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[2016] ZAGPJHC 287
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Dibetle v Chiloane and Others (46325/2013) [2016] ZAGPJHC 287 (19 October 2016)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 46325/2013
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE
:19/10/2016
In
the matter between:
DIBETLE
KABELO
EUGENE
Applicant
and
ARON
CHILOANE
First
Respondent
ALL
OTHER PERSONS CLAIMING
OCCUPATION
OF ERF 9178 PROTEA
GLEN
EXTENSION 12
TOWNSHIP
Second
Respondent
CITY
OF
JOHANNESBURG
Third
Respondent
JUDGMENT
MIA,
AJ
:
[1]
The applicant seeks an order evicting the respondent’s from Erf
[..78] Protea Glen Extension 12 Township (the property)
in terms of
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, Act No. 19 of 1998 (the Pie Act). This
matter was initially
heard in November 2014. On 28 November 2014, an order was granted in
the following terms by Maenetje AJ:
“
i.
The application for eviction against the first and second respondents
is dismissed;
ii.
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 Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act No. 19 of 1998.
iii.
no order as to costs.”
[2]
Pursuant to the above order, the applicant served and filed a
supplementary affidavit on 10 April 2015. The matter came before
Kathree-Setiloane J on 19 October 2015 when the matter was postponed
sine die
and the first respondent was ordered to file his
answering affidavit on or before 26 October 2015, failing which the
applicant
was permitted to enrol the matter as an unopposed matter.
The respondent filed an answering affidavit and the applicant filed a
reply to the answering affidavit. When the matter was argued before
me, counsel for the applicant indicated that the respondent
had
raised a number of new defences in its answering affidavit. However,
the applicant would not seek an order that the new defences
be struck
out.
[3]
The issues to be determined at this hearing of the application
according to the applicant were as follows:
1.
Whether the procedural requirements of the Pie Act had been met?
2.
Whether there was evidence to demonstrate that it is just and
equitable to grant an order for eviction, alternatively whether
the
respondent had raised a defence?
3.
If the court finds that there was no defence, and it was just and
equitable to grant an order for eviction, the court is required
to
determine when it would be just and equitable for the first and
second respondents to vacate the above premises?
4.
Alternatively, that the court, determine a date on which an eviction
order may be carried out in the event that the first and/or
second
respondents had not vacated the property on or before the dates set
out in the order.
[4]
Before I proceed to consider the submissions made by counsel it is
necessary to give a brief history of the facts of this matter.
The
first respondent resides on the property along with family members.
His son Patrick Chiloane and his nephew Joseph Masikenya
jointly
purchased the property in which the first respondent and his family
reside. The first respondent’s son defaulted
on the mortgage
bond. The property was sold in execution and subsequently changed
hands a number of times before it was sold by
Dipapadi Property 7 CC
to the applicant.
[5]
In 2013 the first respondent was approached by Inyathi Properties,
who wished to sell the property to the first respondent.
Whilst the
first respondent signed the offer to purchase it was never signed by
the seller. The agent for Inyathi Properties later
informed the first
respondent that she had offered the property in error and could not
sell the property to him. The first respondent
has not taken any
steps to purchase the property. There is no other legal action
related to this property referred to by the first
respondent, either
to rescind the order granted by default or to set aside the sale in
execution. It is not clear on the papers
that the first respondent
has
locus standi
to do so.
[6]
The first respondent and his family have been residing on the
property since 2003 even after the property was transferred to
various owners. The applicant purchased the property on 26 February
2013 and the property was registered in the applicant’s
name on
10 July 2013. The applicant has been paying the municipal rates and
taxes whilst the first respondent has been paying for
the consumption
of electricity via a prepaid meter.
[7]
In pursuance of the order handed down by Maenetje AJ, the applicant
filed a supplementary affidavit. In pursuance of an eviction
order he
placed further information before this court. At paragraph 14 onwards
of the applicant’s supplementary affidavit
the applicant
states:
“
14.
First Respondent is also a layman Pastor and has a congregation as
appears from paragraph 48 of his(sic) answering affidavit.
15.
First Respondent, alternatively First Respondent together with his
children and/or cousin have the monetary means to:
15.1
Bought the property for R128 100,00 during 2003 and paying a bond to
Nedbank, (see paragraph 5 of First Respondent’s
Answering
Affidavit);
15.2
Make an offer to purchase the property for an amount of R380,000 in
2013, (see paragraph 3 of First Respondent’s Answering
Affidavit) ; and;
15.3
Apply and obtain bond finance from Standard Bank for purchasing the
property in 2013, (see paragraphs 4 and 10 of First Respondent’s
Answering Affidavit);
16.
From what is stated above as contained in First Respondent’s
answering affidavit, it is clear that First Respondent,
his children
and cousin will be able to afford alternative accommodation. The only
reason why they have not vacated the property
can thus only be
because they stayed the without having to pay.
17.
I submit that is that neither First Respondent and his children nor
his cousin are at risk of becoming homelessness (
sic
).”
[8]
The applicant pays a monthly bond instalment to ABSA bank in the
amount of R1 538.16 every month plus rates and taxes in the
region of
R600 per month to the City of Johannesburg on the property which the
first and second respondents are occupying free
of charge. In
addition he also pays a monthly rental in the amount of R1 800 for
alternative accommodation. He requires the property
for his own use.
He relies on the finding of Maenetje AJ that the respondents are
unlawful occupiers of the property and highlights
that as a private
owner of property he is not obliged to furnish the first respondent
with free housing.
[9]
The first respondent refuses to vacate the premises. He relies on the
emails from Nedbank and argues that Nedbank indicated
that the
property was paid up and the sale of the property was in error. He
refers to annexure “AC2” and indicates
that he was given
an opportunity to “reverse everything”. Whilst the first
respondent labours and under the belief
that Nedbank is giving him
the opportunity to “reverse everything”, the
communication from Karen Gillyon to Babalwa
Matshinye who endeavoured
to assist first respondent reads as follows:
“
Afternoon
Babalwa
I
have checked the EVHL notes & ascertained the following:
·
Legal action was instituted against the client by Madhlopa attorneys
in May 2005;
·
Client made repayment arrangements upon receiving the summons;
·
The client brokers repayment arrangements & therefore Judgment
was obtained 25/10/2005;
·
The property was sold at a Sale in Execution on 17/02/2006 for an
amount of R90,000;
·
The property was transferred into the purchases name 19/02/2007;
·
the account was handed over to Shortfall recoveries in 2010 to
collect the shortfall;
·
The client then made repayment arrangements with Sanclare Debt
Collectors working on our behalf to repay R1000.00 per month;
·
Payments would received up until 4/10/2013 after which the remaining
balance of R 16 416-27 was written off;
Kindly
note that our department only handled the collection on the
shortfall.”
[10]
The first respondent averred that he has paid the arrear amount due
to Nedbank, and holds the view that he is the rightful
owner of the
property as the outstanding amounts due to Nedbank have been paid. He
alleged further that elderly persons and children
reside in on the
premises. The first respondent however fails to give details and
particulars about the circumstances of these
elderly persons and
children.
[11]
The Pie Act provides in section 4(7) and 4(8) 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.
(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).”
[12]
Mr J.H Korsten, appearing for the applicant, submitted in relation to
the new defences raised by the first respondent, that
there was
compliance in terms of the Pie Act. The respondent knew of these
alleged defects relating to the sale of the property,
namely the
default judgment and sale in execution, but did not bring an
application for rescission of the judgment against the
registered
owner of the property in 2003. The property had been transferred
several times after the sale in execution as reflected
in the windeed
search attached to the papers. The property was transferred to Joshua
Marako and Joshua Mathole in 2007, to First
Rand Bank Ltd in 2011 and
to Dipapadi Property 7 CC in 2013. The applicant purchased the
property from Dipapadi Property 7 CC and
is the current registered
owner. The respondents are unlawful occupiers per Maenetje AJ’s
judgment, the salary is no sustainable
defence to the first
respondent’s occupation of the premises. In view hereof he
submits that the applicant is entitled to
an order for eviction of
the first respondent and those holding under him.
[13]
Mr
Mkhize, appearing for the respondent, argued that the applicant had
not satisfied the requirements of the Pie Act. He argued
that the
applicant was aware he had not purchased vacant land and that the
property was occupied. He conceded that the first respondent
and
those holding under him were in unlawful occupation of the premises.
He conceded further that there was no indication on the
papers that
any step had been taken to set aside the sale in execution. He argued
however that an eviction order would result in
the first respondent
and occupiers holding under him being rendered homeless.
[14]
He submitted that the matter of
Gundwana v Steko Development CC
and Others
2011(8) BCLR 792 (CC), was applicable to the present
matter. This was so, as the first respondent had paid the arrear
amounts to
Nedbank and that the applicant was not the rightful owner
of the property. He argued further that section 25 of the
Constitution
was applicable and the first respondent ought not to be
arbitrarily deprived of his home. In terms of section 26 he argued
that
the first respondent was entitled to have adequate access to
housing. Mr Mkhize argued that the court should apply the principle
established in
Port Elizabeth Municipality v Various Occupiers
2004 (12) BCLR 1268
CC to the present matter.
[15]
In
Gundwana
supra
, the court declared that it is
unconstitutional for the registrar of the High Court to declare
immovable property especially executable
when ordering default
judgment under rule 31(5) of the uniform rules of court to the extent
that this permits the sale in execution
of a home of a person. The
court set aside the eviction order against Mrs Gundwana. In
Gundwana
,
the appellant became aware of the default judgement in the High Court
when the sale in execution was imminent and took steps to
set it
aside. The Constitutional Court took into account that the
constitutional issue was not fully raised before the High Court
determining the eviction. Consequently the Constitutional Court
elected to deal with the appeal against eviction whilst the
application
for rescission was still pending in the High Court. The
facts of the present matter are not applicable
in casu.
[16]
I understand Mr Mkhize’s submission with regard to the first
respondents right in terms of section 26, to mean that I
ought to
consider whether or not it is desirable or permissible to order an
eviction which will result in the respondents’
being homeless
if I were to grant an order for eviction as he has already conceded
that the respondents are unlawful occupiers.
Hence his referral to
sections 25 and 26 of the Constitution which provide:
“
25
(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of property.
26
(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.
”
(My
emphasis)
[17]
In
reply, c
ounsel
for the applicant, argued that the applicant had complied with the
formalities required by the Pie Act. The new defences
raised by the
first respondent related to:
1.
the ownership of the property;
2.
allegations regarding the formalities not being attended to;
3.
that the sale of the property was in error;
4.
reliance was made on emails from Nedbank that the arrears had been
paid;
[18]
He argued I dismiss the above defences as, it was common cause that
the applicant is the current registered owner per the winded
search.
He submitted that all that was required at this point was to
determine the date on which it would be just and equitable
for the
first respondent and those holding under the first respondent to
vacate the property.
[19]
Having regard to the facts before me, the legislation referred to as
well as the reported cases relied on, none of authorities
suggest
that the owner of private property is required to furnish free
housing to unlawful occupiers. In
Ndlovu
v Ngcobo:
Bekker
and another v Jika
[2002]
4 All SA 384
(SCA),
Harms
JA states at paragraph 3 and 4, as follows:
“
[3]
PIE
has its roots,
inter
alia
,
in section 26(3)
of
the Bill of Rights, which provides that ‘no one may be evicted
from their home without an order
of
court made after consideration of all the relevant circumstances’.
Cape
Killarney Property Investment
(
Pty
)
Ltd v
Mahamba
2001
(4) SA 1222
(SCA) at 1229E. It invests in the courts the right and
duty to make the order, which, in the circumstances of the case,
would be
just and equitable and it prescribes some circumstances that
have to be taken into account in determining the terms of the
eviction.
[4]
PIE defines an ‘unlawful occupier’ in section 1 to mean –
‘
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 1966)’.”
[20]
Even if I consider, as argued by Mr Mkhize, that the first respondent
and all his son paid certain amounts to Nedbank each
month, the
annexure “AC2” referred to, clearly indicates that the
amounts were paid toward the outstanding balance
and was paid after
default judgment was taken and after the property was sold in
execution. The argument that the respondent’s
will be rendered
homeless ignores the first respondent’s averment that he does
not wish to access his reserve savings or
that he previously applied
to Standard bank for a bond. Thus the first respondent and those
holding under him will not be rendered
homeless and their dignity
would not be impacted as argued by Mr Mkhize.
[21]
Harms JA states at paragraph [19] in
Ndlovu
supra:
“
[19]
Another material consideration is that of the evidential onus.
Provided the procedural requirements have been met, the owner
is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation.
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled
to an order
for eviction. Relevant circumstances are nearly without fail facts
within the exclusive knowledge of the occupier and
it cannot be
expected of an owner to negative in advance facts not known to him
and not in issue between the parties. Whether the
ultimate onus will
be on the owner or the occupier we need not now decide.”
[22]
In the matter
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 in dealing with the
enquiry in terms of sections 4 and seven of the Pie Act states:
“
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.”
[23]
The applicant is the owner of the property and the respondents are in
unlawful occupation. The first respondent has not taken
any steps to
set aside the sale in execution. Thus on the first leg of the enquiry
an order for eviction is just and equitable.
The only remaining issue
to be considered is whether it is just and equitable to order an
eviction in view there being elderly
and children residing on the
premises. The circumstances of these elderly persons and children are
not known to the applicant and
the respondent has failed to furnish
further information to assist this court in coming to a determination
regarding when it would
be just and equitable for the occupants to
vacate the premises.
[24]
On the papers it is clear that the first respondent is able to access
a bond and has reserve funds which he is able to access
to pay for
accommodation. In view hereof the first respondent will not be
rendered homeless as he has funds to pay for accommodation
for
himself and those holding under him. Thus on the second leg it
appears that it will be just and equitable to afford the first
respondent and those holding under him sufficient time to find
alternative accommodation. Mr J.H Korsten suggested that three months
would afford the respondent sufficient time. In view of the festive
season approaching resulting in a slowing down of business
in the
property market and business closing, this time should be extended.
[25]
There has been no submissions regarding a deviation from the normal
cost order consequently costs will follow the cause.
[26]
In the result, the following order is granted.
ORDER
1.
The first respondent and the second respondents herein are evicted
from the property and buildings erected on the property better
known
as Erf [..78], Protea Glen Extension 12.
2.
The first and second respondents are ordered to vacate the premises
on or before 24
th
of February 2017.
3.
In
the event that the first and/or second respondents do not vacate the
property on the above date, the Sheriff of the Court or
his lawfully
appointed deputy are authorised and directed to evict the first
and/or second respondents from the property.
4.
The
first respondent is to pay the costs of this application.
______________
S
C MIA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant : Adv J.H Korsten
Instructed
by : KBN Attorneys
On
behalf of the respondent : Adv Mkhize
Instructed
by : Selamolela Attorneys
Date
of hearing : 10 October 2016
Date
of judgment : 19 October 2016