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[2012] ZAWCHC 395
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Resnick v Government of the Republic of South Africa and Another (A536/2011) [2012] ZAWCHC 395; 2014 (2) SA 337 (WCC) (12 October 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER: A536/2011
DATE:
12 OCTOBER
2012
In the matter between:
TERSIA
RONEL
RESNICK
............................................................................
Appellant
and
THE
GOVERNMENT OF THE
REPUBLIC
OF
SOUTH
AFRICA
..............................................................................
1
st
Respondent
THE
MINISTER
OF PUBLIC WORKS
..................................................
2
nd
Respondent
JUDGMENT
DAVIS,
J
:
On
29 July 2011, the court
a
quo
ordered that the appellant, and all those holding title under her,
as well as various other unlawful occupiers, should vacate
the
premises described as Erf 81, Military Road, Tamboerskloof, Cape T
own (“the property”) at or before 12:00 on
31 October
2011. Further, the sheriff must evict the appellant and all those
holding title under her, as well as other various
unlawful occupiers
from the property on 1 November 2011 in the event of their failure
to vacate the premises.
It
appears that there are three separate eviction matters heard
concurrently by the court for the purposes of appeal brought the
appellant who has appealed against the order of the court a
quo,
and it is to this appeal that we must now turn.
The key question for
determination in this case, concerns section 4 of the Prevention of
Illegal Eviction and Unlawful Occupation
Act 1998 (“PIE”).
Section 4 of the Act deals with the eviction of unlawful occupiers
of land sought by the owner
or the person in charge of the land. To
the extent that it is relevant, the owner is defined as the
registered owner of land,
including an organ of state. PIE, insofar
as it is relevant to this appeal, provides thus:
“
(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 land of an unlawfully
occupier.
(2)
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings are initiating,
the
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
the rights and needs of the elderly, children, disabled persons and
households headed by women.
(7) If an unlawful
occupier has occupied the land in question for more than six months
at the time that the procedures 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 landowner,
for the relocation of the
unlawful occupier and including the rights and needs of the elderly,
children, disabled persons and
a household headed by women.
(8) If the court is
satisfied that all the requirements of this section be complied with
and that no valid defence had been raised
by the unlawful occupier,
it must grant an order for the eviction of the unlawful occupier and
determine:
(a) A just and equitable
date on which the unlawful occupier must vacate the land under the
circumstances.
(b) The date on which an
eviction order may be carried out if the unlawful occupier has not
vacated the land on the date contemplated
in paragraph (a).”
It is clear that PIE has
set out a twofold enquiry. The court first determines whether the
person in respect of whom the eviction
order is sought, is an
unlawful occupier. If that is the case, then, secondly, it decides
whether, after considering all the
relevant circumstances, it is
just and equitable to grant such an order.
In this particular case,
both arguments, namely (1) that the appellant was not an unlawful
occupier and (2) that it was not just
and equitable to evict her,
have been raised by the appellant. I turn, therefore, to deal with
the first question of unlawful
occupation. The Act 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
the Informal Land’s Act of 1996.”
In
this particular case, the critical argument, which is raised by Mr
Van der Merwe
,
who very ably argued on behalf of the appellant, was that the
lawfulness was justified by virtue of a tacit consent with the
respondents, who were the owners, or persons in charge of the
property. His argument of tacit consent is thus central to this
dispute. Consent is defined in the Act to mean express or tacit
consent, whether in writing or otherwise, of the owner or a person
in charge, to the occupation by the occupier of the land in
question.
In
oral argument, the court enjoyed a very useful exchange with Mr
Van
der Merwe
regarding the complexities of the decision in
Residents
of Joe Slovo Community, Western Cape
v Thubelisha Homes
2009 (9) BCLR 847
(CC). The point which prompted this debate
concerned the scope given to consent in two of the judgments which
were delivered
in that case, in particular those of
Yacoob
,
J and
Moseneke
,
DCJ. Yacoob J at paras 57-58, said:
“
[Consent]
means voluntary agreement.
If
consent
means
voluntary agreement, then tacit consent means a tacit voluntary
agreement. The meaning of tacit consent is, therefore, inexplicably
bound up with what is meant by a tacit agreement.
The
tacit agreement is not an agreement of a different kind From that of
an express agreement. The distinction really revolves
around the
question of evidence and proof. The evidence in an express agreement
consists of proof of either a written express
agreement or a verbal
one. A tacit agreement is one which is established by evidence,
short of that relating to an express agreement.
I agree with
Corbett
,
JA -
‘
that a court may
hold that a tacit contract has been established where by, a process
of inference, it concludes that the most
plausible or probable
conclusion of all the proved facts and circumstances is that a
contract came into existence”.
...In
cases where the only inference to be drawn is that there was a tacit
consent, there can be no difficulty. However, where
more than one
inference is legitimate, we must select that which is the most
probable or the most plausible in all the circumstances.”
Moseneke
.
DCJ, appeared to take a somewhat different approach to this problem.
At paragraph 144 he said:
“
It is plain that
unlawful occupier would be one who occupies land without consent of
the owner and without any other right in law
to occupy. The consent
required is of the owner or the person in charge. It may be express
of tacit and it may be in writing or
otherwise. This definition is
cast in wide terms. It envisages explicit consent but it also
contemplates consent that may be tacit
or, put otherwise, that may be
unsaid but capable of being reasonably inferred from the conduct of
the owner in relation to the
occupier. The permission envisaged may
be in writing but need not be so. The permission may be given other
than in writing. In
other words, the absence of a written resolution
or of a written instrument evidencing consent of permission to occupy
is not conclusive
that there is no consent.”
At
paragraph 147, the learned Deputy Chief Justice says the
following:
“
Another important
consideration for adopting a generous understanding of ‘consent’
is embedded in our dark history of
spatial apartheid and forced
removals from land...In enacting PIE, the legislature recognised that
there are and there will be
ample instances which homeless or
landless people will be forced to occupy land without formal or
written proof of the right to
own land or initial consent of the
owner. For obvious historical reasons occupation of land often occurs
without formal or explicit
acknowledgement of the owner of the
land... Consequently, their right to occupy will ordinarily not be
evidenced by express agreements
or formal resolutions of public
entities but by the tact acquiescence of the owner.”
It
appears, therefore, that Moseneke DCJ was prepared to take a somewhat
more expansive and generous approach to arguments raised
to the
effect that tacit consent existed. Given some uncertainty as to the
ratio
of this case in this connection, a more generous approach in applying
these
dicta
to the facts of the present case is probably indicated.
The facts of this case are
the following: the first respondent is the registered owner of the
property. The second respondent is
the organ of state that manages,
maintains and exercises control of all state owned land and buildings
on behalf of the first respondent,
including this property.
The property was originally
utilised by first respondent as a military base, but this purpose
ceased in 1991. During December 1999,
the appellant, apparently
unilaterally, moved into a dwelling on the property with her two
children without any consent to so do.
The appellant contacted first
respondent to inform it that she had taken occupation of the property
and she wished to enter into
a lease agreement. Thereafter, on 24 May
2000, the appellant and the first respondent entered into a written
lease agreement, in
terms of which the appellant leased the dwelling
situated on a portion of the property for residential purposes on a
month to month
basis.
A material term of the
lease agreement was that rental in the sum of R800.00 per month would
be payable by the appellant to the
regional manager of the second
respondent, in advance on or before the first day of each month. It
is common cause that the appellant
fell into arrears with these
rental payments. On 27 September 2002, appellant was notified, in
what was referred to in the papers
as the first notice, that she was
in arrears with her rental payment in the total amount of R6 800,00.
She was agreed to terms
to settle this amount within 14 days, failing
which the lease agreement would be terminated forthwith.
On
31 January 2003, she signed an acknowledgement of debt, which
acknowledged her indebtedness to the second respondent for arrear
rental in the amount of R7 520,00. Again she fell into arrears. This
prompted the appellant to give notice, referred to as the
second
notice, that she owed the Department arrear rental, which had now
increased to the amount of R16 160,20. She was afforded
an
opportunity to settle these arrears within 30 days of delivery of the
notice, failure which proceedings for the recovery would
be
instituted. The Department also indicated its intention to terminate
the lease agreement in terms of clause 1 thereof. Further,
she would
be required to vacate the premises by 30 November 2005.
On
15 December 2005, a further acknowledgement of debt was signed. This
agreement is significant to this dispute. To the extent
that it is
relevant, it is a document which was signed by both parties,
including the appellant, in which the appellant agrees
and undertakes
to settle her indebtedness in terms of a procedure set in clause 1
thereof. In clause 3 she agreed to the following:
“
Should I in any way
fail to honour my obligations hereunder, the Department of Public
Works may proceed with legal action to recover
the full outstanding
amount, in which event I will be liable for any cost incurred.
4. A further
acknowledgement of the Department shall be entitled to secure my
eviction on the premises I presently occupy in the
event of my
default without any further notice to me. It being understood that
the contents of this document shall not be construed
as a waiver,
novation or abandonment of the Department’s rights arising from
my original breach of the lease agreement concluded
on 24 May 2000.”
Clearly, this represented
an acknowledgement that, whatever happened, the respondent had
reserved its rights in terms of its initial
decision to cancel the
contract.
Mr
Van der Merwe
accepted, as he had to, that the lease agreement had now been
cancelled. It had been superseded by an acknowledgement of debt.
It
is the events thereafter that thus become crucial to this dispute. It
is common cause that the appellant failed to fully discharge
her
obligations towards the respondents in terms of this acknowledgement
of debt. She failed, in other words, to pay the amounts
that she was
required to do so in terms of this acknowledgement. Within four
months, on 20 April 2006, the sheriff served what
is referred to as
the third notice, informing her that she was in unlawful occupation
of the property and her right to occupy the
property had previously
been terminated, or alternatively was thereby terminated and
instructing her to vacate the premises by
no later than 30 April
2006. Nonetheless, she remained on in occupation of the property.
Mr
Van der Merwe
submitted that it was here that some form of change to the legal
arrangements occurred, in terms of which the 2005 acknowledgement
of
debt had tacitly been cancelled and the initial lease resurrected.
This would, therefore, have meant that the legal arrangements
between
appellant and respondents would be covered by the initial lease. As
there had not been proper invocation of the provision
of cancellation
in terms of that lease, the appellant stood to win its case. In
effect, this is the argument of appellant.
Mr
Van der Merwe
fortified this argument by reference to renovations that were done by
the appellant, apparently with the acknowledgement, knowledge,
acquiescence or approval (I am not entirely sure of which action from
the record) of respondents. It appears that a building inspector,
on
the version which was provided by the appellant to the court a
quo,
had given approval, although Ms
Witten
,
who equally ably appeared on behalf of the respondent, contended that
one could not be certain as to who this particular inspector
worked
for. It does appear that he is a municipal employee, but, of course,
this court cannot take evidence from the Bar as a basis
for its
findings. Suffice to say this particular evidence is, therefore, in
equipoise.
It is true that for almost
three years nothing further happened until 27 February 2009, when a
further notice was served on the
appellant, informing her that she
was in unlawful occupation of the property, that the lease agreement
was terminated by virtue
of the third notice and demanding that she
vacate the property on or behalf, before 30 March 2009, and that she
was indebted to
the Department in the amount of R44 741,57 for loss
of rental as a result of unlawful occupation.
There was an exchange of
correspondence on 17 March 2009 in which the appellant requested the
Department to reinstate the lease
agreement, itself evidence that she
was not relying on any tacit agreement or that the lease itself was
in operation. Be that as
it may, this particular request was refused
and she was requested once again to vacate the premises.
It
appears From this detailed chronology that, whether this Court
applies the approach adopted by
Moseneke
,
DCJ or
Yacoob
.
J to the facts, there was no tacit agreement, which meant that the
initial lease governed a legal relationship between the parties.
I so
conclude because of the critical document, to which I have made
considerable reference, of 15 December 2005. This document
manifestly
changed the legal relationship between the parties. There is no basis
by which, either as the only probable inference
or even upon a more
generous interpretation, a probable inference that the events that
superseded this particular acknowledgement
of debt, justified the
conclusion that a tacit agreement had now been reached which
cancelled the acknowledgement of debt and reinstated
the initial
lease. No evidence indicates to the contrary, nor does the further
correspondence, including that of appellant, gainsay
this particular
argument.
In
my view, it cannot be said that there was evidence to justify the
existence of a tacit agreement on the approach of either
Yacoob
.
J or
Moseneke
.
DCJ and accordingly, in my view, the appellant must be considered to
be an unlawful occupier for the purposes of the Act.
That
then brings us to the second argument of ‘just and equitable’.
I set out earlier in this judgment the basis by
which a court must be
satisfied that it is just and equitable to evict someone such as the
appellant. There is no question as has
been set out luminously by
Sachs
,
J in his seminal judgment in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) that a court is required to balance opposing
interests of the landowner on the one hand and the unlawful occupier
on the other.
There is a passage in
Justice Sachs’ judgment which must bear considerable weight
with any court that considers these particular
problems. At para 37
he writes:
“
Thus PIE expressly
requires the court to infuse elements of grace and compassion into
the formal structures of the law. It is called
upon to balance
competing interests in a principled way and to promote the
constitutional vision of a caring society, based on
good
neighbourliness and shared concern.
The
Constitution and PIE confirm that we are not islands on to ourselves.
The spirit of ubuntu, of which is part of the deep cultural
heritage
of the majority of the population suffuses the whole
constitutional
order.”
In this connection, it is
relevant to note that ubuntu promotes a normative notion of humanity,
of human beings who recognise the
‘other’, of values of
solidarity, compassion and respect for human dignity. These serve as
important guides. They are
no less important when the person is
involved, is in the position of appellant, who has tenaciously tried
to hold on to her home,
so as to provide an education for her child
within a stable environment, as it would be for a larger community of
applicants.
But
the fact of this matter is that an eviction is justified only after a
careful consideration of the factors. In this particular
case these
factors are important. The appellant is a divorced woman. She
occupies a dwelling with her two children, 20 and
16
at the time when she gave oral evidence. She took occupation a very
long time ago, in December 1999. It is clear that other than
the R1
000,00 per month in maintenance from the former spouse, she struggles
to make ends meet. Her son attends the Camps Bay High
School, and we
were informed by Mr
Van der
Merwe
from the Bar, that he would only conclude his matric year in 2013,
which does in fact mean that were they to move a long way away
from
the residence, that would create difficulties.
The appellant has
attempted, both by taking an initiative to grow her own vegetables,
to seek to ensure that the little money that
she receives, stretches
as far as possible. She has had her own particular difficulties,
which are outlined in the papers, including
issues of stress and
health. It is also true, on the other hand, that the property is
required by the South African Police Service
as an equestrian centre,
which, as I understand it, will in fact facilitate crime control
within the area, not an insignificant
aspect with regard to the
interests of the public. Further the property was not intended for
residential accommodation, and notwithstanding
the respondents’
sympathy towards the appellant, this matter has gone on for over 13
years.
What
then constitutes grace, compassion and a commitment to ubuntu in
these circumstances? Were this court to take the view that
‘just
and equitable’ trumps illegality, so that a person in the
circumstances of the appellant can remain indefinitely
on the
property, no matter the illegality of the situation, this would
create vast and significant implications for eviction procedures
throughout this Province, in that this, as a judgment of a Full
Bench, it would be binding on many of our colleagues, who would
have
considerable difficulty in a range of cases, and we could not predict
as to how subsequent
evictions
should adjudicated.
In
my view, ‘just and equitable’ in this situation, means
ensuring the appellant be given some significant time to find
alternative accommodation, but that ‘just and equitable’
jurisprudence cannot stretch far enough to overturn the decision
of
the court
a
quo.
In the result, the appeal
must be dismissed. There is no order as to costs, particularly given
the position of appellant.
The
order of the court a
quo,
however, must be amended to read as follows:
1. In the eviction
application under case number 26741/09, the respondent and all those
holding title under her, are to vacate the
property described as Erf
81, Military Road, Tamboerskloof, Cape Town, within six months of the
granting of this order.
2.
Should the respondent and all those holding title under her fail to
vacate the property described above, on the date referred
to above
(that is six months within the granting of the order), the sheriff is
ordered to evict the respondent and ail those holding
title under
her, with the
assistance
of the South African Police Service, should it become necessary, from
the property on the date after the expiry of the
six month period
referred to above.
I agree:
FORTUIN, J
It is so ordered:
DAVIS, J