
investigated the circumstances of the case with commendable
thoroughness, the end result of her labours was, I fear, unjust, and
it remains for us to correct the injustice.
[63]
Having
regard to all the circumstances, including
regulation 53
promulgated
under the
Disaster Management Act, I
am of the view that it would be
just and equitable for the respondents to vacate the property by no
later than 31 October 2020.
Rogers
J:
[64]
For
the reasons stated by Slingers J, I concur in the order proposed by
Wille J in para 42 of his judgment. An order is thus made
in those
terms.
_____________________
Rogers J
_____________________
Wille J
____________________
Slingers J
[1]
The
‘order’
[2]
Both
factually and legally
[3]
Also
known
as 7 ‘
Madeliefie
’
Street, Darling
[4]
The
respondents
[5]
His
uncle who sold the property to the appellant - Mr Langeveldt
[6]
Also,
with is young sister
[7]
These
houses are ‘Government Subsidy Houses’
[8]
At
the very least his young niece
[9]
The
‘RD’ home which they
subsequently
sold
[10]
This
was
not
advanced by the respondents. This issue emerged from the evidence
[11]
Together
with his sister
[12]
Felix
en ‘n ander v Nortier N.O. en andere
[1996]
3 All SA 143 (SE)
[13]
Act
68 of 1981
[14]
Brink
v Stadler
1963 (2) SA 427 (C)
[15]
2014
(6) SA 286
(KZP)
[16]
At
para [56]
[17]
[2014]
3 All SA 160 (SCA)
[18]
City
of Cape Town v Abelsohn`s Estate
1947(3)
All SA 429(C) at page 437
[19]
Supra
at page 438
[20]
Dyayanundh
v Narain
[1983] 1 All SA 68
(N) at p 73 and Phillips v Grobler 2020
(1) All SA 253 (WCC))
[21]
A
similar power is contained in section 4(6), but section 4(7) is
germane to this appeal because the appellant has resided at
the
subject property for more than six months.
[22]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012 (6) SA
294
(SCA) at para [11]
[23]
At
307I-J.
[24]
Taylor
v Hogg & Others
[2018]
ZAECGHC 64 (10 August 2018)
[25]
National
Commissioner of Police and Another v Gun Owners of South Africa
[2020]
ZASCA 88
(23 July 2020)
[26]
Paragraph
2 of the Notice of Appeal, record: 100
[27]
Record:
pg 64-ln12- pg 65, ln5
[28]
Record:
pg 55, ln 20- pg 58, ln 25
[29]
City
of Cape Town v Abelsohn’s Estate
1947
(3) All SA 429
(C) at 439