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[2015] ZAGPPHC 400
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Mthetwa and Another v Chiloane (A374/2013) [2015] ZAGPPHC 400 (18 June 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A374/2013
DATE:
18 JUNE 2015
In
the matter between:
DAPHNE
MTHETWA
..........................................................................................
FIRST
APPELLANT
KELLY
CHILOANE
........................................................................................
SECOND
APPELLANT
And
THOMAS
PRETORIUS
................................................................................................
RESPONDENT
HEARD
ON: 24 April 2015
JUDGMENT:
STRIJDOM
AJ
1.
This is an appeal against an eviction order
granted by a magistrate evicting the Appellants from a residential
property at Erf 490,
K……. A….., S……,
W…… (the "Property") on the ground that the
Respondent
is the registered owner of the property and that the
Appellants had no right of occupation.
2.
The Second Appellant contended that she has
a right to occupy the Property as a result of the terms of a will of
the deceased (the
"Will"). In terms of clause 2 of the
Will, the Second Appellant acquired a lifelong usufruct of occupation
in and to
the Property.
3.
The Appellants filed a notice of motion
seeking an order that the Court of Appeal accept new evidence as set
out in the founding
affidavit of Sibusiso Tobias Ian Mbethe in terms
of Section 19 of the Superior Court Bill, Act 10 of 2013. The new
evidence purported
to be a letter from the Master of the High Court
confirming that on the 20
th
of May 2014 an original Will was lodged which was endorsed and
accepted as valid by the Master as it complies with the Wills Act.
4.
Counsel for the Respondent contended that
the application to lead further evidence must be dismissed on the
basis that even if the
disputed Will is upheld, it does not give the
Appellants a right to occupy the Property.
BACKGROUND:
5.
The following facts are common cause
between the parties:
5.1.
The Respondent is the registered owner of
the Property.
5.2.
He was married to the Second Appellant's
mother ("Mrs Pretorius") in community of property.
5.3.
She died on 31 March 2010.
5.4.
Her estate was administered as an intestate
estate.
5.5.
The Property was transferred to the
Respondent pursuant to the intestate winding up of the deceased
estate.
APPLICATION
IN TERMS OF SECTION 19 OF ACT 10 OF 2013 TO PRODUCE FURTHER EVIDENCE
ON APPEAL:
6.
The application to submit new evidence on
appeal is not contested by the Respondent. However, it was contended
by counsel for the
Respondent that even if this court accepts the
Second Appellant's version with regard to the disputed will and
disregards the concerns
regarding its veracity, it does not confer on
the Appellants the right to occupy the Property.
7.
Subsequent to the judgment of the Court
a
quo
the Master of the High Court on the
23
rd
of September 2014 accepted the Will of the deceased, the late Johanna
Ellen Pretorius as valid. A copy of the Master's letter is
annexed as
Annexure "M"
,
to the founding affidavit of the Appellants' application.
8.
The disputed Will purports to:
8.1.
Bequeath a half share of the Property to
Paul Revier and Sarah Makuse; and
8.2.
Confer on Paul Revier and the Second
Appellant a usufruct, namely the right to occupy the Property for so
long as they are alive.
9.
The Respondent dispute the validity of the
Will.
10.
In terms of Section 19 (b) of the Superior
Courts Act, Act 10 of 2013 , the Supreme Court of Appeal or a
division exercising appeal
jurisdiction may, in addition to any power
as may specifically be provided for in any other law receive further
evidence.
11.
The Appellate Division has in a series of
decisions laid down certain basic requirements. They may be
summarised as follows:
11.1.
There should be some reasonable sufficient
explanation, based on allegations which may be true, why the evidence
which is sought
to lead was not led at the trial.
11.2.
There should be a
prima
facie
likelihood of the truth of the
evidence.
11.3.
The evidence should be materially relevant
to the outcome of the trial.
12.
The real issue in dispute between the
parties is whether the new evidence is materially relevant to the
outcome of the trial.
13.
Section 15
(1) (a) of the
Matrimonial
Property Act 88 of 1984
provides that a spouse married in community
of property;
"shall
not without written consent of the other spouse –
(a)
Alienate, mortgage, burden with a
servitude or confer any other real right in any immovable property
forming part of the joint estate.
(b)
Enter into any contract for the
alienation, mortgaging, burdening with a servitude or conferring of
any other real right in immovable
property forming part of the joint
estate."
14.
Where
the Property specified belongs jointly to the testator and to a third
person it is clear that the testator cannot override
the rights of
the co-owner, the testator's will cannot do more than he or she
personally could do and the legacy is not binding
on the co-owner
[1]
.
15.
A
beneficiary has merely a personal right,
jus
in personam as rem acquirendam
,
against the executor and does not acquire ownership by virtue of a
will. The heir obtains ownership or a lessor real right, such
as a
usufruct, only upon delivery or transfer in pursuance of testamentary
disposition or intestate succession, consequently succession
is
merely a
causa
habilis
,
or appropriate reason, for transfer of ownership
[2]
.
16.
In my view the Master's acceptance of the
disputed will is not relevant to the correctness of the eviction
order. Even if the Will
is ultimately upheld, its purported conferral
of a usufruct is a nullity and does not confer a right to occupy the
Property.
17.
Subsequently the application to lead
further evidence on appeal is dismissed.
EVICTION
UNDER PIE:
18.
PIE has to be interpreted, and its
governing concepts of justice and equity have to be applied, within a
defined and carefully calibrated
constitutional matrix. The starting
and ending point of the analysis of PIE must be to affirm the values
of human dignity, equality
and freedom.
19.
The Court
a
quo
concluded that it was just and
equitable that an Eviction order be granted against the Appellants
and ordered the Appellants on
8 March 2013 to vacate the premises on
or before 28 March 2013.
20.
It was submitted by counsel for the
Appellants that the Learned Magistrate failed to give due regard to
the fact that the Second
Appellant is a pensioner in poor health,
that the First Appellant is her caretaker and they do not have
alternative accommodation.
21.
In his reasons for judgment the Court
a
quo
remarked as follows:
"The
Court was however not brought into speed
(sic)
as to the personal and financial
position of the respondents and their ability to get alternative
accommodation. Nothing was placed
on record as to the current
position of the Second Respondent her ability to get her own
accommodation therefore the Court was
unable to fully consider their
interest."
22.
Section 4 (7) of the PIE Act No 19 of 1998
provides that 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:
"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 woman."
23.
In determining a just and equitable date on
which the unlawful occupier must vacate the land, 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.
24.
Counsel for the Respondent conceded that
the Court
a quo
did
not considered the availability of alternative accommodation for the
Appellants.
25.
Section 26 (3) of the Constitution requires
that all relevant circumstances should be considered but does not
itself provide that
any circumstances will be relevant.
26.
The
personal circumstances of the lessee and the availability of
alternative accommodation are not without more relevant circumstances
as intended in Section 26 (3) of the Constitution
[3]
.
27.
In my view insufficient evidence was placed
before the Court
a quo
regarding
the personal circumstances of the Appellants and the availability of
alternative accommodation.
28.
I concluded that the Court
a
quo
did not considered the provisions
of Section 4 (7) (8) and (9) of the PIE Act, No 19 of 1998 and did
not exercise its judicial discretion
properly.
29.
I am further of the view that it was not
just and equitable for the Court
a quo
to grant an order for eviction without
due consideration of the provisions on Section 4 (7), (8) and (9)
supra
.
30.
Accordingly, I propose that the Appeal is
upheld and the following Order is made:
30.1.
The application to lead new evidence is
dismissed with costs.
30.2.
The order granted by the Court
a
quo
on 8 March 2013 is set aside with
costs.
30.3.
The matter is referred back to the Court
a
quo
to receive evidence regarding the
personal circumstances of the Appellants, possible alternative
accommodation and to consider a
reasonable period for them to vacate
the premises in case the Court grants an order for them to vacate the
premises.
30.4.
The Court
a
quo
is further ordered to comply with
the provisions of Section 4 (7), (8) and (9) of Act 19 of 1998.
JJ STRIJDOM
ACTING JUDGE OF THE
HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree
JANSEN
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:18
JUNE 2015
APPEARANCES:
On
behalf of the Appellants:
Adv CJC Nel
On
behalf of Respondent:
Adv N Ferreira
[1]
See: Willes Principles of South African Law.
[2]
See: Booysen and Others v Booysen and Others
2012 (2) SA 38
(GSJ)
Ex parte Estate
of The Late J.C. Niemeyer
1902 T'S 20
Kotze
N.O.
v
Oosthuizen
1988 (3) SA 578
(C)
[3]
See: Brisley v Drotsky
2002 (4) SA 1
(SCA) at 3D-E and F-G