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[2022] ZAECMHC 17
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MEC, Department of Public Works and Infrastructure, Eastern Cape Province v Pretorius and Another (CA 09/2022) [2022] ZAECMHC 17 (26 July 2022)
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
REPORTABLE
CASE
NO. CA 09/2022
In
the matter between:
MEC,
DEPARTMENT OF PUBLIC WORKS AND
INFRASTRUCTURE,
EASTERN CAPE PROVINCE
Applicant
and
HEATHER
ALTHEA ESME PRETORIUS
First respondent
KING
SABATA DALINDYEBO MUNICIPALITY
Second respondent
JUDGMENT
LAING J:
[1]
This is an application before a full bench in relation to the
eviction
of the first respondent from erf 571, situated at [....]
L[....] Road, Mthatha (‘the property’).
[2]
The applicant seeks,
inter alia
, an order that the lease
agreement between the parties be declared to have been terminated,
that the first respondent be directed
to vacate the property within
30 days, and that the sheriff and South African Police Services
(SAPS) be authorised to give effect
to the eviction where necessary.
Background
[3]
As the owner or custodian of numerous state properties in the Eastern
Cape, the Department of Public Works and Infrastructure leases same
to various individuals and corporate entities. The Department
has,
however, allegedly encountered the theft or misuse of such
properties. It is averred that tenants do so by taking advantage
of
general inefficiencies in the public administration and changes in
management that occur from time to time.
[4]
The Head of Administration for the Department, Mr Thandolwethu Manda,
explains in the applicant’s founding affidavit that he has the
responsibility of regaining control of state properties in
the
Eastern Cape, under the banner of a campaign titled ‘Operation
Bring Back’. The Department is apparently incurring
significant
financial losses as a result of the mismanagement of state
properties, including the making of payment for municipal
services
and other levies with regard to land from which the Department
derives no benefit. The application was brought as a consequence
of
the above campaign.
[5]
The applicant contends that a lease agreement that was concluded with
the first respondent in relation to the property has been terminated.
The first respondent refuses to vacate the property.
Applicant’s
submissions
[6]
The parties, alleges the applicant, entered into the agreement on 1
April
2012. A copy of the agreement is attached to the founding
affidavit. The applicant avers that the first respondent did not pay
rental as required, causing the applicant to make formal demands for
payment, which were ignored. This culminated in the applicant
formally terminating the agreement on or about 25 November 2019.
Notwithstanding the first respondent’s refusal to vacate
and
her non-payment of rental, the agreement has, in any event, lapsed,
argues the applicant.
[7]
The agreement made provision for its expiry on 31 March 2013. It also
made provision for its renewal for a further period of one year,
provided that the first respondent gave prior notice. This was
never
done.
[8]
The stipulated rental was R1,000 per month. The first respondent is
in
arrears with payment, to the amount of R64,375. The applicant
points out that the first respondent is not an indigent person.
Despite
the first respondent having refused to vacate the property,
the applicant remains liable for the payment of rates and municipal
services. On 31 May 2020, the Department paid the sum of R32,439 for
water services alone, with the implication that it was funding
the
illegal occupation of the property.
[9]
The applicant indicates that it needs the property urgently for the
accommodation
of public officials and is prejudiced by the first
respondent remaining in occupation. Moreover, it was obliged to
report to Parliament
on the steps taken to regain control over state
properties in general.
[10]
The first respondent, argues the applicant, has waived any rights
which she may have enjoyed
in terms of the provisions of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (‘PIE’).
Nevertheless, the applicant has
followed the procedures stipulated in terms thereof for purposes of
securing the first respondent’s
eviction from the property.
First
respondent’s submissions
[11]
In response, the first respondent avers that the property has been
used to accommodate
teachers employed at the Transkei Primary School.
This arrangement has been in place since 1969, in terms of which the
state made
various properties available to the school free of charge
to attract teachers to the area. The first respondent took occupation
of the property that forms the subject of these proceedings in 1997.
The erstwhile Department of Local Government and Land Tenure
allegedly agreed to sell the property and others like it to the
occupants at their original prices, provided that they had been
in
occupation for more than ten years. This was decided after the state
had determined that it would have cost considerably more
to have
restored and maintained the properties in question.
[12]
A nominal rental of R200 per month was levied on the property. The
school initially paid
the rental but insisted that the first
respondent assume responsibility therefor when it was increased to
R1,000 per month. In
2016, the applicant unilaterally increased the
rental to R7,500 per month, prompting the first respondent to refuse
to enter into
a further lease agreement that had been proposed. The
applicant’s Head of Department allegedly advised the first
respondent
and the occupiers of similar properties not to worry about
the rental amount, which would be discussed further in due course.
[13]
The first respondent contends that the property had no value at all
upon her having taken
occupation. It was dilapidated and in a state
of disrepair. However, by the time that she had completed renovations
and improvements,
in 2001, the property was valued at R316,500. She
has never been reimbursed for the costs incurred, which she estimates
as having
been in excess of R250,000. Nevertheless, the first
respondent alleges that she had previously informed the applicant’s
staff
about the intended renovations and improvements and had been
assured that the costs could be set off against the rental.
[14]
On 1 November 2001, the Department notified the occupiers of its
decision to increase the
rental to R1,000 per month and also informed
them that they were given the option to buy the properties should
they wish to do
so, subject to the finalisation of its land disposal
policy. The Department’s failure to finalise the policy had
been to
the prejudice of the occupiers. Apparently, the delay was
caused by difficulties associated with the valuation of the
properties,
the determination of the renovations and improvements
made, and the extent to which same had to be reimbursed to the
occupiers.
[15]
Subsequently, the Department notified the occupiers about the
suspension of any increases
in rental. This was done on 4 March 2009.
[16]
On 31 October 2012, the parties allegedly agreed upon the
finalisation and implementation
of the applicant’s policy,
which included the property of the first respondent, subject to the
proper valuation thereof and
determination of the purchase price.
Notwithstanding, the applicant appeared to have shifted its stance
and wished to sell the
properties at market-related prices and to
charge market-related rentals pending such disposal. The
implementation of the policy
has stalled. A task team, assigned to
investigate the reasons for the delay, has highlighted the problems
involved and made numerous
recommendations that include the need to
take into account the costs of renovations and improvements and
ongoing maintenance, as
well as the occupiers’ exercise of
their option to purchase.
[17]
Subsequent meetings with the applicant on 30 June 2019 and 8 June
2020 had resulted in
the understanding that no eviction proceedings
would be instituted and that a process of constructive engagement
should be pursued.
[18]
The applicant emphasises that she has been paying rental since 1997
and has used her own
resources to repair and maintain the property.
She resides on the property as a 62-year old woman with her daughter,
who is a student,
and they have no alternative accommodation. It
would not be just or fair to be evicted. In any event, she asserts
that the lease
agreement has neither lapsed nor been properly
terminated. There had been a tacit relocation of the original terms
and conditions,
and the agreement had been renewed on a monthly
basis.
In
limine
[19]
The first point
in limine
raised by the first respondent is
that the court has no jurisdiction over the matter. The parties
agreed to the jurisdiction of
the Magistrates’ Court, as
apparent from the lease agreement.
[20]
The second point is that the applicant lacks
locus standi
inasmuch as the registered owner of the property is the South African
Bantu Trust. The applicant has failed to demonstrate that
the
Department is vested with ownership.
[21]
The third point is that the first respondent has a
ius retentionis
over the property by virtue of an improvement lien. She has spent an
amount of at least R250,000 for purposes of renovations and
improvements, which have enhanced the value of the property. Until
the applicant has reimbursed her, she may not be evicted.
[22]
The fourth point is that the applicant lacks the necessary authority
to have instituted
the proceedings.
[23]
The fifth point is that the applicant has failed to comply with the
provisions of PIE inasmuch
as the section 4(2) notice was not served
on her.
Issues
to be decided
[24]
The points raised
in limine
by the first respondent must be
considered at the outset, before proceeding to deal with the main
issues identified by the parties.
Briefly, these can be summarised
as: (a) whether the lease agreement between the parties has been
terminated; and (b) if so, then
whether there is a basis upon which
the first respondent and any other occupier can be evicted from the
property.
[25]
There is some overlap between the points
in limine
and the
main issues, as shall be evident from the paragraphs that follow.
Jurisdiction,
locus standi
and authority
[26]
The first respondent relies on clause 23.3 of the lease agreement to
contend that this
court lacks jurisdiction over the matter. The
provisions thereof stipulate that:
‘
[a]t the option of
the Lessor, any action or application arising out of this Lease or
any cancellation thereof hereunder, shall
be brought in the
Magistrates’ Court having jurisdiction in respect of the
Lessee, notwithstanding that the amount in issue
may exceed the
jurisdiction of such Court, and this clause constitutes the Lessee’s
consent in terms of the Magistrates’
Court Act of 1944.’
[27]
The wording of the text is clear: any legal proceedings arising from
the lease agreement
must be brought in the Magistrates’ Court,
but only ‘at the option of the lessor’. In other words,
the applicant
enjoys the right to choose whether to do so or not; if
the applicant had decided to bring the proceedings in the
Magistrates’
Court, then the first respondent would have been
obligated to permit the applicant to have exercised such right. Her
consent would
have been deemed to have been given in accordance with
the wording of the text. As the matter stands, the applicant has
chosen
not to proceed in the Magistrates’ Court and the present
court has jurisdiction over the matter by reason of the parties’
having entered into the lease agreement in Mthatha.
[28]
The issue
of
locus
standi
is the next point. Notwithstanding the fact that the property may
still be registered in the name of the South African Bantu Trust,
the
applicant has attached a copy of a certificate issued in terms of
item 28(1) of Schedule 6 to the Constitution that unequivocally
indicates that the property has become vested in the provincial
government of the Eastern Cape.
[1]
The applicant is the member of the Executive Council responsible for
the exercise and performance of the powers and functions pertaining
to public works and infrastructure. The lease agreement entered into
with the first respondent falls squarely under his authority.
Nothing
further turns on this point, which was eventually abandoned during
argument.
[29]
The applicant’s alleged lack of authority is also relied upon
by the first respondent.
However, the basis for this argument was not
apparent from her answering affidavit or from her counsel’s
submissions. By
reason of the powers and functions attached to the
office of the applicant, the argument is without merit on its own and
cannot
be taken further.
Ius
retentionis
and non-compliance with PIE
[30]
The first respondent argues that the renovations and improvements
previously carried out
at the property gave rise to an improvement
lien inasmuch as she has never been reimbursed for the costs thereof.
Accordingly,
she enjoys a
ius retentionis
over the property.
[31]
A
ius
retentionis
is the right to retain physical control over another’s
property, whether movable or immovable, as a means of securing
payment
of a claim relating to the expenditure of money or something
of monetary value by the possessor of that property, until that claim
has been satisfied.
[2]
The
common law recognises that a lessee has a claim for necessary and
useful improvements
[3]
made and that he or she enjoys a lien over the property while still
in possession thereof and until the claim has been satisfied.
[4]
[32]
The first
respondent avers that the value of renovations and improvements made
to the property was in excess of R250,000. The expenditure
appears to
have been incurred over a period of 23 years but how the amount has
been calculated is not at all apparent from the
faded copies of
invoices and receipts attached to the answering papers. The first
respondent has not provided any details about
the nature of the
renovations and improvements made and whether they were, in fact,
either necessary or useful to the property
in question. The invoices
and receipts, such as are legible, do not assist. In some instances,
there is no reference at all to
either the first respondent or the
address to which materials were delivered. There are no supporting or
confirmatory affidavits
from contractors or suppliers. It is also not
clear whether the amount claimed takes into account the value of the
use of the property
by the first respondent, which may be set off
against any enrichment enjoyed by the applicant in accordance with
established principles.
[5]
Any
outstanding rental, interest thereon, and rates and service charges
could presumably be set off against the claim too.
[33]
Counsel for
the applicant suggested that at least a portion of the first
respondent’s claim has become prescribed. But whether
an
improvement lien, which is a real right,
[6]
and which is raised as a defence to a claim for the return of
property, can be terminated merely by operation of the provisions
of
section 10(1), read with
section 11(d)
, of the
Prescription Act 68 of
1969
, is doubtful.
[34]
The common
law undoubtedly provides potential recourse for the first respondent
in circumstances such as these. Nevertheless, this
court is
constrained by the pleadings and evidence as presented in the papers.
This court is not satisfied, overall, that the first
respondent has
adequately pleaded the alleged
ius
retentionis
or that she has presented satisfactory evidence in support of her
assertion that she has an improvement lien over the property
and that
it can be raised as a successful defence to the applicant’s
cause of action.
[7]
[35]
The remaining point
in limine
pertains to the applicant’s
alleged non-compliance with PIE. It would be preferable to consider
this under the main issues,
as identified earlier.
Whether
the lease agreement has been terminated
[36]
It is common cause that the parties entered into a lease agreement.
There is considerable
dispute, however, about if and when the
agreement was terminated.
[37]
The
applicant contends that the agreement comprised the document attached
to its founding papers. The first respondent disagrees.
In the
absence of any evidence, the first respondent’s bald refutation
of the applicant’s contention does not give
rise to a real
dispute of fact. The document is clearly described as an ‘Agreement
of lease in respect of residential property-
No. [....] L[....]
Street, Town’. It reflects the Department and the first
respondent as the parties thereto, indicates erf
571 as being the
subject thereof, and is signed by both parties and four different
witnesses. If the first respondent had raised
the authenticity of the
document as a serious point of contention, then it would have been
expected that she would have obtained
supporting or confirmatory
affidavits from the witnesses involved or at least have placed
further evidence before the court to
substantiate her refutation.
This was not done and the usual principles must be applied in
relation to the ascertainment of whether
a real dispute of fact
exists, with the result that the applicant’s version must be
accepted.
[8]
[38]
The agreement stipulated in clause 1.3 that it had a duration of one
year and that the
expiry date was 31 March 2012. Furthermore, clauses
20.2 and 20.3 stipulated as follows:
‘
20.2
20.2.1
The Lessor may cancel this agreement 20 business days after giving
written notice of a material breach by the Lessee unless the Lessee
has rectified the breach within that time.
20.2.2
The Lessor shall notify the Lessee in writing not more than 80
nor
less than 40 business days before the expiry date of this agreement,
of the impending expiry date including giving notice of:
20.2.2.1
any material changes that would apply if the agreement is to be
renewed or otherwise
continue beyond the expiry date; and
20.2.2.2
the options available to the Lessee in terms of paragraph 20.1.3
hereunder.
[9]
20.3 Upon expiry of
this Lease at the end of its term, it will automatically continue on
a month to month basis subject to
any material changes of which the
Lessor has given notice in terms of clause 20.2.2.1 unless the Lessee
expressly directs the Lessor
to terminate the Agreement of Lease on
the expiry date or agrees to a renewal for a further fixed term.’
[39]
There is no evidence to the effect that the parties ever agreed to
any material changes
or the renewal of the agreement for a further
fixed term. Rather, there is every indication that, after the expiry
date, the agreement
continued on a month to month basis.
[40]
The applicant places no reliance on an alleged breach as the basis
for termination. Instead,
the applicant asserts that the agreement
has expired, on the basis of the letter delivered to the first
respondent’s address
on 4 November 2019, giving 30 days’
notice.
[41]
In argument, counsel for the first respondent contended that written
notice should have
been provided within not more than 80 and not less
than 40 business days of the expiry of the agreement. This does not
accord,
however, with the text of clause 20.2.2, which restricts the
requirement to any notice given specifically with regard to the
expiry
date itself, as understood in terms of clause 1.3, i.e. 31
March 2012. The agreement does not attach any further requirements to
the notice to be given thereafter, where the agreement continued on a
month to month basis.
[42]
The first respondent also argues that the applicant’s letter
cannot be regarded as
proper notice in view of ongoing negotiations
at the time and the understanding apparently reached by the parties
to the effect
that no eviction proceedings would be instituted. The
applicant refutes this.
[43]
It is a
well-established principle that one month’s notice is required
in circumstances such as these.
[10]
Crucially, the first respondent does not deny that she received the
applicant’s letter. That is sufficient, on its own, for
the
court to find that the lease agreement has indeed been terminated. In
any event, the applicant has, by way of the present application,
made
it abundantly clear that the first respondent’s right to occupy
the premises has been terminated. Similar facts arose
in the matter
of
Taylor
v Hogg
(CA 317/17) [2018] ZAECGHC 64 (10 August 2018), where Plasket J held,
at [10], that
‘
[w]hether a lease
was in place or the relationship between Taylor and Hogg was premised
on a
precarium
, the result is the same: Hogg’s right to
reside in the premises has been revoked by Taylor. As he and his
family no longer
have the consent of Taylor to live in his premises,
they are unlawful occupiers for purposes of the PIE and are liable to
eviction.’
[44]
The first respondent’s continued unlawful occupation of the
property amounts to a
classic example of ‘holding over’.
Whether the applicant has complied with PIE is the final issue for
determination.
Basis
for eviction: PIE
[45]
As a
starting point, the Supreme Court of Appeal clearly indicated in
Ndlovu v
Ngcobo; Bekker v Jika
2003 (1) SA 113
(SCA) that PIE is applicable when an unlawful
occupier is to be evicted from a home, building or shelter used as a
dwelling or
residence. This extends to instances of ‘holding
over’.
[11]
[46]
The first respondent meets the definition of an unlawful occupier in
terms of
section 1
of PIE inasmuch as she occupies the property
without the express or tacit consent of the applicant. Although she
purportedly waived,
in terms of clause 17.2 of the lease agreement,
any right that she might otherwise have had to raise a defence based
on the applicant’s
non-compliance with PIE, it is nonetheless
apparent that the applicant elected (correctly so) to proceed in
accordance with the
provisions thereof.
Section
4(2)
[47]
Since the decision in
Cape Killarney Property Investments (Pty)
Ltd v Mahamba and others
[2001] 4 All SA 479
(A), it must be
accepted that the provisions of
section 4
of PIE are peremptory.
These require, under section 4(2), that written and effective notice
of the eviction proceedings must be
served on the unlawful occupier
and the municipality having jurisdiction at least 14 days before the
date of the hearing.
[48]
In the present matter, the applicant obtained leave from the court,
on 15 September 2020,
to serve the
section 4(2)
notice on the first
respondent with the assistance of the sheriff. The
section 4(2)
notice itself is comprehensive, alleging that the provincial
government of the Eastern Cape is the owner of the property, that
the
first respondent is an unlawful occupier, that eviction proceedings
had commenced, that the date of the hearing was 13 October
2020, that
the grounds for eviction were as stated, that the first respondent
had the right to appear at the hearing with or without
legal
representation and to present any information necessary to enable the
court to make a just and equitable decision, and that
the court could
grant an order for eviction where it was satisfied that the applicant
had met the requirements of PIE.
[49]
The sheriff served the
section 4(2)
notice on both the second and
first respondents on 5 and 9 October 2020, respectively. It is
apparent that a domestic worker, Ms
Fundiswa Yoyo, accepted service
on behalf of the first respondent at the property. A notice of set
down was subsequently delivered
to the first respondent on 26 October
2020, who then served a notice to oppose on the applicant’s
attorneys on 2 November
2020. On the date of the hearing (3 November
2020), the matter was postponed
sine die,
after which full
sets of answering and replying papers were filed.
[50]
The first respondent avers that the court order and the
section 4(2)
notice were not independently served on her, but were served on her
domestic worker. Consequently, argues the first respondent,
the
applicant has failed to comply with PIE.
[51]
There is no
definition for ‘serve’, as used within the context of
section 4(2).
However,
section 4(3)
indicates that the procedure for
the serving of notices and filing of papers is as prescribed by the
rules of the court in question.
To that effect, the High Court rules
stipulate the manner in which service of process may be effected,
which include leaving a
copy thereof at the place of the respondent’s
residence, with a person apparently in charge of the premises at the
time of
delivery.
[12]
[52]
In
Unlawful Occupiers of the School Site v City of Johannesburg
[2005] 2 All SA 108
(SCA), Brand JA held as follows, at [22] –
[23]:
‘…
it is
clear from the authorities that even where the formalities required
by statute are peremptory it is not every deviation from
the literal
prescription that is fatal. Even in that event, the question remains
whether, in spite of the defects, the object of
the statutory
provision had been achieved… The purpose of
section 4(2)
is to
afford the respondents in an application under PIE, an additional
opportunity, apart the opportunity they have already had
under the
rules of court, to put all the circumstances they allege to be
relevant before the court…’
[53]
There is no dispute that the first respondent received the
section
4(2)
notice and that she subsequently served a notice to oppose and
filed a full set of answering papers. Mindful of the court’s
reasoning in
Unlawful Occupiers
, above, it is not unreasonable
to find that the first respondent has had ample opportunity to place
all relevant facts before the
court and that the objects of
section
4(2)
have been achieved.
Section
4(7)
[54]
The next enquiry is rooted in
section 4(7)
of PIE, by reason of the
first respondent’s having been in occupation of the property
for more than six months. The court
is required to decide whether it
would be just and equitable to do so after considering all relevant
circumstances. These include
whether land is available for
relocation, as well as the rights and needs of the elderly, children,
disabled persons and households
headed by women.
[55]
This immediately invites the question as to what approach must be
taken where, as is the
case here, the municipality has played an
inactive role in the proceedings and has not furnished the court with
a report that indicates
whether land is available for relocation.
[56]
In
Port Elizabeth Municipality v Peoples Dialogue on Land and
Shelter and another
[2001] JOL 7693
(E), Smith AJ held that the
availability of land for relocation is but one of a number of factors
to be taken into account when
determining whether it would be just
and equitable to grant an eviction order; it cannot be elevated to a
pre-condition for the
granting of such an order. Subsequently, in
Premier, Eastern Cape and Another v Mtshelakana and Others
2011
(5) SA 640
(ECM), Griffiths J distilled the general principles
relevant to eviction proceedings and went on to address the issue of
the non-joinder
of the municipality, making the following
observations:
‘
[9]
…the function of a court in performing its judicial oversight
is to examine the papers before it and determine
therefrom whether or
not there is an apparent abuse of a fundamental right or the rights
of the respondent or respondents. In practically
every case which has
come before me in this regard it is generally clear from the papers
as to whether or not this is the case.
On the one extreme, there are
the cases generally dealt with in the above-mentioned judgments
involving extremely poor, landless
people who are merely attempting
to exercise the rights afforded them by the Constitution in claiming
a small portion of land and
erecting a modest shelter in order to
protect themselves from the elements. On the other extreme, there are
those cases where well-heeled
tenants have remained in occupation of
rented premises well beyond the rights accorded them in terms of the
lease without paying
rental therefor, despite being in a position to
do so.
[10] It seems to
me that in the former case, and depending on the circumstances
thereof, the court may well decide (in the
exercise of its judicial
oversight) that the local municipality should be joined as a party to
the proceedings on the basis that
it may in those circumstances have
a direct and substantial interest in the proceedings in that it is
obliged to ensure adequate
accommodation for such persons in dire
need of adequate shelter.
[11] In the
latter case, however, it does not appear to me that the municipality
would have a direct and substantial
interest in the matter in that
the respondent concerned would clearly have the means to be able to
source accommodation elsewhere,
either on a rental basis or by
purchasing his or her own property. Thus, in such a case, there would
be no obligation on the court
to ensure that the municipality is
joined as a party.’
[57]
From the above, it can be contended that the absence of a report from
the municipality
with regard to the availability of land for
relocation is a potential obstacle to the court arriving at a
decision particularly
when the municipality has a direct and
substantial interest in the proceedings. In other words, where the
respondent or respondents
are ‘in dire need of adequate
shelter’, to borrow the expression used in
Mtshelakana
,
the submission of such a report assumes greater importance for
purposes of a determination on whether it would be just and equitable
for an eviction order to be granted. This would be in keeping with
the views of Sachs J in
Port Elizabeth Municipality v Various
Occupiers
2004 (12) BCLR 1268
(CC), who remarked, at [36], that
‘…
a court is
thus called upon to go beyond its normal functions, and to engage in
active judicial management according to equitable
principles of an
ongoing, stressful and law-governed social process.’
[58]
The
submission of such a report would undoubtedly assist a court in the
active judicial management of an eviction scenario. However,
the
absence of a report does not preclude the court from granting an
order for eviction where it is satisfied that it would be
just and
equitable to do so.
[13]
Overall, the submission or otherwise of a report on the availability
of land for relocation is but one factor to be considered
by the
court when reaching a decision.
[59]
In the
present matter, the first respondent has been in occupation of the
property since 1997. She is 64 years old and there is
no indication
that she is disabled or that she suffers from poor health. She lives
with her daughter, who is a full-time student.
No mention is made in
the papers of anyone else who may be occupying the property. The
first respondent avers that she has no alternative
accommodation. It
is common knowledge that residential property is scarce in Mthatha
and that the current economic climate, against
the backdrop of the
COVID-19 pandemic and other constraints, is difficult. It is
necessary to balance these circumstances with
the fact that the first
respondent is employed as an educator and that she has alleged that
she has spent in excess of R250,000
on renovations and improvements
to the property. It would appear that she initially occupied the
property free of charge before
paying a rental of R1,000 per month
from at least 1 August 2008.
[14]
The amount was deducted directly from her salary and has remained
constant, without any increase for escalation or interest on
any sum
in arrears. Accordingly, she has enjoyed the benefits of
accommodation provided to her by the state at relatively little
personal cost. At the very least, the first respondent cannot, in any
way, be described as destitute or landless.
[60]
In
Taylor v Hogg
, Plasket J observed, at [6], that
‘…
PIE aims
to balance two interests that are in conflict - the ownership rights
of land owners and rights of access to housing of
those in occupation
of premises. Its touchstone for the balance is the concept of justice
and equity. This, as was pointed out
in Port Elizabeth Municipality v
Peoples Dialogue on Land and Shelter & others, ‘relates to
both interests’: what
is just and equitable must relate not
only to those who occupy land unlawfully but also to the owner of the
land.’
[61]
Here, the applicant is not a private person but an organ of state,
with constitutionally
enjoined functions to perform. It is required
to ensure the proper management of state assets, which includes the
leasing of properties
for a fair rental and the use of same to
accommodate public officials when the need arises, as seems to be the
case here.
[62]
Overall, and having taken into consideration all relevant
circumstances, I am persuaded
that the applicant has established a
basis upon which the first respondent can be evicted.
Relief
and order
[63]
Mindful of the duration of the first respondent’s occupation of
the property, her
age, and the uncontested fact that her daughter
would also be affected by an eviction order, adequate time needs to
be afforded
to her to find alternative accommodation and to vacate
the property. This may cause inconvenience to the applicant but the
applicant’s
role in the history of the matter cannot be
ignored. It is clear that the applicant’s officials have
previously made empty
undertakings or promises to the first
respondent and the occupiers of other state property in relation to
future ownership, creating
false hopes and expectations. Moreover,
the applicant cannot seriously dispute that the provincial government
has benefitted from,
at the very least, the repair and maintenance of
the property over a period of some 25 years, even where the first
respondent has
not properly demonstrated the nature, extent and value
of such renovations and improvements as may have been carried out.
Whereas
the applicant was entitled to withdraw its consent to
continued occupation and to terminate the lease agreement, the
overall management
of the property and the lease with the first
respondent was far from satisfactory and must attract the criticism
of this court.
[64]
Notwithstanding, I am still satisfied that it would be just and
equitable to grant, in
terms of section 4(8) of PIE, the relief
sought by the applicant. Furthermore, a date can be determined by
which the first respondent
and any other occupier is required to
vacate the property and a date upon which the eviction may be carried
out in the event of
the first respondent’s failure to do so.
[65]
In its notice of motion, the applicant sought the assistance of the
police to give effect
to an order for eviction. The applicant has,
however, failed to join the police as a party to the proceedings.
Moreover, there
is no indication at all from the papers that the
respondent or anyone else in occupation of the property would
possibly defy such
an order.
[66]
The only remaining issue is that of costs. The usual principle should
be applied to the
effect that the first respondent is liable for the
applicant’s costs. The matter is not of such a complex nature,
however,
as to justify the applicant’s employment of two
counsel. Accordingly, there is no basis upon which to direct the
first respondent
to pay such additional costs.
[67]
Consequently, the following order is made:
(a)
The lease agreement entered into between the applicant and the first
respondent is declared
to have been terminated.
(b)
The first respondent and all other persons occupying erf 571,
situated at [....] L[....]
Road, Mthatha, are hereby directed to
vacate the aforesaid property by no later than 31 December 2022.
(c)
In the event that the first respondent and any other persons
occupying the property have
not vacated the property by the above
date, the sheriff is authorised and directed to take the necessary
steps to evict the occupants
thereafter.
(d)
The first respondent is ordered to pay the costs of the application.
J.G.A.
LAING
JUDGE
OF THE HIGH COURT
I
agree:
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
I
agree:
L.
A. AH-SHENE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For the
applicant:
Adv Gwala SC with Adv Makiwane, instructed by Mvuzo Notyesi
Attorneys, Mthatha.
For the
respondents:
Adv Matotie, instructed by H. S. Toni Attorneys, Mthatha.
Date
of hearing:
13 June 2022
Date
of handing down of judgment:
26 July 2022
[1]
See, too,
section 4(1)
of the
Government Immovable Asset Management
Act 19 of 2007
, which stipulates that the premier or a designated
MEC is custodian over an immovable asset that vests in the
provincial government.
Here, the applicant is the MEC for the
Department of Public Works and Infrastructure, responsible for the
caretaking of immovable
assets such as the property that forms the
subject of this application.
[2]
TJ Scott, ‘Lien’, in
LAWSA
(Vol 26(1), 3
rd
ed, 2020), at 292.
[3]
Impensae
necessariae
and
impensae
utiles
,
respectively.
[4]
The common law position appears to have become settled after the
decision of the Supreme Court of Appeal in
Business
Aviation Corporation (Pty) Ltd and another v Rand Airport Holdings
(Pty) Ltd
[2007] 1 All SA 421 (SCA).
[5]
See
Brown
v Brown
1929 NPD 41
;
Nortjé
en ‘n Ander v Pool
NO 1966 (3) SA (A) 96; and
Von
Wuldfling-Eybers and another v Soundprops
[1994] 2 All SA 461 (C).
[6]
This can be distinguished from a debtor and creditor lien, which
gives rise to a personal right. See TJ Scott,
op
cit
,
at 293.
[7]
A similar situation presented itself in
MEC
for Department of Public Works v Lennox Bogen Gaeler and another
(Eastern Cape Local Division, Mthatha, Case no. 1298/2020, 17 August
2021, unreported), where the court declined, at [38], to
uphold the
first respondent’s defence, based on an improvement lien, by
reason of the inadequate manner in which the allegations
had been
pleaded.
[8]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), at 634H-635B. Vague and insubstantial
allegations are insufficient to raise a real dispute. See
King
William’s Town Transitional Local Council v Border Alliance
Taxi Association (BATA)
2002 (4) SA 152
(E), 156I-J. Similarly, a bare denial of the
applicant’s allegations will be insufficient to create a
genuine dispute.
See
Peterson
v Cuthbert & Co Ltd
1945 AD 420
, at 428-9;
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T), at 1163 and 1165.
[9]
This seems to be a misnomer. It is likely that a reference to
‘paragraph 20.3’ was intended.
[10]
See
Fulton
v Nunn
1904 TS 123
;
Tiopaizi
v Bulawayo Municipality
1923 AD 317
; and, more recently in this division,
MEC
for Department of Public Works and Infrastructure, Eastern Cape v
Jane Margaret Fourie and another
(Eastern Cape Local Division, Mthatha, Case no. EL 1297/2020, 16
September 2021, unreported), at [34].
[11]
See the discussion thereof in Van der Merwe CG and Pienaar JM, ‘The
law of property (including real security)’,
Annual
Survey
(Juta, 2011), at 943-4.
[12]
See rule 4(1)(a)(ii) of the Uniform Rules of Court.
[13]
This was the approach adopted by Rusi AJ, in this division, in
Jane
Margaret Fourie
,
at [49] (n 10, above).
[14]
This is evident from the spreadsheet attached to the founding papers
as annexure ‘E’.