REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO: 22575/18
In the matter between:
RACHEL MAPHEFO RABORIFE				                 APPLICANT

And

WILLIAM PALEDI			            FIRST RESPONDENT
EKURHULENI METROPOLITAN MUNICIPALITY                 SECOND RESPONDENT

JUDGMENT

MOGALE, AJ:
INTRODUCTION 
1.	This is the application in terms of Prevention of Illegal Eviction from and unlawful Occupation of Land Act, Act 19 of 1998 (‘the PIE Act), the applicant applies for the eviction of the first respondent from the property being ERF 19784 Kwa Thema, Extension 7, Ekurhuleni Metropolitan Municipality (‘the property’), together with ancillary relief, Ekurhuleni Metropolitan Municipality was joined as the second respondent.

2.	The applicant applies for the condonation for the late filing of the Replying Affidavit in response to the first Respondent’s Answering Affidavit. The application for condonation is not opposed.

3.	This matter concerns three important issues: The first issue whether the applicant proves ownership as alleged. The second issue is to determine whether the first respondent is the unlawful occupier and the applicability of the PIE Act. If the applicant is to be found to be the owner and the first respondent unlawful occupier, then the third inquiry is whether the procedural requirements of the PIE Act have been complied with regarding alternative accommodation and whether it is just and equitable as prescribed in the PIE Act to order an eviction.

RELEVANT FACTS

4.	The applicant in her founding affidavit alleges that on the 7th October 2015 the property being ERF 19784 Kwa Thema, Extension 7, Ekurhuleni Metropolitan Municipality was sold to her deceased husband Sidney Israel Raborife for an amount of R130 000, 00. The applicant demanded control and access of the said property from the first respondent through a Letter of demand on 20th March 2018 without any success subsequent to the failure by the first respondent to meet the demand, the applicant embarked on the current application. The property is currently registered in the applicant’s name Rachel Maphefo Raborife. The first respondent is presently occupying the property in question unlawfully and is alleging that the said property was donated to him by Elizabeth Maupane Maleka, the original owner of the property in question. The first respondent cannot submit any Deed of Donation to prove the claim or any Supporting Affidavit by Elizabeth Maleka that she donated the property.

5.	The respondent denied that the applicant is the lawful owner and plea that the property was donated to the first respondent by Elizabeth Maleka. The first respondent alleges that he was homeless and in early 1993, Elizabeth Maleka offered her a place to stay. The property consisted of a vacant stand and an outside toilet, the government builds an RDP house around 1997. On the 10th of December 1996, Elizabeth Maleka gave the property in question to the respondent together with the Original Title Deed. Responded build a house on the vacant land and made it a home for him and his family. He is presently 65years-old, a pensioner, and will be left homeless with his wife, children, and grandchildren if the eviction order is granted. He has been living on the property since 1993 and cannot afford a new property if the eviction order is granted.  

6.	On the 7th of October 2015 when the property was sold to the applicant, Elizabeth Maleka did not have the original Transfer Documents because they were with the respondent. Therefore, for the seller to obtain a duplicate Deed of Transfer she has to file an affidavit explaining the whereabouts of the deed of transfer in terms of Regulation 68(1) of Deeds Registries Act. Elizabeth Maleka in her affidavit mentioned that “she is unable to give circumstances under which the document was lost or destroyed, as she cannot trace any record of it.”

7.	The onus is on the applicant to establish the facts on which her case is based on her founding papers, which constitute and must contain both the pleadings and evidence. The applicant is required to do so at least in satisfaction of the general rule that the party who alleges must prove.

8.	The applicant reliance on the Supporting Affidavit by Elizabeth Maleka denying donating the property to the first respondent. It was submitted that the respondent failed to comply with section 2 of the Alienation of Land Act 68 of 1981 for the donation to be valid.

9.	The first issue to be determined by this court is the issue of ownership, if the applicant is found to be the lawful owner of the property and the respondent an unlawful occupier. It is a common cause that the respondent has an Original Deed of Transfer of the property and was given the same by Elizabeth Maleka in 1996. He also made an affidavit thereafter alleging that Elizabeth Maleka donated the property to him. When the property was sold to the applicant in 2015, Elizabeth Maleka made an affidavit that she lost the Original Deed of Transfer while being aware of the whereabouts of the original documents. 

10.	The 65 years old responded has been staying in the property for the past 27 years. He is presently a pensioner and has built a house on the vacant stand and made it a home for him and his family. Now the second issue this court has to deal with is whether the procedural requirements of the PIE Act have been complied with.
Section 4(7) of PIE Act provides that "if an unlawful occupier has occupied the land for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it believes 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 according to a mortgage, whether the land has been made available or can reasonably be made available by a municipality or other organ of the state or another landowner for the relocation of the unlawful occupier, including the rights and needs of the elderly, children, disabled persons and households headed by women.

11.	The municipality did not participate in these proceedings and did not place any facts before the court a quo regarding the availability of suitable alternative accommodation, this does not stop this court from having to consider this fact. A court cannot abdicate this important function simply because the municipality did not participate in the proceedings

12.	In Port Elizabeth Municipality v Various Occupiers (CCT 53/03) {2004} ZACC 7, 2005 (1) SA 217 (CC), 2004 (12) BCLR 1268 (CC) (1 October 2004) the court said the following: 
“The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PlE) was adopted with the manifest objective of…. ensuring that evictions, in future, took place in a manner consistent with the values of the new constitutional dispensation. Its provisions have to be interpreted against this background.”
13.	The application of PIE is not discretionary. Courts must consider PIE in eviction cases. PIE was enacted by Parliament to ensure fairness in and legitimacy of eviction proceedings and to set out factors to be taken into account by a court when considering the grant of an eviction order. Given that evictions naturally entail conflicting constitutional rights, these factors are of great assistance to courts in reaching constitutionally appropriate decisions.

14.	That the High Court authorized the eviction without having regard to the provisions of PIE is inexcusable. PIE is of great importance, given that there are still millions of people in our country without shelter or adequate housing and who are vulnerable to arbitrary evictions.

15.	The courts thus play a vital overseeing role in eviction proceedings. Section 26(3) of the Constitution provides that "no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances". This section is given substance by the provisions of the PIE Act and specifically section 4 thereof. The PIE Act directs courts to only order an eviction "if it believes that it is just and equitable to do so, after considering all the relevant circumstances" as contemplated in section 4(6) and (7) and section 6(1)." The Constitutional Court in Port Elizabeth Municipality Port Elizabeth Municipality v Various Occupiers emphasized that courts must take an active role in evaluating the merits of an application for eviction.

16.	 A court must therefore probe all the relevant circumstances in exercising the discretion whether it is just and equitable to evict. The Supreme Court of Appeal in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Another (SCA) (2012) ZASCA 116, 2012(6) SA 294 (SCA) referred to the two questions that must be considered by a court presiding over an application to evict.

17.	A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housing or achieve the gradual realization of the right of access to housing in terms of s 26(1) of the Constitution, is faced with two separate inquiries. First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevant factors. Under s 4(7) those factors include the availability of alternative land or accommodation. The weight to be attached to that factor must be assessed in the light of the property owner's protected rights under s 25 of the Constitution, and on the footing that a limitation of those rights in favor of the occupiers will ordinarily be limited in duration. Once the court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order it is obliged to grant that order.

18.	Before doing so, however, it must consider what justice and equity demands concerning the date of implementation of that order, and it must consider what conditions must be attached to that order. In that second inquiry, it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere. The order that it grants as a result of these two discrete inquiries is a single order. Accordingly, it cannot be granted until both inquiries have been undertaken and the conclusion reached that the grant of an eviction order, effective from a specified date, is just and equitable. Nor can the inquiry be concluded until the court is satisfied that it is in possession of all the information necessary to make both findings based on justice and equity.”

19.	It is common cause that the property was never transferred to the respondent even though he alleges that it was donated to him in 1996. It is also common cause that the Respondent has the Original Deeds of Transfer documents which he alleges that it was given to him by Elizabeth Maleka for almost 27 years. Elizabeth Maleka does not dispute that she gave the said documents to the respondent some years ago. It is further common cause that the respondent believed that the property belonged to him, as a result, he builds on that vacant stand to provide a home for himself and his family.

20.	The applicant bought the said property, being an open stand with a toilet for R130 000, the property has now been transferred to her name, then the question to be ascertained is whether she bought the property from the lawful owner or not.

21.	Elizabeth Maleka made two contradicting/ destructive affidavits and this court find her to be a dishonest witness. She failed to disclose to the applicant that the property she was purchasing, the respondent has been living in the said property and has already erected structures. She also failed to be honest by telling the applicant the truth regarding the Original Deeds of Transfer documents while knowing that the documents are in the respondent's possession. This court find that the Elizabeth Maleka lied under oath when making an affidavit to protect the money she received from the applicant.  

22.	In determining whether it is just and equitable to evict the respondent, this court has taken into account all the relevant facts including the period the respondent and his family had occupied the property, the structure erected and the issue of ownership.      

23.	The court finds that the respondent raised a valid defence to the applicant's claim and the applicant has failed to satisfy the requirements for an eviction order to be granted.

24.	ORDER
As a result, the following order is made:
24.1.	The application is dismissed with costs.

K MOGALE (Ms)
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG

Date of hearing: 26 October 2020
Date of judgment: 05 November 2020

APPEARANCES
For the Plaintiff:                 Adv MG Manaka
Instructed by:                     Andrew Lishivha Inc.

For the Defendant:            Adv Khan
Instructed by:                     ZAF Khan Attorneys