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[2021] ZAWCHC 189
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Serne NO and Others v Mzamomhle Educare and Others (1289/2019) [2021] ZAWCHC 189 (17 September 2021)
(Western Cape
Division, Cape Town)
Case No: 1289/2019
In the matter between:
ROBERT PAUL SERNÉ
NO First
Applicant
ALOYSUIS JOANNES
MARIUS REIJNS NO Second
Applicant
GERT ALBERTUS VAN RHYN
NO Third
Applicant
and
MZAMOMHLE
EDUCARE First
Respondent
BONGEKA
MQOLOMBENI Second
Respondent
MS SIPHOKAZI
MQOLOMBENI Third
Respondent
ALL OTHER PERSONS WHO
UNLAWFULLY
OCCUPY ERF 22933
KRAAIFONTEIN Fourth
Respondent
THE CITY OF CAPE
TOWN Fifth
Respondent
JUDGMENT
HANDED DOWN VIRTUALLY ON: 17 SEPTEMBER 2021
MANTAME
J
INTRODUCTION
[1] This
is an eviction application. The applicants seek to evict the first to
the fourth respondents from Erf
22933, Wallacedene Kraaifontein, in
the City of Cape Town commonly known as 74 Grootboom Avenue,
Wallacedene (“
the Property
”). The Mzamomhle
Foundation Trust (“
the Trust
”) having been
represented by the applicants is said to be the registered owner of
the property. The respondents are represented
by the second
respondent, the daughter of Margaret Noxolo Ngaleka
(“Mrs
Ngaleka
”) the former Principal of the first respondent who
has since passed away.
[2] The
application is opposed by the respondents and further raised some
points in
limine.
FACTUAL
BACKGROUND
[3] The
first respondent is an early childhood educare centre that was
founded by Mrs Ngaleka in Wallacedene some
twenty-two (22) years
prior to the institution of these proceedings. Wallacedene is an
impoverished informal settlement on the
eastern outskirts of Cape
Town. This place would be remembered when Ms Irene Grootboom
(“Ms
Grootboom”)
made history in the case of
Government of
the Republic of South Africa and Others v Grootboom and Others
(CCT11/00)
[2000] ZACC 19
;
2001 (1) SA 46
where she asserted her
socio economic rights and challenged the government to provide
adequate housing under Section 26 (right
to housing) and Section
28(1)(c) (children’s right to shelter) of the South African
Constitution.
[4] This
challenge came about after a community was evicted from an informal
settlement in Wallacedene. Due to
the appalling conditions and
overcrowding in the area at the time, Ms Grootboom and others moved
out of Wallacedene and put up
minimal shelters of plastic and other
materials on a vacant land (New Rust Land) that was privately owned
and had been earmarked
for low cost housing. The owner of the land
obtained an ejectment order at the magistrates’ court. After
the eviction, Ms
Grootboom and others moved to the sports field
adjacent to Wallacedene Community Centre. After their eviction, they
approached
the high court for its intervention as they continued to
live under intolerable conditions. Effectively, they asked the
municipality
to meet its constitutional obligations and provide
temporal accommodation and such order was granted. The state appealed
this order
to the Constitutional Court. The Constitutional Court held
that Section 26 obliges the state to devise and implement a coherent,
co-ordinated housing programme and that in failing to provide for
those in most desperate need the government had failed to take
reasonable measures to progressively realize the right to housing.
The Court ordered various spheres of government to devise, fund,
implement and supervise measures to provide relief to those in
desperate need.
[5] It
appears that some twenty-one years after the Grootboom judgment
(
supra
) the state has not done enough to protect the interests
of the children in that community, as the early childhood educare
centre
in which young and vulnerable children are educated is being
threatened with eviction in these proceedings. It is against this
background that the City of Cape Town
(“the City”)
was
directed to file submissions amongst others, if it would provide
alternative accommodation should the order of eviction be granted.
Notwithstanding, as it would appear later on in the judgment, the
City adopted a dismissive approach and decided to shirk its
responsibilities on the basis that the educare centre is a non-profit
organisation and should the eviction be granted its occupants
would
not be rendered homeless, as this is not a residential property. In
other words, the City has no role to play in such circumstances.
[6] In
1997, Mrs Ngaleka established the Mzamomhle Educare (“
the
educare / first respondent
”)
on the premises of the Methodist Church in Wallacedene. She held the
position of a Principal of this educare centre and
she managed and
controlled its daily activities until she died in November 2016.
According to the information at
www.sahistory.org.za
,
in 2004, Wallacedene had an estimated population of 21 000
people. It made sense why this educare grew at such a rapid rate
to
this day. This necessitated that the educare move to different
premises over the years as it no longer managed to contain the
growing numbers of children in their early phase of education.
[7] In
2010, Mrs Ngaleka met one Robert Paul Serné (“
Mr
Serné
”) and his team who was on a Habitat for
Humanity tour in their area. She requested assistance in obtaining
sponsorship to
build a new structure on which the educare could
operate adequately. Indeed, Mr Serné appeared to be willing to
assist as
he took some photographs that were said would serve as
support for an application for sponsorship in Netherlands.
[8] According
to the second respondent, who is Mrs Ngaleka’s daughter, the
sponsorship was obtained in 2012.
However, Mrs Ngaleka was not
advised by Mr Serné or his team as to on whose behalf the
sponsor was obtained, who was the
sponsor or what was the amount of
sponsorship and / or what were the terms of sponsorship and so on. Mr
Serné and his team
instructed Mrs Ngaleka to approach the City
and request a bigger piece of land which would enable them to build a
proper structure
for the educare. Mrs Ngaleka managed to secure the
land at a purchase price of R33 000.00 on behalf of the first
respondent and
not the trust.
[9] The
trust asserted that it paid for the land from the City of Cape Town
and that was strenuously denied by
the respondents. The second
respondent stated that her mother, Mrs Ngaleka paid for the land in
which this educare was built. Notwithstanding,
the respondents did
not dispute that the property was constructed utilizing the funds
from the sponsor and / or the trust. Based
on these allegations,
after completion of the building, the trust commenced leasing the
property to the educare on 1 September
2012, despite the fact that
the property was still in the name of the educare. It appears once
more that Mrs Ngaleka was not aware
that she tied the first
respondent into a lease agreement when she signed the lease agreement
with the trust in August 2012.
[10] The
second respondent alleged that Mrs Ngaleka was an uneducated person
who attended school until Grade Four
(4) and was not fluent in
English. Mrs Ngaleka signed a deed of donation to the trust. Even if
the applicants required her to donate
ERF 22933 in order to proceed
with construction on the property, as this was what happened in this
situation, Mrs Ngaleka did not
understand the consequences of the
deed of donation that in essence was to part ways with the ownership
of the property. Mrs Ngaleka
was confronted with a request from the
applicant’s attorneys to complete certain documents including a
power of attorney
in order to effect transfer of the property to the
trust. She did not understand the language of the documents and was
not legally
represented in this process and did not understand the
impact of the papers she was requested to sign.
[11] Upon
realising that the owner of the property had been reflected as the
trust, Mrs Ngaleka made enquiries
to the trust and was advised that
the property was still in the name of “Mzamomhle”.
Somehow, she believed the explanation
by the representatives of the
applicants, but could not understand the difference that the property
was actually in the name of
the trust and not the educare. All these
changes happened during the period the second respondent had
temporarily relocated to
the Eastern Cape. However, the second
respondent stated that Mrs Ngaleka communicated all this information
to her as she always
assisted her mother in the educare.
[12] Immediately
after signing the documents that were indicated with a mark “X”
where to sign, the
applicant’s representatives advised Mrs
Ngaleka that she would need to pay an amount of R1500.00 to the
applicants. Upon
enquiring the reason for this payment, she was
advised that the payment was a contribution towards an insurance for
the property
and after five (5) years of payment, she would be
refunded an amount of R100 000 if she did not make any claim.
[13] Though
Mrs Ngaleka could not comprehend the exact meaning of this
explanation, she made religious monthly
payments to the applicants.
Mrs Ngaleka was constantly under stress and immense pressure as she
was in debt as a result of these
payments. In her understanding, the
applicants were supposed to assist her with the proper structure for
the educare and not her
paying the applicants. These payments were
too much to bear as the educare operated in a poor community and
other parents could
not afford to pay the monthly fees of R300.00 per
month.
[14] In
fact, Mrs Ngaleka told the second respondent that the applicants
placed her in a worse scenario than she
was in before she met them as
she was drowning in debt. She questioned the ‘philanthropic
assistance’ the applicants
promised to provide her, when
effectively she was stripped of everything. The last nail in the
coffin was her discovery and actual
understanding that the property
had been transferred to the trust in May 2016. According to the
second respondent, this did not
sit well with her. It was the second
respondent’s contention that Mrs Ngaleka endured this pressure
and was true to her word
and made these payments to the applicant
until her last breath in November 2016.
[15] Upon
the demise of Mrs Ngaleka in November 2016, the applicant demanded
Mrs Ngaleka’s personal files
from the second respondent. It
then became evident that the applicants wanted to take over the
running of the educare. They replaced
Mrs Ngaleka with the new
principal and further replaced her with a new bank signatory, one
“Aziza Schreuder.” The applicants
denied that it was the
trust that made these inroads to the educare. It was their assertion
that the respondents confused the trust
with the Centre for Early
Childhood Development
(“CECD”)
.
[16] The
second respondent claimed that the applicant’s ownership of the
property was fraudulent as it was
acquired by way of
misrepresentation. Mrs Ngaleka was misled by the applicant into
signing documents which effectively transferred
the property to the
applicant by way of donation. Objectively, it would be notable from
the documents themselves, that she was
unaware of what she was
signing, she thought the documents were in respect of a sponsorship
application, which the applicant’s
representatives informed her
of. She only appended her signature in the annotations and spaces
marked with an “X”.
[17] As
the property was acquired by fraudulent means, the Deed of Transfer
as proof of ownership does not guarantee
title and if transfer was
effected through fraud, there is no right created in favour of the
applicants, so said the respondents.
[18] The
applicants denied that the trust was formed in order to hijack the
property of the first respondent. The
applicants asserted that the
trust was established in order to support poverty relief and
establish welfare projects and self-help
projects for the poor and
the destitute.
[19] According
to the applicants, the trust leased its property to the first
respondent having been represented
by Mrs Ngaleka in August 2012 for
the purposes of an early childhood development centre. After the
founder and principal of the
first respondent passed away in November
2016, the applicants realised that the educare fell into arrears with
their rentals and
the educare was no longer run according to the
Norms and Standards for Early Childhood Development Programmes. The
second respondent
denied that the first respondent had a rental
agreement with the applicants, as payments were made towards
insurance contributions.
[20] According
to the applicants, the lease expired on 31 August 2017 and the
respondents failed to negotiate a
new lease. As a result thereof, a
final notice to vacate the property was given in November 2018. The
applicants further made their
intentions known that they intended to
replace the first respondent with an elected educare by the name of
Abinisa NPO.
[21] Gathering
from the affidavit that the City was required to file with regard to
the sale of the property to
the educare, it appears that on
questioning, the relationship between the applicants and the first
respondent and a further clearing
of the property to the trust, the
City was advised by the applicants’ attorneys that: (i) the
trust is a public benefit organisation
with a purpose similar to that
of the educare; (ii) the educare took transfer of the property from
the City without having the
finances to build on it; (ii) the trust
negotiated with the educare to improve the property and fund the
building on condition
that the property was transferred to the trust;
the trustees considered the financial risk of funding the building
without owning
the property and decided that the substantial
investment in the property, valued at R1 727 195.00
(excluding VAT) could
only be justified if the Erf was transferred to
the trust; the trust would enter into a long term lease agreement
with the educare
and architects and contractors had been appointed by
the trust, and the building was 70% complete at the time.
[22] The
City further contended that the issue of an alternative accommodation
is not legally relevant as the eviction
of the respondents does not
involve a residential property and the occupants would not be
rendered homeless.
[23] The
applicants submitted further that even if the respondents claim
ownership of the property, they knew at
least in 2016 that the
property is registered in the name of the trust but did nothing to
rectify the title deed. It was the applicants’
contention that
whatever claim the respondents had in that property has since
prescribed.
Points
in limine
[24] The
respondents raised some points in
limine
with regard to the
applicants’ application in that
first
, the third
applicant lacks the requisite authority to depose to the founding
affidavit. It appears that this issue has since been
put to bed as
the third applicant has furnished a letter of authority that he was a
trustee of the trust. As a result, this point
was not persisted with
at the hearing of this matter.
[25]
Second
,
that there is a material dispute of fact which the applicants foresaw
or should have reasonably foreseen when instituting these
proceedings. The second respondent challenged the applicant’s
allegation of ownership of the property. The second respondent
asserted that she does not claim to have inherited the property as
per the applicants’ allegations. However, the applicants’
ownership of the property is fraudulent based on misrepresentation.
In essence, the applicants misled Mrs Ngaleka (in her capacity
as the
principal of the first respondent which owned the property) into
signing a power of attorney in favour of Gerhard Smit (who
later
became the trust’s transferring attorney) in order to effect
transfer of the property by way of a donation to the trust.
This
happened after her deceased mother, Mrs Ngaleka bought the property
from the City of Cape Town for an amount of R33 000.00.
[26] The
applicants contended that the trust is the registered owner of the
property after it was donated to it
by the educare. It was the
applicants’ further contention that an unlawful occupier’s
claim to ownership is not a defence
in law to an eviction. The first
respondent did not seek or obtain an order from this Court declaring
that it is the rightful owner
of the property and directing the
Registrar of Deeds to rectify the title deed accordingly.
[27] It
was the applicants’ assertion that there is no
bona fide
dispute in these proceedings that could necessitate referral of this
matter to oral evidence. In any event, there was no relevant
dispute
of fact that was reasonably foreseeable by the applicants when
instituting the proceedings.
ISSUES
[28] This
Court is called upon to determine whether the respondents are
unlawful occupiers and if indeed they are,
whether the eviction of
the respondents would be just and equitable in the circumstances.
SUBMISSION
BY THE PARTIES
[29] The
applicants submitted that they are entitled to an eviction order. It
appears that the respondents’
refusal to vacate the property is
based on a challenge to the title of the trust. Accordingly, it is a
trite principle that the
lessee may not question the landlord’s
title as a defence in eviction proceedings after a valid termination
of the lease
agreement. In the circumstances, the respondents have
not placed a valid defence before this Court.
[30] According
to the applicants, it is trite law that in a case of eviction based
on
rei
vindicatio
the
owner can prove ownership by handing in the title deed which
indicates that the property is registered in its name.
[1]
The onus then shifts onto the occupier to prove that it has a valid
right of occupation. When there is a lease under which the
occupier
had occupation the lessor need not be the owner of the property to
evict the occupier on termination of the lease.
[2]
[31] In
a case such as the present, the applicant asserted that the party
seeking eviction need not allege and
prove any title to the property
from which the lessee is to be evicted. A lessee is bound by the
terms of the lease even if the
lessor has no title to the property
and, when sued for ejectment at the termination of the lease, it does
not avail the lessee
to show that the lessor has no title.
[3]
In
Mighty
Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and
Another
[4]
- the Court held:-
“
[28] So, what
is the common law position? As noted in Boompret, it is an
established rule that when being sued for eviction at the
termination
of a lease, a lessee cannot raise as a defence that the lessor has no
right to occupy the property. This flows naturally
from the rule that
a valid lease does not rest on the lessor having any title. In Fry’s
– for example – it was
stated that there “can be no
doubt that neither a sale nor a lease is void merely because the
seller or lessor is not the
owner of the property sold or leased.”
Unless expressly agreed, a lessor does not warrant that it is
entitled to let.
[29] As far back
as the 1893 Supreme Court of Transvaal decision in Salisbury, one
finds abundant reference in our common
law to the rule mentioned in
Boompret. For example, in Loxton the Supreme Court of the Cape of
Good Hope held in 1905 that “it
is not competent to a lessee to
dispute his landlord’s title.” It was prepared to apply
this rule in the context of
a lessee attempting to resist eviction
(though the summons in that case claimed only damages). In Loxton the
claim was brought
by the owners. In Kala Singh the Transvaal
Provincial Division in 1912 directly applied the rule in the context
of a sub-lessor
seeking to evict a sub-lessee after the termination
of the sub-lease. In a manner analogous to Mighty Solutions’
defence
in this case, the sub-lease attempted to resist ejectment on
the basis that the sub-lessor’s head lease with the owner of
the land was invalid. The Court rejected this argument because “as
between lessor and lessee it does not lie in the mouth
of the lessee
to question the title of his landlord.
[30] In Boompret
the Court considered whether a lessee can refuse to vacate a property
upon termination of a lease in circumstances
where the lessor does
not have title and where the lessee has acquired an independent right
to remain in occupation. The majority
was sympathetic to the
possibility that a lessee can rely on such a defence if the lessor
brought its eviction claim on the basis
of the actio locate, but not
if the lessor’s claim is based on a possessory remedy. The
majority regarded it as unnecessary
to decide this, because the
appellants were unable to establish that they had acquired an
independent title. The minority went
further and found that the rule
that a tenant may not dispute a lessor’s title did not apply,
where a claim for ejectment
was based on the actio locate. The
lessee’s “alleged independent titles being susceptible of
relatively easy proof,
may be raised as a defence,” it said.
[31] Boompret
therefore left the common law unchanged. The decision did not create
a specific Boompret “rule”
or “principle”.
The High Court applied the common law correctly. It was unpersuaded
that Mighty Solutions was able
to raise the defence that Engen no
longer has a right to occupy the premises. This would be true even on
the assumption (which
counsel for Engen conceded may be made) that
Engen no longer had title when it moved to evict Mighty Solutions.
…
[33] Mighty
Solutions’ submission that the common law rule “falls
away,” because its rationale does not
apply in this case, is
untenable. The rule is clear : a lessee or sub-lessee cannot rely on
a defence that its lessor or sub-lessor
lacks title in order to
resist eviction upon termination of the lease. Mighty Solutions is a
sub-lessee trying to do exactly that.
Under the common law Engen had
standing to evict Mighty Solutions. Questioning the rationale for the
rule takes us rather to a
separate question, namely, whether the law
ought to be developed”.
[32] In
expanding on whether this common law principle required to be
developed, it was submitted that the Constitutional
Court in the same
case concluded as follows:
“
[52] Logic and
the reality of commercial practice support the rule. In the context
of retail, commercial and industrial leases,
the property-owning
entity seldom leases the property out. Frequently it is an operating
arm or subsidiary that does so. A defence
which allowed a lessee
without title to remain in rent-free occupation until the lessor
proved its title could easily be exploited.
A dispute over a lessor’s
title, regardless of its merits, could pave the way for prolonged
occupation by lessees acting
in bad faith. As Counsel for Engel
emphasised, the position of sub-lessors could be even worse, as they
still have to meet their
obligations in terms of the head lease
during the relevant periods. The argument made by Mighty Solutions
that it always remains
open to the original title-holder to evict a
recalcitrant sub-lessee misses the point : owners are often reluctant
to deal with
sub-lessees and insist that their lessee does so.
…
[56] There is no
apparent reason to develop the common law in this case. The rule does
not offend the spirit, purport and
objects of the Bill of Rights, or
the values of our constitutional democracy. Fuel retailers like
Mighty Solutions and the numerous
applicants preceding it in cases
like Gundu Service Station may have justified grievances about the
structure of the fuel industry
and the conduct of large oil companies
in their dealing with retailers. However, Mighty Solutions chose the
wrong avenue to prosecute
these grievances. The High Court suggested
approaching the Competition Tribunal if anti-competitive practices
were alleged. To
relax the common law rule as to allow Mighty
Solutions to remain in occupation until Engen proved valid title
would be unjust and
commercially reckless and might well have
far-reaching and unnecessary implications for the law of lease and of
contract in general.
…
[67] Under the
common law of lease Mighty Solutions may not question Engen’s
title as a defence in eviction proceedings
after the valid
termination of the lease agreement between it and Engen. The common
law position does not call for the development
on the facts of this
case. The enrichment argument cannot be entertained. Engen has
standing to evict Mighty Solutions.”
[33] The
respondents, in this regard dispute that the trust is the owner of
the property. Their contention has
always been that Mrs Ngaleka, the
deceased was misled into donating the property and giving power of
attorney to transfer the property
to the trust. In fact, it was the
respondent’s submission that the property donation and a
subsequent transfer of the property
into the name of the trust, which
strategically shared a name “Mzamomhle” with the first
respondent was unlawful, and
in addition, a valid lease agreement was
not entered into between the applicants and the first respondent.
[34] At
all times material thereto, Mrs Ngaleka believed that the monthly
payments to the applicant was the first
respondent’s
contribution towards the property insurance. Even then, she was
labouring under the hope that should there not
be any claim lodged by
the first respondent for a period of five (5) years, she would be
entitled to a refund of R100 000.00. The
amounts paid by Mrs Ngaleka
were not in respect of rentals as contended by the applicants. After
growing concerns and upon inquiring
about the exact owner of the
property at some point being referred to as belonging to the trust,
Mrs Ngaleka was assured that the
property was still in the name of
“Mzamomhle.”
[35] It
was on that basis that the respondents challenged the trust’s
title to the property and contended
that they hold an independent
title to the property. In any event, it was submitted that it was not
competent for the applicants
to conclude a lease with the first
respondent whilst the property was still legally owned by the same
first respondent. The lease
agreement was signed by Mrs Ngaleka on 17
August 2012 and the commencement date was 1 September 2012. The
property was in fact
transferred to the applicant on 15 April 2016,
and it was stated that upon Mrs Ngaleka becoming aware of this
transfer, it bothered
her and unfortunately that is the same year
that she died without taking actions upon her discovery. According to
the respondents,
due to the similarity in the names of the Trust and
Educare, Mrs Ngaleka was oblivious to the fact that the property was
now registered
in the name of the trust.
[36] It
was the respondents’ submission that even if it could accept
that the applicants were the lessors,
it is trite that the lessor
must give the lessee vacant possession of the property and warrant
that no one else has the right in
law to disturb the lessee’s
use and enjoyment of the property.
[5]
In the present matter, the applicants as lessors could not warrant
that no one else had the right in law to disturb the lessee’s
use and enjoyment of the property as the entity with the superior
title or right in law to disturb the lessee’s use and enjoyment
of the property, was the very lessee. In leasing the property to the
educare, the trust was neither the owner, nor agent, and could
not
warrant that no one else has the right in law to disturb the lessee’s
use and enjoyment of the property.
[37] The
respondents’ response to this argument was that the applicants
are not upfront with their analysis
and they pointed out that the
applicants’ reliance on
Mighty Solutions
(s
upra
)
is selective. It omitted paragraph 32 which stated as follows:
“
The facts of
this case do not require this Court to consider – as the Court
did in Boompret – whether a lessee can rely
on a defence that
the lessor lacks valid title in circumstances where the lessee
asserts its own independent title to the premises.
Mighty Solutions
did not establish that it had acquired any independent title to the
premises […]
”
[38] It
was argued by the respondents that the current matter is
distinguishable from Mighty Solutions. The Constitutional
Court in
Mighty Solutions summarised the Boompret
[6]
judgment as follows:
“
In Boompret the
Court considered whether a lessee can refuse to vacate a property
upon termination of a lease in circumstances where
the lessor does
not have title and where the lessee has acquired an independent right
to remain in occupation. The majority was
sympathetic to the
possibility that a lessee can rely on such a defence if the lessor
brought its eviction claim on the basis of
the actio locate; but not
if the lessor’s claim is based on a possessory remedy.
”
[7]
Based
on the
actio locate
principle, the respondents contended that
the educare has an independent title to the property.
[39] Further,
it was submitted by the respondents that the
Mighty Solutions
(
supra
) is more distinguishable on the basis that the facts of
it relate to commercial leases where a proper agreement was in place.
In
the contrary the applicants portrayed themselves as a
“philanthropic trust” and the so-called unlawful occupier
is
an educare which is run and serviced by destitute persons within a
poor community. In any event, in this matter, the applicants
and the
first respondent did not conclude a valid lease agreement, which it
alleges is the basis of this eviction.
DISCUSSION
[40] To
the extent that both the applicants and the respondents raised some
preliminary points,
albeit
informally, this court will deal
with all of them for the sake of completeness.
Condonation
[41] The
applicants were late in filing their replying papers, and likewise,
the respondents had difficulty in
finding legal representation when
their erstwhile attorneys withdrew based on financial instructions.
It is therefore undeniable
that these proceedings took a considerable
time to be finalised. As both parties yearn for finality in these
proceedings, it would
be appropriate and in the interest of justice
for this Court not to occupy itself with technical issues
unnecessarily. In the result,
condonation is granted, both to the
applicants and the respondents for their delay in filing papers
timeously and prosecuting the
matter on time.
First
respondent unrepresented
[42] The
applicants’ Counsel when addressing the Court on the
preliminary points submitted that the first
respondent is not
represented before this Court and further, the second respondent did
not depose on behalf of the first respondent.
However, it was pointed
out to the applicants’ Counsel that the second respondent in
opposing this application stated in
her answering affidavit that in
considering her family’s historical involvement in the
activities of the first respondent,
she was duly authorised by the
board of the first respondent to depose to the affidavit on its
behalf. There was no need for the
board members to file any
confirmatory affidavits as suggested by the applicants. A copy of the
resolution was then attached in
the answering affidavit. In my view,
the said averment and a copy of the resolution was enough to indicate
that the second respondent
was authorised to oppose this application
and / or represent the respondents, including the first respondent in
these proceedings.
Dispute
of Fact
[43] The
second respondent contended that the applicants foresaw or should
have reasonably foreseen the material
dispute of fact, as the first
respondent challenged the applicants’ ownership of ERF 22933
Wallacedene Kraaifontein. The
Court noted this point and agrees with
the applicants that the issue of ownership of this property is not a
matter for determination
before this court. The eviction application
is capable of being decided on the papers placed before it. If the
respondent is found
to be an unlawful occupier, the apex court in
recent decisions, insisted that the court hearing an eviction
application should
call for an investigation of surrounding
circumstances before the court grants a just and equitable order of
eviction. With that
background, this Court will keep that in mind
when the merits are traversed later in the judgment.
Second
respondent’s opposition based on hearsay
[44] The
applicants’ Counsel submitted that the applicants concluded a
lease agreement with Mrs Ngaleka.
The second respondent does not have
any personal knowledge of the facts that she deposed on, more
especially that when the property
was donated to the trust and
subsequently transferred to the same trust, she was not in the
Western Cape, but in the Eastern Cape.
The second respondent indeed
confirmed that she was not in the Western Cape during that period.
However, throughout her growing
years, she was part of this educare
and her mother kept her abreast and informed her about what was
happening at the educare as
she worked and or assisted her mother in
the educare when she was in the Western Cape. On her return from the
Eastern Cape in 2016,
it was at the time her mother, Mrs Ngaleka
realised the effect of the power of attorney that she signed and the
fact that she was
drowning in debt as a result of the payment she
made to the applicant all the years. Mrs Ngaleka advised the second
respondent
that she did not intend to transfer ownership of the
property or sign a power of attorney which would have the effect of
permitting
transfer of the property to the applicants.
[45] Similarly,
the deponent Gert Albertus Van Rhyn
(“Mr
Van Rhyn”)
to
the applicants’ application was not a trustee when the
applicants entered into the alleged lease agreement with the first
respondent. He replaced Susanna Jacoba Frank
(“Ms
Frank”)
who
was the trustee of the trust as evidenced by the Letters of Authority
at least until 24 February 2017
[8]
.
Mr Van Rhyn became the trustee of the trust, as evidenced by the
Letters of Authority on 01 September 2017
[9]
.
Equally, Mr Van Rhyn has no knowledge of the facts he deposed on.
[46]
Section
3
of the
Law of Evidence Amendment Act, 45 of 1988
states that:
3. Hearsay
evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal
or civil proceedings, unless
–
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such
proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such
proceedings; or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such
evidence depends;
(vi) any
prejudice to a party which the admission of such evidence might
entail; and
(vii) any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence
should be admitted in
the interests of justice.”
[47] As
stated, the test for the admissibility of hearsay evidence is whether
it is in the interest of justice
to admit such evidence. It is indeed
so that each case should be decided on its own merits. The first
respondent was founded by
the second respondent’s mother some
twenty-two (22) years ago. It was the second respondent’s
evidence that besides
the brief period that she went to the Eastern
Cape, she worked and assisted her mother in the educare and she was
familiar with
the operation of the educare. Regardless of her
mother’s lowest level of education, the educare in their
capable hands flourished,
and that on its own was not disputed.
[48] The
applicants did not file a formal objection on the second respondent’s
locus standi
to depose on behalf of the respondents. However,
the second respondents filed an objection to Mr Van Rhyn’s
locus standi
in these proceedings, but same was not pursued at
the hearing of the matter. Although there was no formal application
in this regard,
to the extent that this court was asked to make a
finding on this point, it will be dealt with on that basis.
[49] The
facts deposed to by the second respondent are hearsay in nature.
Notwithstanding, the level at which she
was
au fait
with the
establishment and operations of this educare demonstrated that she
had internal knowledge of the early learning facility
that was her
mother’s brainchild. The evidence tendered by the second
respondent could be easily ascertainable as in some
respects it was
corroborated by documentary evidence and further confirmed by the
applicants.
[50] In
addition, the fact that shortly after the demise of her mother, she
stepped into her shoes and continued
to run the educare with the
third respondent is a reflection of her prior knowledge of the
operations of the educare. That on its
own gave credence to an
assertion that the second respondent had an intimate knowledge of the
educare based on the legacy that
was passed on to her by her mother.
[51] The
Supreme Court of Appeal in
Giesecke
& Devrient v Minister of Safety and Security
[10]
stated
that the courts’ power bestowed upon by
s 3
(1) (c) is
discretionary:
“
[31] …
The section requires that the court should have regard to the
collective and interrelated effect of all the considerations
in paras
(i) – (iv) of the section and any other factor that should, in
the opinion of the court, be taken into account.
The section thus
introduces a high degree of flexibility to the admission of hearsay
evidence with the ultimate goal of doing what
the interests of
justice require.”
[52] Most
importantly, such considerations are that the second respondent is
party to these proceedings, and the
nature of the proceedings should
be taken into account holistically; the nature of the evidence
tendered; the purpose for which
the evidence is tendered, the weight
/ or the probative value of the evidence; the fact that Mrs Ngaleka
has passed on and unable
to give evidence and on whom the probative
value of the evidence depends; the amount of prejudice to the
applicants and the respondents
if the evidence is rejected; that the
respondents are sought to be evicted from the property, the legacy of
which was built by
Mrs Ngaleka; the fact that Mrs Ngaleka was an
unsophisticated person and was not legally represented when he dealt
with the trust;
the fact that she bought the land where this property
was built, this Court is of the opinion that it is in the interest of
justice
that the hearsay evidence of the second respondent should be
admitted.
Eviction
proceedings – Was the lease agreement upon which the eviction
proceedings are based valid in law.
[53] It
is common cause that in any contractual relationship, there should be
a meeting of minds. There could be
no one sided approach. So, the
principle of legality is one of the requirements for the formation of
a valid contract. In instituting
these proceedings, the applicants
purely stated that the property was leased to the first respondent
for the purposes of operating
the Mzamomhle centre. Though the
applicants pitched themselves as a “philanthropic trust”
that helped the needy and
destitute, what comes out strongly from its
founding affidavit is that this eviction is based on a breach of
contract. The proceedings
were instituted in order to protect its
investment which is worth almost R2 million. The purpose and
objectives of this trust became
relevant in their replying affidavit.
The applicant’s further concerns were that, when Mrs Ngaleka,
the founder and the principal
of the first respondent passed away at
the end of November 2016, the second and third respondents, who lack
the requisite qualification,
training and expertise to operate the
Early Childhood Development Centre, took over control of the first
respondent. As a consequence
thereof, the first respondent fell into
arrears with the rental and the Mzamomhle centre was no longer run
according to the National
Norms and Standards for Early Childhood
Development Programmes
(“Norms and Standards”).
[54] The
lease expired on 31 August 2017. The respondents failed to vacate the
property, but held over in unlawful
occupation of the property
despite having no contractual or other basis in law. Hence the
applicants instituted these proceedings.
[55] As
stated above, upon considering the applicants’ founding papers,
the reasons for the institution of
these eviction proceedings is the
respondents’ breach of contract, and the respondents’
subsequent status as unlawful
occupiers.
[56] The
Court is faced with an unprecedented scenario where the Mzamomhle
Foundation Trust, (the lessor) with
an address in Stellenbosch leased
the premises situated at Grootboom Street, ERF 22933 Wallacedene
Kraaifontein to Mzamomhle Educare
(the lessee) who was the owner of
the property situated at Grootboom Street, ERF 22933 Wallacedene
Kraaifontein in September 2012.
Strangely, the two entities share the
same name “Mzamomhle”. Perhaps in their eyes, the fact
that it erected a structure
on the property entitled it to call for
rental from the owner of the property. That cannot be.
[57] It
is trite that the lessor must give the lessee vacant possession of
the property and warrant that no one
else has the right in law to
disturb the lessee’s use and enjoyment of the property. In the
present matter, the applicants
as lessors could not warrant that no
one else had the right in law to disturb the lessee’s use and
enjoyment of the property
as the entity with the superior title or
right in law to disturb the lessee’s use and enjoyment of the
property, was the
very lessee. In the present matter, the applicants
as lessors could not warrant that no one else had the right in law to
disturb
the lessee’s use and enjoyment of the property as the
entity with the superior title or right in law to disturb the
lessee’s
use and enjoyment of the property, was the very
lessee. The applicants might conveniently hide behind the fact that
the lessor
need not be the owner of the property, it might be so in
the Mighty Solutions
(supra).
However, each case has to be
judged according to its own merits. In fact, the manner in which the
entire contract was concluded
is absurd. It smacks of total disregard
of the principle of legality. The contract itself is wildly
illogical, ridiculous and mostly
unreasonable, if regard is had to
the fact that the so-called agreement was concluded with an innocent
and uneducated person. In
any event, even if the first respondent was
not duped into leasing its own property, Mrs Ngaleka disavowed this
lease agreement.
According to Mrs Ngaleka’s understanding, she
did not pay rent for this property, in her knowledge, she was
contributing
towards the property insurance. In fact, she was totally
dismayed by the fact that the educare did not own the property in May
2016. Somehow, the applicants hoodwinked and / or pulled the wool
over Mrs Ngaleka’s eyes, by making it sound and look like
“Mzamomhle” a familiar name to her, owned and was in
control of the property.
[58] Surprisingly,
upon the City being asked whether it would provide alternative
accommodation should the eviction
be granted, its response was that
“
The City cannot commit upfront to the provision of the
alternative accommodation to those currently occupying Educare should
the
eviction succeed as this depends on the assessment of various
factors, including the evictees’ personal circumstances and
whether an alternative accommodation is available for them. The Trust
will most likely still operate an educare facility from the
property
.” It appears that the City’s response was
based on the premise that the trust and the educare were the same
entity.
Conveniently so, it did not realise that the trust and the
educare as cited in these proceedings are different entities. In
addition,
the City’s Counsel stated that the City has no
obligation to accommodate the respondents as they do not fall in the
category
of “homeless persons”. It did not, for a moment
comprehend that the Constitutional Court in Grootboom
(supra)
once ordered various spheres of government including the City to
devise, fund, implement and supervise measures to provide relief
to
those in desperate need. The City might argue that the first
respondent is not the children’s primary residence, however,
the children’s right to basic education is fundamental and
should be protected at all costs. Coincidentally, this is the
same
area that had the socio economic issues in 2000 already that the City
does not want to involve itself with.
[59] In
fact, the City knew that the two entities are different when it
authorised the transfer of the property.
The City authorised the
transfer of the property from the educare to the trust on the basis
that the trust would use it for the
same purpose for which it was
approved by the City when the educare bought the property which in
addition was consistent with the
conditions of the sale agreement.
Nonetheless, the City did not confirm these facts from the first
respondent nor Mrs Ngaleka before
it authorised the transfer of the
property to the trust. It appears that the version or views of the
owner of the property on these
serious allegations was not important,
as none was called for by the City. More importantly, Mrs Ngaleka was
an unsophisticated
vulnerable woman and was not legally represented
throughout this process.
[60] Ironically,
the City failed to take cognizance of the fact that this application
was brought purely on a commercial
basis. There is no other
relationship between the applicants and the respondents, according to
the applicants, other than that
of a lessor and lessee. The
applicants considered the financial risk of funding the building
without owning the property and decided
that the substantial
investment in the property, valued at R1 727 195.00
(excluding VAT) could only be justified if the
Erf was transferred to
the trust. Quite contradictory, the applicants stated that it did not
intend to take over nor hijack the
respondents’ educare. It
totally forgot that it stated in its application that, once the
respondents and all other persons
who unlawfully occupy Erf 22933
Wallacedene Kraaifontein are evicted, the applicants intends
replacing it with Abinisa NPO so that
all children enrolled at
Mzamomhle Educare will not be negatively impacted.
[11]
This statement is puzzling and goes against the assurance that the
applicants would not be taking over the respondents’
operations.
[61] In
all earnest, if the applicants are upfront with the fact that the
relationship between the applicants and
the respondents is that of
lessor and lessee, it then follows that the respondents and the
vulnerable children will all be left
to learn in the street and
unaccommodated should this Court find that it is just and equitable
to evict the respondents. That is
where the City’s involvement
becomes crucial. This situation inadvertently brings back the
destitute child to a similar situation
it was twenty-two years ago.
If the contractual lines have to be drawn, there is no way that the
new entity Abinisa NPO would replace
Mzamomhle Educare and take over
its operations should the eviction be granted. The applicants are
therefore not upfront with their
motive before this Court.
[62] Further,
the applicants made the situation even more murkier when on the day
of Mrs Ngaleka’s death,
the representatives of the applicants
and / or CECD attended at Mrs Ngaleka’s house and not to grieve
with the family, but
to demand Mrs Ngaleka’s Identity Document
and Death Certificate for an undisclosed reason. Shortly thereafter,
one Aziza
Schreuder who was the representative of the applicants
replaced Mrs Ngaleka as the new signatory in the first respondents’
banking account. As a result, the said Aziza Schreuder diverted funds
of the first respondent to the new banking account. The applicants
were further instrumental in installing a new principal and her
assistant after the demise of Mrs Ngaleka at the first respondent.
With all these actions, the applicant denied that it intended taking
over the respondent’s educare. Clearly, since the trust
and the
CECD representative all took their mandate from the first applicant
and or his representative, it would be expected of
the respondents
not to know who they dealt with as they are unsophisticated persons.
If they did not know the difference between
the first respondent and
the trust as they both shared the name “Mzamomhle” it is
highly probable they did not know
an entity by the name CECD, as the
applicants disputed that the said Aziza was sent by them.
[63] In
my view, the alleged lease agreement is peppered with illegality, and
on the face of it unconscionable
and contrary to public policy. Even
if the lease agreement would be said to be legal, the question to be
asked by this Court is
whether the applicants by instituting the
eviction proceeding based on the so-called contract, are not
hampering the best interests
of the child as entrenched in section 28
(2) of the Constitution and a right to basic education as protected
in section 29 (1)
of the Constitution.
[64] The
Constitutional Court stated that the proper approach to the impugned
contract or contractual terms is
to determine whether the term
challenged is contrary to public policy as evidenced by the
constitutional values, those found in
the Bill of Rights –
See
Barkhuizen v Napier
[12]
.
The majority judgment explained that public policy as informed by the
constitution imports “notions of fairness, justice
and
reasonableness. It also recognised that public policy, in general,
requires parties to honour contractual obligations that
have been
freely and voluntarily undertaken.
[65] In
Barkhuizen (supra),
it was noted that public policy is deeply
rooted in our constitution and the values which underlie it. It was
state at paragraph
27:
“
Ordinary
constitutional challenges to contractual terms will give rise to the
question of whether the disputed provision is contrary
to public
policy. Public policy represents the legal convictions of the
community; it represents those values that are held most
dear by the
society. Determining the content of public policy was once fraught
with difficulties. That is no longer the case. Since
the advent of
our constitutional democracy, public policy is now deeply rooted in
our Constitution and the values that underlie
it. Indeed, the
founding provisions of our Constitution make it plain; our
constitutional democracy is founded on, among other
values, the
values of human dignity, the achievement of equality and the
advancement of human rights and freedoms, and the rule
of law. And
the Bill of Rights, as the Constitution proclaims, ‘is a
cornerstone’ of that democracy; it enshrines the
rights of all
the people in our country and affirms the democratic [founding]
values of human dignity, equality and freedom’
What public policy is
and whether a term in a contract is contrary to public policy must
now be determined by reference to the values
that underlie our
constitutional democracy as given expression by the provisions of the
Bill of Rights. Thus a term in a contract
that is inimical to the
values enshrined in our Constitution is contrary to public policy and
is, therefore unenforceable.”
[66] In
Beadica
231 CC and Others v Trustees for the time being of the Oregon Trust
and Others
[13]
the Constitutional Court (minority judgment) sought assistance from
other jurisdictions with regard to divergent approach in these
contractual – constitutional matters and stated as follows:
“
[182]
German law, like ours, makes a distinction between invalidation on
public policy grounds and the general operation
of good faith. The
former is governed by Articles 134 and 138 of the German Civil Code
(Burgerliches Gesetzbuch or BGB), the latter
primarily by Article
242.
[183]
Article 134 provides that a legal transaction that violates a
statutory prohibition is void, unless the
statute leads to a
different conclusion. Article 138 (1) provides that a legal
transaction that is contrary to public policy is
void. Article 138
(2) adds:
“
In particular,
a legal transaction is void by which a person, by exploiting the
predicament, inexperience, lack of sound judgment
or considerable
weakness of will of another, causes himself or a third party, in
exchange for an act of performance, to be promised
or granted
percuniary advantages which are clearly disproportionate to the
performance.”
Likewise,
the respondents explained that Mrs Ngaleka was an unsophisticated
person and far away from understanding legal concepts.
Such
allegations are backed up by the documentary evidence that was filed
of record. In many instance, her signature is not consistent
in the
documents she signed. ‘
Burkhuizen
requires
that in a case of that kind the application of public policy in
determining the unconscionableness of contractual terms
and their
enforcement must be done in accordance with notions of fairness,
justice and equity and reasonableness cannot be separated
from public
policy. Public policy takes into consideration the necessity to do
simple justice between individuals and is informed
by the concept of
ubuntu’
[14]
.
[67] In
Beadica
(supra)
the Constitutional Court expanded further as
follows:
[230] … “
The
implementation of the eviction order for the failure to notify the
renewal of the lease agreement timeously must be weighed
up against
the context already described. Its implementation must be weighed up
against the principles of fairness and ubuntu which
provides for a
more expansive analysis which would include the inequality in
bargaining power…
[231]
This approach leaves space for courts to scrutinise contractual
autonomy whilst at the same time allowing
courts to refuse
enforcement of contractual terms that conflict with constitutional
values, even though the parties may have consented
to them. Public
policy must take all these considerations into account and not
implement contractual autonomy at the expense of
transformative
constitutionalism. The appropriate balance can readily be achieved
upon a recognition of an “underlying moral
or value choice”
in which the constitutional values of ubuntu feature in this
constitutionally transformative space”.
[15]
This
suggests that more analysis in this matter is needed more so that the
parties in this contract had an unequal bargaining power.
[68] This
Court accepts that the contract that was entered into between the
applicant and the respondents is unenforceable
due to its illegality.
It appears that even if the contract was legal, the rights of the
children still remain paramount.
In
AB and Another v Pridwin Preparatory School and Others,
[16]
the Constitutional Court (minority judgment) recently had an
opportunity to consider the rights of children and the unconscionable
contracts and had this to say:
“
[91] Therefore,
while Burkhuizen demands that contracts freely and consciously
entered into must be honoured, the contractual autonomy
of parties is
curtailed when dealing with the right of basic education and the best
interests of the child. In these instances,
the enforcement of the
contract must be subject to the constitutional precepts outlined
above because of the direct applicability
of rights in the Bill of
Rights. Even if the more general public policy approach is preferred,
the result will effectively be the
same: it is against public policy
to enforce a contractual claim that infringes the constitutional
rights of children who are not
parties to the contract.”
[69] This
then brings the Court to the ineluctable conclusion that after the
construction of the premises, the
signature of the purported lease by
the parties, the purported donation and transfer of the property, to
the trust, in so doing
the applicants controlled and managed the
first respondent as its own property, hence no clear lines are drawn
between the two
entities. The fact that Mrs Ngaleka was totally
oblivious to the fact that Mzamomhle Foundation Trust and Mzamomhle
Educare was
not the same entity was in fact confirmed by her
complaints and frustrations that she communicated to the second
respondent.
[70] In
fact, the intention of the applicants to take over the operations of
the first respondent was apparent
shortly after Mrs Ngaleka’s
demise, when they questioned the qualifications of the second and
third respondents whereas,
Mrs Ngaleka’s lack of qualifications
was tolerated and inconsequential. The level of disrespect that was
demonstrated by
the applicants is appalling, more especially when the
departure of Mrs Ngaleka was still fresh in their minds, the
applicants and
their representatives in the form of ECDC went on to
demand the first respondent’s books, ID documents and death
certificate
of Mrs Ngaleka and changing the management of the first
respondent without calling for the board meeting of the first
respondent
and table their issues at the meeting where all Board
members are present. With all its behaviours and actions, the
applicants
disputed that it was not attempting to take over the
administration and control of the educare.
[71] Moreover,
it was evident at that point that the trust was in a mission to fully
acquire its property investment
when it started replacing personnel
in the first respondent without negotiating with the respondents but
rather extract them out
of the institution that they worked for
throughout their lives.
[72] Perhaps
the applicants were justified in taking authority for its entitlement
to eviction from the Mighty
Solutions judgment, as its approach to
the eviction was based purely on the alleged contract and that in
such circumstances, there
is no requirement to own title or prove
ownership of the property. However, in a situation where the
existence of a binding contract
is denied, or is said to be
non-existent it is clear that the principle in the Mighty Solutions
judgment is not applicable in this
regard.
[73] In
Port
Elizabeth Municipality v Various Occupiers
[17]
the
Constitutional Court emphasised the approach that courts must adopt
an active role in adjudicating eviction matters and stated:
“
[23]
The court
is thus called upon to go beyond its normal functions and to engage
in active judicial management according to equitable
principles of an
ongoing, stressful and law-governed social process. This has major
implications for the manner in which it must
deal with the issues
before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it
exercises its powers and
the orders it might make. The Constitution and PIE require that, in
addition to considering the lawfulness
of the occupation the court
must have regard to the interest and circumstances of the occupier
and pay due regard to broader considerations
of fairness and other
constitutional values, so as to produce a just and equitable
results.
”
[74] Before
this Court, it appears that the applicants are selective in who
exactly has to be evicted. If the children
would not be impacted
negatively as they suggested, it follows then that this particular
fact should have been clearly pleaded
in the founding papers and not
be hidden elsewhere in the annexures.
[75] Sachs
J in
Port Elizabeth Municipality (supra)
at paragraph 32
stated:
“
The court is
not resolving a civil dispute as to who has rights under land law;
the existence of unlawfulness is the foundation
for the enquiry, not
the subject matter.
”
Similarly
in this case, this Court will not occupy itself about who owns the
property, as this is not the point for determination
at this stage.
It is a sad situation that the basis of this eviction is on the face
of it an unlawful lease agreement.
[76] Even
though this Court is not called upon to resolve a clear dispute of
facts from both the applicants and
the respondents, equally or at the
same breath, it cannot simply fold its arms and allow the applicants
to treat the respondents
with disdain. Similarly, this Court cannot
close its eyes to the allegations of fraud and misrepresentation of
facts to Mrs Ngaleka
by the applicants. In fact, it is this Court’s
finding that it was not competent for the applicant to enter into a
lease
agreement with the respondents, in circumstances where the
property at the time belonged to the first respondent. In any event
it makes sense that Mrs Ngaleka was not aware of the lease agreement
that she signed in August 2012 because at that time the property
belonged to the first respondent. I find it ridiculous for the
applicants to even suggest that the first respondent leased its
property for a period of five (5) years, whereas in fact the said
transfer to the trust happened in April 2016. Actually, the
allegations of misrepresentation and fraud have substance and warrant
some investigation in this regard.
[77] As
a consequence thereof, the eviction of vulnerable children and the
respondents is not competent at this
stage as there was no lease
agreement that the applicant relied upon for the application for
eviction. Further, the applicants
stated that they had a valid title
deed to prove its ownership. The circumstances leading to the
purchase of the land by the first
respondent calls for investigation.
Again, the denial by the respondents of a valid donation, the power
of attorney and a subsequent
transfer of the property to the
applicants calls for the investigation of allegations of fraud and
misrepresentation on the part
of the applicants.
[78] Furthermore,
the applicants paraded the trust as a ‘philanthropic
organisation’ that assisted
in the welfare projects for the
poor and destitute. The applicants have to be investigated as to what
extent have they implemented
its objectives and strategies, if its
purported assistance has a potential of leaving the respondents and
vulnerable children more
destitute than they were before the arrival
of the applicants.
[79] In
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another,
[18]
the Constitutional Court held that:
“
As starting
point, this Court in Machele held that “[t]he application of
PIE is not discretionary. Courts must consider PIE
in eviction
cases.” Furthermore, this Court in Pitje held that courts are
not allowed to passively apply PIE and must “probe
and
investigate the surrounding circumstances.”
The
surrounding circumstances in this case are such that this Court in
its findings should not be engaged in a ticking box exercise
as
suggested by the applicants. Contrary to what the applicants want
this Court to believe that there were clearly defined lines
between
the applicants and the respondents’ relationship, the evidence
at hand suggest a more shadowy relationship. Hence
it calls for a
thorough investigation.
[80] In
my judgment, the contract of lease relied on by the applicants is
void
ab initio.
In the circumstances, it has no force and
effect as it is overwhelmingly tainted with illegality.
[81] In
the circumstances, the following order is made:
81.1
Condonation is granted to both applicants and respondents;
81.2 The
application for the eviction of the respondents is dismissed with
costs.
MANTAME
J
WESTERN
CAPE HIGH COURT
I
agree :
NUKU,
J
WESTERN
CAPE HIGH COURT
FOR
APPLICANTS:
ADV
J WILLIAMS
021 422
2167/0788033110
jlwilliams@capebar.co.za
Instructed
by:
Celeste
Holmes
celeste@holmesattorneys.co.za
FOR
2
ND
RESPONDENT:
MR
MJ XABA
079 835
7179
MduduziX@legal-aid.co.za
FOR
5
th
RESPONDENT:
ADV
KHOZA
078 804
8813
sibonilekhoza@capebar.co.za
Instructed
by:
Thobile
thobile@magugaattorneys.co.za
Heard
on:
29
July 2021
Judgment
delivered on:
17
September 2021
[1]
Smith, Eviction and Rental Claims Lexis Nexus, p 1-3 (“Smith”)
[2]
Smith p 1-4
[3]
Harms, Amlers Precedents of Pleadings, 2018, p 191 and related cases
[4]
2016 (1) BCLR 28 (CC)
[5]
“Principles of the law of sale and lease” –
Bradfield, Kahn and Lemann (2013) Juta and Company Ltd, at page
150
[6]
Boompret Investments (Pty) Ltd & Another v Paardekraal
Concession Store (Pty) Ltd
1990 (1) SA 347
(A) at 351
[7]
Mighty Solutions at paragraph 30
[8]
GVR
2 – Record page 31
[9]
GVR
18 – Record page 243
[10]
See (749/10)
[2011] ZASCA 220
(30 November
2011); 2012 (2) SA 137
SCA
[11]
Record page 91
[12]
[2007]
ZACC 5
; 2007 (5) SA323 (CC)
[2007] ZACC 5
; ;
2007 (7) BCLR 691
(CC) at para
[30]
[13]
(CCT
109/19)
[2020] ZACC 13
;
2020 (5) SA 247
(CC);
2020 (9) BCLR 1098
(CC) (17 June 2020)
[14]
See
Beadica
(supra) at para [201]
[15]
See
Beadica
(supra) at para [230] and [231]
[16]
(CCT
294/18)
[2020] ZACC 12
;
2020 (9) BCLR 1029
(CC);
2020 (5) SA 327
(CC) (17 June 2020) para 91
[17]
[2004] ZACC 7
; 2005(1) SA 217 (CC);
2004 (12) BCLR 1268
CC at para
23
[18]
(CCT 108/16)
2017 ZACC 18
;
2017 (8) BCLR 1015
(CC);
2017 (5) SA 346
(CC) (8 June 2017) at para [43]