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[2023] ZAECBHC 2
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MEC, Department of Public Works Eastern Cape Province v Moleshe (751/2020) [2023] ZAECBHC 2 (31 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 751/2020
In
the matter between:
MEC,
DEPARTMENT OF PUBLIC WORKS
EASTERN
CAPE
PROVINCE
Applicant
and
BONIWE
V
MOLESHE
Respondent
JUDGMENT
LAING
J
[1]
This is an application for the eviction of the respondent from
several
adjacent erven situated in Alice, Eastern Cape.
The
applicant’s case
[2]
The applicant avers that the Department of Public Works and
Infrastructure
(‘DPWI’) is the owner of properties that
it leases to various individuals and corporate entities. He asserts
that investigations
have revealed that many tenants continue to
occupy state properties without paying rental or where lease
agreements have expired.
This has led to the implementation of a
project called ‘Operation Bring Back’. The applicant,
consequently, has instituted
proceedings to ensure the proper use and
management of properties such as those that form the subject of this
application.
[3]
On 14 January 2015, the DPWI concluded a lease agreement with the
respondent
for erven 354, 355, 356 and 357, Alice. The applicant
pleads that the salient terms thereof were,
inter alia
, that
the lease commenced on 1 March 2015 and endured on a month-to-month
basis, the properties were to be used for office accommodation,
and
the respondent was required to pay a monthly rental of R5,531.
[4]
The respondent breached the agreement, contends the applicant, by
failing
to pay rental. An amount of R119,242 is outstanding. In
addition, the respondent has failed to pay for municipal services.
[5]
On 12 November 2019, the applicant notified the respondent of the
termination
of the agreement and requested her to vacate the
properties. The applicant’s attorneys sent a similar notice to
that effect
on 4 March 2020. Out of caution, avers the applicant, a
notice was also placed in the
Daily Dispatch
newspaper on 3
June 2020, addressed to the tenants specified therein, including the
respondent.
[6]
Notwithstanding the above steps, the respondent remains in
occupation.
The applicant seeks an order declaring that the agreement
has been terminated and directing the respondent to vacate the
properties.
The
respondent’s defence
[7]
The respondent avers that she has been leasing erven 354, 355, 356
and
357 since 1998. Upon the termination of the lease agreement, she
vacated erven 354, 355 and 356, but continued to occupy erf 357.
She
operates a petrol station thereon.
[8]
In 2018, alleges the respondent, she entered into an agreement for
the
lease of erf 357. The terms thereof were,
inter alia
, that
monthly rental would be payable in the sum of R8,000. She continues
to pay such amount. Despite requests for a copy of the
agreement,
says the respondent, none has been provided. Nevertheless, the lease
of erf 357 remains extant.
[9]
The respondent denies having received the notices dated 12 November
2019
and 4 March 2020, as the applicant has alleged. She denies
having seen the notice in the newspaper on 3 June 2020. She is
adamant
that she had been paying her monthly rental at the time and
points out that the applicant has failed to furnish her with a proper
reconciliation statement for her account, indicating what might have
been outstanding. The statement attached to the founding papers
made
little sense at all.
[10]
Consequently, the respondent disputes the allegation that she owes an
amount of R119,242
to the applicant. She also disputes that she has
not been paying for municipal services.
Issues
to be decided
[11]
The respondent has raised several points
in limine
. The first
pertains to non-compliance with rule 41A of the Uniform Rules of
Court. The second and third pertain to issues that
relate to the
merits of the application and are best decided within that context.
[12]
Furthermore, the respondent has argued that there is a dispute of
fact and that the matter
must be determined in accordance with the
applicable case law. This will need to be investigated.
[13]
If a dispute of fact does not arise, then the court must decide,
overall: (a) whether the
lease agreement has been terminated; and (b)
whether there is a basis upon which to evict the respondent.
Points
in limine
[14]
The
provisions of rule 41A facilitate the expeditious and cost-effective
resolution of a dispute between litigants.
[1]
Both parties are required to indicate whether they agree to or oppose
the referral of the dispute to mediation. In
Nomandela
and another v Nyandeni Local Municipality and others
,
[2]
the respondent objected to the applicant’s failure to have
complied with the rule, to which the court observed that the
respondent, too, had failed to comply. Majiki J held as follows:
‘…
it
is not to be underestimated that the rules are meant to be complied
with. However, it has been stated often by the courts that
the rules
are meant for the court, and not the other way round. It is ideal
that in the near future litigants should comply with
this rule. That
would ease the congested court rolls and achieve less costly and
speedier resolution of disputes. However, in my
view, the present
application raises important principles relating to compliance with
departmental regulations, the respondent’s
own policies and
alleged infringement of constitutional rights to dignity and to
lawful and reasonable procedural administration.
In the light of
this, I am of the view that, in the interests of justice, those
issues call for immediate resolution, than to remove
the matter from
the roll in order for the litigants to pronounce on whether they
would agree or oppose mediation.’
[3]
[15]
The facts were similar to those in the present matter insofar as they
concerned the parties’
non-compliance with rule 41A. Here, the
respondent has also failed to deliver the notice envisaged under
sub-rule (2).
[16]
The appropriate time for the referral of a dispute to mediation is at
the very beginning,
at the onset of proceedings, before the parties
have incurred the costs and delays of litigation. Nevertheless, the
rule permits
the parties to refer the dispute at any stage before
judgment. This is qualified to the extent that the leave of the court
is required
in circumstances where the trial or hearing of an opposed
application has already commenced.
[17]
For a party
to rely successfully on the other party’s failure to have
delivered a rule 41A(2) notice,
[4]
he or she would have to demonstrate that such non-compliance has
created prejudice. It would be necessary to show that non-delivery
of
the notice has hampered the preparation and conduct of his or her
defence, or that it has caused harm in the wider sense. The
court
would need to be satisfied, overall, that it would be in the
interests of justice for the case to be removed from the roll.
[18]
In the present matter, there is no indication at all from the
answering affidavit that
prejudice was created. Moreover, it was
always an option for the respondent to have filed a notice in terms
of rule 30A, which
is intended for non-compliance. In circumstances
where the respondent has failed to avail herself of the relevant
procedural remedy,
has failed to plead the nature and extent of any
prejudice, and has herself failed to deliver her own rule 41A(2)
notice, there
was no reason for the court to have removed the matter
from the roll to permit the parties an opportunity to consider the
referral
of the matter to mediation. The applicant has, in any event,
never raised such a possibility.
[19]
Consequently, the court is not persuaded that the point
in limine
has merit. The remaining points pertain to the alleged non-receipt of
the notices of termination and to whether the lease agreement
was
cancelled or whether it expired by effluxion of time. These will be
considered when dealing with the application as a whole.
[20]
Before doing so, it is necessary to deal with the respondent’s
assertions in relation
to the alleged dispute of fact.
Dispute
of fact
[21]
As a
starting point, it may be useful to set out the ‘principal
ways’ in which a dispute of fact arises, as discussed
in
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
,
[5]
.
where Murray AJP remarked as follows:
‘…
The
clearest instance is, of course, (a) when the respondent denies all
the material allegations made by the various deponents on
the
applicant’s behalf, and produces or will produce, positive
evidence by deponents or witnesses to the contrary. He may
have
witnesses who are not presently available or who, though adverse to
making an affidavit, would give evidence
viva
voce
if
subpoenaed. There are however other cases to consider. The respondent
may (b) admit the applicant’s affidavit evidence
but allege
other facts which the applicant disputes. Or (c) he may concede that
he has no knowledge of the main facts stated by
the applicant, but
may deny them, putting applicant to the proof and himself giving or
proposing to give evidence to show that
the applicant and his
deponents are biased and untruthful or otherwise unreliable, and that
certain facts upon which applicant
and his deponents rely to prove
the main facts are untrue. The absence of any positive evidence
possessed by a respondent directly
contradicting applicant’s
main allegations does not render a case such as this free of a real
dispute of fact. Or (d) he
may state that he can lead no evidence
himself or by others to dispute the truth of applicant’s
statements, which are peculiarly
within applicant’s knowledge,
but he puts applicant to the proof thereof by oral evidence subject
to cross-examination.’
[6]
[22]
In the present matter, the respondent avers, essentially, that she
has vacated erven 354,
355 and 356 but remains in occupation of erf
357. She avers, too, that the only surviving lease agreement of
relevance to the dispute
is that concluded between the parties for
erf 357 in 2018. Moreover, she avers that she has been paying monthly
rental and municipal
service charges, and never received notification
from the applicant or his attorneys about the termination of the
agreement.
[23]
There are difficulties attached to the respondent’s averments.
In relation to erven
354, 355 and 356, the respondent has not
indicated exactly when she vacated the land. There is nothing to
substantiate her allegation.
It would have assisted had she provided
details of the current occupiers, accompanied by confirmatory
affidavits or photographs
of the premises or some other form of
documentary evidence such as a copy of a utility bill addressed to
the current occupiers.
The applicant’s copy of the lease
agreement clearly stipulates that the subject thereof consisted of
erven 354, 355, 356
and 357. The respondent has simply failed to
adduce any evidence in support of her assertion that she no longer
occupies the land
in question.
[24]
Turning to the agreement for erf 357, the respondent has not provided
any information about
where and when it was concluded, or who
represented the DPWI at the time. She has said very little about the
terms of the agreement,
save to say that the monthly rental was
R8,000 with effect from an unknown date in April 2019. She pleads
that she has unsuccessfully
attempted to obtain a copy from the
offices of the DPWI but has not supplied details about where and when
such attempts were made,
the identities of any officials with whom
she may have engaged, or copies of any written requests previously
sent.
[25]
Vague and
insubstantial averments are not sufficient to give rise to a genuine
dispute of fact.
[7]
The
respondent’s allegations regarding her vacation of erven 354,
355 and 356 and the conclusion of a new agreement for erf
357 are
simply too sketchy, imprecise, and tenuous to persuade the court that
it cannot reach a decision on the facts, founded
on a consideration
of the balance of probabilities, without referring the matter for the
earing of oral evidence in terms of rule
6(5)(g).
[8]
[26]
The respondent’s remaining allegations concern the payment of
monthly rental and
municipal service charges, and whether she
received notification from the applicant or his attorneys about the
termination of the
agreement. These may well give rise to a genuine
dispute of fact. However, for the reasons that follow, it is not
necessary for
the court to make any findings in this regard.
Termination
of lease agreement
[27]
The applicant has attached a copy of the lease agreement to his
founding affidavit. Under
the interpretative provisions of clause 2,
the lease period is unhelpfully defined as ‘the period for
which this lease subsists,
including any period for which it is
renewed’. In relation to monthly rental, the parties
contemplated payment of R5,531
‘for the first year of the
lease’ after which it would escalate by ten percent (10%) per
annum. The duration of the
lease, however, is stipulated as being
‘month-month’.
[28]
The contents of clause 20, dealing with the provisions of the
Consumer Protection Act 68 of 2008
, assist (and confuse) to some
extent. In terms of clause 20.2, the parties agreed that the lessor
may cancel the agreement in the
event of the lessee’s failure
to remedy a material breach, provided that prior notice was given.
Furthermore, the lessor
was required to provide the lessee with not
more than 80 and not less than 40 business days’ prior notice
of the impending
expiry date of the agreement. Interestingly,
however, clause 20.3 provides that:
‘
[u]pon
expiry of this Lease at the end of its term, it will automatically
continue on a month to month basis subject to any material
changes of
which the Lessor has given notice in terms of clause 20.2.2.1 unless
the Lessee expressly directs the Lessor to terminate
the Agreement of
Lease on the expiry date or agrees to a renewal for a further fixed
term.’
[29]
The right of renewal is addressed in terms of clause 21. The lessee
was entitled to renew
the lease, subject to the conditions
stipulated.
[30]
The provisions of the agreement are in many ways ambiguous and
contradictory. It is apparent,
nevertheless, that the parties
envisaged that the lease would endure for at least a year (at a
monthly rental of R5,531), after
which it would continue to endure
from month to month, subject to termination by either party.
[31]
The respondent has opposed the application on the basis that,
inter
alia
, she had not been in breach of her obligation to pay rental
and municipal charges. This did not, however, prevent the applicant
from simply terminating the agreement at his own election, provided
that the relevant notice periods were met. The applicant’s
letter of 12 November 2019 made it abundantly clear that the
agreement would terminate in 60 days’ time. Admittedly, as the
respondent has argued, the letter sent by the applicant’s
attorneys on 4 March 2020 seems to have undermined the earlier
correspondence since it created the impression that the agreement was
still extant. Notwithstanding, it cannot be denied that the
applicant
intended to terminate the agreement, whether because of a material
breach or otherwise. The notice placed in the
Daily Dispatch
newspaper on 3 June 2020 places this beyond doubt.
[32]
In
the absence of any notice provisions or where the notice period is
unclear, it is a well-established principle that one month’s
notice is adequate where a contract operates on a month-to-month
basis.
[9]
The combination of notices sent or advertised by the applicant were
sufficient, either individually or combined, to convey the
applicant’s intention to terminate the agreement.
[33]
The respondent denies that she received the
correspondence of 19 November 2019 and 4 March 2020. She also denies
that she saw the
notice in the newspaper. The applicant has, however,
by way of the present application, demonstrated unequivocally that
the respondent’s
right to occupy erven 354, 355, 356 and 357
has been terminated. There would be no point in expecting or
directing the applicant
to deliver a fresh notice of termination at
this stage.
[34]
Similar
facts arose in the matter of
Taylor
v Hogg
,
[10]
where Plasket J held that
‘
[w]hether
a lease was in place or the relationship between Taylor and Hogg was
premised on a
precarium
,
the result is the same: Hogg’s right to reside in the premises
has been revoked by Taylor. As he and his family no longer
have the
consent of Taylor to live in his premises, they are unlawful
occupiers for purposes of the PIE and are liable to eviction.’
[11]
[35]
The court has little difficulty in finding
that the respondent has terminated the agreement. The respondent’s
continued occupation
of the land amounts to a classic example of
‘holding over’.
Eviction
of respondent
[36]
If the applicant has terminated the agreement, as this court
has found, then there is no longer a legal basis upon which the
respondent
can remain in occupation of the land. She can be evicted.
[37]
The provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) do not
apply. It is common cause that the land is used for commercial
purposes. The respondent has confirmed that she operates a petrol
station on the site and makes no reliance on PIE in her opposition to
the application.
[38]
It is necessary, at this stage, to discuss the relief to be
granted.
Relief
and order
[39]
The court has already dealt with the respondent’s main
point
in limine
and decided that there is no merit thereto.
The remaining points fell under discussion when considering whether
the agreement had
been terminated.
[40]
No real dispute of fact arises from the papers, there is no
need to refer the matter for the hearing of oral evidence. Such
differences
as there are in relation to the payment of monthly rental
and municipal service charges, and the receipt or otherwise of the
notices,
have no impact on the findings made regarding the
termination of the agreement and the right of the applicant to evict
the respondent.
[41]
Whereas the court has indeed found that the applicant is
entitled to the relief that he seeks, it is evident from the papers
that
his staff can be criticised for having failed to manage the
lease properly. The respondent’s assertion that she was not in
arrears with the payment of either rental or municipal service
charges was never refuted by the applicant in reply. The applicant
also conceded that the invoice sent to ‘N Moleshe’,
attached to the founding affidavit, was a mistake. The court has
been
left with the unfortunate impression that the applicant’s staff
have simply failed to manage properly the public assets
in question
(erven 354, 355, 356 and 357) but it is hoped that the shortcomings
may yet be remedied by the effective implementation
of the project
described earlier in the judgment.
[42]
The applicant admitted, in argument, that sufficient time
would need to be allowed to the respondent to wind down operations at
the petrol station and to vacate the land. This is reflected in the
order to follow.
[43]
In the absence of any sign that the respondent would refuse to
cooperate with the applicant in the event of her eviction, the court
sees no reason why it would be necessary to direct the South African
Police Services (‘SAPS’) to assist in the exercise.
The
involvement of the sheriff will suffice, failing which there are
further remedies available to the applicant to facilitate
the
enforcement of the order.
[44]
Finally, there is no reason why the usual rule should not be
applied in relation to costs. The applicant is entitled to payment
thereof. The matter is not of such a nature, however, as to justify
his recovery of the costs of two counsel.
[45]
The following order is made:
(a)
the lease agreement concluded by the parties for erven 354, 355, 356
and
357 Alice (‘the properties’), is declared to have
been terminated;
(b)
the applicant is entitled to evict the respondent from the
properties;
(c)
the respondent and her employees or staff are directed to vacate the
properties
within a period of 90 days, calculated from the date of
this order;
(d)
the sheriff is hereby authorised to evict the respondent and her
employees
or staff if they fail or refuse to vacate the properties
within the period described above; and
(e)
the respondent is directed to pay the applicant’s costs of the
application.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the applicant: Adv Mduba, instructed by
Mbaleni & Associates, East London.
For
the respondent: No appearance.
Date
of hearing:
13 October 2022.
Date
of delivery of judgment: 31
January 2023
[1]
See
Monkwe
Dietetics Services (Pty) Ltd and others v MEC, Department of
Education and another
(4663/2021) [2022] ZALMPPHC 12 (22 February 2022), at paragraph [6].
[2]
2021 (5) SA 619 (ECM).
[3]
At
paragraph [10].
[4]
The
respondent has merely objected to the applicant’s
non-compliance with rule 41A. However, it is evident from the
underlying
correspondence between the attorneys that non-service of
the notice contemplated under sub-rule (2) is the issue in question.
[5]
1949
(3) SA 1155
(T).
[6]
At
1163.
[7]
See
King
William’s Town Transitional Local Council v Border Alliance
Taxi Association (BATA)
2002 (4) SA 152
(E), 156I-J.
[8]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), at 634H-635B. Furthermore, see the discussion
about disputes of fact on the papers and the possible referral
thereof for
the hearing of oral evidence in Van Loggerenberg,
Erasmus:
Superior Court Practice
(RS 15, 2020), at D1-72-6.
[9]
See
Fulton
v Nunn
1904 TS 123
;
Tiopaizi
v Bulawayo Municipality
1923 AD 317.
More recently, in this division, see
MEC
for Department of Public Works and Infrastructure, Eastern Cape v
Jane Margaret Fourie and another
(Eastern Cape Local Division, Mthatha, Case no. EL 1297/2020, 16
September 2021, unreported), at paragraph [34];
MEC,
Department of Public Works and Infrastructure, Eastern Cape Province
v Pretorius and another
(CA 09/2022) [2022] ZAECMHC 17 (26 July 2022), at paragraph [43].
[10]
(CA
317/17) [2018] ZAECGHC 64 (10 August 2018).
[11]
At
paragraph [10].