---

NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 2534/2009

In the matter between:

WINTERTIDE TRADING 89 CC …..............................................................................APPLICANT

and

CH THOMPSON …...........................................................................................1^ST RESPONDENT

SS MULINDWA …............................................................................................2^ND RESPONDENT

SK JAYALATH …............................................................................................3^RD RESPONDENT

P FERNANDEZ …............................................................................................4^TH RESPONDENT

JL MOTSHEGWE …........................................................................................5^TH RESPONDENT

NE MBEDZI …..................................................................................................6^TH RESPONDENT

K TSHENKENG …...........................................................................................7^TH RESPONDENT

NN DIBAKOANE …..........................................................................................8^TH RESPONDENT

OP PHUDUKUDU …........................................................................................9^TH RESPONDENT

MV MOKATE …..............................................................................................10^TH RESPONDENT

MTA SHABELE …..........................................................................................11^TH RESPONDENT

T MWANNASWANI …....................................................................................12^TH RESPONDENT

W MATLABA ….............................................................................................13^TH RESPONDENT

MG TLADI …..................................................................................................14^TH RESPONDENT

NM MTJALI …................................................................................................15^TH RESPONDENT

GH GALENG …..............................................................................................16^TH RESPONDENT

T SEKUDU ….................................................................................................17^TH RESPONDENT

JK MOLWANA …...........................................................................................18^TH RESPONDENT

M MOREBODI …............................................................................................19^TH RESPONDENT

T MONGALE …..............................................................................................20^TH RESPONDENT

S HANCOCK …..............................................................................................21^ST RESPONDENT

TP MOLELE …...............................................................................................22^ND RESPONDENT

GM MASITENYALE …...................................................................................23^RD RESPONDENT

EM KGATSHE …............................................................................................24^TH RESPONDENT

THE FURTHER UNLAWFULL OCCUPANTS OF ERF 82

UNIT3, MMABATHO

DATE OF HEARING : 29 APRIL 2010

DATE OF JUDGMENT : 20 MAY 2010

FOR THE APPLICANT : ADV M HITGE

FOR THE RESPONDENT : ADV I OSCHMAN

JUDGMENT

LANDMAN J

[1] Wintertide Trading CC, the applicant, is the owner of erf 824, Unit 3, Mmabatho, known as Tlotli Flats. The respondents are in possession of various flats in the building. The applicant seeks to evict them.

The facts

[2] The property in question consists of a total of 38 flats of which two are bachelor flats, 20 are two bedroom flats and 16 thereof are three bedroom flats. This application is directed at the occupants of 24 of the flats situated in the building.

[3] The property was previous owned by the North West Housing Corporation (“the NWHC”), a statutory and independent body corporate established in terms of the North West Housing Corporation Act 24 of 1982.

[4] The property was initially sold at a public auction during December 2006 to one Isaac Makwela for of R7 million.

[5] Isaac Makwela did not provide the required security. The property was subsequently sold by private treaty to the applicant on 31 August 2007 for R9 000 000,00. This price was nearly R6 000 000,00 in excess of its non-sectionalised value and nearly R2 000 000,00 in excess of its sectionalised value.

[6] The property was registered in the name of the applicant on 20 October 2008. The NWHC informed the applicant that prior to the sale of the property it had written lease agreements with some of the respondents. The respondents, however, allege that they all had written lease agreements with the NWHC. The respondents contend that the terms of the lease were standard and included the following:

6.1 The duration of a lease agreement did not exceed one year.

6.2 The tenants (occupiers) choose their domicilium citandi et executandi at the specific flat so occupied.

6.3 No variation or amendment of the lease agreement shall have any force or effect unless reduced to writing and signed by both the NWHC and the tenant.

[7] No new lease agreements have been entered into by the NWHC since the beginning of 2007. All the written lease agreements had expired, at the latest, by the end of 2007. Neither the applicant nor the NWHC entered into any new lease agreements with the respondents after the termination of the fixed period. A tacit month to month lease came into being.

[8] The respondents refuse to pay rental to the applicant.

[9] All occupants of the property were invited to attend a meeting on 6 November 2007, convened in terms of section 10 of the Sectional Titles Act 95 of 1986, to inform them of the applicant’s intention to register the flats as a sectional title scheme. The applicant invited the occupants attending the meeting to purchase the flats at the following selling prices:

Bachelor flats: R275 000,00;

Two bedroom flats: R495 000,00; and

Three bedroom flats: R545 000,00.

[10] The attendance at the meeting was poor. The deponent to the founding affidavit, Mr Botha, was threatened with physical violence. The occupants of flats 7, 17 and 33 purchased the sectional title units on offer and are not parties in this matter.

[11] The applicant bears a heavy financial burden. It receives no rental from the respondents. It is unable to market the remaining sectional title units because it is obliged to guarantee vacant possession to prospective purchasers.

[12] The applicant caused letters of demand to be served on 25 February 2009 on the occupants of all 24 flats which are the subject matter of this application. Payment of the arrears rental was demanded within seven days and the occupants were informed that in the event of payment not being effected, the applicant would terminate the agreements with effect from 31 March 2009.

[13] Despite the demand, no rental payments were made. The occupants were notified in writing on 1 April 2009 that the lease agreements were cancelled. The occupants were given notice to vacate the respective flats on or before 7 April 2009. Despite the notices, the respondents and all persons residing in the flats in question remained in occupation of the premises and are refusing to vacate them.

[14] It is not disputed that the applicant has complied with all the procedural steps imposed upon it by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”). In principle, the applicant in this matter, on its facts, is entitled, subject to the discretion given to this Court by the PIE Act, to an order of eviction. See Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) at paragraph [19], where it is said:

“Another material consideration is that of the evidential onus. Provided the procedural requirements have been met, the owner is entitled to approach the Court on the basis of ownership and the Respondent’s unlawful occupation. Unless the occupier opposes and discloses circumstances relevant to the eviction order, the owner, in principle, will be entitled to an order for eviction. Relevant circumstances are nearly without fail facts within the exclusive knowledge of the occupier and it cannot be expected of an owner to negative in advance facts not known to him and not in issue between the parties.”

Application for a postponement

[15] The respondents (in the main application) delivered a notice of motion informing the applicant (in the main application) that on 27 May 2010 they would seek an order referring the main dispute to mediation and an order that the MEC and Mafikeng Local Authority facilitate mediation within 30 days of the date of the order and that the main application be stayed pending the outcome of mediation. The application was served on 28 April 2010.

[16] On 29 April 2010 Ms Oschman, who appeared for the respondents, sought a postponement of the main application until 27 May 2010. I declined to do so. It was then agreed that I would hear the merits of the interim application as none of the respondents wished to file papers. The Municipality merely expressed concern about the costs of mediation but otherwise agreed to abide by the order of this Court.

[17] Mediation is a process and it is difficult to predict the outcome of the mediation. In this case the main reason for mediation would be for the respondents to persuade the MEC to honour what they say is an undertaking that they could buy the flats. This would also require the consideration of financial assistance. Mediation would also address the respondents’ desire to purchase their respective flats from the applicant which they are “enthusiastic and willing” to purchase but cannot afford to do so.

[18] In the second place the mediation, according to the respondents, would be to find alternative accommodation for occupants that are “destitute” and not in a position to afford alternative accommodation elsewhere.

[19] The interim application was delivered a day before the main application was to be heard (a year after the main application was launched). If granted, an eviction order would be delayed by some three months, with no benefit to the applicant.

[20] The facts relating to the alleged destituteness of the respondents are not set out. This should have been done. It would have enabled this Court to consider the personal circumstances (means, age, state of health, marital and other status) of the respondents and their dependants. In fact these circumstances should have been set out in the opposing affidavit in the main application. But it appears that the respondents deliberately declined to do so. Instead the respondents complain that the applicant has not dealt with their circumstances. Therefore, it was submitted, this Court could not issue an eviction order as it would not have sufficient material upon which to exercise a discretion.

[21] The respondents have not played open cards with the court. The purpose of the PIE Act is to protect the vulnerable from the contingencies of eviction as directed by the Constitution. But the PIE Act enjoins some co-operation from unlawful occupiers of property both as regards the question whether the decision to evict them should be made and, if so, what may be done to mitigate its effects. Mediation at this stage of the proceedings and against the background of the many attempts, which I will detail, to solve the problem is unlikely to be successful. The interim application is an undisguised attempt by the respondents to secure a rent free tenure for at least a further three months. In any event mediation, in the circumstances of this case, is not warranted in so far as its purpose is to facilitate an examination of the personal circumstances of the respondents. The respondents are represented and it would have been an easy task to place their circumstances on record.

[22] There is no suggestion on the papers that the MEC or the Municipality were at any time requested to mediate the dispute. It is a prerequisite of our legal system that litigation should be avoided. This means, inter alia, that extra-judicial steps should be taken before a party resorts to litigation. At the very least the respondents should have approached the MEC and the Municipality to facilitate mediation. This was not done.

[23] Ms Oschman very helpfully, identified the defences upon which the respondents rely. They are:

(a) The respondents have an oral agreement with NWHC, which gives them an option to buy the flats and it is agreed that they may occupy the flats until they are in a position to effect the option.

(b) The applicant was obliged to comply with section 10 of the Sectional Titles Act.

(c) The respondents paid for services that they have enjoyed and that they have a retention right on the property for maintenance that they have effected.

(d) The applicant has failed to show the relevant circumstances of the occupiers to this Court. Therefore this Court is not in a position to decide whether it is just and equitable in the circumstances to grant an order for their eviction.

(e) Whether rental was paid.

(f) Whether the respondents are all cited in this application.

(a) Oral option

[24] The respondents allege that they have or had an oral option agreement with NWHC in terms of which they were to purchase the flats at purchase price of between R40 000,00 and R50 000,00 each and, by agreement, they are allowed to remain in the flats until they are in a position to “effect the option agreements”.

[25] Even assuming that the respondents’ version is correct, it does not assist them in so far as they may rely upon it as a defence to this application. In the first place, the only legal right, which may arise, is a personal one and may only be enforced as regard the NWHC. Secondly, both an option to purchase land or a right of pre-emption of land must be in writing and must be accepted in writing. See Brand v Spies 1960 (4) SA 14 (E); Hartswater Boerdery (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T); and Hirschowitz v Moolman 1985 (3) SA 739 (A). Even a pactum de contrahendo to alienate land must be in writing. See Hirschowits v Moolman (supra) at 766 – 767.

[26] Erf 824, Unit 3, Mmabatho and the improvements thereon (“Tlotli flats”) is “land” as defined in section 1 of the Alienation of Land Act 68 of 1981. Section 2(1) of the Alienation of Land Act of 1981 reads as follows:

“No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a Deed of Alienation signed by the parties thereto or their agents on their written authority.”

[27] The oral option has created no enforceable rights and does not preclude this Court from granting an eviction order. An oral agreement, linked to the oral option that the respondents may remain in occupation of their flats pending the exercise of their oral options is likewise not a defence.

(b) The Sectional Titles Act

[28] Ms Oschman put the case for the respondents in the following way:

(a) The applicant’s founding affidavit shows that the applicant intended to register the property as a sectional title scheme and to sell the individual units instead of leasing them.

(b) According to the applicant, the respondents were invited to attend a meeting on 6 November 2007 to be informed of this decision.

(c) The applicant has not provided this Court with the minutes of the meeting that was held. An attendance register has been annexed to the papers.

(d) Section 10 of the Sectional Titles Act 95 of 1986 (the STA) states that:

“10(1) A developer shall subject to subsection (5), not offer for sale or sell any unit in that building which is occupied by a lessee who was entitled to be notified in terms section 4(3)(a)(9), to any person other than such lessee, unless the developer has by letter either personally or registered post, offered the unit for sale to the lessee and the lessee has refused the offer within a period of 90 days.

10(2) If a lessee refuses an offer referred to in subsection (1) within the application period mentioned therein, or has at the expiration of such applicable period not accepted the offer, the developer shall not, within a period of 180 days from the date on which the lessee has refused the offer, or on which such applicable period has expired, as the case may be, offer for sale or sell the relevant unit to any person other than the lessee concerned at a price lower than the price at which it was offered for sale in terms of subsection (1) to the lessee, unless the developer has again offered the unit at that lower price for sale to the lessee and he has refused the offer within a period of 60 days from the date thereof, or on the expiration of that period not accepted the offer.”

(e) Ms Oschman conceded that the applicant complied with section 4(3)(a)(i) of the STA in holding the meeting. The respondents confirm, in their opposing affidavit, that the purpose of the meeting was to inform the residents of the applicant’s intention to evict them. In the applicant’s replying affidavit, it alleges that it indeed complied with section 10 of the STA.

[29] Ms Oschman submits that:

(a) The applicant does not attach a copy of the minutes of the meeting held;

(b) No proof is provided in that section 10(1) of the STA was complied with, i.e. that a letter was delivered personally or sent by registered post to the occupants, giving them the option to purchase units;

(c) No letter is annexed to the applicant’s papers, which shows that an occupier refused such an offer;

(d) In paragraph 9.11 of the applicant’s founding affidavit, the applicant cites Mr Mokate as the 10^th respondent, but in paragraph 72.4 of its replying affidavit it avers that the occupant of flat 17 is the owner of such flat. The eviction application against him seems to be irregular; and

(e) In paragraph 9.26 of the founding affidavit, the applicant states to this Court that the rest of the occupants of the block are unknown. Contrary thereto, the applicant states in paragraph 71.4 that the occupants of flats 7 and 33 are registered owners of the mentioned units.

[30] It is not clear to me whether the respondents’ case is:

(a) That the registration of the property as a sectional title scheme is invalid on account of a failure to issue notices to lessees or that the meeting held on 6 November 2009 was defective; or

(b) That the applicant has made an offer to them in terms of section 10 of the STA and that the applicant is attempting to evict them within the statutory period (180 days) of grace which commences on the date that the applicant offered the units for sale in writing to each lessee. I might add there is no suggestion that the applicant has offered to sell flats to third parties

[31] The difficulty which I have, as Mr Hitge appreciates, is that the respondents have not dealt with this defence in their opposing affidavit. The most that is known is that the applicant held a meeting contemplated by section 4(3) of the STA, that an offer to sell the units was made and accepted by some lessees. The applicant does not rely on the STA for a cause of action. It is the respondents who seek to rely on its non-compliance by the applicant as a defence.

[32] However:

(a) if a scheme was not registered, then section 7 does not apply.

(b) the respondents complain that the applicant has not shown what each respondent owes, but they do not say that they have paid the rent; or

(c) if the scheme is valid and a written offer was made to them, there is no evidence when the offer was made. Moreover, it has not been shown that the proposed eviction breaches the period of grace which only applies if the lessee complies with the terms of the lease, i.e. pays the rent. The respondents have not paid their rent for a considerable period.

[33] In the result, I find that the STA does not bar an eviction order.

(c) Lien

[34] The respondents have not shown what improvements, if any, they have effected. I am therefore not placed in a position to decide whether the requirements for a lien have been met. This defence cannot be upheld.

(d) The relevant circumstances of the respondents

[35] I have dealt with this aspect when I dismissed the application for a postponement. But I will again revert to this aspect later in this judgment.

(e) Respondents in arrears with rental?

[36] Ms Oschman points out that the applicant has not attached invoices for rent relating to the respondent’s respective flats. This is indeed so but the applicant does not only rely on the non-payment of rental to found its cause of action. It relies upon its right to terminate the leases on one month’s notice. The payment of rent, as I have indicated earlier in this judgment, relates to a possible defence which the respondents may raise. It was incumbent upon the respondents to show that they have complied fully with the terms of their leases. They have not done so.

(f) Non-joinder of unlawful occupants

[37] Ms Oschman submitted that the applicant on its own version in paragraphs 9.26, 31 and 32 of the founding affidavit has been unable to establish the true identities of the occupants of all the units. There is no need for the applicant to join all the unlawful occupants in one action. In any event none of the respondents are affected by this lapse if indeed there has been one.

Discretion to evict

[38] Section 4(8) of the PIE Act provides that if all the requirements of the sections have been complied with and no valid defence has been raised by the unlawful occupier, this Court must grant an order for the eviction of the unlawful occupier and determine a just and equitable date on which the unlawful occupier must vacate the land.

[39] In considering the discretion vested in this Court to evict or not to evict the respondents, I am mindful of:

(a) The relevant provisions in the Constitution of the Republic of South Africa of 1996 which are:

“25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

“26(1) No one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

(b) The objectives of the PIE Act.

[40] I also note that:

(a) The discretion is one in a wide sense. See Ndlovu v Ngcobo; Bekker and Another v Jika (supra) on page 124 at paragraph [18].

(b) The relevant circumstances I am enjoined to take into account in deciding whether it is just and equitable to grant an eviction order generally fall within the exclusive knowledge of the occupier and it cannot be expected of an owner to negative in advance facts unknown to it and not in issue between the parties. See Ndlovu v Ngcobo; Bekker and Another v Jika (supra) on page 124 at paragraph [19].

(c) It was incumbent upon the respondents to place before me, the circumstances relevant to the exercise of the discretion with which this Court is vested in terms of section 4(6) of the PIE Act to decide whether it is “just and equitable” that they be evicted.

(d) All the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women, must be considered.

(e) Any opinion as to what is just and equitable, in the given circumstances, must take account of the rights of the owner of land, who is entitled to equal consideration of these rights, in terms of the common law and section 25 of the Constitution. See ABSA Bank Limited v Murray and Another 2004 (2) SA 15 (C) at page 28 paragraphs [33]–[ 35].

[41] The issue whether alternative land can reasonably be made available by the Municipality and other Organ of State or landowner for the relocation of the unlawful occupiers does not arise in this case. Section 4(7) of the PIE Act applies where the unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated. This period of the occupation is calculated from the date that the occupation becomes unlawful. See Ndlovu v Ngcobo (supra) at 123, paragraph [17] and Jackpersad NO and Others v Mitha and Others 2008 (4) SA 522 (D) at 525. The respondents’ occupation became unlawful on 7 April 2009. The application for eviction was filed on 1 September 2009 and notice of opposition was delivered on 17 September 2009 on behalf of all the respondents. The present proceedings were initiated within six months from the time that the occupation became unlawful. Section 4(7) is not applicable.

Exercising the discretion

[42] In exercising the discretion conferred upon me, I take into account:

(a) That the respondents, on their own version, have refused to pay any rental to the applicant and have withheld rental even after the case in the Magistrate’s Court, which held that the respondents were obliged to pay rental to the applicant.

(b) The rentals arrears on 31 July 2009 amount to R173 900,00.

(c) The applicant, who has purchased the flats for a substantial amount, derives no income from the property, but is required to service a loan. This has placed an untenable financial burden on the applicant.

(d) The concern of the Municipality/MEC that at least 60 days should be given the respondents should an eviction order be granted.

(e) Attempts to solve or alleviate the position in which the respondents find themselves which include:

• attempts to settle the dispute between the respondents and the NWHC;

• the exercise conducted by a committee of the North West Legislature concerning the sale of the flats belong to the NWHC (although not specifically the block in question);

• the involvement of the Rental Housing Board;

• the institution of proceedings in the Magistrate’s Court for the District of Moretele for eviction, which was unsuccessful;

• the application by the Joint Tenants Association in this Court;

• attempts to settle the situation involving a political party.

(f) None of the respondents have made a bona fide offer to purchase the properties despite their allegations that they are interested to do so.

(g) The respondents have refused to submit details of their specific circumstances. The applicant avers that the occupants of the flats are financially affluent people, who were at all times in a position to have paid their rental or to have purchased the sectional title units, which they elected not to do, and decided instead to continue with their firmly established practice of non-payment for their accommodation. The respondents have contented themselves with a bare denial.

(h) The applicant alleges that alternative accommodation is available. The respondents give no details of their income or whether they have tried and failed to secure alternative accommodation.

Determining the date of eviction

[43] I now turn to determine a just and equitable date for the eviction of the respondents and the date on which that eviction may be carried out. In doing so I have regard to:

(a) The failure of the respondents to assist in placing relevant considerations before me. It limits the extent to which a tailor made date can be established;

(b) The period of unlawful occupation and note the period of unlawful occupation;

(c) Despite the irrelevance of the issue of alternative accommodation, the applicant has in any event furnished evidence of the availability of property in the open market, either for sale or for rent, in the range between R1 500,00 and R4 000,00 per month. Even so I am concerned about the issue of alternative accommodation. The best I can do is to fix the date being 60 days from the date of this order which I believe is a just and equitable one.

[44] The following order is made:

(1) The respondents and all persons or entities occupying by, through or under them, are ordered to vacate the following property within 60 days from the date of this order:

Erf 824, Unit 3, Mmabatho, North West, situated in the area of jurisdiction of the Mafikeng Local Municipality and better known as Tlotli Flats (the property).

(2) In the event of any of the respondents failing or refusing to vacate the property within 14 days of the service of the order of this Court, the Sheriff of this Court or his appointed deputy is authorised and directed to remove from the property all persons occupying the property and to take such steps as may be necessary to prevent the re-occupation of the buildings situated on the property.

(3) The respondents pay the costs of this application.

(4) In the event of the Sheriff of this Court or his deputy being required to carry out the order contained in paragraph 2, the respondents concerned shall be liable for the costs of such removal.

___________________

A.A. LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : VAN ROOYEN TLHAPI & WESSELS

FOR THE RESPONDENT : SMIT & STANTON

---