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[2021] ZAWCHC 7
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Shevel v Alson Development Sea Point (Pty) Ltd and Another (A77/2020) [2021] ZAWCHC 7; [2021] 2 All SA 260 (WCC) (27 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE NO:
A77/2020
In
the matter between:
DANIEL
SHEVEL
Appellant
And
ALSON
DEVELOPMENT SEA POINT (PTY) LTD
First Respondent
THE
CITY OF CAPE
TOWN
Second Respondent
Bench:
P.A.L. Gamble & B.P. Mantame,JJ.
Heard:
27
November, 4 and 11 December 2020, and 22 January 2021.
Delivered:
27 January 2021.
This judgment
was handed down electronically by circulation to the parties'
representatives via email and release to SAFLII. The
date and time
for hand-down is deemed to be 10h00 on 27 January 2021.
JUDGMENT
GAMBLE,
J:
INTRODUCTION
1.
This is an
appeal against an order by the Magistrate, Cape Town issued on 25
February 2020 evicting the appellant, Mr. Daniel Elyan
Shevel, from
Flat 701, The Atlantic, 1 Rocklands Road, Three Anchor Bay, Cape Town
with effect from 31 March 2020.
2.
The appellant
took occupation of the flat on 1 February 2013 pursuant to a written
lease agreement concluded with the first respondent
on 13 January
2013. Thereafter, the appellant occupied the flat in terms of the
lease with the rental (initially in the sum of
R10 850,00)
increasing annually in terms of an agreed escalation clause. By 31
January 2019 the rental payable to the first
respondent stood at
R17 450,00 per month. The appellant failed to pay the full
rental for that month and fell into arrears
in the sum of R3655,57.
3.
On 14 January
2019 the first respondent informed the appellant in writing that the
rental for the period 1 February 2019 to 31 January
2020 would
escalate to the amount of R18 150,00 per month. The appellant
accepted the escalation as aforesaid and continued to
occupy the flat
in terms of the lease. However, the appellant failed to pay the rent
for the months of February, March and April
2019 and accordingly,
after due notice had been given the first respondent cancelled the
agreement on 30 April 2019. The outstanding
rental then due to the
first respondent was R 72 600, 00.
EVICTION APPLICATION IN THE
COURT
A QUO
4.
The
appellant failed to vacate the premises as he was obliged to do in
terms of the lease and on 12 September 2019 the first respondent
made
application under s4(2) of PIE
[1]
to the Magistrate, Cape Town for an order declaring the occupation of
the flat to be unlawful and consequently seeking the eviction
of the
appellant from the premises within two weeks of service of the order
on him. The matter came before the Magistrate on 11
November 2019 and
the appellant, responding to the s4(2) notice, appeared in person.
The appellant opposed the matter, which was
then postponed to 30
January 2020 with a timetable set for the filing of further papers.
5.
The appellant
initially represented himself because, he claimed, he could not
afford the cost of an attorney. The appellant filed
a voluminous
answering affidavit (335 pages including annexures) and after the
first respondent had filed a replying affidavit
the matter came
before the Magistrate, Cape Town again on 30 January 2020. By
that stage, the appellant had availed himself
of the services of a
certain Ms. Rene Carstens (a Principal Legal Practitioner in civil
matters with Legal Aid South Africa) who
appeared on his behalf on
the day. Ms. Carstens sought a postponement of the application in
order to prepare heads of argument
and the matter was duly postponed
to 24 February 2020.
6.
On that day,
Ms. Carstens addressed the court in relation to the merits of the
application and conceded that the appellant had not
made out a case
to resist eviction. She was alive to the issues which the appellant
now claims should have been considered by the
court
a
quo
and
she informed the Magistrate that in her view these did not constitute
a basis for the court not granting a just and equitable
order under
PIE. Ms. Carstens suggested to the court
a
quo
that a
period of three months to vacate the premises was reasonable in the
circumstances.
7.
While she was
still busy with her address, Ms. Carstens informed the court that her
mandate had been summarily terminated. The appellant
confirmed to the
court that he no longer wished to be represented by Ms. Carstens and
that he would continue to represent himself
in person,
notwithstanding the fact that the Magistrate afforded the appellant
the opportunity to consult another attorney from
Legal Aid.
8.
The Magistrate
then suggested to the appellant that he should enter the witness box
and address the court under oath. In my view,
this was a sensible
approach in the circumstances given that the appellant was likely to
traverse the evidence during the course
of his address. I pause to
mention that that is exactly what happened in the appellant’s
address to this court on appeal.
9.
The appellant
was given a full opportunity to address the court and to place his
version of events before it. In the result, all
the essential
elements of an order of eviction were admitted by the appellant, who
claimed that he would be left homeless if evicted.
The circumstances
which the appellant claimed would give rise to that consequence were
dealt with in detail before this court and
I shall summarize them
below.
10.
I
should pause to mention, at this stage, that the consideration by the
court
a
quo
of
the possibility of homelessness arising from an eviction was not a
factor that was required under PIE: the appellant had been
in
unlawful occupation of the premises for less than six months when the
application for eviction was launched and consequently
the court a
quo was then bound to observe only the provisions of s4(6) of PIE.
[2]
11.
The transcript
of proceedings indicates that the Magistrate made extensive inquiries
from the appellant as to his personal circumstances,
and in
particular what it was that had caused the appellant to fall into
arrears - this was explained in detail (albeit in a convoluted
manner) in the answering affidavit which the appellant had drawn
himself. The appellant pleaded for “some latitude”
from
the Magistrate who pointed out to the appellant that he had already
had 12 months rent-free accommodation in the respondent’s
flat.
(The outstanding rental at that stage would have been not less than
R217 800,00). In the result, the Magistrate afforded
the
appellant a month’s grace to quit the premises. The appellant
did not do so but noted an appeal to this court as he was
entitled to
do under the Magistrates’ Court Act.
PROCEEDINGS BEFORE THIS COURT
12.
The
prosecution of the appeal before this court coincided with the
various early stages of lockdown commanded by the Government
in
response to the Covid-19 pandemic. When it appeared to the first
respondent that the appellant had been tardy in setting the
appeal
down for hearing, it took steps itself to do so. In the result, the
Registrar sent out a notice of set down to the appellant
by
registered post. The appellant claimed not to have received this
notice, an allegation that this Court accepts given the poor
state of
the postal service generally and under the lockdown in particular.
13.
The appellant
failed to comply with the provisions of Rules 50(7)(c) and (d) and
50(9) of the Uniform Rules by not filing a complete
record of the
proceedings of the court
a
quo
,
failing to furnish the first respondent with two certified copies
thereof and not filing his heads of argument timeously. The
first
respondent’s attorneys were put to the task of procuring copies
of the complete record and in the process Mr. Shevel’s
attention was drawn to the fact that the appeal had been set down for
hearing on 27 November 2020 and that his heads of argument
were
outstanding.
14.
When the first
respondent’s attorneys drew the date of set down to the
appellant’s attention, he scurried around to
prepare and file
his heads of argument that were then out of time. The appellant also
immediately launched an application in terms
of Rule 30 to set aside
the notice of set down as an irregular step, claiming that he was
entitled to proper notice of the date
so as to have sufficient time
to prepare for the hearing. More reams of paper flowed and when
the matter came before this
court on Friday, 27 November 2020, the
appellant claimed that he had not had the requisite notice under the
Rules and asked for
a postponement as he claimed he required the time
he was entitled to in order to prepare his case properly. The matter
was thus
postponed for a week to this end - on the resumed date the
appellant would have had the requisite period of notice under the
Rules.
15.
The matter did
not proceed on Friday 4 December 2020 because the senior member of
this Bench was indisposed. The matter was rolled
over until the
following Friday pending the return to duty of the senior judge. This
did not occur due to ongoing illness and the
matter was accordingly
postponed to the first possible date after the summer recess.
16.
On Friday, 22
January 2020, the matter proceeded before us with the appellant once
again appearing in person and the first respondent
represented
through counsel, Adv. C Rogers, who had also appeared in the court
a
quo
. The
hearing was conducted virtually, with the appellant utilizing the
video link provided to him by the registrar to this Bench’s
junior Judge. The appellant was afforded adequate opportunity to
address the court and, as we observed, he coped admirably in the
unfamiliar surroundings. His adaptation to the novelty of virtual
proceedings was commendable.
FURTHER INTERLOCUTORY
APPLICATIONS
17.
After the
postponement of the matter on 11 December 2020, the appellant noted
three further applications. The first was an application
to adduce
further evidence on appeal while the second consisted of a batch of
Third Party Notices designed to bring before the
court a number of
persons that the appellant sought to hold liable in delict for his
apparent inability to pay his rent under the
lease. Thirdly, the
appellant made application to include in evidence before the court on
appeal, a without prejudice offer made
to him by the first respondent
after the postponement of the matter on 11 December 2020.
18.
The
application to adduce further evidence on appeal is an abuse of
process as all the relevant evidence in support of the appellant’s
case had already been placed before the court
a
quo.
It
thus falls to be dismissed with costs.
19.
The persons
upon whom the appellant wished to serve Third Party Notices included
his father, the JSE Share Trust (a family trust
of which the
appellant, his father and his father’s accountant, Mr. Leonard
de Vos, are trustees), Mr. de Vos personally
(and the corporate
entities through which he conducts his accountancy business), the
Minister of Justice and the Master of the
High Court.
20.
At the
commencement of the appeal hearing on 22 January 2021, the court
dismissed the applications to serve the Third Party Notices
on the
basis that, firstly, such a step is only permissible (in terms of
Rule 28A of the Magistrates Court Rules and Rule 13 of
the Uniform
Rules) in action proceedings. Secondly, the court observed that the
issuing of such notices on appeal was impermissible.
21.
Further, the
application to admit a without prejudice offer of settlement by the
first respondent (which was opposed by the first
respondent), was
also dismissed out of hand after Ms. Rogers had assured the Court
that in her view the document was a genuine
attempt to resolve the
dispute between the parties. I should point out that when the matter
was postponed on 27 November 2020,
the court had urged the parties to
attempt to settle the matter in the interests of coming to an
amicable solution.
22.
For the sake
of convenience, I shall refer briefly to certain passages in the
Third Party Notice, which the appellant sought to
issue against his
father and the family trust because they demonstrate the core of the
appellant’s case on appeal.
“
The
appellant claims that you are delictually liable for this eviction,
which you have caused through your criminal actions of fraud
and
forgery in the JSE Share Trust, Dr. EJ Shevel Inc…. as well as
other trusts and legal entities currently under investigation
by the
Director of Public Prosecutions of Gauteng South. You have defrauded
and stolen the appellant and his son, who are the tenants
of the
first respondent, into a state of financial destitution. You continue
to illegally retain possession of the stolen assets
and income that
was supposed to be used to pay rent for the appellant and his son.
You have committed these crimes in
your personal capacity, and/or in the capacity as a trustee of the
JSE Share Trust and/or in
your capacity as director/trustee of the
other legal entities listed above or mentioned in the attached
annexure. You are therefore
liable for the legal fees of the first
respondent because you have caused this eviction with your criminal
and/or intellectual
actions. You and/or legal entities behind which
you hide your criminal activities and stolen gains, are also liable
directly for
rentals to the landlord and/or for damages to the
appellant from which rentals to the landlord are to be paid, on the
grounds and
in the amounts set forth in the annexure hereto…..
One beneficiary of the JSE Share
Trust, the appellant, stands to be left immediately homeless and at
risk of violence, murder or
intimidation in his capacity as a witness
to your multiple crimes that constitute offences in terms of the
Prevention of Organized
Crime Act, The Prevention of Corrupt Economic
Activities Act, and the Criminal Procedures (sic) Act. These are laid
out in CAS
1140/12/2018, 1141/12/2018 and 857/1/2019 of Hillbrow, and
other dockets. The relevant facts from these dockets are contained in
the attached annexure, and linked to the applicable schedule in the
Witness Protection Act.”
THE ARGUMENT ADVANCED ON APPEAL
23.
The
appellant’s argument on appeal focused on three issues.
Firstly, he claimed that he had not had a fair trial in the court
a
quo.
Secondly,
he argued that the Magistrate had erred in relation to the
appellant’s earning capacity. Thirdly, the appellant
argued
that if this Court confirmed the order of the court
a
quo,
he
would be rendered homeless. I shall deal with the latter point in
more detail below because it impacts on the new date of eviction
that
must be fixed in the event that this Court is minded to uphold the
appeal. Linked to that issue is an aspect which the appellant
did not
traverse on appeal but which this Court is obliged to consider –
the granting of an eviction order under the Covid-19
restrictions
imposed by the State from time to time in regulations under the
Disaster Management Act.
24.
Turning to the
first point, the appellant complained that Ms. Carstens failed to
prepare adequately for the hearing and, further,
did not adhere to
his instructions to her. Having considered the record of proceedings
in the court
a
quo
, and
in particular the detail traversed in her submissions to the court, I
am of the view that the appellant’s complaint
in this regard is
unfounded. Ms. Carstens addressed the court fully and made the
necessary concessions which arose from the answering
affidavit
prepared by the appellant, as also the general exigencies of the case
put up by him.
25.
Moreover, when
the appellant took over his defence in person, he placed before the
Magistrate all the relevant (and I stress
relevant
),
considerations which were required to be taken into account for a
just and equitable order under PIE. I also take into account
the fact
that the Magistrate offered the appellant the opportunity to seek
alternative legal advice from the offices of Legal Aid,
South Africa.
In the circumstances, I am unable to find that the appellant did not
have a fair trial in the court
a
quo.
26.
The
next issue raised related to the appellant’s earning capacity.
As already indicated, the Magistrate specifically questioned
the
appellant regarding the circumstances which led to him falling into
arrears with his rental. This was pursuant to a submission
by Ms.
Carstens that the appellant was, at that stage, “without any
kind of income and any sort of support from family”.
Arising
from the answering affidavit, mention had also been made by Ms.
Carstens of an amount of AUD3000
[3]
,
which had been made available to the appellant by a friend. There was
some confusion as to whether the amount was made available
to the
appellant in Australia or whether it was a gift (or loan) from an
Australian friend.
27.
The issues of
both the appellant’s earning capacity and the advance of the
sum of AUD3000 were clarified through enquiry by
the Magistrate, as
the following passage from the record reflects.
“
COURT:
And the funds that
you, your assistance that you obtained from friends - what happened
to that, to the money that you received from
your friends?
MR
SHEVEL:
I
borrow from friends on a monthly basis whatever I can to get by.
COURT:
What do you borrow?
How much do you get?
MR
SHEVEL:
It changes from month to month.
What ever I can…
COURT:
Which is how much - average? Yes sir?
MR
SHEVEL:
I would say about R 15,000 - R
16,000 a month.
COURT:
So you have been borrowing this amount of money since when?
MR
SHEVEL
: Well it goes to pay the
maintenance for my son and now for his school fees that I have to
pay. I’ve got to put him first.
The applicant’s going to
get paid. I have to put my child first. I can’t you know,
please can I [inaudible].
COURT
:
And then you flew to Australia.
MR
SHEVEL:
No,
a friend flew me to London because the Hawks was (sic) threatening to
assassinate me - it has been recorded - threatened to
assassinate me.
COURT:
What is this, I see
in your Affidavit, it says the…[inaudible] of ‘72, also
for the first time in September I finally
had not money whatsoever to
get through the month for food, put food on the table for my son,
very much less did I have the means
to leave the country. A friend
from Australia purchased a ticket for me and sent Aus$3,000…
MR
SHEVEL:
They
sent it to London.
COURT:
What did you do with
that money?
MR
SHEVEL:
With
what money?
COURT:
This money - the Aus$
3,000?
MR
SHEVEL:
They
sent me out of the country because the Hawks threatened to
assassinate me and I had to open charges against the Hawks.
COURT:
No, I mean
I understand that…
MR
SHEVEL:
That
is the first thing. So they bought tickets with it and the other
thing I did was pay maintenance for my son.
COURT:
So your friend
purchased you the ticket.
MR
SHEVEL:
Yes.
COURT:
And then you got Aus$
3,000…
MR
SHEVEL:
No,
the money was used to buy a ticket to get me out of the country.
COURT:
But you say here on
page 111 a friend from Australia purchased a ticket for me, and…
MR
SHEVEL:
He
gave me…
COURT:
…
and sent me
Aus$ 3,000.
MR
SHEVEL:
Sorry
about the wording. He gave me 2,000 dollars, Aus$ 3,000 – that
Aus$ 3,000 was used to buy a ticket and to get me through
the month.
COURT:
So you said you were
threatened and then you decided to leave.
MR
SHEVEL:
I
am being threatened. The threat to me is increasing all the time.”
28.
The Magistrate
delivered a detailed
ex
tempore
judgment
the following day (25 February 2020) wherein he observed twice that –
·
“
The
respondent then has also testified that he received an income of
approximately or +- R 15,000 a month which according to the
respondent, he utilizes for certain responsibilities, financial
responsibilities….
·
“
The
respondent is earning R 15,000 per month - this Court is convinced
that with that money he is able to find alternative accommodation…”
29.
On appeal
before us, the appellant complained that the Magistrate had
misdirected himself insofar as he found that the appellant
had an
income of R15,000,00 per month and that he would be in a position to
secure alternative accommodation should he be evicted.
It is correct,
as the appellant argued, that the Magistrate erred in finding that
the appellant “earned” R 15,000 per
month. The passages
in the evidence to which I referred earlier do not sustain that
finding as such. However, I do not think that
the error is of such
magnitude that it can be termed a misdirection as such.
30.
What the
evidence does demonstrate conclusively is that the appellant had
relied on the alms and hand-outs of friends and that,
by the
appellant’s own confirmation, the average thereof was around
R15 000,00 per month. On the strength of that admission,
I am
satisfied that the Magistrate was correct in finding that there was
sufficient money available to the appellant every month
to enable him
to find alternative accommodation and the error in description of the
source of such funds as “earnings”
rather than
“hand-outs”, is neither here nor there.
31.
Lastly, on the
issue of the appellant being rendered homeless, and not withstanding
that this was not a criterion mandated for consideration
under PIE, I
am in agreement with the view expressed by the Magistrate that it is
probable that the appellant is likely to be able
to continue to rely
on the support of the friends who looked after him in the past.
32.
Given that it
was common cause that the appellant had defaulted on his rent and
that the lease had been lawfully cancelled as a
consequence thereof,
the first respondent was thus entitled to approach the court under
s4(2) of PIE for an order that was just
and equitable on the basis
that the appellant was an unlawful occupier of the property in
question. Of the specific criteria which
the legislature stipulated
for consideration by a court under s4(6) (the interests of the
elderly, children, disability and households
headed by women), it was
only the issue of the appellant’s contact to his minor son that
fell for specific consideration
by the court
a
quo.
33.
It was not in
issue in the court
a
quo
that
the appellant (who is aged 47) and his divorced wife enjoy shared
residency and contact to their 12-year-old son on the basis
that he
stays with each parent every alternate week. Nor was it in dispute
that, if the circumstances so demanded, the son could
live with his
mother permanently and that his father’s contact arrangements
would have to be revised accordingly.
34.
The court
a
quo
correctly
observed that the appellant had, at that stage, already enjoyed a
year’s free accommodation at the expense of the
first
respondent in a smart, secure beachfront apartment, which the
appellant himself accepted was located in a prime position
with
expansive views of the ocean and mountain. Further, the Magistrate
carefully sought to balance the interests of both the unlawful
occupier and the erstwhile landlord and gave consideration to the
fact that the appellant had made no attempt to find alternate
accommodation believing that he could simply stay on where it suited
him, notwithstanding the absence of a lease agreement.
35.
In the
circumstance, I conclude that the Magistrate properly exercised his
discretion under s4(6) of PIE in evicting the appellant
and giving
him just more than a month to quit. There is thus no reason to
interfere with the order of eviction or the terms thereof.
FURTHER FACTORS FOR
CONSIDERATION IN FIXING A NEW DATE FOR EVICTION
36.
Given that the
date which the Magistrate had fixed for quitting the flat has come
and gone, this Court must consider a fresh date
by which the
appellant may be evicted. In considering that date the Court will be
guided by what is just and equitable in the circumstances.
In that
regard there are in my considered opinion two further considerations
to be taken into account.
37.
The first
factor for consideration is the appellant’s personal safety. As
foreshadowed in the extract from the Third Party
Notice recited
earlier, the appellant claims to be in fear of an imminent threat on
his life. The almost paranoid reaction of the
appellant is evidently
sourced in a family feud which began in about 2015. The appellant
(who holds a Bachelor’s Degree in
Business Science and a
Master’s Degree in Business Administration) calls himself an
entrepreneur. He ran a business in Johannesburg
called “The
Migraine Research Institute”, which was associated with a
business run by his father, a medical doctor,
known as “The
Headache Clinic”. It appears that the funding/ shareholding for
these businesses vested in the JSE Share
Trust referred to earlier.
38.
The appellant
appears to have incurred the wrath of his father around 2015 when he
made allegations that the latter was conducting
illegal medical
experiments on his patients. I conclude that this led to a breakdown
of the family relationship with mutual recriminations
being made
either way. The appellant ended up reporting the matter to the police
in the Johannesburg suburb of Hillbrow and this
seems to have
attracted the attention of the Hawks. The appellant claims to have
proof of corrupt activities on the part of the
Hawks in relation to
these complaints and portrays himself as a potential target of an
assassination by one or more members of
the Hawks as he set them in
his sights as well.
39.
The appellant
regards himself as a whistleblower and someone who is worthy of
safeguarding under the State’s witness protection
scheme.
Ideally, the appellant would like to be placed under witness
protection in the very flat in which he has lived for the
past seven
years or more. It is a strange scheme which the appellant has
concocted in his mind, given that persons placed in witness
protection are usually removed from their customary places of
residence, often afforded new identities and accommodated in secret
elsewhere.
40.
The appellant
says that his apartment on the seventh floor of the block is ideally
located because of the security in the block
in general and the views
that it affords him of the streets below so as to keep an eye out for
any would-be assassin. So far, for
a period of more than five years,
the appellant has managed to evade the assassin’s proverbial
silver bullet. Indeed, he
can point to no incident where any attempt
has been made on his life or that of his son. At the moment,
everything is in his mind.
41.
When asked by
this Court for how long the risk of assassination had endured, the
appellant was decidedly evasive. Eventually he
settled on a date
around 2015. The appellant suggested that through his vigilance and
foresight he had become very adept at avoiding
any attempt on his
life. He claimed that when the Disaster Management Act was
implemented and the first Covid-19 lockdown was declared,
he was
ready for it and it had very little effect on his day-to-day life
because, he said, he had for years been living in a state
of virtual
lockdown because of his security fears.
42.
Yet, although
the threat had existed for a number of years, the appellant was
adamant that he remained in mortal danger of an imminent
attack by
what he emotively referred to as a gang of murderous thugs. He
suggested that if the court were to order him to vacate
his
stronghold, he would become even more exposed to the threat of an
imminent attack on his life.
43.
There can be
no doubt that we live in strange times in a country known for its
violence and in a city with a high murder rate. After
all, a
prominent member of the Cape Bar was gunned down in cold blood as he
dropped his son off at school (Reddam House, Atlantic)
on a spring
morning in 2018. And, this occurred but a couple of kilometers from
where the appellant resides. I suppose, therefore,
that one ought to
be cautious about dismissing the appellant’s fears out of hand.
However, the fact remains that he has emerged
unscathed for years
with no concrete evidence to bolster his fears which appear to this
Court to be more apparent than real.
44.
I cite but two
examples of the ease with which the appellant evidently moves around
the streets of Cape Town. This appeal was set
down for a virtual
hearing at 10h00 on Friday, 22 January 2021. The appellant claimed to
be experiencing difficulty in logging
on to the virtual platform from
his flat. He was offered the opportunity to travel through to the
High Court (some 5 km or so distant)
and utilize the facilities of
the registrar of the junior member of this Bench, the judge herself
working from home. The appellant
jumped in his car without more and
made his way promptly to the High Court where he was escorted through
to the registrar’s
office and, as already pointed out, where he
participated in the hearing. The appellant at no time expressed any
fear or concern
to the Court about having to adopt a last minute
change of plan.
45.
On a more
general level, when the appellant’s son resides with him during
alternate weeks, he is required to transport the
child to his private
school (Reddam House, Constantia) some 28 km from his flat. The
appellant has to undertake this return journey
twice a day, 5 days a
week, which equates to around 20 trips in a month and probably
around 200 trips in a year. And despite
having done this “school
run” for a number of years, the appellant has yet to report an
attempt on his life.
46.
That all
having been said, it can never be a consideration in the just and
equitable enquiry under s4(6) of PIE that an eviction
order should be
held in abeyance indefinitely to appease the security fears of the
erstwhile tenant. That would place an undue
burden on the lessor and
amount to an effective expropriation of its property without
compensation, which would manifestly not
be fair, just or equitable
in the circumstances.
LOCKDOWN REGULATIONS
47.
There is one
further aspect that this Court is obliged to consider when fixing a
new date for eviction. We are currently restricted
to a Level 3
Lockdown under the
Disaster Management Act, 57 of 2002
. In terms of
the latest regulations issued by the Minister of Co-Operative
Governance and Traditional Affairs on 29 December 2020
(Government
Gazette No. 44044) imposing that level of lockdown, the eviction of
persons from their places of residence is subject
to ministerial
regulation.
“
Eviction
and demolition of places of residence
37(1) A person may not be evicted
from his or her land or home or have his or her place of residence
demolished for the duration
of the national state of disaster unless
a competent court has granted an order authorising the eviction or
demolition.
(2) A competent court may suspend
or stay an order for eviction or demolition contemplated in
subregulation (1) until after the
lapse or termination of the
national state of disaster unless the court is of the opinion that it
is not just or equitable to suspend
or stay the order having regard,
in addition to any other relevant consideration, to-
(a) the need, in the public
interest for all persons to have access to a place of residence and
basic services to protect their
health and the health of others and
to avoid unnecessary movement and gathering with other persons;
(b) any restrictions on movement
or other relevant restrictions in place at the relevant time in terms
of these Regulations;
(c) the impact of the disaster on
the parties;
(d) the prejudice to any party of
a delay in executing the order and whether such prejudice outweighs
the prejudice of the persons
who will be subject to the order;
(e) whether any affected person
has been prejudiced in their ability to access legal services as a
result of the disaster;
(f) whether affected persons will
have immediate access to an alternative place of residence and basic
services;
(g) whether adequate measures are
in place to protect the health of any person in the process of a
relocation;
(h) whether any occupier is
causing harm to others or there is a threat to life; and
(i) whether the party applying for
such an order has taken reasonable steps in good faith, to make
alternative arrangements with
all affected persons, including but not
limited to payment arrangements that would preclude the need for any
relocation during
the national state of disaster.
(3)
A court hearing an application to authorise an eviction or demolition
may, where appropriate and in addition to any other report
that is
required by law, request a report from the responsible member of the
executive regarding the availability of emergency
accommodation or
quarantine or isolation facilities pursuant to these Regulations
.”
48.
These
restrictions imposed on a lessor in relation to steps that may be
taken under PIE have persisted throughout the series of
lockdowns
imposed with effect from March 2020, albeit in varying iterations. In
my considered view, and having regard to the circumstances
of this
matter, it would not be just and equitable to suspend the operation
of the order granted by the court
a
quo
until
the suspension of the current state of disaster.
49.
Firstly, while
the country has entered the so-called “second wave” of
infections, there is apparently no end in sight
to the current
pandemic and there is every reason to believe that we will be under
lockdown for many, many more months to come.
To deprive the lessor
further of rental income during that period, in circumstances where
there is little prospect of recovery
of the arrears, would not be
fair to it.
50.
Secondly, this
order was granted before the imposition of the state of disaster was
announced in March 2020, at which stage the
appellant had already
been in unlawful occupation of the flat for more than a year. He has
now been in unlawful occupation for
almost two years and is indebted
to the first respondent in an amount of not less than R435 600
(24 x R18 150), with
little prospect of it recovering any of
this amount soon, if at all.
51.
Thirdly, the
flat which the appellant occupies is, as he himself says, located in
a prime position and commands a commensurate rental.
It goes without
saying that if he is financially stretched the appellant should seek
cheaper rental accommodation, whether in the
same area or in a less
expensive neighbourhood. After all, the appellant is a single person
capable of living on his own if needs
be and his monthly financial
obligations are not as demanding as that of a family.
52.
Importantly,
the evidence demonstrates that the appellant has taken no steps to
secure cheaper alternate accommodation: a step that
any reasonable
person in his situation would have been expected to take. Rather, he
has brazenly sat back and expected the first
respondent to provide a
roof over his head in the vague and unrealistic expectation that he
might recover delictual damages one
day from the persons/entities he
regards as the cause of his alleged impecuniosity.
53.
Further, when
the limitation on evictions was first introduced (with the initial
Level 5 Lockdown) the movement of persons outside
of their places of
residence was severely impacted. The Minister would thus have taken
into account that it would have been more
difficult then for persons
to go out and seek fresh accommodation, and well-nigh impossible to
move one’s belongings, hence
the necessity to control evictions
beyond the purview of PIE. However, we have moved beyond those
initial restrictions and house-hunting
and/or moving house is now
much as it was before the initial lockdown. Indeed the appellant has
made no complaint on that score.
54.
Fifthly, I
have found that the Magistrate was correct in his assessment of the
appellant’s source of income. That situation
is not likely to
change in the short-term, and it is fair to infer that the alleged
benevolence of the appellant’s friends
will not dry up. After
all, he has been able to maintain himself and his son for the last
two years, has been able to run a car
and fund the disbursements in
this matter, which are not insignificant if one has regard to the
cost of preparing the record and
the many hundreds of pages that have
made up his case.
55.
However,
even if the benevolence were to dissipate, there is no reason to
suggest that the appellant, who has a residual earning
capacity in
light of his qualifications and work experience, could not find a
source of employment to sustain himself in straitened
circumstances.
And even if that failed, the appellant would be able to avail himself
of local accommodation at any number of facilities
such as the
Salvation Army or night shelters in and around the city.
CONCLUSION
56.
Having
considered the various criteria under the lockdown regulations, I am
satisfied that it will be just and equitable to order
the appellant
to vacate the flat within 4 weeks of this court’s order.
57.
As regards the
issue of costs, clause 20.2 of the lease provides that costs relating
to the lease are payable on the scale as between
attorney and client.
There is no reason to deviate from the scale of costs which the
parties agreed upon when they concluded their
agreement. However, the
costs of the interlocutory applications are only to be recovered on
the party and party scale as these
are ancillary to the litigation
and not the lease.
ORDER OF COURT
Accordingly, it is ordered that:
A.
The
application to lead new evidence on appeal is dismissed with costs on
the party and party scale.
B.
The appellant
is to pay the costs of opposition incurred by the first respondent in
relation to each of the Third Party Notices
issued by the appellant,
such costs to be taxed on the party and party scale.
C.
The appellant
is to pay the costs of opposition incurred by the first respondent in
relation to the application to admit the without
prejudice offer made
by the first respondent, such costs to be taxed on the party and
party scale.
D.
The appeal is
dismissed with costs on the scale as between attorney and client.
E.
The appellant
(and any persons holding under him) is directed to vacate Flat 701,
The Atlantic, 1 Rocklands Road, Three Anchor Bay,
Cape Town (“the
property”) by not later than 16h00 on Friday 26 February 2021.
F.
In the event
that the appellant and all those holding occupation under him fail to
comply with the order contained in para E above,
the Sheriff is
hereby authorized and directed to evict the appellant and all those
holding occupation under him from the property
on Monday 1 March 2021
or any day thereafter
__________________
GAMBLE, J
MANTAME,
J
I
agree.
___________________
MANTAME,
J
[1]
The Prevention of Illegal
Occupation from and Unlawful Occupation of Land Act, 19 of 1998
(“PIE”)
[2]
“
S4
(6)
If an unlawful occupier has
occupied the land in question for less than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all
the relevant circumstances, including the
rights and needs of the elderly, children, disabled persons and
households headed by
women”
[3]
The current value thereof is
in excess of ZAR35 000.