Dominican Sisters of the Congregation of St Catherine of Siena of King Williamstown v Nyamfu and Another (3936/09) [2010] ZAECGHC 35 (24 May 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: 3936/09

DATE HEARD: 29/04/10

DATE DELIVERED: 24/05/10

In the matter between

THE DOMINICAN SISTERS OF THE CONGREGATION OF Applicant

ST CATHERINE OF SIENA OF KING WILLIAMSTOWN

and

PATRICK NYAMFU 1st Respondent

EX-NATAL COAL AND GOLD MINE WORKERS 2nd Respondent

CONGRESS AND CO-OPERATIVE

JUDGMENT

ROBERSON J;-

[1] The applicant is a Public Benefit Organisation, registered as such in terms of the Income Tax Act 1962. The first respondent is the chairman of the second respondent. The applicant is the registered owner of the immovable property known as Erf 726 Braunschweig,

Division of King William’s Town (‘the property’). The applicant has applied, in terms of the Prevention of Illegal

Eviction and Unlawful Occupation Act 19 of 1998 (‘PIE’), for the eviction of the respondents and all persons claiming title through them, from the property.

Background

[2] During 2003 the applicant decided to sell the property. In 2004 the first respondent, acting on behalf of the second respondent, indicated in a letter to the applicant that the second respondent was interested in purchasing the property, in order to use it for the establishment of an HIV Aids centre, a hospice, and an education centre, and to perform outreach work in the community. In the letter the first respondent mentioned that the members of the co-operative were retrenched mineworkers who were mostly unemployed or employed part-time, and the co-operative had been established in order that they could become self-sufficient and not have to depend on charity.

[3] In August 2005 a sale agreement was concluded, in terms of which the second respondent purchased the property from the applicant for sum of R385 000.00. The first respondent represented the second respondent in concluding the agreement. The sale was subject to two suspensive conditions: the approval of a grant to the second respondent by the Land Redistribution for Agricultural Development

Program or any financial institution, in the sum of R385 000.00; and the approval of the sale by the Minister of Agriculture and Land Affairs. If the suspensive conditions were not fulfilled within 180 days of the signature date or such later date as might have been agreed, the agreement was of no further force or effect. An addendum to the agreement provided that 1 February 2006 was the date of occupation and the second respondent was to pay R500.00 per month as occupational rent. The respondents took occupation on 1 February 2006. The suspensive condition relating to the approval of a grant was never fulfilled and the sale agreement was therefore of no force and effect. The second respondent also failed to pay any occupational rent.

[4] The applicant allowed the respondents to remain in occupation, hoping that funds would be raised for the purchase price, and tried to assist the respondents in raising the purchase price. The applicant also assisted the respondents in setting up farming and agricultural projects on the property, in order to raise the purchase price. The proposed HIV Aids centre never materialised.

[5] By letter dated 15 July 2008, the applicant gave notice to the respondents to vacate the property by not later than 31 October 2008,

relying on the non-fulfilment of the suspensive condition. To date the respondents remain in occupation.

Issues

[6] The application was opposed on three grounds: lack of this court’s jurisdiction; waiver by the applicant of its rights in terms of the agreement, and estoppel; and insufficient information regarding alternative accommodation, to enable the court to determine whether or not it was just and equitable to evict the respondents.

Jurisdiction

[7] The applicant averred that the respondents were unlawful occupiers in terms of PIE. The definition of ‘unlawful occupier’ in PIE is as follows:

“ ‘unlawful occupier’ means 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, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996 (Act 31 of 1996).”

[8] The first respondent, who deposed to the answering affidavit, averred that the respondents are occupiers of the property in terms of the Extension of Security of Tenure Act (‘ESTA’). Section 17 of ESTA provides that proceedings in terms of that Act may be brought in the Magistrate’s Court or the Land Claims Court, and in the High Court with the consent of the parties. There is no such consent in this application.

[9] Two issues arose out of this alleged lack of jurisdiction: whether or not the property is land to which ESTA applies and whether or not the respondents are occupiers as defined in ESTA.

[10] Section 2 of ESTA provides as follows:

“2 Application and implementation of Act

(1) Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including -

(a) any land within such a township which has been designated for agricultural purposes in terms of any law; and

(b) any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.

(2) Land in issue in any civil proceedings in terms of this Act shall be presumed to fall within the scope of the Act unless the contrary is proved.

(3) …………..”

The applicant therefore bore the onus to prove that ESTA did not apply to the land.

[11] I do not intend spending much time on this issue. Suffice it to say that submissions by both parties amounted to no more than guesswork

about the nature of the land, and I am not satisfied that there was sufficient information to enable me to decide whether or not the land falls outside the scope of ESTA. I must therefore proceed on that basis that ESTA applies to the land.

[12] That is not the end of the matter however. ESTA protects occupiers of land from unfair evictions and I must be further satisfied that the respondents are occupiers as defined in ESTA. The definition is as follows:

“’occupier’ means a person residing on land which belongs to another person, and who has or [sic] on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding –

…

[Para. (a) substituted by s. 20 (b) of Act 61 of 1998 and deleted

by s.6 (a) of Act 51 of 2001.]

(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and

(c) a person who has an income in excess of the prescribed amount*;

[13] By virtue of the addendum to the sale agreement, in terms of which it was agreed that the respondents could take occupation of the

property, the respondents did have the consent of the applicant to occupy the property. The applicant submitted however that the

respondents are excluded as occupiers because they use the property for commercial purposes. The respondents denied such use, saying that they farm the property for their subsistence and do not employ anyone to work on the property.

[14] According to the applicant, the respondents sold vegetables grown on the property and chickens raised on the property, to the local community, and operate or operated a tuck shop on the property. Annexed to the founding affidavit was a minute of a meeting between the first respondent and two representatives of the applicant during June 2008. This minute reflected that the respondents were given a chicken shed and six hundred chickens by the Department of Agriculture. The chickens were sold in Alice, Stutterheim, and other places. It was suggested to the first respondent that he buy chickens in smaller numbers every second week so that he would always have chickens to sell to the local community. The minute also reflected that the Department of Agriculture had given seeds and fertiliser to the respondents.

[15] The first respondent did not dispute the contents of this minute, which in my view clearly refers to commercial activities. He dealt with the respondents’ use of the property in his affidavit in support of an application by the respondents, heard earlier this year, for condonation of the late delivery of the answering affidavit and other relief. In that affidavit he stated that:

‘I have planted vegetables on a small scale farming (sic). I also raise chickens on the land for subsistence farming. The Applicant has knowledge of the farming operation on the land. I work on the land with assistance of my extended family and some members of the Second Respondent. Neither I nor Second Respondent have employed anyone to work on the farm. We are poor people and cannot afford to employ anyone.’

In my view this is a bald statement of the respondents’ activities on the property. The first respondent did not say who the members of his extended family are, nor did he say who the other members of the second respondent are. There were no confirmatory affidavits from other members of the second respondent. In its founding affidavit the applicant said that the only member of the second respondent occupying the property was the first respondent. This was not disputed by the first respondent. The respondents’ averments quoted above appear to be merely a repeat of the relevant part of the definition of ‘occupier’, without proper substance being given in support. In any event, even on his own version, the first respondent admitted small scale farming activities.

[16] I therefore conclude that the respondents fall within the exclusion of the definition of ‘occupier’ because they use the property for commercial purposes. The provisions of PIE therefore apply to the application.

Waiver and estoppel

[17] The first respondent averred that the applicant had acted in a manner inconsistent with an intention to enforce its rights in terms of the sale agreement. He based this averment on the fact that the applicant only brought this application during November 2009; that the applicant raised funds for the respondents to remain on the property; and that the applicant loaned the respondents R5 000.00 knowing that if no grant was approved, the respondents would not be able to repay the loan. He said the respondents were under the impression that the applicant had written off the debt and had no intention to evict the respondents until they had found alternative accommodation.

[18] In Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA), Nienaber JA said at paragraph [15] and [16], under the sub-heading ‘Inferred waiver’:

‘[15] Waiver is first and foremost a matter of intention. Whether it is the waiver of a right or a remedy, a privilege or power, an interest or benefit, and whether in unilateral or bilateral form, the starting point invariably is the

will if the party said to have waived it.’

[16] The test to determine intention to waive has been said to be objective. That means, first, that intention to waive, like

intention generally, is adjudged by its outward manifestations; secondly, that mental reservations, not communicated, are of no legal consequence; and, thirdly, that the outward manifestations of intention are adjudged form the perspective of the other party concerned, that is to say, from the perspective of the latter’s notional alter ego, the reasonable person standing in his shoes.’ (Authorities omitted.)

[19] Mention has already been made of the applicant’s attempts to assist the respondents to raise funds to pay for the property and to assist the respondents to establish farming and agricultural projects for the same purpose. In my view this conduct is consistent with an intention that the purchase price be paid, and could only have been understood by the respondents accordingly.

[20] In December 2007 the applicant wrote to the first respondent, in which it said, inter alia,

‘At the meeting we agreed to give you only six more months to get the projects up and running (June 2008) and (sic) well as pay off your rent arrears and to consider buying the property.’

In the minute of the meeting of June 2008, referred to above, the following was recorded (I refer to extracts):

‘We gave Patrick the letter and asked him what he thought we should do. Regina suggested to him that if he gets any money he could start putting at least something towards the property. We don’t want to throw him off – we know he wants the place.

Asked him what we were getting out of the property – we’re going to have to pay the electricity and water if we want to sell.

Patrick says he knows that he will be able to pay. He has learned from his mistakes.

We ended up giving Patrick the letter which we have signed but not him. We suggested that he sign it and take it to the various departments that he visits to show them that if nothing happens soon re the property, he may lose it. We told him that he will be getting the same letter saying that he should be off the property by the end of Sept unless there have been some changes.’

Then followed the notice to vacate referred to above.

By letter dated 1 March 2009, the first respondent was informed by the applicant that it intended to use sections of the buildings on the property for various projects and requested him to confine himself to the priest house. He was also asked when he would start paying the rent of R500.00 per month.

[21] In my view all the above communications indicate an intention to be paid for the property, an intention to control the property as owner, and an intention to evict at some stage. The respondents could not have been under the impression that the applicant no longer wanted payment of the purchase price, nor could they have been under the impression that the applicant would allow them to remain in occupation until they found alternative accommodation. There was no such communication by the applicant.

[22] The evidence therefore in my view does not establish waiver by the applicant of its right to evict the respondents. Estoppel is not of application in these circumstances. The respondents do not allege that they acted on a representation of the applicant, to their detriment.

[23] The defences of waiver and estoppel therefore cannot succeed.

Eviction order just and equitable

[24] The respondents did not dispute the averments of the applicant in relation to the non-fulfilment of the suspensive condition and that, if PIE applies, they are unlawful occupiers. In his affidavit in support of the condonation application, the first respondent admitted the averments in the applicant’s founding affidavit. In the answering affidavit he said the applicant’s founding affidavit was generally consistent with what had happened.

[25] S 4 (7) of PIE provides as follows:

“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.”

[26] In deciding whether or not an eviction is just and equitable, I must have regard to the interests of the applicant, as land owner, and the second respondent’s members, as people in need of adequate accommodation. I must also not take ‘a purely legalistic approach’, but should ‘have regard to extraneous factors such as morality, fairness, social values and implications and circumstances which would necessitate bringing out an equitably principled judgment’. (Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC) at paragraph [33].)

[27] According to the applicant, the idea of an HIV aids centre was a welcome one, and was the reason why it allowed the respondents to take occupation of the property prior to payment of the purchase price. Even though this idea never materialised, the applicant nevertheless assisted the respondents with other projects, with a view to raising the purchase price. The applicant’s attitude throughout was one of patience, kindness, generosity, and support. As a result of the continued occupation by the respondents, the applicant has been unable use the property for other projects, such as a youth project aimed at teaching developmental skills to young people, with a view to combating poverty and unemployment. A non-profit organisation, named Yo-Foods, expressed interest in purchasing the property for the purpose of alleviating socio-economic problems in the Eastern Cape, but no sale could take place because of the occupation of the property by the respondents. The applicant is therefore an altruistic owner, and wants the property to be used for the benefit of people in need.

[28] On the other hand, the second respondent’s members tried to make the best of their unfortunate situation after retrenchment from the mines. The formation of the second respondent showed initiative and determination. According to the first respondent, many of the members were forced to leave the mines in the early 1990’s because of political violence. They received no money from the mine authorities. They returned to the former Ciskei and were promised land for co-operative farming, but to date no land has been given to them. In 2006 the provincial government set up a task team to look into their plight but nothing came of this. The assistance of the Department of Agriculture and the Premier of the Eastern Cape in obtaining land was also sought. Currently, according to the first respondent, the Department of Land Affairs (‘DLA’) is in the process of identifying land for the purpose of communal farming and once the DLA has identified land, the respondents will vacate the property. However, at present, they say they have nowhere else to go.

[29] According to the applicant, the first respondent is the only member of the second respondent currently occupying the property. The first respondent mentioned that members of his extended family and other members of the second respondent were working the land but did not name them or indicate if they were elderly, disabled, or children. It was for the respondents to furnish such information. The first respondent’s son resides with him but he is 20 years old. It was submitted on behalf of the respondents that there is insufficient information before me to consider the availability of land for relocation. I do not agree. The availability of alternative land seems to be a reality. The first respondent not only said that the DLA is in the process of identifying land, but that he has already visited several farms in the King William’s Town area. The requirement in s 4(7) of PIE that I consider the availability of land by an organ of state has therefore been met.

[30] Taking into account all the circumstances which I consider to be relevant, I am of the view that it would be just and equitable to grant an eviction order. The applicant’s interests are not selfish and it has long accommodated the respondents in their time of need. Other needy persons will benefit if the respondents vacate the property. There is a real prospect of alternative land being found for the respondents. Not only is the DLA in the process of identifying land, but it is also funding the respondents’ legal costs. This to me indicates that the DLA is looking after the interests of the respondents and assuming some responsibility for them. I do accept that the process of identifying land may take some more time, but I shall accommodate that factor in the order I make.

Costs

[31] There are many precedents for not making costs orders in matters of social interest and constitutional rights. However in the present matter, I think it is relevant that the property was acquired primarily for the purpose of the HIV Aids centre, and not for housing. Although the history of the members of the second respondent was one of hardship, given their retrenchment and economic situation, the sale was concluded after negotiations and correspondence spanning more than a year. Correspondence from the respondents during this period did not indicate homelessness or desperation. In fact in one letter prior to the sale, the first respondent said that the second respondent had secured another piece of land with the assistance of the South African Police Services. In addition, the defences of lack of jurisdiction and waiver and estoppel, in my view, went against the spirit of the relationship between the parties, which started out as a mutual hope to help people in need, and was characterised by the kindness and encouragement of the applicant towards the respondents. In all these circumstances I see no reason why costs should not follow the result.

Order

[32] The following order is made:

[32.1] The respondents and all persons claiming title through them are ordered to vacate the property situated at Erf 726, Braunschweig, Division of King William’s Town, on or before 31 July 2010.

[32.2] The Sheriff of the above Court is authorised to take all steps necessary to give effect to such order.

[32.3] The respondents are ordered to pay the costs of the application, as well as the costs which were reserved on 10 December 2009, jointly and severally, the one paying, the other to be absolved.

________________

J.M. ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

Applicant: Adv. R. Brooks instructed by Neville Borman & Botha, Grahamstown.

Respondents: Adv. N. Sandi, instructed by Malusi & Co Attorneys, c/o Mili Attorneys, Grahamstown.