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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 13790 /2018

In the matter between:

WESTCOAST MIRACLES (PTY) LTD	Applicant
v
BEREDINA KEARNS & 36 OTHERS	First Respondent

 

Coram: Dlodlo J

Date of Hearing: 16 April 2019

Date of Judgment: 13 May 2019

 

JUDGMENT

 

DLODLO, J

[1] West Coast Miracles (Pty) Ltd (the applicant) is a company with limited liability incorporated as such in terms of the laws of the Republic. Its registered address is within the Western Cape. It is the applicant in these proceedings. The applicant brought an application for the eviction of the occupiers of a property described as erven 35 and 40, St Helena Bay, Saldanha Municipality, Division of Malmesbury, Western Cape Province (“the property”).

[2] The occupiers are cited by name as First to Thirty Fifth respondents. There is a Thirty Sixth respondent cited as ‘all those residing with or under the First to Thirty Fifth respondent on the property’. The relevant municipality is cited as the Thirty Seventh respondent. It shall be referred to in this judgment as ‘the municipality’.

[3] Stephan Brothers (Pty) Ltd (Stephan Brothers) owned the premises known as erf 35 and erf 40, in the township of St Helena Bay, in the Saldanha Bay Municipality, Division of Malmesbury, Western Cape Province. Stephan Brothers offered members of the St Helena Bay community who worked in their fish factory free accommodation as a benefit and as part of such members’ terms of service.

[4] Consequently, the majority of St Helena Bay’s community used to work in the fish factory owned by Stephan Brothers. The fish factory closed down in 1967. As a consequence, Stephan brothers concluded rental agreements with the persons who previously received accommodation due to their employment at the factory.

[5] The terms of these lease agreements and addendums thereto were, inter alia:

(a) the lease could be cancelled by either party on one calender month’s written notice;

(b) the agreed rental would escalate in the amount of 10% annually;

(c) rental was payable monthly in advance on the first day of each and every month;

(d) in the event the tenant failed to pay the rental timeously, the landlord would be entitled to cancel the lease agreement without any notice and to retake possession of the premises;

(e) the tenant would be responsible for payment of water and refuse charges; and

(f) the tenant would not be entitled to sublet the leased property or any portion thereof or otherwise transfer his or her rights under the lease.

[6] The applicant in these proceedings purchased the premises from Stephan Brothers during March 2006. Transfer of the property into the name of the applicant took place on 13 February 2008. The applicant thus stepped into the shoes of Stephan Brothers as both owner of the property and lessor of the various premises on the property.

[7] The founding papers state that the applicant plans to develop the premises. It is averred that the development envisaged will contribute to job creation in the community. It will also contribute to the growth in the tourism industry. As mentioned above, St Helena Bay essentially focused on the fishing industry. Historically, overwhelmingly people resident in the town were dependent on the sea for their livelihood. The fishing industry though is nowhere near as strong as it once was. Thus the ability of the residents of the town to support themselves through the fishing industry diminished to the point where it has become only a very minor part of the local economy. Unfortunately, to a large degree, people resident in the town are unemployed. The local economy is now increasingly based on surrounding agriculture but to a larger degree the tourism industry.

[8] The applicant purchased the property with the intention to develop it. The applicant is no stranger to developments. It is reportedly busy developing the West Coast. It has applied to the Department of Environmental Affairs and Development Planning and has been granted the necessary environmental authorisation. The intended development will, reportedly, not only renew and uplift St Helena Bay but will also lead to many jobs being created.

[9] The applicant contends that it held meetings with some of the respondents and other role players (including the councillor of the Saldanha Bay Municipality and Chairman of the local housing committee). In these meetings several aspects in respect of the payment of rental and alternative accommodation were discussed. Importantly, on 30 May 2007, the applicant caused letter(s) to be sent to the respondents indicating that all lease agreements had been ceased by Stephan Brothers to the applicant. The letter(s) additionally, drew the respondents’ attention to the fact that they were obliged from thereon to pay the monthly rental to the applicant. The applicant alleges that notwithstanding meeting on 10 February 2007, the respondents uniformly failed and/or refused to pay the monthly rental to the applicant. The applicant subsequently cancelled various lease agreements. However, the respondents failed to vacate upon so demanded to. The applicant first approached the Magistrate’s Court for eviction and only thereafter this Court. The application before the magistrate was dismissed on the basis that the municipality was not joined as a party in the proceedings. However, the magistrate afforded the applicant a chance to lodge a fresh application after consultation with the relevant municipality.

 

ISSUES RAISED IN ANSWERING PAPERS FILED BY THE MUNICIPALITY

[10] The municipality owes a constitutional duty to provide emergency housing to persons in need. It is noted that the municipality is hamstrung by scarce resources and an overwhelming and debilitating backlog in the provision of housing opportunities to those in need. The municipality disputes that there is a constitutional duty on its part to provide emergency housing to the occupiers in this case, regard being had to the facts and circumstances attendant to it.

[11] According to the answering papers filed by the municipality, at present the municipality provides about 180 to 200 housing opportunities to more than 9000 applicants who qualify and meet the following criteria:

(a) applicants are to be 35 years of age and older;

(b) their combined monthly income may not exceed R3 500-00;

(c) those that previously received a subsidy or who have fixed property registered in their names are ineligible to receive a housing opportunity; and

(d) applicants are required to be registered on the waiting list for more than 3 years.

[12] What must be determined is the reasonableness of the municipality’s value judgment made in this case, regard being had to its alleged scarce resources, the exigencies of the great demand placed on the public purse for housing opportunities. Perhaps, a mention must be made that in assessing the reasonableness of this value judgment it is not enough to merely recite the municipality’s constitutional duty to provide emergency housing to the needy and to those facing homelessness. A context and content must be foundational, otherwise the mere recital of the municipality’s constitutional duty lacks grounding and is left hanging in the air. See Syntheta (Pty) Ltd (formerly Delta & Scientific (Pty) Ltd v Janssen Pharmaceutica NV and Another 1999 (1) SA 85 (SCA) at 91C.

 

DISCUSSION

[13] It is trite that the grant or otherwise of an application for eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) is predicated on a threefold enquiry namely:

(a) it is determined whether in fact the occupier has any extant right in law to occupy the property, i.e is the occupier an unlawful occupier or not. If they   have such a right then the matter is finalised and the application must be refused;

(b) it is determined whether or not it is just and equitable that the occupier indeed be evicted; and

(c) in the event it is held that it is just and equitable that the occupier be evicted, then the terms and conditions of such eviction fall to be determined.

Resnick v Government of the Republic of South Africa and Another 2014 (2) SA 337 (WCC) at 339B referred to a twofold enquiry. I consider though, that the threefold approach is more in accordance with the Act which calls upon the courts to actively consider the terms of such eviction order as it might be inclined to grant. It must be borne in mind that Section 4 (6) of the PIE Act reads:

“If an unlawful occupier has occupied the land in question for less 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 relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.”

It must be noted as well that in terms of Section 4 (8) of the PIE Act if the court is satisfied that all the requirements have been complied with and that no valid defence exists, the court must grant an order for eviction 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 occupier has not vacated.

[14] Mr Wilkin placed reliance on Graham v Ridley 1931 TPD 476 and Chetty v Naidoo 1974 (3) SA 13 (A) as to the onus to be applied in matters such as the instant. My attention was particularly drawn to Chetty v Naidoo at 20 C-D where the following was stated by the then Appellate Division:

“It is inherent in the nature of ownership that possession of the res should normally be with the owner and it follows that no other person may withhold it from the owner unless he has vested in some right enforceable against the owner (eg a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res – the onus being on the defendant to allege and establish any right to continue to hold against the owner”.

The abovementioned authorities predate the procedural amendments introduced by PIE and the Constitution. However, it does appear that the onus remains unchanged. In Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) at 528, the Supreme Court of Appeal held thus: 

“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.”

See also Ridgway v Janse Van Rensburg 2002 (4) SA 186 (C) at 191A-192D where this court observed as follows:

“I accept, on the authority of Ellis, that it is not necessary for an Applicant in these circumstances to place more before the court by way of evidence than the facts that he or she is the owner of the property and that the Respondent is in unlawful occupation thereof. It is then for the Respondent to place ‘relevant circumstances’ before the court to show why the ordinary result should not follow, namely that an owner is entitled to vindicate his or her property.”

The above decisions are subject to some qualification as far as the question of onus. This is said in the context of the requirements of justice and equity wherein questions of onus play a rather limited role.

[15] One must hasten to add though that barring a common law right to occupy the property (this must be alleged and proved by the occupier) he or she would be an unlawful occupier and that would mean that the second stage of enquiry would eventuate. In Section 1 of the PIE Act, an occupier is defined as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”.

[16] If all three stages of enquiry have been met, the applicant becomes entitled to the eviction order. See City of Johannesburg Metro Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 (4) SA 337 (SCA) where the Supreme Court of Appeal held as follows at paragraph [74]:

“It is not in dispute that Blue Moonlight has complied with the requirements of PIE and that it is entitled to an eviction order. All that remains is for us to determine the timing of the eviction.”

This contention is explicitly iterated in Modderklip Boerdery (Pty) Ltd v Modder East Squatters 2001 (4) SA 385 WLD where it was stated at 394I – 395C that:

“The Constitution therefore gives the Respondents the right to have access to adequate housing. It is perfectly clear that even the State is only required to endeavour ‘within its available resources, to achieve the progressive realisation of this right’. In no legislation of which I am aware or that has been brought to my attention has the State transferred this obligation to the individual land owner. The ‘right’ of access to adequate housing is not one enforceable at common law or in terms of the Constitution against an individual landowner. The ‘right’ of access to adequate housing is not one enforceable at common law or in terms of the Constitution against an individual land owner. The Act in question (PIE) does not make such rights expressly enforceable against the owner (and it is hardly conceivable that it would seek to do so) but merely seeks to regulate the rights of the owner to eject the unlawful occupier in the manner already indicated. The Act does not authorise the informal expropriation by unlawful invaders of land from its owner. If the Act purported to do so it would plainly be unconstitutional,….”

[17] Principally, the duty to provide housing is not one to be borne by private citizens. Indeed it is trite that it was never intended by the drafters of the Constitution that an individual’s right to housing was one to be shouldered by private entities. In Theewaterskloof Holdings (Edms) BPK. Glaser Afdeling v Jacobs en Andere 2002 (3) SA 401 (LCC) at 411E, the Land Claims Court held as follows:

“Wat die posisie met betrekking tot alternatiewe akkomodasie ookal mag wees, dit kan nie van die applikant verwag word om die respondent onbepaald op sy plaas te huisves nie. Die reg op behuising vervat in art 26 van die Konstitusie is nie gemeenregtelik of ingevolge die Konstitusie teen indiwiduele grondeienaars afdwingbaar nie.” Loosely translated hereunder.

(“Whatever the position as regards alternative accommodation might be, it cannot be expected of the landowner to accommodate the occupiers indefinitely. The right to housing contained in section 26 of the Constitution is neither in common law nor in accordance with the Constitution, enforceable against individual landowners.”)

The Supreme Court of Appeal in Modderfontein Squatters, Greater Benoni CC  v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources Centre, Amici Curiae); President of the RSA v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA) (2004) (8) BCLR 821; [2004] 3 ALL SA 169 at 57 C – E held as follows:

“Section 9(1) provides that everyone is eq ual before the law and has the right to equal protection and benefit of the law, while s 9(2) states that equality includes the full and equal enjoyment of all rights and freedoms. As appears from para 1.6.4 of the order, De Villiers J found that Modderklip was not treated equally because, as an individual, it has to bear the heavy burden, which rests on the State, to provide land to some 40 000 people. That this finding is correct cannot be doubted. Marais J, in the eviction case, said that the ‘right’ of access to adequate housing is not one enforceable at common law or in terms of the Constitution against an individual land owner and in no legislation has the State transferred this obligation to such owners.”

[18] One must, however, bear in mind the qualification mentioned by the Supreme Court of Appeal in the City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at 308 B-C, namely:

“The position is otherwise when the party seeking the eviction is a private person or entity bearing no constitutional obligation to provide housing. The Constitutional Court has said that private entities are not obliged to provide free housing for other members of the community indefinitely, but their rights of occupation may be restricted, and they can be expected to submit to some delay in exercising, or some suspension of, their right to possession of their property in order to accommodate the immediate needs of the occupiers.”

[19] Justice and Equity of course play a role in all eviction matters. The availability or otherwise of alternative accommodation is also a factor that this court is obligated to take into consideration.  In PE Municipality v Peoples Dialogue on Land & Shelter 2001 (4) SA 759 (E) (Full bench), the Court made the following telling observation:

“It is indeed so that, if regard is had to the abovementioned excerpt from the judgment and the conditional suspension of the eviction order, the learned Judge seemed to have concluded that an eviction order cannot be granted unless there is alternative land and/or accommodation available. I am in respectful disagreement with this conclusion. Section 6(3) enjoins a court of law, when considering whether it is just and equitable to grant an eviction order, to have regard to the factors mentioned therein. The availability of suitable alternative accommodation or land is but one of the factors which has to be considered by the court. To interpret this section in such a manner that this one factor is elevated to a pre-condition for the granting of an eviction order would have far-reaching and chaotic consequences which could never have been contemplated by the Legislature. If this was in fact so, it would be open to any person to occupy land unlawfully in order to force an organ of State to provide him with suitable alternative land or accommodation. Similarly, in my view, within the context of an application brought in terms of the provisions of s 4, the availability of land for the relocation of an unlawful occupier is but one of the factors that must be taken into account by the court in determining whether it is just and equitable to grant an eviction order. (See also the unreported decision of Chetty J in Port Elizabeth Municipality  v Various Occupiers of Bethelsdorp, case NO 2762/99.)”

The above received a stamp of approval when the Supreme Court of Appeal dealt with Baartman v PE Municipality 2004 (1) SA 560 (SCA). At paragraph [18] the Supreme Court of Appeal guidingly remarked as follows:

“[18] In my view, although it [availability of alternative land] is not a precondition for the granting of an eviction order but rather one of the factors to be considered by a court, as was said in Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and Others 2001 (4) SA 759 (E)  ([2001] 1 B All SA 381) at 769 (SA) and 387 (B All SA), the availability of suitable alternative land becomes the important factor in the instant case. This is because of the length of time the appellants have resided on the property and, perhaps more importantly, because the eviction order is not sought by the owners of the property but by an organ of State. The State is obliged, in terms of s 26 of the Constitution, to take legislative and other measures, within its available resources, to achieve the progressive realisation of the right which everyone has, namely to have access to adequate housing.”

[20] According to the answering papers filed by the occupiers the eviction will lead to homelessness. This is a large community that has been well established over a period of many years. The respondents have organised themselves for purposes of dealing with this eminent eviction. They formed what they call the “Windhoek Gemeenskap”. This “gemeenskap” reportedly consists of 126 persons including 43 women and 37 children. The Windhoek Gemeenskap consists of more than 10 pensioners and 9 persons with disabilities and illnesses. Regard being had to the provisions of Section 26 of the Constitution evicting persons who are unemployed and have no place to go to, is extremely difficult a decision to make. Gone are the days when persons were willy nilly evicted from what they regard as their home, in order to throw them on the public road. Hence when eviction becomes inevitable, it is not only the occupiers who are directly involved but also the relevant municipality.

[21] The occupiers are entitled to place reliance on special circumstances. The court is duty bound to give special regard to the rights of elderly, children and disabled persons involved. The answering papers also reveal there are pensioners as old as 77 years. These people have resided on these properties since they were children. Their parents and grandparents were reportedly resident in these homes. The answering papers make it plain that many relatives are buried on the various properties in the last 100 years. I note that there has been meetings between the applicant on one hand and the respondents including the municipality on the other in an endeavor to resolve the impulse. For instance annexure “WCM9” to the founding papers records the following:

“The developer informed the meeting that everybody will be given at least a year’s notice and that every case will be looked at individually before a decision is made as to how the tenants can be accommodated. Options include new houses donated to tenants in certain instances, financial assistance in others.”

Ordinarily eviction is much harmful and detrimental to the well-being of the most vulnerable members of society, women and children. I am told (this is not disputed) that a number of homes intended in the affected area are headed by women.

[22] In Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC), the Constitutional Court held that the pertinent question was whether the measures taken by the State to realise the right afforded by Section 26 were reasonable. What the Constitutional Court stated was that the evidence in a particular case may show that there is a minimum core of a particular service that should be taken into account in determining whether measures adopted by the State were reasonable. What the Constitutional Court did was to emphasise that the socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core service be provided to them. A minimum core service was thus not treated as a self-standing right conferred on everyone under Section 26 (1) of the Constitution.

[23] In the matter of The Minister of Health and Others v Treatment Action Campaign and Others [2002] ZACC 15; 2002 (5) SA 721 (CC), the Constitutional Court in interpreting Section 26 of the Constitution stated that all that was possible and all that could be expected of the State was to act reasonably in providing access to the socio-economic rights identified in Section 26 on a progressive basis.

[24] It is trite that no court can competently grant an eviction order unless it has considered all relevant circumstances. Section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Section 5 of the PIE Act provides that a land owner may institute urgent proceedings for the eviction of an unlawful occupier of land pending the outcome of proceedings for a final order and that such order can only be granted if the court is satisfied that (a) a real and imminent danger exists of substantial damage to any property if the unlawful occupier is not evicted from the land forthwith; (b) the likely hardship to be suffered by the land owner if an eviction order is not granted exceeds the likely hardship to the unlawful occupiers if the order is granted; (c) no other effective remedy is available to the applicant.

[25] In Groengrass Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants 2002 (1) SA 125 (TPD), the court held, inter alia, that an imminent illegal ‘land-grab’ could be a basis for urgency and that it was in the public interest that the rule of law be upheld and that it was those circumstances which constituted a real and imminent danger of substantial injury or damage to any person or property as required in Section 5 (1) (a) of PIE. Of course this is not the case in this matter.

[26] The fundamental difficulties in this case is that the matter is not a sudden occurrence. The occupation is almost more than a century old. This was lawful occupation until fairly recently when the new owner, the applicant cancelled the leases in terms of which the occupiers took occupation. Perhaps the original owner, the Stephan Brothers realised that they would not easily extricate themselves from the agreements and promises they had towards the respondents. Instead of solving the problem concerning the occupation of the property before selling the property, they sold and transferred the leases they had with the respondents to the applicant. It is apparent from the founding and answering papers that when discussions took place between the applicant and the municipality, the plight of the occupiers was not taken seriously. I have referred above to respondents aged 77 years. They grew up as children in this community. The current problem could not have arisen if talks between the applicant and the municipality were conducted seriously and the plight of the respondents addressed properly. The municipality seemingly placed reliance on the fact that its resources are scarce and are meant for a different category of persons and not those who were paying rental in terms of leases. The municipality has an obligation in terms of the Constitution to look after the interests of all people within its sphere of governance.

[27] The court has an obligation in matters like the present to also pay deserved regard to the broader considerations of fairness and other constitutionally enshrined values in order to arrive at a just and equitable outcome. The court is duty bound to probe and investigate all surrounding circumstances. The nature of the enquiry is such that this court needed to be informed of all the relevant circumstances in order to be satisfied that it is indeed just and equitable to evict (if so), when and under what conditions. Without such information, it remain impossible for the court to even consider granting an eviction order. The two requirements mentioned above which must be put forth and on which the court must be satisfied before the grant of an eviction order, are inextricable, interlinked and essential. It is strange and often beyond one’s comprehension that as soon as the bitterly cold weather of the Western Cape starts, courts become inundated with applications for eviction. I am not persuaded that the applicant made out a case deserving the granting of the relief sought. It is recommended that the applicant, the respondents and the municipality must engage in meaningful discussion in order to resolve this matter.

 

ORDER

[28] I make the following order:

(a) The application to evict the respondents is dismissed.

(b) There is no order as to costs.

 

 

 

____________________________

D V DLODLO

Judge of the High Court

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