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[2018] ZAGPJHC 97
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Van der Westhuizen v Nxiweni and Others (21145/17) [2018] ZAGPJHC 97 (8 May 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 21145/17
Not
reportable
Not
of interest to other judges
Revised.
8/5/2018
In
the matter between:
GERHARD
VAN DER
WESTHUIZEN
Applicant
and
PINKY
NXIWENI
First
Respondent
ALL
THE UNLAWFULL OCCUPIERS OF SECTIONAL
TITLE
UNIT […], WITH SCHEME NAME […]
BETTER
KOWN AS […] A.
NEW
REDRUTH,
ALBERTON
Second
Respondent
CITY
OF EKURHULENI METROPOLITAN
MUNICIPALITY
Third
Respondent
JUDGMENT
Molahlehi,
J
Introduction
[1]
This
an application in terms of which the applicant seeks an order
evicting the respondent, Ms Nxiweni and those occupying the property
with her at […] A. New Redruth, Alberton, Johannesburg
(the property). The respondents are allegedly occupying the
property
without the consent of the applicant.
Background
facts
[2]
It
is common cause that initially the occupation of the property by the
first respondent was with the prior consent of the applicant
in that
the parties concluded a lease agreement which commenced on 1 October
2015.
[3]
In
terms of the lease agreement the first respondent had to pay the sum
of R6 000.00 deposit and after that pay the sum of R6 600.00
per
month as the advanced rental. Clause 11 of the lease agreement made
the first respondent liable for municipal charges of the
property.
[4]
Failure
to make payment of any amount required in terms of the lease
agreement would result in a breach of the agreement. In that
event
the first respondent would be given twenty days by the applicant to
remedy such a violation, and after that, the applicant
would be
entitled to terminate the agreement.
[5]
The
lease agreement further provided that upon cancellation of the lease
as a result of the breach, the first respondent and any
other person
occupying the premises through her would be required to immediately
vacate the premises and allow the applicant to
take unhindered
occupation as provided for in clause 24.2 of the lease agreement.
[6]
The
applicant states in his founding affidavit that the first respondent
had breached the lease agreement by not paying the required
rent,
utility charges and deposit which is outstanding in the sum of R131
453.59.
[7]
On
8 January 2016, the first respondent through her erstwhile attorney
was placed on terms to remedy the breach by paying the outstanding
rental in the amount of R7 365.21. The respondent having allegedly
failed to remedy the breach was then issued with the letter
of
termination of the lease agreement on 19 January 2016. The respondent
has refused to vacate the property despite the cancellation
of the
lease agreement and the demand that she leaves the property.
[8]
The
application is opposed by the first respondent who represented
herself during the hearing before me. She has raised several
points
in her defence against the application to evict her from the property
she raised the following points.
Non-joinder
[9]
The
respondent contends that the applicant ought to have joined in these
proceedings the Estate Agent because she assisted in the
signing of
the lease agreement.
[10]
The
test for non- joinder is set out by the Supreme Court of Appeal in
Absa Bank Ltd v Naude NO,
[1]
in
the following terms:
“
[10] The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject matter
of the
litigation which may prejudice the party that has not been joined. In
Gordon v Department of Health, Kwazulu-Natal it was
held that if an
order or judgment cannot be sustained without necessarily prejudicing
the interest of third parties that had not
been joined, then those
third parties have a legal interest in the matter and must be
joined.” (Footnotes omitted).
[11]
In
Judicial Service Commission and Another v Cape Bar Council and
another
[2]
, the Court held that:
“
[12] It
has by now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to
a matter of
convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the
judgment of the
court in the proceedings concerned (see eg Bowring NO v Vrededorp
Properties CC
2007 (5) SA 391
(SCA) para 21). The mere fact that a
party may have an interest in the outcome of the litigation does not
warrant a non-joinder
plea. The right of a party to validly raise the
objection that other parties should have been joined to the
proceedings, has thus
been held to be a limited one.”
[12]
Applying
the above test, in the present matter, I am of the view that the
point raised by the respondent bears no merit. There are
no facts
supporting the contention that it was necessary to join the Estate
Agent as the party in these proceedings. Except for
the fact that it
(the estate agent) assisted in the signing of the lease agreement,
there is nothing to show that it has direct
and substantial interest
in the matter.
Non-compliance
with PIE
[13]
The
respondent contended that the applicant was not entitled to the
relief sought because he did not comply with the provisions
of the
Prevention of Illegal and Unlawful Occupation of Land Eviction Act
(PIE)
[3]
, as concerning the
following:
“
The first
point in this respect is that the notice in terms of section 4(2) of
the PIE Act does not state that the applicant has
a title and that he
is the owner of the property in question. This point is, in my view,
unsustainable because the applicant has
attached to his papers the
Windeed search which shows him as the owner of the property.”
[14]
The
respondent has also not disputed that the applicant is in control of
the property as provided for in s 4 (1) of PIE Act.
Ownership
of the property
[15]
The
respondent disputes ownership of the property by the applicant. The
applicant has alleged in his founding affidavit that he
is the owner
of the property and in support thereof attached the Windeed report
downloaded from the web site of the Deeds Office.
In my view this is
sufficient to prove ownership of the property by the applicant.
[4]
However, even if that was not sufficient proof of ownership, the
applicant still qualifies for the relief on the bases of the
provisions of s 4. (1) of the PIE Act which provides:
“
4 (1)
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings
by an
owner or person in charge of the land for the eviction of an unlawful
occupier.
[16]
The
second point is that the applicant has failed to provide a
municipality report indicating that he intends evicting her with
the
recommendation by the municipality on whether it can provide
alternative accommodation to her and child of school going. This
point is dealt with later in the judgment under the general
principles governing eviction. It suffices, however, to say that it
does not bear any merit because of the failure by the respondent in
her papers to deal with her circumstances that would justify
intervention by the municipality.
[17]
The
same applies to the third point which is that the applicant has
failed to indicate whether the property in question is a primary
residence of the applicant and whether the household is headed by a
woman, disabled person and whether the rights of children or
elderly
people will be affected by the eviction and whether the municipality
or any other organ of state has provided alternative
accommodation to
relocate the applicant.
[18]
The
first respondent has also submitted that she is a mother of school
going children who attend school in the vicinity of the property
which is also a primary residence. According to her, this is a factor
which the applicant ought to have taken into account before
seeking
her eviction.
[19]
The
first respondent further contends that the applicant has failed to
honour its obligation in as far as the provisions of the
lease
agreement are concerned. In this regard, she states that upon
entering the property after the conclusion of the lease agreement
she
found the property not repainted and in a near dilapidated state. She
addressed a letter to the applicant’s estate agent
about the
matter and was promised that it would be attended to, but nothing was
done in that regard. She had to repair the geyser
and the broken taps
at her own cost. She sent the bill of the costs related to the
repairs to the estate agent who failed to settle
it.
[20]
It
seems from the above that the respondent is insisting on staying on
the property despite the cancellation of the lease on the
ground that
she had repaired the damaged facilities and made some improvements to
it.
[21]
Clause
16.2.11 of the lease agreement expressly states that the tenant is
not allowed to make any improvement on the property without
the
consent of the landlord. There is no evidence that the respondent
complied with this requirement in making the alleged repairs
and
improvements. It follows therefore that this complaint cannot be a
sustainable defence.
[22]
She
also complains that the applicant cancelled the lease agreement on
the basis of a 30 days’ notice, rather than two months’
notice as provided for in clause 23.1 of the lease agreement. Clause
23.1 of the lease agreement reads as follows:
“
23.1 The
Landlord may cancel this Lease on 2 (Two) month’s written
notice on the following conditions:
23.1.1
The Landlord intends to move into the Premises; or
23.1.2
The Landlord intends to sell the Premises.”
[23]
It
is clear from the proper reading of the above that the respondent’s
contention that she was given notice of less than two
months as
required by the lease agreement is unsustainable because the
cancellation of the lease was not based on any of the two
conditions.
The cancellation on the applicant’s papers was based on clause
23.2 of the lease agreement which reads as follows:
23.2 The
Landlord may cancel this Lease on 7 (Seven) days’ notice to the
Tenant in the following circumstances:
23.2.1…
23.2.2…
23.2.3
The Tenant remains in continuous breach of the Lease for a period of
3 (Three] months and fails to remedy such breach, despite
being
notified of such breach, in writing, on 3 (Three) months’ and
fails to remedy such breach, despite being notified of
such breach,
in writing, on 3 (Three) months occasions by the Landlord.
24.1 In the
event of the Tenant not paying the Rental or any other monies due in
terms of this Lease on the date upon which such
monies are due and
payable, or committing any other breach in terms of this Lease then:
2.4.1.1
Should the visions of section 14 of the CPA apply to this Lease, and
the Tenant remains in breach of any of the terms of
this Lease for a
period of 20 [Twenty] Business days after dispatch of a written
notice, calling upon the tenant to remedy such
a breach; or
2.4.1.2
Should Lease continue on a Month- to -Month basis in accordance with
the provisions of clause 6.1 and the provisions of
section 14 of the
CPA. Accordingly, not apply to this lease and the tenant remains in
breach of any of the terms of this lease
for a period of 7 (seven)
calendar days after dispatch of the written notice, calling upon the
tenant to remedy such a breach:
the landlord shall be entitled, in
his sole discretion and without prejudice to any other rights that he
may have in law to give
her claim specific performance in terms of
this lease for to cancel the lease forth with and without further
notice claim all arrear
rentals and or any other damages from the
Tenant."
[24]
The
respondent further states that during June 2016 while attending her
mother's funeral in the Eastern Cape, the applicant broke
down her
door, removed it and reduced the electricity supply to cater for only
house lights. The applicant refused to replace the
door he broke,
resulting in the first respondent having to replace it at her own
costs. After that, a meeting was convened between
the applicant and
first respondent’s erstwhile attorneys.
[25]
At
that meeting, the arrears were reconciled to be at R 40 000. 00. The
respondent disputes the amount of R131 453 99 and states
that the
applicant continued to charge her for electricity she did not
consume.
[26]
In
the replying affidavit, the applicant denied all the allegations made
by the first respondent, in particular in relation to the
repair of
the geyser and the breaking down of the door by the estate agent. He
contended further that, even on the first respondent's
own version
the amount of R40 000.00 was due and owing by the first respondent.
[27]
As
concerning arrears in terms of payment of the rental, the first
respondent did not dispute that the last payment she made was
in May
2016. She in this regard undertook to pay the sum of R40 000,00 which
she claims is the correct amount due and owing to
the applicant. The
first respondent undertook to make an arrangement to have the amount
paid by way of a debit order but has to
date failed to do so. The
first respondent has continued to occupy the property without title
to it and continues to so without
making any payment.
[28]
The
complaint about the failure by the applicant to repair or paint the
property is no justification for withholding payment of
the rental.
The first respondent conceded in this regard that there is no clause
in the lease agreement that allowed her to withhold
payment of the
rental.
[29]
The
contention that the eviction is non-compliant with the law because
there was no report from the municipality regarding alternative
accommodation has no merit. All that the respondent needed to do was
to make the municipality aware about the eviction. It was
then for
the first respondent to set out in her papers her personal
circumstances which would indicate whether she would be rendered
homeless as a result of the eviction.
Legal
principles- eviction
[30]
The
procedure to follow in initiating the eviction process is set out in
s 4 (2) of the PIE Act which provides:
“
4 (2)
At least 14 days before the hearing of the proceedings contemplated
in subsection (1), the court must serve written
and effective notice
of the proceedings on the unlawful occupier and the municipality
having jurisdiction.”
[31]
On
the papers as they stand before me, there is no doubt that the
applicant has complied with the procedural requirements of the
Act.
[32]
Turning
to the substantive requirements for a lawful eviction the relevant
subsections are; ss 4(6), (7), (8) and (9) of the
PIE Act which
provide:
“
(6) If an
unlawful occupier has occupied the land in question for less 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 the rights and needs of the elderly,
children, disabled persons and households headed by women.
(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 sold in a sale of
execution pursuant to a mortgage, where the land has
been made
available or can reasonably be made available by a municipality or
other Organ of State or another landowner 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 had 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).
(9) In
determining a just and equitable date contemplated in sub-section
(8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or his family have resided
on the land question.”
[33]
The
requisite approach to adopt when dealing with issues of eviction is
summarised by Wallis JA in City of Johannesburg v Changing
Tides 74
(Pty) Ltd and Others,
[5]
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 a
gradual realisation of the right of access to housing in terms of s
26(1) of the Constitution, is faced with two separate
inquiries.
First, it must decide whether it is just and equitable to grant an
eviction order having regard to all relevant
factors. Under s
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 s 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 the order.
Before doing so, however, it must consider what justice and equity
demand 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 inquiry, 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 he grants as a result of these two discreet inquiries is
a
single order. Accordingly, it cannot be granted until both
inquiries 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 inquiry be concluded
until the court
is satisfied that it is in a position of all the information
necessary to make both findings based on justice and
equity.”
[34]
There
is nothing in the papers before this court indicating that the first
respondent is an indigent and is unable to pay for alternative
accommodation in the event that the applicant is granted the relief
sought. Her case is not that her failure to pay the rental
is due to
financial affordability but rather that she is refusing to pay
because the applicant is alleged to have failed to repair
the damaged
geyser and ensure that the property is in a good state of repairs.
[35]
It
is trite that in considering an application for the eviction of an
occupier of property the court has the discretion to exercise
based
on what is just and equitable in the circumstances. This principle is
set out in Ndlovu v Ngcobo; Bekker and Another v Jika,
[6]
in the following terms:
“
[18] The
court, in determining whether or not to grant an order or in
determining the date on which the property has to be vacated
(s
4(8)), has to exercise a discretion based upon what is just and
equitable. The discretion is one in the wide and not the narrow
sense
(cf Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA
149
;
1992 (4) SA 791
(A) 800, Knox D’Arcy Ltd and Others v
Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) 360G-362G).
A court of first instance, consequently, does not have a free hand to
do whatever it wishes to do and a court of
appeal is not hamstrung by
the traditional grounds of whether the court exercised its discretion
capriciously or upon a wrong principle,
or that it did not bring its
unbiased judgment to bear on the question, or that it acted without
substantial reasons (Ex parte
Neethling and Others
1951 (4) SA 331
(A) 335E, Administrators, Estate Richards v Nichol and Another[1998]
ZASCA 82
[1998] ZASCA 82
; ;
1999 (1) SA 551
(SCA) 561C-F).”
[36]
The
enquiry to conduct to properly exercise the discretion judicially is
set out in Dwele v Phalatse and Others,
[7]
as follows:
“
20.
Essentially there are two inquiries mandated by these sections.
In terms of section 4(7) of the Pie Act, an eviction order
may only
be granted if it is just and equitable to do so, determined after the
court has had regard to all the relevant circumstances,
including the
availability of land for the relocation of the occupiers and the
rights and needs of the elderly, children, disabled
persons and
households headed by women. If the requirements of s 4 are
satisfied and no valid defence to an eviction order
has been raised,
a court ‘must’, in terms of s 4(8) grant an eviction
order. When granting such an order, the
court must, in terms of
s 4(8)(a) of the PIE Act, determine a just and equitable date on
which the unlawful occupier or occupiers
must vacate the premises
(the next inquiry). The court is empowered in terms of s 4(12)
to attach reasonable conditions to
an eviction order. The date
that it determines must be one that is just and equitable to all
parties.” (Footnote omitted).
[37]
In
the circumstances I find that the respondent and those occupying the
property with her are doing so without the consent of the
applicant
and their occupation is accordingly unlawful. There is thus
there is no reason in fairness or equity considering
the facts of
this matter why the relief sought by the applicant should not
granted. In other words it is just and equitable to
order the
eviction of the respondent and those occupying the property with her.
[38]
And
about the date of the implementation of the eviction order, I am of
the view that it is just and equitable to afford the respondent
twenty-one days from the date that this order is served on her for
her to vacate the property.
Order
[39]
In
the premises the following order is made:
1.
The First
and Second Respondents, and all those that occupy the property
by virtue of the occupation thereof by the First
Respondent, are
evicted from the following immovable property at […] A, NEW
REDRUTH, ALBERTON, JOHANNESBURG as described
on Sectional Plan
SS126/1988 on the Scheme known as […] in respect of the land
and building and buildings situate at ERF
NEW REDRUTH, […],
GAUTENG PROVINCE, known as […] A., NEW REDRUTH, ALBERTON,
JOHANNESBURG (the “Property”);
2.
That the
First and Second Respondents and all those that occupy the Property
by virtue of their occupation thereof, are ordered
to vacate the
property within 21 (twenty-one) days from the date of service of this
order;
3.
Should the
First and Second Respondents, and all those that occupy the Property
by virtue of their occupation thereof, fail to vacate
the Property
within 21 (twenty-one) days after receipt of this order, the eviction
order may be carried out, in which event the
Sheriff of this Court is
hereby authorized and directed to forthwith evict the First and
Second Respondents and all those that
occupy the Property by virtue
of their occupation thereof, from the Property.
4.
The Sheriff
of this Court and his/her authorised deputy are hereby authorized to
exercise any force necessary to execute and carry
out the order
granted in terms of prayer 3 above, for which purpose the Sheriff of
the Court and/or his deputy may enlist the services
of the South
African Police Service to the effect above, should it so be
necessary;
5.
That the
First Respondent be ordered to pay the cost of this Application on an
attorney and client scale.
______________________
E
Molahlehi
Judge of the High Court;
Johannesburg
Representation:
For
the Applicants: Adv L Van Gass
Instructed
by: Nelis Brits Attorneys
For
the 1
st
Respondents: In person
Heard:
18 April 2018
Judgment
delivered: 08 May 2018
[1]
(20264/2014)
[2015] ZASCA 97
(1 June 2015).
[2]
2013 (1) SA 170
(SCA) at par [12]
[3]
Act
19 of 1998
[4]
Sibango
and Sixteen Others v PPM Plumbing (Pty) and Another ...
http://www.saflii.org/za/cases/ZAGPPHC/2016/243.html
Apr 20,
2016.
[5]
2012
(6) SA 294 (SCA).
[6]
2004
(1) SA 114
(SCA) para 18.
[7]
(11112/15)
[2017] ZAGPJHC 146 (7 June 2017).