About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2015
>>
[2015] ZAKZDHC 66
|
|
Ethekwini Municipality v Boyce (10015/2013) [2015] ZAKZDHC 66 (25 August 2015)
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,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 10015/2013
In
the matter between:
ETHEKWINI
MUNICIPALITY
APPLICANT
and
CALVIN
BERNARD
BOYCE
RESPONDENT
ORDER
1.
That the respondent and all those persons
claiming occupation through or in conjunction with him of the
immovable property, situated
at [......], Redhill, kwaZulu-Natal, are
directed to vacate the property.
2.
That the respondent and all persons
claiming occupation through him are required to comply with paragraph
1 hereof by 30 November
2015.
3.
In the event of respondent, and any other
persons occupying through or under him, failing to comply with the
directions in terms
of paragraph 2 of this order, the sheriff or his
deputy is hereby authorised and directed to take all steps and do all
such things
as may be necessary to eject the respondent and any such
persons from the premises on 2 December 2015.
4.
The respondent is ordered to pay the
applicant’s costs in respect of this application.
JUDGMENT
SISHI
J
Introduction
[1]
This is an application for the ejectment of the respondent from the
property situated at [......], Redhill, KwaZulu-Natal (“the
property”)
[2]
The applicant is Ethekwini Municipality, which is the registered
owner of the property. The respondent who opposes the
application resides on the said property.
[3] It
is evident from the record that the applicant had complied fully with
all the procedural requirements in terms of the Prevention
of Illegal
Eviction from Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”).
Issue to be decided
[4]
The main issue to be decided in this matter is whether the respondent
should be evicted from the property.
Background
[5]
The following facts are either common cause or cannot be disputed on
any reasonable grounds.
(1)
On or about 19 February 2004 and at Durban,
the applicant concluded a written short term lease agreement with the
respondent in
terms of which the respondent leased the property from
the applicant.
(2)
The lease agreement was an interim measure
subject to the applicant’s plans for development and it was
agreed that when the
premises are required for that purpose, the
tenant (the respondent) shall vacate the premises by the termination
date of the duly
given notice thereof.
(3)
The property is not low income housing.
(4)
On 7 July 2007, the Council of the
applicant passed a resolution to sell the property by public tender
as it was regarded as surplus
and no longer needed by the applicant
to provide the minimum level of municipal services.
(5)
The sale of the property was advertised
from 14 December 2007 until 11 January 2008. The advertisement was
withdrawn as the respondent
had objected to the proposed sale.
The respondent’s concerns were addressed.
(6)
The sale of the property was re-advertised
in November 2008. The respondent also submitted a tender,
however, the sale was
not valid. No award was made.
(7)
In May 2009 the sale of the property was
again sent out to tender. The successful tenderer was the
respondent. The respondent
withdrew his offer on the basis of
financial constraints. He was then refunded his deposit.
(8)
The sale of the property was again sent out
to tender in December 2009 and thereafter in April 2012. The
respondent participated
in all the tender processes. The
respondent was at all times informed of the tender processes and
invited to participate
therein. The respondent did so.
(9)
On 16 July 2012 the Bid Adjudication
Committee of the applicant accepted the offer from Mr Thaver to
purchase the property at R551 000.00.
(10)
On 10 August 2012 Mr Thaver was informed by
the applicant’s Head: Real Estate that his offer was
successful.
(11)
On 27 August 2012 the unsuccessful
tenderers (including the respondent) were notified, in writing, that
their offers to purchase
the property were unsuccessful.
(12)
The applicant sold the property to Mr
Thaver who paid the purchase price in full.
(13)
On the 25
th
February 2013 the applicant’s Head: Real Estate informed the
respondent in writing that his lease agreement had been terminated
(“notice of termination”). The respondent was required to
vacate the property by 30 of April 2013.
(14)
On 5 July 2013 the applicant’s Head:
Real Estate directed the respondent to vacate the property with
immediate effect (“the
notice of vacate”).
(15)
The respondent has failed and or refused to
vacate the property.
[5]
The respondent who appeared in person opposes the application.
[6]
The basis of the respondent’s opposition is as follows:
(1)
The respondent was allocated the property
by the applicant’s officials, namely Ronnie Gengan and Cyril
Moodley, and was told
to sign the lease agreement in view of the
applicant selling the property to him by private treaty.
(2)
He has undertaken renovations to the
property in the some of R200 000,00 in order to make it
habitable.
(3)
The provisions of section 4(7) of the PIE
Act apply to him and it is not just and equitable to order his
eviction from the property.
Applicant’s
submissions
[7]
Counsel for the applicant made the following submissions:
(1)
The property was not in a derelict
condition as alleged by the respondent. It was renovated by the
applicant prior to the
respondent taking occupation of the property.
(2)
Neither Gengan nor Moodley could and did authorise the sale of the
property to the respondent
or anyone else for that matter nor could
they authorise the respondent’s renovations to the property.
(3)
No permission was given to the respondent by the applicant to conduct
any renovations on
the property.
(4)
Clause 7 of the lease agreement provides that:
‘
No
alterations, additions or improvements shall be made to the premises
without the prior written approval of the Municipality...’.
(5)
In the absence of such prior approval being obtained from the
applicant in writing, the
respondent was and is barred from making
alterations, additions or improvements to the property.
(6)
The respondent therefore could not undertake any renovations to the
property as the applicant
had not authorised the same. In the
event that the respondent did conduct the renovations to the property
in violation of
clause 7 of the lease agreement then his actions are
a breach of the said lease agreement as is set out in clause 17 of
the lease
agreement.
(7)
Accordingly, the respondent is precluded from claiming compensation
for any alteration which
he may have done to the property and which
alteration was never sanctioned by the applicant.
Respondent’s
submissions
[8]
The respondent on the other hand submitted that the house was not
habitable at the time, he had to do the renovations.
These were
done with the permission of the officials of the applicant.
[9]
He submitted that he has to be reimbursed of the amount of
R200 000.00 he spent on renovations of the property to make
it
habitable.
[10]
He submitted that the provisions of s 4(7) of PIE are applicable to
him and that it is not just and equitable to order his
eviction from
the property. He submitted that he is now old and stays in the
property with his son, his wife having passed
away.
[11]
He further submitted that the applicant should not be granted an
order for eviction as prayed.
[12]
The respondent has to show that there exists a legal basis why he
should not be evicted from the property of the applicant.
[13]
Applicant’s ownership of the property has not been disputed by
the respondent. Respondent has not disputed that
he was
notified that he should vacate it the property.
[14]
The applicant has to establish on a balance of probabilities that it
is the owner of the property.
[1]
In this regard, I have no hesitation to find that it has done so.
[15]
It is important to bear in mind that parties relying on the
provisions of PIE to resist an eviction bear an evidential burden
to
disclose circumstances relevant to the eviction order and must not
set out the grounds on which they rely “badly, vaguely
or
laconically”.
[2]
[16]
The respondent’s answering affidavit discloses no defence at
all save for the bold statements that it should not be evicted
from
the property. The respondent has not shown or alleged any basis
legal or otherwise which entitles him and his family
to remain on the
property.
[17]
The SCA in
National
Director of Prosecutions v Zuma
[3]
stated:
“
Motion
proceedings unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
disputes because they are not designed to determine
probabilities.”
[18]
It is well established under the
Plascon
Evans
[4]
rule that where in motion proceedings disputes of fact arise on the
affidavits, 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 facts alleged by the latter
justify such
order.
[19]
In
Zuma
(supra),
the
court went on to state that the position may be different if the
respondent’s version consist of bald or un-creditworthy
denials, raises fictitious disputes of fact, is palpably implausible
or far-fetched or so clearly untenable that the court is justified
in
rejecting them merely on the papers.
[5]
The
Improvement Lien
[20]
In regard to the improvement lien, a lien cannot exist without a
cause of action underpinning it. A lien is accessory
to the
cause of action.
[6]
A
successful claim to an improvement lien requires the possessor to
show:
[7]
(i)
the possessor of the property is bona fide;
(ii)
the improvements made were necessary or useful;
(iii)
the improvements have enhanced the value of the property, i.e. the
owner was enriched
iniusta
;
(iv)
the actual amount of expenses and the extent of the enrichment
because the lien only covers
the lesser of the amounts;
[8]
[21]
It is trite that for expenditure which were neither useful nor
necessary the respondent will not enjoy a right of retention
unless
the expenses were incurred in terms of an agreement.
[9]
[22]
In the instant matter, the respondent effected the alleged
improvements without any agreement or prior permission from the
applicant. This was also contrary to clause 7 of the lease
agreement prohibiting the making of improvements without the prior
approval of the applicant.
[23]
The respondent in this matter has not provided how he arrived at an
amount of R200 000.00 and has not provided any document
in
support thereof. He has failed to deal with the extent of the
applicant’s alleged enrichment or his quantified actual
expenses.
[24]
For the respondent to be successful with his purported improvement
lien, he must be in lawful possession of the object i.e.
property in
casu
.
It is the applicant’s case that the respondent is in unlawful
occupation of the property
[10]
. In
casu
,
I have already found that the respondent is in unlawful occupation of
the property.
[25]
In my view, the respondent has failed to satisfy the requisites for
an improvement lien as set out above. Accordingly,
he is not
entitled to any payment for such improvements.
[26]
I agree with the applicant’s submissions in opposition to the
respondent’s ground of apposition.
[27]
In the light of the above, I am satisfied that the respondent’s
occupation in the said premises is unlawful.
Just
and Equitable to Evict
[28]
It is also evident from the papers that the respondent has occupied
the said premises for more than six months as at the time
when the
proceedings were initiated.
[29]
It is therefore clear that s 4(7) of PIE is applicable.
[30]
Accordingly, it is clear that this application is to be determined
under
s
4(7) of PIE.
[31]
This sub-section provides:
“
(7)
If an unlawful occupier has occupied the land in question for more
than 6 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,
disable persons and households headed per women.”
[32]
This subsection makes it clear that a court may grant an order for
eviction if it is just and equitable to do so.
[33]
In determining whether it is just and equitable to evict, PIE has set
up a two-fold enquiry. The court must first determine
whether
the person in respect of whom the eviction order is sought is an
unlawful occupier. If so, then secondly, to decide
whether
after considering all relevant facts and circumstances, it is just
and equitable to grant such an order.
[11]
[34]
In determining what is just and equitable, the court has to take into
consideration all relevant circumstances in the exercise
of its
discretion, including, but not limited to those circumstances
described in s 4(7).
[35]
In determining whether it is just and equitable in terms s 4(7) of
PIE to evict the respondent, the following dictum in
Ndlovu
v Ngcobo; Bekker and Another v Jika
[12]
is
important
;
‘
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 be negative and advance facts not
known to him and not an
issue between the parties. More than the ultimate onus will be
on the owner or occupier, we need
not now decide.’
[36]
This dictum was also cited with approval by Swain J in
Jackpersad
N.O. & Others v Mitha and Others.
[13]
[37]
There was therefore a duty upon the respondent to place before court
circumstances relevant to the exercise of the discretion
the court is
vest with in terms of s4(7) of PIE to decide whether it is just an
equitable that the respondent be evicted after
considering all the
relevant facts set out in the subsection.
[38]
It is trite that the court must have regard to the interest and
circumstances of the occupier and pay due regard to the broader
considerations of fairness and other constitutional values, so as to
produce a just result. Elements of grace and compassion
must be
infused into the formal structures of the law. The competing
interest of the applicant and the respondent must be
balanced in a
principled way and promote constitutional regime of a caring society
and good neighbourliness and shared consent,
per Sachs J in
Port
Elizabeth Municipality v Various Occupiers
[14]
.
[39]
It is not in dispute that the property in question is not a low
income housing in terms of the applicant’s housing policy.
Furthermore, when the house was offered for sale, the respondent
himself offered to pay R650 000,00 for the property in 2009
and,
R501 000.00 in 2012. According to the applicant, the
respondent did not qualify for low income housing.
[40]
The applicant correctly pointed out that the respondent can easily
secure alternative accommodation either rental or ownership.
[41]
Furthermore, although the respondent is now a pensioner, he resides
in the same house with his adult son.
[42]
In dealing with s 4(7) of PIE, our courts have had the following to
say:
1.
In
Port
Elizabeth Municipality v Various Occupiers
[15]
the Court held that the Constitutional Court had occasion to
consider PIE:
‘
Thus,
PIE expressly requires the Court to infuse elements of grace and
compassion into the forma structures of the law. It
is called
upon to balance competing interests in a principled way and to
promote the constitutional vision of a caring society
based on good
neighbourliness and shared concern…’
2.
In Wolmald N.O. & Others v Kambule
[16]
the
Supreme Court of Appeal held:
‘
It
must be borne in mind that the effect of PIE is not to expropriate
the landowner and that it cannot be used to expropriate someone
indirectly. The landowner retains the protection against
arbitrary deprivation of property under s 25 of the Bill of Rights.
PIE serves merely 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…’
2.
In
Transnet
Ltd
v Nyawuza & Others
[17]
dealing with the provisions of s 4(7) of PIE in so far as the
availability of alternative accommodation is concerned held as
follows:
‘
This
is indeed a fact which I am obliged to consider, but I do not read
into s 4(7) an overriding requirement that alternative land
must be
made available as a prerequisite before a Court may grant an
ejectment order. As stated, the constitutional duty
on the
municipality to provide housing and the respondents’ right to
housing is not a absolute right or duty. Further,
there is no
such constitutional duty on a private landowner whose property has
been invaded by squatters, or any other duty to
provide the unlawful
occupiers with alternative housing before it becomes entitled to an
eviction order. The absence of alternative
accommodation is
simply a consideration (albeit an important consideration) which a
Court is obliged to take into account in considering
the grant or a
refusal of an eviction order.’
[43]
The respondent in this matter has not placed before this court any
special circumstances why he should remain in occupation
of the said
property other than one’s referred to above.
[44]
Having considered all the facts of this matter, I am satisfied that
there is no legal basis for the respondent to remain on
the property
as he continues to occupy it unlawfully.
[45]
In my view, it is therefore just and equitable that an order should
be granted evicting the respondent from the said premises.
[46]
The respondent failed to disclose sufficient facts to persuade the
Court that his interest ought to be upheld in preference
to that of
the applicant. The respondent has not alleged that he has
searched for alternative accommodation and was unable
to find any.
He has not claimed that alternative accommodation is unavailable
either.
[47]
The next consideration is to determine a just and equitable date on
which the respondent must vacate the property; and , if
he does not
do so, the date on which the proposed eviction order should be
carried out (s 4(8)(a) and (b)).
[48]
In this regard, evidence has established that the said property has
already been sold to Mr Thaver and the unlawful occupation
by the
respondent has delayed the transfer to Mr Thaver. At the same
time, the respondent must also be given sufficient time
to find
alternative accommodation. The court has taken into consideration
that the respondent has been in unlawful occupation since
the date he
was given a letter to vacate the said premises. Accordingly, a
period of three months from the date of the order,
would be just and
equitable period for him to vacate the property.
[49]
On the issue of costs, there is no reason why the costs should not
follow the result in this matter.
[50]
Taking all the aforesaid considerations into account, including the
requirements of s 4(8)(a) and (b) of PIE, I make the following
order:
1.
That the respondent and all those persons
claiming occupation through or in conjunction with him of the
immovable property, situated
at [......], Redhill, kwaZulu-Natal, are
directed to vacate the property.
2.
That the respondent and all persons
claiming occupation through him are required to comply with paragraph
1 hereof by 30 November
2015.
3.
In the event of respondent, and all other
persons occupying through or under him, failing to comply with the
directions in terms
of paragraph 2 of this order, the sheriff or his
deputy is hereby authorised and directed to take all steps and do all
such things
as may be necessary to eject the respondent and all such
persons from the premises on 2 December 2015.
4.
The respondent is ordered to pay the
applicant’s costs in respect of this application.
____________
SISHI
J
APPEARANCES
Date
of Hearing
: 05 May
2015
Date
of Judgment
:
25
August 2015
Applicant’s
Counsel
:
BHAGWANDEEN
Instructed
by
:
GCOLOTELA AND PETER INC.
294/296
MATHEWS MEYIWA STREET
MORNINGSIDE
DURBAN
Ref:
Mr Peter/vp/ETH148
Tel:
(031) 312 0036
Respondent’s
Counsel :
In person
[1]
Chetty
v Naidoo
1974
(3) All SA 304
SA;
City
of JHB v Changing Tides 74
2012 (6) SA 294
(SCA) at 314 B-E.
[2]
Troskie
and Another v Liquidator of RSB Construction CC
(71322/2010)
[2015] ZAGPPHC 321 (8 May 2015) at para70.
[3]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A).
[5]
Para[26].
[6]
Singh
v Santam Insurance Ltd
1997(1)
SA 291 (A) at 297 E.
[7]
Heckroodt
N.O. v Gamiet
1959
(4) SA 244
(T) at 246 D.
[8]
Odendaal
v Van Oudshoorn
1968
(3) SA 433(T)
;
Standared
Back Financial Services Ltd v Taylam (Pt) Ltd
1979 (2) SA 383
(C).
[9]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993
(1) SA 77
(AD) at 85 D
[10]
Roux
en andere v Van Rensburg NO
[1996] ZASCA 54
;
1996
(4) SA 271
(SCA)
[11]
Resnick
v Government of RSA and Another
2014
(2) SA 337
(WCC) at 339 B-C.
[12]
2003
(1) SA 113
SCA;
(2002) (4) All SA 384
at para 19;
[13]
2008
(4) SA 522
(D) at 528 H to J
[14]
2005(1)
SA 27(C) paras 31, 36 and 37.
[15]
2005
(1) 217 at 237 E to F
[16]
2006
(3) SA 562
at 569 F and G
[17]
2006
(5) SA 100
(D) Alkema AJ at 112 C to D