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[2011] ZAECPEHC 17
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Jordan v Lowery (2249/2010) [2011] ZAECPEHC 17 (12 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE – PORT ELIZABETH)
CASE
NO.: 2249/2010
In the matter between:
JANET VERA JORDAN
..............................................................................
Applicant
And
EMILY DAISY LOWERY
….....................................................................
Respondent
JUDGMENT
BESHE J:
[1] The applicant in this matter
issued a notice of motion claiming the eviction of the respondent
from a property situated at 23
Thembani Road, Greenbushes, Port
Elizabeth (
the property
).
[2] Applicant contends that she is
entitled to the order for the eviction of the respondent on the basis
that:
(a) Respondent does not have her
consent to occupy the property.
(b) Does not have a right to the land.
(c) The lease agreement in terms of
which she occupied the property has been cancelled.
(d) She has failed or refused to
vacate the property when requested to do so by the applicant.
(e) Her actions in occupying the
property make it impossible for the applicant to sell the property.
(f) Her actions in occupying the
property are making it impossible for the applicant to enjoy the use
of her property.
(g) It is in the public interest that
she vacates or be evicted from the property.
[3] The application is opposed by the
respondent on the basis that her rights in and to the property derive
from
habitatio
and not from her being a tenant.
[4] The background to this matter is
that applicant bought the property in question from one Audra Du Toit
on the 5
th
of June 2006. Clause 10 of the agreement
entered into between the applicant and Audra Du Toit, (Deed of Sale)
contains special
terms and conditions that are applicable to the
agreement. Clause 10.1 stipulates that the purchaser hereby
acknowledges that the
seller’s aunt, Mrs Emily Daisy Lowery
(the respondent in this matter) is living in the property and will
remain so living
in the property until her death or until such time
as she vacates the premises and confirms that she takes over all
liabilities
that the seller may have towards the said Mrs Emily Daisy
Lowery.
[5] It is common cause that on the
14
th
of June 2006 the parties added an addendum to the
Deed of Sale whereby they recalled that no right of
habitatio
will be registered against the property, and that the respondent will
be regarded as a non-paying tenant with all rights and obligations
normally associated with a non-paying tenant. The terms and
conditions of the addendum were accepted by the respondent. The Deed
of Sale was signed by the seller, purchaser (applicant) and the
respondent.
[6] It is further common cause that
applicant and respondent concluded a further oral agreement at the
time of the sale of the property
in terms of which it was agreed that
respondent will pay half of the monthly electricity consumption
charges. That it was part
of the agreement that the respondent would
in all respects as a tenant conduct herself in a manner required of
her by law as such.
That it was agreed between the parties that
should the respondent breach any term of the agreement, applicant
would be entitled
to cancel the agreement and claim eviction.
[7] It is also common cause that
respondent continued living in the property together with the
applicant after the latter had purchased
the property.
[8] It would appear that from as far
back as 2007 the relations between the applicant and the respondent
became acrimonious.
[9] In her founding affidavit,
applicant avers that the respondent has breached their agreement in
that she failed to pay half of
the electricity consumption; and that
to this end she obtained a judgment against her in 2008. She is still
paying erratically.
That she has generally conducted herself in a
manner which is inconsistent with that required of a tenant, which
has made the continued
occupation of the property by the applicant
intolerable, by
inter alia
, abusing her on a regular basis,
assaulting her, repeatedly brought broiler chickens onto the property
against applicant’s
instructions or wishes, burning refuse in
the property and cutting down trees.
[10] In her answering affidavit
respondent denies that she had defaulted in payments for electricity
after she was ordered by court
to do so. She alleges that applicant
has been a cause of the disputes between them. She admits having
called the applicant a slob.
Admits cutting branches off trees for
security reasons. Admits bringing chickens into the property “because
it is her home
too”.
[11] In my view, however, apart from
the disputes relating to who did what to whom, the most important
question to be answered is
whether respondent’s right to the
property derives from
habitatio
or from being a non-paying
tenant.
[12] There clearly is a dispute of
fact between the parties in this regard as indicated above, applicant
contends that the relationship
between her and the respondent is that
of lessee and lessor. And that the lease agreement has since been
cancelled by her. Respondent
on the other hand contends that her
rights over the property derive from
habitatio
.
[13] It is trite law that where in
application proceedings there are disputes of fact which cannot be
decided without the hearing
of oral evidence the court has a
discretion to either:
1. Dismiss the application.
2. Order that oral evidence be heard.
3. Order that the matter goes to
trial.
[14] However the parties in this
matter, in particular the applicant has allowed the matter to proceed
by way off motion proceedings
without availing herself of the
remedies applicable in the case of genuine dispute occurring. This
being the case the court is
enjoined to apply the well established
rule of practice that was enunciated in
Plascon – Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
where at
634 H-I
the following was said by
Corbett
JA:
“… …
where
in proceedings on notice of motion disputes of fact have arisen on
affidavits, a final order, whether it be an interdict of
some other
form of relief, may be granted if those facts averred in the
applicant’s affidavits which have been admitted by
the
respondent, together with the facts alleged by the respondent,
justify such an order.”
[15] As indicated in paragraph 4
supra
, it is common cause that in clause 10.1 of the Deed of
Sale entered into between the seller (respondent’s aunt) and
the applicant
it was agreed that the respondent will remain living in
the property until her death or until such time as she vacates the
premises.
It is also common cause that the parties added an addendum
to the Deed of Sale whereby they confirmed that no right of
habitatio
will be registered against the property; and that the respondent
will be regarded as a non-paying tenant with all rights and
obligations
normally associated with a non-paying tenant.
[16] As indicated in paragraph 5
supra
the terms and conditions of the addendum were accepted by the
respondent.
[17]
Mr Naidu
who appeared on
behalf of the respondent submitted that the rights of respondent that
are embodied in clause 10.1 of the Deed of
Sale are clearly that she
would reside in the property permanently until she died and or
vacated the property.
[18] It will be noted that in clause
10.1 there is no mention of “
habitatio”
, which to
my understanding denotes the right to free residence in a house or
property of another.
[19]
Mr Naidu
further submitted
that it was the intention of the parties to the Deed of Sale that
respondent would reside on the property permanently
until she died
and or vacate the property voluntarily. To this end he referred the
court to letters that the applicant wrote to
the seller and the
respondent respectively. In the letter to the respondent she states
that the arrangement is that respondent
will continue to stay where
she is and nothing will change in that respect. She also confirms
that this is permanent not temporary
arrangement.
[20]
Mr Naidu
argues that this
is in contradistinction with what is envisaged in the addendum to the
Deed of Sale which reads:
“
The
parties specifically
recall
that
no right of
habitatio
shall
be registered in the name of the purchaser and that the said Emily
Daisy Lowery will be regarded as a
non-paying
tenant with all rights and obligations normally associated with a
non-paying tenant
.”
(my underlining)
[21] He argued that the respondent and
the seller were misled into believing that the addendum will not
alter the position or arrangement
that the respondent will be
entitled to remain in the property until she died or vacated the
property voluntarily.
[22] On behalf of the applicant
Mr
Spruyt
submitted that the addendum is clearly worded that even
when read with clause 10.1 of the Deed of Sale it does not result in
an
ambiguity. He submitted that there was no right of
habitatio
or
usufruct in terms of clause 10.1 and that the addendum did not change
anything. He submitted further that the addendum sought
to amplify
what is contained in clause 10.1.
[23] I agree with applicant’s
counsel in this regard. The wording of the addendum is clear and
unambiguous. I do not see how
the respondent and the seller may have
been misled by the attorney who was attending to the transfer of the
property if they advised
respondent that she would still be able to
live on the property in terms of the agreement as set out in the Deed
of Sale. Because
that was indeed what the parties intended, that
respondent would continue living in the property.
[24] I am convinced that the
allegations of the respondent in this regard can be rejected as being
untenable. In my view the facts
that are common cause render the
respondent’s version improbable.
[25] In light of the above, the
question whether the rights of the respondent derive from
habitatio
or from her being a non-paying tenant is simply that, they derive
from her being a non-paying tenant.
[26] It was an express term of the
agreement that the respondent would be regarded as a non-paying
tenant with all rights and obligations
normally associated with a
non-paying tenant.
[27] By her own admission, respondent
inter alia
called the applicant a “slob” was
convicted of assaulting applicant, judgment was obtained against her
for payment
of half of the electricity consumption, admits bringing
broiler chickens to the property (although she disputes the number
thereof)
cutting off trees. As a result of the above, applicant
addressed a letter to the respondent cancelling the agreement between
herself
and the respondent. She was entitled to cancel the agreement.
[28] I have considered the question of
an award for costs in this matter. The general rule is of course that
the successful party
is entitled to costs. Unfortunately the question
of costs was not fully ventilated during the hearing of this matter.
It is however
a feature of this matter that the respondent is
represented by Legal Aid South Africa, an indication that she is not
possessed
of means to engage a representative of her choice. By the
same token however, in her founding affidavit, applicant alludes to
not
being able to engage the services of an attorney to proceed with
an application for respondent’s eviction which she wanted
to
institute during 2007 and 2008, because of financial constraints. Is
the fact that respondent is not possessed of sufficient
means to
engage the services of a representative of her choice a good ground
that justifies the departure by this court from the
general rule that
the successful party is entitled to his costs? Usually the successful
party would be deprived of his costs where
there has been a
misconduct on his part, or where there are other exceptional
circumstances.
[29] I am not aware of any misconduct
on the part of applicant in the conduct of these proceedings, nor do
I find any exceptional
circumstances that justify the deprivation of
the applicant of her costs.
[30] In the result:
(a) The respondent is ordered to
vacate the premises at 23 Thembani Road, Greenbushes, Port Elizabeth
within 30 days from the date
of this order.
(b) Respondent is ordered to pay he
costs of this application.
_____________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For Applicant ADV: M P Q Spruyt
Instructed by FRIEDMAN SCHECKTER
ATTORNEYS
For Respondent ADV: V Naidu
Instructed by PORT ELIZABETH JUSTICE
CENTRE
Date Heard 02 December 2010
Date Reserved 02 December 2010
Date Delivered 12 May 2011