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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case no: 326/07

Date heard: 6.12.2007

Date delivered: 11.3.2008

In the matter between:

TRANSNET (PTY) LIMITED Applicant

vs

MR. S ZAAIMAN First respondent

MS BOUWER Second respondent

MR POTGIETER Third respondent

MS MNGUNI Fourth respondent

MR PETERSEN Fifth respondent

MR KRUGER Sixth respondent

MR BRUWER Seventh respondent

MR PILLAY Eighth respondent

JUDGMENT

A.R. ERASMUS, J:

INTRODUCTION

[1] The applicant seeks the eviction of the respondents from the premises of Erf 1204, Humewood ('the property' or 'the premises'). The application is opposed by the first, and third to eighth respondents. The second respondent has vacated the premises and no order is sought against her. (When I refer herein to the respondents collectively, it is to the first, and third to eighth respondents.)

[2] The applicant is the owner of the property, on which is erected eight residential units. The applicant entered into separate lease agreements with each of the respondents individually in respect of a particular unit:

in the case of the first respondent, 4 September 1999;

in the case of the third respondent, 1 October 2003;

in the case of the fourth respondent, 1 May 2003;

in the case of the fifth respondent, 1 October 2001;

in the case of the sixth respondent, 1 September 2001;

in the case of the seventh respondent, 1 February 2001;

in the case of the eighth respondent, 10 March 2003.

The lease agreements are substantially the same in the case of all the respondents.

[3] On 29 July 2004, the applicant entered into a lease and development agreement with Echo Trails (Pty) Limited in order to develop the property as a whole. In terms of that agreement 'the lease shall commence on the first day of the month following the date on which vacant occupation of the land and improvements is given to the lessee …'.

[4] On 4 October 2006 the applicant gave each of the respondents written notice of termination of his or her lease. It is not disputed that in each case the notice complied with the formal requirements of the cancellation clause in the particular agreement of lease (para [15] below). The respondents nevertheless remained in occupation of their respective units. The applicant thereupon instituted the present proceedings, on 1 March 2007 – that is within six months of the cancellation taking effect in each case. (The significance of this period is explained later in the judgment (para [18] below). The lease agreement with Echo Trails has not taken effect since the applicant has been unable to give it vacant occupation of the property owing to the ongoing refusal of the respondents to vacate the premises.

[5] The main issue in these proceedings involves the application of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (hereinafter referred to as 'PIE', or where convenient as 'the Act'). Before however considering that issue, I must first deal with the respondents’ in limine challenge of the authority of the official acting on behalf of the applicant, as well as with special defences raised by the fourth and seventh respondents.

LACK OF AUTHORITY

[6] The founding affidavit is by Mr. M.J. Stander, an assistant manager in the development and sales departments of Propnet, a Division of the applicant responsible for the development and management of property owned by the applicant. He states that he was duly authorised by the legal advisor of Propnet, Mr. Marius Nel, to institute the proceedings and to depose to the affidavit on behalf of the applicant. When this claim was questioned in the answering affidavit, Stander in reply placed the affidavit of Nel before court, and stated, 'This affidavit confirms my delegated authority to institute these proceedings and to depose to affidavits on behalf of the applicant herein'.

[7] Counsel for the respondents contends that this comment indicates that Nel purported to delegate his authority to Stander, which act – he submits – is invalid in the absence of proof that Nel had the power to delegate his powers. However, in determining the nature of the relationship between Nel and Stander, the court shall have regard to the facts rather than to Stander’s bald statement that Nel delegated his authority to him.

[8] Nel describes himself as the Divisional Head of Legal and Risk for Propnet. He states that he is duly authorised in his mandate to attend to litigation in that regard. He annexes a 'Delegation of Authority' indicating his authority to do so. He states that he obtained the concurrence of the Divisional Chief Executive Officer of Propnet to proceed with the institution of legal action against the respondents. He confirms that Stander was authorised 'to depose to the founding affidavit and to do all things necessary to implement' the decision. He claims that Stander was therefore duly authorised and mandated to act on behalf of the applicant herein.

[9] For obvious reasons, the court must be satisfied that all parties are properly before court. The court is however not formalistic or overly technical in regard to authorisation. There are no hard and fast rules, each case will depend on its own particular circumstances. The position is stated by Van Winsen Cilliers and Loots, Herbstein and Van Winsen The Civil Practice of the Supreme Court of South Africa ed Dendy 363:

'There is a considerable amount of authority for the proposition that where a company commenced proceedings by way of petition it was necessary to show that the person who brought the petition on behalf of the company had been fully authorized by the company to do so. It is submitted that this ‘salutary rule’ applied also to proceedings on notice of motion brought on behalf of an artificial person.

“In such cases some evidence should be placed before the Court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted at its instance. … Each case must be considered on its own merits and the Court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorised person in its behalf. Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the Court, then I consider that a minimum of evidence will be required from the applicant.”

(The passage quoted by the learned authors is from the judgment of Watermeyer J in Moll (Cape) (Pty) Ltd vs Marina Koöperasie Beperk 1957 (2) SA 347, 351H-352B.)

[10] It is in order, for purposes of authorisation in the case of an organ of state, for an official with the necessary authority to take the decision to institute legal proceedings and then to implement that decision through instructions to another official. On a proper interpretation of the evidence, that is what happened here. Any order that the court makes will therefore be binding on the applicant. In the circumstances, I am satisfied that it is the applicant that is litigating and not some unauthorised person purporting to act on its behalf.

THE SPECIAL DEFENCE OF THE FOURTH RESPONDENT

[11] The respondent claims that when she took occupation of her house, it was in a derelict state. She was informed, she says, by a Mrs. Pottas, then employed by the applicant, that she would receive ownership of the property if she made her monthly payments and cleaned the premises. This intimation, so she submits, means that she is in lawful occupation of the property despite the cancellation of the lease agreement.

[12] Even if the court accepts the respondent on the facts (which are convincingly disputed by the applicant through the affidavit of Mrs Pottas) and even if Pottas had the necessary authority to enter into such a binding agreement with the fourth respondent (which is strongly denied by both Stander and Pottas), the alleged undertaking does not avail the respondent. It can in law have no force or effect: if it is supposed to be a substantive agreement of sale it not only lacks an essential averment in regard to price, but being oral is unenforceable for want of compliance with the statutory requirement that it be in writing (s 2 of the Alienation of Land Act 68 of 1981); if the undertaking is supposed to be a variation of the lease agreement, it falls foul of the non-variation clause in the written agreement of lease. It is in any event void for vagueness.

THE SPECIAL DEFENCE OF THE SEVENTH RESPONDENT

[13] The seventh respondent refers to the following clause in his agreement of lease:

'13. GENERAL

13.1 The lessee may purchase the property with its personal funds subject to the following conditions:-

13.1.1. The sale of the property will not be to the detriment of the company.

13.1.2 If the house is not situated on a subdivided property the purchaser will be liable for the survey cost and registration fee.

13.1.3 Public road access to the property must exist.

13.1.4 If the lessee is not interested in purchasing the property and another buyer is obtained the lessee will be given a calendar months’ notice to vacate the premises.'

[14] It is contended on behalf of the respondent that this clause entitles him to remain in occupation of his unit until such time as the applicant decides to sell the property and that only if another buyer is obtained and he, the respondent, is not interested in purchasing the property may the applicant give him a calendar month’s notice to vacate the property. In other words, in short, the sale of the property to another person is a necessary precondition to the applicant exercising his right to give the respondent notice of cancellation.

[15] Clause 13 must however be read in the context of the agreement as a whole, which is a standard deed of lease, containing the provision:

'3. TERMINATION OF LEASE

3.1 This Deed of Lease may be terminated by either party by giving the other party two (2) calendar months notice in writing to that effect. Such notice shall be given to terminate at the end of a calendar month and shall be delivered by hand or by certified mail to the company’s or the lessee’s chosen domicilium et executandi, as set out in clause 13.4 and 13.5 below.'

[16] Clause 13.1.4 does not override or oust, or even complement clause 3. It provides for an additional mechanism for the termination of the agreement in particular circumstances. The two provisions are separate and distinct, the lessor’s right to cancel the agreement in terms of clause 3 is unaffected by the provisions of clause 13. At best for the seventh respondent clause 13 grants him a right of pre-emption, which becomes effective only if and when the applicant decides to sell the property, which has not happened. It certainly does not confer on the respondent the right to remain in occupation of the leased premises until such time, if ever, that the applicant decides to sell the property. Moreover, clause 13 remained in effect only while the lease was extant. When the lease agreement was cancelled, any right that the respondent had by virtue of the clause, fell away.

THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT

The question as to which of sections 4 and 6 of PIE are applicable to the present proceedings

[17] PIE declares:

'4. Eviction of unlawful occupiers.- (1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land

for the eviction of an unlawful occupier.'

An unlawful occupier is defined as meaning '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 … '.

[18] Subsections (2) to (5) of s 4 prescribe the procedural and notice requirements to be complied with by an applicant. It is common cause that the applicant has duly satisfied these requirements. The section continues:

'(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.'

In cases of holding over, the period of occupation is calculated from the date that the occupation became unlawful (Ndlovu vs Ngcobo; Bekker and another vs Jika 2003 (1) SA 113 (SCA) 123H-I). Inasmuch as the applicant initiated these proceedings within six months of the cancellations taking effect (para [4] above), ss (6) is of application in these proceedings. Subsection (7) applies '(i)f an unlawful occupier has occupied the land in question for more than six months'. This is not the case here.

[19] Stander declares that the application is brought 'in terms of s 4 of PIE'. This is useful but loose phraseology. What he means is that it is accepted by the applicant that the eviction proceedings are subject to the procedural dictates of s 4 and that the applicant in order to succeed must satisfy the provisions of that section. Counsel for the respondents submits that because the applicant is an organ of state, it must in addition satisfy the provisions of s 6:

'6. Eviction at instance of organ of state.- (1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if –

1. the consent of that organ of state is required for the erection of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or

2. it is in the public interest to grant such an order.

(2) For the purposes of this section, “public interest” includes the interest of the health and safety of those occupying the land and the public in general.

(3) In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to –

(a) the circumstances under which the unlawful occupier

occupied the land and erected the building or structure;

2. the period the unlawful occupier and his or her family have

resided on the land in question; and

2. the availability to the unlawful occupier of suitable alternative

accommodation or land.

(4) An organ of state contemplated in subsection (1) may, before instituting such proceedings, give not less than 14 days’ written notice to the owner or person in charge of the land to institute proceedings for the eviction of the unlawful occupier,

(5) If an organ of state gives the owner or person in charge of land notice in terms of subsection (4) to institute proceedings for eviction, and the owner or person in charge fails to do so within the period stipulated in the notice, the court may, at the request of the organ of state, order the owner or persons in charge of the land to pay the costs of the proceedings contemplated in subsection (1).

(6) The procedures set out in section 4 apply, with the necessary changes, to any proceedings in terms of subsection (1).'

[20] Mr. Schubart relies for his submission on Pedro and others vs Greater George Transitional Council 2001 (2) SA 131 (C). The respondent there had succeeded in the magistrate’s court in an application for the ejectment of the appellants from land which they occupied unlawfully. The respondent, as the owner of the land, had brought the application under s 4 of PIE. On appeal, Hlope JP with Ngundwa J concurring held that because the respondent was an organ of state, evictions at its instance were regulated 'specifically' by s 6 and therefore are ordered only if it is in the public interest. The learned judge found that it was not in the public interest that the appellants be evicted, and for that reason allowed the appeal. The judgment was squarely based on the application of the prescripts of s 6.

[21] As far as I can ascertain, the reasoning adopted in Pedro has not been followed in any reported decision. There are however decisions to the contrary. In City of Cape Town vs Unlawful Occupiers, Erf 1800, Capricorn 2003 (6) SA 140 (C), the respondents in an application for eviction under PIE contended in limine that the application was defective because, as an organ of state, the applicant ought to have proceeded in terms of s 6 and not s 4. The court (N.C. Erasmus J) rejected the contention. The learned judge pointed out that s 4 applied to proceedings by an owner of land, which the Act defines as 'the registered owner of land including an organ of state'. He held (without referring to Pedro) that there was no anomaly in an organ of state being entitled to proceed in terms of either section (149D-E). This decision was applied in Transnet Ltd vs Nyawuza and others 2006 (5) SA 100 (DC) 103H.

[22] Section 4 lies at the heart of PIE, giving effect to the first part of the title of the Act. It is the mechanism whereby PIE changes the objective of eviction proceedings from the prevention of illegal occupation (as was the purpose of the now repealed Prevention of Illegal Squatting Act 52 of 1951) to the prevention of illegal eviction. It tempers the owner’s common-law right to evict unlawful occupiers with procedural and substantive protection of the occupier.

[23] Section 6, in distinct contrast, is not concerned with the prevention of illegal eviction, but with the prevention of unlawful occupation of land (the second part of the title to the Act). It creates a mechanism outside the common law whereby an organ of state can remove unlawful occupiers from land in the public interest where the occupiers constitute a threat to their own health and safety or that of the public in general (ss (2)). It exposes the unlawful occupier to eviction at the instance of a body other than the owner. The jurisdictional fact for the operation of s 6 is that the land in question must be within the area of jurisdiction of the organ of state (ss (1)). The section contemplates the situation where the owner of the land has failed to act against the unlawful occupier (ss (4) and ss (5)), and the organ of state is obliged to act in the public interest. The organ of state may of course coincidentally be the owner of the land, as is the case in the present matter. That does not mean that it is subject to the prescripts of s 6 when acting as the owner under s 4. It can act in either capacity, depending upon which section is appropriate in the particular circumstances. There can be no purpose in imposing the requirements of the one on proceedings brought under the other.

[24] Sachs J, writing the judgment of the Constitutional Court in Port Elizabeth Municipality vs Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC), 230A-231A, comments on the function of sections 4 and 6 within the structure of PIE:

'Its central operative provisions are s 4, which deals with evictions sought by owners or persons in charge of property, and s 6, which is concerned with eviction proceedings brought by organs of State. There is considerable difference in detail between the two provisions. They emphasise that a distinction has to be made on the basis of whether the application for eviction is brought by the owner of property or by the municipality.'

[25] Although both s 4(6) and s 6 turn on justice and equity, different considerations are stipulated as relevant circumstances: section 4(6) directs attention to the rights and needs of the elderly, children, disabled persons and households headed by women, but is silent on the public interest as well as the circumstances listed in paras (a), (b) and (c) of s 6(3) (para [19] above), notably the availability to the unlawful occupier of suitable alternative accommodation. Section 6, significantly, does not mention the needs and rights of those handicapped by age, youth or physical disability, or by social or financial disadvantage. Its essential concerns is the public interest in the form of health and safety, with special regard to the considerations set out in s 6(3)(a)(b) and (c) when applying the litmus paper of justice and equity.

[26] The considerations specified in sections 4(6) and 6 respectively are of course not exclusive to the particular provision: the public interest in the broad sense is relevant to the question whether it is just and equitable for a court to grant eviction at the instance of the owner under s 4; while the special rights and needs of the more vulnerable classes of persons in our society cannot be ignored in deciding whether it is in the public interest to evict unlawful occupiers at the instance of an organ of state in terms of s 6 (Baartman and others vs Port Elizabeth Municipality 2004 (1) SA 560 (SCA) 564E-G). The two sections are nevertheless separate and distinct. The differences in detail between them reflect their different focus and purpose. It is therefore conceivable that different conclusions can be reached in applying sections 4 and 6 to the same set of facts This militates against the simultaneous operation of both sections in a particular case.

[27] For these reasons, I respectfully disagree with the reasoning in Pedro in so far as it superimposes s 6 requirements on a s 4 enquiry. Counsel’s contention that both the sections are applicable to these proceedings therefore does not hold. The practical effect of this finding is that it is not essential for the applicant to show that it is in the public interest to evict the respondents. The health and safety of the public, as well as the considerations set out in paras (a), (b) and (c) of s 6(3), are not of direct relevance to the enquiry.

The enquiry in terms of s 4

[28] It is necessary, by way of introduction under this heading, to point out that the applicant proceeds on a separate cause of action against each of the respondents. It has however joined them in a single application (without objection by any of the respondents). While it is convenient to deal collectively with the considerations common to all the respondents, the court must remain aware that the position of each individual respondent is separate and distinct from the others.

[29] In applying s 4, the court shall bear in mind the purpose and objectives of PIE, as are set out in the preamble to the Act:

'WHEREAS no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;

AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;

AND WHEREAS it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;

AND WHEREAS special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered.'

The preamble reflects PIE’s strong constitutional roots. It echoes verbatim the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act 108 of 1996):

'25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.'

as well as -

'26(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.'

and recognises the tension arising from the simultaneous operation of these two fundamental rights.

[30] An important purpose of PIE is to prevent sudden and summary eviction. It prescribes an orderly structured process with due notice given to the unlawful occupier. The occupier is thereby afforded time to consider his or her position and to obtain advice as to his or her constitutional and other legal rights, or to obtain alternative accommodation. The eviction process is thereby clothed with compassion in accordance with our democratic values of dignity, equality and freedom.

[31] Clearly, constitutional principles and objectives impact strongly on the application of PIE. Those principles and objectives cannot be properly understood without due consideration of the socio-political background to the Constitution. That exercise was performed by the Constitutional Court in Port Elizabeth Municipality vs Various Occupiers, supra. The case concerned a s 6 eviction, but the writing of Sachs J is relevant to the application of s 4. The learned judge outlines the inequalities that arose from the past policy of racial discrimination. He reminds the reader that in the sphere of unlawful land occupation, the law applicable at that time targeted black shack dwellers with dramatically harsh effect. He states (224E-F) that the former objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes has been replaced by constitutional acknowledgement of the necessitous quest for homes of victims of past racist policies.

[32] The Constitutional Court did not deal with the position of the unlawful occupier who had gained occupation rights lawfully under a commercial agreement since validly cancelled. The question whether PIE applies to such persons was considered in Ndlovu and Bekker. The SCA held (on a majority of 3:2) that such persons were unlawful occupiers as defined in s 1 of PIE and therefore entitled to the procedural and substantive protection afforded such occupiers under s 4. Harms JA (in whose judgment Mpati JA and Nienaber JA concurred) commented (123D) that the Bill of Rights and social or remedial legislation often confer benefits on persons for whom they are not primarily intended. The law of unintended consequences, he said, sometimes takes its toll. He concluded (123I-124A):

'The effect of PIE is not to expropriate the landowner and PIE cannot be used to expropriate someone indirectly and the landowner retains the protection of s 25 of the Bill of Rights. What PIE does is to delay or suspend the exercise of the landowner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions. Simply put, that is what the procedural safeguards provided for in s 4 envisage.'

[33] The decision in Ndlovu and Bekker followed on a number of cases where it had been held that PIE had in mind previously disadvantaged squatters properly so called and was not intended for the benefit of ex-tenants or ex-owners. See Absa Bank Ltd vs Amod 1999 [2] B All SA 423 (W); Ndlovu vs Ngcobo 2001 CLR 110 (D); Ellis vs Viljoen 2001 (4) SA 795 (C) 800B-801H; Ross vs South Peninsula Municipality 2000 (1) SA 589 (C) 599B-C; Bekker and another vs Jika 2002 (4) SA 508 (E) 515D-516A; Betta Eiendomme (Pty) Ltd vs Ekple-Epoh 2000 (4) SA 468 (W) 473I. The sentiments expressed in those judgments are forcefully stated by Schwartzman J in Amod (429e-h):

'I find it difficult to accept that the 1998 Act can be interpreted as turning on its head the common law of landlord and tenant or the common-law right of an owner of immovable property who has, in terms of a contract, given another the right to occupy his or her immovable property to recover same. But this is what Mr. Fehler submitted was the effect of the 1998 Act. If he is correct, it means that a property owner say in Hyde Park, Bishops Court or La Lucia, who leases his or her residential property for 12 months to say a millionaire, cannot recover possession of the property on termination of the lease from what is then an ‘unlawful occupier’ unless and until he or she complies with s 4 of the 1998 Act. … A similar position would arise if such property owner sold the property to a purchaser who took occupation of the property and failed or refused to pay the purchase price. Here again such property owner’s right to evict would be subject to equitable consideration and the court being satisfied that the occupier has alternative land that he or she can occupy (see s 4(6) and 4(7) of the 1998 Act). These apparently absurd results can only follow if it is clear from the 1998 Act that this was the clear and manifest intention of Parliament. I cannot find such an intention in the 1998 Act.'

Olivier JA and Nienaber JA, who delivered minority judgments in Ndlovu and Bekker, too, were uncomfortable with the interpretation that would extend PIE protection to unlawful occupiers holding over after their initial lawful occupation has become unlawful.

[34] The disquiet expressed by senior judges cannot be disregarded. But, as Harms JA in Ndlovu and Bekker makes clear, those concerns were, with respect, misplaced in so far as they were directed at the all-inclusive definition of the 'unlawful occupier' protected under the Act. It was simply not possible in that definition to cater for the infinite variety of situations that can arise in land occupation. The legislator dealt with the problem by extending PIE protection to all types of unlawful occupiers and then achieving flexibility and balance by making the application of s 4 subject to the supremely plastic dictates of justice and equity. And here the court can in broad terms distinguish between the owner who has in terms of a contract given the unlawful occupier the right since cancelled to occupy the land and one faced with squatters proper. Generally, the court will be less sympathetic to recalcitrant ex-lessees and ex-owners than it is to squatters; not by virtue of legal principle, but because usually such persons are less deserving of protection in the circumstances surrounding their occupancy. They do not come within the legislative land reform programme which is basic to the Constitution (Ndlovu and Bekker per Olivier JA 141D-E); they enjoy no special regard under the Constitution; they do not as a class qualify for special mention in PIE. Individual instances could of course arise where the courts will on the facts of the case come to the aid of an ex-lessee or ex-owner (see the example mentioned by Harms JA in Ndlovu and Bekker (123B)). The present is however not such a case.

[35] The respondents all gained occupation of his or her particular unit through an agreement of lease. They thereby indicated their willingness and ability to pay rental. They were not in the position of the poorest of the poor seeking shelter and dwelling on a vacant piece of land, eloquently and sympathically described by Sachs J in Port Elizabeth Municipality.

[36] Each of the applicants willingly agreed to the term allowing either contracting party the right to terminate the lease upon relatively short notice (one or two months). The parties thereby agreed that they not be locked into the agreement indefinitely, irrespective of changing circumstances. By holding over despite the valid cancellation of their agreements, the respondents seek to avoid their contractual obligation to vacate the premises upon the termination of his or her lease.

[37] What is more, the cancellation of the lease agreements means that none of the parties any longer has any contractual rights or obligations towards the other. Refusing the application for eviction would be to allow the respondents indefinite occupation of the premises, free of the obligation to pay rent and free also of all of the other obligations included in the agreements for the protection of the property and the interests of the landlord (there are a number of such provisions); it would be tantamount to the de facto expropriation of the unit in favour of the respondent. That is not the purpose of PIE (see the comments of Harms JA in Ndlovu and Bekker loc cit para [32] above).

[38] The court must have regard to the position of each respondent individually. The personal circumstances of the first respondent are the following. He is the breadwinner in the house with a monthly salary of R5 800.00. The household’s income is enhanced by the old age pensions of his aged grandmother and uncle. She has a leaking heart and is dependant on the other members of the household. He is crippled and an asthma sufferer. The household further includes the respondent’s wife and their four children aged between 12 and 20. He and his family have been residing in the unit since 1999 and have no other housing available.

[39] The third respondent and Mrs Potgieter are both employed. The family however do not have medical aid and she suffers from an enlarged heart and perforated lung. The further members of the household are three adults, all unemployed. The family have no other accommodation available. Although the unemployed members of the family are seeking work, their ages, lack of further education and affirmative action, are hampering their success.

[40] The fourth respondent is a single mother with an income varying between R2 000.00 and R3 000.00 per month. She is 42 years of age and cares for her five children aged 17, 15, 13, 7 and 2 years. She has no other accommodation available.

[41] The fifth respondent is the bread winner with a monthly income of R6 000.00. The other members of the household are his wife and three children aged 9 to 17 years. He and his family do not have other accommodation available.

[42] The sixth respondent earns a monthly income of about R5 000.00, he being a handy man not formally employed. He is 40 years old and supports his wife and one child of 6 years. He also supports a nephew and his wife, both of whom are currently unemployed and seeking employment.

[43] The seventh respondent and his wife are employed. He earns R5 000.00 per month and she R1 600.00. They are the only members of the household that earn an income. The other members of the household are their three unemployed daughters aged 33, 23 and 19, three grandchildren who attend school and two pre-school grandchildren. His daughters are seeking employment, but have not yet been successful. None of them has other accommodation.

[44] The eighth respondent is 63 years old, a widower with a monthly income between R7 500.00 and R9 000.00. He tried to procure alternative accommodation and purchased a semi-completed property. Due to the cost of the property and his ill health he was however forced to sell that property and now has no alternative accommodation.

[45] With the exception of the eighth respondent, the respondents all have a number of unemployed dependants. In the case of the first respondent the dependants are elderly and sickly. The seventh respondent and his wife are themselves elderly. The first, fourth, fifth and sixth respondents have young children. None of the respondents has alternative accommodation. For the most part they present a pitiful picture of persons struggling to survive on the breadline. Being evicted would increase their hardship considerably. I accept that they will have great difficulty in acquiring alternative accommodation, let alone comparable or even suitable accommodation.

[46] A court dare not be callous or uncaring. I cannot however escape painful reality. I am in my duty bound to mention that many thousands of persons in our society share a similar unhappy lot to that of the respondents. In fact a great many exist on much less than they do – meagre welfare grants and the charity of others themselves poor. I must also note that the interests of the poor and vulnerable as a whole will not be served should owners of land become reluctant to let them premises for fear of them successfully resisting dislodgement.

[47] In the end the circumstances giving rise to the respondents’ unlawful occupation are decisive over their personal circumstances. The dictates of justice and equity do not allow the court to countenance the applicant being deprived of the use of its property permanently. In view of this finding, subsections (8) and (9) of s 4 come into play:

'(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine –

(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).

(9) In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.'

Section 4 concludes with ss (12) which provides that '(a)ny order for the eviction of an unlawful occupier … is subject to the conditions deemed reasonable by the court …'.

[48] The respondents have been in occupation of their particular unit for a number of years, in the case of the first respondent since 1999 (see para [2] above). The occupation by each became unlawful when the leases were cancelled at the end of 2006. It is time that they now vacate the property. They could not reasonably have expected to remain in unlawful occupation of their unit indefinitely and should have taken steps to find alternative accommodation. I am nevertheless of the view that the respondents, or at least the most deserving amongst them, should be afforded further time to find other homes. I shall not however differentiate between the respondents for the reason that the applicant requires the property as a whole and not piecemeal. There is no need to make the eviction of the respondents subject to any special conditions in terms of ss (12).

[49] In the result, the following orders issue:

1. The first, and the third to eighth respondents are ordered to vacate the premises which they currently occupy on erf 1204, Humewood, Port Elizabeth, together with their dependants and other persons who occupy the premises with them, by 31 May 2008.

2. The said respondents, as well as the other persons mentioned in 1 above, are ordered to remove all of their possessions from the premises by 31 May 2008.

3. If any of the respondents or the said persons has not vacated the premises on the said date, the deputy sheriff is authorised and directed to evict such respondents and persons together with their possessions on 17 June 2008.

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A.R. ERASMUS

JUDGE OF THE HIGH COURT

DATED: 10 March 2008

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