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[2021] ZAWCHC 207
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Nelson and Another v B.S and Others (2350/2020) [2021] ZAWCHC 207 (19 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE NO:
2350/2020
In the matter between:
NAZEEM
NELSON
First Applicant
NADIA
NELSON
Second Applicant
and
B[....]
S[....]
First Respondent
S[....]
S[....]
Second Respondent
Z[....]
S[....]
Third Respondent
N[....]
S[….]
Fourth Respondent
(In her personal capacity
and as guardian of
any minor children holding
title under her)
N[....]
S[….]
Fifth Respondent
R[....]
B[....]
Sixth Respondent
R[....]
S[….]
Seventh Respondent
Y[....]
H[….]
Eighth Respondent
ALL OTHER OCCUPANTS
OCCUPYING NO. [….],
CAPE TOWN,
UNDER THE FIRST TO
EIGHTH RESPONDENTS
Ninth Respondent
CITY OF CAPE
TOWN
Tenth Respondent
Bench: P.A.L. Gamble
Heard: 26 August 2021
Delivered: 19 October 2021
This judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 15h00 on Tuesday 19 October
2021.
JUDGMENT
- DATE OF EVICTION
GAMBLE, J:
INTRODUCTION
1.
On 29 March 2021 this Court made an order
that the first to ninth respondents (hereinafter collectively
referred to as “the
respondents”) were in unlawful
occupation of the applicants’ dwelling house situated at [….],
Cape Town (“the
premises”) and that they were thus liable
to be evicted therefrom. The matter was postponed to 26 July 2021 and
the date
for the eviction was held in abeyance pending certain
further directions by the Court in regard to the procurement of
further information
relevant to the fixing the date of eviction.
2.
To that end, the Court directed the tenth
respondent (“the City”) to file a supplementary report
within three weeks
regarding the availability of suitable alternative
accommodation owned by the City, or of which the City was aware,
which might
be accessed by the respondents when they are evicted. The
parties were afforded an opportunity to address the issues raised in
the City’s report by way of supplementary affidavits, which
were to be filed within two weeks of receipt of the City’s
report.
3.
Further, and in accordance with s 7(1) of
PIE
[1]
the Court directed the City to appoint a mediator within two weeks of
delivery of its report, who was to attempt to mediate the
dispute
between the parties regarding the date for quitting the premises.
4.
When the Court reconvened on 26 July 2021,
the City had neither reported nor mediated as directed. The Court
heard that the City
had belatedly instructed attorneys to represent
it at the hearing and Adv. Wynne appeared for the City on that day.
Mr. Wynne offered
an explanation from the Bar for the City’s
non-compliance and, pursuant thereto, the Court called upon the City
to file an
affidavit explaining its non-compliance.
5.
A draft agreement was subsequently
concluded between the parties in terms whereof the City was to file
its report, arrange for mediation
and explain its failure to do what
it was directed to do earlier. The matter was then postponed to 18
August 2021.
6.
When the matter commenced on 18 August
2021, Mr. Wynne explained to the Court (with reference to the City’s
further affidavits)
that the person to whom the order had been sent
by the applicant’s attorneys had left the employ of the City
but that his
email address had not been disconnected. For that
reason, the applicants’ attorneys’ email had not bounced
back. Mr.
Wynne went on to note that once the matter had come to the
City’s attention, it had taken immediate steps to comply with
the directives.
7.
The situation seems to have arisen by
virtue of the shortcomings of modern technology and I do not think
that the City’s conduct
has been shown to have been willful. On
the other hand, the applicants’ attorneys could have done more
when there were repeated
failures to respond to their litany of
emails asking for progress reports from the City. It remains a
curiosity in the modern age
of digital technology that parties often
appear to have forgotten of the utility of the telephone.
ACCOMMODATION AVAILABLE TO THE RESPONDENTS
8.
The City reported to the Court that a
mediation session had been held but that the parties were unable to
find each other. In addition,
it provided an update to its report of
August 2020 dealing with the availability of low cost housing and
emergency housing. As
far as the availability of rental properties
belonging to the City is concerned, the situation remains dire –
the City says
that it currently has 349 672 persons registered
on its housing database who are awaiting the allocation of formal
housing
opportunities.
9.
The City goes on to explain that it is now
dealing with housing applications lodged in 2013 in respect of “low
demand areas”
and the mid 1990’s/early 2000’s in
respect. “high demand areas”. The third respondent
entered her name
on the City’s housing needs database in 2016,
while the first and second respondents registered in 2000 and 2019
respectively.
The remaining respondents have not registered with the
City. Given the length of the queue for the allocation of low-income
rental
housing offered by the City, it says that it is not possible
to accommodate the respondents’ needs immediately as this would
encourage queue jumping.
10.
The City also referred to the availability
of social housing under the auspices of the Social Housing Regulating
Authority (“SHRA”)
in which affordable rental housing is
made available to deserving candidates depending on their levels of
income. In the
Tafelberg
judgment
[2]
,
this Court noted (in August 2020) that persons earning between R5 000
and R15 000/month, qualified for the allocation of
social
housing. It further noted the availability at that time of social
housing in a variety of complexes across the Peninsula
where rentals
ranged from R800 to R4100/month. In its first report filed in August
2020, the City indicated that income levels
for social housing were
between R1500 and R15 000. Such rentals are calculated with
reference to an applicant’s gross
monthly income.
11.
Turning to the City’s Emergency
Housing Plan, it notes that it has established a number of Temporary
Relocation Areas (“TRA’s”)
over the years. These
are rudimentary corrugated iron structures intended to accommodate
the most vulnerable of evicted persons.
These include camps at
Blikkiesdorp near Delft, Wolwerivier near Mamre and Kampies in
Philippi. The latter is, according to Mr.
Wynne, the current venue of
choice as the others are over-subscribed. TRA accommodation is only
available to persons who have applied
therefor. In the City’s
report dated 26 August 2020, the respondents were urged to register
for TRA accommodation –
a copy of the City’s application
form for such accommodation was attached to the affidavit of Ms.
Pretorius who authored
that report. To date none of the respondents
has applied for TRA accommodation and Mr. Wynn informed the Court
from the Bar that
the delay in acquiring such accommodation was 6 –
8 months from the date of application.
APPLICANTS’ CURRENT CIRCUMSTANCES
12.
In a supplementary affidavit filed on
behalf of the applicants, Mr. Nazeem Nelson informed the Court of
their current circumstances.
He says that his wife, the second
applicant, was formerly married to a certain Mr. Thebus with whom she
co-owned a house in Mitchells
Plain. When the second applicant and
Mr. Thebus were divorced in 2009, they agreed that she could remain
in occupation of that
property until she re-married, in which event
the property would be sold and the proceeds shared between them. Mr.
Nelson says
that he and the second applicant were married in 2012.
13.
Mr. Nelson explains that Mr. Thebus has had
to tolerate the continued occupation of the Mitchells Plain property
by the Nelsons
and their children since 2016 due to the refusal of
the respondents to move out of the Kensington premises. The inability
to access
the Kensington premises has resulted in the Nelsons
incurring an additional expense of R6000/month in respect of the
Mitchells
Plain property. In addition, they must bear the bond
instalment, rates, and taxes payable on the Kensington premises. The
respondents
have made no attempt whatsoever to cover any of the costs
of their occupation of that property.
14.
In the report filed by the mediator it was
pointed out that the respondents had belatedly (during the mediation)
made an offer to
rent the premises from the applicants for R4500 per
month and to pay the associated municipal charges. This was rejected
by the
applicants who said that the bond instalment was of the order
of R7000 per month and the rates and services costs amounted to about
R3000. The applicants were said to be unhappy that such an offer was
made, both because it was inadequate and because it came so
late in
the day, the respondents having enjoyed rent-free accommodation at
their expense for 5 years or so.
ALLOCATION OF A BNG HOUSE TO THIRD RESPONDENT
15.
The mediator disclosed that while
discussing the matter with the applicants, she had been informed that
the third respondent had
allegedly “been given a RDP house by
the City of Cape Town and that the handover ceremony had taken place
on Sunday 8 August
2021”. She said that Mr. Nelson had told her
that he attended the ceremony, as had the third respondent. Mr.
Nelson then
filed a further supplementary affidavit confirming his
attendance at the ceremony together with his brother who, he said,
had been
identified as a prospective recipient of a low-cost house
built under the Provincial Government’s “Breaking New
Ground”
program (“BNG”). These houses are
colloquially referred to as “RDP houses” in accordance
with the previous
name of the program.
16.
In a photograph attached to this
supplementary affidavit, Mr. Nelson’s brother, Shafiek, is seen
holding up a certificate
presented to him at the ceremony, the
material part whereof reads –
“
This
serves to congratulate Shafiek Nelson on being identified as a home
owner beneficiary”
Mr. Nelson
said that he had seen the second and third respondents
in attendance at the ceremony and that a similar
certificate had been handed over to the latter.
17.
The Court asked for clarity on this issue
and Mr. Wynne duly procured an explanatory affidavit from an employee
in the City’s
Directorate of Human Settlements, Ms. Kock, who
is also the author of the two earlier reports from the City. Ms. Kock
explained
that she had checked the City’s records and
established that the second, third and eighth respondents had been
registered
on the City’s “Housing Needs Database”.
In 2008 a “rental housing opportunity” had been allocated
by the City to the third respondent, which “she elected to
voluntarily relinquish in and during 2008.”
18.
Ms. Kock said that she had made enquiries
concerning a housing development being undertaken by the Provincial
Government in the
New Woodlands area of Mitchells Plain. She reports
as follows.
“
7. To
this end, I have been advised that the Third Respondent has not yet
been allocated a housing unit in the development in question
and, at
this stage, has simply been informed of the fact that she may qualify
as a beneficiary of the project. The purpose of the
gathering, which
is stated to have taken place on 8 August 2021, and pursuant to which
the First Applicant alleges that a house
was handed over to the Third
Respondent, was in effect an information session undertaken with
persons who may prospectively qualify
as beneficiaries to the
project.
8. I have been advised that the
process of approving and/or selecting beneficiaries for the
development will only take place at
a much later stage, once the
process of approving applicants for housing subsidies has been
concluded.
9. Accordingly, the Third
Respondent has not, at this stage, received a housing opportunity in
the New Woodlands Development, nor
is she guaranteed of receiving
one. Her application will be assessed by the Western Cape Provincial
Department of Housing in due
course, in accordance with the
qualifying and/or allocation criteria that has (sic) been determined
for the project in question.”
THE GRANNY FLAT
19.
In an earlier supplementary affidavit, Mr.
Nelson had referred to the fact that there was a granny flat adjacent
to the premises
that had two bedrooms. It was intimated that certain
of the respondents might wish to take up temporary residence in the
flat after
eviction. Indeed, in a draft order handed up by Mr. Bence
at a continuation of the hearing on the matter on 26 August 2021,
provision
was made for a concession by the applicants that the first
and third respondents might occupy the granny flat for a couple of
months
after being evicted from the main residence.
20.
This resulted in a further supplementary
affidavit being filed by the first respondent on 30 August 2021. In
this affidavit the
first respondent took umbrage at the suggestion
that the granny flat might afford her suitable alternative
accommodation, pointing
out that it had been completely gutted by
fire in January 2016, had subsequently been vandalized by unknown
persons after the fire
and, in any event, it was without water or
electricity. A set of photographs was put up in support of this
allegation, from which
the accuracy of the allegations can be
verified.
21.
In reply to these allegations, Mr. Nelson
pointed out that he and the second applicant had purchased the
premises in November 2016
and taken transfer thereof in August 2017.
He went on to say that neither he nor his wife had any knowledge of
the fire damage
occasioned to the granny flat, but that in any event
they had been precluded from entering upon the premises by the
respondents
at all material times. He denied that he had any
knowledge of the damage before the property was purchased and berated
the respondents
for allowing the property to deteriorate in this
matter. Mr. Nelson said that he was not possessed of sufficient funds
to renovate
the granny flat and it could accordingly no longer serve
as alternative accommodation for the respondents upon eviction.
PERSONAL CIRCUMSTANCES OF THE RESPONDENTS
22.
The relevant personal circumstances of the
various respondents are as follows.
(i) The first respondent is 57 years of age, has no dependents and is
reliant upon a disability granted of R2 500 to support herself.
(ii) The second respondent, who is the sister of the first
respondent, is aged 52 years and is employed as a receptionist
earning
R6 800 per month. She is said to have contracted Covid 19
earlier this year but has recovered.
(iii) The third respondent is aged 63 years and is a recipient of a
State pension of R1800 per month. Her health is not good and
she has
been in and out of hospital, on occasion being unable to attend the
virtual hearings in this matter because of poor health.
It would
appear that the problem is related to tuberculosis. She contracted
the Covid 19 virus in 2020 but has fortunately survived.
The third
respondent has been earmarked as a prospective recipient of a house
in the New Woodlands development referred to earlier.
We know, too,
from the later affidavit of Ms. Kock that the third respondent turned
down an offer of alternative housing in 2008.
(iv) The fourth respondent is an unemployed female aged 24 years who
has three children aged seven, six and two years respectively.
(v) The fifth respondent is a 25-year-old unemployed male with no
dependents.
(vi) The sixth respondent is a 24-year-old unemployed male whose
parents are said to live in Knysna and Mitchells Plain. He advances
no reasons as to why he could not stay with either of them.
(viii) The seventh respondent is an unemployed female aged 25 years
and is said to be a dependent of the second respondent. However,
the
nature of her relationship with the second respondent was not
clarified by Mr. Sharuh during final argument.
(viii) Finally, the eighth respondent is a 58-year-old male employed
as a driver who earns R5 000 per month.
23.
In argument, Mr. Sharuh accepted that the
second and eighth respondents earned sufficient to qualify for
affordable housing. He
submitted further that the only vulnerable
persons were the first and third respondents. He accepted that the
level of lockdown
under the Covid 19 regulations (at Level 2 when the
matter was finally argued and now at Level 1) had made it possible
for a court
to consider eviction. In the circumstances, it was
suggested that the respondents should collectively be afforded at
least 12 months’
notice to vacate the premises
24.
Mr. Bence pointed out that the applicants
had been deprived of access to their property for close on 5 years.
They have effectively
been subsidizing the respondents’
accommodation needs for at least 4 years since taking transfer of the
property and would
have paid in excess of R90 000 per annum in
that regard. By the Court’s calculation, this amounts to a
staggering aggregate
of between R350 000 and R400 000 which
will be irrecoverable from the respondents.
WHAT IS JUST AND EQUITABLE?
25.
PIE requires this court to make an order
that is just and equitable in the circumstances.
Blue
Moonlight
[3]
instructs a court that the ‘just and equitable’ statutory
injunction requires consideration of the interests of both
the
occupiers and the owners. Importantly, the order must infuse elements
of grace and compassion on the part of the Court for
the plight of
the occupiers while ensuring that the rightful owners of property are
not effectively expropriated by the conduct
of the unlawful
occupiers. Importantly, it is not the function of a private landowner
to have to accommodate an unlawful occupier
ad
infinitum.
Van der Westhuizen J put it
thus in
Blue Moonlight
,
a case involving the occupation of a block of flats rented out for
commercial purposes.
“
[40]
It could reasonably be expected that when land is purchased for
commercial purposes the owner, who is aware of the presence
of
occupiers over a long time, must consider the possibility of having
to endure the occupation for some time. Of course a property
owner
cannot be expected to provide free housing for the homeless on its
property for an indefinite period. But in certain circumstances
an
owner may have to be somewhat patient, and accept that the right to
occupation may be temporarily restricted, as Blue Moonlight’s
situation in this case has already illustrated. An owner’s
right to use and enjoy property at common law can be limited in
the
process of the justice and equity inquiry mandated by PIE.”
26.
The present case does not involve
commercial considerations. Rather, the applicants are family of the
respondents and the applicants
knew when they purchased the house to
“keep it in the family”, as it were, that the respondents
had lived there for
a considerable period of time. The applicants say
they were assured by the occupants at the time that they bought the
premises
that they were willing to move and that they had secured
alternative accommodation. The respondents deny this, claiming now
that
they were granted a life right of occupation by the deceased,
Mr. Jalodien Williams.
27.
Whatever, the truth of the matter, the
applicants have endured the presence of the respondents in their
house for a very long time.
They have, in the circumstances, truly
demonstrated the spirit of
ubuntu
which
PE Municipality
[4]
contemplated. However, rather than accept their generosity and the
fateful consequences which their ownership ultimately brings,
the
respondents have entrapped the owners in myriad legal proceedings in
a futile effort to establish a right under Islamic law
which they
must have known could never succeed.
28.
An order for ejectment now might operate
harshly against some of the respondents. I say might because there is
the possibility that
the Provincial Government may make good on its
public demonstration of largesse in August 2021 and ultimately grant
the third respondent
the use of a house in the New Woodlands BNG
development in the not too distant future. But, against that, I must
bear in mind that
the respondents offered recently to pay rental for
the premises to the applicants of R4500 per month. That offer means
that the
respondents are able to pool their means and afford
accommodation appropriate to their needs. They are not penniless, nor
are they
averse to being accommodated as a family in rather
restricted conditions – after all they were able to make do
with three
bedrooms and were prepared to pay the costs associated
therewith. Their offer of rent having been declined by the
applicants, the
respondents must now put their resources towards the
procurement of affordable rental premises, whether through the
assistance
of the SHRA or otherwise.
29.
Having regard to all the relevant
circumstances, I am of the view that it would be just and equitable
to afford the respondents
3 months’ notice to vacate. In so
deciding, I bear in mind that the respondents have known for more
than a year that the
applicants were serious about taking occupation
of the premises and, most importantly, they have known since the end
of March 2021
that they will be required to vacate. The fact that
they have taken no meaningful steps to seek alternative accommodation
is entirely
of their own making and the applicants cannot be expected
to be penalized further. The applicants have been more than tolerant
and kind to the respondents. They are entitled to move into their
home now.
COSTS
30.
Through their obstinate resistance, the
respondents have put the applicants to considerable expense to
recover occupation of that
which is their own. It is thus only fair
that a costs order should follow the result. While it may ultimately
prove to be a
brutum fulmen
,
given the limited means of the respondents, I am of the view that
such an order should be made nevertheless in order that others
who
might consider adopting a similar stratagem are dissuaded from doing
so.
ORDER OF COURT
Accordingly, the following order is made:
A.
The first to ninth respondents are ordered
to vacate the premises situated at No. 87, Sixth Street, Kensington,
Cape Town (“the
premises”) on or before 21 January 2022.
B.
In the event that the first to ninth
respondents fail to vacate the premises as aforesaid, the Sheriff of
this Court or his/her
deputy is authorized to cause the first to
ninth respondents to be evicted from the premises on 31 January 2022.
C.
The first to eighth respondents shall pay
the costs of the application jointly and severally, the one paying
the others to be absolved,
such costs to include the costs of the
respondents’ dismissed stay application.
GAMBLE, J
Appearances:
For the
applicants
: Adv. J Bence
Instructed by Le Roux
Attorneys Inc
Cape Town
For the 1
st
– 9
th
respondents:
Mr P Sharuh
of Sharuh Attorneys
Bellville
C/o De Kelerk & Van Gend
Cape Town
For the 10
th
respondent
: Adv. R Wynne
Instructed by Hayes
Incorporated
Cape Town
[1]
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998
[2]
Adonisi and others v Minister of Transport and
Public Works, Western Cape and others
[2021] 4 All SA 69
(WCC) at [45] – [46]
[3]
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties (39) (Pty) Ltd and another
2012 (2) SA 104
(CC) at
[37] – [41]
[4]
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC) at
[37]