Public Works & Infrastructure Bloemfontein v Dyonase and Another (2670/2021) [2022] ZAFSHC 27 (24 February 2022)

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[2022] ZAFSHC 27
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Public Works & Infrastructure Bloemfontein v Dyonase and Another (2670/2021) [2022] ZAFSHC 27 (24 February 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case no: 2670/2021
In the matter between:
PUBLIC
WORKS & INFRASTRUCTURE BLOEMFONTEIN
Applicant
and
MICHAEL PHAKAMISA
DYONASE
First Respondent
MOHOKARE LOCAL
MUNICIPALITY
Second Respondent
JUDGMENT
BY:
MTHIMUNYE
,
AJ
HEARD ON:
10
FEBRUARY 2022
DELIVERED ON:
24
FEBRUARY 2022
[1]
This is a two-pronged application by the National Department of
Public Works Bloemfontein
(the applicant) in terms of which it seeks
primarily an order terminating the Lease Agreement entered into by
and between itself
and the first respondent, and subsequently,
evicting the first respondent and all other persons occupying the
subject property.
[2]
The first respondent is Michael Phakamisa Dyonase, an adult male and
tenant
in occupation of the subject property in terms of the lease
agreement.
[3]
The second respondent is Mohokare Local Municipality, a metropolitan
municipality
as contemplated in the Constitution of the Republic of
South Africa, 1996 and the
Local Government: Municipal Structures
Act, 117 of 1998
as amended. No relief is sought against the second
respondent. It is cited herein only as an interested party in terms
of the provisions
of the Prevention of IIlegal Evictions Act from and
Unlawful Occupation of Land Act, 1998. The fact that the second
respondent is
the employer of the first respondent is of no
consequence to this application.
[4]
The applicant is the custodian and manager of all government owned
land
and buildings nationally including the subject matter property,
which is a residential property situated at 22 Committee Street,
Zastron. To avoid vandalism, dilapidation and unlawful occupation,
the applicant decided to lease this property out to the public.
To
this end, an advertisement for proposals was issued on 16 July 2019.
The only proposal received was from the first respondent
and it was
approved by the Applicant’s Regional Bid Adjudication Committee.
Subsequently a written lease agreement was entered
into by and
between the applicant and the first respondent for the period 01
September 2019 to 31 August 2024 (Five Years). Pursuant
to this, the
first respondent took occupation and remains in occupation.
[5]
The relevant and pertinent clauses of the lease agreement are the
following:
“
3.
PERIOD OF THE LEASE
3.1.
The period of the lease shall be for a fixed period of Five (5) years
commencing on 01 September 2019 and shall
terminate on 31 August 2024
subject to the provision [
sic
] of 3.2.
3.2.
If the Lessee intends to renew the lease he shall do so upon the
terms as agreed by the Parties provided he
applies for such renewal
in writing at least three months before the termination of this
Agreement. The Lessor shall not later than
thirty days after the
receipt of the application inform the Lessee in writing of the
outcome thereof. Should the application to renew
not be successful,
the lease shall expire at the date of termination.
…
19.
SALE OF PROPERTY
19.1.  The
Lessee agrees that the Lessor shall be entitled to dispose of the
property during this lease. Should the Lessor decide
to dispose of
the property during this lease, the lessor shall give a six months
termination notice and the lessee shall not be entitled
to claim for
damages or any other costs as a result of the termination of the
lease.
…
23.
DEFAULT BY THE LESSEE
23.1.  In the
event of the Lessee failing to comply with any of the provisions of
this Agreement, including the payment of rent,
the lessor shall give
written notice to the Lessor of the alleged breach of contract and of
the Lessor’s intention to cancel the
Agreement.
23.2.  Should
the Lessee still be in default twenty (20) days after the notice
referred to in 23.1, the Lessor shall be entitled
to:
23.2.2.
[
sic
] terminate the contract in writing and claim damages.
23.2.3.
evict the Lessee and claim damages
…
25.
WHOLE AGREEMENT
25.1
This is the entire agreement between the Parties.
25.2
Neither Party relies in entering into this agreement on any
warranties, representations, disclosures or expressions
of opinion
which have been incorporated into the Agreement as warranties or
undertakings.
25.3.  No
variations or consensual cancellation of the Agreement shall be of
any force or effect unless reduced to writing and
signed by both
Parties.
25.4.  No
amendment of any term or condition of this Agreement or any waiver of
any right herein shall be of any force or effect
unless reduced to
writing and signed by the duly authorised representatives of both
parties.”
[6]
On 19 October 2020, the applicant served a notice of termination to
the
first respondent giving the first respondent three (3) months’
notice to vacate the property. The reason cited for the termination
was that the applicant needed the property for official purposes.
[7]
It is noteworthy that the lease agreement contained no standalone
termination
clause. The only provisions for premature termination on
notice were in relation to the disposal of the property by the
applicant
(Clause 19) and where the first respondent is in default
(Clause 23). The applicant is also not asking for any rectification
of the
agreement.
[8]
It is also common cause that the first respondent is not in any form
of
default and as such the applicant could not rely on the default
clause for its termination; and further that the property was also
not being disposed of by the applicant. These are the only two
conditions upon which the applicant could prematurely terminate the
agreement on notice.
[9]
The applicant premises its entitlement to prematurely cancel this
agreement
on three grounds. Firstly, that the ‘New Lease Out
Submission’, a document appearing to be an internal memorandum by
the applicant’s
Deputy Director to the Regional Bid Adjudication
Committee contained, in paragraph 4(b)(iii) the following provision:
“
Lease term: Lease
term commencement date 1 September 2019 and ending on 31 August 2024
with a two (02) months termination notice period
notice [
sic
]
required from either party.”
[10]
This document was never annexed to the Lease Agreement that was
signed by both parties,
neither was this clause transposed into the
agreement. Counsel for the applicant argued that even though this was
not done, this
document was ‘made known’ to the first respondent
and the lease must be read together with this document. When asked
how it was
‘made known’, her explanation was that it formed part
of the approval documents that were submitted to the Bid Adjudication
Committee.
This assertion that this document was made known to the
first respondent and that it was to be read together with the lease
agreement
was however not made in the applicant’s founding
affidavit and Counsel for the respondent argued that it was never the
applicant’s
case that this document be read together with the lease
agreement.
[11]
The second premise, is that in terms of
Section 4(5)(c)
of the
Rental
Housing Act 50 of 1999
, which governs the written lease agreement, a
landlord has a right to terminate the lease agreement on grounds that
do not constitute
unfair practice
[1]
.
This section provides:
“
The landlord’s
rights against the tenant include his or her right to terminate the
lease in respect of rental housing property on
grounds that do not
constitute an unfair practice and are specified in the lease”.
[12]
The third ground relied upon by the applicant is the general
principle of law that entitles
the Lessor to cancel the lease on
‘reasonable notice’ in the event that the contract is silent on
the notice period
[2]
.
I will, in the following paragraphs deal with each of these grounds
separately.
[13]
In response to the applicant’s notice, the first respondent pointed
out that the
termination notice was defective and in breach of the
provisions of the lease agreement as it was not as a result of the
property
being disposed of, which in any event required a six months’
notice. In essence the first respondent refused to vacate the
property,
even after receiving subsequent communication from the
applicant on the basis that the lease remained valid and in force,
thus prompting
the applicant to bring this application.
[14]
The first respondent argues that the applicant’s actions amounted
to a unilateral
variation of the lease agreement. He asserts that the
contract was for a fixed term and will only terminate on 31 August
2024, and
that it did not contain a cancellation clause save in the
event of disposal or breach, which it is common cause that they are
not
at play
in casu
. He contends that applicant does not have
a right to cancel and both the cancellation and the eviction
application must be dismissed
with costs on a punitive scale. That is
the question this court is seized with i.e. whether or not the
applicant has a right to prematurely
terminate the lease agreement on
notice, as it asserts; and if the answer is in the affirmative,
whether the applicant is entitled
to an order of eviction.
[15]
I now deal with the applicant’s grounds for termination as outlined
in paragraphs
[9] to [12]
supra
.
With regards to the applicant premising its cancelation on the
provisions of
section 4(5)(c)
of the
Rental Housing Act
[3]
i.e. entitlement to cancel on circumstances that do not constitute
unfair practice, the first Respondent correctly argues, that these
circumstances must be specified in the lease. The section upon which
the applicant relies reads:
“
(5)
The landlord’s right against the tenant include his or her right
to-
…
(c)
terminate the lease in respect of rental housing property on the
grounds that do not constitute an unfair practice
and
are
specified in the lease;
…”
[16]
The basic rules of interpretation dictate that the use by the
Legislature of the word
‘and’ denotes an additional requirement.
The applicant may argue that its premature termination of the lease
agreement does not
constitute ‘unfair practice’ as it may not
fall within the unfair practice regulations in terms of the Act,
however, that is
not the only requirement. An additional requirement
is that the reasons for termination of the lease must be specified in
the lease.
This aspect has been adequately dealt with in the
aforegoing paragraphs, save to say that the applicant meets the same
demise in
respect of this ground.
[17]
The applicant in its papers took pains to explain its legislative
mandate to provide its
departmental clients, in this case being the
Department of Home Affairs with suitable accommodation. The challenge
this court has
with this assertion is that the applicant, being fully
aware of its legislative mandate to provide departmental clients with
property,
enters into this agreement to rent the subject property out
to the first respondent for a period of five years, and in doing so,
omits to reserve for itself a right to cancel for ‘official use’.
Nothing precluded the applicant from having this provision
in the
lease agreement the same way it provided for termination in the event
of default or disposition.
[18]
The contract contained no clause for termination on the basis of
official use. It is
trite that a litigant is bound by its pleadings.
Jacob and Goldrein on
Pleading: Principles and
Practice
at 8-9
articulates this as follows:
“
For the sake of
certainty and finality, each party is bound by his own pleading and
cannot be allowed to raise a different or fresh
case without due
amendment properly made. Each party thus knows the case he has to
meet and cannot be taken by surprise at the trial.
The Court itself
is as much bound by the pleadings of the parties as they are
themselves. It is no party of the duty or function
of the Court to
enter upon any enquiry into the case before it other than to
adjudicate upon the specific matters in dispute which
the parties
themselves have raised by their pleadings. Indeed, the Court would be
acting contrary to its character and nature if
it were to pronounce
upon any claim or defence not made by the parties….”
[19]
The terms of the agreement did not make provision for cancellation
for ‘official
use’. Further complicating the applicant’s case
is that the lease contained a variation clause that states:
“
No amendment of
any term
or condition
of this Agreement or any waiver of any right herein shall be of any
force or effect unless reduced to writing and signed by the duly
authorised representatives of both parties.”
[20]
If the provisions of the New Lease Out Submission were to be read
together with the
lease and the provisions thereof be made conditions
of the lease agreement, such should have been explicitly stated in
the lease
agreement and signed by duly authorised representatives of
both parties, which was not done in this case. The applicant asserts
that
it is entitled to prematurely terminate the contract ‘for
official purposes’, yet there is no provision in the lease
agreement
for termination on this basis. It is my view that
termination of an agreement on reasons not provided for in the
agreement itself
undermines the common law rule that agreements are
binding and must be enforced –
pacta
sunt servanda
(Barkhuizen
v Napier
[4]
).
It follows therefore that the applicant’s argument in this regard
must be rejected.
[21]
I now deal with cancellation by a landlord on reasonable notice.
Counsel for the respondent
argued, which argument I align myself
with, that this general principle applies where the contract makes
provision for premature
cancellation without being specific of the
notice period. In this case, the lease contained no such provision.
On the contrary, it
is very specific on the notice period and the
circumstances under which such ‘notice period” must be given i.e.
default or disposition,
none of which are at play
in
casu
. The applicant
relied herein on
Maphango
and Other v Eangus Lifestyle Properties (Pty) Ltd (Inner City
Resources Centre as Amicus Curiae)
[5]
.
The applicant’s
reliance on this case is misplaced because unlike in this case, the
lease in
Maphango
contained a termination clause but did not specify the notice period.
The specific provisions thereof read:
“
Each lease was to
run for a specified initial period, during which the landlord could
terminate the tenancy for breach (these included
the usual grounds:
non-payment of rent, damage to the premises, contravention of laws or
by-laws). After this, the lease would continue
on the same terms and
conditions, subject to termination by either the landlord or the
tenant on a specified period of written notice.
…”
“
Third, the lease
provides that the landlord has the right on written notice to the
tenant four years after signing the agreement to
“change the nature
of [the] tenure” under the lease…”
[22]
It is clear that the facts in Maphango are quite distinguishable from
those in this
application. In this again, the applicant seeks to rely
on a provision that was not contained in the contract. It follows
that his
argument must also fail.
[23]
The second part of this application is an order evicting the first
respondent from
the subject matter property. The first hurdle that an
applicant for an eviction order must cross is establishing the status
of the
respondent as an unlawful occupier. An unlawful occupier is
defined in the PIE Act
[6]
as “a person who occupies land without the express or tacit consent
of the owner or person in charge, or without any other right
in law
to occupy such land, excluding a person who is an occupier in terms
of the
Extension of Security of Tenure Act, 1997
and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions of
the
Interim Protection
of Informal Land Rights Act, 1996
”.
[24]
In terms of this definition, the occupant must have no right in law
to occupy land
or the subject property. In other words, there should
be not lawful defence to eviction. This is the first line of inquiry.
It is
only after the court has found no defence to eviction that it
would then look into whether it would be just and equitable to grant
the eviction order
[7]
.
[25]
For the first respondent to be an unlawful occupant in this case, the
lease must have
been cancelled. The applicant’s eviction
application therefore is dependent on the success of the termination
of lease. It follows
that if the latter fails, the former
automatically falls off. In my view, the first issue for
determination is whether or not the
First Respondent is an unlawful
occupier. If this question is answered in the positive, then I
proceed to deal with whether or not
the applicant has complied with
the procedural aspect outlined in the PIE Act. In the event that the
first question is answered in
the negative, I am of the view that it
is of no consequence for this court to consider the procedural
aspects of this application.
[26]
The first respondent is in occupation of the subject property in
terms of a valid lease
agreement, which lease the applicant seeks to
terminate in terms of the first leg of this application. In the
preceding paragraphs
I have dealt with the reasons why all the
grounds upon which the applicant relies must fail. It follows
therefore that the lease
agreement between the applicant and the
first respondent remains valid. Guided by the above principles, I am
persuaded that this
application must fail.
[27]
I now turn to deal with the issue of costs. The applicant has asked
for costs against the
respondents on an attorney and client scale.
The approach to costs rests on two principles, firstly that unless
expressly otherwise
enacted, the granting of costs falls within the
discretion of the court. The second principle is that generally,
costs follow the
results, i.e. they are awarded in favour of the
successful litigant.  An attorney and client scale is a punitive
scale reserved
for matters where there has been conduct on the part
of a litigant that the court views so serious that it warrants a
punitive scale.
It is meant to punish a litigant where there has been
conduct which is unreasonable and objectionable that it demonstrates
a total
disregard of the court processes and its authority by a
litigant.
[28]
Further, it is to ensure that the successful litigant is not out of
pocket in respect
of expenses caused to him or her by the losing
party’s approach to litigation. In
Nel
v Waterberg Landbouwers Kooperatiewe Vereeniging
[8]
this principle was expressed as follows:
“
The true explanation of awards
of attorney and client costs not expressly authorised by Statute
seems to be that, by reason of special
considerations arising wither
from the circumstances which give rise to the action from the conduct
of the losing party, the court,
in a particular case considers it
just, by means of such an order, to ensure more effectually that it
can do by means of a judgment
for party and party costs that the
successful party will not be out of pocket in respect of the expenses
caused to him by the litigation.
Theoretically, a party and party
bill taxed in accordance with the tariff will be reasonably
sufficient for the purpose. But in fact,
a party may have incurred
expense which is reasonably necessary but is not chargeable in the
party and party bill…Therefore, in
a particular case the Court will
try to ensure, as far as it can, that the successful party is
recouped. I say ‘as far as it can’
because there may be a
considerable difference between the amount of the attorney and client
bill which a successful party is bound
to pay to his own attorney and
the amount of an attorney and client bill which has been taxed
against the losing party…”
[29]
It has been argued by the first respondent that the applicant is
using a draconian
approach because it is an organ of the State and as
such must be mulcted with punitive costs. On one hand, I am
constrained by the
principle that costs cannot be used to instil fear
in prospective litigants such that they are fearful to approach a
court of law
for the resolution of their disputes. For this reason, I
am not persuaded that a punitive scale is warranted.
[30]
Consequently, I make the following
order
:
1.
The Application for termination of the lease and eviction of the
first respondent is dismissed.
2.
The applicant is ordered to pay the costs of the first respondent on
a party and party scale.
D. P. MTHIMUNYE, AJ
Appearances:
For the Applicant:

Adv T. Ntoane
Instructed by State Attorney
Bloemfontein
For the First Respondent:

Adv L. A. Roux
Instructed by Peyper Attorneys
Bloemfontein
[1]
Para 25.3, 43.3, 55 to 57 of the Founding Affidavit.
[2]
Para 43.4 and 47of the Founding Affidavit.
[3]
Act 50 of 1999.
[4]
2007 (5) SA 323 (CC).
[5]
2012 (5) BCLR 449 (CC).
[6]
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
[7]
City of Johannesburg v Changing Tides 74 ((Pty) Ltd
2012
(6) SA 294 (SCA).
[8]
(1949) AD 597
at 608.