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[2010] ZAFSHC 54
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Dlamini v Lipholo and Another (A166/2009) [2010] ZAFSHC 54 (27 May 2010)
IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Case
No. : A166/2009
In
matter
between:-
KEDIDIMETSE
DLAMINI
Appellant
and
NICODEMUS
LIPHOLO
1
st
Respondent
MOTSHIDISI
K
.
M. LIPHOLO
2
nd
Respondent
HEARD
ON
:
3
MAY 2010
JUDGMENT
BY
:
EBRAHIM
S, J et K.J. MOLOI, J
_____________________________________________________
____
DELIVERED
ON
:
27
MAY 2010
JUDGMENT
K
J MOLOI, J
[1]
This
is an appeal against the judgment of the magistrate, Bloemfontein,
granting an eviction order in favour of the respondents
against the
appellant together with ancilliary relief. The eviction order was
granted under the provisions of the Prevention of
Illegal Eviction
From and Unlawful Occupation of Land Act No. 19 of 1998 (PIE). The
grounds of appeal were several but at the hearing
only the question
of unlawful occupation of the property by the appellant (which issue
was specifically raised by the court) (1.1);
failure by the court
a
quo
to consider the rights of the appellant and other occupants of the
property (1.7) and failure by the court to take all the relevant
circumstances into consideration for purposes of judgment, were
argued.
[2] The
first respondent and the second respondent are married to each other
in community of property. They are joint holders of
a Deed of
Transfer of erf No. 50588 Mangaung township in Bloemfontein. They
applied to the magistrate’s court for an order
evicting the
appellant and all the other people occupying the said property
unlawfully. They alleged that they agreed to the appellant’s
occupation of the property during September 2004 on condition the
appellant paid the municipality water and electricity accounts
as
well as the rates and taxes. The appellant failed to do so. They
consulted an attorney who wrote a letter to the appellant
to vacate
the property as the appellant was in unlawful occupation without
stating on which grounds in the face of the agreement
they referred
to. The said letter did not state whether the agreement was thereby
being cancelled. The appellant did not comply
with the said demand
and hence the application for eviction was launched.
[3] The
appellant acknowledged receipt of the demand but alleged she only
became aware of the respondent’s purported ownership
of the
property on receipt of the demand. She was then 29 years old,
unemployed, was born on the property, grew up there living
with her
family, her father, Israel Dlamini, was the holder of a residential
permit issued by the local authority and has since
passed away in
2004. She continued to live on the property with her children aged 6,
4 and 2 as well as her male friend. She could
not understand how the
respondents got to be registered as owners of the property because
only her late father, as a permit holder,
was entitled to have the
right to the Deed of Transfer, and, herself, as the only child, she
was entitled to have the property
transferred to her in succession.
She suspected fraudulent activity leading to the registration of the
property in favour of the
respondents. The second respondent was her
cousin and could have known her deceased father had no money to
effect the transfer
of the property into his name and consequently
schemed the transfer to herself and her husband. She attached to her
answering affidavit
a copy of the said residential permit dated 29
th
April 1999. She submitted that it would not be in the interests of
justice if she was ordered to vacate the property and it would
be
impractical for her to live in Thaba Nchu where her male friend had
property. Her male friend worked for the municipality of
Bloemfontein in the fire department and her eldest child was
attending a local school in Bloemfontein. She requested the court
a
quo
to give her an opportunity to challenge the transfer of the property
to the respondents and not grant an order of eviction.
[4]
In
their reply the respondents also attached a residential permit for
the same property dated 4
th
March1986 with a date stamp showing 23
rd
March 1997(s
ic
).
The permit still indicated the rightful holder as Israel Dlamini, the
appellant’s father. The respondents further stated
that the
appellant’s contention of fraudulent activity was unfounded as
the municipality sold the property to them on the
12
th
August 1997 as per Deed of Transfer. They contended further that the
appellant’s circumstances did not justify her unlawful
occupation of their property. They also alleged having engaged the
appellant with a view to voluntary evacuation of the property
without
success.
[5]
Based
on the above facts and arguments the magistrate found that as the
respondents attached a copy of the Deed of Transfer to their
founding
affidavit; they were “…t
rue
owners of this property
,
what
the respondents are saying that this registration is defective,
cannot be taken by this court it may fall within the jurisdiction
of
another court but clearly not the magistrate court, as a result I am
satisfied that the respondent is an unlawful occupier of
this
property”
and
made an order of eviction. Though the application was served on the
Mangaung Municipality, no papers were filed nor appearance
made on
its behalf. No further enquiries were made. The appellant and any
other unlawful occupant were ordered to vacate the said
property
on/or before Friday the 26
th
February 2009. The order was made on 29
th
January 2009.
[6]
Before
us Adv Johnson, on behalf of the appellant, argued the magistrate
failed to consider the factors mentioned in section 4 (7)
of PIE
totally before making the order she made. According to that section,
the court may order eviction only if it is of the opinion
that it was
just and equitable to do so and only after considering all the
relevant circumstances including “
whether
land has been made available or can reasonably be made available by a
municipality or other organ of state or another land
owner for the
relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons
and households
headed by woman.”
He argued that since the municipality did not comment or was required
to do so before the order was made; the rights and needs
of the
appellant, a single mother of three children aged 6, 4 and 2 were not
considered at all; the magistrate erred in making
the order. Adv
Johnson further argued that it was not just and equitable for the
magistrate to have ordered the appellant to vacate
the property in a
space of less than a month without taking into consideration all the
relevant factors referred to in section
4(9) of PIE including
“the
period the unlawful occupier and his or her family have resided on
the land in question.”
These factors, it was submitted, were not considered by the
magistrate at all.
[7]
Adv.
Coetzee, for the respondent, on the other hand, argued that the
failure by the municipality to respond to the papers filed
and to
indicate the land where the appellant may be relocated to cannot be
held against the respondents. It was not the respondent’s
duty
to provide the applicant with alternative land for relocation. The
respondents were entitled to their property that was unlawfully
occupied by the applicant. He also submitted that the appellant’s
male friend had property in Thaba Nchu where he and the
appellant and
the appellant’s children could resettle. He argued further that
the fact that Thaba Nchu was far from Bloemfontein
was not good
enough reason for the unlawful occupation of the respondent’s
property by the appellant.
[8] The
stark factors and circumstances that were not considered by the
magistrate before making the determination, firstly that
it was just
and equitable to make an order for eviction of the appellant and,
secondly, to fix the date for the eviction at less
than one month are
the following: the appellant was born on the property and lived there
with her family for twenty nine (29) years;
she was unemployed and
was heading her own family of three; the ages of the children were 6,
4 and 2 and the elder one was attending
a local school in
Bloemfontein; the male friend worked for the fire department in
Bloemfontein and might be required to do duty
at short notice in an
emergency which would be impractical if he (together with the
appellant) lived in Thaba Nchu some 70km away;
whether or not the
appellant, the head of the household still lived together with a male
friend or how long that relationship would
last; the fact that the
appellant alleged that the Deed of Transfer was fraudulently obtained
by the respondents in view of the
fact that both the appellant and
respondents submitted proof that the property was held by the
appellant’s father, Israel
Dlamini, by virtue of a residential
permit issued to him by the local authority, in the case of the
appellant (annexure A to her
answering affidavit), issued on 29
th
April 1999 and in the case of the respondents, dated 4
th
March
1986 with date stamp reflecting 23
rd
March 1997 (
sic
),
(annexure D to respondent’s reply); the fact that according to
the Deed of Transfer payment to the municipality by the
respondents
purported to have been made on 12
th
August 1997 but the transfer itself took place almost two years
later on 21
st
July 1999; the fact that the transfer of property in the black
townships could only be effected to residential permit holders in
the
absence of a legal sale or donation or other legally recognised
causa
;
and why the Magaung municipality would issue a residential permit to
the appellant’s father on 29
th
April 1999 whereas the respondents had paid for the same property
already on 12
th
August 1997, almost two years before.
[9] The
provisions of section 4(7) requiring the court to take into
consideration all the relevant circumstances are peremptory.
It is
not only those circumstances enumerated in the section such as the
rights and needs of the elderly, children, disabled persons,
and
households headed by women, that must be taken into consideration.
This is clear from the wording of the section by stating
that the
abovementioned rights and needs should be included. One of the
relevant factors that cannot be overlooked is the legality
and
validity of the Deed of Transfer especially where it is challenged.
Accepting such a document as legal and valid without further
inquiries may lead to untold injustice especially in this country
where bribery and corruption abound in state institutions and,
in
particular, the municipalities. This is evidenced by the numerous
cases of this nature dealt with in this particular court.
In almost
all the instances the previous holders of the residential permits,
being the only people entitled to obtain a Deed of
Transfer by virtue
of a clearly stated government policy, are deceased and their
children are evicted from the only home they ever
knew all their
lives. It should be remembered that in Black townships the right to
live on a piece of land was ensured by the local
authorities issuing
a residential permit to the people who qualified and could be
withdrawn at the whim of a superintendent of
the township . Only post
1994 it became the government’s policy that the holders of
residential permits convert them into
Deeds of Transfer designed
specifically to give them better protection and security of tenure.
Deeds of Transfer are not Title
Deeds as there was no payment
required for the piece of land occupied. Only a holder could convert
the permit unless he/she alienated
his/her right.
[10]
See
in this regard the provision of
section 16D
of the
Deeds Registries
Act No. 47 of 1937
under the subject Registration of Transfer of
right acquired in terms of or under the Black Administration Act No.
38 of 1927.
The section provides as follows:
“
Despite
the
repeal
of the Black Administration Act, 1927 (Act No. 38 of 1927), by the
Repeal of Black Administration Act and Amendment of certain
Laws Act,
2005 (Act No. 28 of 2005), and despite the other provisions of this
Act and other law, a right originally acquired in
terms of or under
the Black Administration Act, 1927, shall be transferred in
accordance with the legislation which created that
right
”.
T
his
means that if a right was acquired under the Black Administration
Act, 1927, even though that Act had been repealed, the transfer
of
that right shall be effected in accordance with the Black
Administration Act, 1927. In terms of the Black Administration Act,
1927, if the holder of a residential permit (a right) passed on, his
right shall devolve upon his wife and/or dependants. The rules
of the
intestate
succession
would apply. Accordingly the appellant would be entitled to inherit
the rights her deceased father had. This is however
a circumstance
the court should have considered not only because section 4(7) of PIE
required it but also because section 26(3)
the Constitution of the
Republic of South Africa Act No. 108 of 1996 states:
“
No
one may be evicted from their home or have their home demolished
without an order of court made after considering
all
the relevant circumstances.
No
legislation may permit arbitrary evictions”
(my
emphasis).
[11] In
this case the respondents themselves attached as Exhibit D to their
replying affidavit a copy of a residential permit in
favour of Israel
Dlamini, the appellant’s late father. They do not explain how
they got the right to the property except
that they paid for the
transfer to their names at the local authority. How Israel Dlamini,
the only person entitled to obtain a
Deed of Transfer
relating to the said property disposed of his right in favour of the
respondents is not explained. A Deed of transfer, just like
a Title
Deed, is
prima
facie
proof of ownership and the Act (PIE) defines the owner of property as
the registered owner. The phrase registered owner means a
legally
registered owner. Mere production of a Deed of Transfer in
circumstances such as in this matter does not justify the finding
that the respondents are
“true owners of this property”
as
the court
a
quo
found.
The
courts must be careful in making decisions that may lead to injustice
by neglecting to exercise their discretion judiciously,
by making
assumptions and ignoring the real issues to be considered.
[12] Had
the court considered all the above relevant facts it could have gone
so far as to subpoena the relevant officials of the
Mangaung
municipality to appear before it, to explain why on the 29
th
April 1999 the municipality issued a residential permit to Israel
Dlamini for the property itself sold to the respondents on 12
th
August 1997; whether there was a deed of sale concluded between
Israel Dlamini and the respondents in conformity with
section 2
of
the
Alienation of Land Act No. 68 of 1981
or other
causa
to enable the municipality to sell the property to the respondents
and/or when was Israel Dlamini dispossessed of his title to
the
property. This lays stress on the importance of the participation of
the municipality in such proceedings especially where
there are such
question marks over this property. See
Blue
Moonlight Properties v Occupiers of Saratoga Avenue,
[2008] ZAGPHC 275
;
2009
(1) SA 470
paragraph 37 and paragraph 78.1. If the above relevant
factors were taken into consideration, the court
a
quo
should
have found that it was not just and equitable to order the eviction
of the appellant and in a space of less than a month.
The court ought
to have stayed the action and allowed the appellant to launch her
challenge of the validity of the Deed of Transfer
to the High Court.
There would be no prejudice to the respondents as it appears that
they had no desire to occupy the property
or rent it out. They had no
interest in making profit from the property either, since they had
allowed the appellant to stay on
it indefinitely, so long as she paid
the municipality for services rendered and rates and taxes.
[13] This
brings me to the second point that must have been considered by the
court. The onus is on the respondents in an application
for eviction
under the provisions of
section 4
of PIE to prove unlawful occupation
of the property:
FHP
Management (Pty) Ltd v Theron N.D. and Another,
2004(3) SA 392(C) 401H-I quoting from
Ndlovu
v Ngcobo
;
Bekker
and Another v Jika,
2003(1) SA 113 SCA paragraph 19. The respondents alleged an agreement
with the applicant in terms of which she could occupy the
property
indefinitely on condition she paid the municipality water and
electricity charges and the rates and taxes. She failed
to do so and
was in arrears. It was exactly because of this failure to pay that
the respondents sought her eviction from the property.
They also
alleged having negotiated with the appellant to voluntarily vacate
the property which she did not do. They consulted
an attorney who
wrote a demand to the appellant to vacate the property on the grounds
of her failure to pay the municipality as
per agreement. They,
however, never cancelled the agreement, expressly or impliedly.
Clearly the magistrate did not inquire as
to what made the
appellant’s occupation of the said property unlawful during the
currency of the agreement with the respondents.
The appellant denied
the existence of such an agreement and based her right to occupy the
property on her entitlement to inherit
the property from her deceased
father, Israel Dlamini. This issue had not been dealt with as it
appears above when the legality
and the validity of the respondents
Deed of Transfer was discussed.
[14] Before
us it
was
submitted that the principles laid down in the case of
Plascon.
Evans Paints Ltd v Van Reibeeck Paints (Pty) Ltd
1984(3) SA
623 AD 634H-635C
should apply. I do not agree. The two
versions of the appellant’s occupation of the property are too
far apart and the one
cannot complement the other nor can any
inference be drawn from the other. The respondents could not approach
the court for an
eviction order on the basis of unlawful occupation
without having cancelled or asked the court for cancellation of the
agreement
as failure to perform in terms thereof, did not make the
appellant’s occupation unlawful
per
se
.
Other remedies were available to enforce the payment of what was
owing to the municipality, moreover the appellant conceded she
was in
arrears with the payments due to the municipality and had made
arrangements with it.
“Unlawful
occupier”
is defined in PIE as:
“
a
person who occupies land
without
the express or tacit consent
of the owner or person in charge or without any other right in law to
occupy such land (my emphasis)”.
On the
basis of the respondent’s version there was an express cons
ent
given to the appellant to occupy the property. This is despite the
fact that the validity of the Deed of Transfer has not been
determined in the light of the discussion above. On the basis of the
appellant’s version there was another right in law,
namely the
right to inheritance, that made her occupation of the property
lawful. That has, however, not been resolved as the court
a
quo
did not consider all the relevant circumstance as it was expected to
do.
[15] Both
the PIE Act and the Constitution puts emphasis on the process of
eviction being just and equitable in the opinion of the
court. A Deed
of Transfer is
prima
facie
proof of ownership and where its validity is challenged it is the
duty of the court to determine its validity and legality in order
to
make a ruling that is just and equitable. Mere production of the Deed
of Transfer may justify the inference of ownership unless
challenged
and on reasonable grounds. It is important to note that only a
legally valid Deed of Transfer confers ownership to the
property.
Equally it must be proved conclusively that occupation of the
property is unlawful in that it has not been authorised
by the
consent of the owner or by any other right entitling the occupier to
be on the property. Where it is likely the occupier
has a right or
might have a right to occupy the property, the unlawfulness of
his/her occupation shall not have been proved. Both
these aspects
require conclusive proof to entitle the court to order eviction that
is just and equitable.
[16] As
I am
of
the view that the magistrate did not consider all the relevant
circumstances and the facts of this case and by so doing ignored
the
peremptory provisions of section 4(7) and 4(9) of the PIE, the appeal
must succeed.
The
appeal should consequently be upheld with costs.
_____________
K.J. MOLOI, J
I
concur and it is so ordered.
______________
S.
EBRAHIM, J
On
behalf of the
appellant: Adv
J M C Johnson
Instructed
by:
Messrs kramer Weihmann &
Joubert Ing
St
Andrews
Street
149
Bloemfontein
On
behalf of the respondent: Adv JC Coetzee
I
nstructed
by:
Steyn-Meyer
Incorporated
Ground
Floor, Suite 4
Old
Saambou Building
cnr
Maitland
& Aliwa Streets
Bloemfontein