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[2021] ZAGPJHC 562
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Moholeng v Bekana and Another (A3057/2020) [2021] ZAGPJHC 562 (9 June 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3057/2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE:
9 June 2021
In
the matter between:
JOHN
MOHOLENG
Appellant
and
BEKANA
MOSELE
LYDIA
First Respondent
EMFULENI
LOCAL MUNICIPALITY
Second Respondent
JUDGMENT
SIWENDU
J (NICHOLS AJ CONCURRING)
Introduction
[1]
This appeal is against the judgment and
order of the Sebokeng Magistrate’s Court dated 5 May 2020. The
appellant, then a 70-year
old man, approached the court a quo for a
rescission of a judgment authorising his eviction from a property
described as Erf [....],
Evaton North, 1984 (the property). The court
a quo had granted the eviction order on 13 December 2016. Almost
three years had lapsed
from the date of the granting of the eviction
order and the date of the launch of the rescission application in
December 2019.
[2]
The appellant had brought the rescission
application in terms of s 36(1)(b) of the Magistrates Court Act
32 of 1944 read together
with Rule 49(7) and (8) of the Rules of that
Court, alternatively, based on common law.
[3]
The primary contention in the court a quo,
and now, before this appeal court, is that the eviction order was
void
ab origine.
The
appellant contended that the application initiating the eviction and
the eviction order was defective because it breached the
peremptory
requirements of the Prevention of the Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’).
The
appellant argues that the court a quo misdirected itself on various
grounds and failed to apply the requirements prescribed
by PIE.
[4]
In dismissing the application for
rescission, the Magistrate held that:
(a)
There had been an effective notice of the
eviction in terms of s 4(2) of PIE;
(b)
The case involved the property rights of
the applicant (now respondent), and is a dispute between private
parties. The respondent
was the owner of the property;
(c)
The appellant was present in court, albeit
that he was unrepresented. His attempt to obtain legal aid were
unsuccessful. He had
consented to the eviction.
[5]
In
so far as the application for rescission, the Magistrate reasoned,
based on various authorities, that the court had a discretion
whether
to grant or refuse the rescission. Premised on Rule 49(1) of the
Magistrates' Court Rules,
[1]
the
court a quo noted that Rule 49(1) requires a party seeking a
rescission to do so within 20 days after obtaining knowledge of
the
judgment. According to the court a quo, the hurdle for the appellant
was to satisfy the court a quo that there was a good reason
to grant
the rescission on two grounds, namely: (1) upon good cause shown
where there is a reasonable explanation for the default
and; (2) by
demonstrating a bona fide defence. The court a quo found that the
appellant had failed to do so. It dismissed the rescission
application and awarded costs against the appellant.
Background and the
eviction application
[6]
A background of the eviction process and
application is necessary. It was not disputed that the appellant and
his family occupied
the property since 1990. It appears from the
record that, at some stage, he was eligible for a housing subsidy. He
had approached
his ward councillor for assistance.
[7]
In March 2016, Ms Lydia Mosele Bekana (the
respondent in this appeal), sent a letter to the appellant through
her attorneys demanding
that the appellant vacate the property,
failing which, she would institute proceedings for his eviction. The
letter of demand was
served by the Sheriff in May 2016 by affixing it
on the outer door of the property.
[8]
On 1 September 2016, the respondent
initiated eviction proceedings in the Magistrate's Court. The Notice
of Motion reads:
‘
TAKE
NOTICE THAT BEKANA MOSELE LYDIA (herein after referred to as “the
applicant”) intends to make application to this
court for an
order.
(a)
Eviction
(b)
Costs
And
that the accompanying affidavit of BEKANA MOSELE LYDIA be used in
support hereof.
TAKE
NOTICE FURTHER that the applicant has appointed Malebogo Maeyane
Attorneys at which Applicant will accept notice a-d service
of all
process in these proceedings. (sic)
TAKE
NOTICE FURTHER THAT if you intend opposing this application you are
required to:
(a)
To notify the applicant's attorney in writing on or before the 09
September 2016
(b)
And within ten (10) days after you have so given notice of intention
to oppose the application to file your answering affidavits,
if any
and further that you are required to appoint in such notification and
address referred to in rule 55 (1)(g) at which you
will accept notice
and service of all documents in these proceedings.
If
no such notice of intention to oppose is given the application will
be made on the 20 September of 2016 at Sebokeng.’
[9]
The above
Notice of Motion was supported by an affidavit deposed to by the
respondent on 30 August 2016. It purports to be an
ex
parte
application. The averments were that: the respondent purchased the
property by means of an auction in 2013 from the Vanderbijlpark
Sheriff; the property was not occupied; she took lawful ownership of
the property in 9 January 2014 in terms of Deed of Transfer
No.
T743/2014.
[10]
The respondent
acknowledged that at least one of the occupants is elderly, lives
with his wife (who is employed) and resides with
a younger grandson.
She stated that despite the appellant’s elderly age, he seemed
to be an able person. There were no disabled
people living on the
property. She asserted that the appellant could be accommodated in
care facilities for the elderly, or the
immediate family (with whom
he resides) could easily
find
suitable accommodation for the entire family. The respondent had
attempted lawful occupation but the appellant refused to vacate
the
property.
[11]
The above
notice of motion and affidavit were served personally on the
appellant on 9 September 2016. The appellant was called on
to
indicate his intention to defend on the same day of the service
thereof.
[12]
The
respondent’s attorneys followed with a second
ex
parte
application in terms of s 4(2) of PIE. The notice of motion
informs the appellant of the pending application hearing scheduled
for 6 December 2016. The affidavit attached to the initial
application referred to in paragraph [8] above
formed the basis for
the
ex
parte
application. The Magistrate Court authorised the service of the above
notice of application and s 4(2) notice (the ‘Notice’)
on
16 November 2016.
[13]
Based on the
second Notice of Application, the court granted the following order
on 16 November 2016:
‘
1.
That the Sheriff Vanderbijlpark District be authorised to serve the
said notice and annexures thereto, on the Respondent in the
following
manner:
1.1
That the Sheriff for Vanderbijlpark District hand over, the copy of
the Notice and Annexures thereto, the Respondents immediately
after
having read the content thereof to them in the Respondents presence,
alternatively serve same by means of affixing on the
Respondents.
2.
The Respondents are hereby given written notice of these proceedings
against him/her as stipulated in Section 4(5) read with
Section 4(2)
of the prevention of illegal eviction from unlawful occupation of
land Act 19 of 1998, hereafter referred as "the
Act. (sic)
3.
The Local Municipality Emfuleni is hereby given written notice of
these proceedings against the Respondents as stipulated in
Section
4(5) read with Section 4(2) of the prevention of illegal eviction
from unlawful occupation of land Act 19 of 1998, hereafter
referred
as "the Act
4.
The Respondents must appear before the honourable Court on the 6
December 2016 at 09h00 and electing from their constitutional
right
to conduct their own case, alternatively to get their own attorneys
of choice whom they will pay and if they cannot afford
to pay an
attorney, that they have the right to apply for legal aid.
5.
That the manner of service aforesaid be deemed to be effective
service of the Notice as envisaged in Section 4(4) of the Act.
6.
Service on the Respondents and Local Municipality must be effected on
or before the 18 November 2016.’ (sic)
[14]
The above
s 4(2) Notice was duly served on the appellant on 18 November
2016. The application for the eviction of the appellant
was first
heard on 6 December 2016. The appellant was present at court when the
application for eviction was first called. The
case was postponed to
13 December 2016 to allow him time to seek legal aid.
[15]
On resumption
of the hearing on 13 December 2016, the record reveals that the
appellant reported to the court that he was not able
to procure legal
aid. The reasons are not apparent. An annotation on the file shows
that even though the final eviction order was
granted, the appellant
was given time to vacate the property on or before 1 March 2017.
There is no record of the
involvement or participation by the municipality in the eviction
proceedings.
The
inscription from the record of the proceedings records reads:
‘
L/A
application was unsuccessful. We just ask for time as we need to move
out. We do not oppose the application’.
[16]
It is common
cause that the appellant did not vacate the property. The court a quo
issued a warrant for his ejectment on 30 October
2017, authorising
the Sheriff to put
the
respondent in possession of the property by removing the appellant.
On 7 November 2019, the appellant and his wife were
summonsed to
appear in the Sebokeng Magistrate’s Court on 13 December 2019
in a criminal case (case number: 265/08/2018).
They were charged with
contempt of court, housebreaking with the intent to trespass, and
trespassing in connection with their continued
occupation of the
property. It was submitted to this Court that the appellant and his
family had remained in occupation of the
property despite the
eviction order, and were still in occupation at the time of the
hearing of the appeal.
[17]
As stated
above, the appellant launched the application for the rescission of
the judgment after consulting with his current attorneys
who
represent him
pro
bono.
Almost three years had lapsed from the date of the granting of the
eviction order on 13 December 2016 to the date of the launch
of the
rescission application on 12 December 2019.
[18]
In support of
the rescission application, the appellant stated that he first had
knowledge that the eviction order was void
ab
origine
on
5 December 2019, when his attorneys advised him of this. According to
him, he had brought the application within the time period
provided
for by the Magistrates’ Court Rules.
[19]
The respondent did not oppose the
application for rescission in the court a quo. She did not oppose the
appeal in this Court either.
The appeal
[20]
The appeal pivots on three areas:
(1) the grounds for the rescission of the judgment in the
circumstances of the application and
facts before the court a quo;
(2) the requirements for a valid eviction notice and application; and
(3) the grounds for a final
eviction envisaged in PIE.
[21]
The first question is whether the
Magistrate was correct in dismissing the rescission application on
the basis that: (a) there was
a proper service of the eviction
application and; (b) the eviction application complied with PIE. The
second question concerns
the Magistrate’s premise for refusing
the rescission application. The court a quo refused to depart from
the premise that
the appellant was required to meet the requirements
in Rule 49(1), namely, that he was required to explain his wilful
delay and
show a bona fide defence to the eviction. The question is
whether the Magistrate misdirected himself and erred in this regard.
[22]
The last question involves multiple
substantive concerns about the final eviction, the court a quo’s
legal premise, the finding
and concluding that the eviction was
sound, just and equitable, and consequently, that the rescission
application should fail.
I commence with the issues surrounding the
rescission application.
Rescission
application
[23]
The
court a quo premised its decision in the rescission application on
Rule 49(1) read with s 36(1)(a) of the Magistrates’
Court Act
32 of 1944 (‘the Act’).
[2]
Rule 49(1) empowers a court to rescind a default judgment ‘
upon
good cause shown
’,
or if it is satisfied that ‘
there
is good reason to do so
’.
Section 36(1) of the Act which reads as follows in the relevant part:
‘
The
court may, upon application by any person affected thereby, or, in
cases falling under paragraph (c),
suo
motu
—
(a)
rescind or
vary any judgment granted by it in the absence of the person against
whom that judgment was granted;
(b)
rescind or
vary any judgment granted by it which was void
ab
origine
or
was obtained by fraud or by mistake common to the parties;
(c)
…
;
(d)
…’
[24]
In contrast,
the appellant’s founding affidavit based the application for
rescission on s 36(1)(b) of the Act read with
Rule 49(7) and (8)
of the Rules of the Magistrates’ Court.
[25]
Rule 49(7)
provides:
‘
All
applications for rescission or variation of judgment other than a
default judgment must be brought on notice to all parties,
supported
by an affidavit setting out the grounds on which the applicant seeks
the rescission or variation, and the court may rescind
or vary such
judgment if it is satisfied that there is good reason to do so.’
[26]
Rule 49(8)
sets out that—
‘
Where
the rescission or variation of a judgment is sought on the ground
that it is void from the beginning, or was obtained by fraud
or
mistake, the
application must be served
and filed within one year after the applicant first had knowledge of
such voidness
, fraud or mistake.’
[Emphasis added.]
[27]
I observe that
the requirements of s 36(1)(a) and (b) differ materially.
Section 36(1)(a) is intended to cover instances where
a judgment is
granted by default. Section 36(1)(b) is intended to cover a scenario
where a judgment is erroneously taken. I am
of the view that the two
subsections fall to be read disjunctively to cater for a variety of
reasons for seeking a rescission.
On the pleaded case and facts, they
could not be applied at the same time.
[28]
When read
together with the Rules, the two provisions require different time
frames within which to launch the application for rescission.
An
application for the rescission of a default judgment must be launched
within 20 days of obtaining the knowledge of the judgment;
while the
application in this instance had to be launched within a year after
acquiring knowledge of the
voidness
of the judgment, which need not have been granted by default
.
[29]
The order
dismissing the rescission application on the basis of s 36(1)(a) of
the Act could not be validly granted and was incorrect.
The
subsection relied on by the court a quo was not the basis of the
relief sought. Furthermore, the final order of eviction could
not
have been granted by default. The appellant was present in court on
13 December 2016 and is recorded to have made certain representations
about the eviction, albeit that they were not on oath. For reasons
not apparent, the court a quo simultaneously took the view that
the
date for the reckoning of the
dies
within which to launch the application for the rescission was from
November 2019, presumably the day that the appellant and his
wife
were summonsed to appear for contempt of court.
[30]
I agree that
the court a quo misdirected itself and erred on this score. The
consequence of the misdirection permeated the court
a quo’s
approach to the requirements the appellant had to meet to succeed in
the rescission application. The question of
whether the appellant was
in ‘wilful default’ and/or had shown ‘good cause’
for the rescission did not
arise from the grounds for rescission
relied on by the appellant. The invitation, and correct inquiry for
the court a quo, was
to consider when the appellant knew, or ought to
have reasonably known, that the eviction order was void
ab
origine
.
[31]
Given that the
application for rescission was not opposed in the court a quo, it
would have been hard pressed to dispute the appellant’s
assertions of when he became aware of the voidness of the order. I
find that the Magistrate erred and applied an incorrect approach
in
refusing the rescission of the eviction order. I now turn to the
Magistrate’s approach to the underlying eviction application.
The eviction
application
[32]
The
court a quo’s conclusion that there had been compliance with
the requirements of s
4(2)
of PIE is at issue. I observe that s 4 of PIE refers to both the
procedural and substantive requirements which must be
met before an
eviction order can be validly granted. Section 4 sets out the
formalities, the contents, and the time period for
the service of the
notice of eviction.
[3]
It also
sets out what a court must consider before it concludes that an
eviction order would be just and equitable under subsections
4(6) –
4(9).
[33]
The accepted
and correct procedure under PIE, was for the respondent to launch an
ex parte
application (in the form of the rule
nisi
)
authorising the service of the Notice of Eviction in terms of s 4(2)
of PIE. Section 4(2) of PIE provides:
‘
At
least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings on the unlawful occupier and the municipality having
jurisdiction.’
[34]
Section 4(2)
must be read with subsection (3), which provides that—
‘
Subject
to the provisions of subsection (2), the procedure for the serving of
notices and filing of papers is as prescribed by the
rules of the
court in question.’
[35]
The
import of the Notice under s 4(2) was dealt by the Court in
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
.
[4]
The requirements in s 4 are peremptory. Dealing with the procedure
before the High Court, the court in
Cape
Killarney Property Investments
held that the 14-day notice period referred to in s 4(2) was
in
addition
to the normal Notice in terms of Rule 6 of the Uniform Rules of
Court.
[5]
The aim is to afford a
respondent a better opportunity than they would otherwise have had
under the Rules of the Court concerned
to put all the circumstances
they allege to be relevant before the Court.
[6]
In this case, the Magistrate was required to apply the time period in
PIE, over and above the period provided for in Rule 55 of
the
Magistrates’ Court Rules.
[7]
[36]
I
observe further that the contents of the Notice in s 4(2) are
prescribed in s 4(5).
[8]
Material
to the Notice issued in this matter, is that it must, amongst others,
inform the appellant of the:
(a)
summary of the
grounds upon which the eviction order will be sought;
(b)
respondent(s)
right to defend the application together with the legal resources
available to assist the applicant.
(c)
mode and
manner of service authorised by the court.
[37]
The appellant contends that the Magistrate
erred because the respondent did not bring the eviction application
properly, and the
s 4(2) application should have been preceded by the
main application for eviction in terms of s 4(3). The appellant
also submitted
that the s 4(2) Notice did not sufficiently set out
the grounds for eviction. The appellant argued that this constituted
valid
and
bona fide
grounds for rescission in terms of s 36(1)(b) of the Act.
[38]
It is now trite that a
court must only grant an eviction order under s 4 if it is satisfied
that the requirements of the section are met. There were defects
in
the contents of the s 4(2) Notice issued on 1 September 2016,
its prosecution, and the respondent's compliance with prescribed
time
periods. Firstly, the notice of motion in respect of the
ex
parte
application was issued under case number 2016/2133. It was served on
the appellant on 9 September 2016, yet it required the appellant
to
indicate his intention to defend the application on the day of the
service thereof. Significantly, the s 4(2) Notice sanctioned
by
the court a quo did not explicitly set out the requirements in
s 4(5), in particular, the grounds for the eviction referred
to
in paragraph [36] above. Despite the court a quo’s purported
reference to
Cape
Killarney
,
which deals with the 14-day notice period in PIE, it disregarded this
decision in so far as the reckoning of the
dies
in the September notice.
[39]
Curiously, as stated
previously, the respondent’s attorneys issued another Notice of
Motion on 16 November under case number
2016/4231. Even though the
same affidavit that was deposed to on 30 August is attached, the
nexus between the two applications
is not clear. It conflated the
Notice in terms of s 4(2) of PIE with the substantive main
application in breach of PIE. This
had the potential to confuse a
litigant. The upshot is that Notice of Eviction was irregular and the
procedure followed is not
one sanctioned by PIE. The defects were in
breach of PIE and the Magistrate was not authorised to grant the
eviction order in those
circumstances.
[40]
In sum, the correct procedure envisaged for
evictions in terms of PIE is that:
(a)
The notice of eviction in terms of s 4(2),
is brought by way of an
ex parte
application;
(b)
The applicant must seek the leave of the
court to authorise the service of the s 4(2) Notice;
(c)
A respondent must be granted at least 14
days to indicate an intention to defend.
[41]
The s 4(2) Notice must:
(a)
Describe the property from which the
applicant is seeking to have the respondent evicted;
(b)
Provide a summary of the grounds for
eviction;
(c)
Direct the respondent to legal resources
available should they wish to defend the application;
(d)
State the return date of when the main
application will be heard.
[42]
The main application must be:
(a)
Comprised of a Notice of Motion and
Founding Affidavit, which must fully set out the cause of action and
the grounds for the eviction
sought;
(b)
Attached to the
ex
parte
application authorising the
service of the s 4(2) Notice;
(c)
Served on the respondent simultaneously
with the s 4(2) Notice.
[43]
I now turn to the foundation of the court a
quo’s decision for confirming the final eviction order and, in
turn, refusing
the rescission application. I observe ahead that the
entire premise of the decision of the court a quo is erroneous,
stands against
the purpose of PIE, and the jurisprudence developed
over the years since its enactment. The court misconstrued and
sanctioned a
negation of its role. Accordingly, it is necessary to
restate the applicable principles, commencing with the role of the
court
in eviction proceedings.
[44]
A
court seized with the application for eviction under PIE cannot be
supine or ‘passive’, as counsel for the appellant
puts
it. It must have regard to the requirements in s 4(7).
[9]
Furthermore, it cannot apply the requirements in a perfunctory or
mechanical manner. The inquisitorial role of the court is entrenched.
Even though stated in the context of s 4(6) of PIE, the SCA in
Occupiers,
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
stated
that —
‘
There
is nothing to suggest that in an enquiry in terms of section 4(6), a
court is restricted to the circumstances listed in that
section. The
court must have regard to all relevant circumstances. The
circumstances identified are peremptory but not exhaustive.’
[10]
[45]
I agree that the court erred in finding
that it had no obligation on its shoulders to consider the
requirements in s 4(7) in this
instance.
[46]
It is common cause
that the appellant, although present in court, was an unrepresented
litigant. He attempted to obtain legal aid
without success. He could
not have been reasonably expected to have filed papers. The role of
the court was amplified in those
circumstances.
[47]
When invoking s 26(3) of the
Constitution, the Magistrate departed from the view that the case
involved private property law
rights between private citizens. As I
understand it, the court a quo reasoned that based on the vertical
application of the rights
in s 26(3), the state was not a party to
the proceedings. In my view, the court a quo misconstrued the issue
and the applicable
law as a direct assertion of the right by the
appellant against the respondent.
[48]
On
the contrary, the purpose for requiring that the s 4(2) Notice is
served on the Municipality is to ensure the participation of
the
Municipality as envisaged in s 4(7) of PIE. The respondent had
served the applications on the Municipality on 7 September
2016 and
18 November 2016 respectively, and correctly joined the Municipality
as the second respondent. The court a quo failed
to appreciate that
the participation by the Municipality, which has the duty to provide
alternative accommodation, is integral
to a number of relevant
considerations a court must take account of if it is to grant or
confirm an eviction. The critical role
of the Municipality is stated
in the
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
,
[11]
where the Constitutional Court observed that:
‘…
.
All relevant circumstances must be taken into account though to
determine whether, under which conditions and by which date, eviction
would be just and equitable. The availability of alternative housing
for the Occupiers is one of the circumstances. The eviction
would
create an emergency situation in terms of Chapter 12. The City’s
interpretation of Chapter 12 as neither permitting
nor obliging them
to take measures to provide emergency accommodation, after having
been refused financial assistance by the province,
is incorrect. The
City is obliged to provide temporary accommodation. The finding of
the Supreme Court of Appeal that the City
had not persuaded the Court
that it lacks resources to do so has not been shown to be incorrect
and must stand.
The City’s housing
policy is unconstitutional in that it excludes people evicted by a
private landowner from its temporary
housing programme, as opposed to
those relocated by the City. Blue Moonlight cannot be expected
indefinitely to provide free housing
to the Occupiers, but its rights
as property owner must be interpreted within the context of the
requirement that eviction must
be just and equitable. Eviction of the
Occupiers would be just and equitable under the circumstances, if
linked to the provision
of temporary accommodation by the City.’
[49]
Disregarding this role was a misdirection
by the court a quo.
[50]
Another
premise by the court a quo was that appellant had not disputed the
proof of ownership of the property. It noted that the
appellant had
not established the right to remain on the property (for three
years).
[12]
According to the
judgment, proof of ownership would have triggered the operation of s
26(3) of the Constitution and an inquiry
envisaged in s 4(7) of PIE.
[51]
When
viewed cumulatively with the court a quo’s finding about its
role, already referred to above, the finding negates the
purpose and
protections afforded in PIE. Contrary to the court a quo’s
view, proof of ownership is not a prerequisite for
determining the
rights of an occupier. It is now well established that the protective
purpose of PIE alters common law rights and
subjects all evictions to
the requirements of due process and substantive fairness. As held by
the court in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others,
[13]
PIE does not usurp or expropriate the rights of the owner, but delays
or suspends the rights of the owner for a period until the
court has
determined whether an eviction order is just and equitable, and on
the conditions for the eviction. In this regard, Wallis
JA had this
to say:
'The issue of the
availability of alternative accommodation is more difficult in the
context of an eviction at the instance of an
owner of property that
is not an organ of state. There another constitutionally protected
right, the right to property, comes into
play. As pointed out in this
court in
Ndlovu v Ngcobo: Bekker & another v Jika
the
effect of PIE is not to expropriate private property. What it does is
delay or suspend the exercise of the owner’s rights
until a
determination has been made whether an eviction would be just and
equitable and under what conditions. The Constitutional
Court
endorsed that approach in
Blue Moonlight
.'
[52]
Another
material consideration and cause for complaint in this appeal is the
court a quo’s approach to the requirement
in s 4(7) of PIE. In terms of s 4(7) of PIE, an eviction order may
only be granted if it is just and equitable to do so.
[14]
While an applicant bares the onus to satisfy the court that it is
just and equitable to evict an occupant, a court is enjoined
to
engage in a two pronged inquiry
[15]
and only grant an eviction after (1) considering
all
relevant information
to arrive at a decision whether it is just and equitable to
evict;
[16]
and (2) only
thereafter can it consider a just and equitable date for the
eviction, including the consideration of any conditions
it wishes to
attach to the eviction. Notwithstanding the purported consent of the
appellant to the eviction, a matter which I return
to later, the
court a quo was not fully informed when granting the order for
eviction.
[53]
The appellant
occupied the property since 1990. Whether his occupation was once
lawful is not known. He had attempted to seek assistance
from a ward
councillor to obtain a housing subsidy. The circumstances of the sale
to the respondent were not disclosed. The appellant
is an elderly
person. Despite the assertion in the respondent’s affidavit
that the appellant would not be rendered homeless
by an eviction, the
risk of homelessness and the availability of alternative
accommodation was not investigated.
[54]
Lastly,
I turn to the court a quo’s view that the appellant was present
at court on the day the judgment was granted, consented
to the
eviction, and that s 4(8) of PIE did not apply.
[17]
In the Constitutional Court’s decision in
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another
,
[18]
the court held that:
‘
For
consent to be legally effective, it must have been given by the
applicants freely and voluntarily with the full awareness of
the
rights being waived. It must be an informed consent in order to be
valid. This requires a consideration of the potential waiver
of
rights.
An agreement to an
eviction order in the circumstances would entail the waiver of, at a
minimum, the constitutional and statutory
rights: (a) to an eviction
only after a court has considered all the relevant circumstances; (b)
to the joinder of the local authority
and production by it of a
report on the need and availability of alternative accommodation; (c)
to a just and equitable order in
terms of PIE; and (d) to temporary
alternative accommodation in the event that eviction would result in
homelessness. The applicants
and the amicus curiae contended, with
some force, that the rights are therefore incapable of being waived
because they are for
the benefit of the public at large. Even if they
were capable of waiver, such waiver would need to be free, voluntary
and informed.
It has not been disputed that the applicants were not
informed of any of these rights. It must therefore be accepted that
they
were not aware of any such rights. Given that the applicants
were not aware of their rights, the factual consent that they gave
was not informed. Their consent is therefore not legally valid. It is
not binding on them. It is therefore not necessary in these
circumstances to decide whether these rights are capable of waiver.’
[55]
Given that the appellant was not
represented, and the court had not investigated all the relevant
information, the conclusion that
the appellant consented to the
eviction was not validly reached
.
The
court erred in this respect too.
[56]
The whole of the judgment and order of the
dated 5 May 2020 falls to be set aside.
Therefore, the
following order is made:
1.
The appeal is upheld.
2.
The whole of judgment and order, which includes the cost order
granted against the appellant by the learned Magistrate A. W Morton
dated 5 May 2020 is set aside and replaced with the following
order:
'1. The eviction order
granted against the appellant on 13 December 2016 under Case Number
4231/2016 is rescinded and set aside.
2. There is no order as
to costs.'
3. There is no order as
to costs.
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
NICHOLS
AJ
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on 9
June 2021.
Date
of hearing:
13 April 2021
Date
of judgment:
9 June 2021
Appearances:
Counsel
for the appellant:
JG Rautenbach SC
Attorney
for the appellant:
Cheadle, Thompson & Haysom Inc
Counsel
for the respondents:
No
appearance
Attorney
for the respondents:
No
appearance
[1]
Rule
49(1) provides as follows: ‘A party to proceedings in which a
default judgment has been given, or any person affected
by such
judgment, may within 20 days after obtaining knowledge of the
judgment serve and file an application to court, on notice
to all
parties to the proceedings, for a rescission or variation of the
judgment and the court may, upon good cause shown, or
if it is
satisfied that there is good reason to do so, rescind or vary the
default judgment on such terms as it deems fit: Provided
that the 20
days’ period shall not be applicable to a request for
rescission or variation of judgment brought in terms
of sub-rule (5)
or (5A).’
[2]
The
judgment a quo (at page 15 thereof) refers to s 36(1)(b) of the
Magistrates’ Court Act 32 of 1944, but did not
apply the
subsection. Subsection 36(1)(a) and (b) are mutually exclusive (see
para [27]
below).
[3]
See
subsections 4(2), (3) and (4) of PIE.
[4]
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222 (SCA).
[5]
Ibid
paras 12-13.
[6]
Ibid
para 20.
[7]
Rule
55(e), at the time, provided as follows:
‘
(e)
In a notice of motion the applicant shall — (iii) set forth a
day, not less than 5 days after service thereof on the
respondent,
on or before which such respondent is required to notify the
applicant, in writing, whether he or she intends to
oppose such
application, and state that if no such notification is given the
application will be set down for hearing on a stated
day, not being
less than 10 days after service on the respondent of the notice.’
It
should be noted that the paragraph (e) was substituted by GN R842 of
31 May 2019 with effect from 1 July 2019. However, for
purposes of
this matter, the essence of the Rule remains the same, simply
changing the word ‘shall’ to ‘must’.
[8]
Section
4(5) of PIE provides as follows:
‘
The
notice of proceedings contemplated in subsection (2) must—
(a)
state that proceedings are being instituted in terms of subsection
(1) for an order for the eviction of the unlawful occupier;
(b)
indicate on what date and at what time the court will hear the
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the
right to
apply for legal aid.’
[9]
Section
4(7) of PIE provides: ‘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 of execution
pursuant to a
mortgage, whether 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.’
[10]
Occupiers,
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
[2010] ZASCA 28
;
[2010] 4 All SA 54
(SCA) para 13. This similarly
applies to s 4(7) of PIE. The distinguishing factor between s 4(6)
and s 4(7) is the length
of the period of the unlawful occupation.
[11]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
(CC)
[2011] ZACC 33
;
2012 (2) SA 104
(CC) paras 96-97.
[12]
I surmise that the court a quo meant the three years for the date of
the eviction order.
[13]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
(SCA)
[2012] ZASCA 116
;
2012 (6) SA 294
(SCA) para 16.
[14]
In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) paras 35-36,
the
Constitutional Court stressed that the phrase ‘just and
equitable’ entails a more elaborate enquiry than ‘purely
of the technical kind that flow[s] ordinarily from the provisions of
land law’. And it emphasized that in conducting such
an
enquiry, ‘... the court must have regard to the interests and
circumstances of the occupier and pay due regard to broader
considerations of fairness and other constitutional values, so as to
produce a just and equitable result.’
[15]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294 (SCA).
[16]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
2012
(2) SA 104 (CC)
[17]
Section
4(8) of PIE provides:
‘
(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).’
[18]
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another
[2017] ZACC 18
;
2017 (5) SA 346
(CC) paras 32-33.