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[2013] ZAKZDHC 22
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Amangwe Village and Another v Mthembu and Others (1168/2012) [2013] ZAKZDHC 22 (10 April 2013)
15
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. 1168/2012
In
the matter between:
AMANGWE
VILLAGE (Project of the Zululand Chamberof Business Foundation
RegistrationNumber 1995/09342/08)
.....................................
FIRST APPLICANT
MONDI
LIMITED
...............................................................
SECOND
APPLICANT
and
QONDILE
J MTHEMBU
....................................................
FIRST
RESPONDENT
JABULANI
MANTENGU
...............................................
SECOND
RESPONDENT
NICHOLAS
G SIBIYA
.......................................................
THIRD
RESPONDENT
RAPHIK
BIYELA
...........................................................
FOURTH
RESPONDENT
ELPHAS
N BUTHELEZI
....................................................
FIFTH
RESPONDENT
SIYABONGA
P MDIMA
.....................................................
SIXTH
RESPONDENT
GIRLIE
L MTHEMBU
..................................................
SEVENTH
RESPONDENT
MBONI
T MABUYAKHULU
..............................................
EIGHT
RESPONDENT
MANDLA
MENTENGU
.....................................................
NINTH
RESPONDENT
BONGANI
T NXUMALO
..................................................
TENTH
RESPONDENT
ZODWA
P M SIBISI
..................................................
ELEVENTH
RESPONDENT
THEMBI
MNHWAMBE
...............................................
TWELFTH
RESPONDENT
SIHLESENKOSI
P ZULU
......................................
THIRTEENTH RESPONDENT
J
U D G M E N T
Date
Delivered
:
10 April 2013
_____________________________________________________________
S
R MULLINS, A J:
[1]
This is an application in which the applicants seek orders declaring
that lease agreements between the first applicant and individual
respondents relating to houses in the Amangwe Village in Kwambomambi
are cancelled, together with orders for their ejectment. Costs
are
sought in respect of any respondents who oppose the application.
[2]
The “Amangwe Village” is a cluster of buildings located
in Kwambonambi, KwaZulu-Natal and owned by the second applicant,
Mondi Limited. The buildings were previously usedto house employees
of Mondi Limited, but were subsequently leased to the first
applicant, the Zululand Chamber of Business Foundation, in about 2002
or 2003.
[3]
The latter commenced with the “Amangwe Village Project”,
upgrading and using certain of the buildings as an HIV/Aids
Clinic,
for the housing of orphans and vulnerable children, as administrative
offices and as a bakery, intended to both generate
income and provide
for skills transfer.Certain of the dwellings were improved and used
for accommodation.
[4]
The remainingdwellings (33 in all, each consisting of four separate
bedrooms with communal kitchen and ablution facilities)
were leased
to private individuals. The objective, apart from providing housing
to people in need, was apparently to generate income
from rental to
fund the other activities of the project.
[5]
For the most part, identical written lease agreements were concluded.
The fixed term of the lease agreements at issue in this
case all
expired at the end of February 2011. In terms of clause 2.2, it was
expressly provided that, should the lessee remain
on the premises
with the express or tacit consent of the lessor, the parties would be
“…
deemed
to have entered into a periodic tenancy agreement on the same terms
and conditions as specified in this Lease, except that
at least 1
(ONE) calendar month written notice by either party to the other must
be given.”
[6]
The letting of the dwellings did not generate much income. The
monthly rental was fixed at R100.00 and, despite provision for
annual
escalation, none was applied. According to the first applicant’s
records, those lessees who made payment at all did
so irregularly and
the first applicant took no steps to enforce payment.
[7]
Preparatory to a "rezoning" and transfer of the property
from the second applicant to the first applicant, the theMfolozi
Municipality was requested to and did inspect the buildings within
the Amangwe Village. Those inspections were apparently carried
out by
both the Director: Technical Services and by the building inspector.
[8]
The building inspector, a Mr Anton Deyzel, reported on his inspection
via email on 01 April 2011.In that email he records the
following:
"
As
requested I did my inspection at Amangwe Village and this is my
findings
.
The hospital and houses 01 – 19
is in good condition there is no structural damage.
I strongly recommend that the
following houses be condemned.
22 – Foundation is sagging
causing the walls to crumble which makes the structure to be unsafe.
23 – Foundation is sagging
causing the walls to crumble.
25 – Foundation is sagging
causing walls to crack therefore not safe.
30 – Walls badly cracked due to
poor foundation.
44 and 45 – Foundation sagging
causing structural damage to walls. I also noticed that the roofs are
not safe due to incline
and rafters that‘s rotten.
The rest of the houses has no serious
structural damage, however I strongly recommend that six monthly
inspections should be done
to monitor the structures and roofs.”
[9]
Concerned at Mr Deyzel’s conclusion that the structures were
unsafe, the applicants resolved that the identified houses
should be
demolished. The applicant addressed written notice to the various
occupants of houses 22, 23, 25, 30, 44 and 45, dated
6 April 2011 and
reading as follows (in both English and isiZulu):
"
We
hereby inform you that the building inspector and the engineer of
Mfolozi Municipality have condemned the house and it will be
demolished on 06 May 2011.
You are hereby given one month’snotice
as from the date on the letter to find alternative accommodation
before
06 May 2011
.
The house will be demolished on 06 May 2011 and you need to ensure
that all your furniture and other belongings are removed from
the
house by 05 May 2011.No extension of time will be allowed.”
[10]
The letters were delivered to the various respondents during the
course of that day and the next three days (6-9 April 2011).
Although
each letter reflected the house occupied by the particular lessee
below his or her name, the heading to the letter read
“RE:
NOTICE TO DEMOLISH HOUSE 22”
[11]
A subsequent notice, dated 28 April 2011 (in isiZulu only) was
delivered during the first few days of May. This reminder did
not
make reference to house 22, but only to the houses occupied by the
relevant lessee. Following the delivery of these reminders,
a meeting
was held at the Amangwe Village on 04 May 2011. According to the
minutes of that meeting, Mr Deyzel (the building inspector
of the
Mfolozi municipality) reiteratedthat the houses needed to be
demolished and also recorded that an assessment had previously
been
done by the Director of Technical Services who had come to the same
conclusion.
1
[12]
At the meeting it was resolved by the representatives of the first
applicant that a final extension to 13 May would be afforded
to the
occupants of the houses scheduled for demolition.
[13]
The residents of house 44 and 45 vacated those buildings and they
were demolished on 13 May 2011.
[14]
Notwithstanding further discussion, the respondents declined to
vacate the dwellings occupied by them, hence the application
for
their ejectment which was ultimately commenced in February 2012,
coupled with an application for directives regarding notice
in terms
of section 4(2) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act No 19 of 1998 (“the
PIE Act”).
[15]
In response to the notice of motion and the PIE notice, the Empangeni
Justice Centre delivered notice of intention to oppose
on behalf of
the second, seventh, eighth, eleventh, twelfth and thirteenth
respondents. In due course answering affidavits of thesecond,
third,
seventh, eighth, twelfth and thirteenth respondents were delivered.
2
[16]
Apart from a number of formal issues relating to the existence of the
first applicant (cited as a “project of the Zululand
Chamber of
Business Foundation”) and the authority of the deponent to the
founding affidavit, the respondents resist the
application on the
following bases:
(a)
The respondents dispute that the buildings in question are
structurally unsound or unsafe. They further contend that there is
no
admissible evidence to that effect since no affidavit from Mr Deyzel
was delivered in support of the application and, in any
event:
(i)
there is no evidence that Mr Deyzel has the particular expertise
which would entitle him to express what is an expert opinion;
and
(ii)
correspondence from the municipality is equivocal, suggesting that
the first applicant obtain the expert advice of a structural
engineer
to provide guidance on the subject; and
(b)
The respondents further deny that there has been any valid
termination of the periodic leases under which they occupy the
houses.
They deny that the notices calling upon them to vacate the
dwellings operated to validly terminate the leases, so that there is
no legal basis for their eviction.
[15]
In argument, the respondents’ representative furthercontended
that:
(a)
there has not been proper compliance with Section 4(2) PIE because
the notice should have been given after all of the affidavits
had
been filed and specifically with regard to the date of the hearing of
the argument on 12 March 2013; and
(b)
the Court should, in any event, conclude that it is not, in all of
the circumstances, just and equitable that the respondents
be
evicted. The Court should further exercise its discretion to require
that the Mfolozi Municipality be joined in the preceding
and be
directed to provide alternative accommodation for the relevant
respondents before they are ordered to vacate the dwellings
in
question.
[16]
I deal with these in turn.
Citation
of the first applicant and authority to bring the proceedings
[17]
It would undoubtedly have been more appropriate to identify the first
applicant as the Zululand Chamber of Business Foundation
(the Section
21 company) rather than as a named “project” thereof. It
is, however, clear that the first applicant is
the “Section 21”
company and the contention that the first applicant does not exist is
without substance.
[18]
There was no challenge to the authority of the attorneys bringing the
application on behalf of the applicants. In those circumstances,
intention that the application is an authorised is misplaced. See
ANC
and Umvoti Council v Umvoti Municipalit
y
2010 (3) SA 31
(KZP).
Cancellation
of the periodic leases
[19]
the position, it seems to me, is that the applicants are entitled to
an order for the ejectment of the respondents only if
they can
demonstrate on the papers that the respondents have no continued
legal right to remain in occupation. That, in turn, entails
the
applicants proving that the respondents’ leases have been
validly cancelled or that there is some other basis upon which
their
continued occupation of the dwellings in question is unlawful.
[20]
It is common cause that each of the respondents was, at least until
April 2011, a lessee in terms of a continuing periodic
lease either
by virtue of clause 2.2 of the standard lease
3
or because there existed a tacit monthly lease on the same terms. The
first applicant was accordingly entitled to bring the leases
to an
end, provided that a valid notice terminating the lease was given to
each of the respondents.
[21]
The applicants allege in the founding affidavit of Ms Sternberg that
the respondents are in unlawful occupation of the houses
because
their leases have been terminated. The danger allegedly posed by the
structures is given as the reason for the cancellation
and for the
urgency in securing vacant possession.
[22]
The notices dated 6 April 2011 addressed to the respondents recorded
that the houses had been “condemned” by the
building
inspector and engineer of the Mfolozi Municipality and that
demolition was scheduled for 6 May 2011. The notices did not
purport
to be notices of termination of the leases in terms of clause 2.2 of
the standard lease. Indeed, there was no express mention
of the
termination of the leases, although the notion that the leases would
come to an end is necessarily implicit in notice that
the buildings
were to be demolished.
[23]
Clause 2.2 of the standard lease requires “at least one
calendar month written notice” for a valid cancellation
of the
lease based purely on notice (i.e. without the need to provide any
particular justification. Reference to a “calendar
month”,
seems to me to be reference to a complete calendar month, ending on
the last day of a calendar month. Clause 2.2
consequently does not
envisage notice running from a day in one month to the corresponding
day in the following or a subsequent
month. Since the rental period
was monthly (with payment to be made on or before the first day of
every month) even without regard
to clause 2.2, a tacit relocation of
the lease would require notice of at least one calendar month ending
on the last day of a
calendar month. The authorities to this effect
are usefully summarised in AJ Kerr
The
Law of Sale and Lease
(3
rd
Edition)
at pages 488-489.
4
[24]
The notices dated 6 April 2011, even if actually delivered on that
date (and in most cases they were not) could consequently
not operate
as effective notices of termination of the periodic monthly leases at
the will of the lessor.
[25]
There are other provisions of the standard lease which provided for a
right of cancellation. I refer, by way of example, to
clauses 2.3 and
2.4 and to the provisions of clauses 9 and 17. None of these,
however, seem to me to provide a basis for the conclusion
that there
has been a valid termination of the periodic leases in question.
[26]
The particular point that any notice to terminate the leases of the
respondents was required to be a calendar months’
notice,
ending at the end of the particular calendar month, was not
specifically raised in the answering affidavits. The respondents
did,
however, expressly challenge the notion that the notices were
“notices validly terminating any lease agreements between
the
applicant and any of the respondents” (as for example in
paragraph 28 of the second respondent’s answering affidavit).
[27]
When the issue regarding the validity of the notices to effect a
cancellation in terms of the lease was raised in argument,
I invited
the representatives of the parties to deliver supplementary written
argument. Ms Olsen, who represented the applicants
accepted that a
“calendar months’ notice” had not been given and
they have consequently not been a valid notice
of cancellation in
terms of the lease agreements. She submitted, however, that the
respondents’ failure to have raised the
issue specifically
amounted to a waiver of the right to do so. I cannot agree. The valid
termination of the leases was always in
dispute.
The
existence of a right to summarily cancel the leases
[28]
I assume, in favour of the applicants and without deciding the
matter, that the first applicant would be entitled to summarily
cancel the leases or to secure the end of the respondents from the
buildings if it could be shown that the buildings had in fact
been
“condemned” in the sense that they could no longer be
legally occupied or if it was demonstrated that the buildings
were
structurally unsound and posed an immediate threat to the occupants
thereof. The question then is whether the applicants have
produced
admissible and satisfactory evidence to that effect.
[29]
The applicants were clearly concerned at the views expressed in the
e-mail report of Mr Deyzel. That much is clear. There is
no
suggestion that the applicants’ endeavour to secure vacant
possession of the houses is or was motivated by any ulterior
motive.
[30]
The applicants relied on the opinion expressed in the e-mail report
of the “building inspector” Mr Deyzel, in which
he
“strongly recommends” that the houses in question be
“condemned” and describes a number of the houses
as
“unsafe”.
[31]
The founding affidavit refers to a letter received from the
municipality dated 17 May 2011 which it is said again confirmed
the
building inspector’s view that the houses are unsafe and must
be demolished. The letter dated 17 May 2011, however, does
not in
fact do so. The letter appears rather to distance the local authority
from any firm conclusion that the identified buildings
require
demolition. It records that “
movement
of portions of the foundations under houses 22, 23, 25, 30, 44 and 45
were noted, being the cause of crumbling and/or cracking
of the
walls
”
,
refers to the need to repair or replace roof trusses in houses 44 and
45 “
as
part of a maintenance plan
”
(which
at least superficially is not consistent with the notion that those
houses should necessarily be condemned and demolished)
and recommends
“
the
appointment of a structural engineer to certify the individual
buildings as structurally sound or not, as and when the management
body anticipates demolishing of the structures
”
.
Finally, it is recorded that “
It
should be noted that the municipality in its capacity as regulatory
authority, has not issued any building control notices to
the owner
of these properties
.”
[32]
The founding affidavit records that the costs associated with the
employment of a structural engineer were considered prohibitive
and
that the first applicant accordingly “
relies
on the opinion of the Mfolozi Municipality building inspector
”
.
[33]
The answering affidavits raised the fact that, in the absence of an
affidavit from Mr Deyzel (and evidence of his qualification
to
express the opinion in question) there was in fact no admissible
evidence at all to support the proposition that the houses
were
unsafe and required demolition. In response, the applicants
reiterated that the leases had been cancelled on notice. In addition,
the applicants:
Recorded
that Mr Deyzel (i) is the municipal building inspector and is
consequently qualified to make the findings expressed in
his e-mail;
and (ii) had advised that he cannot provide an affidavit in support
of the application “
because he is of the opinion that the
municipality cannot condemn houses on farmland
.”; and
(b)
Produced a number of photographs of the buildings in question,
showing the existence of significant cracks, both vertical and
horizontal, in the walls, but unsupported by any expert explanation.
[34]
To my unqualified eye, the photographs do appear in some instances to
show significant movement of the foundations and to support
the
notion that the buildings are unsafe.
[35]
It seems to me, however, that the applicants have not placed
admissible evidence before the court as would justify the conclusion
that the buildings are, objectively, so entirely unsafe that the
leases may be regarded as terminated owing to supervening
impossibility
of performance.
[36]
It follows that the application cannot succeed. That being the case,
there is no need for me to deal with the question as to
whether there
has been compliance with the requirements for the giving of notice in
terms of section 4(2) of PIE. Neither am I
required to deal with the
question as to whether the municipality should be joined as a
respondent.
[37]
In the result, the application must be dismissed. None of the
respondents have sought an order for costs, and that is appropriate,
given that the first applicant has nothing other than the
respondents’ best interests at heart. The respondents have been
permitted to reside in houses forming part of the Amangwe Village
without making payment of rental for a considerable period of
time.
[38]
The first applicant is fully within its rights to give one calendar
months’ notice of termination of the respondents’
leases
and, having so cancelled the leases, to obtain their ejectment from
the buildings so that they may be demolished.
[39]
In the result, the only order which I make is an order that the
application is dismissed.
__________________________
S
R MULLINS A. J.
APPEARANCES:
APPLICANTS
COUNSEL: Ms Olsen, instructed by Shepstone & Wylie, Umhlanga
Rocks, Durban.
RESPONDENTS
COUNSEL: Ms T Gopal, instructed by Durban Justice Centre, Durban.
Date
of hearing: 11 March 2013.
Date
of judgment delivered: 10 April 2013.
1
There
is some reference in the minutes to one "AF" recording
that the issue of the demolition of certain of the houses
had been
raised before. AF is noted to have recorded that inspections had
been done 2 - 3 years before and that the residents
had been advised
at that time that their houses were dangerous and required
demolition - but this is not dealt with in the affidavits.
2
The
3rd respondent accordingly appears to have replaced the 11th
respondent in opposing the relief sought.
3
Quoted
in paragraph [5] above
4
Inter
alia:
Tiopazi v Bulawayo Municipality
1923 AD 320
;
Moyce v
Estate Taylor
1948 (3) SA 822
(A) at 830.