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[2014] ZAGPJHC 205
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Thekiso v Nxumalo and Others (41976/2012) [2014] ZAGPJHC 205 (3 April 2014)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:41976/2012
DATE:
03 APRIL 2014
In
the matter between:
THEKISO:
AZARIEL
..............................................................................
Applicant
And
NXUMALO:
MPHIWA ALFRED
...................................................
First
Respondent
HLANGOTI:
MILLISCENT KANYISILE
..................................
Second
Respondent
CITY
OF
JOHANNESBURG
..........................................................
Third
respondent
JUDGMENT
OPPERMAN
AJ
Introduction
[1]
The applicant seeks the eviction of the
first and second respondents from the premises situate at erf 1352
Lawley Extension 1, Gauteng
(‘the
property’
).
[2]
The applicant brings the application on the
basis that:
2.1.
he is the owner of the property;
2.2.
the first and second respondents are in
occupation of the property.
[3]
The applicant approached the matter on the
basis that he bore the onus to show, on a balance of probabilities,
that he was the owner
of the property and that the first and second
respondents were in occupation thereof. In this regard, the
applicant relied
heavily on the judgments of
Graham
v Ridley
,
1931 TPD 476
and
Chetty
v Naidoo
1974 (3) SA 13
(A).
APPLICANT'S
FOUNDING AFFIDAVIT
[4]
In his very short affidavit, the applicant
contended that he was the lawful and registered owner of the
property. He
explained that it had been registered in his
name on 14 January 2010 and that the first and second respondents
were in occupation
at that time. He stated that despite demand, the
respondents have refused to vacate. He then added that the occupation
of the property
was without his "express, implied or tacit
consent". He alleged that their occupation was unlawful.
[5]
He continued that because the respondents
had been in occupation for longer than six months, section 4(7)
of the Prevention
of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998 ("
PIE
")
was applicable. He summarised the gist of section 4(7) of
PIE and recorded: "….
the
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all
the relevant
circumstances."
[6]
The only relevant circumstance relied upon
by the applicant to satisfy s 4(7) of PIE, is that which is recorded
in paragraph 25
of his founding affidavit and reads as follows:
"25.
I submit that I have rights in terms of the constitution to have use
and enjoyment of the property and the rights provided
by the First
Respondent under the Act do not abolish the Applicant's inherent
right to legal protection of its ownership rights."
[7]
Having made that one averment only, he
concludes in the very next paragraph that it would be just and
equitable to grant an eviction
order.
RESPONDENTS'
ANSWERING AFFIDAVIT
[8]
The respondents explained that they have
been in occupation of the property from 1 March 1997.
[9]
On 14 August 2009 they attended a sale in
execution in respect of the property.
[10]
The applicant, who was also present,
purchased the property.
[11]
The first and second respondents approached
the applicant and indicated to him that they would want to purchase
the property from
him.
[12]
The applicant agreed to sell the property
to them for a purchase consideration of R230 000.
[13]
As a result of such agreement, the
applicant caused the first respondent to sign an Acknowledgement of
Debt for the purchase consideration
of the property.
[14]
The applicant advised that when the
purchase price had been paid in full, he would transfer the property
into the name of the respondents.
[15]
Their alleged entitlement to remain in
occupation is contained in paragraph 9.3.11 of the affidavit of the
first respondent, which
reads as follows:
"9.3.11
Therefore my continued stay in the property was as a result of the
sale of the property to me by applicant and acknowledgement
of debt."
[16]
The respondents contend that they made
several payments towards the purchase price of the property and annex
as proof of such payments,
some 16 deposit slips reflecting various
payments totalling R185 650. I discuss the calculation later.
APPLICANT'S
RESPONSE CONTAINED IN THE REPLYING AFFIDAVIT
[17]
Confronted by the detail of the answering
affidavit and in reply, the applicant explains that he had met the
first respondent at
the auction and, knowing him from church, had
been approached and requested to assist with the purchase of the
property.
[18]
The applicant accordingly purchased the
property and on conclusion of the sale in execution, a verbal
agreement was concluded with
respondents, the terms of which were as
follows:
18.1.
The respondents were to pay a deposit of
R20 000;
18.2.
Over and above the R20 000 the respondents
would pay the applicant a purchase consideration of R230 000 which
would be payable by
the respondents within two years of the
conclusion of the verbal agreement;
18.3.
a lump sum payment of R100 000 would be
made which would first be set off against whatever amount was owing
to the City of Johannesburg
for rates and taxes in order to reduce
the applicant's liability when obtaining the rates clearance
certificate at a later stage,
to transfer the property to the
respondents;
18.4.
the balance of the purchase price would be
paid by making monthly payments to the applicant which would be
no less than
R2500;
18.5.
the respondents would pay the rates and
taxes account monthly;
18.6.
after payment of the entire purchase price,
the verbal agreement would be reduced to writing and the property
would be transferred
into the name of the respondents.
[19]
The applicant explains that prior to the
conclusion of the verbal agreement, the respondents had signed an
offer to purchase which
was conditional upon a financial institution
granting a loan to the respondents against the security of a bond
being registered
over the property. Although the
applicant had accepted the offer, the respondents' application for a
home loan had
been unsuccessful, rendering the offer to purchase of
no force and effect.
[20]
The applicant then explains that as the
respondents were able to pay R100 000 and R20 000 respectively on
demand, he was under the
impression that the full amount would be
paid within two years as agreed although he had requested that the
respondents pay a minimum
of R2 500 monthly to enable the applicant
in turn to service the bond he had registered over the property.
[21]
The applicant explains that the expiry of
the two-year period calculated from the first payment of February
2010 (the applicant
elsewhere in the replying affidavit stated that
the first payment was received in January 2010) was, according to the
applicant,
January 2012.
[22]
The applicant states that as at January
2012, the respondents had only made payment in respect of the
purchase price in the amount
of R43 450. He accordingly
requested the respondents to vacate the property.
[23]
He says that during 2012 the respondents
had made irregular monthly payments and that he had accordingly
decided not to sell the
property to the respondents. He explained
that he had tried in vain to contact them, but that what he had
wanted to communicate
to them was that he would start allocating the
payments to rental for the occupation of the property.
[24]
He then arranged a meeting through the
estate agent to meet with the respondents, during which meeting he
explained that they should
vacate the property and that he would not
accept any offer to purchase from them.
[25]
The first respondent tried to physically
attack him and that was the last time they spoke.
[26]
Applicant further denies that he caused the
respondents to sign an Acknowledgement of Debt (which document is
annexed to the respondents'
answering papers) and further denies the
content of the Acknowledgement of Debt. The Acknowledgment of Debt
records that the first
respondent is indebted to the Applicant for
the balance of the purchase price in respect of the property and
records an offer to
the applicant to pay the sum in 35 instalments
commencing on 1 March 2010 and thereafter each successive month until
full and final
payment has been made.
[27]
The applicant admits that all the payments
reflected in the deposit slips annexed to the respondents' answering
affidavit were received
by him.
APPLICANT'S
APPROACH
[28]
The applicant's counsel submitted that the
alleged verbal agreement concluded between the parties is at best an
agreement to agree
and does not constitute an enforceable agreement.
She relied on the judgment of
Van Zyl v
Government of the Republic of South Africa
,
2008 (3) SA 294
at para [75] in which it was stated that: "
A
promise to contract is not a contract."
[29]
She further argued that the verbal
agreement concluded between the parties is one for the purchase or
sale of immovable property
and accordingly must be governed by the
provisions of the
Alienation of Land Act, 68 of 1981
, as amended
(‘the
Alienation of Land Act
&rsquo
;)
which contains in
section 2
that any agreement relating to the
alienation of land should be reduced to writing, failing which such
agreement will be of no
force or effect.
[30]
Applicant argued that the PIE Act had been
complied with.
[31]
Clauses 4(7) and (8) of the PIE Act provide
as follows:
"(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are
initiated, a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering
all the relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether
land has been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner
for the relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and
households headed by women.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a)."
[32]
Applicant's counsel argued that it was
trite law that the onus is on the respondents to raise ‘relevant
circumstances’
pertaining to why they should not be evicted. I
think not, but more about that later.
[33]
Applicant’s counsel argued that
circumstances are almost always exclusively within the knowledge of
the occupier and that
the owner could not be expected to negative in
advance facts not known to him and not in issue between the parties.
In this
regard applicant’s counsel relied on the authority of
FHP Management (Pty) Ltd v Theron N.O
.
2004 (3) SA 392
(C) at 401G-I and 404I-405B.
LEGAL
POSITION IN REGARD TO THE ONUS
[34]
In
Ndlovu v
Ngcobo: Bekker and Another v Jika
[2002] 4 ALL SA 384
(SCA) Harms JA held as follows:
"[18]
The court, in determining whether or not to grant an order or in
determining the date on which the property has to be
vacated (s
4(8)), has to exercise a discretion based upon what is just and
equitable. The discretion is one in the wide and not
the narrow
sense. … A court of first instance, consequently, does not
have a free hand to do whatever it wishes to do and
a court of appeal
is not hamstrung by the traditional grounds of whether the court
exercised its discretion capriciously or upon
a wrong principle, or
that it did not bring its unbiased judgment to bear on the question,
or that it acted without substantial
reasons. …
[19]
Another material consideration is that of the evidential onus.
Provided the procedural requirements have been met, the owner
is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation.
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled
to an order
for eviction. Relevant circumstances are nearly without fail facts
within the exclusive knowledge of the occupier and
it cannot be
expected of an owner to negative in advance facts not known to him
and not in issue between the parties.
Whether
the ultimate onus will be on the owner or the occupier we need not
now decide
."
(my
emphasis)
[35]
In
City of
Johannesburg v Changing Tides
74,
2012
(6) SA 294
(SCA) at 294 Wallis JA at 311F summarised the relationship
between ss 4(7) and (8) as follows:
"A
court hearing an application for eviction at the instance of a
private person or body, owing no obligations to provide housing
or
achieve the gradual realisation of the right of access to housing in
terms of s 26(1) of the Constitution, is faced with two
separate
enquiries. First it must decide whether it is just and equitable to
grant an eviction order having regard to all relevant
factors. Under
s 4(7) those factors include the availability of alternative land or
accommodation. The weight to be attached to
that factor must be
assessed in the light of the property owner's protected rights under
s 25 of the Constitution,
and on the footing that a limitation
of those rights in favour of the occupiers will ordinarily be limited
in duration. Once the
court decides that there is no defence to the
claim for eviction and that it would be just and equitable to grant
an eviction order,
it is obliged to grant that order. … "
[36]
The City of Johannesburg had raised in that
matter a similar argument in respect of onus. Wallis JA deals
with it as follows
at p 313:
"[28]
The City submitted that it is the duty of the occupiers to place any
necessary relevant information before the court.
It contended that
the common-law position, that an owner can rely simply on its
ownership of the property and the occupation of
the occupiers against
its will, is applicable to applications governed by s 4(7) of PIE. It
relied on the cases where it has been
held that the landowner may
allege only its ownership of the property and the fact of occupation
in order to make out a case for
an eviction order, to which the
occupiers must respond and establish a right of occupation if they
wish to prevent an order from
being made. It argued that the only
effect of PIE was to overlay the common-law position with certain
procedural requirements.
[29]
This is not an issue that has been resolved in the cases and to some
extent it has been obscured by cases in which a less
conventional
approach to the function of the court has been espoused. The enquiry
into what is just and equitable requires the
court to make a value
judgment on the basis of all relevant facts. It can cause further
evidence to be submitted where 'the evidence
submitted by the parties
leaves important questions of fact obscure, contested or uncertain'.
That may mean that 'technical questions
relating to onus of proof
should not play an unduly significant role'. However, I do not think
that means that the onus of proof
can be disregarded. After all what
is being sought from the court is an order that can be granted only
if the court is satisfied
that it is just and equitable that such an
order be made. If, at the end of the day, it is left in doubt on that
issue it must
refuse an order. There is nothing in PIE that warrants
the court maintaining litigation on foot until it feels itself able
to resolve
the conflicting interests of the landowner and the
unlawful occupiers in a just and equitable manner.
[30]
The implication of this is that, in the first instance,
it is for
the applicant to secure that the information placed before the court
is sufficient
, if unchallenged, to satisfy it that it would be
just and equitable to grant an eviction order. Both the Constitution
and PIE require
that the court must take into account all relevant
facts before granting an eviction order.
Whilst in some cases it
may suffice for an applicant to say that it is the owner and the
respondent is in occupation, because those
are the only relevant
facts, in others it will not.
One cannot simply transpose the
former rules governing onus to a situation that is no longer governed
only by the common law but
has statutory expression. In a situation
governed by s 4(7) of PIE, the applicant must show that it has
complied with the notice
requirements under s 4 and that the
occupiers of the property are in unlawful occupation.
On ordinary
principles governing onus it also has to demonstrate that the
circumstances render it just and equitable to grant the
order it
seeks.
I see no reason to depart from this. There is nothing
unusual in such an onus having to be discharged. … (my
emphasis)
APPLICATION
TO THE FACTS
IN CASU
[37]
An
analysis of
the invoices (which was not undertaken by the parties) reveals that
R185 650 was paid by the respondents to the applicant
over a period
of some 3 ½ years, from 5 December 2009 to 7 June 2013. It is
common cause that these amounts were received.
[38]
What appears from the replying affidavit is
that the applicant contends that R230 000 was payable to which should
be added the deposit
of R20 000 and some R60 000 in respect of rates
and taxes, a total liability of R310 000.
[39]
In this regard it is instructive that the
applicant had in his replying affidavit deposed to during September
2013 :
"I
do not have copies of the said account, however I will do my best to
obtain same form the City of Johannesburg to hand same
up at the
hearing of this matter."
No
account was tendered at the hearing of this matter.
[40]
On
the papers, the respondents contend that R230 000 was payable of
which they have paid R185 650. The applicant contends
that R310 000 was payable, of which R185 650 has been paid.
Applying the
Plascon
Evans
principle,
[1]
I
must accept the version advanced by the respondents and find that the
purchase price was agreed at R 230000 of which R185 650
had already
been paid, i.e. more than ¾ of the price.
[41]
The applicant requests this court to order
that the respondents be evicted from the property under circumstances
where the respondents
have paid more than three quarters of the
purchase price. The effect of the order would be that the applicant
retains both property
and purchase price (or most of it). Without any
further evidence such a situation is patently unjust and inequitable
as required
by s 4(7) of PIE. It is true that the respondents have
not paid for their occupation of the property but what amount does
one attribute
to the value of such occupation? Have they effected
improvements? If so, what value is one to attribute to it? The Court
does not
know.
[42]
This court’s sense of injustice and
inequity at the consequences of an invalid verbal agreement relating
to land has long
been recognised by the legislator when
Section 28
of
the
Alienation of Land Act was
enacted.
[43]
Section 28
of the
Alienation of Land Act
provides
:
28
Consequences of deeds of alienation which are void or are
terminated
(1)
Subject to the provisions of subsection (2), any person who has
performed partially or in full in terms of an alienation of
land
which is of no force or effect in terms of
section 2
(1), or a
contract which has been declared void in terms of the provisions of
section 24
(1) (c), or has been cancelled under this Act, is entitled
to recover from the other party that which he has performed under the
alienation or contract, and-
(a)
the alienee may in addition recover from the alienator-
(i)
interest at the prescribed rate on any payment that he made in terms
of the deed of alienation or contract from the date of
the payment to
the date of recovery;
(ii)
a reasonable compensation for-
(aa)
necessary expenditure he has incurred, with or without the authority
of the owner or alienator of the land, in regard to the
preservation
of the land or any improvement thereon; or
(bb)
any improvement which enhances the market value of the land and was
effected by him on the land with the express or implied
consent of
the said owner or alienator; and
(b)
the alienator may in addition recover from the alienee-
(i)
a reasonable compensation for the occupation, use or enjoyment the
alienee may have had of the land;
(ii)
compensation for any damage caused intentionally or negligently to
the land by the alienee or any person for the actions of
whom the
alienee may be liable.
(2)
Any alienation which does not comply with the provisions of section
2 (1) shall in all respects be valid ab initio if the alienee
had
performed in full in terms of the deed of alienation or contract and
the land in question has been transferred to the alienee."
[44]
Returning to the facts of this matter. It
is common cause that the respondents have partially performed in
terms of the verbal agreement
which is evidently of no force or
effect. In terms of the respondents' version, of the R230 000 owing,
R185 650 has been paid.
[45]
The entire issue relating to the verbal
agreement was within the knowledge of the applicant. He elected
not to refer to it
at all in his founding papers.
[46]
In my view, he was obliged to do so and
should have gone further.
[47]
In this regard I would have thought that
the applicant should have provided evidence:
47.1.
as to what a reasonable amount of rental
might have been for the period of occupation by the respondents;
47.2.
as to what a reasonable compensation might
have been for any improvements which had enhanced the market value of
the property, if
any;
47.3.
as to whether or not he had given his
express or implied consent for the improvements, if any;
47.4.
of a proper accounting of the amounts he
had received;
47.5.
the sum of R60000 that he had allocated to
rates and taxes and proof thereof;
47.6.
an offer for the return of a portion of the
purchase consideration paid by the respondents once the aforesaid
accounting had been
done;
47.7.
as to why, if the application was commenced
during November 2012, the respondents continued to make payments for
seven months thereafter
and applicant accepted them.
[48]
I am not suggesting that the aforementioned
list is exhaustive nor that providing such information in each case
would be peremptory
or sufficient.
[49]
In this instance, the applicant has not
referred to the facts relating to the verbal agreement in its
founding affidavit at all.
[50]
On the meagre facts placed before me and as
set out herein, I do not consider it just and equitable that the
respondents be evicted
until such time as the proprietal aspects
relating to the unenforceable and invalid verbal agreement have been
dealt with. A trial
action would appear better suited to that
enquiry.
[51]
I find some support for my approach in the
matter of Balduzzi v Rajah
[2008] 4 ALL SA 183
(W) in which matter,
in response to the plaintiff’s claim for the eviction of the
defendant, the defendant had filed a defence
to which the plaintiff
had raised an exception. It was contended that the plea failed to
sustain a defence. Defendant contended
that the plaintiff, as the
owner of the property, had sold the property to the defendant’s
husband who was deceased. Due
to racially based laws in existence at
the time, the defendant’s husband could not register ownership
of the property into
his name. The property remained registered in
the plaintiff’s name, but the deceased paid the purchase price
in full and
lived there as owner with the defendant. Although
section
28
of the
Alienation of Land Act was
neither discussed nor applied,
the court found that the transaction between the plaintiff and the
defendant’s deceased husband
is no longer regarded as illegal
or criminal. All of this was relevant to the legal question whether
it would be just and equitable
to order the defendant’s
eviction. Berger AJ held at par [26] that the trial court could,
quite properly, dismiss the plaintiff’s
action on the ground
that it would be just and equitable in terms of
section 4(7)
of PIE
to evict the defendant from the property.
[52]
I find that the applicant has failed to
discharge the onus resting upon him and the application is
accordingly dismissed with costs.
I
OPPERMAN
Acting
Judge of the High Court
Heard:
5
th
March 2014
Judgment
delivered: 3 April 2014
Appearances:
For
Applicant: Adv Lisa Oken
Attorneys:
Matojane Malungana Inc
For
First and Second Respondent: Mr Phafo
Attorneys:
Pukwana Inc
[1]
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
AD