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[2019] ZAWCHC 70
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Petersen v Van Wieling and Others (A94/2019) [2019] ZAWCHC 70 (19 June 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: A94/2019
Before
:
The Hon. Mr Justice Binns-Ward
The
Hon. Ms Justice Cloete
Hearing:
14 June 2019
Judgment:
19 June 2019
In
the matter between:
AMANDA
PETERSEN
Appellant
and
MAGDALEEN
VAN
WIELING
First
Respondent
ANDREW
VAN
WIELING
Second
Respondent
NIEL
HENDRICKS
Third
Respondent
ANDY
VAN
WIELING
Fourth
Respondent
JOSEPH
PETERSEN
Fifth
Respondent
WALDA
PETERSEN
Sixth
Respondent
NIKKIE
JONKERMAN
Seventh
Respondent
BITOU
MUNICIPALITY
Eighth
Respondent
JUDGMENT
BINNS-WARD
and CLOETE JJ:
[1]
This an appeal against the order of the Knysna District Court handed
down on 20 March 2018 dismissing the application to
that court
by the appellant in terms of s 4 of the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act
19 of 1998 (“PIE”)
for the eviction of the first to seventh respondents (“the
respondents”) from the immovable
property situated at […] S
Drive, New Horizon, Plettenberg Bay, also known as Erf […]8,
Plettenberg Bay
(“the property”).
[2]
The appeal was noted timeously, but the appellant thereafter failed
to prosecute it within the 60 day period prescribed by rule
50(1) of
the Uniform Rules of Court. That period expired on 17 July
2018, whereupon the appeal lapsed. The appellant
therefore applied at
the outset for condonation of her failure to timeously prosecute the
appeal, together with an order reinstating
the appeal.
[3]
In his affidavit filed in support of the condonation application the
appellant’s attorney, Mr Charles Petherbridge
of Legal
Aid, provided a full explanation for the delay which covered its
entire period. In essence, he explained that it was occasioned
by
various administrative challenges faced by the Legal Aid Board,
including the procurement of services for the acquisition of
the
appeal record.
[4]
We were persuaded that the explanation provided was reasonable and
that the steps taken on behalf of the appellant showed that
she
always intended to appeal. Moreover, and for the reasons contained in
this judgment, it was in the interests of justice that
the appeal be
entertained. Condonation was therefore granted and the appeal
reinstated.
[5]
There was no appearance by or on behalf of the respondents at the
hearing of the appeal.
[6]
It is settled law that in an application for eviction under PIE the
court must undertake a 3-stage enquiry. Firstly, it must
be
determined whether the occupation is unlawful; if so, secondly,
whether it is just and equitable to evict the unlawful occupier(s);
and if so, thirdly, the court must fix a date by which it would be
just and equitable to require the occupiers to vacate.
[7]
As to the first stage of the enquiry, the respondents disputed the
legitimacy of the appellant’s title to Erf […]0,
which
forms part of the property in issue, and contended that they also had
a proprietary interest in it.
[8]
It is undisputed that the appellant is the registered owner of the
property. As apparent from the deeds office printouts annexed
to the
answering affidavit, she acquired Erf […]1 under title deed
no. T83740/1996 and Erf […]0 under title deed
no. T88457/2004.
These two erven were subsequently consolidated as Erf […]8,
and registered in the appellant’s name
under certificate of
consolidated title no T53323/2007 on 6 July 2007.
[9]
It appears from the papers that at some stage during the 1980’s
Erf […]0 was leased by the former Plettenberg Bay
Municipality
to the appellant’s late father, Mr Thomas Petersen. During
September 1988 a deed of sale was concluded
between the same parties
in respect of that erf for a purchase price of R3 612.02,
payable by way of a deposit, already received,
of R300 and the
balance of R3 312.02, plus interest thereon at the rate of 15.5%
per annum, in instalments of R12.50 per month
over a period of 30
years.
[10]
The late Mr Petersen passed away on 7 February 1992 (i.e.
about 3 ½ years after conclusion of the deed of
sale) and his
wife (the appellant’s mother, Mrs Jane Petersen) some 7
months thereafter. It is not apparent on the evidence
whether their
marriage had been in or out of community of property, but both
spouses died intestate. It would therefore appear
that
the sale agreement between Mr Petersen and the municipality in
respect of Erf […]0 would have been in an executory
state at
the time of Mr and Mrs Petersen’s respective deaths.
[11]
The appellant together with the first, fifth and sixth respondents
are the surviving children of the late Mr and Mrs Petersen.
Another
child, David, had already passed away, seemingly without leaving
children.
[12]
The fifth and sixth respondents resided on Erf […]0 along
with the appellant’s late parents and have continued
to do so
since the latters’ demise. The other respondents moved onto
Erf […]0 when they needed accommodation
(the first and
second respondents are married to each other; the third respondent is
the first respondent’s son and the fourth
respondent her
stepson; the seventh respondent is the life partner of the sixth
respondent). They were all living there when the
appellant obtained
registered title to the erf in 2004. It is not clear on the
evidence on what basis they had occupation
of the property between
the date of the late Mr Petersen’s demise and the acquisition
of registered title by the appellant.
[13]
According to the appellant, once she became the registered owner of
Erf […]0, she agreed that the respondents could
remain on
the property provided that they all made a financial contribution
towards payment of the municipal accounts and other
expenses relating
thereto. According to her, only the first and second respondents made
an effort to contribute, however. The others
either failed or refused
to do so. She alleged that all of the respondents became verbally
abusive towards her when she demanded
the agreed upon financial
contributions. They accused her of having acquired ownership of
Erf […]0 by fraudulent means.
[14]
On 8 August 2016, relying upon their failure to contribute and
verbal abuse, the appellant terminated the respondents’
occupation rights and gave them formal notice through her attorney to
vacate on or before 31 August 2016. On 29 August
2016 the
respondents, through their then attorney (who has recently withdrawn
as their legal representative), informed the appellant
that they
refused to vacate on the basis that she had acquired ‘
the
property’
in a fraudulent manner, when it should have
devolved upon the late Mr Petersen’s estate, thus
entitling each of his
intestate heirs to a proportionate undivided
share thereof.
[15]
The same defence was raised in
the answering affidavit, but amplified to include an allegation that
the appellant also defrauded
the relevant authorities by obtaining a
state subsidy via the discount benefit scheme contained in the
National Housing Code which,
according to the respondents, prohibits
an individual from receiving state-assisted housing more than
once.
[1]
[16]
It seems to be contended that the appellant made use of a state
subsidy to acquire both Erven […]1 and […]0.
Although
the respondents dispute the allegation that they have not contributed
financially towards the property, careful scrutiny
of the answering
affidavit reveals that their defence is actually that Erf [...]0
was an asset in the estate of the late Mr Petersen
at the time
of his death in 1992, and that the appellant deprived them of their
rightful inheritance and attendant right to occupy
that erf. How the
appellant allegedly accomplished this was not disclosed in the
answering affidavit.
[17]
What may be deduced from the undisputed facts, however, is that the
contract between the late Mr Petersen for the purchase
of the land in
instalments (the deed of sale) did not fall within the ambit of
Chapter 2 of the
Alienation of Land Act 68 of 1981
by reason of
s 4
of that Act. It is evident that, although the deed of sale purports
to be with the local authority, the terms thereof (see clause 9)
suggest that it may have been concluded under the auspices of the
Community Development Act 3 of 1966. Clause 12 of the agreement,
for
example, is not typical of an ordinary agreement at arms’
length and closely corresponds with the prescripts of s 18D
of
the Community Development Act.
[18]
The functions of the Community
Development Board could be delegated to a local authority in terms of
s 22 of the Act, whereupon
the local authority, in terms of
s 22(3), would for the purposes of the Act be regarded as if it
were the Board. The
disposal of any property that is
subject to the condition contemplated in s 18D(1) of the Act
[2]
is subject to the further provisions of that section.
[3]
[19]
It would therefore be relevant in the circumstances described in the
respondents’ answering papers to know what the actual
position
is, and what the legislative provisions, if any, are concerning what
becomes of property purchased under the aegis of
that Act if the
purchaser dies while the contract is still executory. The local
authority, as the seller and apparent proxy
for the Community
Development Board, is the obvious first resort for this information;
and also information as to how the appellant,
as only one of the
intestate heirs in the estate of the late Mr Petersen, apparently
came to be the sole substitute transferee
of Erf [...]0 some 12 years
after the death of the late Mr Petersen.
[20]
The general rule is that the contractual rights and obligations of a
deceased person under an executory contract are transmitted
to the
executor of the deceased’s estate. In the current case, having
regard to the parties’ apparent socio-economic
status, it may
well be that an executor was never appointed. That is a question that
the Master should be able to answer. Suffice
it to say that enough
has been said in the respondents’ answering affidavits,
however, to raise the questions of what became
of the executory
rights and obligations under the deed of sale and how it came about
that Erf [...]0 was eventually transferred
to the appellant. On the
face of it these are plainly possibly relevant circumstances in the
context of a determination of the
application to evict the
respondents. The municipality, both as local authority and as seller
in terms of the deed of sale, should
have been required to report to
the court a quo on them. There was an inquisitorial duty on the
magistrate to clarify the position
in order to determine whether the
respondents are indeed unlawful occupiers and whether the applicant’s
registered title
to the property had been legitimately obtained.
[21]
The lack of relevant information before the court a quo was
compounded by the fact that, although, on their own version, the
respondents obtained access to the records of the local authority in
support of their defence, no evidence was produced to show
how the
interest of the late Mr Petersen in Erf [...]0 by virtue of
the executory contract had devolved. Whereas in ordinary
litigious
proceedings a gap in the evidence redounds against the party bearing
an onus of proof, proceedings for an eviction in
terms of PIE are not
ordinary proceedings. This is by reason of the duty imposed in terms
of s 26(3) of the Constitution on
courts seized of such
proceedings not to grant an eviction without considering all the
relevant circumstances.
[22]
What became of the executory contract to which Mr Petersen was party
was an eminently relevant consideration in the context
of the
evidence that was adduced in the respondents’ answering
papers. If further information was required in order
for the
court to apprise itself of all the relevant circumstances, it was
duty bound to give directions to enable the information
to be
obtained.
[23]
In the replying affidavit the appellant stated that she had not been
aware of the existence of the deed of sale between the
local
authority and her late father but that, not only did such contract
not constitute evidence of ownership by the late Mr Petersen,
any possible claim which her siblings might have had in this regard
would long since have prescribed in terms of
s 11
of the
Prescription Act 68 of 1969
. The magistrate rightly discounted the
relevance of prescription as an issue in the matter before her.
[24]
Extinctive prescription is only relevant as a special defence against
a claim for the enforcement of a debt, and such a claim
was not
competently raised by the respondents in the court
a quo
. In
the final paragraph of the answering affidavit the respondents sought
an order for the division of the property into
its two former erven
and that Erf [...]0 be transferred ‘…
to the
heirs in terms of the deceased estate of our late parents of which
the applicant
[i.e. the appellant]
is also a beneficiary…’.
However despite the respondents having legal representation at the
time there was no counter-application for this relief, and nor
were
the Registrar of Deeds, the executor of their late father’s
deceased estate or the Master joined as legally interested
parties,
as would have been necessary in any such claim. Any claim that
the respondents may have in respect of the property
would after all
lie against the executor of their late father’s deceased estate
– not the appellant. Furthermore,
the claim would have
accrued only when a liquidation and distribution account in respect
of the estate was filed with the Master
– a matter that is
closely bound up with the question identified earlier, being what
actually became of deceased estate’s
rights and obligations
under the executory contract of sale.
[25]
As was held in
Ransumer NO v The Master (NPD) and Others
1978
(4) SA 877
(NPD) at 881C-D:
‘
The
heirs become owners of the right not the asset and they acquire a
jus
in personam ad rem acquirendam
against
the executor which is enforceable after the confirmation of the
liquidation and distribution account (
Jewish
Colonial Trust Ltd v Estate Nathan
1940
AD 163
at 175;
Commissioner
for Inland Revenue v Estate Crewe and Another
1943
AD 656
at 669; Wille
Principles
of South African Law
6
th
ed at 252 and 255).’
[26]
If, as mooted earlier, no executor had in fact been appointed to
administer the estate, it might be that it was wound up in
terms of
s 18(3)
of the
Administration of Estates Act 66 of 1965
, which
provides that:
‘
If
the value of any estate does not exceed the amount determined by the
Minister by notice in the
Gazette
,
the Master may dispense with the appointment of an executor and give
directions as to the manner in which any such estate shall
be
liquidated and distributed.’
These
considerations should have suggested the Master’s office as an
appropriate source of information for the magistrate
to be properly
informed as to all the relevant circumstances.
[27]
In her judgment the magistrate reasoned that, given the respondents’
allegations of fraudulent acquisition by the appellant
of Erf [...]0,
it was incumbent on the latter to prove how she lawfully acquired
such ownership. The magistrate found that
the certificate of
consolidated title did not constitute adequate proof of ownership
because, so she reasoned, it ‘…
speaks nothing to the
disinheritance of the other siblings who are entitled to a child
share of their father’s estate’.
That, with
respect, was a misconceived view of the law. Registered title
constituted prima facie proof of ownership
and in adversarial
litigation the evidential burden of rebutting it would rest on the
respondents. Moreover, for the purposes
of PIE, ‘
owner’
means the registered owner of land.
Section 4(1)
of PIE therefore
confers
locus standi
on an ‘
owner’
to
institute proceedings for the eviction of an unlawful occupier. The
point however is that, although the appellant has
locus standi
,
what was raised by the respondents in their answering affidavit
should in the peculiar circumstances of the case have put the
magistrate on inquiry, because of the incidence of s 26(3) of
the Constitution and the fact that eviction applications under
PIE
are not conventional adversarial proceedings, to investigate how the
appellant became the registered owner thereafter so as
to be in a
position to determine whether or not the respondents are in fact
unlawful occupiers (or more specifically the first,
fifth and sixth
respondents).
[28]
While on the matter of the magistrate’s duty of enquiry, a
related consideration in this case arose from the fact that
the
respondents’ right to occupy was purportedly terminated during
August 2016 and the eviction application was launched
on 12 May
2017, which was more than 6 months later. That would bring the
provisions of s 4(7) of PIE to bear if, upon
proper enquiry, the
magistrate were to be satisfied that their occupation was indeed
unlawful. The provision reads as follows:
‘
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.’
[29]
Therefore, in the event of the unlawfulness of the respondents’
occupation being determined in the appellant’s
favour, there is
in any event insufficient relevant information contained in the
record for the purposes of s 4(7). What is
disclosed is that the
respondents are all adults. The first respondent is unemployed and in
her fifties. The second to fifth respondents
are employed but no
details have been provided of their income. The second respondent is
also in his fifties. The sixth and seventh
respondents have resided
on what was previously Erf [...]0 for more than 27 years.
They are both in their sixties. The
sixth respondent is unemployed
and the seventh respondent does casual work. Both receive SASSA old
age pensions, but the amounts
that they receive are not known.
[30]
The appellant contended that all of the respondents are able to
afford alternative accommodation; alternatively that they may
obtain
assistance from the local authority (including emergency housing). On
the other hand, the respondents contended that they
will be rendered
homeless if they are evicted from the property. However no steps were
taken by the appellant – or for that
matter the respondents –
to obtain a report from the relevant local authority (cited as the
eighth respondent) in respect
of the availability of alternative
accommodation. In the circumstances the court a quo should have
done so.
[31]
In all these circumstances it is appropriate for the matter to be
remitted to the court
a quo
so that it may give directions to
enable all the relevant information to be placed before it for
purposes of conducting the three-stage
enquiry under PIE.
[32] The following order is made:
1. The appeal succeeds to the
extent set out below.
2. The order of the court
a quo
is set aside and substituted with the following:
‘
(1) The application is
postponed
sine die
on the terms set out below:
(1.1) The applicant shall
procure a report from the eighth respondent, within 60 (sixty)
calendar days from date of this order,
dealing with: (a) what became
of the executory rights and obligations under the deed of sale
concluded between it and the late
Mr Thomas Petersen in respect
of Erf [...]0, Plettenberg Bay, during September 1988 (Annexure MVW 6
to the answering affidavit)
as well as how it came about that Erf
[...]0 was eventually transferred to the appellant; and (b) the
availability of alternative
accommodation and emergency housing, if
required, in respect of the first to seventh respondents or any of
them;
(1.2) The applicant shall also
procure a report from the Master of the High Court, Cape Town, within
60 (sixty) calendar days
from date of this order, explaining
whether the estate of the late Mr Thomas Petersen (who died on
7 February 1992) was ever
reported and, if so, whether an
executor was appointed and when such appointment was made;
alternatively the steps, if any, taken
by the Master in terms of
section 18(3)
of the
Administration of Estates Act 66 of 1965
; and
annexed to such report shall be a copy of the Final Liquidation and
Distribution Account (if applicable);
(1.3) The first to seventh
respondents shall, if they so wish, file further affidavits, within
30 (thirty) calendar days of receipt
of the reports referred to in
paragraphs (1.1) and (1.2) above, dealing with the content thereof
and disclosing details of their
income and expenditure, setting out
the steps they have taken to investigate alternative accommodation,
whether it be with family,
friends, through employer(s) or rented
accommodation, and any other information which they believe may be
relevant to the determination
of whether it is just and equitable to
evict them in the event that the court finds their occupation to be
unlawful; and
(1.4) The applicant shall be
entitled to file a further affidavit in response, should she so wish,
within 30 (thirty) calendar
days of the expiry of the period set
out in paragraph (1.3) above, whereafter she shall be entitled, on
notice to the respondents,
to re-enrol the matter before the
magistrate for further hearing.
2. Costs shall stand over for
later determination.’
3. The matter is remitted to the
court a quo to be dealt with further in terms of substituted order
set out in paragraph 2, above.
4. The costs in the appeal,
including the applications for condonation and reinstatement, shall
be costs in the cause in the court
a quo
.
___________________
A.
G. BINNS-WARD
Judge
of the High Court
___________________
J.
I. CLOETE
Judge
of the High Court
For
appellant
: Mr B Nduli –
BonginkosiN@legal-aid.co.za; Ms/Mr C Petherbridge
Instructed
by: Bonginkosi Nduli/C Petherbridge of Legal Aid – 0214264126
For
respondents
:
Instructed
by: Harker Attorneys – notice of withdrawal as attorneys –
Knysna – dated 27 May 2019
[1]
The
National Housing Code is the document incorporating national housing
policy that was required to be published in terms of
s 4
of the
Housing Act 107 of 1997
, which came into operation in April 1998.
The provision of assistance to persons to hire or acquire immovable
property
was previously, and still is, also regulated in terms of
other legislation such as the now repealed Housing Act, 1966, and
the
still extant Community Development Act 3 of 1966.
[2]
Section
18D(1) has at all times material in the current matter provided as
follows:
‘
It shall
be a condition of every sale by the board, or by a local authority,
statutory body or other body corporate in terms of
a delegation or
assignment of powers, functions or duties under section 22, of
immovable property to a person for residential
purposes that,
notwithstanding the fact that the total amount of the purchase
price, together with all interest thereon, has
been paid, such
person or his successors in title shall not sell or otherwise
alienate such property within a period of ten years
from the date on
which the property was bought by such person, unless it has first
been offered for sale to the board.
’
[3]
Section
18D(8) provides:
‘
No
transfer of any property in respect of which the condition referred
to in subsection (1) applies, shall be passed to a person
other than
the board unless there is produced to the registrar of deeds a
certificate by the board to the effect that such property
has been
offered for sale to the board in terms of subsection (1) and that
the offer has been rejected and, if the board has
issued an order
under subsection (6A) in respect of that property, that such order
has been complied with or that steps have
been taken to the
satisfaction of the board to ensure that it will be complied with.
’