IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

And
STEKO DEVELOPMENT CC				Respondent

	
JUDGMENT

[1] This is an appeal from the magistrate of George who, after an application had been brought for the postponement of the proceedings before that Court, refursed it and proceeded to issue a writ of execution against the appellant.

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[2] The appellant is the owner of an immovable property situated in George known as erven 457 and 458 in the Thembatethu residential area in George.

[3] On my understanding of the papers, the properties have been developed and have been improved by the erection thereon of buildings, one a business which is being let out by the appellant and the other a residence consisting of five bedrooms. This residential property is being utilised predominantly as a "bed and breakfast" establishment.

[4] The appellant contracted a loan with Nedbank and offered the properties as security and accordingly a mortgage bond was registered over them in favour of Nedbank. The appellant fell into arrears and Nedbank during October 2003, issued a summons against the appellant in which it claimed an amount of R33 543,06. Judgment was duly obtained against the appellant during November 2003.

[10] The appeal before us is a sequel to the proceedings summarised above. The notice of appeal limits the grounds of appeal to two grounds; the first is that the appellant is not an unlawful occupier as defined in the PIE Act and it is alleged that the magistrate erred in that regard. The second ground is that the magistrate failed to have regard to the provisions of section 26(1) of the Constitution which provides that citizens have a right of access to adequate housing.

[12] It would appear that once the sate in execution had taken place and the properties were transferred into the name of the respondent, it superseded the appellant as the registered owner and therefore acquired the bundle of rights which go to make up ownership, one whereof is the use of the property. There is not even an iota of evidence on the papers before us that the appellant, after transfer had been effected, occupied the buildings on the properties pursuant to any rights procured from the respondent. As a matter of fact, the conduct of the respondent in having sought an earlier abortive eviction of the appellant, appears to militate against the existence of such a right.
[13] Accordingly, the conclusion appears to be inescapable that the appellant in fact is an unlawful occupier in the event of the provisions of the PIE Act finding application.

[14] The second ground, namely that the provisions of section 26 of the Constitution have somehow not been given effect to, in my view, does not have merit either.

[15] It must be at the outset be said that section 26 does not provide a right of ownership but merely a right to have access to housing. Not a specific house, but housing adequate for the needs of the person under consideration. One is driven to the inevitable conclusion that what the Legislature had in mind was to redress some of the inequities of the past which deprived people from procuring normal rights of occupation to property and to counter the indignity brought about thereby.

[19] To summarise, it would then appear that there is not any merit in the ground of appeal based thereon that the provisions of section 26 of the Constitution have been violated by the issuing by the magistrate of an order of eviction.

[22] It would appear in the exercise of our discretion, that despite the fact that the respondent has been successful in opposing this appeal, there are considerations which weigh in favour of deviating from the usual rule, which is that costs should follow the event, as regards the costs of the appeal. It would appear that the appellant, judged from the record, has made use of the services of a number of attorneys, and that her interests were not fully served by all of them — I am not saying everyone of them - and that, to a large extent, the dilemma in which she finds herself might have been caused by factors outside of her control.

[23] In the circumstances I accordingly feel that it would be just to make no order as regards the costs of this appeal, with the result that each of the parties would have to bear their own costs.