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[2019] ZAWCHC 29
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Van Staden and Others v Van Heerden (A393/18) [2019] ZAWCHC 29 (7 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
A393/18
In
the matter between:
MARK
WAYNE VAN
STADEN
First
Appellant
ALL
OTHER OCCUPIERS OF
ERF
[…], J ROAD,
NOORDHOEK
Second
Appellant
vs
ANDRE
LOUIS VAN
HEERDEN
Respondent
Coram
:
Dolamo J
et
De Waal AJ
Hearing:
1 March 2019
Judgment:
7 March 2019
JUDGMENT
DE
WAAL AJ
:
[1]
This
is an appeal against an eviction order granted by the Magistrate’s
Court for the district of Simons Town (per Mr Brown)
on
23 August 2018. In terms of that order the First
Appellant was required to vacate Erf […], J. Road,
Noordhoek (“
the
J. Road property
”)
on or before 31 October 2018, failing which the Sheriff of
the Court was to evict him and all persons holding
title under him by
1 November 2018. The Court
a
quo
further granted costs in favour of the Respondent.
[2]
On
19 February 2019, the Respondent’s attorneys withdrew
as attorneys of record for him in this appeal. The
Respondent
abides the decision of this Court in the appeal.
[3]
Appellants
have applied for condonation for the late noting of the appeal.
The appeal should have been noted by 21 September 2018
but
was only served and filed by 29 October 2018. The
reasons for the late noting were the First Appellant’s
lack of
knowledge of the Court Rules; difficulty in obtaining suitable
representation; and the fact that the verbal Judgment of
the Court
a
quo
had to be transcribed. There is no prejudice to the Respondent
by virtue of the fact that the appeal was noted approximately
one
month and one week out of time. In the circumstances the
application for condonation is granted and no order as to costs
is
made in respect of that application.
[4]
Turning
to the background facts. On 3 April 2014, the First
Appellant and the Respondent entered into a written
agreement of sale
in respect of the J. Road property. The purchase price was
R335 000.00 and the agreement recorded
that R35 000.00 had
already been paid to the Respondent. The agreement further
stipulated that the balance had to be
paid by 30 June 2014,
failing which the contract would be deemed void and of no force and
effect. That period was
subsequently extended by twelve months
in an addendum to the agreement. The addendum further recorded
that the First Appellant
had paid a further R20 000.00 to the
seller and that the balance of the purchase price was R280 000.00.
The agreement
was further subject to the successful subdivision of
Erf […], Noordhoek.
[5]
Important
for present purposes is that the agreement of sale provided in
clause 5 thereof that possession and vacant occupation
of the
property shall be given on transfer. It is common cause that
transfer is yet to take place. The Appellants accordingly
have
no right to occupation flowing from the agreement of sale.
[6]
On
what basis was the Appellants then placed in possession of the J.
Road property? In the founding affidavit, the Respondent
claims
that the First Appellant occupies the property in terms of a
month-to-month oral lease agreement. It is in terms of
this
agreement that First Appellant took occupation during April 2012.
The Respondent further alleged that the monthly
rental was set
at R2 500.00, subject to an annual increase of 7%. The
oral lease agreement is further allegedly contained
the following
clause regarding breach by the First Appellant:
“
Should
the tenant breach the lease agreement the owner would be entitled to
place the tenant on notice of such breach and demand
that the tenant
remedy such breach within a reasonable period, failing which the
owner would be entitled to cancel the lease agreement
and demand that
the tenant vacate the premises.”
[1]
[7]
It
is remarkable that an oral agreement would contain such a detailed
lex
commissoria
.
Be that as it may, in the founding affidavit, the Respondent contends
that the First Appellant breached the lease agreement
in that “
he
failed to pay the rental and was in arrears in the sum of
R185 667.00; operated an illegal scrap business; illegally
sub-letted
space for caravans; and used the premises as an overflow
from First Appellant’s scooter repair business
”.
[8]
It
is further alleged in the founding affidavit that, on 9 June 2017,
the Respondent’s attorneys of record served
via the Sheriff a
letter of termination on the ground that the lease was on a
month-to-month basis and that the Respondent was
accordingly entitled
to give notice to the First Appellant to vacate by 30 July 2017.
It is further stated in the
founding affidavit that a copy of the
termination letter is attached to the affidavit and marked “
AVH2”
.
[9]
No
such letter forms part of the appeal record before this Court.
Attached to the
answering
affidavit, there is only a letter dated
8 June 2017
from the Respondent’s attorneys which does not relate to the
lease but only to the agreement of sale. There is also
a letter
from the Respondent’s attorneys dated
15 June 2017
in which it is stated that the First Appellant’s formal
response is required to the demand for “
arrears
rental
”
as well as the demand to “
seize
and desist from unlawful activities at the premises
”.
This suggests that the First Appellant may have been placed on terms
regarding breach, but not that he was notified
to vacate by
30 July 2017.
[10]
It
appears from the First Appellant’s answering affidavit that he
admitted that he received the letters dated 8 June 2017
and
15 June 2017. The main point taken in the answering
affidavit was that the lease was not on a month-to-month
basis but
until
the
transfer
of the J. Road property into the First Appellant’s name took
place. First Appellant claimed in the answering affidavit
that
he has “
an
occupational rental dispute
”
with the Respondent “
which
is not relevant to the application
”.
[11]
On
appeal, the main point taken by Mr Walters, who acted for the
Appellants, is that the lease agreement was cancelled without
complying with the terms of the
lex
commissoria
which formed part thereof. According to the Appellants, the
alleged letter of termination was premature as the Appellants
were
not given an opportunity to remedy any alleged breach as required by
the
lex
commissoria
.
As a result of this failure, the Appellants contended that no case
had been made out that the Appellants were unlawful occupiers
as
required by the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (“
the
PIE Act
”).
[12]
This
is not an argument which was considered by the Court
a
quo
.
The Court
a
quo
found that the Appellants were illegal occupiers on the basis that
they failed to pay the agreed rental in the sum of R2 500.00
per
month and because of the failure of the Appellants to deal with the
alleged arrears other than the vague and unuseful response
that First
Appellant has an “
occupational
rental dispute
”
with the Respondent. The Court
a
quo
also referred to the letter of 15 June 2017 in which the
Respondent’s attorneys requested a formal response to
the
demand for arrears rental. The Court
a
quo
further stated that the First Appellant seemingly used the agreement
of sale as an excuse not to pay the rentals due and owing.
[13]
Having
found that the Appellants were unlawful occupiers, the Court
a
quo
went on to consider the relevant circumstances in order to determine
whether it was just and equitable to grant an eviction order.
On this aspect, the Court
a
quo
found that it was not contended by First Appellant that he would
become homeless should he be evicted and furthermore, that the
structure in which he was staying was in fact moveable (it is a
caravan) and could be taken to any number of other premises or
caravan parks.
[14]
In
the Appellants’ heads of argument various submissions are made
to the effect that all the conditions in the agreement of
sale have
been fulfilled and that the Respondent has no basis on which to
refuse to effect transfer.
[15]
In
my view, the agreement of sale is irrelevant to the present matter.
The present matter turns on whether the lease agreement
was lawfully
terminated.
[16]
In
this regard, even though the Respondent alleged in the founding
affidavit that the lease agreement was breached on various grounds,
the basis for termination was the allegation that the lease operated
on a month-to-month basis and that the letter of 9 June 2017
terminated the lease by giving more than one month’s notice to
the First Appellant to vacate.
[17]
In
my view the Court
a
quo
erred by finding that the lease agreement was lawfully terminated.
I say so for two reasons:
17.1.
Firstly,
the termination letter of 9 June 2017 was not annexed to
the Respondent’s founding papers. As explained
above, the
First Appellant only admits to receiving a letter dated 8 June 2017,
which deals with the agreement of sale
only and not with the lease
agreement. The letter of 15 June 2017, on the other
hand, implies that there was breach,
not that there was termination
by notice. In the circumstances, termination by giving a
month’s notice was not proven.
17.2.
The
First Appellant claimed in his answering affidavit that the lease was
not on a month-to-month basis but until transfer.
There was a
dispute of fact which could not be resolved on the papers and the
matter accordingly had to be decided on First Appellant’s
version in terms of the ordinary approach to factual disputes
applicable to applications for final relief in motion proceedings.
[18]
In
the circumstances, the appeal has to succeed on the basis that it was
not proven that the First and other Appellants were unlawful
occupiers of the J. Road property. I do not believe that a
costs order against the Respondent is warranted in respect of
the
appeal. The Respondent abided the outcome and the less than
forthright manner in which First Appellant presented his
case in the
answering papers (no response to allegations of non-payment of rent)
no doubt contributed to the unfavourable outcome
in the proceedings
a
quo
.
[19]
The
following orders are made:
(a)
The
appeal succeeds and the orders of the Court
a
quo
are set aside and replaced with the following:
(i)
The
application is dismissed; and
(ii)
the
Applicant shall pay the First Respondent’s costs.
(b)
There
is no order as to the costs in the appeal.
________________
HJ DE WAAL AJ
Acting
Judge of the High Court
Cape Town
7 March 2019
I
concur.
_______________
DOLAMO J
Judge
of the High Court
Cape Town
7 March 2019
APPEARANCES
Appellants’
counsel: Adv A Walters
Appellants’
attorneys: Smith & Hugo, Kuils River
Respondent
appeared in Person
[1]
For ease of reading, I
substituted the reference to First Appellant with “
tenant
”
and the Respondent with “
owner
”.