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[2017] ZAGPJHC 422
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Sidders v Niyaki and Others (A3052/2017) [2017] ZAGPJHC 422 (14 December 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A3052/2017
COURT
A QUO
CASE NO
:
7097/2017
Not
reportable
Not
of interest to other judges
Revised.
14 December 2017
In
the matter between:
SIDDERS
:
BRYAN
Appellant
-
and -
NIYAKI
:
CHRISTA N
O
First
Respondent
NIYAKI
:
ALEKSEY VLADIMIROVICH N
O
Second
Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Third
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an appeal against a portion of the
judgment and the order of the Johannesburg North Magistrates Court in
Randburg (Additional
Magistrate H Banks), handed down on the 3
rd
of April 2017. The court
a quo
granted the following order against the appellant in favour of the
first and second respondents:-
(a)
It is declared that the appellant and all
persons occupying the property through and under him, are in unlawful
occupation of Erf
[…], Kyalami Estates Extension 3, situate at
[…] F. Street, Kyalami Estate (‘the property’),
and that
it is just and equitable that the appellant and all persons
occupying the property through and under him, on the grounds set out
in the founding affidavit, should be evicted from the property in
terms of s 4(1) read with s 6(1) of Act 19 of 1998.
(b)
The appellant and all persons occupying the
property through and under him, be and is hereby ordered to vacate
the property on or
before the 30
th
April 2017.
(c)
Should the appellant and all persons
occupying the property through or under him, fail or refuse to vacate
the property on or before
the 30
th
April 2017, the sheriff of this court be and is hereby authorised to
evict them from the property.
(d)
Costs are awarded to the first and second
respondents.
[2].
In sum, the court below had ordered the
eviction of the appellant from the property with effect from the 30
th
of April 2017. The court
a quo
had found that the respondents, who are the owners of the property,
had lawfully cancelled a lease agreement between them and the
appellant due to the fact that appellant had breached the lease
agreement by falling into arrears with payment of his monthly rental.
[3].
It is common cause that on the 1
st
of March 2017, when the respondents caused the application for the
eviction of the respondent to be issued, the respondent was
no longer
in arrears with his monthly instalments, he having brought the
instalments up to date on the 1
st
of February 2017. The respondents’ attitude at that stage was
however that the lease agreement had been cancelled by notice
on the
3
rd
of
January 2017, and same had not been reinstated, which meant that the
appellant had no legal right to occupy the property. In
the founding
affidavit in support of the application for eviction dated the 24
th
February 2017, the respondents conveniently make no mention of the
fact that by then the appellant had brought his monthly instalments
up to date and that there had been discussions between the parties
presumably with a view to the reinstatement of the monthly tenancy.
What the respondents did allude to were facts, which in their view,
indicate that it would have been just and equitable to have
the
appellant evicted from the property by a date to be determined by the
court.
[4].
The application for eviction was opposed by
the appellant mainly on the grounds that he should be given more time
to vacate the
property and to look for alternative accommodation. He
also placed before the court factors which he suggested demonstrated
that
it would be just and equitable for the court to give him a
further three months within which to vacate the premises. The
application
was heard on the 3
rd
of April 2017, and the learned Magistrate gave the above order for
the appellant to be evicted from the premises if he fails to
vacate
same on or before the 30
th
April 2017.
[5].
The appellant appeals only against that
part of the judgment and the order of the Magistrates Court which
ordered him to vacate
the leased premises
by
the 30
th
April 2017
. My reading of the notice of
appeal is that the appellant does not take issue with the rest of the
judgment and the order. The
appellant appears to have accepted that
the respondents had the right to cancel the monthly lease tenancy. He
however does not
accept that, having regard to the circumstances in
this matter, the respondents were entitled to have him evicted on the
30
th
April 2017. That portion of the order, so it was contended by the
appellant, should not have been granted by the court below, as
it was
unjust and iniquitous, all things considered, for him to have been
ordered to vacate the premises by the 30
th
April 2017.
[6].
On appeal it was submitted by Ms Humphries,
Counsel for the appellant, that a
court hearing an eviction
matter is obliged to take all the relevant circumstances into account
in order to balance the interest
of the unlawful occupier as well as
those of the owner in order to arrive at a just and equitable
decision.
In that regard, we were referred to:
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
; ,
2005
(1) SA 217
(CC) at 233F.
[7]
.
The court, after concluding that an eviction order should be
granted, is required to determine the date on which to evict and the
conditions on which the eviction should occur, in order to ensure
that the order is just and equitable. See:
Occupiers, Berea v De
Wet NO and Another,
2017 (5) SA 346
(CC) at [46] and [48].
[8].
The relevant factors in this matter, so it
was submitted on behalf of the appellant, are the following:
the
appellant is a 72 year old male; he is self – employed and in
financial difficulty in that he is reliant on funding for
his
business in order to pay his rentals;
by the time
the eviction application was issued by the respondents,
the
appellant had already settled the arrear rental and was at that stage
no longer in breach of the lease agreement; the appellant
had just
launched his new business and
all that he required
was
more time in order to stabilise his new business whilst
seeking new residential and business premises; as the appellant had
settled
the arrear rental and was, at that stage, paying the rental
due, the respondents would not suffer any prejudice if the court
allowed
the appellant three more months within which to vacate the
premises; and the respondents did not put up any evidence to show
that
the trust, which the first and second respondents represent in
these proceedings, would have suffered any real prejudice, let alone
severe prejudice if the appellant was allowed to remain in the
premises for a further three months.
[9].
A just and equitable order would have been to allow the
appellant three more months within which to vacate the premises on
the condition
that he keeps paying the rental and other obligations
pursuant to his occupation of the property.
[10].
I find myself in agreement with these submissions by the
appellant, who placed reliance on the
ratio decidendi
In
Mohamed's Leisure Holdings (Pty) Ltd v Southern Sun Hotel
Interests (Pty) Ltd
,
2017 (4) SA 243
(GJ). In that matter, the
court (Van Oosten J) dealing with cancelation of a lease agreement in
accordance with the letter of the
agreement, has this to say:
‘
[28]
In considering the issue the court is enjoined to make a value
judgment based on the constitutional concepts and values as
referred
to in the authorities quoted above. In particular and adopting an
objective approach, the concepts of fairness and
ubuntu
are paramount. All the facts and circumstances disclosed by the
parties are relevant and fall to be weighed together with contractual
principles such as freedom of contract and
pacta
sunt servanda
.
The final test is whether the circumstances of this case constitute
sufficient cause for the relaxation of
pacta
servanda sunt
.
[29]
Some information as to the nature of the hotel business conducted by
the respondent is apposite. The five-storey building
in which the
hotel is housed comprises 292 rooms, a restaurant, a bar, 5 meeting
rooms, a 'team' room, an outdoor pool, a gymnasium
and parking. The
premises have been utilised for the conducting of the business as a
hotel since 1982. The nature of the business,
primarily, is hotel
accommodation across all market segments, including corporate,
government, leisure, standard tour operators,
conferencing and food
and beverage services. Guests from abroad are primarily from Europe,
especially France and Germany’.
[11].
And then also at par [35] Van Oosten J concludes as follows:
‘
[35]
In a nutshell the court is required to balance the late payment of
the October rental, on the one hand, juxtaposed with the
bank solely
having to bear the blame for the late payment, and the prospect of
the respondent suffering disproportionate prejudice
in the event of
eviction. The determinant criterion is the demonstrable unfairness in
the implementation of clause 20, in granting
an order for eviction as
sought by the applicant. I am accordingly bound to find that the
judicial precedent set in Venter, considered
against the normative
framework of the Constitution in developing the common law, no longer
applies. Applying the value of ubuntu,
'carrying with it the ideas of
humaneness, social justice and fairness' (Everfresh para 71), to the
facts of this matter, finally
leads me to conclude that an order for
the eviction of the respondent, as sought by the applicant, would
offend the values of the
Constitution I have alluded to, and that the
application accordingly must fail’.
[12].
In the
Mohamed’s Leisure Holdings
matter the court
dismissed the owner’s application for the eviction of the
lessee from the property. The court had accepted
the lessor’s
entitlement to cancel the lease agreement because the lessee had
fallen into arrears with his monthly rental,
albeit through no fault
on its part. The court nevertheless dismissed the eviction
application on the basis that with reliance
on ss 34 and 39 of the
Constitution, and in particular the concepts of
ubuntu
and
fairness, there should be a relaxation of
pacta sunt servanda
on the ground that the implementation of the cancellation clause
contained in the agreement, in the circumstances of that case,
would
manifestly cause irreparable harm and offend against public policy.
[13].
Applying these principles
in casu
, it may well be that the
appellant was entitled to resist outright the respondents’
application for eviction. However, on
the 1
st
of December
2017, the Judgment of Van Oosten J was overturned by the Supreme
Court of Appeal, which held that the cancellation
clause in the lease
agreement in that matter was not unfair or unreasonable. The doctrine
of
pacta sunt servanda
, so the SCA held, should be enforced
and applied, and that it is impermissible to infuse principles of
ubuntu
and good faith in the circumstances of that matter.
[14].
Be that as it may, in my judgment, the implementation of the
cancellation clause contained in the agreement and the insistence
by
the respondents to have the appellant evicted, in the circumstances
of the matter before the Magistrate, would manifestly have
caused
irreparable harm and offended against public policy. In light of the
recent judgment of the SCA in the
Mohamed’s Leisure Holdings
matter, this is not a ground for refusing the application for the
eviction of the appellant. In my view, these factors are nevertheless
justification for the Magistrates Court granting of the appellant’s
application for a further period within which to vacate
the premises.
That request, in our view, was innately fair and objectively
reasonable, and the Court
a quo
should have granted that
request.
[15].
Moreover, it was submitted by the appellant that a procedural
irregularity was perpetrated in the Magistrates Court. In light
of
the amendment to the Magistrate's Court Rules and in particular Rule
55, the hearing of the matter, after being opposed by the
appellant,
should not have been proceeded with and heard by the Magistrate on
the 3
rd
April 2017. The matter should have been placed on
the opposed motion court roll and heard as an opposed matter at a
date later
than the 3
rd
April 2017, which is the date on
which the matter would have been heard if same was not opposed. This
contention, so it was submitted
by Ms Humphries, is strengthened by
the fact that the appellant’s replying affidavit had been
delivered on the court day
preceding the date on which the
application had been set down for hearing on the unopposed roll. I
agree with these submissions.
If regard is had to the principles in
the
Berea Occupiers
matter, an injustice had been perpetrated
on the appellant. By all accounts, the learned Magistrate did not
exercise her judicial
oversight duties.
[16].
This appeal is on the basis that the court
a quo
erred in its findings relating to these issues, and it is submitted,
on behalf of the appellant, that the Magistrate should not
have
granted the eviction order.
[17].
For the above reasons I find that the
appellant at the very least was entitled to an order giving him more
time within which to
vacate the premises.
[18].
During argument before us, Ms Humphries
submitted that it would have been just and equitable to allow the
appellant three months
from the date of the order to vacate the
premises. I agree with this submission and I therefore intend varying
the previous eviction
order of Magistrates Court to afford the
appellant until the 28
th
February 2018 to vacate the premises.
[19].
Accordingly, the appeal should be allowed.
Cost
[20].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[21].
As indicated, the
appeal stands to be upheld, which means that the appellant is
successful on appeal, which implies that the appellant
should have
been afforded the three months within which to vacate the property.
This means that the appellant should be awarded
the cost of the
application in the Magistrates Court as well as the cost of the
appeal.
[22].
On the other
hand, the applicant, as it was entitled to do, asserted a contractual
right for the relief sought.
[23].
Accordingly, I am of
the view that no order as to cost relative to the application in the
court a quo as well as in relation to
the appeal would be fair, just,
equitable and reasonable to all concerned.
Order
Accordingly,
the following order is made:-
1.
The appeal is upheld.
2.
The order of the Court
a
quo
be and is hereby set aside and
substituted with the following:-
‘
(a)
It is declared that the appellant and all persons occupying the
property through and under him, are in unlawful occupation of
Erf
[…], Kyalami Estates Extension 3, situate at […] F.
Street, Kyalami Estate (‘the property’), and
that it is
just and equitable that the appellant and all persons occupying the
property through and under him, on the grounds set
out in the
founding affidavit, should be evicted from the property in terms of s
4(1) read with s 6(1) of Act 19 of 1998.
(a)
The
appellant and all persons occupying the property through and under
him, be and is hereby ordered to vacate the property on or
before the
28
th
February 2018.
(b)
Should
the appellant and all persons occupying the property through or under
him, fail or refuse to vacate the property on or before
the 28
th
February 2018, the sheriff of this court be and is hereby authorised
to evict them from the property.
(c)
Each
party shall bear his own costs’.
________________________________
ADAMS J
Judge of the High Court
Gauteng Local Division,
Johannesburg
I
agree,
__________________________
SENYATSI AJ
Acting Judge of the High Court
Gauteng Local
Division, Johannesburg
HEARD
ON:
10
th
October 2017
JUDGMENT
DATE:
14
th
December 2017
FOR
THE APPELLANT:
Adv
Chantelle Humphries
INSTRUCTED
BY:
T
K I Scott Attorneys
FOR
THE FIRST & SECODN RESPONDENTS:
Adv
J Janse Van Vuuren
INSTRUCTED
BY:
S
S L R Incorporated