About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 26
|
|
Transnet Ltd v Tebeka and Others (616/2010) [2011] ZAECPEHC 26 (14 June 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT –
PORT ELIZABETH
REPORTABLE
Case no: 616/2010
Date argued: 27/1/2011
Date delivered: 14/6/2011
In the matter between:
TRANSNET LIMITED
…..............................................................................
Applicant
vs
TATISE JACKSON TEBEKA
…......................................................
First
respondent
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
…......................................................................
Second
respondent
EVELYN TEBEKA
…......................................................................
Third
respondent
JUDGMENT
Summary:
In
terms of the employment scheme available to personnel employed by
applicant (an organ of state) the latter, in 1989, entered
into an
agreement with first respondent, its employee. Consequently first
respondent agreed to repay applicant the sum of R47 407.78
which was
the value of the house allocated to first respondent in terms of the
scheme. This was in 1989. A sum of money was to
be deducted monthly
from the first respondent’s salary until paid in full.
In 1999 first
respondent was dismissed from his employment with applicant,
presumably on operational requirements. This resulted
in applicant
taking the entire pension money of first respondent to reduce the
balance of the price.
Since 1999 no
communication ever occurred between the parties until in 2010 when
applicant instituted eviction proceedings against
respondent having
unilaterally cancelled the agreement in 2009 on grounds that first
respondent has failed to pay. In the house
first respondent stays
with his wife and three children. The third child is their six year
old granddaughter. Both children are
not employed. First and third
respondents are old age pensioners.
First respondent has
disputed any liability to applicant and this resulted in a real and
genuine dispute of fact.
Relying on the
provisions of section 26 of the Constitution the Court refused to
grant the order of eviction against respondents
holding, inter alia,
that it would not be just and equitable to do so. The house in
question is registered in the name of the applicant.
TSHIKI J:
A) INTRODUCTION
[1] First and third respondents both
old age pensioners, are husband and wife and reside at no 76 Cerus
street, NU5, Motherwell
in Port Elizabeth. In the said house they
stay with their two children aged 23 and 24 years respectively. Their
second child, a
daughter, has a child a girl who is 6 years old and
living with the respondents. Respondents survive only on old age
pension for
a living. The first respondent is 62 years old and had
since 1975 been employed by Transnet (then South African Railways and
Harbours),
the applicant, until he was dismissed from his employment
in 1999. For the sake of convenience when I refer to first and third
respondents, I shall refer to them as respondents. The second
respondent, Nelson Mandela Metropolitan Municipality, will be
referred
to as the municipality.
[2] On the date of argument of the
application Mr. B. Pretorius appeared for applicant and Mr. V. Naidu
for respondents. There was
no appearance for the municipality and
neither did it oppose the application.
B) FACTS (UNDISPUTED)
[3] In August 1989 first respondent
entered into a written contract which is referred to in the papers as
a Deed of Sale. In terms
of the said contract first respondent
acquired immovable property in terms of the applicant’s House
Ownership Scheme which
was available to applicant’s Personnel
at the time. In terms of the said House Ownership Scheme applicant,
on first respondent’s
request, arranged for the acquisition of
the property known as Erf 6714 Motherwell, situate at 76 Cerus
Street, Motherwell, Port
Elizabeth subject to the following
conditions (contained in paragraph 8 of the applicant’s
founding affidavit):
‘
8.1
The applicant will acquire the property on behalf of the first
respondent for a purchase price of R47 407.78 exclusive of the
costs
of erection of buildings, if applicable, costs and charges and duties
paid by the applicant in procuring the acquisition
and transfer of
the property.
8.2
The total amount of the first respondent’s indebtedness shall
be repaid by the first respondent in equal monthly instalments
over a
period of 38 years.
8.3
The ownership of the property will remain vested in the applicant
until such time that the first respondent has liquidated its
indebtedness to the applicant, whereafter applicant shall issue a
Deed of Grant to the first respondent.
8.4
The monthly instalments will be recovered from the first respondent’s
salary.
8.5
In the event of the first respondent retiring from the applicant’s
employment and the balance of his superannuation fund
being
insufficient to settle the outstanding indebtedness and the first
respondent fails upon demand to settle the balance aforesaid,
applicant will refund the first respondent an amount equal to the
capital redeemed during the currency of the agreement less
depreciation
and costs of repairs, provided that the first respondent
shall remain liable for any shortfall if the redeemed capital is less
than the amount that may be deducted.
8.6
The applicant will have a similar obligation to refund the first
respondent the amount equal to capital redeemed less deductions
aforesaid, in the event of the agreement [been] terminated through
death or upon the first respondent’s request.’
[4] Applicant contends that as a
consequence of the first respondent’s breach of contract by his
failure to effect payment
that is due monthly, first respondent is in
arrears of R95 635.44 which excludes interest accrued. The said
breach has resulted
in applicant’s cancellation of the
agreement.
[5] Upon dismissal of the first
respondent by applicant, presumably on operational requirements, in
December 1999, applicant deducted
a sum of R17 638.41 from the
pension money due to first respondent. This amount was used by
applicant to credit the first respondent’s
account thus
reducing the amount owed to applicant by first respondent.
[6] I am not happy with the manner in
which the applicant’s papers have been drafted, in particular
the founding affidavit
deposed to by Johan Van Der Spuy. There is
very little that the applicant told the Court to substantiate its
cause of action against
the respondents except to emphasize that it
is entitled to evict the respondents consequent upon the applicant’s
cancellation
of the contract an act allegedly resulting from first
respondent’s breach of his obligations in terms of the
contract. The
founding affidavit does not even state the capacity of
the deponent to the founding affidavit in that it is silent on
whether he
or she is a major or minor person. Though there is a
disclosure of the deponent being ‘duly authorised to depose
[of] the
contents of this affidavit’, no other document in the
form of a resolution or authority or any explanation for that matter
to authorise the institution of these proceedings has been referred
to and/or annexed. In addition to the above, and most importantly,
applicant has not been described at all. Only page one of annexure
‘JV 3’ has been annexed to the bound papers and
for the
reason that the annexed page is incomplete there is supposed to be
more than one page of that annexure. This is the document
on which
applicant relies on as proof of having made a demand from the first
respondent to pay the outstanding amount of the contract.
I regard
this omission as carelessness in the highest degree on the part of
the applicant’s attorneys to whom applicant relied
for the
preparation and processing of its case. More to this will be dealt
with later in this judgment.
C) DISPUTED FACTS
[7] In their answering affidavits
respondents explained that first respondent was not in breach of the
contract in that the amount
due by him was paid in full to the
applicant.
[8] Applicant, having heard the
respondents’ answer, filed a lengthy replying affidavit in
which it annexed various documents
including the letter purporting to
be cancelling the contract as well as ‘JVS6’ the printout
which purports to show
the first respondent’s account regarding
the monthly payments of the house in issue. In the founding affidavit
the only documents
annexed were the conveyancer’s certificate
‘JVS I’, the copy of the agreement in issue ‘JVS 2’
the
letter of demand dated the 19 October 2009, ‘JVS 3’
and the letter of cancellation of the contract dated 26 November
2009, ‘JVS 4’. The replying affidavit’s contents
include ‘JVS 6’ a printout relating to first respondent’s
account, ‘JVS 5’ a power of attorney, ‘JVS 7’
a municipal account and ‘JVS 8’ a letter also
dated 4
March 2008 advising the applicant that his bond account was
transferred to applicant’s agent First National Bank.
Even if
applicant’s purpose in instituting these proceedings was to
evict the respondents it was obliged to furnish the court,
which has
no clue of the facts of its case, with all the relevant documents in
its founding papers which accompanied the notice
of motion.
D) DISPUTE OF FACT
[9] The first respondent’s
answer to applicant’s contentions has, in my view, raised a
genuine and real dispute of fact.
In his response first respondent
contends that after he was informed by applicant’s employees in
1999 that his pension deductions
did not settle the full amount he
was advised by the applicant’s employee, described as ‘a
man of Indian origin’
that a housing subsidy was to be arranged
by this man on his behalf. After a few weeks he was called again and
was informed by
this man that the subsidy has been obtained. The
money received on his behalf for the subsidy was paid to settle the
outstanding
balance of the house debt as well as the municipal
levies. This happened during the years 1999-2000.
[10] In my view, what makes the first
respondent’s explanation raise a real dispute of fact is that:
[10.1] Applicant in its replying
affidavit does not deny the first respondent’s allegations
specifically regarding the applicant’s
employee of ‘Indian
origin’, who is alleged to have assisted and attended to the
first respondent, instead, the allegations
aforesaid were only noted
by the applicant. In my view, if the applicant was disputing that it
had no employee answering to such
description it would have stoutly
denied the allegations.
[10.2] The fact that applicant did not
make any demand from the first respondent for the payment of the
alleged balance of the contract
price for a period of at least nine
years suggests that it is reasonably possible that there was some
form of acceptable arrangements
between the parties on how the
balance was, or was to be, settled.
[10.3] It is not clear from the
applicant’s affidavits and annexures how the sum of R95 635.44
was arrived at. All the documents
filed do not assist the Court.
[11] For the above
reasons the case may have to be decided in accordance with the
judgment in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1
where at page 634
F-I and 635 A-C Corbett JA remarked as follows:
‘
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or 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. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by the respondent of a
fact alleged by the applicant may not be such as to raise a real,
genuine or
bona
fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 155
(T) at 1163-5; Da Mate v Otto NO
1972 (3) SA 858
(A) at 882 D-H.
If
in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court (
CF
Petersen v Cuthbert & Co Ltd
1945 AD 420
at 428; Room Hire case
supra at 1164)
and
the Court is satisfied as to the inherent credibility of the
applicant’s factual averment, it may proceed on the basis
of
the correctness thereof and include this fact amongst those upon
which it determines whether the applicant is entitled to the
final
relief which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983 (4) SA 278
(W) at
283 E-H.
Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent are
so far-fetched or
clearly untenable that the court is justified in rejecting them
merely on the papers (see the remarks of Botha
AJA in the Associated
South African Bakeries case
supra
at 924 A).’
[12] I have no reason to believe that
applicant did not expect first respondent not to oppose the
application. It would be unreasonable
for the applicant to launch
court proceedings against first respondent hoping that he or she
would not oppose it. Once the application
is opposed a possibility of
a dispute of fact should always be expected. This could be so in a
case where there has been no communication
between the two parties
for a period in excess of eight (8) years. Even in this case
applicant must have forseen the possibility
of the first respondent
opposing this application and if one has regard to the facts as
deposed to by first respondent applicant
must have expected that
there could have developed a material and genuine dispute of facts.
Despite this possibility applicant
proceeded to go by way of
application instead of action proceedings.
[13] In a situation
as above the Court has a discretion to dismiss the application with
costs
2
.
F)
FAILURE TO COMPLY
WITH RULE 6 R/W RULE 17(4)
[14] Having
reserved my judgment after argument of this matter, I realised during
my preparations that the founding affidavit of
the applicant does not
comply with rule 6 read with Rule 17 (4)(b). The applicant has not
been described in the founding affidavit,
and that there is no
allegation to establish its
locus
standi in judicio
.
I then requested the parties to furnish me with additional written
heads of argument addressing my above concerns. Both parties
have
furnished me with their additional written heads and I am indebted to
them for assisting me in this regard.
[15] Mr Naidu for the respondents,
contends that applicant has not complied with the Rules in that it
has neither described the
applicant nor has it annexed a copy of the
resolution or authority for the institution of the present
proceedings. He, therefore,
contends that the omission is fatal to
the applicants and he applies for the dismissal of the application
with costs.
[16] Applicants
contend that in the notice of motion applicant is cited as Transnet
Limited and then relies on section 49 (1) of
the Companies Act 61 of
1973. The applicant’s argument in the heads is couched such
that, in my view, I get the impression
that the drafter of the heads
got the incorrect impression that my contention is that the applicant
has no
locus
standi in judicio
in
these proceedings. This is not my concern, as I have alluded to in
the following paragraphs, applicant may have been clothed
with
locus
standi
but
this is not what is contained in its founding affidavit as required
by Rule 6 (1).
[17] In the case of
an artificial person such as a company the position is not the same
as that of natural persons where
locus
standi
will
be presumed. An artificial person, unlike an individual, can function
only through its agents and can take decisions only by
passing of
resolutions in the manner prescribed by its constitution or statute
establishing it. It cannot be assumed from the mere
fact that
proceedings have been brought in its name that those proceedings have
in fact been authorised by the artificial person
concerned
3
.
[18] In
Mall
(Cape) (Pty) Ltd v Merino KO-operasie Bpk
4
the Court dealt
with the situation that where a company commenced proceedings by way
of petition it was necessary to show that the
person who brought the
petition on behalf of the company must have been fully authorised by
the company to do so. This also applies
to the proceedings by way of
notice of motion. In
Mall
’
s
case
supra
Watermeyer J said:
‘
In
such cases some evidence should be placed before the Court to show
that the applicant has duly resolved to institute the proceedings
and
that the proceedings are instituted at its instance. Unlike the case
of a individual, the mere signature of the notice of motion
by an
attorney and the fact that the proceedings purport to be brought in
the name of the applicant are in my view insufficient.
The best
evidence that the proceedings have been properly authorised would be
provided by an affidavit made by the official of
the company annexing
a copy of the resolution but I do not believe that that form of proof
is necessary in every case.’
[19] Although Rule
6 of the Uniform Rules of this Court (the Rules) does not
specifically require the applicant’s full name,
address and
locus
standi
it
is clear from the provisions of the Rules
5
relating to
pleadings that this is a requirement even in application proceedings.
In this matter, the applicant’s founding
affidavit as deposed
to by Johan Van Der Spuy does not have an allegation which describes
the applicant, whether it is a natural
or juristic person, its
business, address or status as well as whether or not it has
locus
standi
in
judicio
.
Rule 17 (4)(b) provides:
‘
17(4)
Every summons shall set forth-
…
The
full name, sex and occupation and the residence or business of the
plaintiff, and where he sues in a representative capacity,
such
capacity. If the plaintiff is a female the summons shall state her
marital status.’
[20] This Rule is
couched in terms which might create the wrong impression that it
refers only to natural persons yet it is not.
It should be
interpreted to mean that it is of general application inclusive of
natural persons and juristic persons as well as
those plaintiffs
contemplated in Rule 14. Indeed it covers every plaintiff or
applicant who has the right in law to sue. The Rule
as it also apply
to juristic persons requires every applicant to furnish in its
founding affidavit with sufficient details which
enable the court as
well as the respondent to establish whether or not the applicant has
the requisite
locus
standi
to
sue
6
.
[21] I gather from
the name of the applicant which is followed by the word LIMITED that
applicant is supposed to be a public company.
This averment and
others including the description of the applicant, its address and
place of business, its nature of business
or operation, whether or
not it has
locus
standi in judicio
as
well as the authority to institute the proceedings on the part of its
representative have not been mentioned in the launching
papers. These
averments are expected to be contained in the founding affidavit. The
relevant paragraph of the applicant’s
founding affidavit reads:
‘
I
am the manager collections of the plaintiff and/or its successor in
title and I am as such duly authorised to depose [of] the
contents of
this affidavit, the facts, save where the contrary appears, are
within my personal knowledge and are to the best of
my knowledge and
belief true and correct. Where any of the facts deposed to are not
within my own personal knowledge, I verity
believe them to be true
and correct.’
[22] It is clear
from the above extract that applicant’s basis for its
locus
standi in judicio
as
well as other necessary averments in terms of Rule 6 (1) read with
Rule 17 (4)(b) are lacking herein.
[23] I am aware that in a subsequent
affidavit of the applicant deposed to by the applicant’s
attorney one Willem Abraham
Christiaan Labuschangne filed in support
of an application for joinder, paragraph 4 thereof describes the
applicant as ‘a
public company registered and incorporated in
accordance with the provisions of the Companies Act, with registered
offices at 26
Wellington Road, Parktown, Johannesburg.’
Applicant’s attorney’s affidavit referred to above does
not assist
applicant for the reason that it was not filed with the
launching affidavits and has only been annexed to the notice of
application
for the joinder of one of the respondents. The required
averments should be filed with the launching affidavits that
accompany
the notice of motion and not with the documents
accompanying an interlocutory application. In any event, even if I
were to consider
the contents of that affidavit the averments
contained therein are insufficient to comply with the provisions of
Rule 6 (1) read
with Rule 17 (4)(b) and cannot solve applicant’s
problem.
[24] The applicant
makes his or her case in the founding affidavit. Failure by the
applicant to do so is no mere technical defect
but that the
locus
standi in judicio
of
the applicant is fundamental to the applicant’s rights to claim
the orders sought in the founding affidavit in the absence
of which
the court should not entertain the application
7
.
In
SA
Cooling Services (Pty) Ltd v Church Council of the Full Gospel
Tabernacle
8
Caney J held as
follows at page 543 C-D:
‘
I
consider it to be necessary for a plaintiff to make in his
declaration the averments required not only to show that he has
locus
standi
,
but also that the defendant has. No doubt this will be presumed when
the parties are natural persons and there is nothing to indicate
lack
of legal capacity, but if there is a departure from this or a party
is not
prima
facie
qualified to litigate, the necessary authority to sue or to be sued
must be disclosed. I do not think there can be any presumption
that a
voluntary association is a corporate body, and in my view grounds for
citing it as a party must be disclosed.’
[25] In application
proceedings the applicant makes his, her or its case in the founding
affidavit which should contain evidence
upon which applicant relies
for the order sought. In this case the applicant’s right to
apply, that its
locus
standi in judicio,
should
have been alleged in the launching affidavits and not in any other
affidavit unless an application to supplement the founding
affidavit
to cure this defect has been granted in which event the appropriate
allegations have to be stated in that affidavit
9
.
There are no such allegations in the applicant’s founding
affidavit herein and this is fatal to the applicant’s case.
[26] In
Scott
and others v Hanekom and others
10
Marais AJ (as he
then was) on this very point held as follows (at page 1188 H and 1189
A):
‘
It
is trite law that appropriate allegations to establish the
locus
standi
of the applicant should be made in the launching affidavits and not
in the replying affidavits. This it is indeed so that the challenged
passages in the replying affidavits are not legitimate responses to
first respondent’s allegations and have been included
solely to
remedy an omission in the launching affidavits, they are liable to be
struck out.
[27]
Indeed what is
important is what the applicant said in its launching affidavits in
regard to its
locus
standi
as
well as other requirements in terms of Rule 6 (1). If there is none
or insufficient allegations on that point the matter is
cadit
quaestio
and
the results are that there is no
locus
standi
established.
[28] In this matter respondents have
not raised the issues of lack of compliance with Rule 6 (1) by the
applicant nor, has the applicant
applied for the amendment of the
founding affidavit to rectify the said omission. Rules of the Court
are for good reasons made
for the Court and not for the litigants and
should at all times be complied with. Even if there is no objection
from the other
party against his or her opponent’s flagrant
disregard of the rules, the Court has powers to raise and/or consider
the matter
on its own with a view to rectify the omission or to
enforce compliance with the relevant Rule(s). In the process the
Court will
dismiss the application or action if it comes to the
conclusion that it was obligatory for the guilty party to have
complied with
the requirements of the relevant Rule and that he or
she has failed to do so. In this case applicant has not annexed any
document
in the form of at least a resolution justifying the
institution of the present proceedings neither is there an averment
to prove
authority to institute these proceedings.
[29] Having said
the above, I am aware of the constitutional provision in terms of
section 34
11
which provides as
follows:
‘
ACCESS
TO COURTS
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a Court
or, where appropriate, another independent and impartial tribunal or
forum.’
[30] I do not, even
for a moment, think that my condemnation of the manner in which the
applicant has drafted his papers and consequently
failed to comply
with the specified Rules of the Court could amount to unfairly
preventing the applicant from exercising its rights
in terms of the
above and any other applicable constitutional provisions
12
.
In a given case, as the one
in
casu
,
the court is entitled to enforce compliance with the Rules of the
Court and this does not amount to chasing away litigants from
approaching the Court to enforce their disputes. Compliance with the
Rules of the Court is consistent with orderly practice and
should as
a matter of necessity be seen to be observed by the practitioners or
parties acting personally. There can be no prejudice
to the party who
is guilty of failure to observe the Rules of the Court because in the
event of the dismissal of the action or
application for that reason
alone, a litigant can institute fresh proceedings and no plea of
res
judicata
can
be successfully raised by the defendant or respondent as the case may
be.
[31] In conclusion
it would perhaps be appropriate to quote the following
dictum
in
Bayat
v Hansa
13
at
553
C-E
:
‘
An
applicant for relief must (save in exceptional circumstances) make
his case and produce all the evidence he desires to use in
support of
it, in his affidavits filed with the notice of motion, whether he is
moving
ex
parte
or
on notice to the respondent, and is not permitted to supplement it in
his replying affidavits (the purpose of which is to reply
to
averments made by the respondent in his answering affidavits) still
less a new case in his replying affidavits.’
[32] Having said the above, I am of
the view that although the applicant’s founding affidavit does
not comply with the relevant
Rule, it is still within my discretion
to condone the applicant’s conduct. This is so for the reasons,
inter alia
, that the affidavit by the applicant’s
attorney filed in support of the application for joinder as well as
the other facts
contained in the papers do indicate that applicant
does have
locus standi in judicio
in these proceedings. I am
therefore prepared to reluctantly use my discretion towards condoning
the non-compliance with the relevant
rules of the Court. In so doing
I am by no means encouraging practitioners to ignore compliance with
the Rules of this Court.
E) TERMS AND CONDITIONS OF THE
CONTRACT
[33] When one has regard to the terms
and conditions of the contract as well as remedies upon breach herein
there is no indication
that eviction of the first respondent is one
of the remedies available to the applicant upon cancellation of the
contract by the
latter. Paragraph 8 of the applicant’s founding
affidavit deals specifically with the terms of the contract including
the
remedies available in the event of any breach. Eviction of the
first respondent and his family is not one of those remedies that
have been specified in the written contract which applicant could
resort to in the event of cancellation of the contract flowing
from
the breach of a material term by first respondent.
[34] I must say though that, in order
to be valid, the cancellation of the contract has to be communicated
to the guilty party.
In the light of the denial by first respondent
that he received or was aware of the contents of the letter
cancelling the contract,
the only document which effectively
communicated to him the cancellation thereof is the notice of motion
together with its contents
which, according to the return of service,
was received by first respondent on the 4 March 2010 when the papers
herein were served
on him. There can be no dispute that the present
proceedings clearly informed the first respondent of the applicant’s
cancellation
of the contract and I therefore conclude that the
contract was cancelled on the 4 March 2010. It is important to
mention that the
applicant’s affidavit does not mention how and
in what manner the applicant complied with the contract provisions in
paragraph
8.6 of the contract agreement and neither does the founding
affidavit deal specifically with how the first respondent complied
with clause 8.5 of the agreement. In every contract the terms thereof
are the promise agreed upon by the parties which, together,
make up
the contract. Applicant’s founding affidavit does not appear to
disclose all the material facts upon which it could
rely to obtain
the order sought.
[35] It is trite
law that an application not only takes the place of a declaration in
an action but also of essential evidence to
be led at the trial. An
application must include facts necessary for determination of the
issue in the applicant’s favour
14
.
Similarly in
Hart
v Pinetown Drive-In-Cinema (Pty) Ltd
15
dealing with a
similar issue, Miller J pointed out and remarked as follows:
‘
Where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings by way
of action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition , be sufficient
to resist an objection
that a case has not been adequately made out. The petition takes the
place not only of the declaration but
also of the essential evidence
which would be led at a trial and if there are absent from the
petition such facts as would be necessary
for determination of the
issue in the petitioner’s favour, an objection that it does not
support the relief is sound.’
[36] I wish to
emphasize that the terms of a contract are the provisions which set
out the nature and details of the performance
due by the parties
under the contract. This includes the nature and description of the
commodities or services to be rendered,
the manner, time and place of
performance as well as the remedies for failure to comply with such
terms. In the present case the
only relevant clause which would then
have to be associated with eviction is that ownership of the property
will remain vested
in the applicant until the contract price is paid
in full. However, where a contract has been put into writing by the
parties,
it becomes necessary to read the language used in order to
ascertain their intention from the language used by the parties
16
.
[37] In
Cape
Provincial Administration v Clifford Harris (Pty) Ltd
17
Zulman JA held as
follows:
‘
It
is trite law that when dealing with written contracts the golden rule
of interpretation is to ascertain and give effect to the
intention of
the parties. The intention must be gathered from the language used by
the parties. The words in which they have recorded
their contract
should normally be given their ordinary grammatical meaning within
their contextual setting with the proviso that
in construing the
language of a provision, any special definition of particular words
by the parties must obviously be given effect
to, provided of course,
that such definition is not inconsistent with the context of the
clause being interpreted.’
[38] In my view,
the fact that it is specifically stated in the agreement that
applicant shall remain the owner of the property
until the price is
paid in full may not necessarily be interpreted to mean that in the
event of any breach followed by the cancellation
of the contract by
the applicant the latter is entitled to the eviction of the first
respondent from the property in issue. This
is so because the
remedies available to the applicant are specifically and
unequivocally stated in the contract itself. The fact
that this could
result in unfairness of the contract terms to applicant does not
assist it in anyway
18
.
[39] Applicant is therefore legally
bound to apply those remedies which are available to it in terms of
the contract.
[40] It is trite
law that, when the other party to the contract (the guilty party)
breaches a material term of the contract the
innocent party is
entitled to cancel the contract. Ordinarily, unless the contract
specifies to the contrary, upon cancellation
he or she may,
inter
alia
,
sue for damages. Such damages mean that he or she should be put in
the position he or she would have been had the contract been
properly
performed. In
Trotman
v Edwick
19
Van den Heerver JA
held as follows at page 449 B-C:
‘
A
litigant who sues on contract sues to have his bargain or its
equivalent in money or in money and in kind.’
[41] Where it is obvious that the
parties should have thought about a term or remedy of the contract
and should consequently have
included it in the written agreement,
the courts should be loath to impute such a term and/or remedy into
the written agreement
even though the parties have excluded it.
[42] Where express
stipulations, conditions and/or remedies upon breach are set out in a
contract a court should not, by any implication,
construe them as
justifying their extension. The presumption is that having expressed
same, the parties to the contract expressed
all the conditions by
which they intend to be bound under the contract
20
.
This is expressed by the maxim
expressio
unius est exclusio alterius
.
The contract can thus not be altered if there is no agreement to do
so after it is executed without fraud or wrong
21
.
[43] Most
authorities on this point suggest that a court has no right to imply
in a written contract any stipulation or term, unless,
on considering
the terms of the contract in reasonable and in businesslike manner an
implication necessary arises that the parties
must have intended that
the suggested stipulation or terms should exist
22
.
A court has a right to presume that a particular term of a contract
was agreed to (that is impliedly) only where it is capable
of a
reasonable interpretation in the particular circumstances
23
.
[44] In the present
case the question is whether the court can by implication impute into
the contract of the parties the term that
upon cancellation of the
contract by applicant, as a consequence of the material breach
thereof by first respondent, eviction of
the first respondent was
intended by the parties and therefore should be imputed therein. This
should not be easily resorted to
especially in a written contract
where the terms are clearly stated in the written agreement
24
.
I say so having in mind that the general rule is that the terms as
expressed by the parties in their written contract must be
given
effect to for the reason that they have expressed all the conditions
by which they intend to be bound under the contract.
[45] It must be
observed that both parties may have had knowledge of a certain
relevant and associated fact, and such knowledge
may be imputed, but
it may not be on its own to found a tacit term of a contract, the
intention of the parties is the determining
factor as to whether or
not the contract contained a tacit term
25
.
[46] An implied
term, condition or stipulation, however, is an unexpressed term,
condition or stipulation of the contract that arises
from the common
intention of the parties which can be determined from the express
terms of the agreement and the surrounding circumstances
when the
parties contract. It could be a term which the parties thought of at
the time of the conclusion of the contract but failed
to write it
into the agreement, or one with which they would have dealt with, had
their minds been directed to it
26
.
In
Alfred
Mc Alpine & Son (Pty) Ltd v Transvaal Provincial Administration
supra
at page 582 Corbett
JA stated as follows:
‘
The
concept of the common intention of the parties comprehends not only
the actual intention but also an imputed intention ie the
court
implied not only terms which the parties must actually have had in
mind but did not trouble to express, but also terms which
the
parties, whether or not they actually had in mind, would have
expressed if the question, or the situation requiring the term,
had
been drawn to their attention.’
[47] It is trite
law that a term should not be implied unless it is absolutely
necessary to imply it in order to carry into effect
the intention of
the parties. Whether a term could be imputed to the parties must be
determined from the express terms of the contract
and/or the
surrounding circumstances that led to the conclusion of the
contract
27
.
[48] In the present case the fact that
the parties have agreed that the ownership of the property shall vest
in the applicant until
the price is paid in full creates an
irresistible inference that the parties contemplated that in the
event of the failure by first
respondent to pay, applicant would
resort to the eviction of the first respondent as a remedy. This, in
my view, is a term which
could reasonably be implied in the
circumstances failing which the registration of the property in the
name of the applicant whilst
the property is in possession of the
first respondent would not make sense and would render the whole
agreement nugatory and senseless.
Such a result could never have been
contemplated by the parties.
[49] In the result, I see no reason
why such term ie ‘eviction of the first respondent in the event
of cancellation of the
contract by applicant flowing from the
material breach of contract by first respondent’ could not be
implied as a term of
the contract which was contemplated by the
parties at the time of the agreement.
[50] Be that as it may, this is not
the only consideration in this case. The court has to further
determine whether or not the first
respondent is in unlawful
occupation of the property and therefore liable to be evicted.
[51] The
applicant’s intended eviction of the respondents and their
family members is based on the fact that they are in unlawful
occupation of house no 76 Cern Street, NU 5, Motherwell in Port
Elizabeth. It is the house which both respondents use as their
primary residence. It is trite law that everyone is protected by the
provisions of section 26 of the Constitution
28
against eviction.
Section 26 of the Constitution provides:
‘
Housing
Everyone
has the right to have access to adequate housing.
The
state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realization
of
this right.
No
one may be evicted from their home, or have their home demolished,
without an order of Court made after considering all the
relevant
circumstances. No legislation may permit arbitrary evictions
.’
(my emphasis)
[52] Section 26
above has resulted in the enactment of The Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act
29
(hereinafter
referred to as PIE). Pie provides some legislative texture to guide
the courts in determining the approach to eviction
now required by
section 26 (3) of the Constitution. Relative to the case
in
casu
section
4 (7) of the PIE Act provides that in all eviction proceedings where
the unlawful occupier has occupied the land in question
for more than
six months 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 the rights and needs of the
elderly, children, disabled persons and households
headed by women.
Section 6 of PIE refers to eviction at the instance of an organ of
state and provides:
‘
An
organ of state may institute proceedings for the eviction of an
unlawful occupier from land which falls within its area of
jurisdiction,
except where the unlawful occupier is a mortgagor and
the land in question is sold in a sale in execution pursuant to a
mortgage,
and the Court may grant such an order if it is just and
equitable to do so, after considering all the relevant circumstances,
and
if –
the
consent of that organ of State is required for the erection of a
building or the occupation of the land, and the unlawful
occupier is
occupying a building or structure such consent having been obtained;
or
it
is in the public interest to grant such order.
For
the purpose of this section, “public interest” includes
the interest of the health and safety of those occupying
the land
and the public in general.
In
deciding whether it is just and equitable to grant an order of
eviction, the Court must have regard to –
the
circumstances under which the unlawful occupier occupied the land
and evicted the building or structure.
The
period the unlawful occupier and his or her family have resided on
the land in question; and
The
availability to the unlawful occupier of suitable alternative
accommodation or land.
[53] In terms of
the contract of the parties the owner of the house in issue is the
applicant which is an organ of state. Applicant
was created in terms
of section 2 of Legal Succession To The South African Transport
Services Act
30
.
Section 2 (2) of the above Act provides that the State is the only
member and shareholder of Transnet Limited. The house in respect
of
which applicant seeks to evict respondents was obtained by first
respondent by way of a work scheme whilst first respondent
was the
employee of applicant.
[54] It appears
from the provisions of the PIE Act
31
that the
jurisdictional fact which should trigger the lawful eviction of the
occupier of land is that such person must be an unlawful
occupier. In
the present case the respondents can only be regarded as unlawful
occupiers if the Court finds that the version of
the applicant in
these proceedings is accepted. Even if the respondents are declared
to be unlawful occupiers, before the Court
can authorise their
eviction it must be shown that it is just and equitable for them to
be evicted.
[55] It is common cause that the
respondents are elderly pensioners whose only income is derived from
the old age pension. In the
house in question they reside with their
children who are 23 and 24 years old as well as their granddaughter
who is only six years
old. Their children are not employed. It is
further common cause that the respondents have no other alternative
accommodation in
which they can stay if evicted from the said
premises. There is no indication from the circumstances of this case
that they can
be able to secure alternative accommodation should they
be evicted from the said premises.
[56] In addition, before the applicant
came to Court for an order of eviction no attempts were made by it to
establish whether the
amount owed by the first respondent could be
recovered by resorting to other methods eg by selling the movables of
the respondents.
There was no such attempt although it has now
transpired that respondents are at present not wealthy people.
[57] Having said
the above the main issue at this stage is whether the respondents are
in unlawful occupation of the property in
question. The Court, having
accepted the version of the respondents in view of the decision in
Plascon
Evans
case
above the Court cannot therefore conclude that the respondents are
unlawful occupiers of the said property. I say so because
on the
version of the respondents the debt was paid in full by first
respondent.
[58] Even if I am wrong in my
conclusion that the respondents are not unlawful occupiers, given the
circumstances of the case their
lack of means to secure alternative
accommodation and that in the house in issue respondents live with
their children and grandchild
who is young. Respondents have been
staying in this house with their family since 1989 a period of more
than twenty years. For
about ten (10) years applicant has given the
respondents the impression that there is no amount they owe applicant
in respect of
the house. This is so in view of the applicant’s
failure to claim the alleged balance of the debt for such a long
period.
Applicant’s silence for such a long time has created an
expectation, legitimate in my view, that there is no longer any
amount
owed by the first respondent to the applicant.
[59] Most of all
the applicant has not been able to convince the Court how it has
arrived at the total amount which it alleges is
owed by the first
respondent. I am not in a position to say how the applicant arrived
at the amount claimed. The case of the applicant
lacks averments
which are necessary to assist the Court to come to a just decision.
In
Port
Elizabeth Municipality v Various Occupiers
32
Sachs J, dealing
with the same issue, held as follows at page 237 para 36-38:
‘
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.
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 structured, institutionalised
and operational declaration in our evolving new society of the need
for human interdependence, respect and concern.
The
inherited injustices at the macro level will inevitably make it
difficult for the courts to ensure immediate present-day equity
at
the micro level. The Judiciary cannot, of itself, correct all the
systemic unfairness to be found in our society. Yet it can,
at least,
soften and minimise the degree of injustice and inequity which the
eviction of the weaker parties in conditions of inequality
of
necessity entails…’
[60] The provisions of section 26 of
the Constitution are couched in such terms so as to ensure that
before a Court can grant an
order of eviction of the occupier of the
home it has to take into account all the relevant factors. And if
circumstances for and
against the eviction are balanced such that the
Court would have difficulty in finding in favour of either side the
Court should
refuse to grant the order of eviction. This is so in
view of the fact that the applicant would have failed to establish
that he
or she is entitled to evict the respondent. The provisions of
section 4 of the PIE Act was designed to give effect to the
provisions
of section 26 of the Constitution hence in given
circumstances the Courts can only authorise eviction of the occupier
when its
just and equitable to do so.
[61] The majority
of South Africans embrace and practice the notion of
Ubuntu
which literally
means humaneness or obliging towards others. In my view
Ubuntu
notion emanates
from the African communalism where people would share everything they
had. This way of living evolved to be what
today is practised where
communities feel obliged to help and give to those who are poor what
they need and do not have. They do
so without expecting anything in
return. It may therefore be regarded as inhumane and against the
notion of
Ubuntu
to chase away the
needy and poor people with no other alternative accommodation from
their place of residence in which they have
lived for a period in
excess of twenty years and in the circumstances prevailing in this
case. I say this having in mind the provisions
of section 26 and
those of the PIE Act. I am also mindful of the universal right to
ownership. Most of all I also consider the
peculiar facts of this
case. In the circumstances of this case, there is, in my view, no
reason why the applicant, and/or the State
cannot treat this case in
the same manner as provided for in the Conversion of Certain Rights
into Leasehold or Ownership Act
33
.
The circumstances prevailing in this case and those in respect of
which the above act applied are similar. Section 4 (1)(b) of
the
above Act reads:
‘
4
Granting of Leasehold or Ownership
The
Director-General shall upon the expiry of the period
specified
for appeal under section 3 (1) or, in the case of such appeal, on the
confirmation, variation or substitution of the determination
referred
to in section 2 (4), in the prescribed manner declare the person
concerned to have been granted-
(a)
…
(b)
in the case where the affected site is situate in
a
formalized
township for which a township register has been opened, ownership in
respect of the affected site concerned.’
[62] In the present case respondents
regard the house in question as their home yet the applicant regards
itself the owner of the
property. The Court has to balance between
the interests of the owner and those of the occupier who has for more
than twenty years
regarded the property as his primary residence. The
national government bears the overall responsibility for ensuring
that the
state complies with the obligations imposed upon it by
section 26 of the Constitution. The same section requires that the
legislative
and other measures adopted by the state are reasonable.
[63] In the present case, ordinarily,
if respondents are evicted the state would be expected to assume its
obligation to provide
the respondents and their children with
adequate accommodation. This includes the provisions of a shelter for
the six year old
child. Obviously if the parent of the child acquires
accommodation that would be sufficient for the child to acquire
shelter where
she would stay with her mother.
[64] Though the applicant is not the
government by virtue of it being an organ of state or a parastatal,
however, in terms of section
2 (3) and sections 3 and 4 of the Legal
Succession To The South African Transport Services Act 9 of 1989, as
amended, the State
is the only shareholder of the applicant. This, in
my view, makes the state responsible for the budget of the applicant
and should
under normal circumstances provide for the applicant’s
yearly budget.
[65] Having narrated the above
relevant circumstances of the respondents, can it be said that the
applicant or the state can be
impoverished if the respondents are
allowed to remain the occupants of the property, and therefore could
it be just and equitable
for this Court to grant an order of eviction
in the circumstances of this case. If one has regard to the state’s
obligation
to provide adequate shelter for respondents and their
family as well as other circumstances of the respondents already
explained
above it would not be unjust and inequitable if the
respondents would remain in the property in question. In terms of the
contract
annexure (JVS I) first respondent was required to pay a sum
of R47 407.78 for the property. The instalments commenced in 1989 and
until the year 1999 when the first respondent was dismissed. Although
the circumstances of the first respondent’s dismissal
are not
disclosed there is an irresistible suspicion, as gathered from the
facts of other similar cases, that the first respondent
was in fact
dismissed on operational requirements and applicant deducted the
first respondent’s full pension fund to reduce
the balance of
the purchase price of the house in issue.
[66] During
argument Mr Pretrorius submitted that the interests of the owner of
the property should be paramount and that the respondents
should be
evicted. He relied on the judgment of
Jackpersad
NO and others v Mitha and others
34
.
The two cases cannot be comparable. They are completely
distinguishable. In the
Jackpersad
case applicants
were sellers and purchasers of immovable property who joined ranks to
seek eviction of the tenants (respondents)
from the building on the
property in terms of section 4 (6) of the PIE. The property was
adjacent to a hospital. It is common cause
that the purchaser whished
to demolish the building on the property to enable extentions to be
made to the hospital. The extentions
were urgently needed to extend
the hospital wards. It is clear that the interest of the applicants
included the creation of jobs
for the general public thus creating
both temporary and permanent jobs and that there was an alternative
land available for the
respondents. The facts of the present case are
different.
[67] Mr Naidu for the respondent has
attacked the applicant’s failure to justify how it arrived at
the amount it has indicated
as the balance owed by first respondent.
Mr Naidu correctly argued that it would be just and equitable for the
Court to refuse
the application more so when one has regard to the
circumstances of this case.
[68] Having considered all the
relevant factors in this case I am unable to agree with Mr Pretorius.
The plight and circumstances
of the respondents paint a miserable
picture of the respondents’ plight, not to say this is the only
consideration, but it
touches one’s sense of justice to evict a
person who has been staying in the house for more then 20 years in
circumstances
where, even if you accept the applicant’s
version, it is clear that the initial price has been paid almost in
full excluding
interest and the state is the only shareholder of the
owner of the property in issue. It would have been undesirable for
the applicant
to take and use all the pension money of the first
respondent towards the purchase price when in fact at the end of the
day the
applicant could sell the property and not refund the first
respondent the money he has already paid. I can think of no other
reasons
for the applicant’s eviction of the respondents and
their family other than to sell the property. I say this fully aware
that the owner has the right to dispose of its property as it
pleases. At the end of the day, as already alluded to above, though
the applicant is the organ of state, the state remains the only body
to suffer prejudice, if any, if the application is refused
(it being
the only shareholder of the applicant). In my view, any such
prejudice is far outweighed by the pressing need for the
application
of the provisions of section 26 of the Constitution in this case.
[69] I therefore come to the following
conclusion:
[69.1] That from the facts accepted in
this case it has not been established by the applicant that the
respondents are unlawful
occupiers of the said property.
Even
if they are unlawful occupiers:
[69.1.1]For the reasons already
alluded to
supra
it would not be just and equitable for this
court to evict the respondents from the property.
[70] Therefore, the application is
hereby dismissed with costs.
________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
Date
signed:
______________
Representative of parties
:
For the applicant: Adv. B. Pretorius
Instructed by: Greyvensteins
St Georges House
104 Park Drive
Port Elizabeth
For the respondents: Mr. V. Naidu
(1
st
and 3
rd
)
Instructed by: PE Justice Centre
1
st
Floor, President Centre
564 Govan Mbeki Avenue
North End
Port Elizabeth
1
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 F-I
2
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 93) SA 155
(T) at 1162
3
Mall
(Cape) (Pty) Ltd v Merino Ko-operasieBpk
1957 (2) SA 347
(C) at 351
E-G. See also Pretoria City Council v Meerlust Investments (Pty) Ltd
1962 (1) SA 321
(A) at 325 C-E. Griffiths and Inglis (Pty) Ltd v
Southern Cape Blasters (Pty) Ltd
1972 (4) SA 249
(C)
4
See
footnote 3
supra
5
Spoornet
v Watson
1994 (1) SA 513
(W). See also Commentary in Erasmus –
Superior Court Practice pages B1-123 to B1-126 HH. Rich v Lagerway
1973 (1) SA 485
(W) at 487 B-D
6
Scott
and others v Hanekom and others
1980 (3) SA 1182
(C)
7
Spoornet
v Watson
supra
at
page 514 E-I
8
1955
(3) SA 541
(D)
9
Scott
v Hanekom
1980 (3) SA 1182
(C) at 1188H-1189A..
See
also Mars Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A)
at 575 H-I, Kommissaris van Binnelandse Inkomste v Van der Heerver
1999 (3) SA 1057
(SCA) at 1057 G-H
10
See
footnote 9
supra
11
Section
34 of the Republic of South Africa Constitution Act 1996
12
Section
38 of the Republic of South Africa Constitution Act 1996 [its
provisions do not appear to be applicable in the facts of
the case
under discussion]
13
1955
(3) SA 547
(N) at 553 C-E
14
Bezuidenhout
v Otto
1996 (3) SA 339
(W)
15
1972
(1) SA 464
(D) at 469 C-E
16
See
Wille’s Principles of South
African Law, 9
th
ed
p 800
17
[1996] ZASCA 115
;
1997
(1) SA 439
(A) at 445 F-H
18
Haynes
v King Williams Town Municipality
1951 (2) SA 371
(A)
19
1951
(1) SA 443
(A)
20
Lessing
v Steyn
1953 (4) SA 193
(O) at 202
21
Glendale
Sugar Millers (Pty) Ltd v SA Sugar Association
1986 (3) SA 815
(N)
22
EA
Kellaway on Principles of Legal Interpretation (Statutes, Contracts
& Wills) 1995 ed at page 495. See also Richard Ellis
(SA) (Pty)
Ltd v Miller
1990 (1) SA 453
(T) at 463 C-E
23
Van
Der Merwe v Viljoen
1953 (1) SA 60
(A) at 65
24
Voges
v Wilkens
1992 (4) SA 764
(T)
25
Administrator
(Transvaal) v Industrial and Commercial Timber and Supply Co
1932 AD
33
26
Alfred
Mc Alphine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531
27
Alfred
Mc Alphine & Son (Pty) Ltd v Transvaal Provincial Administration
supra,
Van
Den Berg v Tenner
1975 (2) SA 268
(A) at 276
28
Republic
of South Africa Constitution, 1996
29
Act
19 of 1998
30
Act
9 of 1989
31
Sections
4 and 6 of the PIE Act 19 of 1998
32
[2004] ZACC 7
;
2005
(1) SA 217
CC at 237 para 36-38. See also Government of the Republic
of SA and Others v Grootboom and others
2000 (11) BCLR 1169
(CC)
33
Act
81
of 1988 especially sections 2, 4 and 5 of the Act
34
2008
(4) ALL SA 522
(DCLD)