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[2018] ZAFSHC 2
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Mokhele v Free State Housing Company (Pty) Ltd (A213/2017) [2018] ZAFSHC 2 (30 January 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A213/2017
In
the matter between:
MOSITO
S
MOKHELE
Appellant
and
FREE
STATE HOUSING COMPANY
(PTY)
LTD
Respondent
CORAM:
REINDERS,
J
et
MHLAMBI, J
HEARD
ON:
30 OCTOBER 2017
JUDGMENT
BY:
REINDERS, J
DELIVERED
ON:
30 JANUARY 2018
[1]
This is an appeal against an order for eviction granted by the
Magistrate Bloemfontein ("the Magistrate"). The Appellant
Mr Mosito Mokhele was the First Respondent in the court a quo whilst
the Respondent, Free State Social Housing Company (Pty) Ltd,
was the
Applicant. For sake of clarity reference to the parties would
be as in this appeal.
[2]
On 8 May 2017 the Magistrate granted an eviction order against the
Appellant. In terms thereof the Appellant is to vacate the
property
situated at and known as B. Flats, Block [...], Flat [...], [...] F.
Street, Bloemfontein ("the property'') on or
before the 11
th
June 2017 by no later than 12h00. The Appellant was further
ordered to pay all costs on a scale as between attorney
and
client.
[3]
The Respondent leased to the Appellant the property in terms of a
written lease agreement ("the lease agreement")
signed by
both parties on 7 November 2014. The monthly
rental amounted to R 570,00.
[4]
In terms of the lease agreement entered into and more in particular
clause 15.2 thereof, it was agreed that should the lessee
(the
Appellant) fail to make payments in terms of the lease, the lessor
would be entitled to give notice of the breach, and should
the lessee
not correct the breach within the said twenty days, the lease will be
deemed to be cancelled.
[5]
It is common cause that the Appellant fell into arrears and a Jetter
dated 31 July 2015 and headed "Notice
of
Breach" ("the letter) was hand delivered to the
Appellant by the Respondent's attorney on 1 August 2015.
The letter
demanded payment of the arrear rental at the time. In the founding
papers it is stated that 20 (twenty) working
days were afforded
to Appellant to make payments or payment arrangement or to settle the
arrear debt, but Appellant failed to do
so. This allegation is not
denied by the Appellant in his opposing affidavit, but it is stated
that the alleged breach was made
good after delivery of the letter.
[6]
It was averred by Respondent that the Appellant failed to make the
necessary monthly payments since taking occupation of the
property on
7 November 2014. The Appellant concedes that he did not make timeous
payments but denies being in arrears. Appellant
in amplification of
his denial avers that he paid rental from July 2016. These payments
respectively are:
R
570 on 5 July 2016;
R
650 on 4 August 2016;
A
500 on 7 September 2016;
R
1700 on 3 October 2016; and
R
627 on 1 November 2016.
Copies
of proof of these payments are attached to the opposing papers.
[7]
The Respondent in the final analysis avers that he sent a notice of
cancellation to the Appellant on 16 May 2016 which informed
the
Appellant of the cancellation of the agreement. The Appellant denies
having received same.
[8]
The Magistrate in a comprehensive judgment dealt with the matter
whereafter the eviction order was granted. In the Notice of
Appeal
filed on 22 May 2017 it was not contended that the Magistrate erred
in her factual findings, nor that she misunderstood
the matter at
hand. In the Notice it is rather averred that the Magistrate erred in
finding that the Notice of Breach attached
to the Respondent's
founding affidavit constituted a notice of intention to cancel the
lease agreement as is contemplated in clause
15.2 of the lease
agreement. The Magistrate is criticised for her finding that the
Appellant was in unlawful occupation of the
property, and that it was
just and equitable for the eviction order to be granted. Criticism is
also levelled against the Magistrate
in as far as she found that the
Respondent is not "part of the government", notwithstanding
such a description of the
Respondent in clause 2 of the lease
agreement.
[9]
The Magistrate was satisfied that the prescribed procedural measures
of the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act 19 of 1998 ("the Act") had been complied with. It
was not contended that she erred in this regard
and I am also so
satisfied. It was found by the court a quo that the Appellant's
allegation that the breach was made good is a
bare allegation which
was unsupported by information as to when and how it was remedied.
The Magistrate (in my opinion rightly
so) found that the listing of
the payments by Respondent indicates that payments started
approximately a year after the admitted
receival of the letter, and
concluded that payments accordingly only started from that
date forward. I
find it difficult in view
of the evidence tendered by the Appellant to find that he has paid
the arrears. The list
of payments rather confirms that the Appellant
remained in arrears as the Respondent stated under oath. I therefore
agree with
the Magistrate's finding that the Appellant, having
received the notice, remained in arrears.
[10]
The trial court found that no further notice needed to be sent out to
confirm the cancellation should the breach not be rectified
within
the 20 business days required. I agree. The lease agreement included
a non variation clause confirming the agreement to
be the entire
agreement between the parties, and that any amendment thereof must be
in writing and signed by both parties. It is
not the Appellant's case
that he did not understand the lease agreement or interpreted the
relevant clause differently. It has
to be accepted therefore that the
Appellant knew that should he not correct the breach within the said
20 days, the lease would
be deemed to have been cancelled in
terms of clause 15.2 of the lease agreement. So seen it really became
common cause that
on failure by the Appellant to correct the
breach, both parties knew that the lease was deemed to be cancelled
as this was exactly
what the parties agreed upon. But even if this
viewpoint is wrong, and the Appellant was entitled to a notice of
cancellation properly
served on him, this concern had been addressed
when the notice in terms of Section 4(2) of the Act had been served
on the Appellant
after the court authorised service of the notice,
or at worst when the Notice of Motion for eviction was served
on
the Appellant.
[11]
I therefore am not convinced that the Magistrate erred in granting
the order that she did. The Magistrate considered the factors
contained in Section 4(6) to 4(9) of the Act. She came to the
conclusion that it was just and equitable to grant the order of
eviction. Although the court orders were made on 8 May 2017, the
Magistrate granted a period of six weeks from the date of judgment
and considered same to be a sufficient time for the Appellant to find
alternative accommodation. Those dates have by now expired
and thus
necessitate directions by this court. I intend to set the date
for eviction on 29 March 2018, which is even more
than the six
weeks granted by the Magistrate.
[12]
For sake of clarity and due to effluxion of time, I intend to issue
new amended orders in respect of those granted by
the trial court,
notwithstanding my conclusion that the appeal stands to be dismissed.
In the result the following orders are made:
12.1
The appeal is dismissed with costs.
12.2
The court order dated 8 May 2017 is amended to read as follow:
1.
First Respondent (Mosito Stephen Mokhehle) and any other person
occupying through the First Respondent, is ordered
to vacate the
property situated at and known as B. Flats, Block [...], Flat [...],
[...] F. Street, Bloemfontein (“hereinfurther”
referred
to as “theproperty”) on or before Wednesday, 28
March 2018, by no later than 12:00, being the just and
equitable
date as determined by Court.
2.
The date on which the Sherriff may evict the First Respondent, and
any person occupying through the First respondent,
if the First
Respondent, and any person occupying through the First Respondent has
not vacated the property by the date set on
paragraph 2 hereof, is
Thursday, 29 March 2018 at 08:00.
3.
The First Respondent is ordered to pay the costs of the application,
apart from the postponement from 4 May 2017
to 8 May 2017, on a scale
as between attorney and client.
_____________________
C.
REINDERS,J
I
concur.
_____________________
J.J.
MHLAMBI, J
It
is so ordered.
On
behalf of appellant:
Mr MS Litheko
Instructed
by:
Litheko
Motsoeneng Incorporated
c/o Mphafi
Khang Incorporated
Bloemfontein
On
behalf of respondent: Adv PT Masihlelo
Instructed
by:
Ramothello
Inc
Bloemfontein