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[2015] ZASCA 64
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Molusi v Voges NO (1008/13) [2015] ZASCA 64; [2015] 3 All SA 131 (SCA) (8 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1008/13
In
the matter between:
SOPHY
MOLUSI
FIRST
APPELLANT
DAVID
MAMAGALO
SECOND APPELLANT
ISAAC
SELOLWANE
THIRD
APPELLANT
K
L
TWARISANG
FOURTH APPELLANT
JOSEPH
RAMOKANE
FIFTH APPELLANT
FRANS
MOKANSI
SIXTH
APPELLANT
and
FRANCOIS
DANIËL
JAMES
VOGES
NO
FIRST
RESPONDENT
FREDERIKA
MARIA CHRISTINA
VOGES
NO
SECOND
RESPONDENT
THE
HEAD OF THE NORTH WEST
PROVINCIAL
OFFICE OF THE
DEPARTMENT
OF RURAL
DEVELOPMENT
AND LAND REFORM THIRD
RESPONDENT
THE
RUSTENBURG LOCAL
MUNICIPALITY
FOURTH RESPONDENT
Neutral
citation:
Molusi
v Voges NO
(1008/13)
[2015] ZASCA 64
(08 May 2015)
Coram:
Mpati
P, Ponnan, Bosielo, Shongwe and Saldulker JJA
Heard:
20
February 2015
Delivered:
08
May 2015
Summary
:
Land – eviction of peri-urban occupiers from leased property –
one ground of termination of lease relied on in notice
of termination
and founding affidavit no bar to owner relying on common law ground
of ownership of leased property when ownership
alleged in founding
papers – reliance on common law ground of ownership not
constituting new cause of action – interpretation
of relevant
provisions of
Extension of Security of Tenure Act 62 of 1997
.
ORDER
On
appeal from:
Land
Claims Court, Randburg (Sidlova AJ sitting as court of first
instance):
1
The appeal is dismissed.
2
The appellants and all other persons occupying under or through them
are ordered to vacate Portion 81 (a portion of Portion 65)
of the
farm Boschfontein 330-JQ, Rustenburg (the farm), on or before 7 June
2015.
3
Failing compliance with the order in 2 the Sheriff for the district
of Rustenburg is authorised to evict the appellants and all
other
persons occupying under or through them from the farm 10 days after
the date contemplated in 2 above.
JUDGMENT
Shongwe
JA (Bosielo JA concurred)
[1]
The question of land, the right of ownership and the right of
occupiers has reared its ugly
head once again. Clearly this is a
thorny, sensitive and emotive issue particularly in the context of
the spatial development of
the then apartheid South African
government. It is a painful but a known fact that the property
laws of the apartheid regime
were geared towards denying Blacks,
Africans in particular any form of secure tenure to land. Amongst
these obnoxious laws were
the Group Areas Act 41 of 1950 and the
Prevention of Illegal Squatting Act 52 of 1951 (PISA). It is this
PISA which resulted in
many people, Africans in particular being
arbitrarily thrown into the wilderness and rendered homeless. Driven
by its quest to
restore people’s rights to equality and human
dignity as encapsulated in s 1 of the Constitution, our new
government introduced
some new and revolutionary Acts, including
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE)
and Extension of Security of Tenure Act 62 of
1997 (ESTA), first, to put a stop to arbitrary evictions of people,
and secondly,
to ensure, where an eviction is justified, that it is
done with compassion and dignity – Ubuntu – Botho. The
authors
S Woolman and Bishop
Constitutional Law of South Africa
2 ed (2013) set out the legislature’s intentions when
introducing ESTA to be:
‘
The
State’s constitutional obligation to promulgate legislation
dealing with the promotion of secure tenure was in part fulfilled
with the enactment of ESTA in 1997. The aims of the Act are
threefold: to promote long-term security of tenure; to regulate
eviction;
and to introduce a set of rights and duties in relation to
both occupiers and land owners.’
The
authors referred to
Prize Trade 44 (Pty) Ltd v Isaac Tefo Memane
(LCC) 35/07 (unreported judgment 21 August 2003) which confirmed
that one of the main functions of ESTA is to ensure that evictions
are conducted equitably in the interests of both parties.
[2]
This appeal is against the judgment and order of the Land Claims
Court (Sidlova AJ), ordering the appellants
and all persons occupying
under or through them to vacate Portion 81 (a portion of portion 65)
of the farm Boschfontein 330 –
JQ, Rustenburg (‘the
property’). The appellants are occupiers as defined in ESTA.
The appeal is before us with the
leave of the court a quo.
[3]
The first and second respondents (hereinafter the respondents), in
their capacity as trustees of the
Voges Family Trust, are nominal
owners of the aforesaid property. No relief is sought against the
third and fourth respondents,
who are cited by virtue of the
provisions of s 9 of ESTA and they abide the decision of the court.
[4]
Let me conveniently mention at this stage that none of the appellants
are employed by the respondents
or their predecessors in title.
Further that it is common cause that none of the appellants have
resided on the property for 10
years and has reached the age of 60.
All of the appellants have been resident on the property after 4
February 1997, except for
the first appellant who is said to have
resided there since 1995. Nothing really turns on this.
[5]
It is common cause that in or about October 2001, the respondents
concluded written lease agreements
with some of the appellants and
oral lease agreements with others. The respondents’ case as
reflected in the founding affidavit
is that the appellants were in
breach of a material term of the lease agreements in that they failed
or refused to pay rental.
As a result, the respondents cancelled the
lease agreements. See Vol. 1 – Founding affidavit para 4.5;
5.5; 6.5; 7.5, 8.5;
9.5; 10.5; 11.5; 12.5; 13.5; 14.5; 15.5 and 17.5.
All these paragraphs read:
‘
The
basis for cancellation was that the 1
st
respondent failed to perform in terms of the lease agreement between
her and the applicants, in that she failed to pay the agreed
monthly
rental since May 1998, which amounted to a substantial breach of the
lease agreement, and or failed to rectify the position
after
receiving due demand, in terms of which agreement her right of
residence was terminated. ’
Paragraph
17.1 reads somewhat differently but in essence is the same. The
appellants dispute that they failed to pay the monthly
rental. They
allege that when they tendered payment of rental during May 2008, the
respondents refused to accept it because they
were going to demolish
the structures occupied by the appellants. Furthermore, the
appellants deny that they received the notices
to terminate.
[6]
Although the notice of termination and the founding affidavit allege
that, despite demand, the respondents
refused or failed to pay
rental, no such demand was attached to the papers. Importantly, all
the respondents denied that they failed
or refused to pay the rental.
To the contrary, they all alleged that the applicant wrongfully
refused to accept their payments.
[7]
The court a quo considered the conflicting rights of the respondents,
in particular, the right of ownership
as opposed to the protection of
the rights of the appellants as occupiers. It also pertinently
recognised the fact that should
it decide to grant the eviction order
it would ineluctably render the appellants homeless.
[8]
The court a quo reasoned that in exercising its discretion on whether
or not to grant an eviction order,
it was duty bound to consider
whether the right of occupation of the appellants had been properly
terminated in accordance with
ESTA and whether the procedural
requirements of ESTA had been met. The court a quo recognised that it
had to consider whether or
not it was just and equitable to order the
eviction of the appellants. In this regard it mentioned that it had
to consider the
interests of the parties, the fairness of the
procedure followed, as well as the availability of suitable
alternative accommodation.
This list is not exhaustive. Regarding the
consideration of suitable alternative accommodation the court a quo
said that a probation
officer’s report mentioned that there was
no suitable alternative accommodation available to the appellants. No
such report
was included in the record before us.
[9]
Furthermore, the judgment is silent regarding any engagement by the
court with the third and fourth
respondents who in terms of s 26(1)
of the Constitution have a constitutional obligation to ensure that
everyone has access to
adequate housing read with s 25(1) which
prohibits arbitrary deprivation of property – the third and
fourth respondents were
parties to these proceedings. It is not clear
to me why they were before court if the intention was not to engage
them and ensure
that, even when the eviction is finally granted, at
least the court is assured that these important government
departments will
ensure that the evictees are not rendered homeless.
[10]
As alluded to above, the appellants contended that they did not
receive the notice of termination of their
right of occupation. Their
version is that the deputy sheriff (Mpho Letlhake), together with
another person, arrived at their place
of residence on 18 May 2009.
The deputy sheriff told them that the respondents had obtained an
eviction order against them (appellants).
He also indicated to them
that they have only eight days to vacate the property. When the
deputy sheriff handed over the documents
to them, which they examined
and discovered that there was no official court stamp. They then
refused to accept service thereof
and requested documents with a
proper court stamp. The deputy sheriff and his colleague then left
with the documents.
[11]
The following day, 19 May 2009 the deputy sheriff returned to the
property with what appeared to be the same
documents as the ones
produced the previous day. It also appeared that the said documents
were in fact the s 8 notices and not
eviction orders as alleged. The
appellants aver that had the nature and effect of the documents been
properly explained to them,
they would have accepted them on 18 May
2009.
[12]
The appellants contended, first that the lease agreements were not
properly and effectively cancelled as
required by s 8(1) of ESTA, and
secondly that the court a quo erred in deciding the application in
favour of the respondents on
a new ground that was not relied upon by
the respondents in their notices of termination and founding
affidavit. In both the letters
of termination and the founding
affidavit the respondents had alleged that the appellants were in
breach of a material term of
the lease in that they had failed to pay
the agreed rental fees.
[13]
On the other hand, the respondents contended that as this lease was
periodic, a mere notice of cancellation/termination
of the lease was
sufficient. The law does not require the owner to give reasons for
termination of the lease. Based on this it
was contended first that
the fact that the landlord purported to give reasons for termination
which were wrong was irrelevant,
and secondly the fact that the
landlord relied on cancellation of the lease, notwithstanding the
fact that it was never pleaded,
was of no moment. Essentially it was
contended that the notice was reasonable in the circumstances.
[14]
This case requires a proper understanding of the philosophy
underpinning ESTA. I now turn to deal with the
legislative framework
relevant to this matter. This necessitates that I quote in full the
preamble of ESTA, which reads as follows:
‘
To
provide for measures with State assistance to facilitate long-term
security of land tenure; to regulate the conditions of residence
on
certain land; to regulate the conditions on and circumstances under
which the right of persons to reside on land may be terminated;
and
to regulate the conditions and circumstances under which persons,
whose right of residence has been terminated, may be evicted
from
land; and to provide for matters connected therewith.
WHEREAS
many South Africans do not have secure tenure of their homes and the
land which they use and are therefore vulnerable to
unfair eviction;
WHEREAS
unfair evictions lead to great hardship, conflict and social
instability;
WHEREAS
this situation is in part the result of past discriminatory laws and
practices;
AND
WHEREAS it is desirable –
that
the law should promote the achievement of long-term security of
tenure for occupiers of land, where possible through the joint
efforts of occupiers, land owners, and government bodies;
that
the law should extend the rights of occupiers, while giving due
recognition to the rights, duties and legitimate interests
of owners;
that
the law should regulate the eviction of vulnerable occupiers from
land in a fair manner, while recognising the right of land
owners to
apply to court for an eviction order in appropriate circumstances;
to
ensure that occupiers are not further prejudiced.’
[15]
It is clear that ESTA seeks to regulate the conditions under which
the rights of people to reside on another’s
land may be
terminated. ESTA does not say that people may not be evicted from
properties. However, it seeks to avert situations
where people may be
evicted arbitrarily without any intervention by courts and in
circumstances where such evictions may lead to
great hardship,
conflict and social disruption with concomitant instability.
Essentially ESTA seeks to ensure that evictions, when
they are
inevitable, must be done humanely and not with a sledgehammer. Hence
ss 8 and 9 which provide as follows:
‘
8
Termination of right of residence.
–
(1) Subject
to the provisions of this section, an occupier’s right of
residence may be terminated on any lawful
ground, provided that such
termination is just and equitable, having regard to all relevant
factors and in particular to –
(a)
the
fairness of any agreement, provision in an agreement, or provision of
law on which the owner or person in charge relies;
(b)
the
conduct of the parties giving rise to the termination;
(c)
the
interests of the parties, including the comparative hardship to the
owner or person in charge, the occupier concerned, and any
other
occupier if the right of residence is or is not terminated;
(d)
the
existence of a reasonable expectation of the renewal of the agreement
from which the right of residence arises, after the effluxion
of its
time; and
(e)
the
fairness of the procedure followed by the owner or person in charge,
including whether or not the occupier had or should have
been granted
an effective opportunity to make representations before the decision
was made to terminate the right of residence…
‘
9 Limitation
on eviction –
(1)
Notwithstanding the provisions of any other law, an occupier may be
evicted only in terms of an order of court issued under
this Act.
(2)
A court may make an order for the eviction of an occupier if-
(a)
the
occupier's right of residence has been terminated in terms of section
8;
(b)
the
occupier has not vacated the land within the period of notice given
by the
owner
or person in charge;
(c)
the
conditions for an order for eviction in terms of section 10 or 11
have been
complied with;
and
(d)
the
owner or person in charge has, after the termination of the right of
residence,
given-
(i) the
occupier;
(ii) the
municipality in whose area of jurisdiction the land in question is
situated;
and
(iii) the
head of the relevant provincial office of the Department of Rural
Development
and Land Reform, for information purposes not less than two
calendar months' written
notice
of the intention to obtain an order for eviction, which notice shall
contain the prescribed particulars and set out the
grounds on which
the eviction is based: Provided that if a notice of application to a
court has, after the termination of the right
of residence, been
given to the occupier, the municipality and the head of the relevant
provincial office of the Department of
Rural Development and Land
Reform not less than two months before the date of the commencement
of the hearing of the application,
this paragraph shall be deemed to
have been complied with.’
[16]
In terms of s 8(1), the right of an occupier to a residence can only
be terminated when first, there are
lawful grounds for such
termination, and secondly, when it is just and equitable to do so. To
my mind, these are the jurisdictional
requirements that have to be
met before an eviction can be sanctioned under ESTA.
[17]
I now turn to the facts of this case. First, the appellants deny
receiving the notices to terminate the lease.
Against this the
respondents failed to file a confirmatory affidavit by the sheriff or
any other witness to gainsay this allegation
– not even a
replying affidavit was filed to counter this allegation. Undoubtedly
this is a dispute of fact which could not
be resolved on the papers.
On the authority of
Plascon Evans-Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) the case should have been decided
on the respondent’s version or referred to oral evidence or to
trial on this disputed
issue. Secondly and most crucially they
contended that the court a quo decided this matter on a totally
different cause of action
than the one alleged in the founding
affidavit.
[18]
It is common cause that the founding affidavit alleged that the
respondents terminated the lease on the basis
that the appellants
failed to perform in terms of the lease agreement in that they failed
to pay the agreed monthly rental since
May 2008. This conduct, it is
alleged, amounted to a serious and fundamental breach of the lease
agreement. This allegation is
disputed by the appellants pertinently
and unequivocally. Instead of dealing with this serious dispute, the
respondents’
counsel raised a new ground of termination at the
hearing. It is not disputed that, this new ground was never raised in
the papers
nor in the respondents’ heads of argument. The court
a quo even commented on the sudden change and reliance on a new
ground
of termination.
[19]
To my mind this is trial by ambush. It may well be that when dealing
with a periodic lease, the law permits
the owner to terminate by
reasonable notice without giving reasons. But I do not think that
this would be so to the extent of allowing
a landowner to mislead an
occupier, be it wittingly or unwittingly by advancing a different
cause of action which when seriously
disputed he or she can just
abandon and rely on a different cause of action. In
Minister of
Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) para
21-22; Harms DP commented as follows about such conduct:
‘
The
onus can arise only after the issue itself has arisen … the
plaintiff’s case was that his arrest and detention
were
unlawful because he had not been drunk and disorderly. His case on
the pleadings was not, …
Cases
by ambush are not countenanced.
’
(My
emphasis.)
[20]
It is settled law that the purpose of pleadings is to define the
issues for the parties and the court. In
application proceedings, the
affidavits do not only constitute evidence, but they also fulfil the
purpose of pleadings. In other
words they must set out the cause of
action in clear and unequivocal terms to enable the respondent to
know what case to meet.
This is the reason why an applicant is never
permitted to change colours which he/she has pinned to the mast and
plead a new cause
of action in a replying affidavit. (See
Diggers
Development (Pty) Ltd v City of Matlosana & another
[2012] 1
All SA 428
(SCA) para 18 –
Naidoo v Sunker
[2012] JOL
28488
(SCA)). A party is duty bound to allege in his or her affidavit
all the material facts upon which it relies. I find the observation
by Mhlantla JA in
Minister of Safety and Security v Slabbert
(supra) to be apposite where she stated:
‘
It
is impermissible for a plaintiff to plead a particular case and seek
to establish a different case at the trial
.
It is
equally not permissible for the trial court to have recourse to
issues falling outside the pleadings when deciding a case.’
(See
Moaki v Reckitt and Colman (Africa) Ltd
1968 (3) SA 98
(A) at
102A.)
[21]
Explaining the crucial role played by affidavits in motion
proceedings, Joffe J said in
Swissborough Diamond Mines v
Government of the Republic of South Africa
1999 (2) SA 279
(T) at
323F-324C:
‘
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the
issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the
Court but also,
and primarily, for the parties.
The
parties must know the case that must be met and in respect of which
they must adduce evidence in the affidavits
.’
(My
emphasis.)
The
above case was referred to with approval by this court in
MEC for
Health, Gauteng v 3P Consulting (Pty) Ltd
2012 (2) SA 542
(SCA)
para 28. (See also
Prokureursorde van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 849B.) Based on what happened in this case, I
am unable to find that the appellants knew what case they had to
meet.
[22]
Section 9(2)
(d)
of ESTA provides that a court may make an
order for the eviction of an occupier if the occupier’s right
of residence has
been terminated in terms of s 8 and the owner or
person in charge has, after the termination of the right of residence
given the
occupier, the municipality and the head of the Department
of Rural Development and Land Reform, not less than two calendar
month’s
written notice of the intention to obtain an order for
eviction, which notice
shall
(My emphasis) contain the
prescribed particulars and set out the grounds on which the eviction
is based. One must ask the question:
what would be the need of
setting out the grounds on which the eviction is based if the owner
can come to court and do a volte-face.
In my view it would make no
sense. It follows, on the facts of this case that the respondents
failed to comply with s 9(2)
(d)
as the case they argued in
court is not the one they pleaded in their notice to terminate and
founding affidavit. The court below
should not have granted the
eviction order. See also D L Carey Miller and A Pope
Land Title in
South Africa
(2000) at 502 para 9.4.7.3 – where the writers
observed that:
‘
The notice
must contain the prescribed particulars and state the grounds on
which eviction is sought
,
it must be given by the owner or person in charge to the occupier,
the municipality with jurisdiction over the land and, for information
purposes, the head of the relevant provincial office of the
Department of Land Affairs.’
(My
emphasis)
(See
also
Lategan v Koopman en andere
1998 (3) SA 457
(LCC) at
463B-D.)
[23]
On the above reasons the application in the court a quo should have
been dismissed. I would accordingly uphold
the appeal.
_________________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Mpati
P (Ponnan and Saldulker JJA concurring):
[24]
I have had the privilege of reading the judgment of my Colleague,
Shongwe JA, but regret that I am unable
to agree with the conclusion
he has reached. The appellants were part of 11 occupiers
[1]
of certain rooms on the farm Boschfontein, situated in the district
of Rustenburg (the farm), owned by the respondents as nominal
owners
in their capacities as trustees of the Voges Familie Trust. In those
capacities the respondents concluded periodical leases
– some
verbal, others reduced to writing – with each of the 11
occupiers, who agreed to occupy the individual rooms
and to pay a
monthly rental. Most of the occupiers took occupation during October
2001, although it appears to be undisputed that
the first appellant
lived with her mother in a room rented by the latter before 1997, but
concluded her own lease agreement with
the respondents in 1999. On 16
April 2009 the respondents launched an application for the eviction
of all 11 occupiers (and those
occupying under or through them). It
was alleged in the founding affidavit that on 19 May 2009 notices of
cancellation of the lease
agreements were served on each one of the
occupiers. An eviction order in respect of all of them was issued by
the Land Claims
Court (LCC) (Sidlova AJ) on 18 January 2013. Leave to
appeal to this Court against that order was granted on 12 November
2013,
but only five of the 11 occupiers are before us.
[25]
The basis for the cancellation of the occupiers’ leases was an
alleged failure by them to pay the monthly
rentals due in terms of
their lease agreements since May 2008. In their answering affidavit,
deposed to by the second appellant,
[2]
the appellants (and the other occupiers) disputed the ground for
cancellation of their leases and averred that in May 2008 they
had
offered payment of their agreed rental amounts, but that the
respondents refused to accept the payments. They also denied that
notices of cancellation of their leases were served on them as
alleged by the respondents. They stated that on 18 May 2009 a Mr
Mpho
Letlhake
[3]
and another gentleman from the Sheriff’s office attempted to
hand to them certain documents, which Mr Letlhake (Deputy Sheriff)
and his companion said were eviction orders. He also told them that
they should vacate the leased rooms. Because they could not
see any
official stamp on the documents they refused to accept the documents
and told the two officials to bring documents ‘with
[a] proper
Court stamp’. The Deputy Sheriff and his companion then left
with the documents. Had the nature and effect of
the documents -
which now appear to have been notices in terms of section 8(1) of the
Extension of Security of Tenure Act 62 of
1997 (ESTA)
[4]
- been explained to them, the occupiers would have accepted them,
so it was alleged in the answering affidavit.
[26]
In a letter addressed to the respondents’ attorneys, dated 7
March 2014, the appellants’ attorneys,
seeking permission to
omit certain documents from the appeal record in terms of rule 9 of
the Rules of this Court, mentioned that
the only issue for
determination by this Court was whether the respondents were entitled
to rely, at the hearing before the LCC,
on the common law ground of
reasonable termination of a lease agreement. Accordingly, parts of
the record not relevant to that
issue were omitted from the record
that served before us on appeal. However, in their heads of argument
the appellants squarely
raised the issue of the alleged non-service
of the notices of termination of their lease agreements and their
counsel argued the
point in this Court. In effect, then, the case for
the appellants was that they were never given notice, or proper
notice, of termination
of their lease agreements.
[27]
The LCC held, however, that s 9(2)(
a
)
of ESTA had been complied with ‘as the principal reason for
termination [of the lease agreements] is that the applicants
need the
land for further development.’
[5]
Section 9, which places a limitation on the eviction of an occupier
from leased premises, has been quoted in full in the judgment
of
Shongwe JA. Its text shall therefore not be repeated here. It
suffices to mention, for present purposes, that it provides that
an
occupier may be evicted only in terms of an order of court issued
under it (subsec (1)), which may be made if the occupier’s
right of residence has been terminated in terms of section 8 (subsec
(2)(
a
))
and the occupier has not vacated the land within the period of notice
given by the owner or person in charge (subsec (2)(
b
)).
[28]
The second issue for determination in this appeal is whether the
respondents, having grounded their termination
of the leases on the
appellants’ breach of a material term of each of the
agreements, being failure to pay the agreed rentals,
were entitled,
at the hearing before the LCC, to rely on the common law ground of
reasonable termination of the leases. With regard
to this issue the
LCC said the following:
‘
In
the course of argument the applicants did not pursue the reason for
termination of the leases mentioned on the notices of termination,
but instead argued that as owners they have the right to terminate a
lease agreement if notice is given timeously. It is advanced
by
applicants that a periodic lease can be terminated on reasonable
notice by either the lessor or the lessee and the tenancy of
the 1
st
to 12
th
respondents was provided only as an interim measure susceptible to
termination at any time by either party on one (1) month’s
written notice
.’
[6]
(Footnote omitted.)
And
further:
‘
The
application raises the issue as to whether it is just and equitable
as required by section 8(1) of [ESTA] for the applicants
to terminate
the lease agreements of the respective respondents. The applicants
allege that they terminated the lease agreements
because of
non-payment. This however is disputed by the respondents. It has also
been noted that in the heads of argument and during
oral argument the
applicants did not pursue this argument and instead chose to rely on
their need to develop their property as
the reason for
termination
.’
[7]
The
LCC was not persuaded by the argument advanced on behalf of the
appellants that the respondents were not entitled to rely on
the
common law ground of termination of the lease agreements.
[29]
I proceed to consider the first issue. It was submitted on behalf of
the appellants that the legal position
regarding the return of
service of a Sheriff or Deputy Sheriff is that it is never
conclusive, but only constitutes prima facie
proof of service of a
particular legal document, which can be rebutted. It was further
contended that in the present case the appellants
conclusively
disproved the correctness of the contents of the returns of the
Sheriff.
[30]
Section 8(1) of ESTA is in the following terms:
‘
(1)
Subject to the provisions of this section, an occupier’s right
of residence may be terminated on any lawful ground, provided
that
such termination is just and equitable, having regard to all relevant
factors and in particular to –
(a)
the
fairness of any agreement, provision in an agreement, or provision of
law on which the owner or person in charge relies;
(b)
the
conduct of the parties giving rise to the termination;
(c)
the
interests of the parties, including the comparative hardship to the
owner or person in charge, the occupier concerned, and any
other
occupier if the right of residence is or is not terminated;
(d)
the
existence of a reasonable expectation of the renewal of the agreement
from which the right to residence arises, after the effluxion
of its
time; and
(e)
the
fairness of the procedure followed by the owner or person in charge,
including whether or not the occupier had or should have
been granted
an effective opportunity to make representations before the decision
was made to terminate the right of residence.’
It
must be noted that the section does not require the notice of
termination of a right of residence to be in writing, nor that
it
must be ‘served’ on the occupier concerned. What would be
necessary is that the termination must be communicated
to the
occupier, for obvious reasons.
[31]
In their answering affidavit the occupiers alleged that in May 2008
they ‘tried to pay their rental
to the first [respondent]’
but that he refused to accept the payments. They went further to
allege that the first respondent’s
reason for refusing to
accept the rental payments was ‘that he was going to demolish
the structures [they] were occupying’
and that they had stopped
paying rental because the respondents refused to accept it. The
common law position is that a periodical
lease, such as the leases in
issue in this appeal, can be terminated by reasonable notice by
either party.
[8]
But to constitute a valid termination the notice must be clear and
unequivocal.
[9]
[32]
The written notices, which the occupiers denied having received,
appear to have been prompted by an earlier
skirmish. From the
judgment of the LCC it appears that on 26 March 2009 the occupiers
obtained an interim order against the respondents,
[10]
in terms of which the latter were directed to rebuild leased rooms
from which corrugated iron roof sheets had been removed. The
allegations that were made by the occupiers in seeking the order were
that the respondents’ actions of removing corrugated
iron
sheets from the roofs of the leased rooms had amounted to
constructive eviction. These actions (of removing corrugated iron
sheets from the roofs of the leased rooms), though unlawful (see ss
9(1) and 23(1) of ESTA), were probably resorted to, I should
think,
because of the occupiers’ failure to vacate their leased rooms
after notice of termination of their leases had been
given. Indeed,
the deponent to the answering affidavit stated that the respondents
had told them to vacate the farm. But no mention
was made of such
notices in the papers before the LCC and I am willing to decide the
matter without reference to them.
[33]
As to service of the written notices the appellants and the other
occupiers averred that on 18 May 2009 the
occupiers were told by the
Deputy Sheriff that the documents he attempted to serve on them were
eviction orders and that they refused
to accept them after they had
examined them. But, except in respect of the second appellant, it was
alleged in the founding affidavit
that the lease agreements were
cancelled on 19 May 2009, which was the date on which the notices of
cancellation were allegedly
served on the occupiers. With regard to
the second appellant, the averment was that cancellation of his lease
agreement occurred
on 18 May 2009. In the only return of service that
forms part of the record on appeal – the others were omitted
because the
question of service of the notices was not in issue at
the time of the preparation of the record – the Deputy Sheriff
stated
that on 19 May 2009, at 17h36, he served the ‘process’
on the first appellant personally, by handing to her a copy thereof
‘after exhibiting the original and explaining the nature and
exigency of the said process.’ It was alleged in the answering
affidavit that the Deputy Sheriff returned to the farm the next day
(19 May 2009) and told the occupiers that since they had refused
to
accept the ‘eviction papers’ the owner of the farm was
going to demolish their homes. But the answering affidavit
did not
deal with the stated fact in the return of service, that the
‘process’ was served on the occupiers on that
day. Nor,
critically, did it dispute the assertion in the return of service
that the nature and exigency of the process had been
explained to
them. In those circumstances, on these aspects of the matter a
replying affidavit was hardly necessary. The same,
it must be said,
goes for a confirmatory affidavit from the Deputy Sheriff. I am thus
satisfied that the termination of the individual
appellants’
right of residence (and of the other occupiers) was communicated to
them on 19 May 2009. In any event, the occupiers,
on their own
version, had known from the day the respondents refused to accept
payment of their rental, that they were required
to vacate the
property. In terms of the notices of termination they were given a
period of two months to vacate the premises. To
my mind, the notices
were reasonable.
[34]
The basis for the termination of the appellants’ right of
residence, as contained in each notice was
that they had failed to
perform in terms of their lease agreements ‘in that they failed
to pay the monthly rental since May
2008, which amounted to a
fundamental breach of the lease agreement . . . .’
[11]
In their answering affidavit the appellants denied the allegation
that they failed to pay rental due to the respondents –
an
issue I deal with in para 36 below - but did not suggest that the
basis for the termination of their right of residence was
not lawful.
Failure by a lessee to pay the agreed rental on due date is indeed a
lawful ground for the termination of a right of
residence.
[12]
In this instance, the rent was payable on or before the first day of
each month.
[35]
The next question to consider is whether the termination was just and
equitable. The submission was made
in the answering affidavit that
the termination of the lease agreements was unfair, unjust and
inequitable, because ‘there
was no wrong-doing’ on the
part of the occupiers and that the respondents had ‘never even
demanded payment of arrear
rental’ from them. In considering
whether the termination of an occupier’s right of residence is
just and equitable
a court is enjoined to have regard to all relevant
factors and, in particular, those enumerated in items
(a)
to
(e)
of s 8(1) of ESTA.
[13]
In
Brisley
v Drotsky
2002 (4) SA 1
(SCA) this Court, with reference to s 26(3) of the
Constitution, held that the circumstances a court is required to
consider before
issuing an eviction order can only be relevant if
they are
legally
relevant.
[14]
The lease agreements concluded between the respondents, on the one
hand, and the first and second appellants, on the other, were
reduced
to writing. A copy of the agreement involving the first appellant
forms part of the record. A perusal thereof reveals no
unfairness in
its terms and none was suggested by the appellants (s 8(1)
(a)
).
It must be accepted that the written agreement relating to the second
appellant contained similar terms. There is no reason to
think that
the terms of the verbal agreements were any different.
[36]
As to s 8(1)
(b)
I
have mentioned (in para 32 above) the skirmishes between the parties.
It is common cause that the appellants (and other occupiers)
did not
pay the agreed rental to the respondents for a period of a year since
May 2008. On the authority of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C, it must be accepted that in May
2008 the occupiers attempted to pay their rentals and that the
respondents refused
to accept the payments. However, the occupiers
continued to occupy their leased rooms for a year and there is no
suggestion in
the papers that in that time they tendered payment of
the rentals. No tender had been made by any one of the appellants to
pay
arrear rental (or the rentals as and when they fell due), to
which the respondents were entitled. Thus, the fact that the
respondents
refused to accept payment of the rentals in May 2008 did
not exonerate the occupiers from liability to pay the rentals for the
rooms they occupied and, insofar as the appellants are concerned,
still occupy, it being well-settled that the appellants (as lessees)
were under an obligation to pay (or at the very least tender to pay
or signify readiness to pay) the rental agreed upon.
[15]
[37]
On the occupiers’ own version the respondents informed them
when they (respondents) refused to accept
payment of the rentals that
they wished to demolish the structures. In its judgment the LCC
stated that the respondents ‘outlined
details on which the
property is to be utilized upon vacation’ by the occupiers.
Clearly, the respondents would be unable
to utilize the property as
they wish if the appellants’ right of residence was not
terminated. The appellants (and the other
occupiers) did not suggest
any hardship that they would endure as a result of the termination of
their right of occupation (s 8(1)
(c)
).
[38]
Section 8(1)
(d)
is not relevant in this case. As to subsec
(1)
(e)
, the procedure followed by the respondents in giving
written notices of the termination of the right of residence and
affording
the occupiers two months to vacate the premises was, to my
mind, fair. Nothing to the contrary was advanced on behalf of the
appellants.
The discussions in paragraphs 34 and 35 above also cover
the requirement to consider all relevant factors as enjoined by ESTA.
In my view, the termination of each appellant’s right of
residence was just and equitable. I agree, therefore, with the LCC
that there was compliance with the provisions of s 8(1) of ESTA.
Subsections (2) to (7) are not applicable here.
[39]
It is now convenient to deal with the point of my disagreement with
the conclusion reached by my colleague,
Shongwe JA. In his judgment
Shongwe JA upholds the argument on behalf of the appellants that the
respondents, having based their
case in both the notice of
termination and the founding affidavit on the allegation that the
lease agreements were terminated because
of non-payment of rent by
the appellants, impermissibly argued their case on a totally
different basis. The different basis referred
to is, as mentioned by
the LCC in its judgment, that as owners the respondents had the right
to terminate the lease agreement and
obtain an order of eviction if
timeous notice of the termination had been given.
[16]
Shongwe JA states, correctly so with respect, that affidavits do not
only constitute evidence, but also fulfil the purpose of pleadings
and that they must set out the cause of action in clear and
unequivocal terms to enable the respondent to know what case to meet
(para 20). He then refers to the decision of this Court in
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA), where the following was said:
‘
It
is impermissible for a plaintiff to plead a particular case and seek
to establish a different case at the trial. It is equally
not
permissible for the trial court to have recourse to issues falling
outside the pleadings when deciding a case
.’
Shongwe
JA observes that instead of dealing with the serious dispute of
whether or not the appellants failed to perform in terms
of the lease
agreement counsel for the respondents ‘raised a new ground of
termination at the hearing’ (para 18). That,
he says,
constitutes a trial by ambush, since a different cause of action was
advanced and relied upon and the seriously disputed
one was just
abandoned (para 19).
[40]
With respect, the ground for the termination of the lease agreements
was not the cause of action. The cause
of action upon which the
respondents relied in seeking the eviction order was cancellation of
the lease agreements,
[17]
elaborated upon as follows: (1) that on 18 or 19 May 2009 the
respondents cancelled the lease agreements they had concluded with
each one of the occupiers; (2) that a notice of cancellation was
served on each occupier; (3) that each occupier’s right
to
occupy the property terminated on 19 May 2009; and (4) that the
occupiers have failed to vacate the property. The respondents’
case boiled down to this: their cancellation resulted in the
occupiers’ right of residence being terminated and, on
termination
the occupiers, as lessees, were under a duty to vacate
the leased property.
[41]
The contentions advanced on behalf of the respondents before the LCC,
namely, that under the common law a
periodical lease can be
terminated on reasonable notice by either party; that the tenancy of
the occupiers was only an interim
measure susceptible to termination
at any time by either party on one month’s notice; that
therefore cancellation of the
lease agreements did not depend on
breach or good reason and that reasonable notice of cancellation
sufficed, are exactly that:
contentions advanced during the course of
argument in support of the relief sought, namely, the eviction of the
occupiers. And
to my mind, counsel for the respondents was perfectly
entitled to rely (as he did) on such common law grounds as availed
the respondents
in support of the pleaded claim for eviction. What
mattered was whether a proper foundation for such argument had been
laid in
the founding affidavit. In my view, the answer is in the
affirmative. In this regard it is perhaps important to distinguish
between
a proper factual foundation in support of the relief sought,
on the one hand, and legal argument, on the other and to appreciate
that it is ordinarily impermissible for legal argument to be raised
in an affidavit. It thus seems to me that the notion of a trial
by
ambush is misplaced when, as happened here, a single cause of action
is relied upon, which finds support in the pleaded case.
Properly
understood, the respondents’ case was that the lease agreements
had come to an end either because they had been
validly cancelled for
non-payment of rentals or, alternatively, as the respondents were
entitled to, at common law, they had given
reasonable notice of
termination of the lease agreements to the occupiers. In either event
the result was termination of the lease
agreements, with the
consequence that the occupiers were obliged to vacate the leased
property.
[42]
In their founding affidavit the respondents averred that in their
capacities as trustees of the trust they
are the nominal owners of
the property (the farm); that on particular dates they concluded
lease agreements with the individual
occupiers; that on 18 or 19 May
2009 they cancelled the agreements in writing; that the occupiers’
right to occupy their
respective rooms therefore terminated on 19 May
2009 and that the occupiers had (as at the date the founding
affidavit was deposed
to) failed to vacate the property. Whether the
notice of termination was reasonable, clear and unequivocal are
matters to be determined
by a court. I have already held that the
notice of termination was reasonable. To my mind, it was also clear
and unequivocal. Thus,
reliance on the common law ground of
termination of the lease agreements was covered in the papers and the
appellants (and the
other occupiers) were neither misled, nor
ambushed at the trial. I might mention, in any event, that in
Putco
this Court said the following:
‘
Where
a party seeks to terminate an agreement and relies upon a wrong
reason to do so he is not bound thereby, but is entitled to
take
advantage of the existence of a justifiable reason for termination,
notwithstanding the wrong reason he may have given (cf
Matador
Buildings (Pty) Ltd v Harman
1971 (2) SA 21
(C) at 28A;
Stewart
Wrightson (Pty) Ltd v Thorpe
1977 (2) SA 943
(A) at 953G.)
’
[18]
I
must make it clear, lest it be suggested that the allegation, in the
founding affidavit, of failure by the occupiers to pay rental
was an
inadequate ground for termination of the lease agreements, that, in
my opinion, it was adequate as I have attempted to show
above.
[43]
I should mention further that on my reading of the judgment of the
LCC the respondents did not abandon the
ground of termination of the
lease agreements as contained in the notice of termination. Counsel
for the respondents simply chose
to argue the case on another basis,
which, as I have mentioned, he was perfectly entitled to do. That
basis was that it was not
necessary for the respondents to set out
the ground they did in the founding affidavit and, to the extent that
they did so, that
was simply surplus to their cause of action. As
long ago as
Graham v Ridley
1931 TPD 476
at 479 it was stated:
‘
One
of the rights arising out of ownership is the right to possession;
indeed
Grotius
(Introd.
2, 3, 4) says that ownership consists in the right to recover lost
possession.
Prima
facie
,
therefore, proof that the appellant is owner and that respondent is
in possession entitles the appellant to an order giving him
possession, i.e., to an order for ejectment. When an owner sues for
ejectment an allegation in his declaration that he has granted
the
defendant a lease which is terminated is an unnecessary allegation
and is merely a convenient way of anticipating the defendant’s
plea that the latter is in possession by virtue of a lease, which
plea would call for a replication that the lease is terminated.
It is
the defendant and not the owner-plaintiff who relies on the lease,
and if the lease itself is denied by the defendant, as
in the present
case, the allegation of the lease is surplusage
.’
[19]
What
is of importance is that, unlike the case in
Brisley
v Drotsky,
in the present matter the right of the owners to possession of their
property and to an order of ejectment against an unlawful
occupier
are limited by the provisions of ESTA. Thus, reliance on the common
law does not exonerate the owners from compliance
with the provisions
of s 8 of ESTA, to mention but one section.
[20]
I have already dealt with the requirements of s 8 and it is not
necessary to do so again. The LCC did so too and found ‘that
section 9(2)
(a)
was
complied with as the principal reason for termination is that the
applicants need the land for further development.’ It
also
found that s 9(2)
(b)
had been complied with in that ‘the occupiers had not vacated
the land within the notice period.’
[44]
As to s 9(2)
(c)
the LCC’s finding that the provisions of
s 11 apply to all the occupiers was not challenged in this Court.
There was no suggestion
that, in dealing with the provisions of s 11,
particularly whether it was just and equitable to grant an order for
eviction (s
(9)(2) and (3)), and in exercising its discretion against
the occupiers by granting such order, the LCC erred. Counsel for the
appellants put all his efforts on the issues of the alleged
introduction of a new ground for the termination of the lease
agreements,
which, according to his submission, was wrongly allowed
by the LCC, and the alleged non-service of the notice of termination
and,
therefore, denial of receipt thereof. There is, in my view, no
reason to interfere with the exercise of its discretion by the LCC.
For, on either of the two legs advanced by the respondents, they
would, at common law, have been entitled to the relief sought.
And,
as I have shown, they have, in addition, satisfied the further
requirements for an eviction set by ESTA.
[45]
The LCC ordered the occupiers, including the appellants, to vacate
the farm by 31 March 2013, failing which
the Sheriff was authorised
to remove them on or after 3 April 2013. Its order was issued on 18
January 2013. It was not suggested
that these dates were not just and
equitable (s 12(1) and (2) of ESTA). As at 20 February 2015 (the date
this appeal was heard)
the appellants had been living on the farm,
occupying their leased rooms, for a further period of two years. In
my view, it would
be reasonable for the appellants to be given a
further period of one (1) month to vacate the farm from the date of
the order of
this Court.
[46]
In the result I would make the following order:
1
The appeal is dismissed.
2
The appellants and all other persons occupying under or through them
are ordered to vacate Portion 81 (a portion of Portion 65)
of the
farm Boschfontein 330-JQ, Rustenburg (the farm), on or before 7 June
2015.
3
Failing compliance with the order in 2 the Sheriff for the district
of Rustenburg is authorised to evict the appellants and all
other
persons occupying under or through them, from the farm 10 days after
the date contemplated in 2 above.
_____________________
L
MPATI
PRESIDENT
Appearances
For
the Appellant: J J Botha
Instructed by:
Matshitse Attorneys,
Potchefstroom;
Matsepes Inc,
Bloemfontein.
For
the Respondent: A Vorster (with him I Oschman)
Instructed by:
Frese Moll &
Partners, Johannesburg;
Webbers,
Bloemfontein.
[1]
The names
reflected as third and fifth appellants are the different names of
the same person.
[2]
All the other
occupiers deposed to confirmatory affidavits.
[3]
He was the
Deputy Sheriff for the Magistrate’s Court, Rustenburg.
[4]
That the
provisions of the Extension of Security of Tenure Act 62 of 1997
(ESTA) are applicable in this case and that the appellants
are
occupiers as defined in ESTA are common cause.
[5]
Para 16 of
the judgment.
[6]
Para 8 of the
judgment.
[7]
Para 12.
[8]
Tiopaizi v
Bulawayo Municipality
1923 AD 317.
[9]
Putco Ltd
v TV & Radio Guarantee Co (Pty) Ltd and other Related Cases
1985 (4) SA 809
(A) at 830E.
[10]
According to
the answering affidavit the interim order was made final on 9 April
2009.
[11]
Clause 8 of the written lease
agreement provided that in the event of the lessee failing to comply
with the terms of the agreement
of lease and remains in breach, the
lessor may (‘kan’) give to the lessee 24 hours’
notice to vacate the property
irrespective of the day and the date
of the month.
[12]
Cf
Goldberg
v Buytendag Boerdery Beleggings (Edas) Bpk
1980 (4) SA 775 (A).
[13]
Mkangeli &
others v Joubert & others
2002 (4) SA 36
(SCA) para 11;
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005
(4) SA 506
(SCA) para 12.
[14]
Para 42.
[15]
Cf
Ford Agencies v Hechler
1928 TPD 638
at 641 - 642
[16]
See para 28
above.
[17]
See s 9(2)(
a
)
of ESTA and
Potgieter
& another v Van der Merwe
1949 (1) SA 361
at 366.
[18]
At 832D.
[19]
This was an extract from an
earlier unreported judgment in
Gordon
v Kamaludin
(T.P.D.
15.9.27), referred to with approval in
Graham
v Ridley
.
[20]
Compare
Brisley
v Drotsky
,
para 43.