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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:  2017/10383

Not reportable

Of interest to other judges

Revised.

27/10/2017

In the matter between:

VINSHAK INVESTMENTS (PTY) LTD                                                                    Applicant

and

SEAN SIBUSISO SIKHOSANA                                                                  First Respondent

EKURHULENI METROPOLITAN MUNICIPALITY                                Second Respondent

JUDGMENT

 

WEINER, J:

 

INTRODUCTION

[1] The applicant applies to evict the first respondent from a property of which the applicant is the owner and which is situated at Unit 47, Kyles Place, 9 Biddulph Street, Witfield, Boksburg (the property).

 

BACKGROUND

[2] The parties concluded a written lease agreement on the 25^th July 2014. In terms of the agreement:

2.1 The first respondent would rent the property from the applicant for a period commencing on the 1^st August 2014 and terminating on the 31^st July 2015.

2.2 Upon expiry of the fixed term, the agreement would continue on the same terms but on a month-to-month basis.

2.3 After expiry of the fixed term, either party could terminate the agreement on 30 days’ written notice to the other.

2.4 Notice given in terms of the agreement would, if hand-delivered, be deemed to have been received by the addressee on the date of delivery.

[3] Applicant contends that on the 1^st December 2016 it gave written notice to the first respondent that the agreement was to terminate with effect from the 31^st December 2016. It is also alleged by the applicant that the notice was delivered by hand by Nadine du Toit (Du Toit) on behalf of the applicant to the first respondent.  Du Toit states that the first respondent refused to acknowledge receipt of the letter.

[4] Applicant contends that as the first respondent remains in occupation of the property and has refused to vacate same, he is in unlawful occupation.

[5] Applicant initially instituted proceedings in the Boksburg Magistrate’s Court on the 7^th of February 2017.  The first respondent contends that this was the first time that he had sight of the termination letter dated the 1^st December 2016.

[6] The present eviction application was served on the 31^st March 2017. Applicant gave notice, in terms of section 4(2) of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 1998 (PIE,) prior to the hearing of the matter.  The section 4(2) notice in terms of the PIE Act was served on the first respondent personally on the 31^st May 2017

[7] The applicant thereafter withdrew the proceedings in the Boksburg Magistrate’s Court on the 23^rd March 2017 and instituted the present proceedings.

[8] The applicant contends that it has complied with the PIE Act and that the first respondent’s defence that the time period allowed is insufficient is incorrect. The applicant states that the first respondent has utilised the interpretation of the word days as court days whereas in fact it is interpreted as ordinary days in terms of the Interpretation Act No 33 of 1957. First respondent did not pursue this point.

[9] Accordingly this issue is no longer in dispute.

[10] The first respondent raises two main defences. Firstly, that there was no valid termination of the lease agreement and secondly, that there is non-compliance with section 13(7) of the Rental Housing Act, in that the applicant instituted eviction proceedings against the first respondent while there existed a dispute at the Housing Tribunal.

 

TERMINATION OF THE LEASE AGREEMENT

[11] The applicant contends that Du Toit personally served the termination letter on the first respondent. The first respondent disputes this and states that the first time he had sight thereof was in the eviction application issued out of the Boksburg Magistrate’s Court.

[12] In the Magistrate’s Court proceedings, Du Toit states that she personally served the first respondent with the letter of termination. The first respondent now contends that Du Toit has changed her version in that in the present application she states that the first respondent refused to accept the termination letter. What she does not change is that she personally served the letter on the first respondent.  She also refers to the fact that she was in the presence of a security guard and his affidavit is attached in confirmation of the fact that she personally served the letter on the first respondent who refused to acknowledge it.

[13] I accordingly find that the termination letter was served on the first respondent as alleged by the applicant.

 

RENTAL HOUSING ACT[1]

[14] Section 13(7) of the Act reads as follows:

“(7) As from the date of any complaint having been lodged for the Tribunal, until the Tribunal has made a ruling on the matter or a period of three months has elapsed, whichever is the earlier –

(a)  The landlord may not evict any tenant …”

[15] The dispute between the parties was referred to the Housing Tribunal on the 18^th November 2016. Applicant contends that it issued the present application on the 3^rd April 2017 more than three months from the date that the dispute was referred.  Accordingly, the applicant states that it is not in breach of the Rental Housing Act and the provisions provided for therein.

[16] In this regard two points arise. Firstly, the section refers specifically to the landlord not “evicting any tenant”.  The first respondent states the letter of termination was delivered within the three-month period. However, the letter of cancellation does not amount to proceedings to “evict the tenant”.  Secondly, the three-month period from the institution of the proceedings, before the Tribunal, had lapsed by the time the present application was issued.

[17] Applicant also contends that it cannot wait endlessly for the Tribunal to resolve the dispute between the parties.  They refer to a ruling granted by the Tribunal on the 29^th April 2017 in terms of which the first respondent and other tenants would furnish proper details to the applicant in order that new agreements could be concluded. Applicant contends that these persons have failed and/or refused to comply with this order.

[18] In regard to the first respondent’s right to housing in terms of section 26 of the Constitution[2] the first respondent states the following:

18.1 He lives with his wife and three children and the children attend a school which is in walking distance from the place of residence.

18.2 An eviction order will mean that he will have to find alternative accommodation which might be far from the children’s school and this will have an impact on his finances.

[19] First respondent accordingly contends that the balance of convenience favours him in that the prejudice and inconvenience to him will prevent him from enjoying his constitutional right to housing which will outweigh any prejudice that the applicant will suffer.

[20] In terms of section 26, the first respondent is to demonstrate to the court why it would not be just and equitable for an eviction to take place. See Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Others[3] (Erven 87). The court has taken into account the affidavits of the first respondent and the personal circumstances that he sets out therein.

[21] In the Erven 87 case, the Constitutional Court set out the legislative provisions and the circumstances which a court must take into account in determining whether it is just and equitable to evict a respondent. The Court held:

[41] The prohibition in section 26(3) is given effect to through the enactment of PIE.  This Act goes further and enjoins the courts to order an eviction only “if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances” as contemplated in section 4(6) and (7) and section 6(1).

[42] This Court in Port Elizabeth Municipality emphasised the new approach that courts must adopt in eviction matters.  A court must take an active role in adjudicating such matters.  As this Court stated:

“The court is thus called upon to go beyond its normal functions and to engage in active judicial management according to equitable principles of an ongoing, stressful and law-governed social process.  This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make.  The Constitution and PIE require that, in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result.”

[44] The nature of the enquiry under section 4 of PIE was examined in the case of Changing Tides.  In summary, it was held that there are two separate enquires that must be undertaken by a court:

“First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevant factors.  Under section 4(7) those factors include the availability of alternative land or accommodation.  The weight to be attached to that factor must be assessed in the light of the property owner's protected rights under section 25 of the Constitution, and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration.  Once the court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order, it is obliged to grant that order.”

[45] The second enquiry, which the court must undertake before granting an eviction order, is to consider—

“what justice and equity demand in relation to the date of implementation of that order and it must consider what conditions must be attached to that order.  In that second enquiry it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere.  The order that it grants as a result of these two discrete enquiries is a single order.  Accordingly, it cannot be granted until both enquiries have been undertaken and the conclusion reached that the grant of an eviction order, effective from a specified date, is just and equitable.  Nor can the enquiry be concluded until the court is satisfied that it is in possession of all the information necessary to make both findings based on justice and equity.”

[48] The court will grant an eviction order only where: (a) it has all the information about the occupiers to enable it to decide whether the eviction is just and equitable; and (b) the court is satisfied that the eviction is just and equitable having regard to the information in (a).  The two requirements are inextricable, interlinked and essential.  An eviction order granted in the absence of either one of these two requirements will be arbitrary.  I reiterate that the enquiry has nothing to do with the unlawfulness of occupation.  It assumes and is only due when the occupation is unlawful. The High Court erred as the applicants were, as a matter of fact, not legally represented in the eviction proceedings.  In addition, Mr Ngubane, who confirmed that the applicants had agreed to the eviction order, did not have a mandate to do so….”

[57]…..This is because on the facts before it homelessness was an undisputed risk.  An order that will give rise to homelessness could not be said to be just and equitable, unless provision had been made to provide for alternative or temporary accommodation”.

[footnotes omitted]

[22] The first respondent was represented before this court. He filed affidavits in which he set out his personal circumstances. The distance from the children’s school and the financial implications thereof are the only inconvenience the first respondent refers to. He did not refer to any inquiries he may have made in regard to alternative accommodation, thus the court cannot ascertain from his affidavit whether there is accommodation near the children’s school.

[23] It is clear from the first respondent’s affidavit that he is paying rental and accordingly, he is not one of those occupiers who will not be able to afford alternative accommodation. If this was the case, the first respondent had the opportunity to set this out. He does not state that he will be homeless, only that other accommodation may be more expensive and inconvenient. Thus, the homelessness situation referred to in the Erven 87 case is absent here.

[24] In my view, this court  “has all the information about the occupiers to enable it to decide whether the eviction is just and equitable; and (b) the court is satisfied that the eviction is just and equitable having regard to the information in (a)”[4].  

[25] As set out above, the first respondent has raised the fact that the alternative accommodation might be far from the children’s school. In the circumstances of the present case, I do not consider it equitable that the children’s schooling be disrupted. Accordingly, the date for the first respondent to vacate the property will be at the end of the school year.

[25] Accordingly the following order is granted:

25.1 The first respondent and all persons claiming right of occupation of the premises situate at Unit 47, Kyles Place, 9 Biddulph Street, Witfield, Boksburg through the first respondent are ordered to vacate the premises by the 31^st December 2017.

25.2 In the event that the persons referred to above do not vacate the premises by such date, the Sheriff of the Court, Boksburg is authorised and ordered to evict those persons from the premises.

25.3 The first respondent is to pay the costs of the application.

 

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       S WEINER

   JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Attorney for applicants: Alice Swanepoel Attorneys

Counsel for applicants: Ms A.E. Swanepoel

Attorney for first respondents: Morwasehla Attorneys

Counsel for first respondents: Mr Morwasehla

Date matter heard: 6 September 2017

Judgment date: 26 October 2017

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