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[2018] ZAECPEHC 13
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Sturdy v Pirezenthal and Another (2147/15) [2018] ZAECPEHC 13 (27 February 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISON, PORT ELIZABETH
CASE NO: 2147/15
Date heard: 8
February 2018
Date
delivered: 27 February 2018
In
the matter between
BARBARA
JANE STURDY
Applicant
And
MAURICE
WILLIAM PIREZENTHAL
First Respondent
NELSON
MANDELA BAY
MUNICIPALITY
Second Respondent
JUDGMENT
GOOSEN,
J.
[1]
This
is an application for eviction in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of
1998
(hereinafter “PIE”). The applicant and the first
respondent are mother and son.
[2]
In
January 2012 the parties concluded a deed of sale in respect of Erf
[...], Cotswold, Port Elizabeth situated at [...] K. Street,
Cotswold
(hereinafter ‘the property’) in terms of which the
applicant sold the property to the first respondent. The
deed of sale
records that the parties agree that the bare dominium of the property
is sold and that the sale is subject to the
registration of a
usufruct in favour of the seller.
[3]
The
property was registered in the first respondent’s name on 29
March 2012. In accordance with the deed of sale the deed
of transfer
records, as a condition registered against the title, a lifelong
usufruct in favour of the applicant.
[4]
Subsequent
to the transfer of the property into the name of the first
respondent, the first respondent continued to reside on the
property
with the applicant. It appears from the papers that the relationship
between the applicant and first respondent began
to steadily
deteriorate. For present purposes it is not necessary to elaborate
upon the nature and extent of the deterioration
of the relationship,
nor to outline the opposing averments made by the parties. It
suffices to state that the first respondent
effected certain
renovations to the property; that the applicant was confined to a
portion of the property comprising a converted
servant’s
quarters; and that the first respondent proceeded to let out rooms on
the remainder of the property to several
persons. According to the
applicant conflict emerged between the first respondent and the
tenants on the one hand and her on the
other.
[5]
The
circumstances were such that in February 2014 the applicant sought
legal advice. She was however unable to afford the legal
fees
required to pursue the matter and eventually she had to approach
Legal Aid South Africa for assistance. This culminated in
the launch
of the present application in June 2015, in which the applicant seeks
an order of eviction against the first respondent
and all those who
occupy the property through him.
[6]
It
appears from the court file that the matter has been postponed or
removed from the roll on several occasions. Apart from one
such
postponement brought about by the need to comply with the provisions
of s 4 of PIE, it is not clear what has occasioned the
delay in
finally bringing this matter to adjudication.
[7]
The
application is opposed. At the hearing of the matter the ambit of the
dispute was, for reasons apparent from the nature of the
opposition
advanced by the first respondent, confined to the question as to
whether the granting of an order of eviction would
be just and
equitable in the circumstances of the matter.
[8]
In
his answering affidavit the first respondent denies that he is in
unlawful occupation of the property. He asserts that prior
to his
occupation of the property (in 2011) the applicant had tenants living
on the property and she received a rental income from
them. After
purchasing the property, and whilst still living there, the first
respondent proposed the extension of the “servant’s”
quarters and its conversion into a flatlet for the applicant. A
separate entrance was created so that the applicant did not have
to
share the entrance with the main house. According to the first
respondent the main house was then converted to accommodate several
tenants. The income derived from these tenants accrues to the first
respondent to cover his living costs and to service a loan
payable by
him to the applicant.
[9]
He
states that prior to the deterioration of the relationship between
the applicant and himself the arrangement met with the applicant’s
approval. In regard to the deterioration of the relationship he
alleges that the applicant became increasingly “irrational”.
This, it appears, related to conflict between the applicant and
several of the tenants occupying the property. The first respondent
states that the applicant’s “irrational” behaviour
even resulted in him attempting to have the applicant committed
to an
institution. He did not proceed with this because of the threat on
the part of the applicant’s attorney to interdict
him.
[10]
A
reading of the first respondent’s answering affidavit indicates
a seriously deteriorated relationship between the parties.
It
contains numerous egregious allegations relating to the character of
the applicant. The affidavit also indicates disregard on
the part of
the first respondent of the applicant’s rights in the property.
Significantly, on the first respondent’s
own version, the
applicant’s prior consent to his use of the property to house
tenants has been withdrawn. His continued
use of the property is
accordingly in breach of the applicant’s usufructury rights.
[11]
Mr
Lamprechts, who appeared for the first respondent, conceded, properly
so, that the applicant as usufructury is “a person
in charge”
as defined by s 1 of PIE. (cf.
Hendricks
v Hendricks
2016 (1) SA 511
(SCA) at par 10 & 11;
October
NO and Another v Hendricks and Another
[2013] ZAWCHC 12
(13 January 2013) at par 15). The withdrawal of the
applicant’s consent to the first respondent’s use of the
property
renders the first respondent an unlawful occupier within the
meaning of PIE. It is common cause that the formal requirements of
section 4 of PIE have been met.
[12]
It
was argued by Mr Lamprechts that the issue to be determined is
whether it would be just and equitable to evict the first respondent
and those persons who occupy the property through him. Reliance was
placed on s 4 (7), which requires that the court be satisfied
that it
is just and equitable to grant an order of eviction. It was submitted
that the onus rests upon the applicant to place information
before
the court in order to enable the court to determine the issue. Since
the information placed before the court is insufficient,
so it was
argued, and eviction order cannot be granted.
[13]
The
interplay between section 4 (7) and section 4 (8) of PIE was set out
in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
[2013] 1 All SA 8
(SCA) at par 11 and 12 as follows:
In terms of section 4 (7) of
PIE, an eviction order may only be granted if it is just and
equitable to do so, after the court has
regard to all the relevant
circumstances, including the availability of land for the relocation
of the occupiers and the rights
and needs of the elderly, children,
disabled persons and households headed by women. If the requirements
of section 4 are satisfied
and no valid defence to an eviction order
has been raised the court “must”, in terms of section 4
(8), grant an eviction
order. When granting such an order the court
must, in terms of section 4 (8) (a) of PIE, determine a just and
equitable date on
which the unlawful occupier or occupiers must
vacate the premises. The court is empowered, in terms of section 4
(12) to attach
reasonable conditions to an eviction order.
There does
not appear to have been a consideration of the precise relationship
between the requirements of section 4 (7), (or section
4 (6) if the
occupiers have been in occupation for less than six months), and
section 4 (8) in the context of an application for
eviction at the
instance of a private landowner. In some judgments there is a
tendency to blur the two enquiries mandated by the
sections into one.
The first inquiry is that under section 4 (7), the court must
determine whether it is just and equitable to
order eviction having
considered all relevant circumstances. Among those circumstances the
availability of alternative land and
the rights and needs of people
falling in specific vulnerable groups are singled out for
consideration. Under section 4 (8), it
is obliged to order an
eviction “if the… requirements of the section have been
complied with” and no valid defence
is advanced to an eviction
order. The provision that no valid defence has been raised refers to
a defence that would entitle the
occupier to remain in occupation as
against the owner of the property, such as the existence of a valid
lease. Compliance with
the requirements of section 4 refers to both
the service formalities and the conclusion under section 4 (7) that
an eviction order
would be just and equitable. In considering whether
eviction is just and equitable, the court must come to a decision
that is just
and equitable to all parties. Once the conclusion has
been reached that eviction would be just and equitable the court
enters upon
the second inquiry. It must then consider what conditions
should attached to the eviction order and what date would be just and
equitable upon which the eviction order should take effect. Once
again, the date that it determines must be one that is just and
equitable to all parties.
[14]
The
court went on to address the interplay in the context of an
application made by a private landowner as opposed to an organ of
state. The court noted that different considerations apply at the
first inquiry when the applicant is a private landowner. It was
held
at par 19 and 20, that:
In most
instances, where the owner of property seeks the eviction of unlawful
occupiers, whether from land all the buildings situated
on the land,
and demonstrates a need for possession and that there is no valid
defence to that claim, it will be just and equitable,
to grant an
eviction order. That is consistent with the jurisprudence that has
developed around this topic. In
Ndlovu
v Ngcobo
,
Harms JA made the point that ownership and the lack of any lawful
reason to be in occupation are important factors in the exercise
of
the court’s discretion. In the
Modderklip
Boerdery
case, Marais J carefully weighed the different factors and granted an
eviction order. His order was upheld by this Court and not
questioned
in the Constitutional Court. The eviction order granted by this Court
in
Rand
Properties
(not a PIE case, but one in which the circumstances relating to
the building were similar) was set aside by the Constitutional
Court
in
Olivia
Road
,
but on the grounds of the lack of engagement between the municipality
and the occupiers, not its appropriateness. In
Blue
Moonlight
,
and eviction order was granted at first instance and confirmed
subject to different conditions in this Court and the Constitutional
Court.
Where the eviction is sought by
a private landowner the availability of alternative land or
accommodation assumes greater importance
in the second inquiry,
namely, what is a just and equitable date for eviction? It is here
that the constitutional obligations of
the appropriate arm of
government – in our cities this is inevitably the municipality
– come into focus and assume
their greatest importance. The
reason is that, even if it is just and equitable to grant an eviction
order that is not the end
of the enquiry, because any eviction order
must operate from a date fixed by the court and that date must be one
that is just and
equitable.
[15]
In
the founding affidavit the applicant asserts that the first
respondent is possessed of the means to secure alternative
accommodation.
The first respondent addresses this allegation, along
with several other allegations, with an omnibus denial providing no
factual
basis for the denial of the means to secure alternative
accommodation. The first respondent addresses the position of the
tenants
with a similar general assertion that they are “low
income earners or in receipt of government grants” and
therefore
not in a financial position to “afford other similar
accommodation”. This allegation is not supported by affidavits
filed by the tenants. In seeking to address this deficiency the first
respondent filed a supplementary affidavit to which were
attached
confirmatory affidavits filed by the tenants. Mr Mullins, on behalf
of the applicant, did not object thereto, arguing
instead that the
supplementary affidavit does not alter the fact that the first
respondent is capable of obtaining alternative
accommodation, as are
the tenants.
[16]
In
this latter supplementary affidavit the first respondent proceeds
also to rely on the fact that he is now experiencing health
problems
which impact upon his own capacity to earn an income. It should be
mentioned that he stated in his answering affidavit
that his income
derives from his missionary work in the form of donations that he
receives as well as the rental income earned
from the rentals. In my
view, the health considerations now raised do not, for the purposes
of the first stage of the enquiry support
a finding that the first
respondent will be unable to find alternative suitable accommodation
and accordingly that the granting
of an eviction order will not be
just and equitable.
[17]
The
same is true of the tenants. In the supplementary affidavit the first
respondent provides details of the tenants and their circumstances.
This indicates that seven of the ten tenants are employed either on a
full-time or part-time basis. Two others receive grants and
only one
is unemployed. Notwithstanding that the tenants have themselves
deposed to confirmatory affidavits, no details of their
earning
capacity or lack thereof is provided. Furthermore, no allegations are
made by any of the tenants that they will be unable,
for reasons of
financial constraint, to find alternative accommodation, or that
their circumstances render them vulnerable in the
event of the
eviction order being granted. To the contrary, the first respondent
states that he ‘assumes’ that the
tenants will be in the
same position as him in regard to the impact of the eviction order.
[18]
I
am of course mindful that the onus rests upon the applicant to
satisfy the court that the granting of the order will be just and
equitable. The applicant makes the allegation that the first
respondent will be able to secure alternative accommodation. This
is
met by a bald denial in circumstances in which the first respondent
can have been expected to provide appropriate information
relating to
his circumstances. The first respondent also seeks to suggest that
the tenants who occupy through him cannot afford
alternative
accommodation yet puts up no facts to support such contention even
when the tenants each depose to affidavits.
[19]
In
my view, the facts adduced in evidence to contradict the allegations
of the applicant do not indicate a real or substantial impediment
to
finding alternative accommodation such as would persuade this court
not to grant an order of eviction. There is, it must be
emphasised,
no defence raised by the first respondent to the granting of an
eviction order. In these circumstances the assertion
of the property
right by the applicant assumes greater significance.
[20]
It
follows that I am satisfied that the requirements of s 4 have been
met. Accordingly, what remains to be determined, in terms
of s 4 (8),
is a just and equitable date upon which the first respondent and the
tenants must vacate the property. As has been
indicated, this also
requires consideration of the length of occupation and the
availability of alternative accommodation or the
means to acquire
same.
[21]
Mr
Lamprechts argued that a period of six months would be appropriate
given the circumstances of the tenants and the period for
which they
have occupied the property. Mr Mullins, for the applicant, argued
that a period of three months would be reasonable
in the
circumstances.
[22]
The
facts set out above indicate that the first respondent has been in
occupation of the property for several years. In the case
of the
tenants their occupancy varies from a period of two months to three
years. I shall accept that in the case of some of the
tenants they
have been in occupation for a relatively lengthy period and that they
should therefore be afforded a reasonably lengthy
period within which
to make alternative arrangements.
[23]
I
have already indicated that there is no real or substantial
impediment to the first respondent and the tenants finding
alternative
accommodation. The litigation, it should also be stated,
has been ongoing for more than 2 ½ years. Half of the tenants
have
only gained occupation whilst the litigation was being
conducted.
[24]
As
already indicated the first respondent is not an indigent person who
would be vulnerable to homelessness in the event of an eviction.
Although the allegation is made that the tenants are low income
earners the facts put up by the first respondent indicate that
most
of them are employed or receive an income. According to the first
respondent he receives approximately R5000 per month from
the tenants
by way of rental. It is clear from allegations made by the applicant
in her replying affidavit, dealing with the first
respondent’s
answer, that the first respondent set about conversion of the
property to make additional space for tenants
as part of what he
considered to be “a profitable business”. This reflects
both on the nature of the first respondent’s
occupation and use
of the property as well as the particular circumstances of the
tenants.
[25]
Having
regard to all of these facts and the relevant circumstances, I am
satisfied that it will be just and equitable to both parties
to allow
a period of three months for the first respondent and his tenants to
vacate the property.
[26]
In
the result I make the following order:
1.
The
First Respondent and any person who occupies Erf [...], Cotswold,
Port Elizabeth situate at [...] K. Street, Cotswold, Port
Elizabeth
(hereinafter ‘the property’) through the First Respondent
is ordered to vacate the property on or before
30 May 2018;
2.
In
the event that the First Respondent and / or any person who occupies
the property through the First Respondent fails or refuses
to vacate
the property on or before the aforestated date the Sheriff of this
Court shall be authorised to evict the said person
/ persons from the
property and, where necessary, to do so with the assistance of the
South African Police Service;
3.
The
First Respondent is ordered to pay the costs of the application.
__________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Mr.
N.J. Mullins SC
Instructed
by Gregory Clark Attorneys
For
the First Respondent
Mr.
I. Lamprechts
Instructed
by Chris Harding Attorneys