R and Others (45675/2014), R v [2015] ZAGPPHC 1138 (24 August 2015)

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

GAUTENG DIVISION, PRETORIA

REPORTABLE

OF

INTEREST TO OTHER JUDGES

DATE: 24/8/15

CASE NO. 45675/ 2014

In the matter between:

W. H. R.

Applicant

and

A. M. R.

1st Respondent

THE UNLAWFUL OCCUPIERS OF [1...]

L. S., R. E. [....]

KRUGERSDORP,

GAUTENG PROVINCE

2nd Respondent

MOGALE

CITY LOCAL

MUNICIPALITY

3rd Respondent

JUDGMENT

MOOSA AJ.

[1] In this application I granted an order on 2nd July 2015 in favour of the applicant and against the 1st and 2nd respondents for their eviction and other ancillary relief from the property situated at [..... L. S.], R., E. [...], Krugersdorp, Gauteng (referred to as the property). On 15 July 2015 reasons for the order so granted, w ere requested by the 1st and 2nd respondents. This judgment deals with those reasons.

[2] On 26 March 2014 this Division of the High Court granted a decree of divorce under case number 54470/ 2012 incorporating a deed of settlement entered into between the applicant (the plaintiff) and the 1st respondent (the defendant). The parties were married out of community of property with the inclusion of the accrual system.

[3] The applicant who is the sole owner of the property and which property is the subject of this opposed application, was the common home of the parties up until 21 September 2011, when the applicant and the two minor children born of the marriage left the property, whilst the 1st respondent remained in occupation thereof. So soon thereafter the applicant instituted proceedings for the 1st and 2nd respondents' eviction from the property. Previously, the applicant had on various occasions requested the 1st respondent to vacate the property without success; the reasons advanced for such refusal were that the 1st respondent is without any employment and nowhere else to go. In the papers reference is made to the 1st and 2nd respondents. Although the 2nd respondent is cited as a party he/she or they have not filed any papers save for a notice to oppose. It is not known what relief the 2nd respondent seeks therefore, I will in this judgment not construe the 2nd respondent's reference or disposition in any w ay, adverse to the applicant, the children or any person/s related to the applicant in this application. Since, it is the 1st respondent who is pivotal in this application.

[4] As a result of the 1st respondent's failure to vacate the property this Court was approached by the applicant on an ex parte basis for authorisation and service of a notice in terms of the provisions of section 4( 2) of the Prevention of Illegal Eviction and the unlawful Occupation of Land Act , N o.

19 of 1998 (the PIE Act ) upon all the respondents. Such an order was granted on 29 October 2014.

[5] The grounds upon which the applicant relied for the eviction the 1st respondent and all other persons as the unlawful occupiers of the property, appears from annexure A of Part A of the notice of motion paginated pages 10 and 11 and in particular para graph 5 thereof and which paragraph reads as follows:-

5. The grounds upon which the applicant relies on for the proposed eviction of the 1st respondent and the 2nd respondent are set out in the founding affidavit in the main application, and are summarised as follows:

5.1 The applicant is the registered owner of the property;

5.2 You are in unlawful occupation of the property; and

5.3 There is no contractual relationship between yourself and the

applicant for the occupation of the property, alternatively your right to occupy the property was terminated; an

5.4 You are in unlawful occupation of the property in terms of the Prevention of Illegal Eviction and the unlawful Occupation of Land Act, No. 19 of 1998.

5.5 The 1st and 2nd respondents were given due and ample opportunity to vacate the property; and

5.6 Despite lawful demand that the property must be vacated by yourself, you unlawfully refused to vacate the property; and

5.7 It is just and equitable in the circumstances and in terms of the provisions of section 4(2) of the Prevention of illegal Eviction and the Unlawful Occupation of Land Act, No. 19 of 1998 that the above Honourable Court grants an order for your eviction from the property.

[6] The notice which is dated 16 September 2014 concludes by stating that "This notice is given pursuant to an order granted in an ex parte application as obtained by the applicant."

[7] Prior to the hearing of the opposed application the applicant's counsel Ms. I. Vermaak- Hay had filed the required practice note and the applicant's heads of argument. The respondent's counsel, Mr. S. Aucamp at the hearing informed that has been instructed to represent the 1st. There was neither a practice note, nor the 1st respondents' heads of argument in the court file. After deliberation the 1st respondent was ordered to bring a condonation application for such failure.

[8] On 19 June 2015 a condonation application was brought by the 1st respondent. The application was permitted to reply to the first

respondent's condonation application. The condonation application as well as the opposed eviction application was heard on 23 June2015. On the same day and by agreement between counsel the order a s sought, save for the exclusion of prayer 1.4 of the condo nation application was agreed upon and made an order of Court.

[9] Prior to the hearing of the main application, prayer 1.4 of the condonation application was adjudicated upon whereupon the 1st respondent sought further relief, with reference to paragraph 5 of the divorce settlement agreement. Paragraph 9 of the founding affidavit to the condonation application reads inter alia "... also seeks to address a further issue - to the extent necessary and that is to make application to this court to extend the time periods recorded in the deed of settlement made an order of court on 27 M arch 2014 in terms of which the first respondent was afforded an opportunity to purchase the immovable property which forms the subject matter of this application ".

[10] In limine application's counsel submitted that the 1st respondent is not permitted to seek relief in terms of prayer 1.4 of the condonation application given that, the 1st respondent was only entitled to file a condonation application in respect of the late filing of the answering affidavit and the heads of argument. It was further submitted that such relief in terms of prayer 1.4 is brought in terms of Rule 27 of this Court and does not find application as this Rule does not apply to matters where no time limits are prescribed under these circumstances. The relevant condition relied was paragraph 5.4 of the divorce settlement agreement which is not limited by any time periods. Further that no order or obligation is placed on the 1st respondent to take any steps and therefore no reliance can be placed on Rule 27. Further that the 1st respondent's entitlement to make an offer, to purchase the property is also not subjected to the determination of the accrual findings of Ms. Van Olst's report. The 1st respondent further took no steps to dispute this report, which was made available on 5 May 2014 and that the 1st respondent's entitlement to dispute such report within 14 working days had also lapsed. The time limits were only agreed in relation to the 1st respondent's occupation of the property and not in respect of his entitlement to purchase the propert y .

[11] Application's counsel further submitted that a further offer to purchase this property from the application does not constitute a defence to the relief sought by the application, since the application is not forced to accept any proposal from the 1st respondent and that the 1st respondent never made an offer to purchase the property . The 1st respondent's counsel submitted to the contrary and made reference to the decision of

Brian Belchers Projects CC. v Vencor Capital (Pty) Limited [2012] JOL 29569[GSJ] , I found the facts distinguishable from what was held in this judgment and accordingly, upheld the point in limine and prayer 1.4 was refused.

[12] The order in respect of the condonation application granted was the following:-

1. Condoning the 1st respondent's failure to comply with the ordinary provisions of the Rules of this Court {the rules) relating to motion proceedings and permitting:

1.1 to the extent necessary, the late filing of the 1st respondent's answering affidavit;

1.2 the late filing of the 1st respondent 1s heads of argument and practice note;

1.3 the filing and receiving of the 1st respondent’s supplementary answering affidavit;

2. Directing the 1st respondent to pa y the wasted costs if any occasioned by this application .

[13] The opposition raised by counsel for the 1st respondent to the main application is that it is not just and equitable for the granting of an order for his eviction and which is raised in paragraph 8 of his answering affidavit, supported by the fact that the 1st respondent intends to purchase the property from the application on the basis as set out in his supplementary affidavit. Once application's counsel pointed out that this also does not constitute a ground for a finding that it is not just and equitable for the grant of an eviction order against the 1st respondent. In support thereof reference was made to section 4(7) of the PIE Act and the relevant portion thereof reads a s follows:

" (7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings were initiated1 a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so1 after considering all the relevant circumstances1 ..."

[14] During legal argument application's counsel further submitted with reference to the papers that it will be just and equitable to grant an order for the eviction of the 1st respondent on the following basis:

[15] The application in her founding affidavit, in support of the application for eviction states that the 1st respondent made no

payments of the mortgage bond and furthermore failed to pay the utility bills to the municipality

in respect of the property . The 1st respondent did not provide or contributed towards the genera l maintenance and the expenses of the two minor children as provided for in the deed of settlement. This left the applicant inter alia, in a precarious financial situation.

[16] That the 1st respondent ought to have vacate d the property on 30 April 2014, as a result of his failure to vacate the property and to meet the aforementioned financial obligations. Accordingly, his continued occupation of the property as from 1May 2014 was therefore, considered as unlawful.

[17] Thereafter arguments centred around paragraph 5 of Annexure A referred to above and further in respect of the 1st respondent's occupation of the property in terms of the deed of settlement which is also referred to as Paragraph5; wherein the following is recorded:

"That the applicant is the registered owner of the property; That the 1st respondent still resides on this property; The applicant is desirous and intends to sell the property;

The 1st respondent be allowed to remain thereon until 30 April 2014 whereafter he will vacate the property;

That the 1st respondent will be allowed to continue to occupy the property after 30 April 2014 until 31 December 2014 on condition that the 1st respondent complies with the following : -

a) Proof of payment of the mortgage bond payments on or before 29 April 2014 including the municipal levies to be paid into the application's bank account;

b) He should continue to pay the monthly bond instalmants as well as the municipal levy every subsequent month and if the electricity and water supply to the house is to be re-instated that he should also pay these accounts for the duration of his occupation;

c) He should allow the estate agents appointed by the application any interested

purchaser and any contractor access to the property him being given 48 hours prior notice thereof;

d) That his occupation of the property will be terminated within 30 days after notice of the sale of the property;

e) That the occupation of the property will be terminated immediately in the event of his failure to effect payment of the aforesaid financial obligations;

f) That he undertakes to reasonably maintain and not remove any attachments to the applicant's property;

g) In the event of the 1st respondent failing to make payment of his financial obligations as set out above, his occupation of the property will be terminated immediately;

h) That the 1st respondent undertakes to affect all reasonable maintenance of the property and he will not remove any attachments to the property;

i) That the 1st respondent undertakes not to frustrate the application with the sale of the property ;

j) That the 1st respondent can make an offer to the application to purchase the property at a market related price.

[18] It is recorded in the 1st respondent's papers that the terms of the settlement agreement are not in dispute.

[19] That the 1st respondent although having been employed since October 2014 and who has been

residing on the premises prior to September 2011, has neither made any payments of the mortgage bond in respect of the property nor the municipal accounts. The application carried and still carries these financial obligations;

[20] That the 1st respondent has failed to make any financial contributions towards the genera l maintenance of the tw o minor children;

[21] Even though a forma l notice to vacate the property was made on 22 March 2012, the 1st respondent continues to remain in occupation of the property.

[22] The 1st respondent is about 45 years old and is highly qualified. He had remained unemployed since 2002 for a period of almost 12 years. He had used this as a justification in order to remain on the property;

[23] The application is of the opinion that the 1st respondent has a drug dependency problem

which contributed to him remaining unemployed until October 2014.

[24] He further refuses to undergo drug testing despite a recommendation by the Family Advocate.

[25] The 1st respondent has throughout frustrated the applicant's attempts to sell the property by denying the estate agents access to the property;

[26] The 1st respondent in his answering affidavit states that he has since 1 October 2014 secured gainful employment thus entitling him to exercise his rights in terms of clause five (5) of the settlement agreement which provides that the 1st respondent is entitled to make an offer to the applicant to purchase the property at a market related price. The 1st respondent now employed still remains in occupation without ma king any financial

contribution as aforestated. He does not disc lose his current monthly income and also has not stated that he is financially unable to afford alternative accommodation and/or that he will be homeless at this given moment;

[27] The 1st respondent in his supplementary answering affidavit attested to on 9 June 2015, and in paragraph 7 deals with his attempts to purchase the property and that he had approached two financial institutions for bond finance and which were "outright declined" .

[28] Reliance is placed on annexure Al referred to in paragraph 9 of supplementary answering affidavit and which annexure is headed "Agreement (Offer to Purchase)". On the 1st page of this annexure the purchase price is recorded as R682 000, 00 and on page 4 (the last page of this annexure) it is signed for and on behalf of the purchaser at Johannesburg on 28 May 2015. There is no signature by the Seller. Moreover this document provides that the property is purchased by Red Ant Relocation and Eviction Services (Pty) Ltd. The 1st respondent alleges that Mr. Johan Bosch "is the owner of the said entity ". In opposition thereto the application states that via a search conducted at the company's office there are three active directors. No resolution is attached to the "offer to purchase " indicating that Mr. Bosch is entitled to bind this company. This is not a valid offer and only a request. No allegation is made that there was an agreement reached on the terms as set out in Agreement (Offer))" . Further there is nothing to even indicate that the 1st respondent will be allowed to remain on the property in the event that the offer to purchase is accepted by the applicant.

[29] The applicant in paragraph 13 of her replying affidavit to the 1st respondent's supplementary affidavit deposed to on 22 June 2015 states inter alia a s follows “... It is not clear why an offer is made only for the outstanding bond amount. I will not consider any offer made for this amount. I will only consider offers in accordance with the market value of the property which is in excess of R1 million."

[30] The 1st respondent in his heads of arguments places reliance on inter alia the following decisions:-

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 CC

Resnick v Government of the Republic of South Africa & Another 2014{2} SA 337 (WCC)

Arendse v Arendse & Others 2013(3) SA 347 (WCC)

Residents of Joe Slovo Community Western Cape v Thubelisha Homes and Others 2010(3) SA 454 (CC)

Seaton v First National Trust Asset Mangement and Trust Company

(Pty) Ltd and Others [2008] JO L 22618 (D)

[31] These decisions are distinguishable from the facts in this application, They deal essentially with persons (squatters) occupying

land without the express or tac it consent of the land owner and who have no rights or entitlement to the land,

save for Arendse which concerned a review application wherein the application ( in that application) seeks to review and set aside an eviction order obtained in terms of (the PIE Act).

[32] Of significance is what was stated by Harms JA.

in Ndlovu v N gcobo; Bekker and Bosch v Jika 2003(1) SA 113 (SCA). "The ef fect of PI E is not to expropriate the landowner and PI E cannot be used to expropriate someone indirectly and the landowner retains the protection of section 25 of the Bill of Rights. What PIE does is to delay or suspend the exercise of the landowners full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions. Simply put that is what the procedural safe guards provided for in section 4 envisage". ( at 123 -124 ).

[33] In order for the application to succeed in this application the applicant is required to demonstrate whether it is just and equitable to evict the unlawful occupier. The procedural safeguards provided for in section 4 envisage the following:-

The right of the respondent to have occupied the property;

[34] The 1st respondent's right to occupy the property flowed from the divorce settlement agreement and which right has been terminated.

A valid termination of the right to occupy;

[35] It is inter alia common ca use that:

The 1st respondent was entitled to remain in occupation of the property until a specific date as provided for in the divorce settlement agreement. His failure to vacate the property is the ca use of this litigation and from the averments made, it is clear that he has caused the application considerable distress

and anguish, to say the least, if regard is had to the following:-

The continued occupation of the property by the respondent

[36] The 1st respondent has been in occupation of the property in excess of 12 years without ma king any financial contributions in relation to his occupancy; whilst the applicant pays the mortgage bond in respect of the property and also pays the rent for the house in which she and the minor children live as well a s all the ancillary payments in respect of both the property and the house. The 1st respondent does not dispute that the application's brother has assist her financially and in lieu thereof, she has to discharge the amount loan to her.

[37] What was related to the application by the 1st respondent's psychiatrist Dr Jurgen Kahler "that he (the 1st respondent) is going to leave corpses in his wake (meaning the application and the minor children) which was not challenged, save for a bare denial, nor was any striking out application initiated in this regard as alleged.

[38] That the 1st respondent, now having been employed since October 2014 and who has been residing on the property prior to September 2011, has neither made any financial payments of the mortgage bond in respect of neither the property nor the municipal accounts. The application carried and still carries these financial obligations;

[39] That the 1st respondent has been unemployed since 2009 and no reason is advanced, save to state that he is a (highly qualified person) a White Afrikaans speaking male and given the current economic and political environment in South Africa made it nearly impossible for him to obtain employment - Jet alone gainful employment. The 1st respondent has applied for a number of positions {in excess of a thousand) over the period that he found himself being unemployed,

but was unsuccessful on each occasion. He does not venture to even state the name of even a single entity

that he approache d for employment. In reply to this the application states that these are "lame excuses and that the 1st respondent had applied for positions which were above his mark and he refused to even consider positions which he considered as subordinate .

[40] The 1st respondent's curriculum vita e which is annexed to the applicant's founding affidavit attested to on 8 September 2014 marked as annexure "C' comprising some 10 pages and is very impressive document. The application

further avers that the 1st respondent's continued failures to obtain employment made her suspect it was as a result of the 1st respondent's drug abuse.

[41] That the 1st respondent was requested by the Family Advocate, to undergo a drug test which he refused to go. "The first respondent agreed to subject himself to the test referred to in the settlement agreement; he still has not subjected himself to such testing .".

[42] Although being employed since October 2014 the 1st respondent has not disclosed what he earns on a monthly basis. It is inferred from the papers read in its entirety that the 1st respondent can easily afford alternative reasonable accommodation and make that his comfort zone.

[43] The 1st respondent does not state that he will be homeless, and if his employer can go so far as to make a loan to the 1st respondent in the region of R680 000, 00 the 1st respondent can most certainly purchase a comfortable dwelling.

[44] Alternatively the 1st respondent can easily rent a place from his monthly salary he now receives. It can safely be assumed to be a substantial amount having regard to his qualifications, experiences and so forth as set out in his curriculum vita e. The availability or non - availability of alternative accommodation is not an issue in this application.

[45] His only desire to remain in occupation of the property is of a sentimental value. To justify this, the 1st respondent states "... The idea was and remains to be that when the children would visit me they would do so in a place that was familiar to them i.e. the common household ."

[46] To aver "... The idea was and remains to be that when the children would visit me.... the common household. Since, this is not the situation; it can only be regarded as a feeble effort on the part of the 1st respondent. As opposed to the averments in relation to the visitation rights and access to the minor children, this is documented in paragraph 17 of the application's replying affidavit which records the following:-

" ...the children never visited him( 1st respondent ) at this house (the pro pert ) since we left the common home on 21 September 2011..."

"... the 1st respondent was only allowed to see the children under supervision, and for a long period of time (in terms of a Court Order) he was not allowed any access to the children. After this order was changed he once again only saw them under supervision.

The contact sessions never took place at the property in question.

Compliance with the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 1 9 of 1 998 (the Pie Act)

[47] The authorisation and direction which is incorporated in the Order granted on 29 October by this Division of the High Court is sufficient and finds application under this heading.

Damages (if any) suffered as a result of the respondent's occupation of the property.

[48] The respondent has managed to obtain gainful employment since October 2014 and in terms of a letter dated 28 November 2014 it is stated inter alia that our client (the 1st respondent) "... is desirous of exercising his rights afforded to him in terms of clause 5.4 of the settlement agreement and “our ... client requires an opportunity :-

to be approved for bond finance;

obtain a market related valuation of the property and

to present your client (the applicant) with an offer to purchase the property;.

[49] I find the above irreconcilable having regard to the fact that the 1st respondent is patently aware that he does not qualify for bond finance and if so, when? He states in his supplementary answering affidavit in paragraph 8 and I repeat that he had approached two financial institutions whereupon he was outright declined . He also looses sight of the fact that the application is under no obligation to sell the property to him (the 1st respondent). For so long as the he remains on the property the application is severely prejudice d, both materially and substantially.

[50] The 1st respondent is not interested in paying a market related price for the property even though it is a condition of the settlement agreement. He states in paragraph 11of his supplementary affidavit "The offer to purchase is accordingly premised on the outstanding balance on the mortgage bond as at 31 March 2014 " when the market value, on the 1st respondent's own version is R1 million rand as specified in paragraph 12 of his supplementary affidavit . He also acknowledges that the municipal value of the property is R 1280 000, 00.

[51] The 1st respondent does not at all make any offer or even a suggestion to pay bac k in instalments to the application the monies

spent by her, throughout his occupation on the property.

[52] Having regard to his income, which is not disclosed and the duration of his newly found employment , It is hardly likely that he would financially be in a position to purchase the property for R1 000 000, 00 as of now.

[53] The 1st respondent has refused the application's estate agent access to the property contrary to the settlement agreement and by so doing has breached an Order of Court. This has been the position since May 2014. The 1st respondent, now for the first time with prior arrangement is prepared to allow the application or an agent to have access to the property for the purpose of doing a valuation. "To the extent that she (the application) wishes to dispute the valuation provided herein. This certainly smacks of high handedness which under these circumstances serves as an aggravating factor, let alone the other infuriating factors referred to herein above.

[54] The 1st respondent also avers that the van Olst's report records an amount of R 618 058,87 which is due and owing to the applicant's brother in terms of loan a mounts and payments made on the application's behalf. All of these monies has to be re-paid and can be considered nothing else but da mages. Surely, if the application was not financially distressed it would not have been necessary to seek such financial assistance. This a mount was to ensure that the application does not default with the mortgage bond payments as well a s the utility bills owing on the property. Seen in its proper perspective, the monies so advanced has been significantly and considerably to the benefit of the 1st respondent, prior to and after the divorce. This to my mind certainly la cks the principles of grace and compassion on the part of the 1st respondent.

[55] The only defence raised by the 1st respondent is that it is not just and equitable to grant an order for his eviction is on the basis that the 1st respondent intends to make an offer to purchase the property and which does not constitute a defence under these circumstances as envisaged in terms of the provisions of section 4(7) of the Act, submitted to by application's counsel to which I a m in agreement with.

[56] Insofar as the balancing of interests of the parties is concerned I have taken into account relevant factors in relation to the concept of "just and equitable". I have not over or under emphasized the applicable infusing elements of grace and compassion regarding the spirit of Ubuntu as expressed by the Honourable Justice Sachs.

[57 I also agree with the respondent's counsel's submission with reference to the Port Elizabeth Municipality v. Various Occupiers 2005 (1) SA 217 CC contained in paragraph 7 of the 1st respondent's heads of argument which reads as follows:-

"... the decision to grant an eviction order remains the sole discretion of this court and the court is entitled to refuse to grant an eviction order - even were the applicant has complied with all the requirement - if it is not satisfied that it would be just and equitable. A court is required to balance opposing interests of the land owner on the one hand and that of the unlawful occupier on the other hand ."

[58] After consideration, I a m mindful that there has been non compliance of these principles viewed in its totality both objectively and rationally by the 1st respondent. In view thereof the 1st respondent is not entitled to any relief on the facts of this case. I can find nothing that can be considered as contributing factors to justify a finding in the 1st respondent's favour in relation to the quote above. With regard to the application, in essence seen also from a rational and objective perspective, the acts complained of by her, are severe. The application has been both materially and adversely prejudiced. I have also taken into consideration section 26 and the 1st respondent's eviction has not been arbitrary as well as section 195 of the Constitution of South Africa Act No. 108 of 1996 insofar as it may be of relevance. I a m compelled in the interest of

justice and fairness to find that the application has made out a case for the relief sought.

[59] On that basis I granted an Order on 2 July 2015 and which is as follows:-

1 . Prayer 1.4 of the First Respondent's Condonation Application, dated 18th June 2015 is dis missed;

2. The First Respondent and all those persons holding title through the First Respondent, who occupy the premises situated at [.....] L. S.,

R., E. [...], Krugersdorp, Gauteng Province are hereby evicted from the premises within a period of thirty (30) days from date of the order;

3. In the event of the 1st Respondent and those who occupy the premises under and by virtue of the 1st Respondent's occupancy thereof (including his servants and employees), fail and/or refuse to vacate the premises, the Sheriff of the above Honourable Court is hereby authorised to forthwith enter upon the premises and evict the 1st Respondent and all those who occupy the premises under and by virtue of the 1st Respondent's occupancy thereof immediately;

4. The 1st Respondent is hereby ordered to pay the costs of this application.

_____

E.I. MOOSA AJ.

Heard on 23 July 2015

Judgment delivered on: 24 August 2015

Appearances:

For: The Applicant - Adv. I. Vermaa k -Hay

Arthur Channon Attorneys

c/o De Jager Attorneys.

For: The Respondents - Adv. S. Aucamp

Allen & Associates Attorneys

c/o Weideman Attorneys.