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[2018] ZAGPPHC 71
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Whelpton and Another v Whelpton and Another (97180/2016) [2018] ZAGPPHC 71 (16 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO:97180/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
16
March 2018
In
the matter between:
CHRISTIAAN
WHELPTON
First Applicant
SHENEEN
WHELPTON
Second Applicant
and
JOHAN
OSWALD
WHELPTON
First Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
MIA
,AJ
[1]
The applicants seek an order evicting the first respondent and all
other persons occupying the property
situated at 704 Panbult Street,
Faerie Glen, Pretoria under or through the first respondent. The
applicant seeks that relief in
terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998
(the Pie Act). The application
is opposed.
[2]
An opposing affidavit was filed by Susanna Whelpton,( Ms Whelpton)
the spouse of the first respondent. Ms
Whelpton appeared in person
after numerous attempts to obtain legal representation proved to be
unsuccessful. The court was addressed
on the reasons for the absence
of legal representation by Ms Whelpton. Neither Legal Aid, nor the
Pro Bono offices were in a position
to assist Ms Whelpton. This
appears due to the unavailability of legal representatives available
to assist Ms Whelpton for various
reasons. Ms Whelpton eventually
elected to proceed in person despite her discomfort.
[3]
The issue for determination is whether the applicant was entitled to
bring the application and whether
the respondent and those holding
occupation through him are unlawful occupiers of the premises. The
respondent disputed the unlawfulness
of their possession. The court
was requested to grant an order for eviction in terms of section 4(1)
of the Pie Act. Thus the final
issue for determination was whether it
was just and equitable to grant an order for eviction in the present
matter.
[4]
The
applicant is the brother of the respondent and his wife, who were
sequestrated. The applicant purchased the property to assist
the
respondent. The parties agreed the respondent and his family could
remain on the premises provided they paid an agreed rental
to cover
the bond and utilities as the applicants' could not service two
bonds. When the respondent began skipping rental payments,
the
applicants attempted to sell the property. An offer to purchase was
received but the sale was not finalised as a bank evaluator
was
denied access to the premises and the application for finance was
refused, causing the sale to be cancelled.
[1]
this then forced the applicants to apply for the eviction of
the respondent and his family.
[5]
The
wife of the first respondent filed an affidavit opposing the
lawfulness of their occupation. Ms Whelpton disputed that they
were
in unlawful occupation of the premises relying on the lease agreement
which she submitted she did not sign even though she
is married in
community of property to the first respondent. In the affidavit dated
September 2016 she denied that they were in
arrears with any payments
regarding rentals or that the municipal account was in arrears,
however when the matter appeared before
me, she conceded that they
had failed to meet rental payments since approximately after
September 2016. The applicants' attorneys
cancelled the lease
agreement in correspondence dated 10 November 2016
[2]
.
They informed the applicants that the application for eviction would
follow. The only issue which remained unclear before me was
whether
the applicants were afforded a time period to vacate the premises
upon termination of the lease agreement.
[6]
Section 4(1) of the Pie Act provides:
"(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."
[7}
Mr Jacobs appearing for the applicants submitted that the applicants
were the owners of the property which is the subject of
this
application and the property in which they reside. They were no
longer able to maintain two bonds and whilst they sought to
assist
the first respondent and his family, this was not possible. Even when
the applicants entered into a new lease
agreement with
the first
respondent,
he wa.s unable to meet his obligation in terms of the agreement. The
first respondent was not entitled to sublet the
premises to anyone
without permission of the owner in terms of the lease agreement. Thus
anyone residing on the premises without
the owner's permission was on
the premises unlawfully and the maxim
huur gaat voor koop
was
not applicable.
[8]
The Pie Act provides in section 4(7) and 4(8) as follows:
"(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.(My
emphasis)
(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]
Having regard to the above sections Mr Jacobs submitted that it was
just and equitable to evict the first
respondent and those holding
under him when regard is had to the facts as follows:
1.
The first respondent and his wife were earning an income from
selling
clothes and working at a garage and paying no rent;
2.
They received a "rental" income from the gardener and
domestic helper and did not pay any monies
to the applicants;
3.
One of the children resided in boarding school;
4.
The parties could find
alternative rental accommodation
according to their
means;
5. Ms
Whelpton's mother, an elderly lady, was visiting family in the George
and thus had access to alternative
accommodation ;
In
view of the above the court was requested to grant an order for
eviction in terms of section 4(1) of the Pie Act.
[10]
Ms Whelpton conceded that they were not unlawfully residing in the
premises. Much of her submissions were not supported by
evidence. The
new information included information such as the new development that
her husband found employment recently. She
agreed that her younger
child was at boarding school but pointed out that it was a temporary
arrangement. Her older child was experiencing
problems due to their
financial problems. Her mother was visiting in George and was due to
return home. Ms Whelpton submitted that
they resided in this property
for 28 years. They regarded it as their home and accumulated things
over this period. She requested
the opportunity to be afforded time
to get back on her feet to get her life back in order. She submitted
they would not be able
to rent a property with four to five bedrooms
in the area and be close to schools at an affordable price. Further
they would not
qualify as tenants at this stage because both she and
the first respondent were sequestrated. Whilst they were assisted by
the
Chistelike Maatskaplike Raad , the assistance was temporary. She
intended to seek more work with property agencies doing inspections.
In view of the above she requested the opportunity to pay the rental
to the applicants and to permit them to sell the house at
its true
value.
[11]
Ms Whelpton's submissions contained new information which had not
been attested to under oath. However I
accept the veracity of same.
Mr Jacobs for the applicants did not question the content or request
the opportunity to test the veracity
thereof through cross
examination or to be afforded an opportunity to reply via affidavit.
The issues such as Ms Whelpton's ill
health, her son's stress and
mental anguish, her husband's health condition. These are all issues
which accompany the stressors
the Whelpton family have faced in the
past namely sequestrations and a loss of income and depressed
financial wellbeing, relationship
strain and ill health amongst
others. The possible move is another huge stressor in the life of a
family or individual. In the
present case the family of the first
respondent have come to their assistance and have now drawn a line in
the sand indicating
that they are not able to carry the
responsibility of looking after the first respondent and his family
any further.
[12]
Having regard to what is just and equitable in terms of section 4(7)
and (8), I am satisfied that the applicant
as the owner is entitled
to an eviction order to gain the full use of the property. I have
considered the circumstances disclosed
by the first respondent
through the submissions o Ms Whelpton, as indicated above the
applicants have assisted the first respondent
and his family to the
best of their ability. The first respondent has not complied with the
terms of the agreement. As proposed
by Mr Jacobs for the applicant I
have afforded a longer period to enable the first respondent and
those holding under him to vacate
the property. Ms Whelpton sought an
alternative date until November 2018. I am of the view that date will
be too burdensome on
the applicants.
[13]
There were no submissions that the normal costs order should not
follow.
ORDER
[14]
For the reasons above I make the following order:
1.
The first respondent and all occupying under him are evicted from the
property and buildings erected
on the property situated at 704
Panbult Street, Faerie Glen, Pretoria;
2.
The first respondent and those holding under him are ordered to
vacate the premises on or before 30th
of June 2018.
3.
In the event that the first respondent and those holding title under
him do not vacate the property on the
above date, the Sheriff of the
Court or his lawfully appointed deputy are authorised and directed to
evict the first respondent
and those holding under him from the
property.
4.
The first respondent is to pay the costs of this application.
S
C Mia
Acting
Judge of the High Court, Pretoria
Appearances:
On
behalf of the applicant
Adv TL Jacobs
Instructed
by
STOPFORTH, SWANEPOEL &
BREWIS
INC, Pretoria
On
behalf of the respondent
Susanna Whelpton
Instructed
by
In Person
Date
of hearing
27-February 2018
Date
of judgment
16 March 2018
[1]
Founding affidavit p15
[2]
Founding Affidavit p121