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Meyer NO v Sifile (A355/11) [2011] ZAWCHC 528 (24 November 2011)

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J U D G M E N T

LE GRANGE, J:

In this matter the Appellant brought an application in the Court a quo for the eviction of the Respondent in terms of Section 4(1) of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, 19 of 1998, (the "PIE Act").

Today the Respondent is absent and various attempts were made to secure the presence of the Respondent. It appears that his attorneys of record withdrew from record. This Court then instructed the Justice Legal Centre to be of assistance and this morning Mr Goosen from the Justice Centre was present and indicated on record what attempts were made to get the Respondent here at Court.

Adv Filand for the Appellant also indicated that his attorneys tried to inform the Respondent to be here present, but the Respondent indicated that the respondent has got no interest in the matter anymore.

In the interest of justice, this Court will now proceed.

The magistrate, having heard argument, dismissed the application on the basis that the Appellant lacked the necessary loco standi. The Appellant now appeals against that decision.

The common cause facts underpinning the application between the parties can briefly be summarised as follows:

The Appellant was appointed by the Master of this Court on 22 June 2010, as the executor of the estate of the late Katriena Pietersen ("the deceased"), who died on 30 October 2007.

In terms of a written notice issued on 28 September 2010 by the Stellenbosch Municipality, Erf 1188, Klapmuts, also known as 18 Remmit Street, Klapmuts, Stellenbosch ("the Property") was allocated to the deceased in the form of an approved subsidy and, at the time of the application was in a process of being transferred into her name. This property is also the same house that the deceased lawfully occupied and resided in before her untimely death.

The Appellant, as executor of the deceased's estate, decided to launch an application on 25 November 2010, in terms of the PIE Act, to evict the Respondent and all those occupying the property under his name.

In the finding affidavit of the Appellant, the following relevant averments are recorded:

"3. Die boedel van me Pietersen is aangestel as persoon in beheer van die perseel gelee te Erf 1188 Klapmuts, ook bekend as Remmitstraat 18, Klapmuts, Stellenbosch (die perseel). Vind asseblief hierby aangeheg 'n bewys van die voorgemelde gemerk Aanhangsel (CSM2).

4. Respondente se woonregte was by wyse van skrywe gedateer 28 Oktober 2010 van CSM Prokureurs beeindig. Vind asseblief hierby aangeheg 'n afskrif van gemelde skrywe as gemerk Aanhangsels (CSM3)

5. Nieteenstaande bogemelde weier en of versuim Respondente om perseel te ontruim en bewoon die Respondente die perseel onwettig.

6. Respondent se onregmatige optrede verhoed dat wyle me Pietersen se erfgenaam besit van die eiendom kan neem.

7. Ons versoek dus die Agbare Hof om 'n bevel toe te staan soos versoek ingevolge meegaande aansoek."

The letter from the Municipality (marked CSM2) contains the following relevant information:

"Boedel wyle K Pietersen, erf 1188, Klapmuts. Graag erken ons kantoor ontvangs van u skrywe gedateer 2 Augustus 2010. Ons stel u ook in kennis dat die eiendom wel aan me K Pieterse geallokeer is deur middel van 'n goedgekeurde subsidie en dat hierdie kantoor besig is met oordragproses."

The relevant notice is dated 28 September 2010 that the Appellant relied upon to terminate the Respondent's occupational rights to the property was framed as follows:

"Dit is ons instruksies dat u tans die perseel gelee te Remmitstraat 18, Klapmuts, Stellenbosch, die perseel bewoon. Ons beeindig hiermee u woonreg ten opsigte van die perseel en versoek dat u asook alle ander persone wat onder u die perseel bewoon dit voor of op 15 Oktober 2010 moet verlaat. Geliewe kennis te neem dat sou u versuim om gemelde perseel voor of op 15 Oktober 2010 te verlaat ons sonder enige verdere kennisgewing 'n uitsettingsaksie teen u sal loods welke regskostes aan u aanspreeklik gehou sal word."

The Respondent in his opposing affidavit does not dispute that he is residing at the property with his common law wife and five minor children. According to the Respondent, during 2005 he and his family reached an agreement with the late Ms Pietersen to stay with her. He had to pay an amount of R200.00 per month for rent. As a result of his big family, the deceased gave permission for them to erect a steel and wooden structure at the back of the property, which they subsequently did during 2006. The deceased then increased the rental amount to R300.00 per month, which amount they regularly paid directly to her. During 2007 the deceased fell ill and requested the Respondent and his family to move back into her house so that his common law wife could take care of her. On 30 October 2007, the deceased passed away and was buried soon thereafter.

According to the Respondent, he then contacted the Stellenbosch Municipality in order to enquire what was going to happen with the property as they were presently occupying it. An Officer at the subsidy office at the Stellenbosch Municipality informed him that he and his family could stay on as the property was not registered in the name of the deceased. Furthermore the same officer, whose details the Respondent did not have, informed the Respondent that the deceased was only allocated a subsidy and the house was not yet registered in her name. The Respondent is adamant that none of the deceased's family members came forward to make any claims regarding the said property and since 2007 he and his family had uninterrupted occupation of the said property.

The Respondent states that due to the conduct of the municipality, he gained the impression that he and his family could qualify for a subsidy for the house. It was therefore a total shock when he was informed by the Appellant that he had been appointed as executor of the estate of the deceased and that the Respondent and his family had to vacate the house.

At the hearing, the Respondent's attorney raised the point in limine regarding the Appellant's lack of locus standi. It was contended on behalf of the Respondent that the Appellant was not the owner of the property and that the property was never registered in the name of the Appellant. It follows therefore, so it was argued, that the Appellant lacked the requisite locus standi \o bring the application.

The magistrate in his judgment relied heavily on the dictum in Reddy v Decro Investments CC t/a Cars African and others 2004(1) SA 618 D + CLD to arrive at his finding that the Appellant failed to establish the requisite locus standi in the matter and accordingly dismissed the application without making any costs order.

It is trite law that an executor is not a mere procurator or agent for the heirs, but is legally vested with the administration of the estate. The executor is therefore the proper person to enforce rights of action and recover property which belongs or aught to belong to the estate. Moreover, an estate is an aggregate of assets and liabilities and a totality of the rights, obligations and powers of dealing therewith, vests in the executor so that he can alone deal with them.

In this regard see Botha NO v Deetlefs and Another 2008(3)

SA 419 (N) at 421 h-j:

"And a commentary of legal right as in other case law referred to therein."

In the present instance the provisions of Section 4 and 7 of the PIE Act are applicable. Sub-sections 4(1); 4(2); 4(8) and 4(9) reads as follows:

"Eviction of unlawful occupiers

(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1) the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

(7) 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.

(8) If the court is satisfied that all the requirement s 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, and determine - (a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and (b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a)

(9) In determining a just and equitable date contemplated in subsection (8), 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."

On a conspectus of all the facts in this instance, the magistrate clearly erred and adopted a wrong approach in dismissing the Appellant's application on the basis of lack of locus standi. The reliance by the magistrate on the dictum in the Reddy matter to arrive at the result was contrived. In the Reddy matter it was held that in an ordinary lease a lessee of premises not yet in possession thereof who having no real right to such property does not have locus standi to bring an application for the ejection of occupiers. The definition of an "owner or person in charge of land" as stipulated in the PIE Act did not arise in the Reddy matter.

On the undisputed facts, it is common cause that the deceased occupied the property until her death. Furthermore, the letter from the Stellenbosch Municipality indicates that the property was already allocated to the deceased by way of an approved subsidy and that the Municipality was already in the process of registering the transfer of property to the deceased.

The deceased, so it appears from the municipality letter, was as a result of the allocation by the municipality in lawful possession and in charge of the property. Moreover, if one has regard to the definition in terms of the Act as to the person in charge, it means the, the definition is as follows:

"The person in charge means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question."

It is patently clear that the executor in this instance had legal authority to institute these proceedings. The reliance by the Magistrate on the Reddy judgment was therefore misplaced. The Reddy judgment does not find application on the facts of this matter.

Furthermore the magistrate's view that the purpose of the PIE Act is to protect only a certain type of occupier and that the Act does not extend to executors, is clearly wrong. The estate of a deceased person is an aggregate of assets and liabilities and a totality of the rights, obligations and the powers of dealing therewith, vests in the executor.

The Appellant in casu is the duly appointed executor of the deceased estate. In the instant case, the registration of the transfer of the property is in process and should the registration proceed, the deceased's estate will have an undisputed right, title and interest in respect of the property.

Accordingly, the Appellant does have the necessary locus standi to bring an application of this nature as he alone can deal with the property. As such the magistrate's refusal of the application on these grounds is incorrect.

There are, however, other concerns in this matter. On the papers filed of record it is unclear whether the municipality was given proper notice as required by Section 4(2) of the PIE Act. In this regard see Cape Killarney Property Investments (Ptv) Ltd v Mahamba 2001(4) SA 1222 (SCA) at 1227e.

Moreover, the allegations by the Respondent that permission was granted by him to an officer of the municipality to occupy the property was not fully investigated.

Furthermore, it is questionable whether the time period of a day given in the Appellant's notice to the Respondent to terminate his occupation and to vacate the property was equitable and reasonable at all.

It is, therefore, necessary that the matter be properly investigated by the magistrate when the merits in the Court a quo are considered. It follows that the appeal in this matter should succeed.

In the result the following orders are made:

(a) The appeal succeeds. The Court a quo's finding that

"Die Applikant se aansoek word van die hand gewys"

is set aside and substituted by the following:

"Die Respondent se aansoek in limine dat die Applikant geen locus standi het nie, word van die hand gewys."

(b) There is no order as to costs in this matter.

LE GRANGE, J

I agree.

VAN STADEN, AJ