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[2012] ZAWCHC 249
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Coetzee v Communicare and Others (21243/2011) [2012] ZAWCHC 249 (13 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
REPORTABLE
CASE
NO: 21243/2011
In the matter between:
CHRISTOPHER ROBIN COETZEE
...........................................................................
Applicant
and
COMMUNICARE
............................................................................................
First
Respondent
(an Association not for gain, incorporated under
Registration No: 1929/01590/08)
THE SHERIFF
...........................................................................................
Second
Respondent
For the Magistrate’s Court, Goodwood
THE CITY OF CAPE TOWN
.........................................................................
Third
Respondent
Goodwood Administration
JUDGMENT AS CORRECTED IN TERMS OF RULE 42(1)(b) AND
DELIVERED ON THURSDAY 13 DECEMBER 2012
____________________________________________________________________
GAMBLE, J:
INTRODUCTION
In February 2009 the Applicant and his wife Ms.Rieta Coetzee
(hereinafter collectively referred to as “the Coetzee’s”)
occupied a house at 11 Huguenot Street, Ruyterwacht in the Cape
Peninsula, which belongs to the First Respondent (“Communicare”).
Their tenancy was regulated by a written agreement of lease
concluded on 16 November 1999.
Communicare is an incorporated association not for gain which
provides housing for economically disadvantaged citizens of the
Western Cape. It achieves this objective by constructing social
housing developments with capital sourced from the Social Housing
Regulatory Authority.
The Coetzee’s are a working class couple with four children,
two of whom were minors aged 10 and 16 years in October 2011.
Mr.
Coetzee, the family’s sole breadwinner, worked as a welder at
an engineering company in nearby Epping.
Initially the Coetzee’s rent for the premises was R434,38.
This escalated over the years to R1615,00 in February 2009.
In light
of a government subsidy received by Communicare, the Coetzee’s
were only liable to pay R864,62 per month to Communicare
at that
time. They were also liable for certain municipal charges and
electricity.
Over the ten years that they occupied the house the Coetzee’s
fell into arrears from time to time. They were therefore
known to
Communicare’s attorneys, Kaminer Kriger, whom Ms. Coetzee
visited on occasion to arrange for indulgences. In January
2009 Mr.
Coetzee’s employer went on to short-time and he only received
wages for ten days. This was enough to put food
on the table but not
enough to cover their rent and so the Coetzee’s fell into
arrears once again.
On 10 February 2009 Kaminer Kriger sent the Coetzee’s a
registered letter in terms of clause 14 of the lease demanding
payment of the sum of R864,62 within seven days, failing which, it
was said, the lease would be cancelled. Ms. Coetzee’s
pleas
for yet another indulgence fell on deaf ears at Communicare’s
Ruyterwacht offices and on 6 April 2009 the Sheriff
arrived at their
home to serve an
ex parte
application launched by Communicare
in the Goodwood Magistrates’ Court in terms of s4(2) of the
Prevention of Illegal Eviction
from and Unlawful Occupation of Land
Act, No. 19 of 1998 (“PIE”). The Coetzee’s were
informed therein that
an eviction application would be brought in
the Magistrates’ Court on 30 April 2009.
The eviction application went ahead as planned and the Coetzee’s
attended Court in person. At Court they met a certain
Ms. Casey, an
attorney from Kaminer Kriger, who was handling Communicare’s
matters. Ms. Coetzee said that she asked Ms.
Casey why they were in
Court since their rental was up to date (which it appears was in
fact so at that stage). Ms. Coetzee says
that Ms. Casey told her
that there were still outstanding legal fees, presumably in relation
to the eviction proceedings. Ms.
Coetzee says that Ms. Casey told
them that they should approach the local offices of Communicare to
arrange to pay off the legal
fees. None of these allegations are
denied by Ms. Casey.
Ms. Coetzee says that Ms. Casey told her at Court that the matter
had been “
stopped
” and that she and her husband
then left Court believing that they could continue to live in the
house as before, on condition
that the legal fees were settled.
These allegations are denied by Communicare who allege, through Ms.
Casey, that the matter
was settled with the Coetzee’s agreeing
to vacate the premises by the end of June 2009.
Ms. Coetzee says that they continued to pay their rental and
additional charges “
whenever we could
” believing
that their rights of occupation were secure. She says that they were
truly shocked to receive a notification
by the Sheriff on 15
September 2009 that they should vacate the house within five days.
Ms. Coetzee says that she did not know
that an eviction order had
been granted by the Magistrate on 30 April 2009 requiring them to
vacate the premises by 30 June 2009.
In the meantime, says Ms. Coetzee, a friend of their’s had
lodged a complaint with the Western Cape Rental Tribunal in
mid 2009
in relation to the alleged “
exorbitant increases in rentals
and unfair practices
” of Communicare. Pursuantthereto the
Tribunal interdicted Communicare from evicting the Coetzee’s
in terms of
s13(7)
of the
Rental Housing Act of 1999
, until the
complaint had been resolved.
In any event, the Coetzee family was not put out of the premises on
15 September 2009 but only more than two years later on 12
October
2011. In that two-year period the Coetzee’s continued to
occupy the premises with the expressconsent of Communicare.
And,
during that period of occupancy the Coetzee’s paid money from
time to time to Communicare and/or Kaminer Kriger for
the right of
occupation. This is common cause.
After their eviction in October 2011 the Coetzee’s sought
legal advice from a local firm of attorneys, M.R. Kahn and
Associates. Flowing from this, the current application was launched
on 20 October 2011 in which an order was sought restoring occupation
of the premises to the Coetzee’s pending the filing of an
application for condonation of the failure to timeously prosecute
an
appeal against the Magistrate’s order, and the prosecution of
such appeal itself.
The application was a comprehensive one with answering and replying
papers having been filed by the time it came before Justice
Ndita on
14 November 2011. Due to certain factual disputes on the papers the
learned Judge referred the matter to oral evidence
for determination
of the following issues:
13.1
was the lease lawfully cancelled?;
13.2
if it was cancelled, was there a new lease agreement entered into
between the parties?; and
13.3
were the debits passed by Communicare (so-called “
Economy
Cost Recovery Rental
”)
in its tax invoices issued to the Coetzee’s subsequent to 30
April 2009, for holding over, or rental?.
[14] M.R. Kahn and Associates withdrew as attorneys of record on 22
February 2012 and at that stage no valid notice of appeal had
been
lodged, nor had an application for the condonation of such late
filing been lodged. The Coetzee’s were, in the meantime,
living
elsewhere in cramped conditions with family members.
When the matter came before me on 13 November 2012 I requested the
Cape Bar Counsel to appoint
pro bono
counsel to assist the
Coetzee’s.
Adv.S. e Câmara
was duly appointed and
she stepped into the breach in the finest traditions of the legal
profession to assist a poor couple.
The Court is indebted to
Ms.
e Câmara
and
Adv. L. Liebenberg
(who appeared for
Communicare) for their assistance in the presentation of the matter
and for the professional manner in which
this matter was conducted.
No evidence was presented by
Ms. e Câmara
on behalf of
the Coetzee’s but
Ms. Liebenberg
presented the evidence
of
Ms. Heather Bester,
the head of Kaminer Kriger’s
debt collections department. Ms. Bester took the Court through the
history of the Coetzee’s
rental file with Communicare and her
firm. She is an experienced administrator having been with the firm
for thirty two years.
Ms. Bester said she has known the Coetzee’s
since about 2003, having dealt with them in relation to three
previous eviction
applications.
Ms. Bester said that Communicare’s policy was to avoid
evicting its tenants if at all possible. To this end their practice
was to take an eviction order against a defaulting tenant and then
come to an arrangement for the paying off of arrears before
re-instating the cancelled lease. In the meantime, the tenant would
be permitted to occupy the premises and would be required
to pay for
the right of occupation as before.
Ms. Bester said that Kaminer Kriger had been given c
arte blanche
by Communicare to deal directly with tenants after the granting of
eviction orders against them. It was she, she said, who would
negotiate with such tenants in regard to the terms of any extended
rights of occupancy, and, it was she who ultimately gave the
Sheriff
instructions to evict.
I do not think that it is necessary, given the circumstances of the
matter, to go into Ms. Bester’s evidence in any great
detail,
for, as
Ms. Liebenberg
readily conceded, it demonstrates
conclusively that the payments received by Kaminer Kriger from the
Coetzee’s after April
2009 were most certainly not in respect
of holding over. And, it is further clear from Ms. Bester’s
evidence, that the
Coetzee’s continued to occupy the premises
with the consent of Communicare at least through the indulgences
afforded to
them by Kaminer Kriger during the two-year period after
service of the eviction order.
In argument after the conclusion of the evidence,
Ms. e Câmara
submitted that a different form of relief than that originally
sought in the notice of motion was warranted at this stage. She
asked the Court to grant the following order:
“
(a) declaring the
eviction which was carried out on 12 October 2011 to have been an
illegal eviction;
(b) directing the First
Respondent to restore occupation and possession of the property
designated as 11 Huguenot Street, Ruyterwacht
to the Applicant on a
date to be determined by this Court;
(c) directing the First and
Second Respondents not to interfere with the Applicants’
restored possession of the designated
property without the oversight
by a Court as envisaged in the Prevention of Illegal Eviction from
and Unlawful Occupation of Land
Act, ”the PIE Act”; and
(d) directingthe First
Respondent to pay the Applicants’ costs of this application on
a punitive scale.”
Ms. Liebenberg
did not oppose this change of tack by the
Coetzee’s other than to protest that there was no basis for
seeking a punitive
costs order. Certainly, she did not raise any
prejudice on the part of Communicare to what was effectively a
significant amendment
to the original notice of motion, which
amendment was brought under the “
alternative relief
”
prayer in that original notice of motion.
In working up her argument in support of this amended relief
Ms.
e Câmara
submitted that –
22.1
it was common cause that Communicare had made application under PIE
in the Goodwood Magistrates’ Court for the eviction
of the
Coetzee’s on 30 April 2009;
22.2
while there was no order on record of the Magistrate’s
determination of Communicare’s application it was clear
from
his subsequent written reasons filed under Magistrates’ Court
Rule 51(8) that such an eviction order was in fact granted
effective
1 July 2009;
22.3
the Coetzee’s continued occupation of the premises after 1 July
2009 was with the consent of Communicare and was therefore
lawfull;
22.4
the ultimate eviction of the Coetzee’s on 12 October 2011 came
some 29 months after the matter was before the Magistrate
and was
pursuant to a process not then controlled by the Court but
arbitrarily by the agents of Communicare; and
22.5
the eviction was therefore unlawfull.
Ms. Liebenberg’s
response to this argument was two-fold.
Firstly, she said that the Applicant had not established that
Communicare had waived its
rights to act in terms of the warrant of
eviction issued pursuant to the Court order of 30 April 2009. She
relied on the decision
of Nienaber JA in
Road Accident Fund v
Mothupi
1
in this regard.
I agree with
Ms. Liebenberg
that the Coetzee’s have
failed to establish an unequivocal abandonment by Communicare of its
right to evict the Coetzee’s
from their home at sometime in
the future. Indeed, the evidence of Ms. Bester clearly demonstrates
that the company wished to
use the existence of the eviction order
as a mechanism to ensure that the Coetzee’s paid what was due
to it. It was to
serve as the proverbial sword of Damacles over the
head of the beleagured tenants. It does seem, however, that
Communicare waived
its right to seek the immediate eviction of the
Coetzee’s fromtheir premises at the end of June 2009.
When pressed to explain what the legal relationship was between the
parties in the two and a half year period after the grant
of the
eviction order,
Ms. Liebenberg
moved to the other leg of her
argument and said that the agreement between the parties was a
pactum de non petendo
since Communicare had undertaken to
stay the warrant of eviction pending payment by the Coetzee’s
of outstanding rental,
legal fees, interest and the like. And, she
concluded, when the Coetzee’s failed to perform in terms of
their obligations,
the
pactum
ceased to exist and Communicare
was entitled to rely on the warrant.
Ms. Liebenberg
referred
to the decisions in
Optima Fertilizers (Pty) Ltd v Turner
2
and
Woolfsons Credit (Pty) Ltd v Holdt
3
as support for this contention.
I am not sure that the position here is analogous but for the sake
of this judgment I shall assume that the arrangement between
the
parties did in fact constitute such a
pactum
. That assumption
begs the question as to what the Applicant’s obligation to
Communicare under the
pactum
was. There can be little doubt
that it was an obligation to continue to pay the amount due for the
right to occupy No. 11 Huguenot
Street. Whether that payment is
“
rental
” or something else, matters not. What
matters is that the Coetzee’s were occupying the premises with
the consent
of Communicare and were paying for such right of
occupation. That, in my view, constituted lawful occupation.
I proceed then to deal with the fundamental submission made by
Ms.
e Câmara
:that Communicare was required to make a fresh
application under section 4 of PIE when the Coetzee’s failed
to pay what
was allegedly due by them in September 2011.
The applicability of PIE was dealt with in detail by the Supreme
Court of Appeal in
Ndlovu and Bekker
4
.
Comparing the provisions ofPIE to the earlier Prevention of Illegal
Squatting Act No. 52 of 1951 (“PISA”), Harms
JA made the
following submissions regarding the background to the introduction
of PIE:
“
[12] It is apparent from
the long title that PIE has some roots in PISA. PISA had its origin
in the universal social phenomenon
of urbanization. Everywhere the
landless poor flocked to urban areas in search of a better life. This
population shift was a threat
to the policy of racial segregation.
PISA was to prevent and control illegal squatting on public or
private land by criminalizing
squatting and by providing for a
simplified eviction process. PIE, on the other hand, not only
repealed PISA but in a sense also
inverted it: squatting was
decriminalized (subject to the Trespass Act No. 6 of 1959) and the
eviction process was made subject
to a number of onerous
requirements, some necessary to comply with certain demands of the
Bill of Rights, especially s26(3) (housing)
and s34 (access to
courts).”
With reference to the earlier judgment of Schwartzman J in
ABSA
Bank Limited v Amod
5
in which that Court had found that PIE did not apply to cases of
holding over, Harms JA remarked as follows:
“
[16] There is clearly a
substantial class of persons whose vulnerability may well have been a
concern of Parliament, especially
if the intention was to invert
PISA. It would appear that Schwartzman J overlooked the poor, who
will always be with us, and that
he failed to remind himself of the
fact that the Constitution enjoins courts, when interpreting any
legislation, to promote the
spirit, purport and objects of the Bill
of Rights, in this case s26(3). The Bill of Rights and social or
remedial legislation often
confer benefits on persons for whom they
are not primarily intended. The law of unintended consequences
sometimes takes its toll.
There seems to be no reason in the general
social and historical context of this country why the Legislature
would have wished
not to afford this vulnerable class the protection
of PIE. Some may deem it unfortunate that the Legislature, somewhat
imperceptibly
and indirectly, disposed of common-law rights in
promoting social rights. Others will point out that social rights do
tend to inpinch
or impact upon common-law rights, sometimes
dramatically.”
The provisions of s4(6) of PIE were applicable to the Coetzee’s
occupancy of the premises because their occupation only
became
unlawful after the end of February 2009 and the application to evict
followed less than six months later
6
.
The provisions of s4(6) read as follows:
“
If an unlawful occupier
has occupied the land in question for less 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
the rights and needs of the elderly, children, disabled persons and
households headed by women.”
A Court interpreting and applying that section of PIE excercises a
wide discretion in determining the date on which the property
is to
be vacated under s4(8). Ultimately, it must decide what is just and
equitable in the circumstances
7
.
In this case, the Magistrate did not give consideration to the
provisions of s4(6) because, as appears from his reasons filed
more
than two years later, he was led to believe that the Coetzee’s
had agreed to vacate the premises by 30 June 2009.
The Coetzee’s
are adamant that no such agreement was reached, particularly because
they were of the view that their rent
was up to date at the time
that they spoke to Ms. Casey at Court on the 30
th
April
2009. While their contention does have the ring of truth to it,
fortunately the validity and enforceability of this alleged
agreement of settlement does not fall to be determined in these
proceedings.
The exercise of the discretion conferred under s4(6) of PIE serves a
very important function in the protection of citizens’
rights
under s26(3) of the Constitution
8
.
In
Port Elizabeth Municipality v Various Occupiers
9
Justice Sachs stressed that:
“
[12] PIE not only
repealed PISA but in a sense inverted it; squatting was
decriminalized and the eviction process was made subject
to a number
of requirements, some necessary to comply with certain demands of the
Bill of Rights…The former objective of
re-enforcing common-law
remedies, while reducing common-law protections, was reversed so as
to temper common-law remedies with
strong procedural and substantive
protections…
[13] Thus the former
depersonalized processes that took no account of the life
circumstances of those being expelled were replaced
by humanized
procedures that focused on fairness to all…The courts now had
a new role to play, namely to hold the balance
between illegal
eviction and unlawful occupation….The new law guided them as
to how they should fulfill their new complex,
and constitutionally
ordained function: When evictions were being sought, the courts were
to ensure that justice and equity prevailed
in relation to all
concerned.”
As this judgment and
Ndlovu and Bekker
illustrate so
graphically, the arbitrariness of evictions, which were part of the
legal machinery of the apartheid state to facilitate
the forced
removal of people, has been done away with and the final arbiters in
relation to the fairness and justness of evictions
are the courts.
Ndlovu and Bekker
, in particular, is authority for the
proposition that a court must be approached in all cases of
eviction, whether to remove
squatters, person’s holding over
at the conclusion of a lease or other unlawful occupiers of
privately owned land.
In the present case, the facts show that the decision as to when the
Coetzee’s were to give up their home rested, not with
any
court of law or tribunal, but with a collections clerk in a law
practice. It was Ms. Bester who decided, firstly, when the
Coetzee’s
were in default of their obligations under the alleged
pactum
,and
having made that determination (essentially a legal issue), it was
she who decided when the Sheriff should ultimately be
ordered to
give effect to the warrant of eviction. This situation arose because
it was Ms. Bester to whom Communicare had given
carte blanche
to
decide when lawful occupiers against whom eviction orders had
earlier been granted and who had then been given permission to
occupy its premises lawfully, would once again become unlawful
occupiers.And it was she (and she alone) who determined under
what
circumstances Communicare’s premises were to be vacated.
Having heard Ms. Bester’s evidence, and having observed her in
the witness box, I have little doubt that on the instructions
of
Communicare, she had only good intentions when deciding not to give
effect to warrants of eviction and affording debtors one
last chance
to have a roof over their heads. But the position remains, as the
facts of this case so clearly demonstrate, the
practice implemented
by Communicare through Kaminer Kriger had the effect that the
ultimate decision to deprive the Coetzee’s
of their
constitutionally protected right to housing was a decision taken
arbitrarily by an agent of the landlord. I might add
that it is not
difficult to imagine how such a practice may be open to abuse and
even corrupt practices.
This is not to say that I do not have any understanding for the
landlord’s predicament. It provides low cost housing to
families whose financial positions will often be compromised. And,
no doubt, a company such as Communicare will be faced from
time to
time with hard-luck stories about the inability of its tenants to
meet their monthly obligations. The “
carrot-and-stick
”approach
applied by Communicare is therefore understandable. Nevertheless, I
am of othe view that in respect of the Coetzee’s,
their
eviction was ultimately unlawful for the reasons already stated.
This ruling does not mean that Communicare is precluded from
evicting unlawful occupiers from its properties: it must simply
follow the procedures required by the law. There is no reason, for
instance, why the Coetzee’s could not have been served
with an
application in terms of s4 of PIE, which application could then have
been postponed pending the regularization of their
continued rights
of occupancy by the payment of, for instance, arrear rentals. In the
event of a failure to comply with the terms
of such a
pactum
,
the PIE application could have been set down on due notice to the
occupants. Such a process would have had a similar effect
to that
which Communicare sought to achieve in the present case but,
importantly, the final determination as to the date and
circumstances of the eviction would rest with a Court of law and the
protection of the constitutionally entrenched right would
then
resort with the Court and not with an administrative clerk in an
attorney’s firm.
I am accordingly satisfied that a proper case has been made out for
the amended relief sought by the Applicant in this matter.
As to costs, the Coetzee’s have not been put to any expense in
relation to the proceedings before me by virtue of the fact
that
Ms.
e Câmara
appeared
pro bono
. However, they did incur
costs in relation to the engagement of M.R. Kahn and Associates and
it is only fair that those costs
should be borne by Communicare. I
am not persuaded that there is any basis for a punitive costs order.
Accordingly it is ordered that
:
A.
The eviction of the Applicant which was carried out by the Second
Respondent on 12 October 2011 was an illegal eviction.
B.
The First Respondent is to restore occupation and possession of the
property designated as 11 Huguenot Street, Ruyterwacht to
the
Applicant by no later than close of business on Friday 21 December
2012.
C.
The First and Second Respondents are not to interfere with the
Applicant’s restored possession of the designated property
without the oversight by a Court as envisaged in the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, No.
19 of
1998.
D.
The First Respondent is to pay the Applicant’s costs of suit in
this matter occasioned by the engagement of M.R. Kahn and
Associates
on the party and party scale, such costs to be taxed or agreed.
__________________
GAMBLE, J
Gamble,
J: 7 December 2012
Accordingly it is ordered that
:
E.
The eviction of the Applicant which was carried out by the First
Respondent on 12 October 2011 was an illegal eviction.
F.
The First Respondent is to restore occupation and possession of the
property designated as 11 Huguenot Street, Ruyterwacht to
the
Applicant by no later than close of business on Friday 21 December
2012.
G.
The First and Second Respondents are not to interfere with the
Applicant’s restored possession of the designated property
without the oversight by a Court as envisaged in the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, No.
19 of
1998.
H.
The First Respondent is to pay the Applicant’s costs of suit in
this matter occasioned by the engagement of M.R. Kahn and
Associates
on the party and party scale, such costs to be taxed or agreed.
__________________
GAMBLE, J
JUDGE :
P.A.L. GAMBLE
FOR APPLICANT :
Adv. S. e Câmara
(Pro Bono)
INSTRUCTED BY :
Mr. M.R. Kahn and Associates
FOR 1
st
and 2
nd
and
3rd :
Adv. L. Liebenberg
Respondents
INSTRUCTED BY :
Kraminer Kriger and Associates
DATES OF HEARINGS :
13 and 30 November 2012
DATE OF JUDGMENT :
7 December 2012
CORRECTED
JUDGMENT IN TERMS
OF
RULE 42(1)(b) : 13 December 2012
1
2000
(4) SA 38
(SCA) at para 15
2
1968
(4) SA 29
(D and CLD) at 34 H
3
1977
(3) SA 720
(N) at 726F
4
Ndlovu
v Ngcobo, Bekker and Another v Jika
2003 (1) SA 113
(SCA)
5
[1999]
2 All SA 423
(W)
6
Ndlovu
and Bekker,
supra
, at p123H-I
7
Ndlovu
and Bekker
supra
p124B-D
8
S26(3
):
“
No one may be evicted from their home, or have their home
demolished, without an order of Court made after considering all the
relevant cirumstances. No legislation may permit arbitrary
evictions.”
9
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at 224D