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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NUMBER:  LCC200/2020

In the matter between:

PENNY KOTZE                                                                                            Appellant

and

MICHELLE SCHOLEFIELD                                                              First Respondent

CITY OF CAPE TOWN MUNICIPALITY                                  Second  Respondent

DEPARTMENT OF RURAL DEVELOPMENT                              Third Respondent

AND LAND REFORM

(This judgment is handed down electronically by circulation to the parties' legal representatives by email.  The date for hand-down is deemed to be  May 2021.)

JUDGMENT

MIA AJ

INTRODUCTION

[1]     This is an appeal against the dismissal of an application brought in the Simons Town Magistrate’s Court in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), for the eviction of the First Respondent  from  the farm Poespaskraal No 945 in the South Municipality, Cape Division, Province of the Western Cape, commonly known as Finchley Farm EF 5011 Noordhoek Western Cape (“the farm”), of which the Appellant is the registered owner. On 29 September 2020, the eviction application was dismissed with costs in the court a quo.

BACKGROUND

[2]     The farm is situated at 18 Kommetjie, Main Road, Sunnydale, Cape. The Appellant became the registered owner of the Farm on 19 May 1998. The First Respondent became an occupier on the farm in terms of section 1 of ESTA after 4 February 1998.

[3]     In terms of the title deed, "the land shall be used for residential and agricultural purposes only, and no trading store or place of business, industry whatsoever may be opened or conducted on the land without the written approval of the controlling authority as defined in Act 21/1940". 

[4]     The First Respondent  was offered a business opportunity by the Appellant  in or around 2005/2006 to continue with the Appellant's mother's business of breeding dogs on the Appellant’s mother’s  property. This business was handed over to the First Respondent at no cost. The First Respondent was also given consent to occupy the Appellant's mother's property. The Appellant's mother’s property was sold in 2009, whereupon the First Respondent moved to a property in Somerset West. In 2013, upon the First Respondent being evicted from that property, the Appellant felt sorry for the First Respondent and gave her consent to reside on a portion of the farm, provided that the First Respondent's trust assisted in providing funds to erect a wendy-house on the farm in which the First Respondent could reside. The wendy-house would belong to the First Respondent and it would be her decision upon leaving the property  to either dissemble and sell it or be refunded by the Appellant for it, taking into account fair wear and tear and its market related value.

[5]     The farm is currently on the market and the Appellant will be prejudiced if she cannot offer a purchaser vacant occupation. It is inter alia for this reason that the Appellant sought the eviction of the First Respondent. The basis of the First Respondent's right to reside on the property was the subject of dispute in the proceedings before the court a quo. The Appellant averred the consent to reside on the property emanated from a lease agreement for a monthly rental of R2000.  The First Respondent averred that consent to reside emanated from a right to live on the farm for the rest of her life and that the monthly payment of R2000 was not rental but a sum payable towards utilities and amenities. No evidence was led regarding this dispute.

[6]     When the First Respondent took over the Appellant's mother’s business she had permission to take occupation of the farm with thirty dogs. She was required to reduce this number to six dogs after two years. This consent for keeping more than six dogs was terminated in a written notice dated 2 October 2019. According to the Appellant, the First Respondent ignored the stipulation that the number of dogs be reduced to six dogs even after the passage of two years. Whilst the Appellant and the First Respondent were friends initially, the relationship deteriorated over time. The Appellant no longer feels comfortable with the First Respondent's dog day care business on the farm as it allows access to various unknown persons on the property. The Appellant alleges that she no longer feels safe, this is so in view of the increase in home invasions occurring in South Africa and because the farm is close to the Masiphumelele informal settlement.

[7]     The Appellant complains that the first respondent failed to maintain and service the septic tank. However, the First Respondent maintains the Appellant has to do so when it is required. All requests made by the Appellant are disregarded by the first respondent, and they are no longer on speaking terms. The relationship has irretrievably broken down. Furthermore, the First Respondent does not have amicable relationships with other occupiers on the farm, namely the Appellant's daughter and her family.

[8]     The Appellant initially tried to terminate the First Respondent's right of occupation and gave her notice to vacate the premises in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), dated 1 July 2019. The Appellant concedes that this was the incorrect statute to rely on. This was so as the property is agricultural. The First Respondent became an occupier[1] as contemplated in section 1 of ESTA after February 1997. The Appellant, having commenced the initial process through PIE, then sought to purport to terminate the First Respondent's right of residence in terms of section 8 of ESTA. Section 8 provides:

“8.   Termination of right of residence.—(1)  Subject to the provisions of this section, an occupier’s right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to—

(a)        the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in charge relies;

(b)        the conduct of the parties giving rise to the termination;

(c)         the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned, and any other occupier if the right of residence is or is not terminated;

(d)         the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time; and

(e)     the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence.

(2)       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.

(3)       Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.

(4)       The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and—

(a)         has reached the age of 60 years; or

(b)         is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge, may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) (a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach.

(5)         On the death of an occupier contemplated in subsection (4), the right of residence of an occupier who was his or her spouse or dependant may be terminated only on 12 calendar months’ written notice to leave the land, unless such a spouse or dependant has committed a breach contemplated in section 10 (1).

(6)         Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in terms of this section, shall be void.

(7)         If an occupier’s right to residence has been terminated in terms of this section, or the occupier is a person who has a right of residence in terms of subsection (5)—

(a)        the occupier and the owner or person in charge may agree that the terms and conditions under which the occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or

(b)        the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household.”

[9]        The Appellant sought an order in terms of section 9 of ESTA to evict the First Respondent contending that the terms of section 8 of ESTA had been complied with. The First Respondent’s right of residence had been terminated in terms of section 8, and she had been given two calendar months written notice of the intention to obtain the order for eviction.   The first written notice to vacate given in terms of PIE was dated 1 July 2019. The First Respondent was required to vacate no later than 31 August 2019. The statute relied upon was incorrect.  A further written notice to vacate the farm was given in a letter dated 2 October 2019. In terms of this letter, the First Respondent was advised to vacate by 8 November 2019. This notice was in terms of ESTA. The First Respondent did not comply with this notice and carried on with her business.

[10]     The relationship has broken down over a period of time. This commenced with the lack of compliance with the requirement to reduce the number of dogs. The First Respondent also allowed the dog's faeces to accumulate on the premises even though she stored same in the garage adjacent to the wendy house, which the Appellant found untenable. The First Respondent refused to dispose of the faeces hygienically.  It continued with the First Respondent not maintaining the septic tank. In April 2019, the First Respondent sent the Appellant a request for payment for her vehicle damage. It was initially believed that the damage to the First Respondent’s vehicle was caused by the Appellant’s dogs. It later transpired that the Appellant’s broomsman caused the damage. The Appellant eventually allowed the First Respondent to deduct the damages from the R2000 she was required to pay each month. The Appellant’s daughters and their families also resided on the Farm. The First Respondent did not enjoy an amicable relationship with them either.

MAGISTRATE’S DECISION

[11]     When the matter was argued before the court a quo, the court considered the three facts in dispute:

11.1    whether the First Respondent’s occupation was by consent in terms of an alleged verbal lease agreement on specific terms as contended by the appellant or by consent given by the appellant to live on the property for the rest of her life, i.e. a usufruct or habitatio;

11.2    whether the Appellant had terminated the First Respondent’s right of residence on a lawful ground in terms of section 8 of ESTA.

11.3    whether an eviction would be just and equitable, specifically with regard to the notice period given to the First Respondent to vacate.

[12]   The court a quo in its discussion noted that the Appellant was aware of a dispute of fact as she referred to this in her founding affidavit: that the First Respondent would raise her life right of occupation or habitatio[2]. The First Respondent did do so in her opposing affidavit. Despite the dispute of fact, the court a quo noted that the Appellant sought an application for eviction without referring the issue in dispute to oral evidence. As the matter came before the court on motion proceedings, the court dealt with the matter in terms of rule in Plascon-Evans v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 635-636 and Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backerein (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 924. The court thus considered that a final order may only be granted if the facts averred on the applicant’s affidavit have been admitted by the respondent together with the facts alleged by the respondent. Further, where the facts averred by the respondent make out a defence, the applicant will not succeed even if she denies such defence in reply.

[13]   The court a quo considered that as there was a dispute of fact and oral evidence was not led by the Appellant, the court was bound to accept the version of the First Respondent unless the version of the First Respondent was far-fetched or untenable. The court a quo accepted that the version of the First Respondent was neither far-fetched nor untenable. The court a quo considered that the failure to lead oral evidence was fatal to the Appellant’s case as it led to the court having to accept the First Respondent’s version that she has a right to occupy the property for life. Therefore, the Appellant could not lawfully terminate the First Respondent’s right of residence in terms of section 8 of ESTA. The court held that the Appellant did not prove the lawful termination of the right of residence; hence the court could not make an order for the eviction of the First Respondent in terms of section 9(2) of ESTA. It thus became irrelevant to consider whether it was just and equitable to grant such an order in terms of section 11(2) and (3). The application was therefore dismissed with costs.

GROUNDS OF APPEAL

[14]   The Appellant appealed the court a quo’s decision raising thirty-four grounds of appeal. I summarise below only the grounds which counsel pursued in the argument. However, it must be noted that all grounds are based on or related to the right of habitatio, which the First Respondent alleges she has, and her rights flowing therefrom.  It is alleged the court a quo erred on the facts and conclusions of law. It is averred that the court a quo erred in deciding that the entire case could be decided based on the alleged dispute of fact created by the contents of paragraph 26 of the opposing affidavit wherein the First Respondent stated:

“I confirm that the Applicant gave me consent to reside on the farm, and she expressly said to me that I could reside on the farm for the rest of my life, free of rent, but paying for electricity which I utilized”.

[15]   The issues related to the right of habitatio are that the right was not registered against the property. The title deed precluded the running of a business. This right was not valid against third parties. The personal right could be terminated if the requirements of ESTA were met. The requirements of just and equitable were relevant and not applied in the matter. The right of habitatio was never canvassed in correspondence whilst the terms of the oral lease agreement were set out in a letter dated 15 April 2019 and were not disputed by the First Respondent’s attorneys. Thus the existence of an oral lease agreement was not disputed. The court a quo erred in treating the rental amount as money for amenities. There is no assertion of a life right inconsistent with the undisputed terms of a lease agreement. The life right was not mentioned to the Probation Officer. The first respondent has a history of non-payment of rental. The court a quo erred in failing to consider the purpose of ESTA to provide for eviction of an occupier provided formalities were followed. The court a quo accepted that there was compliance with section 8 of ESTA.

[16]   Of the various grounds of appeal raised, that pertaining to the dispute of fact concerning the life right to reside or habitation is in my view pertinent and dispositive of this appeal. The issue for determination is whether the court a quo erred in dismissing the application for an eviction in terms of ESTA without considering oral evidence where the parties identified a factual dispute, and the court agreed that there was a factual dispute. 

[17]  Mr Nowitz for the Appellant conceded that the Appellant foresaw that there would be a dispute concerning the First Respondent’s life right to reside/habitation. He however averred that there was no genuine dispute of fact on this aspect given that there was simply a bald unsubstantiated allegation of a life right on the part of the First Respondent. The court a quo erred in finding this not to have been the case and the appeal should accordingly be upheld. If we were to find that there was indeed a dispute of fact, in that event, he submitted that the matter be remitted to the court a quo for the hearing of oral evidence in terms of Rule 55(1)(k) of the Magistrates Court[3] on the disputed fact concerning the life right.

[18]   Mr Grobbelaar, appearing for the First Respondent, submitted that the matter was argued from the outset on the basisthat there was a dispute of fact. The Appellant referred to the presence of the dispute of fact in her founding affidavit.[4] Furthermore, the Probation Officer interviewed both the Appellant and the First Respondent.[5] He reported that the First Respondent’s version of her occupation of the premises[6] is based on their friendship. He also reported on the Appellant’s version of the occupation[7]. He also records in paragraph 3.6 that the R2000 is in dispute as the appellant stated it was for rent and the first respondent stated it was for electricity. Mr Grobbelaar submitted further that the First Respondent asserted an usus habitatio, and it was necessary for the court a quo to have heard evidence regarding this life right and what it entailed. He referred to the case of Clara Phillips v Willem Grobler, Johan Venter N.O. & Helderberg Municipality (A291/17) an unreported decision of the High Court of South Africa, Western Cape Division. He argued that in that matter, a dispute also arose with regard to a right to life. The Court said:

“The disputes of fact referred to oral evidence for determination was primarily about whether knowledge of this “life-right” by the first respondent was acquired before or after the auction was held and also whether this knowledge was acquired before or after registration of transfer into the name of the first respondent.”

[19]   Mr Grobbelaar submitted that the court a quo correctly dismissed the application regard being had to Rule 55(1)(k) of the Magistrates Courts Rules. He argued that where there is a dispute of fact, and the applicant has not called for a hearing of oral evidence, a final order will only be granted on application if the facts as stated by the respondent together with the facts alleged by the applicant that are admitted by the respondent justify such an order. This followed the principle in Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957(4) SA 234 (C) at 235. The rule did not provide for a referral to evidence. Similarly, Mr Grobbelaar submitted that the same applied in this matter.

[20]  On an examination of the facts as it stands on the papers, it is clear that there is a real dispute, albeit curtly stated, as to whether the First Respondent’s consent to reside on the farm stems from a life right to reside thereon. This is a dispute which cannot be resolved without referral to oral evidence. Such a course would be best calculated to ensure that justice is done. See Lohan Civils (Pty) Ltd v Tokologo Local Municipality [2020] ZAFSHC 20 at paragraphs 11 to 14 . See also Phiillips v Grobler and Others [2020] 1 All SA 253 (WCC) pertaining to evictions and the servitude of habitatio. The court a quo should accordingly have referred the disputed fact concerning the life right to oral evidence as indeed it was entitled to in terms of Magistrates Court Rule 55(1)(k), which states as follows:

“(i)  Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and expeditious decision.

(ii)  The court in particular, but without affecting the generality of subparagraph(i) may direct that oral evidence be heard on specific issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for that person or any other person to be subpoenaed to appear and be examined or cross examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definitions of issues, or otherwise”.

A commentary on the above rule in Jones & Buckle[8] acknowledges an  allowance for a referral to oral evidence where the circumstances require it. See also the discussion of the rule in Moosa Bros and Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91A, which eschews a restrictive interpretation of Rule 6(5)(g) of the Supreme Court Rules,[9] allowing a court to determine each matter on the facts of each case.

[21]   I accordingly intend remitting the matter to the court a quo for the hearing of oral evidence on the specific disputed issue pertaining to the First Respondent’s alleged life right and the nature thereof.

 COSTS

[22]   In keeping with the practice of this Court not to award costs except in exceptional circumstances, of which I find there to be none in this matter, I make no order as to costs.

ORDER

[23]   For the reasons above I order as follows:

1.The matter is remitted to the Magistrates Court Simonstown for the hearing of oral evidence on the following disputed fact:

1.1  Did the First Respondent have a life right to reside on the farm and if so what was the nature of the said right?

2. There is no order as to costs.

                                                                                                     Mia AJ

                                                                                                     Acting Judge

                                                                                                     Land Claims Court

I agree.

                                                                                                     Meer AJP

                                                                                                    Acting Judge President

                                                                                                     Land Claims Court

Appearances:

For the Appellants:              Adv M Nowitz

Instructed by                        Janice Fleischer Attorneys

                                                  janice@janicefleischer.co.za        

For the Respondents:         Adv AE Grobbelaar

Instructed by                       SAP Dreyer Attorneys

                                                 sadreyer@mweb.co.za

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