Kroneberg v Kroneberg (A325/06) [2006] ZAWCHC 62 (22 December 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2006
>>
[2006] ZAWCHC 62
|

|

Kroneberg v Kroneberg (A325/06) [2006] ZAWCHC 62 (22 December 2006)

REPORTABLE
Republic of South
Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case No: A325/06
In the matter between:
GEORGE ALLAN GUSTAV KRONEBERG
Appellant
and
ADELAIDE PATRICIA KRONEBERG
Respondent
JUDGMENT : 22 DECEMBER 2006
BOZALEK, J
This is an appeal against the
decision of the magistrate of Wellington dismissing the appellant’s
application for an order evicting
the respondent from certain
immovable property (“the property”) owned by the appellant being
a residential dwelling situated
at 6 Kroneberg Street, Wellington.
The background facts are briefly as
follows. The appellant and respondent were previously married to
each other but were divorced
by order of the Southern Divorce Court
on 14 November 2002. A settlement agreement concluded by the parties
was made an order of
court at the time that the divorce order was
granted.
The following provisions of the
agreement are relevant to the present dispute, dealing as they do
with ownership and occupation
of the property:
“
3.
Verdeling van
die Boedel:
Onroerende
Eiendom:
Die onroerende eiendom
geleë te Kronebergstr 6, Wellington sal die uitsluitlike eiendom van
die Eiser word onderhewig aan die volgende
voorwaardes:
a) Die Verweerderes
mag in die woning aanbly totdat die minderjarige kind die ouderdom
van 21 jaar bereik het;
Daarna sal die
Eiser aan die Verweerderes billike huisvesting elders of na die
Eiser se keuse ‘n enkelwoonstel wat die Eiser
op die perseel sal
oprig, verskaf waarin sy mag woon tot haar dood of hertroue, welke
gebeurtenis ookal eerste plaasvind.”
Pursuant to this agreement the
respondent continued to reside on the property, which was the former
matrimonial home, and continues
to do so. On 11 April 2005 the
condition in clause 3.1(a) was fulfilled when the minor child born
of the marriage attained the
age of majority. The appellant duly
called upon the respondent to vacate the premises. In terms of
clause 3.1(b) he chose to provide
the respondent with accommodation
in the form of a leased apartment situated in Park Street,
Wellington. The respondent refused
to vacate the property, however,
and, in July 2005, the appellant launched proceedings against the
respondent in terms of the Prevention
of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998 (PIE). The application
consisted of a founding affidavit
by the appellant to which was
annexed various documents. No appearance to defend was filed, but
when the matter came before court
the respondent appeared in person
to oppose the relief sought. The hearing took the form of argument
delivered by the appellant’s
legal representative whereupon the
respondent testified and was cross-examined. Thereafter the parties
presented further argument
and judgment was reserved.
On 11 November 2005 the court
handed down judgment dismissing the appellant’s application for
the eviction of the respondent.
The principal reason for the
decision was the magistrate’s view that clause 3.1(b) of the
settlement agreement was
contra bonos mores
in that it vested
in the appellant complete power to determine what was reasonable
accommodation or not. The magistrate purported
to make two further
orders: firstly, referring the matter to the High Court for an
interpretation of the relevant clause in the
divorce order and,
secondly, ordering that the respondent be afforded legal aid in
order to secure legal representation before
this court.
Unfortunately nothing appeared to
come of the latter directive and the respondent only secured legal
representation when, at this
court’s request, the Cape Bar Council
appointed Mr Budlender to appear on her behalf in terms of the Cape
Bar Council’s
pro bono
scheme. We are indebted to Mr
Budlender for stepping into the breach.
As far as the first additional order
purportedly made by the magistrate is concerned, there was no basis
in law upon which he could
refer the matter to the High Court for an
interpretation of the clause in the divorce order. His duty was to
determine the matter
as best he could and then leave it to the
parties, if they saw fit, to exercise their right of appeal against
his decision.
The magistrate clearly erred,
furthermore, in finding that clause 3.1(b) permitted the appellant,
in his sole discretion, to determine
what was or was not “
billike
huisvesting elders”
as set out in the said clause. The phrase
“
of na die Eiser se keuse
” clearly refers to his right to
provide accommodation for the respondent either on the property or
elsewhere. It is quite clear,
moreover, that the reasonableness of
the accommodation to be provided elsewhere is to be objectively
determined.
The appellant sought the respondent’s
ejectment from the property by means of an application in terms of s
4(2) of PIE. In
Wormald NO & Others v Kambule
2006(3) SA
562 (SCA) at 568E - G it was held that in order to succeed with such
an application, the applicant must show that:
he/she owns the land in respect of
which the eviction of the respondent is sought;
the respondent is in unlawful
possession of that particular land;
the applicant has complied with all
the procedural provisions required in terms of PIE; and
that consequently, upon a
consideration of all the relevant circumstances, an eviction order
is “
just and equitable”
.
It was held further that an owner is
in law entitled to the possession of his/her property and to an
ejectment order against the
person who unlawfully occupies the
property except if that right is limited by the Constitution,
another statute, a contract or
some or other legal basis. In this
regard see also
Brisley v Drotsky
2002(4) SA 1 (SCA) at page
22B - D.
In the present matter it is
undisputed that the appellant is the owner of the property in
question and that he has complied with
all the procedural provisions
required in terms of PIE. What is in dispute is whether the
respondent is in unlawful possession
of the particular property and,
even if so, whether an eviction order is “
just and equitable”
.
In my view the principal issue in
this matter concerns the correct interpretation of clause 3.1(b) of
the consent paper as incorporated
in the divorce order. Mr Möller,
who appeared on behalf of the appellant, contended that the
respondent was entitled to occupation
only in terms of clause 3.1(a)
of the consent paper and that a resolutive condition terminating her
right of occupation was fulfilled
when the minor child attained the
age of majority. In these circumstances, he submitted, the
respondent’s continued occupation
of the premises was no longer
lawful. His argument continued further, that, upon termination of
her right of occupation as aforesaid,
the respondent acquired the
right to accommodation to be provided by the appellant under
different conditions, as described in
clause 3.1(b). In the event
of the respondent contending that the alternative accommodation
tendered to her did not comply with
the requirements of clause
3.1(b), e.g. was not “reasonable” accommodation, her remedy was
to approach the appropriate court
for relief on the basis of the
appellant’s alleged contempt of court or his failure to meet his
obligations in terms of the court
order. As it was put by Mr
Möller, the magistrate had misdirected himself in not
distinguishing between the termination of one
right and the
enforcement of a different right under different circumstances and
subject to other conditions.
I do not agree
with this disjunctive interpretation of clause 3.1. Rather the
clause requires to be read as a whole and to be interpreted
in the
light of the nature, purpose and content of the settlement agreement
which the parties concluded prior to their divorce
1
.
The clause stipulates that the appellant must provide the respondent
with suitable accommodation from the date of divorce until
her
re-marriage or death. The form of this accommodation for the first
few years post-divorce was agreed upon. In the event that,
thereafter, the appellant chose not to accommodate the respondent in
an apartment to be built on the grounds of the property, his
obligation was to provide her with reasonable accommodation
elsewhere. Given,
inter
alia
,
the fundamental importance of the right to housing and shelter
2
,
I can see no warrant for the narrow interpretation for which the
appellant contends, namely that, even if he failed to provide
the
respondent with reasonable accommodation elsewhere upon their child
reaching the age of majority, nonetheless her occupation
of the
property would immediately become unlawful leaving her with the
remedy of suing him for appropriate relief. On such an
interpretation the appellant could tender palpably unreasonable
accommodation to the respondent (or none at all!) and then proceed
to evict her from the property whilst awaiting her legal suit.
There is nothing in the language of the clause to suggest that
this
was the common intention of the parties, quite the contrary.
Seen from a different perspective,
the purpose and effect of clause 3.1 is to burden the appellant’s
ownership of the property
by the imposition of two conditions,
namely, the respondent’s right to remain in occupation thereof
until the child became a
major and, thereafter, until the appellant
provided her with accommodation in accordance with one of the two
possible bases set
out in the clause.
The clear implication hereof is that
the respondent is entitled to remain in occupation of the property,
notwithstanding the appellant’s
ownership, until both of these
conditions have fallen away.
On this interpretation of the
relevant clause, and given that the respondent disputed that she had
been provided with reasonable
accommodation elsewhere, she was
entitled to remain in occupation of the property and raise as a
defence to eviction proceedings
that she was a lawful occupier.
It follows that the second crucial
issue in the PIE application was whether the housing or
accommodation tendered by the appellant
was reasonable and, as such,
rendered the respondent’s continued occupation of the premises
unlawful. Unfortunately this particular
issue received scant
attention in the magistrate’s court. In his founding affidavit
the appellant describes the apartment as
consisting of one bedroom,
a lounge, kitchen and bathroom and being situated near the property
occupied by the respondent. The
appellant led no evidence at the
hearing although his legal representative made submissions regarding
the reasonableness of the
alternative accommodation. These
submissions were, however, generally limited to the argument that
the apartment must be considered
as reasonable accommodation since
the appellant had, together with his second wife and their two minor
children, previously occupied
it for some time. Little more
concerning the nature of the alternative accommodation tendered can
be gleamed from the correspondence
which was attached to the
founding affidavit.
In her evidence the respondent also
raised what I consider to be the irrelevant arguments and
considerations as to why it would
be unfair to require her to vacate
the former matrimonial home and move into the newly tendered
accommodation. However, scattered
amongst her evidence were
concrete objections to the new accommodation which, taken separately
or cumulatively, amounted to the
contention that the accommodation
was not reasonable given her needs and circumstances and the
appellant’s obligations towards
her in terms of the consent paper.
These obligations included the issue of the long-term security of
the proposed accommodation
arrangements. In this regard the
respondent asked, rhetorically, who would meet the appellant’s
obligations under the lease agreement
relating to the apartment if
he were to suddenly pass away. No reply to this question was
forthcoming from the appellant and nor
were the terms of the lease
ever disclosed.
Regarding the apartment itself the
respondent complained that it was too small to accommodate all of
her furniture, that she could
not accommodate her children if they
wished to stay with or visit her and that her grandchildren would
not have adequate place
to play if they visited her. In addition she
complained that the apartment’s lounge could only accommodate a
couch, a chair and
a cupboard, that the bathroom contained only a
shower and not a bath, that she would be required to hang out her
washing on the
front stoep and, finally, that the apartment was
situated alongside a shop.
Certainly as far as the respondent
was concerned, in contrast to her present accommodation in an eleven
roomed house situated on
a double plot, the accommodation being
tendered was far from reasonable.
Given the broadness of the term
“
billike huisvesting”
, it is obviously not a simple
matter to define with some precision what such accommodation would
constitute in the event that the
appellant elected not to build an
apartment on the site of the property. Clearly a range of factors
will have to be taken into
account including, but by no means
limited to, what steps, if any, were taken or envisaged to secure
the future provision of such
alternative accommodation for the
respondent, the appellant’s means, the standard of accommodation
enjoyed by the respondent
at the property and her reasonable needs
as determined by her personal circumstances. A further factor of
importance determining
what constitutes “
reasonable
accommodation”
would be the indication in the agreement itself
that an apartment, built on the grounds of the property, was agreed
upon by the
parties as being sufficient and, by implication,
reasonable accommodation.
It is conceivable that, leaving aside
the question of the security of the arrangements, had proper
attention been focussed upon
the issue of whether the apartment in
question constituted reasonable accommodation, the magistrate may
well have found in the
appellant’s favour. In my view, however,
the issue was in effect not addressed by the appellant with the
result that he failed
to produce proof, on a balance of
probabilities, that the accommodation which he was tendering was
reasonable.
In accordance with
the
maxim
that he who asserts must prove, the appellant clearly bore the
onus
of proof in relation to this issue
3
and, having failed to discharge it, the eviction application was
correctly dismissed since, in the absence of such proof, the

respondent remains in lawful occupation of the property. It follows
that it is unnecessary to consider the question, of whether
it would
be fair and equitable to order the respondent’s eviction from the
property.
I need hardly add that, should
agreement continue to elude the parties on alternative accommodation
arrangements for the respondent,
it remains open to the appellant to
bring a fresh application for the respondent’s eviction from the
property upon proof that
he has tendered to the respondent the
stipulated new accommodation on the property or reasonable
accommodation elsewhere.
In the result I find, albeit for
different reasons, that the magistrate correctly dismissed the
application for the respondent’s
eviction. I would, therefore,
dismiss the appeal but, the respondent having been represented
pro
bono
, make no order as to costs.
__________________
LJ BOZALEK, J
HLOPHE, JP
I agree and it is so ordered.
____________________
JM HLOPHE, JP
1
See
Swart en ‘n Ander v Cape Fabrix (Pty) Ltd
1979(1) SA
195 (A) at 202C.
2
See s 26 of the Constitution of the Republic of South Africa Act 108
of 1996 and
Government of the Republic of South Africa and Others
v Grootboom and Others
2001 (1) SA 46
CC.
3
See also The Law of Contract in South Africa, RH Christie,
Butterworths 5 Edition at page 140 where the learned author states

as follows: “
A party claiming on a contract subject to a
condition precedent must plead and prove the condition and its
fulfilment. No doubt
the same applies in the case of a resolutive
condition, in the sense that a party whose claim depends upon the
fulfilment…
”