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[2017] ZAFSHC 5
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Nelie Smith Mansuitrusters (Edms) Bpk v Herbst and Others (3982/2016) [2017] ZAFSHC 5 (27 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 3982/2016
In the
matter between:
NELIE
SMITH MANSUITRUSTERS (EDMS) BPK
Applicant
and
TEREZA
HERBST
1st Respondent
MANGAUNG
METROPOLITAANSE
MUNISIPALITEIT
2nd Respondent
N
GROEP ONGEIDENTIFISEERDE OKKUPEERDERS
WAT
100 WAVERLEYWEG, BLEOMFONTEIN
VRYSTAAT
PROVINSIE OKKUPEER
3rd Respondent
HEARD
ON:
2 DECEMBER 2016
JUDGMENT
BY: RAMPAI, J
REASONS:
27 JANUARY 2017
[1]
The matter came to court by way of motion proceeding. The
applicant seeks to have the first and the third respondents
evicted
from a certain property. Only the second respondent does not
oppose the application.
[2] In
the founding affidavit the applicant’s deponent alleged that
the applicant is the registered owner of a residential
property
situated at 100 Waverley Road Bayswater Bloemfontein in the Free
State Province. Mr Frank Pretorius, who described
himself as
the applicant’s financial manager, described the house as a
lavish property.
[3]
The said deponent alleged that the applicant and the first respondent
entered into an oral lease agreement in Bloemfontein one
day between
1 January 2011 and 31 July 2011. During the negotiations
preceding the conclusion of the lease agreement, the
applicant was
represented by Mr C.A. Troskie, a duly authorised representative of
Mimosa Rolprentproduksie (Pty) Ltd, an appointed
agent of a business
enterprise called Nelie Smith Mansuitrusters (Pty) Ltd, in other
words the applicant. He averred that
the first respondent
personally represented himself. He then spelt out the salient
terms of the lease agreement.
[4] He
stated that the applicant duly complied with the terms and conditions
of the oral lease agreement. Among others, the
applicant
availed the leased premises to the first respondent; issued
invoices and furnished her with proof of payment.
However, so
said the deponent, from time to time the first respondent breached
the terms of the oral lease agreement. By
31 October 2015 the
first respondents had committed numerous contractual breaches
in connection with the, water bill and
the electricity bill –
(vide “anx ap2”).
[5]
The deponent stated that the outstanding total sum of the accumulated
arrears in respect of the rental, water and electricity
was
R60 842.80 as on 15 June 2015. On that day the applicant
and the first respondent reached a compromised. The
practical
effect of the compromise was that the applicant wrote off half the
amount of the arrears to alleviate the first respondent’s
burdensome contractual obligation. (vide “anx ap3”)
[6] On
9 November 2015 the applicants, through its attorney, Honey
Prokureurs, advised the first respondent that she had committed
contractual breach of the compromise; that the arrears had
risen to R73 294.25 and that she was called upon to vacate
the
leased residential property by 31 January 2016. (vide “anx
ap4). The first respondent did not vacate the property.
[7] On
11 July 2016 the applicant, again through her attorneys informed the
first respondent that the total sum of her arrears had
increased to
R82 133.99 and that, as a result of such breach, the applicant
cancelled the oral lease agreement. The
first respondent was
then called upon to vacate the leased property by 18 July 2017.
(vide “anx ap5.1”)
Again the first respondent
stayed put.
[8] The applicant
contended, in the circumstances, that the first respondent, and all
those who took after her, were in an unlawful
occupation of its
property; that her refusal to vacate the property was
unjustifiable; that her continued illegal occupation
infringed
its real right of ownership; that her continued occupation
exacerbated the damages it has already suffered;
that the
continued consumption of water by the first respondent seriously
prejudiced the applicant as the registered owner of the
property and,
as such, responsible for the payment of the water bill to the second
respondent; that it was not the applicant’s
duty to
provide the first respondent with an alternative housing shelter and
that, in the light of all those factors, the eviction
of the first
respondent and hers was just and equitable.
This
completes my summary of the applicant’s version.
[9] In her answering
affidavit the first respondent denied the following allegations:
·
that
the applicant was the rightful owner of the property in question;
·
that
she ever concluded the alleged oral lease agreement with the
applicant;
·
that
she was always furnished with written proof of all the rental
payments she made;
·
that
she was in arrears with rental payment;
·
that
she was, besides the rental, also contractually obliged to separately
pay for water and electricity;
·
that
the applicant had any right to evict her from the property;
·
that
her occupation was unlawful;
·
that
her refusal to vacate the property was unjustified;
·
that
she had infringed any right of the applicant through her continued
occupation of the property;
·
that
the applicant suffered any damages or prejudice whatsoever as a
result of her occupation of the property;
·
that
there was no child among the current occupiers of the property and
·
that
there rested no duty on anyone save for the second respondent to
provide her with alternative shelter before her eviction and
·
that
her eviction was just and equitable in the circumstances.
[10]
The first respondent averred that she entered into an oral lease
agreement of the property with Mr Boet Troskie and not the
applicant. Mr Boet Troskie was her ex-husband. One child,
a boy, was born of the marriage. The couple divorced
later on.
Before 2011 she, her current husband and her son were living together
in a townhouse. She paid a monthly
rental of R8000 to her
landlord. In 2011 Mr Boet Troskie approached and offered the
property to her for indefinite occupation.
The offer was
primarily informed by Mr Boet Troskie’s wish to provide a
benefitting lifestyle to his son. The property
previously
belonged to Mr Bill Troskie, her ex brother-in-law. Her
understanding was that her ex husband, Mr Boet Troskie
had purchased
the property from the insolvent estate of his brother, Mr Bill
Troskie. The latter and his wife occupied the
property all
along but vacated it so that she and her son could occupy it.
[11] The terms of the
oral agreement between her and her former husband were:
·
that
the property would be placed in a trust by Mr Boet Troskie for the
benefit of his son Jamie Troskie who was tipped to become
its sole
beneficiary;
·
that
the first respondent and her son would occupy the property free of
charge, undisturbed and for an indefinite period;
·
that
her current husband, Mr Bennie Herbst, would be allowed to stay in
the same house but would have to pay R5000 rental per month
which
included municipal bills;
·
that
Mr Boet Troskie would be responsible for the payment of water and
electricity bills to the second respondent – and
·
that
the administration of the property would be carried out by “Mimosa
Films”.
[12]
The first respondent alleged that she accepted the aforegoing as the
terms and conditions of the oral lease agreement concluded
with her
ex husband and not the applicant. Her ex brother-in-law assured
her that she would have lifelong occupational right
in respect of the
property. She stated that she was unaware of the existence of
the applicant and that the property belonged
to the applicant.
However, she stated that her ex husband was once a director of
the applicant. At all times relevant
to the lease negotiations,
she was brought, by her ex-husband, under the impression that he was
the owner of the property and that
she was concluding a lease
agreement with him in his personal capacity as the owner and not as
anyone’s agent or representative.
[13]
Soon after she and her family had taken occupation of the property,
Mr Boet Troskie as the lessor did two drastic things.
Firstly,
he increased the monthly rental from R5000 to R6000. Secondly,
decided to hold her, instead of Mr Bennie Herbst,
responsible for the
payment of the rental. Consequently she accepted those two
contractual obligations under tremendous pressure
exerted by the
property owner. She repeated and stressed that she never
concluded a lease agreement with the applicant.
[14]
The first respondent averred that she made certain hard cash payment
directly to Mr Boet Troskie in person but that she was
never issued
with receipts. She also alleged that even Mimosa Films, as an
agent of Mr Boet Troskie, once failed to issue
a receipt to her
messenger, one Thato. She further added that Mr Boet Troskie
was in arrears to the tune of R12000 with the
payment of maintenance
in favour of the couple’s son. For that reason, she
decided to set off her maintenance claim
against his rental claim.
(vide “anx ov2”)
[15] The first respondent
admitted that she signed the acknowledgement of debt “anx ap3”
in favour of the applicant
on 15 June 2015. However, she
averred that she did so under tremendous duress exerted upon her by
the applicant’s representative.
She explained that she
did not really and truly intend acknowledging any indebtedness to
applicant. She elaborated that she
merely signed “anx
ap3” in order to secure the return of her household furniture
which the sheriff had attached and
already removed by virtue of a
warrant of execution. The warrant stemmed from a default (sic)
judgment which the applicant
obtained against her in the local
district court without serving any notice of bar on her. Her
plea to the applicant’s
summons was set out in “anx
vo4”.
This
completes a summary of the first respondent’s version.
[16]
In the replying affidavit, the applicant’s deponent replied
that none of the defences raised by the first respondent
had any
merits.
[17]
As regards the first defence that the applicant was not the owner of
the property, the deponent persisted with his founding
assertion that
the applicant was the registered owner thereof – see “anx
ap1” attached to the replying affidavit.
[18]
As regard the second defence that the first respondent was not truly
and lawfully indebted to the applicant, the deponent persisted
with
his founding assertion that she was – see “anx ap2”
attached to the replying affidavit.
[19]
As regards the third defence that the first respondent had never
contracted with the applicant, the deponent persisted with
his
founding assertion – see “anx ap3” attached to the
replying affidavit.
[20]
As regards the fourth defence that the first respondent had a
maintenance claim against her ex husband which she was entitled
to
set-off against his rental claim, the deponent contended that such
defence was irrelevant to the applicant’s eviction
application
and that it was bad in law.
[21]
As regards the fifth defence that she was placed under enormous
pressure by Mr Boet Troskie to accept personal responsibility
for
contractual obligations under the lease agreement and further that
she was placed under tremendous duress to sign an acknowledgment
of
debt, the applicant dismissed both allegations as vague and
unfounded.
[22] The applicant’s
deponent denied a substantial portion of the first respondent’s
version. He specifically
denied:
·
the
allegation that the first respondent’s ex husband was the
current owner of the property;
·
the
allegation that the first respondent’s ex brother-in-law was
the previous owner of the property;
·
the
allegation that her ex husband purchased the property from the
insolvent estate of his brother;
·
the
allegation that the first respondent’s occupied the property by
virtue of an oral lease agreement she concluded with her
ex husband;
·
the
allegation that the first respondent was unaware of the existence of
the applicant;
·
the
allegation that the first respondent was, by virtue of such an
agreement, entitled to occupy the property for an indefinitely
period
and without any obligation;
·
the
allegation that the first respondent was unduly influenced by means
of enormous duress to sign admission of untrue liability
in favour of
the applicant – and
·
the
allegation that the first respondent’s husband Mr Bennie
Herbst, and not the first respondent, was liable to pay the rental
as
the lessee;
·
the
allegation that the first respondent made certain direct cash payment
in respect of which she was given no proof of payment.
Here
ends my summary of the applicant’s replying affidavit. I
shall revert to the undisputed material facts later on.
[23]
There were two issues to be determined. The first and principal
issue was whether the first and the third respondents
were unlawful
occupiers. The second and residual issue, which would only
arise if the first issue was affirmatively determined,
was whether it
would be just and equitable to have such respondents, declared as
unlawful occupiers and evicted from the illegally
occupied property.
[24]
On behalf of the applicant, Mr Snellenburg principally submitted that
the applicant had made out a proper case for the declaration
of the
respondents as unlawful occupiers and for their eviction from the
property. According to counsel’s argument,
the version of
the respondents was so untenable and far-fetched that it deserved
nothing less than outright rejection. Accordingly
counsel urged
me to dismiss all of the first respondent’s unmeritorious
grounds of resistance and to grant the relief sought
by the
applicant.
[25]
On behalf of the respondents, Mr Buys contended that it was not shown
by the applicant that the first respondent was occupying
the
applicant’s property and that she was in arrears with the
monthly rental. Consequently counsel submitted that there
was
no valid basis on which the lease agreement could have been properly
cancelled. That being the case, counsel primarily
submitted
that seeing that the respondents were not in an unlawful occupation
of the property, they could not be regarded, treated
and declared as
unlawful occupiers. Counsel’s alternative submission was
that the applicant had dismally failed to
place relevant facts before
the court to underpin a conclusion that the eviction of the
respondents would be just and equitable.
[26] I
deem it necessary to give a brief exposition of the applicable legal
principles in relation to eviction from property.
The nature of
eviction proceedings entails a two stage enquiry. The first leg
of the enquiry requires the court to determine
whether the person in
respect of whom the eviction is sought is an unlawful occupier.
If the court indeed finds that to be
the case, then the second leg of
the enquiry requires the court to decide, after considering all the
relevant circumstances, whether
it is just and equitable to grant
such an eviction order.
Resnick
v Government of the Republic of South Africa and Another
2014 (2) SA 337
(WCC) at 339.
[27]
It has been held that the right to property is a constitutionally
protected right and that the effect of the eviction statute
is not to
expropriate private property. See
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294
SCA para [16]. See also
Johannesburg
Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newton Urban
Village
2013 (1) SA 583
(GSJ) para [71].
[28]
The statute gives effect to and provides a statutory mechanism for
the enforcement of the provisions contained in the constitution
of
the Republic of South Africa which delineates that “no one may
be evicted from their home or help their home be demolished
without
an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions”
section 26 1996 RSA Constitution.
[29]
An occupier of a residential property will be regarded as an unlawful
occupier in the event that such occupier occupies another’s
property without the express consent of a property owner or a person
in charge of the property. This is a definition of the
word
“unlawful occupier” in terms of section 1 Act No 19 of
1998. (PIE) which is an acronym for prevention of
illegal
evictions from land and prevention of unlawful occupation of land.
[30]
Section 4(8) of PIE provides that if a court is satisfied that all
the requirements of section 4 have been met by the applicant
and no
valid defence has been raised by the occupier then the court is
obliged to grant an eviction order.
[31]
The provision that no valid defence has been raised refers to a
defence that would entitle an occupier to remain in occupation
as
against the wish of the owner or person in charge of the property.
The existence of a valid lease agreement is a perfect
example of such
a valid defence which would ordinarily influence the court to deny
the grant of an eviction relief. See
Ekurhuleni
Metropolitan Municipality and Another v Various Occupiers Eden Park
Extension
2013 (3) SA 23
SCA para [12].
[32]
When the rightful owner of the property acknowledges that the
occupier lawfully took occupation and that (s)he previously had
the
right of occupation, then the onus rest on the owner to prove that
the occupier’s right of occupation no longer exists
or that it
is no longer enforceable. For instance, the owner may
prove that although the occupier previously had a
right to occupy the
property by virtue of the lease, such lease agreement between the
parties has since expired through effluxion
of time or that it has
been prematurely terminated for some or other good cause such as
contractual breach or mutual consent.
However, where the owner
or the person in charge of the property denies any entitlement of the
occupier to be in occupation, the
onus rests on the occupier to prove
the grounds upon which (s)he contends (s)he is entitled to remain in
occupation of the property.
See
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
SCA para [131].
[33]
The eviction statue was enacted, first and foremost, to alleviate the
plight of the homeless through prevention of their illegal
eviction
from occupied land. I recognise that homelessness is a social
problem of enormous magnitude in our country.
This is a
material consideration in any eviction proceedings. But
prevention of unlawful occupation of land is another cornerstone
of
the statute. I hasten to stress that it was the protection of
the poor and vulnerable groups in our society which was
in the
forefront of the minds of the legislators which informed the
enactment of the eviction statute. In my view any claimant
who
seeks protection of the statute by way of alternative shelter has to
satisfy the court that (s)he belongs to that class of
persons and not
to a class of affluent individuals who occupy lavish residential
properties in leafy neighbourhoods. Opulent
occupiers who are
holding over in order to maintain an elite type of lifestyle must
realize that the eviction statute was not meant
for them. See
Wormald
NO and Others v Kambule
2006 (3) SA 563
SCA para [20]
[34]
Where there it is a factual dispute about material facts in motion
proceedings and there is no request for the leading of oral
evidence
by the applicant a finale order will only be granted on notice of
motion if the facts as stated by the respondents together
with the
facts alleged by the applicants that are admitted by the respondent
justify such an order. See
Stellenbosch
Farmers’ Winery Ltd v Stellen Vale Winery (Pty) Ltd
1957 (4) SA 234c
at 235.
[35]
Where a factual dispute about material facts is raised in motion
proceedings a court must examine an alleged dispute of fact
and see
whether in truth there is a real dispute of fact which cannot be
satisfactory determined without the aid of oral evidence.
If
this is not done, a respondent with an unmeritorious defence might be
able to raise fictitious issues of fact and thus delay
the hearing of
the matter to the detriment of the applicant. See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
A at 634h-i.
[36]
In motion proceedings decisions of fact cannot properly be founded on
a consideration of probabilities unless the court is
satisfied that
there is no real and genuine dispute on the material fact in question
or that any one party’s allegations
are so farfetched or so
clearly untenable or palpably and implausible as to warrant their
outright rejection merely on the papers
or that oral evidence would
not disturb the balance of probabilities appearing from the
affidavits. See
Administrator
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 197a-b. Resorting to oral evidence
should only be allowed if there are reasonable grounds for seriously
doubting the
veracity or correctness of the allegations made by the
applicant. In an eviction application spurious defences must
never
be allowed to slow down the motion.
[37]
The court hearing motion proceedings will dismiss an application if
the applicant should have realised, when launching the
application,
that a serious dispute of fact, incapable of resolution on papers,
was bound to develop. See
Room
Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162.
[38]
As regards the first leg of the enquiry, the crucial question
revolves on the alleged unlawfulness of a respondent’s
occupation. It was common cause that the first and the third
respondents were in occupation of the property. It was
the
applicant’s case that it was the lawful owner of the property.
The first disputed applicant’s claim of ownership.
This
is the first issue.
[39]
As regards the first issue, I proceed to exam the facts and to apply
the law to the proven facts in order to resolve the conflicting
versions. According to the applicant, it has
locus
standi
to initiate these eviction proceedings by virtue of its lawful title
as an outright owner. According to the first respondent
the
applicant has no
locus
standi
to bring these eviction proceedings against her because her former
husband, Mr C.A Troskie aka Boet Troskie and not the applicant,
owns
the property.
[40]
The applicant’s contention was that it was a registered owner
of the property and that the property was registered in
its name
almost four decades ago, on 7 July 1977 to be precise. See “anx
ap1” replying affidavit. It was
undisputed that the
applicant was a juristic person with a corporate identity separate
from its directors. Among its current
directors are S.F Nel and
J.C. Troskie. The two individuals jointly signed a resolution,
“anx ap1” as directors
of the applicant whereby they
mandated Ms Adele Prinsloo of Honey Prokureurs to have the first
respondent evicted from the property.
I guess those two
gentlemen are the persons or directors informally referred to as
Frans and Jaco in “anx ap5”.
[41]
The first respondent’s denial of the applicant’s title to
the property was not supported by Mr Boet Troskie, the
very person
she claimed was the rightful owner of the property. In the
replying affidavit, the applicant’s financial
manager and
deponent, Mr Pretorius, repeatedly re-affirmed that the applicant,
and not Mr Boet Troskie, was the correct and lawful
property owner.
On the contrary, Mr Boet Troskie made and signed a sworn statement,
“anx ap4” attached to the
replying in which he expressly
confirmed the averments in the founding affidavit that the property
belonged to the applicant.
[42]
The version of the first respondent was far less convincing.
She wrote:
“
10.18
Ek het op
30
Augustus 2016
‘n selfoon boodskap vanaf
Mnr
Boet Troskie
ontvang waarin hy in geen onduidelike terme bevestig het dat die
woning eintlik
Mnr
Bill Troskie
se woning is. In die gemelde boodskap het
Mnr
Boet Troskie
onder andere aan my gesê dat “,,, Tereza ek verstaan dat
oom Bill se huis verkoop moet word sodat sy testament opgestel
kan
word...”. Ek heg ‘n afskrif van ‘n uittreksel
van bogenoemde boodskap hierby aan as aanhangsel “
OV1
”.”
This
appeared to me that the email, “anx ov1”, represented the
high watermark of her case. But even that did not
support her
case in that it cosmetically suggested that Mr Bill Troskie and not
Mr Boet Troskie owned the property. But that
was not all the
critique.
[43]
The first respondent tried to build a mountain out of a molehill.
The words: “…
oom
Bill se huis
…” used by Mr B Troskie in the email were too thin and
tenuous to sustain her contention. The applicant’s
deponent dismissively replied:
“
The
averments contained in this paragraph are denied. The First
Respondent selectively quotes the message sent to her out
of
context. She is fully aware of the fact that the property has
always been referred to as “Oom Bill se huis”.
Due
to the fact that it was previously the house at which
Bill
Troskie
was resident. It is clear from
Annexure
“AP5”
attached hereto that the First Respondent does not take the Court
into her confidence in disclosing the full context of the
conversations
which she had with Mr
Boet
Troskie
in respect of the property.”
[44]
On 25 November 2014 Mr Boet Troskie sent an email to Ms Tereza
Herbst, the first respondent. The relevant portion read:
“
Die
huis waarin jy woon is in ‘
n
maatskappy
van oom Bill geregistreer met Frans en Jaco as direkteure so ek kan
nie daar inmeng nie.
The
first respondent replied:
“
Ek
stem saam daarmee.”
There
you have it. She admitted that a corporate enterprise owned the
property. Therefore, she implicitly admitted that
neither Mr
Boet Troskie nor Mr Bill Troskie was the owner of the property.
[45]
The applicants’ deponent gave some history of the property.
He stated the following in the replying affidavit:
“
34.2
As a background of the purchase of the property, the property was at
all times registered in the name
of the Applicant. The
applicant was however not a part of the Mimosa Group and when the
Applicant was acquired by the Mimosa
Group, the property as a
consequence thereof also formed part of the assets of the Mimosa
Group, held in the subsidiary company,
to wit, the Applicant.”
He
added that the property had never been registered in the name of Mr
Bill Troskie or Mr Boet Troskie. I have no reason to
doubt the
applicant’s version. If that version is accepted, then,
there can be no doubt that the applicant has a
locus
standi
in terms of section 4(1) PIE.
[46]
The applicant’s deponent contended further that the first
respondent obtained free, undisturbed and beneficial occupation
of
the property by virtue of an oral lease agreement which she entered
into with the applicant during the course of 2011.
However, the
first respondent denied the allegation. She contended that she
took occupation of the property by virtue of
an oral lease agreement
she entered into with Mr Boet Troskie. She alleged that Mr Boet
Troskie did not inform her during
the lease negotiations that he was
acting as a representative or as an agent of the applicant.
[47]
I deem it advisable to quote the first respondent verbatim for the
sake of clarity. She stated:
“
10.19
Die huurooreenkoms het sonder twyfel tussen my en
Mnr
Boet Troskie
tot stand gekom en die maandelikse huurbedrag het water en
elektrisiteit ingesluit. Ek wil egter die Agbare Hof se aandag
daarop vestig dat
Mnr
Boet Troskie
op
‘n stadium ‘n direkteur van die Applikant was, maar hy
het nog nooit teenoor my gemeld en/of voorgegee dat die
huurooreenkoms
tussen my en die Applikant gesluit was en/of dat hy as
agent namens die Applikant die huurooreenkoms met my gesluit het
nie.
Ek was te alle redelike tye onder die indruk geplaas dat
die betrokke woning deur
Mnr
Boet Troskie
aan my beskikbaar gestel was om te okkupeer.”
[48]
The first respondent’s impression that the property was made
available to her by Mr Boet Troskie was of no assistance
to her.
She did not elaborate as to how she was placed under such
impression. It was obviously not her case that Mr
Boet Troskie
expressly represented to her that he was the lawful owner of the
property. Her version was spurious. He
could not
contractually burden the property in respect of which he had no
rights. Whatever representations he might have
made to her,
expressly or tacitly, could not lawfully bind the applicant as the
lawful owner. In my view, the respondents
dismally failed to
disprove the applicants’ contention that they occupied the
property with the property owner’s consent
– sec 4 –
Ndlovu
v Nqcobo,
supra
.
[49]
Now we know that the property was officially registered in the name
of the applicant. We know that the second respondent
billed the
applicant for the water consumed on the property. We know that
Centlec also initially billed the applicant for
electricity supplied
to the property. We know that copies of such invoices were
forwarded to the first respondent for settlement.
We know that
the first respondent knew that Mr Boet Troskie was once a director of
the applicant. We know that Mimosa Films
administered the
property on behalf of the applicant. We know it issued receipts
in respect of rental payment which showed
that the account of the
applicant was to be credited with such payments.
[50]
Given such vast knowledge, the applicant could not be heard to say
she was unaware of the existence of the applicant.
Consequently
it must be accepted that the applicant and not the first respondent’s
ex husband was the contracting party to
the oral lease agreement.
The first respondent’s allegation that she was placed under
enormous pressure by her ex husband
to assume the obligations of her
current, Mr Bennie Herbst, as the actual lessee, failed to impress
me.
[51]
In the light of all these considerations, I am persuaded that the
first respondent and others occupied the property on the
strength of
the oral lease agreement she concluded with the applicant.
Therefore, her occupational right flowed from such
agreement and no
other.
[52]
The applicants contended that the first respondent breached a
material term of the lease agreement. The breach had an
adverse
impact on the right of the respondents to occupy the property.
She fell in arrears, not once but on a number of occasions,
as would
more fully appear from para 19 founding affidavit – see “anx
ap2”. There was no proof whatsoever
to show that she ever
demanded any receipt in respect of any alleged direct payment she
made to Mr Boet Troskie.
[53]
It was an undisputed fact that on 15 June 2015 she signed an
acknowledgement of debt in favour of the applicant. She
undertook to liquidate the arrears by way of monthly instalment of
R3000. She was grateful to the applicant for writing off
half
of her actual arrears. Her persistent denial that she was never
in arrears was, therefore, surprising, to put it mildly.
[54]
I was persuaded, therefore, that the first respondent had indeed
committed a breach of a material contractual obligation in
that she
was substantially in arrears with the payment of rental for the
leased and occupied property. The facts revealed
that she
breached not only the oral lease agreement but also the subsequent
written compromise. She harvested and enjoyed
the low hanging
fruit of the new deal. But she soon fell in arrears again.
Her failure to make regular payments in
respect of the arrears in
respect of, rental and water prompted the applicant to cancel the
lease agreement on 11 July 2016.
The effect of the cancellation
was that her right to occupy the property was terminated. See
“anx ap5.1”.
As from that date the respondents had
no right to remain in occupation of the property. Private
property has to be protected.
Prevention of unlawful occupation
of private property must be enforced -
Changing Tides 74
(Pty) Ltd,
supra
.
Anyone
who occupies a residential property without the express consent of
the owner or a person in charge is regarded as an unlawful
occupier –
sec 1 PIE.
[55]
Notwithstanding such termination and the related demand that she
vacate the property, the first respondent held over.
A summons
was issued, a summary judgment granted, a writ was executed, her
furniture was attached and removed. To secure
the return of her
furniture, she had to acknowledge her liability towards the
applicant. She subsequently made one payment
in accordance with
her written undertaking. There was no shred of evidence to
support her version that she was placed under
enormous duress to sign
admission of liability and indebtedness to the applicant. The
allegation was disturbingly vague.
It failed to impress me.
Such a far-fetched version deserved an outright rejection.
Plascon-Evans
Paints,
supra
.
[56]
The first respondent refused to vacate the property notwithstanding a
written request to do so. The defence was based
on the
following:
56.1
The respondent were not unlawful occupiers.
56.2
The applicant was not the owner of the property.
56.3
The first respondent did not conclude the lease agreement with the
applicant and the lease agreement which she contended
was concluded
on different terms.
56.4
The respondent denied that she was in arrears in respect of any
amount in terms of the lease agreement.
[57]
The following was a
de
facto
legal precision in respect of the alleged defences. In the
first place the applicant was the registered owner of the property
which was transferred and registered in the applicants name on the 7
July 1977. In the second place the first respondent
averment
that she did not enter into an agreement with the applicant was shown
to be disingenuous and deserved to be rejected outright.
In the
light of the material facts set out in the papers the respondent
displayed lack of candour and I took a very deep view thereof.
In the third place the first respondent on her own version was
indebted to the applicant and her breached agreement. On the
facts the cancellation of the agreement on the 11 July 2016 was
justified. Taking all the a foregoing material considerations,
I had no difficulty in coming to the conclusion that the first and
third respondents were in an unlawful occupation of the applicants
property. They deserved to be declared as such.
Accordingly I have no hesitation in determining the first issue in
favour of the applicants.
[58]
The required consent as defined in the statue to occupy somebodies
property has been ventilated in
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & Others
2010 (3) SA 454
(CC) para [55].
“
What
is required by the PIE Act is not just some kind of acquiescence by
the owner or person in charge of land but the 'voluntary
agreement'
of the owner or person in charge. The occupier will not be on the
land with the consent of the owner or person in charge
if the owner
simply allowed the person to stay or occupy because he, she or it had
no choice but to do so, or felt under a duty
to do so, or for any
other reason did not agree voluntarily. Secondly, the word
'agreement' implies something bilateral. In other
words consent as
contemplated in the PIE Act is not unilateral consent but bilateral.
It cannot be consent unless it was first
asked for and later given,
or unless it was accepted after it had been given even though it had
not been requested.”
It
is obvious from the aforesaid passage that the respondent in an
application for eviction under the statue cannot contend that
she is
not an unlawful occupier if consent which was initially granted was
subsequently lawfully withdrawn. In the instant
matter I am of
the trend view that the applicant was entitled to revoke the consent
given to the respondent’s to occupy the
property initially.
Residents
of Joe Slovo Community
,
supra
.
[59]
As regards the second leg of the enquiry, the question is whether the
eviction of the respondents as unlawful occupiers was
just an
equitable given the peculiar facts of this particular matter.
[60]
Mr Snellenburg asked me to determine the question in favour of the
applicants, whereas Mr Buys asked me to determine the question
in
favour of the respondent’s.
[61]
Four years ago the Supreme Court of Appeal clarified the extent of
the onus to adduce sufficient facts to able a court, hearing
an
eviction application to exercise its discretion regarding the
question whether it would be just an equitable to grant an order
of
eviction. Willis JA elucidated the onus to the residual enquiry
as follows:
“
[30]
The implication of this is that, in the first instance, it is for the
applicant to secure (sic) that the information is placed
before the
court is sufficient, if unchallenged, to satisfy it that it
would be just and equitable to grant an eviction order.
Both the
Constitution and PIE require that the court must take into account
all relevant facts before granting an eviction order.
Whilst in some
cases it may suffice for an applicant to say that it is the owner and
the respondent is in occupation, because those
are the only relevant
facts, in others it will not. One cannot simply transpose the former
rules governing onus to a situation
that is no longer governed only
by the common law but has statutory expression. In a situation
governed by s 4(7) of PIE, the applicant
must show that it has
complied with the notice requirements under s 4 and that the
occupiers of the property are in unlawful occupation.
On ordinary
principles governing onus it also has to demonstrate that the
circumstances render it just and equitable to grant the
order it
seeks. I see no reason to depart from this. There is nothing unusual
in such an onus having to be discharged. One of the
grounds upon
which it was permissible to seek a winding-up order in respect of a
company under the Companies Act 61 of 1973 was
that it would be just
and equitable for the court to grant such an order. The law reports
are replete with cases in which courts
dealt with applications for
winding up on that basis. In cases where the applicant failed to
discharge the onus of satisfying the
court that it would be just and
equitable to grant a winding-up order it was refused.”
The
first sentence makes a better reading if the words “the
applicant to ensure” are substituted for the words “the
applicant to secure …”.
[62]
In the same decision,
Changing
Tides 74 (Pty) Ltd
supra
the court went further to explain why the law saddles the applicant
with the cumbersome onus, Willis JA said the following at paragraph
[31].
“
[31]
The response to this may be to say that the applicant for relief will
be unaware of the circumstances of the occupiers and
therefore unable
to place the relevant facts before the court. As a general
proposition that cannot be sustained. Most applicants
for eviction
orders governed by PIE will have at least some knowledge of the
identity of the persons they wish to have evicted
and their personal
circumstances. They are obviously not required to go beyond what they
know or what is reasonably ascertainable.
The facts of this case
belie the proposition that an applicant, even in a case where a
building has been hijacked, is unable to
place information before the
court in regard to the identity and circumstances of the occupiers.
Changing Tides was able to describe
in considerable detail the
circumstances in which the occupiers were living. It had
served notices to vacate on a number of
them and managed to
assemble a list, albeit incomplete and defective, of the names of 97
occupiers. It made it clear that the occupiers
were
people of extremely limited means
,
some at least of whom gathered rubbish from the streets for personal
use or resale, and left rotting garbage inside and outside
the
building. It specifically alleged that the occupiers were people who
would, on eviction, qualify for emergency housing. It
referred to
earlier proceedings in which it had previously obtained an eviction
order that had subsequently been set aside at the
instance of
occupiers. For some reason it did not provide the court with
information about the occupiers' circumstances gleaned
from the
affidavits in those proceedings. That information might also have
disclosed something of the circumstances in which the
building came
to be occupied originally. In that regard they could also presumably
have made enquiries of the previous owners.”
[63]
Homelessness presents huge social challenges to our society.
Rendering somebody homeless makes my heart bleed.
However
emotional sympathies should not be allowed to over cloud proper, fair
and just application of law. In
Johannesburg
Housing Corporation (Pty) v Unlawful Occupiers of the New Town Urban
Village
2013 (1) SA 583
(GSJ) para 122 Willis J had this to say:
“
[122]
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 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 the 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. The case for remaining in
occupation of the property has been
set out by the occupiers
laconically.”
In
this instance the applicant set out, as best it could, defects in
relation to the factors referred to in section 4(7) which facts
resorted within the applicants knowledge. The applicants
invited the respondents to place before this court relevant facts
which could tend to indicate that their eviction would not be just
and equitable.
[64]
In my view the respondents failed to live up to the challenge. They
failed to advance any such relevant facts. On
behalf of the
applicant it was contended that the reason for the failure of the
respondents was obvious. They failed to do
so because no such
facts existed to warrant the exercise of the discretion in their
favour. There was substance in the critique.
The material
facts relating to the respondents occupation of the property, the
hardships, the trauma and the disadvantages
associated with the
eviction and any other peculiar circumstances as inversaged in
section 4(7) - primarily resorted within the
personal knowledge of
the respondents. Their failure to set out such material facts
in opposition to the eviction was indicative
of the fact that there
were no facts which would render the eviction from the property
unjust and inequitable. The applicant’s
primary onus to
do so in terms of section 4(7) has, in my view, some reasonable
bounds in certain cases. This is one such
case.
[65]
In this matter, unlike in the case of
Changing
Tides
,
supra
,
the occupiers are clearly not people of extremely limited means.
None of them can be regarded as a proverbial man of straw.
They
are people of beyond average means. In saying so I am fortified
by their demand for an alternative accommodation in
the form of a
house pretty much the same as the one they are currently occupying.
It was mentioned in passing by counsel
for the respondents that the
commercial value of the property was in the region of R94 000
per month. On the facts,
I am inclined to conclude that it will
be just and equitable to have the first and third respondents evicted
from the property.
[66]
The residential property we are talking about here is no ordinary
property. The property commonly known as 100 Wayverley
Road,
Bayswater in Bloemfontein is a rare piece of architectural design.
The applicant’s financial manager modestly
described it as a
lavish house. Perhaps it epitomizes every home seekers dream
home. Obviously the applicant entertained
the wish of living in
that house forever. While it is natural sometimes to take
flight to Alice’s Wonderland, we must
still have the serenity
to discern dreams from reality. The parties gave divergent
versions concerning the history of the
property. Their versions
reminded me of the following comical definition of the word
“history”.
“
History
is an account, mostly false, of events, mostly unimportant, which are
brought about by rulers, mostly knaves, and soldiers,
mostly fools.”
So
said Ambrose Bierce. Taken from the novel, “Chameleon”
by William Diehl.
[67]
Jokes aside now. In
City
of Johannesburg Metropolitan Muncipality v Blue Moonlight Property 39
(Pty) Ltd and Another
2012 (2) SA 104
(CC) para [40] the court sounded the following line
of caution:
“
Off
course a property owner cannot be expected to provide free housing
for the homeless on his property for an indefinite period.”
[68]
The proper approach to eviction proceedings is that the court has to
take into account not only the interest of the unlawful
occupiers but
also the interest of the property owner in determing a just an
equitable order to balance out such interest.
Porth
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at 233f.
[69]
The applicant said virtually nothing about herself, her occupation
and her income. Similarly she said virtually nothing about
her
husband, his occupation and his income. The first respondent is
a prominent member of the community. This we know.
She is a
celebrity so to speak. At the height of her youth she was a
beauty queen. She was once crowned Miss South
Africa.
This we know. To crown it all, she moved up the social ladder.
She then met and married an equally prominent
resident of the city
and a reputable property magnet, Mr Boet Troskie. We also know
that prior to her occupation of the property
in 2011, she and her
family were staying in a rented town house where she paid a monthly
rental of R8000.
[70]
All these factors indicated to me that the first respondent was not
really a desperate homeless, poor and vulnerable occupier.
Her
lifestyle, her dreams and ambitions are not compatible to that sort
of social standing. Mr Snellenburg argued that the
first
respondent and her current husband were people of opulence and that
the statute was not for the protection of people of her
social
class. It is hard to find the contrary response. Bearing
all these material considerations in mind, it cannot
be that the
second respondent, let alone the applicant, is under any legal
obligation to provide alternative shelter to the first
respondent and
her family. It was proven that there were no miner children who
occupied the property together with the first
and third respondents.
[71]
In the circumstances, and on a proper reading of the papers, upon
proper consideration of all the peculiar circumstances of
the
particular case and upon proper application of the legal principles –
I am inclined to find in favour of the applicant
that it is just and
equitable to have the respondents evicted from the property –
Resmick,
supra
.
The determination of a just and equitable eviction order requires a
balancing act between the interest of the lawful property
owner as
well as the unlawful occupier. -
Port
Elizabeth Municipality v Various Occupiers,
supra
and
Newton
Urban Village,
supra
.
Moreover, the applicant cannot be reasonably expected to provide the
respondents with free alternative accommodation –
Blue
Moonlight,
supra
.
[72]
The lease agreement was cancelled on 11 July 2016. The
respondents were afforded no less than 14 weeks to vacate the
property but they held over. They were called upon to vacate
the premises before 31 October 2016. The given 14 week
period
was reasonably sufficient for the purpose. That
notwithstanding, they stayed put. The date came and passed.
They flatly refused, on unmeritorious grounds, it must be stressed,
to surrender the unlawfully occupied land. I gave them
8 more
instead of 2 weeks to vacate the property. It had to be
appreciated that the longer they remained on the property
the greater
the harm to the property owner’s rights became. That was
a material consideration.
[73]
As regards the alleged factual dispute, the law reports are replete
with relevant decisions. In every case brought by
way of motion
proceedings, the salient principle is that the court must closely
examine the alleged dispute of fact to determine
whether there is a
really genuine dispute of fact which cannot be satisfactorily
resolved without having recourse to the aid of
live oral evidence.
This principle is of cardinal importance. If it is readily
sacrificed for the flimsiest of reasons,
disingenuous respondents
will be encouraged to raise fictitious points under the guise of
disputes of fact and inordinately delay
the hearing of unassailable
and genuine motion cases to the prejudice of a whole range of
applicants.
Plascon-Evans
Paints,
supra
and
Van
Steel v Van Steel
1984 (2) SA 203
(T) at 205c.
[74]
There remains one more point to comment on. It concerns the way
in which the applicant’s annexures were marked
or labelled in
order to identify them. There were annexures attached to the
founding affidavit marked “ap1 –
ap5.2”. One
annexure was not marked at all. To the replying affidavit there
were annexures also exactly labelled
“ap1 to ap7”.
Again the eighth annexure was not labelled at all. Such a
clumsy way of labelling annexures
and duplicating their labels must
be avoided. It causes a great deal of confusion during
argument. It also make it
very cumbersome to a judge.
Once again I make a special plea to all practitioners to use the
guidelines I proposed in
Morobi
and Others v Umyezo Leisure Investments (Pty) Ltd and Others
[2016] 2 ALL SA 845
(FB) par 110.
[75]
These then are the reasons for the
ex tempore
order I made on
2 December 2016. I guess it will do no harm
to reproduce the order here for the sake of
completeness and
expedience.
ORDER:
1.
The first and third respondents are declared to be unlawful
occupiers, within the meaning of PIE, on the property
situated at 100
Waverley Road, Bloemfontein, Free State Province on the grounds as
set out in the accompanying affidavit of
Mr.
Frank Pretorius
with annexures thereto:
2.
The first and third respondents and all other persons occupying the
property through them are to vacate the
property no later than
31
JANUARY 2017
at
12h00
;
3.
The first and third respondents and all other persons occupying the
property through them are to remove all
movable property belonging to
them from the property by no later than
31
JANUARY 2017
at
12h00
;
4.
In the event of the first and third respondents or any of the
occupiers occupying through them failing to comply
with this order,
the sheriff for the district of Bloemfontein is authorised and
directed to evict them and to remove any movable
property belonging
to them from the property, forthwith;
5.
The first and third respondents are directed to pay the costs of this
application on the scale as between attorney
and client, jointly and
severally, the one paying the others to be absolved;
6.
Such costs shall include the costs occasioned by the employment of
two councils.
_____________
M.H.
RAMPAI, J
On
behalf of applicant:
Adv. N Snellenburg SC
with
Adv. R van der Merwe
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of the 1
st
& 3
rd
respondent:
Adv. JJ Buys
Instructed
by:
Crause Attorneys
Bloemfontein