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Taylor v Hogg (CA317/17) [2018] ZAECGHC 64 (10 August 2018)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. CA 317/17

Date heard: 3/8/18

Date delivered: 10/8/18

Not reportable

In the matter between:

PHILLIP STEPHEN TAYLOR                                                                                Appellant

and

STEVEN HOGG                                                                                        First Respondent

THE UNLAWFUL OCCUPIERS OF […],

L AVENUE, LORRAINE, PORT ELIZABETH                                     Second Respondent

NELSON MANDELA BAY MUNICIPALITY                                             Third Respondent

 

JUDGMENT

 

Plasket J

[1] The appellant, Mr Phillip Taylor, (Taylor) brought an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), in the Port Elizabeth Magistrate’s Court, for an order evicting the first respondent, Mr Steven Hogg, (Hogg) and those who occupy the premises concerned through him. These people are his wife and adult daughter. They are cited as ‘The Unlawful Occupiers of […], L. Avenue, Lorraine, Port Elizabeth’, the second respondent. The Nelson Mandela Bay Municipality was cited as the third respondent but no relief was claimed in respect of it, and it has taken no part in the proceedings. The magistrate dismissed the application with costs. Taylor appeals against that order.

 

Background

[2] While the papers of both Taylor and Hogg are not a model of clarity, the following facts may be discerned from them, and from the transcript of the argument before the magistrate.

[3] Taylor was a member of a close corporation that employed Hogg. As part of his employment, Hogg was given the use and enjoyment of […], L Avenue, Lorraine, Port Elizabeth (the premises), which was owned by Taylor. It appears that the close corporation paid rent in respect of Hogg’s occupation of the premises to Taylor.

[4] Hogg worked for the close corporation, and resided in the premises with his family, for about ten years. He was dismissed in September 2016 and the close corporation, from what I can gather, was deregistered and no longer exists.

[5] When Hogg was dismissed, rent ceased being paid. By letter dated 31 October 2016, Taylor’s attorneys gave Hogg notice of a month to vacate the premises. When that had no effect, a further letter was sent to him, dated 2 February 2017, in which he was informed that Taylor had elected to cancel ‘the lease agreement’.

 

The PIE

[6] The PIE aims to balance two interests that are in conflict – the ownership rights of land owners and rights of access to housing of those in occupation of premises. Its touchstone for the balance is the concept of justice and equity. This, as was pointed out in Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter & others,[1] ‘relates to both interests’: what is just and equitable must relate not only to those who occupy land unlawfully but also to the owner of the land.

[7] It is clear from s 4(1) of the PIE that it is only an unlawful occupier who may be evicted at the instance of an owner or person in charge of land. An unlawful occupier is defined in s 1 to mean ‘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 31 of 1996)’.

[8] Section 4(7), which applies in this case, provides:

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.’

[9] Section 4(8) provides that if a court is ‘satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier’. It must then decide upon ‘a just and equitable date on which the unlawful occupier must vacate the land under the circumstances’ as well as the ‘date on which an eviction order may be carried out if the unlawful occupier has not vacated the land’ on the due date. In terms of s 4(9), the court must ‘have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question’.[2]

 

Discussion

[10] Both in the papers and in argument before the magistrate, a lively debate was had as to whether or not an agreement of lease had been concluded between Taylor and Hogg. It seems to me that this issue is irrelevant. Whether a lease was in place or the relationship between Taylor and Hogg was premised on a precarium, the result is the same: Hogg’s right to reside in the premises has been revoked by Taylor. As he and his family no longer have the consent of Taylor to live in his premises, they are unlawful occupiers for purposes of the PIE and are liable to eviction.

[11] As the Hogg family has lived in the premises for longer than six months, s 4(7) applies. I take into account that the Nelson Mandela Bay Municipality has not filed any papers and has consequently not informed the court of its ability to provide housing to the family. It is, however, obliged to provide temporary shelter to them if their eviction renders them homeless.[3]

[12] In my view, however, matters should not progress to that point. I accept that due to Hogg losing his employment, he and his family are in financially difficult circumstances. That said, they have an income made up of his wife’s salary of R6 800 per month and his daughter’s salary of about R3 200 per month, now that she has completed her studies. In addition, Hogg informed us from the bar, he has received a payment from the Unemployment Insurance Fund which he used to fund the construction of a food trailer. He already has a contract in place to supply about 30 lunches a day to a group of technicians, at a price of R35 per meal. He also sells food and cold drinks to the public in general. He said that his circumstances were slowly improving.

[13] During the course of argument before the magistrate, it emerged that relatively inexpensive accommodation is available in Port Elizabeth. Hogg appeared to be reluctant to accept whatever he could but, in the circumstances in which he and his family find themselves, they are not in a position to hold out for the accommodation of their choosing: they are, after all, living for free in someone else’s house.

[14] I take into account that Hogg and his family have resided in the premises for a long time – now over ten years. Of that period, they have been unlawful occupiers for close to two years. It cannot reasonably be expected of Taylor that he provides Hogg and his family with free housing indefinitely. That, it seems to me, is the effect of the magistrate’s order dismissing the application. The result is not just and equitable when Taylor’s interests are considered. Ms Van der Merwe, who appeared for Taylor, informed us from the bar that his circumstances recently took a turn for the worst when the house in which he resided burnt down.

[15] In my view, the magistrate erred in not giving sufficient weight to the interests of Taylor as owner of the premises and to the length of time that Hogg and his family have spent in the premises since being given notice to vacate. That period should have afforded them ample opportunity to find other accommodation. It is, in all the circumstances, just and equitable that an eviction order be granted. Hogg, in argument before us, accepted that he and his family had to vacate the premises but requested a further six months of occupation to allow his financial circumstances to stabilise. Ms Van der Merwe, on the other hand, argued that a further two months of occupation would suffice.

[16] It must be accepted that Hogg and his family have not found alternative accommodation as yet, and that their financial situation, no doubt, hampers their efforts. I take that into account when determining that a relatively long period should be afforded them before they become liable to eviction. It is apparent from what Hogg informed us from the bar that the family’s financial prospects are improving. In all of the circumstances, I am of the view that a period of three months strikes a reasonable balance between the interests of Taylor, on the one hand, and those of the Hogg family, on the other.

 

The order

[17] For the reasons that I have given, the appeal must succeed. That means that an eviction order will be made and the Hogg family will be given three months in which to vacate the premises. The costs, in both the Magistrate’s Court and in this court, must follow the result.

[18] I make the following order.

(a) The appeal succeeds with costs.

(b) The order of the court below is set aside and replaced with the following order.

(1) The first and second respondents are ordered to vacate the premises situated at [...], L Avenue, Lorraine, Port Elizabeth (the premises) within three months of the date of service on them of this order.

(2) The order granted in paragraph 1 above may be enforced, and the first and second respondents be evicted from the premises, if they have not vacated the premises after the expiry of three months from the date of service of this order on them.

(3) The first and second respondents are directed to pay the applicant’s costs.’

 

 

________________________

C Plasket

Judge of the High Court

 

 

I agree.

 

 

________________________

T Malusi

Judge of the High Court

 

 

APPEARANCES

For the appellant: K Van der Merwe

Instructed by

Carinus Jagga Inc, Grahamstown

Pagdens Attorneys, Port Elizabeth

For the first respondent: In person

For the second respondent: No appearance

For the third respondent: No appearance


[1] Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter & others 2000 (2) SA 1074 (SE) at 1081F.

[2] See generally, City of Johannesburg v Changing Tides 74 (Pty) Ltd & others 2012 (6) SA 294 (SCA) para 12.

[3] City of Johannesburg v Rand Properties (Pty) Ltd & others 2007 (6) SA 417 (SCA) para 47; City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another 2012 (2) SA 104 (CC) para 96.