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[2021] ZANCHC 56
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Sishen Iron Ore Company (Pty) Limited v Khosa and Others (142/2021) [2021] ZANCHC 56 (29 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
142/2021
Heard:
08/10/2021
Delivered:
29/10/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
SISHEN
IRON ORE COMPANY (PTY) LIMITED
Reg
no.
2000/011085/07
Applicant
and
THEMBANI
CLIFFORD
KHOSA
1
st
Respondent
THE
OCCUPIERS OF [....] KARLIEN STREET
ONDERWYSERSPARK
KATHU, ALSO KNOWN AS
ERF
[....], PORTION 0,
KATHU
2
nd
Respondent
GAMAGARA
LOCAL MUNICIPALITY
3
rd
Respondent
JUDGMENT
Mamosebo
J
[1]
The relief sought by the applicant, Sishen Iron Ore Company (Pty)
Limited, is an order
for the eviction of the first respondent, Mr
Thembani Clifford Khosa, and the second respondent comprising the
occupiers of [....]
Karlien Street
,
Onderwyserspark, Kathu, also known as Erf [....], Portion 0, Kathu,
from the property, in terms of the provisions of the Prevention
of
Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998
(PIE). The applicant is represented by Adv. JW Kloek while
the first
respondent appeared in person in opposing the application.
[2]
Mr James Dougal Antony Walker, a Senior Specialist: Accommodation, in
the employ of
the applicant deposed to the founding affidavit on its
behalf. The applicant is the owner of the residential property
located in
the Gamagara Local Municipality Area. As proof of
ownership he attached a Windeed Report from the Deeds Office
database. Though
not reflecting the purchase price amount, next to
purchase price the word ‘agreement’ appears where
provision is made
for the insertion of such detail.
[3]
The first respondent, Mr Khosa, was an employee of the applicant. On
or about 24 July
2018 they concluded a lease agreement, marked
annexure “C”, to lease accommodation from the applicant
on certain conditions
among which is paying nominal rent in the
amount of R1,484.76 per month. Of relevance to this application are
Clauses 4.3 and 4.4
which stipulate:
“
4.3
Notwithstanding any provision to the contrary as
may be contained in this agreement, it is specifically recorded
that,
in the event of the lessee’s employment relationship with the
lessor being terminated for any reason whatsoever, then
in such event
this lease agreement will automatically and simultaneously terminate.
4.4
Notwithstanding clause 4.3 above this
lease agreement can be terminated by any of the parties
by giving 1
(one) calendar month’s written notice on the other party.”
[4]
Mr Khosa’s employment was terminated by his dismissal on 17
January 2020 following
disciplinary proceedings. He was charged on
three counts but was found guilty on Count 2 in that his conduct
amounted to: Competing/conflicting
with interest of the company in
running a private interest/activity so intensive that it distracted
him from fulfilling his duties.
This created frustration and an
unsafe working environment for fellow co-workers and service
providers. This also created dishonesty
in his whereabouts during
working hours and resulted in the breaking of trust relationships and
not living the ethical value of
Anglo American. Count 3 was abandoned
and he was found not guilty on Count 1.
[5]
A
termination of service clearance form marked “D” formed
part of the application. Mr Khosa referred his dismissal for
arbitration to the Commission for Conciliation, Mediation and
Arbitration (CCMA). On 12 August 2020 Mr Martin Rabie, the CCMA
Commissioner, issued an
arbitration
award to this effect:
“
56.
The dismissal of the applicant, Thembani Clifford
Khosa, by the respondent, Kumba Iron Ore Company Sishen
Mine, was
substantively fair.
57.
The applicant is not entitled to
relief and his dismissal is confirmed.”
[6]
The applicant’s attorneys, Hogan Lovells Attorneys, addressed a
notice to Mr
Khosa dated 23 October 2020, marked annexure “E”,
to vacate the property which reads in relevant part in this manner:
“
Dear
Sir
FINAL
NOTICE TO VACATE
1.
We confirm that we act on behalf of Sishen Iron Ore Company
(Pty) Ltd (“our client”).
2.
According to our client’s records you currently occupy
[....] Karlien Street, Onderwyserspark, Kathu without our client’s
permission and/or consent.
3.
We place on record that you were notified that your permission
to reside in [....] Karlien Street, Onderwyserspark, Kathu was
withdrawn
due to termination of employment.
4.
As a result of the above, you and the other occupiers of the
property have no legal right/permission to reside on
the property known as [....] Karlien Street,
Onderwyserspark, Kathu and you as well as any other occupiers are
regarded as illegal
occupiers of the property known as [....] Karlien
Street, Onderwyserspark, Kathu and we hereby demand that you and all
other occupiers
vacate the said property, known as [....] Karlien
Street, Onderwyserspark, Kathu within 14 (fourteen) days after date
of this letter.
5.
You are hereby requested to return the keys to the Housing
Department by 12 November 2020, failing which our client shall
institute
the necessary legal proceedings against you.
6.
Should you not vacate the premises known as [....] Karlien
Street, Onderwyserspark, Kathu by 12 November 2020, we will not
hesitate
to institute the necessary legal proceedings against you for
the following:
6.1
Eviction from the property known as [....] Karlien Street,
Onderwyserspark, Kathu;
6.2
Damages which may include water and electricity consumption,
damage to the property and holding over charges;
6.3
Costs on an attorney and client scale.
7.
Finally, all our clients’ rights remain reserved.
Yours
sincerely
Ansie
Menezes
Senior
Associate”
[7]
Mr Khosa did not vacate the property as demanded. He is in arrears
with the municipal
services in the amount of R30,000.00 and in
respect of the holding-over-charges as at 31 January 2021, the
applicant had suffered
damages in the amount of R97,257.00 which
increased monthly.
[8]
On 07 May 2021 Snyders AJ granted Part A of the application and the
respondents were
served with an eviction notice as required by s 4(2)
of PIE. Mr Kloek, for the applicant,
contends
that, because the respondents are not occupiers in terms of the
Extension of Security of Tenure Act, 62 of 1997 (ESTA)
as the
property is situated in a Municipal area and his income was above the
threshold of R13,625.00, the provisions of ESTA therefore
do not find
application.
[9]
Tshiqi AJA then, in
Randfontein Municipality v Grobler and Others
[2010] 2 All SA 40
(SCA) at para 4 made the following insightful
remarks pertaining to PIE and ESTA:
“
ESTA
and PIE were adopted with the objective of giving effect to the
values enshrined in sections 26 and 27 of the Constitution.
The
common objective of both statutes is to regulate the conditions and
circumstances under which occupiers of land may be evicted.
The main
distinction that broadly speaking ESTA applies to rural land outside
townships and protects the rights of occupation of
persons occupying
such land with consent after 4 February 1997, whilst PIE is designed
to regulate eviction of occupiers who lack
the requisite consent to
occupy. Occupiers protected under ESTA are specifically excluded from
the definition of “unlawful
occupier” in “PIE”.
An order for the eviction of occupiers may be granted under ESTA by a
competent court on
just and equitable grounds, having regard to the
different considerations applicable in each instance. The Land Claims
Court is
a specialist tribunal established by
section 22
of the
Restitution of Land Rights Act 22 of 1994
and enjoys jurisdiction,
subject to
sections 17
,
19
,
20
and
22
of ESTA, to deal with cases
determined under ESTA. It follows therefore that if land was occupied
with consent, either express
or tacit, the jurisdiction of the High
Court to deal with it is excluded in the absence of its consent to
its jurisdiction.”
The
submission by Mr Kloek is therefore correct that ESTA is not
applicable in this instance.
[10]
In his answering affidavit Mr Khosa starts by maintaining that the
dispute between him and the
applicant is
sub judice
because he
has referred the arbitration award to the Labour Court. He further
states that the amount he is purportedly owing as
damage has been
incorrectly computed. He disputes that the deponent to the founding
affidavit, Mr Walker, has personal knowledge
of the matter.
[11]
Mr Khosa admits that his employment has been terminated, but contends
that it is premature to
require of him to vacate the property while
the dispute is still pending at the Labour Court. He also fails to
understand the reason
why the applicant approached the High Court
instead of the Magistrates Court for his eviction. He further
contends that there are
disputes of fact in respect of the amount he
owes the applicant, which would
necessitate
the hearing of
oral evidence. He denies
being an unlawful occupier. He maintains that he has every right to
occupy the property and it will be
just and equitable for him to have
a roof over his head while preparing for the proceedings in the
Labour Court to run their course.
He maintains that the applicant
should have ensured that the municipal services are paid while the
litigation between him and the
applicant remained unresolved.
[12]
The main issue for decision is whether or not Mr Khosa is
an unlawful occupier who stands to be evicted or not. The
issues around damages and the quantum of those damages as well as the
holding thereof are not pertinent or material to the outcome of this
adjudication. The issue of the referral to oral evidence does
not
arise.
[13]
The applicant’s case is that although Mr Khosa’s lease
was terminated lawfully he
is refusing to vacate the property and
maintains that he is not in unlawful occupation. It bears reminding
that
s 26(3)
of the Bill of Rights
provides that ‘
no one may be evicted from their home without
an order of court made after consideration of all the relevant
circumstances.’
[14]
PIE defines an ‘unlawful occupier’ in
s 1
to mean
:
‘
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, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose informal right to land, but for the provisions of this Act,
would be protected by the provisions
of the
Interim Protection of
Informal Land Rights Act 31 of 1996
.’
[15]
When the applicant brought this application for eviction the consent
of the owner had admittedly
lapsed. I say so because Mr Khosa’s
employment was co-extensive with the occupation of the property.
Therefore the notice
by applicant’s attorneys dated
23
October 2020 confirmed the
status quo
that he must vacate
[....] Karlien Street, Onderwyserspark, Kathu, by 12 November 2020.
Therefore, absent any justification, it
makes him an unlawful
occupier because his continued occupation is not accompanied by the
consent of the owner.
[16]
Mr Khosa’s argument that the jurisdiction of this Court in
lieu
of his matter pending in the Labour Court was ousted by the case
pending in the Labour Court is seriously flawed. The
provision of the accommodation was contractual and by consent.
Section 39
of the
Basic Conditions of Employment Act 75 of 1997
stipulates:
“
39
Employees in accommodation provided by employers
1.
If the employer of an employee who resides in accommodation
that is situated on the premises of the employer or that is supplied
by the employer terminates the contract of employment of that
employee-
a.
before the date on which the employer was entitled to do so in
terms of
s 37
; or
b.
in terms of
section 38
, the employer is required to provide
the employee with accommodation for a period of one month, or if it
is a longer period, until
the contract of employment could lawfully
have been terminated.”
[17]
Evidently, Mr Khosa’s employment has been lawfully terminated
since January 2020 after
both the disciplinary enquiry and the CCMA
arbitration processes were conducted and exhausted. Mr Khosa has not
demonstrated a
further right to occupy save
to
argue that his review application is pending at the Labour Court.
[18]
In
Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) at 124 para 18, Harms JA, writing for the majority made the
following pronouncement
s
:
“
[18]
The court, in determining whether or not to grant an order or in
determining the date on which the
property has to be vacated
(s4(8))
,
has to exercise a discretion based upon what is just and equitable.
The discretion is one in the wide and not the narrow sense
(cf Media
Workers Association of South Africa and Others v Press Corporation of
South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800,
Knox D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA
348
(A) at 360G – 362G). A court of first instance,
consequently, does not have a free hand to do whatever it wishes to
do and
a Court of appeal is not hamstrung by the traditional grounds
of whether the court exercised its discretion capriciously or upon
a
wrong principle, or that it did not bring its unbiased judgment to
bear on the question, or that it acted without substantial
reasons
(Ex parte Neethling and Others
1951 (4) SA 331
(A) at 335E,
Administrators, Estate Richards v Nichol and Another
[1998] ZASCA 82
;
1999 (1) SA 551
(SCA) at 561 C – F).”
The
learned Judge went on to emphasise that:
“
[19]
Another material consideration is that of the evidential onus.
Provided the procedural requirements
have been met, the owner is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation.
Unless the occupier opposes
and discloses circumstances relevant to the eviction order, the
owner, in principle, will be entitled
to an order for eviction.
Relevant circumstances are nearly without fail facts within the
exclusive knowledge of the occupier and
it cannot be expected of an
owner to negative in advance facts not known to him and not in issue
between the parties. Whether the
ultimate onus will be on the owner
or the occupier we need not now decide.”
[19]
The relevant facts presented by Mr Khosa for consideration are the
following:
19.1
That the matter is still
sub judice
at the Labour Court on
review;
19.2
That he never benefited from the companies owned by his family and
friend before his termination in
that he was only assisting them;
19.3
It is incorrect that he was a director of any of those companies
despite evidence to the contrary;
19.4
He has not had a stable income since his dismissal by the applicant.
His siblings and friends have,
on a casual basis, engaged him to
deliver goods and services at Lohatla for which he was compensated;
19.5
He resides with two of his cousins who are employed and who subsidize
him financially;
19.6
He is unmarried but has a daughter in Grade 10 who resides with her
grandparents in Limpopo. His father
is also not enjoying good health
and dependent on him for financial and medical support;
19.7
Although in his answering affidavit no mention is
made that he would be rendered homeless should the eviction be
ordered, in his oral argument before me, however, he fleetingly
alluded
to such fate.
[20]
He is not residing with his parents and child on the property. The
applicant is not obliged to
provide him with accommodation beyond the
termination period and the 30 calendar days for the notice to vacate.
The applicant has
no relationship with his two cousins. In actual
fact, there is no reason why the three of them cannot pool their
resources, since
his cousins have stable incomes, to lease
accommodation elsewhere. Mr Khosa has shied away from responding to
this submission made
by counsel for the applicant. In any event, as a
Managing Director of more than one entity, with orders and business
from the Lohatla
military base continuing to pour in, there is no
reason why Mr Khosa would be rendered homeless.
[21]
Section 4(8)
of PIE provides:
“
If
the court is satisfied that all the requirements of this section have
been complied with and that no valid defence has been raised
by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine –
(a)
a just and equitable date on which the unlawful occupier must
vacate the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).”
[22]
The applicant has complied with the requirements of
s 4(8)
of PIE. Mr
Khosa has, in my view, not raised any valid defence. It is
inexplicable why it would not be just and equitable to grant
the
applicant the relief sought. There are 1360 employees of the
applicant on the waiting list for accommodation.
[23]
Wallis JA’s concluding remarks in
City of Johannesburg v
Changing Tides 47 (Pty) Limited and Others
2012 (6) SA 294
(SCA)
at para 54 are apposite:
“
[54]
Infusing grace and compassion into the process of eviction does not
mean that an eviction should be
postponed for as long as possible,
but may mean that it should take place expeditiously. If delayed the
property owner bears the
burden of not having access to its property
whilst the authority responsible for attending to the housing needs
of the persons
in unlawful occupation of the premises postpones the
discharge of its obligations.”
[24]
On the issue of costs. The applicant contended that the eviction
order sought must be granted
with costs whereas Mr Khosa pleaded that
due to his lack of income he will not be able to afford any
costs order. He says because in so doing it will be tantamount
to “
killing an animal that is already dead”.
[25]
Mr Khosa’s true financial position is not known. However, I am
of the view that he may
be downplaying his business interests. He is
certainly not
indigent. The
Constitutional
Court in
Biowatch Trust v Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC) at 242 para 18 held:
“
[18]
Thus in Affordable Medicines [Affordable Medicines Trust and Others v
Minister of Health and Others
2006 (3) SA 247
(CC)
(2005 (6) BCLR
529
;
[2005] ZACC 3)
at para 139] this court stated that the ability
to finance the litigation was not a relevant consideration in making
a costs order.
It held that the general rule in constitutional
litigation that an unsuccessful litigant ought not to be ordered to
pay costs to
the State should not be departed from simply because of
a perceived ability of the unsuccessful litigant to pay. It
accordingly
overturned the High Court’s order of costs against
a relatively well-off medical practitioners’ trust that had
launched
unsuccessful proceedings. Conversely, a party should not get
a privileged status simply because it is acting in the public
interest
or happens to be indigent. It should be held to the same
standards of conduct as any other party, particularly if it has had
legal
representation. This means it should not be immunised from
appropriate sanctions if its conduct has been vexatious, frivolous,
professionally unbecoming or in any similar way abusive of the
processes of the court.”
[26]
Resultantly, and for the aforegoing reasons, I make the following
order:
1.
The first respondent, Thembani Clifford Khosa, and the second
respondent, the occupiers of [....] Karlien Street Onderwyserspark,
Kathu, also known as Erf [....], Portion 0, Kathu, and all persons
occupying through them (collectively ‘the occupiers’)
are
evicted and ordered to vacate the said immovable property together
with all their belongings by 31 January 2022.
2.
Should the first and second respondents or any persons
occupying through them refuse or fail to vacate, together with all
their
belongings by 31 January 2022, the sheriff, alternatively his
duly appointed deputy together with such assistance as the sheriff
deems appropriate, including the South African Police Services, is
authorised and directed to enter into [....] Karlien Street,
Onderwyserspark, Kathu, to evict the first and second respondents and
those persons occupying through them.
3.
The first respondent, Thembani Clifford Khosa, is ordered to
pay the costs of this application on a party and party scale.
4.
A copy of this order must be served on the first respondent by
the sheriff by
affixing a
copy on the main door of [....] Karlien Street, Onderwyserspark,
Kathu, also known as Erf [....], Portion 0, Kathu, and
serving a copy
on the Gamagara Local Municipality.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv. JW
Kloek
Instructed
by:
Hogan Lovells Inc
c/o
Elliot Maris Wilmans & Hay Inc
For
the 1
st
Respondent:
In person (Cell: 064 520 6771)
Instructed
by:
teeceekhosa@gmail.com