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

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE CIRCUIT LOCAL DIVISION, EAST LONDON

CASE NO: EL 1496/13

                   ECD 3296/13

In the matter between

PROPERTY WORKZ 5 CC                                                                                         Applicant

And

JAMAL JAMAL                                                                                             First Respondent

AMIRUL ISLAM MUHAMMED                                                                 Second Respondent

HOOSAIN MURAD                                                                                       Third Respondent

JUDGMENT

HARTLE J

1. The applicant seeks an order in the following terms against the respondents.

“1.1      The first, second and third respondents and all others occupying through them be and are hereby directed to vacate the property described as [..........] and held by Deed of transfer [..........] with street address [..........] (“the property”) within thirty days from date of this order;

1.2       Failing compliance with the order in paragraph 1 above, that the Sheriff of the Court be and is hereby authorized and directed to evict the first, second and third respondents and all others occupying through them from the property, and to hand vacant possession thereof to the applicant.”[1]

2. The property was acquired by the applicant by sale dated 7 February 2014.  Transfer was effected to it on 4 July 2013.  At the time of sale a lease agreement was in existence between the prior owners and the respondents, the duration of which was for a period of 6 months, commencing on 1 January 2013 and terminating on 30 June 2013.  The respondents were granted a first option to renew the lease for a further period, notice of the exercise of which was required to be given by 30 May 2013.  It is not in dispute that the respondents failed to exercise this option.

3. It is common cause that the respondents were advised of the change of ownership and given notice to vacate the premises by 31 July 2013.  They have continued to remain in occupation until today. This is a classical case of holding over, the respondent’s occupation of the property having become unlawful since 31 July 2013.[2]

4. According to the lease agreement the “landed property” let to the respondents comprised of “a shop and house with usual outbuildings”. Despite this reference to a house, isolated passages in the agreement provided that the purpose of the lease was to conduct business. The relevant excerpt reads as follows

“10.      USE OF PREMISES:

10.1     The premises are let to the LESSEE solely for the purpose of conducting business of:

GENERAL DEALER AND FRUIT AND VEGETABLE TRADE

10.2     The LESSEE undertakes that it will not use or permit the premises to be used for any purpose other than as set out in sub-paragraph 10.1 hereof, save with the prior written consent of the LESSOR.”

5. Because of these provisions in the lease defining its purposes, the applicant has taken the stance that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998 (“PIE Act”) are not applicable to this application.  The deponent on its behalf claims that in the 4 years[3] the respondents were leasing the property, the purpose was always to conduct business. He emphasizes that the house with the usual outbuildings on the property was merely “for the convenience of, and management of the property and not for (the respondents’) residential occupation.” Although he acknowledges that upon inspection he found a single mattress in a backroom on the premises, he claims that there is nothing to suggest that anyone has “taken residency” of the property.

6. The respondents assert conversely that they are entitled to the procedural and substantive protection afforded to them by the PIE Act because the property is their “primary residence.” They claim that whereas before they had only enjoyed the use of the business building of the property, they came to reside in the house in terms of an arrangement with the prior owners during the subsistence of the lease.  They aver further that they have “installed upon the house all the assets that make it a comfortable abode for (their) living needs”.

7. The applicant has not contradicted these allegations in its replying affidavit except to repeat that the respondents are unlawful occupants because the agreement “specifically precluded the property from residential use.” It suggests that “any such residency taken up since (I assume after 31 July 2013) is therefore unlawful.”

8. Although upon the launch of the eviction application the applicant attached to its papers the standard notice in terms of section 4 of the PIE Act, it did not seek the leave of this court to serve such notice.    

9. On the merits the respondents claim that they have every right to resist their eviction because the prior owners, contrary to a right of first refusal afforded to them in terms of the lease agreement (clause 21), sold the property to the applicant during the currency of the lease without first offering it to them.  In a purported counter-application they seek to declare the agreement of sale entered into between the prior owners of the land and the applicant invalid because the sale was concluded without regard to and in breach of their right to first make an offer on the property.  As a result they ignored the applicant’s notice to vacate the premises because their right to occupy is “derived from clause 21 of the lease agreement”.

10. For reasons which will shortly become apparent, I need not for present purposes apply my mind to the merits of this defence.  Neither is it necessary for me to determine if the so-called counterclaim is properly before court, or whether the addition of the prior owners to the face of the pleadings in the main action as  further defendants together with the registrar of deeds is regular or not.

11. There is one aspect which I need deal with however.  Mr Kubukeli who appeared for the respondents suggested that I should regard the applicants replying affidavit as pro non scripto because it was not properly attested to in the absence of each page thereof having been initialed by both the deponent and the commissioning officer.  He referred me in this regard to paragraph 23 (v) of the Joint Rules of Practice of this division which provides that every page of any affidavit, including annexures thereto, must be initialed by the deponent and the commissioner of oaths, except for the page on which they sign in full. He submitted that I should not condone the defect.  Inasmuch as the applicant’s reply in the affidavit offers up no contradiction to the respondents’ averments - in stating the basis for their reliance on the procedural protection afforded to them by the PIE Act,  that they occupy the house on the property as their home and have done so for a while by arrangement with the previous owners, it appeared to me that it would not be in the respondents’ interests to strike out the affidavit for want of its compliance with the exact letter of the law as provided by paragraph 23 (v) of the Joint Rules of Practice.  In any event the respondents have never complained before that that the applicant has filed to comply with the practice rule or that it has taken an irregular step.  If they were so technically minded to object at the relevant time, the applicant would no doubt have cured the defect well in time before the hearing. The rather unfortunate impression created by this latent objection was that the respondents were less pained about the defect in the affidavit and or the imagined ramifications to them occasioned by the applicant’s omission to sign each page than they appeared desperate to create a diversion so that the matter could not proceed when it was called before me.[4] In any event I declined the invitation to strike out the affidavit (or pronounce it of no effect) on the basis that the relief was entirely unnecessary.  On the contrary I was disposed toward overlooking the shortcoming in the interests of justice and effecting a balance of the parties’ conflicting interests in an application which is of a sensitive nature.

12. I turn now to deal with the question whether the provisions of the PIE Act are applicable to the averred facts of the matter. If they are then the applicant was indeed in my view obliged to comply with the procedural dictates of the PIE Act and falls short in this regard by its own choosing and insistence that the act is not applicable.

13. Mr Young who appeared on behalf of the applicant relied on three basic propositions in support of his argument that the Act was not applicable.  He submitted, firstly, that the provisions of the Act did not apply to the case of the ex-tenant who has or had at some stage a right to occupy the land. Secondly, they were not applicable where the property let thereby was designated for commercial use only and was in fact used for such purposes and, thirdly, the respondents’ specific denial that they were refusing to vacate the property as a result of not having found a suitable place to go to also operated to exclude the provisions of the act. This is because their continued occupation of the property is not borne out of necessity.

14. The first supposition is entirely misplaced and based on dicta highlighted by Mr Young of appeal judges Nienaber and Olivier in Ndlovu v Ngcobo, Bekker and Another v Jika[5] who wrote separate judgments in which they disagreed with the majority decision in that matter which, to the contrary, asserts that the provisions of the PIE Act do indeed apply to the case of a tenant holding over dwellings after the expiry of a lease agreement.[6]   If there was any doubt as suggested by the court that Parliament may well have deliberately intended to extend the protection of the PIE Act to cases of holding over dwellings by tenants whose leases had been lawfully terminated, it has not acted with any alacrity to dispel this notion. Whilst the Minister of Housing has published for public information, discussion and comment a Draft Bill[7] in which the definition in the PIE Act of an “unlawful occupier” is to specifically exclude “any person who having initially occupied (the contested land) with such consent (to occupy it) thereafter continues to occupy once such consent has been withdrawn”, to date no amendment to this effect has yet been passed.  The proposed amendment was also intended to clarify - regarding the “application of (the) Act,” that it did not apply in three particular situations, one of which is in respect of proceedings “for the eviction of any tenant or any person occupying land through the title of such tenant or former tenant.”

15. For better or worse, and for the present moment, the PIE Act extends the procedural and substantive benefits of its provisions to tenants holding over dwellings who are included by virtue of the ordinary meaning of the phrase “unlawful occupier” in section 1 thereof,[8] perhaps to the annoyance and inconvenience of the landowner, although the Supreme Court of Appeals has been astute to point out that the interpretation which it says should prevail would not have the effect of dispossessing owners of land unjustly.    On the contrary the Act does not provide for dispossession of owners, but merely delays eviction of unlawful occupiers until such time as the court has considered the matter and determined whether the PIE Act should operate to require the evicting party to comply with the procedural and substantive requirements of PIE in effecting the eviction.[9] There is no dispute in casu that the respondents are holding over even though they believe - and assert, that their occupation is lawful. On an objective test however they are “unlawful occupiers” within the meaning of the definition and the scope of the Act applies to them.

16. Whilst it is so that the application of the PIE Act is restricted to those instances in which persons unlawfully occupy premises for residential purposes - because the object is focused on protecting an occupant from being unjustly displaced from his home without recourse to the procedural dictates and substantive objectives of the act, it is in every matter a question of fact whether the contested property from which he is sought to be evicted is in fact his “home” or constitutes a dwelling.[10] The reason for this is that PIE has its origin in s 26(3) of the Constitution which states:

‘No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.’

17. In the preamble to the PIE Act, after first making reference to the property right in s 25(1) of the Constitution, reference is then made to s 26(3) of the Constitution. It thus applies only in respect of buildings or structures upon land that are the homes of unlawful occupiers, and it does not cover the case of the eviction of a person from a building or structure on land that is not his or her home.

18. A home is defined in the New Shorter Oxford English Dictionary as the ‘place where one lives permanently, esp as a member of a family or household; a fixed place of residence’.

19. In Barnett & others v Minister of Land Affairs & others,[11] in determining whether unlawfully constructed holiday cottages on the Transkei Wild Coast constituted homes within the context of evictions under the PIE Act, the court stated:

‘This leads to the next question: can the cottages on the sites that were put up by the defendants for holiday purposes be said to be their homes, in the context of PIE? I think not. Though the concept “home” is not easy to define and although I agree with the defendants' argument that one can conceivably have more than one home, the term does, in my view, require an element of regular occupation coupled with some degree of permanence. This is in accordance, I think, with the dictionary meanings of: “the dwelling in which one habitually lives; the fixed residence of a family or household; and the seat of domestic life and interests” (see eg The Oxford English Dictionary 2 ed vol VII). It is also borne out, in my   view,  by the following statement in Beck v Scholz [1953] 1 QB 570 (CA) at 575 - 6:

“The word ‘home’ itself is not easy of exact definition, but the question posed, and to be answered by ordinary common sense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant's home, or, if the tenant has more than one home, as one of his homes. Occupation merely as a convenience for . . . occasional visits . . . would not, I think, according to the commonsense of the matter, be occupation as a ‘home’.”’

20. In Dries v Venter (Supra) the court warned against a failure to take into account in determining whether the contested property resorted under the protection of the provisions of the PIE Act the real circumstances of the situation or the legislature’s intention by the provisions of the Act.[12] In Venter v Van Wyk (Supra) the court noted that it was “rather risky and dangerous to conclude that PIE is not applicable when there exists a possibility that the property in question may also be used for residential purposes”. [13] Referring to the minority judgment of Olivier JA in Ndlovu's case the court observed that:

". . . the problem of ascertaining to which situations PIE applies is, however, not capable of a definite and final solution by mere textual interpretation of the definition itself. The answer is to be found in broad context sensitive to PIE and its place in the constitutional and legislative framework of land tenure laws."

21. Albeit tersely stated the respondents in casu have made it plain that this is their primary residence where they have lived for some time now since they reached agreement with the previous owners during the subsistence of the lease agreement.   This assertion has not been refuted by the applicant.  Mr. Young argues however that I should have regard strictly to the provisions of the lease agreement to determine whether the property should be construed as a home.  In this regard he submitted that the existence of a house identified in the lease agreement takes the matter no further as the “decisive” factor is the fact that the buildings erected on the property, despite their appearance and or features, were designated for commercial use only and were used by the respondents for that purpose in terms of the valid previous lease agreement.  As cautioned by other courts however this court should astutely avoid a legalistic approach and  look beyond what the parties’ agreement says where the facts of the matter establish something different, or at least suggest something different. Given the purposive approach adopted in Ndlovu v Ngcobo (Supra) in giving meaning to “unlawful occupier”, a court must in my view lean toward extending the benefits of the Act’s provisions particularly to the poor and vulnerable class of persons whose protection was obviously foremost  in the legislature’s mind when it enacted the PIE Act.  [14]

22. In this instance, applying the standard test of determining disputes of fact in motion proceedings,[15] there is no reason to discount the respondents’ averment that  they not only plied their trade as a grocer on the property, but also had (and still have) their home on the premises.  The description in the lease agreement of the premises constituting both a shop and house, and the mention at least of a mattress found on the premises, support the probability that this is the respondents’ place of residence as well. On this score too, therefore, the respondents remain firmly within the scope of the PIE Act.

23.  Concerning Mr Young’s third submission referred to above, the suggestion is that the respondents have eschewed the protection of the PIE Act by their specific denial that they are refusing to vacate because they have not found a suitable place to go – insisting instead that their refusal is rooted in their belief that their position is secure on the basis of clause 21 of the lease agreement “which in effect invalidates any sale that was undertaken without compliance therewith.”  One has only to read the matter in context to appreciate that this is their defence in law to the application for eviction, and not a concession of the nature suggested by Mr. Young.  If it were not so there would be no reason to assert that this is the respondents’ primary residence, or to cling to the protection of the PIE Act.

24. In the premises I find that the provisions of the PIE Act are of application. 

25. The next question is to consider the approach I should adopt in view of this finding.  In Islam v Kabir[16] this court upheld a decision of a magistrate (after finding that the provisions of the PIE Act were not applicable to a specified portion of premises which were designated for commercial purposes, namely a “spaza” shop) to separately issue an order for the eviction of the appellant from the room on the property leased by the appellant constituting the shop as opposed to a second room which, it was common cause, was being used for residential purposes.  The respondent in that matter had taken the point that the application was fatally defective for want of compliance with the provisions of the PIE Act.  The court found on the basis of the Plascon –Evans rule (Supra) that the probabilities were overwhelmingly in favour of the appellant that he had a legal right to remain in occupation of the premises, so the issue of the property also constituting the home of the appellant and the validity of the in limine objection of non compliance with the PIE Act for this particular reason obviously did not feature predominantly.  Although it is not apparent on what basis the court a quo and this court treated the leases as separate, I do not find myself in favour of holding the original lease in casu to be divisible, for purpose of ordering the eviction of the respondents from the shop only in the meantime without the necessity to comply with the strict provisions of the Act in respect of the commercial component of the lease.  Despite the fact that the PIE act does not apply to commercial leases,[17] it would not in my view conduce to dispose of the commercial aspect as a separate component and leave in abeyance the issue of the respondents’ entitlement to hold over pending the applicant’s compliance with the provisions of the PIE Act concerning the residential component of the lease.

26. In Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others [18] it was held that the failure of an applicant to comply with the strict provisions of section 4(2) (read with sub-sections (3) and (4)) of the PIE Act rendered the application fatally defective, justifying the outright dismissal of the application.[19]  This is not to say however that every deviation from a literal prescription of a statute is fatal. In other matters however orders have issued striking or removing the matter from the roll and giving the applicant an opportunity to obtain leave to serve the PIE directives and to serve notice etc. [20] It strikes me that both the applicants and the respondents will be disadvantaged by the outright  dismissal of the application, the applicant both from a costs point of view and because the provisions of section 4(6) rather than 4(7) will be the standard for the court’s determination ultimately of what is just and equitable and the respondents also because they have already tendered certain explanations and have incurred costs in doing so.  It is preferable in my view that the parties in due course rather be allowed to supplement their papers (should they so wish) once the applicant has been afforded an opportunity to serve notice in terms of the Act, and to place the matter on the roll again once it is ripe for hearing for a determination of the relevant considerations[21].

27. The respondents being substantially successful in respect of their preliminary objection, it follows in my view that they are entitled to their costs of the application.

28. In the result I issue the following order:

(i)                The matter is removed from the roll; 

(ii)              The applicant is granted leave to supplement its papers by having the requisite effective notice issued and served upon the respondents without delay;

(iii)             The parties are granted leave to approach the court on the same papers duly supplemented if necessary once the applicant has complied with the procedural prescripts in the PIE Act ; and

(iv)             The applicant is ordered to pay the costs of the application.

_________________

B  HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING :                    29 May 2014

DATE OF JUDGMENT:                 2 June 2014

Appearances:

For the applicant :  Mr Young instructed by Enzo Meyer Attorneys, East London, ref. N Ndlovu              

For the respondents : Mr Kubukeli instructed by B Bangani Attorneys, East London, ref. Mr Bangani/cd/J024/001.

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