About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 58
|
|
Nelson and Another v Samuels and Others (2350/2020) [2021] ZAWCHC 58; [2021] 3 All SA 190 (WCC) (29 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 2350/2020
In
the matter between:
NAZEEM
NELSON
First Applicant
NADIA
NELSON
Second Applicant
and
BEGUM
SAMUELS
First
Respondent
SHAHIMA
SAMUELS
Second Respondent
ZAITOEN
SAMUELS
Third Respondent
NURAAN
SAMUELS
Fourth Respondent
(In
her personal capacity and as guardian of
any
minor children holding title under her)
NIZAAM
SAMUELS
Fifth Respondent
REZA
BOTHA
Sixth Respondent
RUZAIG
SAMUELS
Seventh Respondent
YASSIEN
HARIDEEN
Eighth Respondent
ALL
OTHER OCCUPANTS OCCUPYING NO. 87
SIXTH
STREET, KENSINGTON, CAPE TOWN,
UNDER
THE FIRST TO EIGHTH RESPONDENTS
Ninth Respondent
CITY
OF CAPE
TOWN
Tenth
Respondent
Bench:
P.A.L.Gamble
Heard:
17 September 2020
Delivered:
29 March 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 14h00 on Monday 29 March 2021.
JUDGMENT
GAMBLE,
J:
INTRODUCTION
1.
This case involves the continued occupation
of a family home located at 87 Sixth Street, Kensington, Cape Town
(“the property”)
by the first to ninth respondents, to
whom I shall refer collectively as “the respondents”. The
respondents are relatives
of the original owner of the property, Mr.
Yusuf Samuels, who acquired it in 1970. In July 1983 the property was
donated by Mr.
Samuels to the late Jalodien Williams (“Mr.
Williams”) and registered in the latter’s name on 15
February 1984.
During his lifetime, Mr. Williams granted some,
or all, (it is not entirely clear) of the respondents the right to
occupy
the property on condition that they bore the municipal
services, water and electricity costs associated with the property.
2.
Mr. Williams died on 8 October 2011 leaving
his wife Mariam Williams (to whom he was married in community
property) as the sole
heir in his estate: their joint will made
provision for Santamtrust Ltd to act as the executor in the deceased
estate of the first
dying and the estate of the surviving spouse. A
representative of ABSA Bank Ltd (the ultimate corporate successors to
Santamtrust),
Ms. Maria Magrietha Louw, was appointed as the executor
in the deceased estate and on 30 November 2016 she gave the
respondents
one month’s notice to vacate the property. When the
occupants failed to do so, Ms. Louw served a second notice to vacate
on 25 January 2017. Still the occupants refused to quit the property.
At the time the surviving spouse was still alive and Ms. Louw
appears
to have acted on the instructions of Ms. Mariam Williams.
3.
While this was happening, and on 17
November 2016, the property was sold out of the deceased estate by
Ms. Louw to the applicants
(“the Nelsons”) for a purchase
consideration of R690 000,00. They eventually took transfer on 3
August 2017 and
are still the owners of the property. The Nelsons
took out mortgage finance when purchasing the property and have
subsequently
been responsible for the payment of the monthly bond
instalments as well as the municipal accounts in respect of the
property.
4.
The
Nelsons do not reside in the property but are desirous of doing so as
they currently rent a house in Mitchells Plain where they
are liable
for rent, which occasions them considerable financial strain.
Evidently, certain of the respondents are the aunts of
Ms. Nelson,
whose mother is their sister. Since they acquired the,property (with
the knowledge of the respondents), the Nelsons
have permitted the
respondents to occupy the property at their expense. They now wish to
move into the property and have commenced
eviction proceedings to
obtain vacant occupation thereof. To this end, they lodged an
application under s4 of PIE
[1]
in this court on 6 February 2020 under case no. 2350/2020.
5.
Prior to the commencement of this
application, Ms. Louw had commenced eviction proceedings in the Cape
Town Magistrates Court under
PIE during February 2017. That
application was eventually set down for hearing on 26 October 2017
but was postponed indefinitely
because the respondents had launched
an application in this Court which they termed an “Application
to Vindicate [the] Property”.
The “vindication claim”
was based on acquisitive prescription and the Nelsons, who by that
stage had taken transfer
of the property, were joined in those
proceedings.
6.
Given that the respondents were not the
owners of the property their purported “vindication
application” was stillborn
and was dismissed by Andrews AJ when
she heard it on the semi-urgent roll on 5 February 2018. An
application for leave to appeal
was also dismissed by Andrews AJ on 4
May 2018. After an abortive application for leave to appeal directed
to the Full Bench of
this court in August 2018 failed, the
respondents petitioned the Supreme Court of Appeal in February 2019.
That application for
leave to appeal was dismissed in May 2019. A
threatened approach to the Constitutional Court to appeal the
dismissal of the “vindication
application” never
materialized.
7.
The PIE application in the Magistrates
Court has continued to be held in abeyance because the executor in
the deceased estate no
longer has the requisite
locus
standi,
ownership of the property
having passed to the Nelsons. Because the current application in this
Court is brought by the new owners
of the property, a plea of
lis
pendens
in relation to the Magistrates
Court proceedings will not succeed in light of the fact that those
proceedings involve a different
party as applicant.
8.
When the PIE application served before this
court on 17 September 2020, the applicants were represented by Adv.
J. Bence on instructions
of Le Roux Attorneys Inc. of Cape Town,
while the respondents were represented by Mr.P.Sharuh of Sharuh
Attorneys, Cape Town. Le
Roux Attorneys formerly represented the
executor of the deceased estate, while Mr. Sharuh has continuously
represented the respondents
in all the litigation in which they have
been involved in relation to the property. Mr. Sharuh’s
involvement in the latest
round of litigation stems from a
pro
bono
appointment (at his express
request) by the Legal Practice Council for the Western Cape. This
appointment was only confirmed shortly
before the hearing of this
matter on 17 September 2020.
THE STAY APPLICATION
OF 24 AUGUST 2020
9.
On 24 August 2020 the respondents lodged an
application in this court seeking, firstly, to stay the eviction
proceedings under case
number 2350/2020 pending the final
determination of a trial action based on a summons issued out of this
court by Sharuh Attorneys
on 20 August 2020 under case no. 11408/2020
in relation to the property. A further prayer in the stay application
sought an interdict
in the following terms –
“
3.
Interdicting the first and second Respondents, their agents and/or
assigns from taking any steps to sell, or in any way devolve,
encumber and/or alienate the immovable property known as Erf 22324
Kensington, pending the final determination of the action filed
under
case number 11408/2020 in the honourable Court.”
10.
In my view, the interdictory relief can be
disposed of without more, given that there is no allegation in the
stay application that
the Nelsons are considering, or have taken any
steps, to dispose of the property. Simply put, there is no unlawful
conduct on the
part of the Nelsons which is capable of being
interdicted at this stage.
11.
The stay application and the eviction
application were argued simultaneously on 17 September 2020,
whereafter judgment was reserved.
During the period in which judgment
was reserved various levels of lockdown under the
Disaster Management
Act, 57 of 2002
in respect of the Covid-19 pandemic were in
operation. At the conclusion of his address on behalf of the Nelsons,
Mr. Bence asked
that any order for eviction of the respondents that
the Court might grant, be held in abeyance until it was appropriate
to do so
under the prevailing Lockdown Regulations. Given that the
Government announced the introduction of Alert Level 1 with effect
from
1 March 2021, the court considers that the time has now arrived
for the final determination of this matter.
THE ACTION PROCEEDINGS
UNDER CASE NO. 11408/2020
12.
Not all of the respondents in the eviction
application are cited as plaintiffs in the action proceedings. The
four plaintiffs cited
in the action are named as “Bergman (sic)
Samuels, Shahiema Samuels, Zaitoen Samuels and Riedwaan Samuels”.
While the
first three plaintiffs are, notwithstanding the spelling
differences, intended to refer to the first to third respondents in
the
PIE application, the fourth plaintiff does not reside in the
property and no eviction order is sought against him.
13.
The defendants cited in the action
proceedings are Ms. Maria Louw N.O (similarly in her capacity as
executor in the Estate Late
Jalodien Williams), Mariam Williams, her
son Whaleed Williams, the Nelsons and the Registrar of Deeds.
14.
In the particulars of claim the relevant
parties are described as follows.
“
5.
The Plaintiffs are the children and/or heirs of the late Yusuf
Samuels…. who died on 12 October 1984 (“
Plaintiffs’
father
”) and the late Mrs.
Galiema Samuels… who died on 22 May 2005 (“
Plaintiffs’
mother
”)….
7. The Second Defendant
is Mariam Williams, an adult female pensioner, who is sued and cited
here as heiress and/or surviving spouse
of/in the Estate Late
Jalodien Williams... [of]... Mitchell’s Plain.
8. The third Defendant is
Whaleed Williams, an adult male, who is sued and cited herein heir
(sic) in the Estate Late Jalodien Williams…[of]…
Mitchell’s Plain.”
Having been described as
the fourth and fifth defendants in the action, the Nelsons are
respectively “sued and/or cited herein
insofar as [they] may
have interest (sic) as co-registered owner[s] of the property.”
15.
The action proceedings are said to be
grounded in Sharia law (“Islamic law”), as Mr Sharuh
explained to the Court, and
seek to assert proprietary claims for the
plaintiffs under Islamic law including -
(i)
The law of
hibbah
(donation);
(ii)
The law of succession in the form of
wasiyyah
(bequest);
and
(iii)
The law of
wadee’ah
(safekeeping).
The essence of the claims
is that, notwithstanding the registration of ownership of the
property in the name of the deceased and
despite the express terms of
the joint will, the property ought to have accrued to the plaintiffs
under one or more of the abovementioned
principles of Islamic law in
order that they could live permanently (and indefinitely) thereon
“without limitation to any
member of the family”
16.
The
relief ultimately sought in the particulars of claim is formulated as
follows.
[2]
“
30.1
Alleged donation by the Plaintiffs’ father to their
half-brother in respect of the property be declared
unlawful, invalid
and set aside;
30.2
The registration process of property allegedly effected on 15
February 1984 be declared unlawful, invalid,
without force or effect
and, set aside;
30.3
The property be declared devolved and/or revested to the Plaintiffs;
and/or
30.4
The property be declared devolved and/or acquired by the Plaintiffs
by way of prescriptive title in
terms of
section 6
of the
Prescription Act 68 of 1969
; and/or,
30.5
Payment of damages in the sum of Three Million Rand (R3 000 000.00)
together with interest
at 9% per annum calculated and compounded as
follows:
30.5.1
R1 500 000.00 in respect of pain and suffering and;
30.5.2
R1 500 000.00 in respect of anxiety and
Contumelia
.
30.6
The amount set out herein above are estimated amounts in respect of
general damages and is not reasonably
practicable to attach a fixed
amount in respect of each subhead and there are no actuarial
standards applied.
30.7
R60 000.00 in respect of special damages for fees paid;
30.8
Costs of the suit and;
30.9
Such further and/or alternative relief that the Court deems fit.”
17.
The particulars of claim reveal a veritable
potpourri
of
legal principles that will no doubt attract some form of legal
challenge at an early stage of the action proceedings. I thus
expressly refrain from commenting on the integrity of the claims at
this stage given that there may be an exception or special
plea filed
in response thereto.
18.
It
is trite that an applicant for a stay of other proceedings must make
out a clear case for such relief and the court considering
same will
exercise a discretion as to whether to grant the stay or not.
[3]
Fundamental to any claim for a stay based on
lis
pendens
(which
is the case here) is that the applicant for the stay must show that
the court in each case will have before it the same parties
claiming
the same relief on the same issue.
[4]
That is manifestly not the case here. Furthermore, it has been
repeatedly held that an application for a stay of proceedings based
on
lis
pendens
must not constitute an abuse of process of the court, all the more so
where it is designed as a ploy to obstruct, for instance,
a lawful
order for eviction.
[5]
19.
In this matter, the action proceedings seek
to interfere with the Nelsons’ accrued rights of ownership in
the property procured
lawfully through the purchase thereof from a
duly appointed executor of a deceased estate through a deed of sale
and the registration
of their title in the Deeds Registry. That, in
and of itself, is a difficult obstacle for the plaintiffs to
overcome.
20.
But,
there are further challenges. The plaintiffs base their claims on
certain tenets of Islamic law relating to inheritance. Our
law of
inheritance is based on either testate or intestate succession, which
is governed (in relation to the former) by, inter
alia, the Wills Act
, 7 of 1954, the
Administration of Estates Act, 66 of 1965
, and (in
relation to the latter), the
Intestate Succession Act, 81 of
1987
and the common law.
[6]
21.
This matter concerns testate succession
given that Mr Jalodien Williams left a valid will upon his demise on
8 October 2011. In
this regard, in the stay application, Ms. Mariam
Williams deposed to an affidavit in support of the Nelsons in which
she stated
that she and Mr. Jalodien Williams had been married in
community of property and annexed a copy of their joint will in which
she
was declared to be the sole heir. In the circumstances, the
validity of the will is to be determined under the Wills Act and the
winding up of Mr Jalodien Williams’ estate is governed by the
terms of the
Administration of Estates Act.
22.
In
the action proceedings the plaintiffs
seek, so it would seem upon a generous interpretation of the
peculiarly worded particulars
of claim, to undermine Mr Jalodien
Williams’ ownership in, and the right to dispose of, the
property registered in his name
by testamentary instrument. The
challenge is founded on certain tenets of Islamic law rather than the
South African law of succession,
and to the extent relevant, our law
of property. In so doing, I understand the approach to be that the
challenge is based on the
plaintiffs’ right to pursue a
religion of their choice and the legal principles which that choice
embraces.
23.
In
Doctors
for Life International,
[7]
the Constitutional Court reminded us that “under our
constitutional democracy the Constitution is the supreme law”.
While the two statutes in question here (the Wills Act and the
Administration of Estates Act) remain
in force, it is the duty of
this Court to enforce them. That duty continues until there is a
constitutional challenge to the statutes
in question, the High Court
has found that they breach one or more of the rights protected under
the Bill of Rights, the Constitutional
Court has confirmed such
unconstitutionality and Parliament has passed the necessary remedial
legislation. Until that happens,
however, there is no room for a
party to rely, for example, on Islamic law principles which are
per
se
inconsistent with the law in operation at the time. There is no room
in our constitutional dispensation for reliance on legal pluralism
per
se
.
24.
In
Fourie
[8]
the Constitutional Court was called on to pronounce upon the validity
of same-sex marriages. In so doing the court drew comparative
analogies between such marriages and those contemplated in s15(3) of
the Constitution
[9]
, which
otherwise deals generally with the entrenched rights to freedom of
religion, belief and opinion.
25.
At [108] the Court observed as follows -
“
The
special provisions of s 15(3) are anchored in a section of the
Constitution dedicated to protecting freedom of religion, belief
and
opinion. In this sense they acknowledge the right to be different in
terms of the principles governing family life. The provision
is
manifestly designed to allow Parliament to adopt legislation, if it
so wishes, recognising, say, African traditional marriages,
or
Islamic or Hindu marriages, as part of the law of the land, different
in character from, but equal in status to general
marriage
law. Furthermore, subject to the important qualification of being
consistent with the Constitution, such legislation could
allow for a
degree of legal pluralism under which particular consequences of such
marriages would be accepted as part of the law
of the land. The
section ‘does not prevent’ legislation recognising
marriages or systems of family or personal law
established by
religion or tradition. It is not peremptory or even directive, but
permissive. It certainly does not give automatic
recognition to
systems of personal or family law not accorded legal status by the
common law, customary law or statute.”
26.
By
parity of reasoning, I am of the view that it is not open to a
litigating party to rely on Islamic law principles in relation
to
property rights and succession, where there has been no
constitutional challenge to the operative statutes or the common law
in this field of the law. An example of such a challenge is to be
found in
Women’s
Legal Centre
[10]
where the court upheld a challenge to the unconstitutionality of the
Divorce Act and the
Intestate Succession Act insofar
as these
statutes failed to recognise the validity of Islamic marriages in
certain defined circumstances.
27.
However, there is no such constitutional
challenge mounted by the plaintiffs in the action proceedings. In the
circumstances, and
regardless of what other attacks or defences may
be considered by the defendants on the merits in the action
proceedings, I am
of the view that this fundamental flaw in the case
is a material consideration in exercising my discretion to refuse to
grant the
stay of proceedings. In the result, the stay application
must fail.
28.
This ruling will not affect the validity of
the action proceedings. The plaintiffs are entitled to proceed with
the action and if
they are able to persuade the court ultimately of
the integrity of their case they might be entitled to lay claim to
ownership
of the property.
Non constat
that the plaintiffs are entitled to avoid eviction from the property
at this stage on the basis of Islamic law.
THE EVICTION
APPLICATION
29.
In her affidavit dated 3 September 2020
filed in support of the Nelsons’ opposition to the stay
application, Ms Mariam Williams
explains how the various respondents
in the eviction application came to be in occupation of the property.
Ms. Williams says that
over the years her late husband took pity on
certain of the respondents, some of whom were relatives who had
fallen upon hard times
and were unable to find suitable
accommodation.
“
18.
It is important to mention that it was a condition of the applicants’
continued occupation of the property, to which they
were not entitled
but which constituted a gesture of goodwill on the part of my late
husband, that they had to pay the electricity
account, as well as the
rates and taxes, water, refuse and sewerage accounts in respect of
the property.
19.
The electricity account was never transferred onto my late husband’s
name, and it remained in the name of the late Yusuf
Samuels. By the
end of 2016, this account was in arrears in an amount of R43 166.18
and I was extremely concerned about this outstanding
account, as I
simply did not have the money to settle the account.
20.
The municipal accounts for rates and taxes, water, refuse and
sewerage was (sic), by the middle of 2017, R34 029.62 in arrears,
and
I was similarly concerned about this account.
21…
22.
Because neither myself, nor my late husband had any money, the
property constituted the only asset in his deceased estate, and
we
were unable to do anything as far as the property is concerned in
view of the fact that I was unable to settle the escalating
municipal
accounts.
23.
I accordingly approached the first and second respondents [i.e. Mr
and Ms Nelson] for assistance, and they indicated that they
were
willing to purchase the property, as the first respondent grew up in
the property and he wished to make it his family home.
24.
I went to the applicants, at the time, during late 2016, and informed
them of the fact that the property had to be sold. They
told me that
they knew that this was a logical result of my late husband having
passed away, and that they accepted the situation.
25.
At no stage during our conversation did they allege that they had any
rights to remain in occupation of the property whatsoever.
26.
To the contrary, they indicated to me that they have made
arrangements in order to obtain alternative accommodation.
27.
I accordingly deny, in the strongest terms, their allegations to the
effect that they have any rights to the property at all
and
furthermore that they demanded the return of the property from me, as
is alleged in paragraph 18 of the founding affidavit.”
30.
In
the result, the Nelsons, as owners of the property, are entitled to
invoke the
rei
vindicatio
by
alleging ownership and thereby assert possession and control of their
property. It is then open to the person(s) in possession
of the
property to allege and prove any right to retain possession
thereof.
[11]
As a
pre-requisite, the Nelsons are obliged to comply with the procedural
requirements of PIE, which they have done. Thereafter,
and because
the respondents in this application have been in unlawful occupation
for more than 6 months, the Court is obliged to
consider,
s4(7)
of
PIE, which is to the following effect.
“
4(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time 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, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.”
31.
The
subsection, read with
s4(8)
, thus contemplates a two-stage process.
Firstly, a finding that it is just and equitable to evict and then a
second enquiry in
which the court decides what conditions, if any,
are to be incorporated in its eviction order and by when the unlawful
occupiers
must quit the property. At all times the court’s
decision as to what is just and equitable must have regard to the
interests
of all parties – both the occupiers and the
landowner.
[12]
32.
In
Changing
Tides
the Supreme Court of Appeal
suggested, the following approach.
“
[11]
In terms of
s4(7)
of PIE an eviction order may only be granted if it
is just and equitable to do so, after the court has had regard to all
the relevant
circumstances, including the availability of land for
the relocation of the occupiers and the rights and needs of the
elderly,
children, disabled persons and households headed by women.
If the requirements of
s4
are satisfied and no valid defence to an
eviction has been raised the court ‘must’, in terms of
s4(8)
[13]
, grant an eviction
order. When granting such an order the court must, in terms of
s4(8)(a)
of PIE, determine a just and equitable date on which the
unlawful occupier or occupiers must vacate the premises. The court is
empowered in terms of
s4(12)
to attach reasonable conditions to an
eviction order.”
VALID DEFENCE TO THE
NELSONS’ TITLE?
33.
In the present matter, the occupiers have
made out no case in our law to resist the owners’ claim under
the
rei vindicatio.
Their initial attempt to assert a claim for ownership through
acquisitive prescription was dismissed in this court and also in
the
Supreme Court of Appeal. Further, their last minute attempt in August
2020 to assert a claim (and it is not entirely clear
whether this is
a claim for ownership or a lifelong right of occupation) through
Islamic law is fundamentally flawed and certainly
does not at this
stage confer on the occupiers any rights or title which defeat that
of the owners.
34.
It
has repeatedly been said that the effect of PIE is not to expropriate
private landowners of their land.
[14]
Rather, the courts have held that PIE delays (or suspends) the
owners’ rights to exercise control over their property until
a
determination has been made as to whether an eviction will be just an
equitable and, if so, under what circumstances.
35.
The circumstances of the present
application are such that the owners, the Nelsons, have paid for
their new home and have been precluded
from occupying same (an act
tantamount to expropriation by the respondents). Further, they have
had to endure the financial burden
of paying the bond instalment on
the Kensington property while continuing to pay for their rented
accommodation in Mitchell’s
Plain. Finally, as owners, they are
liable for the municipal rates and taxes, electricity and water
charges at the Kensington property
and have not been compensated by
the occupants for the considerable expense they have incurred in this
regard. Simply put, the
Nelsons are paying twice as much per month
for their accommodation as they would otherwise be required to.
36.
The opposition by the respondents to the
eviction application is brazen and uncompromising. They seek to
advance some form of entitlement
to the property under Islamic law
and demand cancellation of the sale to the Nelsons by the executor
without any consideration
or
quid pro
quo
being offered to the owners for the
current value of the property, nor is any compensation tendered for
the monthly service costs
associated with the Kensington property.
That approach is indeed demonstrative of an attitude tantamount to
expropriation.
37.
In my view, the claims of the respondents
herein amount to nothing more than a shameless attempt to protract
the litigation with
the Nelsons in an endeavour to ward off the
inevitable. Their defence to the eviction application (and the
lodging of the accompanying
stay application) is thus manifestly
groundless and in bad faith. In the circumstances, I conclude that it
would be just and equitable
to evict the occupiers. That being so,
this Court is obliged (under
s4(8))
to grant an order for the
eviction of the respondents herein from the Kensington property.
DATE AND TERMS OF THE
EVICTION ORDER
38.
Under s4(9) of PIE the Court is obliged
(“must”), when determining a just and equitable date for
the eviction, to “have
regard to all relevant factors,
including the period the unlawful occupier and his or her family have
resided on the land in question.”
In considering that date, I
have regard to the fact that the first respondent, Ms. Begum Samuels,
is said to have lived in the
property for about 50 years –
since she was 6 years old. Likewise, given that this is a family
home, some of the other occupiers
have been on the property for, at
least, more than 10 years with the permission of the erstwhile owner.
39.
On the other hand, upon enquiry by the
Court, Mr. Sharuh indicated that certain of the younger occupiers
were then in fixed employment,
as were the Nelsons (according to Mr.
Bence), while it appears that Ms. Begum Samuels and her sister
Ms. Shahima Samuels
are social and/or disability grant recipients.
The point is that, as a group, the family of occupiers have limited
resources with
which to procure alternative accommodation. Further,
in a report dated 17 September 2020, the tenth respondent (“the
City
of Cape Town”) reported in terms of its obligations under
s…of PIE that there was temporary emergency accommodation
then
available in an area known as “Kampies” in Philippi.
40.
It is most regrettable that what has been a
family home to many for such a long time has led to a family feud of
the kind which
has played out in these proceedings. But the Nelsons,
who bought the property on the alleged assurance from the occupiers
that
they would move on when the time came for them to do so, are
entitled to demand occupation of their property. At the same time,
it
is this Court’s duty to ensure that potentially vulnerable
members of society are properly treated under PIE.
COVID-19 REGULATIONS
41.
In addition to the requirements of PIE,
this Court must have regard to the fact that since this matter was
heard in September 2020,
the country has been in various stages of
lockdown due to the Covid-19 pandemic, some more restrictive than
others. The current
Disaster Regulations were promulgated on 28
February 2021 in Government Gazette No 11246. (“the Covid
Regs”). As has
been the case in previous regulations, provision
is made therein for evictions. Currently the Covid Regs provide as
follows in
that regard.
“
Eviction
and demolition of places of residence
73.
(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
authorizing
the eviction or demolition.
(2)
A competent court may suspend or stay an order for eviction or
demolition contemplated
in sub regulation (1) until after the lapse
the 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 exercise
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 authorize 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.”
42.
It seems to me that, in applying the Covid
Regs, a court has to consider many of the criteria applicable to an
eviction which it
has already taken into account under PIE. One must
thus be careful to avoid a duplication of relevant factors. When the
initial
Covid Regs were made in March 2020, the country was placed
under a so-called “hard lockdown” under Alert Level 5 in
which the ordinary movement of citizens was very severely restricted
in an endeavour to limit the spread of the virus. It would
thus have
made sense, at that time, to prevent people being put out of their
homes (and possibly onto the streets) in circumstances
where they
might be exposed to the Covid-19 virus, or where they might expose
others to the spread thereof if they were themselves
ill.
43.
However, since May 2020, the Alert Levels
under the Covid Regs have been incrementally relaxed from time to
time (save for a shift
back to Level 3 over the Festive Season in
2020), so much so that at present, freedom of movement is only
limited to a 4 hour curfew
commencing at midnight. The current Alert
Level 1 thus makes it possible for people looking for accommodation
to leave their homes
during the day unhindered and to essentially
make unrestricted enquiries in regard thereto. Similarly, should
persons require to
move home, they will now have little difficulty in
obtaining movers to assist them.
44.
The residual considerations of which a
court must take account under the Covid Regs seem to me then to focus
on the health of unlawful
occupiers in the context of the Covid-19
pandemic. The Court did not know whether any of the respondents are
currently infected
with the Covid-19 virus and to that end the
parties’ legal representatives were contacted by the Court’s
registrar
and asked to inform the Court thereof in the event that it
was so. The legal representatives were also requested to furnish the
Court with written proof of any positive diagnosis of the Covid-19
virus on the part of any of the litigants.
45.
It appears now that the third respondent
was contracted the virus in July 2020 and is said to be still
suffering the consequences
thereof. In addition, the third respondent
is hypertensive, asthmatic and only has one kidney. Save for her,
none of the other
parties to the PIE application has been affected by
the Covid-19 virus.
46.
In
the circumstances, and for the reasons already set out above, I am of
the view that the prejudice to the Nelsons in effectively
having to
fund the costs of accommodation of the respondents in addition to
their own living expenses outweighs the prejudice which
will be
occasioned to the respondents if they are put out of the property.
After all the latter have known for a number of years
that they will
have to move on when the Nelsons seek to move into their property
and, on Ms. Mariam Williams’ version in
the stay application
(which must carry the day in terms of the rule in
Plascon-Evans
[15]
),
they agreed to do so well-knowing that their occupation of the
premises was, at the very least, on the basis of
precarium
tenens
[16]
.
47.
I conclude therefore that, notwithstanding
the Covid Regs, it is just and equitable to order the respondents to
vacate the property.
THE DATE FOR EVICTION
48.
There are a number of factors which are
relevant to fixing a date for eviction. In the first place, the
report by the City of Cape
Town is outdated by more than 6 months.
The Court needs to be informed of the latest situation as far as
emergency housing is concerned.
Then, there is the suggestion in the
evidence of Ms. Mariam Williams referred to above, that the
respondents might have alternate
accommodation available to them.
This is not properly addressed in the opposing affidavits in the PIE
application.
49.
Further, the Court does not know anything
about the size of the property – how many rooms there are and
how many people can
be accommodated therein. Nor does the court know
what the accommodation requirements of the Nelsons’ are. There
was a suggestion
in argument that Mr and Ms Nelson have since
divorced and it may be that their combined accommodation needs are
now less demanding.
Is it perhaps possible that certain of the
elderly occupants could be accommodated in the property by the
Nelsons for a fixed period
before they move out, while the Nelsons
move in in the meantime? The Court just does not know.
50.
Given that we are dealing with a family
dispute, and mindful of the erstwhile benevolence of Mr. Jalodien
Williams, I am of the
view that the parties would benefit from an
attempt at mediation in this matter. Knowing that the Court has found
that the respondents
are liable to be evicted, the parties (duly
guided by a skilled mediator) might be better placed to agree a
process for the respondents’
departure from the premises rather
than the Court imposing its will on them by an order. In other words,
the parties might better
be able to determine their own destinies
with the aid of mediation.
51.
S7 of PIE is designed to afford litigating
parties the benefit of a mediated solution to their litigation. In my
respectful view,
the parties to this dispute would benefit from such
a process. I therefore intend making certain declaratory orders so
that the
parties know where they stand overall and then affording the
parties the opportunity to mediate the terms of the respondents’
departure from the property. Once that process is complete, the
matter will return to this Court, either for a duly mediated
agreement
to be made an order of court, or, if the mediation is
unsuccessful, for the Court to fix the terms for an order under s4(8)
of
PIE. In the event that the parties reach an amicable solution to
their dispute before the postponed date, they are at liberty to
approach the Court for an order by agreement.
ORDER OF COURT
Accordingly, it is
ordered that:
A.
The First to Ninth Respondents herein are
declared to be unlawful occupiers of 87 Sixth Street, Kensington,
Cape Town (“the
property”).
B.
The First to Ninth Respondents are liable
to be evicted from the property on a date to be determined by this
Court after the steps
contemplated hereunder have been undertaken.
C.
The Tenth Respondent (“the City of Cape Town”) is
ordered to file a Supplementary Report within 3 weeks of the date of
this Order relating to such suitable alternative accommodation and/or
low-income rental housing, either owned by the City of Cape
Town or
of which it might otherwise be aware, as may be made available to the
First to Ninth Respondents and those holding under
them when they are
evicted from the property. Such report is to address the issues
raised by the Applicants and the First to Ninth
Respondents in their
affidavits filed herein.
D.
The parties may file short supplementary affidavits responding
to the City of Cape Town’s aforesaid Supplementary Report not
later than 2 weeks after it has delivered its report to the Court and
the parties’ legal representatives.
E.
In accordance with the provisions of section 7(1) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act
19 of 1998, the City of Cape Town is hereby directed to appoint,
within 2 weeks of service on the Court of the Supplementary Report
referred to in para C above, a person with the necessary expertise in
dispute resolution to attempt to mediate a settlement of
the dispute
as between the Applicants and the First to Ninth Respondents in
relation to the date and terms upon which the said
respondents will
vacate the property.
F.
The parties shall attend at such mediation as stated aforesaid
on a date as agreed between the parties and the mediator.
G.
The matter is postponed for further hearing
before Gamble, J in the Fourth Division on Monday 26 July 2021.
H.
All costs are to stand over for later
determination.
__________________
GAMBLE,
J
[1]
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act, 19 of 1988 (“PIE”)
[2]
The
grammar and syntax is as in the original
[3]
Caeserstone
Sdot-Yam Ltd v World of Marble and Granite and others
2013 (6) SA 499 (SCA)
[4]
Caeserstone
at [12]
et
seq.
[5]
Belmont
House (Pty) Ltd v Gore and another
2011 (6) SA 173
(WCC) at [13] – [19]
[6]
LAWSA
Vol 31 2
nd
ed at para 234
et
seq
.
[7]
Doctors
for Life International v Speaker of the National Assembly and others
2006 (6) SA 417
(CC) at [38]
[8]
Minister
of Home Affairs and another v Fourie and another
2006 (1) SA 524 (CC)
[9]
The
section reads as follows.
“
15(3)(a)
This section does not prevent legislation recognizing-
(i)
marriages concluded under any tradition,
or a system of religious, personal or family law; or
(ii)
systems of personal and family law under
any tradition, or adhered to by persons professing a particular
religion.
(b)
Recognition in terms of (a) must be consistent with this section and
the other provisions of the Constitution."
[10]
President
of the Republic of South Africa and another v Women’s Legal
Centre Trust and others
[2021] 1 All SA 802 (SCA)
[11]
LAWSA
Vol 27 (2nd ed) p299 para 233
[12]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012 (6) SA 294
(SCA) at [12]
[13]
S4(8)
reads –
“
If
the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it
must
grant an order for the eviction of the unlawful occupier, and
determine-
(a)
a just and equitable date on which the
unlawful occupier must vacate the land under the circumstances; and
(b)
the date on which an eviction order may be
carried out if the unlawful occupier does not vacate the land on the
date contemplated
in paragraph (a).
[14]
Ndlovu
v Ngcobo; Bekker and another v Jika
2003 (1) SA 113
(SCA) at [17];
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and another
2012 (2) SA 104
(CC) at [40].
[15]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A)
[16]
LAWSA
Vol 27 (2
nd
ed) p140, para 122, footnote 5.