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[2021] ZASCA 109
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Davidan v Polovin N O and Others (1674/2021) [2021] ZASCA 109; [2021] 4 All SA 37 (SCA) (5 August 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 167/2020
In the matter between:
PETRA
DAVIDAN
APPELLANT
and
DAVID NEVILLE
POLOVIN N O
FIRST
RESPONDENT
ALAIN RENÉ JEAN
PROUST N O
SECOND RESPONDENT
JONATHAN PAIZEE N
O
THIRD
RESPONDENT
Neutral citation:
Davidan
v Polovin N O and Others
(167/2020)
[2021] ZASCA 109
(5 August 2021)
Coram:
DAMBUZA, MOCUMIE and DLODLO JJA and CARELSE and
KGOELE AJJA
Heard
:
18 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down of the judgment is deemed to be 10h00
on 5 August 2021.
Summary:
Application for
eviction
under PIE – unlawful occupation –Consent to occupy –
under an oral lease – termination –
was consent lawfully
terminated.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Hack AJ sitting as court of first
instance):
1
The appeal is upheld with costs.
2
The order of the court a quo is
set aside, and substituted with the following:
‘
The
application is dismissed with costs.’
JUDGMENT
Carelse AJ
(Mocumie JA and Kgoele AJA concurring):
[1]
The respondents are the trustees of the Botany Bay Trust (the Trust)
that owns a house in Bantry Bay,
Cape Town (the property). The
appellant, Ms Petra Davidan, Ms Elizabeth Gunta, the housekeeper, and
Ms Helene Schonees, the appellant’s
83-year-old mother, occupy
the property. On 13 September 2019, the Western Cape Division of the
High Court (Hack AJ) granted an
order in terms of s 4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE), evicting
the appellant (respondent in the court
a quo)
and all those who occupied through or under her, from
the property.
[2] On 10 December 2019, the high court
dismissed an application for leave to appeal. On 6 February 2020,
this Court granted leave to appeal limited to the following issues:
‘
(a)
Whether any right that the appellant may have had to occupy the
property had been lawfully terminated?
(b) Whether Mrs Gunta and Mrs Schonees had a direct and
substantial interest in the relief sought in the court a quo and were
therefore
necessary parties who ought to have been cited as
co-respondents?’
[3] A chronology of the relevant facts is set
out below. The appellant, a real estate agent and the
late Mr
Mercure Paizee (Mr Paizee) met on 15 March 2002, after he had
separated from his ex-wife. Mr Paizee was residing at the
property at
the time. Ms Gunta moved into the property during May 2002. Soon
thereafter, the appellant and the deceased started
co-habiting at the
property. The property was the matrimonial property of the deceased
and his ex-wife. In 2004 the deceased and
his ex-wife divorced.
[4] The property was registered in the name
of Mr Paizee’s ex-wife. Following an acrimonious divorce,
and
in terms of the settlement agreement, the property was acquired by
and registered in Mr Paizee’s name. Compelled by dire
financial
distress, Mr Paizee agreed after discussions between him and Mr Gamsu
that a ‘capital realization trust’
be created to
undertake a development on the property. The development of the
property did not materialise. Instead, the Trust
was created on 31
March 2004. Mr Paizee transferred the property to the Trust. Mr
Paizee had a 50% beneficial interest in
the Trust, which was
subsequently reduced to 40%. In 2004 a mortgage bond was registered
over the property in favour of Absa bank
for the standard period of
20 years.
[5] Sometime in 2011, the appellant took out
a Discovery Life Policy over the life of Mr Paizee. The purpose
of
the policy was to ensure that in the event of the deceased’s
death, their joint obligations to the Trust in respect of
the
mortgaged bond and municipal charges would be covered. The policy
recorded that in the event of either one of them dying, the
funds
from the policy was to be utilised in full for the purpose of running
the property and in particular, settling all outstanding
municipal
charges since the bond would be settled in full. This was not
disputed. In terms of the policy, the benefit amount was
reflected as
R3 571 428.57 and the total cover was for R5 000 000.00.
According to the Trust, the amount outstanding
on the bond as at the
11 May 2018 was R2 160 226.15. The appellant submits that R
1 411 202.42 would be left and that
this would be enough to
settle any outstanding municipal charges. This allegation is met with
the following response by the trust:
‘
[T]he
first respondent has not been able to provide any proof that she
arranged for the Discovery Life Policy or that she was the
one that
paid the monthly premiums.’
[6] It is not disputed that on 12 July 2004,
the appellant and the trustees of the Trust entered into a
one-year
lease agreement for the property, which would be subject to one
months’ notice on either side. The rental payable
by the
appellant was R20 000 per month. After the expiry of this lease, the
appellant alleged that she and the deceased entered
into an oral
agreement with the Trust, represented by one of the trustees, Mr
Gamsu. The terms of the oral agreement were to the
effect that the
appellant and Mr Paizee would be entitled to occupy the property and
in return they would pay the bond instalments
and the municipal rates
for the duration of the bond.
[7]
On 9 March 2017, after the removal of Mr Gamsu and Mr Paizee as
trustees, Mr Polovin and Mr Proust were
appointed as the new trustees
of the Trust. In 2017, tensions developed between Mr Paizee and the
appellant. On 12 September 2017,
the appellant found Mr Paizee in his
study with a fatal gunshot wound.
[8] After the death of Mr Paizee, the
appellant was requested to enter into a formal lease agreement with
the Trust. On 23 February 2018, the trustees wrote to the appellant
requesting payment of R40 000.00 per month towards the
bond
repayments, in return for a monthly tenancy. The trustees informed
the appellant in their letter that if she refused, she
would be
required to vacate the property by no later than 30 April 2018.
[9] On 24 April 2018, the trustees sent a
further letter demanding that the appellant vacate the property
by no
later than 30 April 2018. On 13 August 2018, the trustees sent a
final (third) letter to the appellant informing her that
should she
not conclude a lease agreement with the Trust for the property within
14 days, the Trust would commence with eviction
proceedings. The
appellant refused to vacate the property and remains in occupation of
the property. As a result of this refusal,
the respondents
successfully launched an application in the high court for the
eviction of the appellant and all those who occupy
through her.
[10]
There was contestation as to whether the right that the appellant may
have had to occupy the property was lawfully
terminated by the Trust.
The high court found that:
‘
It
was only M Paizee who had the “right” to reside on the
property granted to him by the Trust. She therefore obtained
her
occupancy at M Paizee’s behest as his guest or invitee.’
[1]
Simply put,
the high court found that the appellant did not have any consent
whatsoever to reside on the property and, as a result,
she was an
unlawful occupier. The allegation by the Trust was that the
appellant’s consent to reside on the farm was dependent
upon Mr
Paizee’s continued right to occupy the property. Nowhere is it
alleged that it was a term of occupation that if Mr
Paizee died the
appellant’s right to occupy would terminate.
[11]
The jurisdictional requirement to trigger an eviction under PIE is
that the person sought to be evicted must be
an unlawful occupier
within the meaning of PIE at the time when the eviction proceedings
were launched. Section 1 of PIE defines
an unlawful occupier as ‘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.’ Consent is defined as
‘
the
express or tacit consent, whether in writing or otherwise, of the
owner or person in charge to the occupation by the occupier
of the
land in question.’
[12]
The starting point is to establish whether the
appellant is an unlawful occupier under PIE. The key question is
whether the appellant
enjoyed a right of occupation? PIE applies not
only to occupants who occupied land without the initial consent of
the owner or
person in charge, it also applies to occupants who had
consent to occupy but such consent was subsequently terminated. In
both
instances the occupants would be unlawful occupiers within the
meaning of PIE. Consent in eviction applications is a valid defence.
[13]
The first enquiry is whether the appellant had the necessary express
or tacit consent to reside on the property
owned by the Trust. In
other words, was the oral agreement established? Whether or not
someone has the necessary consent to reside
is a factual question.
[14]
The Trust’s cause of action set out in the founding affidavit
is that the appellant is an unlawful occupier
of the property as
defined in section 1(xi) of PIE, in that she is a ‘person who
occupies land without the express or tacit
consent of the owner . . .
Or without any other right in law to occupy such land. . . .’
[15] What is decisive in this appeal is the appellant’s
evidence that on 12 July 2004, she and the Trust entered
into a
one-year lease of the property. After the expiry of this lease, she
and the deceased entered into an oral agreement with
the Trust,
represented by Mr Gamsu, then a trustee of the Trust. In terms of
this agreement, they would continue to occupy the
property, but
in
lieu
of rent they would jointly and severally pay the monthly
bond instalment on the property plus the rates and taxes levied by
the
municipality. This oral agreement is corroborated by the
erstwhile trustee, Mr Gamsu. In an affidavit opposing an application
for
his removal, he stated:
‘
The
applicant [i.e. Paizee] and Petra Davidan (the applicant’s
partner) originally occupied the Trust’s property in
terms of a
written lease agreement, which was concluded with Davidan. A copy of
that lease agreement is annexed hereto marked “BG6”.
It
was subsequently orally agreed between the Trust, applicant and
Davidan, that
, in
lieu of the rental amount, they would jointly and severally make
payment of the monthly bond instalments and the rates and
municipal
charges for services consumed, as charged from time to time by the
municipality.
This
obligation was recorded in clause 10.5 of the acknowledgment of debt
that was ultimately signed between all the parties
.’
(My emphasis.)
[16] The appellant’s version is met with a bare
denial by the Trust, followed by a response that the written
agreement, which had expired, cannot be varied by the oral agreement.
Once again there is no denial that an oral agreement followed
after
the expiry of the written agreement. It is not disputed that although
the appellant and Mr Paizee’s obligations to
the Trust were
joint and several, she assumed the responsibility of paying the bond
instalments and municipal charges because he
was unable to pay due to
his dire financial circumstances. The Trust did not deal with this
allegation in reply. The appellant
contended that an acknowledgment
of debt provided further corroboration of the oral agreement. On 24
August 2010, the appellant
and Mr Paizee signed an acknowledgment of
debt in favour of Atlantic Nominees (Pty) Ltd (Atlantic Nominees) for
monies allegedly
loaned to the Trust. Pertinently clause 10.5 and
10.5.1 provide:
‘
Davidan
and Paizee undertake to continue to pay all bond payments due to ABSA
and all rates and taxes due to the City of Cape Town
on a monthly
basis henceforth.
Paizee
and /or Davidan shall continue to pay all the rental payments in
terms
of the lease
between Botany Bay Trust and Paizee
,
which shall be utilized to pay the monthly bond payments to ABSA
referred to above.’ (My emphasis.)
[17]
In its heads of argument, the Trust submits that para 10.5.1 of the
acknowledgment of debt supports its case that
it was Mr Paizee and
not the appellant that had a lease agreement with the Trust. The
acknowledgment of debt is in favour of Atlantic
Nominees, not in
favour of the Trust. According to paragraphs 10.5 and 10.5.1 of the
acknowledgment of debt, it seems to go no
further than to record that
the rental due under the oral (lease) agreement would be used to pay
the monthly bond instalments of
the Trust. It is not a written
recordal of the terms of the oral lease or who the tenant(s) are. The
reference to ‘the lease
between Botany Bay Trust and Paizee’
is in my view nothing more than an incomplete description of the
lease, intended for
identification purposes only. The fact that the
appellant assumed an obligation in terms of 10.5.1, together with Mr
Paizee, to
make rental payments by way of the payment of the bond
instalments, indicates that the appellant was a co-tenant. The
acknowledgment
of debt was not in respect of the bond payments but in
respect of an alleged loan that was made to the Trust by Atlantic
Nominees.
In any event, Mr Gamsu’s evidence that the appellant
and Mr Paizee had an oral agreement with the Trust to pay the monthly
bond and the municipal charges, has not been challenged. To date the
Trust has not attached any lease agreement that it allegedly
had with
the deceased.
[18]
Pertinently in reply, the Trust denies that the appellant made any
bond payments or municipal payments and alleged
that if she has done
so, she has not attached any proof of such payments. Likewise, if the
Trust has made such payments, as it
says, it too has not attached any
proof thereof. In any event, the appellant has attached a letter
dated the 15 May 2018 to her
affidavit, which was addressed to the
members of the Trust informing them that the mortgage bond over the
property has been settled
in full.
[19]
Mr Polovin, the deponent to the Trust’s affidavit, was not a
trustee when this oral agreement was concluded
and would have had no
personal knowledge thereof
.
[20]
The method for resolving disputes of fact in motion proceedings has
been laid down in
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623;
1984 (3) SA 620.
[2]
The Trust’s reply to the appellant’s
version, that she had an oral agreement with the Trust, is met with a
bare denial.
In
Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
[
2008] ZASCA 6
;
[2008] 2 All SA 512
(SCA);
2008 (3) SA 371
(SCA)
Heher JA held at para 13:
‘
.
. .
if the fact averred lies
purely within the knowledge of the averring party and no basis is
laid for disputing the veracity or accuracy
of the averment. When the
facts averred are such that the disputing party must necessarily
possess knowledge of them and be able
to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a
bare or ambiguous denial the court
will generally have difficulty in finding that the test is
satisfied.’
This does not
create a dispute of fact and for the purposes of this appeal the
appellant’s version must be accepted. Since
the appellant was
the respondent in the motion proceedings her version is the one that
prevails.
In light of
the above, I do not think that the appellant’s version is
far-fetched or clearly untenable. If the appellant was
not a tenant
under an oral lease, why did the Trust wait five months before asking
her to sign a lease or vacate the property?
[21]
If the appellant had no right to occupy the property, then
axiomatically there would be no need to terminate that
right.
[3]
The judgment of the high court does not deal with the question of
termination and neither was it pleaded. The question of consent,
whether it be express or tacit, is integrally linked to whether any
right that the appellant might have had was lawfully terminated.
[22]
Having established that the appellant had the necessary consent, the
next question to be determined is whether
the appellant’s right
to occupy was lawfully terminated. It is significant that the high
court, in its judgment, recognised
that ‘the initial founding
affidavit was very brief. After a lengthy answering affidavit was
filed raising many issues the
applicants filed a lengthy replying
affidavit. This elicited this application for leave to file an
additional affidavit’.
The high court further stated: ‘I
am mindful of the prescripts of uniform rule 6 which intended to
ensure that an applicant
makes out its case in its founding
affidavit. . . .’ The question then is whether the Trust, as
applicants, made out its
case in its answering affidavit? Nowhere in
the founding affidavit does the respondent aver that such consent was
terminated.
[4]
[23]
The entitlement of the appellant to reside on the property stems from
an oral agreement. Once that agreement is
terminated her contractual
right to reside also terminates. The appellant goes on to state that
she has fulfilled all her obligations
in terms of the oral agreement.
The Trust would have been obliged to comply with the terms of the
agreement before it could terminate
the appellant’s right of
residence. There is no suggestion that this oral agreement was
terminated, nor was it pleaded. An
owner must legally terminate a
lease agreement or, as in this case, the oral agreement between the
parties. The underlying basis
for the termination must be legal, for
example the expiration of the lease or a material breach of the terms
of the agreement.
[24]
In
Wormald N O and Others v Kambule
[2005] ZASCA 84
;
[2005] 4 All SA 629
(SCA);
2006
(3) SA 562
(SCA),
Maya AJA
held at para 11 that ‘[a]n owner is in law entitled to
possession of his or her property and to an ejectment order
against a
person who unlawfully occupies the property except if that right is
limited by the Constitution, another statute, a contract,
or any
legal basis’. Once the Trust, as owner of the property, has
lawfully cancelled the oral agreement the appellant will
have no
contractual right to occupy the property.
[25]
Presumably the reason the high court did not deal with the question
of termination of the right to occupy, even
though it was argued, was
because it found that the appellant never had the necessary consent
to occupy the property. The Trust
nevertheless in argument relied on
the letter of the 23 February 2018, and subsequent letters, to
contend that if the appellant
did have consent to reside, her right
to occupy was lawfully terminated. The letter of 23 February 2018
merely calls upon the appellant
to vacate the property if she does
not accept the offer of a monthly tenancy. There is no notice of
termination of an existing
(oral) lease in the letter.
[26]
In
Snyders and Others v De Jager and Others
[2016] ZACC 55
;
2017 (5) BCLR 614
(CC);
2017 (3) SA 545
(CC), the Constitutional
Court held at paras 71 and 72:
‘
The
second difficulty is that no part of the letter said that Mr Snyders’
right of residence was being terminated. The part
on which Ms de
Jager relies simply said that Mr Snyders was required to vacate the
house. The basis for the requirement that Mr
Snyders should vacate
the house must have been that his right of residence had
automatically terminated when his contract of employment
was
terminated. That was not necessarily the position. The right of
residence needed to be terminated on its own in addition to
the
termination of the contract of employment. Until Mr Snyders’
right of residence had been terminated, he could not be
required to
vacate the house. In this case Ms de Jager has failed to show that Mr
Snyders’ right of residence had been terminated.
Therefore, Ms
de Jager had no right to require Mr Snyders to vacate the house or to
seek an eviction order against Mr Snyders .
. .
In any event, even if it
were to be accepted that Ms de Jager terminated Mr Snyders’
right of residence, she has failed to
show, as is required by section
8(1) of ESTA, that there was a lawful ground for that termination and
that, in addition, the termination
was just and equitable. At best
for Ms de Jager, she purported to show no more than that there was a
lawful ground for the termination
of the right of residence.’
[27]
The Trust submits that
Snyders
dealt with ESTA and not PIE
matters. I disagree. Paragraph 71 in
Snyders
dealt with the
common law right of an occupier to occupy, and paragraph 72
specifically dealt with s 8(1) of ESTA.
[28] The appellant is not an unlawful occupier in terms
of PIE. No case has been made out against the appellant, her
mother
or Ms Gunta therefore, the eviction sought against them must fail. It
is accordingly unnecessary to consider the second
ground on which
leave was granted.
[29]
For the above reasons the appeal must succeed.
[30]
The following order is made:
1
The appeal is upheld with costs.
2
The order of the court a quo is
set aside, and substituted with the following:
‘
The
application is dismissed with costs.’
Z CARELSE
ACTING JUDGE
OF APPEAL
Dambuza JA
(Dlodlo JA concurring):
[31]
I have read the judgment of my colleague Carelse JA in the main
judgment. Regrettably, I am unable to agree with
the reasoning and
the order granted therein. My view is that the appellant did not have
consent to occupy the property. Instead
she was in occupation, as the
high court found, at Mr Paizee’s behest and as his guest. I am
also of the view that the non-joinder
of Ms Gunta and Ms Schoonees,
in the application for eviction, was not fatal to that application.
[32]
In seeking the appellant’s eviction from the Trust property,
the trustees alleged that she was in occupation
of the property
unlawfully and had been invited, repeatedly, to negotiate a lease
agreement for the property or vacate it. The
appellant pleaded three
bases for her alleged right to occupy the property. The first was a
common law right. She did not, however,
explain the exact basis of
that common law right. It was common cause that Mr Paizee and the
appellant were never married. When
the appellant came to join Mr
Paizee on the property Mrs Paizee was the owner thereof. And then
ownership was transferred to the
Trust.
[33]
The second basis for the appellant’s occupation of the Trust
property was an alleged oral lease agreement.
The appellant contended
that there was a partnership agreement between herself and Mr Paizee
to acquire the property for development.
Towards this end, in July
2004 a 12 months’ written lease was concluded between the Trust
and the appellant. When that lease
expired an oral lease agreement
was concluded between her and Mr Paizee as lessees, and the Trust,
the appellant contended. The
identity of the trustee(s) with whom the
oral agreement was not divulged. In terms the oral lease the
appellant and Mr Paizee,
in lieu of the rental amount, would jointly
and severally make payment of the monthly bond instalments payable to
Absa Bank in
respect of the property. They would also pay the rates
and Municipal charges for services consumed as charged from time to
time
by the municipality.
[34]
As set out in the main judgment, in support of her contention the
appellant relied on an acknowledgement of debt
which she and Mr
Paizee executed in favour of Atlantic Nominees, in relation to a loan
that they had obtained in the previous years.
However, the
acknowledgement of debt belies the allegation of an oral agreement
concluded with the appellant. Instead the contents
thereof support
the trustee’s contention that the lease agreement was between
the Mr Paizee and the Trust (or the trustees).
[35]
The background to the acknowledgment of debt is this: the loan of R2
million was obtained from the Hatobeda Trust
to enable Mr Paizee to
meet his obligation to acquire the property from his wife in whose
name it was registered prior to the divorce.
Ownership of the
property was then registered in the name of the (Botany Bay) Trust,
with Mr Paizee holding 40% beneficial interest
therein. The 60%
beneficial interest was held in the Trust for the benefit of such
persons as the trustees would nominate.
[36]
Subsequent thereto, all right, title and interest in relation to the
loan advanced by the Hatobeda Trust to the
Botany Bay Trust was ceded
to the Atlantic Nominees. Hence the acknowledgement of debt in favour
of the Atlantic Nominees. By the
time of execution of the
acknowledgment of debt the amount outstanding on the loan had
increased to R5 million which the appellant
and Mr Paizee undertook
to repay in two instalments of R2 500 000.00 each. They
also provided further security to cover
the outstanding amount. It is
in this context that the lease for occupation of the Trust property
was referred to in the acknowledgement
of debt. Importantly, therein
the lease was recorded as having been concluded ‘between the
Botany Bay Trust and [Mr] Paizee’.
As recorded in the
acknowledgement of debt the appellant’s involvement only went
as far as the undertaking to pay, as a co-debtor
together with Mr
Paizee, the principal debt and mortgage bond instalments together
with the municipal rates and other charges.
[37]
More specifically, Clause 10.5 of the acknowledgement of debt dated
24 August 2010 provided that:
‘
10.5 Davidan
and Paizee undertake to continue to pay all bond payments to Absa and
all rates and taxes due to
the City of Cape Town on a monthly basis
henceforth.
10.5.1
Paizee
and/or Davidan shall continue
to
pay all the rental payments in terms of lease between Botany Trust
and Paizee
,
which shall be used to pay the monthly bond payments to Absa referred
to above.’ (My emphasis.)
[38]
The fact that Mr Gamsu may have said, in separate proceedings, that
the appellant was also a lessee, is irrelevant.
Those were mere
allegations and not proved facts or findings of a court. As the
appellant herself alluded, in those proceedings
Mr Paizee disputed
the allegation that the appellant was a lessee. The contents of the
acknowledgement of debt provide objective
evidence in relation to the
identity of the lessee of the Trust property during the relevant
period. Mr Gamsu tendered no evidence
in these proceedings.
Consequently, the alleged oral lease agreement advanced as the second
basis for the right of occupation or
the alleged consent was
disproved.
[39]
The third basis for the right of occupation was a reliance on the
expansive meaning of tacit consent as applied
in the ESTA cases and
by the minority in
Residents of Joe
Slovo.
[5]
The appellant contended that the trustees had tacitly consented to
her occupation of the property because they never objected thereto.
As I will show below, this contention is untenable. Apart from the
alleged acquiescence on the part of the Trust, the appellant
referred
to no other conduct that could be reasonably interpreted as
demonstrating consensus to a lease contract between her and
the
trustees. There was also no evidence as to identity of the trustee(s)
who acquiesced to her occupation or whether all of the
trustees
acquiesced.
[40]
Under the PIE Act an “unlawful occupier” is defined as:
‘
[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, 1996 (Act No. 31 of 1996).’
[41]
In
Residents of Joe Slovo Community
the Constitutional Court
had to determine whether members of the appellant community were
unlawful occupiers under the PIE Act.
The Court affirmed the
traditional interpretation of ‘tacit consent’. Yacoob J,
writing for the majority, held that
tacit consent was a species of
actual consent and that in terms thereof bilateral conduct was
required from the relevant parties.
The Court held that there was no
basis for a broad meaning for the expression, and that: ‘If the
purpose of the lawmaker
was to confer a right of occupation
consequent upon ostensible consent it would have certainly said so’.
[42]
The submission on behalf of the
Joe Slovo
community, that a
broad meaning should be given to ‘tacit consent’, namely,
that the term included acquiescence by the
owner or person in charge
of the property to occupation, was firmly rejected by the Court.
Instead the Court held that any impression
created by the
municipality that it had consented to occupation of its property by
the appellants was no bar to it denying the
absence of consent. The
minority judgment penned by Moseneke J would have upheld a broader
meaning of tacit consent. But it does
not appear that even Moseneke J
envisaged as wide a meaning as advocated by the appellant in this
case. At para 144 the Learned
Judge held:
‘
The
consent required is of an owner or the person in charge. It may be
express or tacit and it may be in writing or otherwise. The
definition is cast in wide terms. It envisages explicit consent but
it also contemplates consent that may be tacit or, put otherwise,
that may be unsaid
but
capable of being reasonably inferred from the conduct of the owner in
relation to the occupier
.’
(emphasis supplied)
As stated
earlier, the appellant pleaded no conduct from which consent to
occupation could reasonably be inferred.
[43]
The broad definition of ‘tacit consent’ has been applied
by the Constitutional Court in the determination
of lawfulness or
otherwise of occupation of land or termination of residence under the
Extension of Security of Tenure Act 62 of
1997(ESTA).
[6]
ESTA is intended to provide measures to facilitate long-term security
of land tenure for the benefit of land occupiers in mainly
rural
areas and on farms. Contrary to the PIE Act ESTA becomes applicable
on the basis that consent was granted for occupation
of land. ESTA
then regulates termination of consent previously granted or deemed to
have been granted to occupiers of or residents
on land.
[7]
[44]
Section 3 (4) of ESTA regulates the presumption of consent to reside
on land where a person has ‘continuously
and openly resided on
[the] land’ for a period of one year. Section 3 (5) is a
deeming provision, applicable where a person
has resided on land with
the knowledge of the owner or the person in charge once residence
thereon exceeds a period of three years.
[45]
Again, contrary to the PIE Act in ESTA the legislature expressly
provided for implied consent based unilateral
conduct or
acquiescence. Therefore, the broad interpretation of tacit consent in
the ESTA cases accords with the words used in
that Act and the
specific objectives and purpose thereof. It is in this context that
tacit consent has been given a broad interpretation
in the ESTA
cases.
[46] The
objective or purpose of the PIE Act was explained by Yacoob J in
Residents of Joe Slovo
as follows:
‘
It
is evident that the purpose of the PIE Act and its Preamble say
nothing at all about the broadening of the definition of “consent”
or the narrowing of the definition of “unlawful occupiers”.
These parts of the Act do not evince the purpose of ensuring
that
occupiers who would have been regarded as unlawful in the past should
be regarded, in terms of the PIE Act, as having a right
of
occupation. The objective in relation to unlawful occupiers is not to
define them differently from the way in which they were
defined
before but “to provide for procedures” for their
eviction. The way in which the purpose is expressed begins
to herald
the notion that what the PIE Act purports to achieve is fair
procedures to be followed when unlawful occupiers are evicted.
The
idea is that an unlawful occupier, despite the absence of tacit
consent of the owner, is a human being and must be treated
as a human
being. A person in occupation of property without the tacit or
express consent of the owner must be treated fairly.
.
. .
There
is nothing new about the definition of “unlawful occupier. It
is the traditional definition. Anyone who occupies without
consent of
the owner or without any right other than to occupy is, and has
always been, an unlawful occupier. Anyone with a right
to occupy is
and had always been a lawful occupier. There is nothing earthshaking
about the inclusion of the phrase “tacit
consent”’.
[8]
[47]
In
Residents of Joe Slovo Community
the Constitutional Court
held that the occupation of members of the community was unlawful,
even when the municipality had provided
certain services to them and
had reached certain agreements with them regarding occupancy of a
proposed development on the land
they were occupying. The
reason was that those services had not been extended voluntarily by
the municipality to the community.
It had done so only out of a sense
of duty, for ‘humanitarian purposes.’
[48]
Similarly in this case there is no evidence that the trustees gave
actual consent to the appellant’s occupation.
Even if one or
more of the trustees acquiesced to her presence thereon (which the
trustees deny) and acknowledged her financial
contribution to
payments due in respect of the Trust property, that cannot be
interpreted as tacit consent to her occupation. The
anomaly of the
appellant’s case is that whereas Mr Paizee had always accepted
the obligation to pay for his occupation of
the property, she insists
on free occupation thereof. Be that as it may, on a conspectus of all
the evidence the appellant had
no consent or any other right to
occupy the trust property.
[49]
The trustees therefore had no obligation to terminate any right of
occupation in relation to the appellant. However,
they still had a
responsibility to act fairly in evicting her from the house. They had
to treat her and those occupying through
her with dignity. In my view
they did.
[50]
Approximately four months after Mr Paizee’s death, on
23
February 2018, the trustees addressed the letter in which they
demanded that the appellant pay R40 000 per month towards
repayment of the bond over the property, the rates and utilities. The
tone of the letter was conciliatory. It read:
‘
You
are undoubtedly aware that the trust has significant monthly expenses
to meet connected to the property at 56 De Wet Road. They
include
bond repayments and municipal accounts. If these debts are not
serviced, the property is put at risk and so is the Trust
and its
beneficiaries.
You
are presumably aware too that the trust has no other source of income
with which to service the debts and the only prospect
of earning any
is to recover a rental from letting the property. You are in
occupation of the property however, and have resisted
all polite
hints and requests to contribute to the monthly expenses or to vacate
the property in order to make way for a paying
tenant. The
unfortunate result is that your occupation is a problem rather than a
solution but you do have the power and the choice
to change that by
deciding to pay.
We
now request you to make a monthly contribution of R40 000 in
return for which we will offer you monthly tenancy on such
further
terms as may be negotiated and agreed upon in due course. If you
decline this request, then we have no alternative but
to give you
notice to vacate the property by no later than 30 April 2018.’
It is evident
from the reference to ‘resist[ing] all polite hints and
requests to contribute . . .’ that this was not
the first
invitation extended to the appellant to legitimize her occupation of
the property.
[51]
The trustees therefore made the appellant an offer similar, in terms,
to Mr Paizee’s tenancy of the property.
They gave her two
months to vacate the property if she was not prepared to accept the
offer. When she rejected it, the trustees,
in a letter dated 24 April
2018, advised her that it was most unfortunate that she had refused
their offer. They advised her that
in the interests of protecting the
beneficiaries they were compelled to insist that she vacate the
property by 30 April 2018. She
still did not accept the offer.
[52]
In yet another letter dated 13 August 2018 the trustees invited the
appellant again to negotiate a lease. They
gave her a further notice
that should she not accede to the final invitation to enter into
negotiations to secure a lease within
14 days or agree to voluntarily
vacate the property within a fair and reasonable period, eviction
proceedings would be instituted
against her.
[53]
The letters clearly alerted the appellant that she had no right of
occupation of the property. It is difficult
to understand the
appellant’s rejection of the invitation to live on the property
on the same conditions as Mr Paizee had
done. It appears that her
view was that she had right to occupy the property free of any
obligation because of the financial assistance
she had given to Mr
Paizee, including her contributions to the bond repayments, the
municipal charges and premiums to the Discovery
Life insurance
policy. In terms of the insurance policy contract, a copy of which
forms part of the record, the insurance was taken
in 2011 by the
Trust as the owner on the life of Mr Paizee, with a ‘natural
person as beneficiary’. Contrary
to this objective
evidence the appellant insisted that she took the insurance policy
with the aim that the proceeds thereof would
be utilized to settle
the balance of the bond account. There is no evidence however that
she contested the payment of the proceeds
thereof to Mr Paizee’s
son as the beneficiary.
[54]
The appellant’s reliance on settlement of the Trust property
bond account from proceeds of the insurance
policy is misplaced. It
was common cause that after receiving the proceeds of the insurance
policy (sometime during the early part
of 2018, it would appear) the
beneficiary, Mr Jonathan Paizee advanced a loan to the Trust for
settlement of the outstanding balance
on the bond and municipal
accounts. As the trustees stated in their correspondence to the
appellant, they still had a legal
obligation to manage the affairs of
the Trust responsibly, in the interests of the Trust beneficiaries.
The appellant’s rejection
of their offer left them no choice
but to evict her from the property. Any financial contributions she
made in relation to the
Trust property or to the insurance premiums
did not entitle her to a right to live in the house.
[55]
With regard to the non-joinder the appellant’s mother and Ms
Gunta, it is significant, as a starting point,
that the defence is
not raised by the alleged interested parties. In the founding papers
the trustees alleged only that the appellant’s
parents might be
residing with her as their property had been rented out. They
previously lived on their own in the Waterkant suburb
of Cape Town
and came to live with the appellant after Mr Paizee’s death.
The appellant’s father had since died. Given
that the
appellant’s mother occupied the property through an unlawful
occupier she too were in unlawful occupation. The appellant
accepted
that the trustees were entitled to evict the appellant and those who
occupied the property through her. In the circumstances
the
notice by the trustees to those occupying the property through the
appellant was reasonable. Counsel for the trustees confirmed
that
there was no intention to evict Ms Gunta who has lived on the
property with the Paizee family for decades.
[56]
In
Residents of Joe Slovo Community
the Constitutional Court
highlighted that the fairness required in the eviction of unlawful
occupiers is not the only factor stipulated
in the Act. The Act also
recognizes the right of the landowners to apply to a court for an
eviction order ‘in appropriate
circumstances’. In
my view an eviction order was just and equitable in this case. The
appellant was not destitute.
The Mongoose Rock Trust of which she was
a beneficiary, was a registered owner of three sectional title
property units. The home
of the appellant’s parent was occupied
on lease. I find no reason why the appellant and her mother would not
be able to secure
alternative accommodation.
[57]
For these reasons I would have dismissed the appeal with costs.
N DAMBUZA
JUDGE
OF APPEAL
Appearances
For appellant:
L
Wilkin SC
Instructed by:
Van Rensberg & Co, Cape Town
Symington & De Kok, Bloemfontein
For respondent:
A du Toit SC
Instructed by:
BBP LAW INC, Cape Town
McIntyre van der Post, Bloemfontein
[1]
Compare
Klaase and Another v van der Merwe N.O.and Others
para [66]: ‘The Land Claims Court’s Findings that Mrs
Klaase occupied the premises “under her husband”
subordinates her rights to those of Mr Klaase. The phrase is
demeaning and is not what is contemplated by section 10(3) of ESTA.
It demeans Mrs Klaase’s rights to equality and human dignity
to describe her occupation in those terms. She is an occupier
entitled to the protection of ESTA. Although Klaase was decided
under ESTA, similar conclusion could be reached under PIE.’
[2]
See
also
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA);
2009 (4) BCLR 393
(SCA);
[2009] 2 All SA 243
(SCA) where this Court, at para 26,
held that
‘
[m]otion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause
facts. Unless the
circumstances are special, they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the
Plascon-Evans
rule that where in motion proceedings
disputes of fact arise on the affidavits, a final order can be
granted only if the facts
averred in the applicant’s (Mr
Zuma’s) affidavits, which have been admitted by the respondent
(the NDPP), together
with the facts alleged by the latter, justify
such order. It may be different if the respondent’s version
consists of bald
or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that
the court is justified in rejecting them on the
papers.’ See also
Media 24 v
Oxford University Press
;
[2016] ZASCA
119
;
[2016] 4 All SA 311
(SCA);
2017 (2) SA 1
(SCA), and
Malan
and Another v Law Society Northern Provinces
[2008] ZASCA 90; 2009 (1) SA 216 (SCA); [2009] 1 All SA 133 (SCA).
[3]
In
Residence of Joe
Slovo Community, Western Cape v Thubelisha Homes and Others
[2009]
ZACC 16
;
2009 (9) BCLR 847
(CC);
2010 (3) SA 454
(CC), The
Constitutional Court also grappled with the question of whether or
not the applicants were unlawful occupiers for purposes
of the PIE
Act and, if so, whether their occupation was lawfully terminated.
Pertinently, the Court considered whether the occupants
had consent
to occupy the land owned by the City of Cape Town? The Court agreed
that at the time that the eviction proceedings
were launched, the
applicants were unlawful occupiers. Yacoob J, Langa CJ and Van der
Westhuizen J held: ‘I conclude therefore
that the occupants
enjoyed no right of occupation. It was therefore not necessary for
the City to terminate their right’.
Whereas, Moseneke DCJ,
Ngcobo J, O’Regan J and Sachs J found that the applicants did
have consent however, it was conditional
and subsequently revoked.
[4]
Director of Hospital Services v Mistry
1979 (1) SA 626
(A) at
635H-636B.
[5]
See para 21 of main judgment.
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(CCT 22/08)
[2009] ZACC 16
;
2009 (9) BCLR 847
(CC);
2010 (3) SA 454
(CC) (10 June 2009).
[6]
See for example
Klaase
and another v Van der Merwe NO and others (Women on Farms Project as
amicus curiae)
2016 (9) BCLR 1187
(CC).
[7]
Section 3 (2) and (4).
[8]
At para 65 and para 67.