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[2024] ZAECQBHC 73
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Snyman v Ferreira and Others (1671/2024) [2024] ZAECQBHC 73 (26 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No.: 1671/2024
Date
Heard: 12 September 2024
Date
Delivered: 26 November 2024
In
the matter between:
WILMA
SYNMAN
APPLICANT
and
ANDRIES
JACOBUS FERREIRA
FIRST RESPONDENT
BARENDINA
FERREIRA
SECOND RESPONDENT
VARIOUS
OCCUPIERS HOLDING TITLE
THROUGH
THE FIRST RESPONDENT
THIRD RESPONDENT
NELSON
MANDELA BAY MUNICIPALITY FOURTH
RESPONDENT
JUDGMENT
MULLINS
AJ:
[1]
This is an application in accordance with Prevention of Illegal
Eviction From And
Unlawful Occupation Of Land Act, 19 of 1998
(“PIE”), for the eviction of the First and Second
Respondents from a property
owned by the Applicant.
[1]
[2]
When the matter was called the First Respondent advised me that he
was acting in person
on behalf of the Respondents and wished to
address the court in Afrikaans, as it was his constitutional right to
do so. In
this regard see section 30 of the Constitution.
See also section 35(1)(k) which, although the section deals with an
accused
person’s rights in a criminal trial, is equally
applicable to civil proceedings.
[3]
I advised the First Respondent that he was absolutely correct in this
regard, but
in that case it would be necessary for an interpreter to
translate his argument into English.
[2]
After a short deliberation the First Respondent elected to address
the court in English.
[4]
As it turns out the First Respondent spoke fluent English and I am
satisfied that
not only did he understand the nature of the
proceedings, but that he was more than able to argue the case on
behalf of the Respondents.
[5]
The background facts may be summarised as follows:
(a)
The Applicant is the registered owner of a property in Despatch,
Nelson Mandela Bay Municipality.
Through an agent the property
was advertised to rent;
(b)
On 3 December 2023 the First Respondent filled in an application form
presented to him by
the agent, the purpose of which was to provide
the Applicant, as lessor, with the details of the potential lessee so
as to make
an informed decision as to whether or not to conclude a
contract with that person;
(c)
In addition to completing the form the First Respondent pointed out a
number of faults
with the property and I quote the first few
sentences thereof:
[3]
“
This property
needs a lot of money to bring it up to standard. There is no
security or burglar bars, the garden needs a lot
of attention as well
as the swimming pool and the steel rondavel and the house paint.
There is furniture from the previous
owners in the garage.”
(d)
He goes on to make proposals as to how to deal with the faults,
inter
alia
, suggesting that the deposit be utilized to effect the work
that needed to be done to the property;
(e)
The Applicant states that she did not see the application form at the
time, only becoming
aware thereof in March 2024 (the implication
being that had she seen it she would have rejected the application);
(f)
Notwithstanding the First Respondent’s dissatisfaction with the
condition
of the property, on 6 December 2023 he signed a lease
agreement which was to commence on 14 December 2024, the termination
date
being 31 December 2024. The monthly rental was R7,000.00,
payable on the 1
st
day of the month. I will return
to various other terms in the course of the judgment, but highlight
at this stage the “Special
Conditions”, which amounts to
a voetstoots clause. It provides:
“
Property will be
rented out as is, any changes the tenant have to put in writing and
owner have to approve and all changes will
be on tenants own cost.”
[sic]
[4]
(g)
Things got off to a rocky start. Prior to taking occupation the
First Respondent wrote
to the agent complaining about the garage
being full of furniture. He advised that he would be selling
this furniture and
keeping the proceeds as “
compensation for
inconvenience”.
He also requested a meeting with the
agent to discuss the installation of DSTV, security and burglar bars;
(h)
On being advised of this development the Applicant wanted to walk
away but was advised by
the agent that as the First Respondent had
paid the deposit she could not do so. In any event, the
Applicant refused to sign
the contract;
(i)
In response to the First Respondent’s complaints the agent
responded that
the garage was not part of the contract (hence the
furniture that was stored in it) and that the property had been
leased “
as is
”;
(j)
As the rent was not paid on the due date, on 1 January 2024 the
Applicant’s
attorney wrote to the First Respondent demanding
payment of the rental and other charges within eight days as “…
you are currently in breach of your Lease Agreement.”
There was no response from the First Respondent at that stage;
(k)
It is the First Respondent’s case that he had orally agreed
with the Applicant’s
husband that the rent could be paid by the
6
th
of the month. He also maintained that the law
provided for payment by the 7
th
of the month;
(l)
Despite her earlier advise to the Applicant, on 10 January 2024 the
agent wrote
to the First Respondent stating that as the parties had
not been
ad litem
as to the terms of the lease agreement no
contract had been concluded and the Respondents were called upon to
vacate the property
by 29 February 2024;
(m)
In a lengthy (and largely irrelevant response) the First Respondent
refused to vacate the property
and pointed out that the Applicant had
accepted the rent and that, therefore, a contract had been concluded;
(n)
Things went from bad to worse, with numerous issues arising on both
sides, the details of
which (except to the extent dealt with below)
it is fortunately not necessary to go into;
(o)
The main complaints from the Applicant’s side is that the First
Respondent regularly
paid the rental late and that he did not pay the
municipal account, which resulted in the Applicant having to do so on
at least
one occasion;
(p)
The main complaint from the First Respondent’s side was the
condition of the property;
(q)
Given his attitude to the request that he vacate by 29 February 2024,
on 26 February 2024
the Sheriff served a notice on the First
Respondent disputing the existence of a contract and calling upon the
Respondents to vacate
the property by the 29
th
. The
letter goes on to state that if there was a lease agreement the First
Respondent was in breach of the terms thereof.
The First
Respondent was warned that if the Respondents did not comply they
would be faced with an application in accordance with
PIE;
(r)
The First Respondent replied on the 29
th
, once again
raising numerous issues which are not germane to the application
before me. What is of relevance is that he refused
to vacate
and stated further that he would continue to pay the rent by the 6
th
of the month: “
Geen argument nie”,
(to quote
him);
(s)
As a result of the aforegoing the Applicant instituted proceedings in
accordance with
PIE. On 9 May 2024 the requisite section 4(2)
notices were personally served on the Respondents.
[6]
So much for the background. I should add that in an effort to
resolve the stand-off
the agent had been actively looking for
alternative accommodation for the Respondents. The First
Respondent wasn’t
interested. In respect of a property
the agent had identified and wanted to show the Respondents the
Second Respondent sent
her a WhatsApp which reads:
“
Oom stel nie
belang nie. Gaan bly totdat ons hofbevel kry ons moet trek”
[Uncle is not interested.
[We] are going to stay until we get a court order [that] we
must move].
[5]
[7]
It is not in dispute that the formal statutory requirements have been
complied with.
No more need be said in that regard.
[8]
The Applicant’s first hurdle is to establish that the
Respondents are unlawful
occupiers as defined in section 1 of PIE.
An unlawful occupier is defined 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…”
.
[9]
The Applicant’s case as to how the Respondents acquired
occupation of the property
is contradictory, to say the least.
On the one hand a written lease is pleaded, which lease she alleges
has been cancelled
due to the First Respondent’s breach
thereof; on the other hand, it is alleged that no lease was concluded
because the Applicant
refused to sign; then again, a month-to-month
lease is alleged, on what terms it is unclear. On the other
hand the First
Respondent maintains that a written lease agreement
was concluded.
[10]
Although it was an appeal against the granting of summary judgment, a
similar situation arose
in
Morgan
v Blue Beacon Investment 206 (Pty) Ltd
[6]
where Matsemela AJ stated (at paragraph [16]):
“
It was argued on
behalf of the appellant that she did not enter into contract with the
Respondent. The fact that the lease
agreement was not signed,
means that there was no contract. I am unable to agree to agree
with counsel of the appellant on
this argument. It is trite
that the lease agreement does not have to be signed in order to be
binding. If one of the
parties did perform in terms of the
unsigned contract that should be suffice for the contract to be
binding.”
[11]
Ironically, although he relied upon the lease agreement the First
Respondent’s version
of what had been agreed to was equally
muddled. While he was adamant that a written lease agreement had been
concluded, he disputed
– and certainly did not comply with –
a number of the material terms thereof. That he was in breach
of the contract
upon which he relies appears from his own version.
[12]
The third option, a month-to-month lease is the Applicant’s
fall-back position. Exactly
how this came about it never
explained.
[13]
Fortunately, I am of the view that it is not necessary to resolve
this confusing situation.
On any one of the three scenarios,
the Respondents are unlawful occupiers as defined. If there was
a written lease the First
Respondent, on his own version, was in
breach thereof and the lease was validly cancelled. If there
was no lease agreement
the occupation is
per se
unlawful.
If there was a month-to-month, it was validly terminated.
[14]
In his lengthy and very detailed opposing affidavit the First
Respondent repeats his dissatisfaction
with the condition of the
property and that the lease agreement did not correctly record all
the terms and conditions agreed upon.
If he is to be believed
the property was in a dilapidated stated (oven not working, broken
tiles in the bathroom, and so on), but
that does not assist the First
Respondent because of the voetstoots clause.
[15]
That the lease agreement does not correctly reflect all the agreed
terms is also of no assistance
to the First Respondent. Clause
32 thereof provides:
“
32.1. No
addition to or variation or cancellation of this Lease Agreement,
including this clause, has effect unless it is
in Writing and signed
by both parties.
32.2. The
Landlord and the Tenant agree that this Lease Agreement is the whole
agreement between the Parties in regard
to its subject matter.
32.3. The
Parties undertake at all times to do all such things, to perform all
such acts and to take all such steps
as may be open to them and
necessary for or incidental to the putting into effect or maintenance
of the terms, conditions and import
of this Lease Agreement.”
[16]
As already alluded to, on his own version the First Respondent was in
breach of the very agreement
upon which he relies. In the
circumstances I find that the Respondents fall within the definition
of unlawful occupiers as defined
in PIE.
[17]
As the Respondents were in unlawful occupation for less than six
months when the proceedings
were initiated section 4(6) of PIE
applies. This section provides that the court
may
grant
an eviction order if it is of the opinion that it is just and
equitable to do so after considering all the relevant circumstances,
including the rights and needs of the elderly, children, disabled
persons and households headed by women.
[18]
Section 4(8) provides that if the court is satisfied that the
requirements of section 4 have
been complied with it
must
grant an eviction order and determine a just and equitable date upon
which the unlawful occupier is to vacate, alternatively be
evicted.
[19]
The factors to be taken into account when considering what is just
and equitable were dealt with
extensively in
Rustenburg
Platinum Mines Ltd v The Unlawful Occupiers
[7]
in which judgment numerous very helpful authorities are quoted.
Due to its length the relevant paragraphs, namely [26] –
[55],
will not be repeated herein, but I have had regard thereto in coming
to my decision.
[20]
It is vitally important when considering a just and equitable remedy
(a moving target, if ever
there was one) for the court to take a
proactive role in balancing the respective rights of the parties.
There is no one-size-fits-all
approach.
[21]
The First Respondent is 80 years old and the Second Respondent is of
a similar age. Despite
his age the First Respondent still works
and is self-employed in the agricultural sector working with his
son. The work he
does is sporadic. He has no pension.
The Second Respondent is not employed.
[22]
On the other hand it is not suggested that the Respondents are
destitute. The First Respondent
can afford to pay R7,000.00 a
month rental, albeit late, and the municipal charges, albeit
irregularly. His bank account
for September, October and
November 2023 reflects a healthy positive balance. There also
appears to be ample alternative
accommodation available in the First
Respondent’s price range (but unfortunately he spurned all the
agent’s efforts
and refused to even view the properties she
sourced).
[23]
What appears to have been overlooked by both parties, particularly
the First Respondent, as it
is his case that a binding lease
agreement was concluded, is that the contract terminates on 31
December 2024. On that date
the Respondents will be obliged to
vacate the property and if they don’t do so they will become
unlawful occupiers on their
own version.
[24]
Taking all the factors into account in coming to a just and equitable
remedy, even although the
disputed lease agreement terminates on 31
December 2024, given the time of year the Respondent should be given
until 31 January
2025 to vacate the property, provided the rental and
service charges are paid timeously. In the event of the rent
and service
charges not being paid, or not being paid timeously, the
Applicant shall be entitled to immediately obtain the eviction of the
Respondents.
[25]
Which brings me to costs. Clause 28 of the lease agreement
provides that the parties consent
to the jurisdiction of the
Magistrates’ Court and may at their discretion litigate in that
court.
[26]
The First Respondent repeatedly made the point that the Applicant
should have brought this application
in the Magistrates’ Court
and that litigating out of the High Court amounted to an unnecessary
escalation of the costs.
[27]
Clause 28 would only come into contention if there was a valid lease
agreement. The First
Respondent is adamant that there is one.
The Applicant argued that there isn’t, but not very
convincingly and even
prayer 1 of the notice of motion prays for the
confirmation of the cancellation of the lease agreement, which is odd
given her
ambivalent attitude thereto.
[28]
But even if there is a no lease agreement PIE confers jurisdiction on
the Magistrates’
Court and I am in agreement with the First
Respondent that bringing the application in the High Court, when it
could just as easily
have been brought in the Kariega (Uitenhage)
Magistrates’ Court, was an unnecessary escalation of the
costs. I accordingly
intend to order costs on the scale
applicable in that court. However, given the extensive issues
involved, which were largely
caused by the First Respondent, I intend
to make it a punitive order.
[29]
In the circumstances I make the following order:
1.
The First and Second Respondents are hereby ordered to vacate the
property, Erf
3[…], situated at […] S[…] Street,
Despatch, by 31 January 2025.
2.
Paragraph 1 is subject to the First Respondent continuing to pay the
monthly
rental (R7,000.00) and service charges timeously in
accordance with the written lease agreement. In the event of
the First
Respondent failing to do so the Applicant shall be entitled
to immediately obtain the eviction of the Respondents in the manner
referred to in paragraph 3 below.
3.
In the event of the First and Second Respondents failing to vacate
the premises
on the date prescribed in paragraph 1, or failing to
comply with paragraph 2 above, the Sheriff and/or his deputy be
authorised
and directed to take such steps as are necessary,
including enlisting the assistance of the South African Police
Service, to evict
the First and Second Respondents, the costs
occasioned thereby to be paid by the First Respondent.
4.
That the First Respondent shall pay the costs of the application on
scale C of
the Magistrates’ Court tariff on an attorney and
client scale, with the costs of counsel to be taxed at three (3)
times the
tariff and to include the costs of heads of argument and
preparation.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Applicant:
Adv. M Van Schalkwyk
Instructed
by:
DEON VAN DER MERWE ATTORNEYS INC.
101 Main Road
DESPATCH
Obo
the Respondents:
First Respondent in person
[1]
As there are
no Further Respondents (Third Respondent) and the Nelson
Mandela Bay
Municipality (Fourth Respondent) did not enter the fray, the First
and Second Respondents will be referred to collectively
as the
“Respondents”, unless the context requires otherwise.
[2]
See:
Oosthuizen and Another v The State (CA&R 248/2021; CA&R
45/2023) [2024] ZAECMKHC 101 (19 September 2024).
[3]
Translated
into English by the Applicant.
[4]
Despite the
poor grammar and syntax, the meaning is clear.
[5]
My
translation.
[6]
[2019]
ZAGPJHC 65 (7 February 2019).
[7]
[2024]
ZANWWHC 227 (9 September 2024).