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[2021] ZAGPJHC 394
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Balwin Rental (Pty) Limited v Mathaba and Another (2020/34151) [2021] ZAGPJHC 394 (30 August 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
30/8/2021
Case
No.: 2020/34151
In
the matter between:
BALWIN RENTAL (PTY)
LIMITED
Applicant
and
ZACHARIA
SIPHO
MATHABA
First Respondent
THE
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
This
judgment was handed down electronically by circulation per email and
is deemed to be handed down upon such circulation.
Gilbert
AJ:
1.
The applicant seeks the eviction of the
first respondent and all other persons who occupy through him from a
residential section
title unit in Olivedale, Randburg.
2.
Apart
from the procedural requirements of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE”),
it is now settled that a court must make two enquiries where a
private landowner applies for eviction. The first enquiry is whether
there is a defence to the eviction claim, and whether it is just and
equitable to grant an eviction order having regard to all
relevant
factors. If the court decides there is no defence to the eviction
claim and that it is just and equitable
[1]
to all the parties grant the order, it must grant the order.
[2]
But before granting the order, the court must move to the second
enquiry, which is what justice and equity demand, if an eviction
order is to be granted, in relation to the date of implementation of
that order and what conditions must be attached to that order.
Although the order is a result of two discrete enquiries, it is a
single order and therefore 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 such an 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.
[3]
3.
The first respondent did not raise any
challenge relating to the procedural aspects of PIE. The first
respondent appeared in court
and so was aware of the proceedings.
Although the first respondent, a medical practitioner and previously
the chief executive officer
of a state hospital, represented himself,
he was able to admirably argue his position.
4.
The natural starting point is to determine
whether the occupation is unlawful because without unlawful
occupation there can be no
cause for eviction.
5.
The primary defence raised by the first
respondent why his continued occupation of the residential property
is not unlawful is that
the applicant as lessor did not lawfully
cancel the lease agreement. The first respondent contends that
although the applicant
furnished notice calling upon him to remedy
his breach of the lease agreement in having failed to pay rental, the
applicant did
not subsequently cancel the lease agreement consequent
upon that breach. Without cancellation of the lease, the lessee
cannot be
unlawful occupation.
6.
As the applicant seeks an eviction order
which is final relief, the applicant is obliged to establish its case
upon application
of the usual
Plascon Evans
principles to any relevant material
factual disputes.
7.
The following facts are common cause or
cannot be seriously disputed:
7.1.
On 9 December 2019, and then again on
10 December 2019, when the first respondent was substantially in
arrears, the applicant
through its managing agent furnished the first
respondent with seven days’ notice to remedy his breach of the
lease agreement
by settling the arrear rentals and other amounts
failing which the applicant would proceed to cancel the lease and
seek
inter alia
the
first respondent’s eviction from the property.
7.2.
The first respondent made a rental payment
in January 2020. The first respondent failed to settle the
outstanding amounts owing
under the lease agreement. The first
respondent therefore remained in breach as at January 2020.
7.3.
Although the first respondent did not
settle what was then the arrears as demanded in the notices to remedy
of December 2019, the
applicant did not cancel the lease upon the
expiry of the breach period or of a twenty-day period after receipt
by the first respondent
of the notices to remedy.
7.4.
Without at any stage bringing the payments
up to date, the first respondent nevertheless made further payments
in the months of
April and May, and which payments the applicant
accepted. No communications were forthcoming from the applicant
during these months
in relation to a cancellation or otherwise of the
lease agreement.
7.5.
After 5 May 2020, the first respondent
failed to make any payments.
7.6.
The applicant did not during May, June or
July 2020 communicate with the first respondent in relation to a
cancellation or otherwise
of the lease agreement.
7.7.
On 4 August 2020 the applicant’s
managing agent addressed an email to the first respondent, which
refers to previous presumably
telephonic discussions and which
continues as follows:
“
It
is common cause that your Lease Agreement at [....] A[....] has
been terminated by the landlord due to the fact that you
are inter
alia in breach of the obligations under the agreement.
This has been
communicated to you on numerous occasions. We also record that the
unit has been sold in the interim and needs to
be vacated before
15 August 2020.
It
goes without saying that it will be in your best interest to vacate
the unit as a matter of urgency. Please contact the writer
URGENTLY
in order to arrange a check out inspection.
”
7.8.
At least as appears from the papers, this
is the first written communication from the applicant since December
2019 and there was
no prior written communication from the applicant
cancelling the lease.
7.9.
The first respondent responded on 5 August
2020 in a short email as follows:
“
1.
The above matter and your e-mail has reference.
2.
I am not aware of the cancellation of the lease agreement.
”
7.10.
On 7 August 2020 the applicant’s
attorneys come on record and address a formal letter to the first
respondent, which includes
the following paragraph:
“
It
is common cause that to date, you have failed to remedy your breach
under the Lease Agreement concluded with our client. Consequently,
our client has elected to terminate the agreement forthwith.
”
7.11.
The attorneys continue in the following
paragraph of the letter:
“
In
this regard, we refer you to the email correspondence from
Mr Nicolaas Serfontein dated 4 August 2020 wherein you were
inter alia requested to vacate the premises by 15 August 2020.
You have replied to the aforementioned e-mail advising
that you were
not aware of the fact that the Lease Agreement was indeed terminated.
Now you have been informed of the termination,
it goes without saying
that it would be in your best interest to co operate with our
client.
”
8.
The first respondent submits that the
applicant’s managing agent’s email of 4 August 2020
cannot upon any reasonable
reading be notice of cancellation and that
it rather refers to a cancellation that has already happened.
Further, on the common
cause facts and from what appears in the
affidavits, there is no evidence of a prior cancellation of the lease
agreement. This
explains why, the first respondent continues, he the
next day addressed the email stating that he was not aware of any
cancellation
of the lease agreement.
9.
It is in these circumstances that the first
respondent contends that the applicant has not proven a valid
cancellation of the lease
agreement.
10.
I agree with the first respondent that the
applicant’s managing agent’s email of 4 August 2020 is
not notice of cancellation
of the lease agreement.
11.
However, in my view, the applicant’s
attorney’s letter of 7 August 2020 is unequivocally a
cancellation of
the lease agreement. By the time these eviction
proceedings were launched in October 2020, the applicant had
cancelled the lease
agreement.
12.
The first respondent’s challenge to
the validity of the cancellation does not end there. The gravamen of
the challenge is
whether the applicant was entitled to cancel the
lease agreement on 7 August 2020 in circumstances where nothing
had been
heard from the applicant as lessor since December 2019, and
until August 2020 when, as the first respondent describes, “out
of nowhere” the applicant cancelled the lease agreement. What
then is the legal effect of this delay of some eight months
between
December 2019 when notice to remedy was furnished and August 2020
when the lease agreement was cancelled?
13.
As
the first respondent represented himself, he is to be given some
latitude in the expression and formation of his defences. More
so in
the context of an eviction in terms of PIE which requires that that
an order only be granted where it is just and equitable
to do so and
where the court is enjoined to take an active role in adjudicating
the applications.
[4]
14.
The first respondent in paragraph 25 of his
answering affidavit asserts that “
the
applicant gave a tacit approval that the breach was remedied by
payment of R12 650.00 on 20 January 2020
”
and “[
t]his is so because after
expiry of the 7 days’ notice, the applicant did not cancel the
lease agreement and give notice that
I should vacate the property.
”
15.
The first respondent continues, in
paragraph 32 of his answering affidavit, that on the applicant’s
own version on 4 August
2020 the rental was in arrears for an
amount of R83 752.82 and, the first respondent contends, the
applicant was therefore
required to give at least twenty days’
business notice of its intention to terminate the lease agreement
before doing so.
The first respondent continues in paragraph 33 of
his answering affidavit that between 1 February 2020 and
4 August 2020
the applicant did not give any notice to cancel
and then, in paragraph 34, “
out
of nowhere, the applicant notified me on 4 August 2020 of its
election to cancel the agreement of lease
”.
16.
In my view, the first respondent has
sufficiently raised as an defence for consideration whether proper
notice to remedy was given
by the applicant to support its
cancellation of the lease in August 2020. In other words, the
first respondent’s challenge
is not limited to whether the
purported notice of cancellation of 4 August 2020 was good (which I
have found was not a valid notice
of cancellation) but includes
whether adequate notice to remedy was given to sustain the
applicant’s attorney’s cancellation
of the lease
agreement on 7 August 2020.
17.
As appears above, it is common cause that
the only notices to remedy that were given were those in
December 2019. The first
notice, dated 9 December 2019,
refers to the breach by the first respondent of the lease agreement
in failing to pay
the then total rental amount due of R29 238.92,
which the applicant records is a breach of clause 29 of the lease
agreement.
The second notice of 10 December 2019 refers to the
overdue sum being R29 717.86 and that the failure to pay this
amount
constitutes a breach of clause 29 of the lease agreement. The
applicant does not explain why two notice to remedy were given, each
showing slightly different amounts. But what is clear from these
notices is that the material failure or breach relied upon by
the
applicant is the failure of the first respondent to pay what was then
the overdue rental and other charges, whether in the
amount of
R29 238.92 or R29 717.86.
18.
The
parties accept, correctly so, that the
Consumer Protection Act, 2008
[“CPA”] does apply to the lease agreement.
[5]
19.
Section 14
of the CPA is headed “
Expiry
and renewal of fixed-term agreements
”.
Section 1
provides that “
[t[his
section does not apply to transactions between juristic persons
regardless of their annual turnover or asset value
”.
This exclusion does not apply as the first respondent is not a
juristic person.
20.
Section 14(2)(b)(ii)
provides that:
“
(2)
If a consumer agreement is for a fixed-term –
…
(b)
despite any provision of the consumer agreement to the contrary –
…
(ii)
the supplier may cancel the agreement 20 business days after giving
notice to the consumer of
a material failure by the consumer to
comply with the agreement, unless the consumer has rectified the
failure within that time.
”
21.
As set out above, the only written notices
that were given by the applicant that could fall within the
ambit of
section 14(2)(b)(ii)
are the two notices of
December 2019.
22.
The
first respondent initially asserted that this notice failed to comply
with subsection as the subsection requires twenty
business days
to be given to remedy the defect, and in this instance only seven
days’ notice was given. The first respondent
did not press this
point in argument in light of the decision of
Transcend
Residential Property Fund
[6]
where
the court that a notice to remedy that only gives seven days rather
than twenty days to remedy is nonetheless compliant with
the CPA
provided that the lessor waits at least twenty days before cancelling
the lease agreement.
23.
A separate question is whether the December
2019 notices to remedy remained effective as notices to remedy
compliant with the subsection
notwithstanding the subsequent delay of
some eight months before the lease agreement was cancelled in August
2020.
24.
The first respondent’s material
failure as a consumer to comply with the lease agreement of which
notice was given by the
applicant as supplier is the failure to pay
the then already overdue rentals as at date of those notices. No
other failure is mentioned.
25.
It is clear from the arrear rentals set out
by the applicant in paragraph 7.3 of its founding affidavit and
as supported by
its rental statement that sufficient payments were
made in January, April and May 2020 which if added together would
have exceeded
the arrears claimed in the December notices. Can the
applicant in those circumstances still contend that the notices to
remedy
given in December 2019 remain good for purposes of
founding the subsequent cancellation in August 2020?
26.
The applicant in paragraph 7.3 of its
founding affidavit appears to appropriate the payments in January,
April and May 2020
in such a manner to continue to reflect an arrears
amount owing for the period preceding January 2020. The applicant
seeks to keep
alive as an ongoing breach by the first respondent of
the lease agreement his failure to pay the arrears reflected in the
December
2019 notices to remedy. But if the payments that are
subsequently made on 20 January 2020, 2 April 2020 and
5 May
2020 are appropriated towards the oldest debt, then the
arrears amount reflected in the notices would have been settled as at
5
May 2020 and so the breach as set out in those notices would have
been remedied before the lease agreement was cancelled in August
2020.
27.
Absent
is an agreement to the contrary, ordinarily and all other things
being equal, payments are appropriated to the oldest debt
first.
[7]
In any event, the indebtedness that was the subject of the notices to
remedy was the most onerous for the first respondent as it
would be a
failure of payment of those amounts that may give rise to
cancellation, and so should be settled first. The applicant
has not
specifically asserted any entitlement to appropriate the payments to
a specific indebtedness. I was not referred to any
provision in the
lease agreement relating to appropriation of payments.
28.
In any event, no appropriation by the
applicant appears in the statement of account annexed to the
applicant’s founding affidavit,
where the payments are simply
reflected as credits and are then deducted at the end of the
statement from the amounts that are
debited to the statement. Nor
does it appear that the first respondent sought any particular
allocation when making the payments.
The allocation made in the
founding affidavit appears to be an
ex
post facto
exercise.
29.
I therefore proceed on a basis favourable
to the first respondent that by the time the eviction proceedings
were launched, the first
respondent had rectified the breach that was
the subject of the two notices to remedy that had been furnished by
the applicant
in December 2019.
30.
The question that arises is whether this
settlement by the first respondent in May 2020 of the arrears
reflected in the notices
to remedy of December 2019 prevented the
applicant from cancelling the lease agreement in August 2020.
31.
Section 14(2)(b)(ii)
of the CPA expressly
provides that the supplier may cancel the agreement after giving the
requisite notice “
unless the
consumer has rectified the failure
within
that time
”, i.e. within
twenty business days after the written notice.
32.
In the present instance although the first
respondent may have remedied his breach of the lease agreement that
was the subject of
the December 2019 notices to remedy by the time
the lease was cancelled in August 2020, that remedying of the breach
did not take
place within twenty business days of the written
notices. The first respondent has not produced any evidence of
sufficient, or
any, payments within the twenty business day period to
have timeously purged his default. The breaches were only remedied in
May
2020, well beyond the twenty day period.
33.
In my view, then, the application of
section 14(2)(b)(ii)
of the CPA does not invalidate the cancellation.
34.
What
remains is whether the applicant nonetheless waived its entitlement
to cancel the lease agreement because it said nothing about
cancellation from December 2019 to August 2020. Bearing in mind
the factual presumption that a party is not likely deemed
to have
waived his or her rights and that clear evidence of a waiver is
required,
[8]
I again approach
the issue on the common cause facts.
35.
On the common cause facts, from at least
December 2019 the first respondent has always been in arrears in a
substantial amount.
Although he made a payment of R12 650.00 on
20 January 2020, a further payment of R12 640.00 on 2 April
2020
and a third payment of R12 650.00 on 5 May 2020, at no
stage has he been up to date in relation to his payments. The
applicant had given the first respondent notice twice in
December 2019 to pay arrears exceeding R29 000.00 but he
only
made payment of R12 650.00 on 20 January 2020. The next
payment would only be made some ten weeks later, on 2 April
2020.
Can it be said that the applicant has in these circumstances
waived its entitlement to rely upon its right to cancel which had
accrued during December 2019 or early 2020 upon the first respondent
failing to timeously remedy his breach. The only evidence suggesting
that the applicant may have so waived its right is its silence. No
overt act is pointed to by the first respondent to support a
contention of waiver.
36.
On these common cause facts, I cannot find
that the applicant has waived its accrued right to cancel. Rather, on
the common cause
facts the first respondent must have been aware that
he was occupying the premises on ‘borrowed time’. The
position
may have been different had the first respondent between
January 2020 and August 2020 brought his payments up to date. That
did
not happen. To the contrary, since the last payment in May 2020
no payments at all have been made by the first respondent.
37.
In the circumstances, I find that the
applicant’s cancellation of the lease agreement in August 2020
relying upon its accrued
right to cancel consequent upon its notices
to remedy furnished in December 2019 is good.
38.
Having found that the cancellation is good
and that therefore the first respondent’s occupation of the
premises became unlawful
as from 7 August 2020, is it
nonetheless just and equitable to all the parties to grant an
eviction order? As appears
above, this remains part of the first
enquiry.
39.
I am unable to find that it would not be
just and equitable to grant an eviction order. The first respondent
did not miss the deadline
to purge his default by a few days, or even
weeks. At best for the first respondent, as appears above and upon
adopting an appropriation
of payment most favourable to him, he
purged his default of failing to pay the arrears as at December 2019
only five months later,
in May 2020. But he remained in arrears
throughout. The first respondent has not paid any rentals since May
2020. It is now fifteen
months later and the first respondent remains
in occupation. And the lease in any event expired with the effluxion
of time on 31
October 2020.
40.
As
the lease agreement was cancelled in August 2020, the first
respondent had occupied the land as unlawful occupier for less
than
six months at the time these eviction proceedings were initiated in
October 2020.
[9]
41.
In
the circumstances,
section 4(6)
is applicable rather than
section 4(7)
of PIE and therefore the availability of alternate
accommodation by the municipality or other organ of state for the
relocation
of the first respondent and the other occupants of the
premises assumes lesser prominence. In this instance, the applicant
is a
private landowner. In my view, the availability or not of
alternate accommodation is not a factor in the overall assessment of
all the relevant factors, including the personal circumstances of the
first respondent, whether an eviction order is just and equitable
so
as to find that the order should not be granted.
[10]
42.
In my view it is just and equitable that an
eviction order be granted.
43.
I move on to the second enquiry, namely
what justice and equity demand in relation to the date of
implementation of the eviction
order and what conditions must be
attached to that order.
44.
In
the week preceding the hearing, I directed the parties to consider,
and to make submissions, on the effect of the presently applicable
Covid 19 regulations issued in terms of
section 27(2)
of
the
Disaster Management Act, 2002
. I also referred the parties to my
earlier decision of
Rathabeng
Properties (Pty) Limited v Mohlaoli and others
[11]
where I considered this issue and what was to be made of the then
prevailing regulations for Adjusted Alert Level 3, which provides
for
a suspension or stay of an order for eviction.
[12]
45.
It
is now some six months since that judgment. The country emerged from
what was the then Adjusted Alert Level 3 but re entered
a
new Adjusted Level 3 from 26 July 2021.
[13]
My comparison of the relevant regulation as was applicable when I
handed down judgment in February 2021 with the regulation now
in
place,
[14]
shows that the
regulations remain the same.
46.
In
Rathabeng
Properties
I expressed considerable
difficulty in making sense of and applying the relevant regulation,
particularly as the
regulation 36(2)
provides that the court “may”
suspend or stay an eviction order until after the lapse or
termination of the national
state of disaster. I ultimately decided
that there was room under
sections 4(8)
and
4
(12) of PIE for the
court to consider the factors listed in
regulation 37(2)
as part of
all the relevant factors that a court must take into account when
deciding the date of implementation of the eviction
order and what
conditions must be attached to that order, but without being
hamstrung with the problematic formulation and application
of the
regulation. In particular
sections 4(8)
and
4
(12) of PIE provide an
enabling mechanism for the court to stipulate for a stay or
suspension of an eviction order for a lesser
period than may have
been provided for in
regulation 37(2)
, which was until the lapse
or termination of the national state of disaster.
47.
The parties have not made any submissions
as to why my earlier analysis in
Rathabeng
Properties
judgment was incorrect or
should otherwise be distinguished. Indeed, the first respondent in
his written submissions on the effect
of the regulations on the
eviction submitted that it would be just and equitable to stay the
eviction order until the lapse of
Alert Level 3, as I did in
Rathabeng Properties
.
48.
The first respondent had stated that he had
become unemployed in November 2020 when he was dismissed as a
chief executive officer
of a hospital and that he has been unemployed
since then. The first respondent stated in his answering affidavit of
April 2021
that his dismissal was the subject of pending arbitration
proceedings. Those arbitration proceedings have since taken place, in
July 2021. In a supplementary affidavit, the first respondent
discloses the arbitration award in which he was unsuccessful and
so
remains unemployed, and without compensation from his former
employer, the Gauteng Department of Health. The first respondent
had
been dismissed by his employer because of alleged fraudulent overtime
claims. The arbitrator confirmed the dismissal. His erstwhile
employer’s recordal of the reason for the dismissal, for gross
dishonesty and fraud, has, accordingly to the first respondent,
prevented him from earning any income since.
49.
The first respondent also furnished proof
of his inability to pay school fees for his children and the
repossession of his car.
The first respondent explains that his
family survives on donations from congregants.
50.
The applicant’s counsel made the
point that the first respondent was a medical doctor who had now
stayed rent-free in the
property since May 2020 and therefore,
counsel submitted, must have had a considerable savings expense in
not having to pay for
rental and must be in a position to now afford
alternate accommodation. The applicant also submitted that the first
respondent
displayed no
bona fides
in making a full and proper disclosure of his financial position,
such as by way of bank statements.
51.
The first respondent does not explain under
oath why he began defaulting in payment of rent from December 2019,
long before his
dismissal in November 2020, and why he ceased paying
any rentals since May 2020.
52.
The applicant submitted that in these
circumstances, an equitable order would be that the first respondent
be ordered to vacate
the premises within four weeks of the date of
order. The first respondent countered that an appropriate period
would be three months
from the date of the order. The first
respondent motivated three months by stating that this would afford
him a sufficient period
to find locum positions and earn sufficient
monies for a rental deposit and a first month’s rental for new
premises. The
first respondent also pointed out that this would bring
him close to the end of the year so that when he relocated at the end
of
the year it would cause less disruption for his children who by
then should have finished this year’s schooling. But the
disruption of his children’ schooling appears to be overstated
as that has had already largely taken place by his failure
to pay
school fees.
53.
The first respondent does not explain why
he has not sought locum positions previously, or, if he has, this has
not been disclosed
to the court. The first respondent is highly
qualified, being a medical practitioner and with considerable
administration skills
given that he had been the chief executive
officer of a state hospital. The first respondent does not appear to
be unemployable,
and where on his own version is able to potentially
find work as a locum. While it may be that the first respondent does
not obtain
employment of his choosing, particularly in light of the
reasons for his dismissal, given that he is an unlawful occupier
staying
rent free in an relatively upmarket sectional title unit
since at least May 2020, he is not in a position to hold out for
better
employment but would have to take what is available in order
to be able to pay for alternate accommodation.
54.
In these circumstances, I find that a just
and equitable date by which the first respondent must vacate the
property is within two
weeks and that should the first respondent not
so vacate the premises in those two weeks, the eviction order may be
carried out
a further two weeks later.
55.
As was the case in
Rathabeng
Properties
and based upon such relevant
factors as are available in this matter, I am of the view that it
will be just and equitable to stay
or suspend the eviction order
until after the end of Adjusted Level 3 (or the end of Alert
Level 4 or 5 should such an
Alert Level immediately follow on
from Adjusted Level 3). This also accords with the first
respondent’s submissions,
as set out above. This means that the
first respondent and other occupants of the property will have two
weeks after the end of
Adjusted Level 3 (or the end of Alert
Levels 4 or 5 should such an alert level immediately follow on
from Adjusted Level 3)
to vacate the property, failing which the
eviction order may be carried out a further two weeks thereafter.
This effectively affords
the first respondent and his family a month
to vacate to the property once the present Adjusted Level 3 ends
(or Alert Levels 4
or 5 end should such an alert level
immediately follow on from Adjusted Level 3). Although it is
uncertain when Adjusted Alert
Level 3 ends, in my view the first
respondent has sufficient time to find alternate accommodation,
particularly given how long
he has been staying rent-free on the
property and should have been looking for alternate accommodation for
many months now.
56.
The applicant has succeeded in these
proceedings and there is no reason why the usual costs order should
not follow. Costs were
not sought on any particular scale.
57.
The following order is made:
57.1.
The first respondent, and all those
claiming occupation through, by or under him are evicted from
Unit [....], A[....] Estate,
A[....] Drive, Olivedale, Randburg,
Gauteng registered in terms of the Certificate of Registered
Sectional Titles as Section No.
[....] on Sectional Plan No.
S[....] in the scheme known as A[....] situated at Olivedale
Extension 47 Township, City of Johannesburg
Metropolitan
Municipality (“the property”).
57.2.
On condition that the present Adjusted
Level 3 under the regulations issued in terms of section 27(2)
of the Disaster
Management Act, 2002 (“the Regulations”)
has ended (or the relevant period under Alert Level 4 or 5 under
regulations
has ended if such alert levels immediately follow on from
the present Adjusted Level 3), the first respondent, and all
those
that occupy through, by or under him are ordered to vacate the
property within fourteen days of the condition being fulfilled.
57.3.
If the property is not vacated within the
fourteen-day period in sub-paragraph 2 above, the sheriff and/or
deputy sheriff,
assisted by such persons as he or she requires
including the South African Police Services, are authorised and
directed to give
effect to sub-paragraphs 1 and 2 above, including
removing from the property the first respondent and any other
occupants and/or
their belongings, no earlier than fourteen days
after the fourteen-day period in sub-paragraph 2 above.
57.4.
The first respondent is to pay the costs of
the application, including any costs of the removal in terms of the
preceding sub-paragraph.
Gilbert
AJ
Date
of hearing:
16
& 19 August 2021
Date
of judgment:
30
August 2021
Counsel
for the applicant:
Mr G L Kasselman
Instructed
by:
Krause Botha Attorneys, Randburg
Appearance
for the
first
respondent:
In
person
Counsel
for the
second
respondent:
No
appearance.
[1]
It
follows that the unlawfulness alone of the occupation will not
suffice to enable an eviction order to be granted, because,
unlike
under the common law, it must also be just and equitable to grant
the eviction order i.e. justice and equity may require
an eviction
order to be refused even if the occupation is unlawful. It is not
difficult to conceive of instances where this may
happen, such as
whether the lessor validly cancels the lease agreement in accordance
with ibreach and cancellation provisions
because payment was made
one day late.
[2]
It
is unclear to me how a court could in any event decide not to grant
an eviction order once it determines that there is no defence
and
that it is just and equitable to grant the order.
[3]
Para
12 and 25 of
City
of Johannesburg v Changing Tide 74 (Pty) Limited and others
2016 (6) SA 294
(SCA), referred to with approval in
Occupiers,
Berea v De Wet N.O. and another
2017
(5) SA 346
(CC) in paras 44-46. Although this was in the
context of the interplay between sections 4(7) and 4(8) of PIE, the
same applies
in relation to the interplay between sections 4(6) and
4(8) of PIE.
[4]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at para 36, reaffirmed in
Occupiers,
Berea
at para 42.
[5]
See
Transcend
Residential Property Fund Limited v Mati and others
2018
(4) SA 515
(WCC);
Makah
v Magic Vending (Pty) Limited
2018
(3) SA 241
(WCC) and
Magic
Vending (Pty) Limited v Tambwe and others
2021
(2) SA 512
(WCC) where it was not doubted that a lease agreement
would fall within the ambit of the CPA
[6]
Above,
para 56.
[7]
See
the discussion on appropriation of payments in Christie,
The
Law of Contract of South Africa
,
(LexisNexis) 7
th
Ed, (2016) at pp 495 to 498.
[8]
Feinstein
v Niggli
1981
(2) SA 684 (A).
[9]
For
purposes of calculating the period of occupation for sections 4(6)
and 4(7) of PIE, the occupation is calculated from the
date the
occupation becomes unlawful:
Ndlovu
v Ngcobo; Bekker and another v Jika
2003 (1) SA 113
(SCA), para 17.
[10]
See
para 16 of Changing Tides, citing
Ndlovu
v Ngcobo;
above
para 17, particularly that the effect of PIE is not to expropriate
private property.
[11]
[2021]
ZAGPJHC 8 (15 February 2021).
[12]
GNR
11 in GG44066 (11 January 2021).
[13]
GNR
650 in GG 44895 (25 July 2021).
[14]
Chapter
4 of the Consolidated Regulations, as substituted by GNR 651 of 25
July 2021, particularly regulation 37.