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[2023] ZAFSHC 289
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Virginia Engineering Services (Pty) Ltd v De Lange and Others (993/2023) [2023] ZAFSHC 289 (12 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 993/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
VIRGINIA
ENGINEERING SERVICES (PTY) LTD
Applicant
(Registration
number: 195[…])
and
JAN
DE LANGE
First
Respondent
ALL
UNLAWFUL OCCUPANTS OF THE
Second
Respondent
IMMOVABLE
PROPERTY KNOWN AS
ERF
4[….] EXTENSION […], VIRGINIA,
ALSO
KNOWN AS […] A[…] STREET,
VIRGINIA
MATJHABENG
LOCAL MUNICIPALITY
Third
Respondent
CORAM:
P R CRONJé,
AJ
HEARD
ON:
1 JUNE
2023
DELIVERED
ON:
12 JUNE 2023
JUDGMENT
BY:
P R CRONJé,
AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 14h00 on 12 June 2023.
I
INTRODUCTION
[1]
The Applicant brought an application to have the First Respondent
and/or all other unlawful occupants
of the immovable property known
as Erf 4[…], Extension […], Virginia, also known as […]
A[…] Street,
Virginia, evicted in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
(PIE). Only
the First Respondent opposes the application.
[2]
The Applicant purchased the property from Cementation Mining Limited
on 21 January 2021, and the
property was registered in its name on 30
August 2022.
[3]
The Applicant purchased the property to erect factories on it in
order to expand its business
and to generate income.
[4]
The First Respondent, during 2021, registered a caveat against the
Title Deed of Erf 4[…]
and 4[…] which made it
impossible then for the Applicant to have the property registered in
its name. On 12 October 2022,
the Applicant dispatched a letter to
the attorneys who at that stage acted for the First Respondent
wherein the First Respondent
was granted until 30 November 2022 to
vacate the property.
[5]
The Applicant, without prejudice to its rights, offered the First
Respondent an opportunity to
remove all improvements and assets
before 30 November 2022, and if not, the concession can no longer be
relied upon.
[6]
The First Respondent brought an application against his eviction in
2022.
II
PROFILE OF THE FIRST RESPONDENT
[7]
He is a 70-year-old disabled person who has been in occupation of the
property for 25 years. Although
the Applicant disputes it as hearsay,
a perusal of the medical documentation of the First Respondent shows
that he sustained an
injury to his right hand and that there may be
loss of functionality and movement in the fingers. There is also
limited wrist movement.
Upon my enquiry it was established that he
was a dependent member on the Government Employee Medical Scheme.
[8]
The First Respondent’s is a businessman, but failed to state
his income, assets and liabilities.
He relies on Section 4(6) of PIE
for protection as an elderly and disabled person, also stating that
he has been in occupation
for more than six (6) months and it thus
has to be determined whether alternative accommodation can be made
available or can reasonably
be made available by the municipality or
another organ of state. He states that if an order of eviction is
granted he will be homeless.
He does not state what pertinent steps
he took to secure alternative accommodation, merely stating that he
is yet to find such
accommodation.
[9]
There is no report by the municipality.
III
ARGUMENTS
[10]
During argument Mr Sander submitted that the Applicant is well aware
that he has no title to the property
and a balance has to be struck
between sections 25 and 26 of the Constitution. The First
Respondent did not inform the Court
that he does not have alternative
accommodation and he submits that the First Respondent be given sixty
(60) to ninety (90) days
to vacate the property. He submits
that it is not necessary that the Municipality file a report as it is
a single occupant.
I could not find such a limitation in the Act, nor
in case law. He submits that there were many occupants
in the matter of
Occupiers
of erven 87 & 88 Berea v De Wet NO and others
[1]
(Berea)
.
He asked for costs in the event that the Court grants the eviction
order.
[11]
Ms Van der Sandt, for the First Respondent, also referred to
Berea
.
There were 400 appellants. Some of the applicants had resided at the
property for periods of up to 26 years. Most were low income
earners
or unemployed. A person wishing to develop the property purchased it
from the liquidators. In that matter, the municipality
was not a
party and the Court granted orders to that effect.
[12]
In
Berea
the Constitutional Court held:
“
[61]
It follows that where there is a risk that homelessness may result,
the availability of alternative accommodation
becomes a relevant
circumstance that must be taken into account. A court will not
be able to decide the justice and equity
of an eviction without
hearing from the local authority upon which a duty to provide
temporary emergency accommodation
may rest. In such an instance the local authority is a necessary
party to the proceedings. Accordingly, where there is a risk of
homelessness, the local authority must be joined.
[62] On
the facts, it is apparent that there is a risk of homelessness
resulting from the granting of the eviction order.
The risk of
homelessness triggered the City's duty to provide
temporary
emergency accommodation
.” [my emphasis]
[13]
The facts in this matter differ from
Berea
.
The First Respondent has known since 2021 that his occupation is
challenged. In 2022 he brought an application to stay his eviction.
He has had ample time to make alternative arrangements. It cannot be
expected from the Applicant to accommodate his business. I
know of no
provision or precedent where the Courts took business interests into
consideration. The protection of the Act is deprivation
of a home
[2]
,
dwelling or shelter.
[3]
Each
matter has to be decided on its own facts.
[4]
[14]
She also referred to
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and another
[5]
.
In
that matter the Court, notwithstanding that there was no certainty
that alternative accommodation was available at date of the
order,
granted an eviction order affording the appellants four months’
grace.
[15] Subsection
4(8) of PIE reads as follows:
“
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine— (a)
a
just and equitable date on which the unlawful occupier must
vacate
the land under the
circumstances; and (b) the date on which an eviction order may be
carried out if the unlawful occupier
has not vacated the land on the
date contemplated in paragraph (a).’”
[16]
Ms Van der Sandt submits that in the event that the Court does order
eviction, it has to be considered that
he is an elderly man. She
submitted that a period between six (6) to twelve (12) months would
be fair in the circumstances.
IV
CONCLUSION
[17]
I conclude that it would be just and equitable that the First
Respondent be evicted.
[18]
The First Respondent had ample time to consider his position and
alternatives. He is a businessman. He has
been in occupation for over
25 years but has for approximately a year and a half known that his
occupation is terminated. I deem
4 months’ notice under these
circumstances to be fair and reasonable.
V
COSTS
[19]
Given the personal circumstances of the First Respondent, his age,
disability and the long period that he
was in occupation and
comparing that the Applicant seeks commercial interests, I exercise
my discretion in ordering both parties
to pay their own costs.
[20]
The following order is made:
ORDER
1.
The First Respondent is evicted from the immovable property situate
at Erf 4[…], Extension
[…], Virginia, also known as […]
A[…] Street, Virginia ('the property').
2.
The First Respondent is ordered to vacate the property together with
all improvements and
assets by no later than 14 October 2023, failing
which the Sheriff of the court is authorised to carry out the
eviction order.
3.
Each party to pay its own costs.
P
R CRONJé, AJ
On
behalf of the Applicant:
Adv
A Sander
Instructed
by:
Kruger
Venter Attorneys
BLOEMFONTEIN
On
behalf of the First Respondent:
Adv.
N Van der Sandt
Instructed
by:
DW
Attorneys
BLOEMFONTEIN
[1]
[2017]
JOL 38039 (CC)
[2]
Preamble
to PIE
[3]
Section
1 of PIE - definition of building or structure
[4]
Port
Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC
7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October
2004)
[5]
[2011]
3 All SA 471
(SCA);
[2011] JOL 26972
(SCA);
[2011] ZASCA
47
(SCA)