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Gundwna v Steko Development CC (A379/2008) [2010] ZAWCHC 365 (27 February 2010)

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JUDGMENT

VAN REENEN. J:

[1] This is an appeal from the magistrate of George who, after an application had been brought for the postponement of the proceedings before that Court, refursed it and proceeded to issue a writ of execution against the appellant.

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[2] The appellant is the owner of an immovable property situated in George known as erven 457 and 458 in the Thembatethu residential area in George.

[3] On my understanding of the papers, the properties have been developed and have been improved by the erection thereon of buildings, one a business which is being let out by the appellant and the other a residence consisting of five bedrooms. This residential property is being utilised predominantly as a "bed and breakfast" establishment.

[4] The appellant contracted a loan with Nedbank and offered the properties as security and accordingly a mortgage bond was registered over them in favour of Nedbank. The appellant fell into arrears and Nedbank during October 2003, issued a summons against the appellant in which it claimed an amount of R33 543,06. Judgment was duly obtained against the appellant during November 2003.

[5] Subsequent to that, a writ of execution was issued and the properties were sold in execution to the respondent on the 15^th August 2007. The respondent has since taken transfer of the properties.

[6] After the respondent had taken transfer, the appellant resisted vacating the properties. That prompted the respondent to bring an application for her eviction in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998. (the "PIE^- Act')

[7] The first application had to be aborted because it transpired that the respondent had not by then been registered as the owner of the properties. After having become the registered owner, another application was launched on the 23^rd April 2008. That was a double-barrelled application, the first part thereof was for directions in terms of section 4(2) of the PIE Act. The section 4(2) notice was served on an occupant of the properties on the 24^lh April and subsequently on the appellant herself.

[8] When the matter was called on the 27^,h May 2008 - the date on which the hearing was scheduled to take place -the respondent was represented by Mr Brand and the appellant appeared in person. The matter was then postponed to the 3^rd June 2008 and on that date Ms Smith appeared for the appellant and Mr Brand again for the respondent.

[9] On that date an application was made for the postponement of the eviction application itself and the reasons put forward were that certain documentation had to be procured from the legal aid attorneys who had. prior to that date, handled the affairs of the appellant. The magistrate, having heard argument, refused the application for a postponement and granted the application for the eviction of the appellant and on the same date, as far as I could ascertain, a writ of execution was issued. The writ of execution authorised the Sheriff to evict the appellant from the properties unless she left of own free will by the 1^st July 2008.

[10] The appeal before us is a sequel to the proceedings summarised above. The notice of appeal limits the grounds of appeal to two grounds; the first is that the appellant is not an unlawful occupier as defined in the PIE Act and it is alleged that the magistrate erred in that regard. The second ground is that the magistrate failed to have regard to the provisions of section 26(1) of the Constitution which provides that citizens have a right of access to adequate housing.

[11] Mr Benade. who appeared for the appellant, was to a large extent, hackneyed by the narrow terms of the notice of appeal. It would appear that the definition of an unlawful occupier in the Act is rather restricted. It is to the effect that it is a person who occupies land without the express or tacit consent of the owner or person in charge thereof or without any other right in law to occupy such land.

[12] It would appear that once the sate in execution had taken place and the properties were transferred into the name of the respondent, it superseded the appellant as the registered owner and therefore acquired the bundle of rights which go to make up ownership, one whereof is the use of the property. There is not even an iota of evidence on the papers before us that the appellant, after transfer had been effected, occupied the buildings on the properties pursuant to any rights procured from the respondent. As a matter of fact, the conduct of the respondent in having sought an earlier abortive eviction of the appellant, appears to militate against the existence of such a right.

[13] Accordingly, the conclusion appears to be inescapable that the appellant in fact is an unlawful occupier in the event of the provisions of the PIE Act finding application.

[14] The second ground, namely that the provisions of section 26 of the Constitution have somehow not been given effect to, in my view, does not have merit either.

[15] It must be at the outset be said that section 26 does not provide a right of ownership but merely a right to have access to housing. Not a specific house, but housing adequate for the needs of the person under consideration. One is driven to the inevitable conclusion that what the Legislature had in mind was to redress some of the inequities of the past which deprived people from procuring normal rights of occupation to property and to counter the indignity brought about thereby.

[16] For that reason the conclusion that the Legislature had in mind to preserve the rights of people to their places of abode is quite obvious. I, therefore, find myself in agreement with the views articulated by Harms. JA in the case of Ndlovu v Nqcobo; Bekker & Another v Jika 2003(1) SA 113 (SCA) at 124 where the Court came to the conclusion - and I paraphrase - that the PIE Act does not apply to business premises.

[17] if that conclusion is correct, the appellant could be evicted only in terms of the common law. To the extent that the Constitutional Court in the case of Jaftha v Schoeman & Others; Van Rooven v Stoltz & Others 2005(1) BCLR 78 (CC) decided that to obviate a violation of the provisions of section 26 of the Constitution in the execution process provided for in the Magistrate's Court Act, there has to be intervention on the part of the Court to determine whether in the circumstances of a particular case there is a disproportionality between the interests of the judgment creditor and the judgment debtor if the execution process is given effect to, such intervention has taken place in the instant case.

[18] Even if the instant matter had to be considered in terms of requirements of the common law, as modified by the Constitutional Court, then it would appear to me that this is not a case which falls fairly and squarely within the factual situation which was considered by the Court in Schoeman v Jaftha. In that case, the learned Justice, who wrote for the Full Court, specifically made it quite clear at page 97, paragraph 58 that in circumstances where the judgment debtor willingly put his or her property up as security of a debt, a sale in execution should ordinarily be permitted, in the absence of some abuse of the court process, an aspect that has not even been contended for in this case.

[19] To summarise, it would then appear that there is not any merit in the ground of appeal based thereon that the provisions of section 26 of the Constitution have been violated by the issuing by the magistrate of an order of eviction.

[20] In the circumstances it would appear that the appeal has to be dismissed and the judgment of the Court a quo confirmed.

[21] As regards the costs of the appeal, Mr Brand, who appears for the respondent, has contended for costs in favour of the respondent, and if not all such costs, then at least the wasted costs incurred by the respondent due to the fact that the papers had not been in order when the matter last served before this Court.

[22] It would appear in the exercise of our discretion, that despite the fact that the respondent has been successful in opposing this appeal, there are considerations which weigh in favour of deviating from the usual rule, which is that costs should follow the event, as regards the costs of the appeal. It would appear that the appellant, judged from the record, has made use of the services of a number of attorneys, and that her interests were not fully served by all of them — I am not saying everyone of them - and that, to a large extent, the dilemma in which she finds herself might have been caused by factors outside of her control.

[23] In the circumstances I accordingly feel that it would be just to make no order as regards the costs of this appeal, with the result that each of the parties would have to bear their own costs.

[24] As far as the writ issued by the Court a quo is concerned, I am of the view that the time-limit stipulated in the writ of execution issued by the Court on the 3^rd June 2008, namely 1 July 2008, should be substituted with a date approximately two months hence, namely, the 30^lh April 2009.

VAN REENEN,J

YEKISO. J: I agree.

YEKISO. J