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[2021] ZAGPJHC 417
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Vincemus Investments (Pty) Ltd t/a Ponte City v Sindi and Others (26720 /2019) [2021] ZAGPJHC 417 (13 September 2021)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
NO
DATE:
13 September 2021
CASE
NO:26720 /2019
In
the matter between:
VINCEMUS
INVESTMENTS (PTY) LTD
t/a
PONTE
CITY
Applicant
And
NTOMBEKHAYA
SINDI
First Respondent
DEBORAH
MAPHOSA
Second Respondent
THE
CITY OF JOHANNESBURG, MUNICIPALITY
Third Respondent
JUDGMENT
NICHOLS
AJ:
Introduction
[1]
This is an application in terms of the Prevention of illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998 (PIE).
The
applicant, Vincemus Investments (Pty) Ltd t/a PONTE CITY, seeks the
eviction of the first respondent, Ntombekhaya Sindi, the
second
respondent, Deborah Maphosa, and their households’ from units
occupied by the respondents in the building known as
Ponte City
("Ponte"), physically situated at [….] L[....]
Avenue, Berea, Johannesburg. The application is opposed
by the
respondents.
[2]
The first respondent occupies unit number [....] in Ponte with her
household and sub-tenants. The second respondent occupies
unit number
[....] in Ponte with her household and sub-tenants.
[3]
The applicant does not seek the eviction of the respondents’
sub-tenants but only that of the respondents and their respective
households.
The
issue for determination
[4]
The issue for determination is whether it is just and equitable to
grant an order for the eviction of the respondents in the
circumstances and on the facts adduced.
Points
in Limine
[5]
The respondents raised two points in limine which may be disposed of
quite briefly. The first relates to the non-joinder of
the
sub-tenants of units [....] and [....]. The respondents contend that
these sub-tenants are not part of their households and
are not cited
as separate respondents in these proceedings. It was argued that
since the sub-tenants’ rights are directly
affected, their
non-joinder is fatal to this application. The applicant’s
response is that it does not seek an eviction of
the sub-tenants. It
is content for any court order granting eviction to clearly specify
that the eviction relates to and affects
only the respondents and the
members of their households. On this basis alone the argument
regarding non-joinder must fail and
be dismissed.
[6]
The second point in limine relates to the issue of
lis alibi
pendens
. The respondents contend that the applicant has issued
this application in identical duplicate under this matter and under
case
number: 26726/2019 (the Second Case). They have filed their
notice to oppose and answering affidavits in the Second Case and as
long as that matter is currently pending before the court, this
application should be dismissed on the basis that a defence of
lis
alibi pendens
is dismissive in nature.
[7]
It is trite that a special plea or defence of
lis
alibi pendens
is
dilatory in nature and not dispositive of proceedings.
[1]
If the applicant had issued duplicate proceedings, it would not be
allowed to seek judgment on both. The applicant has however,
explained that the confusion about the Second Case arose as a result
of a bona fide error in relation to the recordal of the case
number
of this application. There exists no second application which has
been issued by the applicant under case number 26726/2019
and
accordingly there exists no Second Case for the applicant to even
withdraw. I accept the applicant’s explanation. The
respondents’ point in limine on the grounds of
lis
alibi pendens
is
dismissed.
Application
of the law to the facts
[8]
It is common cause that the provisions of PIE are applicable. The
first respondent has been in occupation of her unit since
1 February
2017 and the second respondent has been in occupation of her unit
since 1 August 2017. The respondents initially occupied
their
respective units in Ponte in terms of fixed term written lease
agreements, concluded with the applicant, which expired by
effluxion
of time. These leases then converted to month-to-month lease
agreements terminable on one month's notice.
[9]
The applicant cancelled the respondents’ lease agreements on 31
July 2018 when letters of cancellation requiring the respondents
to
vacate their units were personally delivered to the respondents. In
view of the cancellation of the lease agreements, the respondents
as
occupiers of the units at Ponte fall within the definition of
‘unlawful occupiers’
[2]
in terms of section 1 of PIE.
[10]
It is trite that an eviction order may only be granted if it is just
and equitable to do so, once a court has had regard to
all relevant
circumstances. If the requirements of s 4 of PIE are satisfied and no
valid defence to an eviction order has been
raised the court must, in
terms of s 4(8), grant an eviction order. When granting such an order
the court must, in terms of s 4(8)(a)
of PIE, determine a just and
equitable date on which the occupiers must vacate the premises.
[3]
[11]
A court must be satisfied that there has been proper service as
prescribed; that
the
consideration of homelessness consequent upon eviction and
availability of alternative accommodation
has
been factored in
where
it has been shown that the personal circumstances of the unlawful
occupiers are such that eviction will result in homelessness
and they
do not have alternative accommodation;
and
that an eviction order would be just and equitable to all parties.
[4]
[12]
Our courts have pointed out that neither PIE nor s 26 of the
Constitution provide an absolute entitlement to be provided with
accommodation. Where eviction is sought at the instance of a private
owner of property, the right to property must also be considered.
[5]
Our courts have clearly indicated in a few decisions that the purpose
of PIE is not to expropriate private property but to rather
delay or
suspend the exercise of an owner’s rights until a determination
has been made whether an eviction would be just
and equitable and
under what circumstances.
[6]
[13]
It is common cause and I accept that the statutory formalities
required for the service of the main application and the s 4(2)
notice have been complied with. It is also common cause that the
applicant is the owner of Ponte and entitled seek the eviction
of the
respondents under PIE. In considering whether an eviction order would
be just and equitable, I have taken into account the
history between
the parties as presented by them on the papers.
[14]
The applicant maintains that it was entitled to cancel the
respondents’ respective lease agreement by providing one
month’s written notice. This is so because the leases, at that
time, had both converted to month-to-month lease agreements
terminable on one month's notice. Although the respondents had both
at that stage and indeed until the service of this application
in
July 2019, consistently paid the rental due, their behaviour and
conduct at Ponte became so disruptive and objectionable that
the
applicant felt obliged to take steps to protect its employees and the
other tenants in the building. The applicant contended
that the
respondents sought to create an atmosphere of discontent at Ponte
which had the propensity to escalate to violence.
[15]
In support of this inference, the applicant averred that due to the
respondents’ conduct in inciting mayhem, discontent
and
violence at Ponte, it feared that it would lose certain commercial
and residential leases as the tenants no longer felt safe.
The
applicant described an incident in early January 2019 when its
management was informed that the respondents and others had
organised
a large toyi-toyi against the management of Ponte and planned to
spray slogans on the walls with aerosol spray. Tenants
were
threatened to participate in this demonstration. In addition on 07
January 2019, the security guards at Ponte had to warn
the caretaker
to lock himself and his wife in his flat as a large number of
tenants, led by the respondents, were making their
way to his flat.
This group of tenants arrived en-masse, pushed the security out of
the way and commenced banging on the caretaker’s
door and
windows. They made racist comments, threatened to kill the caretaker
and his family and only dispersed when the police
arrived on the
scene. This version is supported by confirmatory affidavits deposed
by the caretaker, his wife and one of the security
guards. In reply,
it is supported by confirmatory affidavits deposed to by some of the
tenants.
[16]
In response to these rather grave allegations, the respondents
proffer a flippant bare denial. To quote the first respondent:
‘
I
wonder why the Applicant did not open a case and exhaust its remedies
in the correct forum, if ever I sang and caused violence
this is
unfounded, ill-conceived and not a basis for eviction, we are placed
with stupid facts in this matter I as such deny them,
I invite the
Applicant to re-read the PIE ACT
.’
[17]
The respondents contend that their eviction is sought to hide the
problems faced by the tenants at Ponte which they have helped
exposed. It has no relation to arrear rental because their rental was
up to date until this application was issued. If they do
sing and
organise a toyi-toyi this cannot be a ground for eviction. In support
of this assertion, the respondents refer to the
applicant’s
failure to comply with a Rental Housing Tribunal (RHT) order.
[18]
The RHT order attached by the respondents is, however an interim
ruling delivered on 14 May 2019 in relation to a complaint
relating
to maintenance and unfair charges. In terms of this ruling, the
return date is 16 July 2019 and the respondent is,
inter alia,
ordered to arrange a meeting with the tenants and the service
provider to explain how the pre-paid metering works from a financial
perspective. The Respondent is also ordered to pend all eviction
proceedings that are not related to non-payment of rent until
the
matter is finalised.
[19]
The applicant disclosed the final Findings and Ruling (the Ruling) of
the RHT in reply. The RHT matter was preceded by mediation
between
the parties. The complainant before the RHT was the tenants of Ponte
City and the Respondent was Vincemus Investments (Pty)
Ltd. The
Complainant was represented by the respondents as members of the
tenants committee and Phillip Makwala, described as an
EFF
representative. In terms of the relevant portions of this Ruling, as
part of its general findings for 16 July 2019, the RHT
noted with
concern the unruly behaviour of the Complainant and their
representatives (the respondents in this eviction) and that
it would
not hesitate to invoke the relevant sanctions in the Rental Act to
deal with such conduct at the Tribunal.
[20]
In terms of the further relevant portions of this Ruling relating to
11 September 2019, the RHT recorded that the complainant
must advise
tenants to sign new leases and raise any issues that they may have
with the lease so that they can be addressed. It
recorded that the
same terms and conditions of last signed leases still persist, except
that, since it is now month-to-month, either
party may give 1
calendar month notice to vacate. Either party is entitled to issue a
notice to vacate provided that it is at least
for 1 calendar month.
It ruled that all arrears must be paid immediately and that the
landlord is entitled to proceed with whatever
legal process necessary
in the event of proven non-payment of rent.
[21]
The Ruling by the RHT is not aligned to the conclusions which the
respondents argue for. That their actions as representatives
of the
tenants of Ponte are the reasons that the applicant seeks their
eviction. It leads me to the contrary conclusion because
it lends
support to the applicant’s averments about the respondents’
disruptive and unruly behaviour as tenants at
Ponte and as
individuals who are at the forefront of mobilising tenants to be
disruptive. The egregious behaviour of the respondents
has therefore
been established and is a factor that must be taken into account when
deciding whether an eviction would be just
and equitable.
[22]
It is trite that I am also required to take account of the
respondents’ personal circumstances, in order to satisfy myself
that any eviction order will not result in homelessness upon
eviction. In this regard, I am reliant on the respondents to set out
the details of their personal circumstances in sufficient
particularity such that I can satisfactorily determine whether it is
just and equitable to grant an eviction order, alternatively whether
conditions should be appended to any eviction order.
[7]
The City of Johannesburg (CoJ) has been cited as a party to these
proceedings in the event of there being any prospect of homelessness
as a result of any eviction.
[8]
[23]
Although the respondents have both confirmed that they ceased paying
rental once this application was served upon them, they
did not
adequately explain their reasons for this. The first respondent
submits that she is a single mother of three children and
head of her
household. Two of her children are minors who reside with her. She is
currently unemployed and supports her own children,
her grandchild
and her mother who all reside with her. She pointed out that her
rental was R7000.00 per month and although she
receives social grants
for her children, she was in arrears with her children’s school
fees.
[24]
It was contended on behalf of the second respondent that she is
currently unemployed, depends on social grants and does odd
jobs. The
second respondent has two children, one of whom is a minor in grade
2. Both respondents averred their reliance on their
sub-tenants to
raise monies to pay their rentals.
[25]
The respondents concluded by submitting that because they are both
unemployed, they cannot afford their rental and they will
be rendered
homeless and destitute with their families if they are evicted. To
this end, they will be relying on the third respondent
to assist them
with alternative accommodation. The respondents do not attach any
documents in corroboration or support of these
very brief and terse
assertions. The proof of unemployment provided for the second
respondent predates the lease agreement and
contradicts the assertion
that she was employed when the lease agreement was initially
concluded. No social grant details are provided
either. It is common
cause that both respondents have sub-tenants who pay rental to them,
yet no details are provide of the amounts
paid by these sub-tenants.
The respondents do not contend that they unable to seek alternative
accommodation in the vicinity of
Ponte or at all.
[26]
It is trite that a party resisting eviction must disclose all
relevant circumstances to the court. In
Johannesburg
Housing Corporation (Pty) Ltd v The Unlawful Occupiers of the Newton
Urban Village
[9]
,
Willis
J stated the following in this regard:
‘
All
counsel who have struggled to resist an application for summary
judgment will be familiar with the case of Breitenbach v Fiat
SA
(Edms) Bpk, in which Colman J made it plain that it would be
difficult indeed to show good cause why such judgments should not
be
granted where the defence had been set out 'baldly, vaguely or
laconically '. There is no reason why this principle should not
apply
to occupiers seeking to resist the application for their eviction. Of
course, every move from one dwelling to another carries
with it its
own traumas and disadvantages. That is not enough to resist an
eviction order where an occupier has no right, recognised
at common
law, to remain in occupation of a particular property.’
[27]
On a conspectus of the evidence, I am constrained to conclude and
agree with the applicant’s submission that in support
of their
case opposing the eviction, the respondents have proffered a vague
and laconic version which is aimed at sustaining the
conclusion that
homelessness will ensue if they are evicted, unsupported by any
primary facts.
[10]
The only
reasonable inference to be drawn is that the respondents both stopped
paying their rental as a direct result of the service
of this
application for eviction upon them and not because they were unable
to do so.
[28]
As stated at the outset, provided the procedural requirements have
been met, an owner is entitled to an order for eviction,
unless the
occupier opposes and discloses circumstances relevant to the eviction
order which will militate against the granting
of the order. The
respondents have not disclosed any information that lead me to
conclude that it would be unjust and inequitable
to grant an order
for their eviction from the units occupied by them in Ponte. The
respondents were represented throughout these
proceedings by
attorneys and counsel and therefore would have been advised of what
was required by them in advancing their opposition.
[29]
I also take note of the fact that the respondents represented various
tenants at the RHT and indicated their familiarity with
the rules of
the RHT. They noted, correctly, that a ruling by the RHT has the
effect of a court order. In its general findings
and rulings dated 11
September 2019, the RHT recorded the following:
‘
Effect
of non-compliance of this order:
a. Section 13(13) of
the Act, which provides that-
A ruling by the
Tribunal is deemed to be an order of a Magistrates' court in terms of
the Magistrates Court Act, 1944 (Act No. 32
of 1944) and is enforced
in terms of that Act; and
b. Section 16(g) of
the Act, which provides that-
Any person who fails
to comply with any ruling of the Tribunal in terms of section 13(4)
willbe guilty of an offence and liable
on conviction to a fine or
imprisonment not exceeding two years or to both such a fine and such
imprisonment.’
[30]
Therefore the respondents are both already in breach of the RHT
rulings pursuant to a complaint which was initiated by them
on their
and other tenants’ behalf. They have also been aware since at
least September 2019, that the applicant was entitled
to cancel their
lease agreements on one month’s notice and they were ordered to
bring their arrears up to date. If their
contention that the rental
is unaffordable is meritorious then they have had ample time from at
least September 2019 to seek alternative
more affordable
accommodation.
[31]
Although the respondents aver that they will require the assistance
of the CoJ, to prevent their homelessness, I am not persuaded
on the
facts and evidence advanced by the respondents that the assertion was
made as a genuine plea to prevent homelessness as
opposed to prevent
their eviction in this application. The only averments addressing
potential homelessness upon eviction is the
brief assertion that
‘
should we be evicted we shall be rendered homeless and
destitute, to that end we rely on the third respondent to assist us
with
alternative accommodation’.
[32]
Regardless, it is trite that local authorities owe constitutional
obligations to evicted persons who face homelessness as a
result.
[11]
This obligation, however relates to:
‘
those
who, as a result of poverty and disadvantage, are unable to make
alternative arrangements themselves and require assistance
from the
local authority to do so. It is particularly concerned to ensure, so
far as possible, that those who face homelessness
are provided at
least with temporary emergency accommodation.’
[12]
[33]
The CoJ is a party to these proceedings. The respondents were legally
represented in the preparation of their papers and taking
into
account the respondents’ own particular knowledge of their
rights as tenants and occupiers, I would have expected the
respondents papers to be quite clear and unequivocal on the issue
homelessness and any engagement with the CoJ for temporary emergency
accommodation in the event of eviction. In the circumstances, I am
not satisfied that any facts or circumstances have been adduced
which
may justify the delay of the enforceability of an eviction order on
equitable grounds.
[13]
Conclusion
and order
[34]
I am therefore satisfied that the requirements of s 4 of PIE have
been complied with and that
the respondents have no valid defence to
an eviction order. I am also satisfied that the respondents have not
established that
they cannot afford and will be unable to secure
affordable alternate accommodation.
[35]
In the premises, I grant the following order:
1.
The first and second respondent, and all those who occupy the
property by, through
or under them, being:
1.1
Ntombekhaya (Kelly) Sindi;
1.2
Busisiwe Sindi;
1.3
Bulelwa Sindi;
1.4
Mihlali Sindi;
1.5
Likhona Sindi;
1.6
Ncebo Sindi;
1.7
Amahle Sindi;
1.8
Deborah Maphosa;
1.9
Siyabonga Maphosa; and
1.10
Nqobile Maphosa
And
specifically excluding the sub-tenants, are evicted from the premises
situated at: UNITS [....] and [....] PONTE CITY, [….]
L[....]
AVENUE, BEREA, JOHANNESBURG ("the property").
2.
The first and second respondent, and all those occupying the property
by, through or under them (but excluding the sub-tenants)
must vacate
the property within 45 (forty five) days of the date of this Order.
3.
In the event that the first and second respondents and/or all persons
claiming occupation by, though or under the first and second
respondents (but excluding sub- tenants) fail to vacate the property
in terms of paragraph (2) above, the Sheriff of the Court
is
authorised and directed to evict the first and second respondents,
and all those occupying the property by, through or under
them (but
excluding sub-tenants), from the property, together with any movable
assets.
4.
The first and second respondents are to pay the costs of this
application, jointly and severally, the one paying the other to
be
absolved, including the costs of the application in terms of section
4(2) of the Prevention of illegal Eviction from and Unlawful
Occupation of Land Act, 1998.
T
NICHOLS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on 13 September
2021.
Date
of hearing:
10
May 2021
Date
of judgment:
13
September 2021
Appearances:
Counsel
for the applicant:
Adv C van der Merwe
Attorney
for the applicant:
Vermaak Marshall Wellbeloved INC.
1"
Floor Office Suites
54 on Bath
Corner Tyrwhitt Avenue
ROSEBANK
Counsel
for the respondents:
Adv Mlanga
Attorney
for the respondents:
Precious Muleya Attorneys
Suite 512 Klamson Towers
151Commissioner Street
Johannesburg
[1]
Starita
v Absa Bank Ltd and Another
2010
(3) SA 443
(GSJ) para 7.
[2]
'unlawful
occupier' means a person who occupies land without the express or
tacit consent of the owner or person in charge, or
without any other
right in law to occupy such land…’
[3]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294
(SCA) para 11.
[4]
Changing
Tides
para
12.
[5]
Changing
Tides
para
16.
[6]
Changing
Tides
para
16;
Ndlovu
v Ngcobo: Bekker & Another v Jika
2003
(1) SA 113
(SCA) para 17
;
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (PTY) ltd & another
2012
(2) SA 104
CC para 40.
[7]
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003
(1) Sa 113(SCA)
para 19.
[8]
Changing
Tides
para
47.
[9]
2013
(1) SA 583
GSJ.
[10]
Swissborough
Diamond Mines (Pty) Ltd and Others V Government of The Republic of
South Africa and Others
1999 (2) SA 279
(T) at 323 —325;
Johannesburg
Housing Corporation (Pty) Ltd V Unlawful Occupiers, Newtown Urban
Village
2013 (1) SA 583
(GSJ) para 122.
[11]
Changing
Tides
para
39.
[12]
Changing
Tides
para
47.
[13]
Ndlovu
/ Bekker
para
123I -124C.