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[2011] ZASCA 216
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Naidoo and Another v Sunker and Another (126/11) [2011] ZASCA 216 (29 November 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 126/11
In the matter between:
RAJAGOPAUL VENEKETAS
NAIDOO
…........................................
FIRST
APPELLANT
MRS NAIDOO
…...........................................................................
SECOND
APPELLANT
And
RABIND SUNKER
…......................................................................
FIRST
RESPONDENT
MUTHU PILLAY
….....................................................................
SECOND
RESPONDENT
RUKMANY PILLAY
…...................................................................
THIRD
RESPONDENT
SURIMA INVESTMENTS CC
….................................................
FOURTH
RESPONDENT
Neutral citation
:
Naidoo v Sunker
(126/11)
[2011] ZASCA 216
(29 November 2011)
Coram:
CLOETE,
HEHER, CACHALIA, SHONGWE JJA and PLASKET AJA
Heard:
8 November
2011
Delivered:
29
November 2011
Updated:
Summary:
Practice
– application – special defence – sufficiency of
averments – whether case for referral to evidence
made out.
____________________________________________________________________________________
ORDER
On appeal from:
KwaZulu Natal High Court
(Pietermaritzburg) (Msimang JP, Giyanda and Mokgohloa JJ sitting as
court of appeal):
The appeal is dismissed
with costs including the costs of two counsel. The appellants are
ordered to vacate the property by no later
than 29 February 2012.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (CLOETE,
CACHALIA, SHONGWE JJA AND PLASKET AJA concurring):
[1] The respondents are
the registered owners of the Remainder of Portion 1 of the farm
Umkomanzi Drift No 1357, Registration Division
ET situate at
Umkomaas, KwaZulu-Natal, in extent 27,5186 hectares. The property is
situated in a proclaimed township and has been
zoned for commercial
purposes.
[2] The first appellant
is a man of about 84 years of age. He has lived on the property for
forty years or more. The second appellant
is his wife. She is in her
seventies.
[3] On application by the
respondents to the KwaZulu-Natal High Court, Durban (Sishi J) the
appellants were ordered to vacate the
property by 15 October 2009.
Their counter-application declaring them entitled to retain
possession and occupation pending the
furnishing by the respondents
of security for the payment of compensation for improvements effected
on the property was dismissed.
An appeal to the Full Court (Mokgohloa
J, Giyanda J and Msimang JP concurring) against the order of eviction
was likewise dismissed.
This Court granted the appellants special
leave to appeal further.
[4] The facts are
slightly unusual and induce some sympathy for the appellants. At all
relevant times until his death in 1975 the
property was owned by one
C S Naidoo. According to the first appellant he worked as Naidoo’s
‘right hand man’
in relation to social upliftment
projects for the Indian community. Naidoo offered to sell him a small
portion of the property
on which to build a house. Until the property
was subdivided to enable a sale to take place the first appellant was
permitted to
erect the house and occupy it with his family at a
nominal rental of R5 per month. The first appellant and Naidoo
demarcated an
area about a quarter of an acre in extent and pegged
the boundaries. Initially the first appellant had in mind a temporary
wood
and iron structure, but when Naidoo heard of his intentions he
persuaded him to construct a permanent building of bricks and mortar,
undertaking that, if the property was not subdivided and sold to the
first appellant, he and his family could nevertheless live
on it for
the rest of their lives at the previously agreed rental. As the first
appellant regarded Naidoo as a man of his word
he felt no need of a
written agreement.
[5] The first appellant
duly built a substantial dwelling house on the property with the
intention that it should serve him and
his family for the rest of
their lives. Until 1982 he continued to pay rental at the agreed
amount. About the beginning of 1983
he and Naidoo’s heirs
agreed to double the rent and the first appellant honoured that
agreement until December 1992 when
he was told that payment was no
longer required.
[6] The first appellant
married the second appellant in 1981 after the death of his first
wife. They have lived continuously on
the property ever since, with,
apparently, a break of a year or so some ten years ago to which I
refer below. The first appellant’s
children have long since
left the property and established their own homes. Such right of
occupation as the second appellant may
have derives only through the
first appellant.
[7] The respondents
purchased the property from Naidoo’s heirs on 27 February 1998
for R500 000,00. They currently own 25,8242
hectares of it including
that portion on which the appellants reside.
[8] In his answering
affidavit the first appellant deposed as follows:
‘
The
Applicants, Rabind Sunker, Muthu Pillay (and his wife) and the member
of the Fourth Applicant (Sushilla Devi Sunker) were all
aware prior
to purchasing the property and prior to taking transfer that I
occupied the property. They were also aware of the terms
of my
occupation, namely, that I was a tenant and that my wife and I were
entitled to occupy the property for the rest of our lives.
Most
pertinently, they were fully aware of the improvements which I made
to the property.’
[9] By contrast, the
first respondent, speaking for all the respondents, deposed in reply
(subject to a general denial of such of
the appellants’
allegations that were not consistent with the content of his
affidavits) as follows:
‘
At
the time of us purchasing the property we were informed by the
Sellers, one of whom is Tej Naidoo, that there were certain tenants
on the property and that such tenants did not have written leases but
that they were paying rental on a monthly basis.
One
SANDRA MOODLEY
,
who was the Estate Agent negotiating for the sale of the property to
us, informed the tenants including the First Respondent that
the
property was being acquired by us.
We
purchased the property in terms of a written Agreement dated the 27
th
February 1998 and shortly
thereafter the Second Applicant and I went to the property and
informed the tenants including the First
Respondent of the fact that
we had purchased the property and that they should vacate the
property.’
[10] The tenants,
including the first appellant, apparently ignored the request. The
respondents then caused letters of demand to
be sent to them.
Thereafter they instituted actions in the Scottburgh magistrate’s
court. The proceedings against the first
appellant in that court are
fully described in the application papers before the court of first
instance and form part of the record
before us.
[11] In the magistrate’s
court the respondents alleged that the first appellant was in
unlawful occupation of their property
and claimed damages of R500 per
month for the duration of such occupation. They claimed ejectment of
the first appellant and all
persons claiming occupation through him
from the property and damages of R9500,00. The first appellant
defended the action. He
raised the following defences:
1. That he was an
occupier as defined in s 1 of the Extension of Security of Tenure Act
62 of 1997 (‘ESTA’) and he pleaded
a failure on the part
of the appellants to comply with ss 9(2)(a), (d)(i), (ii) and (iii)
of that Act.
2. That he had resided on
the land since 1961 with the consent of the previous owners of the
property and the appellants and invoked
the deeming provision in s
3(4) of ESTA.
3. That the provisions of
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (‘PIE’)
applied to the proceedings
and that the appellants had not made allegations necessary to sustain
a cause of action with regard
to that Act.
4. That he was entitled
to the protection afforded by s 26(3) of the Constitution, which
provides that no one may be evicted from
their home without an order
of court made after consideration of all relevant circumstances.
5. That the respondents
acquired ownership of the property well aware of the occupation by
the first appellant and his family and
with full knowledge of the
first appellant’s rights of occupation of the house arising
from an oral agreement of lease at
a monthly rental of R10 and
further that the respondents acquired ownership subject to the first
appellant’s rights as they
existed in the oral agreement.
[12] The first appellant
did not, in the magistrate’s court proceedings, aver or rely
upon a lease which was to extend indefinitely
or for life, although,
of course, there had been nothing to prevent him from raising a
defence based on such a lease. Nor did he
aver that the respondents
were aware of a lease for that duration. His case was a monthly
tenancy. He was at all material times
represented by attorneys.
[13] For reasons which
are obscure the respondents amended their particulars of claim. While
continuing to allege unlawful occupation
by the first appellant they
deleted the claim for ejectment.
[14] The magistrate
concluded that the respondents had proved their case. He granted
judgment as prayed, ie damages for unlawful
occupation. Whether the
appellants complied with the order is not clear. But they did not
vacate the property. Nor did they appeal
against the order.
[15] In November 2008 the
respondents initiated the present proceedings. They applied on motion
to the KwaZulu-Natal High Court,
Durban for the eviction of the
appellants. As I have noted earlier they were successful both then
and later in the appeal to the
Full Court.
[16] The
court a quo held that the appellants carried an onus to prove that
the respondents had knowledge of the long lease when
they acquired
the property and that they had failed to discharge that burden. But
these were proceedings on motion for final relief.
All that was
required of the appellants was to adduce evidence sufficient to
provide a prima facie answer to the case for eviction.
If the
evidence so presented was such as to give rise to a bona fide
conflict of fact then the application could not be resolved
in favour
of the appellants without a referral to evidence, which the
appellants had not sought. The onus in relation to the special
defence played no role in that regard.
Ngqumba
/ Damons NO / Jooste en Andere v Staatspresident en Andere
1988 (4) SA 224
(A) at 260I-263D.
[17] Before us the
appellants’ counsel chose to argue his case on only two
grounds. The first was that the appellants were
‘occupiers’
as defined in s 1 of ESTA and entitled to the protection provided by
that Act. The second was that the
first appellant was a tenant under
a lease for longer than ten years of which the respondents had
knowledge at the time of their
purchase of the property and by the
terms of which they were accordingly bound.
The ESTA argument
[18] It was common cause
that the appellants had not raised the applicability of the Act or
placed an indirect reliance on it in
their affidavits. Nevertheless
their counsel relied on s 2(2) of the Act:
‘
Land
in issue in any civil proceedings in terms of this Act shall be
presumed to fall within the scope of the Act unless the contrary
is
proved.’
He submitted that the
fact that the appellants had relied in argument on the Act in all the
courts was sufficient to render the
proceedings ‘proceedings in
terms of this Act’. He cited no authority for the proposition
which appears to be clearly
wrong.
[19] In
application proceedings the notice of motion and affidavits define
the issues between the parties and the affidavits represent
their
evidence. If an issue is not cognisable or derivable from these
sources there is little or no scope for reliance on it. It
is a
fundamental rule of fair civil proceedings that parties, both
plaintiffs and defendants, should be apprised of the case which
they
are required to meet; one of the manifestations of the rule is that
he who relies on a particular section of a statute must
either state
the number of the section and the statute, or formulate his case
sufficiently clearly so as to indicate what he is
relying on:
Yannakou v Apollo Club
1974
(1) SA 614
(A) at 623G;
Naude and Another v
Fraser
[1998] ZASCA 56
;
1998 (4) SA 539
(SCA) at 563D-564A.
That the appellants did not do.
[20] At a factual level,
the importance of the principle is illustrated in the present case by
the reliance placed by appellant’s
counsel on s 2(1) of ESTA.
Not all land falls within the application of the statute:
‘
Subject
to the provisions of section 4, this Act shall apply to all land
other than land in a township established, approved, proclaimed
or
otherwise recognised as such in terms of any law, or encircled by
such a township or townships, but including-
(a)
any land within such township which has been designated for
agricultural purposes in terms of any law; and
(b)
any land within such a township which has been established, approved,
proclaimed or otherwise recognised after 4 February 1997,
in respect
only of a person who was an occupier immediately prior to such
establishment, approval, proclamation or recognition.’
Thus if s 2(1) is not
engaged, the presumption does not operate. In such circumstances any
attempt to introduce reliance on ESTA
would carry with it the onus to
allege and prove that the land in question falls subject to the Act.
It will be recalled that the
respondents stated in their founding
affidavit that the property fell within a proclaimed township without
identifying the date
of proclamation. The appellants did not in their
answer take issue with that averment. As it is common cause that the
appellants
were occupiers with consent of the owner as at 4 February
1997 their counsel submitted that s 2(1) of ESTA prima facie applied
to the property occupied by the appellants. That however depends on a
question of fact, the date of proclamation. Because the appellants
did not raise ESTA in their answering affidavit, the respondents were
not put on notice to deal with the date in their reply and
did not do
so.
[21] In my view the
appellants have not relied upon ESTA in these proceedings in any
manner sufficient to bring themselves within
s 2(2) of ESTA. I
recognise that ESTA is social legislation designed to protect the
poor and dispossessed and that a more flexible
approach may be
necessary to ensure that unrepresented persons are not deprived of
that protection. This is not such a case.
The knowledge of the
respondents at the time of purchase
[22] I have
quoted, in paragraph 8 of this judgment, from the answering affidavit
of the appellants in which they allege, baldly
and without
substantiating facts, that the respondents were all aware prior to
purchasing the property of the terms of the appellants’
occupation including the fact that they were entitled to such
occupation for the rest of their lives. Relying upon the rule in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 counsel
submits that the case fell to be decided on the appellants’
version.
[23] In
Wightman t/a J W Construction v Headfour (Pty)
Ltd and another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras
11 to 13, I had occasion to consider the adequacy of allegations in
answering affidavits in the context of the rule.
What I said there
applies with equal force to a respondent who endeavours to raise a
special defence as here. See also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(CC) para 26. The alleged knowledge of the respondents
concerning the long lease was averred without reference to any detail
as
to when, where and how the information was communicated to them.
Such facts being peculiarly within the knowledge of the first
appellant, his silence on the matter is inexcusable and explicable
only by the inference that the bald allegation was false or not
capable of substantiation. As I have pointed out the defence was not
raised in the magistrate’s court proceedings, a fact
which is
unexplained and merely strengthens the inference. In these
circumstances it cannot be concluded that a bona fide defence
has
been made out by the appellants founded on the respondents’
knowledge of the existence of a long lease.
[24] The
appellants’ counsel submitted that it might be possible to
establish by cross-examination of the respondents or other
witnesses
that the respondents did, as a fact, know of the existence of the
long lease. The submission fails because the appellants
have not
brought themselves within the parameters laid down in
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008
(2) SA 184
(SCA) at 205A-C:
‘
It
would be essential in the situation postulated for the deponent to
the respondent’s answering affidavit to set out the
import of
the evidence which the respondent proposes to elicit (by way of
cross-examination of the applicants’ deponents
or other persons
he proposes to subpoena) and explain why the evidence is not
available. Most importantly, and this requirement
deserves particular
emphasis, the deponent would have to satisfy the court that there are
reasonable grounds for believing that
the defence would be
established. Such cases will be rare, and a court should be astute to
prevent an abuse of its process by an
unscrupulous litigant intent
only on delay or a litigant intent on a fishing expedition to
ascertain whether there might be a defence
without there being any
credible reason to believe that there is one. But there will be cases
where such a course is necessary
to prevent an injustice being done
to the respondent.’
In this instance the
shortcoming is manifest. No credible reason exists to believe that
evidence is available to establish the defence
and any injustice that
might result would be attributable solely to the inaction of the
appellants themselves.
[25] There
is a further consideration. The principal issue between the parties
in the magistrate’s court was the lawfulness
of the first
appellant’s occupation. That issue was decided against him.
Although the facts set up by the respondents are
sufficient to
justify a conclusion that lawfulness was
res
judicata
at the time of the application in
the present case such a case has not been raised or relied on in
express terms by or on behalf
of the respondents. It is accordingly
unnecessary to take the question further.
[26] The appellants have
not sought to impugn the order for eviction. It was common cause that
the respondents had complied with
all the formalities required of
them under the PIE Act. Section 4(7) of that Act provides:
‘
(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.‘
The court of first
instance did consider the appropriateness of an order with regard to
the provisions of the section. We have not
been asked to reconsider
that question but I have nevertheless done so because of the special
circumstances of this case, the delay
in its finalisation (for which
the respondents are at least in part responsible) and the advanced
age of the appellants. I am satisfied
that the order of eviction was
properly made for the following reasons:
(1) the appellants have
known since at least the conclusion of the proceedings in the
magistrate’s court in January 2006 that
their occupation was
unlawful;
(2) they contested the
application without a bona fide defence to it;
(3) the first appellant
has several adult children and the evidence adduced by the appellants
prima facie established the ability
of each child to care for them if
required;
(4) the appellants have
previously left the property to take up residence in an old age home
or a similar place of residence but
later returned to the property of
their own volition;
(5) there is evidence on
record of the availability of suitable alternative accommodation;
(6) despite being
represented by attorneys and counsel in all three courts no attack
was made on their behalf on the propriety of
an order of eviction.
[27] For all these
reasons the appeal is dismissed with costs including the costs of two
counsel. The appellants are ordered to
vacate the property by no
later than 29 February 2012.
____________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANTS: M Pillemer SC
(with him Z Rasool)
Govender Pather &
Morgan, Durban
Bezuidenhouts Inc,
Bloemfontein
RESPONDENTS: N D Hollis
SC (with him K Naidu)
Singh & Gharbaharan,
Unzinto
Honey Attorneys,
Bloemfontein