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Van der Westhuizen v Nxiweni and Others (21145/17) [2018] ZAGPJHC 97 (8 May 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
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Case number: 21145/17
Not reportable
Not of interest to other judges
Revised.
8/5/2018
In the matter between:
GERHARD VAN DER WESTHUIZENApplicant
and
PINKY NXIWENIFirst Respondent
ALL THE UNLAWFULL OCCUPIERS OF SECTIONAL
TITLE UNIT […], WITH SCHEME NAME […]
BETTER KOWN AS […] A.
NEW REDRUTH, ALBERTONSecond Respondent
CITY OF EKURHULENI METROPOLITAN
MUNICIPALITYThird Respondent
JUDGMENT
Molahlehi, J
Introduction
[1]This an application in terms of which the applicant seeks an order evicting the respondent, Ms Nxiweni and those occupying the propertywith her at […] A. New Redruth, Alberton, Johannesburg (the property). The respondents are allegedly occupying theproperty without the consent of the applicant.
Background facts
[2]It is common cause that initially the occupation of the property by the first respondent was with the prior consent of the applicantin that the parties concluded a lease agreement which commenced on 1 October 2015.
[3]In terms of the lease agreement the first respondent had to pay the sum of R6 000.00 deposit and after that pay the sum of R6 600.00per month as the advanced rental. Clause 11 of the lease agreement made the first respondent liable for municipal charges of theproperty.
[4]Failure to make payment of any amount required in terms of the lease agreement would result in a breach of the agreement. In thatevent the first respondent would be given twenty days by the applicant to remedy such a violation, and after that, the applicantwould be entitled to terminate the agreement.
[5]The lease agreement further provided that upon cancellation of the lease as a result of the breach, the first respondent and anyother person occupying the premises through her would be required to immediately vacate the premises and allow the applicant totake unhindered occupation as provided for in clause 24.2 of the lease agreement.
[6]The applicant states in his founding affidavit that the first respondent had breached the lease agreement by not paying the requiredrent, utility charges and deposit which is outstanding in the sum of R131 453.59.
[7]On 8 January 2016, the first respondent through her erstwhile attorney was placed on terms to remedy the breach by paying the outstandingrental in the amount of R7 365.21. The respondent having allegedly failed to remedy the breach was then issued with the letterof termination of the lease agreement on 19 January 2016. The respondent has refused to vacate the property despite the cancellationof the lease agreement and the demand that she leaves the property.
[8]The application is opposed by the first respondent who represented herself during the hearing before me. She has raised severalpoints in her defence against the application to evict her from the property she raised the following points.
Non-joinder
[9]The respondent contends that the applicant ought to have joined in these proceedings the Estate Agent because she assisted in thesigning of the lease agreement.
[10]The test for non- joinder is set out by the Supreme Court of Appeal in Absa Bank Ltd v Naude NO,[1] in the following terms:
“[10] The test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matterof the litigation which may prejudice the party that has not been joined. In Gordon v Department of Health, Kwazulu-Natal it washeld that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had notbeen joined, then those third parties have a legal interest in the matter and must be joined.” (Footnotes omitted).
[11]In Judicial Service Commission and Another v Cape Bar Council and another[2], the Court held that:
“[12] It has by now become settled law that the joinder of a party is only required as a matter of necessity – as opposed toa matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by thejudgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinderplea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thusbeen held to be a limited one.”
[12]Applying the above test, in the present matter, I am of the view that the point raised by the respondent bears no merit. There areno facts supporting the contention that it was necessary to join the Estate Agent as the party in these proceedings. Except forthe fact that it (the estate agent) assisted in the signing of the lease agreement, there is nothing to show that it has directand substantial interest in the matter.
Non-compliance with PIE
[13]The respondent contended that the applicant was not entitled to the relief sought because he did not comply with the provisionsof the Prevention of Illegal and Unlawful Occupation of Land Eviction Act (PIE)[3], as concerning the following:
“The first point in this respect is that the notice in terms of section 4(2) of the PIE Act does not state that the applicant hasa title and that he is the owner of the property in question. This point is, in my view, unsustainable because the applicant hasattached to his papers the Windeed search which shows him as the owner of the property.”
[14]The respondent has also not disputed that the applicant is in control of the property as provided for in s 4 (1) of PIE Act.
Ownership of the property
[15]The respondent disputes ownership of the property by the applicant. The applicant has alleged in his founding affidavit that heis the owner of the property and in support thereof attached the Windeed report downloaded from the web site of the Deeds Office.In my view this is sufficient to prove ownership of the property by the applicant.[4] However, even if that was not sufficient proof of ownership, the applicant still qualifies for the relief on the bases of the provisions of s 4. (1) of the PIE Act which provides:
“4 (1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedingsby an owner or person in charge of the land for the eviction of an unlawful occupier.
[16]The second point is that the applicant has failed to provide a municipality report indicating that he intends evicting her withthe recommendation by the municipality on whether it can provide alternative accommodation to her and child of school going. Thispoint is dealt with later in the judgment under the general principles governing eviction. It suffices, however, to say that itdoes not bear any merit because of the failure by the respondent in her papers to deal with her circumstances that would justifyintervention by the municipality.
[17]The same applies to the third point which is that the applicant has failed to indicate whether the property in question is a primaryresidence of the applicant and whether the household is headed by a woman, disabled person and whether the rights of children orelderly people will be affected by the eviction and whether the municipality or any other organ of state has provided alternativeaccommodation to relocate the applicant.
[18]The first respondent has also submitted that she is a mother of school going children who attend school in the vicinity of the propertywhich is also a primary residence. According to her, this is a factor which the applicant ought to have taken into account beforeseeking her eviction.
[19]The first respondent further contends that the applicant has failed to honour its obligation in as far as the provisions of thelease agreement are concerned. In this regard, she states that upon entering the property after the conclusion of the lease agreementshe found the property not repainted and in a near dilapidated state. She addressed a letter to the applicant’s estate agentabout the matter and was promised that it would be attended to, but nothing was done in that regard. She had to repair the geyserand the broken taps at her own cost. She sent the bill of the costs related to the repairs to the estate agent who failed to settleit.
[20]It seems from the above that the respondent is insisting on staying on the property despite the cancellation of the lease on theground that she had repaired the damaged facilities and made some improvements to it.
[21]Clause 16.2.11 of the lease agreement expressly states that the tenant is not allowed to make any improvement on the property withoutthe consent of the landlord. There is no evidence that the respondent complied with this requirement in making the alleged repairsand improvements. It follows therefore that this complaint cannot be a sustainable defence.
[22]She also complains that the applicant cancelled the lease agreement on the basis of a 30 days’ notice, rather than two months’notice as provided for in clause 23.1 of the lease agreement. Clause 23.1 of the lease agreement reads as follows:
“23.1 The Landlord may cancel this Lease on 2 (Two) month’s written notice on the following conditions:
23.1.1 The Landlord intends to move into the Premises; or
23.1.2 The Landlord intends to sell the Premises.”
[23]It is clear from the proper reading of the above that the respondent’s contention that she was given notice of less than twomonths as required by the lease agreement is unsustainable because the cancellation of the lease was not based on any of the twoconditions. The cancellation on the applicant’s papers was based on clause 23.2 of the lease agreement which reads as follows:
23.2 The Landlord may cancel this Lease on 7 (Seven) days’ notice to the Tenant in the following circumstances:
23.2.1…
23.2.2…
23.2.3 The Tenant remains in continuous breach of the Lease for a period of 3 (Three] months and fails to remedy such breach, despitebeing notified of such breach, in writing, on 3 (Three) months’ and fails to remedy such breach, despite being notified ofsuch breach, in writing, on 3 (Three) months occasions by the Landlord.
24.1 In the event of the Tenant not paying the Rental or any other monies due in terms of this Lease on the date upon which suchmonies are due and payable, or committing any other breach in terms of this Lease then:
2.4.1.1 Should the visions of section 14 of the CPA apply to this Lease, and the Tenant remains in breach of any of the terms ofthis Lease for a period of 20 [Twenty] Business days after dispatch of a written notice, calling upon the tenant to remedy sucha breach; or
2.4.1.2 Should Lease continue on a Month- to -Month basis in accordance with the provisions of clause 6.1 and the provisions ofsection 14 of the CPA. Accordingly, not apply to this lease and the tenant remains in breach of any of the terms of this leasefor a period of 7 (seven) calendar days after dispatch of the written notice, calling upon the tenant to remedy such a breach:the landlord shall be entitled, in his sole discretion and without prejudice to any other rights that he may have in law to giveher claim specific performance in terms of this lease for to cancel the lease forth with and without further notice claim all arrearrentals and or any other damages from the Tenant.'
[24]The respondent further states that during June 2016 while attending her mother's funeral in the Eastern Cape, the applicant brokedown her door, removed it and reduced the electricity supply to cater for only house lights. The applicant refused to replace thedoor he broke, resulting in the first respondent having to replace it at her own costs. After that, a meeting was convened betweenthe applicant and first respondent’s erstwhile attorneys.
[25]At that meeting, the arrears were reconciled to be at R 40 000. 00. The respondent disputes the amount of R131 453 99 and statesthat the applicant continued to charge her for electricity she did not consume.
[26]In the replying affidavit, the applicant denied all the allegations made by the first respondent, in particular in relation to therepair of the geyser and the breaking down of the door by the estate agent. He contended further that, even on the first respondent'sown version the amount of R40 000.00 was due and owing by the first respondent.
[27]As concerning arrears in terms of payment of the rental, the first respondent did not dispute that the last payment she made wasin May 2016. She in this regard undertook to pay the sum of R40 000,00 which she claims is the correct amount due and owing tothe applicant. The first respondent undertook to make an arrangement to have the amount paid by way of a debit order but has todate failed to do so. The first respondent has continued to occupy the property without title to it and continues to so withoutmaking any payment.
[28]The complaint about the failure by the applicant to repair or paint the property is no justification for withholding payment ofthe rental. The first respondent conceded in this regard that there is no clause in the lease agreement that allowed her to withholdpayment of the rental.
[29]The contention that the eviction is non-compliant with the law because there was no report from the municipality regarding alternativeaccommodation has no merit. All that the respondent needed to do was to make the municipality aware about the eviction. It wasthen for the first respondent to set out in her papers her personal circumstances which would indicate whether she would be renderedhomeless as a result of the eviction.
Legal principles- eviction
[30]The procedure to follow in initiating the eviction process is set out in s 4 (2) of the PIE Act which provides:
“4 (2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve writtenand effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.”
[31]On the papers as they stand before me, there is no doubt that the applicant has complied with the procedural requirements of theAct.
[32]Turning to the substantive requirements for a lawful eviction the relevant subsections are; ss 4(6), (7), (8) and (9) of thePIE Act which provide:
“(6) 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 therelevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
(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 therelevant circumstances, including, except where the land sold in a sale of execution pursuant to a mortgage, where the land hasbeen made available or can reasonably be made available by a municipality or other Organ of State or another landowner for therelocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and householdsheaded by women.
(8) If the court is satisfied that all the requirements of this section had been complied with and that no valid defence has beenraised 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 contemplatedin paragraph (a).
(9) In determining a just and equitable date contemplated in sub-section (8), the court must have regard to all relevant factors,including the period the unlawful occupier and his or his family have resided on the land question.”
[33]The requisite approach to adopt when dealing with issues of eviction is summarised by Wallis JA in City of Johannesburg v ChangingTides 74 (Pty) Ltd and Others,[5] as follows:
“A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housingor achieve a gradual realisation of the right of access to housing in terms of s 26(1) of the Constitution, is faced with two separateinquiries. First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevantfactors. Under s 4(7) those factors include the availability of alternative land or accommodation. The weight to beattached to that factor must be assessed in the light of the property owner’s protected rights under s 25 of the Constitution,and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration. Oncethe court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an evictionorder, it is obliged to grant the order. Before doing so, however, it must consider what justice and equity demand in relationto the date of implementation of that order and it must consider what conditions must be attached to that order. In thatsecond inquiry, it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless therebyor need emergency assistance to relocate elsewhere. The order that he grants as a result of these two discreet inquiries isa single order. Accordingly, it cannot be granted until both inquiries have been undertaken and the conclusion reached thatthe grant of an eviction order, effective from a specified date, is just and equitable. Nor can the inquiry be concludeduntil the court is satisfied that it is in a position of all the information necessary to make both findings based on justice andequity.”
[34]There is nothing in the papers before this court indicating that the first respondent is an indigent and is unable to pay for alternativeaccommodation in the event that the applicant is granted the relief sought. Her case is not that her failure to pay the rentalis due to financial affordability but rather that she is refusing to pay because the applicant is alleged to have failed to repairthe damaged geyser and ensure that the property is in a good state of repairs.
[35]It is trite that in considering an application for the eviction of an occupier of property the court has the discretion to exercisebased on what is just and equitable in the circumstances. This principle is set out in Ndlovu v Ngcobo; Bekker and Another v Jika,[6] in the following terms:
“[18] The court, in determining whether or not to grant an order or in determining the date on which the property has to be vacated(s 4(8)), has to exercise a discretion based upon what is just and equitable. The discretion is one in the wide and not the narrowsense (cf Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (‘Perskor’) [1992] ZASCA 149; 1992 (4) SA 791 (A) 800, Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) 360G-362G). A court of first instance, consequently, does not have a free hand to do whatever it wishes to do and a court ofappeal is not hamstrung by the traditional grounds of whether the court exercised its discretion capriciously or upon a wrong principle,or that it did not bring its unbiased judgment to bear on the question, or that it acted without substantial reasons (Ex parteNeethling and Others 1951 (4) SA 331 (A) 335E, Administrators, Estate Richards v Nichol and Another[1998] ZASCA 82[1998] ZASCA 82; ; 1999 (1) SA 551 (SCA) 561C-F).”
[36]The enquiry to conduct to properly exercise the discretion judicially is set out in Dwele v Phalatse and Others,[7] as follows:
“20. Essentially there are two inquiries mandated by these sections. In terms of section 4(7) of the Pie Act, an eviction ordermay only be granted if it is just and equitable to do so, determined after the court has had regard to all the relevant circumstances,including the availability of land for the relocation of the occupiers and the rights and needs of the elderly, children, disabledpersons and households headed by women. If the requirements of s 4 are satisfied and no valid defence to an eviction orderhas been raised, a court ‘must’, in terms of s 4(8) grant an eviction order. When granting such an order, thecourt must, in terms of s 4(8)(a) of the PIE Act, determine a just and equitable date on which the unlawful occupier or occupiersmust vacate the premises (the next inquiry). The court is empowered in terms of s 4(12) to attach reasonable conditions toan eviction order. The date that it determines must be one that is just and equitable to all parties.” (Footnote omitted).
[37]In the circumstances I find that the respondent and those occupying the property with her are doing so without the consent of theapplicant and their occupation is accordingly unlawful. There is thus there is no reason in fairness or equity consideringthe facts of this matter why the relief sought by the applicant should not granted. In other words it is just and equitable toorder the eviction of the respondent and those occupying the property with her.
[38]And about the date of the implementation of the eviction order, I am of the view that it is just and equitable to afford the respondenttwenty-one days from the date that this order is served on her for her to vacate the property.
Order
[39]In the premises the following order is made:
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1.The First and Second Respondents, and all those that occupy the property by virtue of the occupation thereof by the FirstRespondent, are evicted from the following immovable property at […] A, NEW REDRUTH, ALBERTON, JOHANNESBURG as describedon Sectional Plan SS126/1988 on the Scheme known as […] in respect of the land and building and buildings situate at ERFNEW REDRUTH, […], GAUTENG PROVINCE, known as […] A., NEW REDRUTH, ALBERTON, JOHANNESBURG (the “Property”);
2.That the First and Second Respondents and all those that occupy the Property by virtue of their occupation thereof, are orderedto vacate the property within 21 (twenty-one) days from the date of service of this order;
3.Should the First and Second Respondents, and all those that occupy the Property by virtue of their occupation thereof, fail to vacatethe Property within 21 (twenty-one) days after receipt of this order, the eviction order may be carried out, in which event theSheriff of this Court is hereby authorized and directed to forthwith evict the First and Second Respondents and all those thatoccupy the Property by virtue of their occupation thereof, from the Property.
4.The Sheriff of this Court and his/her authorised deputy are hereby authorized to exercise any force necessary to execute and carryout the order granted in terms of prayer 3 above, for which purpose the Sheriff of the Court and/or his deputy may enlist the servicesof the South African Police Service to the effect above, should it so be necessary;
5.That the First Respondent be ordered to pay the cost of this Application on an attorney and client scale.
______________________
E Molahlehi
Judge of the High Court;
Johannesburg
Representation:
For the Applicants: Adv L Van Gass
Instructed by: Nelis Brits Attorneys
For the 1st Respondents: In person
Heard: 18 April 2018
Judgment delivered: 08 May 2018
[1](20264/2014) [2015] ZASCA 97 (1 June 2015).
[3]Act 19 of 1998
[4]Sibango and Sixteen Others v PPM Plumbing (Pty) and Another ...
http://www.saflii.org/za/cases/ZAGPPHC/2016/243.htmlApr 20, 2016.
[6]2004 (1) SA 114 (SCA) para 18.
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A lot has happened since I selected the Worst Springbok Side last week… It was featured as News24’s sport blog of the week. It received about 5500 hits and a few people responded by selecting teams of their own and nominating players they figured were worthy of selection. It also became the most viewed blog on News24. I seem to have angered the News24 atheist, Bible bashing community somehow. Don’t know why they started reading about sport, but anyway. Oh and Jorrie Muller’s mother called me, and asked us to please stop our kak. Quite a few of you remember Jorrie and wish you had forgotten about him. Lean years I tell you… If anyone has highlights of any of the matches he played in, get in contact. I wish I could see it. Something else that has been established is that no one outside of Pretoria likes Wynand Olivier. If anyone is worried that my new-found fame might go to my head, rest assured. I will not sell out!! The only changes are that it will from now on be called Vodacom Blog of Bam and that t-shirts, caps and other merchandise will be available starting next week. As Jay-Z (the rapper, not Jacob Zuma) said, “I’m not a businessman. I’m a business, man!” So without further a due, for the – wait for it – THOUSANDS of readers, here’s my take on the past weekend.
The Bulls ended their Super 14 on an upward curve by steaming over the Cheetahs 60-20. This was their fourth consecutive victory and puts a little bit of shine on their Super 14 campaign, but I think for the Bulls to get back to the level they were in the previous few years, they shouldn’t look at their last four performances. They seem to get back to their best , but they were way off the ball in the beginning of the comp.They mustn’t make the same mistake the English are making who figure that because they made the World Cup Final, everything is fine with their rugby. The Bulls struggled with the ELV’s and they are definitely a better team in old school rugby.I’m very glad Habana regained his try scoring form in time for the International season. And Pierre the Spear is back!!!
The Cheetahs ended their campaign in good old 13th place. Only way I can see them being competitive in the Super 14, is if a lot of money is invested in keeping their players in Bloem. Hopefully by Bill Gates. The only positive I can think of for them was the form of Meyer Bosman, Duane Vermeulen, and Jongi Nokwe, who really is as fast as, um, a cheetah. And how can anyone not mentionJuan Smith? He is an inspirational leader and hopefully the fact that he likes Bloemfontein’s nightlife, keeps a few other players in the Free State.
The Lions ended in last place this year. They have a very young team and should be better next year. But they need to be a lot better. On Saturday they kept the Stormers from scoring their fourth try and securing the bonus point which would have ensured that there were two SA teams in the semi’s. It’s true, if you can’t score 4 against the 14th placed team, then you don’t deserve a semi final spot. But what makes it so heart breaking for the Stormers is how they came back after losing their first three games. Still, this was only a year for building and setting up a good foundation. And they have done more than that. No one was expecting 5th place on the log. In the end it was fatigue that kept them out of the semi as all their previous weeks’ efforts caught up with them. So we will wait in anticipation for next year’s onslaught, when the Stormers will comfortably beat the Crusaders at Newlands and finish 2nd on the log. And of course 2009 will see the start of an unbeaten run of 5 years for the Stormers in the Super 14 under Rassie.
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Another bonus point for the Sharks saw them moving into 3rd place. I think the Sharks are in a better position to challenge for the final and the title than the Stormers so maybe it is better that they qualified. The Stormers were running out of steam and props towards the end of the competition to mount a realistic challenge for the title. It is ironic that the Sharks need to forget about their expansive approach that got them into the semi in order to win the semi. They should let the Tahs play their attacking brand of rugby. There is no need for bonus points and as we saw in the World Cup, when it comes to the knock out stages of a competition, it is defence that wins you games. So I think the Sharks have a very good chance of advancing to the Final and who knows… if the Saders continue their slump, we might even see the Sharks take the title in Durban.
I have no real issues with PdV’s training squad. After all, it is only a training squad. It’s not a shock that Dollie was chosen. It was reported in the media for weeks. And if he is a possible Springbok for the future, he should be brought into the team environment as soon as possible. He can only benefit from learning from the experienced players. My only slight query is Earl Rose. I don’t see him ever becoming a Springbok and there is more than enough cover at fullback for Montgomery in Jantjes, Steyn, Ludik and Pietersen. So unless PdV is planning on playing The Earl of Joburg in another position, (like what?) I can’t see any use for him in Somerset West. For the sake of ending on a positive note… Isn’t it good to see the likes of John Smit, Victor Matfield, Percy Montgomery and Butch James back in Green. Wales should be shitting themselves.