Minister of Public Works v Tsoliwe and Another (CA 44/2017) [2020] ZAECGHC 142 (24 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CA 44/2017

In the matter between:

MINISTER OF PUBLIC WORKS

Appellant

and

THEUKA NONTOMBI TSOLIWE

First Respondent

BUFFALO CITY MUNICIPALITY

Second Respondent

APPEAL JUDGMENT

Bloem J

[1] This is an appeal against the refusal of the magistrate in King William’s Town to issue an order for the eviction of the first respondent from the premises at 132 Woodhouse Street, King William’s Town (the premises). The appellant is the Minister of Public Works who was cited in her capacity as political head of the Department of Public Works, which is in charge of the premises. The first respondent is an adult female and the second respondent is the Buffalo City Metropolitan Municipality (the municipality), being the municipality having jurisdiction, as contemplated in section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act[1] (PIE).

[2] Before the merits of the appeal are dealt with, it is pointed out that the appeal was heard in the absence of the first respondent or legal representatives on her behalf. The background is that, when the appeal was called on 1 March 2019, it turned out that although her previous attorneys had timeously and properly withdrawn, the notice of set down was nevertheless served on them and not on the first respondent. The appeal was postponed sine die with the issue of costs reserved. When the appeal was called on 16 September 2019, the first respondent requested a postponement to appoint attorneys to assist her in the appeal. The appellant agreed to the postponement. The costs occasioned by the postponement were once again reserved. Paragraphs 2, 3 and 4 of the order that was issued on 16 September 2019 read as follows:

“2. The respondent shall cause a notice of acting to be served and filed by her duly appointed attorneys of record on or before Monday, 28 October 2019;

3. Should the respondent fail to comply with the order in paragraphs 2 above, the appellant shall forthwith be entitled to apply to the registrar of this court to allocate a date for the hearing of the matter;

4. That once a date is allocated as contemplated by paragraph 3 above, the appellant shall be entitled to set the matter down for hearing with due notice to the respondent.”

[3] On 28 August 2020 the sheriff served the Notice of Set Down on the first respondent personally. Therein she was informed that the matter would be heard at 09h30 on 13 November 2020. On 24 September 2020 the first respondent informed the appellant’s attorney by email that she had received the Notice of Set Down and that she was “still consulting for representation”. At 16h50 on 12 November 2020 the secretary of Smith J received an email from the first respondent wherein she stated that she would be unable to attend the appeal hearing on the following day because she was not feeling well. She attached to her email a medical certificate dated 11 November 2020 from Dr S Mxenge from King William’s Town. It reflects that the first respondent was examined by Dr Mxenge on 11 November 2020. It is unclear whether that certificate reflects what the first respondent informed him or whether it reflects his diagnosis of pyelonephritis, which we understand to be an inflammation or infection of the kidneys. The first respondent did not make an application for the postponement of the hearing. In the absence of such an application, the fact that the matter was previously postponed and the view that we take of the appeal, we decided to proceed with the appeal in the first respondent’s absence.

[4] The factual background is that during September 2007 the appellant and the first respondent entered into a lease agreement in terms of which the appellant made the premises available to the first respondent in exchange for the payment of monthly rental. In due course the first respondent failed to pay rental in terms of the lease agreement. The appellant gave notice of cancellation of the lease agreement and did thereafter cancel it. The magistrate correctly found that it was common cause that the lease agreement was terminated by the appellant and that the first respondent’s occupancy of the premises was consequently unlawful.

[5] The first respondent is an unlawful occupier because she occupies the premises without the express or tacit consent of the appellant, being the person in charge of the premises.[2] At the time when proceedings were instituted the first respondent had been occupying the premises for more than 8 years.

[6] Against the findings that the first respondent was an unlawful occupier and had been in the premises for more than 6 months, which findings were not the subject of appeal, the central issue before this court was whether it is just and equitable to grant an order for the first respondent’s eviction.

[7] Section 4 of PIE provides for the eviction of unlawful occupiers. Section 4(7) reads 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 needs of the elderly, children, disabled persons and households headed by woman.”

[8] A determination of whether or not it is just and equitable to grant an eviction order in terms of section 4(7) of PIE entails firstly, a consideration of all the relevant circumstances referred in that sub-section; and secondly, the date of eviction.[3]

[9] The magistrate was of the opinion that it was not just and equitable to grant an order for the first respondent’s eviction. His reasons therefor are recorded as follows:

“The court finds that the two factors raised by the Respondent i) the issue of the rights and needs of households headed by women, ii) the rights and needs of the children. Respondent is a 56-year old female who is employed and the breadwinner at the house stead with two unemployed daughters, with grand children who are of school going age. Both the two factors above taken together more emphatically children rights the court came to the conclusion that it is not just and equitable to grant the eviction in terms of the P.I.E Act 19 of 1998.”

[10] The magistrate accordingly dismissed the application because the first respondent is a woman who heads her household and “more emphatically” because of the rights and needs of the “grandchildren”. In my view the factors relied upon by the magistrate cannot be considered in isolation. He misdirected himself when he did not properly consider all the relevant circumstances referred to in section 4(7) of PIE. That misdirection entitles this court to consider those circumstances afresh.

[11] Although the municipality was joined as a party, it played no part in these proceedings. There is a duty on a municipality to provide temporary accommodation to a person evicted if such eviction will result in homelessness.[4] In this case, regard being had to the first respondent’s income, her eviction is unlikely to result in homelessness. In my view there was no duty on the municipality to make alternative accommodation available to the first respondent when in all

probability she has the means to do so.

[12] The first respondent can by no stretch of the imagination be described as elderly. She has also not placed any evidence before the court that she or any of her dependants is in any way disabled.

[13] The first respondent is gainfully employed by the Office of the Premier of the Eastern Cape as an administrative officer. A copy of her salary advice dated 15 July 2015 was attached to the appellant’s founding affidavit. It showed that her gross monthly salary was at that stage R22 338.25, inclusive of a housing allowance of R900.00, and that her nett salary was R12 077.03, after deductions, which included at least five insurance policies. Most people would be able to maintain

themselves and their dependants on a monthly gross salary of about R22 000.00. The first respondent has failed to explain why she would be unable to secure alternative accommodation on her salary.

[14] It is common cause that the first respondent’s two adult unemployed daughters reside with her. One of them has a child, and not grandchildren, as found by the magistrate. It is unclear from where the magistrate obtained that evidence.

[15] Although the applicant, as a woman, heads her household, that factor alone, or in conjunction with the fact that she resides with her two daughters and one granddaughter, cannot frustrate the applicant’s desire to be in charge of the premises, especially if regard is had to the fact that the first respondent probably has the means to secure alternative accommodation.

[16] The appellant has been in unlawful occupation of the premises since May 2014 when the lease agreement was cancelled. She had more than enough time to make arrangements for alternative accommodation.[5] The applicant cannot be further burdened with providing accommodation to the first respondent.

[17] If the period that the first respondent has been unlawful occupation is taken into account, it would, in my view, be just and equitable to allow her approximately two months to secure alternative accommodation, failing which the sheriff or members of the South African Police Service may assist with her eviction.

[18] The applicant has been successful on appeal. The general rule is that a successful party is entitled to his or her costs. There is no reason to make an exception in this regard. Since the first respondent was responsible for the postponement on 16 September 2019, she must pay the costs occasioned by that postponement.

[19] In the result, it is ordered:

19.1. The appeal is upheld, with the first respondent to pay the costs of appeal, such costs to include the costs occasioned by the postponement on 16 September 2019.

19.2. The order made by the magistrate is set aside and substituted with the following:

“1. The first respondent and all person occupying through her (the occupiers) are evicted from the premises at 132 Woodhouse Street, King William’s Town (the premises).

2. The occupiers shall vacate the premises by no later than 16h00 on 29 January 2021.

3. Should the occupiers fail to vacate the premises by the time and date referred to in paragraph 2 above, the sheriff or members of the South African Police Service may carry out the eviction.

4. Each party shall pay his or her own costs.”

_________________________

G H BLOEM

Judge of the High Court

SMITH J,

I agree.

J E SMITH

For the appellant: Mr A C Barnett instructed by the State Attorney, Port Elizabeth and Whitesides, Grahamstown.

For the first and second respondents: No appearance

Date heard:

13 November 2020.

Date of delivery of the judgment: 24 November 2020.

[1] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act 19 of 1998).

[2] Section 1 of PIE defines an “unlawful occupier” as a person who occupies land without the express or tacit consent of the owner or person in charge. It also defines “person in charge” as a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.

[3] City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and another 2012 (2) SA 104 (CC) at 133F-G.

[4] Occupiers, Berea v de Wet N.O. and another 2017 (5) SA 346 (CC) at 364D.

[5] Ndlovu v Ngcobo: Bekker and another v Jika [2002] 4 All SA 384 (SCA) at para 17.