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[2019] ZAWCHC 60
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West Coast Miracles (Pty) Ltd v Kearns and Others (13790/2018) [2019] ZAWCHC 60 (13 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
13790
/2018
In
the matter between:
WESTCOAST
MIRACLES (PTY) LTD
Applicant
v
BEREDINA
KEARNS & 36 OTHERS
First
Respondent
Coram:
Dlodlo J
Date
of Hearing:
16 April 2019
Date
of Judgment:
13
May 2019
JUDGMENT
DLODLO,
J
[1]
West Coast Miracles (Pty) Ltd (the applicant) is a company with
limited liability incorporated as such in terms of the laws
of the
Republic. Its registered address is within the Western Cape. It is
the applicant in these proceedings. The applicant brought
an
application for the eviction of the occupiers of a property described
as erven 35 and 40, St Helena Bay, Saldanha Municipality,
Division of
Malmesbury, Western Cape Province (“the property”).
[2]
The occupiers are cited by name as First to Thirty Fifth respondents.
There is a Thirty Sixth respondent cited as ‘all
those residing
with or under the First to Thirty Fifth respondent on the property’.
The relevant municipality is cited as
the Thirty Seventh respondent.
It shall be referred to in this judgment as ‘the municipality’.
[3]
Stephan Brothers (Pty) Ltd (Stephan Brothers) owned the premises
known as erf 35 and erf 40, in the township of St Helena Bay,
in the
Saldanha Bay Municipality, Division of Malmesbury, Western Cape
Province. Stephan Brothers offered members of the St Helena
Bay
community who worked in their fish factory free accommodation as a
benefit and as part of such members’ terms of service.
[4]
Consequently, the majority of St Helena Bay’s community used to
work in the fish factory owned by Stephan Brothers. The
fish factory
closed down in 1967. As a consequence, Stephan brothers concluded
rental agreements with the persons who previously
received
accommodation due to their employment at the factory.
[5]
The terms of these lease agreements and addendums thereto were, inter
alia:
(a) the lease
could be cancelled by either party on one calender month’s
written notice;
(b) the agreed
rental would escalate in the amount of 10% annually;
(c) rental was
payable monthly in advance on the first day of each and every month;
(d) in the event
the tenant failed to pay the rental timeously, the landlord would be
entitled to cancel the lease agreement without
any notice and to
retake possession of the premises;
(e) the tenant
would be responsible for payment of water and refuse charges; and
(f) the tenant
would not be entitled to sublet the leased property or any portion
thereof or otherwise transfer his or her rights
under the lease.
[6]
The applicant in these proceedings purchased the premises from
Stephan Brothers during March 2006. Transfer of the property
into the
name of the applicant took place on 13 February 2008. The applicant
thus stepped into the shoes of Stephan Brothers as
both owner of the
property and lessor of the various premises on the property.
[7]
The founding papers state that the applicant plans to develop the
premises. It is averred that the development envisaged will
contribute to job creation in the community. It will also contribute
to the growth in the tourism industry. As mentioned above,
St Helena
Bay essentially focused on the fishing industry. Historically,
overwhelmingly people resident in the town were dependent
on the sea
for their livelihood. The fishing industry though is nowhere near as
strong as it once was. Thus the ability of the
residents of the town
to support themselves through the fishing industry diminished to the
point where it has become only a very
minor part of the local
economy. Unfortunately, to a large degree, people resident in the
town are unemployed. The local economy
is now increasingly based on
surrounding agriculture but to a larger degree the tourism industry.
[8]
The applicant purchased the property with the intention to develop
it. The applicant is no stranger to developments. It is reportedly
busy developing the West Coast. It has applied to the Department of
Environmental Affairs and Development Planning and has been
granted
the necessary environmental authorisation. The intended development
will, reportedly, not only renew and uplift St Helena
Bay but will
also lead to many jobs being created.
[9]
The applicant contends that it held meetings with some of the
respondents and other role players (including the councillor of
the
Saldanha Bay Municipality and Chairman of the local housing
committee). In these meetings several aspects in respect of the
payment of rental and alternative accommodation were discussed.
Importantly, on 30 May 2007, the applicant caused letter(s) to
be
sent to the respondents indicating that all lease agreements had been
ceased by Stephan Brothers to the applicant. The letter(s)
additionally, drew the respondents’ attention to the fact that
they were obliged from thereon to pay the monthly rental to
the
applicant. The applicant alleges that notwithstanding meeting on 10
February 2007, the respondents uniformly failed and/or
refused to pay
the monthly rental to the applicant. The applicant subsequently
cancelled various lease agreements. However, the
respondents failed
to vacate upon so demanded to. The applicant first approached the
Magistrate’s Court for eviction and
only thereafter this Court.
The application before the magistrate was dismissed on the basis that
the municipality was not joined
as a party in the proceedings.
However, the magistrate afforded the applicant a chance to lodge a
fresh application after consultation
with the relevant municipality.
ISSUES
RAISED IN ANSWERING PAPERS FILED BY THE MUNICIPALITY
[10]
The municipality owes a constitutional duty to provide emergency
housing to persons in need. It is noted that the municipality
is
hamstrung by scarce resources and an overwhelming and debilitating
backlog in the provision of housing opportunities to those
in need.
The municipality disputes that there is a constitutional duty on its
part to provide emergency housing to the occupiers
in this case,
regard being had to the facts and circumstances attendant to it.
[11]
According to the answering papers filed by the municipality, at
present the municipality provides about 180 to 200 housing
opportunities to more than 9000 applicants who qualify and meet the
following criteria:
(a) applicants are
to be 35 years of age and older;
(b) their combined
monthly income may not exceed R3 500-00;
(c) those that
previously received a subsidy or who have fixed property registered
in their names are ineligible to receive a housing
opportunity; and
(d) applicants are
required to be registered on the waiting list for more than 3 years.
[12]
What must be determined is the reasonableness of the municipality’s
value judgment made in this case, regard being had
to its alleged
scarce resources, the exigencies of the great demand placed on the
public purse for housing opportunities. Perhaps,
a mention must be
made that in assessing the reasonableness of this value judgment it
is not enough to merely recite the municipality’s
constitutional duty to provide emergency housing to the needy and to
those facing homelessness. A context and content must be
foundational, otherwise the mere recital of the municipality’s
constitutional duty lacks grounding and is left hanging in
the air.
See
Syntheta (Pty) Ltd (formerly Delta & Scientific (Pty) Ltd
v Janssen Pharmaceutica NV and Another
1999 (1) SA 85
(SCA) at
91C.
DISCUSSION
[13]
It is trite that the grant or otherwise of an application for
eviction in terms of the Prevention of Illegal Eviction from
and
Unlawful Occupation of Land Act 19 of 1998 (PIE) is predicated on a
threefold enquiry namely:
(a) it is
determined whether in fact the occupier has any extant right in law
to occupy the property, i.e is the occupier an unlawful
occupier or
not. If they have such a right then the matter is finalised
and the application must be refused;
(b) it is
determined whether or not it is just and equitable that the occupier
indeed be evicted; and
(c) in the event
it is held that it is just and equitable that the occupier be
evicted, then the terms and conditions of such eviction
fall to be
determined.
Resnick
v Government of the Republic of South Africa and Another
2014
(2) SA 337
(WCC) at 339B referred to a twofold enquiry. I consider
though, that the threefold approach is more in accordance with the
Act
which calls upon the courts to actively consider the terms of
such eviction order as it might be inclined to grant. It must be
borne in mind that Section 4 (6) of the PIE Act reads:
“
If an
unlawful occupier has occupied the land in question for less 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 relevant
circumstances,
including the rights and needs of the elderly, children, disabled
persons and households headed by women.”
It
must be noted as well that in terms of Section 4 (8) of the PIE Act
if the court is satisfied that all the requirements have
been
complied with and that no valid defence exists, the court must grant
an order for eviction 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 occupier has not vacated.
[14]
Mr Wilkin placed reliance on
Graham v Ridley
1931 TPD 476
and
Chetty v Naidoo
1974 (3) SA 13
(A) as to the onus to be
applied in matters such as the instant. My attention was particularly
drawn to
Chetty v Naidoo
at 20 C-D where the following was
stated by the then Appellate Division:
“
It is
inherent in the nature of ownership that possession of the res should
normally be with the owner and it follows that no other
person may
withhold it from the owner unless he has vested in some right
enforceable against the owner (eg a right of retention
or a
contractual right). The owner, in instituting a rei vindicatio, need
therefore, do no more than allege and prove that he is
the owner and
that the defendant is holding the res – the onus being on the
defendant to allege and establish any right to
continue to hold
against the owner”.
The
abovementioned authorities predate the procedural amendments
introduced by PIE and the Constitution. However, it does appear
that
the onus remains unchanged. In
Ndlovu
v Ngcobo
;
Bekker
and Another v Jika
2003 (1) SA 113
(SCA) at 528, the Supreme Court of Appeal held thus:
“
Another
material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is
entitled to
approach the court on the basis of ownership and the Respondent’s
unlawful occupation. Unless the occupier opposes
and discloses
circumstances relevant to the eviction order, the owner, in
principle, will be entitled to an order for eviction.”
See
also
Ridgway
v Janse Van Rensburg
2002 (4) SA 186
(C) at 191A-192D where this court observed as
follows:
“
I
accept, on the authority of Ellis, that it is not necessary for an
Applicant in these circumstances to place more before the court
by
way of evidence than the facts that he or she is the owner of the
property and that the Respondent is in unlawful occupation
thereof.
It is then for the Respondent to place ‘relevant circumstances’
before the court to show why the ordinary
result should not follow,
namely that an owner is entitled to vindicate his or her property.”
The
above decisions are subject to some qualification as far as the
question of onus. This is said in the context of the requirements
of
justice and equity wherein questions of onus play a rather limited
role.
[15]
One must hasten to add though that barring a common law right to
occupy the property (this must be alleged and proved by the
occupier)
he or she would be an unlawful occupier and that would mean that the
second stage of enquiry would eventuate. In Section
1 of the PIE Act,
an 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”
.
[16]
If all three stages of enquiry have been met, the applicant becomes
entitled to the eviction order. See
City of Johannesburg Metro
Municipality v Blue Moonlight Properties 39 (Pty) Ltd
2011 (4) SA
337
(SCA) where the Supreme Court of Appeal held as follows at
paragraph [74]:
“
It is
not in dispute that Blue Moonlight has complied with the requirements
of PIE and that it is entitled to an eviction order.
All that remains
is for us to determine the timing of the eviction.”
This
contention is explicitly iterated in
Modderklip
Boerdery (Pty) Ltd v Modder East Squatters
2001
(4) SA 385
WLD where it was stated at 394I – 395C that:
“
The
Constitution therefore gives the Respondents the right to have access
to adequate housing. It is perfectly clear that even the
State is
only required to endeavour ‘within its available resources, to
achieve the progressive realisation of this right’.
In no
legislation of which I am aware or that has been brought to my
attention has the State transferred this obligation to the
individual
land owner. The ‘right’ of access to adequate housing is
not one enforceable at common law or in terms of
the Constitution
against an individual landowner. The ‘right’ of access to
adequate housing is not one enforceable
at common law or in terms of
the Constitution against an individual land owner. The Act in
question (PIE) does not make such rights
expressly enforceable
against the owner (and it is hardly conceivable that it would seek to
do so) but merely seeks to regulate
the rights of the owner to eject
the unlawful occupier in the manner already indicated. The Act does
not authorise the informal
expropriation by unlawful invaders of land
from its owner. If the Act purported to do so it would plainly be
unconstitutional,….”
[17]
Principally, the duty to provide housing is not one to be borne by
private citizens. Indeed it is trite that it was never intended
by
the drafters of the Constitution that an individual’s right to
housing was one to be shouldered by private entities. In
Theewaterskloof Holdings (Edms) BPK. Glaser Afdeling v Jacobs en
Andere
2002 (3) SA 401
(LCC) at 411E, the Land Claims Court held
as follows:
“
Wat die
posisie met betrekking tot alternatiewe akkomodasie ookal mag wees,
dit kan nie van die applikant verwag word om die respondent
onbepaald
op sy plaas te huisves nie. Die reg op behuising vervat in art 26 van
die Konstitusie is nie gemeenregtelik of ingevolge
die Konstitusie
teen indiwiduele grondeienaars afdwingbaar nie.” Loosely
translated hereunder.
(“Whatever
the position as regards alternative accommodation might be, it cannot
be expected of the landowner to accommodate
the occupiers
indefinitely. The right to housing contained in section 26 of the
Constitution is neither in common law nor in accordance
with the
Constitution, enforceable against individual landowners.”)
The
Supreme Court of Appeal in
Modderfontein
Squatters
,
Greater
Benoni CC v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal
Resources Centre, Amici Curiae);
President
of the RSA v Modderklip Boerdery (Pty) Ltd
2004 (6) SA 40
(SCA)
(2004) (8) BCLR 821
;
[2004] 3 ALL SA 169
at 57 C
– E held as follows:
“
Section
9(1) provides that everyone is eq ual before the law and has the
right to equal protection and benefit of the law, while
s 9(2) states
that equality includes the full and equal enjoyment of all rights and
freedoms. As appears from para 1.6.4 of the
order, De Villiers J
found that Modderklip was not treated equally because, as an
individual, it has to bear the heavy burden,
which rests on the
State, to provide land to some 40 000 people. That this finding
is correct cannot be doubted. Marais J,
in the eviction case, said
that the ‘right’ of access to adequate housing is not one
enforceable at common law or in
terms of the Constitution against an
individual land owner and in no legislation has the State transferred
this obligation to such
owners.”
[18]
One must, however, bear in mind the qualification mentioned by the
Supreme Court of Appeal in the
City of Johannesburg v Changing
Tides 74 (Pty) Ltd
2012 (6) SA 294
(SCA) at 308 B-C, namely:
“
The
position is otherwise when the party seeking the eviction is a
private person or entity bearing no constitutional obligation
to
provide housing. The Constitutional Court has said that private
entities are not obliged to provide free housing for other members
of
the community indefinitely, but their rights of occupation may be
restricted, and they can be expected to submit to some delay
in
exercising, or some suspension of, their right to possession of their
property in order to accommodate the immediate needs of
the
occupiers.”
[19]
Justice and Equity of course play a role in all eviction matters. The
availability or otherwise of alternative accommodation
is also a
factor that this court is obligated to take into consideration.
In
PE Municipality v Peoples Dialogue on Land & Shelter
2001 (4) SA 759
(E) (Full bench), the Court made the following
telling observation:
“
It is
indeed so that, if regard is had to the abovementioned excerpt from
the judgment and the conditional suspension of the eviction
order,
the learned Judge seemed to have concluded that an eviction order
cannot be granted unless there is alternative land and/or
accommodation available. I am in respectful disagreement with this
conclusion. Section 6(3) enjoins a court of law, when considering
whether it is just and equitable to grant an eviction order, to have
regard to the factors mentioned therein. The availability
of suitable
alternative accommodation or land is but one of the factors which has
to be considered by the court. To interpret this
section in such a
manner that this one factor is elevated to a pre-condition for the
granting of an eviction order would have far-reaching
and chaotic
consequences which could never have been contemplated by the
Legislature. If this was in fact so, it would be open
to any person
to occupy land unlawfully in order to force an organ of State to
provide him with suitable alternative land or accommodation.
Similarly, in my view, within the context of an application brought
in terms of the provisions of s 4, the availability of land
for the
relocation of an unlawful occupier is but one of the factors that
must be taken into account by the court in determining
whether it is
just and equitable to grant an eviction order. (See also the
unreported decision of Chetty J in Port Elizabeth Municipality
v Various Occupiers of Bethelsdorp, case NO 2762/99.)”
The
above received a stamp of approval when the Supreme Court of Appeal
dealt
with
Baartman v PE Municipality
2004 (1) SA 560
(SCA). At paragraph [18] the Supreme Court of Appeal
guidingly remarked as follows:
“
[18]
In my view, although it
[availability
of alternative land]
is
not a precondition for the granting of an eviction order but rather
one of the factors to be considered by a court, as was said
in Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
Others
2001 (4) SA 759
(E) ([2001] 1 B All SA 381) at 769 (SA)
and 387 (B All SA), the availability of suitable alternative land
becomes the important
factor in the instant case. This is because of
the length of time the appellants have resided on the property and,
perhaps more
importantly, because the eviction order is not sought by
the owners of the property but by an organ of State. The State is
obliged,
in terms of s 26 of the Constitution, to take legislative
and other measures, within its available resources, to achieve the
progressive
realisation of the right which everyone has, namely to
have access to adequate housing
.”
[20]
According to the answering papers filed by the occupiers the eviction
will lead to homelessness. This is a large community
that has been
well established over a period of many years. The respondents have
organised themselves for purposes of dealing with
this eminent
eviction. They formed what they call the “Windhoek Gemeenskap”.
This “gemeenskap” reportedly
consists of 126 persons
including 43 women and 37 children. The Windhoek Gemeenskap consists
of more than 10 pensioners and 9 persons
with disabilities and
illnesses. Regard being had to the provisions of Section 26 of the
Constitution evicting persons who are
unemployed and have no place to
go to, is extremely difficult a decision to make. Gone are the days
when persons were willy nilly
evicted from what they regard as their
home, in order to throw them on the public road. Hence when eviction
becomes inevitable,
it is not only the occupiers who are directly
involved but also the relevant municipality.
[21] The occupiers
are entitled to place reliance on special circumstances. The court is
duty bound to give special regard to the
rights of elderly, children
and disabled persons involved. The answering papers also reveal there
are pensioners as old as 77 years.
These people have resided on these
properties since they were children. Their parents and grandparents
were reportedly resident
in these homes. The answering papers make it
plain that many relatives are buried on the various properties in the
last 100 years.
I note that there has been meetings between the
applicant on one hand and the respondents including the municipality
on the other
in an endeavor to resolve the impulse. For instance
annexure “WCM9” to the founding papers records the
following:
“
The
developer informed the meeting that everybody will be given at least
a year’s notice and that every case will be looked
at
individually before a decision is made as to how the tenants can be
accommodated. Options include new houses donated to tenants
in
certain instances, financial assistance in others.”
Ordinarily
eviction is much harmful and detrimental to the well-being of the
most vulnerable members of society, women and children.
I am told
(this is not disputed) that a number of homes intended in the
affected area are headed by women.
[22]
In
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC), the Constitutional Court held that the pertinent
question was whether the measures taken by the State to realise the
right
afforded by Section 26 were reasonable. What the Constitutional
Court stated was that the evidence in a particular case may show
that
there is a minimum core of a particular service that should be taken
into account in determining whether measures adopted
by the State
were reasonable. What the Constitutional Court did was to emphasise
that the socio-economic rights of the Constitution
should not be
construed as entitling everyone to demand that the minimum core
service be provided to them. A minimum core service
was thus not
treated as a self-standing right conferred on everyone under Section
26 (1) of the Constitution.
[23]
In the matter of
The
Minister of Health and Others v Treatment Action Campaign and Others
[2002] ZACC 15
;
2002 (5) SA 721
(CC), the Constitutional Court in interpreting
Section 26 of the Constitution stated that all that was possible and
all that could
be expected of the State was to act reasonably in
providing access to the socio-economic rights identified in Section
26 on a progressive
basis.
[24]
It is trite that no court can competently grant an eviction order
unless it has considered all relevant circumstances. Section
34 of
the Constitution provides that everyone has the right to have any
dispute that can be resolved by the application of law
decided in a
fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum. Section
5 of the PIE Act
provides that a land owner may institute urgent proceedings for the
eviction of an unlawful occupier of land pending
the outcome of
proceedings for a final order and that such order can only be granted
if the court is satisfied that (a) a real
and imminent danger exists
of substantial damage to any property if the unlawful occupier is not
evicted from the land forthwith;
(b) the likely hardship to be
suffered by the land owner if an eviction order is not granted
exceeds the likely hardship to the
unlawful occupiers if the order is
granted; (c) no other effective remedy is available to the applicant.
[25]
In
Groengrass
Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants
2002
(1) SA 125
(TPD), the court held,
inter
alia
,
that an imminent illegal ‘
land-grab’
could
be a basis for urgency and that it was in the public interest that
the rule of law be upheld and that it was those circumstances
which
constituted a real and imminent danger of substantial injury or
damage to any person or property as required in Section 5
(1) (a) of
PIE. Of course this is not the case in this matter.
[26]
The fundamental difficulties in this case is that the matter is not a
sudden occurrence. The occupation is almost more than
a century old.
This was lawful occupation until fairly recently when the new owner,
the applicant cancelled the leases in terms
of which the occupiers
took occupation. Perhaps the original owner, the Stephan Brothers
realised that they would not easily extricate
themselves from the
agreements and promises they had towards the respondents. Instead of
solving the problem concerning the occupation
of the property before
selling the property, they sold and transferred the leases they had
with the respondents to the applicant.
It is apparent from the
founding and answering papers that when discussions took place
between the applicant and the municipality,
the plight of the
occupiers was not taken seriously. I have referred above to
respondents aged 77 years. They grew up as children
in this
community. The current problem could not have arisen if talks between
the applicant and the municipality were conducted
seriously and the
plight of the respondents addressed properly. The municipality
seemingly placed reliance on the fact that its
resources are scarce
and are meant for a different category of persons and not those who
were paying rental in terms of leases.
The municipality has an
obligation in terms of the Constitution to look after the interests
of all people within its sphere of
governance.
[27]
The court has an obligation in matters like the present to also pay
deserved regard to the broader considerations of fairness
and other
constitutionally enshrined values in order to arrive at a just and
equitable outcome. The court is duty bound to probe
and investigate
all surrounding circumstances. The nature of the enquiry is such that
this court needed to be informed of all the
relevant circumstances in
order to be satisfied that it is indeed just and equitable to evict
(if so), when and under what conditions.
Without such information, it
remain impossible for the court to even consider granting an eviction
order. The two requirements
mentioned above which must be put forth
and on which the court must be satisfied before the grant of an
eviction order, are inextricable,
interlinked and essential. It is
strange and often beyond one’s comprehension that as soon as
the bitterly cold weather of
the Western Cape starts, courts become
inundated with applications for eviction. I am not persuaded that the
applicant made out
a case deserving the granting of the relief
sought. It is recommended that the applicant, the respondents and the
municipality
must engage in meaningful discussion in order to resolve
this matter.
ORDER
[28]
I make the following order:
(a) The
application to evict the respondents is dismissed.
(b) There is no
order as to costs.
____________________________
D
V DLODLO
Judge
of the High Court