Wine and Another v Zondani (2044/08) [2009] ZAECPEHC 12 (27 February 2009)

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[2009] ZAECPEHC 12
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Wine and Another v Zondani (2044/08) [2009] ZAECPEHC 12 (27 February 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
HOPEWELL MCEBISI WINE + 1 v VUYELWA ZONDANI
NOT REPORTABLE
Case
Number:
2044/08
High
Court:
EASTERN
CAPE HIGH COURT, PE
DATE
HEARD:
26
FEBRUARY 2009
DATE
DELIVERED:
27
FEBRUARY 2009
JUDGE(S):
JANSEN
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
ADV
HORN
for
the Respondent(s):
ADV
THERON
Instructing
attorneys:
Applicant(s):
O’BRIEN
ATTORNEYS
Respondent(s):
LEGAL
AID BOARD
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN THE HIGH COURT
OF SOUTH AFRICA
NOT
REPORTABLE
(SOUTH EASTERN CAPE
LOCAL DIVISION)
Case No.:
2044/08
Date
delivered: 27 February 2009
In the matter between:
HOPEWELL MCEBISI WINE
First
Applicant
NOXOLO CAROLINE WINE
Second
Applicant
a
nd
VUYELWA
ZONDANI
Respondent
JUDGMENT
JANSEN,
J:
This is an
application brought in terms of section 4 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Act No. 19 of
1998. The applicants seek an order evicting the respondent from
residential property which she currently occupies.
The property is
described as Erf 13242 Motherwell Port Elizabeth and situated at 134
Ngwevana Street, Motherwell
,
NU9, Port Elizabeth. The order is sought against the respondent
together with her dependants and any other person or persons

occupying the said property with her. The respondent opposes the
application.
There is no
material factual dispute in this matter. During 1991, when the
respondent was residing in Tsoksville, Port Elizabeth,
she attended
the offices of Khayalitsha Housing in Port Elizabeth and applied for
one of the properties in a housing scheme known
as Servcon,
apparently controlled by Standard Bank. She was then informed that
she did not qualify for a housing loan with Servcon
because her
income was minimal. A person employed by Khayalitsha Housing advised
her to get another person to sign the documentation
and to produce
that person’s salary advice to qualify for a bond with Standard
Bank Servcon. The respondent was advised that
Servcon would be aware
that she was the person living in the property and that she would be
regarded as the owner thereof although
the property would not be
registered in her name. The respondent then attended the offices of
Khayalitsha Housing with her then
boyfriend, one Sydney Oliphant, who
then signed the agreement with Standard Bank Servcon. Mr Oliphant
was at all times aware of
the fact that the property actually was
supposed to belong to the respondent. The respondent paid the
deposit of R1 500,00 and
was at all times responsible for the bond
repayments on the property in the sum of R302,00. She moved into the
property during
1991. The property was duly registered in the name
of Sydney Oliphant during 1992. Since registration thereof the
respondent
paid diligently every month the bond repayment amounts
directly into the Standard Bank account.
Since 1992 the
respondent attempted to enter into an agreement with Servcon to
purchase the property and to have it registered in
her name.
Eventually during 2003 the respondent did enter into an agreement
with Standard Bank to purchase the property. The
respondent was
given pages 1 and 10 of the Agreement. In this Agreement it was
acknowledged that the respondent was at the time
in possession of the
property. The purchase price thereof was R25 000,00. It was
recorded in the Agreement that the transfer
of the property into the
name of the respondent would be attended to by a local firm of
attorneys Joubert Galpin and Searle. A
copy of a letter dated 12 May
2003 on a Standard Bank letterhead written by one Nicholas Nkoane,
who was the Servcon Officer at
Standard Bank, to the Servcon Housing
Solution, PE Branch, was made available to the respondent. A copy
thereof is attached to
her opposing affidavit. That letter confirms
approval of the respondent’s offer to purchase the said property
for an amount of
R25 000,00. It was also recorded that the firm of
Joubert Galpin and Searle will be handling the transfer. Since 2003
the respondent
has been waiting patiently for the said firm of
attorneys to contact her. She went to Servcon’s offices on
numerous occasions
and also contacted them telephonically to enquire
about the progress made, but she was always told to be patient. In
the meantime
she still continued to make bond repayments on the
property. The last payment she made was on 19 January 2005. She
then stopped
making payments to Servcon at Standard Bank as one
Gideon at Servcon informed her that she no longer needed to pay for
the property
as the property would be given to her by virtue of the
fact that the Government has indicated that it would be allocating
all Servcon
houses to the current occupants free of charge.
The respondent had
also been paying rates and paid for water for the property since
1991. When she attended the offices of the Nelson Mandela Bay

Municipality in early 2008 she was, however, informed that she no
longer needed to pay rates and taxes as her name was no longer

reflected on their system.
When the papers in
this application were served on the respondent she first became aware
of what had happened in relation to the
property in the meantime.
Standard Bank instituted action against Mr Oliphant in whose name the
property was registered (probably
for non-payment of the bond
instalments). Service was effected on 22 March 1995 by affixing the
summons to the door of the property.
That summons was never brought
to the attention of the respondent. Default judgment was granted
against Mr Oliphant in favour
of Standard Bank. The property was
then by virtue of a writ dated 8 May 1995 issued by the Registrar of
the Court attached by
the sheriff and sold by public auction on 7
July 1995 to and on behalf of The Standard Bank of South Africa
Limited for a purchase
price of R1,00. On 30 August 1995 the
property was transferred to The Standard Bank of South Africa
Limited. The respondent was
unaware of the summons issued, the
judgment granted, the sale in execution and the transfer of the
property to Standard Bank.
She continued to pay the monthly
instalments in respect of the property which instalments were
accepted by the Standard Bank until
2005 when she received a report
from Gideon as stated above.
It must be accepted
that in spite of the numerous enquiries made by the respondent at
Servcon Standard Bank as to the transfer of
the properties into her
name Standard Bank did not follow it up and did not give any further
instructions to the firm of attorneys.
The firm of attorneys also
did not contact the respondent.
The property was
subsequently transferred to one Gerhardus du Preez. It does not
appear from the documentation placed before this
Court when exactly
that transfer took place but it must have been approximately April
2007 as a letter dated 1 May 2007 by an attorney
Howard Collin was
directed to the respondent to inform her that the property had been
sold and transferred from Standard Bank to
Du Preez. The respondent
was in this letter instructed to vacate the property within 30 days
of date hereof. What does appear
from annexures to the founding
affidavit is that Du Preez purchased the property from Standard Bank
for an amount of R50 000,00.
On 23 October 2007 the said Du Preez in
turn sold the property to the applicants for an amount of R165
000,00. A Deed of Transfer
in respect of the property was registered
in the applicants’ names on 2 April 2008. On 1 February 2008
another letter
was directed to the respondent, this time on behalf of
the applicants, demanding that she vacate the property. The
respondent
admitted that she had received these letters, but after a
discussion with the councillor of the ward in which she resides she
simply
ignored those letters because according to the councillor the
property belonged to her, the respondent.
During her stay in
the property the respondent made extensive improvements to the
property. She erected a wall around the premises.
She had the walls
externally and internally plastered and painted. She installed
electricity. She fitted a bath in the bathroom
and had the bathroom
as well as the kitchen tiled. She had two verandahs built to the
house, one at the back and one at the front.
As stated above
,
the respondent is occupying the property since 1991. Although she
did not have the property registered in her name at the time,
she
paid the deposit for the purchase and the monthly instalments on the
bond. She was never informed about the summons issued
against Mr
Oliphant nor of the default judgment granted against him. She was
not informed of the sale in execution and Standard
Bank, who bought
the property for a nominal price of R1,00, never demanded from her to
vacate the property. Standard Bank continued
to receive repayments
from her on the bond. Then Standard Bank entered into an Agreement
of Sale with the respondent and advised
her that the deal was
concluded. They even advised her that the matter was referred to a
firm of attorneys to transfer the property
into her name. In spite
of the fact that there was in existence a Sale Agreement between
Standard Bank and the respondent, the
bank thereafter entered into an
agreement with Mr du Preez and had the property transferred into his
name. I cannot believe that
Mr du Preez bought the property from
Standard Bank without physically visiting the property to ascertain
what he was buying. He
must have known at the time that the property
was occupied. It is the applicants’ case that Mr du Preez verbally
demanded from
the respondent to vacate the property, but she denied
that. On the well-known
Plascon-Evans
rule her version has to be accepted. According to the respondent she
never received any verbal demand from Mr du Preez. He never
spoke to
her. Had Mr du Preez discussed the purchase of the property with the
respondent he would have ascertained the real facts.
She would have
informed him and would have produced documentary proof that she had
entered into a Sale Agreement with Standard
Bank purchasing the
property. The same applies to the applicants. I cannot believe that
they decided to buy the property without
physically inspecting the
property. They must also have realised that somebody was occupying
the property. They should have made
the necessary enquiries. Had
they done that the respondent would have informed them that she was
in occupation of the property
since 1991 and that she had entered
into a Sale Agreement with Standard Bank. The respondent would have
informed them about her
payments on the bond until 2005 and the
reason for stopping to pay it.
It is not disputed
that on paper the applicants are the registered owners of the
property. They, however, can only blame themselves
and Mr du Preez
for the predicament in which they find themselves. They can also to
a lesser extent blame Standard Bank and possibly
Joubert Galpin and
Searle for that. It may be mentioned in passing that the applicants
are not without recourse and that certain
remedies are available to
them to get out of the predicament in which they find themselves.
The question to be
asked is
whether I should in the exercise of my discretion grant an order in
favour of the applicants to evict the respondent from the premises.

Section 4(7) of the Act is applicable. It provides that if an
unlawful occupier (I accept that because of the fact that the
property is registered in the applicants’ names the respondent is
an unlawful occupier) has occupied land in question for more
than six
months at the time when the proceedings are initiated (this is the
case here) a Court may grant an order for eviction
if it is of
opinion that it is just and equitable to do so after considering all
the relevant circumstances. The expression “just
and equitable”
was discussed by Sachs J in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
at 238-239. I can do no better than to quote
paragraphs [33]-[37] of the judgment.
“
[33] In
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
Others
,
a case with some similarities to the present, s 6 was helpfully
analysed by Horn AJ. He pointed out that, in matters brought
under
PIE, one is dealing with two diametrically opposed fundamental
interests. On the one hand, there is the traditional real
right
inherent in ownership, reserving exclusive use and protection of
property by the landowner. On the other hand, there is
the genuine
despair of people in dire need of adequate accommodation. It was
with this regard that the Legislature had, by virtue
of its
provisions of PIE, set about implementing a procedure which envisaged
the orderly and controlled removal of informal settlements.
It is
the duty of the court, in applying the requirements of the Act, to
balance these opposing interests and bring out a decision
that is
just and equitable. He went on to say that the use of the term ‘just
and equitable’ relates to both interests, that
is, what is just and
equitable not only to the persons who occupied the land illegally but
to the landowner as well. He held that
the term also implies that a
court, when deciding on a matter of this nature, would be obliged to
break away from a purely legalistic
approach and have regard to
extraneous factors such as morality, fairness, social values and
implications and circumstances which
would necessitate bringing out
an equitably principled judgment.
[34] Finally, Horn
AJ went on to emphasise that each case would have to be decided on
its own facts. Hopefully, once the housing
shortage had been
overcome, incidents of unlawful invasion of property by desperate
communities in search of accommodation would
disappear. In the
interim, the courts would do the best they could and apply criteria
that were just and equitable and acceptable
to all concerned. What
remained essential, he concluded, was that removals be done in a fair
and orderly manner and preferably
with a specific plan of
resettlement in mind.
[35] The approach
by Horn AJ has been described both judicially and academically as
sensitive and balanced. I agree with that description.
The phrase
‘just and equitable’ makes it plain that the criteria to be
applied are not purely of the technical kind that flow
ordinarily
from the provisions of land law. The emphasis on justice and equity
underlines the central philosophical and strategic
objective of PIE.
Rather than envisage the foundational values of the rule of law and
the achievement of equality as being distinct
from and in tension
with each other, PIE treats these values as interactive,
complementary and mutually reinforcing. The necessary
reconciliation
can only be attempted by a close analysis of the actual specifics of
each case.
[36] The court is
thus called upon to go beyond its normal functions and to engage in
active judicial management according to equitable
principles of an
ongoing, stressful and law-governed social process. This has major
implications for the manner in which it must
deal with the issues
before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it
exercises its powers and
the orders it might make. The Constitution and PIE require that, in
addition to considering the lawfulness
of the occupation, 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.
[37] Thus, PIE
expressly requires the court to infuse elements of grace and
compassion into the formal structures of the law. It
is called upon
to balance competing interests in a principled way and to promote the
constitutional vision of a caring society
based on good
neighbourliness and shared concern. The Constitution and PIE confirm
that we are not islands unto ourselves. The
spirit of
ubuntu
,
part of the deep cultural heritage of the majority of the population,
suffuses the whole constitutional order. It combines individual

rights with a communitarian philosophy. It is a unifying motif of
the Bill of Rights, which is nothing if not a structured,
institutionalised
and operational declaration in out evolving new
society of the need for human interdependence, respect and concern.”
Applying
these principles in the instant case, I have concluded that it would
not be just and equitable to grant an order evicting the respondent

from the premises.
My decision not to
grant an eviction order should not be interpreted by the respondent
that she could remain on the property without
any obligation on her.
I do not know whether the statement by Gideon as to the transfer of
Servcon houses to the occupiers thereof
was correct. The respondent
herself, just like the applicants, is in a predicament. She,
however, also has remedies to solve
her problems. I have been advised
from the Bar by Ms
Theron
,
appearing on behalf of the respondent, that the Legal Aid Board would
assist the respondent to solve her legal problems in connection
with
the property.
As far as costs are
concerned, the respondent was assisted by the Legal Aid Board. That
was on my advice when the matter first
came before me on 11 November
2008 and the respondent appeared in person. The Legal Aid Board is
an organ of the State. The applicants
are the lawful owners of the
property. Although they are to be blamed for the situation in which
they find themselves they were
entitled to bring the application
which would, had it been successful, have placed them in occupation
of their property. I have
therefore decided not to grant a costs
order against the applicants, even though they were unsuccessful in
their application.
In the result, the application is
dismissed. No order as to costs is made.
____________________
J C H JANSEN
JUDGE OF THE HIGH COURT