MEC for Department of Public Works v Gaeler and Another (1298/2020) [2021] ZAECMHC 27 (17 August 2021)

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[2021] ZAECMHC 27
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MEC for Department of Public Works v Gaeler and Another (1298/2020) [2021] ZAECMHC 27 (17 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO:  1298/2020
Heard
on: 10 June 2021
Date
delivered: 17 August 2021
In
the matter between:
MEC
FOR DEPARTMENT OF PUBLIC WORKS
Applicant
and
LENNOX
BOGEN GAELER
First respondent
KING SABATHA DALINDYEBO
MUNICIPALITY
Second respondent
JUDGMENT
MAJIKI
J
[1]
The applicant describes himself as the nominal political head of the
Eastern Cape department of public works
(the department). Amongst
other duties, he says he is championing the operation of recovering
state property that is massively being
stolen by some people, and
ensures that the
same
is returned to the government. In this matter he applies for an order
declaring that the lease agreement entered into between
his
department and the first respondent was terminated by either
effluxion of time or notice. Further, that the respondent and those
occupying erf 2320 situated at 38 Sisson Street, Fortgale, Mthatha
(the property) to be evicted from the property and other ancillary
reliefs. The application is opposed by the first respondent only.
[2]
According to the applicant, despite the fact that the property
belongs to the Transkei government, the property was
vested in the
Eastern Cape provincial government by the South African government,
the Transkei government’s successor in title.
The vesting was
agreed to as reflected in the attached minutes of the meeting of the
Provincial State Land Disposal Committee, held
on 17 September 2010,
in terms of item 28(1) of Schedule 6 to the Constitution of the
Republic of South Africa Act, 108 of 1996 (the
Constitution).
[3]
It is common cause that on 1 February 2017 the department and the
first respondent entered into a lease agreement
for a period of 24
months (the agreement). That period ended on 31 February 2019.
According to the applicant it was never renewed.
It was governed by
common law after the expiry date, in terms of which it was on a month
to month, with the fist respondent being
entitled to a 30 days’
notice, of termination.
[4]
The lease agreement reflects a sum of R9800.00 (nine thousand eight
hundred rand) per month. Next to that amount there
is a manuscript
endorsement of “1,200.00” and initials “LBS”, presumably
being initials of the first respondent. The first
respondent disputes
that he had an obligation to pay rent in the sum of R9800.00 (nine
thousand eight hundred rand) but the sum of
R1200.00 (one thousand
two hundred rand).
[5]   It is common cause that the first
respondent failed to pay the full amount of the said rent. According
to the first
respondent during September 2005 he concluded a lease
agreement with the applicant. The rent was a sum of R1000.00 (one
thousand
rand) per month. During 2017 the rent increased to R1200.00
(one thousand two hundred rand) per month and during 2019 it
increased
to R1320.00 (one thousand three hundred and twenty rand)
per month. He says he has always complied with the rental obligations
in
the above amounts, therefore he has no arrears. He attached a tax
invoice stamped on 21 November 2019, reflecting a total of R2640.00
(two thousand six hundred and forty rand), described as rent for
September and October 2019, with an indication that the arrears
were
not included.
[6]     According to the applicant the
agreement was terminated.  In terms of the agreement, the first
respondent
had to give the department, a
notice
of intention to lease the property for a further year, not less than
two months before the date of the expiry of the lease.
The rental for
such renewed lease would not be less than the rental payable during
the month preceding the renewal period. Where
consensus could not be
reached about the rent, within 45 days of the said notice, the lease
would terminate on the expiry date. According
to the applicant the
lease agreement was not renewed and could not be renewed due to the
fact that the agreement was breached by
the first respondent by
falling into arrears with his rent. Further, the department could
cancel the agreement in 20 business days
after giving the written
notice of the material breach of the agreement. The agreement also
provided that at the end of the term
of the lease, the lease would
automatically continue on a month to month basis.
[7]    Further, on 9 November 2019 the
respondent was served with a letter confirming the expiry of his
lease. He was
also given a
notice to
vacate the property. He was advised that his occupation, then, was on
a monthly contract and that he would be entitled to
a 30 days-notice
to vacate. He was also informed that he was still obliged to pay rent
until he vacated the premises. The notice
was received by the first
respondent’s son, Buntu Gaeler. The first respondents did not heed
the notice.
[8]    Furthermore the department
required the property for essential services, for housing people with
Covid 19, for
quarantine. It was suffering prejudice of being liable
to pay municipal services, in order to avoid disconnection of these
services.
As at 31 March 2020, it paid a sum of R7,703.28 (seven
thousand seven hundred and three rand twenty
-
eight
cent) to the municipality.
[9]   According to the first respondent, after
the expiry of the lease of 1 February 2017, the lease kept on being
tacitly
renewed and the property being relocated to him as before
until 16 January 2020. The lease has not expired. The applicant
accepted
his rent.  Also, he never received the letter giving
him notice to vacate as the applicant has alleged. The applicant has
been
failing to pay municipal services. He experienced disconnections
due to such a failure.
[10]
Further, various meetings had been held among the tenants of the
department, other stakeholders and government representatives
the
last having been on 8 June 2020. The said discussions culminated in
an agreement that there would be no eviction proceedings
that would
be instituted.
[11]
With regard to the R9 800.00 (nine thousand eight hundred rand)
rent he said that during 2016 or 2017 the first
applicant’s
employees inflated the monthly rent to the said sum without any legal
or logical basis agreement.  From 2005 to
2019, there was an
agreement with the first applicant’s predecessor, Ms Thandiswa
Marau that the rent would not be increased, pending
the sales of the
properties to the existing tenants. However, the issue of disposal
value could not be finalised in time. Despite
the approval of the
disposal strategy by cabinet, the property was never disposed of.
[12]   Further, he effected improvements on
the property, he was supposed to have been re-imbursed or claim a
reduction
of the total costs of the improvements from the rent due.
[13]   He also said even if he had disavowed
the application of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE), which he
denies, the right to housing is his Constitution entrenched right, it
could
not be waived. He stays with 3 minor children and unemployed
cousin. The second respondent has not provided him with alternate
accommodation.
[14]   The applicant in reply stated that the
applicant is not selling the property, he never entered into an
agreement
of sale with the first respondent. The authority to sell
government property vests with the Premier.  As regards the
defence
of lien, it does not arise. It has not been alleged that
there was agreement for the alleged improvements to be done. The
lease agreement
specifically provided that there would no recourse
for maintenance of the property. He was prohibited from effecting
unauthorised
improvements. The applicant denies that the alleged
improvements were effected.
[15]   Further, the applicant submitted that
clauses 15 and 16 of the agreement regulate the issue of damage to
the property.
The applicant therein, is afforded options about how to
approach the issue of damage to property.
[16]   During the hearing Mr. Gwala, counsel
for the applicants, submitted that the termination of the month to
month rental
with 30 day-notice accords with common law.  The
said period was reasonable.
[17]    Further, he submitted that the
applicant never renewed the 2017 contract or tacitly relocated the
property
to the first respondent.  Such an extension in any
event would offend section 217 of the Constitution.
[18]    With regard to the respondent’s
version that the lease was extended until 16 January 2020, regardless
of
the fact that such would have been unlawful, he said that expired
in January 2020 by effluxion of time
[19]    Mr. Matotie, counsel for the
first respondent, in his submissions seemed to agree that the
contract of lease
continued on a month to month basis after the
expiry date. However, he said, the determination of expiry date of
the agreement, in
terms of the provisions of the agreement, would
have been after giving of a written notice of not more than eighty
(80) and not less
than forty (40) business days, before the expiry
date of the agreement, of the impending lease. That notice was not
given or shown
to have been given. In the circumstances, it was not
open for the applicant to make a case of effluxion of time.
[20]   Regarding the receipt of the November
2019 letter, he submitted that, with no confirmatory affidavit from
the person
who allegedly served the letter on Mr. Buntu Gaeler, the
version on the first respondent that he did not receive the notice
ought
to be preferred. This submission seems to ignore that the first
respondent in his own version had also averred that he was surprised
when he received a letter from the applicant’s attorneys of record,
demanding that he should vacate the property or face eviction.
The evidence reveals that only one letter was written to him, that of
November 2019.
[21]   The issue for determination is whether
the applicant is entitled to an order of eviction.
[22]   Firstly, the judgment considers the
argument about 40 (forty) to 80 (eighty) days’ notice.
The first
respondent’s pleaded case was that the 2017 lease was
being renewed up to 16 January 2020.  During that time
,
he was waiting for the implementation of the disposal policy
that would see to the property being transferred to him. Further, he
had a lien over the property.  In argument the case that was
pursued on his behalf was that, he was not given a
notice of about forty (40) to eighty (80) days, in terms of
the agreement.
[23]
In
Swissborough Diamond Mines (Pty) Ltd
and Others v Government of the Republic of South Africa and Others
1999 (2) SA 279
(T) at 324 F-I after explaining the purpose of
affidavits stated:
‘
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit
documentation
and to request the Court to have regard to it. What is
required is the identification of the portions thereof on which
reliance is
placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not so the essence
of our
established practice would be destroyed. A party would not
know what case must be met. See
Lipschitz
and Schwarz NNO v Markowitz
1976 (3) SA
772
(W) at 775H and
Port Nolloth
Municipality v Xahalisa and Others; Luwalala and Others v Port
Nolloth Municipality
1991 (3) SA 98
(C) at 111B—C’. In
Heckroodt
NO v Gamiet
1959 (4) SA 244
(T) at
246A-C and Van
Rensburg v Van Rensburg
en Andere
1963 (1) SA 505
(A) at 509 E-510B, it was held that a party in motion
proceedings may advance legal argument in support of the relief or
defence
claimed by it even where such arguments are not specifically
mentioned in the papers, provided they arise from the facts alleged.’
[24]   In
Minister of Land Affairs and
Agriculture and Others v D& F Wevell Trust and Others
2008
(2) SA 184
(SCA) at 200 A-E
the court
stated:
‘
The second
is that the case argued before this court was not properly made out
in the answering affidavits deposed to by Andreas.
The case
that was made out, was conclusively refuted in the replying
affidavits as I pointed out in paras [18] to [20] above.
It is
not `proper for a party in motion proceedings to base an argument on
passages in documents which have been annexed to the papers
when the
conclusions sought to be drawn from such passages have not been
canvassed in the affidavits.  The reason is manifest
- the other
party may well be prejudiced because evidence may have been available
to it to refute the new case on the facts.
The position is
worse where the arguments are advanced for the first time on appeal.
In motion proceedings, the affidavits
constitute both the pleadings
and the
evidence:
Transnet Ltd v Rubenstein
,
and the issues and averments in support of the parties’ cases
should appear clearly therefrom.  A party cannot be expected
to
trawl through lengthy annexures to the opponent’s affidavit and to
speculate on the possible relevance of facts therein contained.
Trial by ambush cannot be permitted.’
[25]   In the circumstances, I accept that,
the first respondent had defined his case in the answering
affidavit.
The applicant had prepared to answer to that case.
Nowhere in the answering affidavit did the first respondent point to
any
clause he was relying on in the agreement, in his defence. He is
not permitted to seek to pursue a different case in argument.
Furthermore,
the agreement regulated what would happen after the
expiry of the lease.  That provision is the pleaded case of the
applicant.
Clause 20.3 of the agreement provided:
‘
Upon
expiry of this Lease at the end of term, it will automatically
continue on a month to month basis …’
Forty (40) to eighty (80) days would have no place in
terminating a month to month contract.  The 1
st
February 2017 lease had come and gone.
[26]   The next consideration is whether the
agreement terminated between the department and the first
respondent.
It is common cause that the agreement was from 1
February 2017 to 21 January 2019.
In
Tiopaizi
v Bulawayo Municipality
1923
AD 317
at
325
the court
stated the following:
‘
Now
if the parties agree upon a definite time for the expiration of the
contract, it follows that no notice of termination is required.
The contract expires by effluxion of time, and with it the
relationship of lessor and lessee ceases.  But in the same
passage
Voet
proceeds to point out that by our law what is called a tacit
relocation may take place, e.g., by allowing the tenant to retain
possession
of the prem
ium
after the
contract has expired (D. 19.2,
lex
13, 11
)
.
Now, as is stated in D. 19.2,
lex
14, tacit relocation is one of the consensual contracts for which
nudus
consensus
sufficed
even in the Roman law, such consent being inferred from the fact that
the relationship is allowed by both parties to
continue after the
contract had come to an end.  It was to guard against this
danger, therefore, and not to terminate the contract,
that notice
became essential.  This explains Sande,
Dec.
Fris
.
111, tit. 6, def. 1: Dat om de wederverhuring te beletten, den
huurder van het huis of het land voor den eersten Januar
i
denuntiatie of
opsegging gedaan moet worden.’’ Unless notice is given before the
date of the expiry of the lease, it will be too
late to resist the
presumption that there has been a tacit relocation of the premises.
And from this it follows that no definite
time was required for such
notice. As long as the notice was given before the contract actually
came to an end it sufficed.’
[27]   No notice was served before the
expiration of lease.  Further, the lease relationship did not
cease after 31
January 2021.  I am therefore of the view that
the lease did not terminate by effluxion of time.
[28]   Similarly, I am of the view that the
tacit relocation of the property did not happen because the agreement
regulated
what would happen after the termination of the lease.
In my view that clarifies the tenancy of the first respondent, for
the
period from 17 February 2017, when the agreement was signed
onwards. As soon as the lease expired the common law position, as
encapsulated
in clause 20.3 of the agreement and transcribed to the
November 2019 notice, kicked in.
[29]   As regards notice in a month to month
contract in
Tiopaizi
(
supra
) at 326 it was stated:
“
From the
various cases decided in our courts it may now be taken as settled
that in the absence of agreement or custom to the contrary,
a monthly
contract of letting and hiring for an indefinite period requires a
month’s notice, to expire, in all cases except in
the case of
domestic or menial servants, at the end of a month.
[30]   In the November 2019 notice the
applicant invoked clause 20.3 of the agreement, referred to above. I
am therefore
satisfied that the 30 days’ notice terminated the
contract. The present application was issued on 15 May 2020, that was
long after
the 30 day-notice to vacate.
[31]   The applicant also gave notice of the
cancellation for the reason of a material breach, that of failure to
pay rent.
He also invoked provisions of clause 18 of the agreement in
relation to refusal or failure to pay the rent.
[32]   I am of the view that the first
respondent’s averment of a further agreement for reduction of the
rent to R1 200.00
(one thousand two hundred rand) cannot be
accepted.  The endorsement of the said amount was not signed by
all parties.
It is a term contained in the agreement that the
variation of the lease would be of force and effect unless reduced to
writing and
signed by both parties.  I accept that he was
obliged to pay the full amount of rental provided for in the
contract.
[33]   As for the submission that there were
discussions about the sale of the property, the applicant averred
that the
property is not for sale, it is required for essential
services.
[34]   Nothing much need be said about Mr
Gwala’s submission that the extension of the lease agreement by
tacit relocation
would be unlawful, for non
-
compliance
with section 217 of the Constitution.  The organ of state may
not simply renew a contract.  A finding that there
was no tacit
relocation of the property to the first respondent has already been
made.
[35] Section 217 of the Constitution provides:
‘
When an
organ of state in the national, provincial or local sphere of
government … contracts for goods or services, it must do so
in
accordance with a system which is fair, equitable, transparent,
competitive and cost
-
effective’.
[36]   In
BW Bright Water Way Props (Pty)
Ltd v Eastern Cape Development Corporation
2019 (6) SA 443
(ECG)
at 464 G to 467 H Stretch J analysed the meaning of section 217 in
relation to when the organ of state is letting out state
owned
assets.  In that case, the respondent’s property policy and
procedure manual stated the purpose of letting out property
as being
to contribute to its income and profitability.
[37]   In my view, in this matter the court
has not been furnished with sufficient information about the process
of how
the applicant undertakes the lease and or extension of its
property; what its regulatory instruments provide, with regard to a
number
of factors, including the consideration of the amount of the
transaction.  The court is therefore not able to measure whether
the applicant’s dispensation in that regard is fair, equitable,
transparent, competitive and cost-effective or not, this issue
having
been raised for the first time in argument.
[38]   As regards improvement
lien
, the
first respondent’s allegation of the applicant’s consent to the
improvements and compensation for such, is not supported
by the
provisions of the lease agreement.  According to the applicant,
clause 15.1.2 required the first respondent to give the
applicant
notice of any need for repairs after he took occupation.  No
such notice was given by the first respondent.
He also has not
stated the amount or extent of the cost of improvements that, amongst
other, the applicant had agreed to refund him.
Most importantly, in
instrument the learned Judge referred to the first respondent has not
proved the alleged improvements.
The globular amounts reflected
in the annexed bank statements do not assist in any way.  In his
version he is refusing to pay
rent because the applicant had agreed
to refund him of improvements he made.  There is no indication
of what he paid, for what
and how much has already recouped. In my
view, the manner in which the allegations of the improvement have
been made, cannot constitute
a defence to the current proceedings.
[39]    The final aspect relates to the
determination of whether it is just and equitable, in the
circumstances of
the matter, to evict the first respondent.  I
seem to agree with the first respondent that the PIE provisions ought
to be applicable.
Its provisions provide protection against
eviction to unlawful occupiers, not room has been provided for PIE
provisions to apply
or to be waved upon election of the tenant.
The instance where its application is excluded are provided for in
the Act itself.
PIE Act sets out requirements that must be
satisfied before the court may grant an order for eviction.
[40]   The first procedural requirement is
that, not less than 14 days of the hearing of the matter, notice of
the proceedings
must be served on the lessee and the local
municipality. In this matter it was met.
[41]
Section 4(7) of PIE, in instances where the unlawful occupier has
been in unlawful occupation for more than six months,
requires the
court to consider whether land has been made available or can
reasonably be made available by the municipality or organ
of state or
another land owner for the relocation of the unlawful occupier and
including the rights and needs of the elderly, children,
disabled
persons and households headed by women.  In
City
of
Johannesburg
v Changing Tides 574 (Pty) Ltd and others
2012 (6) SA 294
SCA at paragraph 11 the court went on to suggest that
“…
if
the requirements of section 4 are satisfied and no valid defence to
an eviction has been raised the court must, in terms of section
4(8)
grant the eviction order.  When granting such order, the court
must in terms of section 4(8) of PIE, determine a just and
equitable
date on which the unlawful occupier or occupiers must vacate the
premises. The court is empowered in terms of section 4(12)
to attach
reasonable conditions to an eviction order”.
[42]
The first respondent has only stated that he resides in the
property with three minor children and his unemployed
cousin. The
second respondent has not responded regarding provision of alternate
accommodation. The first respondent has not stated
that he would not
be able to afford to rent or purchase another property. He merely
emphasised his being intent on buying this property,
which is not for
sale.  In fact, he refuses to pay the stipulated rent because he
says it is not market related.  He also
refuses to pay rent
because he says he is supposed to be repaid monies he expended on the
property.  I am not of the view that
he would not be able to pay
rent, in respect of another property he may consider to be let out at
a market related rental, which
is within his means, and even to buy
it, for that matter.
[43]   The first respondent wants to continue
holding over the property without paying any rent, whilst the
department’s
liability for rates and services are escalating.
When I balance his need to remain in the property on the basis that
the second
respondent has not availed alternate accommodation and the
essential service in the discharge of its social responsibility that
the
applicant requires the government property for, I am of the view
that it is just and equitable to grant the eviction order.
[44]   In terms of section 4(9) of PIE the
court is obliged to determine a just and equitable date of eviction.
The country
is currently in alert level 3 of lockdown due to the
Covid 19 pandemic. The applicable regulation is Regulation of alert
level 3
gazetted in gazette 44895 of 25 July 2021.   In
terms of regulation 37 evictions during this period are prohibited.
Further,
the first respondent has been in occupation of the
property for about sixteen (16) years.
In the circumstances I consider the following order as
appropriate.
1.
The first respondent is hereby declared to
be unlawful occupier of erf 2320 situated at 38 Sisson Street,
Fortgale, Mthatha.
2.
The first respondent is hereby liable to be
evicted from the property.
3.
The date of eviction is hereby suspended
until after sixty (60) days of the last day of the national state of
national disaster prohibiting
evictions.
4.
The first respondent is hereby ordered to
pay the costs of the application.
B MAJIKI
JUDGE
OF THE HIGH COURT
Counsel for the applicant     :
Mr Gwala SC and Ms Nqabeni
Instructed by                       :
Messrs Mvuzo Notyesi Incorporated
2
nd
Floor, Old T.H. Madala Chambers
No. 14 Durham Street
MTHATHA
Counsel for the first respondent :            Mr
Matotie
Instructed by
:                Messrs
H S Toni Attorneys
1 Rooste Avenue
Cnr Nelson Mandela Drive & Eli
Spilkin Street
MTHATHA