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[2019] ZASCA 146
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Jones and Others v Sutherland and Another (478/2018) [2019] ZASCA 146 (14 November 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 478/2018
In
the matter between:
CEDRIC
MORGAN
JONES FIRST
APPELLANT
DIANE
MORGAN JONES
SECOND
APPELLANT
KERENZA
MORGAN JONES
THIRD
APPELLANT
and
SHAWN
SUTHERLAND FIRST
RESPONDENT
JULIA
SUTHERLAND SECOND
RESPONDENT
Neutral
citation:
Jones & others v
Sutherland & another
(478/2018)
[2019] ZASCA 146
(14 November 2019)
Coram:
Maya P, Tshiqi, Mokgohloa, Nicholls JJA
and Dolamo AJA
Heard:
13 September 2019
Delivered:
14 November 2019
Summary
:
Eviction in terms of
Extension of Security of Tenure Act 62 of 1997
–
is it just and equitable to terminate the right of residence in terms
of 8(1) and grant an eviction order – after
balancing rights of
the parties held that the eviction should be granted.
ORDER
On
appeal from:
Land Claims Court, Port
Elizabeth (Canca AJ sitting as court of first instance):
1 The appeal is
dismissed.
2 There is no order as to
costs.
3 The first, second and
third appellants are ordered to vacate the property known as [...],
Midvaal, Gauteng, by no later than 29
February 2020.
4
Should the appellants fail to comply with the above order, the
sheriff is authorised to evict the first, second and third appellants
from the above-mentioned property.
JUDGMENT
Nicholls
JA (Maya P, Tshiqi, Mokgohloa JJA and Dolamo AJA concurring):
[1]
This is an appeal against the eviction of Mr Cedric Morgan Jones and
Mrs Diane Morgan Jones, aged 78 and 76 years old respectively,
together with their mentally disabled daughter, Ms Kerenza Morgan
Jones, aged 48 years old. They are the three appellants herein.
They
reside on a farm in Meyerton, Gauteng described as [...], Midvaal.
Mr Shawn Sutherland and Mrs Julia Sutherland, the
respondents, are
the registered owners of the farm. The appellants have been in
occupation of the farm since July 2013, residing
there rent-free
since November 2013, a period of almost six years.
[2]
The Sutherlands successfully launched an application for eviction of
the elderly couple and their daughter in the Meyerton Magistrates’
Court, Midvaal. The Joneses and all other occupiers were ordered to
vacate the property within 3 months of the date of the eviction
order
granted on 7 June 2017 by Magistrate E A Makda. On automatic review
to the Land Claims Court, Canca AJ confirmed the eviction
order and
authorised the sheriff to facilitate the eviction should they fail to
vacate by 1 December 2017. The Joneses appeal their
eviction with the
leave of this court.
[3]
Both parties agreed that this is an eviction in terms of the
Extension of Security of Tenure Act 62 of 1997 (ESTA). The mandatory
requirements for the granting of an eviction order under ESTA are set
out in s 9 which provides:
‘
(1)
Notwithstanding the provisions of any other law, an occupier may be
evicted only in terms of an order of court issued under
this Act.
(2) A court may make an
order for the eviction of an occupier if—
(a)
the occupier's right of residence has been terminated in terms of s
8;
(b)
the occupier
has not vacated the land within the period of notice given by the
owner or person in charge;
(c)
the conditions for an order for eviction in terms of s 10 or 11 have
been complied with; and
(d)
the owner or person in charge has, after the termination of the right
of residence, given—
(i) the occupier;
(ii) the municipality in
whose area of jurisdiction the land in question is situated; and
(iii) the head of the
relevant provincial office of the Department of Rural Development and
Land Reform, for information purposes,
not less than two calendar
months' written notice of the intention to obtain an order for
eviction, which notice shall contain
the prescribed particulars and
set out the grounds on which the eviction is based: Provided that if
a notice of application to
a court has, after the termination of the
right of residence, been given to the occupier, the municipality and
the head of the
relevant provincial office of the Department of Rural
Development and Land Reform not less than two months’ before
the date
of the commencement of the hearing of the application, this
paragraph shall be deemed to have been complied with.
(3) For the purposes of
subsec (2)
(c)
, the Court must request a probation officer
contemplated in s 1 of the Probation Services Act, 1991 (Act 116 of
1991), or an officer
of the department or any other officer in the
employment of the State, as may be determined by the Minister, to
submit a report
within a reasonable period—
(a)
on the availability of suitable alternative accommodation to the
occupier;
(b)
indicating how
an eviction will affect the constitutional rights of any affected
person,
including the rights of the children, if any, to education;
(c)
pointing out any undue hardships which an eviction would cause
the occupier; and
(d
on any other matter as may be prescribed.’
[4]
Section 9(2)
(a)
makes it clear that an eviction may only be
ordered once there has been a lawful termination of the right of
residence in terms
of s 8. This is subject to compliance with
procedural requirements specified in s 9(2)
(d)
and s 9(3).
Therefore, where the right of residence is by consent, before any
eviction is ordered, the starting point is s 8(1).
In terms of this
section an occupier’s right of residence may be terminated on
any lawful ground, provided that such termination
is just and
equitable. The factors to be considered are:
‘
(a)
the fairness of any agreement,
provision in an agreement, or provision of law on which the owner or
person in charge relies;
(b)
the conduct of the parties giving rise to the
termination;
(c)
the interests of the parties, including the
comparative hardship to the owner or person in charge, the occupier
concerned, and any
other occupier if the right of residence is or is
not terminated.
(d)
the existence of a reasonable expectation of the
renewal of the agreement from which the right of residence arises,
after the effluxion
of its time; and
(e)
the fairness of the procedure followed by the
owner or person in charge, including whether or not the occupier had
or should have
been granted an effective opportunity to make
representations before the decision was made to terminate the right
of residence.’
[5]
Section 11 regulates evictions of persons who became occupiers after
February 1997. Subsection (1) provides that:
‘
If
it was an express, material and fair term of the consent granted to
an occupier to reside on the land in question, that the consent
would
terminate upon a fixed or determinable date, a Court may on
termination of such consent by effluxion of time grant an order
for
eviction of any person who became an occupier of the land in question
after 4 February 1997, if it is just and equitable to
do so.’
[6]
Section 11(3) sets out what circumstances the court must have regard
to when determining if an eviction is just and equitable.
These are:
‘
(a)
the period that the occupier has
resided on the land in question;
(b)
the fairness of the terms of any agreement between
the parties;
(c)
whether suitable alternative accommodation is
available to the occupier;
(d)
the reason for the proposed eviction; and
(e)
the balance of the interests of the owner or
person in charge, the occupier and the remaining occupiers on the
land.’
[7]
It is against this legislative framework that the facts of this case
should be evaluated. A court is enjoined to weigh the competing
rights of the parties, the right to security of tenure in respect of
the occupiers and, in respect of owners, the right to their
property.
[1]
Justice
and equity have a determinative role to play.
[8]
Mr Jones and Mr Sutherland entered into a one year verbal agreement
of lease commencing on 1 July 2013. In terms of the
agreement
the main house on the farm was leased to Mr and Mrs Jones for the sum
of R6 000 per month and a deposit of R8 000 was
paid. It is common
cause that as from November 2013 no further rentals were paid by
them.
[9]
According to Mr Jones, their non-payment was informed by the fact
that on 28 October 2013 Mr Sutherland told them that he had
sold the
farm to a certain Mr John Hartley and was ‘washing his hands of
the whole place’. Although Mr Sutherland did
not specify that
the lease was terminated, Mr Jones interpreted this as a unilateral
termination which amounted to a repudiation
which he did not accept.
He stated that he elected to uphold the lease agreement as the one
year period had not expired.
[10]
Mr Sutherland sent his first notice of termination of the lease
agreement on 10 January 2014. In this notice he stated that
the
reason for the termination was that the property has been sold and
that the new owner wanted to take vacant possession. When
this was
ignored Mr Sutherland proceeded to sue Mr and Mrs Jones for the
arrear rentals. Default judgment was later obtained.
[11]
Mr Jones alleged that because they did not vacate voluntarily, Mr
Sutherland, by his actions attempted to constructively evict
them. He
illegally cut off their electricity supply. This is disputed by Mr
Sutherland who provided an affidavit from an Eskom
employee that the
electricity had been cut off due to non-payment, on instruction from
Eskom.
[12]
Mr Jones set out a litany of alleged misconduct by Mr Sutherland
and/or Mr Hartley, acting alone or in concert. In addition
to cutting
the electricity of the Joneses, this also included removal of their
water pumps, destruction of water tanks, destruction
of solar panels,
damage to their tractor, breaking of windows and other malicious
damage to their property. Mr Jones estimated
that they suffered
damages in the sum of R600 000 as a result of this unlawful conduct.
Mr Sutherland in turn alleged that his
property was vandalised by the
Joneses.
[13]
Mr Jones laid a charge of malicious damage to property against Mr
Sutherland and his son. During the course of 2014 they were
both
found guilty and Mr Sutherland was sentenced to a fine of R10 000 or
12 months imprisonment suspended for 2 years on condition
that they
were not found guilty of malicious damage to property in the period
of 2 years.
[14]
The next ‘notice of eviction’ was sent by Mr Sutherland
through his attorneys in a letter dated 13 February 2015.
In this
letter Mr Jones was informed that default judgment had been obtained
against him, the lease had been cancelled, and he
had been verbally
requested both by Mr Sutherland and his attorneys to vacate the
property which he had refused to do. They were
given 30 days to
vacate the property. This was ignored by Mr and Mrs Jones who claimed
they were then subjected to further acts
of vandalism. The cables
from the pump room to the water tank were cut, electric cables were
taken and their livestock let loose.
[15]
The final notice was sent to the Jones family by the Mr Sutherland’s
attorneys on 16 November 2015. In this letter it
was stated that the
verbal lease expired on 31 August 2015 through effluxion of time. The
date is clearly an error as, on Mr Jones’
own version, the
fixed period of the verbal lease expired on 6 July 2014. The letter
purported to cancel the lease and the Joneses
were given 30 days
within which to vacate. It was further alleged that they had caused
damage to the property. This notice was
served personally on all
three appellants by the sheriff.
[16]
The cancellation letter was followed by a Form E Notice of intention
to apply for an eviction order in terms of s 9(2)
(d)
(i)
of ESTA and a similar Form F Notice to the Municipality and the
Department of Land Affairs to apply for an eviction in terms
of s
9(2)
(d)(
ii)
and (iii). Form G is a notice in terms of s 10(1)
(b)
of ESTA headed ‘Notice of Breach of Material and Fair Term of
Agreement Between Owner/Person in Charge and Occupier ’.
It set
out the grounds on which there had been a breach of the agreement,
which was the non-payment of rental. It also recorded
the
cancellation of the lease. All three notices were served personally
on Mr and Mrs Jones, on 10 June 2016, by the sheriff who
recorded
that he explained the contents thereof to them. Because of her
disability, service on their daughter was effected by serving
on Mr
Jones.
[17]
A social worker’s report from the Gauteng Provincial Department
of Social Development was prepared in anticipation of
the application
for eviction. The first report is dated 12 January 2017. It set out
the circumstances of both parties and their
respective attitudes. By
October 2015 both Mr and Mrs Jones were receiving old age pensions
and their daughter was receiving a
disability grant.
[18]
The Joneses indicated that they stopped paying rent because they had
been deprived of their livelihood and their farming equipment
had
been damaged. The Sutherlands in turn said they caused the damage
because the Joneses had stopped paying rent. Mrs Jones suffers
from
Bell’s palsy and an autoimmune disease, apparently due to
stress. Nonetheless they were determined to remain in occupation
with
their two horses and five cats and 12 dogs. Mr Sutherland responded
that he was being deprived of his only income as a result
of the
non-payment of rent and suffers from rheumatoid arthritis and gastric
ulcers.
[19]
It is clear that the farm was, and still is, in a state of disrepair
and dilapidation. The damage to the house had not been
fixed, the
house was not insulated, there were broken windows and it was ice
cold in winter. The social worker’s recommendation
was that it
was not in the Joneses’ best interests to remain on the
property – it was far from a hospital in case they
needed
medical help and they had no motor vehicle. It was proposed that they
should move to a place nearer to medical facilities
and where they
would have electricity and running water. Significantly, the social
worker observed that this was not a case where
the family has nowhere
to go but rather a case where ‘they will not leave the
property, because they need to prove a point,
and in the process they
are harming their own welfare and health and that of their disabled
daughter, as they are not planning
for their future’.
[20]
When the matter was first heard in the Magistrates’ Court, Mr
and Mrs Jones complained of the inadequacy of the social
worker’s
report in that it did not pertinently address the issues required by
s 9(3) of ESTA. These are (a) the suitability
of alternative
accommodation; (b) how the eviction would affect the respondents; and
(c) any undue hardship they would suffer.
The magistrate requested a
supplemented report from the Department of Social Development as well
as a report by the Department
of Rural Development and Land Reform.
[21]
The report provided by the Department of Rural Development and Land
Reform dates the dispute between the parties to as early
as September
2013 when there was an argument over whether the rent was due on the
first day of the month, as alleged by Mr Sutherland,
or the seventh
of the month, as alleged by Mr Jones. Apart from concluding that the
appellants did not have anywhere to go except
with the intervention
of the municipality, a recommendation was made that they be given
time to seek alternative accommodation.
[22]
The supplemented social worker’s report dealt with the three
issues set out in s 9(3) of ESTA. As regards alternative
accommodation, it was established that Jeugland Old Age Home in
Vanderbijlpark could accommodate all three appellants if they
received a government pension and Mr and Mrs Jones had children who
may be able to contribute financially. Avontrus Old Age Home
in
Vereeniging indicated that they were able to accommodate the couple
if they paid R4 500 per month, but not their daughter. The
social
worker concluded that the appellants’ constitutional rights as
envisaged in s 9(3)
(b)
would not be compromised if they moved to an old age home.
[23]
As regards the question whether the eviction would result in undue
hardship, the social worker pointed out that the appellants
were the
only people on the land, which they had occupied for a relatively
short period. Thus, they have no historical or sentimental
attachment
to the land. They have spent no money on upgrading the property. They
have been evicted from other properties in the
past so this is not an
unknown process to them. The social worker concluded that it is in
the best interests of the three appellants
that they be placed in an
old age home where they would have access to electricity, running
water and medical attention when needed.
This would ensure that their
constitutional right to dignity was taken into consideration.
[24]
At the first appearance in this court the appellants were
unrepresented. Counsel provided by the Department of Rural
Development,
and who drafted the heads of argument, had been
instructed to withdraw. The matter was postponed to ensure that the
appellants
were provided with legal representation. This court is
grateful to Mr Zietsmann for taking on this task pro amico at short
notice.
[25]
The appellants’ original heads of argument were adopted by Mr
Zietsman, with the exception of the applicability of s
8(1). He
argued that the relevant section was s 11(3), and eschewed any
reliance on s 8(1). This submission misconstrues the structure
of
ESTA.
[2]
Although
s 11(3) largely mirrors and complements s 8(1) with regard to the
requirements of what is just and equitable, where the
right of
residence is by consent, the first step is to lawfully terminate the
right in terms of s 8. Compliance with 8(1) does
not necessarily mean
that the remedy of eviction is available to the landowner. However,
an eviction can only take place once the
prerequisites set out in s
8(1) are met.
[3]
[26]
The mandatory requirements for granting an eviction are set out in s
9(2) of ESTA.
[4]
At
s 9(2)
(a)
,
reference is made to the termination of a right of residence in terms
of s 8. To reinforce the view that s 8 is applicable rather
than s
11, s 8(1)
(d)
provides
that one of the factors to be considered is the reasonable
expectation of a renewal of an agreement after the effluxion
of time.
Therefore, even when an occupier’s consent to reside on the
land is terminated through effluxion of time, a landowner
is not
absolved from compliance with s 8(1). When dealing with an eviction
pursuant to a lease agreement, the first hurdle is whether
there was
a lawful termination of the right of residence.
[27]
In this matter the right of residence arose from a verbal agreement
which had to be terminated on lawful grounds. That the
Joneses’
right of residence, which survived the expiry of the period of lease,
was terminated on lawful grounds was denied
by the appellants.
Reference is made to the various erroneous cancellation
notifications. Although the respondents sent several
abortive notices
to vacate, by the time the matter was heard in the Magistrates’
Court there had been a lawful cancellation
of the lease. The
appellants had been notified verbally; the lease was cancelled in the
attorneys’ letter of 6 November 2016,
albeit with the incorrect
expiry date; the lease was cancelled in terms of the Form G notice,
which was served personally on the
appellants.
[28]
The right of residence having been lawfully cancelled, the next
question is whether it was just and equitable, at both a substantive
and a procedural level, having regard to the factors set out in s
8(1)(
a)
-
(e)
.
[5]
There
is no suggestion that the period of the verbal lease or the terms
thereof was unfair in terms of s 8(1)
(a).
Nor
was there a reasonable expectation of the renewal of the agreement
after the effluxion of time as set out in s 8(1)
(d).
The
real bone of contention was the conduct of the parties giving rise to
the termination in terms of s 8(1)
(b).
The appellants contended that the respondents were not blameless.
They vandalised the property in order to get rid of the appellants.
The appellants’ counsel argued that this conduct amounted to a
constructive eviction before the effluxion of the period of
the
lease. The respondents’ hands were dirty and when dealing with
social legislation like ESTA, such conduct should not
be
countenanced. The eviction should accordingly not have been
granted. Implicit in this argument is that the appellants
should be
permitted to stay on the property rent-free for as long as they wish.
[29]
It is, of course, correct that the respondents’ actions were
unacceptable. Mr Sutherland was convicted and sentenced
for his
conduct. However, the appellants are not paragons of virtue either.
They admit that they have not paid rent since November
2013. This was
prior to any acts of damage to the property. As at 16 February 2016
they were R168 000 in arrears. The respondents
allege that the
appellants have damaged the property and that they steal items from
the property which they sell. Even assuming
in favour of the
appellants, the respondents’ conduct can hardly entitle the
appellants to live on the farm in perpetuity.
They state that they
would move if they were compensated for their damages but this is
insufficient reason to oppose an eviction
which is clearly in their
best interests. If the appellants have a damages claim as they
allege, then this should be pursued
in the correct forum.
[30]
In terms of s 8(1)
(c)
the
interests of the parties and the comparative hardship each of them
will suffer must be taken into consideration. The appellants
state
that as a result of the respondents’ conduct they have lost
their livelihood. This is not entirely correct. Their horses
were
confiscated by the SPCA and the appellants are facing charges
relating to neglect of animals. Their cattle were stolen. The
respondents are not responsible for this state of affairs.
[31]
From its preamble, it is apparent that ESTA was primarily designed to
provide security of tenure for the most vulnerable and
marginalised
members of our society, farmworkers, whilst also balancing the rights
of landowners. The appellants are undoubtedly
vulnerable, but this is
not a situation of a wealthy landowner pitted against a destitute
farm worker. The respondents themselves
are elderly and not in the
best of health. They are not affluent people and their main income is
derived from the rental generated
by their farm. They have been
deprived of that income since November 2013, for almost six years.
The respondents require payment
of the substantial arrears in rental
for their own well-being. This now totals in excess of R400 000, an
amount which they are
unlikely to recoup.
[32]
As regards s 8(1)
(e),
the appellants have been given ample warning of the termination of
their lease. The appellants, on their own version, were made
aware
that the property was to be sold on 28 October 2013 and that they
would have to vacate. They remain in occupation as of today.
Although
there is nothing on record to indicate that the appellants were given
a formal right to make personal representations
to the respondents,
there is reference to various verbal interactions between the parties
when Mr Sutherland attempted to cancel
the lease. In any event, the
wording of s 8(1)
(e)
does
not make it peremptory for representations to be made in every case
but rather that a fair procedure be followed ‘including
whether
or not the occupier should have been granted an effective opportunity
to make representations before the decision was made
to terminate the
right of residence’.
[6]
It
should be borne in mind that when the eviction was ordered by the
Magistrates’ Court and confirmed by the Land Claims Court,
the
appellants had had ample opportunity to make representations to the
Department of Rural Development and the social worker.
Their views
were put across on three different occasions, all of which were duly
recorded and placed before court. Viewed holistically,
the procedure
may have been defective at times but it has not been unfair to the
appellants.
[33]
In my view the right of residence has been validly terminated in
terms of s 8(1) and is in accordance with the dictates of
fairness.
The procedural requirements in terms of ss 9(2) and 9(3) have been
met. All that remains is to determine whether the
eviction is in
accordance with the justice and equity prescripts of s 11.
[34]
The only argument of substance put up was that the available
alternative accommodation is not suitable. The appellants do not
want
to reside in an old age home. They wish to remain on the property
where they can keep their livestock and numerous domestic
pets.
Unfortunately, it is not open to the appellants to oppose their
eviction on the grounds that the farm is their residence
of choice.
Where an eviction is going to render persons homeless, a
constitutional obligation rests on the relevant municipality
to
provide suitable accommodation. This does not mean that the
appellants can continue to occupy the farm until they are provided
with accommodation to their liking.
[7]
[35]
The inescapable fact is that the appellants are living in deplorable
conditions. The social worker has noted that their continued
occupation on the farm is compromising their health and safety and
that their constitutional rights would be infinitely better
catered
for in an old age home. The respondents have been deprived of their
property for nearly six years. In balancing the rights
of both
parties, justice and equity demands that the appeal be dismissed.
[36]
No costs were awarded in the Land Claims Court and the respondents
have abandoned their prayer for costs in this court.
[37]
In the result the following order is made:
1 The appeal is
dismissed.
2 There is no order as to
costs.
3 The first, second and
third appellants are ordered to vacate the property known as [...],
Midvaal, Gauteng, by no later than 29
February 2020.
4
Should the appellants fail to comply with the above order, the
sheriff is authorised to evict the first, second and third appellants
from the above-mentioned property.
_________________
C Heaton-Nicholls
Judge of Appeal
APPEARANCES:
For
the Appellants: P J J Zietsman
Instructed
by: Kgaugelo Baloyi Incorporated, Pretoria
Matsepes
Attorneys, Bloemfontein
For
the Respondent: S D Maritz
Instructed
by: Odendaal Erasmus & Thulane Incorporated, Meyerton
Rossouw
Attorneys, Bloemfontein
[1]
Daniels
v Scribante & another
[2017]
ZACC 13
;
2017 (4) SA 341
(CC);
Molusi
& others v Voges NO & others
[2016] ZACC 6
;
2016 (3) SA 370
(CC) para 39.
[2]
Molusi
fn 1.
[3]
Mpedi
& others v Swanevelder & another
2004
(4) SA 344
(SCA);
Mkangeli
& others v Joubert & others
2002
(4) SA 36
(SCA) para 13.
[4]
Yarona
Game and Guest Farms (Pty) Ltd v Mashinini & others
2017 JDR 1959 (LCC) para 12.
[5]
Snyders
& others v De Jager & others
[2016] ZACC 55
;
2017 (3) SA 545
(CC) para 56.
[6]
Le
Roux NO v Louw
2017 JDR 1033 (LCC) paras 91-93.
[7]
Baron
& others v Claytile (Pty) Ltd & another
[2017] ZACC 24
;
2017 (5) SA 329
(CC) para 46.