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[2016] ZAGPJHC 91
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Mbengeni v Moagi and Another (A3117/2015) [2016] ZAGPJHC 91 (29 April 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO: A3117/2015
DATE:
29 APRIL 2016
In
the matter between
NETSHISWINXHE
MBENGENI
....................................................................................
APPELLANT
And
MOAGI
MOLEFE
GLADWIN
...............................................................................
1st
RESPONDENT
CITY
OF
JOHANNESBURG
................................................................................
2nd
RESPONDENT
JUDGMENT
MAYET
AJ:
[1]
This is an appeal against the judgment handed down by the Additional
Magistrate M J Thobela on the 9 July 2015 in the Roodepoort
Magistrate’s Court.
[2]
It is common cause that the first respondent is the registered owner
of the property situate at erf [8……….]
[D……]
[E……], [S…….].
[3]
On the 26 January 2015 the first respondent instituted an application
for eviction against the appellant and all those persons
who occupied
the property through him in terms of section 4(1) of the Prevention
of Illegal Eviction from and Unlawful Occupation
Act 19 of 19989
(hereinafter referred to as “PIE”).
[4]
At the hearing which took place on 9 July 2015 the appellant and the
first respondent stood down and reached an agreement
in
terms of which the court a quo would conduct a just and
equitable enquiry as required by section 4(7) of PIE to
determine when, how and under what conditions the eviction would take
place. It was no longer in dispute that an eviction would
have to
occur.
[5]
Section 4(7) of PIE reads as follows:
“
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.”
[6]
The appellant contends that Section 4(7) of PIE was not properly
applied because the court did not take into account all the
relevant
circumstances, nor did the first respondent make the Applicant aware
of his rights under section 26 of the Constitution
of the Republic of
South Africa Act 108 of 1996. Section 26 provides as follows:
1.
Everyone has the right to have access to adequate housing;
2.
The state must take reasonable legislative steps and other measures,
within its available resources to achieve the progressive
realization
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.
Relevant
circumstances
[7]
The appellant highlighted the following measures which the court
should have considered in deciding whether it was just and
equitable
to grant an eviction order namely the constitutional rights of the
child and the role of organs of state to investigate
and identify
alternative accommodation where the order of eviction will lead to
homelessness.
[8]
It is common cause that the appellant has a son residing with him.
Apart from the fact that he was in grade 8 last year no further
particulars relating to his name, age and schooling were provided
save that at the time of the hearing he was preparing for his
mid-year examination.
[9]
The appellant contends that the court failed to take into account
that a child’s best interests are of paramount interest
in
every matter concerning the child including how their schooling would
be affected by an eviction order. In support hereof the
court was
referred to
Arendse v Arendse 2013(3) SA 347
.
[10]
However no evidence was led to demonstrate that the order of eviction
granted by the court had a traumatic effect on the appellant’s
son and on his mid-year examinations. In any event the eviction order
would have occurred only on 31 July2015, during the school
holiday
had it not been stayed by this appeal.
[11]
The appellant is of the view that the court misdirected the enquiry
when it failed to engage meaningfully with the City of
Johannesburg
on the availability of alternative accommodation before it granted
the eviction order. The appellant contends that
at the very least the
court should have ordered the City of Johannesburg to file a report
on the impact of the eviction on vulnerable
groups.
[12]
The first respondent raised the concern that the continued occupation
of the property by the appellant was prejudicing his
rights as the
lawful owner to use and enjoy the property. Furthermore the
respondent was paying the rates and taxes on the property
while the
appellant and his family were living there free of charge.
[13]
The PIE Act does not arbitrarily deprive the owner of his or her
property rights as the court must exercise its discretion
only once
all the relevant circumstances have been considered. However the
appellant failed to disclose his personal circumstances
fully and in
a manner which would have allowed the court to exercise its judicial
discretion. More importantly the appellant failed
to fully explain
his financial circumstances. The first respondent merely states that
he is a sole breadwinner because his wife
is too sickly to work and
he earns a low income.
[14]
I am of the view that the appellant does not fall into the category
of the poorest of the poor neither is he vulnerable as
he has been
able to afford opposing the eviction application and this appeal as
well as the security for costs.
[15]
In
City of Johannesburg Metro Municipality v Blue Moonlight
Properties 39(Pty) Ltd and Another 2012(2)SA 1014 (CC)
at para 40
the court held that “
A property owner cannot be expected to
provide free housing for the homeless on its property for an
indefinite period.”
The appellant has been in occupation of
the property since June 2014 and there is no reason to believe that
he will be rendered
homeless should he be evicted.
[16]
The court has the task to ensure that justice and equity prevailed in
relation to all concerned. It has to balance out and
reconcile the
opposed claims in as just and equitable a manner as possible taking
into account all the factors relevant in each
particular case. See
Pitje v Shibambo and Others [2016] ZACC
at para 18.
[17]
In the result, I propose the following order:
The
appeal is dismissed with costs.
A.
MAYET
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
I
agree, and it is so ordered.
WHG
VAN DER LINDE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
APPEARANCES:
APPELLANT:
Adv. Norman
FIRST
RESPONDENT: Adv. Vobi
Date
argued: 18 April, 2016
Date
judgment: 29 April, 2016