Steenkamp N.O v Moeti and Others (A100/2021) [2022] ZAFSHC 65 (25 March 2022)

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[2022] ZAFSHC 65
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Steenkamp N.O v Moeti and Others (A100/2021) [2022] ZAFSHC 65 (25 March 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Appeal
case no:
A100/2021
Case
no:
3894/2019
In
the matter between:
IZAK
JACOB STEENKAMP NO
Appellant
and
LETSEGO
HUDSON
MOETI
1
st
Respondent
ANY
OTHER OCCUPIERS OF ERF 7205,
MANGAUNG
FREE STATE
PROVINCE
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
MASTER
OF THE FREE STATE HIGH
COURT
4
th
Respondent
CORAM:
DAFFUE J, NAIDOO J et
LITHEKO AJ
HEARD ON:
22 MARCH 2022
DELIVERED ON:
25 MARCH 2022
JUDGMENT BY:
DAFFUE J
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 16h00 on 25 March 2022.
I
INTRODUCTION
[1]
This is an appeal by the unsuccessful applicant in an eviction
application against the
judgment of a single judge of this division
who on 29 April 2021 dismissed the application with costs.
II
THE PARTIES
[2]
The appellant in this appeal is Mr Izak Jacob Steenkamp in his
official capacity as
the Master’s representative in the estate of
the late Eurashion Kagisho Ditsebe, estate number 7242/2004, in terms
of Letters of
Authority issued to him on 20 March 2019.
[1]
Adv HJ Benade appeared on behalf of the appellant before us,
instructed by Steenkamp and Jansen Inc, Bloemfontein.
[3]
The 1
st
respondent is Mr Letsego Hudson Moeti a major male person and
occupier of Erf 7205, Mogoera Street, Mangaung Free State Province
(“the premises”).  Although Kalaote Attorneys are on record
as the 1
st
respondent’s attorneys, there was no appearance on behalf of first
respondent in the court
a
quo
as was the case in
this appeal.  In both instances, no heads of argument were filed
in either court on behalf of the 1
st
respondent.  The 2
nd
,
3
rd
and 4
th
respondents in the court
a
quo
are also cited as
such in the appeal, they being  any other occupiers of the
premises, the Mangaung Metropolitan Municipality
and the Master of
the Free State High Court.  These parties did not oppose the
initial relief sought in the court
a
quo
and also do not
feature in this appeal.  The Master filed a report
[2]
abiding by the decision of the court
a
quo
, but no report was
obtained from the Mangaung Metropolitan Municipality.
III
THE RELIEF SOUGHT IN THE COURT
A QUO
[4]
Having been authorised to serve the required s 4(2) notice in terms
of the Prevention
of Illegal Eviction from and Unlawful Occupation of
Land Act (“PIE”),
[3]
the appellant sought the usual orders, to wit that the 1
st
and 2
nd
respondents be declared unlawful occupiers of the premises and that
they be ordered to vacate the premises by not later than 31 October
2019.
IV
FACTUAL MATRIX
[5]
The following background is important to grasp the opposition of the
1
st
respondent, supported by the Moeti elders:
5.1
On 17 March 1958 the deceased married Baojele Cornelius Moeti, the
uncle
of the 1
st
respondent.  Mr Moeti passed away on
a date not reflected in the papers.
5.2
The deceased became the registered owner of the premises on 9
December 1999,
having received ownership from the Mangaung
Metropolitan Municipality.
5.3
On 5 February 2003 the deceased executed her last Will.
5.4
On 26 September 2004 the deceased passed away.  The Will was not
registered
with the Master at that stage and no executor was
appointed accordingly.
5.5
On 20 April 2012 the
deceased’s one son, Eric Itumeleng Moeti (“Itumeleng”) passed
away.  We have no idea whether his descendants
are still alive.
According to his death notice
[4]
he had two children, Kagisho Moeti and Shanyana Moeti who were both
majors at the time of his death.  We have no idea if his
death
was reported to the Master, and if so, whether someone has been
appointed as executor in his estate.
5.6
On 16 August 2018 the
other son, Lebogang Garth Moeti (“Lebogang”) passed away.  A
certain Mr Bikane has been appointed as
Master’s representative in
his estate, but this person does not feature in the litigation.
Also, this information was only
revealed when the replying affidavit
was filed.
[5]
5.7
In August 2018 and at the funeral proceedings of the late Lebogang,
the
Moeti family members attended a meeting at the premises where
Lebogang had been residing prior to his death.  It was resolved
at the meeting, as confirmed by the 1
st
respondent and
Moeti elders such as his father and aunt, that he, the 1
st
respondent, should occupy the premises and consequently, he relocated
to the premises in October 2018.
5.8
On 20 March 2019 the
appellant was appointed in terms of s 18(3) of the Administration of
Estates Act
[6]
as Master’s representative in the deceased’s estate, she having
passed away 15 years earlier.
5.9
It is apparent from the aforementioned that there was a delay of 15
years
between the date of the deceased’s death in 2004 and the
appellant’s appointment as the Master’s representative in 2019.
Three years have lapsed since this appointment and the 1
st
respondent is in occupation of the premises for nearly four years.
5.10
The executors or Master’s representatives in the estates of the
deceased’s two sons, Itumeleng
and Lebogang, have not been joined
in the proceedings.  None of their descendants feature in the
application.   Insofar
as the two sons might have been
married at the time of their death, no affidavits of the surviving
spouses have been obtained by
either the appellant or the 1
st
respondent.  I mention this while being well aware of the
contents of the deceased’s Will to which I shall return in a
moment.
IV
THE HISTORY OF THE LITIGATION THUS FAR
[6]
The following is a history of the litigation:
6.1
On 23 August 2019 the appellant initiated proceedings under
PIE to
evict the 1
st
respondent and other unlawful occupiers from
the premises.
6.2
It was at all relevant
times the appellant’s intention to market and sell the premises.
In fact, the appellant stated in the
founding affidavit that he had
obtained a purchaser for the premises and that a valuation was
required by SA Home Loans in order
to facilitate the purchaser’s
application for a home loan.
[7]
There is no information as to the debts of the deceased’s estate
and if so, whether her heirs would not be prepared to settle
those in
order to receive transfer.
6.3
Although the answering affidavit was filed on 18 October 2019,
the
replying affidavit was filed hopelessly out of time, to wit 15 months
later on 25 January 2021.
6.4
The matter was heard and adjudicated by a single judge of this
division who dismissed the application on 29 April 2021.  Leave
to appeal was granted on 13 August 2021.
VI
REASONS FOR THE COURT
A QUO’S JUDGMENT
:
[7]
The court
a quo
held that the appellant failed to prove that the 1
st
respondent was an unlawful occupier and based on this conclusion
dismissed the application with costs.
[8]
[8]
Although the court
a quo
held that the appellant had
locus
standi
by virtue of his appointment in terms of s 18(3) of the
Administration of Estates Act, the following aspects were apparently
considered
in order to come to the aforesaid conclusion that the 1
st
respondent was not an unlawful occupier of the premises:
8.1
The deceased’s Will was
considered and based on the contents thereof the premises could not
be sold to finalise the deceased’s
estate.
[9]
8.2
Insofar as the appellant
sought an eviction order with the aim to sell the premises contrary
to the deceased’s Will, neither the
validity, nor the execution of
the Will was ever questioned.  Thus, the appellant’s request
for relief should not be adhered
to.
[10]
8.3
Bearing in mind the
reference in the Will that the premises should remain “
the
property of the Moeti generation”
,
the court
a quo
relied on the evidence of the 1
st
respondent’s father and aunt, they being identified as Moeti
elders.
[11]
8.4
The court
a
quo
also considered
the customs and traditions of customary law and who were the elders
of the Moeti generation, referred to by the deceased.
[12]
8.5
The court
a
quo
held eventually
that 1
st
respondent had been authorised by the people in control of the
premises, to wit his father, Jeremiah Moeti and his paternal aunt,
Martha Lebakeng to reside at the premises and consequently, as he had
been rightfully authorised to reside there, he did not fall
within in
the definition of an unlawful occupier.
[13]
VII
RELEVANT PROVISIONS OF THE PREVENTION OF ILLEGAL EVICTION FROM AND
UNLAWFUL OCCUPATION OF
LAND ACT
[9]
It is apposite to deal with three definitions contained in PIE, to
wit:
[14]
“‘
owner’
means the
registered
owner of land, including an organ of state;
‘
person in
charge’
means a person who has or at the
relevant time had
legal authority
to give permission to a person to enter or reside upon the land in
question;
‘
unlawful
occupier’
means 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 …”
(the
remainder of the definition is irrelevant) (emphasis added)
[10]     On
the basis that we may not agree with the court
a
quo
that the 1
st
respondent is not an unlawful occupier, it is necessary to quote the
relevant sub-sections of s 4 of PIE:
[15]
“
(7)
If an
unlawful occupier has occupied the land in question for
more
than six
months at the time when the proceedings are initiated, a court may
grant an order for eviction if it is of the opinion that it is
just
and equitable
to do so, after
considering
all the relevant circumstances
,
including, except where the land is sold in a sale of execution
pursuant to a mortgage,
whether
land has been made available or can reasonably be made available
by
a municipality
or other organ of state or another land owner
for
the relocation
of the unlawful occupier, and including the rights and needs of the
elderly, children, disabled persons and households headed by
women.
(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).
(9)
In
determining a just and equitable date contemplated in subsection (8),
the court must have regard to all relevant factors, including
the
period the unlawful occupier and his or her family have resided on
the land in question.”
(emphasis
added)
VIII
RELEVANT AUTHORITIES
[11]
Having dealt with the relevant provisions of PIE, I deem it apposite
to mention some authorities:
11.1
The Supreme Court of
Appeal has recently dealt with an appeal following upon a successful
eviction application in
Davidan
v Polovin NO and Others
[16]
.
It confirmed the jurisdictional requirement to trigger an eviction
under PIE,
i.e.
that the person to be evicted is an unlawful occupier within the
meaning of PIE.  It stated that consent by the owner or person
in charge of the premises is a valid defence.
[17]
11.2
In
Port
Elizabeth Municipality v Various Occupiers
[18]
the court held that PIE expressly requires courts to infuse elements
of grace and compassion into the formal structures of the law
and
therefore, courts shall consider the spirit of
ubuntu
in these kind of
cases.  This
dictum
was repeated with approval in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another.
[19]
It is also
important to note that in the last mentioned case, as is the
situation in
casu
,
the applicant for eviction did not seek eviction to enable him to
move into the premises.  There is therefore no competing
risk of
homelessness on the part of the appellant (the applicant in the court
a quo
).
[20]
[12]     The
duty of an executor in a deceased estate is to obtain possession of
the assets of the deceased person,
including rights of action, to
realise such of the assets as may be necessary for the payment of the
debts of the deceased, as well
as taxes and the costs of
administering and winding-up the estate, to make those payments, and
to distribute the assets and money
that remain after the debts and
expenses have been paid, among the legatees and heirs under the Will
or among the intestate heirs
on intestacy.
[21]
[13]     It is
accepted that the estate of the deceased person vests in the executor
in the sense that the
dominium
and other rights and obligations of the estate reside in him or
her.
[22]
[14]     The
appointment of a Master’s representative in terms of s 18(3) of the
Administration of Estates Act
and the duties of such a representative
are in line with the duties of executors as set out in annexure
“S1”.
[23]
The Letters of Authority confirms that the representative is
authorised to take control of the assets of the estate as reflected
in the inventory, to pay the debts and to transfer the residue of the
estate to the heir/heirs entitled thereto by law.
[15]    Although
ss 42(2) and 47 of the Administration of Estates Act refer to the
duty of executors pertaining to
the sale of immovable property, there
can be no doubt that these sections apply
mutatis mutandis
to
Master’s representatives who fulfil exactly the same role as
executors, but only in respect of small estates.  I quote:
“
42
Documents to be lodged by executor with registration officer
(1)
……
(2)
An
executor who desires to effect transfer of any immovable property in
pursuance of a sale shall lodge with the registration
officer, in
addition to any such other deed or document,
a
certificate by the Master that no objection to such transfer exists
.”
47
Sales by executor
Unless
it is contrary to the will of the deceased,
an executor shall sell
property
(other than property of a class ordinarily sold through
a stock-broker or a bill of exchange or property sold in the ordinary
course
of any business or undertaking carried on by the executor)
in
the manner and subject to the conditions which the heirs
who have
an interest therein
approve in writing
: Provided that-
(a)
i
n
the case where an absentee, a minor or a person under curatorship is
heir to the property; or
(b)
if
the said
heirs
are unable to agree
on the manner and conditions of the sale,
the
executor shall sell the property in such manner and subject to
such
conditions as the Master may approve
.”
(emphasis added)
X
EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY THE APPELLANT’S
COUNSEL
[16]    The
deceased’s Will reads as follows:
“
1.
I do hereby revoke all Wills and codicils previously by me and
declare this to be my
last Will.
2.
I bequeath the property namely
7205 Mogoera Street, Rocklands
Location,
Bloemfontein to the following:-
(a)
ERIC ITUMELENG MOETI ID No:  581003 5934 089
(b)
LEBOGANG GARTH MOETI ID No:  600707 5887 082
3.
The said property shall not form part of their estate as result of
their current
marriage and future including their children.
4.
The said property to remain sole estate of the Moeti generation.”
There
can be no doubt, that although paragraphs 3 and 4 are ambiguous and
may well lead to future litigation, the deceased elected
to appoint
her two sons as legatees, they being elected to inherit a specific
asset, to wit the premises.
[24]
[17]     Mr
Benade submitted that the appeal should succeed with costs insofar as
there cannot be any doubt that
the appellant, he being the person in
charge of the premises belonging to the deceased estate, did not
expressly or tacitly consent
that the 1
st
respondent may
occupy the premises.  In fact, the appellant directed the 1
st
respondent to vacate the premises.  Mr Benade submitted that the
permission by the Moeti elders is irrelevant insofar as they
could
not be regarded as persons in charge who had legal authority to give
permission to 1
st
respondent to reside on the premises.
[18]     Mr
Benade conceded that if we were to find, contrary to what the court
a
quo
held, that the 1
st
respondent is indeed an
unlawful occupier, this court is not prevented from considering
whether the facts contained in the affidavits,
and in particular
those referred to by the court
a quo
in the paragraphs quoted,
are such that we may still dismiss the appeal on the basis that
having considered all the relevant circumstances,
it would be just
and equitable not to grant an eviction order.
[19]     In
light of the definitions in PIE and the common cause facts, I am
satisfied that the court
a quo
erred in concluding that the
appellant had failed to prove that the 1
st
respondent was
an unlawful occupier of the premises.  However, that is not the
end of the matter.
[20]     The
following aspects are regarded as relevant surrounding circumstances
making it just and equitable
to dismiss the appeal.  The 1
st
respondent should not be evicted from the premises for the following
reasons:
20.1    The
appellant, who is not a relative of the deceased, or any of her
heirs, or of any of the other Moeti family
members, was duly
appointed by the Master to take control of the assets, to pay the
debts and to distribute the residue of the estate
to the deceased’s
heirs and to do just that and nothing extraordinary.  The
appellant does not need the premises for his occupation
and
consequently, there is no competing risk of homelessness on the part
of the appellant.
20.2    The
appellant failed to advance any reasons why it was deemed necessary
to sell the property to a buyer not
even identified in the
papers.
[25]
It is not indicated who the buyer is, but equally important, the
appellant failed to mention the purchase price and why was it
necessary
to sell the only asset of any value.
20.3    The
appellant failed to explain why the immovable property could not be
transferred to the estates of the two
sons in accordance with the
provisions of the deceased’s Will.  There is no doubt that the
appellant also believed that the
residue of the deceased’s estate
had to be divided equally between the estates of the two sons.
[26]
The ambiguity in the deceased’s Will did not matter to the
appellant.
20.4    The
appellant failed to present any evidence as to the liabilities of the
estate which might have prevented
transfer to the estates of the two
heirs.  In any event, and if there were liabilities that needed
to be settled before transfer
could be effected, I would have
expected the appellant to present evidence of what he had done to
obtain payment from the estates
of the two heirs.  There was no
reason to sell the immovable property if cash could be provided to
settle any estate debts.
20.5    When the
1
st
respondent placed on record that the sale of the premises was in
direct conflict with the Will and that the Moeti family was never
consulted by the appellant,
[27]
the appellant made an about turn in reply and stated the following:
“
I
insist that the property either is to be sold and the proceeds
divided between the estates of the two heirs or it is to be
transferred
in co-ownership to the estates of the two sons. …
This stance by the Respondent is disputed.  My authority stands
until
the Master’s direction in terms of Section 18(3) has been
reviewed and/or set aside.”
[28]
20.6    The
appellant failed to show that he had any authority to sell the
immovable property as clearly stipulated
in s 47
supra
.
20.7    The 1
st
respondent gave a detailed family background in order to conclude why
he had authority to occupy the premises,
[29]
relying on the terms of the Will as a member of the Moeti generation,
as well as the resolution taken by the family elders.
[30]
Notwithstanding these allegations, the appellant failed to present
any evidence by any of the descendants of the two sons,
Itumeleng and
Lebogang and/or their surviving spouses, if applicable.  Also,
and unlike as could be expected, and bearing in
mind the insistence
that the premises shall remain within the Moeti family, the appellant
failed to state that it was indeed impossible
to effect transfer to
the sons’ estates because of estate liabilities.
[21]
Finally, I am satisfied that it is not just and equitable that the
premises should be sold to a third
party, unrelated to the Moeti
family in the said circumstances and without any suggestion,
allegation or submission that it is necessary
to do so in order to
wind-up the estate and in the absence of consultation with the heirs
and any descendants which would obviously
include representatives of
the Moeti family.  The spirit of
ubuntu
must take
precedence
in
casu
.
[22]     I
repeat, we do not even know what purchase price was agreed upon with
the unidentified purchaser and/or
whether the purchase price is
market-related.
[23]   The deceased’s
Will is not a model of clarity as can be gleaned from the paragraphs
thereof quoted
supra
.  However, as said, this might be
the subject of future litigation and neither we, nor the appellant,
have to concern ourselves
about that at this stage.  This court
is not called upon to interpret the Will.  It is not necessary
to conclude whether
the bequest to the two sons is subject to
conditions, and if so, the nature thereof.  Appellant will give
effect to the Will
if he transfers the immovable property to the
estates of the two sons provided that all debts and administrations
costs are being
paid before then.  The heirs in these estates
may possibly become embroiled in a conflict, but that should not
concern either
the appellant, or this court.  Whoever eventually
obtains ownership by way of succession, whether testate or intestate,
will
have to decide how to deal with the 1
st
respondent.
[24]     In
considering the appeal, one’s mind is directed to the
Constitution.
[31]
Section 25(1) reads as follows:
“
No one may be
deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property.”
PIE has its roots in s 26(3) of
the Constitution which stipulates that no one may be evicted from
their home without an order of court
after considering all relevant
circumstances.  Although the appellant may not have intended to
deprive the estates of the two
sons of their inheritances, the
unnecessary sale of the premises in uncertain circumstances will
deprive the Moeti’s of their ancestral
home, something that must be
close to their hearts.  This is a crucial aspect that cannot be
ignored.
[25]     It
is also important to note that no report was obtained from the
Mangaung Metropolitan Municipality,
indicating that land had been
made available or could reasonably be made available by the
municipality for the relocation of the
1
st
respondent.
XI
CONCLUSION
[26]     The
appeal should be dismissed for the reasons advanced herein.  The
final issue to be considered
is, as always, the liability to pay
costs.  The general rule is that the successful party is
entitled to costs and that the
loser must foot the bill.
In
casu,
if the usual order is made, the effect will be that the
costs will have to be paid by the deceased’s estate.  We have
no option
than to make such an order.  A punitive costs order
de
bonis propriis
might have been made against the appellant, but
there is no request for such an order and also, these orders are
seldom made.
The appellant was also not given an opportunity to
address us on the issue.  Consequently, such order is not called
for.
In the court
a quo
the application was
dismissed with costs. These two costs orders will probably leave the
deceased’s estate with no equity, meaning
that there will be
nothing to distribute once the costs have been paid.  A value of
a mere R100 000.00 was put on the premises
when the appellant
was appointed as Master’s representative, but there is no
indication of the real market value.  Although
this outcome is
far from ideal, this court cannot come to any other conclusion.
XII
ORDER
[27]
The following order is made:
1.    The appeal
is dismissed with costs.
JP DAFFUE J
I concur
S NAIDOO J
I concur
MS LITHEKO AJ
On
behalf of the Appellant:
Adv HJ BENADE
Instructed
by:
Steenkamp & Jansen Inc
BLOEMFONTEIN
On
behalf of the 1
st
respondent:    No appearance
[1]
Annexure “S1” to the founding affidavit, p 26
[2]
Record, pp 42 & 43
[3]
19 of 1998
[4]
Annexure
“S13” to the replying affidavit on p 97
[5]
Annexure
“S14” on p 98
[6]
66 of
1965
[7]
Paras 8.3 & 8.4 of the founding affidavit, p 5
[8]
Judgment para 24, p 108
[9]
Judgment para 19, p 107
[10]
Ibid
para 20, p 107
[11]
Ibid
para 21, p 108
[12]
Ibid
para 22, p 108
[13]
Ibid
para
23, p 108
[14]
Section 1 of the Act
[15]
Sub-sections 4(7) – 4(9) of PIE
[16]
[2021] 4 All SA 37
(SCA) (5 August 2021)
[17]
Ibid,
paras
11 -14
[18]
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at para 37
[19]
2012 (2) SA 104
(CC) at para 38
[20]
Ibid,
para
39
[21]
Corbett, Hahlo and Hofmeyr, The Law of Succession in South Africa,
2
nd
ed, quoted in LAWSA vol 31, para 208
[22]
LAWSA vol 31, para 213
[23]
Supra,
p 26
[24]
LAWSA
vol 31, para 207; and consider the difference in the legal position
between heirs and legatees at paras 210 & 331:
a legatee
acquires a vested right in the asset bequeathed to him/her, while
the heir has a right to the residue of the estate only
after debts
and legacies have been paid
[25]
Founding
affidavit para 8.4 p 21
[26]
See
para 8.3 of the founding affidavit p 21
[27]
Answering
affidavit para 7.4 p 56
[28]
Replying
affidavit, paras 13 & 14, p 93
[29]
Answering
affidavit, para 2, pp 52 - 54
[30]
Answering
affidavit, para 9, p 57
[31]
Act
108 of 1996