Halle and Another v Downs (LCC78R/2007) [2008] ZALCC 15 (20 November 2008)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT DURBAN

CASE NO: LCC78R/2007

Heard: 11 August 2008

Decided: 20 November 2008

In the matter between:

JEANETTE FRANCIS HALLE First appellant

PETER

HALLE Second appellant

and

ANITA

HILDA DOWNS Respondent

___________

JUDGMENT

MEER, J

[1] Appellants appeal against an order for their eviction from the farm Hydeswood (“the farm”), situated in the district of Vryheid, KwaZulu Natal. The order was granted in terms of the Extension of Security of Tenure Act No 67 of 1997 (“ESTA”), in the Vryheid Magistrate’s Court on 13 April 2007.

[2] Their grounds of appeal in essence are that the Court a quo erred in concluding that they were not entitled to the protection from eviction granted to long term occupiers as defined at Section 8 (4) of ESTA. Appellants contend that they were indeed long term occupiers, both being over the age of 60, who had resided on the farm in excess of 10 years, and the Court a quo erred in finding that they were not.

[3] The respondent counters that the appellants were neither occupiers under ESTA at the time of the institution of the action for their eviction on 25 August 2006, nor long term occupiers as defined at Section 8 (4) of the Act. Appellants, they submit, are unlawful occupiers as envisaged in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 1998 (“PIE”), and fall to be evicted under such Act. Respondent contends that the requirements for the eviction of appellants under both ESTA and PIE have been met, and they stand to be evicted.

[4] The background facts and events which led to the eviction of appellants are briefly as follows: The first and second appellants, who are both over 60 (sixty) years old, are married to each other out of community of property, and have been living on the farm since 1966. The first appellant, Mrs Halle, became owner of the farm on 19 October 1983 and remained owner until October 1994, when the farm was transferred to the respondent, Mrs Downs.

[5] The sale and transfer of the farm to respondent came about as a result of appellants experiencing serious financial difficulties in 1994. First National Bank obtained judgment against the first appellant and pursuant thereto attached the farm, the appellants’ only asset of substance. In the circumstances an arrangement was made between the appellants and the respondent in terms whereof the respondent purchased the farm from the first appellant. In terms of the arrangement the proceeds of the sale were to be utilised to settle the First National Bank indebtedness. Appellants would be entitled to remain in residence on the farm. They would have a period of 5 years wherein to re-purchase the farm from respondent at the price paid by respondent, plus respondent’s costs associated with the purchase and improvements effected to the farm.

[6] Other then assisting the appellants, respondent and her husband regarded the arrangements as a business opportunity. On 23 January 1995 a written agreement of lease was concluded between the respondent and the second appellant for the lease of a portion of Hydeswood farm, described as portion 258 of Hydeswood farm, approximately 3,8ha in extent. This is the precise area presently occupied by the appellants.

[7] The material features of portion 258 are as follows: Portion 258 is 3,7740 ha in extent, whilst Hydeswood farm (owned by the respondent) is much larger. On portion 258 are situated a main dwelling, swimming pool, two dwellings with two bedrooms each, two flatlets and outbuildings. The dwellings on portion 258 which are not used by the appellants for their personal accommodation are let to tenants at a combined rental which varied between R3 200,00 and R4 400,00 per month. At the time of the institution of the action the monthly rental income was R4 400, 00. At the time the respondent acquired the farm, appellants were operating a bed and breakfast as well as a woodwork manufacturing business on the farm. These operations continued.

[8] By the end of July 1996 the respondents themselves had experienced financial difficulties which caused them to relocate to the farm. During January 1998 the first appellant tendered a written offer to purchase the farm from the respondents for the sum of R650 000,00. The offer was rejected.

[9] Thereafter the second appellant fell into arrears with the rental payments and on 9 July 1998 he was given written notice of the cancellation of the lease agreement and was requested to leave the farm by 30 August 1998. The second appellant however paid some rental and was no longer required to vacate. However by August 1999 he was again in rental arrears in excess of R40 000,00 and a further letter of cancellation of the lease agreement was addressed to him, requiring him to vacate by 31 August 1999. Pursuant thereto, litigation commenced between respondent and appellants in the Magistrate’s Court, for inter alia the eviction of the second appellant. An agreement of settlement was however entered into, in terms whereof the respondent agreed so sell portion 258 of the farm to appellants’ daughter in law. The agreement of sale was cancelled in April 2000 due to the purchaser’s failure to comply with her obligations.

[10] The respondent then recommenced proceedings against appellants in the Magistrate’s Court culminating in an eviction order for their eviction from the farm. That order was ultimately set aside on appeal by this Court and the matter was referred back to the Magistrate’s Court. Subsequent thereto respondent withdrew the action.

[11] During 1999 second appellant altogether ceased making rental payments to respondent in respect of the occupation of portion 258 and that situation continues. Respondent, moreover, has not had any use of whatsoever nature of the said portion.

[12] In June 2006 respondent addressed a letter to appellants drawing to their attention that they were deriving an income from the portion of the farm they occupied, and yet had for a number of years not paid any rental. Respondent requested payment of a reasonable rental and the conclusion of a rental agreement.

[13] In response appellants denied any liability to pay rental and refused to conclude a lease agreement. Respondent’s attorney addressed a letter to the Legal Aid Board who was representing appellants, enquiring on what grounds appellants were refusing to pay rental and requesting details of the income received by appellants from letting some of the premises on Portion 208, and their bed and breakfast business. Appellants were invited to advance reasons as to why they should be permitted to remain in occupation of the property. The appellants did not provide the information as requested.

[14] Thereafter on 20 June 2006 appellants were given notice to vacate the property by 31 July 2006. In response thereto first appellant denied respondent’s ownership of Hydeswood farm and contended that she was the owner. This state of affairs, not surprisingly, led to the commencement of yet another action in the Ladysmith Magistrates’ Court for appellant’s eviction.

[15] At the commencement of the trial, on 19 March 2007, it was common cause that appellants were still in occupation of portion 208, that they were letting out dwellings thereon for financial gain, and that despite demand they had refused to pay any rental to respondents in respect of their occupation. They had further refused to negotiate a lease agreement with the respondent.

[16] Also common cause was that the respondent had complied with the procedural requirements as prescribed at Sections 9(2) and (3) of ESTA and Section 4(2) of PIE for obtaining an eviction order under the respective Acts.

[17] In granting an order for the eviction of the appellants under ESTA the Court a quo found that they were occupiers but not long term occupiers entitled to protection from eviction under Section 8 (4). The Court concluded further that even had they acquired the status of long term occupiers, they had committed breaches as contemplated at Sections 10 (1)(b) and (c) of ESTA and called to be evicted for that reason. I turn to test these findings as against appellants’ grounds of appeal and respondent’s opposition thereto.

[18] The first enquiry, I believe, must be whether appellants are entitled to raise the defences available to occupiers under ESTA. For, before they can lay claim to protection from eviction as long term occupiers, it must be shown that the Court a quo correctly categorized them as occupiers (not long term occupiers) as defined under ESTA. This requires that it be ascertained whether at the time when legal proceedings for the eviction of appellants commenced they complied with the definition of occupier. See Halle and Another v Downs 2001(4) SA 913 LCC at para 13-14.

[19] The definition of occupier as contained at Section 1 of ESTA read with Regulation 2 (2) promulgated thereunder, is inter alia a person residing on land which belongs to another, and who has had consent to so reside on 4 February 1997 or thereafter, but excluding a person who uses the land mainly for industrial, mining, commercial or commercial farming purposes, and excluding a person who has an income in excess of R5 000, 00 per month.

[20] For appellants to have been occupiers at the time of the commencement of respondent’s action for their eviction in August 2006, they would have had to have complied with all the requirements of the definition of occupier as of that date, one of which, of course, is that their incomes would have had to be less then R5 000, 00 per month.

[21] It was common cause that at the time of the institution of the action the first appellant received a rental income of R4 400, 00 per month and a monthly pension of R820, 00. Her income exceeded the statutory threshold of R5 000, 00 per month. The first appellant accordingly cannot be said to have been an occupier at the time of the commencement of the action. There is, however, a more fundamental reason why first appellant would have been disqualified, namely because she was not an occupier in her own right. First appellant had not herself concluded a written agreement of lease with respondent. Second respondent had done so. First respondent resided on the farm by virtue of her marriage to and association with second appellant who was the occupier. It was not the first appellant’s case that she was an occupier in her own right. Her status was that of a spouse of an occupier. First appellant is accordingly disqualified on two grounds from being classified as an occupier at the time the proceedings commenced.

[22] As to the income of second appellant, on his own version he shares in the income received by first appellant. He also receives R870 per month, included in which amount is his monthly pension of R820. It is thus clear that between first and second appellants, they have an income well in excess of R5000.00. I am inclined to accept as submitted by respondent that, to avoid absurdities, the income referred to in the definition of occupier as contained in Section 1(1) of the Act should be interpreted as the income accruing to spouses jointly. To hold otherwise, would result in the situation where spouses can claim the protection of ESTA in circumstances where one has the required consent but earns very little, (the prevailing situation here on second appellant’s version) or, by choice, no income, whilst the other

(who may not be an occupier in her own right), is wealthy and earns a substantial income. I accordingly find that second appellant did not have an income of less than R5 000, 00 per month at the commencement of the action. The appellants were therefore not occupiers at the commencement of the action.

[23] Even if appellants had been occupiers at the commencement of the action, to enjoy the protection afforded to long term occupiers under Section 8(4), it would first have to be found that for a period of ten years immediately prior to the termination of their right of residence on 25 August 2006 they were occupiers as defined in ESTA. They will be occupiers only if they had an income of less than R5 000,00 per month. See Venter N.O. v Claasen en Andere 2001(1) SA 720 (LCC) at 727 G-728 A para 13; Halle v Downs supra at 919 E para 16; Rashavha v Van Rensburg 2004 (2) SA 421 (SCA) at 429 D para 14; Mpedi and Others v Swanevelder and Another 2000 (4) SA 344 (SCA) at 346 E para 5; Venter N.O. v Claasen en Andere supra at 729 B–F paras 18 & 19; Mpedi and Others v Swanevelder and Another supra at 348 B; Ntuli and Others v Smit and Another 1999 (2) SA 540 LCC at 549 para 21.

[24] It is undisputed that during 1996 to 1998 the second appellant paid rental in excess of R5 000,00 per month to respondent. To have done so his income must have been in excess of that amount. There is also the second appellant’s evidence at the previous trial between the parties that until June 1999 he earned more than R5 000, 00 per month. It follows that the appellants were not occupiers residing on the property for a period of ten years prior to the termination of their right of residence on 31 July 2006.

[25] Even had appellants acquired the status of long time occupiers, they remain subject to eviction should it be found that they had committed breaches contemplated at Sections 10 (1) (a), (b) or (c) of ESTA. The evidence shows that second appellant had committed breaches as contemplated in both Sections 10 (1) (b) and (c).

[26] Second appellant breached a material and fair term of the lease agreement as contemplated at Section 10 (1) (b) of ESTA when he stopped paying rent to respondent around 1998/1999. He has thereafter simply refused to make any payment towards the occupation of the property (portion 258). He has thereafter, prior to the commencement of the trial, refused respondent’s invitation to enter into a lease agreement. Furthermore, when invited by letter dated 2 June 2006 to remedy the breach, second appellant’s response was to deny liability for rent and to refuse to be a party to any rental or lease agreement suggested by respondent.

[27] Second appellant, in my view, also committed a fundamental breach of the relationship between the parties, as contemplated at Section 10 (1) (c) of ESTA, by his refusal to negotiate with the respondent, by the continued letting of dwellings on portion 258 to third parties without respondent’s consent, and by the termination of rental payments without advancing any reason. The evidence makes clear that it is not practically possible to remedy the breach at all or in a manner which could reasonably restore the relationship, as specified at Section 10 (1) (c).

[28] In all of the circumstances the Court a quo correctly found that appellants were not entitled to the protection afforded to long term occupiers under Section 8 (4) of ESTA. This notwithstanding, given my finding that appellants were not occupiers at all as defined at Section 1 (1) of ESTA, it follows that their eviction could not have been granted under the purview of ESTA, which caters for the evictions only of those defined as occupiers under it. The court a quo therefore erred when it relied on ESTA in granting an order for appellant’s eviction.

[29] I accept that appellants were unlawful occupiers as defined at Section 1 of PIE and that they fell to be dealt with under that Act as contended by respondents. As aforementioned, it was common cause that respondent had complied with the formal requirements set forth in Section 4(2) of the latter Act. The order for the eviction of the appellants which the Magistrate granted is, in my view, just and equitable in the light of all of the above, and would also be just and equitable had it been granted under PIE. Section 4(7) of PIE applies to the eviction of unlawful occupiers who have been in occupation for more than six months. It is undisputed that if evicted, the appellants will not be left destitute, as their children are willing to and in the position to accommodate them.

[30] The last hurdle to an order for appellant’s eviction is a jurisdictional one. The Land Claims Court does not have jurisdiction under PIE, given that in section 1 of PIE “court” is defined as “any division of the High Court or the magistrate’s court in whose area of jurisdiction the land in question is situated”

[31] The Land Claims Court can in certain circumstances exercise jurisdiction in respect of issues which are ordinarily not within its jurisdiction by virtue of the provisions of Section 22 (2)(c) of the Restitution of Land Rights Act no 22 of 1994 which provides as follows:

“(2) Subject to Chapter 8 of the Constitution, the Court shall have jurisdiction throughout the Republic and shall have –

(a) …….

(b)……..

(c) the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it to be in the interests of justice to do so.”

[32] In the present case the Magistrate correctly granted an eviction order, but under the wrong Act. It has been held that where a Court of first instance made a correct order, an appeal court can confirm the order, even if its reasons are different. See Sentrale Kunsmiskorporasie (Edms) Bpk v N.K.P Kunsmisverspreiders (Edms) Bpk, 1970 (3) SA 367 (A) at 388E-F. An appeal can only be brought against a substantive order made by a court (in casu, the eviction order), not against the reasons for the Court’s judgment. See Western Johannes Rent Board and Another v Ursula Mansims (Pty) Ltd 1948 (3) SA 353 (A) at 355. Eviction in terms of the provisions of PIE was at issue in the Magistrates’ Court. A court of appeal can therefore (subject to the question of jurisdiction) conclude that the eviction order could have been granted under PIE, and on that basis dismiss the appeal. See Sentrachem Bpk v Wenhold 1995 (4) (SA) 312 (A) at 320A-B.

[33] The only possible obstacle which might prevent this Court from confirming the Magistrate’s eviction order, is that it will require a decision that the order is justifiable under PIE, which is ordinarily beyond the jurisdiction of this Court. Allowing the appeal and remitting the matter to the Magistrate to consider a possible eviction order under PIE would create an unnecessary hurdle for the respondent, prolong the litigation and involve the parties in unnecessary costs. Eviction applications should be brought to expeditious finality. Compare the reasoning of Nugent JA in Republican Press (Pty) Ltd v Ceppwawe and Others, 2008 (1) SA 404 (SCA) at 407E-F. The respondent is obviously entitled to an eviction order against the appellants, albeit under PIE and not under ESTA.

[34] In all the circumstances, it will clearly be in the interests of justice for this Court on appeal, to ascribe to itself the requisite jurisdiction under Section 22(2) (c) of the Restitution of Land Rights Act and conclude that the Magistrates’ eviction order against the appellants should not have been granted under ESTA but under PIE. The alternative, which would be to hold that this Court has no jurisdiction to decide whether the eviction order against the appellants can be justified under PIE and to remit the matter to the Court a quo, would not be in the interests of justice. It is to cater for a situation such as this that section 22(2)(c) was included in the Restoration of Land Rights Act. The interests of justice require, in the circumstances of this case, that the appeal be dismissed.

[35] I believe this Court has, when dismissing the appeal, the requisite jurisdiction to adjust the dates contained in the Magistrates’ Order on which the appellants must vacate the land and on which the eviction order may be carried out, should they not have vacated the land by the set date.

Costs

[36] It is the practice in this Court, in the absence of extraordinary circumstances, not to award costs in a matter such as the present, it being in the genre of social litigation. I can find no reason to depart from this practice in the circumstances of this case.

Order

[37] I grant the following order:

1. The appeal is dismissed.

2. The date on which –

(a) the appellants were ordered by the Magistrate to vacate the farm Hydeswood is adjusted to be 5 January 2009; and

(b) the eviction order given by the Magistrate may be carried out if the appellants have failed to vacate the farm, is adjusted to be 7 January 2009.

3. There is no order as to costs.

____

Y

S MEER

JUDGE

OF THE LAND CLAIMS COURT

I agree

­­­­­­­­­­­­­­____

A

GILDENHUYS

Appearances

For the appellant

Mr L Broster SC

with him

Ms A Gabriel

instructed by

De Villiers, Evans & Petit Attorneys

For the respondents

Mr G M E Lotz

C A Botha & Partners