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[2021] ZAWCHC 71
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Passenger Rail Agency of South Africa v Nefdt and Others (A156/2020) [2021] ZAWCHC 71 (30 March 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: A156/2020
In
the matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Appellant
and
FREDERICK
DANIEL
NEFDT
1st Respondent
MARILYN
NEFDT
2nd Respondent
AVERIL
CHARMAINE
DAVIDS
3rd Respondent
NEFDT
&
ASSOCIATES
4th Respondent
UNLAWFUL
OCCUPIERS OF PORTION OF ERF 1348
KLEINVLEI,
CAPE TOWN, WESTERN CAPE
5th Respondent
Coram:
Bozalek J et Steyn J et Mantame J
Heard:
19 March 2021
Delivered:
30 March 2021
JUDGMENT
BOZALEK
J
[1]
This
is an appeal against part of the judgment of Goliath DJP, delivered
on 7 June 2019 when the Court ordered the first, second,
third and
fourth respondent to vacate certain structures in Kleinvlei but
dismissed the application for the same relief against
the fifth
respondent. The Court made no order as to costs and the appellant
seeks a reversal of that order as well.
[2]
The
Court’s decision arose out of certain motion proceedings
initiated by the appellant, the Passenger Rail Agency of South
Africa
(PRASA), against Mr Frederick Nefdt, Ms Marilyn Nefdt, Ms A Davids
and Nefdt and Associates CC, being the first to fourth
respondents,
and the fifth respondent being a class described as ‘
the
unlawful occupiers of portion of Erf 1348 Kleinvlei, Cape Town,
Western Cape’
.
[3]
The
background to the application was that for many years the first
respondent leased a portion of land from PRASA in a parking
area to
the west of Melton Rose railway station on which a number of small
businesses were conducted by various traders from five
movable
structures, namely, one cargo container, two prefabricated concrete
garages and two prefabricated storage structures.
[4]
The
first respondent’s lease was terminated in 2010 and the
appellant obtained an eviction order against him. Notwithstanding
this the first respondent not only retained control and possession
over the structures in question but rented them out to various
shopkeepers. By the time the present proceedings were initiated in
2017 those shopkeepers, the members of the fifth respondent,
traded
and were represented as follows: the Tyre Shop (Mr Elias Mkaiplana),
the Tuck Shop; JA Cellphone Repairs (Mr Jude Adama),
GM Hairsalon (Ms
Nosipho Maxanyna), Quality Shoes, Repairs, Fridges, Microwaves, TV,
DVD’s (Mr John Antwi) and a fruit and
vegetable trader.
[5]
The
appellant’s case as set out in its founding affidavit was that
the property, on which the Melton Rose railway station
and the five
structures stood, was owned by it. To the west of the main station
building was a parking area containing the five
temporary shops.
Since 2010 the appellant had received no rental income in respect of
those structures at all and the area was
earmarked for redevelopment.
It required vacant possession of the area in order to commence
redevelopment.
[6]
In
its own founding affidavit the appellant stated that the fifth
respondent was comprised of unsophisticated business persons who
appeared to have been taken advantage of by the first and second
respondents and possibly also the third and fourth respondents.
[7]
The
application was opposed by the first respondent who filed an opposing
affidavit which consisted mainly of bare denials of the
key
allegations made by the appellant and the taking of insubstantial
technical points. In support of his opposition the first
respondent
obtained confirmatory affidavits from the second and third
respondents as well as from various members of the fifth
respondent.
The only possible defence to the relief claimed, or point of any
substance, was the allegation by the first respondent
that the
proprietors of the Tuck Shop also resided therein, an allegation
supported by confirmatory affidavits from the alleged
occupants
viz
Mr
Syleman Mohamed, Mr Salah Yusuf Mohamed and Mr Allie Osman Omar.
[8]
The
Court
a
quo
stated that the only issue to be determined was how to address the
issue regarding the abovementioned three traders/occupants who
claimed to currently reside on the property. It held that it would
not order their ejectment from the premises for commercial purposes
since their right to housing and their ability to trade was
intertwined and further that, short of an agreement, the only
mechanism
available to the appellant to obtain their eviction was to
invoke the provisions of the Prevention of Illegal Eviction from an
Unlawful Occupation of Land Act, 19 of 1998 (‘PIE’). The
Court also expressed the view that the matter was an appropriate
one
for the parties to engage in efforts to find an amicable solution.
[9]
As
far as the costs order was concerned, in its reasons for refusing
leave to appeal the Court stated that the first respondent
did not
oppose the relief sought against him but merely filed papers to
enlighten the Court of the plight of the fifth respondent.
On that
basis, the Court stated, it was unable to discern why a costs order
should be granted against the first and third respondents.
[10]
Dealing
firstly with the substantive order, the difficulty with the Court’s
reasoning is that PIE procedures apply only to
property insofar as it
is used for residential purposes. It was authoritatively held in
Ndlovu
v Ngcobo, Bekker and Another v Jika (1)
[1]
that buildings or structures that did not perform the function of a
form of dwelling or shelter for humans did not fall under PIE
and
therefore disputes concerning the lease of commercial properties fell
outside its purview. The consequence of this distinction
is that even
should the appellant be successful in obtaining a PIE order against
members of the fifth respondent it would not afford
it the relief of
evicting the occupants as commercial tenants or, put differently,
prevent them from using the structures for commercial
purposes.
[11]
It
follows that the Court erred in not granting any relief against the
fifth respondent save to the extent that any member therefor
asserted
that they used a structure as a residence as well. In that event the
appropriate relief would be to evict such members
of the fifth
respondent as commercial tenants or occupants of the relevant
structure (and grant the appropriate ancillary relief)
but require of
the appellant to initiate PIE procedures against such individuals who
had asserted and continue to assert that they
reside in a structure.
[12]
Counsel
for the appellant conceded that, to the extent that three persons
connected to the Tuck Shop business claimed to reside
in the
premises, their eviction from the premises as residents could only be
secured by following the processes in PIE. Accordingly,
the order
which the Court will issue in this regard will provide that, to the
extent that such persons identify themselves to the
Sheriff and
continue to assert that they reside in the premises (and before the
structure can be removed by the appellant), the
appellant will be
required to commence a PIE application for their eviction as
residents.
[13]
Turning
to the question of costs, the notices of opposition and
representation were ambiguous as to which respondents were opposing
the relief sought. After enquiring into the authority of the
respondent’s attorney to act in terms of Rule 7, the appellant
sought costs orders only against the first, third and fifth
respondents.
[14]
It
is in my view incorrect that the first respondent (and the third
respondent for that matter) did not oppose the relief sought.
The
opposing and confirmatory affidavit makes it quite clear that the
first respondent and his sister, the third respondent, were
opposing
the relief sought on any number of technical points and in the course
of doing so contended that the occupants of the
Tuck Shop were also
residing in that structure. When an overview is taken of the matter
it is also quite clear why the first respondent
was opposing the
relief sought, namely, because he was letting the premises to the
fifth respondent and had been doing so for years
and in the event
that the fifth respondent was evicted this income stream would cease.
It is also clear that the first respondent
had enjoyed this rental
income even though he had no lease over the premises and was paying
no rental to the appellant.
[15]
The
notice of opposition filed on behalf of the respondents does not make
it entirely clear whether the members of the class constituted
by the
fifth respondent were opposing the relief sought. However, all of
them filed confirmatory affidavits and many of them signed
powers of
attorney instructing the first respondent’s attorney to act on
their behalf in the proceedings. When the appellant’s
application for leave to appeal was heard they were represented by a
representative from the Legal Aid Board but that is where
such
representation ended
[16]
Given
that the first and third respondents established no defence to the
application but nonetheless opposed it I consider that
the trial
Court erred in not awarding costs against them. The opposing
affidavit and a confirmatory affidavit were filed on their
behalf
respectively and they were both legally represented throughout the
proceedings before the Court a quo. As counsel for the
appellant
pointed out, if the first and third respondents’ interest
genuinely was only protection of the fifth respondent
rather than
their own self-interest they could easily have withdrawn their
opposition before the hearing, leaving only the fifth
respondent
formally engaged in the matter.
[17]
The
appellant also sought a costs order in relation to the original
proceedings against those members of the fifth respondent who
appeared to oppose them, as well as the costs of the appeal.
[18]
The
appeal itself has followed a long and winding course. It was
originally set down for hearing on 20 January 2021 but was postponed
on that day when members of the fifth respondent appeared in court
and advised that they wish to oppose the appeal but were still
seeking legal representation. On that same day an attorney acting for
the first to fourth respondents advised that they would no
longer be
opposing the appeal but would abide the Court’s decision. In
the result the first and third respondents cannot
be held liable for
the costs of appeal beyond the date of the first hearing.
[19]
For
a variety of reasons a first appeal record was hastily put together
in an attempt to meet the deadlines created by the Registrar
in
assigning an appeal hearing date prematurely. In due course that
record was replaced with a proper record. All this however,
together
with the fact that the members of the fifth respondent were no longer
legally represented and the first to fourth respondents
had also not
made their position clear, necessitated the service of documents,
orders and copies of record on the respondents.
This in turn led to
two condonation applications: one for the late filing for the notice
of appeal and second for the late filing
of record. These
applications for condonation were well-founded and were granted at
the hearing of the appeal.
[20]
Members
of the fifth respondent were once again present on the resumed date
but were not legally represented and advised that they
had received
legal advice to the effect that they stood little prospect of success
in opposing the appeal. They confined their
submissions to the
question of costs and the period of notice before any eviction order
would take effect.
[21]
As
indicated the fifth respondent’s involvement in the initial
proceedings were limited to signing brief confirmatory affidavits
and
in some instances powers of attorney in favour of the first
respondent’s attorney. Seen in proper perspective, however,
the
members of the fifth respondent were merely adjuncts to the case made
by the first and third respondents who, as explained
above, were
serving their own interests. The fifth respondent’s members
were caught in the middle of a dispute between the
appellant and the
first respondent – paying rental to him in the belief that he
had a lawful basis to enter into lease agreements
with them. An
important factor to be taken into account is that the first
respondent was able to exploit the situation because
the appellant
failed to take any effective action against him for many years i.e.
between approximately 2010 and 2017. Nothing
approaching an adequate
explanation was forthcoming from the appellant for its failure to
take action to deal with the problem
for some seven years.
[22]
At
best for the appellant, the second appeal hearing i.e. on 19 March
2021 may have been avoided had the relevant members of the
fifth
respondent indicated on 20 January 2021 that they did not intend to
oppose the appeal. On that date, however, they had yet
to obtain
independent legal advice. Taking all these factors into account I do
not consider that any costs order against the fifth
respondent would
be justified or would be fair.
[23]
Finally,
as far as notice is concerned, taking into account that the members
of the fifth respondent utilised the premises to earn
a living and
have done so for several years pursuant to rental arrangements with
the first respondent, it will obviously cause
them severe disruption
to be evicted from the premises. From the bar all advised that they
had attempted, without success, to obtain
alternative premises. It is
therefore appropriate that they be given a period of notice before
being required to vacate the premises.
Members of the fifth
respondent requested a period of three to four months but this is too
long given the length of time that these
proceedings have taken thus
far and given the appellant’s need to redevelop the area sooner
rather than later.
[24]
I
consider that a period of two months from date of this order would be
an adequate period of notice. Thereafter, in the event that
the fifth
respondent members do not vacate the premises, the Sheriff will be
authorised to evict them.
[25]
The
order which this Court will make will also make provision for a
month’s notice to be given to the first respondent to
remove
the structures on the property failing which these may be removed by
the appellant at the cost of the first respondent.
[26]
For
these reasons the appeal succeeds and an Order as per Annexure A to
this judgment is made.
BOZALEK
J
I
agree.
STEYN
J
I
agree.
MANTAME
J
For
the Applicant
: Adv S e
Câmara
As
instructed by
Philander Attorneys
For
the 5
th
Respondents
: In person
[1]
2003 (1) SA 113
(SCA) at para
20.