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[2017] ZALMPPHC 26
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Mphoka v Kekana (HCA14/2016) [2017] ZALMPPHC 26 (30 August 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA 14/2016
Reportable
Of
interest to other judges
Revised.
30/8/2017
NKGASHA
JERMINA
MPHOKA
APPELLANT
and
RAMOKONE
GLADYS
KEKANA
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgment and order of the Magistrate's
Court for the district of Mokerong held at Mahwelereng
in terms of
which an eviction order was granted against the Appellant in terms of
the provisions of section 4 of Prevention of
Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act")
[2]
The Respondent issued an application for eviction of the Appellant
and any person occupying through the Appellant from the property
known as Erf 2610 Mahwelereng - B, Mogalakwena District, Limpopo
Province.
[3]
The Appellant unsuccessfully opposed the application and on the 16
March 2016 the Court
a quo
granted
an order that the Appellant be evicted from the property by 16 May
2016. The Appellant served and filed a Notice of Appeal
against the
aforesaid order on 1 April 2016, i.e within the prescribed period in
terms of the Magistrate's Court Rules.
[4]
The Appellant relied on the following main grounds of appeal:
4.1
That the Court a
quo
erred
in finding that it was not necessary to join the Local Authority
(Mogalakwena Municipality in this instant) as a party to
the
proceedings and
4.2
That the Court a
quo
erred
in finding that it is just and equitable to grant an eviction order.
[5]
The Appellant failed to prosecute the appeal according to the Uniform
Rules of Court and subsequently the appeal lapsed in terms
of Rule
51(9) of the Magistrate's Court Rules and Rule 50(1) of the Uniform
Rules of Court. The Appellant has filed an application
for
condonation, which is opposed by the Respondent.
Condonation
[6]
It is common cause that the Appellant noted the appeal within the
prescribed period, only that he failed to prosecute the appeal
within
the prescribed 60 (sixty) days period, hence the appeal lapsed.
[7]
As reasons for late prosecution of the appeal the Appellant states
that her attorney of record duly requested the transcribed
record of
proceedings in the Court a
quo
but
in response the Clerk of Court furnished the attorney with a wrong
transcription of a certain criminal matter. The attorney
of record
entered into correspondence and
I
or
communications with the Clerk of Court and the transcribers over
several months, the first correct record of proceedings concerning
this matter was incomplete. Further communications with the Clerk of
Court and the transcribers ensued until the correct and complete
record was received by the attorney on 18 November 2016.Thereafter
the attorney of record was able to process the appeal.
[8]
Rule 27(1) of the Uniform Rules of Court provides as follows :
"Extension of
Time and Removal of Bar and Condonation
(1) In the absence of
agreement between the parties, the Court may upon application on
notice and on good cause shown, make an order
extending or abridgging
any time prescribed by these rules or by an order of Court or fixed
by an order extending or abridging
any time for doing any act or
taking any step in connection with any proceedings of any nature
whatsoever upon such terms as to
it seems meet.
"
[9]
The explanation or reasons proffered by the Appellant for her failure
to prosecute the appeal within the prescribed period shows
that the
delay was not intended. Where the delay was unintended the Court
ought to condone the infringement of the time-frames
-
Pitje
v Shibambo and Others
2016 (4) BCLR 460
(CC).
Although the delay in the present case is inordinate, this factor is
not and cannot be individually decisive.
[10]
In
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532 C -
F
the Court in dealing with the issue whether or not sufficient
cause had been shown for condonation for non-compliance with the
Court
rules, stated the following:
"In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has discretion, to be exercised
judicially upon
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually
relevant are the
degree of lateness, the explanation thereof, the prospect of success,
and the importance of the case. Ordinarily
these factors are
interrelated, they are not individually decisive"
[11]
Good cause looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting
the
proper administration of justice. In any given factual complex it may
be that only some of many of such possible factors become
relevant.
See
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para 10.
[12]
In
Turnbull-Jackson v Hibiscus Coast
Municipality
2014 (11) BCLR 1310
(CC)
it was
held that the test for determining whether condonation should be
granted or refused is the interest of justice. Factors that
the Court
weighs in that enquiry include: the length of the delay; the
explanation for, or cause of the delay; the prospects of
success for
the party seeking condonation; the importance of the-issue that the
matter raises; the prejudice to the other party
or parties; and the
effect of the delay on the administration of justice .
[13]
In
casu
I am satisfied
that the Appellant has set forth briefly and succinctly such
essential information as may enable this Court to assess
the
Appellant's prospects of success in her application for condonation .
On the facts of this case it cannot be said that the
non-observance
of the Court Rules has been flagrant and gross.
[14]
There are prospects of success on appeal in this matter. Furthermore
the case is of great importance to the Appellant. The
appeal raises
critical constitutional issues of the right to housing as enshrined
in section 26 of the Constitution of the Republic
of South Africa,
1996.
[15]
The application for condonation for the late prosecution of the
appeal is accordingly granted.
Non
- Joinder of the Municipality
[16]
It was argued on behalf of the Appellant that the joinder of the
Municipality in eviction applications is a mandatory requirement.
[17]
Section 4(2) of the PIE Act states as follows:
"(2) At least 14
days before the hearing of the proceedings contemplated in subsection
(1), the Court must serve written and
effective notice of the
proceedings on the unlawful occupier and the municipality having
jurisdiction"
[18]
The need for joinder would only arise where the Municipality has a
direct interest in the proceedings by reason of its duty
to report to
the Court or to appoint a mediator. See
Drakenstein
Municipality v Hendricks and Others 2010
(3)
SA 248 (WCC); Occupiers of Erf 101,102,104 and
112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty)
Ltd and Others
[2009] 4 ALL SA 410
(SCA).
[19]
In the light of the authorities referred to above, I am of the view
that in the present case it was not necessary for the Respondent
to
join the Municipality as a party. The service of the Notice in terms
of section 4(2) of the PIE Act on the Municipality suffices.
Whether
the Eviction was Just and Equitable
[20]
The Appellant has been in occupation of the property in issue, that
is Erf 2610 Mahwelereng Zone B, Limpopo Province ("the
Property") since 1993. At the time of taking occupation of the
property she did not have a Deed of Grant in respect of the
property
issued to her and so did most of the occupiers of other sites in that
neighborhood . She stayed with her sister, one Florah
Baloyi. The
other occupants are her life partner, Vincent Rashokeng who has a
visual disability and her six children. The Appellant's
life partner
is elderly and a recipient of social grant.
[21]
Some years ago Florah Baloyi got married and vacated the property
leaving the Appellant behind with her disabled life partner
and the
children. Unbeknown to the Appellant and while she was away from home
due to employment in Gauteng, Florah Baloyi applied
and had a Deed of
Grant in respect of the property issued in her name. (Florah Baloyi's
name). During September 2010 Flora Baloyi
sold the property to the
Respondent and ownership thereof was transferred to the Respondent on
16 September 2011. Consequently
the Respondent is the owner of the
property pursuant to the Deed of Grant endorsed in her name.
[22]
The Appellant became aware that the property had been sold and that
ownership had been transferred to the Respondent when Florah
Baloyi
brought an unsuccessful Court application to evict her from the
property.
[23]
The Appellant and her family are still in occupation of the property
and have erected a house and a shack as a form of their
housing. They
have no alternative housing. The Respondent has never been in
occupation of the property and has her own separate
place where she
is presently staying.
[24]
The issue before us in this appeal is whether or not the Court a
quo
erred in granting the eviction order in the
circumstances of this case.
[25]
Section 4(7) of the PlE Act provides that:
"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, except
where the land is sold
in a sale in
execution pursuant to a
mortgage, whether land has been made available by the Municipality or
other organ of state or another owner
for the relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled person and household
headed by women"
In
the present case the property or household is headed by a woman
(being the Appellant) who is living with an elderly disabled
life
partner and children. The family has been staying on the property for
more than twenty years.
[26]
The onus to establish that it is just and equitable to grant an
eviction order remains on the Applicant throughout, and in
order to
satisfy this onus the Applicant must deal with the application with
all the aspects that need to be considered before
the Court can come
to the conclusion that an order ought to be granted. This means that
the Court needs to be informed as best
as the Applicant can, of the
needs of the elderly person, any disabled person, any children or
household headed by woman that will
be affected by the eviction and
how their interests should be taken care of.
[27]
In casu the Respondent relied more on the fact that the Respondent is
the lawful owner of the property and that the Appellant
did not get
the Respondent's permission to stay on the property. The Court a
quo
seems to have accepted the argument of the
Respondent as such and failed to enquire as to whether it would be
just and equitable
to grant the eviction order regard being had to
the needs of the category of persons mentioned in section 4(7) of the
PIE Act.
The Court a
quo
erred
in this regard.
[28]
Section 26(3) of the Constitution provides that:
"Noone 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"
The
duty that rests on the Court under section 26(3) of the Constitution
and section 4 of PIE Act goes beyond the consideration
of the
lawfulness of the occupation. It is a consideration of justice and
equity in which the Court is required to and expected
to take an
active role. The application of the PIE Act is not discriminatory -
Machele and Others v Mailula and Others
2010 (2) SA 257
(CC)
[29]
In FHP Management (Pty) Ltd v Theron NO and Another
2004 (3) SA 392
(C) AT 393 C - E Van Heerden J stated:
"In terms of
s4(7) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) read with
s 26(3) of the
Constitution of the Republic of South Africa Act 108 of 1996, it is
not necessary for an Applicant, in proceedings
to evict an
unlawful occupier from such Applicant's property, to place more
before the Court by way of evidence than that
such Applicant is the
owner of the property in question and that the Respondent is in
unlawful occupation thereof It is then up
to the occupier to disclose
to the Court "relevant circumstances" to show why the
owner should not be granted an
order for the eviction of the
occupier. Unless the occupier opposes
and
discloses circumstances relevant to the eviction order, the owner, in
principle, will be entitled to an order for eviction .....
"
In
casu
the Appellant, as
the occupier did disclose all the relevant circumstances for
consideration by the Court a
quo.
[30]
The interests of the landowner and the unlawful occupier should be
balanced and taken into consideration. In
PE Municipality v
Peoples Dialogue on Land & Shelter
2000 (2) SA 1074
(SECLD) at
1081 F - G,
Horn AJ (as he then was) said:
"The use of the
term just and equitable relates to both interests, that is what is
just and equitable not only to the persons
who had occupied the land
illegally, but to the landowner as well. The term also implies that a
Court, when having to decide a
matter of this nature, would be
obliged to break away from a purely legalistic approach and have
regard to extraneous f actors
such as morality, fairness, social
values and implications and any other circumstances which would
necessitate bringing out an
equitably principled judgment.
"
[31]
The balance that has to be struck is one between the proprietary
rights of the owner and the basic human rights of the occupier.
The
PIE Act creates a legal mechanism whereby the human rights of
unlawful occupiers are afforded some protection in the context
of the
exercise by property owners of their proprietary rights. See
ABSA
Bank v Murray and Another
2004 (2) SA 15
(C)
at 24 F - H.
[32]
The application of the PIE Act in eviction matters is not
discretionary but rather mandatory, with the Courts expected to
consider whether it is just and equitab le in the circumstances to
order an eviction. The Constitutional Court in its recent decision
in
Occupiers of Erven 87 & 88 Berea v De Wet
NO and Another
[2017] ZACC 18
(8 June 2017)
reaffirmed
that judicial officers have to play an active role in adjudicating
eviction matters.
[33]
A judicial officer in eviction proceedings is not a passive arbiter
existing only to rubber-stamp the application for the eviction
order.
Rather the judicial officer must apply his or her independent
judicial mind to the proceedings and take a proactive role
to
establish the relevant facts, protect human rights of those being
evicted - especially if they are to be rendered homeless -
and apply
the delicate balance between the oft-competing housing and property
rights during such eviction proceedings.
[34]
In my view the Magistrate in the Court a
quo
has failed to ensure that the constitutional
principles set out in section 26(3) of the Constitution and
elaborated on in the PIE
Act were complied with. This is so because
in the Court a
quo
the
eviction order had been granted by the Magistrate without giving due
regard to a number of factors set out in section 4(7) of
the PIE Act,
such as the rights of children, women, the elderly, the disabled and
the vulnerable .
[35]
All these .factors determine whether an eviction order should be
granted. These factors are crucial considerations which the
Court
should have regard to as they will assist the judicial officer in
determining whether it is just and equitable in the circumstances
to
grant an eviction order.
[36]
The Court a
quo
erred in that it failed to determine whether
it was just and equitable to grant the eviction order. In the result
the appeal succeeds
and the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the Court a
quo
is set aside and replaced with the following
order:
"The
application is dismissed with costs"
_____________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
I
agree
_____________________
M
V SEMENYA
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
Heard
on : 18 August 2017
Judgment
Delivered : 31 August 2017
For
Appellant : Mr M E Phooko
Instructed
by : Moloko Phooko Attorneys
c/o
Makhafola (Director) Inc
Polokwane
For
Respondents : Ms H Nienaber
Instructed
by : Borman Snyman & Barnard
c/o
Niland & Pretorius Attorneys
Polokwane