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[2018] ZAGPJHC 505
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Wales v Myburgh (2017/16776) [2018] ZAGPJHC 505 (31 July 2018)
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REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
no:
2017/16776
In the
matter between:
PETER
JAMES
WALES
Applicant
and
GUDRUN
MYBURGH
Respondent
JUDGMENT
CARELSE,
J
:
[1] The applicant seeks
an order to evict the respondent from his property
situated at [...], Hyde Park, Johannesburg
(“the
residence”) in terms of section 4(1) of
the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act (“PIE”).
[2]
The respondent counterclaims
[1]
for a temporary stay of the eviction proceedings pending the outcome
of an action which has been instituted where pleadings have
closed.
The declarator the respondent seeks,
inter
alia
is
for a life-long right to the property to the extent that the
respondent is obliged to be accommodated by the applicant at the
residence, alternatively, to accommodation of similar ilk. Initially
in the counterclaim the respondent sought a transfer
of the property
into her name. However the respondent seeks to amend the relief
sought in the counter application. I will
return to this
amended relief later on in the judgment.
[3] The central issue to
be determined in this matter is whether the respondent has a
sustainable defence that will prevent her
from being evicted from the
residence. The applicant submits that the respondent has no
sustainable defence to either the eviction
or the action that
prevents her eviction.
Background facts
[4]
To give context to this matter, it is important to set out the
background facts. When the applicant and the respondent entered
into
a romantic relationship sometime in 2014, they were married to third
parties. The respondent alleges that the applicant ‘vigorously’
pursued her well knowing that she was married. This
conduct caused the irretrievable breakdown of the respondent’s
marriage, so the respondent submits. The respondent further alleges
that the applicant told her that they should divorce their
respective
spouses. The applicant promised to marry her. This is denied by the
applicant.
[2]
[5] On 12 August 2016,
the applicant bought the residence in order for them to live
together. Transfer of the property took place
on 15 December 2016.
The respondent and her adult daughter took occupation of the property
at the end of November 2016. By then
the respondent’s divorce
was finalised. The terms of her settlement
inter
alia
included rehabilitative maintenance for a period of two years.
[6]
On 29 November 2016, the applicant left his matrimonial home and
moved in with the respondent and her daughter. On 13 December
2016,
the applicant, together with the respondent and her daughter went on
holiday to Mauritius. They returned on or about 21 December
2016. The
respondent alleges that the applicant told her that he had to leave
for Cape Town to attend a family meeting. After this
meeting, the
respondent alleges that the applicant sent her a WhatsApp message
terminating their relationship. The applicant
denies this,
instead alleges that after the Mauritius trip he realised he made a
mistake and decided to terminate their relationship
and to reconcile
with his wife. It is not disputed that the applicant terminated
the relationship by way of a WhatsApp message.
[3]
[7]
It is the applicant’s case that sometime in January 2017 he
advised the respondent that he intended to sell the property
and
requested the applicant to vacate the property.
[4]
This is denied by the respondent who in turn submits that a meeting
between them took place on 16 January 2017 to discuss practical
issues concerning the up-keep of the residence, namely the payment of
utilities. Pertinently, the applicant submits that she reminded
the
respondent that he intended to register the residence in her name.
This would have entitled her to the full value of
the
residence.
[5]
This alleged
agreement is denied by the applicant.
[8] A number of e-mails
were sent demanding that the respondent vacate the residence. The
respondent refused to vacate the property.
The applicant submits that
he has a mortgage bond registered over the property in favour of ABSA
Bank Limited which he services,
including payments to the Home Owners
Association. He has a monthly commitment in respect of the property
in the amount of R80,
000. The applicant denies that he has any
obligation in law to maintain the respondent and her daughter and
seeks an order on the
basis that it is just and equitable to evict
the respondent from the residence.
The Law
[9] Section 4(1) of PIE
provides:
“
(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 land for the eviction of an unlawful
occupier.”
An
“unlawful occupier” is defined as “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…
[6]
Who
has
locus
standi
to
apply for an eviction in terms of PIE is the owner or a person in
charge of the land in question may approach the court. An ‘owner’
means “the registered owner of land.” 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 a 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 just and equitable date
on which
the unlawful occupier must vacate the land under the circumstances;
and the date on which an eviction order may be carried
out if the
unlawful occupier has not vacated.
[8]
[10] It is common cause
that the applicant is the registered owner of the property. The
applicant submits that the provisions
of PIE have been complied with,
in other words, the jurisdictional requirements have been met.
This is not challenged at
all by the respondent. The applicant
further submits that it is just and equitable to evict the respondent
from the property
on the following grounds: firstly, the applicant
requires possession of his property because he is liable for all the
costs associated
with the property which costs are in the region of
R80, 000 per month; and secondly, the respondent will not be
destitute despite
her say-so if she is evicted from the premises
because the respondent receives a monthly payment from her
ex-husband. Part of the
payment is an amount R15 000 a month for
rental, which has never been used until now and it is still ongoing
until later this year.
So, this is not a case, that if the
respondent is evicted she will be on the street and destitute.
She will be able to rent
other accommodation.
[11] What I am required
to determine is whether the respondent has raised a valid defence.
If no valid defence is raised then
eviction should be ordered and no
stay of the proceedings should be contemplated, so the applicant
submits.
[12] This matter broadly
speaking proceeded under two headings. Firstly, is there a triable
issue/ a valid defence and secondly
the issue of
lis pendens
.
During argument the respondent conceded that the issue of
lis
pendens
does not apply in this case. I agree and therefore
there is no need to deal with this issue in my judgment.
Is there a triable
issue/ valid defence
[13] In her answering
affidavit the respondent’s submits that she has
become the owner of the residence on three
alternative basis.
Firstly, there is an oral agreement of donation. As a result hereof
the residence belongs to the respondent,
so the respondent submits.
Secondly, there was an oral agreement of compromise. Compromise
was the breach of promise to marry.
Thirdly, arising out of the oral
agreement, the respondent alleges that “I have a lifelong right
to this property which is
a real right which must also be registered
in my name.”
[14]
Section 2(1) of the Alienation of Land Act
[9]
provides:
“
No
alienation of land . . . shall . . . be of any force or effect unless
it
is
contained in a deed of alienation signed by the parties.”
All three of the defences
raised in the answering affidavit arises out of an oral agreement and
is unsustainable in law because
it is not permissible to seek the
transfer of immovable property by way of an oral agreement. These
defences fall foul of section
2(1) of the Alienation of Land Act.
The respondent in argument conceded that she has no right to
have the property transferred
into her name on the basis of a
donation in terms of section 2(1) of the Alienation of Land Act.
[15]
This is not the end of the matter because her answering affidavit
goes a step further to the extent that she states: “I
will bring an action in which I will seek this relief, namely to
transfer the property to me.” The respondent also seeks
an
interdict to stay the eviction proceedings based on the fact that an
action will be brought.
[16]
The transfer of the property was the main defence raised in the
answering affidavit. The action on the other hand that was
instituted
was not for the transfer of the residence,
alternatively
a similar residence
but for the right to occupy. The respondent in the action pleads a
contract of maintenance. It is clear that the action instituted
was
for different relief. After the applicant filed their heads of
argument the respondent filed an amendment to her notice of
the
counter application. The original relief, namely, the transfer of the
residence on the basis of the oral agreement of donation,
compromise
and lifelong title which is a real right entitling the respondent to
the transfer of the residence in her name.
[17]
The amendment reads: “By insertion of the following words
at the end of paragraph 1.3 thereof, “ further
alternatively
that it be declared that the Respondent is entitled to be
accommodated by the Applicant and that the Applicant is
obliged to
accommodate the Respondent at [...], (“ House”) ,
alternatively of a similar ilk to her satisfaction which
accommodation includes the furniture presently at the House or like
furniture (“the Accommodation”) in the above mentioned
proceedings. Hyde Park, Johannesburg. The action was for a right to
occupy this property alternatively, and this is important,
alternatively a similar property.” This new defence
amounts to a maintenance claim, so the applicant correctly submits.
[18] As at the date of
hearing, it bears mention that the amendment has never been effected.
Even if I assume that the amendment
was effected, it is clear that
the amendment was intended to bring the action in line with the
notice of the counter application.
[19] There is no evidence
in the answering affidavit to support the amended relief sought.
Neither has the answering affidavit been
supplemented to support the
amended relief.
[20]
In her answering affidavit the respondent states that
[10]
:
“
6.5 He again
agreed that the property belonged to me after his breach of promise,
the last occasion being on 9 January 2017 when
in the presence of
Sabrina, he stated in these exact words to Sabrina:
“Don’t worry, I will take care of
you, the house is
yours.” I accepted this donation alternatively the
compromise in settlement of the breach at that
time. It is implicit
that the applicant would have to do all things necessary to transfer
the property into my name.
6.6 I annex hereto as
annexure “GM2” a copy of an email I sent to the applicant
on 17 January 2017 wherein the further
undertaking of 16 January 2017
to take care of me financially is recorded. I accepted this to
be the position. I will revert
to this annexure in context herein
below.”
The primary case of the
respondent is that as a result of the donation, the residence must be
transferred into her name; in addition,
she seeks an undertaking to
take care of her financially. This verbal agreement was
concluded on 16 January 2017.
[21] I understand the
respondent’s case to be that the alleged express term of the
verbal agreement was that the residence
was donated to her. At the
same time the respondent also relies on an alleged tacit term of the
verbal agreement that she will
not be the owner but will be
accommodated in terms of a contract of maintenance. In my view the
respondent cannot intend on the
one hand that she becomes the owner
and on the other hand she agrees that she will not be the owner, but
will be accommodated in
terms of a contract of maintenance. The
alleged verbal agreement of maintenance contained in the action is
not supported
under oath and is clearly stillborn on the basis of the
contradictory version.
[22]
There is a second basis upon which the alleged verbal agreement is
stillborn. The respondent in an e-mail to the applicant,
marked
GM2
[11]
states:
“
Apart from the
devastating emotional consequences, there are serious financial
consequences to consider going forward for my future
many of which I
discussed with you last night at our meeting. . . ”
This email is dated 17
January 2017. Thus the meeting alluded to was the meeting of 16
January 2017 which is common cause. The email
goes further:
“
In the spirit of
our meeting it was agreed that we would try and resolve this
honourably and with dignity …
“
Last
night and even before you agreed that you would financially take care
of me.
The
details now need to be worked out…”
(My
underlining
)
The foregoing
demonstrates that the meeting was to resolve issues but pertinently
no agreement was reached. The email further states:
“
. . . It was also
agreed that I could stay in the house as long as I choose until it
was sold, and you would pay the monthly, the
costs of this. . . ”
This
paragraph indicates that it is the applicant that will decide when
the residence is sold and she will stay in the residence
for as long
as she chooses.
“
. . . You
suggested that I could have a third value of the house, but I
disagree and feel half is fair, as you made it clear
from the
outset that we would be in a 50/50 partnership in our relationship
and marriage. Do you recall you wanted to put the house
in my name?”
This
paragraph pre-supposes that the house can be sold, but it was not
agreed what will happen once the residence is sold. In other
words,
there is no agreement what the respondent will be entitled to once
the residence is sold. This paragraph certainly contradicts
the
donation story. It also contradicts the respondent’s version
that “I may stay in the house for as long as I want
to”.
This paragraph contradicts the respondent’s version that the
residence was donated to her. The email further reads:
“
Please let’s
meet up again soon so that we can discuss further and resolve in the
spirit of goodwill.”
This paragraph is
destructive of the respondent’s version that an agreement had
been reached.
[23] In an e mail to the
respondent dated 17 January 2017 the applicant states:
“
I agree that once
Hyde Park is sold but there is no pressure to sell, I will allocate
your 33 percent of the value after all costs
that I have incurred for
[t]he up keep and maintenance of the property.”
Even in this
correspondence there is no hint of an undertaking/ agreement to
maintain the respondent.
[24] That the parties
entered into a verbal agreement on 16 January 2017 is not borne out
by this email. At best for the respondent
there was an
agreement to agree.
[25]
That no agreement was reached is further supported by a letter from
the respondent’s erstwhile attorney dated the 12
February
2017
[12]
a month after the
meeting of 16 January 2017. In the letter the following
agreement is alluded to:
“
. . . Your client
thereafter verbally agreed with our client that despite the
termination of the relationship, she would be entitled
to remain in
the property for as long as she wished and upon the eventual sale of
same, he would allocate to our client 33% of
the value of the
property, which your client equated to approximately R5million. The
aforesaid agreement was recorded in an email
dated 17 January 2017
from your client to ours, a copy of which is attached.”
The agreement now being
relied upon is not contained in this letter.
[26]
Turning to the respondent’s particulars of claim she
states
[13]
:
“
3.
During or about 16 January 2017 and at Johannesburg the Plaintiff
and
the Defendant both acting personally, concluded a verbal
agreement
(“the agreement”)
[14]
.
4. The material express,
alternatively implied, further alternatively tacit terms
of the agreement were
inter
alia
as follows:
4.1 The Defendant would
maintain and support the Plaintiff financially and in accordance with
the lifestyle to which she was accustomed
(“the obligation to
maintain”).
4.2 As part of the
obligation to maintain, the Defendant undertook to accommodate the
Plaintiff in the house, alternatively other
accommodation of a
similar ilk, which accommodation includes . . . “
It is apparent from the
aforegoing that the essential terms of the alleged verbal
agreement set out above is that the applicant
would maintain and
support the respondent financially and give an undertaking to
accommodate the respondent in the residence, alternatively,
provide
accommodation of similar ilk.
[27] The agreement
contended for by respondent in the action, which is what the
respondent wants the stay for, is not only destroyed
because it will
rely on a tacit term which conflicts with the express intention of
the parties but also fails, because the very
correspondence which
supposedly records the agreement the next day shows that there was no
agreement. No final agreement
was reached. At best it
amounted to an agreement to agree.
[28] To seek an interdict
in the action to prevent the applicant from ejecting the respondent
until another property has been provided
is unsustainable in law
because the contract of maintenance relied upon only gives rise to a
personal right. At best, the respondent
may sue the applicant in
order to enforce the contract, if she can prove a contract of
maintenance. Even if the respondent is able
to prove a contract of
maintenance she could sue for specific performance which will still
not give her a real right in the property.
Without a real right she
cannot enforce a right of retention over the property. Because the
respondent does not have a real right
there is no reason for such
security to be given. Effectively the respondent is saying is that
she is entitled to hang on to the
residence until she gets what she
wants. Neither is there a debtor–creditor lien that can
arise because nowhere in
the papers does the respondent state that
the applicant owes her any money and that she is entitled to half of
the property as
security. Therefore no case for a right of retention
has been made on the papers.
[29] I understand the
respondent’s case to be that the undertaking by the applicant
to provide for the respondent financially
would include her
accommodation in either the disputed residence or a property of
similar ilk. The respondent submits that notwithstanding
the fact
that the applicant is the owner of the property she is entitled to
interdict the applicant from selling it until such
time that he has
found or tendered accommodation of a similar ilk to her. To stay the
eviction proceedings in the circumstances
of this case would be in
the interest of justice. Pertinently if she is evicted on 31 August
2018 she will not be able to enforce
her right to alternative
accommodation because she would have already vacated the residence,
so the respondent submits. In other
words until the applicant has
tendered alternative accommodation the respondent is entitled to stay
at the residence.
[30]
To support her case for the stay of the eviction proceedings the
respondent relies on a recent judgment of the Constitutional
Court,
Mokone
v Tassos Properties CC and Another.
[15]
In this matter the eviction proceedings relating to a commercial
lease were stayed because the applicant was seeking to enforce
a
right of pre–emption, because if she succeeds in the action,
the eviction would be unnecessary and unfair. The Constitutional
held
that the interest of justice dictates that the eviction be stayed.
[31] In
Mokone
supra
there were prospects of success on the basis of the right of
pre-emption. Furthermore, Mokone case she running a business from
the
premises and if evicted, it would have ended her ability to do so.
Part of the conditions that were laid down by the Constitutional
Court was that she continue paying the rent.
[32] The applicant
correctly submits that it is not a general just and equitable basis
where one feels sorry for a litigant and
applies the interest of
justice test. There must be a basis. In my view the relief in the
action will not rescue the eviction because
the respondent cannot
hang on to the residence until her personal right for alternative
accommodation is satisfied. The respondent
has not made a case to
hold the residence as security. When considering the interest of
justice test the merits of the action
must be considered.
[33] In my view, the
respondent has not made out a case for the eviction proceedings to be
stayed on the basis that she is entitled
to remain on the residence
and if the action succeeds she will be entitled to stay on the
premises. She may have a claim to be
put up in a similar property.
But she cannot hang onto the property until a similar property is
provided. The applicant correctly
submits that even if a contract is
established it is one in perpetuity and terminable on reasonable
notice. The applicant submits
that reasonable notice has been given.
Six months’ notice was given which starts to run from February
2018 until the end
of August 2018. It is therefore just and equitable
to evict the respondent as at the end of August 2018, so the
applicant submits.
Costs
[34] The applicant
submits that costs should follow the result and cost of two counsel
where two counsel were used. The applicant
also seeks the cost of the
Rule 30 application which is opposed by the respondent. The
applicant submits that in response
to the notice to the
counter-application, the applicant did not put up an answering
affidavit, instead the applicant filed a notice
of points of law in
terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court. In
response to this notice, the respondent
filed a replying affidavit
which applicant submits is an irregular step. A replying
affidavit follows an answering
affidavit. There is no such thing as a
replying affidavit to a notice of a point of law. For this reason the
Rule 30 application
was launched and the applicant submits that he is
entitled to the costs of the Rule 30 application.
[35] The respondent
submits that the Rule 30 application went beyond points of law. It
deals with factual issues to which the respondent
was entitled to
respond. The respondent further submits that the costs should not be
awarded because the applicant was not successful
on the point of law
and the debate has become moot. In my view each party should pay the
cost relating to the Rule 30 application.
[36] I am satisfied that
the applicant, the registered owner of the premises has met the
jurisdictional requirements for an eviction
and having regard to all
the relevant circumstances of both the applicant and the respondent
in my view it would be just and equitable
if the date for eviction is
30 November 2018.
[37] In result of the
following order is made:
1. The respondent is
evicted from the property situate at: [...] Hyde Park.
2. The respondent is
ordered to vacate the property on the 30 November 2018, the Sheriff
of the Court or his Deputy is authorised
to evict the respondent from
the property on 7 December 2018, if the respondent has not done so.
3. The respondent is to
pay the costs of this application including the costs of the
application in terms of section 4(2) of PIE,
such costs to include
the costs of two counsels where two counsels were engaged.
[4] Each party is to pay
their costs of the Rule 30 application.
________________________________________
Z Carelse
Judge of the High
Court
Gauteng Local
Division, Johannesburg
Appearances
Counsel
for the Applicant:
Mr
A Gautsch SC and Mr Pullinger
Instructed
by:
Messrs Vermaak and
Partners
Counsel
for the Respondent
: Mr
Smith
Instructed
by
: Natalie Lubbe &
Associates Inc.
Date heard
Date judgment delivered:
31 July 2018
[1]
Page
136 GM1
[2]
Annexure
JPW5
[3]
FA
– GM 2 “ Have had my meeting and I would like you to
respect my decision to stay with my family
and
so will not be back tomorrow I am sorry it is over between us and
this final decision regards”.
[4]
FA
page 8 para 10
[5]
AA
page 120 para 35
[6]
Section
1
[7]
Section
4(6)
[8]
Section
4(7)
[9]
68
of 1981
[10]
Vol
1 page 94 par [3]
[11]
Page
141 – GM2
[12]
Page
19 annexure JPW4
[13]
Volume
4 page 368 par 3
[14]
Vol
4 page 368 para[3]
[15]
2017(5)
SA 456 (CC)