Brief Summary

Eviction — Unlawful occupation — Application for eviction of employee from hospital accommodation — Second respondent occupied duplex without valid lease for over nine years after initial six-month agreement expired — Applicant entitled to evict based on non-compliance with housing policy and unpaid rental — Court finds eviction just and equitable, directing second respondent to vacate property by specified date.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application for eviction brought in the KwaZulu-Natal Division of the High Court, Durban, under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The applicant was the Member of the Executive Council for Health for the Province of KwaZulu-Natal (the responsible governmental authority in relation to the hospital housing). The principal respondent for purposes of the eviction relief was the second respondent, Ms Phindile Sibiya, an employee of the applicant stationed at Inkosi Albert Luthuli Central Hospital. The third respondent, eThekwini Municipality, was cited in the proceedings (consistent with PIE eviction practice), but no substantive dispute involving the municipality was determined in the judgment.

The matter initially included a first respondent, Ms Zanele Theodosia Dlamini, but she had retired and vacated the relevant accommodation by the time the application was heard. The court accordingly did not determine eviction relief against her and adjourned the relief claimed against her sine die.

The judgment was delivered ex tempore on 15 August 2023, the same day the matter was heard. The dispute concerned the continued occupation of government-owned employee housing at the hospital’s residential village, specifically a duplex unit, after the expiry of a limited permission to occupy, and whether eviction was just and equitable in terms of section 4(7) of PIE.

Material Facts

The hospital and its residential village are owned by the government. The hospital operates an employee housing policy administered through an employee housing committee, regulating various forms of official accommodation. The court accepted as material that duplex units are generally intended for short-term use, primarily for newly transferred staff and visiting exchange doctors, although they may sometimes be allocated to staff members for limited periods. Where a duplex is allocated, the policy sets a tariff of R1 500 per month, and the power to allocate such accommodation rests with the hospital’s senior management team.

The second respondent first resided in the hospital residential village in August 2005, occupying an en-suite unit under a lease concluded on 1 August 2005. She remained in that accommodation for approximately eight years. In September 2013, she applied in writing to be accommodated in a duplex and motivated her request on social grounds. In doing so, she undertook to pay extra for the duplex and represented that the duplex accommodation would be temporary while she sought to acquire a safe place to purchase.

In October 2013, the second respondent was granted permission to occupy duplex HC for a period of six months, requiring her to vacate by 31 March 2014. No written lease for the duplex occupation was produced, and the court treated the arrangement as having been granted for the limited period stated. The second respondent did not vacate when that period expired and remained in occupation thereafter.

On 8 August 2015, the hospital wrote to the second respondent requiring her to vacate the duplex by 31 October 2015. The letter further advised that her prior en-suite unit was available for her to re-occupy, meaning that vacating the duplex would not, on the applicant’s case, render her without accommodation within the hospital residential village. The second respondent nonetheless refused to vacate and continued to reside in duplex HC up to the hearing of the application.

While occupying the duplex, the second respondent did not pay the full tariff of R1 500 per month. The court accepted that, due to an administrative anomaly, no more than R900 per month could be deducted from an employee’s salary for accommodation, leaving a monthly shortfall of approximately R600. As at July 2019, the shortfall allegedly amounted to R42 000, and the court accepted that it would have increased thereafter. The second respondent also received a monthly housing allowance of R1 336.32, and her salary advice reflected monthly earnings in excess of R35 000.

The second respondent’s answering material did not meaningfully dispute the applicant’s factual allegations relevant to her right to occupy. The court characterised her response as failing to address the allegations in the founding affidavit and as providing social circumstances without setting out a legal basis for continued occupation long after the six-month period had expired. The applicant’s continuing offer of the former en-suite unit as alternative accommodation within the same residential village was treated as a material circumstance.

Legal Issues

The central legal questions were whether the second respondent’s occupation of duplex HC was unlawful for purposes of PIE (given the expiry of the limited period of permitted occupation), and whether an eviction order should be granted under section 4(7) of PIE, which requires the court to be satisfied that eviction is just and equitable after considering all relevant circumstances.

The dispute primarily concerned the application of law to largely uncontested facts, together with an evaluative inquiry mandated by PIE. The court was required to conduct the two-stage inquiry described in the case law: first, whether eviction should be ordered as being just and equitable, and second, what justice and equity required concerning the date and conditions of eviction (including whether eviction would cause homelessness or require relocation assistance).

Court’s Reasoning

The court applied section 4(7) of PIE, which governs eviction where an unlawful occupier has occupied the land for more than six months when proceedings are initiated, and which expressly requires consideration of all relevant circumstances, including the availability of alternative land or accommodation and the rights and needs of vulnerable occupiers.

In determining the proper approach, the court relied on City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA). From that authority, the court adopted the framework that section 4(7) triggers a two-stage enquiry. The first stage requires deciding whether it is just and equitable to grant eviction at all, taking into account relevant factors such as alternative accommodation and weighing those against the owner’s constitutionally protected property interests (as referenced in the quoted passage). Once satisfied there is no defence and eviction is just and equitable, the court must grant an eviction order. The second stage requires consideration of what justice and equity demand regarding the effective date of eviction and any conditions to mitigate hardship, including whether the occupier will be rendered homeless or needs emergency assistance.

The court also relied on Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) for the principle that, unless the occupier discloses circumstances relevant to resisting eviction, the owner will in principle be entitled to an eviction order, because such circumstances are typically within the exclusive knowledge of the occupier and the owner cannot be expected to anticipate and negate them.

Applying those principles, the court found that the second respondent had no existing right to remain in occupation of duplex HC. The court emphasised that the second respondent knew from the outset that her occupation was for a limited period and that she had initially indicated that she would seek other accommodation. Her continued occupation for almost a decade after expiry of the six-month period was treated as inconsistent with any legitimate basis for continued use.

The court accepted that the applicant bore some responsibility for the situation through poor administration of its housing system and a failure to take timely steps to enforce compliance with occupation arrangements. However, the court considered that this did not deprive the applicant of its entitlement to determine who occupies the duplexes and for how long, especially given the stated institutional purpose of duplex accommodation, including providing housing for visiting doctors and staff necessary for the hospital’s functioning. The court treated the hospital’s operational needs and its role in providing medical services to the broader community as relevant context supporting the need for control over scarce staff accommodation.

On the equity enquiry, the court considered that immediate alternative accommodation was available to the second respondent in the form of the en-suite unit she previously occupied, and that the applicant continued to offer that option. This was treated as a significant factor in concluding that eviction would be just and equitable, because it reduced the risk that eviction would result in homelessness. The court therefore concluded that an eviction order should be granted and that it was reasonable to afford a limited period for the second respondent to plan her move, with the final order fixing a date by which she was required to vacate.

Outcome and Relief

The court adjourned sine die the relief claimed against the first respondent, in light of her retirement and the fact that she had vacated the relevant premises.

The court granted an eviction order against the second respondent and all persons claiming occupation through her, directing them to vacate duplex HC at the Inkosi Albert Luthuli Central Hospital residential village by 31 October 2023. The court further authorised the Sheriff or Deputy Sheriff to evict the second respondent and those occupying through her if she failed or refused to comply.

The court ordered that the second respondent pay the costs of the application.

Cases Cited

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA).

Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA).

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, section 4(7).

Constitution of the Republic of South Africa, 1996, section 25.

Constitution of the Republic of South Africa, 1996, section 26(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the second respondent’s continued occupation of the duplex unit after the expiry of the limited six-month period was not supported by any legal right, and that she had failed to place before the court facts capable of constituting a defence or materially affecting the just and equitable enquiry required by PIE.

The court held further that, having regard to the hospital’s housing policy context and the operational need for duplex accommodation (including for visiting medical personnel), and given that alternative accommodation within the hospital residential village was available to the second respondent in an en-suite unit, it was just and equitable to grant eviction under section 4(7) of PIE and to fix a date for implementation of the order.

LEGAL PRINCIPLES

Section 4(7) of PIE requires that where occupation has exceeded six months, eviction may be granted only if the court is satisfied that eviction is just and equitable, after considering all relevant circumstances, including the availability of alternative land or accommodation and the rights and needs of vulnerable persons.

The approach to section 4(7) involves a two-stage enquiry as articulated in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA). The court must first determine whether it is just and equitable to order eviction at all, and, if so, it must then determine what justice and equity require concerning the effective date of eviction and any conditions attached to the eviction order, taking account of the impact on the occupier and the risk of homelessness.

In eviction proceedings, the occupier bears a practical evidentiary responsibility to disclose circumstances relevant to the justice and equity enquiry that might justify refusal of eviction or affect its terms, because such circumstances are typically within the occupier’s exclusive knowledge. Absent such disclosure, an owner will in principle be entitled to an eviction order, as stated in Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA).

Member of the Executive Council for Health for the Province of KwaZulu-Natal v Dlamini and Others (D6815/19) [2023] ZAKZDHC 57 (15 August 2023)