Khoete v Dimbaza (A448/07) [2009] ZAFSHC 129 (12 November 2009)

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[2009] ZAFSHC 129
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Khoete v Dimbaza (A448/07) [2009] ZAFSHC 129 (12 November 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal Number : A448/07
In the appeal between:-
KHOETE CHURCHILL
KHOETE
Appellant
and
JUDITH NOMATHEMBA
DIMBAZA
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOCUMIE, J
_____________________________________________________
JUDGMENT BY:
VAN
ZYL, J
_____________________________________________________
DELIVERED ON:
12
NOVEMBER 2009
_____________________________________________________
The respondent
approached the Thaba ‘Nchu Magistrate’s Court as applicant for
an eviction order in terms of the Prevention
of Illegal Eviction
from Unlawful Occupation of Land Act, 19 of 1998 (hereinafter
referred to as “PIE”), against the current
appellant in his
capacity as respondent in that application, who opposed the
application. The Mangaung Local Municipality was
cited as second
respondent in that application, but did not oppose the relief sought
and is therefore not a party to the current
appeal. On 4 September
2007 the Court
a
quo
granted an eviction order against the appellant in the following
terms:
“
1. Khoete Churchill Khoete and all
other persons in possession of the property situated at 1849 Unit 1
Selosesha, who hold possession
through or under Khoete Churchill
Khoete are ordered to vacate the said property by not later than
31\10\2007.
2. Failing compliance by the
respondent and all other persons in possession of the said property,
the Sheriff is authorised and
directed to evict Khoete Churchill
Khoete or any such persons from the said property.
3. The respondent is ordered to pay
the costs of the application.”
This appeal is directed
against the aforesaid order. For the sake of efficacy I am going to
refer to the parties as they were
in the Court
a
quo
.
Applicant based her
entitlement to the residential property known as Erf 1849 Unit 1,
Selosesha, Thaba ‘Nchu (hereinafter referred
to as “the
property”) on a written Deed of Sale, embodied in an Offer to
Purchase, dated 6 May 2005, addressed to the North-West
Housing
Corporation. This Offer to Purchase was accepted by North-West
Housing Corporation in that the Offer to Purchase was
signed on
behalf of the corporation on 14 November 2005. The agreed purchase
price was R50 000.00. This Offer to Purchase specifically

determines that upon acceptance it forms a Deed of Sale. A copy of
the said Deed of Sale was attached to the founding affidavit
as
annexure “A”. On 9 November 2005 the applicant paid R10 000.00
in pursuance of the agreement and alleged that the balance
of R40
000.00 would be paid off in monthly instalments of R632,62. A
deposit slip dated 9 November 2005 reflecting a payment
by applicant
in favour of the North-West Housing Corporation in the amount of R10
000.00, was attached to the founding affidavit
as annexure “B”.
After signing of the agreement the applicant however found the
respondent to be in occupation of the property.
She informed the
North-West Housing Corporation accordingly and during June 2006 they
advised her that she should consult with
her attorney to obtain an
eviction order against the respondent. Later during 2006 when the
applicant again went to the property,
accompanied by the police, to
collect some of her personal items that were still in the house, she
again informed the respondent
and his wife that they will have to
evacuate the property due to the fact that she bought the house from
the North-West Housing
Corporation and that in terms of the
agreement she is entitled to occupation of the said property.
Respondent informed her that
he was aware of the fact that he will
have to vacate the property. However respondent remained in
occupation of the property.
The applicant therefore contended that
the respondent was (and still is) in unlawful occupation of the
property.
Although the respondent
opposed the application on a number of grounds, the respondent
persisted on appeal only with the grounds
that the applicant did not
and still does not have
locus
standi in judicio
as she is neither the owner nor the person in charge of the property
and furthermore that the respondent denies that his occupation
of
the property was and is unlawful. In his opposing affidavit the
respondent contended that the said property is not the property
of
the North-West Housing Corporation but that of the Government of
the Republic of South Africa. According to him the South
African
Government took over ownership of all property belonging to the then
Government of Bophuthatswana. In support of this
allegation a copy
of a deeds search was attached to the answering affidavit as
annexure “KGO1”, which document reflects that
“town name or
erf number or erf portion does not exist”. According to
respondent’s contention the North-West Housing Corporation
was
therefore not authorised to transfer any right of ownership to the
applicant and therefore the applicant is neither the owner
nor the
person in charge as defined in PIE.
In addition to the
aforesaid, the respondent alleged that because the Deed of Sale was
only concluded on 14 November 2005 when the
corporation accepted the
offer, the alleged payment by applicant of R10 000.00 to the
corporation could not have been made in pursuance
of the agreement.
The applicant also questioned the monthly repayment of R632,62
because the Deed of Sale does not make provision
for such an
arrangement.
The respondent pointed
out that the applicant was previously evicted from the property by
one Mr. Tshikare by means of a court order
dated 19 August 2005. A
copy of this court order was attached to the answering affidavit as
annexure “VAL2”. (It should however
be mentioned that it appears
from paragraph 8 of the judgment of the Court a
quo
that
this order had been rescinded.) He furthermore contended that he was
renting the property from the said Mr. Tshikare. An affidavit
by Mr.
Tshikare was also attached to the answering affidavit. In this
affidavit Mr. Tshikare based his alleged right to occupancy
on a
Certificate of Occupation, issued by the Department for the Interior
of the former Bophuthatswana Government Service, which
certificate is
dated 23 February 1994. I pause to mention that this certificate was
attached to an affidavit of one Mr. Molawa,
being a former Area
Manager of Thaba ‘Nchu Municipality, and which affidavit was
attached to the affidavit of Mr. Tshikare as
annexure “VAL1”,
together with the aforesaid certificate. However, from a reading of
this affidavit it is evident that this
affidavit was apparently filed
in the previous eviction application brought by Mr. Tshikare against
the current applicant and therefore
the learned Magistrate, in my
view correctly so, found in paragraph 13 of her judgment that this
affidavit does not take the case
of the respondent any further.
Having said that, I return to the affidavit of Mr. Tshikare.
According to Mr.
Tshikare he rented the property to the applicant during or about
1999 in terms of a Lease Agreement. The applicant
paid the agreed
monthly rental of R280.00 until December 2001, whereafter she
stopped paying without providing any reason whatsoever.
On 3 April
2002 he instituted an action against the applicant for payment of
rent and her eviction from the property and on
19 August 2005
judgment was granted in his favour. On 23 August 2005 a warrant for
the eviction of the applicant was issued
and the applicant was
evicted by the Sheriff on 27 September 2005. He, being Mr.
Tshikare, then took possession of the premises
on 27 September 2005.
The respondent thereupon took occupation of the property after the
applicant’s eviction on 27 September
2005. This possession of
respondent is in terms of a verbal Lease Agreement that Mr.
Tshikare, as lessor, entered into with
the respondent.
In her replying
affidavit the applicant alleged that it is clear from the
respondent’s affidavit, read with the supporting affidavit
or Mr.
Tshikare, that neither respondent nor Mr. Tshikare have a right to
occupy the property, because:
6.1 The certificate
provided Mr. Tshikare the right to occupy, together with the members
of his family, the property for residential
purposes only. Mr.
Tshikare was therefore not entitled to rent out the premises to the
respondent.
6.2 The Certificate of
Occupation lapsed when the Bophuthatswana Government was incorporated
into the Republic of South Africa.
In my view it is
necessary to deal with two further documents which were accepted as
exhibits and considered by the Court
a
quo
,
although it did not form part of any of the affidavits. These are
the documents which were sent to Court via facsimile on 4
June 2007,
appearing on the appeal record on pages 46 and 47. The first
document is dated 5 May 2005, being a letter addressed
to Mr.
Tshikare in terms of which he was advised that in April 2005 the
board of directors of the North-West Housing Corporation
ascertained
that he was no longer residing in the property and that he was
renting the property out to the applicant without
their permission.
They consequently advised Mr. Tshikare that the Lease Agreement
between themselves and Mr. Tshikare will be
terminated within a
period of thirty days from date of receipt of the letter. Mr.
Tshikare was furthermore instructed not to
collect any occupation
rental from the applicant as the property does not belong to him,
but to the North-West Housing Corporation
and that the applicant has
been regularised as a legal occupant of the property and that she
will be liable to the North-West
Housing Corporation for
occupational rent as from 1 June 2005.
The second document is a
statement of account issued by the North-West Housing Corporation
addressed to the applicant, dated 7 May
2007, which reflects payments
that she has made in favour of the North-West Housing Corporation
with regard to the property,
inter
alia
reflecting the R10 000.00 payment made by herself on 9 November 2005,
as originally alleged by herself in the founding affidavit.
In terms
of this statement, the outstanding balance with regard to the
purchase price of R50 000.00, was R1 874.10 as at 30 April
2007.
It is evident from the
judgment of the Court
a
quo
, as
reflected on page 49 of the record, that the aforesaid documents came
to the attention of the Court
a
quo
two
days preceding 17 August 2007, being the date upon which the matter
was argued. The Court then apparently held that those
two documents
are admissible as evidence and were marked as Exhibits A and B
respectively, as reflected in the judgment on page
51 of the appeal
record. One of the grounds of appeal reflected in the notice of
appeal on page 56 of the record, paragraph 4,
is the following:
“
The
Learned Magistrate misdirected herself in taking into consideration
Exhibit A and Exhibit B in her adjudication of the dispute
in this
matter.”
In paragraph 7.4 of the
applicant’s heads of argument, page 12 thereof, the following was
stated:
“
7.4.1 The
judgment of the Court
a
quo
creates a misleading picture regarding the admission of these two
exhibits.
7.4.2 The
exhibits were not simply accepted after being faxed to the Court.
7.4.3 During
the hearing of the application respondent applied for the documents
to be accepted.
7.4.4 The
matter was argued and the Magistrate ruled in favour of admitting the
exhibits.
7.4.5 The
reasons for this decision are set out on page 51 of the record.
7.4.6 It
is submitted that the Magistrate was correct in admitting the
documents as it was in the interest of justice towards equitable

finalisation of the matter.”
Considering the reasons
for the Court
a
quo
to
have admitted these exhibits, as set out on page 51 of the appeal
record, and having regard to the factors set down in
section
3(1)(c)(i)
to (vii) of the
Law of Evidence Amendment Act, 45 of
1988
, as the Court
a
quo
did, I am of the view that the Court’s finding cannot be faulted
on the record as it stands before us. The oral arguments
that were
presented to the court
a
quo
in
regard to the question whether these exhibits should be admitted as
evidence or not, have not been transcribed and put before
us, which,
if the respondent (appellant) wished to rely thereon, should have
been done by the respondent (appellant). Therefore
I can only
consider the reasons provided by the Court
a
quo
itself, which reasons, as I have already indicated, in my view
cannot be faulted. There appears to have been no misdirection
in
her acceptance of these documents in evidence as alleged by the
respondent in paragraph 4 of his notice of appeal.
As eviction orders in
relation to residential property must be sought in terms of the
provisions of PIE, applicant made use of
the correct procedure and
it is not disputed that the applicant conformed with all the
procedural requirements determined in
section 4(2)
to
4
(5) of PIE.
However, what is in
dispute, is the question whether the applicant is the “owner” or
the “person in charge” of the property,
as
section 4(1)
of PIE
determines that only an owner or person in charge of such a property
may apply for the eviction of an unlawful occupier.
In
section 1
of
PIE “owner” is defined as follows:
“Means
the registered owner of land, including an Organ of State.”
A “person in charge”
is defined as follows:
“
Means
a person who has or at the relevant time had legal authority to give
permission to a person to enter or reside upon the land
in question.”
It is my view that in
the current instance it is appropriate to consider the aforesaid
question with regard to the applicant’s
locus
standi
in conjunction with the question whether the respondent is an
“unlawful occupier” for purposes of PIE. In
section 1
of PIE
“unlawful occupier” is defined as follows:
“
Means
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, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose informal right to land, but for the provisions of this act,
would be protected by the provisions
of the Interim Protection of
Informal Land Rights Act, 1966 (Act No. 31 of 1996).
It is trite that the
applicant bears the onus to show her
locus
standi
,
in this instance being an onus to show that she was, at the time of
the institution of the application, a “person in charge”
as
defined in PIE as she could not have been the “owner” of the
property as the property is not yet registered in her name.
The
Court
a
quo
also rightly adjudicated this matter on this basis. See the
judgment of the Court a
quo,
p.
53.
Insofar as the
respondent relies on consent of the owner of the property, being a
different owner than the applicant, for his
lawful occupation of the
property (in this instance in the form of the alleged Rental
Agreement with Mr. Tshikare), there appears
to be contradictory
views as to whether the respondent bears the onus to prove the
validity of this consent (See
BARNETT
AND OTHERS v MINISTER OF LAND AFFAIRS AND OTHERS
2007(6) SA 313 (SCA) at 324 D to E) or whether the respondent bears
a mere evidential onus (“weerleggingslas”) to the effect
that
the applicant also bears the onus to prove the absence of any valid
consent (See
BARNETT
AND OTHERS v MINISTER OF LAND AFFAIRS AND OTHERS
,
supra
,
at 324 G). I am however willing to adjudicate this appeal on the
favourable basis for the respondent to the effect that the
applicant
bears the onus to also prove that respondent is in unlawful
occupation of the property. See
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS 2005(1) SA 217 (CC)
at 235 G.
It is now necessary to
turn to the history of the ownership of and entitlement to the
current property. It should be accepted
that this property forms
part of land formerly administered by the South African Native
Trust, which came to be called the South
African Development Trust
or SADT. See
The
State as Trustee of Land, T.W. Bennett and C.H. Powell
,
South
African Journal on Human Rights
,
2000, vol. 16, at p. 601 to 603. On 30 June 1991 and by means of
the Abolition of Racially Based Land Measures Act, No. 108
of 1991,
and more specifically section 11(1)(a) thereof, the SADT was
dismantled in that the Development Trust and Land Act,
18 of 1936,
was repealed. On 31 March 1992, by means of Proclamation No. R.28
of 1992, published in Regulation Gazette No. 4852,
Government
Gazette No. 13906, all land within the self-governing territories
was transferred to the governments of the territories
concerned and
remaining land in South Africa was placed under the control of the
Minister of Regional and Land Affairs. Section
1(d) of the said
proclamation reads as follows:
“(d) I
hereby transfer with effect from 1 April 1992 –
(i) all
land, … vested in, or acquired by, the South African Development
Trust (hereinafter referred to as the Trust) … and
situate in any
area (hereinafter referred to as self-governing territory) declared
under the Self-governing Territories Constitution
Act, 1971 (Act No.
21 of 1971), to be a self-governing territory within the Republic,
subject to any existing right, charge or
obligation on or over sight
land; and
(ii) any
moveable assets of the Trust used exclusively in connection with the
development of such land,
to
the Government of the self-governing territory concerned.”
In view of the aforesaid
proclamation, it must be accepted that the property and all rights
thereto, then vested in the (then)
Bophuthatswana Government. This
is in actual fact also the respondent’s case, considering that he
bases his consent to occupy
the property on a Certificate of
Occupation issued to Mr. Tshikare by the Bophuthatswana Government
on 23 February 1994. Moreover,
it will be evident from the further
developments that I will deal with hereunder, that it must be
accepted that as a result of
the aforesaid proclamation, the
Bophuthatswana Housing Corporation became vested with the rights to
this property in terms of
the Bophuthatswana Housing Corporation
Act, Act 24 of 1982.
With effect from 27
April 1994, being the date of commencement of the interim
Constitution of the Republic of South Africa, Act
200 of 1993, the
former homelands were abolished and provincial boundaries were
redrawn. Land that had been situated in the
homelands and held by
the heads of the homelands as trustees then reverted to the
President of South Africa. The Self-Governing
Territories
Constitution Act, 1971, which was referred to in the aforesaid
Proclamation R28 of 1992, was therefore also specifically
repealed
in terms of schedule 7 to the interim Constitution, read with
section 230(1) thereof.
Section 229 of the
interim Constitution provided as follows:
“
Subject
to this Constitution, all laws which immediately before the
commencement of this Constitution were in force in any area
which
forms part of the national territory, shall continue in force in such
area, subject to any repeal or amendment of such laws
by a competent
authority.”
Subsequent to the
commencement of the interim Constitution, the North-West Housing
Corporation Amendment Act, 9 of 1994, commenced
on 2 September 1994.
In terms of this Amendment Act, the name of the Bophuthatswana
Housing Corporation Act (“the principal
Act”) was changed to the
North-West Housing Corporation Act, 1982, in addition to the further
amendments set out in the aforesaid
Amendment Act. From a reading of
this Amendment Act, read with the the principal Act, it is evident
that the rights to the current
property which previously vested in
the Bophuthatswana Government and the Bophuthatswana Housing
Corporation, now vested in the
province of North-West and more
specifically in the North-West Housing Corporation. Section 20(1)(f)
of the Act, as amended, specifically
provides as follows with regards
to the North-West Housing Corporation:
“
(f) In
pursuance of this object, to provide accommodation housing, to sell
or lease out any houses, buildings and land of the Corporation,
and
to manage, maintain and exercise final control over any form of
dwelling owned and utilised by the Corporation for the purpose
of
providing shelter, accommodation or housing.”
Before I deal with the
further history of the property, it is essential to point out that
it is evident from the Certificate of
Occupation issued by the
Bophuthatswana Government to Mr. Tshikare, read with his application
for allotment of a letting unit
for residential purposes, that both
the application and the certificate as such were subject “to the
terms and conditions set
out in Proclamation No. R293 of 1962”.
It is furthermore evident from both the aforesaid documents that
occupation of the
property is for residential purposes. I will
return to this aspect later.
In terms of section
235(8)(a) of the interim Constitution the President assigned the
aforesaid Proclamation, R.293 of 1962, to
the North-West by means of
an assignment published in Government Gazette 15813 on 17 June 1994.
The relevant part of the assignment
provided as follows:
“I
hereby –
assign
the administration of the laws specified in the schedule,
excluding those provisions of the said laws which fall
outside
the functional areas specified in schedule 6 to the Constitution
or which relate to policing matters referred
to in section
235(b) or to matters referred to in paragraphs (a) to (e) of
section 126(3) of the Constitution, to a competent
authority
within the jurisdiction of the government of the province of the
North-West designated in respect of each such
law by the Premier
of that province …”
The schedule to the
proclamation indicates that the whole proclamation was assigned.
The result of the
aforesaid, in my view, is that the North-West Housing Corporation
was now vested with the authority to deal
with the current property
in terms of the North-West Housing Corporation Amendment Act, 9 of
1994, read with the principal Act,
and furthermore in terms of the
terms and conditions set out in Proclamation No. 293 of 1962.
Regulation 11 of the
aforesaid Proclamation prohibits the subletting of the property
without the permission of the landlord, in
this instance the
North-West Housing Corporation, whilst section 23(1)(a)(iii)
prohibits an occupant to abandon or to fail to
occupy a unit
referred to in the Certificate of Occupation for a period in excess
of two months, unless he/she shall have obtained
prior permission in
writing from the landlord. Because of the aforesaid reasons,
regulation 23(1) entitled the management of
the landlord, in this
instance the North-West Housing Corporation, to terminate the lease
agreement that was granted to Mr. Tshikare
in terms of the
Certificate of Occupation.
This is exactly what has
been done by the North-West Housing Corporation in terms of the
letter dated 5 May 2005, Exhibit A, page
46 of the record. I
therefore find that the cancellation of the Certificate of
Occupation was a valid cancellation.
Considering that the
rights that vested in the North-West Housing Corporation in terms of
the amended section 20 of the North-West
Housing Corporation
Amendment Act, the North-West Housing Corporation was, subsequent to
the cancellation of the Certificate
of Occupation, fully entitled to
have concluded a Deed of Sale with the applicant in terms of the
Deed of Sale attached to the
founding affidavit as annexure “A”.
That such an agreement was in fact concluded, is confirmed by the
payment of R10 000.00,
in terms thereof, proof of which is attached
to the founding affidavit as annexure “B”, read with the
statement of account
received by the Court a
quo
as
Exhibit B, reflected on page 47 of the record. The applicant’s
entitlement to the property as a “legal occupant” thereof,
was
furthermore also confirmed in the last paragraph of the letter dated
5 May 2005, Exhibit A, addressed by the North-West Housing

Corporation to Mr. Tshikare.
In the result I am
satisfied, as was the Court
a
quo
,
that the applicant discharged the onus of proving that she, at the
time of the institution of the application, was the person
in charge
of the property and further discharged the onus of proving that the
respondent was and still is an unlawful occupier
of the property in
that he does not have the consent of either the owner (currently
still the North-West Housing Corporation)
nor the person in charge
(the applicant) nor does he have any other right in law to occupy
the said property.
The respondent has
occupied the property in question for more than six months since the
time when the proceedings were initiated
by the applicant. In terms
of section 4(7) of PIE a Court may then 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 those
referred to in section 4(7).
It is evident from the papers that the
respondent is a teacher and can afford to arrange alternative
accommodation for himself
and his dependants. See Founding
Affidavit, p. 10, par. 8, read with Answering Affidavit, p. 23, par.
8. In these circumstances
and in the absence of any allegations
from any of the parties to the contrary, I am of the opinion that it
was in fact just and
equitable for the Court
a
quo
to
have granted an order of eviction.
There is consequently no
merit in the appeal.
With regard to costs,
there is no reason why the costs should not follow the outcome of
the appeal.
The only remaining issue
is that from a practical point of view, the date which the Court
a
quo
determined as the date on which the respondent had to vacate the
property, will have to be re-determined in view of the lapse
of time
as a result of the appeal proceedings. Considering the date on
which the Court
a
quo’s
judgment was delivered and the date she ordered the respondent to
have vacated the property, it is clear that she granted the

respondent a couple of days short of two months to have vacated the
property. Considering all the relevant factors in this instance,

including the period the respondent and his wife/family have resided
in the property, I also consider it just and equitable to
grant the
respondent approximately two months to vacate the property.
Consequently the
following order is made:
29.1 The appeal is
dismissed, with costs.
29.2 The order of the
Court
a
quo
is
varied with regard to the date stated therein to read as follows:
“Khoete Churchill
Khoete and all other persons in possession of the property situated
at 1849 Unit 1, Selosesha, who hold possession
through or under Koete
Churchill Khoete are ordered to vacate the said property by not later
than Friday, 8 January 2010.”
_______________
C. VAN ZYL, J
I concur.
_______________
B.C. MOCUMIE, J
On behalf of
appellant: Mr. M. Litheko
On instructions of:
Litheko Motsoeneng Inc.
c/o Majola Attorneys
BLOEMFONTEIN
On behalf of
respondent: Adv. J.M.C. Johnson
On instructions of:
Steyn Meyer Inc.
BLOEMFONTEIN