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[2018] ZAGPJHC 680
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Madulammoho Housing Association (Pty) Ltd v Thabane and Others (272/2017; 1077/2017) [2018] ZAGPJHC 680 (21 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 272/2017 & 1077/2017
In the matter between
MADULAMMOHO
HOUSING ASSOCIATION (PTY)
LTD Applicant
and
MIRRIAM
POPPY THABANE & NONHLANHLA PRETTY
MKIZE First
Respondents
CITY
OF
JOHANNESBURG Second
Respondent
JUDGMENT
Molahlehi,
J
Introduction
[1]
The applicant, Madulammoholo Housing
Association, has instituted two separate eviction applications
against the respondents being,
Ms Thabane and Ms Mkhize (the
respondents) under the above case numbers. The respondents in both
cases are lessees at Portion 3
of Erf 2605 Jabulani Views,
Matjhabeng, Soweto (the property). The two applications were by
agreement heard together and their
determination is made jointly in
this judgment.
[2]
The
applicant, Madulammoho, is an association incorporated in terms of
section 21 of the Companies Act.
[1]
It avers in paragraph 8 (eight) of its founding affidavit in both
matters that it is the owner of Portion 3 of Erf 2605 Jabulani,
Soweto (the premises).
[3]
On 19 December 2012 the applicant and Ms
Mkhize concluded a lease agreement for the occupation of Unit C005 at
the premises. The
monthly rental in terms of the agreement was
R750.00 payable in advance on the first day of each calendar month.
[4]
The lease agreement with Ms Thabane was
concluded on 19 December 2012 and that was for the occupation of unit
D 201 with monthly
rental payment in the sum of R901 000, 00.
[5]
The applicant avers in the founding
affidavit that after concluding the lease agreements it handed
possession of each of the two
units to each of the respondents.
[6]
The initial period of the lease agreement
was for a period of six months after which the lease became a monthly
lease which could
be cancelled by either party on a month's notice.
[7]
The respondents were issued with separate
notices of cancellation of the lease agreements on 18 October 2013 by
the applicant. They
both have refused to vacate the respective units
they occupy despite the demand set out in the notice. It is for this
reason that
the applicant contends that they are in unlawful
occupation of the property.
[8]
The respondents have both opposed the
eviction applications. They were legally represented throughout the
proceedings.
[9]
On 17 September 2018 both matters were
postponed to 25 September 2018 with a directive that the City of
Johannesburg should appear
before the court and provide a report
regarding this matter.
[10]
At the hearing of the matter on 25
September 2018 the City of Johannesburg was legally represented. It
in accordance with the directive
of the court presented its report in
the form of an affidavit dated 17 September 2018. The essence of the
report is that there
is no temporary emergency accommodation
facilities (TEA) available to accommodate the respondents. .
[11]
The report also indicates that because the
respondents are legally represented, they ought to have placed before
the court information
as to why they would be rendered homeless if
the relief sought against them was granted. In opposing the
application the respondents
raised the issue of ownership of the
property.
[12]
The property in question is a housing
scheme intended to address the plight of those persons who do not
qualify for the Reconstruction
and Development Program (the RDP)
housing scheme and also at the same time do not qualify for securing
mortgage bonds to buy houses
in the housing market. These are
families whose combined income in terms of the policy of the City of
Johannesburg is in excess
of R3 000.00 but less than R10 000.00.
[13]
The respondents further contended that the
property was developed through a grant from the Gauteng government
and those who took
occupation were granted subsidies and required to
pay nominal rent. The understanding according to them was that after
paying rental
for 5 (five) years the property would be transferred
and registered into their names.
[14]
Ms Thabane testified in her affidavit that
at the time she was served with the eviction notice she was left with
9 (nine) months
to qualify to have the unit transferred into her
name.
[15]
And in the case of Ms Mkhize, she testified
in her answering affidavit that she is left with 2 (two) years to
have the house transferred
into her name. She also contended that the
lease can only be cancelled in the event of breach of the lease
agreement. This point
was not pursued in argument, correctly so,
because the cancellation was based on the provision of the lease
agreement and not breach
of contract.
[16]
The other point raised by the respondents
was that they were not served with the notice in terms of s 4 (2) of
Prevention of Illegal
Eviction of Occupiers Act (PIE). This point was
also, correctly not pursued in argument by Counsel for the
respondents.
[17]
In addition to setting out the procedure
for registering for temporary emergency accommodation (TEA) by a
person faced with potential
homelessness, the report indicates that
the respondents in the present matter have never approached the City
of Johannesburg to
register. The report further indicates that the
City of Johannesburg has no TEA readily available for the respondents
in the present
matter.
Case
for the respondents
[18]
As stated above the respondents have
opposed the application. They have in this respect placed in dispute
the issue of ownership
of the property by the applicant. They also
indicate in this regard that they have instituted proceedings to
challenge the ownership
of the property by the applicant. They
contended that the ownership of the property by the applicant was
fraudulently obtained.
Evaluation
and analysis
[19]
The first issue to deal with in this matter
concerns the ownership of the property and whether absent that the
applicant is non-suited
to institute this application. The
respondents contend that the applicant has no right of ownership to
the property. They further
contend that the ownership which the
applicant relies on was fraudulently acquired.
[20]
The respondents have instituted proceedings
which have been pending for quite some time challenging the ownership
of the property
by the applicant. It should be pointed out that the
alleged fraud has not been substantiated. It however seems the
challenge is
based on the contention that the applicant could not in
law have purchased the property because it is a product of a social
housing
scheme which has been subsidized by the government.
[21]
The delay in finalizing those proceedings
raises questions about why they instituted. Be that as it may, the
issue of evicting applicants
does not depend only on ownership of a
property. A landlord, who may not necessarily be the owner of a
property, also has a right
to cancel a lease agreement and vindicate
his or her right to possession. In this regard the applicant avers in
paragraph 13 (thirteen)
of both its founding affidavits that it gave
the possession of the leased units to the respondents who took
possession respectively
on 1 November 2014 and 1 May 2013.
[22]
Ms Thabane has despite notice and demand
refused to vacate the unit. She ought to have vacated the unit by 30
November 2016. She
thus has been in unlawful occupation of the
premises since 1 December 2016. The same applies to Ms Mkhize who was
issued with the
notice on 29 September 2016 and thus has been in
unlawful occupation of the unit since 1 November 2016.
[23]
In both the first and second hearing of
this matter both Counsel referred me to Mashile, J’s unreported
judgment, in Hlamolani
Ellen Mawendela v City of Johannesburg, Case
number 0273/2017. That case involved two other occupiers of the same
property.
[24]
It is apparent from that judgment that the
court dealt with the eviction application on the basis of possession
of the property
and not ownership thereof. In this regard it is
important to emphasize that Counsel on the two occasions that this
matter served
before this court indicated that they were in all
respect in agreement with the approach adopted by Mashile J except
for the manner
in which the order was formulated. It was in this
respect pointed out to Counsel that this court did not have
jurisdiction over
their complaint concerning that order. It does
however seem to me that the approach adopted in formulating the order
was based
on the fact that the court did not have any input from the
City of Johannesburg upon which it could determine the risk of
homelessness.
In addressing that concern the court ordered the City
of Johannesburg to find alternative accommodation for the tenants
within
three months from the date of that order.
[25]
I find, based on the above discussion that
Mkhize and Thabane are in unlawful occupation of the units leased to
them not on the
basis that the applicant is the owner of the units
but on the basis that it has the right to possess them.
[26]
I now turn to deal with the issue of
whether it would be just and equitable to order eviction of both
Mkhize and Thabane. It is
now trite that before granting an eviction
order the court has to conduct a two prong enquiry to determine
whether, having regard
to all the relevant factors, it is just and
equitable to order eviction.
[27]
In terms of s 4 (7) of PIE one of the
factors to take into account involves the consideration of
homelessness consequent an eviction
and availability of alternative
accommodation or land. This arises in a case where it has been shown
that the personal circumstances
of the affected person/s are such
that eviction will result in homelessness and that they do not have
alternative accommodation.
.
[28]
The
second part of the inquiry involves consideration of "what
justice and equity demand in relation to the date of the
implementation
of the order and what conditions to be attached to the
order of eviction.
[2]
.
[29]
The other principle applicable in an
eviction application is that where the respondent has failed to
disclose a defence the court
is enjoined to grant the order for
eviction as prayed for by the applicant. In this respect Mashile J in
Hlamolani Ellen Mawandela,
said:
"[14] 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. "
[30]
Mashile
J then quoted with approval what was said by the Supreme Court of
Appeal (the SCA) in Ndlovu v Ngcobo, Bekker and Another,
[3]
which is also apposite in the present matter. In that case the SCA
said that:
"Unless
the occupier opposes and disclose 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."
[31]
In the present matter the applicant in both
notices of motion brought to the attention of the respondents the
provisions of s 26
(3) of the Constitution which reads as follows:
“
Housing:
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering
all the relevant
circumstances. No legislation may permit arbitrary evictions.”
[32]
The
approach to be adopted by the court in dealing with the issue of
eviction under PIE was dealt with in Occupiers of Erven 87
and 88
Berea v De Wet N.O. and Another.
[4]
Mojapelo AJ as he then was, found that in dealing with eviction the
court need to be informed of all the relevant “circumstances
in each case in order to satisfy itself that it is just and equitable
to evict and, if so, when and under what conditions.”
The court
further held that:
“
[48]
The court will grant an eviction order
only where: (a) it has all the information about the occupiers to
enable it to decide whether
the eviction is just and equitable; and
(b) the court is satisfied that the eviction is just and equitable
having regard to the
information in (a). The two requirements
are inextricable, interlinked and essential. An eviction order
granted in
the absence of either one of these two requirements will
be arbitrary. I reiterate that the enquiry has nothing to do
with
the unlawfulness of occupation. It assumes and is only due
when the occupation is unlawful.”
[33]
In the present matter the applicant brought
to the attention of the respondents that should they feel that their
rights as provided
for under that section 26 of the Constitution will
be infringed then they should place before the court information
supporting
such a claim. The respondents were again advised of what
they were required to do if they were of the view that their rights
would
be infringed if an eviction order was granted.
[34]
In addition to the above it needs to be
emphasized that the respondents were represented by both attorneys
and Counsel in these
proceedings, thus the question of whether they
could not appreciate what was required of them to protect their
rights does not
necessarily arise.
[35]
Mkhize states in her answering affidavit
that she is a female person with five minor school going children and
that her household
is headed by her as a single woman. She further
states in paragraph 18 (eighteen) of her answering affidavit that:
“
18.1
As I have already alleged above that I am a woman heading a family in
lawful occupation of this property with my salary income
less than
R10 000. 00 a month and that this property was acquired through
Government Capital and Subsidy grants therefore peremptory
provisions, as I have been advised and such advise been accepted by
me to be correct, that section 4 (7) of the “PIE”
Act
applies herein.”
[36]
The above information tells this court very
little about the personal circumstances of Mkhize. The amount “less
than R10 000,00”
could mean that she is earning R9 999.00
through which she can afford rental in another property. She also
does not provide
any details about her children, their age what grade
are they at school, how much she pays for their school fees from the
“less
than R10 000.00” salary she earns She also
does not state if she believes that an order evicting her would
result in
homelessness, and why she has to date not approached the
City council and asked for assistance.
[37]
Thabane also tells the court that she is a
woman heading a family and earning a salary “less than
R10 000,00.”
The observation made above concerning Mkhize
also applies to her.
Evaluation
[38]
It seems to me,
common cause or at least it has not been disputed that the premises
in question is a social housing scheme intended
to address the issue
of housing by government. The scheme is intended to address those who
has some income but do not qualify for
the free RDP housing and at
the same time do not qualify for mortgage bond from the banks. This
suggest that there is a risk of
homelessness if the two respondents
were to be evicted immediately.
[39]
The City
Johannesburg's report does not assist the court in relation to what
the effect of the eviction will be on the two respondents.
What the
report does is simply to tell the court that the City of Johannesburg
does not have temporary emergency accommodation
available for them.
There is no indication that there has been any engagement between the
parties in relation to the information
regarding the impact of the
eviction will have and how it can be ameliorated. There is no
evidence from the report as to whether
there are other social housing
schemes in the area which has the capacity to accommodate the
applicants as part of alternative
accommodation. There is also no
evidence that there other affordable housing in the area for the
respondents.
[40]
As appear from above
I am of the view that applicants should be evicted. However, that can
only happen once the court is provided
with all the relevant
information relating to the effect of the eviction on the
respondents.
[41]
In light of the above
I seek to make an order that addresses the interest of the applicant
and the respondents.
Order
[42]
In the circumstances
the following order is made:
1.
Ms Mkhize and
Ms Thabane, the respondents and all those who occupy the units
through and under them are evicted from the Jubulani
Matjhbeng
Soweto.
2.
The order is
held in abeyance pending all relevant information being placed before
the court.
3.
The parties
are direct at undertaking constructive engagement regarding the issue
of homelessness and including dealing the personal
details and
circumstances of the Ms Mkhize and Ms Thabane.
4.
The City of
Johannesburg shall provide the court with a report dealing with the
information referred to in paragraph 3 above within
60 (sixty) days
of date of this order.
5.
The matter is
postponed to a date to be arranged by the Registrar after the expiry
of the 60 (sixty) days period referred to above.
6.
Costs are
reserved.
______________________
E
MOLAHLEHI
Judge
of the High Court
Gauteng
Local Division,
Johannesburg
RESPONDENTS:
FOR
THE APPLICANT: Adv V Fine
INSTRUCTED
BY: Mervyn Joel Smith Attorneys
FOR
THE RESPONDENTS: Adv BT Ngqwangele & Adv N K Ramsingh
INSTRUCTED
BY: Mtabela Attorneys & Mchunu Attorneys
HEARD
ON: 25 September 2018
DELIVERED
ON: 21 November 2018
[1]
Act
number 61 0f 1973.
[2]
See
Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers the
Newtown Urban Village
2013
(1) SA 583 (GSJ)
[3]
2003
(1) SA 113
at para 19
[4]
(CCT108/16)
[2017] ZACC 18
;
2017 (8) BCLR 1015
(CC);
2017 (5) SA 346
(CC) (8
June 2017