Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village

• Jurisdiction: South Africa

Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village
2013 (1) SA 583 (GSJ)

2013 (1) SA p583

Citation	2013 (1) SA 583 (GSJ)
Case No	2011/30368
Court	South Gauteng High Court, Johannesburg
Judge	Willis J
Heard	October 17, 2012
Judgment	November 15, 2012
Counsel	J Both SC (with AW Pullinger) for the applicant.; CTH McKelvey for the respondents.

Flynote : Sleutelwoorde B

Land — Unlawful occupation — Eviction — Statutory eviction — Date of eviction — Subsection requiring court to determine, in addition to just and equitable date to vacate land, just and equitable date of eviction — Prevention of C Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(8).

Land — Unlawful occupation — Eviction — Statutory eviction — Determination that just and equitable to evict — Nature of court's discretion in making determination — Such entailing 'latitude of individual judicial freedom', but D court cannot be influenced by wrong principle or misdirection on facts — May not reach decision that court properly directing itself to law and facts would not reasonably reach — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land — Unlawful occupation — Eviction — Statutory eviction — Joinder of local E authority — Definition of 'homeless' in respect of requirement that authority be involved where eviction likely to render occupiers homeless — 'Homeless' meaning without reasonable prospect, from proposed date of vacation of property to proposed date of eviction, of finding alternative accommodation of comparable standard and rental and within reasonable proximity to property from which eviction sought — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. F

Land — Unlawful occupation — Eviction — Statutory eviction — Mediation — Prerequisite to court ordering mediation that parties be bona fide and that credible proposal be made — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. G

Land — Unlawful occupation — Eviction — Statutory eviction — Defence to eviction — In order to succeed, defence cannot be bald, vague or laconic — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Headnote : Kopnota

In issue in this case was whether the court ought to evict approximately H 2000 occupiers of a complex of 340 homes built to provide low-rental housing to low-income persons.

Its background was that a corporation in partnership with a foreign government had built the complex in about 2000 with the above aim and had made it available to persons who earned less than R3500 per month at a levy of I R900 per month per unit. The corporation had fallen into financial difficulties, was liquidated, and sold at an auction to the applicant, a corporation not for gain, with the aim of providing affordable rental accommodation. By the time the applicant came to make the present application for eviction, approximately 2000 persons occupied the complex, none of whom had rights to occupy at common law as against the applicant. The occupiers paid rental to a third party that had at some point taken J

2013 (1) SA p584

A control of the property. With respect to the application, the respondents comprised over 364 of the occupiers, and included children and old persons, woman-headed households and ill persons. A separate group of 352 occupiers associated with the third party did not participate in the application, and the details of the remaining occupiers were unknown. (Paragraphs [1] – [4], [7] – [8], [14] and [66] at 587D – 588A, 588C – E, 589G and 604A – 605C.) B

In issue was whether it was just and equitable to evict the occupiers in terms of ss 4(7) and 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Subissues raised were: the nature of a court's discretion in making a decision that it was just and equitable to evict, or as to the dates of vacation and eviction; the meaning of 'homeless' C and whether eviction would render the occupiers homeless; and the requirements that ought to be present before a court ordered mediation.

The nature of a court's discretion in determining that it was just and equitable to evict, or as to the dates of vacation and eviction

The court observed firstly that ss 4(7) and 4(8) required a court to determine if D it was just and equitable to evict, and also to determine a just and equitable date to vacate the property. While s 4(8) did not expressly require a court to determine a just and equitable eviction date, this was implied. (Paragraphs [21] and [33] at 592E – F and 595D – F.)

As to the nature of the court's discretion in making the determination, the court noted a range of authority suggesting the discretion could be wide or E narrow. It concluded that the discretion 'entailed a latitude of individual judicial freedom' and that the decision-maker was required in its exercise not to be influenced by a wrong principle or a misdirection on the facts, and not to reach a decision that a court properly directing itself to the law and the facts would not reasonably reach. (Paragraphs [39], [49] – [50], [52] and [127] at 597F – G, 600C – 601A and 615D – E.)

F The meaning of 'homeless' and whether eviction would render the occupiers homeless

The court noted authority that where an eviction was likely to render occupiers homeless, the relevant municipality ought to be involved with a view to finding the occupiers alternative accommodation. The authorities had not, G however, defined the term 'homeless', and the court held that it meant: 'Without any reasonable prospect, between the date of the court order which it is proposed to be made that the occupier is to vacate the property, to the date upon which the eviction order is to be effected (in the event that the occupier does not vacate the property), of the occupier being able to find alternative accommodation that is: (a) of a comparable or better standard to; and (b) at a similar rental to; and (c) within reasonable H proximity to that of the property from which the eviction is sought.' (Paragraphs [80] – [81] and [84] – [85] at 608E – 609C.)

Here respondent's counsel asked the court to infer that eviction would render the occupiers homeless. (The occupiers had not in fact alleged this themselves.) Applicant, resisting this, pointed out that at the outset, a requirement to I occupy was an income (of less than R3500 a month), and a levy of R900 was charged each month for occupation of a home (approximately R1600 in today's terms); moreover, the occupiers paid rent to the third party. Accordingly, the occupiers were not indigent, and furthermore they had not indicated that they had tried, but failed, to find accommodation for a similar amount to what they were paying to the third party. The court's conclusion was that the occupiers had not established that vacation and J eviction would result in their becoming 'homeless' in the sense it had

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defined, and that there was thus no need to involve the municipality in the A matter. Lest this conclusion was incorrect, the municipality's non-involvement was also justified by the severe financial constraints it was subject to. (Paragraphs [65], [67] – [68] and [85] – [86] at 603H – I, 605D – G and 610H – 611E.)

Requirements that ought to be present before a court orders mediation B

Counsel for the respondents submitted that an eviction order would be premature and that the court ought to order mediation between the occupiers and the municipality with the aim of possibly settling the matter. The court held that prerequisites for mediation were that the parties be bona fide and that a credible proposal be put forward. Here there was little evidence that the occupiers were bona fide, and nor had they put forward C a credible proposal. And, in addition, the court doubted the capacity of the municipality to mediate the process. (Paragraph [123] at 614C – E.)

Whether the court ought to order the eviction of the occupiers

The court referred to authority on summary judgments to the effect that a defence to such a judgment, in order to be successful, ought not to be bald, D vague or laconic. It held that this principle ought to apply to a defence to eviction and in this instance the defence had been made out laconically. The court accordingly held that it was just and equitable to evict the occupiers and that a just and equitable date by which to vacate the property (the court making its order on 15 November 2012) would be 15 January 2013, and a just and equitable date of eviction would be 20 January 2013. (Paragraphs [122] and [128] at 614A – C and 615F – 616A.) E

Cases Considered

Annotations:

Case law

Southern Africa

Absa Bank Ltd v Amod [1999] 2 All SA 423 (W): referred to F

Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T): dictum at 229A applied

Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) ([2001] 4 All SA 479): referred to

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33): dictum in para [40] considered G

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA): dictum in para [38] applied

Emfuleni Local Municipality v Builders Advancement Services CC and Others 2010 (4) SA 133 (GSJ): considered

Emfuleni Local Municipality v Builders Advancement Services CC and Others H [2012] ZAGPJHC 39: referred to

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): referred to

Gundwana v Steko Development and Others...