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[2018] ZAGPJHC 557
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Rees-Gibbs and Another v Zikhali and Another (39681/ 2017) [2018] ZAGPJHC 557 (11 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 39681/ 2017
Date
of Hearing: 03 September 2018
Date
of Judgment: 11 October 2018
In
the matter between:
KENNETH
ALAN
REES-GIBBS First
Applicant
BARBARA
REES-GIBBS Second
Applicant
And
ZWELIBANZI
GRIFFITHS
ZIKHALI First
Respondent
THOBEKA
JOYCE
ZIKHALI Second
Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This application concerns the eviction of the Respondents as
contemplated in the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (‘the PIE Act’).
The Applicants seek relief in the following terms:
‘
1 That the First and Second
Respondents (“the Respondents”) and any other person
occupying the immovable property under
the Respondents’ title
or with her permission, be ordered to vacate the property situate at
[…], Ext 3 more fully described
as […], Extension 3, Johannesburg (hereinafter referred to as
“the property”).
2 The Respondents are ordered to
vacate the property on or before a date to be determined by the
Honourable Court.
3. That in the event of the
Respondents failing to comply with the order in paragraph 1 herein
above, that the Sheriff of the above
named Honourable Court and/or
his/her deputy be and is hereby authorised to evict the Respondents
and those occupying through or
under her, from the premises and
secure the services of a locksmith, and the assistance of the South
African Police Service, if
necessary, to effect such eviction.
4. That the Respondents pay the costs
of this application, including the costs of the ex-parte application
in terms authorising
the Section 4 (2) Notice in terms of the
Prevention of Illegal Eviction and Unlawful Occupation of Land Act of
1998 on the scale
of attorney and client.
’
[2]
The Respondents are opposing the application and have counterclaimed
for payment of an amount of R150 000. The amount is
alleged to
be damages suffered caused by defects to the property that should
have been repaired by the Applicants.
FACTUAL
BACKGROUND
[3]
The facts in this matter are largely common cause except for a few
details here and there. On 5 November 2014, the First Applicant
and
the Respondents concluded a written deed of sale (‘the deed’)
in terms of which the former sold to the latter an
immovable property
described as […], Extension 3, Johannesburg (‘the
property’). Following the Respondents’
failure to comply
with the terms of the deed, the Applicants cancelled the agreement
but subsequently entered into another agreement
(‘the lease’)
in terms of which they permitted the Respondents to stay on the
property provided they paid monthly rentals
in the sum of R15 000.
[4]
The deed provided as follows:
4.1 The purchase price of
the property would be R 2 600 000;
4.2 The Respondents
would, against acceptance of the deed by the Applicants, make payment
of a deposit amount of R300 000;
4.3 The Respondents would
make monthly instalments of R15 000 in reduction of the purchase
price commencing on 1 December 2014;
4.4 There would be a
total of 13 monthly instalments in the amount of R15 000;
4.5 The Respondents would
settle the balance of the purchase price, R2 105 000, at
the end of the 13 month period, not
later than 1 January 2016;
4.6 The Respondents would
be liable for payment of electricity charges, property insurance,
rates and taxes and related costs;
4.7 In terms of clause
3.3 of the Deed, the Applicants would not be entitled by reason of
any breach on behalf of the Respondents
to terminate the deed unless
the Applicants had by letter notified the Respondents of the breach
concerned and made demand to the
Respondents to rectify the breach in
question and the Respondents have failed to comply with such demand.
Such notice shall be
handed to the Respondents or sent via registered
post to their domicilium address and would contain:
4.7.1
a
description of the
Respondent’s breach;
4.7.2 a demand that the
Respondents rectify the breach within a period of not less than 30
days calculated from the date on which
the notice was handed to the
Respondents or sent via registered post; and
4.7.3
an indication of the steps that the Applicants intend to take if the
breach was not rectified
.
4.8 Should the
Respondents fail to comply with any obligation in terms of the
agreement within the periods prescribed in clause
3.3 thereof, the
Applicants would be entitled in addition and without prejudice to any
other rights available to them in law but
subject to the provisions
of clause 3.3 and section 12 (5) of the Act to:
4.8.1
terminate the deed and withdraw therefrom, in which event the
Respondents would forfeit the right to claim restitution of
anything
performed by them in terms of the deed, and notwithstanding such
withdrawal, the Applicants would be entitled to claim
payment of all
arrear instalments and performance of all and any other arrear
obligations that the Respondents have failed to perform
by the date
of such withdrawal;
4.8.2
to cancel the deed and claim and recover such damages as the
Applicants may claim and recover such damages as they may be
able to
prove that they sustained, in which event they would be entitled to
retain all amounts previously paid by the Respondents
in terms of the
deed until the actual amount of damages has been determined at law
and thereupon to set off such damages against
the amounts thus
retained.
4.9 The Respondents would
take occupation and possession of the property on 1 December 2014;
4.10 Upon the
cancellation of the deed for any reason whatsoever the Respondents
and all other persons in occupation of the property
claiming through
them under the Respondents would be obliged to vacate same
immediately, it being recorded that any rights of occupation
granted
to the Respondents flow only from this deed and are in no way to be
interpreted as any form of tenancy;
4.11 The Respondents
would jointly and severally, and in solidium be liable for the
payment of all monies and for the carrying out
of all the terms of
the deed;
4.12 The Respondents
would be responsible for and would be liable to the Applicants for
all expenses, costs and charges which the
Applicants would incur
arising out of the default of the First and Second Respondents,
collection commission at the ruling as well
as all legal costs as
between attorney and client.
[5]
On 1 December 2014, the Respondents, together with their four minor
children,
took
occupation of the property, it being common cause that it is their
primary residence. By March
2015,
the Respondents had still not paid the deposit of R300 000.00 in
full and were in arrears with their monthly instalments,
utilities
and repairs to the property were outstanding. The value of all that
was still outstanding amounted in all to R120 000.
[6]
The Applicants invoked the procedure for cancellation of the deed as
described in Clause 19.1 of the deed. When the Respondents
failed to
remedy their default, the Applicants cancelled the agreement by
notifying the Respondents and the Deeds Registries Office
in
Johannesburg. The Respondents continued to lag behind with their
monthly instalments arising in terms of the deed and even at
the time
when the parties concluded the oral lease agreement in March 2016,
they were still behind.
[7]
From March 2016, the Respondents occupied the property in terms of
the lease for which they had agreed to pay an amount of R15 000
monthly reckoned from April 2016. The Respondents have since
occupation of the property in terms of the lease in March 2016 failed
to make any payment and yet they refused to vacate notwithstanding
notification that the lease has been cancelled due to their
non-payment.
[8]
The Respondents have been aware that the Applicants have been wanting
to take possession of the property. In this regard, their
attorneys
wrote to the Applicants on 7 April 2017 indicating that they were
willing to vacate the property. Again, on 30 June 2017,
their
attorney advised the Applicants that the Respondents would vacate the
property on 31 July 2017. The date of 31 July 2017
came and went. On
30 August 2017, their attorney made another undertaking that they
would move out on 22 September 2017 yet to
date they are still in
occupation.
ISSUES
[9]
This Court must decide whether or not the Applicants are entitled to
evict the Respondents. Put differently, are the Respondents
in lawful
occupation of the property? If they are not, it will follow that the
Applicants have a right to eject them.
LEGAL
POSITION
[10]
Section 1 (xi) of the PIE Act provides that:
‘
unlawful occupier’’
means 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, excluding a person who is an occupier in terms
of the
Extension of Security of Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act No. 31 of 1996). (vii).’
[12]
Section 4(7) of the PIE Act stipulates:
‘
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.’
[13]
Section 4(8) of the PIE Act describes what the Court can do once it
is satisfied that all the requirements of the section have
been
observed and that no valid defence has been raised by the unlawful
occupier:
‘
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.’
[14]
The above provisions of the PIE Act have been given meaning and
expression by various cases. Thus, in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012 (6) SA 294
(SCA) the court stated at paragraph 25:
“
First, it must decide whether
it is just and equitable to grant an eviction order having regard to
all relevant factors. Under
section 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 section 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’.
The second enquiry which
the Court hearing an eviction application must consider is, ‘what
justice and equity demand 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.”
[15]
Weighing on what meaning to assign to ‘just and equitable’
in the context of Section 4(7) of the PIE Act, this
Court per Willis
J, as he then was, in
Johannesburg
Housing Corporation (Pty) Limited v The Unlawful Occupiers of the
Newtown Urban Village
2013
(1) SA 583
(GSJ) said at paragraph 21:
“
Having regard to the provisions
of section 4(7) of PIE (and the interpretation given to those
provisions and the requirements in
respect thereof subsequently laid
down by the Constitutional Court and the SCA), this case has to be
decided according to whether
it would be just and equitable to grant
an eviction order against the respondent, after considering all the
relevant circumstances,
including the availability of land for the
relocation of the occupiers, the rights and needs of the elderly,
children, disabled
persons and households headed by women. A
conundrum arises from what is meant by “just and equitable”.”
[16]
It has been stated in a number of decisions that a party resisting
eviction ought to divulge all circumstances pertinent to
the eviction
order. The upshot of such failure will be an order granting the
eviction. In this regard the remarks of the court
in
Ndlovu
v Ngcobo, Bekker & Another V Jik
2003
(1) SA 113
(SCA), at paragraph 19, could be instructive:
“
Unless the occupier opposes and
discloses circumstances relevant to the eviction order, the owner, in
principle will be entitled
to an order for eviction. Relevant
circumstances are nearly without fail facts within the exclusive
knowledge of the occupier
and it cannot be expected of an owner to
negative in advance facts not known to him and not an issue between
the parties.”
[17]
In
Johannesburg
Housing Corporation (Pty) Ltd
supra
,
this Court also shed light on how detailed and specific the
circumstances should be for a party facing eviction to successfully
ward off ejectment. The court stated that:
“
All counsel who have struggled
to resist an application for summary judgment, will be familiar with
the case of Breitenbach v Fiat,
in which Colman J made it plain that
it would be difficult indeed to show good cause why such judgments
should not be granted where
the defence had been set out ‘baldly,
vaguely or laconically’. There is no reason why this
principle should not
apply to occupiers seeking to resist he
application for their eviction. Of course, every move from one
dwelling to another
carries with it its own traumas and
disadvantages. That is not enough to resist an eviction order
where an occupier has no
right, recognised at common law, to remain
in occupation of a particular property.”
APPLICATION
[18]
The first question that requires consideration by this Court is one
pertaining to the lawfulness of the Respondents’
occupation of
the property. The Respondents first entitlement to the occupation of
the property was the deed. They failed to execute
their obligations
as prescribed in the deed. The Applicants, as they were entitled to
do, brought the breach provisions of the
deed into operation
culminating in cancellation. The cancellation of the deed drew the
Respondents into the fold of unlawful occupiers
in terms of the PIE
Act.
[19]
Subsequent to the cancellation of the deed, the Applicants gave the
Respondents a reprieve by entering into the oral lease
agreement with
them. The lease agreement prolonged their occupation of the
property. Their failure to perform as per the
provisions of the
lease agreement, however, prompted the Applicants to cancel the
lease. Thus, the cancellation left them vulnerable
to eviction once
again as they reverted to being unlawful occupiers as per the
definition in Section 1 of the PIE Act.
[20]
It is manifest from the provisions of the PIE Act and cases above
that the finding that the Respondents are unlawful occupiers
does not
of itself lead to eviction. The next question that needs
consideration is whether or not it will be just and equitable
to
evict having regard to all relevant factors. See
Changing
Tides supra
.
[21]
The Respondents have breached the terms of two agreements from which
they derived their right to occupy the property. The perusal
of the
Respondents’ papers does not give a picture that the
Respondents are struggling financially, besides, the property
concerned in this matter is well above what one would describe as
‘sub-economic structure ordinarily occupied by the poorer
stratum of the population in this country’.
[22]
Given the above, it should not be a struggle for the Respondents to
find affordable alternative accommodation. The only information
that
this Court has on the Respondents’ personal circumstances is
that they live with four minor children. I am inclined
to believe
that the mentioning of the four minor children was not meant to
persuade this Court to be circumspect in granting an
eviction order.
The requirements for wanting a Court to pay a particular attention to
such information have been set out in various
cases including the
Johannesburg
Housing Corporation
and the
Ndlovu
cases supra. The information furnished is too terse and inadequate
for this Court to make a decision based thereon.
[23]
What is plain is that the Respondents have no defence against the
claim of the Applicants. In the circumstances, I am constrained
to
grant an order for their eviction. However, prior to leaping that
far, this Court is enjoined to consider the effect that such
an order
would have on the Respondents. I have already stated earlier in this
judgment that the socio-economic status of the Respondents
mitigates
against any possible negative effect which the eviction might have
otherwise had.
[24]
Against that background I find that:
24.1
The Respondents are in unlawful occupation, their right to occupy the
property having ended when both the deed and the lease
were
terminated;
24.2
The Respondents have no valid defence against the claim for eviction;
and
24.3 Their socio-economic
status puts them outside of the bracket of people who would find it
difficult to find affordable alternative
accommodation.
COUNTERCLAIM
[25]
I now want to briefly turn to the Respondents’ counterclaim
against the Applicants. In their counterclaim, the Respondents
seek
this Court to direct the Applicants to pay half of the amount that
they (the Respondents) paid as a deposit plus 9% interest
to them in
lieu of the damages sought against the Applicants as a result of the
alleged defects and vandalism of the property.
[26]
The damages claim sought against the Applicants is contested. The
basis of the challenge to the claim being that the
invoices
attached to the Respondent’s papers are for aesthetic work such
as shower heads and arms, toilet pans and taps,
and municipal charges
for which the Applicants are not liable. In short, the proof alleged
to have been attached as proof of the
damages sustained does not go
anywhere towards R150 000.
[27]
The amount of R150 000 has therefore not been established at
all. Accordingly, argue the Applicants, the Respondents
should
not have launched a counter application because disputes of fact
under such circumstances would be hard to avoid. Furthermore,
the
Respondents should have anticipated that this would be the case. In
this respect this Court has been referred to the case of
Lombaard
v Droprop CC and
Others
2010
(5) SA 1
(SCA)
where it was held:
‘…
Therefore,
if a party has knowledge of a material and bona fide dispute,
or should reasonably foresee its occurrence and
nevertheless proceeds
on motion, that party will usually find the application dismissed.’
[29]
It certainly ought to have occurred to the Respondents at the time
when they attached the invoices that they could not be sufficient
to
prove their claim of R150 000.00 against the Applicants. Mindful
of this fact, they nonetheless proceeded to launch the
counter
application regardless of the distinct possibility of disputes of
fact. This is an appropriate case on which this
Court should
exercise its discretion in terms of Uniform Rule of Court 6(g). In
the result, the main application succeeds and the
counterclaim is
dismissed.
ORDER
[30]
The following order is therefore made:
31.1
The Respondents and any other person occupying the immovable property
under the Respondents’ title or with her permission,
is ordered
to vacate the property within 45 (forty five) days of this order;
31.2
In the event of the Respondents failing to comply with the order
above, the Sheriff of this Court and/or his deputy is authorized
to
evict the Respondents and those occupying through or under her, from
the property and to secure the services of a locksmith,
and the
assistance of the South African Police Service, if necessary, to
effect such eviction;
31.4
The Respondents are to pay the costs of the application.
______________________________________
B
A MASHILE
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
APPEARANCES:
For the Applicant: Adv V
Vergano
Instructed
by: LG Gouveia Attorneys
For
the Respondent: In person