Government Employees Pension Fund v Bonview Trading 88 CC and Others (M81/2023) [2024] ZANWHC 304 (18 December 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: M81/2023

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

GOVERNMENT EMPLOYEES PENSION FUND Applicant and BONVIEW TRADING 88 CC 1st Respondent XAVIER MATSEPA 2nd Respondent MOTLALEPULA L MOSETE 3rd Respondent GABRIEL MOJAFI 4th Respondent GATSI WELLINGTON 5th Respondent N S MWENDA 6th Respondent P M MOKALE 7th Respondent TSHIDI DIPHOKO 8th Respondent MODIMOKOANA CKK 9th Respondent ANDRIES NAK PHALANE 10th Respondent DAPHNEY DITSELE 11th Respondent ORPHAN OMOREMI 12th Respondent THANDI L C MOLEFE 13th Respondent JUDITH MATSANG 14th Respondent JOSEPHINE RAMAGAGA 15th Respondent BHEKI VALIPHATHWA 16th Respondent MMUSI E MONGALE 17th Respondent BEN LETEBELE 18th Respondent R R RAMMUTLA 19th Respondent ESSERIAL MORUTI 20th Respondent WALTER RAMAPUPUTLA 21st Respondent GERSON MARULE 22nd Respondent HERMAN KONDILE 23rd Respondent T I MOUMAKWE 24th Respondent KATE MOSHOADIBA 25th Respondent AWEOLANI MPFUMBA 26th Respondent PAUL TUMISA MEKGWE 27th Respondent MOFOLO NTSHEBE JOSEPH 28th Respondent THE FURTHER UNLAWFUL OCCUPIERS OF T[…] FLATS, ERF 1[…]-1[…], T[…] 29th Respondent RUSTENBURG LOCAL MUNICIPALITY 30th Respondent SHERIFF OF THE HIGH COURT 31st Respondent

Coram: Mfenyana J

Delivered: This judgment was handed down electronically by circulation the parties’ legal representatives via email. The date and time for hand-down is deemed to be 18 December 2024.

ORDER

1. The first to twenty ninth respondents, and all persons occupying the property known as T[…] flats situated at earth 1[…] - 1[…] company unit B, Rustenburg, Northwest province through them and all on their behalf are evicted from the property.

2. The first to 29th respondents are ordered to vacate the property within two months from the date of service of this order.

3. In the event of the 1st to 29th respondents and all persons occupying the property through them and/or on their behalf, not vacating the property within two months of service of this order by the sheriff, the 31st respondent is hereby authorised to take all steps necessary to evict the first to twenty-ninth respondents and enlist the services of the South African Police Services if considered necessary.

4. The first to twenty-ninth respondents are interdicted from entering the property after they have been evicted by the sheriff or his deputy or after they have vacated the property.

5. In the event that the first to twenty-ninth respondents or any person occupying the property contravene the orders in 1 – 4 above, the sheriff or his deputy is authorized and directed to remove them from the property with immediate effect.

6. This order shall be served:

6.1 on the first to twenty ninth respondents by service in terms of the Rules of this Court and in addition to such service;

6.2 by affixing a copy of the order on the property at T[…] Flats situated at Erf 1[…] – 1[…] T[…] Unit B, Rustenburg, Northwest Province.

7. The costs of this application shall be borne by the first to twenty-ninth respondents jointly and severally, the one paying the other to be absolved.

JUDGMENT

Mfenyana J

Background

[1] The applicant seeks the eviction of the second to twenty-ninth respondents (the respondents) from a residential property described as described as Erf 1[…]-1[…] T[…] Unit B, Rustenburg, North West, also known as T[…] Flats (the property). The application is brought pursuant to the provisions of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act)[1] and is predicated on the basis that the applicant is the lawful owner of the property, and the respondents are in unlawful occupation

thereof.

[2] The genesis of the dispute between the parties can be traced back to a written lease agreement concluded on 23 March 2017 between the applicant and the first respondent. In terms thereof the first respondent would take occupation of the property on 1 March to 31 March 2017. Rental payment would commence on 1 April 2017 in an amount of R60 000.00 and would be payable monthly until 31 March 2018.

[3] It is a further term of the agreement that upon expiry of the lease period or early termination of the lease agreement, the first respondent would inter alia, surrender the leased premises and all keys thereto to the applicant, and inform the applicant of all combinations on locks, safes and vaults if any, on the property.

[4] In the founding affidavit, the applicant states that it has complied with all its obligations in terms of the lease agreement, and handed over the property to the first respondent. Despite this, the first respondent failed to pay the monthly rental as agreed, as a consequence of which the applicant became entitled to terminate the

lease agreement, the applicant further asserts.

[5] On 20 July 2017 the applicant transmitted a notice to the first respondent, notifying it of its breach, and simultaneously cancelling the lease agreement. It is on that basis that the applicant contends that the first respondent’s right to occupy the property came to an end on this day. The applicant further avers that in terms of the lease agreement, the first respondent’s right to occupy the property expired on 31 March 2018.

[6] It is common cause that the lease agreement concluded between the applicant and the first respondent did not prohibit subletting of the property. It is further common cause that the first respondent sublet the property to the second to twenty-ninth respondents. Despite service of the notice of termination, the first respondent and the second to twenty ninth respondents did not vacate or surrender the property to the applicant. Neither did they on expiry of the lease agreement on 31 March 2018.

[7] On 3 September 2019 the Gauteng Division of the High Court in Pretoria granted an order (2019 order) confirming the cancellation of the lease agreement with the first respondent and interdicting the first respondent from enforcing the sub-leases or claiming any rental from the sub-tenants. The first respondent was further ordered to hand over the sub-lease agreements it had concluded with the occupiers of the property which he duly did.

[8] The applicant avers that, as the second to twenty-ninth respondents’ occupation is based on the first respondent’s occupation, the termination of the first respondent’s right of occupancy automatically results in the termination of the subleases the first respondent concluded with the second to twenty-ninth respondents.

[9] Following the granting of the order by the Pretoria High Court, the applicant sent it together with a letter notifying the respondents of the cancellation of the sub-lease agreements to the respondents’ attorneys. In the letter, the respondents were further advised that their occupation of the property is illegal and directed them to vacate the property by 30 September 2019, failing which the applicant would initiate eviction proceedings. When the respondents failed to vacate the property, the applicant sent another letter to the respondents’ erstwhile attorneys and subsequently to the respondents instructing them to vacate the property by 6 November 2019.

[10] Among the documents provided by the first respondent to the applicant, in compliance with the 2019 order, were letters of demand (including returns of service) for arrear rental, addressed to the second to twenty-eighth respondents. It appears from a response from the respondents’ attorneys on behalf of the respondents that the respondents denied any indebtedness to the first respondent and refused to vacate the property. They further averred that the first respondent did not have the necessary authority from the applicant as owner of the property, to conclude the sub-leases with them, which contention was denied by the first respondent. Despite refusing to pay rental to the first respondent, on the basis that the first respondent did not have permission from the applicant to conclude the sub-leases, as expressly stated in their letter, the respondents paid no rental to the applicant and opted to withhold it. They argue that they were waiting for the applicant to contact them as they had always been willing to pay rent.

[11] It is common cause that at the time of instituting these proceedings, the respondents had been in occupation of the property for more than six months. It is the applicant’s contention that it has not been able to exercise its rights as owner of the property since March 2017, and that the thirtieth respondent (the municipality) can reasonably make land available for the relocation of the respondents.

[12] It is further the applicant’s contention that there are other unlawful occupiers on the property whose identities are not known to the applicant. The respondents plead that it would not be just and equitable to evict them and their families. To this, the applicant avers that it does not know the personal circumstances of the unlawful occupiers but believes that they may include children, the elderly, women-headed households, and possibly, disabled people. The applicant further avers that it is entitled to evict the respondents from the property and that it is just and equitable for this court to order such eviction.

[13] Notwithstanding the applicant’s ownership, the second to twenty-ninth respondents oppose the application. They aver that the deponent to the founding affidavit lacks the necessary authority and locus standi “to sign the main founding affidavit”. Although this point is raised in the answering affidavit, it was not taken any further by the deponent nor were any reasons advanced for this contention. The first respondent has not opposed the application.

[14] Mr Kenny Modimokoana (Modimokoana), the deponent to the answering affidavit asserts that the second to twenty-ninth respondents are not illegal occupiers of the property as they concluded lease agreements with the applicant, represented by the first respondent as its managing agent. This is in stark contrast to the respondents’ contention that the first respondent did not have authority from the applicant to conclude the sub-leases with them. The respondents are approbating and reprobating. Modimokoana however, further states that the respondents were not aware that the first respondent was the managing agent of the applicant as they believed him to be the owner of the property as the rental payments were made to the first respondent’s account. He does not provide any basis for this belief.

[15] It is further the respondents’ contention that the applicant was aware that they were in occupation of the property and gave permission or implied consent for their occupation of the property. Thus, they contend that their occupation is with the tacit consent of the applicant. They further aver that their lives are centred around the property which has become their primary residence, as they have been living there for more than seven years. They contend further that most of the families residing there have children and elderly people, and some of the households are headed by women.

[16] The respondents take issue that the applicant has never meaningfully engaged them in order to avoid the eviction, which they contend, would lead to homelessness. According to them, there are reasonable alternatives to the eviction, suitable to both the applicant and the respondents. They do not stipulate what these are.

[17] Essentially, the respondents’ opposition is that the applicant has failed to demonstrate that they are unlawful occupiers as it was always aware that they were occupying the property from the time they concluded lease agreements with the first respondent. They aver that whatever disputes there may have been between the applicant and the first respondent, their occupation is lawful.

[18] According to the respondents, they only became aware that the property is owned by the applicant when the applicant launched the 2019 application seeking to interdict the first respondent and further alleging that it had never received rental payments from the first respondent. It is worth noting that the dispute between the applicant and the first respondent was in respect of their own agreement, and had little or nothing to do with the agreement between the first respondent and the second to twenty-ninth respondents.

[19] Curiously, the respondents concede that they stopped paying rent after the 2019 order. They however attribute this to the fact that the property was dilapidated and no repairs were done despite having been informed by one Jaco, whom they also believed to be the managing agent of the applicant, that the property would be repaired. This fortified their confusion as to who the real owner of the property was, given that various companies were claiming ownership of the property. The respondents do not say in what form these claims were made.

[20] It is further the respondents’ contention that the applicant made no contact until it launched the present application. Presumably, this is yet another reason why the respondents did not make any rental payments since then despite being aware that the applicant was the owner of the property. They state that they approached the Rustenburg Municipality (Municipality) for assistance without success, although they do not say what assistance they sought. They further aver that the Municipality terminated the supply of municipal services to the property which negatively affected their right to adequate housing. These services were later restored after a committee elected by the respondents (residents) held engagements with the Municipality. As such, the respondents contend that the property is functioning properly.

[21] Because they are contributing towards the municipal services supplied to the property, the respondents aver that they are not in unlawful occupation of the property and are willing to pay rental to the rightful owner of the property. They however argue that the application does not meet the requirements of section 4 of PIE. In addition, they argue that the applicant failed to approach them in order to resolve the matter following the interdict against the first respondent. Had the applicant meaningfully engaged with them and the Municipality after the court granted the 2019 order, the situation could have been averted. Pertaining to how the applicant would have known their identities, the respondents are approbating and reprobating. In my view this does not take the respondents’ issue much further. They further deny that the applicant has suffered any damages, and consequently aver that the application should be dismissed with costs.

[22] In the replying affidavit, the applicant avers that even on their own version, the respondents fall to be evicted. The applicant points out that the lease agreement between the first respondent and the respondents was terminable on 1 months’ notice. The applicant further avers that the respondents do not deny that they were given 30 days’ notice to vacate the property on two occasions, and that should be the end of the matter. They are knowingly occupying the property with no lease in place, as they contend that they were awaiting one to be concluded with them.

[23] That the respondents willfully withheld rental despite becoming aware during 2019 that the applicant is the owner of the property, is indicative of respondents who were content in occupying the property rent-free for over 3 years, contends the applicant. This was sufficient time for them to secure alternative accommodation and pay rent. It is on the same basis that the applicant further contends that the respondents’ eviction would not lead to homelessness as by their own admission, they are able to pay rent. This, further contends the applicant, is clear evidence that the respondents are not indigent but have elected to withhold rental payments. In so doing they continue to cause prejudice to the applicant as well as to government pension holders.

[24] The applicant denies that it ever gave any consent tacit or otherwise for the respondents’ occupation of the property, the terms of which are not disclosed by the respondents. Thus, the applicant contends that even if that were the case, it would not have amounted to any more than that the respondents would occupy the property on a month to month basis and pay rental for it, which they failed to do.

[25] With regard to the respondents’ personal circumstances, the applicant contends that these have been set out quite vaguely by the respondents. It further avers that the respondents have not particularized their personal circumstances, and have thus not made out a case for their contention that it would not be just and equitable to evict them. Over and above the 3 years they occupied the property rent-free, they have had a further year since the application was launched, to seek alternative accommodation.

Discussion

[26] The PIE Act applies to all proceedings by an owner or a person in charge of land for the eviction of an unlawful occupier. An unlawful 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 right in law to occupy such land…”.

[27] It is not in dispute that the lease agreements concluded between the first respondent and the second to twenty-eighth respondents came to an end in March 2018. What the respondents contend is that their occupation of the property is not unlawful because they had concluded these lease agreements with the first respondent. They also aver that their occupation is with the tacit consent of the applicant, as owner of the property which the applicant denies. During the hearing of the matter, Mr Tawana argued on behalf of the respondents that the termination of the main lease agreement does not automatically terminate the sub-leases. He stated that only the first respondent was cited in the 2019 order. He however argued that the respondents did not default on rental payment. He challenged what he refers to as the unilateral cancellation of the lease agreement and the sub-leases, which he characterizes as an abuse of rights by the applicant as the owner of the property.

[28] It is irrelevant in my view, whether or not at the commencement of their occupation, the respondents had consent to do so from the applicant or the first respondent. They have in any case failed to provide any evidence or details of the tacit is authorized, either by the applicant or a person in charge of the property. The question is whether their continued occupation of the property is authorized by the owner or a person in charge of the premises. The answer is simply that they have not been so authorized. If at any stage there was ever a doubt in the minds of the respondents whether at the applicant does not require their presence at the property, the 2019 court order should have erased that doubt. Likewise, the notices of termination issued by the applicant subsequent thereto serve to reinforce the applicant’s election that it did had no intention of continuing with the lease agreements between the first respondent and the second to twenty eighth respondents.

[29] As regards the respondents’ contention that the application is not in compliance with section 4 of the PIE Act, it is imperative to consider the provision. Section 4 of the PIE lays down the procedure to be followed by any owner or a person in charge of land, who seeks the eviction of an unlawful occupier in terms of the PIE Act. In terms of subsection 2, written and effective notice must be served on the unlawful occupiers and the relevant municipality, at least 14 days before the hearing of the application for eviction.

[30] What is intended in section 4(2), (3) and (4) is that the unlawful occupiers must be given adequate notice of the intended eviction. There is no dispute that the notice in terms of section 4(2) was served on the respondents. There can thus be no merit to such bald assertion by the respondents. They, in any event, failed to provide any details of the alleged non-compliance.

[31] Section 4(7) provides that if the unlawful occupiers have been in occupation of the land for more than six months when the eviction proceedings are initiated, the court may grant the eviction order if it is just and equitable to do so, after considering all relevant factors including the rights and needs of elderly people, children, people with disabilities, and women headed households. It is not in dispute that the respondents had been in occupation of the property for close on 5 years when the eviction application was initiated. This issue turns on whether it would be just and equitable to grant the eviction order.

[32] In Droomer NO and Another v Snyders and Others[2] Binns-Ward J (with Cloete and Slingers JJ concurring) noted as follows:

“A person, who is not an ‘occupier’ as defined in ESTA, and who occupies any land without the consent of the owner and remains there unlawfully falls to be evicted in proceedings instituted in terms of the PIE Act.” [3]

[33] This sums up the position of the respondents in the present case as follows. The applicability of the PIE Act can thus, not be disputed. In this regard, on 6 April 2023 Petersen J granted the applicant leave to institute the present proceedings against the first to twenty-ninth respondents, after the court satisfied itself that the applicant had complied with the provisions of section 4 of the PIE Act. The respondents’ contention that they believed the first respondent to be the owner of the property cannot be sustained. It is also in direct contrast to their earlier averment that they had the consent of the applicant to occupy the property.

[34] To a large extent, the respondents’ contentions overlook that an owner of a private property is at liberty to deal with their property in any manner they consider appropriate, provided they stay within the parameters of the law. It is not up to occupiers, whether lawful or unlawful, to persist in their occupation on the basis that they are willing to pay rent. The fact of the matter is that the respondents have occupied the property without paying any rental for a period of approximately 5 years. This, they have conceded. It is therefore difficult to fathom on what basis the respondents contend that the applicant has not suffered any damages.

[35] The respondents’ insistence for remaining on the property appears to be borne out of a misconception that the PIE Act allows them to do so until they themselves decide when to leave. This is not the case. Were it so, it would clearly lead to an absurdity. The converse is equally true. The owner of a property cannot legitimately compel an occupier to remain in occupation of a property until he (the owner) decides when to let them go. Even lease agreements come to an end at some point. There is no lease agreement between the applicant and the respondents. The lease agreement between the first respondent and the respondents came to an end years ago.

[36] The purpose of the PIE Act is not to divest an owner of their property. In Occupiers of Erven 87 and 88 Berea v De Wet NO and another (Poor Flat Dwellers Association as Amicus Curiae)[4] observed that:

“The effect of PIE is not and should not be to effectively expropriate the rights of the landowner in favour of unlawful occupiers. The landowner retains the protection against arbitrary deprivation of property. Properly applied, PIE should serve merely to delay or suspend the exercise of the landowner’s full property rights until a determination has been made whether it is just and equitable to evict the unlawful occupiers and under what conditions.”[5]

[37] It was submitted on behalf of the respondents that their everyday lives revolve around the property and they are still enjoying their occupation. The truth of the matter is that they are not at liberty to enjoy this benefit. Their claim to occupation being premised solely on the sub- lease agreements they concluded with the first respondent, they no longer have any legitimate claim as the first respondent’s right to deal with the property was terminated on 3 September 2019 when the 2019 order was granted by the Gauteng Division. Besides, the said sub-lease agreements were for a duration of 12 months. That time has come and gone. The applicant’s contention is that from that point onward, the respondents’ occupation was on a month to month basis. There can be no dispute about this. Moreover, clause 2 thereof provides for termination by either party giving one calendar month’s written notice to the other.

[38] There is therefore merit to the applicant’s contention that after the termination of the lease agreement between the applicant and the first respondent on 20 July 2017, the respondents’ right to occupy the property also came to an end. Further, the cancellation of the lease agreement by the order of court on 3 September 2019 had a direct bearing on the respondents’ occupancy. They no longer have any right to occupy the premises, further contends the applicant, and cannot rely on this as a just and equitable ground on which to resist eviction.

[39] In Grobler v Phillips[6], the Constitutional Court re-affirmed that in assessing whether to grant an eviction order, it is necessary to balance the rights of both the owner and the occupier for it is this “balancing act” which renders an order truly just and equitable. In that matter the court had to determine whether it was just and equitable to grant an order for the eviction of an 86-year-old occupier who had been residing on the property for 75 years, with her disabled son. The court found that the eviction was just and equitable.

[40] In respect of the respondents, the applicant contends that they have had in excess of three years after they were served with notices to vacate, to either procure alternative accommodation or pay the arrear rental. They are not indigent but have chosen to withhold rental, to the applicant’s prejudice and by implication, to the prejudice of government pension fund holders. Moreover, they did not clearly set out their individual personal circumstances.

[41] The respondents’ belated willingness to pay rental to the ‘rightful owner’ is nothing less than a concession that the respondents are not men and women of straw, and are not destitute. It reveals that it is their preference to continue residing on the applicant’s property.

[42] During argument, it was conceded that the respondents’ preference is to remain on the applicant’s property. This, they say is because they are entrenched there as they have lived there for the past 6 years, and they are not refusing to compensate the applicant. This is not a choice for them to make.

[42] In Grobler the Constitutional noted that while the question of whether the constitutional rights of an unlawful occupier are affected by eviction is one of the relevant considerations in terms of PIE, the wish of a party to remain on someone else’s property, unlawfully is not one of the factors that have previously been taken into account in determining what is just and equitable. The CC was critical of this, and the fact that the occupiers had been accustomed to life in the property.

[43] As Phillips was an unlawful occupier in Grobler, so are the respondents in this matter. They do not have a right to refuse to be evicted on the basis that they prefer to remain on the property that they are occupying unlawfully. While section 26 of the Constitution guarantees everyone the right to have access to adequate housing it does not give unlawful occupiers the right to choose exactly where they want to live.

[44] Earlier in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd[7] the Constitutional Court held that when land is purchased for commercial purposes, it could reasonably be expected that the owner, who is aware of the presence of occupiers over a long time, must consider the possibility of having to endure their continued occupation for some time, but cannot be expected to provide such occupation indefinitely. That the respondents are now willing to pay rental for their occupation, is in my view, a little too late.

[45] In the circumstances, it is just and equitable for the respondents to be evicted from the property.

Costs

[46] The applicant seeks a punitive cost order against the respondents. The issue of costs is within the discretion of the court which discretion should be exercised judicially. In Public Protector v South African Reserve Bank[8] the Constitutional Court reasoned that a punitive costs order is justified where the conduct of a party is extraordinary and worthy of the court’s rebuke. The Constitutional Court referred to Plastics Convertors Association of SA on behalf of Members v National Union of Metalworkers of SA and Others[9], where the Labour Court stated that attorney client costs should be reserved for cases where it can be found that a litigant conducted

itself in a clear and indubitably vexatious and reprehensible manner. This is not one of such cases.

Order

[47] In the result, I make the following order:

1. The first to twenty ninth respondents, and all persons occupying the property known as T[…] flats situated at earth 1[…]-1[…] company unit B, Rustenburg, northwest province through them and all on their behalf are evicted from the property.

3. In the event of the 1st to 29th respondents and all persons occupying the property through them and/or on their behalf, not vacating the property within two months of service of this order by the sheriff, the 31st respondent is hereby authorised to take all steps necessary to evict the first to twenty-ninth respondents and enlist the services of the South African Police Services if considered necessary.

6.1 on the first to twenty ninth respondents by service in terms of the Rules of this Court and in addition to such service;

6.2 by affixing a copy of the order on the property at T[…] Flats situated at Erf 1[…]–1[…] T[…] Unit B, Rustenburg, Northwest Province.

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

APPEARANCES:

For the applicant

: N Niewoudt

Instructed by

: MF

Jassat Dhlamini Inc

c/o

: Smit

Neethling Inc.

Email

: azhar@mfd.co.za

nicolene@smitneethling.co.za

For the 2nd to 29th respondents : S Tawana

Instructed by

: Sibannda Bukhosi Attorneys

c/o

Ntsamai Attorneys Inc.

Email

: Stephen@bsincattorneys.co.za

Date of hearing

: 23 February 2024

Date of judgment

: 18 December 2024

[1] Act 19 of 1998.

[2] (A336/2019) [2020] ZAWCHC 72 (4 August 2020).

[3] Paragraph 21.

[4] [2017] JOL 38039 (CC).

[5] Paragraph 80; In this regard see also: Grobler v Phillips & Others 2023 (1) SA 321 (CC).

[6] (CCT 243/21) [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR 115 (CC) (20 September 2022).

[7] [2011] ZACC 33.

[8] 2019 (6) SA 253 (CC)

[9] (2016) 37 ILJ 2815 (LAC).