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[2022] ZAFSHC 146
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TACHMO CC v Mphuti N and Another (A39/2020) [2022] ZAFSHC 146 (31 May 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: A39/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TACHMO
CC
Appellant
Registration
Number: [....]
and
NTSWAKI
MPHUTI
First
Respondent
DIHLABENG
LOCAL MUNICIPALITY
Second
Respondent
CORAM:
C
REINDERS ADJP
et
S NAIDOO, J
et
RAMLAL AJ
JUDGMENT
BY:
C
REINDERS, ADJP
HEARD
ON:
31
JANUARY
2022
DELIVERED
ON:
31
MAY 2022
[1]
This appeal in terms of
Rule 51 of the
Magistrate’s Court Rules
is directed at the
dismissal, by the Magistrates Court Bethlehem
of an application for the eviction
of the first respondent, Ms N Mphuthi, (hereafter “the
respondent”) in terms of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, Act 19
of 1998 (“PIE”)
.
[2]
The appellant is a close corporation with its sole member
being Mr T W Mokoena. The appellant was the applicant in the trial
court,
and the
respondent and
Dihlabeng
Local Municipality
(“the municipality”)
were the first and second respondents respectively. It is convenient
to refer to the parties as
in this appeal.
[3]
The appeal was initially heard by myself and my brother Mhlambi J.
The appellant filed
an application for condonation for the late
institution and filing of the record of appeal. With the advantage of
having heads
of arguments in respect of condonation well in advance
of the hearing of the appeal, we considered and granted such
condonation
after hearing oral arguments by counsel on behalf of the
appellant and respondent. After the merits were argued,
agreement
could not be reached between my colleague and me in respect
of the outcome of the matter
,
resulting
in referral of the matter to a full bench of this Division.
[4]
In the grounds for appeal the appellant noted several attacks on the
findings of the magistrate,
the main challenge being to the finding
by the magistrate that the respondent was not an unlawful occupier of
the property in question,
namely Erf [....] Bohlokong Bethlehem (“the
property”).
[5]
In
his founding affidavit the appellant averred that he is the lawful
owner of the property. He bought the property from a couple
with the
surname Motloung (the “Motloungs”) who at the time were
the owners of the property as per the official allocation
of
residential sites issued by the municipality on 19 November 2008. As
proof of his ownership, appellant attached to his affidavit
a copy of
the Deed of Transfer T [....](the “Title Deed”),
indicating that the property was transferred into his name
on 14
April 2009. At the time the property was unoccupied. During 2013 he
was informed that a shack had been erected on the property,
but he
was unable to locate any residents. In February 2014 he received
information that the property had been developed and it
was pointed
out to respondent that the permit she claims to be in her possession,
was invalid. In 2015 he instituted eviction procedures
against
respondent. The parties, legally represented, entered into a
settlement agreement (the “Settlement Agreement”)
on 20
January 2016 (annexed to appellant’s replying affidavit upon
respondent’s denial that she had signed such a document).
In
terms thereof the appellant, in recognition of the improvements made
by respondent to the property, paid an amount of R 25 000.00
to
respondent upon an undertaking by her to vacate the property on 31
March 2016. According to him, the respondent was in the process
of
refunding the money.
[6]
In opposition of the appellant’s affidavit respondent denied
applicant’s
assertion that he is the lawful owner of the
property, claiming that she is in fact the lawful owner. In support
of her claim of
ownership, she attached a copy of a document which
she refers to as a “blue card” (also known as a
Permission to Occupy:
“PTO”) ostensibly issued on 26
September 2008. According to her, the said permit vested all rights
to the property
in her name. She paid an amount of
R 8 000-00 to one Mr Mandla Khambule (and
one Mr Pumla) at the
offices of the municipality. A week later she was appraised of the
location of the property and erected a
fence to demarcate it. During
2009 she erected a shack and latrine on the property. In 2012 she
obtained a loan with Capitec Bank
(annexed to her opposing affidavit,
“the Capitec document”) and contracted a builder to
construct a building for her.
She occupies this building with her
children, (who were minors
at the time
of hearing of the application) and she is
heading the household as a single mother.
[7]
The key question for determination in this matter concerns s 4 of
PIE. S 4 deals with
the eviction of unlawful occupiers of land sought
by the owner or the person in charge of the land.
The
Act defines an owner and unlawful occupier as follows:
‘
owner’
means
the registered owner of land, including an organ of state;
‘
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, ….
and
s 4 (1)
provides that
:
(1)
Notwithstanding anything to the contrary
contained in any law or the common law, the provisions of this
section apply to proceedings
by an owner or person in charge of land,
for the eviction of land of an unlawful occupier.
[8]
The court
must
first determine whether the person in
respect of whom the eviction order is sought, is an unlawful
occupier. If that is the case
then, secondly, it decides whether,
after considering all the relevant circumstances, it is just and
equitable to grant such an
order.
[9]
In the trial
court the appellant and respondent filed affidavits in support of
their respective cases. Even though the application
was brought on
motion proceedings, a senior official of the municipality responsible
for housing and related matters Mr MT Ndwandwe
(“Mr Ndwandwe”)
testified as a “neutral witness” as it appears from the
record. He was called to assist
in explaining the process which is
followed by the municipality in the allocation of sites. The
magistrate informed him that “
we
have a situation whereby two individuals applied to the municipality
to be allocated a residential site or a site. And the both
of them
they appear to be in possession of documents that allocate the land
to them”.
[10]
The “individuals” to whom the magistrate referred were
the respondent and the Motloungs.
Mr Ndwandwe explained the procedure
in respect of obtaining a document known as a Permission to Occupy
(“PTO”) or a
site permit. Of importance is the fact that
such official documentation will display three signatures, one of
which is from the
Head of the Department (as well as an official
stamp), and be accompanied by a receipt as proof of payment for the
allocated property
(as issued by the municipality). All of the
aforementioned requirements were present on the documentation of the
Motloungs in the
records of the municipality. The evidence of Mr
Ndwande revealed that one Mr Mandla Kambule (“Mandla”)
who had been
in the employ of the municipality but had subsequently
been dismissed, allegedly in a fraudulent manner sold sites to
members of
the community from 2013 to 2015. His modus operandi would
then be to backdate the relevant site permits to 2006/2007/2008. Mr
Ndwande
testified that most of the site permits issued by Mandla did
not comply with the requirements for a valid permit as it did not
bear the signature of the Head of Department, there was no official
stamp and only one signature.
[11]
The magistrate in a comprehensive judgment dealt with the legislative
framework and principles
relating to PIE. From a reading of the
judgment it is evident that he was well appraised of the applicable
principles and his constitutional
duty to ensure that he actively
participate in reaching a conclusion on what is just and equitable.
In my view the factual matrix
of the application as is evident from
the papers, was in essence correctly summarised by the magistrate,
bar a complete lack of
dealing with the Settlement Agreement. I will
deal with the importance of the said agreement later in this
judgment.
[12]
On the aforementioned evidence the learned magistrate made certain
findings and concluded:
“
I
am not convinced that the 1
st
respondent is an unlawful occupier, even if she was, I am of the view
that under the circumstances taking into account all relevant
factors, it will not be just and equitable to order eviction.”
[13]
The factual matrix of the application includes the appellant’s
averment and proof of the
property that was transferred into his name
by the Deed of Transfer. Save
for a
denial by the respondent that appellant is the owner of the property
and a later averment
of her having no
knowledge of the title deed being registered with the Deeds Office,
the title deed was, in my view, thus not seriously
challenged.
[14]
It is trite that the best evidence for proof of ownership of
immovable property is the
Title Deed as confirmed in
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992]
ZASCA 208
;
1993
(1) SA 77
(A)
at
82. A
Permission
to Occupy does not confer ownership on the holder of such a document.
See:
Herbert N.O. and Others v Senqu Municipality and Others
2019
(11) BCLR 1343
(CC);
2019 (6) SA 231
(CC) (22 August 2019)
[15]
From the record it appears that
Mr
Ndwande in reply to a question whether there is an indication in the
records of the municipality as to ownership of the property,
testified that a printout done from the office file confirms that the
legal owner of the property is reflected as Tachmo CC. This
corroborated the version of the appellant that he is the lawful owner
of the property, as testified by Mr Ndwande under oath. Mr
Ndwande
was not cross-examined on this aspect and his evidence stands
uncontested in this regard. Appellant’s prima facie
proof of
ownership thus shifted the onus to the respondent, and as it was not
displaced it settled into proof of ownership on a
balance of
probabilities.
[16]
Without making a finding that the appellant is the owner of the
property, the magistrate acknowledged
appellant’s assertion
that he has a right to use and enjoy the property and holds that
“this is a common law right
that entitles the owner to use
property”. The trial court then proceeds:
“
However,
his argument is upset by the 1
st
respondent’s assertion that she acquired the property lawfully
from housing officials. This assertion remains factually
unrestrained. The applicant and Motloung had their own transaction
which led to the registration of the property under the names
(sic)
of the applicant. Motloung did not tendered
(sic)
any evidence that regarding acquisition of the property, except [for
a] PTO issued and completed by the housing officials.”
[17]
In my view the evidence put up by the
appellant in support of ownership, to wit the Title Deed, should have
satisfied the magistrate
that the appellant succeeded in proving his
ownership of the property. Reference to the absence of evidence
from the Motloungs
(ostensibly to testify on how they acquired the
property) is misplaced. From the papers it is clear that, in
accordance with the
testimony of Mr Ndwande, the site was legally
obtained by the Motloungs as is evident from the site permit and the
proof of payment.
The magistrate’s finding on the other hand
that the respondent’s assertion of having acquired the property
lawfully
from housing officials remains factually unrestrained cannot
be correct. From the record it is clear that the only documentation
put up by the respondent as proof of ownership, to wit the “blue
card” did not comply with the requirements for a valid
transaction as testified by Mr Ndwande as it lacked the necessary
signatures and official stamp, and no official proof of payment
accompanied the said blue card.
[18]
The magistrate in his judgment in dealing with Mr Ndwande’s
evidence held as follows:
“
He
submits that in this matter Motlaung was awarded the site legally and
he and all his successors in title are lawful owners. Mr
Ndwande was
not part of the housing officials at the time.
All
that he says is based on assumption…”
[19]
In my view the learned magistrate erred in this regard. Far from
being based on an assumption,
the documentary proof supports the
lawful ownership of the appellant. Moreover, the magistrate’s
failure to deal with the
Settlement Agreement, constituted a
fundamental error.
The importance of the
Settlement Agreement is that it is indicative of the respondent
having had knowledge of the unlawfulness of
her occupation of the
property if not before, then at the latest at the end of January
2016. The parties agreed that the appellant
would pay the respondent
an amount of R 25 000-00 for the improvements made by the
respondent and upon her undertaking to
vacate the property on 31
March 2016. Moreover, the evidence tendered by Mr Ndwande, an
independent witness, supported the fact
that the respondent was not
the legal owner as no such evidence existed with the municipality,
save for that of the Motlaungs having
paid for the property and the
appellant being the current owner of the property.
[20]
The dates of the fraudulent transactions of Mandla tallies with the
time when appellant started
noticing activity on his site in 2013.
The inescapable conclusion to be drawn is that respondent was
swindled by Mandla. This however
does not translate into her becoming
the lawful owner of the property.
[21]
The trial court should have found that the appellant is the owner of
the property and the respondent
is in unlawful occupation thereof.
Moreover, I am unable to find that the respondent raised a
valid defence to the appellant’s
claim for eviction.
[22]
Section
4 of PIE entails both procedural and substantive provisions.
The
procedures to be followed upon a finding that a person to be evicted
is an unlawful occupier are as follow:
(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 sold
in a sale of execution pursuant to a mortgage,
where the land has
been made available or can reasonably be made available by a
municipality or other Organ of State or another
landowner 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 had 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 sub-section (8), the court
must have
regard to all relevant factors, including the period the unlawful
occupier and his or his family have resided on the land
in question
.”
(own emphases)
[23]
As constitutionally obliged to do, the magistrate mentioned the
factors that he considered in
arriving at a conclusion that it would
not be just and equitable to grant an order of eviction.
“
The
first respondent [erroneously referred to as the 2
nd
respondent] is a single mother and takes care of two minor children.
She obtained a loan in order to build a place she and her
children
can call a home and not only a shelter from elements. She has no
other place to go. The applicant submitted that at this
stage the
property does not generate any money for the applicant neither
himself can occupy the property because of the presence
of 1
st
respondent. However, the applicant himself resides in a nearby town.”
[24]
The magistrate dealt with all the aforementioned
factors. The respondent, under oath, stated that she is a
single parent of two minor children. However, the ages of
respondent’s
children can be deduced from the document relied
upon by her for ownership of the property. Reference is made to a son
whose identity
number indicates his date of birth as 12 November 1997
(at the time of the eviction application in the trial court during
2018
thus 21 years of age and not a minor) and a daughter born on 12
December 2005 (at the time 13 years of age). At the hearing of this
appeal, the minor daughter would be aged 17.
[25]
The remark by the magistrate that the respondent “
has no
other place to go”
is in my view not supported by the
evidence at all. The appellant in his founding affidavit informed the
court of the factors known
to him in respect of the circumstances of
the respondent as follows:
25.1
“The occupiers of this premises is (
sic
) the First
Respondent and her minor son. However I do not have his full names
and identity number and I am not clear on what age
he is, only that
he is school going.”
The respondent did not
reply to these averments.
25.2
“It is clear that she is an unsupported woman and that she has
a minor living on the premises,
however, I am informed that
she
does have employment and can support herself
and move her
residence to another place
.” (own emphasis)
To these averments the
respondent replied as follows:
“
I
am employed with the Government Emergency Services since 2011 and
earn a salary with which I look after myself and the minor children
living with me on the premises [....] Extension 8, Bohlokong.”
25.3
There is no answer provided to the appellant’s averments that
respondent can move her residence
to another place. She does not
indicate that she has no alternative accommodation. There is also no
indication that an order of
eviction would render the respondent and
her children homeless. From the Capitec document confirming the loan
that respondent had
secured with the bank it can be inferred that she
held down a good position with the government. I say so because logic
dictates
that she would not have been successful in obtaining the
loan amount of R 96 120,35 with the resultant monthly repayments
of between R 1 500 - R 2 745.28, without a proper monthly
income. The respondent can most certainly not be viewed as the
proverbial poorest of the poor.
[26]
One of the factors to be considered in deciding whether it is just
and equitable to grant an
order of eviction is the duration of the
occupation by a respondent. The respondent stated that she erected a
shack in 2009 and
instructed a contractor to build a dwelling during
2012, with the appellant’s version that he was informed of a
development
on his site in 2014. At time of hearing of the
application in 2018 this period would thus have amounted to about 5
years. At the
time of considering this appeal, the time has increased
to 9 years.
[27]
In deciding what is just and equitable the appellant’s
non-occupation of the property since
he had bought it in 2009, should
not be viewed as insignificant in comparison to the factors relating
to the respondent. Appellant
stated that he had made various attempts
to assist the respondent in vacating the property, offering to
reimburse her for improvements
to the property. He complained that
his rights to his property had seriously been encroached upon.
Moreover, he sustained and is
continuing
to sustain serious prejudice in that the property cannot be rented
out and he does not receive any financial gain from
the respondent’s
occupation of
the property.
[28]
In
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294
(SCA)
Wallis
JA summarised the requisite approach by a court as follows in para
[24]:
“
A
court hearing an application for eviction
at
the instance of a private person or body, owing no obligations to
provide housing or achieve a gradual realisation of the right
of
access to housing in terms of s 26(1) of the Constitution, is faced
with two separate inquiries.
First
it must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors.
Under s 4(7) those
factors
include the availability of
alternative land or accommodation. The weight to be attached to
that factor must be assessed in
the light of the property owner’s
protected rights under s 25 of the Constitution, and on the footing
that a limitation of
those rights in favour of the occupiers will
ordinarily be limited in duration. Once the court decides that
there is no defence
to the claim for eviction and that it would be
just and equitable to grant an eviction order, it is obliged to grant
the order.
Before doing so,
however, it must consider what justice and equity demand in relation
to the date of implementation of that
order and it must consider what
conditions must be attached to that order. In that second
inquiry it must consider the impact
of an eviction order on the
occupiers and whether they may be rendered homeless thereby or need
emergency assistance to relocate
elsewhere.” (own emphases
added)
[29]
In
Occupiers of Erven 87 & 88 Berea v Christiaan Fredericks De
Wet N.O.
(2017) ZACC at para 44 and 45 the Constitutional Court
reiterated the dictum of the court in the
City of Johannesburg
case and held that section 4 of PIE necessitates two separate
enquiries. The first enquiry is whether it is just and equitable
to
grant the eviction order having regard to all the relevant factors.
The factors mentioned under section 4(7) of PIE include
the
availability of alternative land or accommodation.
Those factors
must be assessed in the light of the property owner’s protected
rights under section 25 of the Constitution.
Once decided that there
is no valid defence to the claim for eviction and that it would be
just and equitable to grant an eviction
order, the court is obliged
to grant the eviction order.
The second enquiry is what would be
just and equitable in relation to the date of the eviction and/or the
implementation of that
order. (own emphasis added)
[30]
In
Residence of Joe Slovo Community, Western Cape v Thubelisha
Homes & Others (Centre on Housing Rights and Evictions and
Another,
amici curiae)
2010 (3) SA 454
(CC) i
t was stressed that
in considering whether eviction is just and equitable the court must
come to a conclusion that it is just and
equitable
to all parties
.
(own emphasis added)
[31]
I am very much in agreement with the approach of Davis,J (Fortuin J
concurring) when dealing
with an application for eviction in
Resnick
v Government of the Republic of South Africa and Another
2014 (2) SA
337
(WCC)
at 344:
What
then constitutes grace, compassion and a commitment to ubuntu in
these circumstances? Were this court to take the view that
‘just
and equitable’ trumps illegality,
so
that a person in the circumstances of the appellant can remain
indefinitely on the property, no matter the illegality of the
situation
, this would create vast
and significant implications for eviction procedures throughout this
Province, in that this, as a judgment
of a Full Bench, it would be
binding on many of our colleagues, who would have considerable
difficulty in a range of cases, and
we could not predict as to how
subsequent
evictions
should (be) adjudicated.
In
my view, ‘just and equitable’ in this situation, means
ensuring the appellant be given some significant time to find
alternative accommodation, but that ‘just and equitable’
jurisprudence cannot stretch far enough to overturn the decision
of
the court
a quo.
” (own emphasis)
[32]
In terms of S7
of PIE I have to take into account if land can be reasonably made
available by the municipality for the relocation
of the unlawful
occupier.
Mr
Ndwande informed the trial court that, at the time of the hearing,
the municipality did not have alternative land or accommodation
to be
of assistance to the respondent. Mr Van der Merwe, appearing for the
appellant, suggested the appropriate way in dealing
with the
aforementioned problem would be to stay the order for eviction
pending arrangements to urgently be made by the municipality
for
respondent’s (and all still residing with her) relocation or
accommodation. In my view this would not achieve finality
in this
matter and would render the date of eviction unclear.
[33]
In accordance with PIE, I have to consider all factors as
prescribed therein, including the fact that respondent
is heading a
household. As stated, the respondent has been in occupation of the
property for a considerable length of time at the
hearing hereof. She
is gainfully employed and at one stage agreed to vacate the property
by 31 March 2016. As indicated, on my
calculations one of her
children is a minor still attending school. I must therefore set a
just and equitable date upon which she
is to vacate the property.
Taking all the above into consideration I calculate such date to be a
period of six months from the
date of the order below and the orders
I intend to make will so reflect. Not only would six months
afford ample time for
the respondent to obtain alternative
accommodation, but would it avoid a disruption of the academic school
year of the minor daughter.
The appellant should however compensate
the respondent for the improvements made to the property by the
respondent, and a period
of six months would likewise grant an
opportunity to the appellant to effect such compensation.
[34]
It follows that I am of the view that the appeal should succeed and
that the magistrate erred
in not granting the application to evict
the respondent from the premises.
[35]
The usual cost order is that costs should follow the event. In my
discretion I am however of
the view that the history of this matter
warrants an order that each party should pay its own costs.
[36]
I therefore make the following orders:
36.1
The appeal succeeds and the order of the magistrate dismissing the
application with costs, is set aside and
replaced with the following:
“
The
application succeeds with costs.”
36.2
First respondent and all those holding title under her, are to vacate
the property described as Erf [....]
Bohlokong Bethlehem before or on
30 November 2022.
36.3
Should the first respondent and all those holding title under her
fail to vacate the property described above
on or before
30 November 2022 the sheriff is ordered to evict first
respondent and all those holding title under her, from the property.
36.4
Appellant is ordered to reimburse first respondent in respect
of the improvements to the property, the value of which shall be
determined
by a suitably qualified valuator agreed upon by the
appellant and the first respondent.
36.4.1 In the event that
the appellant and first respondent are unable to agree on a valuator,
each party is authorised the appoint
his/her own suitably qualified
valuator, and the average of those two valuations will determine the
value of the improvements
36.4.2 The valuations
referred to above are to be undertaken by 30 November 2022.
If the applicant defaults in
appointing a valuator, the first
respondent will remain in occupation of the property until such
valuation is obtained. If the
respondent defaults in the appointment
of a valuator, she is directed to vacate the property on 30 November
2022.
36.5
Each party is to pay its own costs of the
appeal.
C.
REINDERS, ADJP
I
agree
S.
NAIDOO, J
I
agree
A.K.
RAMLAL, AJ
On
behalf of the appellants: Adv
HJ van der Merwe
Instructed
by: Niemann
Grobbelaar Attorneys
c/o
Honey Attorneys
BLOEMFONTEIN
On
behalf of the first respondent:
Mrs
E Louw
HS
Marais Attorneys
c/o
Lovius Block Attorneys
BLOEMFONTEIN