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[2015] ZAFSHC 173
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Ramokheti v Calem N.O (A205/2014) [2015] ZAFSHC 173 (10 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A205/2014
DATE: 10 SEPTEMBER 2015
In the matter between:
MONICA
RAMOKHETI
..................................................................................................
APPELLANT
And
MMAMPHO EMILY CALEM
N.O
..............................................................................
RESPONDENT
(in her capacity as executor in the
estate
of William Petrus Calem)
CORAM: LEKALE, J et REINDERS, AJ
HEARD ON:17 AUGUST 2015
JUDGMENT BY: C. REINDERS, AJ
DELIVERED ON: 10 SEPTEMBER 2015
[1] This is an appeal against an order
of eviction granted by the Bloemfontein Magistrate’s Court for
the District of Bloemfontein
against the Appellant in relation to a
premises located at 35536 Mangaung, Bloemfontein (“the
property”). For ease
of convenience I will refer to the parties
as cited in this court.
[2] I do not find it apposite to deal
extensively with the history of this matter since launching of the
application by the Respondent
in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
during August 2012, until
granting of the order for eviction on 5
December 2013. Of importance is the fact that Appellant was permitted
to file a supplementary
affidavit to her opposing affidavit.
[3] Respondent averred that she is the
executrix in the estate of her late husband and thus in charge of the
property. During November
2009 she concluded a verbal lease agreement
with Appellant in the amount of R 400, 00 monthly. Appellant paid
rental for only two
months, where after she ceased effecting payment.
Despite several requests Appellant refused to vacate the property.
[4] In opposing the application
Appellant raised two points in limine, namely that Respondent lacked
the necessary locus standi
to bring the application for eviction, and
that Respondent was not the owner of the property and thus not the
person in control
thereof. The first point in limine was abandoned by
Appellant, whilst the second point was argued and dismissed by the
court a
quo.
[5] The application for eviction was
furthermore challenged by Appellant on the basis that an improvement
lien exists between Appellant
and Respondent, and that there had been
an oral agreement for the lease of the property between herself and
the descendants of
the deceased spouse of the Respondent. The latter
argument was apparently not pursued by the Appellant.
[6] The magistrate was not impressed
with the argument that Respondent did not have the necessary locus
standi or is not the person
in control of the property. Neither am I.
Annexed to the founding papers is a letter of authority by the
Master of the High Court
confirming Respondent’s control over
the property. The content thereof is uncontested.
[7] Even the Appellant realised the
relevance of this document. I say so because in her supplementary
opposing papers Appellant
abandoned her original defence of having
substituted the lease agreement that she had with the Respondent with
that of a lease
agreement with the beneficiaries. Appellant in the
supplementary affidavit avers that she was of the intention to
purchase the
property and not to rent same with occupational rental
to be paid by her. I am satisfied that the magistrate was correct in
finding
not only that the Respondent has the necessary locus standi,
but furthermore for purposes hereof, is the person in control of the
property.
[8] A registered owner merely has to
prove ownership of the property where after it is for the respondent
to establish a right to
be on the property, failure whereof entitles
the owner to an eviction order.
See: De Villiers v Potgieter and Others
NNO
2007 (2) SA 331
SCA at 316 par [12]-[13]
In casu the Respondent is the person in
control of the property. In my view the position of the established
person in control does
not differ in this regard from that of the
owner.
[9] The change in Appellant’s
version in her supplementary affidavit from a lease agreement with
the beneficiaries to that
of a purchase agreement which includes
occupational rent is not the only discrepancy that influenced her
credibility. The magistrate
took into account that Appellant advanced
different versions in respect of other facts put by her under oath.
Initially Appellant
averred that the property was vacant when she
took immediate occupation thereof. In the supplementary affidavit
Appellant stated
that, even though she had to pay occupational rent,
the property was occupied by another lady and she could not occupy
the property
for another month. In an attempt to put forward the
defence that a lien existed, appellant stated that shortly after
moving into
the property she discovered that it was dilapidated and
had been vandalized, needing serious and necessary renovations.
However,
in her supplementary affidavit Appellant stated that
contractors started with renovations during October 2009, at which
time certain
vandals entered the property and totally vandalised it.
[10] The magistrate dealt fully with
the Appellant’s defence that she had a lien against the
Respondent in terms of an agreement
that repairs would be conducted
by Appellant on the property, and that the cost thereof would be set
off against rental. This was
denied by the Respondent and the
versions put forward in Appellant’s opposing and supplementary
opposing affidavits were
evaluated. In passing judgment the
magistrate emphasised that in the initial opposing affidavit receipts
were attached to the value
of R 3 386, 29, whilst in the
supplementary affidavit additional receipts were attached bringing
the total amount to R 25 010,31.
An additional quotation for alleged
damage to furniture for R 45 999, 92 was also annexed.
[10] The court a quo was aware that the
additional purported proof of damages that should, according to
Appellant, be set off against
rentals payable in terms of the alleged
agreement between herself and Respondent, was a mere quotation and
not a receipt. No date
was reflected thereon, and no dates were
reflected on some of the other annexures purportedly indicating
damages.
[11] The magistrate was well appraised
of the conflicting versions tendered by Appellant, and the blame
therefor was put by Appellant
on her former legal representative. In
her supplementary affidavit Appellant merely indicated that her legal
representative erroneously
placed emphasis on the locus standi of the
Respondent, and upon signing the affidavit she noticed that some of
the facts “were
not quite in the correct order”. The
magistrate found it difficult to believe that material facts can
change so drastically,
even where a legal representative had erred on
his understanding of the law.
[12] In my view the magistrate
(although not expressly stating so) rejected the version of the
appellant, and rightly so. The Appellant
was thus an unlawful
occupier of the property. In any event none of the defences could
hold water. In the original affidavit reliance
was placed on an
agreement with the “beneficiaries”. Until transfer has
taken place they only have, in our law, a spes
and thus in the
absence of an agreement with the Respondent the magistrate would have
been entitled to evict the Appellant.
[13] In the supplementary affidavit
reliance is placed on a deed of sale and the consequential
occupational rent. It is trite law
that an agreement of sale in
respect of immovable property must be in writing to comply with
Section 2(1)
of the
Alienation of Land Act 68 of 1981
, failure
whereof the agreement is void. I might mention, in passing, that I
consider it in any event to be highly untenable and
far-fetched that
Respondent would be amicable to pay “damages” in respect
of the furniture whilst the property has
been sold.
[14] In five years no agreement of sale
has been concluded and the Appellant will not be able to compel the
Respondent to enter
into such an agreement. That no agreement of sale
exists or has been concluded is confirmed on the Appellant’s
own version.
[15] The Respondent indicated that she
repeatedly requested Appellant to vacate the property, but that
Appellant refused. Mr Roux
on behalf of Respondent argued that, even
if it was not expressly stated by Respondent that the lease agreement
was cancelled by
her, the actions of Respondent in dealing with the
matter is indicative of this fact. Not only did she attempt already
in 2010
to have the Appellant evicted in the Tshepong Crisis Centre,
but she proceeded to apply for an order of eviction in the court a
quo. To my mind there can be no doubt at this stage after almost six
years that the Respondent had the intention, and Appellant
could not
reasonably possibly harbour any doubts about such intention, that the
initial verbal lease agreement had been cancelled
and did not exist
at the time when the application was issued. After all the Respondent
had an election, as the lessor, to either
cancel the lease and evict
the Appellant or to enforce the agreement by claiming specific
performance when the latter stopped effecting
payment of rental. The
Respondent effectively elected to cancel the lease when she
persistently required the Appellant to vacate
the premises.
[16] In as far as reliance was placed
upon the existence of a lien, even on the Appellant’s own
version the rental due to
Respondent would, by a mere mathematical
calculation, undoubtedly already have exceeded the alleged incurred
expenses by far. The
Appellant has for almost six years not paid any
amounts to Respondent in respect of the property.
[17] When entertaining an application
in terms of PIE, the court is faced with two enquiries, the first
relating to the granting
of an eviction order and the second to the
determination of the date of eviction and other conditions.
See: City of Johannesburg v Changing
Tides 74 (Pty) Ltd
2012 (6) SA 294
(SCA).
[18] The 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.
See:
Section 4
(7) of PIE
[19] These relevant circumstances
include, amongst others, the rights and needs of children, and
require a balance between the interests
of the unlawful occupiers as
well as the lawful owner.
See: Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 233F
[20]
Respondent indicated in her
founding affidavit that Appellant is occupying the property with her
minor child. In her initial answering
affidavit Appellant merely
stated that she and her “children” are staying in the
house. Mr Johnson on behalf of Appellant
conceded that Appellant,
even after having a second chance to put forward any information
about the children, possible alternative
accommodation or any
relevant factors, chose not to do so.
[21] No mention is made by the
magistrate that the date of eviction is just and equitable. However,
it is clear that more than a
year had lapsed from the time that the
application was launched until the final order was granted on 5
December 2013. Even from
this date Appellant was granted just over a
month to vacate the property and I therefore do not think that the
magistrate erred
in this respect.
[22] The magistrate was satisfied that
the appellant should be evicted and I am satisfied that she was
correct in coming to that
conclusion. I would accordingly dismiss the
appeal. It is trite law that costs follow suit. I do not find any
reason to deviate
therefrom.
[23] Since the eviction date, as
ordered by the magistrate (9 January 2014), has passed through
effluxion of time, a new date for
eviction should be considered by
this court. It is clear from the papers that Appellant is employed
and thus ostensibly not indigent.
This also leaves me to believe that
in the absence of any evidence to the contrary, Appellant would be in
a position to rent an
alternative property for her and the minor
children. Respondent, on the other hand, is an elderly lady who is
unemployed and dependent
upon others for food and accommodation. She
has been without her property or any income for the past six years.
In light of all
the aforementioned I find it just and equitable that
Appellant should vacate the property as indicated below.
[24] Accordingly and for sake of
clarity the following orders are made:
1. The appeal is dismissed.
2. The Appellant is ordered to vacate
the property at 35536 Mangaung Bloemfontein not later than 30
September 2015 with all her
belongings.
3. The Sheriff of Bloemfontein is
ordered to evict the Appellant (and her belongings) if Appellant
refuses or neglects to vacate,
or is still present on the premises,
on 1 October 2015.
4. The Sheriff of Bloemfontein is
ordered, should it become necessary, to request the South African
Police Services to assist in
carrying out the order as in prayer 3
above.
5. Appellant is ordered to pay the
costs.
C. REINDERS, AJ
I concur and it is so ordered.
L.J. LEKALE, J
On behalf of Appellant: Adv. J M C
Johnson
Instructed by: Kramer Weihmann &
Joubert Inc
BLOEMFONTEIN
On behalf of Respondents: Adv. L A
Roux
Instructed by: Webbers Attorneys
BLOEMFONTEIN