Authored By: Bokang Mofokeng
Case title & Citation:
Resnick v Government of the Republic of South Africa and Another (A536/2011) [2012] ZAWCHC 395; 2014 (2) SA 337 (WCC) (12 October 2012)
Court Name & Bench:
The High Court of South Africa (Western Cape High Court, Cape town)
Judges: Davis, J & Fortuin, J
Date of Judgement:
12 October 2012
Parties Involved:
Tersia Ronel Resnick- Appellant
The Government of the republic of South Africa- 1st Respondent
The Minister of Public Works- 2nd Respondent
The 1st respondent is the owner if a property that was originally designed to be used as a Military base, which was ceased in 1991. The appellant then moved into the dwelling and created A lease agreement with the 1st respondent. As time went on the appellant repeatedly failed to honour her obligation (rent) in terms of the lease agreement. After signing agreements that acknowledged the debt and respective dates when they should be paid, the appellant failed to honour said agreements. Resulting in the respondent applying to the courts to have the appellant declared an illegal occupant and evicted.
Facts of the Case:
The specific property that is applicable to this case was originally utilised by first respondent as a military base. The property was no longer used as a Military Base from 1991. During December 1999, the appellant, apparently unilaterally, moved into a dwelling on the property with her two children without any consent to so do. The appellant then contacted the first respondent of their occupancy on the dwelling and their intent to enter into a lease agreement.
In May 2000, the appellant and the first respondent entered into a written lease agreement, in terms of which the appellant leased the dwelling situated on a portion 15 of the property for residential purposes on a month-to-month basis. The terms of the agreement concluded that the appellant would pay a rental sum of R800 per month, due on or before the first day of each month. As time passed the appellant fell into rental arrears.
On 27 September 2002 the appellant was served with the first notice, notifying her of the total rental amount due of R6 800,00. The appellant then agreed to the notice stating that she would settle the amount due within 14 days. In addition, failing to pay the amount due within the stipulated time, the lease agreement would be terminated going forward.
On 31 January 2003, the appellant was served with and signed an acknowledgement of debt, which referred to her indebtedness to the second respondent for arrear rental in the amount of R7 520,OO. This is the second time the appellant fell into arrears. This prompted the appellant to give notice, referred to as the second notice, that she owed the Department arrear rental, which had now increased to the amount of R16 160,20.
The appellant was provided with the opportunity to settle the rental arrears within 30 days of the delivery of said notice. Failure to comply would institute the being of proceedings to begin recovery. The second respondent further indicated its intention to terminate the lease agreement, therefore requiring the appellant to vacate the property by 30 November 2005 On 15 December 2005, a further acknowledgement of debt was signed. This agreement is significant to this dispute. To the extent that it is relevant, it is a document which was signed by both parties, including the appellant, in which the appellant agrees and undertakes to settle her indebtedness in terms of a procedure set in clause 1 thereof. In clause 3 she agreed to the following: “Should I in any way fail to honour my obligations hereunder, the Department of Public Works may proceed with legal action to recover the full outstanding amount, in which event I will be liable for any cost incurred. A further acknowledgement of the Department shall be entitled to secure my eviction on the premises I presently occupy in the event of my default without any further notice to me. It being understood that the contents of this document shall not be construed as a waiver, novation or abandonment of the Department’s rights arising from my original breach of the lease agreement concluded on 24 May 2000.”This represented an acknowledgement that, whatever occurred, the respondent had reserved its rights in terms of the initial decision to cancel the lease agreement contract.
On the 20th of April 2006, the sherif served the appellant with the third notice, informing her that she was an unlawful occupant of the property as her right to occupy the property had been terminated therefore instructing her to vacate the premises by no later than 30 April 2006. The appellant continued to occupy the property. It was later argued that there was a change in the legal arrangement between the appellant and respondent as the 2005 acknowledgment of debt had tacitly been cancelled and the initial lease resurrected.
For another three years nothing happened as the appellant continued to occupy the property. The appellant was then served with a third notice informing her that she is an unlawful occupant of the property, the notice further states that the lease agreement had been terminated by virtue of the third notice. Resulting in the appellant being demanded to vacate the property by 30 March 2009. The appellant was further informed of debt amount of R44 742,57 for a loss of rental as a result of unlawful occupation. On 17 March 2009 the appellant requested that the 1st respondent reinstate the lease agreement. This request was denied, and the appellant was requested to vacate the premises again. The court later concluded that the acknowledgment of debt agreement does not conclude to a tacit agreement between the two parties, therefore considering the appellant an unlawful occupier for the purposes of the Prevention of Illegal Eviction from Unlawful Occupants of Land act 19 (PIE).
In court the appellant argued that part of the main reason she continues to occupy the property is that she is divorced woman, occupying the property with her two children aged 20 and 16 respectively, further stating that her son would only matriculate in 2013, meaning moving the residence far away from the school (Camps Bay High) would only create more difficulties, expenses and destabilize the environment for her. The appellant further states that even though she receives R1 000 per main in maintenance from her former spouse, she still struggles to make ends meet. She pointed out the fact that she has taken the initiative of growing her own vegetables to ensure that the little she receives stretches as far as possible. In addition, this comes with her difficulties of stress and health.
The court pointed out a key factor being that the property was never intended to be used for residential purposes and now has demand for a new purpose being used as an equestrian centre by the South African Police service which would in turn facilitate crime control within the area. This fact would then include the aspect of interests of the public. This matter has gone over a period of 13 years. Therefore, leading to the eviction order was granted.
Issues Raised & Arguments of the Parties:
The main issue raised by the appellant is that she is a single mother, that has two children ages 16 and 20 respectively. Furthermore, the appellant is struggling to make ends meet besides her receiving R1 000 monthly in maintenance payments from her previous spouse. The point behind raising bring attention to the fact that she has children is that her youngest son was still in high school and had three years left until he could matriculate. The appellant claimed that moving to another dwelling would increase transport costs (which she cannot afford) and destabilise the living environment.
The second argument raised by the appellant argued is that the debt acknowledgement agreements she signed would count as a tacit agreement, therefore tacitly renewing her lease agreement. This was later reviewed by the court, and it was confirmed that the acknowledgment of debt agreement was designed to serve the purpose of proof of the indebted amount and to get a pledge of repayment, nothing else.
The main legal questions that were raised by the court is as follows:
- Is the occupant of the property an unlawful occupant?
- Has the unlawful occupant occupied the property in question for less than six months from when the legal proceedings were initiated?
- If so, is it just and equitable to grant the eviction order, considering all relevant factors (e.g. female led household, children, rights and needs)?
Judgement:
The relevant legislation that applies to this case is the Prevention of Illegal Eviction and Unlawful Occupation Act 1998 (PIE). Section 4 of the PIE provides insight into dealing with eviction of unlawful occupiers of land sought by the owner or person in charge of the land. The PIE has set out a two-fold enquiry when conducting a legal eviction. The first is about determining whether the occupant (appellant) is declared as an unlawful occupier. The second enquiry is that, after considering all relevant factors/circumstances, is it just and equitable to grant an eviction order.
The judge (Davis, J) proceeded to read the definition of an unlawful occupier as per the PIE, which is as follows: “A person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act 1997..”. A case was referenced to provide more insight towards the definition of the word “consent”. Residents of Joe Slovo Communitv, Western Cape v Thubelisha Homes 2009 (9) BCLR 847 (CC), is the referred case. The definition of consent in this case accounted for tacit agreements. In summary it stated that tacit agreements were valid and binding whether verbal or written, as long as there is tangible proof (evidence) of said agreement. This led to the court concluding that there was no tacit agreement.
The appellant was then considered an unlawful occupier for the purposes of the Act (PIE). Then came the matter of it being ‘just and equitable’ to evict said occupier. The following case: Port Elizabeth municipality v Various Occupiers 2005 (1) SA 217 (CC) was sighted with reference to the fact that a court is required to balance opposing interests, on one hand the interests of the landowner and the unlawful occupier on the other. The following was quoted “Thus PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society, based on good neighbourliness and shared concern.”
Judge Davis, J concluded that in he’s view ‘just and equitable’ meant giving the appellant some significant time to find alternative accommodation, therefore overturning the previous court’s decision and granting the eviction order. The appellant was given six months within the granting of the order to occupy the property while looking for alternative accommodation. Once the six month period had passed, the sherif was ordered to evict the appellant and her dependants with assistance of the South African Police service if necessary.
Legal Reasoning:
The Prevention of Illegal Eviction and Unlawful Occupation Act 1998 (PIE) was created to promote constitutionalism and prevent the injustices the occurred during the apartheid era from occurring again. During apartheid the governments rules were discriminatory towards black people leading to their rights being abused and being forced to stay in specific designated areas. This is why the PIE has the two-fold enquiry of ensuring that it is ‘just and equitable’ to evict said persons and if said person can be classified as an unlawful occupier.
The South African Constitution is highly principled in ensuring that all individuals are treated with respect, human dignity, equality and freedom. These principles are instilled in the spirit of Ubuntu, which is based on humanness and compassion. Ubuntu promotes a normative notion of humanity, of human beings who recognise the ‘other’, of values of solidarity, compassion and respect for human dignity. These are the principles that lead to the decision of giving the appellant and additional six months while living in the respondent’s property, to look for alternative accommodation despite the fact that she was declared an unlawful occupant.
