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 307
|
|
Bezuidenhout and Another v Davids (A3014/2020) [2020] ZAGPJHC 307 (11 November 2020)
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, JOHANNNESBURG
CASE
NO: A3014/2020
In
the matter between:
WILLEM
NICO
BEZUIDENHOUT
First Appellant
JOHENE
ALICE BEZUIDENHOUT
Second Appellant
and
SHANIN
CINDY ELIZABETH
DAVIDS
Respondent
JUDGMENT
VUMA, AJ
INTRODUCTION
[1] This an appeal
against the decision handed down by the learned Magistrate V.I. Nkosi
(hereinafter “the court
a quo
”), on 18 November
2019 in the Protea Magistrate’s Court.
[2]
This appeal follows an application that was launched by the
respondent on 13 October 2017 for the eviction of the appellants
from
the property as described below, which application was granted by the
court
a quo
,
with reasons delivered on 6 December 2019. The court
a
quo
made the following
order:
“
[1]
That the 1
st
and 2
nd
respondent are ordered to vacate the property
Portion
[…] of ERF […] Mid-Ennerdale Township
on
or before the
31
st
December 2019 not to return thereafter
.
[2]
That in the event the 1
st
and 2
nd
respondent do not vacate the property mentioned above by the
31
st
December 2019
,
the applicant shall seek the assistance of the sheriff of the court
or his/her duly designated deputy to the effect the eviction
thereafter. The sheriff of the court or his/her deputy together with
assistance as he/she deems appropriate is authorised and directed
to
evict the first respondent from the property thereafter. The sheriff
or his/her deputy shall be present all the time during
the eviction.
The sheriff or his/her deputy of the court may seek the assistance of
the South African Police Services to effect
the eviction.
[3]
The costs of this Application including the costs of section 4(2)
notice and for the attorney of the 3
rd
respondent shall be paid by the 1
st
and 2
nd
respondent jointly and severally, if one pays, the other is
absolved”
.
FACTUAL BACKGROUND
[3] The house in dispute
is Erf […] Mid-Ennerdale, situated at […],
Mid-Ennerdale, Gauteng (hereinafter “the
property”) and
the appellants currently remain in occupation of the property.
[4] It is common cause
that the respondent is the registered owner of the property as
recorded in the Title Deed. She owns
the property with one
Grant Clifton Davids.
[5] It is further common
cause that in 2014 the appellants and the respondent signed a deed of
sale (“sale agreement”)
for the sale of the
property to the appellants for the purchase price of
R650 000-00. The sale agreement did not
provide for special
conditions relating to occupational rent.
[6] There is no dispute
that on 23 July 2014 the first appellant deposited an amount of R600
000.00 (SIX HUNDRED THOUSAND RAND)
into the respondent’s
personal bank account towards the purchase price. They took
occupation of the property in April
2014.
[7] A further payment in
the amount of R248 000.00 was made by the appellants to the
respondent and her husband. However,
at least R148 000 of
this payment related to renovations to be effected by the respondent
and her husband on the property.
[8] Some three years
later, on 17 March 2017, the respondent sent a letter of demand to
the appellants by registered mail demanding
payment in the amount of
R50 000.00, the said amount allegedly being the balance in
respect of the purchase price. In the
same letter, the appellants
were further informed that they were in breach of the sale agreement
which breach they must rectify
by paying the demanded sum, otherwise
the respondent will proceed to cancel the sale agreement. The
respondent also demanded
payment of back-dated occupational rental
for the property.
[9] On 15 June 2017 the
respondent sent a letter of cancellation of the agreement to the
appellants by registered mail, citing the
appellants’ failure
to pay the demanded R50 000.00 as the basis for the
cancellation. The said letter was then followed
by the respondent
launching an eviction application against the appellants on 13
October 2017, which eviction the appellants now
appeal against. In
paragraph 9 of the respondent’s eviction application, she
submitted that all the requirements in terms
of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of
1998, (hereinafter PIE) have been met.
COMMON CAUSE FACTS
[10] The following were
the common cause facts before the court
a quo
:
1. That
the respondent is the registered owner of the property and a holder
of a title deed in respect thereof.
2. That
the appellants have been in occupation of the property since 1 April
2014.
3. That
the first appellant deposited an amount of R600 000.00 (SIX
HUNDRED THOUSAND RAND) into the respondent’s personal
bank
account towards the purchase price on 23 June 2014.
4. The
deed of sale does not provide for special conditions relating to
occupational rent.
5. That
the appellants paid a further amount of R148 000-00 to the
respondent and her husband for renovations on the property,
which
renovations remain incomplete
.
APPLICATION IN THE
COURT
A QUO
[11] The respondent based
her case for eviction in the court
a quo
on the appellants’
alleged failure to pay the full purchase price for the property.
The respondent averred that she
had lawfully cancelled the deed of
sale by virtue of this breach, and that she was entitled to the
appellants’ eviction.
She asserted that it was just and
equitable to order their eviction as they had no valid defence.
[12] The appellants
disputed that they had not paid the full purchase price. They
said that a further amount of R50 000
had been paid to the
respondent in cash. As the full purchase price had been
paid, the respondent could not lawfully
cancel the sale agreement.
In addition, they contended that the respondent had not established
that it was just and equitable
to evict them. They lived on the
property with minor children, and had used their life savings to buy
the property. In a
supplementary affidavit, they asserted that they
had an enrichment lien in respect of the renovations for which they
had paid the
respondent and her husband, but which had never been
completed. In addition, the respondent sought eviction without
tendering
return of the purchase price, and now sought to claim
occupational rental from the appellants when this was not provided
for in
the agreement of sale. The appellants’ case was
that in these circumstances, it would not be just and equitable to
evict them.
COURT
A QUO
JUDGMENT
[13] In its Statement in
terms of Rule 51(8), the court
a quo
stated that after hearing
the evidence in total, it found that the appellants did not have a
defence and that in terms of section
8(a) and (b) it was just and
equitable for the appellants to vacate the property on 31 December
2019.
[14]
In its judgment, the court
a quo
held that although the
cancellation of the sale agreement was not an issue for its
consideration, it could not understand why,
if
the 1
st
and 2nd respondent felt that the termination of the sales agreement
was unlawful, they had not approached a court for appropriate
relief.
[15] Regarding the
payment of the alleged outstanding amount of R50 000.00, in
light of the appellants’ failure to produce
any proof of
payment, the court
a quo
held that it found it
incomprehensible that the appellants could make a payment of such
large sums of money and not demand a receipt
from the respondent as
proof of payment thereof. It therefore rejected the appellants’
version that they had paid the
balance of the purchase price.
[16] The court
a quo
further found that the alleged unlawful termination of the sale
agreement is not a valid defence against eviction. Although
the
court
a quo
stated in its judgment that this finding should
not be construed as a finding on the legality of the cancellation of
the sales
agreement, it nonetheless found further that the right to
occupy the property previously granted by the respondent to the
appellants
was revoked by the respondent through the cancellation of
the sale agreement. This effectively rendered the appellants’
unlawful occupiers of the property. The court
a quo
then
suggested that the appellants could initiate undue enrichment
proceedings for their damages and that it was accordingly inclined
to
grant the eviction order given the absence of a defence by the
appellants.
THE APPELLANTS’
CASE ON APPEAL
[17] On appeal, the
appellants contend that in order to be granted an order of eviction
the respondent bore the onus of establishing
that:
1. they
(the appellants) are in unlawful occupation of the property;
2. the
procedural requirements under section 4 of PIE have been met; and
3. it
would be just and equitable for the court to make an order for
eviction.
[18] The appellants
submit that there is a factual dispute between the parties as to
whether the balance of the purchase price had
been paid, and hence,
whether the respondent was lawfully entitled to cancel the agreement.
The appellants submit that they paid
the full purchase price for the
property in the amount of R650 000.00 and that R50 000-00
balance thereof was paid in
cash to the respondent. Thus, they deny
that they are in unlawful occupation of the property. Further
they contend that the
cancellation of the sale agreement was
unlawful, and thus that they have a valid defence against eviction.
[19]
The appellants submit that this factual dispute ought properly to
have been determined on the basis of the principles laid
down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[1]
Had the court
a
quo
done so, it could not have found that it was just and equitable to
grant the order of eviction. Nor could it have found that
the
appellants had no defence. This is because the basis on which
the appellants disputed the respondent’s case that
she was
entitled to cancel the eviction order were sufficient, on an
application of
Plascon-Evans
,
to adduce a defence.
[20] In addition, the
appellants take issue with the respondent’s failure to address
any facts in the founding affidavit to
place this court in a position
to adjudicate whether it is just and equitable to evict the
appellants and their children from the
property.
[21] The appellants point
to the fact that they made a further payment for renovations on the
property, which remain incomplete.
Despite this fact, the
respondent demanded back-dated occupational rent from the
appellants, even though the sale agreement
does not make any
provision for occupational interest. Furthermore, say the appellants,
although the respondent purported to cancel
the agreement, and seek
their eviction, the respondent made no offer to the appellants to pay
back to the purchase price that had
been paid for the property.
They submit that this is not in keeping with the principles of equity
and justice, and their
eviction in those circumstances is unlawful.
[22] In respect of the
above, the appellants submit that the respondent failed to adduce
evidence to establish that she was entitled
to an eviction order and
that accordingly the court
a quo
erred in granting the
eviction order. They further submit that the court
a quo
failed to take into consideration all the relevant circumstances.
[23] In light of the
above they ask that this appeal succeeds with costs and that the
court
a quo’
s order be set aside.
THE RESPONDENT’S
CASE ON APPEAL
[24] The respondent
submits that the court
a quo
did consider the evidence in its
totality and that it did apply the
Plascon-Evans
rule. They
contend that the appellants are in unlawful occupation of the
property, and that the court
a quo
correctly rejected the
appellants’ contentions,
inter alia
, that the sale
agreement had been unlawfully terminated. The respondent further
submits that the appellants’ delay to challenge
the
cancellation of the sale agreement coupled with their inability to
provide proof other than their say-so in support of the
R50 000.00
payment, renders the eviction order just and equitable.
[25] They further submit
that the court
a quo
correctly rejected the R50 000.00
payment version by the appellants and thus found that they had no
defence. This rejection
of the appellants’ defence
invariably led to the trial court accepting the respondent’s
version that the appellants
are unlawful occupiers as defined in
section 4(8) of PIE.
[26]
The respondent submits that in the absence of a valid defence, which
include factors rendering an eviction unjust and inequitable,
the
court
a quo
correctly granted an eviction. The respondent further submits that in
the premises the appellants have failed to make out a case
for the
relief they seek and that their appeal be dismissed with costs.
STATUTORY FRAMEWORK
[27] 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 any owner or persons in charge of
land for the eviction of an unlawful occupier”
.
[28] Section 4(xi) of PIE
provides the definition of an unlawful occupier as follows:
“
Unlawful
occupier” means
a
person who occupied land without any other right in law to occupy
such land
…”.
[29] Section 4(6) (7) and
(8) of PIE respectively provide that:
“
(6)
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
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 in
execution pursuant to a mortgage, whether the 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.
(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) above
”
.
[30] Section 25 of the
Constitution provides that “
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation of
property”
.
[31] Section 26(1) and
(3) of the Constitution provides that everyone has a right to have
access to adequate housing. 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.
[32]
In
Machete
v Mailula
[2]
,
the
Court emphasized that “
the
application of PIE is not discretionary”
,
meaning the court must consider PIE in all eviction cases.
[33]
In
Port
Elizabeth Municipality v Various Occupiers
[3]
,
the Constitutional Court (“the CC”)
developed
a new approach in eviction proceedings in line with the
constitutional provisions
.
The
CC stated that in eviction applications, the court is called upon to
go beyond the normal function and engage in active
judicial
management, and that the Constitution and PIE require that an
additional consideration be made in respect of the lawfulness
of the
occupation. The court must have regard to the interests and the
circumstances of the occupier and pay due regard to the
broader
considerations of fairness and other constitutional values, so as to
produce just and equitable results. The CC further
stated that the
court must balance the interests of the land owner and those of the
occupiers. The rights on both sides of the
scale enjoy protection
under section 25 and 26 of the Constitution.
[34]
In
Occupiers
of Erven 87 & 88 Berea v Christiaan Fredericks De Wet No
,
[4]
the
Court held that section 4 of PIE necessitates two separate enquiries.
The first enquiry is whether it is just and equitable
to grant the
eviction order having regard to all the relevant factors. The factors
mentioned under section 4(7) of PIE include
the availability of
alternative land or accommodation. Those factors must be assessed in
the light of the property owner’s
protected rights under
section 25 of the Constitution. Once decided that there is no valid
defence to the claim for eviction and
that it would be just and
equitable to grant an eviction order, the court is obliged to grant
the eviction order. The
second enquiry is what would be
just and equitable in relation to the date of the eviction and/or the
implementation of that order.
ANALYSIS
[35]
It is common cause that the respondent bears the onus to prove that
it is just and equitable to evict the appellants and that
no defence
exists against the eviction. The appellants submit that they paid the
purchase price of R650 000.00 in full which
then gives them a
valid defence against eviction, and thus rendering the cancellation
of the sale agreement by the respondent unlawful.
The court
a
quo
rejected the
appellants’ argument as a valid defence against eviction on the
basis that the appellants have failed to produce
proof of payment of
same.
[36] In my view from the
totality of the evidence, but for the disputed payment of R50 000.00,
the respondent would not have
cancelled the sale agreement nor
initiated the eviction proceedings.
[37]
Although the court
a
quo
sought to downplay the relevance of the dispute about whether the
sale agreement had been validly cancelled, it plainly based its
rejection of the appellants’ defence on this dispute.
Being motion proceedings, the trite principles set out in
Plascon-Evans
applied, viz. when factual disputes arise, relief should be granted
only if the facts stated by the respondent, together with the
admitted facts in the applicant’s affidavit, justify the
order. It is also trite that
if
the respondent's version consists of bald or uncreditworthy denials,
raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable, that the court is justified in
rejecting them merely on the papers.
[5]
[38] On appeal, the
respondent (applicant in the court
a quo
) submitted that the
court
a quo
had correctly applied these principles, despite no
reference having been made thereto in the judgment.
Contrary to
this submission, there is no indication in the judgment
that the court
a quo’s
approach was guided by these
principles. It was not for the appellants to convince the court
that they had paid the full
purchase price. Provided that their
version was that they had done so, and that version was not bald,
uncreditworthy, palpably
far-fetched or untenable, the court
a quo
could not properly reject it.
[39] The court
a quo
rejected the appellants’ version on the basis that they could
not produce a receipt, and on the basis that they had not launched
an
application earlier to challenge the cancellation letter that was
sent to them. In my view, none of these factors are
sufficient
to render the appellants’ version implausible and untenable.
The appellants were entitled to challenge the
cancellation in
response to the eviction application. They were under no
obligation to have instituted legal proceedings
previously in order
to do so. The appellants had paid the respondent an additional
amount for renovations to be carried out
on the property. The
amount was in excess of the balance of R50 000. This fact
supports, at least in some measure,
the plausibility of the
appellants claim that they had paid the full price for the property.
In addition, the respondent
does not explain why it waited three
years before cancelling the contract and applying for the appellants’
eviction.
This, again, lends some credibility to the
appellants’ version.
[40] While the court
a
quo
was correct in that it did not have to make a finding on the
legality of the cancellation, this was a factor that it had to take
into account. On the facts before it, and on a proper
application of the
Plascon-Evans
principles, it ought not to
have found that the appellants had no defence to the eviction
application. In fact, and for the
same reason, the court
a
quo
ought to have found that the respondent had not established
that the appellants were unlawful occupiers. Consequently, it
ought to have dismissed the application on the basis that the
respondent had not satisfied the statutory requirements for an
eviction
order under PIE.
[41] There is a further
reason why the appeal must succeed. The onus was on the
respondent to establish that it would be just
and equitable to grant
an eviction order. It was common cause that the appellants
purchased the property from the respondent
as their primary
residence. The appellants used their pension monies to
purchase the property. They paid a further
substantial sum of
money to the respondent to effect renovations on the property, which
renovations were not completed. Even
on the respondent’s
version, the appellants paid at least R600 000 to her. In
seeking their eviction, she did
not tender a return of the purchase
price. Instead, she sought to claim an amount of occupation
rental from the appellants,
even though the sale agreement makes no
provision for it. In other words, the respondent sought to keep
the property in her
name, keep the full purchase price paid, and
evict the appellants from their home over a dispute about a
relatively small proportion
of the full purchase price. In
addition, renovations that the respondent’s husband undertook
to do have not been completed.
It is difficult to understand
how an eviction in these circumstances can be just and equitable.
The court
a quo
ought to have taking into account the glaring
financial loss the appellants stood to suffer in the event of their
eviction, especially
in light of the respondent’ silence
regarding any form of reimbursement offer for all their substantial
loss.
[42] For the court
a
quo
to hold that the appellants must be evicted and sue for
damages is not in keeping with the broader approach formulated by the
CC
in
Machete
above. Anything less by the court
a quo
defeats the broader approach in
Machete
that in matters of this nature, every circumstance therein
must be considered by the court for justice and equity to prevail.
[43] When one takes into
account with regard to the actual test for an applicant to secure an
eviction order, it is my view that
the rest of the respondent’s
arguments in reply to the appellants’ become irrelevant. Once
it is found that the respondent
has failed to discharge her onus in
terms of section 4 of PIE, every other issue becomes moot and the
respondent is thus not entitled
to the relief he/she seeks.
[44] In the premises, I
am satisfied that given the material factual dispute surrounding the
payment of R50 000.00 as already
stated above, the court
a
quo
erred in finding that it would be just and equitable to grant
the eviction order and in its further finding that the appellants
had
no valid defence against the eviction order.
[45] In the result I am
satisfied that for the above stated reasons, this court is enjoined
to interfere with the court
a quo
’s judgement and
accordingly grant the relief sought by the appellants.
[46] In the result I make
the following order:
ORDER
1.
The appeal
is upheld with costs.
2.
The
court
a
quo’s
judgement
and order are set aside and substituted with the following Order:
“
1.
The application is dismissed with costs.”
__________
L.B.
Vuma
Acting
Judge
Gauteng Local Division,
Johannesburg
I agree
pp
__________
R
Keightley
Judge
Gauteng
Local Division, Johannesburg
Heard on: 11 August
2020
Judgment delivered: 11
November 2020
Appearances
For Appellant: Adv. H.C
Van Zyl
Instructed by:
Saltzman Attorneys
For Respondent:
Adv. J Scallan
Instructed by: A Le
Roux Attorneys
[1]
1984
(3) SA 623 (A).
[2]
[2009]
ZACC 7
; 2010 (2) SCA 257 (CC)
2009 (8) BCLR 767
CC para 15
[3]
[2004]
ZACC (7) at para 36
[4]
[2017]
ZACC 18
at para 44 and 45
[5]
NDPP
v Zuma
2009(2) SA 277 (SCA)