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 77
|
|
Williams and Another v Williams N.O and Others (10857/2020) [2021] ZAWCHC 77 (30 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 10857/2020
In the matter between:
RORY WILLIAMS
First Applicant
JEDD WILLIAMS
Second Applicant
and
GRANT STEWART WILLIAMS
N.O.
First Respondent
RAYMOND RIX
N.O.
Second Respondent
VIVIA FRANCIS WILLIAMS
(and all persons who
occupy the property
through 1
st
,
2
nd
and 3
rd
respondents)
Third
Respondent
THE CITY OF CAPE
TOWN
Fourth Respondent
Coram:
Justice J Cloete
Heard:
29 April
2021
Delivered
electronically:
30 April 2021
JUDGMENT
CLOETE J
:
Introduction
[1] This is an
opposed application for the eviction of the third respondent
from an
immovable property owned jointly by the applicants which is situated
in Panorama, Cape Town (“the property”).
[2] Although
relief is sought in the notice of motion for the eviction of
the
first to third respondents and all persons occupying ‘
on its
behalf’
, there is no dispute that in truth it is only the
eviction of the third respondent (the sole occupier of the property)
which is
sought.
[3] The first
and second applicants are brothers. The first respondent is
their
father who is a co-trustee with the second respondent (his cousin) of
The Williams Family Trust (“the trust”).
The third
respondent is the first respondent’s mother and the applicants’
paternal grandmother. It is common cause
that the third respondent is
not, and never has been, a beneficiary of the trust.
[4] The
application was duly served on the fourth respondent (“the
City”) but it has not participated in these proceedings and nor
have the applicants made any attempt to obtain a report from
the City
in relation to alternative accommodation for the third respondent.
For convenience I will refer to the first to third
respondents
collectively as “the respondents”.
[5] Given that
these are proceedings for final relief, the application falls
to be
determined on the version of the respondents, taken together with
those facts which are admitted by the applicants, unless
the
respondents’ version is so far-fetched and untenable that it
must be rejected on the papers as they stand in accordance
with the
trite Plascon-Evans rule. To this it must be added that if the third
respondent is found to be in unlawful occupation,
the Court must also
adopt a judicial inquisitorial oversight role, given the nature of
the proceedings which are based on PIE.
[1]
[6] It is thus
incumbent upon the applicants to prove that the third respondent
is
an “unlawful occupier” of the property as contemplated in
s 1 of PIE and if so, the Court must be satisfied
that it would
be “just and equitable” as contemplated in s 4(7)
thereof to order her eviction.
Factual
matrix
[7] Some 20
years ago, after his father (the third respondent’s husband)
passed away, the first respondent persuaded her to move closer to his
home in Panorama. For this purpose the trust purchased the
property
as a vacant erf. Using the proceeds of the sale of the home she had
shared with her late husband of R150 000, the third
respondent funded
the construction of the residence on the erf, which was built to meet
her requirements, on the understanding
that she could reside there
for the remainder of her life. The first respondent categorises the
arrangement with the third respondent
as a lease at her will.
[8] The first
respondent, a property professional, attended to the construction
of
the residence on the erf, using sub-contractors as required. Upon
completion the third respondent took occupation and has resided
there
ever since. The sum of R150 000 was advanced to the trust as an
interest free loan and subsequently repaid in full by
the first
respondent.
[9] The
arrangement between the trust and the third respondent was known
to
the applicants who are also beneficiaries of the trust along with the
first respondent and his former or estranged wife (their
mother).
This is confirmed in three later emails from the first applicant
dated 30 August 2016, 15 November 2017 and
1 January
2018 (none of which were annexed to the founding affidavit) in which
he expressed the wish ‘
to put something in writing’
for the third respondent ‘
stating that she will always have
the property free of charge… in essence usufruct of the
property’
; that ‘
I have not slept trying to think
of solutions that involve Gran staying in her house… I say her
house because, in my and
my brother’s mind Granny’s house
is morally and ethically Granny’s house, although legally, it
is not’
; and ‘
we have always said that Granny will
stay in that house until her last day’.
[10] The reason for the
applicants’ stance that the property is not ‘
legally’
the third respondent’s – which the respondents have not
suggested – is that during 2011 the trust sold it to
the
applicants in equal shares. There is a dispute of fact as to the
(unrecorded) terms of that transaction insofar as the third
respondent’s continued occupation is concerned.
[11] In the founding affidavit
the applicants alleged that the oral agreement concluded between
them
and the trust at the time of the sale was that they would not charge
the third respondent rental for so long as they could
reside free of
any monetary consideration in other properties owned by the trust.
Once their relationship with the first respondent
became strained
during 2017 the trust demanded that they vacate those properties
which they duly did. They alleged that ‘
in so doing the
trust thereby breached and/or cancelled and/or repudiated the above
agreement’.
[12] It was further alleged that
the applicants thereupon demanded that
the trust
pay a fair
rental for the third respondent’s continued occupation of the
property, and when it declined to do so, the applicants
launched a
PIE application for the third respondent’s eviction in the
magistrates’ court (my emphasis).
[13] Although also not annexed to
the founding affidavit (which one would have expected of
the
applicants) the verbal agreement upon which they relied is
contradicted by the contents of their own erstwhile attorney’s
letter of demand dated 17 January 2018 annexed to the answering
affidavit. This letter was addressed to the first and third
respondents in their personal capacities and paragraph 2 thereof
reads as follows:
‘
It is our instructions
that you entered into a verbal agreement with our clients in respect
of the property… during June
of 2011. The agreement determined
that you may reside on the property until further notice was given to
you or until such time
as the agreement had to be renegotiated…’
[14] The respondents’
attorney replied to this letter on 19 January 2018. Having briefly
set out the respondents’ version, it was stated that as a
consequence the third respondent enjoyed a ‘
usufruct’
over the property of which the applicants were aware. It was further
stated that the trust transferred the property to the applicants
in
2011, primarily as part of an estate planning exercise. The price was
set at the lowest possible level (R1.2 million) for transfer
duty
purposes and the transfer and attendant costs were paid by the trust
as seller.
[15] It is undisputed that the
third respondent was not aware of the 2011 transaction until
years
later when the applicants first sought to evict her. In the founding
affidavit the applicants dealt with the issue of the
‘
usufruct’
by alleging that ‘
however no such right has ever been
registered against the title of the property, or agreed to by me or
the second applicant’.
[16] In a letter from their
erstwhile attorney dated 29 January 2018 the applicants changed
tack and relied instead on the so-called “reciprocity
agreement” allegedly verbally concluded between themselves and
the trust in June 2011. They relied on the trust’s alleged
breach of that agreement as the basis for their entitlement to
seek
the eviction of the third respondent from the property. They also
complained of suffering financially as a result of the third
respondent’s continued occupation in having to fund the monthly
bond instalments in respect of the bond registered over the
property
to secure the purchase price of R1.2 million; and further that
this bond had limited their capacity to raise finance
to purchase
other properties. This allegation is belied by the objective fact,
reflected in the deeds office search annexed to
the founding
affidavit (and not dealt with at all by the applicants) that during
2019 they registered a further bond over the property
of
R1.5 million.
[17] On 8 April 2018 the trust
concluded a written lease with the applicants in respect of
the
property at a monthly rental of R12 000 commencing 1 May
2018 and terminating 30 April 2019, subject to it continuing
thereafter on a monthly basis. The trust is reflected as the tenant.
No mention is made of the third respondent. It is common cause
that
the third respondent was also not aware of the conclusion of this
lease until much later.
[18] The reason for its
conclusion is also in dispute. The applicants maintain that its
purpose
was to settle the eviction proceedings pending in the
magistrates’ court. They submitted in the founding
affidavit
that its conclusion ‘
undoubtedly confirms that the
third respondent never had any usufruct to use or enjoy the property,
because if she did… there
would have been no need for any
lease…’
.
[19] The first respondent’s
version is that the written lease was not concluded in settlement
of
those eviction proceedings, and nor did it serve to confirm that the
third respondent had no right of occupation. According
to him, it was
negotiated between himself and the first applicant for the latter’s
exclusive benefit on the basis that it
would assist him in
demonstrating affordability in the form of additional income to
acquire a property of his own with home loan
finance. The so-called
rental payments provided in this lease thus had to be made, which
resulted in the trust making these payments
for two years. According
to the first respondent, the trust gave the first applicant an
undertaking that it would pay for that
period but not beyond it, and
accordingly they ceased upon expiration thereof. No further payments
were made after April 2020 as
a result.
[20] The first respondent’s
version is supported by the fact that the first letter of
demand
emanating from the applicants’ current attorney is dated 21 May
2020. It was addressed only to the trust and
threatened cancellation
of the written lease if payment of alleged arear rental was not made
within 20 business days. It was
followed by a purported letter
of cancellation dated 8 July 2020.
Discussion
[21] During argument
Mr Bence
who appeared for the applicants conceded that no case was made out in
the founding affidavit that the third respondent was only
entitled to
occupy the property as a consequence of the written lease which has
come to an end. He was constrained to submit that
this was an
inference which the Court should draw since, as he put it, the
conclusion of the written lease could only have been
for the benefit
of the third respondent.
[22] However he fairly accepted
that during the period of the written lease the applicants
caused a
second bond to be registered over the property in the sum of
R1.5 million. In my view, on the probabilities, this
ties in
squarely with the first respondent’s version of how that lease
came to be concluded, and his version cannot be considered
so
far-fetched or untenable that it falls to be rejected.
[23] There can be little doubt
that at the time the property was transferred to them, and for
many
years thereafter, the applicants were well aware of the arrangement
in terms of which the third respondent occupied the property,
even if
not privy to the finer details. Even if any reciprocal arrangement
came into effect upon transfer of the property to the
applicants as
they allege, this was one concluded between themselves and the trust
and the third respondent had no part of it.
[24] Self-evidently, the trust
could not have waived the third respondent’s right to
continued
occupation in these circumstances, and there is no suggestion that
the third respondent herself has done so.
[25] Both counsel made
submissions on how best the third respondent’s occupation of
the property should be categorised insofar as her pre-existing
arrangement with the trust is concerned.
Mr Bence
submitted
that it could not be a lease at will since one of the essential
elements of a lease is the payment of rental (save in
certain limited
circumstances in relation to leases of agricultural land which are
not relevant for present purposes).
[26] On the other hand
Mr
Rogers
who appeared for the respondents relied on
Rubin v
Botha
[2]
and the commentary thereon in Kerr’s
Law of Sale and
Lease
[3]
where it is stated that:
‘…
the
respondent purported to lease to the appellant and his partner a
piece of land for a period of ten years. No money was to pass
but the
purported lessee was to erect a dwelling house, stable and fowl-run
for which no compensation was to be claimable at the
end of the
lease. In the court
a
quo
, Smith J said:
I
do not think that the plaintiff can be regarded otherwise than as a
tenant merely because he was under no obligation to pay rent
[in
money], but intended that the buildings he erected should become the
property of the lessor at the expiration of 10 years and
so to
compensate the latter for the use and occupation of the land on which
the buildings were erected…
In
the Appellate Division, De Villiers CJ, with whom Maasdorp JA
concurred, proceeded on the same basis, but noticed a statutory
bar
to the validity of the agreement. He said:
That
lease proved to be null and void by reason of its not being notarial…
The
case could not have been disposed of in this way if the contract had
not been considered to be a valid lease in all other respects.’
[27] The third respondent clearly
contributed to the increase in value of the property as the
result of
her capital injection of R150 000 for purposes of construction
of the residence thereon. She had already resided
in the property for
a period in excess of 10 years when it was sold by the trust to the
applicants below market value. They received
the benefit of the
capital growth as a direct consequence of the third respondent’s
financial contribution and continue to
do so.
[28] In the replying affidavit
the first applicant himself admitted having invited the trust
to
repurchase the property for an amount of R2.2 million during
2018, which according to him was below its municipal value.
This
accords with the first respondent’s averment that the municipal
valuation of the property in 2018 was R2.35 million.
Logic
dictates that the property’s current value must be more than
R2.7 million given the granting of approval for registration
of
the second bond of R1.5 million in 2019.
[29] In my view therefore, as
submitted by
Mr Rogers
, the arrangement between the trust and
the third respondent at the time of her taking occupation is indeed
capable of being construed
as a lease. This would have been binding
on the applicants when they purchased the property under the
principle ‘
huur gaat voor koop’
.
[30] Section 1 of the Formalities
in respect of Leases of Land Act
[4]
reads in relevant part as follows:
‘
1
Formalities in respect of leases of land
(1)
Subject to the
provisions of subsection (2), no lease of land shall be invalid
merely by reason of the fact that such lease is not
in writing.
(2)
No lease of land
which is entered into for a period of not less than ten years or for
the natural life of the lessee… or
which is renewable from
time to time at the will of the lessee indefinitely… shall, if
such lease be entered into after
the commencement of this Act, be
valid against… a successor under onerous title of the lessor
for a period longer than ten
years after having been entered into,
unless…
(b)
the aforesaid… successor at the time of… entry into the
transaction by which he obtained the leased land or a
portion thereof
or obtained a real right in respect thereof, as the case may be, knew
of the lease.’
[31] On the evidence before me I
am persuaded that the third respondent’s occupation
of the
property also meets the requirements of s 1 of the aforesaid
Act, although I would prefer to categorise the nature
of the lease as
one concluded for the natural life of the lessee rather than
renewable from time to time at her will on an indefinite
basis.
[32] Having regard to all of the
above, I conclude that the applicants have failed to prove
that the
third respondent is an “unlawful occupier” for purposes
of PIE, and I do not intend dealing with the alternative
arguments
raised on behalf of the respondents in relation inter alia to a
precarium
.
[33] If I am wrong in reaching
this conclusion I nevertheless believe it prudent to deal with
the
‘
just and equitable’
requirement in s 4(7) of
PIE in order to avoid the potential of piecemeal litigation, with
reference to the established principles
set out in
City of
Johannesburg v Changing Tides 74 (Pty) Ltd & Others
[5]
and
Occupiers, Berea v De Wet NO & Another
[6]
.
[34] On the undisputed facts the
third respondent is 89 years of age. She has no significant
cash
reserves. She is a State pensioner and receives another small
stipend. She has no assets apart from furniture and effects.
[35] On 20 February 2021 she was
diagnosed by geriatric psychiatrist Dr Surita Van Heerden
as
suffering from both an adjustment disorder with significant depressed
mood triggered by family conflict and concerns about her
living
arrangements, as well as a mild neurocognitive disorder suggestive of
early dementia with significant impairment in memory,
orientation and
language function.
[36] She is also in poor physical
health and takes chronic medication for atrial fibrillation
and
congestive heart failure. She thus falls into one of the most
vulnerable categories envisaged in s 4(7). The Constitutional
Court has recognised as relevant the emotional trauma of being
evicted from one’s home.
[7]
In a case such as the present, that trauma would undoubtedly be
severe.
[37] The applicants’
attitude is that the first respondent must find alternative
accommodation
(presumably at his own expense or that of the trust)
for the third respondent, which he disputes he is able to do. In any
event
this misses the point, since the applicants themselves have an
obligation to place all relevant information before the Court insofar
as they reasonably can, including potential suitable and affordable
alternative accommodation for the third respondent.
[38] They have not done so. They
have not even bothered to obtain a report from the City, or
disclosed
information relating to the factors in regulation 73(2) of the
Covid-19 alert level 1 lockdown regulations under the
Disaster
Management Act.
[8]
[39] On the other hand it is not
suggested by either applicant that they require the property
for
purposes of their own occupation. They wish to rent it out or sell
it. Both applicants are successfully and gainfully employed
in their
chosen fields of work, live comfortably and are well able to provide
for their respective immediate families.
[40] There is furthermore nothing
to prevent the applicants from selling the property (subject
to the
third respondent’s continued occupation) and any potential
prejudice they may suffer as a result of such occupation
is likely to
be of limited duration given the harsh reality of the third
respondent’s life expectancy which is around 4 years.
[9]
[41] I am accordingly firmly of
the view that in any event it is not just and equitable for
the third
respondent to be evicted and it is therefore not necessary to
consider a just and equitable date for eviction in terms
of s 4(8)
and (9) of PIE.
Costs
[42] The respondents seek a
punitive costs order against the applicants, advancing two reasons.
The first is that the trust should never have been joined as a party.
The second is the manner in which the applicants have treated
the
third respondent. As to the first, while it was open to the trust not
to have opposed the relief sought, common sense dictates
that, given
the manner in which the applicants set out their case in the founding
affidavit, there was always a risk that relief
of some kind might
have been granted against the trust. As to the second, this is a
family feud in which the third respondent has
unwittingly been caught
up. To me what is of greater importance is that the applicants
clearly did not play open cards with the
Court in their founding
papers. They distorted the true position and opportunistically tried
to avoid grappling with it for their
own advantage. To my mind this
warrants a punitive costs order.
[43]
The following order is
made:
1.
The application is dismissed.
2.
The applicants shall pay the
respondents’ costs on the scale as between attorney and client,
jointly and severally as taxed
or agreed, the one paying, the other
to be absolved, and including any reserved costs orders.
J I CLOETE
[1]
Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act 19 of 1998
.
[2]
1911 AD 69.
[3]
4ed at 361.
[4]
18 of 1969.
[5]
2012 (6) SA 294 (SCA).
[6]
2017 (5) SA 346
(CC). See also
Phillips v Grobler
and Others
[2020] 1 All SA 253
(WCC).
[7]
Machele v Mailula
2010 (2) SA 257
(CC) at para
[30].
[8]
Section 57
of 2002.
[9]
https://www.saipa.co.za/wp-content/uploads/2019/12/Taxation-at-Death-Annexure-7-life-expectation-tabe-0001.pdf
.