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[2016] ZACC 5
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Pitje v Shibambo and Others (CCT144/15) [2016] ZACC 5; 2016 (4) BCLR 460 (CC) (25 February 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 144/15
In
the matter between
ISAAC
RASEPITLE
PITJE
Applicant
and
JOSIAH
OUPA
SHIBAMBO
First Respondent
ESTHER
VELEMINAH
SHIBAMBO
Second Respondent
CITY OF
TSHWANE
METROPOLITAN
Third Respondent
MUNICIPALITY
Neutral citation:
Pitje v Shibambo and Others
[2016]
ZACC 5
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Nkabinde J, Nugent AJ, Van der Westhuizen J,
Zondo J
Judgment(s):
Nkabinde J (unanimous)
Decided
on:
25 February 2016
Summary:
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 — double-sales —
just and equitable
enquiry — eviction
ORDER
On appeal from the High
Court of South Africa, Gauteng Division, Pretoria:
1.
Condonation for the late filing of the
application for leave to appeal is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld and the order of the
High Court of South Africa, Gauteng Division, Pretoria is set aside.
4.
The applicant’s application in the
High Court to file an additional affidavit by way of rejoinder is
granted.
5.
The matter is remitted to the High Court
for reconsideration in accordance with this judgment.
6.
The costs in this Court should follow the
result of the reconsideration of the matter in the High Court.
JUDGMENT
NKABINDE J (Mogoeng
CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Nugent
AJ, Van der Westhuizen J, Zondo J concurring):
Introduction
[1]
This is an application for leave to appeal
against an order of the High Court of South Africa, Gauteng Division,
Pretoria (High
Court), granting, with costs, an eviction of the
applicant, Mr Pitje, “and all those holding under him”
from erf 4157,
Block M, Mamelodi Township, Pretoria (property).
[1]
The High Court refused leave to appeal with costs and so did the
Supreme Court of Appeal.
[2]
The applicant also seeks condonation for the late filing of this
application.
[2]
The first and second respondents (Mr and
Mrs Shibambo) oppose the application. The third respondent,
City of Tshwane Metropolitan
Municipality (Municipality), has not
filed any papers. The parties were invited to make written
submissions and the Court
has decided the dispute without an oral
hearing.
[3]
This matter turns on the application of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act
[3]
(PIE), in particular, whether there was compliance with the
requirements of section 4.
[4]
Facts
[4]
Mr Pitje, aged 76 and in ill-health, lives
at the property which is his primary residence and home. The
property was part
of his late father’s estate and Mr Pitje and
his siblings grew up living on the property. On 19 June 1992,
the property
was registered in the name of Mr Pitje’s brother
(brother) against a bond in favour of Nedcor Bank for a purchase
price of
R14 000. In 2001, the brother experienced
financial difficulty and Nedcor sought to sell the property in
execution because
of the brother’s default on the bond.
Following negotiations between Nedcor, Mr Pitje, and the brother, Mr
Pitje took
over the bond payments pursuant to agreeing to a deed of
sale, in which he was purchaser of the property from the brother for
a
price of R63 000.
[5]
While the sale was conditional on the usual
clause for obtaining a loan for the purchase price, a special
condition in clause 20
provided:
“
Should
the said loan not be secured, then the purchaser is irrevocably
authorised by the seller to make whatever arrangements with
Nedcor
Bank Ltd, the current bond holders, to liquidate the outstanding
amount on the bond, until the above purchase price is paid
in full,
whereupon the transfer shall be given to the purchaser as aforesaid.”
[6]
Mr Pitje alleges that he made payments to
Nedcor but, at some undisclosed point, Nedcor inexplicably informed
him that the bond
account had been closed. An agreement between
Nedcor and Mr Pitje indicates that as at 12 December 2001 (before the
payment
of the first instalment on 1 January 2002) the bond account
stood at R52 069. Eight years later, Mr and Mrs Shibambo, as
purchasers, and the brother, as the seller, signed a deed of sale,
with Bluegloo.com, as estate agents. The purchase price
was for
R380 000 and the deed of sale contained a hand-written clause which
stated that “[e]viction if needed will be done
by seller on the
seller’s cost. Bluegloo.com will contribute R5000 towards
the costs of an eviction if eviction takes
place.”
[7]
In a letter dated 26 August 2010, Mr
Pitje’s attorneys informed Mr and Mrs Shibambo that the
brother had “ceded
all his rights in respect of the . . .
property to [Mr Pitje]” and further alleged that the brother’s
actions, in selling
and transferring the property to the Shibambos,
were unlawful and wrongful. However, before the letter was
sent, the property
had already been transferred into the name of Mr
and Mrs Shibambo, on 7 July 2010.
High Court proceedings
[8]
The dispute arose in the High Court where
Mr and Mrs Shibambo had launched and obtained an eviction order
against Mr Pitje.
The order was granted by default as Mr Pitje
had failed to file opposing papers despite having filed a notice of
intention to oppose.
[9]
Mr Pitje applied for variation of the
eviction order and that it be set aside as well as to have the
property registered in his
name.
[5]
It was conceded on behalf of Mr Pitje in argument that the
order of variation sought could not succeed but it was argued
that an
order rescinding the default order was appropriate in the
circumstances. The Court, per Bam J, thus rescinded the
default
order and allowed Mr Pitje to file his opposing papers in the
eviction proceedings.
[6]
[10]
Mr Pitje’s defence to the eviction
was that the sale between Mr Pitje and the brother was valid and
enforceable and that Mr
and Mrs Shibambo were not bona fide
purchasers and hence the transfer into their names was assailable.
He alleged, in the
alternative, that Mr and Mrs Shibambo had
not complied with the requirements of section 4(2) of PIE.
[7]
The brother filed a confirmatory affidavit on behalf of Mr and
Mrs Shibambo.
[8]
He said that Mr Pitje failed to fulfil the suspensive condition in
the deed of sale and that it had therefore lapsed. The
brother
denied Mr Pitje’s allegation that the Shibambos knew, or ought
to have known, of the prior sale and that clause 20
formed part of
the original deed of sale.
[11]
The High Court, per Legodi J, granted the
order for eviction.
[9]
The Court considered the issue of double sales and, on the strength
of
Bowring
[10]
held that Mr Pitje bore the onus of showing that Mr and Mrs
Shibambo had prior knowledge of the sale between Mr Pitje and
the
brother. It held that Mr Pitje failed to discharge this onus
and thus that Mr and Mrs Shibambo were bona fide purchasers
who
obtained unassailable rights to the property once it was transferred.
[12]
Regarding the requirements of PIE, the High
Court held:
“
Initially,
[Mr Pitje] wanted to suggest that [Mr and Mrs Shibambo] were not
entitled to the relief sought because there was no compliance
with
section 4 of [PIE]. It is not correct. Such a notice was
given and the order in this regard was granted.
In any event,
counsel for [Mr Pitje] did not pursue the point.”
[11]
In this Court
Condonation
[13]
The application for leave to appeal was
filed seven days late. Mr Pitje explains that the order of the
Supreme Court of Appeal
was received only on 23 July 2015. His
attorney, Mr Sibiya (who deposed to the supporting affidavit),
mistakenly believed
he was to calculate the 15 days in terms of rule
19 from date of receipt, not the date of the order. Mr Sibiya
realised his
error but then had trouble finalising the properly bound
volumes for filing at this Court. When the candidate attorney
filed
the papers he was advised that a condonation application was
necessary. Mr Sibiya rightly accepts that the blame lies at his
door but argues that the delay was clearly unintentional and thus
contends that no adverse consequence should be visited upon the
applicant. The respondents do not oppose condonation. The
explanation is acceptable. I would condone the late
filing of
the application for leave to appeal.
Leave to appeal
[14]
The matter raises constitutional issues of
importance. These are the right to property
[12]
and the right to have access to adequate housing and not to be
evicted from a place called home without an order of court made
after
considering all relevant circumstances.
[13]
His papers, properly understood, make the point that, if
evicted, Mr Pitje will be rendered homeless. It is
contended
that the approach of the High Court, relying on
Bowring
,
would encourage fraudsters to act in a similar manner to the brother
as alleged and that it is in the general public’s interest
that
this be corrected. Without imputing fraud to the brother, I
agree. The points raised are arguable and there are
prospects
of success with regard to the eviction order of the High Court.
Leave to appeal should be granted.
Was PIE correctly
applied? And was the High Court correct in disallowing a rejoinder?
[15]
In relevant parts, section 4 of PIE
provides:
“
(1)
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions
of this section apply to proceedings by an
owner or person in charge of land for the eviction of an unlawful
occupier.
(2)
At least 14 days before the hearing of the proceedings contemplated
in subsection
(1), the court must serve written and effective notice
of the proceedings on the unlawful occupier and the municipality
having
jurisdiction.
. . .
(7)
If an unlawful occupier has occupied the land in question for more
than six months
at the time when the proceedings are initiated, a
court may grant an order for eviction if it is of the opinion that it
is just
and equitable to do so, after considering all the relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the relocation of the
unlawful occupier, and including the rights and needs of the
elderly,
children, disabled persons and households headed by women.”
[16]
It is
clear from the reading of the judgment of the High Court that the
requirements of section 4 of PIE were not
fully
considered. The Court merely noted that the default judgment
had included an eviction order. But the default judgment
was
rescinded. It also says Mr Pitje’s counsel “did not
pursue the point”.
[14]
Seemingly on the strength of this, given that the primary defence had
failed, the High Court granted an order evicting
Mr Pitje from
the house. No consideration was given to the issue of suitable
alternative accommodation for Mr Pitje.
The High Court declined
to deal with Mr Pitje’s application to strike out
[15]
the Shibambos’ allegation in reply that Mr Pitje had suitable
alternative accommodation. It held that:
“
[I]t
[is not] necessary to deal with the merits or otherwise of the point
taken. . . seen in the light of my finding regarding
the
doctrine of notice and bona fide purchaser and failure to set aside
the second sale agreement and transfer.”
[17]
It is not clear what difference these
findings make to the question whether it was just and equitable to
grant the eviction given
the considerations set out in section 4(7)
of PIE. It does not appear from the eviction order that the
High Court had
regard to the relevant provisions of section 4, as it
was obliged to do.
[16]
In
Machele
,
this Court, per Skweyiya J, made it clear that the application of PIE
is not discretionary. The Court remarked:
“
Courts
must consider PIE in eviction cases. PIE was enacted . . . to
ensure fairness in and legitimacy of eviction proceedings
and to set
out factors to be taken into account by a court when considering the
grant of an eviction order. Given that evictions
naturally
entail conflicting constitutional rights, these factors are of great
assistance to courts in reaching constitutionally
appropriate
decisions.”
[17]
[18]
Mr Pitje is 76 years old and in ill-health.
He has lived at the property for his whole life. Mr Pitje
unsuccessfully
attempted to inform the High Court, in his application
for rejoinder, that he does not have suitable alternative
accommodation.
The refusal for rejoinder means that the High
Court did not consider all the relevant circumstances of Mr Pitje,
including his
disability and a possibility that the eviction could
render him homeless. The High Court erred in not doing so.
It
should have allowed the rejoinder. The order I make reflects
this.
[19]
Moreover, courts cannot necessarily
restrict themselves to the passive application of PIE. Even if
there had been no rejoinder
application, courts are obliged to probe
and investigate the surrounding circumstances when an eviction from a
home is sought.
This is particularly true when the prospective
evictee is vulnerable.
[18]
These considerations would have enabled the High Court to apply
the requirements of PIE justly.
[20]
Consequently, the Shibambos were incorrect
to contend that, because Mr Pitje did not disclose the information
about his risk of
homelessness under oath, the High Court could
not consider (i) his alternative accommodation options, (ii) his
health or disability
or (iii) the situation of other occupants.
[21]
Reliance on
Bowring
was misplaced because that case did not concern eviction from the
property in question. It related to the double sale of
property. While
Bowring
answers the question whether the Shibambos had standing as owners to
seek eviction, it does not answer whether the eviction itself
was
just and equitable. In any event, section 4(1) of PIE provides
that “[n]otwithstanding anything to the contrary
contained
in
any law or the common law,
the
provisions of this section apply to proceedings by an owner . . . for
the eviction of an unlawful occupier”.
[19]
This is telling.
Conclusion
[22]
The matter should be remitted to the High
Court for reconsideration in the light of this judgment. To
this end, the parties
may supplement their papers regarding section 4
of PIE. Costs should follow the result of the reconsideration
of the matter
in the High Court.
[23]
Once this matter is remitted to it, the
High Court should proceed from the premise that Mr Pitje’s
application to file an
affidavit by way of rejoinder has been
granted. The High Court should have regard to the contents of
the affidavit.
It may order the filing of further affidavits by
the parties as the rejoinder may require. The High Court should
then consider,
in the light of all the evidence and further argument,
whether an eviction order is justified under PIE.
Order
[24]
The following order is made:
1.
Condonation for the late filing of the
application for leave to appeal is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld and the order of the
High Court of South Africa, Gauteng Division, Pretoria is set aside.
4.
The applicant’s application in the
High Court to file an additional affidavit by way of rejoinder is
granted.
5.
The matter is remitted to the High Court
for reconsideration in accordance with this judgment.
6.
The costs in this Court should follow the
result of the reconsideration of the matter in the High Court.
For the
Applicant:
Mthembu Sibiya Attorneys
For the First and
Second Respondents:
N
van Niekerk instructed by MacRobert Inc Attorneys
[1]
Shibambo and Another v Pitje and Another
[2015] ZAGPPHC 89 (High Court
judgment).
[2]
Leave to appeal was refused by the High Court on
16 April 2015 and the petition to the Supreme Court of Appeal was
dismissed on
14 July 2015.
[3]
19 of 1998.
[4]
See [15] below.
[5]
It is to be noted that Mr Pitje had also
sought
an order in terms of rule 30A of the Uniform Rules of Court to
strike out certain allegations made in reply which, he contended,
introduced new evidence. The most pertinent is that Mr and Mrs
Shibambo alleged that Mr Pitje had been granted approval
for a
government house in March 2008 which, it was alleged, could only be
done if Mr Pitje was not the owner of another property.
This
also showed that Mr Pitje had alternative accommodation. The
High Court did not grant the order to strike out as it
considered it
unnecessary in the light of the finding on the issue of the double
sale.
[6]
Pitje v Shibambo and Others
[2014] ZAGPPHC 501.
[7]
That it is specifically section 4(2) of the Act
is not clear from the eviction order itself, but the High Court
judgment is clearly
referring to notice under the Act, which is
given in terms of section 4(2). In addition, one of the
grounds of attack on
the High Court judgment by Mr Pitje is that he
alleges he was not given notice in terms of section 4(2).
[8]
It is to be noted, however, that the full affidavit was not attached
to the Shibambo’s papers and so further allegations
may have
been denied.
[9]
High Court judgment above n 1.
[10]
Bowring v Vrededorp Properties CC and Another
[2007] ZASCA 80
;
2007 (5) SA 391
(SCA)
(
Bowring
).
In this case the Supreme Court of Appeal dealt with the application
of the doctrine of notice to successive sales of
the same property.
It held that there is no reason in principle why the first purchaser
should not be allowed, in a suitable
case, to claim transfer or
delivery of the property directly from the second purchaser who
acquired the property with knowledge
of the first sale.
Whether this should happen should be determined largely by what is
equitable to all concerned in the
circumstances of the case.
[11]
High Court judgment above n 1 at para 13.
[12]
In terms of section 25 of the Constitution.
[13]
In terms of sections 26(1) and 26(3) of the
Constitution, respectively.
[14]
High Court judgment above n 1 at para 13.
[15]
In terms of rule 30A of the Uniform Rules of
Court.
[16]
See
Machele and
Others v Mailula and Others
[2009]
ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8) BCLR 767
(CC) (
Machele
)
at para 15.
[17]
Id at para 14.
[18]
See
Arendse v
Arendse
2013 (3) SA 347
(C) (
Arendse
)
at paras 41-2. In this case the order evicted Ms Arendse
and three minor children from the family home. They
had no
alternative suitable accommodation. The eviction would have
rendered them homeless. The High Court correctly
held that
“
neither
the applicant nor her children had suitable alternative
accommodation on a permanent basis. . . . . A proper enquiry
would have made it clear that an eviction order would render the
applicant and her children homeless, a circumstance which could
never be considered to be just and equitable. The applicant
and her children’s rights of access to adequate housing
were,
accordingly, infringed and she is entitled to the declaration to
that effect which she seeks.
Then
there is the question of the applicant’s vulnerability.
It is not disputed that the applicant is, and was at
the time of the
eviction order, afflicted by a disability as was evident from the
medical evidence before the court a quo and
unemployed, if not
unemployable. These circumstances warranted consideration and
investigation by the presiding magistrate
as did the applicant’s
insistence that she was not financially independent and could not
afford to rent a residence.
Instead the court a quo appeared
to have been swayed by her pension pay-out even though there was no
evidence that this enabled
her to afford alternative accommodation.
The second respondent’s reasons for judgment focused on the
first respondent’s
property rights at the expense of the
circumstances of the applicant and her children. The position
was compounded by the
fact that the applicant was not represented at
the hearing in the court a quo.”
[19]
Emphasis added.