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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 14885/2022
In the matter between:
FRANCOIS ZEELIE First Applicant
ELSA ZEELIE Second Applicant
and
JOHANNES GERHARDUS ZEELIE First Respondent
JENINE ZEELIE Second Respondent
ALL OTHER PERSONS OCCUPYING Third Respondent
1[…] F[…] AVENUE, SOMERSET WEST,
CAPE TOWN
CITY OF CAPE TOWN Fourth Respondent
Heard: 14 March 2023, 23 May 2023, 29 August 2023, 30 October 2024 , 26 April
2024, 31 May 2024, 25 July 2024 and 20 November 2024
Delivered: 18 November 2024 (delivered electronically to the counsel)
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JUDGMENT
Henney J:
[1] This is an application in terms of section 4(1) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) wherein the applicants seeks
an eviction of the first and second respondents (“the respondents”) and any other
occupants cited as the third respondent from their immovable property known as Erf 4 […]
situated at 1 […] F[…] Avenue, Somerset West, Cape Town (“the property”). Although the
applicants as well as the respondents carry the same surname, they are not related to
each other. The applicants are the lawful and registered owners of the property.
The Applicants Case:
[2] In or about 19 December 2011, the applicants entered into written lease agreement
with the respondents. The relevant terms of the lease agreement between the parties were
as follows:
a) that the respondents would lease the property from the applicants for the
period 1 January 2012 to 31 December 2012;
b) that the respondents pay monthly rental in the amount of R6000;
c) that no alterations should be made to the property without the written
consent of the landlord; and
d) should the respondents fail to comply with any of the terms of the lease
agreement, the applicants would be entitled to cancel the agreement
immediately and take possession of the property.
[3] The respondents took occupation of the property in January 2012. According to the
applicants, the lease agreement was renewed on the same terms as set out in the written
lease agreement, save for the fact that the rental amount increased, and the parties would
give each other one month’s notice should they wish to terminate the lease agreement.
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[4] On 26 January 2022 , an email was addressed to the second respondent wherein
the applicants gave them one calendar month notice to vacate the property. This notice to
vacate was based on the conte ntion of the applicants , that the respondents are in breach
of the lease agreement by performing renovations and alterations without their prior
consent.
[5] In an email dated 4 February 2022, the applicants informed the respondents that at
no time was permission given in writing or verbally that construction or alterations could be
done to the property, for instance, demolishing or revamping part of the bathrooms, floor or
any part of the property. This was followed up by a further email addressed to the
respondents on 23 March 2022 , wherein they were advised that they were given notice to
vacate the property before, but not later than 28 February 2022 and that sufficient time had
been given for them to obtain another property.
[6] The respondents were further advise d that the applicants wish to sell the property,
and they would need access for prospective buyers from the following week. A report was
provided by the rental agent dated 23 July 2022 , wherein she stated that she h eld an
inspection of the property on 22 July 2022. Therein , she indicates that there were still no
signs of the respondents intending to vacate , even though they had been asked to vacate
the premises on multiple occasions from 26 January 2022.
[7] She further noted that there was rubbish and rubble which violates clause 27 of the
lease agreement. The applicants submit that despite the lease agreement having been
terminated and the respondents being given notice to vacate, they failed to do so.
[8] Accordingly, they submit that the respondents and all those holding title and/or
occupying the property through and/under them are in the unlawful occupation of the
property. This is based on the fact that the lease agreement has been terminated between
the parties after the applicants have requested the respondents to vacate the property on
more than one occasion, which they refused to do.
The Respondents’ case
4
[9] The respondents opposed the application and during the hearing of the application ,
the respondents raised a point in limine, in which they aver that the proceedings cannot be
concluded because of a dispute of fact , based on their version of the events as set out in
the opposing affidavit.
[10] According to the respondents , while the agreement was for 12 months from the
period 1 January 2012 to 31 December 2012 without an option to renew such agreement
with the respondents agreeing to pay rental in the amount of R6000 per month \ the said
agreement of lease was only renewed i n December 2012 and again in December 2013. It
terminated on 31 December 2014 when the par ties concluded a further oral agreement of
lease (during December 2014) which commenced on 1 January 2015 for an indefinite
period, alternately for at least 10 years, with material terms being:
a) that the first respondent repairs the (structural) faults to the leased property
at his own cost and as and when he was financially able to do so; and
b) that in return for th is service, the applicants would charge the respondents
rental of R7260 per month plus electricity and utility charges in respect of the
leased property during the said lease period.
[11] The respondents further aver that the present monthly rental (and in at least
October 2022) was still R7260 which is the sa me rental which they commence d paying in
January 2015 in terms of the said oral agreement of lease. They further submit that
notwithstanding the denial of this allegation by the letting agent , Brink, in her replying
affidavit, there is no evidence by the a pplicants or Brink with regard to the current monthly
rental in respect of lease d property. Furthermore, that Brink in her replying affidavit states
that the leased property was increased to R7260 from 1 August 2018.
[12] The respondents submit that even on the applicants’ version, it is probable that
respondents are still paying a rental of R7260 per month, and it is significant that neither
the applicants nor Brink has given an explanation as to why the applicants have not
increased such monthly rental during the period from at least 2019 to 2023.
[13] According to the respondents , the reasons why they are still paying a rental of
R7260 per month is because the applicants agreed not to increase this amount as a quid
5
pro quo for the structural improv ements which the first respondent undertook to attend to
at the lease d property during the lease period, which commenced on 1 January 2015 in
terms of the said oral agreement of lease.
[14] The applicants as per Brink, solely rely on the alleged breach of paragraph 7 and 11
of the said written agreement of lease by the respondent so as to justify the cancellation or
termination of the said agreement by the applicants. The respondents deny that they are in
breach of the contract and conten d that they were g iven express permission by the
applicants to repair the structural fault s at the applicants’ property at their own cost s and
that in return, the rental of R7260 per month would not be increased during the remaining
period of the oral agreement of lease i.e. from 1 January 2015 to 31 December 2024.
[15] The respondents set out the grounds upon which they oppose the application for
eviction in paragraph 9 of their opposing affidavit which forms the basis upon which they
contend that there is a material disp ute of fact on the papers. In paragraph 9 of the
opposing affidavit, they state the following:
‘9.5 During or about December 2014 the Applicants, who reside overseas, visited
us. The Second Respondent and I informed the Applicants that we enjoyed
residing in their property but that there were a large number of faults and that
if they intended escalating the rental for 2015, we would expect them to
repair these faults.
9.6 The Applicants informed the Second Respondent and myself that as their
children were at school overseas, they would not be returning to reside in
South Africa for the next twenty (20) years.
9.7 I enquired from the Applicants whether they were interested in selling the
property. They informed me that they were not and the Applicants and the
Second Respondent and I then concluded an oral agreement of lease in
terms of which it was agreed:
9.7.1 that we could rent the Applicant’s said property fr om 01 January 2015
for an indefinite period, alternatively for at least the next ten (10)
years;
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9.7.2 that I would repair the faults to the property at my own costs and as
and when I was financially able to do so;
9.7.3 that in return for my work and the materials supplied in repairing the
said faults to the property, the Applicants would not increase the
monthly rental of R7 260,00 during the said lease period.’
[16] During the hearing of the matter on the opposed matter roll on 14 March 2023 , the
respondents’ case was clearly based on paragraph 9 of the answering affidavit in terms of
which they contend that an oral agreement was concluded between them and the
applicants in December 2014. This was vehemently denied in their replying affidavit as
well as in argument by the applicants, which led to a finding of the court during those
proceedings that there is a dispute of fact on the papers in respect of the question whether
an oral agreement was concluded between the applicants and the respondents in
December 2014.
[17] The court was requested by the respondents therefore , to refer the matter to oral
evidence in terms of the provisions of rule 6(5)(g) which states:
‘Where an application cannot properly be decided on affidavit the court may dismiss
the application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the
aforegoing, it may direct that oral evidence be heard on specified issues with a view
to resolving any dispute of fact and to that end may order any deponent to appear
personally or grant leave for such deponent or any other person to be subpoenaed
to appear and be examined and cross -examined as a witness or it may refer the
matter to trial with appro priate directions as to pleadings or definition of issues, or
otherwise.’
[18] It is well established that the court will only refer the matter for oral evidence on
specified issues with a view of resolving the dispute of fact within this narrow compass that
can be expeditiously disposed of. Since the hearing of oral evidence is intended to be on
specified issues only, it is desirable that the court states in its order which issues will be
determined by the hearing of oral evidence and defines who may be called as witnesses.
7
‘The court must be on its guard not to formulate its order in such a way that the hearing of
oral evidence is , perhaps unintentionally , converted into a trial. The fact that the court
orders oral evidence does not enlarge the scope of the enquiry’.1 By agreement the matter
was postponed to Tuesday, 23 May 2023 for the hearing of oral evidence with regards to
the following specified issues:
a) whether the parties concluded an oral agreement of lease during or about
December 2014; and
b) whether the terms of the lease agreement are those as set out in paragraph
9 of the first respondent’s opposing affidavit.
[19] The hearing of oral evidence proceeded on 23 May 2023, when the evidence of the
second applicant was heard and thereafter p ostponed, to hear the evidence of the first
applicant. However, after the completion of the evidence of the second applicant , the
respondents lodged an application for the amendment of the opposing affidavit. This was
after the hearing on 23 May 2023, when the respondents then inform ed the applicants ’
counsel just before the second applicant was about t o testify, that there was an error
regarding the date in the oral agreement , which according to them was concluded in
December 2019 and not December 2014.
[20] This application was heard and disposed of on 30 October 2023 when the
respondents sought either to amend certain dates in the opposing affidavit alternatively , to
place the correct dates before the court in the first respondent’s opposing affidavit as set
out in paragraphs 9.5; 9.7.1; 12.2.1; 16.3; 19.5 and 23.2.2. The purpose of this application
was to amend all the references made in the opposing affidavit from December 2014 to
December 2019 and from January 2015 to January 2019, in the relevant paragraphs
referred to.
[21] The main reasons for dismissing that application was that firstly, the respondents
have failed to make out a case why the amendment should be granted; secondly, that the
granting of the amendment would be limited to the hearing of oral evidence on the grounds
that an order was made and agreed to by the parties which clear ly limited the issues that
had been referred to for oral evidence ; thirdly, it would be prejudicial to the applicants
1 Erasmus: Superior Court Practice; Van Loggerenberg RS23, 2024 at D1 Rule 6-42/43
8
which would amount to a party impermissibly enlarging the scope of the enquiry. In
Wepener v Norton2 it was held that ‘…The fact that the Court orders oral evidence does
not enlarge the scope of the inquiry . . . (T)he fact that oral evidence was ordered does not
give either party the right to a roving commission and to put before the Court any facts
which that party thinks it would like the Court to be aware of. In Lekup Prop Co No 4 (Pty)
Ltd v Wright3 the Supreme Court of Appeal held as follows:
‘A referral to trial is different to a referral to evidence, on limited issues. In the latter
case the affidavits stand as evidence, sa ve to the extent that they deal with
dispute(s) of fact; and once the dispute(s) have been resolved by oral evidence, the
matter is decided on the basis of that finding together with the affidavit evidence
that is not in dispute.’
The Oral evidence:
[22] The matter was postponed for the hearing of oral evidence on 23 May 2023, and
the second applicant, Elsa Zeelie testified in terms of the provisions of section 37C of the
Superior Courts Act 10 of 2013, via an electronic platform from England , specifically in
relation to the issues that had been referred for oral evidence. She denied that they ever
entered into an oral agreement with the respondents in December 2014, where the terms
of the agreement as set out in paragraph 9 of the opposing affidavit was ag reed to. She
denies that they were in South Africa in December 2014 as claimed by the respondents in
their answering affidavit. As proof of this she presented copies of their passports, which
clearly showed that they did not enter the Republic of South Afr ica during that period as
claimed by respondents.
[23] She furthermore specifically denied the allegations of the respondents as set out in
paragraph 9.5; 9,6 and 9.7.1 of the opposing affidavit .4 According to her , the monthly
rental was not increased because the respondents struggled to pay the rent, and it was not
in anyone’s interest to insist that the rental amount be increased.
[24] She furthermore denies that there was an agreement that the respondent repair any
faults and they were never given permission to make any renovations to the property. The
2 1949 (1) SA 657 (W) at 659
3 2012 (5) SA 246 (SCA) at 258
4 Paragraph 15
9
first time that she was made aware of the renovations done at the property was when
Brink, the letting agent, visited the property. It was put to her in cross exam ination that
when the water pipe burst, the tenant had to break up the floor to have it repaired, she did
not deny this but, she stated that permission was not given for them to undertake these
repairs and that an emergency plumber could have been called to assist.
[25] They also never approved any building plans that were submitted to the
municipality. She further denied when it was put to her by the respondent’s attorney that
the oral agreement was not concluded in December 2014 , but in December 2019 whe n
they were in South Africa.
[26] She admitted that they were in South Africa in December 2019 but denied that they
visited the property during that time . They were in Cape Town as her mother was
undergoing chemotherapy and her son was being privately as sessed in Cape Town for
autism. She only spoke to the second respondent telephonically. During this conversation
at no time was permission given that construction or alterations to the property would be
done, or that revamping part of the bathrooms and floor on any part of the property could
be undertaken.
[27] She admits that the plans were given to the first respondent in 2013 as he was
interested in looking at them because he admired the beautiful house, but it was not given
for them for the purposes of effecting any renovations. She testified that the last time she
had visited the property was in 2016 . The main reason for the cancellation of the
agreement was because the respondents were making extensive renovations to the
property.
[28] The first applicant , Mr Fran cois Zeelie also testified via an electronic plat form in
terms of the provisions of section 37C of the Superior Courts Act 10 of 2013 . He testified
that the property was fairly well maintained, and it was in a fairly good st ate because the
previous tenant as well as his father -in-law, who is a plumber by trade , fixed everything
before the respondents moved in. They also never received a list of matters to attend to
from the respondents when they moved in as required in terms of clause 5 of the lease
agreement.
10
[29] There was a procedure that had to be followed as explained by Brink, when repairs
had to be done to the property or if there were any faults that had to be attended to. When
there were major problems, the insurance was contacted to deal with it. No invoice was
submitted to him by the respondents. Before the respondents move d into the property , it
had only one suite bathroom, but it seems on the evidence a further suite bathroom was
constructed of which they have not been informed.
[30] He furthermore denied that any oral agreement had been entered into in 2014 and
also denied that he agreed to the terms of the alleged oral agreement. He confirmed that
they were not in South Africa in 2014. He would also never have agreed to enter into a
lease agreement for such a long period as alleged by the respondents.
[31] He furthermore confirmed that an email dated 19 February 2022 from Brink that
was sent to the respondents , informing the respondents that it was the ir intention to evict
the respo ndents because of the alterations and or damages to the house that they had
undertaken. He further confirmed that they have given Brink permission to cancel the
lease agreement on their behalf and that they gave the respondents one month’s notice.
[32] He furthermore testified that he never signed the building plans for renovations and
that he was not aware of any municipal approval obtained from the municipality in respect
of that building plans. The respondents also never provided them with any t ile or p aint
samples or pictures for their approval. He also does not have any knowledge of the
boundary wall falling down because if that had happened , they would have claimed it from
the insurance. The invoices for the erection of the boundary wall were never discussed
with him.
[33] He furthermore testified during cross examination that any major repairs like the
replacements of carpets or the fixing of burst pipes would have been claimed from the
insurance if he had known about it. He also denies that they had spoken to the first and
second respondents in 2019 and said that while they planned to go to the property, they
did not do so because of his mother -in-law’s ill health and consequently they did not have
time to do so. It was only when they receive d photographs from Brink about the condition
of the property when they decided it could not carry on like this. The last time he believes
that he was at the property was in 2016 but at that time he did not observe any
renovations.
11
[34] The second respondent thereafter testified and stated that the applicants ca me to
look at the property in 2016 and that there was no discussion with them about what needs
to be done . In fact, the applicants thanked them for the work that they had done to the
property and thank ed them for being such good tenants. They also said that the rental
would not increase as they have already spent so much money on the house.
[35] She further testified that the terms of the oral agreement were that they can stay
there by paying the same rent for a period of 10 years in terms of the oral agreement, and
in turn they were required to fix the property. It was an oral agreement entered into
between them and the applicants. This oral agreement never took place in December
2014. When asked certain questions by the court she testified that the y never obtain ed
permission from the applicants to build a boundary wall.
[36] She furthermore confirmed during cross -examination that she had read and
understood the terms of the written lease agreement that formed part of the documents
before the court. When she was referred to clause 5 of the agreement, she confirmed that
they ele cted to accept the property in the state that they found it . She furthermore
confirmed that they never sen t a list of faults to the applicants as required in terms of
clause 5 of the agreement.
[37] She further stated that she received an email from Brink dated 30 May 2013, which
stated that the rental agreement would be renewed on a month -to-month basis in the
same terms as the previous agreement. She conceded that there is a difference between
repairs and renovations to the property. She conceded that no oral agreement was
entered into in 2014 and that she could not dispute that the applicants were not in the
country in 2014 as their passports reflect that they were not.
[38] She furthermore conceded that there was never any oral agreement in respect of
renovations that could be done to the property even on their own version. Furthermore,
she conceded that the rental amount was only increased to R7260 on 1 August 2018. She
could not say and was not sure if any municipal approval was obtained for the renovations
made to the property and that her husband would be able to answer that.
12
[39] When it was put to her that the applicants could not have seen any renovations
when they visited the property in 2016 as there were no such renovations or alterations in
2016, she conceded that there were no such renovations, but that repairs were done when
they fixed and replaced the carpets. She was not able to testify about the invoices that
formed part of the record to show that repairs and renovations were done because her
husband would be able to answer questions in respect of those invoices. But he was never
called to testify.
Evaluation:
[40] This matter falls to be determined on the issue of whether an oral agreement was
concluded between the parties as stated in paragraph 9 of the opposing affidavit of the
respondents. That was the factual issue in dispute in terms of which this matter was
referred to oral evidence. From the onset the case of the respondents was that an oral
agreement was concluded in December 2014 as set out in paragraph 9.5 and 9.6 of the
answering affidavit. The first respondent stated in paragraph 9.7 that they concluded a n
oral agreement of lease between them and the applicants in terms of which it was agreed
that they could rent the property from 1 January 2015 for an indefinite period, alternately
for at least 10 years. The first respondent would repair the faults to the property at his own
costs as and when he was financially able to do so ; in return for his work and materials
supplied in repairing the said faults to the property, the applicants would not increase the
monthly rental of R7260 during the lease period.
[41] It is clear that the version proffered by the respondents in their answering affidavit is
inconsistent with the evidence given by the second respondent and the surrounding facts
of this case. This was conceded by Mr. Smith who appeared for the respondent s. The first
respondent who deposed to the opposing affidavit elected not to testify in order to assist
the court to resolve the dispute of fact he raised on the papers.
[42] According to the second respondent, the first respondent was in a position to shed
more light on certain aspects of their case where she was unable to do so , especially on
the question as to how the plans for the renovations were approved by the municipality
without the consent of the applicants; why major renovations were undertaken where there
was supposedly an oral agreement based on his affidavit that he was given permission
only to repair some of the faults to the property.
13
[43] In my view, t he court is entitled to draw an adverse inference from a party who
deposed to an answering affidavit which raises a dispute of fact in motion proceedings on
a crucial aspect where that party fails to present him or herself to give oral evidence after a
referral. This is in line with the well-established rules of evidence.
[44] During the application by the respondents to amend certain paragraphs as pointed
out in their opposing affidavit, I have given reasons as to why I found it improbable that the
date of December 2014 during which the oral agreement was concluded as stated by the
respondents in their opposing affidavit , was not as a result of an error made by the first
respondent or the ir attorney. I wish to restate why I said that and why I say that the
respondents’ version that the oral agreement was concluded in December 2014 was a
fabrication, after it was overwhelmingly proven by the applicants that they were not in
South Africa in December 2014. It seems that when the respondents were caught out and
when the shoe was pinching , they tried to pursue a different version , which is that the oral
agreement was concluded in December 2019 and not in December 2014.
[45] If regard is to be had to the chronology of events as set out in paragraph 9 of the
opposing affidavit which happened before December 2014, it is clear as to how the
respondents arrived at the date of December 2014 , on which they say that the oral
agreement was concluded. It is in line with the series of occurrences that happened during
2013 and 2014 prior to December 2014. This is in answer to an allegation made in
paragraph 7 of the applicants’ founding affidavit where the applicants through Brink, stated
that the material terms of the lease agreement entered into between them and the
respondents were fir stly, as stated under paragraph 7.1 that : ‘the first respondent leased
the premises for a period of 12 (twelve) months commencing from 1 January 2012 and
terminating on 31 December 2012’ . Secondly under paragraph 7.2 that ‘ the lease was
extended by agreement in writing between the parties’.
Under paragraph 9 of the opposing affidavit in answer to this allegation made by the
applicants that there was a written lease agreement that was extended in writing between
the parties after 31 December 2012, the respondents denied the existence of such a
written agreement.
14
[46] The first respondent further states that on 31 December 2012 there was an
intention of the first respondent to extend the agreement for the whole period of 2 013.
Further, that they requested that the agent of the applicants furnish them with the new
written lease agreement, which the agent failed and/or refused to do so . Soon thereafter,
during or about 2013 the geyser in the roof burst and certain ceilings, walls and floors were
damaged. The first respondent states that they suggested to the applicants that he install
the new geyser on the outside of the house. To do this, the applicants gave him the money
to attend to the repairs which he did.
[47] The first respondent further states that prior to 31 December 2013 he again
informed the applicants ’ agent that they wish to extend the lease of the property. They
were then advised by the applicants’ agent that the rental will be increased by 10% and
the rental for 2014 would be R7260. They agreed to this and once again , they requested
the applicants’ agent to furnish them with the new written lease agreement which she once
again failed or refused to do.
[48] In paragraph 9.4 of the opposing affidavit the fir st respondent states that during or
about September 2014, the applicants’ agent inspected the property and recorded certain
faults set out further in that paragraph. During December 2014, he states in paragraph 9.5
they were visited by the applicants. It was also at that time that they stated to the
applicants that they enjoyed residing in their property, but there were a large number of
faults and if they intended to increase the rental amount , that the respondents would
expect the applicants to repair th ese faults. It was also during this time as stated in
paragraph 9.7 that there was an agreement between them that they could rent the
property from 1 January 2015 for an indefinite period, alternately , for at least 10 years.
Secondly the first respondent w ould repair the faults the property at his own costs as and
when he was financially able to do so. Thirdly, in return for his work and materials supplied
in repairing the property, the applicants would not increase the monthly rental of R7260
during the said lease period.
[49] Given this chronological and factual account as laid out by the respondents in their
opposing affidavit, it seems the period to which he referred to in paragraph 9 in application
of the case that there was no written lease agreement, runs from 31 December 2012,
through to 2013 and up to September 2014 which culminated in the alleged oral
agreement being concluded during December 2014. Given the factual matrix as set out by
15
the respondents , there was no oral agreement after 31 December 2012. This , despite
attempts being made by them to engage the assistance of the agent of the applicants to
present them with the new written agreement on more than one occasion during 2013.
[50] In paragraph 9.2.7 the first respondent says that prior to 31 December 2013 he
again informed the applicants ’ agent that he wishes to extend the lease of the property .
They were informed that the rental for 2014 would be increased to R7260 per month. Once
again, they requested the applicants ’ agent to fur nish them with a new written lease
agreement. Which she failed or refused to do. Thereafter, during 2014 when an inspection
was held and certain faults were pointed out, once again nothing happened.
[51] The next date as pointed out earlier which they stated was in December 2014 ,
when they interacted directly with the applicants where they concluded the oral agreement.
On the version of the respondents, as set out from paragraph 9. 1 up to paragraph 9. 5
about what transpired in the months prior to December 2014, they concluded that the oral
agreement was allegedly concluded in December of 2014. Therefore, I find that it is highly
improbable given the facts as set out by the respondents, on their own version, that the
oral agr eement could have been concluded in December 2019. It seems what the
respondents attempted to d o was to close a gap in their case by introducing a new fact
which did not comfortably fit in with the facts upon which they initially laid as a basis for the
allegation they made as to the exact date when the oral agreement had been concluded.
[52] The date of December 2019 does not fit in, and it is inconsistent with the factual
matrix as set out by the respondents in their opposing a ffidavit as I referred to above. It
seems that it was only after it was belatedly shown to them that the applicants could not
have been in South Africa based on their travel documents in December 2014, that they
changed tack and adapted their version that the oral agreement was concluded in
December 2019, when it became known to them that the applicants were indeed in South
Africa during that time.
[53] On either version of the respondents , whether it was December 2014 which was
contradicted by the evidence p rovided by the applicants because they have conclusively
shown that they were not in South African in December 2014, and on their own version of
the events leading up to the supposed con clusion of the oral agreement in 2014, no oral
agreement could have been concluded in December 2019.
16
[54] Apart from the respondents being inconsistent and not able to show whether an oral
agreement was concluded in December 2014 or December 2019, on th e facts and
evidence presented by the respondents themselves , they contradict their own version as
to the exact terms of the supposed oral agreement. In this regard , the first respondent on
more than one occasion stated that the agreement was and more part icularly in
paragraphs 9.7.2 and 9.7.3 and in other parts of paragraph 9, that he would repair ‘the
faults’ to the property at his own costs.
[55] It however seems, that the respondents undertook major renovations to the
property for which they needed plans to be approved. They renovated a bathroom, erected
a wall and have redone some from flooring of the property, which is far more than the
repairing of mere faults. The evidence and the version they put up by showing what
massive costs was incurred by them in doing this work , clearly shows that they were not
busy with mere repairing of faults but with full -scale renovations, which only the owners of
a house would normally do.
[56] If indeed there was such an oral agreement, they failed on their own version to
comply with the terms of the alleged oral agreement, by making major renovations and not
merely effecting repairs. For all of these reasons, the respondents have failed to make out
a case that there was an oral agreement as alleged in paragraph 9.7 of their opposing
affidavit, which permitted them to repair the faults and make renovations without their
permission of the applicants.
[57] I therefore agree with the applicants, by doing so they failed to comply with clause 7
and clause 11 of the written agreement, by effecting alterations without their express
permission. They have caused extensive damage under the guise of alterations and
breached clause 5 of the lease agreement. They were bound by this agreement and the
applicants was entitled on notice to cancel the contract as they did on 4 February 2022.
[58] On 23 March 2022 a further email was addressed to the respondents wherein the y
were advised that they had been given notice to vacate the premises. Despite the lease
agreement having been terminated and the respondents having been given notice to
vacate, they failed to do so.
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Just and Equitable to Evict
[59] The next question to consider is whether it would be just and equitable to grant and
order for the eviction of the respondents in terms of section 4(7) of PIE. In terms of this
provision, a court may grant an order for the eviction of an unlawful occupier , if it is of the
opinion that it is just and equitable to do so , after considering all the relevant
circumstances. Such circumstances would include the availability of other accommodation
for the unlawful occupier. The court should also consider the rights and needs of the
elderly, children disabled persons and households headed by women in considering the
circumstances.
[60] In this particular case, the first respondent stated in their affidavit that at the time of
the institution of these proceedings, that he and the second respondent have two children.
One of the children no longer resides with them. The second respondent’s youngest child
M[…], a female has been positively diagnosed with an autism spectrum disorder (ASD)
which is permanent and regressive in nature, and which renders her unable to earn any
sufficient income with which she can maintain herself. She also suffers from asthma, and
that she has difficulty to adapt to any change in her circumstances. She attended the A[…]
D[…] […]school for learners with special needs from 2007 until 2015.
[61] The first respondent further states that he performed renovations to the property
that amounts to approximately R980,000. That he and the second respondent have saved
approximately R390,000,00 by not having to pay any increase in the rental amounts since
2014. He contends however , that whilst the property of the applicants has increased in
value su bstantially, they have been impoverished. And he has expended approximately
R590,000 of his own money on building materials and labour, more than the total amount
which they have saved.
[62] He submits that alternative accommodation is substantially more expensive than
the monthly rental for which they are paying at present. He furthermore cannot
understand why the applicants are not prepared to sell the property to him and the second
respondent. The first respondent further states in his affidavit that he is a building
contractor, and it seems at the time when he deposed to this affidavit, he could not earn a
proper living, because of the Covid 19 pandemic.
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[63] No further information other than what was stated in the affidavit of the first
respondent regarding the ir circumstances or change d circumstances has been placed
before the court. Except for that in his address to this court , at the conclusion of the
proceedings, Mr. Smith stated that the applicants concede d they can afford to pay ren t of
R7260 and that they have funds to complete the building. He further submitted that should
the court grant the order, it would be very difficult to find alternative accommodation.
[64] Mrs Bosman appearing for the applicants , submitted that the respondents seem to
be by the means to afford to rent , for alternative accommodation , given the amount of
money they have spent on renovations. They also stated in their affidavit that they are able
and can afford to fix the property. She submitted that the respondents had been given
sufficient time to make alternative arrangements for accommodation . During the court
proceedings, this matter stood down for them to consider making alternative
arrangements.
[65] The owners of the property have for a period of 2 years since the start of the
proceedings not been able to do what they want with the property. They want to sell the
property, but not to the respondents. They are further being prejudiced because they
cannot sell the property because of its current state and will have to spend some more
money to do the necessary repairs and renovations in order for them to sell it.
[66] In considering th e circumstances of this case, it is clear that the respondents
treated the property as if it was their own, by doing some major renovations without the
applicants’ consent. Their conduct is akin to having taken over the property by making it
their own, wit hout having proper regard for the rights of the lawful owners thereof. From
the amount of money they spent based on their own version, they have spent
approximately R980,000 on renovations to the property which includes the cost of
materials. They are able to pay an amount of rental in the amount of R7620 and they have
managed to save R390,000 by not paying the increased monthly rental as from 2014.
These are not small amounts and clearly it seems that the respondents are not indigent.
They are able to fend for themselves and have the necessary means to do so. It is also not
clear what the monthly income of the first respondent is, but it should be more at this stage
than the R8000 he says he managed to earn during the Covid period as a building
contractor, which has since long passed. Given all these circumstances, I am of the view
that it is just and equitable to grant an order for the eviction of the respondents.
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Costs
[67] Regarding costs, Mr Smith argued that this was a simple eviction matter which
could have been dealt with in the Magistrates ’ court in Somerset West. He submitted that
the court should therefore grant party and party costs on the Magistrates ’ court tariff on
Scale A.
[68] Mrs Bosman submitted that the respondents should pay the cost s of the eviction
application as well as the costs of the court appearances in respect of the oral lease
agreement on Scale B on the High Court tariff of costs. She argued that the respondents
elected to persist with allegations that there was an oral agre ement and the terms thereof
despite the court dismissing their application to file a further affidavit to amend the date of
the alleged oral agreement.
[69] She further submitted that they still persisted with their application despite the court
reminding them that these are eviction proceedings and not proceedings in which they
claim for damages based on a claim for unjustified enrichment against the applicants in
different proceedings. She submits that t hey were made aware of their possible claim for
unjustified enrichment as far back as February 2023 when this was raised in the applicants
replying affidavit. She submits that a costs order on Scale B is warranted in this matter as
it has not been a simple eviction application, but one requiring multiple appearances and
interlocutory applications.
[70] Furthermore, Mrs Bosman submitted that it is evident that the first and second
respondents have perjured themselves in this matter by referring to an alleg ed oral
agreement which took place in 2014, alternatively , they have attempted to mislead the
Court. For this reason, the Court should not hesitate to show its displeasure and order the
first and second respondents to pay the costs of this application as well as all the
appearances.
[71] I agree with M iss Bosman, especially after the respondents had conceded that the
property does not belong to them and that the applicants were no longer willing to lease
their property to them , which meant that at some stage, they had to vacate the property .
Notwithstanding this, they persisted with their claim that they were justified to occupy the
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property. The applicants went to considerable costs and effort to bring this application in
this court and sh ould be granted their costs as the successful party as requested by Mrs
Bosman.
[72] Given all the circumstances, I am of the view that it is just and equitable to grant an
order for the eviction of the respondents. In considering the time and date of the eviction I
firstly, consider the interests of M[…] who suffers from ASD, and secondly that given that
we are almost at the end of the year and entering the festive period , the proper course of
action would be to delay any eviction until January 2025.
Order
[73] In the result, I make the following order:
73.1 that an order for the eviction of the first and second respondent and all other
persons holding title under the first and second respondent is granted;
73.2 that the first and second respondents are ordered to vacate the property
known as 1 […] F[…] Avenue, Somerset West, Cape Town, by no later than
15 January 2025, failing which the eviction may be carried out by the sheriff’s
deputy on 20 January 2025;
73.3 the first and second respondents are ordered to pay the costs of this
application, such costs to include the costs of the proceedings on 30 October
2023, on the High Court Scale B.
__________________________
R.C.A. Henney
Judge of the High Court
Counsel for Applicants : Adv L Bosman
Instructed by : Brenda Munro Attorneys
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Counsel for the Respondents : Mr John Smith
Instructed by : John Smith & Associates