Umnungwane Trading and Projects (Pty) Ltd (Registration number: 2017/511533/07) v Polongwane and Others (10429/19) [2022] ZAGPJHC 232 (13 April 2022)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case No: 2019/10429

1. REPORTABLE: YES/ NO

2. OF INTEREST TO OTHER JUDGES:YES/NO

3. REVISED.

13/04/2022 ………………………...

DATE SIGNATURE

In the matter between:

UMNUNGWANE TRADING AND PROJECTS (PTY) LTD Applicant (REGISTRATION NUMBER: 2017/511533/07)

and

POLONGWANE, DUDU First Respondent

MBULAWA, NTOMBIFUTHI PERSEVERANCE Second Respondent

MPHUMLA, MORLEY (Deceased) Third Respondent

MBATHA, NTOMBIFUTHI ELIZABETH Fourth Respondent

MADI, MBONGENI Z Fifth Respondent

KHOZA, B Sixth Respondent

AWIKI, PETIT Seventh Respondent

MWANZA, ALBERT Eighth Respondent

MAFOTA, MONIQUE Ninth Respondent

THE OCCUPIERS OF UNIT 418 Tenth Respondent

THE FURTHER UNLAWFUL OCCUPIERS OF

ROCKVIEW HEIGHTS Eleventh Respondent

CITY OF JOHANNESBURG Twelfth Respondent

JUDGMENT

TLHOTLHALEMAJE, AJ

Introduction and background:

1. The applicant, a duly registered company, approached the Court in terms of the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act¹, ("the PIE Act"), to seek an order evicting the First – Eleventh Respondents (‘The Occupiers’) from residential premises situated in Yeoville, Johannesburg (The property)².

2. The Occupiers were initially represented by Precious Muleya INC Attorneys. They together with Adv. Mpho Sebopa, withdrew after having filed the answering affidavit and the written heads of argument. The Occupiers at these proceedings were self-represented, and upon an enquiry from the Court, they had submitted that they stood by the papers and heads of argument filed on their behalf. The Court was further informed that third respondent is since deceased.

3. The applicant is the registered owner of the immovable property from which it seeks to evict the Occupiers. In their answering affidavit, the Occupiers had challenged the applicant’s ownership of the property. Nothing however turned on the Occupiers’ challenge, in the light of the applicant having produced and referred the Court to its copy of the Title Deed, which evinced the transfer of the property into its name³.

4. The Occupiers occupy various units in the property, and were tenants of the applicant's predecessor in title. The applicant therefore relies on the doctrine of huur gaat voor koopt in respect of any tenancies that the Occupiers may have previously enjoyed. To that end, the applicant contends that as of 7 May 2018, it took transfer of the property and thus became the Occupiers’ lessor.

5. The applicant’s case is that since it acquired ownership of the property, and despite its attempts to regularise tenancy, the Occupiers have not only refused to pay rent, but have also failed to bring their arears related to other services up to date. The Occupiers conceded in the answering affidavit that none of them have paid rentals or signed lease agreements with the applicant. Part of their reasoning in that regard was that they intended to bring an application to dispute the applicant’s ownership. This reasoning is nonetheless flawed in the light of the conclusions reached in this judgment that there is no basis to challenge the transfer and the applicant’s ownership of the property.

6. Upon the applicant assuming ownership of the property, a letter of demand was addressed to the some of the Occupiers by the applicant’s erstwhile attorneys of record on 28 June 2018, informing them of the cancellation of any arrangement or lease agreement concluded in the past with immediate effect, and demanding that they vacate the premises by 14 July 2018. In the same correspondence, the Occupiers were advised that an eviction order would be sought should they not heed the demand. They were nonetheless invited to contact the applicant’s offices to arrange a meeting to discuss and arrange a new lease agreement, failing which summons for all outstanding amounts owed to it will be issued, and that an eviction process would be initiated.

7. The invitation was ignored and the applicant appears not to have taken any further steps until on 3 January 2019, when its current attorneys of record sent various correspondence to the Occupiers including on 5 February 2019, advising them of the termination of their leases, and further demanding that they should vacate the premises. The Occupiers nonetheless refused to vacate the property.

8. In these proceedings, the Occupiers readily conceded that they were occupying the property unlawfully. Their defence in an answering affidavit deposed to by the first respondent (Ms Polongwane) on their behalf was that the eviction will render them homeless, as they lacked sufficient means to source alternative accommodation. Some of the Occupier’s personal circumstances were set out in the answering affidavit and accompanied by their confirmatory affidavits.

9. The upshot of the Occupiers’ contentions is that they have occupied the property over prolonged periods, some with 15 years’ occupation. They contend that they are vulnerable, poverty-stricken and unemployed, with some being elderly and disabled, and many of them with minor children. They further contend that they survived through the State social grants and minimal income obtained from the informal waste recycling business.

10. The Occupiers further complained about the state of the property in question, which it was said was a massive dilapidated building without basic municipal services, and also surrounded by other shady, dilapidated and abandoned buildings. They further contend that since some of them had occupied the property over 15 years, they considered it as their only shelter, home and a place of safety, and that they were not aware of any other alternative accommodation that was affordable or readily accessible, unless assistance was granted by the Twelfth Respondent (COJ).

11. To the extent that the Occupiers are in unlawful occupation, and further to extent that applicant had demonstrated lawful ownership of the property, in the absence of any valid defence to the applicant’s claim to the property, the central issue that remains for determination is whether an order for eviction ought to be granted.

The legal framework and evaluation:

12. Section 4 of the PIE Act⁴ contains both procedural and substantive provisions. The relevant sub-sections thereof were summarised in Dwele v Phalatse and Others⁵ as follows;

“Essentially there are two inquiries mandated by these sections. In terms of section 4(7) of the Pie Act, an eviction order may only be granted if it is just and equitable to do so, determined after the court has had regard to all the relevant circumstances, including the availability of land for the relocation of the occupiers and the rights and needs of the elderly, children, disabled persons, and households headed by women. If the requirements of s 4 are satisfied and no valid defence to an eviction order has been raised, a court ‘must’, in terms of s 4(8) grant an eviction order. When granting such an order the court must, in terms of s 4(8)(a) of the PIE Act, determine a just and equitable date on which the unlawful occupier or occupiers must vacate the premises (the next inquiry). The court is empowered in terms of s 4(12) to attach reasonable conditions to an eviction order. The date that it determines must be one that is just and equitable to all parties.”[Authorities omitted]

13. The duties of the Court under the above provisions have since been clarified by the Constitutional Court in Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another⁶ as follows;

“[47] It deserves to be emphasised that the duty that rests on the court under section 26(3) of the Constitution and section 4 of PIE goes beyond the consideration of the lawfulness of the occupation. It is a consideration of justice and equity in which the court is required and expected to take an active role. In order to perform its duty properly the court needs to have all the necessary information. The obligation to provide the relevant information is first and foremost on the parties to the proceedings. As officers of the court, attorneys and advocates must furnish the court with all relevant information that is in their possession in order for the court to properly interrogate the justice and equity of ordering an eviction. . .”

[48] The court will grant an eviction order only where: (a) it has all the information about the occupiers to enable it to decide whether the eviction is just and equitable; and (b) the court is satisfied that the eviction is just and equitable having regard to the information in (a). The two requirements are inextricable, interlinked and essential. An eviction order granted in the absence of either one of these two requirements will be arbitrary. I reiterate that the enquiry has nothing to do with the unlawfulness of occupation. It assumes and is only due when the occupation is unlawful.” (Citations omitted)

The obligations of the Twelfth Respondent:

14. The Twelfth Respondent (COJ), was joined in these proceedings as the municipality with jurisdiction and which has the general constitutional and legislative obligation to provide Temporary Emergency Accommodation ("TEA") to the evicted unlawful occupiers, and only to the extent that they are rendered homeless or will be rendered homeless as a result of the eviction. Thus, the risk of homelessness triggers the duty of the COJ and obliges it within its available resources, to alleviate such homelessness, or to at least, provide TEA to those being evicted.

15. On 15 May 2019 and 30 July 2019, Court orders were issued by Maier – Frawley AJ and Segel AJ respectively, which directed the COJ to conduct an assessment at the property and to deliver to the Court, a report confirmed on affidavit, setting out whether the Occupiers qualified for the provision of TEA, the kind and structure of the TEA that may be made available to the Occupiers, when such TEA may be made available, why the particular location and form of accommodation has been selected, and the steps to be taken by COJ to secure the TEA, and to relocate the Occupiers thereto.

16. In line with the Court Orders, the COJ had conducted an audit and an assessment on 9 March 2021 in order to ascertain the relevant and personal circumstances of the Occupiers as envisaged in section 4(7) of the PIE. This had included a site visit and an interview with all the Occupiers who are party to these proceedings. The report as confirmed in the founding affidavit of Mr Victor Rambau, the COJ’s then Acting Executive Director: Housing, is detailed and provided all the personal information and circumstances of the individual Occupiers after they were interviewed.

17. The COJ is guided by the criterion as set out in Chapter 12 of the Housing Code, 2009, when considering the provision of TEA to evictees. Thus where appropriate and justified, TEA will be provided to affected persons in the following categories:

1. The households monthly income should be below R 3, 500.00;

2. Minor headed households;

3. The Elderly persons;

4. Persons without dependants;

5. Persons who do not own any immovable property in the Republic;

6. Persons who have not previously received assistance;

7. Illegal foreigners and /or prohibited persons as defined by the Immigration Act (No. 13 of 2002) will be attended to but dealt with in consultation with the Department of Home Affairs.

18. It is not necessary to set out the personal circumstances of each individual Occupier as outlined in detail in the report. Of significance however is that the COJ found that all of the Occupiers had a household income that exceeded the R3 500.00 threshold for the provision of TEA, and thus could not qualify. The COJ had accordingly concluded the Occupiers were in a position to source alternative accommodation based on the total income of individual households in the property.

19. That conclusion was based following a headcount of the cited Occupiers in their units, minor children, the elderly and disabled. It had regard to those that were gainfully and formally employed; and those that were dependent on informal waste recycling business, State grants, and other means of financial support and from family members. The report nonetheless pointed out that some of the Occupiers either refused or were reluctant to disclose relevant and personal information in regards to their personal circumstances.

20. Equally significant with the findings was that it was established that some of the Occupiers were illegal immigrants, and the COJ’s obligations in regards to these individuals was a matter of consultation between itself and the Department of Home Affairs. This was due to the reason that the City could not accommodate individuals who were in breach of the provisions of the Immigration Act⁷ in its TEAs indefinitely, without engaging the process of deporting them as required by that Act.

21. Given the detailed nature of the COJ’s report, and further in the absence of any other evidence to meaningfully challenge its findings as supported in Rambau’s affidavit, I have difficulties in appreciating the contentions made on behalf of the Occupiers in the heads of argument, that there is no indication either in the form of affidavits or by way of reports, that their personal circumstance were given proper consideration. Even if that was the case, and to the extent that the Occupiers were legally represented at least until the replying affidavit and the heads of argument were filed, nothing prevented them from filing a supplementary answering, in order to meaningfully refute the contents of the report as accompanied by Rambau’s affidavit.

22. Of course ordinarily, the report of the COJ ought not to be taken at face value, and should equally be scrutinised for objectivity, since its role is clearly for the assistance of the Court⁸. On the whole however, I am satisfied that the report meaningfully and in good faith, engaged with the actual situation of the Occupiers, and has set out all their relevant personal information and circumstances, to enable the Court to make a determination whether they will be rendered homeless by an eviction order; whether they qualified for TEA, and whether an eviction order would be just and equitable.

23. It should also be accepted that the COJ’s constitutional obligation to provide alternative accommodation to evictees who are rendered homeless, can only be fulfilled within the means and resources at its disposal. In its report, it had submitted that currently, it did not even have available TEA for the occupiers in all its Regions including Region F, which is the region in which the Occupiers in this case reside. It was pointed out that no less that 11 TEA sites that were available were all full to capacity, and had reached a state of being ‘ungovernable’. These TEAs were spread throughout regions in the city with a long waiting lists of other occupiers who were evicted elsewhere within the COJ’s jurisdiction. The COJ further cited various predicaments it was faced with in providing more TEAs to evictees, including budgetary constraints, and the protracted process of acquiring more properties in order to establish more TEAs.

24. Again, in the absence of any meaningful challenge to the report of the COJ in regards to the constraints it is faced with and its inability to provide TEA to the Occupiers, the Court is equally constraint to reject the conclusions of COJ in this regard. Thus to the extent that it has been concluded that the Occupiers do not qualify for TEA even if these facilities were available based on their personal circumstances and other considerations, the question remains whether the eviction will lead the Occupiers to being rendered homeless.

Alleged homelessness:

25. It is trite that at a general level, it will not be just and equitable for a court to grant an eviction order where the effect of such an order would render the occupiers of the property homeless⁹. The lawful owner of the property must discharge the onus of proof in eviction proceedings, to satisfy the court that the eviction would be just and equitable. In the same vein, to the extent that the unlawful occupiers alleged that an eviction order would render them homeless without alternative accommodation, the onus in that regard is placed on them¹⁰. They are obliged to demonstrate that despite attempts on their part, they have no alternative accommodation or are unable to secure same. The mere fact that TEAs are ordinarily and by law available, or ought to be made available, does not absolve the occupiers from making attempts on their own to secure alternative accommodation.

26. Central to the occupiers’ allegations in regards to being rendered homeless was that they all cannot afford to pay any rent elsewhere. They conceded that at some stage during their occupancy, they used to pay rental to the previous owners. They had further submitted that they are willing to accept the alternative accommodation provided by the COJ, as long as it is nearby the vicinity of the property because that is their ‘place of business’.

27. When regard is had to the applicant’s replying affidavit and the contents of the COJ’s assessment report, it is apparent that the Occupiers face several difficulties in supporting their contentions that they will be rendered homeless as a result of the eviction. These difficulties are summarised as follows;

1. Inasmuch as it is accepted that the Occupiers’ occupation is unlawful and that they had occupied the property for more than six months, at the very least, they knew as far back as June 2018, that the applicant sought to regularise their tenancy and when all else failed, to seek an order of eviction. They had nonetheless steadfastly refused to engage the applicant in any manner in that regard.

2. It was further not in dispute that at some point, the tenancy of the Occupiers was lawful and regularised. It appears however that they stopped paying rentals or for services just prior to the applicant having taken over the transfer of the property. Inasmuch as the property might be in a dilapidated state without basic services, of course this state of affairs will continue, for as long as the occupants refuse to or are unable to make payments towards rentals or basic services. Be that as it may, the mere fact that the property is in a dilapidated state is not a reason for not considering whether an order of eviction is just and equitable. In fact, that state of affairs gives more reason why such an order should be favourably considered, especially if the condition of the property is such that it is unsuitable for habitation.

3. Of crucial importance however, and a factor that ought to dispel the Occupiers’ contentions that they are poverty stricken and thus unable to pay rentals, is that in this hearing, their own representative had for the first time, submitted that they were willing to pay rent in the range of between R3000.00 – R3500.00. It was further submitted that the reason payments were not made in the first instance was that they did not know who to pay to in the light of their contention that ownership of the property was in dispute.

4. It has already been concluded that the dispute pertaining to the ownership of the property is baseless, and indeed the applicant is its rightful owner. The Occupiers’ contention therefore that they did not know to whom payments for rental or services were to be made is a complete red-herring.

5. Furthermore, since they are willing and able to pay, there can be no substance to their principal contention that they cannot afford to pay for alternative accommodation, which in any event, little detail was provided in the answering affidavit in regards to whether any attempts were made to seek such accommodation.

6. On the contrary, the Occupiers’ revelations in fact fortifies the COJ report and its conclusions that indeed the Occupiers were in a position to find alternative accommodation on their own, and had merely pleaded indigence and homelessness, in order to benefit from the provisions of a TEA, since it was an available recourse well established by the courts.

7. To the extent that no case was made to demonstrate that the Occupiers will be rendered homeless by an eviction order, the COJ’s constitutional obligation to provide TEA to the unlawful Occupiers could not in any event have been triggered. It is therefore correct for the COJ to have concluded that they could not have qualified for TEA, and even if they did, to accommodate them given their own personal circumstances would have amounted to an abuse of the system, which is essentially meant for truly deserving evictees.

8. To the extent that the Occupiers had disclosed that they were willing to make payments, it was also correctly pointed out on behalf of the applicant that what the Occupiers are effectively engaged in, is akin to a ‘rent boycott’. In such circumstances, to the extent that they had complained about the living conditions in the property, and since they are indeed in a position to pay rent but are unwilling to do so, the applicant was equally correct in pointing out that this was more the reason to either vacate the property and find alternative accommodation, or where they sought an improvement in their living conditions, to pay their rentals. To that end, it is clear that the applicant has discharged its onus entitling it to a conclusion that an eviction order would be just and equitable, whilst at the same time, the Occupiers had failed to discharge the onus placed on them that an eviction order will render them homeless.

28. A worrying feature in this case is that the Occupiers have demonstrated a lack of bona fides in opposing this application. They failed, or deliberately omitted to place all the relevant facts pertaining to their personal information and circumstances before the Court, and as indicated in the report, some of them even refused to fully cooperate when an assessment was done. Any information they had provided in the answering affidavit was wholly and deliberately insufficient for the purposes of establishing any harm that would be suffered by them in the event of their eviction from the property. Only in these proceedings did they reveal the extent of their personal circumstances, which clearly demonstrates that any allegations of homelessness or poverty was indeed a mere ruse, with the objectives of either preventing their eviction or obtaining the benefits of a TEA. At worst, they sought to mislead this Court, which conduct ought to be frowned upon.

Conclusions:

29. In the end, the Court is satisfied that based on all the information about the Occupiers placed before it, the requirements of section 4 of the PIE Act have been satisfied, and the Occupiers have not raised any sustainable or valid defence to an eviction order. It follows that upon a consideration of what is just and equitable, an eviction order in terms of section 4(8) of the PIE Act ought to be granted.

30. Further in line with the approaches set out in both Dwele v Phalatse and Others¹¹ and City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others¹², it is accepted that when granting an eviction order, the Court must in terms of section 4(8)(a) of the PIE Act, determine a just and equitable date, on which the Occupiers must vacate the premises, and that further in terms of section 4(12) of the PIE Act, the Court may attach reasonable conditions to an eviction order. This in my view is part of an exercise of a balancing act, between the interests of the applicant as lawful owner of the property, and those of the Occupiers, in the light of the protections enjoyed by the disputing parties under sections 25 and 26 of the Constitution¹³.

31. In determining what a just and equitable date ought to be, the Court has taken account that despite the Occupiers having occupied the property for over prolonged periods, the applicant nonetheless has since assumed ownership of the property. As at the hearing of this matter, it had been four years that the Occupiers had not only refused to pay rental (for unjustifiable reasons), but had also refused to vacate the property. This is in circumstances where they had conceded that they were in a position to pay rent, and thus, are further in a position where they were able to secure alternative accommodation.

32. To the extent that that Occupiers have indicated that they are willing and are in a position to pay rent towards their occupation, this factor and other considerations therefore dictate that a just and equitable order should afford the Occupiers a period within which to agree on terms with the applicant related to the regularisation of their tenancy, and where attempts fail in that regard, an order of eviction should take effect. It is along these lines that I propose to make the following order;

Order:

1. The First to Eleventh Respondents (Occupiers) and the applicant, are ordered to within one week of receipt of a copy of this judgment and order, to enter into discussions with a view of regularising the tenancy of the First to Eleventh Respondent in the property situate at:

Flat 108, 119,213, 220, 310, 316, 317, 403, 4158 8418 Rockview Heights, 20 Percy Road, Yeoville Johannesburg.

2. Should the parties in accordance with order (1) be unable to reach any form of agreement in regards to the above, the First to Eleventh Respondents shall be evicted from the said property, effective from 30 June 2022.

3. In the event that the First to Eleventh Respondents do not vacate the property on 30 June 2022, the Sheriff of the Court or his lawfully appointed Deputy is authorised and directed to evict the First to Eleventh Respondents from the property.

4. The names of any Respondents established by the Sheriff or his lawfully appointed Deputy shall incorporated herein as the Thirteenth (and further) Respondents.

5. The First to Eleventh Respondents are to pay the costs of this application, including the costs of the applications in terms of Part A hereof and in terms of Section 4(2) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, but only to the extent that orders 2, 3 and 4 as above are given effect to.

_______________________________

Edwin Tlhotlhalemaje

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 13 April 2022.

Heard on : 24 & 25 January 2022 (Via Microsoft Teams)

Delivered: 13 April 2022

Appearances:

For the Applicant: Adv. L. Peter, instructed by Vermaak and Partners INC.

For the 1^st & 11^th Respondents: In Person.

(Founding affidavit filed and presented by Precious Muleya INC Attorneys (Since withdrew);

Heads of Argument drawn by Adv. Mpho Sebopa) (Since withdrew)

For the 12^th Respondent: Mr S. Singende of Kunene Stanford Singende Attorneys.