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[2017] ZAFSHC 203
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Minister of Police v Koaho and Others (562/2017) [2017] ZAFSHC 203 (19 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 562/2017
In
the matter between:
MINISTER
OF
POLICE APPLICANT
and
LERATO
ARGHYA KOAHO
1
st
RESPONDENT
KATLEHO
CHRISTIAN KOAHO
2
ND
RESPONDENT
RELEBOHILE
CHRISTIAN MPOTANE 3
RD
RESPONDENT
THABISO
FRANCIS
MPOTANE 4
TH
RESPONDENT
ANY
OTHER UNLAWFUL
OCCUPIER
5
TH
RESPONDENT
MANGAUNG
METROPOLITAN MUNICIPALITY 6
TH
RESPONDENT
CORAM:
MBHELE, J
HEARD
ON:
15 JUNE 2017
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
19
SEPTEMBER
2017
[1]
The applicant applies for an order evicting the first to fifth
respondents from a flat known as Unit […] M. flats, Nelson
Mandela Drive Bloemfontein (the flat).
[2]
First respondent is opposing the application.
[3]
First respondent is an employee of the respondent and was allocated
temporary occupation of official housing offered by the
Applicant
with effect from 20 April 2007.
[4]
Applicant provided official housing to the first respondent as an
instrument in execution of first respondent's duties.
She
was attached to Crime Intelligence until 2014 when she was moved to
the uniform branch at Navalsig Police station.
[5]
After the period of temporary allocation lapsed, the respondent had
to apply for reallocations of official housing. Her application
was
received by the applicant on 25 March 2008.
[6]
O
n 14 January 2009
applicant and the first respondent entered into an Understanding
wherein the first respondent would occupy a flat
known as Unit […]
M. flats, Nelson Mandela
Drive
Bloemfontein for a period of 3
(three) years. The undertaking served as a lease agreement between
the parties.
[7]
The flat was to be utilized by the first respondent in execution of
her duties because work specifications of the post she occupied
at
the time required that she be available on the terrain where such
activities are performed during and outside her official hours
of
duty.
[8]
Paragraph 9 of the applicant's Housing Policy (Policy) provides as
follows:
"9.1.
The official housing will be allocated for a period of two years to
qualifying employees."
[9]
Paragraph 2.2 of the undertaking provides:
"In
the case of any discrepancies, inconsistencies or ambiguities,
between the provisions of this undertaking and the Policy,
the
provisions of the policy shall prevail."
[10]
First respondent occupied the flat continuously for the duration of 3
(three) years before she was served with the notice to
vacate the
premises.
[11]
There has been no fresh undertaking signed between first respondent
and the applicant since the expiry of the one signed in
January 2009.
[12]
First respondent remains in occupation of the property beyond the
term of the contract.
[13]
Applicant served a notice on the first respondent on 10 February 2012
notifying her of the expiry of the undertaking on 29
February 2012.
[14]
The applicant served another notice dated 30 March 2015 on the first
respondent on 11 May 2015 notifying her of its intention
to approach
court for eviction application in case she failed to vacate the
property within 7 (seven) days from the date of receipt
of the
relevant notice.
[15]
A further notice was served on 26 May 2015 through Sheriff on the
first respondent's family member, B. Koaho, at the flat.
[16]
Another notice was served on the first respondent through Sheriff on
07 November 2016.
[17]
The flat was re- advertised and allocated to someone else in 2012
after the expiry of the contract between the applicant and
the first
respondent. The person allocated the flat could not take its
occupation.
[18]
Applicant re-advertised the flat for occupation in 2017. First
respondent has now submitted an application to be considered
for
further occupation of the property. The closing date for applications
was 31 March 2017.
[19]
The outcome of the first respondent's application was pending at the
time of hearing this application.
[20]
Upon receipt of applicant's notices to vacate the flat in 2015, first
respondent sent representation to the applicant requesting
permission
to stay in occupation of the flat. First respondent received no
response from the applicant.
[21]
The following issues are to be decided:
(i)
Whether the respondents are unlawful occupiers.
(ii)
Whether the respondent's holding over was consensual.
(iii)
Whether it is just and equitable to evict the respondents from the
premises.
[22]
It is first respondent's case that she submitted applications to stay
in occupation of the property in 2012 and 2015 and same
were not
responded to by the applicant. Applicant denies receipt of first
respondent's applications for 2012 and 2015.
[23]
Mr Masihleho, on behalf of the applicant, submitted that the first
respondent's continued occupation of the property is illegal,
as she
occupies the property without consent from the applicant. He
contended further that nothing entitled the first respondent
to stay
in occupation of the property as the contract between the parties has
since lapsed. He further submitted that eviction
of the first
respondent and those occupying the flat through her is just and
equitable in that the first respondent has since been
promoted by the
applicant and she is in a position to afford alternative
accommodation. He contended, further, applicant has no
obligation to
allow the first respondent to stay in occupation of the flat pending
the outcome of her application.
[24]
Mr Johnson, on behalf of the first respondent, submitted that the
first respondent had tacit consent from the applicant to
occupy the
property. He contended further that failure by the applicant to
proceed with eviction application after the first notice
was served
on the first respondent shows that the respondent approved her
continued stay on the property. He submitted that the
first
respondent's financial position makes it difficult for her to afford
alternative accommodation. He, further, submitted that
the first
respondent stays with two minor children and her nephew whose lives
would be disrupted should she be evicted from the
flat. He argued
that the first respondent has applied for permission to occupy the
flat and that evicting her only to be returned
to the premises should
her application be successful will cause serious disruptions and
inconvenience to her and her family.
LEGAL
PRINCIPLES
[25]
It is well established under
Plascon Evans
rule that in
application proceedings, a final order can be granted only if the
facts averred in the applicant's affidavit, which
have been admitted
by the respondent, together with the facts alleged by the latter,
justify such order. (See
Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) and
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
SCA.
In
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
SCA, the supreme court of appeal held as
follows:
"[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports
to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course
be instances where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more
can therefore be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the
averring party and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that
the disputing party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if
they be not true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have
difficulty in finding that the
test is satisfied."
[26]
The first respondent's explanation of why she maintained a belief
that the applicant acquiesced to her continued stay on the
property
is not supported by available evidence. She avers that she submitted
her application for permission to occupy the flat
in 2012 and 2015
and on both occasions she received no reply. There are no details of
how and when such applications were submitted.
There is no proof of
such applications ever being received by the applicant neither does
she have a copy to show that she indeed
submitted such applications.
In her letter of representation dated 12 May 2015, written after
receipt of notice to vacate on 11
May 2015, she makes no mention of
such applications. The first respondent's version fails to establish
a genuine dispute of fact,
it is farfetched and untenable.
[27]
Prevention of illegal eviction Act of 1998 (PIE) defines an
"Unlawful" occupier in section 1 as follows:
"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, excluding a person who is an occupier in
terms of the Extension of security of Tenure Act
1997, and excluding
a person whose informal right to land, but for the provisions
of this Act, would be protected by the
provisions of the Interim
Protection of Informal Right Act, 1996, (Act no 31 of 1996)."
[28]
Security of tenure is protected in Section 26 of the Constitution of
the Republic of South Africa. This section emphasizes
the need for
adequate housing.
[29]
A lessee of property has no security of tenure in perpetuity. If the
period of lease is left undetermined, it can be terminated
on notice.
Beyond the period of lease, the Jessee has no security of tenure.
(See
Maphango (Mgidlana) and Others v Aengus Lifestyle Properties
(Pty)
Ltd
2011
(3)
SA
535
SCA).
[30]
It is trite that a tacit contract is established by conduct. The
conduct of the parties must show that there was consensus
between
them.
In
Standard Bank of South Africa Ltd and Another v Ocean Commodities
Inc and Others
1983 (1) SA 276
(A)
at 292 the court said the
following:
"In
order to establish a tacit contract it is necessary to show, by a
preponderance of probabilities, unequivocal conduct which
is capable
of no other reasonable interpretation than that the parties intended
to, and did in fact, contract on the terms alleged.
It must be proved
that there was in fact consensus ad idem.
[31]
A tacit term cannot be imported into a contract in respect of any
matter to which the parties have applied their minds and
for which
they made express provision in the contract. (See
Robin v
Guarantee Life Assurance Ltd
[1984] ZASCA 72
;
1984
(4)
SA
558
(A)
at
567).
[32]
The argument that the parties concluded a tacit contract is without
basis. The undertaking expressly stated that first respondent's
right
of occupation of the flat would cease after 3 years. The three year
period, stipulated in the undertaking,
expired
in February 2012.
There
is no evidence to show that she applied for reallocation since its
expiry in 2012 until it was again re-advertised in 2017.
Several
notices served on her personally, members of her family and on the
premises during 2012, 2014 and 2015 are a clear indication
that the
applicant did not approve of her continuous occupation of the flat.
There is no evidence from which I can draw an inference
that there
existed a tacit contract between the parties.
[33]
The court has to decide whether it is just and equitable to evict the
occupier once it has established that the notice has
been served.
Section 4 subsections (7), (8) and (9) require the court to consider
whether it is just and equitable to evict the
occupier.
'(7)
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 all the
relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).
(9)
In determining a just and equitable date contemplated in subsection
(8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or her family have resided
on the land in question.'
[34]
In
Ndlovu v Ngcobo: Bekker and another
v Jika
[2002] 4 All
SA
384
(SCA)
the Harms, JA said the following:
''The
effect of PIE is not to expropriate the landowner and PIE cannot be
used to expropriate someone indirectly and the landowner
retains the
protection of section 25 of the Bill of Rights. What PIE does is to
delay or suspend the exercise of the landowner's
full proprietary
rights until a determination has been made whether it is just and
equitable to evict the unlawful occupier and
under what conditions.
Simply put, that is what the procedural safeguards provided for in
section 4 envisage.
The
court, in determining whether or not to grant an order or in
determining the date on which the property has to be vacated (section
4(8)), has to
exercise a
discretion based upon what is just
and equitable. The discretion is one in the wide and not the narrow
sense.........
Another
material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is
entitled to
approach the court on the basis of ownership and the respondent's
unlawful occupation.
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled
to an order
for eviction.
Relevant
circumstances are nearly without fail facts within the exclusive
knowledge of the occupier and it cannot be expected of
an owner to
negative in advance facts not known to him and not in issue between
the parties."
[35]
It is clear that the first respondent's occupation of the property is
unlawful as there is no contract authorizing such occupation.
The
argument that her pending application gives her a right to stay in
occupation of the flat is misplaced. First respondent is
not so poor
that she has no means for income. She is gainfully employed. The fact
that the first respondent was placed under debt
review in 2015 cannot
be given as a reason justifiable enough for the first respondent to
hold on to the applicant's property without
a valid contract. Her
financial position should rather be used as a mitigating factor to
delay her ejectment from the property.
After considering all factors,
I have to exercise my discretion. Such discretion has to be exercised
judicially. I am not persuaded
that evicting is unjust. The
application must succeed. Mr. Johson submitted that should the court
order the eviction of the first
respondent she would require six
months to make proper arrangements for alternative accommodation. I
am of the view that 3 moths
from the date of this order is sufficient
to enable the first respondent to sort out her financial problems and
secure altyernative
accommodation.
[36]
In view of the above the following order is made.
1.
First and fifth respondents are declared unlawful occupiers of Unit
[…] M. Flats, Nelson Mandela Drive, Bloemfontein.
2.
First respondent and all other persons occupying the property through
her are ordered to vacate the premises described in 1 above not later
than 20 December 2017 at 12h00 noon.
3.
First respondent and all other persons occupying the premises through
them are ordered to remove all movable property, equipment and
apparels belonging to them from the premises by no later than
20 December 2017 at 12h00 noon.
4.
In the event the first and Second respondent or any other
person
occupying the property through them failing to comply with
this order, the sheriff of the District Court Bloemfontein is
authorized
and directed to evict them and remove any movable
property, equipment and apparels belonging to them forthwith.
5.
Each party to pay their own costs.
_________________
NM
MBHELE, J
On
behalf of the Applicant:
Adv. PT MASIHLEHO
Instructed
by:
STATE ATTORNEY BLOEMFONTEIN
11TH FLOOR FEDSURE
BUILDING
49 CHARLOTIE MAXEKE
STREET
BLOEMFONTEIN
On
behalf of the Respondent:
Adv. JMC JOHNSON
Instructed
by:
KRAMER WEIHMAN & JOUBERT
24 BARNES STREET WESTDENE
BLOEMFONTEIN