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[2014] ZAWCHC 120
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Steyn v Hasse and Another (A93/2013) [2014] ZAWCHC 120; 2015 (4) SA 405 (WCC) (15 August 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number: A93/2013
DATE:
15 AUGUST 2014
In the matter
between:
ASTRID
STEYN
...................................................................................
APPELLANT
And
FRIEDRICH HELMUT
HASSE
..............................................
FIRST
RESPONDENT
THE SHERIFF FOR
THE MAGISTRATE’S COURT
FOR THE DISTRICT
OF SOMERSET WEST
.....................
SECOND
RESPONDENT
JUDGMENT
DELIVERED ON 15
AUGUST 2014
GOLIATH, J.:
[1] The parties in
this matter were involved in a brief cohabitation relationship which
ended, and resulted in first respondent
obtaining an eviction order
against the appellant. The appellant now seeks to have the eviction
order granted by the Magistrate’s
Court on 12 December 2012 set
aside.
[2] The appellant
filed a notice of appeal on 15 January 2013 in which appellant’s
grounds of appeal are that the learned
magistrate erred in finding:
2.1. it is just and
equitable to evict the appellant from the property given her personal
circumstances and more particularly the
fact that the applicant is an
elderly disabled, unemployed woman in a woman headed household,
diagnosed with motor neuron disease.
2.2. That the
appellant’s eviction will not lead to her homelessness.
2.3. That it is not
necessary for the relevant municipality to compile a report regarding
alternative accommodation and that it
would serve no purpose to refer
the matter to mediation in terms of Section 17 of Act 19 of 1998.
2.4. That no dispute
of fact existed on the affidavits and by consequently not referring
the matter to oral evidence in respect
of the following disputed
issues:
(i) Whether there
existed an agreement between the parties that the appellant would
have the right to occupy the property for a
minimum period of 10
years; and
(ii) Whether a
cohabitation agreement existed between the parties and what the
material terms of such agreement were.
[3] In the
alternative the appellant contends that if it is found to be just and
equitable to evict the appellant that the eviction
date should be
extended to a date in the discretion of the Court.
Factual
Background
[4] The first
respondent is a married German businessman, primarily residing in
Germany, and is the registered owner of the property
at 10 Vredelust
Street Somerset West. In his founding papers the first respondent
contended that the parties had entered into an
oral agreement of
lease for residential purposes on 20 February 2007, and consequently
the appellant took occupation of the property
on this date. According
to first respondent the express terms of the agreement were that the
appellant would look after the house
and maintain the swimming pool
and garden and furthermore, that appellant would ensure that all
costs related to the property would
be paid out of appellant’s
designated bank account from cash provided by the first respondent.
According to the first respondent
the appellant breached the
agreement by failing, refusing or neglecting to account to first
respondent.
[5] The first
respondent subsequently informed the appellant that he wished to
rent, alternatively sell the property, and requested
her to vacate
the property by 30 January 2011. He alleged that at some stage he
felt sorry for her and agreed that she could extend
her stay.
However, subsequently further correspondences were exchanged, notices
to vacate were served on appellant, but she failed
to vacate. The
first respondent stated that the appellant made no financial
contribution towards the property and lives rent free.
He is
suffering financially and could no longer afford to allow the
appellant to continue living rent free at his property.
[6] The appellant
opposed the eviction application and denied that the parties ever
concluded a written or oral agreement of lease
as contended by the
first respondent. She stated that the parties were involved in a
romantic relationship, and that she took up
occupancy of the premises
with the first respondent at his invitation on 1 April 2007. The
first respondent resided at the property
for approximately four
months per year with her, and the remainder of the year he lived in
Germany with his wife.
[7] The first
respondent furnished her with a general power of attorney and
provided her with a bank card to withdraw necessary
funds to perform
the services as required by the first respondent, including paying
the domestic worker. She also received funds
for her maintenance. She
stated that the first respondent maintained her for a period of
approximately five years. The first respondent
gave her an expensive
ring and a 2007 Ford Fiesta vehicle as gifts. She stated that first
respondent referred to her as his wife
and introduced her to people
as his wife.
[8] Following his
invitation to move in with him, the first respondent assured her that
he would provide her with a secure home
for at least ten years, which
period will lapse in April 2017. First respondent also assured her
that should their relationship
not work out, he would buy her a place
to the value of the townhouse she previously occupied. She admits
that on 18 April 2012
she received an eviction notice from the first
respondent’s attorney. However, she is not financially and
physically in a
position to adhere to the request to vacate the
premises.
[9] According to the
appellant, the first respondent omitted to deposit the necessary
funds for the upkeeping of the premises since
December 2011, and she
had to contribute R73 080.00 towards the expenses. However, she also
alluded to an amount of R100 000.00
which was paid into her bank
account on 16 July 2012 and disputes his averment that he was going
through difficult economic times.
[10] She alleges
that the contents of the house belong to her. She denies that she is
an unlawful occupant, or that she entered
into any lease agreement
with the first respondent, but contends that she occupied the
premises with him on his invitation as his
partner, and her occupancy
was with the express consent of first respondent. She stated that in
2006 she was diagnosed with motor
neuron disease, is physically
unable to find alternative accommodation on her own, and is unable to
provide for herself financially
without first respondent’s
assistance.
[11] The first
respondent admitted to being in a romantic relationship with
appellant, but averred that it has ended. According
to first
respondent the general power of attorney referred to by the appellant
was revoked on 5 November 2007. He contends that
the appellant had to
take care of the property and manage it in his absence, but failed to
do so adequately.
[12] The first
respondent denied that he ever promised or offered to provide
appellant with a secure home for at least ten years,
or assured her
that he would buy her a place should the relationship end. First
respondent contends that he has no obligation to
maintain the
appellant. Furthermore, the appellant has two children and is in a
position to find alternative accommodation. He
initially consented to
her living rent free at the premises, but has subsequently cancelled
or withdrawn his consent. According
to first respondent the
relationship ended in 2010 and the current state of affairs where
appellant continues to occupy his property
rent free is untenable.
First respondent submits that a proper case for the eviction of the
first respondent had been made out.
The finding of
the Court a quo
[13] The court a quo
found that there were no reciprocal rights and duties of support
between the appellant and first respondent.
The court concluded that
the appellant’s occupancy was motivated by the love
relationship, based on the consent of the first
respondent. The first
respondent had subsequently withdrawn his consent and furnished the
appellant with a written termination
notice. The court accepted that
there was no lease agreement between the parties. The court
considered all the circumstances of
the case and concluded that the
appellant’s occupation was unlawful as the first respondent
withdrew the consent previously
given.
[14] The court then
considered whether it would be just and equitable to evict the
appellant. The court took into account that previous
attempts to
settle the matter had failed, that the relationship had ended, and
found mediation would serve no purpose. The court
also considered the
fact that the appellant previously had a town house and on her own
version made a financial contribution in
the sum of R73 080.00 since
occupying the property, despite her contention that she is
unemployed. The court therefore found no
need to obtain a report from
the Municipality and concluded that an eviction order will not lead
to homelessness. The court a quo
was satisfied that all the material
issues could be ascertained from the pleadings and found it
unnecessary to refer the matter
for oral evidence. Consequently the
court found that it is just and equitable that the appellant be
ordered to vacate the relevant
property.
Did a reciprocal
duty of support exist between the parties?
[15] The
relationship between the parties commenced in 2005 and in early 2007
the appellant moved into the premises at the first
respondent’s
invitation. It is common cause that the first respondent resided at
the property approximately four months per
year. The property was
therefore mainly occupied by the appellant and the first respondent
was responsible for the costs of maintaining
the property. In a
letter from appellant’s attorneys to first respondent’s
attorneys dated 26 April 2012 (annexure
“AS4”),
appellant’s attorneys demanded continued financial support from
first respondent, and alluded to the
existence of a universal
partnership between the parties.
[16] It is common
cause that the parties cohabited outside a formal marriage.
Cohabitation generally refers to people who, regardless
of their
gender, live together without being validly married to each other. In
South Africa cohabitation is a common phenomenon
and widely accepted.
However, cohabitants generally do not have the same rights as
partners in a marriage or civil union, since
our Courts have
emphasized the importance of marriage as a social institution and the
important legal obligations such as the reciprocal
duty of support
flowing therefrom (See: Volks NO v Robinson and Others
[2005] ZACC 2
;
2005 (5) BCLR
446
(CC) para 20; Dawood and Another v Minister of Home Affairs and
Others; Shalabi and Another v Minister of Home Affairs and Others;
Thomas and Another v Minister of Home Affairs and Others 200
0 (3) SA
936
(CC) at para 30). Our law recognizes various forms of family
relationships which create a duty of support (Satchwell v President
of the Republic of South Africa and Another
2002 (6) SA 1
(CC) at
para 23, 25; Du Toit v Minister of Welfare and Population Development
and Others
[2002] ZACC 20
;
2003 (2) SA 198
(CC) para 19; Du Plessis v Road Accident
Fund
2004 (1) SA 359
(SCA) at para 13).
[17] Although no
reciprocal duty of support arises by operation of law in the case of
unmarried cohabitants, it does not preclude
such duty from being
regulated by agreement. However, our Courts provide some measure of
recognition to cohabitation and have on
many occasions found that an
express or implied universal partnership existed between cohabitants.
(Butters v Mncora
2012 (4) SA 1
(SCA)). A universal partnership
exists when parties act like partners in all material respects
without explicitly entering into
a partnership agreement. The three
essential elements are firstly, that each contributes something into
the partnership or bind
themselves to contribute something into it,
secondly, the partnership should be carried on for the joint benefit
of both parties
and, thirdly, the object should be to make profit.
(Muhlmann v Muhlmann
1981 (4) SA 632
at 634 C-E; Kritzinger v
Kritzinger
1989 (1) SA 67
(A); Pezzutto v Dreyer & Others
[1992] ZASCA 46
;
1992
(3) SA 379
(A) at 390 A-C; Ponelat v Schrepfer
2012 (1) SA 206
(SCA)
at 212 para 19).
[18] The issue
regarding the existence of a universal partnership was never
explicitly raised by appellant in the pleadings. Appellant
therefore
does not allege that there was an express or implied universal
partnership as a result of their cohabitation. It is therefore
not in
dispute that the relationship does not comply with the essential
requirements of a universal partnership.
[19] The appellant
contends that the first respondent maintained her for a period of
five years, but failed to do so since December
2011. However, she
contradicts herself in her pleadings by stating that he deposited the
sum of R100 000.00 into the bank account
in January 2012.
Furthermore, in the letter addressed to first respondent’s
attorneys (“AS4”) she clearly stated
that she was
maintained by first respondent until October 2010.
[20] The initial
general power of attorney given to the appellant, which was
subsequently revoked, clearly states that the first
respondent is
married, and lives in Germany. The first respondent was generous
towards the appellant, maintained the premises she
resided in rent
free, and bought her gifts. The appellant provided assistance with
the managing and maintenance of the property.
It appears that the
parties have not established or maintained a joint household and
appellant never contributed towards first
respondent’s
expenses.
[21] The first
respondent stayed intermittently with the appellant when he came to
South Africa. On the pleadings it is evident
that this occurred from
early 2007 until 2010 when the relationship was terminated. The first
respondent commenced legal intervention
at a meeting on 19 April 2010
requesting the appellant to vacate the premises. An extension was
given to the appellant and on 11
April 2012 a formal letter was
delivered to her demanding that the premises be vacated by 30 June
2012.
[22] The general
power of attorney given to the appellant was revoked as early as 5
November 2007. The relationship was terminated
in 2010 and appellant
was requested on 19 April 2010 to vacate the premises. The power of
attorney giving her access to the bank
account was cancelled on 28
April 2010. The revocation of the general power of attorney, the
subsequent request to vacate the property,
followed by the
cancellation of access to the bank account, are all indicative of
signs of a relationship having irrevocably broken
down.
[22] The magistrate
was cautious not to label the nature of the relationship of the
parties, but concluded that it resembled no
more than that between a
man and mistress or even concubinage between a married man and his
mistress. Considering the overall nature
of the relationship, as well
as the fact that the appellant had no intimate knowledge of first
respondent’s personal affairs,
it is evident that there was
clearly no express or tacit universal partnership. I am therefore in
agreement with the magistrate’s
conclusion that there is no
legal basis to find that there existed reciprocal rights and duties
of support between the appellant
and the first respondent.
Is the occupation
of appellant unlawful?
[23] Section 1 of
the Prevention of Illegal Eviction from and Unlawful occupation of
Land Act 19 of 1998 (“the PIE Act”)
defines an unlawful
occupier as:
“unlawful
occupier means 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)”.
[24] The appellant
stated the following in her answering affidavit:
“I deny that I
am an unlawful occupier of the premises situated at 10 Vredelust
Street, Helderview Somerset West ... I base
this submission on the
fact that I at no stage entered into any sort of lease agreement with
the applicant, but occupied the premises
with him on his invitation
as his partner, and was my occupancy of the premises accordingly with
the express consent of Applicant”.
[25] The appellant
further alleges that the first respondent promised to provide her
with a secure home for ten years, and assured
her that he would buy
her a place to the value of her townhouse should the relationship not
work out. It is trite that no reciprocal
duty of support exists
between cohabitants. Any obligation which may arise during the
subsistence of their relationship arises
by agreement and only to the
extent of such agreement. (Volks N.O. v Robinson (supra)
at para 58; McDonald v Young
2012 (3) SA 1
(SCA)). The question which
then arises is whether an agreement as alleged by appellant did exist
between the parties. It is well
established under the Plascon Evans
Rule that where in motion proceedings disputes of fact arise in the
affidavits, a final order
can be granted only if the facts averred in
the applicant’s affidavit which have been admitted by
respondent, together with
the facts alleged by the respondent justify
such order. (Plascon Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (2) All SA 366
(A)). Cameron, JA stated the position as follows
in Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 55
and 56.
“[55] That
conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court
for more than 80
years. Yet motion proceedings are quicker and cheaper than trial
proceedings and, in the interests of justice,
courts have been at
pains not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald
denials. More than 60 years
ago, this Court determined that a Judge should not allow a respondent
to raise ‘fictitious’
disputes of fact to delay the
hearing of the matter or to deny the applicant its order. There had
to be a ‘bona fide’
dispute of fact on a material matter.
This means that an uncreditworthy denial, or a palpably implausible
version, can be rejected
out of hand, without recourse to oral
evidence. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd, this Court extended
the ambit of uncreditworthy denials. They
now encompassed not merely those that fail to raise a real, genuine
or bona fide dispute
of fact but also allegations or denials that are
so far-fetched or clearly untenable that the Court is justified in
rejecting them
merely on the papers.
[56] Practice in
this regard has become considerably more robust, and rightly so. If
it were otherwise, most of the busy motion
courts in the country
might cease functioning. But the limits remain, and however robust a
court may be inclined to be, a respondent’s
version can be
rejected in motion proceedings only if it is ‘fictitious’
or so far-fetched and clearly untenable that
it can confidently be
said, on the papers alone, that it is demonstrably and clearly
unworthy of credence”.
[26] In National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para
26 Harmse, JA stated that if a “version consists of bald or
uncreditworthy denials, raises fictitious disputes
of fact, is
palpably implausible, far-fetched or so clearly untenable the court
is justified in rejecting them merely on the papers”.
In
Buffalo Freight systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
Another
2011 (1) SA 8
(SCA) at 14, 15 para 21), Shongwe, JA said this
could be done where “the version propounded by the respondents
was fanciful
and wholly untenable”. In Wightman t/a JW
Construction v Headfour (PTY) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
at para 13 the court noted that:
“A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to
raise the dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed”.
[27] From the above
decisions it is clear that the Court is permitted to scrutinize the
detailed versions presented on affidavit
in order to establish if
indeed there is a real and genuine dispute of fact and whether the
version offered by the respondent is
wholly fanciful and untenable.
Our case law recognises that where a respondent’s version is so
far-fetched or untenable,
it can, on that ground alone be rejected.
[28] The facts of
this case present no difficulties in resolving the disputes of fact
on the papers. (Soffiantini v Mould
1956 (4) SA 150
(E) at 154 G).
All the issues in this matter are ascertainable from the pleadings
and there was clearly no need to refer the matter
for oral evidence.
It would serve no purpose for the court to refer the matter to oral
evidence when it is apparent that viva voce
evidence is unlikely to
disturb what appeared from the papers. It would only result in
unnecessary costs and unnecessary delays.
(Wallach v Lew Geffen
Estates CC
[1993] ZASCA 39
;
1993 (3) SA 258
AD at 263 G-I). I am satisfied that the
facts and circumstances of this matter called for the adoption of a
common sense and robust
approach. (Buffalo Freight Systems (Pty) Ltd
v Crestleigh Trading (Pty) Ltd and Another (supra) at 14 A-D).
[29] The first
respondent is a married German national. He spent four months per
year in South Africa during the duration of the
relationship.
Appellant’s occupation of the property and the financial
benefits she received were solely based on the romantic
relationship.
Appellant states the following in her answering affidavit:
“The very
nature of the relationship between the Applicant and me did not lend
itself towards any discussions surrounding
the intended duration of
the cohabitation or the payment of rent”.
[30] On appellant’s
own version there appear to have been no meaningful discussions
surrounding their cohabitation. If there
were no discussions
surrounding the intended duration of the cohabitation, on what basis
would the issue of long term or alternative
accommodation have been
raised and agreed to by the parties? The appellant’s reliance
on an alleged verbal undertaking or
agreement is inconsistent with
her own version.
[31] It is not
seriously disputed that a meeting was held at the offices of first
respondent’s attorneys on the 19th April
2010 requesting her to
vacate the premises. If appellant moved into the premises on 1 April
2007 as alleged, and she was requested
to vacate on 19 April 2010, it
is evident that the period of cohabitation was only three years. The
first respondent cancelled
the general power of attorney in the same
year the appellant had moved in on 5 November 2007. This conduct
clearly indicates that
the relationship envisaged by the first
respondent was not one in which the appellant actively played a role
in his personal affairs.
[32] The appellant
acknowledged receipt of a letter on 18 April 2012 giving her notice
to vacate the premises. Significantly the
appellant’s attorneys
responded to the notice in a letter dated 26 April 2012 and at no
stage referred to the existence of
any such agreement but instead
referred to appellant as first respondent’s universal partner.
[33] Having regard
to the circumstances of this case, and the nature of the
relationship, it is highly improbable that first respondent
who had
no duty to support the appellant, would have given an undertaking of
a secure home for ten years, or offer to purchase
appellant a
property at termination of the relationship. These averments by the
appellant are palpably implausible, so far-fetched,
and clearly
untenable and stand to be rejected.
[34] The first
respondent cannot be prohibited from terminating his relationship
with appellant. Nor can the first respondent be
placed in a situation
where he may not withdraw his consent for appellant to reside with
him. The appellant was no longer his partner
and the first respondent
had duly withdrawn his consent. The first respondent is the owner of
the premises and is entitled to retain
possession of the premises,
having properly withdrawn the consent previously given. In my view
the court correctly found that proper
notice of termination of
occupation was given. The magistrate therefore correctly concluded
that the appellant is unlawfully occupying
the property.
Is it just and
equitable to evict?
[35] In terms of
section 4(7) of PIE an eviction order may only be granted if it is
just and equitable to do so. If no valid defence
is advanced the
court is obliged in terms of section 4(8) to grant an eviction order
(City of Johannesburg v Changing Tides 74
(Pty) Ltd
2012 (6) SA 294
(SCA) at paras 11, 12). The Constitution and PIE require that the
court must have regard to the interests and circumstances of
the
appellant and have due regard to broader considerations of fairness
and other constitutional values, so as to produce a just
and
equitable result (Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)). Once the conclusion has been reached that
eviction would be just and equitable the court enters the second
enquiry, namely
as to what would be a just and equitable date upon
which the eviction order should take effect (City of Johannesburg v
Changing
Tides 74 (Pty) Ltd (supra) at para 12).
[36] The first
respondent is the legal owner of the property. He invited the
appellant to move into the property. On her own version
the appellant
had supported herself unaided and had the means to rent a townhouse
before she moved into the immovable property.
She has two children
who have a duty to support her should she become indigent. She
supported herself at least since December
2011 and was in a position
to make financial contributions during her occupation of the property
in the sum of R73 080.00 after
the first respondent withdrew
financial support. This is clearly a case where the availability of
alternative accommodation is
not relevant. The magistrate correctly
concluded that an eviction order will not lead to homelessness which
will require the Municipality
to provide alternative accommodation.
[37] Mediation was
suggested in a letter 26 April 2012 as well as round table meetings.
It is evident that no progress had been
made in this regard. The
Magistrate therefore correctly found that this is clearly not the
type of eviction matter that can benefit
from mediation in the
interests of justice.
[38] The appellant
claims that she has been suffering from motor neuron disease since
2006. First respondent, with whom she was
engaged in a romantic
relationship at the time she was allegedly diagnosed with this
condition, was never told about it. The serious
nature and effects of
the disease is highlighted in an article annexed to the papers.
However, there is no medical evidence to
substantiate her claim that
she suffers from this debilitating disease. There is no suggestion
that she is frail or requires assistance
in her daily life. It is
evident that appellant has suffered no diminishment of her
capabilities from this progressively debilitating
disease and her
averments in this regard can therefore not be accepted in the absence
of medical confirmation of her condition.
[39] The romantic
relationship between the parties was terminated in 2010. First
respondent has no duty to support appellant, and
no obligation to
provide accommodation until 2017 or purchase a home for appellant. I
am satisfied that the magistrate duly considered
all the
circumstances of this case, and correctly found that it would be just
and equitable to grant an eviction order.
[40] The parties
have been involved in protracted litigation and appellant ought by
now to have made contingency plans should she
not be successful. She
was aware of the real prospect of eviction since legal proceedings
commenced. I therefore find that a reasonable
period for the
appellant to vacate the premises would be a period of three (3)
months upon the granting of this order.
[41] With regard to
costs, the general rule is that costs are to follow the event. It
therefore follows that the first respondent,
as the successful party,
would ordinarily be entitled to a costs order in his favour. This
general rule should only be departed
from in exceptional
circumstances.
[42] The parties
were involved in a relationship and an unfortunate sequence of events
led to litigation between the parties. Appellant
is unemployed, in
her senior years and not in good health. Given the regrettable
tension that already exists between the parties,
I deem it
undesirable to make matters worse by granting a costs order against
the appellant. Considering the history of this matter,
I am satisfied
that justice and fairness would be best served in this case if no
costs order is made.
[43] In the result
the following order is made:
(a) The appellant’s
application for condonation is granted, the appellant to bear any
costs associated therewith.
(b) The appeal is
dismissed.
(c) The appellant
and all persons holding through her are hereby ordered to vacate the
premises at 10 Vredelust Street Helderview
Somerset West, also known
as erf 8354 Somerset West, by no later than 21 November 2014.
(d) In the event of
appellant or any persons holding through appellant failing to comply
with paragraph (c) of this order, the Sheriff
is authorized to evict
them from the said property together with their belongings and to
hand over vacant possession to the first
respondent on 24 November
2014.
(e) No order is made
as to costs.
GOLIATH, J
Judge of the High
Court
I agree.
SCHIPPERS, J
Judge of the High
Court