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[2015] ZAGPJHC 16
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Khan v Passenger Rail Agency of South Africa and Another (A3056/2014) [2015] ZAGPJHC 16 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A3056/2014
DATE:
13 FEBRUARY 2015
In
the matter between:
IRFAN
KHAN
...........................................................................................................................
Appellant
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
..............................................
First
Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
................................................
Second
Respondent
Coram:
Tshabalala J and Crouse AJ
Heard:
2 February 2015
Delivered:
13 February 2015
Summary:
Eviction proceedings. Section 26 of the Constitution does not allow
for
an individualised
specific claim to particular housing at a particular place. The
Appellant is not
entitled to a specific home, ie a three bedroomed home in a specific
neighbourhood at a specific rental and if
this is not available,
claim entitlement on state aided housing in conflict with the
Municipality’s policy.
JUDGMENT
CROUSE
AJ:
1.
This is an appeal against the decision of
the learned magistrate, Johannesburg,
that it was just and equitable, as
contemplated in the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19
of 1998 (PIE), to evict the Appellant and
his family from premises belonging to the First Respondent. It was
accepted that the
First Respondent is an organ of State. On 14 April
2014 the learned magistrate ordered that the Appellant and his family
had to
vacate the premises on 15 August 2014. The Appellant and his
family are still in occupation of the premises pending the decision
on appeal. It should be added that although relief other than
eviction was sought in the First Respondent’s notice of motion,
there is no indication on the papers that relief other than eviction
was requested.
2.
I will briefly deal with the facts of this
matter. The Appellant emigrated from Pakistan in 1996. He married his
wife, Michelle
Lydia Irfan Khan in 1999. She is a South African
citizen. They have three children, respectively born on 12 October
2001, 26 July
2004 and 19 February 2008. The Appellant, his
wife and two older children took occupation of the house belonging to
the First
Respondent at 67 Railway Street Mayfair Station, Mayfair,
Johannesburg in August 2004 as the apartment in which they were
living
became too crowded and they wanted a more spacious home.
This house in Mayfair is a three bedroomed home, with separate
domestic
quarters.
3.
According to the Appellant he entered into
yearly lease agreements with the First Respondent since 2005. In
support thereof the
Appellant attached proof of rental payments to
the First Respondent in 2005 and 2006. The lease agreement relevant
to these proceedings
was entered into on 1 March 2007 for a period of
two years. In terms of this agreement the Appellant had to pay rental
of R2069.30
per month with a 6% escalation after one year. I pause to
mention that during argument of the matter in the Magistrate’s
Court, the parties realised that the terms of the agreement, which
the First Respondent attached to the founding papers, were not
signed
by the Appellant. The Appellant’s counsel however placed on
record that the agreement was in any event not placed
in dispute.
Although it is regrettable that this oversight occurred, nothing
turns thereon.
4.
This lease terminated 28 February 2009.
As no further written lease was entered into and the Appellant and
his family remained
in occupation, it is presumed that the lease
continued on a month-to-month basis, until cancellation. According to
a letter of
demand dated 12 May 2010 the Appellant was in arrears
with his rental payments in the amount of R43423.80 as at May 2010.
The Appellant
failed to make good this deficit and the First
Respondent cancelled the lease due to non-payment of outstanding
arrears.
5.
The outstanding rental escalated according
to the First Respondent to R60 692.28 by January 2011. The First
Respondent thereafter
brought an application for the Appellant’s
eviction.
6.
In
his answering affidavit
[1]
the Appellant’s initial reaction to the eviction application
was to deny that the First Respondent had any right to cancel
the
lease. He stated that the property was in such a state of disrepair
(“a dump”) that he had to spend R32 000
to make it
habitable by doing regular maintenance work to maintain the property.
As a result of the maintenance done, the Appellant
contended that he
could not afford to pay the agreed rent any longer. I pause to state
that this amount spent on maintenance work
just highlight the
numerous discrepancies in the Appellant’s papers concerning the
joint household income, which will be
dealt with hereunder. In
addition, the Appellant stated that the First Respondent sent him a
letter dated July 2012 acknowledging
that there was an agreement that
the Appellant could remain in the property. This letter could
not be attached to the Appellant’s
papers as, according to him,
it had gone missing at
the
time of making the affidavit.
7.
The first leg of the Appellant’s
defence as set out in the answering papers was that he was not an
unlawful occupier. In the
alternative, his defence was that it would
not be just and equitable to evict him, as the First Respondent did
not meaningfully
engage him prior to the application for eviction,
and he and his family would be rendered homeless, should they be
evicted.
8.
During argument in the Magistrate’s
Court, the first leg of the defence was abandoned and the first leg
of the alternative
argument was not proceeded with. The remaining
issue was decided in favour of the First Respondent. The Magistrate
specifically
found that the Appellant’s financial situation
could no longer sustain the lifestyle that he had chosen for himself.
9.
The Appellant’s contention on appeal
is that his family would be rendered homeless should they be evicted,
and therefore the
Second Respondent has a constitutional obligation
to provide temporary emergency accommodation. A new point which has
never been
raised at any prior stage was also raised, namely that
procedurally the First Respondent’s papers did not comply with
PIE
requirements. There is no merit in this argument.
10.
In my opinion the issue to decide is this:
Will the eviction of the Appellant
sans
the availability of emergency housing render the Appellant and his
family homeless? Or put differently: Can the Appellant
refuse to vacate the First Respondent’s property until such
time as the Second Respondent provides emergency accommodation
to
him?
11.
Section 26 of our Constitution reads that:
“
(1)
Everyone has the right to have access to adequate housing;
(2) The state
must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of this
right.
(3)
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the
relevant
circumstances. No legislation may permit arbitrary evictions.”
12.
Evictions of people
from their homes may only take place under judicial control. The
judicial officer must ensure that evictions
are justifiable and that
all relevant circumstances have been taken into account.
PIE creates a tension between the interests of
landowners and those in occupation of property and under threat of
eviction.
Port Elizabeth Municipality v
Peoples Dialogue on Land and Shelter & others
2000
(2) SA 1074
(SE)
at 1081D-E.
Our
Constitution in section 25 and 26 provides protection for the rights
of both landowners and persons under the threat of eviction.
As
stated in
Ndlovu v Ngcobo
;
Bekker and another v Jika
2003 (1) SA 113
(SCA)
paragraph 17,
it must
be remembered that PIE does not sanction
expropriation
of the landowner directly or indirectly; PIE could merely delay or
suspend the exercise of the landowner’s full
proprietary rights
until a determination has been made whether it is just and equitable
to evict the unlawful occupier and under
what conditions to evict.
13.
In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC)
the
Constitutional Court held that a case-specific approach is required,
meaning that relevant circumstances in a particular eviction
application will be determined by its factual and legal context. In
similar vein the Constitutional Court held in
President
of the RSA v Modderklip Boerdery (PTY)LTD
2005 (5) SA 3
(CC)
at paragraph [43] that the precise nature of the State’s
obligation in any particular case and in respect of any particular
right depended on what was reasonable in the light of the right and
the interest at risk, as well as on the circumstances of each
case.
14.
In
Malan v
City of Cape Town 2014(6) SA 315 (CC)
the following statement is made:
“
On
the one hand, public policy, as informed by the Constitution,
requires in general, that parties should comply with contractual
obligations that have been freely and voluntarily undertaken. This
consideration is expressed in the maxim pacta sunt servanda,
which,
as the Supreme Court of Appeal has repeatedly noted, gives effect to
the central constitutional values of freedom and dignity.
Self-autonomy, or the ability to regulate one's own affairs, even to
one's own detriment, is the very essence of freedom and a
vital part
of dignity. The extent to which the contract was freely and
voluntarily concluded is clearly a vital factor as it will
determine
the weight that should be afforded to the values of freedom and
dignity. The other consideration is that all persons
have a right to
seek judicial redress. These considerations express the
constitutional values which must now inform all laws, including
the
common-law principles of contract.”
15.
In
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA
140
;
(CC) paragraphs 28 – 29, Mokgoro J held “any measure
which permits a person to be deprived of existing access to adequate
housing, limits the rights protected in section 26(1).” Such a
limitation can of course be justified in terms of section
36 of the
Constitution. That Court went on to
find
that the right to adequate housing is 'the right to live somewhere in
security, peace and dignity”. The Court further
stated that the
idea of security of tenure envisaged by section 26 of the
Constitution was to reject invasive legislation of the
past.
Therefore, while it is so that PIE is currently applicable in the
eviction of persons who default on their contractual obligations
in a
lease situation, PIE did not have as its primary concern the
protection of debtors who voluntarily entered into lease agreements
and then default.
16.
In
The
Occupiers, Shulana Court,11 Hendon Road, Yeoville v Mark Lewis
Steele19
2010 (9) BCLR 911
(SCA)
paragraph 16,
the
SCA held that: “It will, generally, not be just and equitable
for a court to grant an eviction order where the effect
of such an
order would be to render the occupiers of the property homeless.”
In
Ives v Rajah
2012 (2) SA 167
(WCC)
,
at paragraph [26] the applicant's failure to proactively find a
solution or alternative accommodation,
where she was unable to pay rent or
compensate the owner of the property for a period of nearly two years
and where she merely sat
back and criticised the owner was found to
be a consideration in assessing what is just and equitable.
17.
In NDPP v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) the SCA stated at paragraph 26:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant's (Mr
Zuma's) affidavits, which have been admitted by the
respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent's
version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact,
is palpably implausible, far-fetched or
so clearly untenable that the
court is justified in rejecting them merely on the papers.’
18.
The first issue to be decided is whether
the Appellant will be rendered homeless, if evicted, bearing in mind
the Plascon-Evans
test principle, referred to above.
19.
The Appellant’s assertion that he
would be homeless is based on the fact that he is currently in a more
precarious financial
position than the position he was in when he
entered into the lease agreement. In his papers he indicates
conflicting dates as
to when he lost his formal employment. In his
affidavit of December 2012, he stated that his employment was
terminated in August
2012, but in the later affidavit he stated that
he was unfairly dismissed in April 2011. In the December 2012
affidavit he states
that his wife is self-employed and earns
approximately R2 000 per month. In the same affidavit he contradicts
himself as to his
earning capability in that he states that he earns
less than R2 000 per month, while later in the same affidavit he
states that
he earns between R2 000-R3 500 per month. In his
affidavit on his personal circumstances filed in April 2014, he
states that
his average monthly earnings are R3 500 after his
travelling, lunch and telephone expenses are deducted. In this
affidavit he also
states that in late 2012 his wife had to stop
working due to an eye disease. His wife testified
viva
voce
- also in April 2014 that she had
to stop working as a result of the said eye disease in 2008 already.
Both the Appellant and
his wife stated that in addition to his
income, they received R2 100 in social grants. His wife also
testified that the Appellant
has commenced with doing extra work and
that this brings in an income.
20.
On the Appellant’s version, when he
entered into the lease with the First Respondent, he was earning R3
000 per month and
his wife was earning R2 000 per month.
It must be accepted that he
bona fide
entered into the 2007 lease agreement on the premises that on a joint
income of R5 000 per month, he could make rent payments.
On this
joint income of R5 000 they were also capable of spending R32 000 on
maintenance to the house. In conflict with the provisions
of the
lease, the Appellant chose on his version to withhold the rent, even
after the maintenance was done. Taking into consideration
the
Appellant’s last affidavit and the evidence of his wife, their
joint income is now at least R5 600 per month. In addition
the
Appellant is doing extra work. The Appellant had not taken the Court
into his confidence as to the value of this additional
work. In
terms of the Municipality’s report there are rental options
available from R1 200 per month. The only logical
conclusion is
therefore that on the family’s monthly income, they will not be
homeless. The learned magistrate’s finding
that the family
would not be able to maintain their current life style in a 3
bedroomed home is no doubt correct, but that will
not render them
homeless. The Appellant can by no means be considered rich though.
21.
When consideration is given the requirement
as set out in PIE, the following observations needs to be made:
21.1.
The Appellant was not homeless when he
entered into the contract with the First Respondent. He merely wanted
a more comfortable
environment to live in. His position is
therefore not akin to that of a person making use of informal and
make-shift housing
because of a lack of resources. In contrast to
such a person, the Appellant was/is not living in unsatisfactory
living conditions.
21.2.
The Appellant has been in occupation of
the property for nearly 10 years, from 2004 until present. The lease
contract was already
terminated for non-payment of the rent more than
4 years ago in October 2010. Since that date the Appellant has been
holding over.
Therefore although the Appellant has become fairly
settled, this settlement was at the expense of the First Respondent’s
business venture and at the expense of
bona
fide
honouring his contractual
obligations.
21.3.
But for a belated and inadequate
investigation, the Appellant has not endeavoured to find alternative
housing. Even in argument
before us it was the Appellant’s
contention that the duty to find alternative accommodation for him
rested squarely on the
State and not on him. As he is not a homeless
person, to place no obligation on him to seek a solution to the
problem, is in my
opinion absurd. A constitutional democracy does not
mean that there are no obligations on citizens. In
Residents
of Joe Slovo Community v Thubelisha Homes
2010 (3) SA 454
(CC) at
[408]
Sachs J stated that citizens have
to be active, participatory and responsible, and make their own
individual and collective contributions
towards the realisation of
benefits and entitlements that they claim for themselves, not to
speak of the wellbeing of the community
as a whole.
21.4.
The Appellant in conflict with public
policy has not sought to honour his contractual agreements with the
First Respondent, even
though he was in a position to do so. The
Applicant had rather sought to entertain other unnecessary endeavours
such as clothing
accounts and financial services and clubs.
21.5.
As the financial circumstances of the
Appellant has not worsened after his wife illness, her illness is at
best a neutral element
in the eviction application.
21.6.
A Court is also enjoined to look with
special interest to the interest of the minor children. It was
contended that their respective
schools are near to their current
home, and that it would not be in their best interest to be moved to
another school. Many a child
has relocated to another school without
adverse influence warranting court interference. This aspect alone is
insufficient to authorise
the holding over
vis-à-vis
the First Respondent’s right to use the property as a
commercial enterprise as intended.
22.
The Appellant’s contention is further
that there is a constitutional duty on the Second Respondent to
provide emergency housing.
Section
153 of the Constitution states that: “A municipality must- (a)
structure and manage its administration and budgeting
and planning
processes to give priority to the basic needs of the community, and
to promote the social and economic development
of the community; and
(b) participate in national and provincial development programmes.”
The above requires the municipality
to interpret the national
and provincial policy and programmes, and to make choices on how to
practically implement it and how
to best achieve its objects. This is
a matter of policy. The Second Respondent has determined a
specific socio-economic approach
to emergency housing, namely
that
emergency housing is only available to households with an income of
R3 500 and less. The Appellant does not qualify
for
emergency housing when this means test is applied. In argument the
Appellant’s counsel was specifically asked whether
the
Appellant can contend that the Second Respondent’s policy was
unreasonable. The Appellant does not contend this
and there is
no review of this policy before this Court, nor is there an obvious
reason for it at this stage. As section 26 of
our Constitution deals
with the progressive realisation of the right to housing within the
state’s available resources, the
Second Respondent’s
response thereto must of
necessity
entail matters of policy and therein lies scope for reasonable
differences of approach and prioritisation. For this reason
a court
must handle such policy with circumspection, because of the
separation of powers principle.
23.
There can be
no unqualified constitutional duty on local authorities to provide
alternative accommodation in all evictions. In
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC)
at paragraph [16], the Constitutional Court stated that section 26 of
our Constitution did not “entitle the applicants to
claim
shelter or housing immediately upon demand”.
24.
In my opinion a
progressive realisation of the right to adequate housing cannot be
translated into an individualised specific claim
to a particular
instance of housing of a particular kind at a particular place.
Therefore the Appellant is not entitled to a specific
home, i.e. a
three bedroomed home in a specific neighbourhood at a specific rental
and if this is not available, claim his entitlement
to state aided
housing.
25.
In returning to the
interest of the children, it must be added that if the Appellant had
been successful in his bid for emergency
housing, it was then within
his contemplation of moving the children away from their current
schools. This in itself is an indication
that the Appellant did not
regard moving the children to another school would necessarily be
adverse to their best interest.
26.
Consequently, I am of
the opinion that it would be just and equitable for the Appellant and
his family to be evicted.
27.
I would propose an
order whereby the Appellant’s appeal is dismissed. As the First
Respondent’s counsel indicated that
he does not seek a cost
order, I propose that no order as to costs be made.
28.
However, the
Magistrate’s date for the eviction, namely 15 August 2014 is
now in the past. It would therefore be incumbent
on this Court to
determine a fair period within which the Appellant and his family
must vacate the house. Bearing in mind that
the First Respondent had
previously suggested a period of two months as a fair period, and
that a period of just less than two
months will conveniently be
during a long weekend wherein there is no school, the Appellant is
given until 31 March 2015 to vacate
the property.
29.
Counsel and attorneys for the Appellant are
thanked for going beyond the call of duty to present Appellant’s
case on a
pro bono
basis.
30.
In the
circumstances the following order should be made
:
30.1.
The appeal is
dismissed;
30.2.
The Appellant must
vacate the premises at
67 Railway
Street, Mayfair Station, Mayfair, Johannesburg
on
31 March 2015.
E
CROUSE
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
I
Agree. It is so ordered.
N.D
TSHABALALA
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
2 February 2015
Judgment
delivered: 13 February 2015
Appearances:
For
Appellant: Adv.A Rawhani
Instructed
by: Bell Dewar Inc
For
Respondent: Adv.T.Machaba
Instructed
by: Mncedisi Ndlovu and Sedumedi Attorneys
[1]
The
answering affidavit bound in the appeal record was not commissioned.
However, counsel for the Appellant gave the assurance
that the
affidavit before the Magistrate was commissioned, but was mislaid.