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[2016] ZAKZPHC 60
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Coetzee v Pipet Place Eiendomme CC (AR509/2015) [2016] ZAKZPHC 60 (28 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR509/2015
DATE:
28 JUNE 2016
NOT
REPORTABLE
In
the matter between:
PIERRE
NICOLAAS
COETZEE
....................................................................................
APPELLANT
And
PIPET
PLACE EIENDOMME
CC
..............................................................................
RESPONDENT
Coram
: Seegobin J et Hemraj AJ
Heard
: 06 June 2016
Delivered
: 28 June 2016
ORDER
On
appeal from the Magistrate’s Court, Empangeni (Mr Zaayman,
sitting as a court of first instance):
(a)
The appeal is dismissed with costs.
(b)
The appellant is ordered to vacate the respondent’s premises by
no later than 31 July 2016.
JUDGMENT
SEEGOBIN
J (Hemraj AJ concurring):
[1]
This is an appeal against an eviction order granted by the
Magistrate’s Court, Empangeni, in terms of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998
(PIE). The eviction order was granted on 13 February 2015.
In terms of the order the appellant was ordered to vacate the
premises on or before 31 March 2015.
[2]
The appellant’s occupation of the respondent’s premises
occurred in terms of a written lease agreement which commenced
on 1
March 2013 and was due to terminate after seventeen (17) months on 31
July 2014. The agreement made no provision for
renewal.
On termination of the agreement in July 2014, the appellant continued
to remain in occupation of the premises.
Anticipating that the
appellant might not vacate the premises on the termination date,
Clause 5.2 of the agreement made provision
for the premises to be
leased to the appellant on a monthly basis and on the same conditions
as contained in the agreement but
subject to the condition that the
respondent was entitled to give the appellant a calendar months’
notice of termination.
Such notice had to be given on the first
day of the month.
[3]
On 22 August 2014 the appellant was duly given a calendar months’
notice of termination of the lease agreement.
In terms of the
notice the termination would have taken effect on 30 September 2014.
Notwithstanding the said notice the
appellant continued to remain in
occupation of the respondent’s premises.
[4]
The eviction application in terms of PIE was instituted by the
respondent on 7 October 2014. In opposing the application
the
appellant raised three defences, namely: (a) that there was a dispute
pending between the parties before the KwaZulu-Natal
Rental Housing
Tribunal; (b) that the respondent failed to comply with his duties as
landlord in respect of maintaining the property
and that the
appellant has a lien over the property insofar as the improvements to
the property are concerned; and (c) that the
appellant has no access
to alternative accommodation.
[5]
While the appellant initially advanced the same defences (a set out
above) as grounds of appeal, by the time the matter was
argued on 6
June 2016 the first two grounds were effectively abandoned.
Ms
Mhlongo
who appeared on behalf of the appellant, on instructions
from the Legal Aid Board, confirmed that the appeal was being pursued
on one issue only, viz, whether the court
a quo
had
misdirected itself in failing to consider the issue of alternative
accommodation for the appellant.
[6]
In considering an application for eviction under PIE a court is
ordinarily required to have regard to all the relevant circumstances
placed before it. In terms of s4(7) of PIE an eviction order
may only be granted if it is just and equitable to do so after
the
court had regard to all the relevant circumstances. These
include the availability of land for the relocation of the
occupiers
and the rights and needs of the elderly, children, disabled persons
and households headed by women. If the requirements
of s4 are
satisfied and no valid defence to an eviction order has been raised
the court must in terms of s4(8) grant an eviction
order.
However, when granting such an order the court must, in terms of
s4(8)(a) of PIE, determine a just and equitable date
on which the
unlawful occupier or occupiers must vacate the premises. The
court is empowered in terms of s4(12) to attach
reasonable conditions
to an eviction order.
[7]
In advancing the appeal on behalf of the appellant
Ms
Mhlongo
submitted the learned magistrate conducted the inquiry in terms of
s4(7) of PIE relating to alternative accommodation only after
the
eviction order was granted. I disagree. The personal
circumstances of the appellant were not only pertinently pleaded
by
the respondent in sub-para 7.15
[1]
of the founding affidavit, they were also placed before the court in
argument by the respondents attorney,
Ms Nortjie
[2]
.
[8]
It would seem to me that the learned magistrate was acutely aware of
the appellant’s circumstances when he sought clarity
from the
appellant’s attorney about the appellant’s financial
position
[3]
. The following
exchange is noted between the learned magistrate and the appellant’s
attorney at page 151 of the record:
“
COURT
. . . Has he ever seeked for alternative accommodation and prices and
so forth? Costs . . .
MR McVICAR
According to my instructions, he’s been in a position, in a
financial position, where he wouldn’t be able to
rent
alternatively. I do submit that a rental in Richards Bay of
3 000 is very affordable and that perhaps, if the first
respondent is unable to pay that amount, it would be very difficult
to find something alternative.
COURT
Difficult? Impossible?
MR McVICAR
Perhaps not impossible, with respect.
COURT
Not
impossible.
MR McVICAR
But very difficult, Your Worship.
COURT
So it’s not impossible. So it’s possible that he
can get alternative accommodation for possibly the same rental.
However, it may be difficult.”
[9]
The record reveals that issues concerning the appellant’s
personal circumstances and alternative accommodation became
relevant
once more when the learned magistrate was determining a just and
equitable date by when the appellant should vacate the
premises.
Having heard the submissions in that regard the learned magistrate
ordered that the appellant should vacate the
premises by no later
than 31 March 2016, thus affording him a further period of about six
weeks to remain in occupation until he
obtained other suitable
accommodation.
[10]
Having carefully considered the manner in which the learned
magistrate dealt with the application in the court
a quo
, I am
not persuaded that there is any merit in the complaints raised by the
appellant. If anything, the appellant can consider
himself very
fortunate to have been able to remain in occupation of the
respondent’s premises, albeit unlawfully, for such
a long
time. The evidence established that after the monthly tenancy
was validly cancelled, the appellant managed to remain
in unlawful
occupation and rent-free for a period of about nine months. I
further consider that the appellant cannot be said
to be
disadvantaged in any way, nor is he poverty-stricken. Far from
it. He is self-employed and capable of generating
an income for
himself. I see no reason why he cannot find suitable
alternative accommodation. It is time that he did.
It follows
that the appeal cannot succeed and must be dismissed.
ORDER
[11]
In the result, I make the following order:
(a)
The appeal is dismissed with costs.
(b)
The appellant is ordered to vacate the respondent’s premises by
no later than 31 July 2016.
I
agree
HEMRAJ
AJ
Date
of Hearing : 6 June 2016
Date
of Judgment : 28 June 2016
Counsel
for Applicant : Ms P Mhlongo
Instructed
by : Justice Centre, Durban
Counsel
for Respondent : WJ Pietersen
Instructed
by : Duvenhage Attorneys
c/o
Tatham Wilkes Inc.
[1]
Sub-para
7.15 reads as follows: “The First Respondent lives
alone
at the premises. He does not have any dependants who stay with
him. The first Respondent is 54 years old and is not
suffering
andy disability. I am aware that the First Respondent is deaf
in his one ear, but seeing that the First Respondent
works
independently as an IT Technician under the name and style of IT Pro
at PC Power, his deafness should not impact negatively
on his
ability to earn a reasonable feasible income.”
[2]
Indexed
papers, pages 133-134.
[3]
Indexed
papers, pages 147-152.