About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 88
|
|
Miya NO v Miya and Another (AR467/2022) [2024] ZAKZPHC 88 (11 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
EVICTION
– Just and equitable –
Ubuntu
–
Widow
appointed representative of estate – Seeking to evict son of
deceased – Born of previous marriage –
Magistrate
dismissing application – Not just and equitable having
regard to Ubuntu – View that parties need to
engage in
mediation and reach solution to live peacefully with each other –
Son unemployed while widow not in dire
need of accommodation but
merely wanting to take occupation – Appeal dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable/Not
Reportable
Case
No: AR 467/2022
In
the matter between:
NOTHILE JOYCE
MIYA NO
APPELLANT
and
STHEMBISO MIYA
FIRST
RESPONDENT
INKOSI
LANGALIBALELE MUNICIPALITY
SECOND
RESPONDENT
ORDER
On
appeal from:
Magistrates’ Court for the District of
uThukela, held at Estcourt (Magistrate Gillespie sitting as court of
first instance):
1.
The appeal is dismissed with each party paying his or her own costs.
JUDGMENT
MARION
AJ (SEEGOBIN J concurring):
[1]
This is an appeal against the judgment and order of the court a quo,
which was handed down on
17 October 2023, dismissing the appellant’s
application for the eviction of the first respondent.
[2]
On 19 September 2022, the appellant instituted eviction proceedings
against the first respondent
in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1988 (‘the
PIE Act’),
in the Magistrates’ Court for the District of
uThukela. The appellant sought an order evicting the first respondent
from
Erf 2[...], A section, Wembezi, Escourt, Kwazulu-Natal (‘the
property’). The application was dismissed with costs on
the
basis that it was not just and equitable to do so having regard to
the spirit of Ubuntu.
[1]
[3]
The appellant is the duly appointed representative of the estate of
her late husband, Mr Funizwe
Mtata Miya (the deceased), authorised in
terms of Letters of Authority dated 1 July 2022. The first respondent
is the son of the
deceased, born from the deceased’s first
marriage to Mrs Zile Dubazane (‘Mrs Dubazane’). The
Inkosi Langalibalele
Municipality is the second respondent but took
no part in the proceedings. A report was, however, filed by the
second respondent,
[2]
which
mainly confirmed that it is unable to provide alternative
accommodation to the first respondent and/or his family as they
do
not have the capacity to do so.
[4]
The deceased was married to his first wife, Mrs Dubazane by customary
union on 11 March 1973.
Mrs Dubazane died on 4 April 1997. The first
respondent was born of that marriage. The deceased thereafter married
the appellant
on 4 April 1999 in terms of a customary union.
[3]
The deceased passed away on 17 July 2010.
[4]
The deceased died intestate.
[5]
Mr Dlongolo from Legal Aid represented the appellant and Ms Mulaudzi
represented the first respondent
- in the court a quo and in the
appeal.
[6]
The appellant avers that her right to evict the first respondent
emanated from the Letters of
Authority granted to her by the Master
of the High Court
[5]
to wind-up
the estate of the deceased. The Deed of Grant
[6]
confirms that ownership of the property vested, and still vests, with
the deceased. The first respondent argued that the appellant
did not
have locus standi to bring the eviction application. I agree with the
court a quo that this point was not raised formally
as a point
in
limine
in
the first respondent’s papers and therefore the court did not
deal with it as such during the hearing.
[7]
The issue of
locus standi
has been addressed by the learned
magistrate, and I will deal with it as well in this appeal. The
relevant definitions in section
1 of the PIE Act are:
‘“
owner”
means the registered owner of land, including an organ of state;
“
person
in charge” 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;
“
unlawful
occupier” 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 …’
[8]
Section 4(1) of PIE Act provides as follows:
‘
Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.’
[9]
It has been held that:
‘
[14]
…The Letters of Authority confirms that the representative is
authorised to take control of the assets of the
estate as reflected
in the inventory, to pay the debts and to transfer the residue of the
estate to the heir/heirs entitled thereto
by law.
[15]
Although ss 42(2) and 47 of the Administration of Estates Act refer
to the duty of executors pertaining to the sale of immovable
property, there can be no doubt that these sections apply mutatis
mutandis to Master’s representatives who fulfil exactly
the
same role as executors, but only in respect of small estates.’
[7]
[10]
The first respondent made bald averments in his papers and during
evidence that the appellant’s appointment
was irregular.
However, no evidence was placed before the court a quo showing
exactly what these irregularities were. The first
respondent did not
take any steps to remove the appellant from this appointment. Under
section 1 of the PIE Act, the appellant
is not the registered owner,
she is, however, the ‘person in charge’ with legal
authority. The Letters of Authority
gives the appellant the power to
take control of the assets of the deceased estate. The court a quo
was correct in finding that
the appellant was lawfully authorised to
bring this application, as such authority was granted to her in terms
of the PIE Act and
the Letters of Authority.
[11]
The first respondent bore the onus to show that he was entitled to
occupy against the appellant’s
ownership. If he was unable to
do so, his occupation would be unlawful. It was common cause that the
first respondent was the son
of the deceased and Mrs Dubazane. The
deceased was married to Mrs Dubazane by customary union in 1973. In
establishing the first
respondent’s right to occupy the
property, the starting point will be to consider the marriage between
his parents.
[12]
In terms of section 22(6) of the Black Administration Act 38 of 1927
(‘the BAA’), marriages between
black persons entered into
prior to 1988 were automatically declared to be out of community of
property. This section
‘…
was repealed by the
Amendment Act [Marriage and Matrimonial Property Law Amendment Act 3
of 1988]. The Amendment Act deleted section
22(6) and inserted
sections 21(2)(a) and 25(3) into the MPA [Matrimonial Property Act 88
of 1984], thereby giving persons married
out of community of property
in terms of section 22(6) of the BAA the opportunity to change their
matrimonial property regime within
two years from 2 December
1988.’
[8]
[13]
The Constitutional Court in
Sithole
and another v Sithole and another
[9]
invalidated the past prejudices created by the BAA and the Marriage
and Matrimonial Property Law Amendment Act 3 of 1988 and ordered
as
follows:
‘
1.
The provisions of section 21(2)(a) of the Matrimonial Property Act 88
of 1984 (‘the MPA’) are hereby declared
unconstitutional
and invalid to the extent that they maintain and perpetuate the
discrimination created by section 22(6) of the
Black Administration
Act 38 of 1927 (‘the BAA’), and thereby maintain the
default position of marriages of black couples,
entered into under
the Black Administration Act before the 1988 amendment, that such
marriages are automatically out of community
of property.
2.
All marriages of black persons that are out of community of property
and were concluded under
section 22(6) of the Black Administration
Act before the 1988 amendment are, save for those couples who opt for
a marriage out
of community of property, hereby declared to be
marriages in community of property.’
[14]
Accordingly, the deceased’s marriage to Mrs Dubazane in 1973
was one in community of property.
[15]
Mrs Dubazane died intestate and the deceased also died without
leaving a will. Section 1(1) of the Intestate
Succession Act 81 of
1987 (‘the ISA’) states as follows: ‘(1)
If after the commencement of this Act a person (hereinafter referred
to as the “deceased”) dies intestate, either wholly
or in
part, and—
(a)
is survived by a spouse, but not by a descendant, such spouse shall
inherit the intestate estate;
(b)
is survived by a descendant, but not by a spouse, such descendant
shall inherit the intestate
estate;
(c)
is survived by a spouse as well as a descendant—
(i)
such spouse shall inherit a child’s share of the intestate
estate or so much of the
intestate estate as does not exceed in value
the amount fixed from time to time by the Minister of Justice by
notice in the Gazette,
whichever is the greater; and
(ii)
such descendant shall inherit the residue (if any) of the intestate
estate…’
[16]
It is common cause that Mrs Dubazane died in 1997. Mr Dlongolo,
during the proceedings in the court a quo,
put to the first
respondent that the current value (in 2023) of the property was R90
000.
[10]
The value as at the
date of death of Mrs Dubazane in 1997 would have been far less. The
deceased, who was the surviving spouse,
would have inherited the
entire estate as the value of the house was less than R125 000. Where
the joint estate does not exceed
the sum of R125 000
[11]
and the marriage is one in community of property, the surviving
spouse will inherit the entire estate. Whilst being cross-examined
on
this issue and in closing arguments, the first respondent conceded
that he understood that the deceased would have inherited
the entire
estate. This ultimately meant that the first respondent would not
have been a beneficiary of his mother’s estate,
wherein the
only asset was the property.
[17]
The deceased, accordingly, entered his marriage to the appellant with
full title to the property. The deceased
and the appellant were
married by customary law and registered the marriage at the
Department of Home Affairs. The marriage is
one in community of
property.
[12]
In terms of
section 1(1) of the ISA, and in looking at the current value of the
property (R90 000), the appellant would lawfully
be entitled to
inherit a 100% share of the property from the deceased estate. The
first respondent disputed that the only asset
owned by the deceased
was the property. He testified that the deceased also owned motor
vehicles which were subsequently sold by
the appellant. The first
respondent has, however, not taken any steps at the Masters Office to
remove the appellant as the person
with authority to wind-up the
estate nor did he lodge any objections regarding the sale of the
vehicles. Nothing more needs to
be said of this, as the appellant’s
locus
standi
has
already been established.
[18]
It was common cause between the parties that the first respondent
occupied the property for most of his life.
The appellant had not
resided on the property for a few years prior to the deceased’s
death nor after the death of the deceased.
The appellant testified
that there was conflict between her and the first respondent at the
time of the deceased’s death.
She did try and resolve the
issues and requested the first respondent to vacate the property as
she needed a place to stay. The
first respondent refused to vacate
the property and chased the appellant off the property. There was no
evidence before the court
a quo that the first respondent resided on
the property with the consent of the deceased. It was also clear from
the record that
the appellant did not consent to the first respondent
residing on the property and hence the need to institute the PIE Act
application.
The first respondent was correctly found by the court a
quo to be an unlawful occupier in terms of the PIE Act.
[19]
In terms of section 1 of the PIE Act, an unlawful occupier is someone
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…’.
The first respondent does not have
the consent of the appellant nor is he a lawful occupier in terms of
the law. It has been established
firstly, that the appellant has the
authority to evict the first respondent and secondly, that the first
respondent is an unlawful
occupier. The enquiry now turns to whether
it is just and equitable to evict the unlawful occupier. If the court
finds that in
the circumstances it is just to grant an eviction order
having regard to all the relevant factors,
[13]
the court has an added duty to consider what justice and equity
demand in relation to the date of the implementation of that order
and what conditions must be attached thereto.
[14]
[20]
In
Ndlovu
v Ngcobo; Bekker and another v Jika
[15]
the Supreme Court of Appeal held:
‘
PIE
has its roots,
inter
alia
,
in s 26(3) of the Bill of Rights, which provides that 'no one may be
evicted from their home without an order of court made after
consideration of all the relevant circumstances'.
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) at 1229E. It invests in the courts the right
and duty to make the order, which, in the circumstances of the case,
would be
just and equitable and it prescribes some circumstances that
have to be taken into account in determining the terms of the
eviction.’
[21]
Section 4(7) of the PIE Act governs any eviction proceeding and
provides that: ‘If an unlawful occupier
has occupied the land
in question for more 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. . . 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 women.’
[22]
It has been held that courts ‘are not permitted to passively
apply PIE and must probe and investigate
the relevant surrounding
circumstances and particularly so where the occupiers are
vulnerable’.
[16]
The
first respondent testified that if he had to vacate the property, he
would be homeless as he has no alternate accommodation.
The second
respondent’s report made it abundantly clear that they do not
have the capacity to assist the first respondent
or his family with
alternate accommodation. The first respondent is unemployed and
cannot afford alternate accommodation. The appellant,
on the other
hand, desires to move onto the property so that she may gain title to
it. The record clearly showed that she currently
resides with her
family and that her son owns cottages that he rents out. The first
respondent submitted that these are possible
alternate options that
the appellant could exercise instead of having him evicted from what
he considered to be a family home.
The court a quo took note of the
appellant’s delay in applying for the Letters of Authority,
which spanned over 12 years.
It was further held that the appellant
was not in dire need of accommodation but merely wanted to take
occupation of the property.
The appellant testified that she was a
retired teacher who received a government pension payout. She also
confirmed that she received
a Road Accident Fund claim in the sum of
R200 000.
[23]
The courts have dealt with and considered the competing risk of
homelessness in determining what is just
and equitable:
‘
In
Port
Elizabeth Municipality v Various Occupiers
the
court held that PIE expressly requires courts to infuse elements of
grace and compassion into the formal structures of the law
and
therefore, courts shall consider the spirit of ubuntu in these kind
of cases. This
dictum
was repeated with
approval in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
.
It is also important to note that in the last mentioned case, as is
the situation in
casu
,
the applicant for eviction did not seek eviction to enable him to
move into the premises. There is therefore no competing risk
of
homelessness on the part of the appellant (the applicant in the court
a
quo
).’
[17]
(Footnotes omitted.)
The
court a quo considered that should the respondent not be evicted,
there would be no competing risk of homelessness.
[24]
The court a quo applied the principles of Ubuntu which encompasses
the values of ‘humanity to others’,
in arriving at a just
and equitable decision. The court a quo carefully considered that it
was dealing with a family and reiterated
the sentiments in
Steenkamp
NO
[18]
that the principles of Ubuntu must take precedence, even in this
matter. The first respondent stated that he got along well with
the
appellant, and he did not chase her off the property. Of note was the
first respondent’s remark that he would be able
to reside in
peace with the appellant if alternate arrangements were made on the
property.
[25]
The appellant herself in her evidence stated that ‘… if
the [first] respondent is not ready
to move out but he must obey or
abide by my rules. Or else he must build a separate structure that he
is going to stay in and he
must not proceed to fight’.
[19]
In my view, the application to evict the first respondent was
misplaced as it is clear from the evidence that the appellant had
no
issue with him residing on the property.
[26]
The issue revolved around the first respondent obeying the
appellant’s rules. The appellant has a right
to protect herself
should there be any abuse on the part of the first respondent if they
live together. She has a right to apply
for a protection order in
terms of the
Domestic Violence Act 116 of 1998
. This avenue remains
open for the appellant to pursue, if she so wishes. The submissions
made by the parties at the appeal revealed
that the property was
approximately 400 square meters in size. The surface area of the
property is big enough to accommodate a
structure for the dwelling of
the first respondent. The court a quo correctly expressed its view in
this regard and that the parties
need to engage in mediation and
reach a solution to live peacefully with each other. In considering
all the circumstances and the
relevant case law referred to above, I
agree with the findings of the court a quo that it is not just and
equitable to evict the
first respondent.
[27]
The general rule is that costs should follow the result. However, the
circumstance of this case calls for
a deviation from that rule. The
appellant is represented by Legal Aid and an adverse cost order will
not be just in these circumstances.
[28]
I accordingly grant the following order:
1.
The appeal is dismissed with each party paying his or her own costs.
MARION
AJ
SEEGOBIN
J
Appearances
Date of hearing:
16 August 2024
Date of Judgment:
For the Appellant:
Mr Dlongolo
Instructed by:
Legal Aid South
Africa
Ladysmith Local
Office
c/o
Pietermaritzburg Local Office
187 Hoosen Haffejee
Street
Pietermaritzburg
Reference:
B. Dlongolo/N.D.
Sokhela/ CU/HC
For the 1st
Respondent:
Ms Mulaudzi
Instructed by:
Miya-Mulaudzi
Attorneys
74 Harding Street
Estcourt
[1]
Ubuntu is described by Mokgoro J in
S
v Makwanyane and another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) para 308 as follows: ‘Generally,
ubuntu
translates as
“
humaneness”
.
In its most fundamental sense it translates as personhood and
“morality”. Metaphorically, it expresses itself in
umuntu
ngumuntu ngabantu
,
describing the significance of group solidarity on survival issues
so central to the survival of communities. While it envelops
the key
values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in its
fundamental
sense it denotes humanity and morality. Its spirit emphasises
respect for human dignity, marking a shift from confrontation
to
conciliation.’
[2]
The record at 98-103.
[3]
The record, annexure ‘RA1’, at 96.
[4]
The record, annexure ‘C’, at 51.
[5]
The record, annexure ‘D’, at 52.
[6]
The record, annexure ‘B’, at 48-50.
[7]
Steenkamp
NO v Moeti and others
[2022]
ZAFSHC 65
paras 14-15 (‘Steenkamp NO’).
[8]
Sithole
and another v Sithole and another
[2021]
ZACC 7
;
2021 (5) SA 34
(CC) para 1.
[9]
Sithole
and another v Sithole and another
[2021]
ZACC 7; 2021 (5) SA 34 (CC).
[10]
The record at 142.
[11]
This was the amount fixed at the time in terms of the following
notice: Fixing of the amount for the purposes of
section 1(i)(c)(i)
of the
Intestate Succession Act, 1987
, GN 483, GG 11188, 18 March
1988.
[12]
Gumede
v President of Republic of South Africa and others
[2008] ZACC 23; 2009 (3)
SA 152 (CC).
[13]
Occupiers,
Berea v De Wet NO and another
[2017]
ZACC 18
;
2017 (5) SA 346
(CC) para 52 (‘Berea’).
[14]
City of
Johannesburg v Changing Tides 74 (Pty) Ltd
[2012]
ZASCA 116
;
2012 (6) SA 294
(SCA) para 25.
[15]
Ndlovu
v Ngcobo; Bekker and another v Jika
2003
(1) SA 113
(SCA) para 3.
[16]
Lochner
NO v Gardner and others
[2024]
ZAWCHC 39
para 10. See also
Berea
paras 43-44.
[17]
Steenkamp
NO
para
11.2.
[18]
Ibid para 21.
[19]
The record at 112, lines 8-11.