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[2014] ZAWCHC 193
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Applethwaite Farm (Pty) Ltd v Tshongweni and Another (12299/2014) [2014] ZAWCHC 193 (12 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 12299/2014
DATE:
12 DECEMBER 2014
APPLETHWAITE FARM
(PTY)
LTD
...............................................................
Applicant
v
PATRICK
TSHONGWENI
...................................................................
First
Respondent
THEEWATERSKLOOF
MUNICIPALITY
........................................
Second
Respondent
Court: Judge J I
Cloete
Heard: 27
November 2014
Delivered: 12
December 2014
JUDGMENT
CLOETE J:
[1] This matter
concerns an application in terms of s 4 of the Prevention of Illegal
Eviction From and Unlawful Occupation of Land
Act No 19 of 1998
(‘PIE) to evict the first respondent, and all who hold title
under him, from certain land owned by the
applicant in Grabouw,
Western Cape. The second respondent does not oppose and for sake of
convenience I will thus refer to the
first respondent as ‘the
respondent’.
[2] The application
is opposed on the grounds that: (a) the respondent is protected from
eviction in terms of the Extension of Security
of Tenure Act 62 of
1997 (‘ESTA’); alternatively (b) if it is found that ESTA
does not apply, and PIE applies, he is
not in unlawful occupation
because the termination of his employment resulting in the
termination of his occupation was discriminatory
and unlawful and
falls to be set aside. Insofar as those persons who hold title under
him are concerned, he contends that both
his wife and son have
independent rights to occupy the property under ESTA. It is common
cause that in addition to his wife and
son, various other family
members also occupy the property.
[3] The applicant is
the registered owner of three portions of agricultural land in the
Grabouw area which abut one another and
are farmed as a single unit,
commonly known as Applethwaite Farm (‘the property’).
[4] The respondent
was employed by the applicant on 1 January 1978, and remained
employed, ultimately as a team leader, until his
retrenchment in
November 2013. The respondent (and over time, his family) had thus
lived on the farm for 35 years when he was retrenched
along with a
number of other employees. According to the applicant, the
retrenchment was for operational reasons. The respondent’s
tenure is directly dependent upon his continued employment by the
applicant. This much is evident from clause 11.1 of his employment
contract which reads as follows:
‘Die werkgewer
onderneem om, onderworpe aan beskikbaarheid, gratis huisvesting aan
die werknemer te voorsien.’
[5] The applicant
launched these eviction proceedings on 14 July 2014. A special
service order was granted on 30 September 2014
and was duly executed.
Although there was initially short service, this was effectively
cured when the parties agreed to a postponement
of the hearing on 7
October 2014 until 27 November 2014, i.e. the date when it came
before me: see inter alia Ngobeni v Unknown
Occupier and Others (an
unreported judgment of Dlodlo J in this division under case no
20525/2013 handed down on 19 June 2014)
at paras [23] – [25]).
The applicant relies on s 4(1) of PIE in support of its locus standi
to bring the application.
[6] Section 4(1) of
PIE confers locus standi on an owner or person in charge of land to
institute proceedings for the eviction of
an unlawful occupier. There
is no dispute that the applicant is the registered owner of its own
property. S 2 of PIE makes its
provisions applicable to all land
situated within the Republic of South Africa.
[7] The respondent
claimed protection under ESTA on the basis that his income at the
time of his retrenchment was R2 766 per month.
An ‘occupier’
is defined in ESTA as excluding a person using the land in question
for his own farming or similar commercial
enterprise (which the
respondent does not suggest) or a person who has an income ‘in
excess of the prescribed amount’.
The prescribed amount is
defined in regulation 2 of the ESTA regulations (GN R1632 in GG 19587
of 18 December 1998) as:
‘Qualifying
income
2.(1) The prescribed
amount for the purposes of paragraph (c) of the definition of
“occupier” in section 1(1) of the
Act shall be an income
of R5 000 per month.
(2) For the purposes
of subregulation (1) “income” means –
a. a person’s
gross monthly cash wage or salary; or
b. where a person
earns money –
i. other than in the
form of a monthly cash wage or salary, the average monthly amount of
such person’s gross earnings during
the immediately preceding
year; or
ii.in addition to a
monthly cash wage or salary, such person’s gross monthly cash
wage or salary together with the average
monthly amount of such
person’s additional gross earnings during the immediately
preceding year:
provided that
remuneration in kind shall not be taken into account.’
[8] Section 8(2) of
ESTA provides that:
‘The right of
residence of an occupier who is an employee and whose right of
residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the Labour Relations
Act.’
[“Dismissal”
includes retrenchment in terms of s 189 and
s 189A
of the
Labour
Relations Act 66 of 1995
].
[9] In Lebowa
Platinum Mines Ltd v Viljoen
2009 (3) SA 511
(SCA) at para [17] the
Supreme Court of Appeal held that the date of determination for
ascertaining an occupier’s income
is:
‘…when
lawful occupation ceases, i.e. when the permission or right to occupy
is withdrawn or ceases (or, if coincident,
when the eviction
proceedings are instituted).’
[10] In the present
matter, it is common cause that, following upon the respondent’s
retrenchment in November 2013, he was
permitted to remain in
occupation until 31 March 2014.
[11] Despite the
respondent’s initial allegation that he earned R2 766 per
month, the applicant, in its replying affidavit,
demonstrated that
this was patently untrue. In a supplementary affidavit the respondent
conceded that at the time of his retrenchment
he was in fact earning
an average of double that amount, i.e. R5 552 per month, excluding
any additional earnings or remuneration
in kind such as his free
accommodation. It is also common cause that on 15 and 16 January 2014
the respondent was paid the full
amount of his retrenchment package
in the sum of R340 488, comprised of six weeks notice pay of R8 298,
severance pay of R48 407,
leave pay of R2 766 and the balance being
his accrued pension fund entitlement.
[12] Applying the
formula referred to in
regulation 2(2)(b)(ii)
of the ESTA
regulations, the gross amount earned by the respondent during the
period 1 April 2013 until 31 March 2014 was thus
R103 887 calculated
as follows:
Salary April to
November 2013
(R 5 552 x 8
months) 44 416
Severance payment
excluding
pension benefits
59 471
103 887
[13] This amount of
R103 887 divided over 12 months is R8 657 per month. If the pension
benefit payment is added the amount is even
greater, although I am
not inclined to regard the pension payment as gross earnings. The net
result is thus that during the year
immediately preceding the date
upon which the respondent’s lawful occupation ceased, i.e. 31
March 2014, his average gross
monthly earnings fell above the
threshold of R5 000 per month and he is accordingly not an occupier
for purposes of ESTA.
[14] I now turn to
consider the PIE defence. In a nutshell, the respondent claims that
he was forced by the applicant to agree to
a retrenchment package
which included him having to vacate the property. He does not take
issue with the fairness of the process
itself. However he alleges
that he was not a member of the representative union, FAWU, at the
time and as such it was not authorised
to negotiate or conclude any
agreement on his behalf.
[15] It is
significant that in his initial answering affidavit the respondent
made no such allegation. On the contrary, he claimed
that FAWU had in
fact negotiated the retrenchment deal on his behalf but that he (and
certain other employees) were dissatisfied
therewith. The relevant
paragraphs read as follows:
‘13. Prior to
my retrenchment in September 2013 a meeting was called by “the
Union” (The Food and Allied Workers
Union FAWU), informing us
that they escalated a retrenchment dispute on our behalf to the CCMA
for conciliation and arbitration.
This was the first time we (the
workers) heard of the retrenchment.
14. The Union
further informed us that the Applicant had no other option but to
retrench us, but that they were in the middle of
negotiations with
the Applicant to mediate a good retrenchment package.
15. During October
2013 the Applicants met with all the workers during which they
presented a slide show on an overhead projector.
In the slide show it
was shown that the farm was not making any profit, and many workers
had to be retrenched.
16. Later during
this period another meeting was convened with the Union, where it was
explained that the dispute would be finalized
at the end of October
2013. The Union further informed us that the Commissioner for the
CCMA applauded both the Union and the Applicant
for their cordial
relations.
17. At the end of
October 2013 we were informed by the Union that the CCMA matter was
finalized and that the Applicant won the case.
The workers were all
very angry and stormed out of the meeting. We were not happy with the
outcome of the CCMA case as explained
to us by the Union, despite
this however the Union signed an agreement between themselves and the
Applicant on our behalf.………..
22. I explained to
the attorney that all the workers were dissatisfied with the Union
agreement for our retrenchment and that I
had been living on the farm
for 3 decades (35 years) and have refused to sign the letter.……….
50. It is denied
that I entered into an engagement process in respect of my
retrenchment with the Applicant; such was initiated
on our behalf
(workers), and agreed on our behalf.’
[emphasis supplied]
[16] It was only
after the applicant demonstrated that the respondent’s initial
allegations concerning his monthly gross earnings
were incorrect that
the respondent, in a supplementary affidavit, alleged that:
‘26. The
Applicant avers that I was a member of the Union during July 2013,
however it is respectfully submitted that during
February 2013, I
approached Mrs Brown in the office and advised her that I no longer
wished to be a member of the Union (FAWU).
27. …my
[initial] refusal to sign [the retrenchment agreement] signalled my
discontentedness with both the Applicant and
the Union.’
[emphasis supplied.
Mrs M Brown is employed as the Payroll Administrative and Support
Officer of the applicant.]
[17] The applicant
denies that FAWU was not authorised to represent the respondent
during the retrenchment process. Further, on
the respondent’s
version, he continued to attend all union meetings after his
membership purportedly terminated and, as demonstrated
above, was
content to allege in his founding affidavit that FAWU had negotiated
on his behalf, irrespective of whether he had paid
his membership
subscription. Although obviously open to him to have done so, he
failed to provide details of any communications
which he might have
had with FAWU regarding the alleged withdrawal of his membership. The
only independent evidence is that, as
from February 2013, his union
subscription was not deducted from his monthly earnings. There is
nothing on the papers to indicate
that he has taken any steps against
FAWU for allegedly misrepresenting him, and his own referral to the
CCMA, which was lodged
on 9 January 2014 and withdrawn on 13 January
2014, made no mention of this. That referral was in respect of a
purported dispute
with the applicant, namely that it was withholding
payment of his severance package because he did not consent to leave
the property
and that he was protected under ESTA. The complaint that
payment was being withheld can mean nothing other than the respondent
believed, and accepted, that the retrenchment package was due to him.
He has not repaid the applicant any portion thereof, nor has
he
tendered payment. A plain reading of his referral to the CCMA in
January 2014 shows that, while he had no difficulty in accepting
the
severance package, he was not prepared to vacate the property because
he believed that he was protected under ESTA.
[18] During argument
I was informed that the respondent had again referred the dispute
concerning the termination of his employment
to the CCMA and that the
application for condonation for the late filing thereof (given that
such referral was way out of time
in terms of
s 191(1)
of the
Labour
Relations Act) was
set down for hearing on 2 December 2014. I thus
arranged with the parties to inform me of the outcome, as both
counsel were in
agreement that if condonation was refused, that would
put an end to the defence of unfair dismissal. On 10 December 2014 I
was
provided with the CCMA ruling refusing to entertain the
condonation application.
[19] The respondent
contends that his wife and adult son enjoy independent rights to
occupy the property. This was raised for the
first time in his
supplementary answering affidavit. The respondent’s wife, Mrs
Veronica Tshongweni, was only ever employed
on a temporary basis
during the 2005/2006, 2008/2009 and 2010/2011 packing seasons. The
applicant has produced these temporary
employment contracts. Clauses
14, 15 and 16 respectively each stipulate in terms that ‘U sal
nie vir behuising op die Plaas
kwalifiseer soos uiteengesit in die
beleid van die Plaas nie’. Accordingly, her occupation of the
property was solely linked
to the fact that she held title under the
respondent, whose right of occupation was terminated in terms of the
retrenchment agreement
concluded.
[20] The applicant
has also demonstrated that the respondent’s adult son, Mr Sipho
Tshongweni, who was employed by the applicant
as a spray operator
from 5 October 2009 to 6 December 2012, was not only never afforded
an independent right of occupation in terms
of his employment
contract, but was dismissed from the applicant’s employment for
inter alia absenteeism and insubordination.
He referred his dispute
over his dismissal to the CCMA but on 21 February 2013 entered into a
CCMA settlement agreement with the
applicant in terms of which the
referral was withdrawn. From 10 February 2014 until approximately 10
May 2014 he was temporarily
employed by the applicant as a general
worker during the harvest season. Clause 30 of his temporary
employment contract stipulates
that the provision of free
accommodation lies within the sole discretion of the applicant. It is
not suggested that any agreement
relating to the provision of free
accommodation was concluded. During this temporary employment he was
given a written warning
for under performance. Accordingly, Mr Sipho
Tshongweni’s occupation of the property was also solely linked
to the respondent’s
employment.
[21] It is common
cause that in addition to the respondent’s wife and son, the
following family members also reside on the
property, namely his
adult daughter Patricia (20 years old), her daughter Cherlin (2 years
old), his minor daughter Jessica (17
years old), and his minor
granddaughter Ericia (8 years old). Residing in the outbuilding on
the portion of the property occupied
by the respondent are his adult
son, his wife Jenine (33 years old) and their two children, Jade (11
years old) and Emily (2 years
old). It is also common cause that,
apart from the respondent’s wife and adult son, none of these
individuals have any independent
right to occupy the property.
[22] During argument
it was contended by counsel for the respondent that, the aforegoing
notwithstanding, the respondent’s
wife and adult son must
nonetheless be dealt with under ESTA. As I understand the argument,
the fact of their former employment,
coupled with their residence
along with the respondent, means that they can only be evicted by the
applicant in terms of ESTA.
[23] In Van der
Merwe and Another v Klaase; Klaase v Van Der Merwe and Others (case
no LCC 09R/2014, an unreported judgment delivered
on 7 October 2014)
the unlawful occupier’s wife, Mrs Klaase, relied on ESTA to
avoid her eviction. She claimed that she was
a general farm labourer
who lived on the farm in question with the owners’ consent and
was consequently an occupier in her
own right. The owners denied that
independent consent was ever given to Mrs Klaase to reside on the
farm. According to them, her
presence on the farm was because she
first lived there with her mother and thereafter because she was
married to the unlawful occupier,
who had the right to occupy the
farm as the owners’ fulltime employee. The court found that her
allegations of permanent
employment and of consent being granted to
her personally to occupy the premises were not supported by the facts
(as is the case
in the present matter).
[24] At paras [22]
to [25] the court held that:
‘[22] There
are different classes of persons who can occupy the property of
another in terms of ESTA. First, there are those
who are granted
consent to occupy the property and thus enjoy protection under ESTA
as occupiers. Secondly, in terms of the provisions
of
section 6(2)(d)
of ESTA, there are those persons who, although not occupiers in terms
of ESTA, are entitled to reside on the property by virtue
of being
entitled to family life in accordance with the culture of that
family.
[23] The term
“occupier” in ESTA is used in a narrow and wide sense.
The narrow one being applicable only to persons
who have the consent
of the owner or person in charge of the property or have another
right in law to reside thereon. The wide
sense refers to those who
derive their right of residence through or under occupiers in the
narrow sense. The persons falling within
the latter group are not
occupiers in terms of ESTA. It is probably easier to distinguish
between the two classes of occupiers
by using the term “occupiers
in their own right” for persons to whom the eviction procedures
of ESTA apply, and to
the others as “residents”. The
right of an “occupier in his own right” to stay on a farm
derives from consent
given by the owner or person in charge of the
farm, whilst the right given to a “resident” to stay on
the farm derives
from a different source, usually a family
relationship with an “occupier in his or her own right”.
See Landbounavorsingsraad
v Klaasen
2005 (3) SA 410
(LCC) at 425A-B
and Simonsig Landgoed (Edms) Bpk v Vers
2007 (5) SA 103
(C) at
paragraph 18.
[24] In the
circumstances, I am persuaded by the argument put up by Mr Wilkin and
find that Mrs Klaase is a “resident”
and not an “occupier
in her own right”.
[25] I also find
that Mr Hathorn appears to have misconstrued Sterklewies by arguing
that a person residing on property with consent
ipso facto becomes an
ESTA occupier. Wallis JA in Sterklewies found that ESTA does not
require consent to be an agreement or contract
strictly construed. I
consequently agree with Mr Wilkin that a person claiming ESTA
occupation must be residing on the property
without any other right
to do so and with the apparent consent of the owner thereof or the
person in charge of the land. Mrs Klaase’s
presence on the
property was due, initially, to her living there with her mother and
subsequently as a result of her marriage to
the respondent. ESTA and
the Constitution barred the first and second applicant from denying
her access to the property by virtue
of the respondent’s right
to family life.’ [emphasis supplied.]
[The full reference
of the Sterklewies case is: Sterklewies (Pty) Ltd t/a Harrismith
Feedlot v Msimanga and Others
2012 (5) SA 392
(SCA) at para [3].]
[25] Given that his
lawful occupation has been terminated, the respondent and all who
hold title under him have no right in law
to occupy the property, and
are unlawful occupiers within the meaning of PIE. Since the
respondent had been in occupation of the
property for more than six
months at the time when the eviction proceedings were instituted in
July 2014, the application falls
to be determined in terms of s 4(7)
of PIE, which reads as follows:
‘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.’
[emphasis supplied]
[26] During argument
counsel were ad idem that the duty to place all relevant
circumstances before the court rests upon both of
them to the extent
that they are able to do so, although in F H P Management (Pty) Ltd v
Theron NO and Another
2004 (3) SA 392
(C) at 404I-405B Van Heerden J
(as she then was) said:
‘As regards
the effect of section 26(3) of the Constitution (as quoted above),
read together with section 4(7) of PIE, it
would appear from the
judgment of Harms JA in Ndlovu v Ngcobo; Bekker & another v Jika
(supra) at paras [17]–[19] that
it is not necessary for an
applicant, in proceedings to evict an unlawful occupier from such
applicant's property, to place more
before the Court by way of
evidence than the facts that such applicant is the owner of the
property in question and that the respondent
is in unlawful
occupation of such property. It is then up to the occupier to
disclose to the Court "relevant circumstances"
to show why
the owner should not be granted an order for the eviction of the
occupier (see also Ellis v Viljoen
2001 (4) SA 795
(C) at 805C–D;
Ridgway v Janse van Rensburg
2002 (4) SA 186
(C) at 191I–192A;
Brisley v Drotsky
2002 (4) SA 1
(SCA) at paragraphs [41]–[43]).’
[27] Be that as it
may, the applicant has taken the trouble to also place information
before the court as to the respondent’s
circumstances, and
there can be no harm in considering these as well. As to the meaning
of ‘relevant circumstances’,
in Groengras Eiendomme (Pty)
Ltd v Elandsfontein Unlawful Occupants
2002 (1) SA 125
(T) at para
[32] Rabie J said:
‘ The main
thrust of both ss 4 and 6 is that the court should be satisfied that
it is 'just and equitable' that the eviction
be granted. However, the
sections enjoin the court, prior to coming to a finding thereon, to
consider all the relevant circumstances.
The Legislator did not limit
the circumstances which the court should consider and neither did it
arrange the circumstances in
order of priority. It referred to 'all
the relevant circumstances' and left it to the court to determine
which circumstances are
relevant and to consider all those in
conjunction. The fact that the Legislature referred specifically to
the rights and needs
of the elderly, the children, the disabled and
households headed by women and, in certain instances, also the
availability of alternative
land does not mean that the Legislature
intended to elevate these circumstances to absolute prerequisites
which have to be met
before an order may be granted. If the
Legislator intended such a consequence, it would have said so
specifically. To do so would,
in any event, in many instances,
including the present case, probably have the effect that the private
owner of property has the
obligation to provide housing to the
general public and is burdened to 'carry the can of [their] claim to
''housing'' (cf Betta
Eiendomme (supra at 473A)). Such a situation
would wreak havoc with pre-determined housing procedures. It would
wreak havoc with
ownership and possessionary rights.’
[emphasis supplied]
[28] See also
Modderfontein Squatters, Greater Benoni City Council v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre, Amici
Curiae); President of the Republic of South Africa and Others v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre,
Amici Curiae)
2004 (6) SA 40
(SCA) at paras [30] to [31] where Harms
JA said the following:
‘[30] To an
extent, the State did comply with its s 165(4) duties. There are the
provisions of PIE which create a mechanism,
although sometimes
burdensome, to evict unlawful occupiers. There is a Sheriff who has
to execute court orders. The SAPS, to prevent
lawlessness, is
prepared to police the execution of the eviction order. But the State
does not serve as insurer of litigants and,
if an order is
unenforceable because of practical considerations, the loss is
usually that of the litigant. However, in a material
respect, the
State failed in its constitutional duty to protect the rights of
Modderklip: it did not provide the occupiers with
land which would
have enable Modderklip (had it been able) to enforce the eviction
order. Instead, it allowed the burden of the
occupiers’ need
for land to fall on an individual, which leads to the next point,
namely, s 9 of the Bill of Rights.
[31] Section 9(1)
provides that everyone is equal before the law and has the right to
equal protection and benefit of the law, while
s 9(2) states that
equality includes the full and equal enjoyment of all rights and
freedoms. As appears from para 1.6.4 of the
order, De Villiers J
found that Modderklip was not treated equally because, as an
individual, it has to bear the heavy burden,
which rests on the
State, to provide land to some 40 000 people. That this finding is
correct cannot be doubted. Marais J, in the
eviction case, said that
the “right” of access to adequate housing is not one
enforceable at common law or in terms
of the Constitution against an
individual land owner and in no legislation has the State transferred
this obligation to such owner.
As to the second point, he is, no
doubt, correct, but I would qualify the first. Circumstances can
indeed be envisaged where the
right would be enforceable
horizontally, but the present is not such a case.’
[emphasis supplied]
[29] The relevant
circumstances set out by the applicant are as follows. The respondent
is 55 years old. He and those holding title
under him are all in good
health, and none suffer from any disability or mental impairment.
Given that the respondent has resided
in the Grabouw area for a
period of more than 36 years, he should have friends and/or family
within the immediate area who would
be able to provide accommodation,
even if only on an emergency or short term basis.
[30] Enquiries which
the applicant has made show that there are properties available for
rent in Grabouw and nearby Botrivier ranging
from 2 bedroomed homes
at R3 300 per month to 3 bedroomed homes at R6 500 per month. In
January 2014 the respondent received payment
of R340 000 as his
retrenchment package from which inter alia he purchased a vehicle for
just under R50 000. From his bank statements
it appears that of the
amount paid to him, the respondent has invested approximately R150
000 in a separate account. In addition,
he was employed on a
neighbouring farm during the harvest season from January to May 2014.
That his average cash withdrawals from
the balance of the funds in
his account during the period February to May 2014 were R13 000 per
month cannot be laid at the applicant’s
door. The respondent
should have been cautious in his spending, given that he must have
been aware that an application for his
eviction was likely to follow.
[31] The only
accommodation which the applicant has available on its property is
for those individuals who are employed by it, along
with their
families who hold title under them. There is no alternative
accommodation on the applicant’s property and the
individual
who has replaced the respondent is waiting to move into the premises
currently occupied by him and his family. Although
under no
obligation, the applicant afforded the respondent an extra three
months after his lawful occupation ceased at the end
of March 2014 to
vacate, and only launched the eviction proceedings in July 2014.
[32] The respondent
initially agreed that Mr Sipho Tshongweni (along with his immediate
family) resides in an outbuilding on his
premises and that ‘it
is merely provisional till he may find alternative accommodation’.
However in a supplementary
affidavit he contended that his son ‘lives
next door’; that he was placed in the outbuilding by the
applicant; and
that he (i.e. the respondent) had never given
permission for his son and immediate family to reside there.
[33] The outbuilding
is geographically located on the premises occupied by the respondent.
The applicant denies having placed Mr
Sipho Tshongweni there. If his
occupation (allegedly without the respondent’s consent) was a
problem for the respondent,
it is hard to understand why he has never
taken this up with the applicant.
[34] The respondent
does not take issue with any other of the applicant’s
allegations relating to his relevant circumstances.
He merely claims
that he and his family can ill afford to rent elsewhere, and that
friends in the immediate area cannot accommodate
them. That he cannot
afford to rent elsewhere is not supported by the objective facts. In
addition to the funds at his disposal,
on his own version he has used
a portion of his retrenchment package to purchase a vehicle (and thus
has transport) and various
household necessities such as a stove,
fridge and bed (and can therefore furnish alternative accommodation).
He has also repaid
debt and is now by all accounts virtually debt
free. He qualifies for UIF payments of about R3 500 per month, which
is an additional
source of income, albeit in the short term. He was
employed on a neighbouring farm during the harvest season from
January to May
2014. There is no reason to believe (and the
respondent does not suggest otherwise) that he cannot again be
employed in this capacity
during the 2015 season, as could his
able-bodied son.
[35] Furthermore,
the respondent does not deny that during the course of the
retrenchment process he was offered what the applicant
refers to as a
‘preferred alternative’ in order to continue with his
employment; he merely takes issue with the terms
thereof.
Significantly, he cannot meaningfully refute the applicant’s
allegation that the preferred alternative would have
enabled him to
continue residing on the property. He simply contends that because
this option would have guaranteed his employment
(albeit at a reduced
salary) for only nine months per annum ‘then the decision to
grant housing is clearly an arbitrary process,
at the employer’s
discretion and not linked to employment’. Not a single piece of
evidence was placed before the court
in support of this
interpretation.
[36] Insofar as the
children residing at the property are concerned, the obligation to
provide them with housing would not rest
in the first instance with
the applicant, but with their parents or grandparents: see Government
of the Republic of South Africa
and Others v Grootboom and Others
2001 (1) SA 46
(CC) at paras [77] to [79]. The respondent does not
suggest that the children in his care should be provided with shelter
apart
from their parents or grandparents.
[37] Having regard
to all of these considerations, I am persuaded that there are no
relevant circumstances which would militate
against the granting of
the eviction order sought by the applicant and that an eviction order
is both just and equitable. This
is also not a case where other land
should be made available by the applicant, as was alluded to in
Modderfontein Squatters. The
applicant has complied with all of the
requirements of s 4 of PIE. No valid defence has been raised by the
respondent as an unlawful
occupier. Accordingly, in terms of s 4(8)
of PIE, I must grant an order for the eviction of the respondent and
all those holding
title under him and determine: (a) a just and
equitable date by which they must vacate the property; and (b) the
date on which
an eviction order may be carried out if they do not
vacate.
[38] In terms of s
4(9) of PIE, in determining a just and equitable date, I must again
have regard to all relevant factors, including
the period that the
respondent has resided on the applicant’s property.
[39] The applicant
submits that the respondent and those holding title under him should
be evicted by the end of the forthcoming
school holiday, i.e. by 21
January 2015. Whilst the applicant correctly says that the respondent
has frustrated finalisation of
his departure from the property for an
extended period, I do not believe that it would be just and equitable
to order that he and
those holding title under him must vacate by
that date. Christmas is a few weeks away. The respondent and his
family have resided
on the property for a very long time. In these
circumstances, and given that they will have to secure alternative
accommodation
over a very busy period, it is my view that it would be
just and equitable to order the respondent (and all who hold title
under
him) to vacate the applicant’s property by not later than
Friday, 27 February 2015.
[40] The parties
have pointed fingers at each other to place the blame for all of the
costs that have been incurred. The applicant
has also sought to place
blame squarely on the shoulders of the respondent’s attorney.
To my mind, and in the exercise of
my discretion, this is one of
those cases where equity must prevail. In any event, a costs order
against the respondent will simply
deplete his resources which can be
far better spent on accommodating himself and his family elsewhere.
[41] In the result
the following order is made:
1. The first
respondent and all those holding title under him who are occupying
the property known as Paradise Lane No 7 situated
on Applethwaite
Farm, Grabouw, Western Cape including all outbuildings thereon, (‘the
property’) and including Mr Sipho
Tshongweni, are hereby
evicted from the property.
2. The persons
referred to in paragraph [1] above shall vacate the property by not
later than 27 February 2015, failing which the
applicant shall be
entitled to evict them in accordance with this order, and the Sheriff
and/or members of the South African Police
Service are authorised to
assist the applicant in such eviction to the extent reasonably
required.
3. Each party shall
pay their own costs, including those of all reserved costs orders.
J I CLOETE