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[2015] ZAGPJHC 2
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All Builders And Cleaning Services CC v Matlaila and Others (42349/13) [2015] ZAGPJHC 2 (16 January 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT JOHANNESBURG
CASE
NO: 42349/13
DATE:
16 JANUARY 2015
In
the matter between:
ALL
BUILDING AND CLEANING SERVICES
CC
.............................
Applicant
(REG.
NO. 2000/014545/23)
And
LESIBA
JOHANNES MATLAILA
...........................................
First
Respondent
(ID
NO. 4……………………)
SOPHIE
KHUMALO
...........................................................
Second
Respondent
CONNIE
KHUMALO
.............................................................
Third
Respondent
ALL
OTHER OCCUPANTS OF 236 WILSON
......................
Fourth
Respondent
STREET,
FAIRLANDS
THE
CITY OF JOHANNESBURG
...........................................
Fifth
Respondent
METROPOLITAN
MUNICIPALITY
JUDGEMENT
CARSTENSEN
AJ:
1.
In this instance, the Applicant seeks to evict the First,
Second, Third and Fourth Respondents from erf 881 in the township of
Fairlands,
situated at 236 Wilson Street, Fairlands, Johannesburg.
2.
The basis of the Applicant’s argument is that the First
to Third Respondents are the only occupiers of the property and the
Applicant is the lawful owner of the property, an aspect which is not
placed in dispute.
3.
Many of the facts of this matter are in common cause as one
would expect from application proceedings. The First Respondent is a
71 year old man who has lived on the property for in excess of 40
years, probably 44 years. He was initially employed by Mr Twaalfhoven
who used the property as a small holding on which he cultivated fruit
and raised livestock.
4.
The First Respondent commenced employment on the property in
1970 and until 2008, resided on the property with the consent of
Twaalfhoven.
The Second and Third Respondents have lived on the
property their entire lives. Both the First and Second Respondents
are now pensioners
and the Third Respondent is the Second
Respondent’s
daughter. The First Respondent is also a widower who does gardening
work in the area to supplement his income
totaling about R3 700.00
per month.
5.
On being employed by Twaalfhoven in 1970, he cared for the
livestock and packed fruit. He also maintained the farm and initially
earned R2.00 per week. Twaalfhoven allocated them a piece of land
where they could plant food and flowers for their own use.
6.
In 1988, Twaalfhoven sold his livestock and was no longer
interested in selling fruit, but the First Respondent continued to
tend
to the farm. Twaalfhoven reduced the hours of work of the Second
Respondent, but not her salary.
7.
In 1994 when Twaalfhoven’s health started to fail after
he suffered a stroke, the First and Second Respondents took care of
him and the farm. In 1998, Twaalfhoven started renovating the house
and told the First and Second Respondents that he would transfer
ownership of the house to them as they were his only family. Shortly
thereafter, he became ill and was also cared for by Rita Swanepoel
who lived on the farm opposite the property.
8.
On his death, it transpired that Twaalfhoven had bequeathed
the property to Swanepoel and since then, ownership of the property
has been transferred three times. Through all of this, the First,
Second and Third Respondents remained in occupation of the property.
9.
During 2008, the people who allegedly purchased the property
from Swanepoel placed a board advertising that the property would be
sold on auction. The Respondents were not informed of what happened
at the auction.
10.
On the 27
th
of April 2013, a truck arrived with
young men who began dismantling the Respondents’ home. A person
introduced himself as
Mzwandile claimed to be the owner of the
property, but their neighbours intervened and the men left.
11.
Two days later the same men, as far as the Respondents were
concerned, arrived with a caterpillar earthmoving machine and started
removing the vegetation on the property. The police were called and
the First Respondent obtained a letter restraining these people
from
intimidating the Respondents any further.
12.
Thereafter, a Mr Linde approached the First Respondent and
advised him that the Applicant was the owner and offered to pay a
month’s
rental for a flat if he vacated. The First Respondent
explained to Mr Linde that he couldn’t pay the second months
rental,
or any rental thereafter.
13.
There are three dwellings on the property. The main house, the
front house and the servants quarters.
14.
There is one water pipe / stand pipe on the property where the
Respondents obtain their water. They used to have access to internal
plumbing, but this was destroyed by the men described above.
15.
Since 2008, there has been no electricity on the property.
16.
The Frist Respondent originates from Dipoding but then settled
in Ga Matune in 1958. The First Respondent then moved to Johannesburg
and commenced employed with Twaalfhoven.
17.
The Applicant’s attitude is that, despite the fact that
the Respondents state that they will be left homeless, this is not
so. The Applicant states the First Respondent has not elaborated on
this aspect, neither have the Respondents elaborated on the
shortage
of housing in their income bracket, neither have they stated why they
cannot live with the First Respondent’s daughter
in Limpopo.
18.
It is common cause that I must apply the factors set out in
Section 4(6) and 4(7) of the PIE Act and that the formal requirements
thereof must be met.
19.
I must, in essence, decide whether on the facts before me an
eviction order would be just and equitable. Ekurhuleni Metropolitan
Municipality and Another v Various Occupiers. Eden Park Extension
(51, 2014 (3) SA23 (SCA).
20.
Although the owners’ common law right to exclusive
possession of the property is not disputed in this matter, it is only
one
of the aspects which I must take into account. Port Elizabeth
Municipality v Various Occupiers.
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
21.
The Applicant intends to develop the property for residential
purposes, of course the Respondents’ would only require
occupation
of a small part of it. However, the Applicant, during
argument and as appears from the papers, clearly does not intend to
offer
the Respondents a residential home as part of the development.
22.
I don’t agree with the Applicant that the onus is on the
Respondent to show reasons why they must remain on the property. In
fact, the onus is on the Applicant to show that the Respondents’
eviction would be just and equitable. City of Johannesburg
v Changing
Tides Properties.
2012 (6) SA 294
(SCA)
23.
The Applicant has not made any serious attempt to satisfy the
onus, but have simply stated that the Applicant is the owner of the
property and the Respondents are in unlawful occupation. This, to all
extents and purposes, is common cause but does not lead to
the
Applicant’s entitlement to the order which it seeks.
24.
On the question on whether there has been a meaningful
engagement, in fact, apart from intimidatory tactics, which are
vaguely disputed
as to dates and times, but not as to the fact
thereof, there has been “no engagement” at all. Rather,
there has been
an attempt to forcefully evict and remove the
Respondents. Although this is denied that it was affected by the
Applicant, one cannot
imagine who would attempt such removal except
the owner or the
owner’s
agents.
25.
On the question of whether there is alternative accommodation,
the Applicant has not attempted to satisfy the court in this regard
at all. The only real information which I have is from the
Respondents themselves which indicates that there is accommodation in
the surrounding property available at R2 500.00 per person, or R4
000.00 for a family apartment. A Wits University professor, Marie
Huchzermeyer, paints a clear, desperate and disturbing picture of
what the Respondents would face should they move into the informal
housing sector.
26.
The Respondents, clearly, will be left homeless on the
evidence before me.
27.
Consequently, taking into account the circumstances and
factors set out in Section 4(7) of PIE Act, including the length of
time
which the First Respondent has occupied the premises, the
circumstances under which he moved on to the premises, the fact that
he is an old age pensioner, has a lack of alternative accommodation,
these all clearly tilt the scales of justice in favour of the
Respondents.
28.
These are not the only facts which I need to consider. There
is also the manner in which the Applicant has sought to remove the
Respondents and indeed the Applicant’s attitude, as evident
from the papers, towards the Constitutional Rights of the
Respondents.
29.
There indeed would, in my view, be very little prejudice if,
as part of the development, the Applicant had offered to build the
Respondents a suitable home. This they have refused to do and, in my
view, also is a factor which I would consider in deciding whether
or
not to grant an eviction order. Indeed, if they had offered to do so,
this application would probably not have been necessary.
30.
As to the question of the costs, I am of the view that the
Applicant has made no attempt at all to satisfy the requirements of
PIE
and indeed, the attitude and conduct of the Applicant evidences a
disregard for the Constitution and the Respondents’ statutory
rights. Consequently, I am of the view that attorney client costs are
appropriate.
31.
In the result, I am satisfied that the Applicant is not
entitled to an order and consequently, the application is dismissed
with
costs on the scale as between attorney and client.
ACTING JUDGE OF
THE HIGH COURT
HEARD:
13
th
OCTOBER 2014
DELIVERED:
16
th
JANUARY 2015
COUNSEL
FOR APPLICANT: ADV. L KEIJSER
INSTRUCTED
BY: STEYN STEYN & PARTNERS
COUNSEL
FOR FIRST, SECOND ADV. S WILSON
AND
THIRD RESPONDENTS: ATTORNEY T. MOSIKILI
INSTRUCTED
BY: SERI LAW CLINIC
(jmt.12.1.15)