About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 176
|
|
National Savings and Investments (Proprietary) Ltd v Chimaliro and Others (26598/2017) [2019] ZAGPJHC 176 (24 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
26598/2017
In
the matter between:
NATIONAL
SAVINGS AND INVESTMENTS
(PROPRIETARY)
LTD
Applicant
and
HESTON
CHIMALIRO
First
Respondent
THE
UNLAWFUL OCCUPANTS OF
[…]
Second
Respondent
EKURHULENI
METROPOLITAN MUNICIPALITY
BOKSBURG
Third
Respondent
J U D G M E N T
MAIER-FRAWLEY
AJ:
Introduction
1.
This is an application for the eviction of
the first respondent, Mr. Heston Chimaliro (Chimaliro) and all
persons occupying through
him (second respondent) of an apartment
described as […], situate at […], Eveleigh, Boksburg
(‘the property’).
2.
National
Savings and Investments (Pty) Ltd (applicant) is the registered owner
of the property, having purchased same from the appointed
Liquidators
of
Erf
[…] Kelvin CC
[1]
on 12 August 2016. Registration of transfer took place on 31 March
2017, and it is not in dispute that the applicant enjoys the
necessary
locus
standi
in
the matter. It is further common cause that the first respondent and
his family are in occupation of the property.
3.
The third respondent (local municipality)
is joined in the proceedings by virtue of the provisions of the
Prevention of Illegal
Eviction From and Unlawful occupation of Land
Act, 19 of 1998 (PIE).
4.
The applicant alleges that the first and
second respondents (the respondents) are in unlawful occupation of
the property as the
applicant did not conclude any lease agreement
with the respondents, nor was a valid lease agreement in place
between the previous
owner and the respondents entitling them to
occupy the premises.
5.
The
respondents oppose the application
[2]
on grounds that: (i) Chimaliro (and his family) lawfully occupy the
premises by virtue of a written lease agreement concluded between
Chimaliro and the previous owners of the property,
[3]
which lease agreement had not been terminated prior to the
institution of the eviction proceedings; and (ii) Chimaliro’s
minor son lives at the property with him, and evicting them would
render them homeless.
Factual background
6.
After purchasing the property, the
applicant delivered a letter (dated 3 April 2017) to the respondents,
in which the respondents
were notified,
inter
alia,
of the fact that the property had
been purchased by the applicant and had been registered in the
applicant’s name. The respondents
were informed that ‘
we
are advised by the sellers
[liquidators]
that there is no valid
written lease agreement in place with them in terms of which you are
in occupation of the property’.
The
respondents were requested to vacate the property by 14
th
April 2017, failing which eviction proceedings would be instituted
against them. It is common cause between the parties that Chimaliro
received this letter.
7.
In
December 2017, the preliminary notices in terms of (PIE) were served
by the Sherriff and an order was obtained on 30 January
2018
authorising the service of the eviction application on the
applicants. Thereafter, the Sheriff filed his return indicating
that
a copy of the notice of eviction had been served on the respondents
on 25 October 2018 at the property, as required in terms
of section
4(2) of PIE. On 26 October 2018, the Sheriff also served a section
4(2) notice on the third respondent (Ekurhuleni Metropolitan
Municipality). It is not in dispute that the respondents were given
fourteen days’ notice of the eviction application as
required
in terms of PIE.
Evaluation
Lawfulness of
occupation
8.
The
applicant’s case is that the respondents have not paid any
occupational rent,
[4]
nor is
there any lease agreement in place entitling them to occupy the
property.
9.
Chimaliro
contends that the respondents occupy the property under and by virtue
of a written lease agreement concluded with Rawson
Properties t/a
Blue Grass Trading 1112 CC (Rawson), the latter acting on
instructions of or as agents of the erstwhile owners of
the property.
In support thereof, Chimaliro relies on a document titled
‘
Application
to lease a property
’
[5]
as well as a written lease agreement
[6]
in the answering papers. The application specifically provides
that ‘
No
agreement shall be deemed to exist between the Landlord and/or his
agent and the Applicant and/or Applicants until the lease
agreement
has been duly signed by, or on behalf of the Landlord, and monies
paid, or arrangements made to pay the monies
’.
[7]
The copy of the lease agreement (annexed to the answering affidavit)
appears to be signed by a representative of Rawson,
merely for
purposes of accepting the benefits thereunder. It is not signed by
the landlord (whose identity is also not specified
therein). The
lease agreement provides that the lease will endure for a fixed
period of one year only, commencing on 1 June 2016
and terminating on
31 May 2017.
10.
According
to Chimaliro, he has resided at the property for over a year in terms
of the said lease agreement, which he contends,
entitles him to
occupy the property, which lease was never terminated against him (or
those who occupy through him), at least not
prior to the launch of
the eviction application. He alleges that ‘
the
complex is safely secured by 24 hour security and no one would gain
access to the complex except by having your finger prints
captured
and stored by permission of the owners
’.
[8]
In addition, Chimaliro has provided proof of his payment of a deposit
in the sum of R11,100.00 in the answering papers.
11.
In reply, the applicant avers that the
liquidators of Erf […] merely mandated Rawson to source
potential tenants for the
various units in the complex (including the
property in question), however, a lease agreement would only be
concluded with a potential
tenant if the latter was approved by the
liquidators. The applicant alleges that Rawson was never authorised
to conclude lease
agreements for and on behalf of the liquidators -
the liquidators were never presented with the ‘lease agreement’
and
also never signed same – consequently, there was never any
‘lease agreement’ between the liquidators and Chimaliro.
These allegations are confirmed by Mr Lutchman (one of the
liquidators) in an affidavit in the replying papers.
12.
The
defence contended for by Chimaliro, namely, the existence of a valid
lease agreement, has in my view, created a material dispute
of fact
on the papers. As an eviction order is being sought in application
proceedings, the court is therefore bound to accept
those facts
averred by the applicant (owner) that are not disputed by the
respondents (i.e, the occupants, represented by Chimaliro)
and the
respondents’ version in so far as same is tenable and credible.
The well-known Plascon-Evans test,
[9]
as adumbrated in
National
Director of Public Prosecutions v Zuma
,
[10]
requires the court to accept the version of Chimaliro in so far as
there is any dispute of fact and his version is not far-fetched,
not
credible or implausible.
[11]
13.
The
applicant contends that even if the respondents’ version were
to be accepted, namely, that a valid lease agreement was
in
existence, the lease had terminated by effluxion of time on 31 May
2017.
[12]
Besides, the
eviction application was launched on 20 July 2017 in circumstances
where it could never be contended that a tacit
relocation had been
concluded. The submission is persuasive, for a tacit relocation is
only concluded if the occupant continues
to occupy the property in
question with the tacit or express consent of the owner.
[13]
This may occur tacitly if the parties conducted themselves in a
manner that gives rise to the inescapable inference that both desired
to continue the contractual relationship on the same terms as existed
before.
[14]
14.
Whether
or not there was an implied agreement to renew an existing lease (a
so-called ‘tacit relocation’), or to conclude
a new lease
on the same terms as the previous one, is dependent on the facts and
circumstances of the case. More specifically,
it must be able to be
unequivocally inferred from the conduct of the parties (lessor and
lessee) that a renewed or new lease has
come into existence. Under
normal circumstances this would be the case when the lessor allows
the lessee to remain in occupation
of the leased premises after
termination of the lease, and the lessee continues to pay rent that
the lessor accepts.
[15]
The
mere fact that a lessee remains in occupation of the leased premises
after the expiration of the term of the lease does not,
of course,
mean that there is a tacit renewal of the lease. Similarly the
belief, or impression, of one of the parties to the lease
that there
has been a tacit relocation, is not sufficient to bring a new lease
into existence. There must be compliance with the
requirements for an
implied or tacit agreement.
[16]
In
Bowhay
v Ward
1903
TS 772
at
779, Innes CJ held as follows:…’
[T]acit
relocation depends upon this,
that
both parties adopt and continue the position which the termination of
the lease found them in
;
in other words, that the lessor is content that the lessee should
remain, and the lessee is content to remain
.
’
[17]
(own emphasis)
15.
In
the present case, I am unable to find that Chimaliro continued to
occupy the property after 31 May 2017with the tacit or express
permission of the owner (applicant), when regard is had to the
applicant’s express stance to the contrary as set out in its
letter of 3 April 2017 (referred to in para 6 above).
[18]
The applicant, as owner, consistently maintained that the respondents
were in unlawful occupation due to no lease being in existence,
which
stance in any event undermines the existence of a tacit relocation to
continue the contractual relationship on the same terms
as existed
before, which, on the respondents’ version, is what he
ostensibly believed.
The
(undisputed) facts
in
casu
point
indelibly to the conclusion that Chimaliro and his family remained in
occupation of the leased premises after termination
of the lease on
31 May 2017, without paying any rent for such occupation either to
the rental agents (Rawson) or the liquidators
of the previous owners
or the applicant.
[19]
Moreover, he was not occupying the property with the unqualified
consent of the applicant, as evidenced by the letter of 3 April207.
16.
I therefore conclude that the respondents’
occupation of the property was unlawful as from 31 May 2017 when the
lease (on
the respondents’ version) had terminated by effluxion
of time.
Is it just and
equitable to evict?
17.
As
pointed out in
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O
2017
ZACC 18
at paras 40-44, t
he
starting point of the enquiry is section 26(3) of the Constitution
which
inter
alia,
provides
that no one may be evicted from their home without an order of court
made, after considering all the relevant circumstances.
I am enjoined
in terms of the Constitution and PIE
[20]
to have regard to the interests and circumstances of the occupier/s
and to pay due regard to broader considerations of fairness
and other
constitutional values, so as to produce a just and equitable
result.
[21]
It is only once
the court concludes that there is no defence to the claim for
eviction and that it would be just and equitable
to grant an eviction
order that it is obliged to grant that order.
[22]
18.
The following relevant circumstances
emerge from the papers:
18.1.
As far back as 3 April 2017, Chimaliro
was given notice to vacate the property by the new owner (applicant)
who had purchased the
property from the liquidators of the erstwhile
owner. Albeit that such notice occurred prior to the termination of
the lease, after
the termination thereof, further notices to vacate
were given in the s 4(2) notices (served in terms of PIE) as well as
in the
main application;
18.2.
Chimaliro has occupied the premises
without paying rent for a period in excess of two years (i.e., as
from April 2017 to the present
date);
18.3.
On his own version, Chimaliro is
financially able to afford payment of rent, having tendered to pay a
market related amount if a
new lease were to be concluded with the
applicant;
18.4.
The
applicant has indicated that it is not prepared to conclude a new
lease with Chimaliro. Notwithstanding that Chimaliro has indicated
that he is desirous of continuing to lease the property, it is trite
that a court cannot make a contract for the parties,
[23]
and as such, Chimaliro cannot force the applicant to lease the
property to him;
18.5.
The is noting in the papers to indicate
that there are no alternate premises for rental available to
Chimaliro, either in the same
area where the property is situate or
its surrounds or even further afield;
18.6.
Chimaliro is in any event silent about
what attempts, if any, have been made by him either to locate or to
secure alternative accommodation;
18.7.
Chimaliro has a minor child who will be
impacted by an eviction order, although the needs of this child have
not been particularised
in the answering papers;
18.8.
Chimaliro has enjoyed the benefit of
legal representation in the eviction proceedings and has presumably
paid for same, and he cannot
thus be regarded as economically
vulnerable, or unable to obtain alternate accommodation;
18.9.
Chimaliro enjoys no further right to
occupy the premises and indeed never enjoyed the right to occupy the
property without paying
for such occupation;
18.10.
Chimaliro and his wife are both
gainfully employed;
18.11.
Chimaliro has enjoyed the benefit of
free occupation for some two years without having paid, as a bare
minimum, the relevant the
municipal charges levied in respect of the
property;
18.12.
On his own version, he has the financial
means to secure alternate accommodation elsewhere and to pay for
same;
18.13.
He has known of the real risk of
eviction for a period in excess of two years and as such, he ought
reasonably and responsibly to
have made contingent plans in the event
that an eviction order is granted;
18.14.
The professed risk of homelessness is
not borne out by the undisputed facts of the matter and Chimaliro
cannot be characterised
as indigent by any means;
19.
I
am constrained to conclude that it would be just and equitable to
grant an eviction order having regard to all the relevant factors
[24]
and the peculiar circumstances outlined above.
[25]
Date
of implementation of the order
20.
The second enquiry, which the court must
undertake before granting an eviction order, is to 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 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. Nor
can the enquiry be concluded until
the court is satisfied that it is in possession of all the
information necessary to make both
findings based on justice and
equity.”
[26]
21.
The facts of the matter do not support a
conclusion that Chimaliro and his family may be rendered homeless by
an eviction order
or that they are in need of emergency assistance to
relocate elsewhere.
22.
However, because the interests of a
minor child will be impacted by the order, I am of the view that
justice and equity demands
that a slightly longer period than that
suggested by the applicant’s counsel during argument (i.e.,
five weeks) be afforded
to Chimaliro within which to relocate his
family. I propose giving Chimaliro (and his family) a period of eight
weeks from date
of order in which to vacate the premises.
23.
The general rule is that costs follow
the result. I see no reason to depart therefrom.
24.
Accordingly, I grant an order in the
following terms:
1.
The first and second respondents, being the unlawful occupants of
[…], Boksburg, Province of Gauteng, measuring 71 square
metres, presently held by the applicant under Deed of Transfer
ST10812/2017 (‘the property’), are hereby evicted from
the property;
2.
Should the first and second respondents’ fail to vacate the
property on or before Friday the 19th July 2019, the Sherriff
of this
Court or his lawful deputy is hereby authorised to evict them and all
persons holding under them from the property;
3.
The first and second respondents (excluding minor children) are
ordered to pay the costs of the application jointly and severally,
the one paying the other to be absolved.
_________________
MAIER-FRAWLEY
AJ
Date
of hearing:
20 May 2019
Judgment
delivered
24 May 2019
APPEARANCES:
Counsel
for Applicant:
Adv
.
J. Hoffmann
Attorneys
for Applicant:
Levine & Freedman
Ref:
Mr. Freedman/1572
Legal
practitioner for Respondent: Mr. T. Hadebe
Attorneys
for Respondent:
T. Hadebe
Attorneys
Ref:
Mr. T. Hadebe
[1]
Erf
[...] Kelvin CC
(Erf 80) is the erstwhile owner if the property. It was the
developer of Eveleigh Estates and had owned the unit since it was
constructed in 2009. Erf [...]
was placed into final liquidation by order of Court on 25 November
2013.
[2]
A composite answering affidavit, deposed to by Chimaliro, was filed
on behalf of the first and second respondents.
[3]
See
para 10 at p. 55 of the papers, where Chimaliro states that ‘
there
is an existing lease agreement between us and the owners of the
property which lease is enforceable between us and any other
subsequent owner of the property and or owners in succession and or
title
.’
A
copy of the lease agreement relied on, appears at pp. 74-85 of the
papers.
[4]
This
fact was indeed conceded during oral argument presented by
Mr
Hadebe (attorney) who appeared on behalf of the respondents at the
hearing.
[5]
A copy of the application appears at pp. 68-72 of the papers.
[6]
A
copy of the lease agreement appears at pp. 74-85 of the papers and
contains the signature of a representative of Rawson (at
p.85) which
appears to have been inserted merely for purposes of accepting the
benefits contained therein. The landlord’s
particulars are not
inserted in the space provided therefore in the lease agreement.
[7]
See para 2 below the heading ‘Acceptance’ at p. 71 of
the papers.
[8]
See paras 39 & 40 at p 60 read with para 44 at p. 61 of the
papers.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635D.
[10]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
2009 (1) SACR 361
(SCA) para 26.
[11]
See too:
ACSA
v Exclusive Books
(945/2015)
[2016] ZASCA 129
(27 September 2016) at para 5;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 55.
[12]
See clause 3 at p. 76 of the papers. The lease was for a fixed
period of 12 months, commencing on 1 June 2016 and terminating
on 31
May 2017.
[13]
See:
s
5(5)
of the
Rental Housing Act 50 of 1999
, which provides as
follows: ‘
If
on the expiration of the lease the tenant
remains
in the dwelling with the express or tacit consent of the landlord
,
the parties are deemed, in the absence of a further written lease,
to have entered into a periodic lease, on the same terms
and
conditions as the expired lease, except that at least one month's
written notice must be given of the intention by either
party to
terminate the lease
.’
(own emphasis).
In
terms of
s 1
of the said Act, ‘ ‘
'landlord'
means the owner of a dwelling which is leased and includes his or
her duly authorised agent or a person who is in lawful possession
of
a dwelling and has the right to lease or sub-lease it’.
[14]
See:
Golden
Fried Chicken (Pty) ltd v Sirad Fast Foods CC
2002
(1) SA 822
(SCA) at para 4.
[15]
See
in general: W E Cooper,
Landlord
and Tenant
(2
nd
edition
1994) at 350 & 352; W A Joubert (editor)
The
Law of South Africa
(first
reissue 1999) volume 14, para 217.
[16]
See:
Muller
v Pam Snyman Eiendomskonsultante (Edms) Bpk
[2000]
4 All SA 412
(C)
at 417
g
-
j
.
[17]
See
too:
Tiopaizi
v Bulawayo Municipality
1923
AD 317
at
325.
[18]
Chimaliro was aware in April 2017 of the applicant’s attitude
that no lease agreement existed between the parties and of
the
applicant’s demand that he vacate the premises (see
applicant’s letter dated 3 April 2017, at p. 11 of the
papers). Chimaliro confirms having received the letter in para 36 at
p. 60 of the papers.
[19]
Mr. Hadebe, who appeared on behalf of the respondents, conceded
during oral argument presented to court at the hearing of the
application that no rent had been paid since at least April 2016.
[20]
In
terms of s 4(7) of PIE, ‘
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.’
[21]
See:
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O
2017
ZACC 18
at paras 40 -44 together with cases therein cited, as read
with s 26(3) of the Constitution and s 4(7) of PIE.
[22]
See:
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012
(6) SA 294
(SCA)
at para 25.
[23]
See:
B
v B
[2014] ZASCA 14
(24 March 2014) at para 20.
[24]
As
mentioned in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012
(6) SA 294
(SCA) at para 25, where the following is said: “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.
”
‘
[25]
The respondents have not advanced any facts to evidence that it
would
not
be just and equitable to grant an eviction.
[26]
See:
Occupiers
of erven 87 & 88 Berea
supra,
at para 45 (quoting from Changing Tides
supra
at para 25).