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[2014] ZACC 29
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MC Denneboom Service Station CC and Another v Phayane (CCT 71/14) [2014] ZACC 29; 2015 (1) SA 54 (CC); 2014 (12) BCLR 1421 (CC) (3 October 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 71/14
In
the matter between:
MC
DENNEBOOM SERVICE STATION
CC
...............................................................
First
Applicant
NOLA
ELISON
CHILOANE
.......................................................................................
Second
Applicant
and
MOLEFE
IAN
PHAYANE
.....................................................................................................
Respondent
Neutral
citation:
MC Denneboom Service
Station CC and Another v Phayane
[2014]
ZACC 29
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der
Westhuizen J and
Zondo J
Decided
on:
3 October 2014
Summary:
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 — Act must be
complied with before eviction
of residential occupants can be ordered
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 — Act does not apply to eviction of juristic
persons or
persons not using property as a form of dwelling or shelter
ORDER
On
appeal from the North Gauteng High Court, Pretoria (per Cambanis AJ):
1.
Leave to appeal is refused, except insofar as it relates to the
amendment of the order granted by the North Gauteng High Court,
Pretoria.
2.
Paragraph 1 of the order of the High Court is set aside and replaced
with the following order:
“
1.
Ejecting MC Denneboom Service Station CC, and all those persons
working for it or for Mr Nola Elison Chiloane, excluding Mr Nola
Elison Chiloane as a residential occupant, and any other residential
occupants, from Erf 22104, City of Tshwane Metropolitan Municipality,
Registration Division JR, Province of Gauteng, situated at 95 Tsamaya
Road, Mamelodi.”
3.
There is no order as to costs.
JUDGMENT
KHAMPEPE J
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Leeuw AJ, Madlanga J,
Nkabinde J, Van
der Westhuizen J and Zondo J concurring):
[1]
This is an application for leave to appeal
against a judgment of the North Gauteng High Court, Pretoria.
It relates to an
order granted by that Court evicting the first and
second applicants, MC Denneboom Service Station CC (Denneboom) and
Mr Nola
Elison Chiloane (Mr Chiloane) respectively, from certain
immovable property registered under the name of the respondent, Mr
Molefe
Ian Phayane (Mr Phayane).
Background
[2]
This
matter concerns Erf 22104
[1]
(the property) which was previously owned by Mr Chiloane and his
wife, to whom he was married in community of property.
Mr Chiloane and Denneboom operate a service station and
convenience store on the property.
[3]
In 1992 Mr Chiloane was sequestrated.
Thereafter the duly appointed trustee caused the property,
which formed part of the
estate, to be sold on public auction in
October 2009. Mr Phayane purchased the property and took
transfer in May 2010.
[4]
The applicants subsequently instituted an
action in the High Court against Mr Phayane and the trustee of
Mr Chiloane’s
insolvent estate. They sought an order
declaring Mr Chiloane the owner of the property, declaring the sale
null and void
and directing the Registrar of Deeds to transfer the
property back into Mr Chiloane’s name. The pleadings
closed in
those proceedings in June 2013. The applicants have
since not taken any further steps to have the matter allocated a
trial
date.
Litigation
history
[5]
In
September 2012 Mr Phayane lodged an eviction application in the High
Court. He contended that he is the registered owner
of the
property and that the applicants have no right to remain in
occupation and are thus unlawful occupiers. The applicants
disputed Mr Phayane’s ownership of the property, but not that
they were in occupation. They also noted that there were
a
number of persons residing on the property, including Mr Chiloane,
and that Mr Phayane had failed to comply with the provisions
of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act
[2]
(PIE) in seeking their
eviction.
[6]
In response, Mr Phayane applied for an
amendment of his pleadings to exclude the eviction of “residential
occupants”
from their ambit. Ultimately, the High Court
(per Cambanis AJ) granted the following order:
“
15.1
Ejecting [Denneboom and Mr Chiloane] and/or all those persons
working through or under them excluding any residential occupants
from the premises known as Erf 22104, City of Tshwane Metropolitan
Municipality, Registration Division JR, Province of Gauteng,
situated
at 95 Tsamaya Road, Mamelodi;
15.2
That the costs of this application be paid by [Denneboom and Mr
Chiloane] on a party and party basis.”
[3]
[7]
The applicants sought leave to appeal to a
Full Court of the High Court. They contended, among other
things, that the order
was ambiguous and wrongly authorised the
eviction of Mr Chiloane, who is a residential occupant. Ledwaba
DJP, who heard the
application in Cambanis AJ’s absence, found
no merit in the applicants’ arguments and dismissed the
application.
The Supreme Court of Appeal later dismissed a
further application for leave to appeal.
In
this Court
[8]
The applicants now seek leave to appeal the
order of the High Court in this Court. They state that Mr
Phayane failed to comply
with the Uniform Rules of Court when seeking
an amendment of his pleadings; Mr Phayane is not the rightful owner
of the property;
the sale of the property was defective because Mr
Chiloane’s wife was a joint owner of the property and her
estate was not
sequestrated; and Ledwaba DJP, who heard the
application for leave to appeal in the High Court, was biased.
[9]
None
of these contentions has any merit. A High Court is at liberty
to grant a party leave to amend pleadings at any stage
before
judgment.
[4]
It is
generally sufficient, for the purpose of proving ownership for an
ejectment order from commercial premises, for a plaintiff
to
demonstrate that he is the registered owner of the property.
[5]
Mr Phayane did this by attaching the deed of transfer to his
application and the High Court was satisfied that he was the
registered owner of the property. The applicants have also
produced no compelling evidence to place his ownership in dispute.
The applicants’ contention that Mr Chiloane’s wife’s
estate was not sequestrated is implausible. They admit
that he
and his wife were married in community of property. A marriage
in community of property forges a joint estate between
the married
parties, with the consequence that the sequestration of one entails
the sequestration of the other. Moreover,
the applicants have
not pursued the pending proceedings in the High Court. And the
allegations of bias are wholly unsubstantiated,
resting on nothing
more than the applicants’ assertion that Mr Phayane is an
acquaintance of Ledwaba DJP.
[10]
But
the applicants also argue that the High Court’s order infringes
Mr Chiloane’s rights under section 26(3) of
the
Constitution.
[6]
They
contend that the order permits the eviction of Mr Chiloane
notwithstanding that he resides on the property and that
Mr Phayane
did not comply with the prescripts of PIE in seeking his eviction.
[11]
In the light of this latter argument, this
Court issued directions to the parties inviting them to make
submissions on the meaning
of the High Court’s order and
whether it authorises the eviction of Mr Chiloane from the property.
Responding to these
directions, the applicants contend that the order
is ambiguous and confusing in a number of respects, particularly as
it expressly
provides for the eviction of Mr Chiloane who
resides on the property, despite the order’s purported
exclusion of residential
occupants. According to the
applicants, the express reference to Mr Chiloane in the order
takes “him out of the
proviso” that excludes residential
occupants and therefore authorises his ejectment.
[12]
Mr Phayane submits that, even on the
applicants’ version in the High Court, the property is divided
into two portions: a commercial
portion and a residential portion.
According to him, the High Court’s order authorises the
eviction of both Denneboom
and Mr Chiloane, and all those persons
working under them, from the commercial portion of the property.
It does not, however,
apply to Mr Chiloane in his capacity as a
resident on the residential portion of the property. Mr Phayane
says that the order
must be read against this background.
[13]
This Court decided to dispose of the matter
on the basis of these submissions, without oral argument.
Leave
to appeal
[14]
Whether one adopts the stance of the
applicants or Mr Phayane, there is little doubt that the order, as it
stands, is ambiguous.
It seems that the intention of the High
Court was to evict the commercial, and not the residential, occupants
of the property.
Thus, the unqualified reference to Mr Chiloane
in the order appears to have been an error.
[15]
The order potentially authorises the
eviction of Mr Chiloane, as a residential occupant, without
compliance with PIE. PIE
was enacted to protect unlawful
occupiers’ right to housing under section 26 of the
Constitution. This is a constitutional
issue sufficient to
invoke our jurisdiction. It is also in the interests of justice
to grant the applicants leave to appeal
on this narrow issue.
The application has prospects of success in this respect. In
all other respects, however, the
application for leave to appeal is
meritless and must fail.
Amending
the order
[16]
Section 26(3) of the Constitution provides:
“
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
PIE
gives practical effect to this right and regulates the eviction of
unlawful occupiers,
[7]
even
those who reside on commercial premises.
[8]
Having no right to reside on the property, Mr Chiloane is an
“unlawful occupier” under the Act and thus enjoys
its
protections.
[9]
The Court
was required to ensure that PIE’s requirements had been met
before ordering his eviction. While it
is common cause that Mr
Phayane did not comply with these requirements, the High Court’s
order appears to expressly authorise
the eviction of Mr Chiloane,
notwithstanding that it purports to exclude residential occupants
from its operation. This ambiguity
may potentially result in his
eviction. In this respect the High Court’s order is
defective.
[17]
The
eviction of commercial occupants and juristic persons does not,
however, fall within PIE’s remit. As the Supreme Court
of
Appeal correctly held in
Ndlovu
,
[10]
the Act does not apply to the eviction of juristic persons and
persons that do not use buildings and structures as “a form
of
dwelling or shelter”.
Mr
Phayane therefore was not obliged to comply with the requirements of
PIE in seeking the eviction of Denneboom and persons working
for it
or working for Mr Chiloane, provided those persons do not also reside
on the property. The High Court’s order
was thus
justified in respect of these persons.
[18]
This
Court is empowered to make any order that is just and equitable.
[11]
An amendment of the High Court’s order to exclude Mr Chiloane,
as a residential occupant, from its operation is warranted.
This is a simple solution that would accord with the body of the High
Court’s judgment and would have the benefit of correcting
a
court order that may not comply with PIE. The emendation would
make explicit that the order authorises the eviction of
only
commercial, and not residential, occupants.
Costs
[19]
The applicants are successful only on one
narrow issue, which relates to the amendment of the order. In
all other respects
they are unsuccessful. In these
circumstances it is appropriate for each party to bear its own costs.
Order
[20]
In the result, the following order is made:
1.
Leave to appeal is refused, except insofar
as it relates to the amendment of the order granted by the North
Gauteng High Court,
Pretoria.
2.
Paragraph 1 of the order of the High Court is set aside and replaced
with the following order:
“
1.
Ejecting MC Denneboom Service Station CC, and all those persons
working for it or for Mr Nola Elison Chiloane, excluding Mr Nola
Elison Chiloane as a residential occupant, and any other residential
occupants, from Erf 22104, City of Tshwane Metropolitan Municipality,
Registration Division JR, Province of Gauteng, situated at 95 Tsamaya
Road, Mamelodi.”
3.
There is no order as to costs.
For
the Applicants:
Bertus
Verster Attorneys.
For
the Respondent:
Magda
Kets Inc Attorneys.
[1]
The
property’s full designation is Erf 22104, City of Tshwane
Metropolitan Municipality, Registration Division JR, Province
of
Gauteng, situated at 95 Tsamaya Road, Mamelodi.
[2]
19
of 1998.
[3]
Molefe
Ian Phayane v MC Denneboom and Another
,
unreported judgment of the North Gauteng High Court, Pretoria, Case
No 2012/51724 (20 November 2013).
[4]
See
rule 28(10) of the Uniform Rules of Court.
[5]
See
Chetty
v Naidoo
1974
(3) SA 13
(A) at 20A-D;
Shimuadi
v Shirungu
1990 (3) SA 344
(SWA)
at 347C-D; and
Gemeenskapsontwikkelingsraad
v Williams and Others
1977
(2) SA 692
(W)
at 696H.
[6]
See
[16] for the text of the provision.
[7]
Section
4 of PIE provides the requirements that must be complied with before
an unlawful occupier may be evicted.
[8]
See,
for example,
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
[2011]
ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC), especially at
paras 1 and 30.
[9]
Section 1 of PIE defines an “unlawful occupier” 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, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act No. 31 of 1996).”
[10]
Ndlovu
v Ngcobo; Bekker and Another v Jika
[2002] ZASCA 87
;
2003 (1) SA 113
(SCA) (
Ndlovu
)
at para 20.
[11]
Section
172(1)(b) of the Constitution.