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[2013] ZAKZDHC 4
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SOHCO Property Investments (Company Incorporated Under Section 21) v Ramdass and Others (14264/10) [2013] ZAKZDHC 4 (15 January 2013)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
Case No: 14264/10
In the matter between:
SOHCO PROPERTY INVESTMENTS (COMPANY
INCORPORATED UNDER SECTION 21)
(REGISTRATION NUMBER: 2002/003444/08)
...........................................
Applicant
and
RAMDASS, N
.....................................................................................
1
st
Respondent
MATLI, DIJENG PATRICIA
...............................................................
2
nd
Respondent
MSIBI, NM
..........................................................................................
3
rd
Respondent
NZUZA, NOLUTHANDO
....................................................................
4
th
Respondent
MEMELA, NOLWAZI PRUDENCE 5
th
Respondent
MNCUBE, THOBILE ZIBUYILE 6
th
Respondent
MAYEKISO, LH 7
th
Respondent
MKHIZE, GUGULETHU PETUNA 8
th
Respondent
NDLOVU, NL 9
th
Respondent
JEKE, BAPHIWE PRETTY 10
th
Respondent
DANSTER, S 11
th
Respondent
BASHE, LYNETTE 12
th
Respondent
LUSHABA, DOREEN XOLISILE 13
th
Respondent
NDEBELE, SICELO 14
th
Respondent
NDLOVU, RONNIE ZWELITHINI 15
th
Respondent
ZIBANE, KHANYISILE PRECIOUS 16
th
Respondent
JOZANA, MAUREEN 17
th
Respondent
KHUMALO, THABO BRIAN 18
th
Respondent
MFUSI, TP 19
th
Respondent
MDLULI, NONHLAKANIPHO BRIGHTNESS 20
th
Respondent
MKHUNGO, NOMUSA 21
st
Respondent
PLAATJIES, HAPPY JUDITH 22
nd
Respondent
SHABALALA, SANDILE STANFORD 23
rd
Respondent
BAMBALELE, PHILA CYPRIAN 24
th
Respondent
DHLAMINI, RB 25
th
Respondent
MAKHETHA, NOBULELO JOYCE 26
th
Respondent
MKHIZE, AF 27
th
Respondent
DLAMINI, XL 28
th
Respondent
MOENTI, PR 29
th
Respondent
GUMEDE, NOMUSA GUGU 30
th
Respondent
MTHEMBU, BUSELAPHI 31
st
Respondent
DLAMINI, NONHLANHLA MAUREEN 32
nd
Respondent
CELE, PJ 33
rd
Respondent
GWALA, PRICILLA AMANDA 34
th
Respondent
HARBER, KEITH EDMOND MARK 35
th
Respondent
BERNARD, PEARL PATRICIA 36
th
Respondent
KHUMALO, SE 37
th
Respondent
MALINGA, NONHLANHLA 38
th
Respondent
NGONGOMA, NTOKOZO FREEDOM 39
th
Respondent
MTHETHWA, HM 40
th
Respondent
PILLAY, D 41
st
Respondent
SIBIYA, LINDOKUHLE 42
nd
Respondent
VEZI, IN 43
rd
Respondent
MNGADI, THOBEKILE 44
th
Respondent
MBANJWA, SIFISO INNOCENT 45
th
Respondent
THAKALI, NTLHOKOA GREGORIA 46
th
Respondent
MAZUBANE, NOZIPHO 47
th
Respondent
DUMA, NOKUBONGA THELMA 48
th
Respondent
MFUNGULA, NONDUMISO MARITIME 49
th
Respondent
KHUMALO, SANDILE SMART 50
th
Respondent
GOVENDER, SAGARAN YOGAN 51
st
Respondent
MPANZA, WINTER-ROSE MAKHOSAZANE 52
nd
Respondent
MFEKA, BARBARA NTOMBENHLE 53
rd
Respondent
DLOMO, BUSEPHI NIKEZIWE 54
th
Respondent
MOFOKENG, PRUDENCE 55
th
Respondent
MATHONSI, VUSUMUZI BHEKISISA 56
th
Respondent
MBHELE, XOLISIWE 57
th
Respondent
KHUMALO, SANELE STANFORD 58
th
Respondent
NXELE, ZANELE 59
th
Respondent
CELE, NJABULO FORTUNE 60
th
Respondent
BUTHELEZI, PERCIVAL MDUDUZI 61
st
Respondent
MVUBU, SV 62
nd
Respondent
MAKHOBA, NONTOBEKO PATIENCE 63
rd
Respondent
MZULWINI, FN 64
th
Respondent
GABELA, TECLA JABULILE 65
th
Respondent
MTHIMKHULU, EUNICE SUSAN 66
th
Respondent
GUMEDE, SANELISIWE LINDA 67
th
Respondent
GUMEDE, EVANGELINE 68
th
Respondent
MLOTSHWA, SONTO PRECIOUS 69
th
Respondent
NOMPUMZA, BULELWA RUTH 70
th
Respondent
NGUBENI, ES 71
st
Respondent
CEBEKHULU, NONTOBEKO SINDISIWE 72
nd
Respondent
GUMEDE, GUGULAMI FORTUNATE 73
rd
Respondent
KHOZA, BALUNGILE NOMUSA 74
th
Respondent
NDLOVU, NANA PENELOPE 75
th
Respondent
SHOBA, SM 76
th
Respondent
MADLALA, SBUSISO MICHAEL 77
th
Respondent
LUTHULI, NOMBUSO PRIDE 78
th
Respondent
MPANZA, JABULANI EUGENE 79
th
Respondent
METEDAD, LEONARD CASSIM 80
th
Respondent
SITHOLE, SV 81
st
Respondent
RAKOMA, SSJ 82
nd
Respondent
MDLADLA, LINDA SUNSHINE 83
rd
Respondent
NAMEYI, THEMBA CHRISTOPHER 84
th
Respondent
DLAMINI, NOMUSA NAOMI 85
th
Respondent
CHILIZA, BONGI CHARLOTTE 86
th
Respondent
MABUZA, XOLANI SYDNEY 87
th
Respondent
SHANGASE, KM 88
th
Respondent
MBOKAZI, PS 89
th
Respondent
MWALE, HLENGIWE 90
th
Respondent
MKHUNGO, SP 91
st
Respondent
DLANGISA, ZC 92
nd
Respondent
MAPHUMULO, TBT 93
rd
Respondent
MASHABANE, ZC 94
th
Respondent
MTOLO, ZR 95
th
Respondent
SITHOLE, NK 96
th
Respondent
MKHUNGO, ET 97
th
Respondent
CONCO, NOMATHAMSANQA VIOLA 98
th
Respondent
GOVENDER, D 99
th
Respondent
NOGAYA, NOVANGELI 100
th
Respondent
NZUZA, NOMFUNDO 101
st
Respondent
ZIQUBU, ZP 102
nd
Respondent
GUMEDE, MP 103
rd
Respondent
HLELA, MICHAEL SIBUSISO 104
th
Respondent
NDOKWENI, CELUMBUSO HENDRY 105
th
Respondent
KHUMALO, WT 106
th
Respondent
ABRAHAMS, ROWEN ISAAC 107
th
Respondent
KHANYILE, SIHAWUKELE DENNIS 108
th
Respondent
MTHEMBU, SLINDILE C 109
th
Respondent
MKHIZE, ZANELE MAUREEN 110
th
Respondent
DLUDLA, NONHLE NTOMBIKHONA 111
th
Respondent
MBOMBO, AYANDA 112
th
Respondent
MHLUNGA, NOMPUMELELO N 113
th
Respondent
DLAMINI, NONDUMISO JANET 114
th
Respondent
CHERRY, CHANELLE CARMEN 115
th
Respondent
MOLELEKWA, PETRUS 116
th
Respondent
MZINDLE, GUGU THABILE 117
th
Respondent
NTSHINGILA, ZANILE NIKEZIWE 118
th
Respondent
KGOMO, KEDIBONE ALBERTINA 119
th
Respondent
NTENTESA, LUMKA 120
th
Respondent
NDLOVU, YVONNE FAITH NOMATHAMSANQA
121
st
Respondent
MABUYAKHULU, VUSI 122
nd
Respondent
KHUZWAYO, SIFISO MORGAN 123
rd
Respondent
BAHADUR, ASHVEER BAHADUR 124
th
Respondent
MSELE, SIFISO MTHOKOZISI 125
th
Respondent
MAHARAJ, CANDICE 126
th
Respondent
NTOMBELA, SCELO PETROS SAKHISENI 127
th
Respondent
SHEZI, REGINAH THULILE 128
th
Respondent
ZULU, ZAMAZULU PAMELA 129
th
Respondent
SITHOLE, NONHLE PRINCESS 130
th
Respondent
ZONDI, RUTH SIBUSISIWE 131
st
Respondent
MTHWANA, REBECCA 132
nd
Respondent
JACA, NONJABULO HAPPINESS 133
rd
Respondent
BHENGU, ZAKIYA 134
th
Respondent
KHUBONI, NTOKOZO 135
th
Respondent
MBUTHU, NTOMBIKAYISE ROTA 136
th
Respondent
XULU, PRESENT PRINCESS 137
th
Respondent
NGIDI, LYNN LONDIWE 138
th
Respondent
NGCECE, SPHINDILE IGNATIA 139
th
Respondent
GONIWE, NOLUTHANDO CAROL 140
th
Respondent
NAIDOO, ANTONY TERENCE 141
st
Respondent
MAJOLA, SLINDILE PORTIA 142
nd
Respondent
MPUNGOSE, NTOMBIKHONA 143
rd
Respondent
ZUMA, THULANI 144
th
Respondent
CHAGI, BULELWA 145
th
Respondent
MSIMANG, PALESA ABEGAIL 146
th
Respondent
MSIBI, BHEKANI ALFRED 147
th
Respondent
ZIKALALA, ELIZABETH DUDUZILE 148
th
Respondent
MTHETHWA, ZANELE ANGELINE 149
th
Respondent
MASONDO, CAROL NOMPUMELELO 150
th
Respondent
MAPUMULO, THOKOZILE PRINCESS 151
st
Respondent
JOLOZA, PRINCESS NONHLANHLA 152
nd
Respondent
TSHONA, THOBEKA 153
rd
Respondent
MBATHA, ZENI ANDRINA 154
th
Respondent
SEBATANA, MPUMELELO GOODWILL 155
th
Respondent
BOOYSEN, ANGELINE BEATRICE 156
th
Respondent
GUMEDE, BONGINHLANHLA MUZIKHONA 157
th
Respondent
KHUBONI, THULELENI NOMPUMELELO RENAY
158
th
Respondent
MSOMI, SAKHILE CYRIL 159
th
Respondent
XULU, CHARLOTTE NOKUKHANYA 160
th
Respondent
NGUNDZE, NOSISA PATRICIA 161
st
Respondent
STEENKAMP, NOLLEN PRALEEN 162
nd
Respondent
SHABALALA, THABISILE 163
rd
Respondent
ZONDI, PRIMROSE LUNGILE 164
th
Respondent
MAZWI, MAVA LEARNT 165
th
Respondent
RADEBE, THABISILE 166
th
Respondent
NGEMA, STANLEY MBUSO 167
th
Respondent
MBAMBO, NOMPUMELELO SYLVINAH 168
th
Respondent
DANIEL, PRISCILLA 169
th
Respondent
CHILIZA, SELBORN NJABULO 170
th
Respondent
CHALA, PICTURE THANDIWE 171
st
Respondent
NDUNGANE, NOMALUNGELO FLORENCE 172
nd
Respondent
MTHEMBU, THULANI RAYMOND 173
rd
Respondent
KHUMALO, PINKY WINNIE MATHOMBI 174
th
Respondent
CHILI, NTOKOZO 175
th
Respondent
MTSHALI, SICELO MONDLI IAN 176
th
Respondent
ZULU, NHLANHLA COLLEN 177
th
Respondent
NKOSI, NELISIWE WITNESS 178
th
Respondent
NCUBE, SHEPERED KHEME 179
th
Respondent
CELE, REBECCA SIBONGILE 180
th
Respondent
MTHEMBU, LINDILE 181
st
Respondent
MNGOMA, THABANI EUGENE 182
nd
Respondent
MLALANDLE, MBUTHOKAZI YVONNE 183
rd
Respondent
KHUZWAYO, SIYABONGA DENNIS 184
th
Respondent
KUMALO, PROSPERITY PHUMULANI 185
th
Respondent
METH, CHRISTIA BERNADETTE 186
th
Respondent
NKOMO, GUGULETHU FORTUNE 187
th
Respondent
MKILE, FIKISWA ETHEL 188
th
Respondent
MKHIZE, STHEMBISO PHAKAMANI 189
th
Respondent
NGUBO, DUMAZILE 190
th
Respondent
NTOMBELA, PHINDI 191
st
Respondent
ESBEND, FRANCINE 192
nd
Respondent
BANDEZI, THOBEKA LUNGELWA 193
rd
Respondent
MTUKUSHE, NTOMBASEKHAYA MOIRA 194
th
Respondent
PILLAY, YANASUNDALA 195
th
Respondent
KHUZWAYO, ZWAKELE MILLECENT 196
th
Respondent
NGWENYA, THABILE THEODORA 197
th
Respondent
JIKI, NY 198
th
Respondent
NCOBELA, NP 199
th
Respondent
MHLONGO, TP 200
th
Respondent
NDLOVU, FM 201
st
Respondent
THUSI, PT 202
nd
Respondent
REX, R 203
rd
Respondent
MSOMI, MNS 204
th
Respondent
NZAMA, LT 205
th
Respondent
MZILA, XP 206
th
Respondent
CHILI, CK 207
th
Respondent
SIBIYA, FORTUNATE VUSUMUZI 208
th
Respondent
NDLOZI, ND 209
th
Respondent
NKOHLA, THOZAMA 210
th
Respondent
NAIDOO, DHAYALAN LEON 211
th
Respondent
RADEBE, A 212
th
Respondent
ZUNGU, VUMISILE CONSTANCE 213
th
Respondent
NXUMALO, N 214
th
Respondent
RADEBE, K 215
th
Respondent
ZONDI, BW 216
th
Respondent
MCHUNU, AYANDA ARETHA 217
th
Respondent
SHEZI, BC 218
th
Respondent
SIBIYA, TR 219
th
Respondent
ZONDI, RT 220
th
Respondent
SOKHULU, SW 221
st
Respondent
SINDANE, CM 222
nd
Respondent
TEMBE, BS 223
rd
Respondent
MANCI, NP 224
th
Respondent
SHANGE, JEANY 225
th
Respondent
MNGUNI, BUSISIWE ANN-MARY 226
th
Respondent
ZONDI, SIPHO BETHWELL 227
th
Respondent
SHANDU, PL 228
th
Respondent
MNOMIYA, YOLISWA 229
th
Respondent
SIBIYA, SIPHO LAWRENCE 230
th
Respondent
MBATHA, HENRY 231
st
Respondent
THE FURTHER UNLAWFUL OCCUPIERS OF
RIVER VIEW 232
nd
Respondent
JUDGMENT
Delivered
on: 15 January 2013
MNGUNI J
Introduction
[1] The applicant seeks an order
evicting the respondents and all persons occupying through them, from
the units in a social housing
complex known as Riverview situated at
Riverview, 50 Bramcote Road, Durban (immovable property). The
respondents oppose the application.
[2] The applicant is a company
registered not for gain in terms of section 21 of the Companies Act
61 of 1973 and is a social housing
provider, providing accommodation
for a family with a combined income of between R2 500 and R7 500. The
immovable property is one
of the social housing complexes which the
applicant established and it comprises of some 330 two bedroom units
development built
as a two to four storey walk up blocks of flats.
The immovable property is situated within the area of jurisdiction of
this Court
and within the jurisdiction of the Ethekwini City Council
(city).
[3] The applicant’s primary
purpose is the development of quality affordable residential property
for low income households.
The funding to construct the development
comes from a number of sources, including the National Department of
Housing which provides
an institutional subsidy to the applicant for
rental units for qualifying beneficiaries in a family who do not earn
more than R7
500 total income per month. The subsidy vests in the
applicant and not in the individual. The applicant has also obtained
bond
finance through the National Housing Finance Corporation, an
organization established to provide finance to organisations such as
the applicant.
[4] One of the salient features of the
scheme is the cross-subsidisation, which means that although the
units are all of the same
size, the rent payable by the tenant varies
from tenant to tenant based on the individual tenant’s income.
Consequently,
a tenant with a monthly family income of R7 500 would
pay the highest rental bracket while another tenant with family
income of
R2 500 would pay the lowest rental bracket despite the fact
that both tenants occupy an identical unit. Through this cross
subsidisation,
the applicant is able to provide decent accommodation
for relatively low income earners.
[5] Because of the unique feature of
the scheme, the prospective tenants for accommodation in the
immovable property are carefully
screened and allocated accommodation
in the scheme on the matrix to ensure that there are sufficient
tenants in various income
groups to provide the cross subsidisation
necessary in order to ensure that the project is economically viable.
The applicant does
not subsidise the rentals and therefore it is
vital for the continued well being of the scheme that all the tenants
pay their rental
in accordance with the matrix.
[6] Each of the respondent occupies
the unit pursuant to a written lease agreement entered into with the
applicant and these lease
agreements are identical to each other save
for the particulars of the respective respondents, the monthly rent
payable and the
identity of the unit let to the respective
respondents. The relevant clauses appear below:
‘
2.2
The Lessee shall pay the rental without any deduction or setoff, in
advance, before or on the first day of the month, commencing
on the
commencement date, by transfer directly to the Lessor’s bank
account.
2.2.1
Any failure by the Lessee to make payment will result in the
termination in terms of Clause 11.
11.
Termination
11.1
The agreement will, subject to Clause 11.7 below, remain in force for
so long as the Lessee meets his/her obligations hereunder
or until
terminated by the Lessee on one (1) calendar month’s written
notice to the Lessor or until the Lessee has breached
this agreement
as set out below;
11.2
The Lessor may cancel the agreement without notice to the Lessee in
the event of the Lessee:
.
Failing to make payment of the full rental on or before the 5
th
day of the month in respect of which the rental is payable in terms
of this Lease Agreement.’
[7] Before turning to the merits of
the matter, it is apposite to deal with four points in
limine
which the respondents raised. I propose to deal with them in the
sequence in which they were raised.
[8] The first point in
limine
concerns the ownership of the immovable property. The respondents
have denied that the applicant owns the immovable property. They
assert that the applicant administers the immovable property and the
units thereon within the scheme known as Riverview for which
it
receives subsidies from the Provincial and or Local Government in
respect of each tenant who qualifies for such subsidy. Consequently,
the applicant lacks the requisite
locus
standi
to
institute these proceedings. In reply to their allegation, the
applicant furnished the title deeds which form annexure STAA
to the
replying affidavit. Annexure STAA confirms that the applicant is the
registered owner of the immovable property. Unless
reliance is placed
on acquisitive prescription, ownership in immovable property can only
be proved by producing the title deeds
or an extract or affidavit
authorised by statute (see
Geemenskaapsont wikkelingsraad v
Williams and Other
(1)
1977 (2) SA 692
(W). This point in
limine
has no merit.
[9] The second point in
limine
is predicated on the notion that the immovable property constitutes a
dwelling place as contemplated by the Prevention of Legal
Eviction
from and Unlawful Occupation of Land Act No. 19 of 1998 (PIE). The
applicant is, therefore, obliged to comply not only
with the form of
PIE but also with the substantive provisions contained in Section
4(7) and (8) of PIE as well as Section 5, which
deals with the issue
of urgency. The applicant has simply served the notice in terms of
Section 4(2) of PIE without having served
the application upon the
respondents. The respondents asserted that the applicant has failed
to place before the Court any evidence
or even a bald allegation to
enable the Court to consider the factors raised in Section 4(7)
and/or (8) of PIE with specific reference
to the requirements of the
rights and needs of the elderly, children, disabled persons and
households headed by woman, and the
availability of alternative land
for accommodation. The applicant’s evidence on the issue of
service is that on 28 January
2011 when the matter came before Court
the respondents were legally represented and it was agreed at Court
by the legal representatives
that, given the voluminous nature of the
application papers, which included numerous annexures, Mr Nkosi would
accept service of
a copy therefore on behalf of all the respondents
represented by him. In accordance with that agreement, service of the
application
papers was duly effected on all the respondents, by
service upon their attorneys of record. In the circumstances I find
it idle
to contend against the applicant’s evidence in this
regard. On the alleged failure of the applicant to satisfy the
requirements
of sections 4(7) and/or (8), I can do no better than to
repeat what was pronounced by Harms JA in
Ndlovu v Ngcobo; Bekker
and Another v Jika
2003 (1) SA 113
SCA at 124E-F when he stated:
‘…
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.’
This point in
limine
has no
substance and it fails.
[10] In the third point in
limine
,
the respondents contend that the applicant instituted these
proceedings as an urgent application. They submitted that in doing
so, the applicant has failed to serve the application on the
respondents, in compliance with the requirements for urgent
applications
in terms of the section 5 (1) of PIE and to address any
of the issues raised in the said subsection. For that reason, so the
argument
goes, the applicant’s founding papers are defective
for want of compliance with the substantive requirements of PIE on
urgent
applications. I have carefully considered the papers and it
does not seem to me that the application was brought on urgent basis.
Accordingly, I find no substance in this point and it fails.
[11] The final point in
limine
concerns the alleged failure of the applicant to join, as the
necessary parties, the member of the Executive Council for Housing,
KwaZulu-Natal and the EThekwini City Council (which the respondents
collectively referred to as the Local Government). The respondents’
contention is premised on the allegation that the applicant receives
subsidies from the Local Government for each individual who
qualifies
for housing within the scheme which the applicant administers on
their behalf, which subsidies should offset or at least
reduce the
rental payable by each of the respondents.
[12] It is to be observed that the
applicant has given evidence on affidavit in detail as to how the
scheme works. A similar point
was raised before Swain J in the matter
between the applicant and Prudence Sindisiwe Hlophe and 95 others,
Case No 11474/10 and
was dismissed. In paragraph 10 Swain J held:
‘
The
fact that the National Department of Housing provides the applicant
with a subsidy does not give it a direct and substantial
interest in
a dispute between the applicant and the respondents, as to the
entitlement of the respondents to remain in occupation
of their
respective homes. There is consequently no merit in the point in
limine
.’
This finding, in my view, applies with
equal force on this point in
limine
and the point in
limine
therefore falls to fail.
[13] As to the merits. The applicant
seeks the eviction of the respondents on the ground that it has
validly cancelled all the lease
agreements entered into with the
respondents because of a failure to pay their respective rentals.
Each of the respondents relies
upon the defences raised in the
answering affidavit deposed to by Njabulo Nxumalo (Nxumalo). The
respondents’ attitude in
this regard is made clear in the
following extracts from Nxumalo’s answering affidavit:
‘
55
I
pause to mention the process by which the Applicant signed up the
various Respondents to leases, namely:
55.1
the lease was prepared in English;
55.2
the Applicant’s representative, Quentin, would read out excepts
from the house rules which appear annexed to the applicant’s
found affidavit;
55.3
the rental amounts were left blank and each tenant signed up was
advised that the subsidy would cover the rental or subsidise
it (i.e
reduce it) to a large extent.
56
I
respectfully refer the above Honourable Court to the various lease
agreements (“the leases”) attached to the Founding
Affidavits and, in particular, to the rental clause which is filled
in by hand, which Respondents contend took place after signature
thereof:’
They allege as a consequence that they
never agreed to pay the rentals specified in their respective leases
and as a consequence
have not paid rentals to the applicant for a
substantial period of time.
[14] The respondents have formed a
committee called Riverview Resident’s Committee which seems to
be a driving force behind
their cause. The applicant’s
description of the respondents’ conduct as a ‘rent
boycott’ was found by Swain
J in a similar matter between the
applicant and Prudence Sindisiwe Hlophe, Case No 11474/10 to be a
correct one. I have also assessed
and considered the circumstances
surrounding the non payment of the rent in this matter and I find
myself in agreement with my
brother’s finding in this regard.
In my view, such conduct amounts to the kind of self help that is
inimical to our legal
order.
[15] The letters of cancellation by
the applicant to the respondents are dated 12 October 2010 and the
applicant alleges that they
were served to the respondents by Brian
Siphesihle Shezi of Ihlokohloko Security Services. This fact is
confirmed by the said Shezi
in his supporting affidavit. Despite the
mountain of evidence from the papers, the respondents deny the breach
of the leases and
consequently deny that the applicant was entitled
to terminate the leases in respect of each of the respondents. I have
considered
this denial and it seems to have no merit. In the result,
I am satisfied that the applicant has established that the
respondents
became unlawful occupiers by no later than 12 October
2010.
[16] Notwithstanding the letters of
cancellation of 12 October 2010, the respondents remain in occupation
of the immovable property
and are in unlawful occupation thereof. On
perusal and consideration of the papers, I am satisfied that the
applicant validly cancelled
the lease agreements and that it has
satisfied the procedural requirements provided for in PIE. The
applicant initiated these proceedings
on 1 December 2010 and
therefore the respondents were unlawful occupiers for a period of
less than six months at the time the present
proceedings were
initiated. For these reasons, I do not agree with Ms De Vos’
contention that the respondents must have been
in unlawful occupation
in excess of six months before these proceedings were launched. I am
satisfied that on the facts of this
case, the additional requirements
provided in section 4(7) of PIE are not applicable.
[17] In instances where the occupation
was originally lawful, the time at which the occupation became
unlawful, has important consequences
in relation to the time within
which steps are taken to evict the unlawful occupier. The period of
occupation is calculated from
the date the occupation becomes
unlawful (
Ndlovu v Ngcobo; Bekker and another v Jika
2003 (1)
SA 113
(SCA) para 17). The PIE distinguishes between unlawful
occupiers who have occupied for less than six months (section 4(6))
and
those who have occupied for more than six months (section 4(7)).
The distinction in these provisions lies in that in terms of section
4(7) of PIE, when the proceedings are initiated, an additional
consideration is whether the 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 household headed by women.
[18] In terms of section 4(6) of PIE
if an unlawful occupier has occupied the land in question for less
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 the rights and needs of the elderly,
children, disabled persons
and households headed by women.
[19] If the requirements of section 4
of the PIE are satisfied and no valid defence to an eviction order
has been raised, the Court
must, in terms of section 4(8) of PIE,
grant an eviction order. In doing so, the Court must, in terms of
section 4(8)(a) of PIE,
determine a just and equitable date on which
the unlawful occupier(s) must vacate the premises. The Court may, as
envisaged in
section 4(12) of PIE, attach reasonable conditions to an
eviction order. In
Ndlovu v Ngcobo; Bekker and Another v Jika
(
supra
) para 19 Harms JA held:
‘
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
respondents’ 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...’
[20] On 25 April 2012 Nxumalo deposed
to a supplementary affidavit in which he contends firstly that the
applicant is not entitled
to an eviction order because it has not
investigated the possibility of mediation to be facilitated by the
City between the respondents
and the applicant. The respondents
allege that they would welcome an opportunity to enter into new
written lease agreements with
the applicant and remain open to the
possibility of settlement with the hope of resolving the matter
through negotiations. Ms De
Vos, relied on
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
para 43 to in
support of this contention.
[21] It is common cause that the
applicant owns three distinct developments in the area of Durban,
namely, Riverview, Port view
and Valley view. The applicant’s
founding affidavit reveals that the occupiers of all three
developments have embarked on
a ‘rent boycott’. The
applicant’s evidence is that the non payment levels on each of
these developments have
reached approximately 75%. In relation to
this immovable property, 86 complainants approached the KwaZulu-Natal
Rental Housing
Tribunal (Tribunal) with a complaint that they had
been made to sign leases that did not stipulate the amount of rental
payable
and the Tribunal considered the matter and found in favour of
the applicant.
[22] Though the respondents concede
that the matter was ventilated before the Tribunal, they contend that
they did not receive a
fair hearing before that Tribunal because (as
they allege) they were not legally represented at that hearing, and
it became clear
to them that they were being prejudice by the absence
of the legal representation.
[23] It is to be observed from the
papers that the respondents were not prepared to pay the rental
amounts as set out in their respective
lease agreements. The
respondents’ stance is evident from the following paragraphs of
Nxumalo’s answering affidavit:
‘
AD
PARA 489
75.
The
Respondents deny this paragraph. As I have stated previously, the
Applicant is disingenuous in attempting to create an impression
that
it is not receiving payment when it is abundantly clear that it is
receiving the subsidies from local government in respect
in respect
of each of the Respondents, which should cover the amount in which it
alleges are outstanding.
76.
The
Respondents deny that they received a fair hearing before the
KwaZulu-Natal Rental Housing Tribunal (“the Tribunal”).
The Respondents were not represented at that hearing before the
Tribunal and it became abundantly clear that the Respondents were
being prejudiced as a result thereof. The Respondents obtained
representation when the Applicant instituted eviction proceedings
in
the Magistrate’s Court.
AD
PARA 490
77.
The
Respondents deny this paragraph. In amplification thereto, the
Respondents have been paying the lower amounts into the trust
account
of its attorneys of record herein, pending the resolution of the
dispute.’
[24] It seems, and the evidence points
to the fact that the respondents have arrogated to themselves the
decision as to when, where
and how to pay the rentals due in terms of
their respective leases. Importantly, they have defied the finding of
the Tribunal and
have embarked on a deliberate strategy of non
payment of the rent in order to force the applicant to reduce same.
Having carefully
considered the respondents’ submission in this
regard, and taking all the relevant circumstances of this matter into
account,
I can find no traces of facts which justify the referral of
the matter for mediation. I am, therefore, satisfied that the path of
travel chosen by the applicant is indeed the correct one.
[25] Secondly, the respondents contend
that if the respondents were to be evicted from the immovable
property, most of them would
be rendered homeless. They submit that
it is obligatory on the Court to require the City to take reasonable
measures to ensure
the progressive realization of their
Constitutional Right to access to adequate housing which includes an
obligation to provide
them with emergency temporary shelter in the
event that they are left without alternative accommodation as a
result of eviction
and whether the Court could provide emergency
temporary shelter to them.
[26] In
casu
, the respondents
have been in occupation of the immovable property for less than six
months, and consequently the Court is not
expressly obliged to
investigate whether the City can reasonably make land available for
the occupiers who might be evicted (section
4 (6) of the PIE). In
Occupiers of Mooiplaats v Golden Thread Ltd and Others
2012
(2) SA 337
at para 16 Yacoob J remarked:
‘
While
this distinction is important, I do not think it is decisive to the
justice-and-equity enquiry. This is because, if a court
has before it
a case in which the land occupation falls short of six months, it is
obliged to consider all the relevant circumstances.
In an enquiry of
this kind a court should determine what the relevant circumstances
are. Close to 200 families would have been
evicted and in all
probability rendered homeless consequent upon the order of the High
Court. In the face of this consequence the
question whether the City
was reasonable capable of providing alternative land or housing was
of crucial importance. And what is
more, the High Court was alive to
the fact that the City did indeed own land which was vacant and which
might be made available
for that purpose. It was impossible for the
High Court to conclude that the eviction was just and equitable
without investigating
this aspect.’
[27] The just and equitable enquiry
calls for the assessment of the competing interests and to balance
out and reconcile them ‘in
as just a manner as possible, taking
account of all of the interests involved and the specific factors
relevant in each particular
case’ (see
Port Elizabeth
Municipality
(
supra
) para 23).
[28] What can be gleaned from the
applicant’s founding affidavit is that most of the respondents
have now been in arrears
for at least the whole of 2010, an organised
‘rent boycott’ having been in place for the best part of
that year and
continues to date. The 4
th
, 12
th
,
19
th
, 20
th
, 21
st
, 31
st
,
38
th
, 39
th
, 44
th
, 48
th
,
55
th
, 56
th
, 59
th
, 60
th
,
80
th
, 92
nd
, 94
th
, 99
th
,
105
th
, 106
th
, 109
th
, 110
th
,
111
th
, 113
th
, 120
th
, 143
rd
,
155
th
, 156
th
, 158
th
, 161
st
,
170
th
, 172
nd
, 206
th
, 207
th
,
208
th
, 212
th
and 216
th
respondents
(collectively referred to as unemployed respondents) have filed PIE
affidavits in which they intimate that they are
now unemployed. The
question, therefore, is whether the unemployed respondents’
factors as contained in their PIE affidavits
should be considered and
measured differently from those of the other respondents. I do not
think so, in my view, all respondents’
factors should be
considered, measured and balanced against the following factors
enumerated in the applicant’s founding
affidavit:
‘
494.1
The Applicant is a Section 21 Company which does not seek to profit
from its social housing development. Its stated objective
is to
provide and affordable quality home in the City in a safe and secure
environment close to shops, clinics and schools.
494.2
The Respondents now owe the Applicant an amount exceeding R5, 461,
952.00 (Five Million Four Hundred and Sixty One Thousand
Nine Hundred
and Fifty Two Rand). Furthermore, the rental boycotts undertaken in
the abovementioned Port View and Valley View complexes
bring the
total due to the Applicant to an amount exceeding R9, 508, 371.00
(Nine Million Five Hundred and Eight Rand Three Hundred
and Seventy
One Rand). It is impossible for the Applicant to bear this kind of
loss. Although the Applicant has issued approximately
500 summonses
out of the Magistrate’s Court for recovery of the arrears and
for eviction of the Respondents, postponements,
rescission
applications and applications to consolidate the Magistrate’s
Court matters have meant that despite spending significant
sums on
legal fees, the Applicant has made almost no progress in its attempts
to recover the massive arrears. The Applicant has
had to curtail
maintenance, security and general service provision at the complex,
now faces a real prospect that it may be unable
to fulfil its
financial obligations and may be forced into liquidation. The
Applicant fears that this may be part of the Respondents’
strategy: if the Applicant is forced into liquidation, there is no
doubt that this will permit them to reside free of charge at
the
property for an extended period if not indefinitely.
494.3
As described above, the Applicant obtained a bond through the NHFC.
The Applicant has been forced into arrears with its obligations
to
the NHFC and I annex hereto as “
ST-708”
a letter
from the NHFC dated the 14
th
July 2010 advising that
unless the arrears are rectified soon, the NHFC may be forced to
institute legal action and foreclosure.
The financial risk to the
KwaZulu-Natal Province if the project fails is R6, 205, 927.00 (Six
Million Two Hundred and Five Thousand
Nine Hundred and Twenty Seven
Rand) and to National Government of R9, 482, 800.00 (Nine Million
Four Hundred and Eighty Two Thousand
Rand Eight Hundred Rand). The
Applicant provides accommodation for low earning families. Its system
of cross-subsidisation means
that it is able to provide quality
accommodation to people who would not otherwise be able to afford it.
No commercial entity would
provide accommodation of such quality to
people with the income levels of some of the Respondents and it would
accordingly be a
travesty if the Applicant was forced into
liquidation and the accommodation units sold to commercially minded
purchasers.’
There is no evidence placed before me
that the circumstances in which the unemployed respondents are living
indicate the likelihood
that at least some of them might be rendered
homeless as a result of their eviction. For that reason, I find that
it is unnecessary
to engage the City in the process before granting
an eviction order.
[29] Mr Phillips, on behalf of the
applicant, submitted that the withholding of rental by the
respondents was a co-ordinated and
well orchestrated strategy, which
was a boycott, not borne of economic hardship or inability to pay
even the minimum which on the
respondents’ version was due. He
submitted further that the rent boycott has left the applicant in a
parlous financial situation.
He continued and submitted that the
action of the respondents has compromised the applicant’s
programme of providing a cross
subsidised housing project for other
deserving persons who would honour their agreements.
[30]
I
am mindful of the fact that the Constitution and PIE require that, in
addition to considering the lawfulness of the occupation,
the court
must have regard to the interest and circumstances of the occupier
and pay due regard to broader considerations of fairness
and other
constitutional values, so as to produce a just and equitable result.
Thus, PIE expressly requires the court to infuse
elements of grace
and compassion into the formal 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.
(see
Port Elizabeth
Municipality
(supra) paras 36 and 37).
[31] During argument, Ms De Vos relied
on
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
2012 (2) BCLR 150
(CC) to advance her
argument that it was not just and equitable to evict the respondents
because that would result in homelessness.
I have considered Ms De
Vos’ submission and in my view,
Blue Moonlight
is
discernable from the present case. In
casu
, the respondents
occupied the immovable property pursuant to the leases concluded with
the applicant after the applicant had carefully
assessed the total
income of each of the family. The PIE affidavits of the respondents,
save of those of the unemployed, demonstrate
clearly that they are
still gainfully employed. None of their affidavits is particularly
informative save only to talk about their
expenses. Having carefully
balanced the competing interests, (as I am required to do) of the
applicant and the respondents, and
bearing in mind the Constitutional
vision as set out in
Port Elizabeth Municipality
(
supra
),
I am driven to conclude that the respondents have failed to disclose
sufficient facts to persuade me that the interests of the
applicant
should yield to those of theirs. I have satisfied myself that it is
just and equitable that an eviction order be granted
against all the
respondents in this matter.
[32] What now remains to be considered
is a just and equitable date (section 4(8) of PIE) on which the
respondents are to vacate
the immovable property. Having regard to
the number of the respondents who will be obliged to seek alternative
accommodation, an
appropriate date by which they should be obliged to
vacate the immovable property, will be 28 February 2013.
In the result the following order
shall issue,
1. The first to the two hundred and
thirty two respondents together with all members of the respondents’
families and any
other person who occupies the immovable property, be
and are hereby directed to vacate the said units by no later than 28
February
2013.
2. In the event that the respondents
do not vacate the immovable property on the date referred to in
paragraph 1 above, the Sheriff
of the Court or his lawfully appointed
Deputy be authorised and directed to evict the respondents from the
property.
3. The respondents are interdicted and
restrained from entering the property at any time after they have
vacated the immovable property,
or been evicted there from by the
Sheriff of the Court or his lawfully appointed Deputy.
4. In the event that the respondents
or any of them contravene the order contained in paragraph 3 above,
the Sheriff of the Court
or his lawfully appointed Deputy is hereby
authorised and directed to remove them from the immovable property as
soon as possible
after their re-occupation thereof.
5. The respondents are directed to pay
the costs of this application.
Appearances:
Date of hearing : 17- 26 April 2012
and
22 August 2012
Date of Judgment : 15 January 2013
Counsel for the applicant : Advocate
D. Phillips
Instructed by : Du Toit Havemann &
Lloyd
Counsel for the respondents : Advocate
I. De Vos
Advocate B.S.M. Bedderson
Instructed
by : S M Ngwane Attorneys