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[2020] ZAGPJHC 279
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Mbonambi v Johannesburg Housing Company NPC (A3133/2019) [2020] ZAGPJHC 279 (2 November 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A3133/2019
COURT
A QUO
CASE NO
:
10029/2019
DATE
:
2
nd
NOVEMBER 2020
In
the matter between:
MBONAMBI
,
SIPHIWE
Appellant
and
JOHANNESBURG
HOUSING COMPANY
NPC
Respondent
Coram:
Adams J
et
Majavu AJ
Heard
:
14 October 2020
Delivered:
02 November 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
digital system of
the GLD and by release to SAFLII. The date and time for hand-down is
deemed to be 15:30 on 2 November 2020
Summary:
Unlawful occupation – eviction of lessee
in breach of lease agreement – statutory eviction of unlawful
occupiers –
factors to be taken into account by trial court –
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act
19 of 1998 (‘the PIE Act’) –
ORDER
On
appeal from:
The
Johannesburg Magistrates Court (Magistrate P J Stanford sitting as
Court of first instance):
(1)
The appellant’s appeal is dismissed
with costs.
(2)
Save to the extent that there is an
amendment of the date on which the respondent and her family are
required to vacate the premises
(as provided in the orders 3, 4 and 5
below), the order of the Johannesburg Magistrates Court is confirmed.
(3)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees,
are evicted from the property, being
[…], Fordsburg, Johannesburg (‘the property’).
(4)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees,
are to vacate the property by no later
than the 15
th
of December 2020.
(5)
In the event that the appellant, together
with all those occupying the property by virtue of her occupation
thereof, including her
family and/or employees, do not vacate the
property on or before the 15
th
December 2020, the eviction order may be executed and the sheriff of
the court or his lawfully appointed deputy is authorised and
directed
to evict the appellant, together with all those occupying the
property by virtue of her occupation thereof, including
her family
and/or employees, from the property.
(6)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees
are interdicted and restrained from
entering the property at any time after they have vacated the
property or have been evicted
therefrom by the sheriff of the court
or his lawfully appointed deputy.
(7)
In the event that any of the appellant, and
those occupying the property by virtue of her occupation thereof,
including her family
and/or employees, contravene the order in para 6
above, the sheriff of the court or his lawfully appointed deputy, is
authorised
and directed to remove them from the property as soon as
possible after their reoccupation thereof.
(8)
The appellant shall pay the respondent’s
costs of this appeal.
JUDGMENT
Majavu
AJ (Adams J concurring):
[1].
This is an appeal against an order issued
by the Johannesburg Magistrate Court on 9 September 2019 in terms of
which the respondent
and her family were evicted from their primary
residence in a block of flats in Fordsburg. The appeal is with the
leave of the
court
a quo
,
which was granted on the 23 September 2019, and the appeal is opposed
by the respondent.
[2].
The
order was granted on application by the appellant, which was brought
on notice in terms of section 4 (2) of the Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act
[1]
(‘the
PIE Act’).
[3].
In terms of the notice of such application,
and in compliance with the PIE Act and the related legislation and
the case authorities,
the appellant (respondent
a
quo
) was amongst others, invited to
deal with the following pertinent factors: (1) ‘[your]
personal circumstances, including
whether the property is occupied by
elderly persons, children or disabled persons or is a household
headed by women.’ (2) ‘[your]
right to housing,
whether you will be rendered homeless should an order for your
eviction be granted by this court and whether
alternative
accommodation is or can be made available to you.’
[4].
The central issue for determination is
whether or not the court below erred when it found that all the
requirements of the PIE Act
had been complied with and further that
no valid defence had been raised by the appellant in terms of section
4 (8) of the same
Act and subsequently granting an order for the
appellant’s eviction.
The
PIE Act
[5].
The act was promulgated to provide for the
prohibition of unlawful occupation of land and to put in place fair
procedures for the
eviction of unlawful occupiers who occupy land
without permission of the owner or person in charge of such land. It
further provides
that no one may be evicted from their home or
structure utilized for dwelling purposes (see
Ndlovu
v Ngcobo; Bekker and another v Jika
2003 (1) SA 113
(SCA))
Brief
background
[6].
The appellant and respondent concluded a
lease agreement on 19 December 2013. The essential terms were that
such lease would be
on a month-to-month basis and terminable by
either party by giving each other one calendar month’s written
notice of termination.
The tenant would pay monthly rental in the
amount of R5500, excluding consumables, which costs would be added.
Upon taking
occupation the tenant would also be liable for an
additional month’s rental which will be deducted from the
deposit. It was
further agreed that such monthly rental and parking
charges would increase on 1 July each year, even though the
percentage or extent
of such an annual increase was not stated.
[7].
On 26 March 2019 the respondent issued a
notice of termination of lease to the appellant and accordingly gave
her one calendar month
notice and called upon her to vacate the
premises by 30 April 2019. As at the date of the said notice, the
appellant was already
in arrears to the tune of R18 257.50 as
per a warrant of execution which had been already issued on 19
February 2019.
[8].
In the intervening period, it would appear
that the appellant had also referred a dispute to The Gauteng Rental
Housing Tribunal
(‘the tribunal’) under case number: RT
1266/18. The tribunal subsequently issued a ruling on 22 January
2019 in
terms of which it incorporated a settlement agreement between
the parties the terms whereof were recorded as follows:
‘
Ruling
The
tribunal therefore rules as follows:
Settlement
Agreement
the
parties have agreed to the following settlement agreement:
6.1
the respondent to pay an amount of R12 000 (twelve thousand
rand) on or before the end of November 2018.
6.2
the respondent further agrees to pay an amount of R6149 (six thousand
one hundred and forty-nine rand) for the utilities.
6.3
the respondent further agrees to continue renting the property and
pay rent every month.’
[9].
It seems to be common cause that the amount
recorded in the warrant of execution arises from failure to comply
with the order of
the tribunal.
[10].
Two months and four days later, the
appellant had failed to effect the necessary payments as directed by
the tribunal, which prompted
the respondent to issue the notice of
eviction referred to earlier dated 26 March 2019.
[11].
Having failed to heed the termination of
lease notice incorporating the eviction date (30 April 2019), the
respondent on 23 May
2019 proceeded to issue an application out of
the Johannesburg Magistrates’ Court. The sole purpose of that
application was
to seek the eviction of the appellant through the
court order as required.
[12].
It is common cause that the appellant at
various stages of their tenancy breached the lease agreement by
failing to make payment
of the full rental due by her resulting in
the accumulated amount of R18 257,50, which she admitted. By and
large she attributed
her failure to keep up with rental payments due
to sudden financial difficulties which she and her husband
experienced, which I
do not deem relevant for purposes of this
judgement.
[13].
The respondent persisted with its
application resulting in the matter being argued fully before the
Honourable Presiding Magistrate
Stanford. In the end Magistrate
Stanford granted the order sought by the respondent on 9 September
2019, to the effect that the
appellant be evicted from the said
premises.
[14].
Aggrieved by the order, the appellant filed
an application for leave to appeal the order of the Magistrate, as
she was perfectly
entitled to do so and such leave to appeal was
granted on 23 September 2019.
In
this court
[15].
The appellant persisted with her appeal
before us. She was however not legally represented. Through her
husband, Mr Sicelo Mbonambi,
who indicated that she mandated him to
appear on her behalf and further that she is desirous to having the
matter finalized on
the basis of the submissions made, most
importantly the record of the proceedings
a
quo
.
[16].
This was against the backdrop of the
appellant earlier indicating that she would seek a further
postponement of this matter. In
the interest of justice and
expedition, we deemed it prudent to allow the appellant’s
husband to stand in her stead.
Is
the respondent’s (applicant
a quo
’s) application
assailable?
[17].
It is common cause that the lease agreement
in question clearly makes provision for termination by either party
on a month’s
written notice, for whatever reason.
[18].
It is also commonly accepted that failure
to pay the full rental on due date is itself a breach which could
give rise to a lawful
termination, provided the provisions as
contained in the lease agreement are complied with. In this instance,
any party who seeks
to resile from the lease agreement, is simply
required to give one month’s written notice of intention to do
so. This step,
the respondent took in the form of the letter dated
26
th
March 2019. It is also clear that this was brought about as a result
of the appellant’s persistent failure to comply with
the
contractual terms as recorded in the lease agreement. This is over
and above a referral to the tribunal in which the appellant
admitted
liability as alleged and further undertook to extinguish the date by
the end of November 2019, which to date she has not
done.
Applicability
of the Rental Housing Act
[2]
[19].
This dispute between the parties falls
squarely within the ambit of The Rental Housing Act, which in turn
creates housing tribunals.
This is precisely why a dispute under case
number RT: 1266/18 was referred to the Gauteng Rental Tribunal in
Johannesburg and in
which both parties fully participated.
[20].
The premises concerned are managed by the
Johannesburg Housing Company, a non-profit Company, on behalf of the
City of Johannesburg.
[21].
The dispute which was referred to the
tribunal was finalized with the pronouncement of the tribunal on 22
January 2019, thus rendering
the tribunal
functus
officio.
The appellant contends that in
so evicting her, the respondent is committing an unfair practice or
otherwise an infringement of
her constitutional rights, in particular
s 26(1) of the Constitution of the Republic of South Africa, which
provides as follows:
’
26
(1) everyone has the right to have access to adequate housing.
(2)
the state must take reasonable legislative and other measures within
its available resources to achieve the progressive realization
of
this right.
(3)
no one may be evicted from their home or have their home demolished
without an order of court
made after considering all the
relevant circumstances. No legislation may permit arbitrary
evictions.’
[22].
The
dispute referred to the Housing Tribunal revolved around non-payment
of rent and the municipal account. The issue of an unfair
practice
was not before the tribunal at all. Of importance, the appellant
failed to comply with the order of the tribunal in spite
of having
been warned with reference to the provisions of section 13 (13 ) of
the Act
[3]
.
[23].
During argument in this appeal, the
appellant also referred us to a constitutional court case of
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
(CCT57/11) (CC) [2012] ZACC2; 2012(3) SA 531 (CC);
2012 BCLR 449
(CC)
(13 March 2012), presumably to strengthen her submissions that the
conduct of the respondent in persisting with the eviction,
on the
strength of the Magistrates Court order, is indeed unlawful and/or a
violation of her constitutional rights.
[24].
This case is clearly distinguishable from
the one before us, in that in the present case there is no decision
pending the referral
of the complaint to the tribunal. In
Maphango
the central question was whether or not it was open to the landlord
to proceed with an eviction when there was a pending referral
to the
tribunal. The court then ruled that the matter should be remitted
back to the tribunal for decision before it could be entertained
by
the High Court. As indicated
supra
,
in this case the tribunal had made its decision and is accordingly
functus officio
.
The very narrow question for consideration in that case was when can
a lessor evict its tenants. This question was considered
against the
backdrop of the Constitution and the impact of the protection
afforded against evictions. It has now become settled
law that no
arbitrary evictions are unlawful and not permissible.
[25].
In this case, the eviction which is sought
to be challenged (and not effected yet) is duly authorized by a court
of law, having
considered all relevant factors as per the order of
the Magistrates Court. The fact that the appellant is aggrieved
thereby, does
not by any stretch of imagination make it arbitrary.
[26].
This case does not even implicate the
appellant’s section 26 rights as asserted, but rather is simply
about the comity or
sanctity of contracts. The reason for the
termination of the lease agreement was as a result of the appellant’s
failure to
keep up with the monthly rental payments. There was a
subsequent arrangement on the back of the order of the tribunal,
which afforded
the appellant a further opportunity to comply with her
contractual obligations in terms of the lease agreement. That was
also not
complied with, for reasons which the appellant explained.
The respondent never waived its right regarding the cancellation of
the
lease agreement and the consequential eviction.
[27].
As
regards the important consideration that the eviction of persons
should not render them homeless, it cannot be said to be the
case in
this matter. Far from it. The question is whether suitable
alternative accommodation is available to the respondent and
her
family. The relevant authority is
Blue
Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue
and Another
[4]
.
However, the case before us does not identify the respondent and her
family as persons who are within the class of persons who
can be
described as the poorest of the poor. There is no evidence before us
that they may face the prospect of being homeless.
No such case was
made out in the court
a
quo
.
[28].
In
Blue
Moonlight
the occupiers were identified
and represented and had placed undisputed information before the
court regarding their personal circumstances
and demonstrated that,
if evicted, they would be rendered homeless.
Blue
Moonlight
further held that affected
individuals, including children, elderly people, and people with
disabilities or women headed households,
for whom the need for
housing is particularly great, homelessness would result in
particularly disastrous consequences. No such
case was made out
in
casu
in the Johannesburg Magistrates
Court.
[29].
The appellant was given a further extended
period within which to vacate the premises, but to date she and her
family remain in
occupation. The right of tenure is not in
perpetuity, especially in circumstances where the respondent and her
family are clearly,
and on their own version, unable to fully meet
their financial obligations due to her financial challenges. In any
event, the landlord
has elected to exercise its right to terminate
and has done so in compliance with the provisions of the self-same
lease agreement,
namely, giving a month’s written notice to the
appellant. Factually, there is nothing offensive to public policy
about that
particular and non-exclusive clause. It affords either
party the same right and process to terminate - one month’s
written
notice, that’s all.
[30].
The statute was enacted to give effect to
the constitutional right of access to adequate housing, which
includes the right not to
be evicted
without
an order of court after taking into account all the relevant
circumstances. This was done, so the
arbitrariness
,
as a mischief sought to be avoided, was indeed avoided, as per the
order of the Magistrates Court.
[31].
The ambit of the Act cannot be said to
limit, beyond what is just and equitable, all things considered, the
landlord’s right
to expect due and timeous payment of rent from
its tenant. Absent payment of rental for any lawful reason, nothing
precludes the
landlord from terminating the lease agreement and
seeking (through a court process) the eviction of the errant tenant,
such as
the appellant.
[32].
The protection and realization of the right
of access to housing is recognized, however, like all other rights,
they carry corresponding
obligations, namely, to pay for the
enjoyment and the use of the ‘thing let’ –
commodus
usus or
the ‘snugness and benefit
of the thing let during the term of the lease’.
[33].
As was said, albeit in the context of an
executability order against immovable property, by Mokgoro J in
Jaftha v Schoeman; Van Rooyen v Stoltz
,
[2004] ZACC 25
;
2005 (2) SA 140
(CC) at par
[42]
:
‘
The
interests of creditors must not be overlooked. There might be
circumstances where, notwithstanding the relatively small amount
of
money owed, the creditor’s advantage in execution outweighs the
harm caused to the debtor. In such circumstances, it may
be
justifiable to execute. It is in this sense that a consideration of
the legitimacy of a sale in execution must be seen as a
balancing
process’.
[34].
Also at par [43]:
‘
However,
it is clear that there will be circumstances in which it will be
unjustifiable to allow execution. The severe impact that
the
execution process can have on indigent debtors has already been
described. There will be many instances where execution will
be
unjustifiable because the advantage that attaches to a creditor who
seeks execution will be far outweighed by the immense prejudice
and
hardship caused to the debtor. Besides, the facts of this case also
demonstrate the potential of the section 66(1)(a) process
to be
abused by unscrupulous people who take advantage of the lack of
knowledge and information of debtors similarly situated to
the
appellants. Execution in these circumstances will also be
unjustifiable’.
[35].
In
terms of the Consumer Protection Act
[5]
,
acceptable notice of termination by either party is twenty working
days which is still shy of a calendar month as per the lease
agreement. It is also noteworthy that while the matter was pending
before the tribunal, the eviction, which had already been ordered
by
a court, was not effected. The same is true while the matter was
pending appellate decision.
Was
there any misdirection by Magistrate Stanford?
[36].
A perusal of the appeal record does not, in
my judgment, reveal any misdirection, either on the facts or the law,
on the part of
the Magistrates Court. Did the appellant disclose any
defence or any basis on which to assail the landlord’s
contractually
entrenched claim or relief? I could not find any. Is
the landlord expected or required to house unlawful occupiers
indefinitely?
I do not think so.
[37].
As I have indicated above, the rights of a
landlord also enjoy protection by the constitution and the Act
against the arbitrary
deprivation of their own property, especially
in instances like in
casu
in which they have sought and obtained a court order permitting the
eviction of such occupier. I am inclined to accept that the
constitutional protection which is at the heart of arbitrary
evictions, applies with equal force to arbitrary deprivation of the
landlord’s property, especially having obtained a court order
as a prerequisite.
[38].
At the end of the day, it should be borne
in mind that landlords are also victims of economic hardships in
their own right. In that
regard, see the comments by Mokgoro J in
Jaftha
and
Van Rooyen
(supra). How will the provision of housing, which is so undeniably
needed, be achieved if those social partners of government cannot
receive a return on their investment in the form of rental? I ask
this question rhetorically.
[39].
Chapter 3 of the Act regulates relations
between tenants and landlords. Most importantly, it also records the
landlord’s rights
against the tenant. These expressly include
the right to ‘terminate the lease in respect of rental housing
property on any
ground that do not constitute an unfair practice’.
We know in
casu
that is not the issue. The issue here is that the landlord exercised
its right to cancel in accordance with the lease agreement
and
followed it through. Delayed and/or non-payment of rental in some
instances might have been the trigger, but for purposes of
exercising
a contractually ordained right, it is with no force or little, if at
all.
What
does fairness and equity dictate?
[40].
Such a consideration would be permissible
in the context of determining whether or not the enforcement of a
contractual term (see
3.1) is contrary to public policy and, if
answered in the affirmative, invalid and thus unenforceable, one will
always have regard
to the bargaining position of the parties. This
will have to counter balanced against the constitutional values of
our society
as well. In our society, it is accepted and encouraged,
that each must live in accordance with their relative means,
otherwise,
graft will creep in incrementally. What is morally
repugnant in one party seeking to exercise a term of a contract that
binds both
of them? This is more pronounced as it seems that, what
might have triggered this election, is the appellant’s own
failure
to stick to his end of the contractual bargain due to his
admitted precarious financial position at the time. It was accepted
in
the hearing of this appeal that to date, the appellant has still
not been able to regularize his rental account.
[41].
It remains my considered view that fairness
would dictate that the landlord be permitted to lease the premises to
another tenant
who will be able to afford the rental. It is also
unfair for other would be tenants whose financial position is such
that they
could afford that rental. By implication, the landlord
would thus be able to receive a return on their investment in
relation to
those premises.
[42].
In the circumstances of this matter, I am
of the view that there are no circumstances that might be regarded as
extraordinary which
could have persuaded the court
a
quo
to decline an order for the
eviction of the respondents. Accordingly, there is no reason why this
court should not confirm the
order that the respondent and her family
be evicted from the property.
[43].
The only other issue which requires my
consideration, and which is an aspect relevant to the enquiry
relating to whether it is just
and equitable to evict, is the time
period which I ought to give to the respondents to vacate the
premises. In that regard, it
should be noted that in terms of the
order of the Magistrates Court the appellant and her family were
required to vacate the premises
by the 30
th
of November 2019. It is now almost one year later, and still the
appellant and her family are in unlawful occupation of the
respondent’s
property. I am therefore of the view that, in the
circumstances of this matter, the appellant and her family should be
afforded
a further period of just over one month within which to
vacate the property.
[44].
In the circumstances, I am of the view that
the appeal against the order of the Magistrates Court should be
dismissed.
Order
In
the result, the following order is made:
(1)
The appellant’s appeal is dismissed
with costs.
(2)
Save to the extent that there is an
amendment of the date on which the respondent and her family are
required to vacate the premises
(as provided in the orders 3, 4 and
5), the order of the Johannesburg Magistrates Court is confirmed.
(3)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees,
are evicted from the property, being
[…], Fordsburg, Johannesburg (‘the property’).
(4)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees,
are to vacate the property by no later
than the 15
th
of December 2020.
(5)
In the event that the appellant, together
with all those occupying the property by virtue of her occupation
thereof, including her
family and/or employees, do not vacate the
property on or before the 15
th
December 2020, the eviction order may be executed and the sheriff of
the court or his lawfully appointed deputy is authorised and
directed
to evict the appellant, together with all those occupying the
property by virtue of her occupation thereof, including
her family
and/or employees, from the property.
(6)
The appellant, together with all those
occupying the property by virtue of her occupation thereof, including
her family and/or employees
are interdicted and restrained from
entering the property at any time after they have vacated the
property or have been evicted
therefrom by the sheriff of the court
or his lawfully appointed deputy.
(7)
In the event that any of the appellant, and
those occupying the property by virtue of her occupation thereof,
including her family
and/or employees, contravene the order in para 6
above, the sheriff of the court or his lawfully appointed deputy, is
authorised
and directed to remove them from the property as soon as
possible after their reoccupation thereof.
(8)
The appellant shall pay the respondent’s
costs of this appeal.
__________________________
Z M P MAJAVU
Acting Judge of the High Court
Gauteng Local Division,
Johannesburg
I agree, and it is so ordered,
__________________________
L R ADAMS
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
14
th
October 2020
JUDGMENT DATE:
2
nd
November 2020
FOR
THE APPELLANT:
In
person
INSTRUCTED
BY:
In
person
FOR
THE RESPONDENT:
Ms
Adelè Le Roux
INSTRUCTED
BY:
A
Le Roux Attorneys, Johannesburg
[1]
Act 19 of
1998
[2]
Act 50 of
1999
[3]
"any person who fails to comply with any ruling of the tribunal
in terms of section 13 (4) will be guilty of an offence
and liable
on conviction to a fine or imprisonment not exceeding 2 years or to
both such fine and imprisonment"
[4]
[2008]
ZAGPHC 275; 2009 (1) SA 470 (W).
[5]
Act 68 of
2008.