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[2019] ZAGPPHC 184
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Masoga and Others v Sweetnam and Another (A263/2018) [2019] ZAGPPHC 184 (21 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: A263/2018
21/5/2019
In
the matter between:
JOHANNA
MASOGA & OTHER OCCUPANTS
Appellants
and
RAYMOND
SWEETNAM
First Respondent
CITY
OF TSHWANE
Second Respondent
JUDGMENT
AC
BASSON, J
[1]
This is an appeal against the judgment
and order handed down by Magistrate Swanlow on 30 April 2018 in the
Magistrates Court for
the District of Tshwane held at Pretoria North.
[2]
In terms of the order granted by the
learned Magistrate, the first applicant and all persons occupying
through her ("the occupiers"
or "the appellants")
were evicted from the property situated in Pretoria North. Further in
terms of the order, the occupiers
were ordered to vacate by no later
than 30 June 2018 failing which the Sheriff of the Court is
authorised to carry out the eviction
order.
[3]
This matter concerns two important
issues: The first issue relates to evictions in the absence of any
information regarding alternative
accommodation. The second issue
relates to the role of Organs of State in eviction proceedings in
terms of section 4(7) of Prevention
of Illegal Eviction from and
Unlawful Occupation of Land Act
[1]
(hereinafter referred to as the "PIE Act").
Condonation application
[4]
The appellants apply for condonation for
the late filing of the Notice of Appeal. The application for
condonation is not opposed.
[5]
The eviction order was granted on 30
April 2018. Lawyers for Human Rights obtained formal instructions on
31 May 2018. The notice
of appeal was filed on 26 June 2018.
[6]
Although the appeal is late, I am
satisfied that the delay in filing the Notice of Appeal was not
caused by a wilful disregard of
the Rules. The appellants explain
that they have approached Lawyers for Human Rights to assist them
after Legal Aid indicated that
they are not proceeding with an appeal
against the eviction order. When the matter was taken over by Lawyers
of Human Rights, they
could not, being a
pro
bona
legal service to indigent
individuals and communities, attend to the matter immediately. They
did, however, attend to the matter
at the earliest possible time.
[7]
The delay is not excessive particularly
in light of the explanation for the delay. Although there is some
measure of prejudice towards
the first respondent, this should be
weighed up against the prejudice that would be suffered by the
appellants if the appeal is
not entertained: The appellants are
indigent families consisting of women headed households and
minor children who would be
rendered homeless should the eviction
order be left unchallenged. I am therefore of the view that the real
risk of homelessness
faced by these vulnerable persons outweighs any
prejudice to the respondents occasioned by the delay in filing the
notice of appeal.
[8]
The application further has prospects of
success. Lastly, it is, in my view, manifestly in the interests of
justice to grant condonation.
See in this regard:
Grootboom
v National Prosecuting Authority
&
Another
[2]
where the Constitutional Court
succinctly set out the requirements in considering an application for
condonation:
"[50] In this court the test for
determining whether condonation should be granted or refused is the
interests of justice.
If it is in the interests of justice that
condonation be granted, it will be granted. If it is not in the
interests of justice
to do so, it will not be granted. The factors
that are taken into account in that enquiry include:
(a)
the length of the delay;
(b)
the explanation for, or cause for,
the delay;
(c)
the prospects of success for the
party seeking condonation;
(d)
the importance of the issue(s) that
the matter raises;
(e)
the prejudice to the other party or
parties; and
(f)
the effect of the delay on the
administration of justice.
Although the existence of the prospects of
success in favour of the party seeking condonation is not decisive,
it is an important
factor in favour of granting condonation.
[51] The interests of justice must be
determined with reference to all relevant factors. However, some of
the factors may justifiably
be left out of consideration in certain
circumstances. For example, where the delay is unacceptably excessive
and there is no explanation
for the delay, there may be no need to
consider the prospects of success. If the period of delay is short
and there is an unsatisfactory
explanation but there are reasonable
prospects of success, condonation should be granted. However, despite
the presence of reasonable
prospects of success, condonation may be
refused where the delay is excessive, the explanation is non-existent
and granting condonation
would prejudice the other party. As a
general proposition the various factors are not individually decisive
but should all be taken
into account to arrive at a conclusion as to
what is in the interests of justice."
Relevant facts
[9]
The appellants comprise of about 16
families which include female-headed households, elderly persons and
minor children. They all
moved onto the property on various dates.
[10]
The first respondent (and a Mr De Sousa) bought the property on 30
August 2015. The property
was registered in both their names on 17
December 2015. In terms of the written sales agreement, it was agreed
that the seller
will remove all tenants occupying the property before
registration would take place. Registration did, however, take place
notwithstanding
the fact that the tenants were not removed by the
seller. The second respondent is the City of Tshwane - the
municipality in whose
area of jurisdiction the property in question
is situated ("Tshwane" or "the municipality").
[11]
The first appellant has been residing on
this property since January 1994. She resides with her grandchild.
The first appellant
is a contract worker and earns about R 3 410.88.
She uses her salary towards her grandchild's school fees, transport,
food and
water. She states that she cannot afford to rent a place
around Pretoria North because of financial constraints. Some of the
other
households on the property are also headed by women and some of
the children are attending school. The other applicants have occupied
the premises on various dates.
[12]
In the answering affidavit, the
appellants express their willingness to vacate the property provided
that the municipality provide
them with alternative accommodation as
they have been occupying the premises for more than six months and in
light of the fact
that they would be rendered homeless as a result of
their eviction.
[13]
The first respondent admits that
initially there was a verbal rental agreement with the tenants.
According to the first respondent
the last rent was received on 4
March 2014. Initially there was a verbal agreement between the
previous owner of the property (Ms
Grabie) and the appellants in
terms of which the appellants had to pay an amount of R 400.00
towards water and electricity. The
appellants allege that Ms Grabie's
son had to collect the rental and because he failed to pay the water
and electricity, the services
were terminated. According to the
appellants they continued to pay their rent. The appellants then
state that there was a further
agreement to reduce the amount to R
200.00 per month. There is, however, no proof of this agreement. What
does appear from the
papers is the fact that the last amount in
respect of rental was received in March 2015.
[14]
The first respondent disputes that any
rent is being paid by the appellants as he is not receiving any
payments. The first respondent
demanded payment for the outstanding
rent and rental monies from the occupants. When this was not paid, he
cancelled the agreement
and demanded that the appellants vacate the
property.
[15]
Although it is one of the grounds of
appeal that the Magistrate erred in declaring that the appellants are
unlawful occupiers, it
nonetheless appears to be common cause that
the appellants are unlawful occupiers. This much can be deducted from
the opposing
affidavit wherein it is stated that the occupiers do not
refuse to vacate the property so long as the municipality is
involved.
[16]
Despite the fact that the papers have
been served on Tshwane, the Municipality dismally failed to
participate in the proceedings.
Also, despite the fact that a
subpoena
was
served on the municipality, it still neglected to participate in the
proceedings as it clearly should have done. The court a
quo
therefore granted the eviction order
without the benefit of any information indicating whether alternative
accommodation had been
made available or could reasonably have been
made available by the municipality for the relocation of the
occupiers.
Brief
exposition of the legal position
[17]
Central to this matter is the conflict
between the respondent's right to property;
[3]
the right to have access to adequate housing and the appellants'
right not to be evicted from the place they call home unless evicted
in terms of a court order after a court has considered all relevant
circumstances.
[4]
The appellants in this matter allege that if they are evicted, they
will be rendered homeless.
[18]
It is not in dispute that the PIE Act is
applicable. Section
4
of
this act prescribes the procedure that must be followed when seeking
the eviction of unlawful occupiers.
[5]
[19]
Central to this appeal is the question
whether the court a
quo
gave
proper consideration to the all-important question whether it was
just and equitable to grant the eviction in light of the
considerations set out in section 4(7) of the PIE Act.
[20]
The application of the PIE Act is not
discretionary and a court must have regard to all the relevant
considerations. The Constitutional
Court in
Machele
and Others v Mailula and Others
[6]
explains:
"[14]In
Port Elizabeth Municipality v
Various Occupiers
this court said the following:
'The Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PlE) was adopted with the
manifest objective
of . . . ensuring that evictions, in future, took
place in a manner consistent with the values of the new
constitutional dispensation.
Its provisions have to be interpreted
against this background.'
[15]
The application of PIE is not
discretionary. Courts must consider PIE in eviction cases. PIE was
enacted by Parliament to ensure
fairness in and legitimacy of
eviction proceedings and to set out factors to be taken into account
by a court when considering
the grant of an eviction order. Given
that evictions naturally entail conflicting constitutional rights,
these factors are of great
assistance to courts in reaching
constitutionally appropriate decisions.
[16]
That the High Court authorised the
eviction without having regard to the provisions of PIE is
inexcusable. PIE is of great importance,
given that there are still
millions of people in our country without shelter or adequate housing
and who are vulnerable to arbitrary
evictions."
[21] The courts
thus play a vital overseeing role in eviction proceedings. Section
26(3) of the Constitution
provides
that
"[n]o one may be evicted from their home, or have their home
demolished, without an order of court made after considering
all the
relevant circumstances" .
This
section is given substance by the provisions of the PIE Act and
specifically section 4 thereof. The PIE Act directs courts
to only
order an eviction
"if it is of
the opinion that it is just and equitable to do so, after considering
all the relevant circumstances" as
contemplated in section 4(6)
and (7) and section 6(1)."
The
Constitutional Court in
Port
Elizabeth Municipality Port Elizabeth Municipality v Various
Occupiers
[7]
emphasised that courts must take an
active role in evaluating the merits of an application for eviction:
"[36] The court is thus called upon to go
beyond its normal functions and to engage in active judicial
management according
to equitable principles of an ongoing, stressful
and law-governed social process. This has major implications for the
manner in
which it must deal with the issues before it, how it should
approach questions of evidence, the procedures it may adopt, the way
in which it exercises its powers and the orders it might make. The
Constitution and PIE require that, in addition to considering
the
lawfulness of the occupation the court must have regard to the
interests and circumstances of the occupier and pay due regard
to
broader considerations of fairness and other constitutional values,
so as to produce a just and equitable result."
[22]
A court must therefore probe all the
relevant circumstances in exercising the discretion whether it is
just and equitable to evict.
The Supreme Court of Appeal in
City
of Johannesburg v Changing Tides
7
4
(Pty) Ltd
referred to the two
questions that must be considered by a court presiding over an
application to evict:
"[25] Reverting then to the relationship
between ss 4(7) and (8), the position can be summarised as follows. A
court hearing
an application for eviction at the instance of a
private person or body, owing no obligations to provide housing or
achieve the
gradual realisation of the right of access to housing in
terms of s 26(1) of the Constitution, is faced with two separate
enquiries.
First it must decide whether it is just and equitable to
grant an eviction order having regard to all relevant factors. Under
s
4(7) those factors include the availability of alternative land or
accommodation. The weight to be attached to that factor must
be
assessed in the light of the property owner's protected rights under
s 25 of the Constitution, and on the footing that a limitation
of
those rights in favour of the occupiers will ordinarily be limited in
duration. Once the court decides that there is no defence
to the
claim for eviction and that it would be just and equitable to grant
an eviction order it is obliged to grant that order.
Before doing so,
however, it must consider what justice and equity demands in relation
to the date of implementation of that order
and it must consider what
conditions must be attached to that order. In that second enquiry it
must consider the impact of an eviction
order on the occupiers and
whether they may be rendered homeless thereby or need emergency
assistance to relocate elsewhere. The
order that it grants as a
result of these two discrete enquiries is a single order. Accordingly
it cannot be granted until both
enquiries have been undertaken and
the conclusion reached that the grant of an eviction order, effective
from a specified date,
is just and equitable.
Nor
can the enquiry be concluded until the court is satisfied that it is
in possession of all the information necessary to make
both findings
based on justice and equity.
"
[8]
[23]
These sentiments are echoed in
Port
Elizabeth Municipality v Various Occupiers
[9]
where the court cautioned that
courts should be reluctant to grant an eviction order in the absence
of reasonable alternative accommodation
for them "even if only
as an interim measure pending ultimate access to housing in the
formal housing programme":
"[29] The availability of suitable
alternative accommodation will vary from municipality to municipality
and be affected by
the number of people facing eviction in each case.
The problem will always be to find something suitable for the
unlawful occupiers
without prejudicing the claims of lawful occupiers
and those in line for formal housing. In this respect, it is
important that
the actual situation of the persons concerned be taken
account of. It is not enough to have a programme that works in
theory. The
Constitution requires that everyone must be treated with
care and concern; if the measures, though statistically successful,
fail
to respond to the needs of those most desperate, they may not
pass the test. In a society founded on human dignity, equality and
freedom, it cannot be presupposed that the greatest good for the many
can be achieved at the cost of intolerable hardship for the
few,
particularly if, by a reasonable application of judicial and
administrative statecraft, such human distress could be avoided."
[24]
Even though the municipality did not
participate in these proceedings and omitted to place any facts
before the court a
quo
regarding
the availability of suitable alternative accommodation, this does not
absolve a court from having to consider this factor.
A court cannot
abdicate this important function simply because the municipality did
not participate in the proceedings: After all,
we are dealing here
with vulnerable citizens who may be rendered homeless if the eviction
order is granted.
[25]
Should eviction have been granted in the
circumstances of this matter? If an unlawful occupier has occupied
the land in question
for more than six months, a court may grant an
order for eviction if it is of the opinion that it is just and
equitable to do so
but only after considering all the relevant
circumstances including but not limited to whether land has been made
available or
can reasonably be made available by a municipality of
other organ of state or another land owner for the relocation of the
unlawful
occupier and after having considered the rights and needs of
the elderly, children, disabled persons and households headed by
women.
[26]
If a 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).
[27]
In determining a just and equitable date
in section 4(8) of the PIE Act, a court must have regard to all
relevant factors, including
the period the unlawful occupier and his
or her family have resided on the land.
[28]
It would appear from the papers that the
first respondent has complied with the procedural requirements
provided for in the PIE
Act. It also appears from the papers that the
appellants did not raise a valid defence. In fact, they declare that
they are prepared
to vacate the property provided that the
municipality provide them with alternative accommodation. What the
court a
quo
did
not consider was the availability of alternative accommodation. This
is fatal.
[29]
I must, however, point out that the
parties before Court are
ad idem
that
the court a
quo
ought
to have considered the issue of alternative accommodation but that
the court did not do so. They are also
ad
idem
that the appeal should succeed
and that the matter should be remitted to the court a
quo
for reconsideration. Counsel on
behalf of both parties have also proposed that the remittal should be
accompanied with a directive
to the municipality to submit a report
to the court a
quo
addressing
specifically the issue of alternative accommodation. I am in
agreement with this submission and have accordingly included
a
directive to this effect in my order.
[30]
Lastly in respect of cost. Both parties
were
ad idem
that
the appeal could have been avoided had the municipality complied with
its duty and provided the court a
quo
with the necessary information
regarding alternative accommodation. Both parties further submitted
that it would be unfair to saddle
the appellants and the first
respondent with the costs necessitated by the lodging of this appeal.
I am in agreement: The municipality
must pay the costs of both
parties. In addition, hereto, the municipality is directed to also
pertinently address in its report
why it should not be directed by
the court a
quo
to
pay the costs consequent upon the re-hearing of the matter before the
magistrate's court.
[31]
In the event, the following order is
made:
1.
Condonation
for the late filing of the application for leave to appeal is
granted.
2.
The
appeal is upheld and the order of the Magistrate's Court for the
District of Tshwane North and dated 30 April 2018 is set aside.
3.
The
application is remitted to the Magistrate's Court for
reconsideration.
4.
The
second respondent is ordered to pay the costs of this appeal in
respect of both the appellants and the first respondent.
5.
The
second respondent is directed, within 30 days of the date of this
order, to submit a report to the Magistrate's Court for the
District
of Tshwane North addressing the issue of alternative accommodation
for the appellants in this matter.
6.
The
second respondent is directed to make written submissions in its
report why it should not be ordered by the court a
quo
to pay the costs of the appellants
and the first respondent consequent upon the re-hearing of the matter
before the magistrate's
court.
AC BASSON
JUDGE OF THE HIGH COURT
I
agree
B
RANGATA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the appellants:
Adv M Coetzee
For
the first respondent: Adv J de Swart
[1]
Act 19 of 1998.
[2]
(2014) 35 ILJ 121 (CC). Quoted from the minority judgment penned by
Zonda, J (as he then was).
[3]
In terms of section 25 of the Constitution.
[4]
In terms of sections 26(1) and 26(3) of the Constitution.
[5]
"4
Eviction of unlawful occupiers
(1)
Notwithstanding anything to the contrary contained in any law
or the common law, the provisions of this section apply to
proceedings
by an owner or person in charge of land for the eviction
of an unlawful occupier.
(2)
At least 14 days before the hearing of the proceedings
contemplated in subsection (1), the court must serve written and
effective
notice of the proceedings on the unlawful occupier and the
municipality having jurisdiction.
(3)
Subject to the provisions of subsection (2), the procedure
for the serving of notices and filing of papers is as prescribed by
the rules of the court in question.
(4)
Subject to the provisions of subsection (2), if
a
court
is satisfied that service cannot conveniently or expeditiously be
effected in the manner provided in the rules of the court,
service
must be effected in the manner directed by the court: Provided that
the court must consider the rights of the unlawful
occupier to
receive adequate notice and to defend the
case.
(5)
...
(6)
...
(7)
If an unlawful occupier has occupied the land in question for
more than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the
opinion that it is just and equitable to do so, after considering
all the
relevant circumstances, including, except where the land is
sold in
a
sale of execution pursuant to
a
mortgage,
whether land has been made available or can reasonably be made
available by
a
municipality or other 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.
(8)
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).
(9)
In determining a just and equitable date contemplated in
subsection (8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or her family
have resided on the land in question."
[6]
2010 (2) SA 257 (CC).
[7]
2005 (1) SA 217 (CC).
[8]
My emphasis.
[9]
Supra
note 7 .