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[2018] ZAGPJHC 713
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Moodley v Moodley and Others (45879/2016) [2018] ZAGPJHC 713 (28 November 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 45879/2016
In
the matter between:
MOODLEY,
NISHA
Applicant
and
MOODLEY,
NESAN
First
Respondent
MOODLEY,
PUROSHOTMAN
Second
Respondent
JUDGMENT
INTRODUCTION
1.
The applicant is the owner of the immovable
property in Derby Road, Kensington, Johannesburg (“
the
property
”). The property was
improved by the erection of three buildings which have been
sub-divided into flats which the applicant
lets out for rental
income. The applicant’s title in and to the property is
unassailable and not in dispute.
2.
The first and second respondent are the
brother and father of the applicant respectively. Both respondents
took occupation of the
property in terms of an oral lease agreement
concluded with the applicant. The terms and conditions of the oral
agreement are not
stated in the papers. The plan of the Flats is also
not attached to the papers.
FACTS OF THE CASE
3.
The 1
st
and 2
nd
respondents are the tenants of property owned by the applicant in
terms of an oral lease agreement. The applicant alleges that
the
respondents assaulted her and caused one of her flats to be hijacked
for their own benefit. The respondent also caused the
applicant to be
wrongfully arrested. The applicant terminated the oral lease
agreement between the parties on 16 January 2017 as
a result of the
above conduct. It is not disputed whether the respondents are up to
date with the payment of their rent. The applicant
seeks a final
order of eviction of the first and second respondent under the
provisions of section 4 of the Prevention of Illegal
Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (“
the
Act
”).
APPLICANTS ARGUMENT
4.
It is submitted for the applicant that as a
result of the respondents assaulting the applicant, causing one of
the applicant’s
flats to be hijacked for their own benefit; and
causing the applicant to be wrongfully arrested, the applicant
terminated the oral
lease agreement between the parties.
5.
It
is further submitted that by virtue of the applicant’s
termination of the oral agreement between the parties, the
respondents
do not hold a lawful right of occupation and are
therefore unlawful occupiers
[1]
as
contemplated by section 1 of the Act. Consequently, the applicant
seeks a final order of eviction of the first and second respondent
under the provisions of section 4 of the Act.
6.
The high-water mark of the first and second
respondent’s defence to this application rests on three
arguments:
6.1.
This application has been instituted whilst
an “
essentially
”
similar application remains pending under case number 2017/04359.
6.2.
The first and second respondents occupy the
property in terms of a “verbal lease agreement and/or “family
home agreement””.
6.3.
Their right of lawful occupation derives
from paragraph 4.7 of the court order dated 16 February 2017.
Here is the extract
of the order:-
“
4.
Pending the finalization of the proceedings in section 4 of the PIE
Act, the following order is made: 4.7. The area of the property
identified as area “A” may be occupied by the First
Respondent, his spouse and his two minor children and the Second
and
Third Respondents. 4.8 The order in paragraph 4.7 above does not
confer any right of occupation
on the
Respondents other than that as provided for in this Order”.
7.
Two fundamental aspects are evident from a
complete reading of the order which are destructive of the first and
second respondents’
interpretation –
7.1.
Firstly, the prescribed occupation by the
first respondent and his family, and the second respondent is clearly
interim in nature
and is subject to the finalization of final
eviction proceedings under section 4 of the Act.
7.2.
Secondly, the right of occupation as
being limited to the interim relief granted by the order is clarified
by the proviso contained
in paragraph 4.8, and can in no way be
construed to confer a permanent right of occupation on the first and
second respondents.
8.
The apparent interpretation of the
respondents of paragraph 4.7 is therefore clearly misplaced. The
order evidently confines the
occupation of the respondents to the
duration of the finalization of the section 4 proceedings and its
endurance is therefore dependent
upon the success thereof.
The Lease Agreement
9.
In consequence of the termination of this
agreement, the first and second respondents are unlawful occupiers of
the property.
10.
The first and second respondents plead, in
somewhat uncertain terms, the existence of a “family home
agreement”. It
is unclear whether this agreement is pleaded
together with the oral lease agreement or in the alternative to the
oral agreement.
11.
However, and more importantly, the concept
of such an agreement is unknown in law and the first and second
respondents fail to plead
any terms of the agreement so as to
establish the basis upon which such an agreement can justify their
continued occupation of
the property.
12.
In the absence of any particularity, the
first and second respondent have failed to prove the defence of a
“family home agreement”,
thus rendering the contention
unsustainable and the defence must therefore be dismissed.
13.
Having terminated the agreement, the
respondents’ continued occupation of the property is unlawful.
Accordingly, and on these
papers, the applicant’s title in and to the property is
unassailable. Similarly, the respondent
has failed to establish any
right or entitlement, recognised in law, to remain on the property.
Homelessness
14.
Notwithstanding the bare and
unsubstantiated contentions of the respondents, this is not a case
where the first and second respondents’
eviction will render
them homeless.
15.
As pointed out above, the first and second
respondents cannot actually make out that case: they demonstrate, on
their own version,
that they are able to pay rent. This is evidenced
by their allegation that they are making the payments per paragraph
4.12 of the
order of 16 February 2017 in the amount of R3 000.00
per month.
Execution period of
the Eviction Order
16.
The only issue that remains to be
determined in this matter is the issue as to when the order must
become executable.
17.
Given that the respondents’ oral
lease agreement was terminated by the applicant on 16 January 2017,
the first and second
respondents have now enjoyed a period of some 18
months of unlawful occupation of the property. There is no reason why
they should
be afforded a further prolonged period before the
eviction order takes effect.
18.
In this case, the respondents have failed
to prove the existence of any circumstances which support the bare
allegation that they
are unable to find alternative housing and be it
in a relatively short space of time. Furthermore, they have not
indicated that
they are unable to pay or meet an alternative monthly
rental obligation due to financial constraint and therefore would be
in a
position to find and afford alternative accommodation. To the
contrary and on the respondents’ own version, the respondents
are both beneficiaries of an income and therefore able to pay rental
elsewhere. Furthermore, it is their version that they have
been
maintaining the payments mandated by this Court in paragraph 4.12 of
the order dated 16 February 2017.
19.
When the respondents’ lease agreement
was terminated, they ought then to have begun arranging their
affairs. It is inappropriate
for them to expect to have
additional time under these circumstances.
In
the circumstances, it is just and equitable that an eviction order be
granted, which order ought to be made executable within
30 days.
RESPONDENT’S
ARGUMENT
BREACH OF ORAL AGREEMENT
20.
It is not a seriously disputed fact that
the respondents occupied the property from which they are sought to
be evicted from through
an oral lease agreement with the applicant.
21.
The allegation that the respondents
exhibited a deliberate and unequivocal intention no longer to be
bound by the terms of the oral
agreement of lease is without factual
basis for the following reasons:
21.1.The
applicant has not provided evidence of this breach as to persuade
this Court that the respondents’ conduct attracted
such a
classification; and
21.2.The
allegation flies in the face of the documentary evidence proffered by
the respondents in the form of proof of payments
evincing the
payments that they made for rental.
21.3.Absent
a reply to deal with these payments, the respondents’ version
must be accepted and preferred over that of the
applicant.
Essentially, at a probative level, the applicant has failed to
disturb the respondents’ version.
BARE ALLEGATIONS IN THE
FOUNDING AFFIDAVIT
22.
The founding affidavit axiomatically fails
to deal
substantively
and in evidentiary terms with allegation of the abuse attributed to
the respondents; the alleged breach of the oral agreement which
is
the basis of the lease agreement; and that the respondents have
defaulted on payment.
23.
Yet, the applicant seeks final relief
evicting the respondents from a dwelling they are entitled to be at
by virtue of the oral
agreement that remains extant, notwithstanding
applicant’s charge of repudiation.
POINTS TO BE
DETERMINED BY THE COURT
24.
The
court is
required to determine the following;-
24.1.Whether
the respondents have advanced a valid defense to an eviction order
and whether the defence would entitle the respondents
to remain in
occupation as against the owner of the property.
24.2.Whether
the respondents’ alleged assault on the applicant and causing
her arrest is a
breach of the oral
agreement in the form of repudiation.
Whether
such repudiation is a
sine qua non
which entitles the applicant to an eviction order.
24.3.Whether
the respondents will be rendered homeless if an eviction order is
granted.
Lis
Pendens
25.
The
Respondents
submitted that these current proceedings for final relief of eviction
are
lis alibi pendens
because
the applicant launched similar proceedings out of this Court for
substantially the same relief. This submission was later
abandoned.
The court is therefore no longer
required to make a ruling on this submission.
26.
However,
it is worth mentioning that the requirements for a successful plea of
lis
pendens
are akin to those in a plea of
res
judicata
.
[2]
Therefore,
in order to succeed in a plea of
lis
pendens
,
the parties are required to demonstrate to the Court that an
application (being the second of the two applications) is between
the
same parties, about the same matter and on the same cause.
REASONS FOR JUDGMENT
27.
For an eviction order under section 4(8) of
the act to be successful the requirements of the section must have
been complied with.
Compliance with the requirements refers to both
service formalities and the conclusion that an eviction will be just
and equitable.
28.
Another requirement is that the unlawful
occupier must have failed to advance a valid defence to an eviction
order. The valid defence
raised refers to a defence that would
entitle the occupier to remain in occupation as against the owner of
the property, such as
the existence of a valid lease.
29.
If
the above requirements are satisfied, the Court is obliged to order
an eviction of the unlawful occupier. The Court must come
to a
decision that is just and equitable to all parties. All relevant
circumstances must be considered by the court, including
the
availability of alternative land and the rights and needs of people
falling in specific vulnerable groups. All the above
was
confirmed by the Supreme Court of Appeal in the case of
City
of Johannesburg v Changing Tides 74 (Pty) Ltd & Others
[3]
(herein
referred to as the
Changing
Tides
case).
30.
The
court must be satisfied that it is in possession of all the
information necessary to make findings based on justice and
equity.
[4]
Further,
there
is no dispute regarding compliance with service formalities.
31.
Counsel for the applicant argued that
insofar as the first and second respondents rely on the conclusion of
an oral lease agreement,
much is common cause with the applicant.
However, this agreement was subsequently terminated by the applicant
upon the abusive
and malignant conduct of the first and second
respondent which rendered a relationship of lessor and lessee
untenable. It was an
implied term of the oral lease agreement, she
says, that the respondents will not conduct themselves in such a
manner. This conduct
it is argued, constitutes repudiation of the
oral lease agreement. In consequence of the termination of this
agreement, the first
and second respondent are unlawful occupiers of
the property.
32.
I have a problem with the applicant’s
argument. The respondents have provided proof of monthly rental
payments and this fact
in not disputed by the applicant. The
applicant has failed to provide any terms of the oral agreement so as
to establish the basis
upon which such an agreement can be
terminated. On the contrary, the applicant avers that the respondents
failed to plead the existence
and terms of a so-called “family
home agreement”.
33.
It
is settled law that repudiation is a conduct which fairly interpreted
exhibits a deliberate and unequivocal intention no longer
to be bound
by the terms of an agreement. The question whether a conduct
repudiates the whole contract entitling the other party
to treat as
non-existent is difficult and no rules can be laid down. The question
is one of fact to be decided upon the circumstances
of each case
[5]
.
There
is also no proof that the alleged
abusive
and malignant conduct of the first and second respondent rendered a
relationship of lessor and lessee repudiated. There
is also no proof
that the aforementioned conduct
repudiates
the whole oral lease agreement entitling the applicant to treat it
(oral lease agreement) as non-existent.
There
is no proof that the conduct complaint about was a term of the oral
lease agreement. On the contrary there is proof that the
respondents
continue to pay rent and that fact is not in dispute. This conduct of
due and punctual payment of rent exhibits
a
deliberate and unequivocal intention to be bound by the terms of the
oral lease agreement
.
The
continued occupation of the property is justified by the consistent
rental payments and it is therefore lawful. In the absence
of any
particularity, the respondents cannot be regarded as unlawful
occupiers.
34.
I therefore find that the respondents have
succeeded to prove the defence of the existence of an oral lease
agreement. Their
continued payment of the rent clearly
indicates that they have every intention to be bound by the terms of
the oral lease agreement.
The respondents’ continued occupation
of the property is lawful. The occupation by the first respondent and
his family, and
the second respondent is not interim in nature and is
not subject to the finalization of final eviction proceedings under
section
4 of the Act.
HOMELESSNESS
35.
The
respondents contend that eviction will render them homeless. This
issue was not satisfactorily canvassed by the respondents.
In the
case of
Johannesburg
Housing v Unlawful Occupiers, Newtown
[6]
(referred
to as
Johannesburg
Housing
case
)
the court held that
"all counsel who
have struggled to resist an application for summary judgment will be
familiar with the case of
Breitenbach v Fiat SA (Edms) Bpk
, in
which Coleman J made it plain that it would be difficult indeed
to show good cause why such a judgment should not be granted
where
the defence has been set out "badly, vaguely or laconically".
There is no reason why this principle should
not apply to occupiers
seeking to resist the application for their eviction.”
36.
This means occupiers wishing to rely on the
homelessness defence must set out clear and sufficient facts to prove
this. Those facts
must be enough to resist an eviction order when an
occupier has to remain in occupation of a particular property.
A case
for remaining in occupation of a property has to be set out
sufficiently.
37.
The first and second respondents do
demonstrate on their own version, that they are able to pay rent.
This is evidenced by the fact
that they are making the payment in the
amount of R3 000.00 per month.
38.
Section 25(1)
of the Constitution states that “no one may be deprived of
property except in terms of law of general application,
and no law
may permit arbitrary deprivation of property.
39.
The right to
have access to adequate housing is protected in section 26 which
states that:-
“
(1)
Everyone has the right to have access to adequate housing. (2) The
state must take reasonable legislative and other measures,
within its
available resources, to achieve the progressive realisation of this
right.
(3)
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”.
40.
It is argued on behalf of the applicant
that the respondents fail to take the Court into their confidence,
and disclose and substantiate
the exact salary received by the first
respondent’s wife and the quantum of the state pension received
by the second respondent,
as well as their respective expenses. In
the absence of a proper assessment of their financial standing, it
must be concluded that,
in the face of their concession that both
respondents benefit from an income, they would be able to afford and
pay for alternative
rental accommodation in another property. As a
result, this is not a case where the occupiers have demonstrated
themselves to be
persons who as a result of poverty and disadvantage,
are unable to make alternative accommodation arrangements themselves
.
The respondents’ position is the exact opposite.
41.
The 1
st
respondent on the other hand avers he is unemployed, occupies the
property with his wife and their minor children aged 12 (twelve)
and
their dependent child aged 18 (eighteen). He is dependent on his
wife’s income. He further avers that the other property
is
occupied by his 77 (seventy seven) year old father who receives a
state pension. He avers that the respondents are unable at
this stage
to secure alternative accommodation.
42.
In
considering
what
is just and equitable
to
both the applicant and respondent, I have to balance the interests of
the land owner and those of the occupiers. Some of the
relevant
factors to be taken into consideration include that
the
investment of the owner in property should not be sterilised; that
the landowner retains the protection against arbitrary
deprivation of
property; and that alternative land or accommodation is available.
The rights of both the applicant and respondents
are protected by
sections 25 and 26 of the Constitution respectively.
[7]
43.
The
respondents have dismally failed to make a case for homelessness. In
fact I find that the applicant as the landlord is entitled
to know
the credit standing of the tenants. This is a routine credit check
that is conducted by any landlord in any lease agreement.
However
what counts in favour of the respondents is that there is a
vulnerable minor child and a 77 (seventy seven) year old staying
on
the property. Further, what counts more in favour of the respondents
is the fact that this is an oral lease agreement between
family
members.
44.
I am therefore
unable to conclude that an amount of R 3000- is sufficient to enable
the respondents to secure alternative accommodation
in the absence of
sufficient evidence indicating that such an enquiry was ever made by
both the applicant and the respondents.
After all the 2
nd
respondent is the applicant’s father.
45.
The applicant has failed to make out
a case to sustain the relief she seeks.
Therefore,
the termination of the oral lease
agreement is unlawful.
46.
Until
the terms of the oral lease agreement as understood by the applicant
and the so-called “family lease agreement”
as understood
by the respondents are clarified
by
both parties to each other
an
eviction order cannot be granted. In fact the parties must get
together and clarify the terms of the agreements with the
assistance
of both their legal representatives in order to avoid future
misunderstandings and avoid wasting the court’s time
over
family disputes.
47.
I won’t deal with the issue of
execution of the eviction order since its’ relevance is
dependent on the success of the
eviction order.
48.
I now turn to the issue of costs.
It
was argued that as a direct consequence of the first and second
respondents’ conduct, the applicant has been driven from
her
own home and property, and obliged to rely on the goodwill of others
for accommodation. Her need for possession must therefore
be measured
against the defence advanced by the first and second respondents.
49.
The affidavits provided by the parties did
not provide photos or a plan of the flats on the applicant’s
property. Instead
of conducting an inspection
in
loco
I
requested
the parties to draw and provide the court with a layout of the flats
owned
by the applicant. This I requested in the quest to be in possession
of all
the
relevant information to enable me to make an appropriate order based
on justice and
equity.
A
court is obliged to take a proactive approach in eviction cases in
order
to
ensure that it is sufficiently informed to enable it to take a just
decision. In fact
courts
must ensure that proper investigations have been undertaken.
[8]
50.
The layout of the properties revealed that
the applicant still lives in a three
bedroom
house which has an office and a studio rented by a tenant. This is in
contrast to what applicant alleged in her affidavits.
Therefore, the
need for possession as averred by the applicant does not exist.
51.
The fact that the applicant lied under oath
by averring that she is not staying in her house knowing that to be
untrue, clearly
indicates the frivolous nature of this application.
52.
The respondents Counsel did not seek costs because
“the attorneys and I act on a
pro
bono
basis”. The misconception that pro bono attorneys and
counsel are not entitled to costs should be obliterated. Once
this
misconception is so done away with, the lifelong and honourable quest
for access to justice will become a reality. Impecunious
litigants will have the services of enthusiastic and proficient legal
representation readily available.
53.
The
scale
of costs will depend on the facts of each case. In the case of
Zeman v Quickelberge & another
[9]
the
court noted that the point of
pro
bono
service is to provide access to justice to those who cannot afford it
otherwise, not to focus on whether the legal representative
of the
pro
bono
client profits or not. This is a misplaced focus, the court said,
that has bedevilled the issue whether a
pro
bono
litigant can recover costs. In the court's view access to justice to
indigent litigants should be encouraged.
54.
My opinion is that
the courts can encourage access to justice by awarding costs in
favour of
pro
bono
lawyers. It must be borne in mind that
pro
bono
lawyers are driven by their virtues of generosity, benevolence and
desire to see justice being done. The courts should encourage
these
kinds of virtues by awarding costs as a way of appreciation to
pro
bono
legal
representatives where circumstances warrant such an award.
In making the award
for costs, the court must be satisfied that the
pro
bono
legal
representative has prepared his case thoroughly. Relevant authorities
in the form of case law must be cited, issues must
be properly
ventilated, and the argument must be convincing. In this case
the respondents’ legal
representatives are entitled to costs despite the fact that they are
acting
pro bono.
I
am also awarding those costs on an attorney and own client basis
because the applicant lied under oath by averring that she no
longer
stays on her property. Therefore, the order I make is just and
equitable.
WHEREFORE I MAKE THE
FOLLOWING ORDER:-
1.
The application for a final eviction order
is dismissed.
2.
The oral lease agreement remains extant.
3.
Costs on attorney and own client scale.
_______________________
N.E.
RAMAPUPUTLA
Acting
Judge of the High Court,
Johannesburg
Local Division
COUNSEL FOR THE
APPLICANT: ADV A SCHLUEP
INSTRUCTED BY: VERMAAK
AND PARTNERS INC
RAND REALTY HOUSE
151 OXFORD ROAD
PARKTOWN
JOHANNESBURG
COUNSEL FOR THE
RESPONDENTS: ADV T MAKGALEMELE
INSTRUCTED BY: SMIT
SEWGOOLAM INC
12 AVONWORLD ROAD
CNR JAN SMUTS AVENUE
SAXONWORLD, JOHANNESBURG
Date
of Hearing: 30 October 2018
Date
of Delivery: 28 November 2018
[1]
Section
1 defines an “unlawful occupier” 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…”
[2]
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC
2013 (6) SA 499(J)
(SCA) .
[3]
2012 (6) SA 294
(SCA) para 12.
[4]
Ibid,
para 25.
[5]
Pema
v Rasmussen
1959
(1) SA 196 (T) 200.
[6]
2013 (1) SA 583 (GSJ) para122.
[7]
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another
(2017 (5) SA 346 (CC) para 80 -81.
[8]
Johannesburg
Housing
case
supra page 11 para 27.
[9]
(1)
(2011) 32 ILJ 453 (LC)