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[2014] ZAGPJHC 406
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Dibetle v Chiloane and Others (46325/2013) [2014] ZAGPJHC 406 (28 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 46325/2013
DATE:
28 NOVEMBER 2014
In
the matter between:
DIBETLE,
KABELO
EUGENE
............................................................................................
Applicant
And
CHILOANE,
ARON
.................................................................................................
First
Respondent
ALL
OTHER PERSONS CLAIMING OCCUPATION
OF
ERF 9178 PROTEA GLEN EXTENSION 12
TOWNSHIP
................................
Second
Respondent
CITY
OF
JOHANNESBURG
...................................................................................
Third
Respondent
Summary:
Application
for the eviction of unlawful occupiers in terms of Prevention of the
Illegal Eviction from and the Unlawful Occupation
of Land Act, 19 of
1998 (PIE Act) – found first respondent is an unlawful occupier
– but Court lacking sufficient information
on which to make
determination that eviction would be just and equitable, and that
eviction order from a specified date would be
just and equitable, as
envisaged in section 4(7) and (8) of PIE Act – application
dismissed – no costs order made.
JUDGMENT
MAENETJE AJ:
Introduction
1.
The applicant seeks an order evicting the
respondents from erf 9178 Protea Glen Extension 12 Township (“the
property”).
He brought the application in terms of the
Prevention of the Illegal Eviction from and the Unlawful Occupation
of Land Act, 19
of 1998 (“the PIE Act”). The applicant
seeks additional relief to the order for eviction. It is convenient
to quote
the relief sought as set out in the notice of motion:
“
1.
That the First Respondent and the Second Respondent herein, be
evicted from the property and the buildings erected on the property
better known as
ERF 9178 PROTEA GLEN
EXTENSION 12
(“the Property”).
2.
The determination by the Court of a just and equitable date on which
the First and Second Respondents shall vacate the above
premises.
3.
The determination by the Court of a date on which an eviction order
may be carried out if the First and/or Second Respondents
have not
vacated the property by the date set out in paragraph 2 hereof.
4.
That in the event that the First and/or Second Respondents do not
vacate the property on the date determined by the Honourable
Court,
the Sheriff of the Court or his lawfully appointed deputy be
authorized and directed to evict the First and/or Second Respondents
from the property.
5.
That the First and/or Second Respondents are interdicted and
restrained from entering the property at any time after they have
vacated the property, or been evicted therefrom by the Sheriff of the
Court or his lawfully appointed Deputy.
6.
That in the event that the First and/or Second Respondents contravene
the order contained in paragraph 5 above, the Sheriff of
the Court or
his lawfully appointed Deputy is hereby authorized and directed to
remove them from the property as soon as possible
after their
reoccupation thereof.
7.
The First and Second Respondents to pay the costs of this
Application.”
2.
The first respondent opposes the
application on the basis that he owns the property, having allegedly
bought it from Inyathi Properties
of 247 Rondebult Road, Farrar Park,
Boksburg. Furthermore, that it would not be just and equitable to
grant the eviction order.
Ownership
of the property
3.
The applicant states the following in his
founding affidavit regarding his ownership of the property:
“
11.
On or about the 10 July 2013 the property was registered into my name
in the Deeds Office, Johannesburg under Title Deed No
T24706/2013. I
respectfully refer … the above Honourable Court to the
Conveyancers Certificate marked “
DK2
”.
12.
I am not in possession of my original Title Deed, because the
property serves as security for mortgage loan I obtained from
ABSA
BANK LTD in the amount of R120 000.00, and ABSA BANK LTD is keeping
same as security until I have repaid the said mortgage
loan in full.
…
Background
facts
:
14.
On or about the 8 May 2013 I purchased the property in terms of a
written offer to purchase from the previous owner, Dipapadi
Prop 7
CC.
15.
The agreed purchase price was the amount of R350 000.00. I duly
paid a deposit of R230 000.00, and obtained a mortgage
loan for the
balance of the purchase price outstanding from ABSA BANK LIMITED in
the amount of R120 000.00.
16.
ABSA BANK [LIMITED] caused a mortgage bond as security to be
registered over the property under Bond Deed No. B17958/2013
simultaneously
with the transfer of the property in my name on the 10
July 2013.”
4.
The applicant attaches a copy of the Deed
of Transfer referred to in the founding affidavit. It records
the date of execution
as 10 July 2013, and reflects that the property
was transferred from Dipapadi Property 7 CC into the applicant’s
name.
A conveyancer’s certificate is also attached, which
is dated 23 November 2013, and confirms that the property was
registered
in the Johannesburg Deeds Registry on 10 July 2013 into
the name of the applicant.
5.
In contrast to the applicant’s
allegations in the founding affidavit, the first respondent states
the following in his answering
affidavit:
“
1.
The property alleged to be evicted being house number 9178 Extension
12 (twelve) Protea-Glen, Soweto is mine.
2.
I bought the property from
INYATHI
PROPERTIES of
247
Rondebult Road
Farrar
Park
Borksburg
tel
: 011- 896- 1650
3.
I bought the house for R380, 000,00 as per offer to purchase signed
by me and them through their Agency Mrs Zelda Lackay and
their
representative Mr GEORGE MTEBE copy of the offer is attached hereto
marked “
AC 1”
.”
6.
The offer to purchase that the first
respondent refers to in his answering affidavit bears the heading
“INYATI PROPERTIES”.
Contrary to what the first
respondent states in his answering affidavit, the offer to purchase
is only signed by the purchaser.
There is no signature by or
for the seller. It seems to be dated 16 October 2013, which is
probably the date when the purchaser
signed it. The date of 16
October 2013 is after the property was transferred into the
applicant’s name, which transfer
occurred on 10 July 2013 as
per the Deed of Transfer and the conveyancer’s certificate
referred to above.
7.
The first respondent alleges that the
property was bought through a bond with Standard Bank.
8.
Surprisingly, the first respondent later
states the following in his answering affidavit:
“
5
The
property that I am being evicted was bought by my child Patric
Ch[i]loane and counsin Mr J. Masikenya for us in the house.The
house
was bought from Peoples Bank for the amount of R128, 000,00 on a bond
loan, copy is attached marked Annexure “
AC
3”
.6
My
child Mr Chiloane continued to pay for the bond as from 27
th
July, 2003 until 2005 when the company he was working for was
liquidated and was subsequently retrenched. He brought to the
attention of the Peoples Bank that he is not working and once he
found work will pay the arrears and outstanding moneys.
This
was accepted by the Bank’s clerks that no action will be taken
against them. As to Mr Masikenya he was retrenched
and was also
unemployed.
I
was surprised when one of the Banks agent attended my house to inform
us that the house is in arrears. We attended the Bank
with my
child as I was doing skropies even if I was not earning much I binded
myself to pay the arrears and the bond. I attach
hereto copies
of payment to Nedbank that I have finished paying the bond is not
owing “
AC 4”
.
On
receiving the summons, application by the Applicant I approached
Nedbank where payment is made and asked, and brought to their
attention of the eviction, that the house has been sold to applicant.
I was advised that they do not know and to get an attorney
to assist
me.
I was phoned by one
Agent of INYATHI PROPERTIES that the house belongs to them. I
do not remember the date well but it was
in August, 2013 I attended
their offices where I was shown papers and asked that the house is in
their hands they can sell the
house to me.
I was given
papers for sale by then I did not read them in their office as Mrs
Zelda Lackay completed the form and I signed
. She asked me
to take the papers, offer to purchase to the bank and told me they
know what to do which I did.
I
attended Standardbank, Carlton Cenre branch, Johannesburg, for a loan
and my application for a loan was successful. Mr Godfrey
the
Banks employee completed the necessary papers and send some papers to
Inyathi Properties for completion.
On
a date unknown to me Mr Godfrey called me to take the necessary
papers to Inyathi [P]roperties to further complete loan papers.
I attended the Inyathi Properties
offices and gave the forms to Mrs Lackay to complete she refused and
said no she had made a mistake
by completing and giving me the offer
to purchase and there is nothing she can help me with
.
I then proce[ded] to get legal advise.
My
Attorneys of record phoned Inyathi Properties and Mrs Lackay
confirmed what was said to me legal representative that she has
made
a mistake by selling the house to me
.
I have instructed my legal representative to bring an application
against the company to enforce the sale as I had withdrawn
my
investments, moneys from Capitec Bank in the payment of my loan with
Inyathi Properties copies are attached marked Annexure
“
AR
5”
.
I
bought the house back as I do not have any place to stay and I have
been staying in the said house from my young days and all
my moneys
were spend on the improvement to the house. …”
(Emphasis added)
9.
It is clear from what is stated in the
quoted passages above that Inyathi Properties never signed the offer
to purchase. It
also seems that the first respondent was
attempting to purchase the property back, probably after repossession
and a sale in execution.
The latter is, however, not stated and
made clear on the papers. What is clear is that the first
respondent never acquired
ownership of the property from Inyathi
Properties, contrary to his earlier allegation in the answering
affidavit.
10.
In the circumstances, I find the first
respondent’s defence that he owns the property and is therefore
not an unlawful occupier
as contemplated in the PIE Act to be
unsustainable. The date on which the purchaser, which is
presumably the first respondent,
signed the offer to purchase by
Inyathi Properties appears to be after the date of transfer of the
property into the applicant’s
name, i.e. 10 July 2013. In
addition, the Inyathi Properties offer to purchase is only signed by
the purchaser and not the
seller. Furthermore, any valid and
effective sale of the property by Inyathi Properties to the first
respondent is directly
contradicted by what the first respondent says
at quoted paragraphs 11 and 12 of the answering affidavit. At
these paragraphs
of the first respondent’s answering affidavit,
it is plain that Inyathi Properties declined to go ahead with the
alleged
sale of the property to the first respondent on the basis
that it was a mistake to have made the offer to sell in the first
place.
11.
In the absence of any other alleged legal
title, other than ownership, entitling the first respondent to
lawfully occupy the property,
I have to find that he is an unlawful
occupier as defined in the PIE Act. It is clear that the applicant
does not consent to the
first respondent’s occupation of the
property. The PIE Act states that an unlawful occupier means:
“
a person who
occupies land without the express or tacit consent of the owner or
person in charge, or without any other right in
law to occupy such
land, excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act, 1997
, and excluding a person whose
informal right to land, but for the provisions of this Act, would be
protected by the provisions
of the Interim Protection of Informal
Land Rights Act, 1996 (Act No. 31 of 1996).”
12.
A
person is an unlawful occupier even if at some point in time he or
she had lawful title to occupy the property, if such title
has been
lost as at the time when eviction proceedings are brought.
[1]
Whether
it is just and equitable to grant the eviction order
13.
In
City of Johannesburg v
Changing Tides 74 (Pty) Ltd and others (Socio-Economic Rights
Institute of South Africa
as
amicus curiae
)
[2013]
1 All SA 8
(SCA), Wallis JA summed up the proper enquiry where an
eviction order is sought by a private owner, as opposed to an organ
of State,
as follows:
“
[25]
Reverting then to the relationship between sections 4(7) and
(8), the position can be summarised 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
section 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
section 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 section 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. Before doing so, however, it must consider what justice
and equity demands in relation to the
date of implementation of that
order and it must consider what conditions must be attached to that
order. In that second enquiry
it must consider the impact of an
eviction order on the occupiers and whether they may be rendered
homeless thereby or need emergency
assistance to relocate elsewhere.
The order that it grants as a result of these two discrete
enquiries is a single order. Accordingly, it cannot be granted until
both enquiries have been undertaken and the conclusion reached that
the grant of an eviction order, effective from a specified date,
is
just and equitable. Nor can the enquiry be concluded until the court
is satisfied that it is in possession of all the information
necessary to make both findings based on justice and equity
.”
(Emphasis added)
14.
Section 4(7) of the PIE Act provides 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.”
15.
Section 4(8) of the PIE Act provides as
follows:
“
(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
).”
16.
In this case not enough information has
been placed before the Court by the parties in order to enable the
Court to undertake the
two-stage assessment, i.e. whether it would be
just and equitable to grant an eviction order, and what justice and
equity demands
as regards the date for the implementation of the
eviction order.
17.
In his founding affidavit the applicant
makes the following relevant allegations:
“
I
have no knowledge whether the 1
st
and 2
nd
Respondents are currently working and do not know whether they can
afford suitable alternative accommodation”.
“
The
1
st
Respondent, to my knowledge, is in good health of middle age and
cannot be considered an elderly person. I am therefore
not
aware of any special circumstances relating to the needs of an
elderly, minor or disabled person residing in the property
as
stipulated in the Act and I submit that the 1
st
Respondent can find an alternative accommodation.”
“
In
this regard I submit respectfully that the protection of the rights
and interest of the category of those individuals and
person which
the Legislature had in mind when promulgating the Act into law,
does not in the present instance apply at all
and further I have no
knowledge whatsover of any other within or even outside the City of
Johannesburg, who would be willing
to accommodate and/or house any
individual for free.”
18.
The first respondent alleges in his
answering affidavit that when the applicant bought the house “he
was aware that there
are people in the house, children, women,
elderly etc, he did not buy an empty house”. The
applicant does not deal
with this allegation in his replying
affidavit, save to state a bare denial to paragraphs 23 to 50 of the
first respondent’s
answering affidavit, which include the
allegations regarding other people that live on the property, which I
have quoted from the
first respondent’s answering affidavit.
The applicant does not even state that he does not know that there
are other
people living on the property in addition to the first
respondent. In addition, it is common cause from the replying
affidavit
that the first respondent has been living on the property
for a period of 10 years.
19.
In the circumstances, I have to decide the
matter on the basis that there are other occupants of the property in
addition to the
first respondent, and who include children, women and
the elderly.
20.
I am not able, on the information provided
to the Court, to find that it would be just and equitable to grant an
order of eviction
in light of the factors in section 4(7) of the PIE
Act. I can also not determine what, on the available
information, and
in light of equity and justice, would be an
appropriate date on which an order of eviction should be implemented,
or what conditions
should be attached to such an order to ensure that
the implementation of an eviction order is just and equitable.
Without
being satisfied of these matters, the Court is precluded from
granting an eviction order in terms of the provisions of section 4(8)
of the PIE Act.
21.
During oral argument, the Court raised the
above matters, regarding justice and equity, with counsel for the
applicant, especially
the issue regarding children, women and the
elderly that the first respondent alleges live on the property with
him. Counsel
for the applicant contended that the applicant had
put up all relevant facts for the Court to grant an eviction.
He submitted
that the Court must grant the orders sought in the
notice of motion on the basis of the papers before the Court.
22.
In light of what I have set out above, I am
not in a position to grant the eviction order sought in light of the
peremptory provisions
of section 4(8) of the PIE Act. The
applicant carries the burden in the first instance to place
information before
the Court to satisfy it that the order of eviction
would be just and equitable, including the date by which it is to be
implemented.
The Supreme Court of Appeal said the following in
Changing Tides
in
this regard:
“
[29]
. . . 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. . . .” (Emphasis added)
23.
In
Ekurhuleni Metropolitan
Municipality and another v Various Occupiers, Eden Park Extension
5
[2014] 1 All SA 386
(SCA) at paragraph 21, the Supreme
Court Appeal referred with apparent approval to the
dicta
in
paragraphs 29 and 30 in
Changing Tides.
24.
It is open to the applicant to approach the
Court again for the order of eviction and to provide the Court with
relevant facts on
which it can properly decide the matter in light of
section 4(8) of the PIE Act. It is clear from the allegations
in the
first respondent’s answering affidavit regarding persons
occupying the property that the relevant facts in this matter cannot
be limited to ownership of the property by the applicant, and
occupation of the property by the first respondent. The
applicant
should be given an opportunity to come to Court on the same
papers duly supplemented to deal with the factors in section 4(7) of
the PIE Act.
25.
Given my findings regarding ownership of
the property, and the contradictory allegations that the first
respondent made in his answering
affidavit on this issue, I exercise
the Court’s discretion against awarding costs against the
applicant. The first
respondent was not entirely candid with
the Court. Furthermore, whilst the applicant is not granted an order
of eviction, this
constitutes a limited burden on the applicant’s
right of ownership, as the first respondent has not put up other
lawful title
to remain in occupation of the property.
Ultimately, and once the Court is satisfied as to the requirements of
section 4(7)
of the PIE Act, it would be obliged to grant an eviction
order to the applicant in terms of section 4(8) of the PIE Act.
Order
26.
In the circumstances, I make the following
order:
The
application is dismissed.
The
applicant is given leave to approach the Court for an eviction
order on the same papers duly supplemented to deal with the
factors
in section 4(7) of the PIE Act.
There
is no order as to costs.
Appearances:
Counsel
for applicant: JM Prinsloo
Attorneys
for applicant: KNB Attorneys
Counsel
for first and second respondents: M Monnakgotla
Attorneys
for first and second respondents: TM Selamolela Attorneys
Date
of hearing: 19 November 2014
Date
of judgment: 28 November 2014
[1]
Ndlovu
v Ngcobo; Bekker and Bosch v Jiba
2003
(1) SA 113
(SCA).