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[2022] ZAFSHC 322
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Rantsoareng N.O and Others v Titus and Others (3943/2022) [2022] ZAFSHC 322 (11 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3943/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
PALESA
PRETTY RANTSOARENG N.O.
1
st
Applicant
VALENTINE
LETSIE RANTSOARENG N.O.
2
nd
Applicant
PIETER
MARTHINUS STEYN STRAUSS N.O.
3
rd
Applicant
(In
their capacities as duly authorised Trustees of the
TITOE
TRUST No: IT115/12
)
and
JENNA
CARLY TITUS
1
st
Respondent
(Identity
number: [....])
ANY
OTHER UNLAWFUL OCCUPIERS OF
[….]
H[....], W[....],
BLOEMFONTEIN,
FREE STATE PROVINCE
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
CORAM:
JP
DAFFUE, J
HEARD
ON:
10
NOVEMBER 2022
DELIVERED
ON:
11
NOVEMBER 2022
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 11 November
2022.
ORDER
1.
The first respondent and any other
occupiers of the property known as [….] H[....], W[....],
P[....]Street, Bloemfontein,
Free State Province (the property)
holding occupation through first respondent are declared unlawful
occupiers of the property.
2.
The first respondent and such other
illegal occupiers holding occupation through her are ordered to
vacate the property not later
than 31 May 2023.
3.
The sheriff of the court is authorised
and directed to evict the first respondent and such other illegal
occupiers from the property
should they fail to comply with this
order.
4.
The sheriff of the court is authorised
to obtain the aid of the South African Police Service in the event of
him/her not being able
to evict the first respondent and such other
illegal occupiers from the property.
5.
The first respondent and such other
illegal occupiers shall remove their movable property and personal
belongings from the property
on/or before 31 May 2023.
6.
Each party shall pay their own legal
costs.
JUDGMENT
Introduction
[1]
This is an extraordinary application for
eviction of the first respondent and other occupiers holding
occupation through her in
respect of [….] H[....], W[....],
P[....]Street, Bloemfontein, Free State Province (the property).
Although the second
applicant who deposed to the founding and
replying affidavits on behalf of the applicants insisted that the
first respondent’s
averments of a romantic relationship between
them were irrelevant, such averments need to be considered bearing in
mind the relevant
legal principles. More about this later
herein.
The
parties
[2]
The three applicants are Mrs Palesa Pretty
Rantsoareng, Mr Valentine Letsie Rantsoareng (married to each other)
and an independent
trustee, Mr Pieter Marthinus Steyn Strauss, in
their capacities as the trustees of the TITOE Trust IT 115/12 (the
Trust);
[3]
Ms Jenna Carly Titus has been cited as first
respondent, any other unlawful occupiers of the property as second
respondent and the
Mangaung Metropolitan Municipality as third
respondent. The second and third respondents did not play a
role in the opposed
application and consequently I will refer to the
first respondent as the respondent later herein.
The
relief sought
[4]
Having obtained authorisation from this court
to institute these proceedings in terms of the provisions of s 4(1)
of the Prevention
of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (PIE), the applicants now seek an order that the
respondent
and other occupiers holding occupation through her vacate
the property within 20 days from date of service of the order
together
with the costs of the application.
[5]
The application is opposed by the respondent.
The
disputes
[6]
It
is the applicants’ case that they as the registered owners of
the property, represented by the second applicant, entered
into a
verbal agreement with the respondent during 2018 in terms whereof she
was allowed to occupy the property for an indefinite
period which
right could be terminated on demand. Written demand to vacate has
been given as is apparent from the letter dated
21 April 2022 which
was duly served by the sheriff.
[1]
The respondent refused to adhere to the demand and is still in
occupation of the property. Therefore, it is the applicants’
case that the respondent is in unlawful occupation of the property
and that they are entitled to an eviction order. They
complied
with the provisions of subsecs 4(1) and (2) of PIE.
[7]
The respondent denies that the applicants are
entitled to the relief sought. She relies on a universal
partnership entered
into between her and the second applicant.
On her version and even in the event of dissolution of the
partnership she would
be entitled to remain in occupation of the
property until her daughter reaches the age of 18 which is still a
few years in the
future as the child is presently in grade 8.
[8]
According to the respondent she and the second
applicant started a romantic relationship in 2005 and save for a
period between 2007
and 2011, this relationship endured until
recently. I shall deal more fully with her version hereunder as
this is relevant,
notwithstanding the second applicant’s
attitude, in order to decide what is just and equitable relief.
The
principles applicable to eviction under t
he
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE)
[9]
The respondent has been occupying the property
since October 2018 and thus more than 6 months prior to the launching
of the eviction
proceedings. Therefore, subsec 4(7) of PIE applies.
It reads as follows:
‘
(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.’
(emphasis added.)
[10]
Subsection 4(8) of PIE reads as follows:
‘
(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).’ (emphasis added).
[11]
Applications
for the eviction of unlawful occupiers of immovable property have
inundated the courts of this country. It is apparent
from the law
reports that a considerable number of judgments have been reported
over the last 20 years. It is apposite to refer
to what was already
said more than 20 years ago in
Ndlovu
v Ngcobo, Bekker and Another v Jika
(
Ndlovu
).
[2]
Harms JA, writing for the majority, stated in
Ndlovu
as follows:
‘
The
effect of PIE is not to expropriate the landowner and PIE cannot be
used to expropriate someone indirectly and the landowner
retains the
protection of s 25 of the Bill of Rights. What PIE does is to delay
or suspend the exercise of the landowner's full proprietary
rights until a determination has been made whether it is just and
equitable to evict the unlawful occupier and under what conditions.
Simply put, that is what the procedural safeguards provided for in s
4 envisage.’
[12]
In
Changing
Tides
the court dealt specifically with an application for eviction at the
instance of a private person or body. It summarised
the
applicable considerations as follows
[3]
:
‘
[25]
Reverting then to the relationship between ss 4(7) and (8), the
position can be summarised as follows. A court hearing an application
for eviction at the instance of a private person or body, owing no
obligations to provide housing or achieve the gradual realisation
of
the right of access to housing in terms of s 26(1) of the
Constitution, is faced with two separate enquiries. 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 that 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 enquiry 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. The order that it
grants as a result of these two discrete enquiries
is a single order.
Accordingly it cannot be granted until both enquiries have been
undertaken and the conclusion reached that the
grant of an
eviction order, effective from a specified date, is just and
equitable. Nor can the enquiry be concluded until
the court is
satisfied that it is in possession of all the information necessary
to make both findings based on justice and equity.’
(emphasis
added.)
[13]
The
facts of each application for eviction based on alleged unlawful
occupation are always the point of departure. Gamble J, writing
for
the majority, confirmed the dicta in
Ndlovu
,
Blue
Moonlight
and
Changing
Tides
in
Mayekiso
v Patel
[4]
and emphasised the
competing
constitutionally entrenched rights at play, to wit s 26(3) of the
Constitution which provides that people may not
be evicted from
their homes without an order of court granted after considering all
the relevant circumstances, and s 25(1), which
protects the rights of
owners of private property against arbitrary expropriation.
Evaluation
of the evidence
[14]
It
is an objective fact that the trustees in their aforesaid capacities
are the owners of the property as is apparent from deed
of transfer
ST15912/2018.
[5]
The
respondent’s version that the second applicant bought the
property in his personal capacity is not correct. Her
allegation must be seen in context, especially insofar as her version
is, save for a bare denial, not attacked at all. The second
applicant
and respondent were not only engaged in a romantic relationship, but
closely involved in not only identifying the property
to be bought
from the developer, but also the selection of designs for the
newly-built house and purchasing of inter alia furniture
and
curtains.
[6]
The other two
trustees did not feature at all. Although it may appear at first
blush that the second respondent used the
Trust as his alter ego, it
is not required for purposes of the adjudication of the dispute to
consider this aspect any further.
The trustees’ right against
arbitrary expropriation is protected.
The
defence: a universal partnership
.
[15]
Recently
the Supreme Court of Appeal reiterated the character of a partner’s
right in a universal partnership in
Khan
v Shaik
(
Khan)
.
[7]
I do not intend to deal with the requirements to establish a valid
universal partnership as this may have to be dealt with in another
court one day insofar as the relationship between the second
applicant and the respondent is concerned. It suffices to point
out that upon termination of such partnership an accounting shall
take place between the former partners. Also, insofar as a partner’s
claim is based on contract, it is a personal and not a real right.
This means that in this case the respondent does not have a
direct
claim to the property,
[8]
either
based on an undivided share as co-owner, or a right of habitatio or
any other right to use or occupy the property.
[16]
The
respondent may institute action against the second applicant, if so
advised, in order to claim what she believes she is entitled
to in
terms of the termination of their alleged partnership. However,
reliance on such a partnership is not a defence in
an application for
eviction for the reasons stated in
Khan
.
Furthermore, the property is not registered in the name of the second
applicant, but in the names of the trustees of the Trust
who have
never become parties to this alleged universal partnership. A similar
defence has been rejected in
Botha
NO v Deetlefs & Another
[9]
and more recently the court held in
Charsley
NO v Bunge
[10]
as follows:
‘
In
opposing the application for eviction, the respondent is seeking to
do precisely what the Supreme Court of Appeal indicates is
not
permissible. She asserts a right to live on the property
indefinitely, in the absence of any usufruct or similar agreement
concluded with the owners of the property, being the trust. She bases
this claim on the existence of the universal partnership
with the
deceased, who himself was not the owner of the property.’
[17]
Although the respondent submitted in her heads
of argument that the application should be referred for oral evidence
in order to
ventilate the dispute as to the terms of her agreement
with the second applicant and whether or not the Trust had given the
requisite
consent thereto, respondent’s counsel did not pursue
this aspect during oral argument. If the quoted authorities are
considered, it would be a futile exercise to refer the matter for
oral evidence.
[18]
The respondent has received a notice by the
trustees of the Trust to terminate her occupation of the property. I
am satisfied that
no valid defence has been raised to the claim for
eviction. Consequently, she is in unlawful occupation of the
property and
it would be just and equitable to grant an eviction
order. Before doing so, I must consider what justice and equity
demand
in relation to the date of implementation of the order.
Just
and equitable relief
.
[19]
I shall deal with the relief sought, having regard to all the
relevant circumstances. The respondent
made the following averments
which in most instances are supported by documentary proof:
a.
A
romantic relationship between the second applicant and the respondent
started in 2005 at a stage when the respondent was 25 years
old.
During that year he persuaded her to move into a flat in N[....]. He
paid the rental, water and electricity accounts and also
contributed
towards some of her living expenses.
[11]
b.
In the beginning of 2007 the second
applicant indicated that she should relocate to a property in
Fleurdal as he was concerned that
people would become aware of their
relationship. He again paid the relevant expenses and contributed to
her other financial needs.
c.
At the end of 2007 the relationship
broke down where after the respondent entered into a brief
relationship with another man as
a result of which she fell
pregnant. Her child was born in October 2008.
d.
In
2011 the parties started seeing each other again and rekindled their
relationship. At that stage the respondent was staying with
her
sister. During 2015 the second applicant insisted that she moved to a
new complex in order to provide more privacy for them.
He entered
into a lease agreement in respect of the complex known as Olienhout
in Kiepersol where the respondent stayed until she
temporarily
relocated to another property before she eventually moved to the
property presently occupied by her.
[12]
e.
In
2015 the second applicant also bought a Polo Vivo for her. He
maintained the vehicle and even paid for fuel.
[13]
f.
The
second applicant not only bought clothing for the respondent, but
took her on trips to expensive hotels, paying for accommodation
and
airline tickets.
[14]
g.
In
December 2019 the second applicant purchased a Mercedes Benz which he
provided to the respondent.
[15]
h.
The
second applicant bought furniture for the property in Olienhout as
well as the present property.
[16]
i.
In 2021 an incident occurred between the
parties as a result of which the respondent laid a charge with SAPS
for common assault
against the second applicant. The relationship has
by then deteriorated and became worse in the beginning of 2022.
On 26
April 2022 she was served with a letter to vacate the property
on/or before 3 June 2022.
j.
The respondent is employed and earns a
gross salary of R20 000.00. She is a single mother having to care for
her daughter who is
in grade 8. According to her she does not have
alternative accommodation at present, insofar as neither her sister,
nor her mother
can provide her with accommodation. She is also
not in a financial position to provide for her own accommodation.
[19]
Having detailed the background facts provided
by the respondent to which the second applicant did not reply on the
basis that these
facts are irrelevant, I am satisfied that although
the applicants are entitled to eviction, the period of 20 days set
out in the
notice of motion is not reasonable.
[20]
During oral argument I indicated to the parties
that I believed that the respondent should be granted a period of six
months to
vacate the property; also that I would not be inclined to
grant costs to the applicants as the successful parties. After having
received instructions, both counsel indicated that their clients
would be prepared to accept an order for eviction on the terms
as put
to them, including a costs order as suggested.
Conclusion
[21]
It is a pity that the parties could not reach
an agreement before the hearing of the matter as this would have
saved enormous legal
costs. When I noticed that there was no
compliance with rule 41A pertaining to referral of the dispute to
mediation, I requested
the parties to deal with my concerns. They did
so. It is apparent that the parties tried to settle the matter on
more than one
occasion and even as late as the day before the
hearing, but to no avail.
Order
1.
The first respondent and any other
occupiers of the property known as [….] H[....], W[....],
P[....]Street, Bloemfontein,
Free State Province (the property)
holding occupation through first respondent are declared unlawful
occupiers of the property.
2.
The first respondent and such other
illegal occupiers holding occupation through her are ordered to
vacate the property not later
than 31 May 2023.
3.
The sheriff of the court is authorised
and directed to evict the first respondent and such other illegal
occupiers from the property
should they fail to comply with this
order.
4.
The sheriff of the court is authorised
to obtain the aid of the South African Police Service in the event of
him/her not being able
to evict the first respondent and such other
illegal occupiers from the property.
5.
The first respondent and such other
illegal occupiers shall remove their movable property and personal
belongings from the property
on/or before 31 May 2023.
6.
Each party shall pay their own legal
costs.
J
P DAFFUE, J
On
behalf of the Applicants:
Adv
J Els
Instructed
by: EG
Cooper Majiedt Inc
BLOEMFONTEIN
On
behalf of the Respondents:
Adv
DC Hattingh-Boonzaaier
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
[1]
Annexures
“FA4” & “FA5” at pp 132 – 134.
[2]
2003 (1) SA 113
(SCA) para 17; See also
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
(Blue
Moonlight)
2012 (2) SA 104
(CC) paras 30 - 41 and
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (Changing
Tides)
2012
(6) SA 294
(SCA) para 25.
[3]
Changing Tides loc cit para 25.
[4]
2019
(2) SA 522
WCC paras 58 & 59.
[5]
Annexure
“FA3” at pp 29 – 31.
[6]
Annexure
“OP5.1” at p 119 and further.
[7]
2020 (6) 375 (SCA) paras 6 – 8.
[8]
Ibid paras 10 & 11.
[9]
2008 (3) SA 419
(N) paras 13 – 20.
[10]
2021
JDR 0845 (KZD) at para 12.
[11]
Answering
affidavit paras 2.2 & 2.3 at pp 47 & 48.
[12]
See
annexures “OP1.1” – “OP1.10” at pp 63
- 85; paras 2.7 & 2.8 at p 49.
[13]
Paragraph
2.8 at p 49; annexures “OP2.1” – “OP.2.5”
at pp 86 - 91.
[14]
Paragraph
2.10 at p 50; annexures “OP3.1” – “OP4.2”
at pp 92 -118.
[15]
Paragraph
2.13 at p 51; annexure “OP6” at pp 137 - 139.
[16]
Paragraph
2.15 at p 52; annexures “OP9.1 – “OP9.3” at
pp 159 – 173.