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
>>
2020
>>
[2020] ZAGPJHC 405
|
|
Nyirenda and Others v Njenjema and Another (18674/2019) [2020] ZAGPJHC 405 (19 October 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 18674/2019
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
Date: 19/10/2020
In the matter between:
SAMUEL S
NYIRENDA
FIRST APPLICANT
ANNAH C
NYIRENDA
SECOND APPLICANT
RADHA C
RAMANLAL
THIRD APPLICANT
FRANCOIS J LUBBE
FOURTH APPLICANT
And
RICHARD NJENJEMA
FIRST RESPONDENT
THE CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
VUKEYA
AJ
Introduction
and background
1.
The first and second applicants apply for
the eviction of the first respondent and all who reside under his
name on the property
mentioned hereunder in terms of the Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act 19 of
1998 (hereinafter
referred to as PIE). The City of Johannesburg
Metropolitan Municipality has been joined as the second respondent in
this matter.
The property is situated at Erf 84, Bezuidenhout Valley
and it is also known as 76 5
th
Avenue, Bezuidenhout Valley Johannesburg. Ms T Mkhize appeared for
the applicants and Mr TG Nkosi represented the first respondent.
2.
The first applicant indicates that he cited
the third and fourth applicants as they still appear as registered
co-owners of the
property at the Deeds Office. They have since been
bought out by the first and second applicants and are no longer
involved in
issues that are a bone of contention in the current
application. The second applicant is the first applicant’s wife
and for
the sake of convenience, whenever I refer to ‘the
applicant’ in this judgment, it is also inclusive of the second
applicant
if it is relevant to her.
3.
It is common cause that the first
respondent was the applicants’ employee, he worked as a
caretaker and handyman in five of
the applicants’ properties
and by virtue of the verbal employment contract the respondent was
provided with accommodation
at the aforementioned property. When the
employment ceased for reasons placed in dispute by the applicants,
the applicants caused
a Notice to Vacate to be delivered to the first
respondent for him to vacate the premises on or before 30 September
2018.
4.
It is also common cause that the first and
second applicants are the owners of the property and that the
property which is a bone
of contention here is a single room within
the premises of the abovementioned property.
5.
The first respondent started living in the
applicants’ property on 23 January 2016. When his contract of
employment was terminated
in April 2018, he had to vacate the
property. The applicants initiated the proceedings to have him
evicted on the 27 May 2019;
he refused to vacate the property and has
opposed an application to have him evicted in terms of the PIE Act.
The respondent had
been in occupation of the property for longer than
six (6) months at the time when the proceedings were initiated, and
therefore
Section 4 (7) of the PIE Act is applicable.
6.
The applicants allege that the first
respondent and any other person occupying with him or under him do
not have the right to reside
in the property because the first
respondent was allowed to occupy the room while he was in the employ
of the applicants. As his
employment contract with the applicants has
been terminated, his right to occupy has also been terminated and he
currently occupies
the property unlawfully, as alleged by the
applicants.
7.
In the respondent’s opposing
affidavit he relies on his contract of employment and states that he
derives his right of occupation
from his employment. This defence was
abandoned by the respondent’s counsel during the hearing of the
application. Counsel
submitted that the respondent’s defence
would only be that it will not be just and equitable to evict the
respondent because
he will be left homeless as a result of the
eviction.
8.
It was submitted that the respondent is a
partially disabled person who is getting a disability grant and
therefore it will not
be easy to secure alternative accommodation
because it will be unaffordable to him. The applicant argued that the
respondent can
actually afford alternative accommodation for himself
because he supplements his disability grant with money he receives
from his
cell phone and computer repair shop and it is unlikely that
people come to him for assistance at the shop at no charge.
9.
The applicants further submitted that the
continued occupation of the property by the respondent causes
prejudice to them because
when they bought the property their purpose
was to use it as an investment tool however that bore no fruits and
has turned out
null and void because of the respondent. According to
the applicants, while the respondent stays there freely without
paying rent,
he runs the water bill wastefully and it is costing them
financially. They hired a new caretaker and have had to find
accommodation
for him while the respondent occupies the room
rent-free.
Issues
for determination
10.
As already indicated earlier, ownership of
the property has not been placed in dispute by the respondent and it
is also common cause
that the respondent occupies the property as a
result of a contract of employment which existed between the first
applicant and
the first respondent. The contract of employment has
since been terminated and the respondent has been asked to vacate the
property,
he refuses and states that he will be left homeless and
that it is not just and equitable that he be evicted. The respondent
has
abandoned his defence that he is entitled to remain in the
property by virtue of his employment. The only issues left for
determination
are therefore whether an eviction order, if granted,
will render the respondent homeless in case there is no alternative
accommodation
available and whether it will be just and equitable to
grant the order under these circumstances.
The
Law and procedural requirements of the PIE Act
11.
Section 4 (1) of PIE provides that:
“
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”.
This
therefore means that the Applicant bears the onus to prove; (1) that
he is the owner or the person in charge of the land and;
(2) that the
respondent has occupied the land unlawfully.
12.
Section 4 (7) – (9) which contains
the procedural requirements of an eviction where an occupier has
occupied the land for
longer than six months provides that:
“
(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 execution
pursuant to a mortgage, whether land has been made
available or can
reasonably be made available by a municipality or other organ of the
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).
(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”
13.
In
terms of subsection 7 the court has the discretion to grant an order
for eviction against an occupier who has occupied a residential
property for longer than six months when the application is brought.
Before the court can find that it is just and equitable to
evict an
occupier, it must first satisfy itself that he occupies the land
illegally and that all the surrounding circumstances
of the matter
permit it to grant the order. Such circumstances include, amongst
others, whether the Municipality can make land
available for
occupation by the respondent or whether alternative accommodation can
be provided. This is to be in line with the
constitutional right to
adequate housing. (See
Ndlovu
v. Ngcobo; Bekker and Another v. Jika
2004
(1) SA 114
(SCA)
para 18)
14.
In
City of
Johannesburg v Changing Tides 74 Pty Ltd and Others
2012 (6) SA 294
(SCA)
the
requisite approach to eviction applications was summarised as follows
by Judge Wallis:
“
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
section 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
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 will 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 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 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”
Evaluation
15.
What is obvious from the submissions made
on behalf of the respondent is that he has no defence to the claim
for eviction. He first
relied on the contract of employment that
existed between him and the appellant to show that he was a lawful
occupier of the room.
After the contract of employment was terminated
the respondent was given a notice of eviction which notice he decided
to ignore.
Having abandoned his defence the respondent is left with
no defence at all to the claim for eviction. It is therefore a
well-judged
conclusion to make that the respondent has no defence to
the claim and that he occupies the property unlawfully.
16.
The next leg of the inquiry is whether the
respondent will be rendered homeless if an eviction order is granted.
After hearing the
application I granted an order in which I reserved
this judgment to allow the applicant to file a report from the
Municipality
within 21 days of the order. This report was to allow
the Second Respondent (City of Johannesburg Metropolitan
Municipality) to
provide the court with information relating to
whether the respondent will indeed be rendered homeless if evicted
and if so, whether
alternative accommodation or a temporal emergency
accommodation can be provided to the respondent if evicted. The
report has been
filed.
17.
According to the report prepared by Patrick
Phophi after a thorough investigation of the respondent’s
circumstances was done,
the respondent is an illegal immigrant from
Malawi whose work permit expired in 2016. The provision of temporal
emergency accommodation
should be dealt with in consultation with the
Department of Home Affairs. He explains that if the respondent is
handed over to
the Department of Home Affairs and if he is detained
and ultimately deported the duty to provide him with emergency
accommodation
falls away.
18.
In his affidavit, Mr Phophi concedes that
the second respondent has a duty to provide temporal Emergency
Accommodation to illegal
immigrants but states that such happens in
matters of urgency. He indicates that the first respondent’s
case is not urgent
because there is no evidence of urgency and
requests the court not to make an order for the provision of a
temporal emergency accommodation
against the second respondent. He
requests the court to limit the applicant’s right to occupation
of his property until the
end of the National Lockdown. Mr Phophi
also further states in his affidavit that even if there was no Covid
-19 pandemic, the
City of Johannesburg does not have any alternative
accommodation available to provide because they have a four (4) years
backlog
for emergency accommodation in cases of evictions. He cites
as the reasons for such a backlog budgetary constraints and
unexpected
emergencies, amongst others.
19.
Mr Phophi has indicated that it will take
three years from the time an order is made for the second respondent
to identify, acquire,
refurbish and appoint a manager for such
facilities. He prays that if the court is inclined to evict the first
respondent, the
eviction order be suspended for a period of three
years from the last day of the National Lockdown to allow the second
respondent
to comply with its constitutional duty to provide
emergency accommodation to evictees.
20.
Evidence in the matter shows that the first
respondent is currently unemployed but he is getting a social grant
for his disability.
This disability came as a result of him getting
an injury at work where he cut himself while using a grinder and two
of his fingers
in the left hand were cut loose. They were reconnected
with wires after an operation. It is the respondent’s evidence
that
the doctor declared that he should undertake light work as his
hand was permanently injured. He states in his affidavit that he
struggles to get employment because his hand cannot open completely
nor can it grip or hold things properly. The respondent lives
in that
room with his girlfriend Phindile Hlongwana who is also unemployed.
There are no children; no elderly persons and the first
respondent is
the head of that family and therefore it is not a woman headed
household. The respondent earns a social grant in
the region of R
1 860, 00 per month and he indicated that he also earns R500, 00
per month from SADSAWU. I reasonably believe
that he has a total
income of R2860, 00 per month and from this amount the respondent has
not even offered to pay half of the amount
charged for the room or
any fraction thereof.
21.
The applicant bears the onus of satisfying the court that it is just
and equitable
to make an order for eviction under s 4(7) of the PIE
Act. This however does not place the burden on the applicant to
provide free
accommodation to the first respondent. It is clear from
the pleadings that one of the circumstances the first respondent is
faced
with is unemployment and he however has a source of income, I
have no reason to believe that he will be destitute when evicted.
The
court will not be in breach of his rights if it affords him a
reasonable opportunity to look for an affordable room where he
can
move in with his girlfriend. From April 2018 to date, the applicant
has been unable to use his property and the respondent
has been
occupying it rent-free, without even making an offer to pay for his
water bill.
22.
Clearly the applicant
suffers prejudice as a result of the respondent wanting to stay there
for free when he is no longer
employed by the applicant. The first
respondent cannot stay there indefinitely without paying; his
situation is not the worst kind.
In the
City
of Johannesburg Metropolitan Municipality v. Blue Moonlight
Properties (Pty) Ltd and Another
2012
(2) SA 104
(CC)
the Constitutional Court
confirmed that private entities are not obliged to provide free
housing for other members of the community
indefinitely, but their
rights of occupation may be restricted, and they can be expected to
submit to some delay in exercising,
or some suspension of, their
right to possession of their property in order to accommodate the
immediate needs of the occupiers.
23.
It would seem that the first respondent intends to reside at
the applicant’s
property indefinitely. There is no evidence in
his answering affidavit to indicate that he intends to vacate the
plaintiff’s
property someday and find alternative
accommodation. He has been occupying the property for over 2 years
without making a move.
This is prejudicial to the applicant who has
had to find accommodation for the new caretaker while the respondent
refuses to vacate
the room. The question therefore is, what should be
done under the circumstances.
24.
Having abandoned his defence, the respondent had no valid defence
against his
claim for eviction. Secondly, the respondent has known
since the delivery on him of the notice to vacate that the applicant
was
not willing to keep him in the property. I am mindful of the fact
that the courts have a responsibility to take into consideration
the
provisions of the PIE Act and the Constitutional rights of the
respondent when making a determination of whether it will be
just and
equitable to evict the respondent.
25.
Municipalities have constitutional obligations towards possible
evictees who
face possible homelessness, I have had insight to the
report filed by the City of Johannesburg Metropolitan Municipality
and have
considered their contribution in this matter. They seem to
be struggling with emergency accommodation currently and because of
the budgetary constraints and other factors, they are unable to deal
with the backlog. In cases where the burden can be lessened
the
courts should carefully weigh the circumstances of a possible evictee
and determine whether if done properly, the burden can
be lessened.
26.
I mentioned earlier in this judgment that the first respondent’s
situation
is not the worst kind. He still has a source of income; he
was not rendered permanently disabled that he cannot work at all. He
can look for a job where he can do light work and still be able to
earn a living. He was occupying a room at the applicants’
place
and that makes it a bit easier to find another room where he can pay
an affordable amount. Placing a burden on the Municipality
to find
emergency accommodation for the first respondent or others like him
whose situations are not of the worst kind might collapse
the system
in such a way that those who are in urgent need of emergency
accommodation will not enjoy the assistance they may seriously
require from the Municipality. I have all information available to
make a ruling that the respondent will not be rendered homeless
if an
eviction order is granted especially of he is given sufficient time
to find accommodation he can afford.
27.
Having carefully weighed the factors and circumstances relevant to
this application
I am of the opinion that the respondent will not be
rendered homeless if an eviction order is granted and I therefore
find that
it is just and equitable to grant an eviction order under
the circumstances.
Conclusion
28.
This brings me to the final leg of the inquiry and that is, what
would be just
and equitable in determining the date of implementation
of an eviction order. Considering the fact that the respondent relies
on
his disability grant and an extra R500, 00 on the side, it might
take time for him to secure alternative accommodation though it
is
not totally impossible. The court must therefore provide him adequate
time to find an affordable room and uproot himself from
the
applicant’s premises. It is only him and his girlfriend who
will be affected by the court order because there are no
children and
elderly people residing with them in the room.
29.
Though the applicant may suffer prejudice by the extended occupation
of the
room by the respondent, it is an interim arrangement to allow
the respondent sufficient time to relocate rather than occupying the
room permanently without rental payment. The respondent had made the
room his home and therefore he will need a reasonable amount
of time
to relocate. We are also currently under Lockdown Alert Level 1
because of the Corona Virus Pandemic and it is inhumane
to remove a
person from a place he calls his home for more than four years. In
all the circumstances I believe it will be unjust
to give the
respondents less than three months to vacate the applicant’s
property and also of the opinion that it will be
unfair to do so
during the lockdown period.
Order
[30]
In the result I make the following order:
[30.1]
The first respondent and all persons occupying with and through the
first respondent are hereby
evicted from the immovable property
situated at
Erf 84, Bezuidenhout Valley also known
as 76 5
th
Avenue, Bezuidenhout Valley Johannesburg.
[30.2]
The first respondent and any person occupying the property with him
are ordered to vacate
the property
exactly
one hundred and
twenty (120) days after the last day of the Lockdown period and not
to return thereafter. The calculation of these
days shall include
weekends and holidays.
[30.3]
It is further ordered that in the event that the first respondent
does not vacate the property
on or before the last day of the 120
days, the sheriff
alternatively
his duly appointed
deputy together with such assistance as he deems appropriate is
authorised and directed to evict the first
respondent from the
property.
[30.4]
Each party to pay its own costs.
VUKEYA
AJ
Acting
Judge of the High Court:
Gauteng
Local Division; Johannesburg.
Date
of hearing:
29/07/2020
Date
of delivery:
19/10/2020
Appearance
for the Applicant:
Ms T Mkhize
Instructed
by:
SSLR Incorporated
Weltevredenpark
Telephone:
0861007757
Fax:
0865127728
Email:
thobeka@sslr.co.za
Ref:
T Mkhize/gm/MAT6346
Appearance
for the Respondent:
Mr T Nkosi
Instructed
by:
SERI Law Clinic
Braamfontein
Telephone:
0113565860
Fax:
0113395950
Email:
Amanda@seri-sa.org
Ref:
Nkosi/Duma