In the matter between:

and

JUDGMENT

This is an appeal against the judgment of Magistrate Ralarala handed down on 22 March 2011 in terms whereof the appellant was evicted from the premises situated at 43 New Frost Crescent, Table View, with effect from 31 May 2011. Although this appeal suffers from a number of procedural defects, the legal representatives for the respondent wisely decided not to pursue these issues, but rather to get on with the merits of the matter.

It is common cause that the rental was not paid and that as at 1 February 2011, Yoctopath was in arrears with the rental in an amount of approximately R21 000,00. Ms Brown accordingly sent a notice to both Yoctopath and the appellant, informing them that she intends cancelling the lease and in fact subsequently she did cancel the lease. It is common cause that the appellant is still in occupation of the premises and that no rental is being paid.

Secondly, it is contended by the appellant that the magistrate erred in finding that there was no lease agreement in place. Once again this ground of appeal has no factual basis. Although there was a dispute as to the exact amount that was outstanding in respect of the arrear rentals, this is irrelevant for purposes of deciding this matter.   It is common cause that the rental was in arrears and still remains in arrears and this was not disputed by the appellant. It is common cause that the respondent was entitled in terms of clause 15 of the lease agreement, to cancel it and that in fact she did. The magistrate's finding, therefore, that there was no lease in place at the time, was correct.

The next ground of appeal is that the appellant paid all rentals due for the year in advance to Yoctopath. I have mentioned this defence hereinabove and although one has a lot of sympathy with the appellant, if in fact he had paid the money over to Yoctopath and they had failed to pay the money over to the respondent, this will at best give the appellant a claim against Yoctopath. It cannot constitute a defence against the respondent in her claim for eviction. If Yoctopath, who is the lessee, does not pay the money over to the respondent, she's entitled to cancel the lease. It is common cause that the rentals were not paid over to her and that she was accordingly entitled to do so.

Furthermore, the appellant contends that the application would lead to homelessness. It is trite that the prevention of illegal eviction from Unlawful Occupation of Land Act 19 of 1989 does not seek to prevent homelessness, but rather the arbitrary deprivation of property.   The harsh reality is that the scheme of the PIE Act itself envisages that at times it will lead to homelessness. That in itself is, therefore, not a defence.

The only other ground of appeal which warrants mentioning is that the appellant contends that his constitutional rights have been violated by virtue of the six month clause in the PIE Act. One can only assume that the appellant is referring to the provisions of section 4(7) of the PIE Act as opposed to the provisions of section 4(6), which enjoins a court to consider more factors in deciding whether to grant an eviction order when the occupant has occupied the land for more than six months than in the case where it has been occupied for less than six months. The two provisions provide:

From the papers it appears, self-evidently, that it is section 4(6) which will have application to the present case, as the respondent makes the undisputed statement in her founding affidavit that the appellant took occupation on 1 September

NDITA, J

It is so ordered:
TRAVERSO, DJP