Minister of Police v Appel and Another (3048/13) [2014] ZAECGHC 71 (1 August 2014)

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

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

Case no. 3048/13

Date heard: 31/7/14

Date delivered: 1/8/14

Not reportable

In the matter between:

MINISTER OF POLICE Applicant

and

KAREL LEON APPEL

First respondent

BUFFALO CITY METROPOLITAN MUNICIPALITY Second respondent

Application for eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – onus – applicant failing to establish that notice given in terms of s 4(2) of PIE – applicant failing to establish that it is just and equitable to order eviction of first respondent – application dismissed with costs.

JUDGMENT

PLASKET J

[1] This is an application, brought by the Minister of Police, to evict from premises owned by the South African Police Service (SAPS) Karel Leon Appel, a member of the SAPS. The provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) applies.

[2] The papers filed by both the Minister and Appel are scanty and inadequate. Both are of little assistance in determining whether it would be just and equitable to order the eviction of Appel. That being so, the onus assumes importance in this matter.

[3] The facts, briefly stated, are these. Appel was provided with accommodation by the SAPS in 1995. In terms of the SAPS housing

policy, members who are provided with accommodation are only given this benefit for a limited period. Appel remained in the SAPS house for many years longer than the period provided for in the policy. He has now been in occupation for 19 years. In 2009 and 2012 letters were sent to him giving him notice to vacate the house. In 2013, he was sent a letter by the Minister’s attorneys threatening legal proceedings if he failed to vacate the house within 14 days. He did not do so and these proceedings are the consequence.

[4] The founding affidavit, deposed to by Brigadier TI Dyantyi, is short and terse. Once the formal matter common to all affidavits has been dealt with the merits take up less than a page. The following paragraphs deal with the merits of the application:

‘5

5.1 On or about 15th March 2002[1] the applicant through his officials allocated House Number 3 [...............], K [...............] (“the premises”)

to the respondent as official headquarters, in terms of the Departmental Housing Policy (“the policy”).

5.2 In terms of the policy which was subsequently amended members were only allowed to occupy the premises for a period not exceeding three years.

5.3 The first respondent was supposed to have vacated the house on the 15th March 2005, but he has failed and/or refused to do so despite several requests.

6

The applicant has on several occasions demanded that the first respondent should vacate the premises without success. In this regard I annex hereto a copy of the letter which was forwarded to the first respondent marked annexure “A”, and a copy of the return of service in this regard is also annexed hereto marked “B”.

7

The conduct of the first respondent in occupying the premises unlawfully cannot be allowed to continue unabated.

8

As can be seen from the above the first respondent is now occupying the premises in question wrongfully and unlawfully.

9

In the premises I pray that it may please this Honourable Court to grant me the order sought in terms of the Notice of motion prefixed hereto.’

[5] Section 4(1) of PIE provides that ‘the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier’ and override any other law, including the common law. Section 4(2) requires that, at least 14 days before the hearing of an application in terms of PIE, ‘the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction’. Section 4(5) prescribes what the notice must contain. It states:

‘The notice of proceedings contemplated in subsection (2) must-

(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

(d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.’

[6] Once the notice has been given and the matter is heard, the court is required to decide whether it is just and equitable to evict the unlawful occupier. In a case such as this, where the unlawful occupier has been in occupation of the premises for more than six months, ss 4(7), (8) and (9) structure the court’s decision as to whether to issue an eviction order and, if so, the timing of the eviction. They provide:

‘(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 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.

(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised 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 contemplated in paragraph (a).

(9) In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.’

[7] In City of Johannesburg v Changing Tides 74 (Pty) Ltd & others[2] Wallis JA dealt comprehensively with how courts are to determine whether and when to evict people from their houses. As far as the onus is concerned and what an applicant is required to establish to discharge the onus, he stated:[3]

‘The implication of this is that, in the first instance, it is for the applicant to secure that the information placed before the court is sufficient, if unchallenged, to satisfy it that it would be just and equitable to grant an eviction order. Both the Constitution and PIE require that the court must take into account all relevant facts before granting an eviction order. Whilst in some cases it may suffice for an applicant to say that it is the owner and the respondent is in occupation, because those are the only relevant

facts, in others it will not. One cannot simply transpose the former rules governing onus to a situation that is no longer governed only by the common law but has statutory expression. In a situation governed by s 4(7) of PIE, the applicant must show that it has complied with the notice requirements under s 4 and that the occupiers of the property are in unlawful occupation. On ordinary

principles governing onus it also has to demonstrate that the circumstances render it just and equitable to grant the order it

seeks. I see no reason to depart from this. There is nothing unusual in such an onus having to be discharged. One of the grounds upon which it was permissible to seek a winding-up order in respect of a company under the Companies Act 61 of 1973 was that it would be just and equitable for the court to grant such an order. The law reports are replete with cases in which courts dealt with applications for winding up on that basis. In cases where the applicant failed to discharge the onus of satisfying the court that it would be just and equitable to grant a winding-up order it was refused.’

[8] Two insurmountable problems face the Minister, one procedural and one substantive.

[9] In the first place, it has not established that s 4(2) has been complied with. The s 4(2) notice forms no part of the Minister’s

case and it is not alleged that such a notice was authorised by the court or served. In his answering affidavit, Appel referred to a notice of motion filed on behalf of the Minister that applied for ‘the form and contents of the draft notice in terms of section 4(2) of the Prevention of Illegal Eviction [from] and Unlawful Occupation of Land Act 19 of 1998, which is annexed to the founding affidavit and marked “X”’ to be authorised. No draft s 4(2) notice is attached to the affidavit referred to. No order made pursuant to this application is attached. The return of service refers only to the service on the municipality, and not on Appel, of that application. In her reply, Dyantyi simply stated that the s 4(2) notice was served on Appel’s attorneys but does not attach it or a return of service. As a result, the Minister has not discharged the onus of establishing that s 4(2) has been complied with.

[10] Secondly, the founding affidavit does no more than state that Appel has overstayed his welcome, refuses to vacate the premises, cannot be allowed to remain in occupation and occupies the premises unlawfully. It does not begin to address issues of justice and equity and does not say a word of circumstances that may be relevant to this enquiry. The Minister has not discharged the onus of establishing that it is just and equitable to grant an eviction order.

[11] In the result, the application is dismissed with costs.

___________________________

C Plasket

Judge of the High Court

Appearances

Applicant: B Boswell instructed by Maseko Tilana Inc

Respondent: J Bester instructed by Neville Borman and Botha

[1] This was acknowledged to be a mistake in the replying affidavit and that Appel in fact took occupation in 1995.

[2] City of Johannesburg v Changing Tides 74 (Pty) Ltd & others 2012 (6) SA 294 (SCA).

[3] Para 30.