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Van der Westhuizen v S (CA&R127/2014) [2015] ZANCHC 50 (27 November 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Reportable: NO

Circulate to Judges:YES

Circulate to Magistrates:NO

Circulate to Regional Magistrates:NO

CASE NO: CA&R127/2014

DATE HEARD:27/11/2015

DATE DELIVERED:04/12/15

In the matter between:

DAVID DESMOND VAN DER WESTHUIZEN Appellant

and

THE STATE Respondent

Coram: Olivier J et Pakati J

JUDGMENT

Olivier J:

[1.]The appellant, Mr David Desmond van der Westhuizen, was charged in the Regional Court with murder, alternatively culpable homicide. He pleaded not guilty to both counts. He admitted having slapped the deceased once, and having inflicted two blows with hisfist, but he denied having caused the death of the deceased. He also denied that the post mortem report which had been madeavailable to him, pertained to the person that he had assaulted.

[2.]The prosecution presented the evidence of two eyewitnesses, Ms Maria Coleman, the wife or life partner of the deceased, and Ms CA Eland, the niece of the deceased. Their evidence was basically to the effect that an altercation had taken place betweenthe deceased and Mr Deon van der Westhuizen on Sunday 24 April 2011. Ms Coleman intervened and in the process injured MrDeon van der Westhuizen, who then left. Not long thereafter the appellant arrived in a vehicle, driven by himself and accompaniedby one Lappers. The appellant entered the premises of the deceased and Ms Coleman, grabbed the deceased and banged his headagainst the tree. When the deceased fell and basically lay defenceless on the ground, the appellant trampled on his headand chest. The appellant only stopped when he was attacked by Ms Eland.

[3.]During that night the deceased started vomiting blood, but refused to be taken to hospital. He was, however, admitted to thePostmasburg Hospital the next morning, in other words on 25 April 2011, and he died there on 3 May 2011.

[4.]Dr Anizoba later performed an autopsy on the body of the deceased and certified the cause of death to have been “blunt trauma injuries to the head and neck with lethal consequences”.

[5.]The appellant did not testify. From what was put to Ms Coleman and Ms Eland in cross-examination it appeared that his casewas that he had gone to the house of the deceased and Ms Coleman to find out what had happened between them and Mr Deon van derWesthuizen. According to him the deceased then attacked him, whereupon he slapped the deceased once, and hit him twice withclenched fists. The statements were furthermore to the effect that the deceased then walked away. It was put to thewitnesses that the appellant denied having smashed the deceased’s head into a tree and having trampled him.

[6.]Just before the close of the case for the prosecution the appellant made further admissions in terms of section 220 of the Criminal Procedure Act[1]. In those admissions he persisted with the version that he had only slapped the deceased once, and hit him twice with fists. He, however, went on to admit the identity of the deceased, and he admitted that the deceased had died as a result of brain haemorrhagesustained in the appellant’s assault on him. The appellant, in fact, admitted having negligently caused the death ofthe deceased.

[7.]The appellant was eventually convicted on the main count, that of murder. It was found that he had indeed banged the headof the deceased against a tree, and thereafter trampled on him. It was found that his assault had caused the death of thedeceased, and that the appellant had acted with the intention[2] to kill. On 30 October 2012 the Regional Magistrate found that there were no substantial and compelling circumstances tojustify a deviation from the prescribed sentence, that there were in fact aggravating circumstances and that the deceased had notprovoked the attack, and sentenced the appellant to 15 years imprisonment.

[8.]The present appeal is against the conviction and the sentence, leave having been granted on petition. The grounds advancedin respect of the conviction concerned contradictions between Ms Coleman and Ms Eland and it was submitted that the Regional Magistrateshould have found the version of the appellant to have been reasonably possible. It was furthermore submitted that the trialcourt had failed to give proper consideration to the question whether the deceased may not have survived the attack had he beentransferred to another hospital and that the trial court had erred in finding that the appellant’s assault had been the directcause of the death of the deceased. Lastly it was submitted that the trial court had in any event erred in finding that the appellanthad acted intentionally in causing the death of the deceased.

[9.]As regards the sentence it was submitted that the court had failed to give proper consideration to the appellant’s favourablepersonal circumstances, that the seriousness of the offence had been over-emphasised, that the court had failed to consider othersentencing options, and the possible rehabilitation of the appellant outside prison, and that overall the sentence was disturbinglyinappropriate.

[10.]Mr Nel, counsel for the appellant, correctly and responsibly conceded that the contradictions between Ms Coleman and Ms Eland werenot material and that the Regional Magistrate had been correct in rejecting the version of the appellant as to the nature of theassault. Mr Nel restricted his argument, as regards the conviction, to the following submissions:

10.1 That the fact that the deceased had not been transferred to a hospital where a so-called CT-scancould be performed to establish whether there was a brain haemorrhage and, if so, where an operation could be performed to drainthe blood, had been a novus actus interveniens and therefore the effective cause of death; and

10.2 That, in any event, it had not been proved beyond reasonable doubt that the appellant had assaultedthe deceased with the intention to kill him.

[11.]The argument that the appellant’s assault, and the injuries sustained during that assault, had not been the direct cause ofdeath is completely inconsistent with the admissions that the appellant had, as already mentioned, made just before the close ofthe case for the prosecution. His admission that he had caused the death of the deceased was never withdrawn. Thatadmission was, in fact, made after an adjournment had subsequent to the medical evidence been granted for the appellant and hisattorney to consult, presumably about precisely that evidence. On this basis alone, in my view, this argument cannot succeed.

[12.]I will, however, nevertheless deal with the medical evidence presented by the prosecution. Dr M Necibi testified that he hadnot been involved in the admission of the deceased to the Postmasburg Hospital. He only examined him on 27 April 2011, whenhe found that the deceased was confused and was having convulsions. He concluded that the deceased was seriously injured,and that he had probably sustained a head injury. Dr Necibi testified that in such a case it is essential that a scan beperformed so that, if it shows that there is a brain haemorrhage, the blood can be drained. The hospital in Postmasburg didnot have the facilities for this. According to Dr Necibi the deceased was not transferred to Kimberley, where the facilitieswould have been available, because the family declined this. Most importantly, however, Dr Necibi testified that he couldnot say that the deceased would have survived had he been transferred to a hospital in Kimberley.

[13.]Dr Anizoba testified that, under normal circumstances, a scan should be performed on a person with suspected brain haemorrhage and,if it is confirmed, the blood could then be drained in a surgical procedure, which could result in the survival of such a person. He went on, however, to testify that the deceased had been a frail and sickly person and that he may in any event have died, evenif he had undergone surgery to drain the blood. Dr Anizoba was not prepared to say that surgery would have saved the lifeof the deceased. He testified that the deceased had sustained very serious injuries in the assault.

[14.]The burden of proof was on the prosecution to prove that the appellant’s assault had been the direct cause of the death ofthe deceased[3].

[15.]In S v Thembani[4] the approach which should be followed in considering whether the consequences of an attack had been interrupted by a novus actus interveniens was explained as follows:

[25]…The deliberate The deliberate infliction of an intrinsically dangerous wound, from which the victim is likely to die without medical intervention,must in my view generally lead to liability of an ensuing death, whether or not the wound is readily treatable, and even if themedical treatment later given is substandard or negligent, unless the victim so recovers that at the time of the negligent treatmentthe original injury no longer poses a danger to life…In the present case, the trial Court rightly found that at the timeof the deficient treatment, the original wound was still an operating and substantial cause of death, and that it could not besaid that it merely provided the ‘setting’ within which the negligent conduct of the hospital staff operated.

[29] In view of the allusion to it by some of the authorities, I should add that I do not considerthat even gross negligence in the administration of medical treatment should be sufficient to relieve the original perpetratorof criminal liability of an ensuing death.”

The following remarks in S v Counter[5] at 285 are also instructive:

From the authorities it is clear where there is an intentional or gross negligent intervening cause that changed the course of eventsso that it could be said that the original act can no longer be regarded as the cause of death then there is a novus actus interveniens.

In my view a true novus actus interveniens can only mean an event that drastically changed the course of events and that the resultthat followed is, in the ordinary human experience totally unexpected.”

[16.]In my view it is clear, on all available evidence, that the injuries caused in the appellant’s attack still existed at thetime of the deceased’s death, and that they had in fact become progressively worse. They were accordingly, at the timeof death, not merely the “setting” for any possible negligence on the part of the deceased’s family or the staff of the Postmasburg Hospital. Insofaras it may have been negligent not to transfer the deceased to a hospital where a scan and an operation could be performed, suchnegligence did not “drastically change” the course of events that would on the available evidence have followed upon the infliction of such an injury.

[17.]This brings me to the question whether it had correctly been found that the appellant had acted with the required intent. The Regional Magistrate found that the appellant had not, at the stage when he slammed the head of the deceased into the tree,foreseen the death of the deceased. It was found, however, that when the appellant trampled the deceased “That must have convinced the Accused that he was killing this person”.

[18.]Insofar as the Regional Magistrate may have intended to convey that the appellant should, at that stage, have realised that he waskilling the deceased, such a finding would of course not have been a proper basis for a finding of doluseventualis. In S v Campos[6] it was in paragraph [33] confirmed that “(the) Court should guard against proceeding too readily from ‘ought to have foreseen’ to ‘must have foreseen’and thence to ‘by necessary inference in fact foresaw’ the possible consequences of the conduct enquired into. The several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to theparticular circumstances which attended the conduct being enquired into.”

[19.]In S v Lungile and Another[7] the following was held at 602h – j:

The question to be considered in the present matter is whether the State proved beyond a reasonable doubt that the appellant infact did foresee that her actions could result in the Nicola’s death. Moreover, that alone would not be enough. It would also have to be the only reasonable inference that she did not care (i e was reckless as to) whether death would in factresult and, as it is sometimes put in the cases, reconciled herself to such a result”.

[20.]According to Dr Anizoba the deceased’s injuries would not initially have been visible externally[8]. The record contains no description of the shoes which the appellant had worn when trampling on the deceased. In myview the reasonable possibility of the appellant not having in fact foreseen the death of the deceased was not excluded. There is, however, no doubt at all that a reasonable person in his position would have foreseen it, as Mr Nel readily conceded,and in my view the appellant should therefore have been convicted of culpable homicide.

[21.]This would mean that this Court would be free to either remit the matter to the Regional Magistrate for sentence on such a convictionor to impose sentence itself. In my view there is sufficient information before this Court to deal with the sentence itself.

[22.]The appellant’s personal circumstances were favourable. He had a stable employment history and for all practical purposeshe had no previous convictions. He had three dependent children and a life partner, who was also dependent upon him. It is abundantly clear that a custodial sentence would have a seriously negative impact on those dependents.

[23.]On the other hand it is aggravating that the appellant, who had known the deceased, had attacked a weak and sickly person to beginwith. It was a prolonged attack. When the deceased lay helpless on the ground after his head had been banged into thetree, the appellant went on to trample on his head and chest. There is no indication that the appellant would have stoppedhis attack had he not been interrupted by Ms Eland.

[24.]I am prepared to accept that the attack had been provoked to the extent that it had, apparently, been reported to the appellantthat the deceased had been responsible for the injury sustained by which Mr Deon van der Westhuizen, who presumably was a relativeof the appellant. It can also be assumed that the appellant would not have known that the deceased had not, in fact, inflictedthe injury to Mr Deon van der Westhuizen. However, even if it is accepted that such a report would have provoked the appellant,the fact remains that he clearly had ample time to reflect and to come to his senses. He had, however, clearly been intenton revenging the injury sustained by Mr Deon van der Westhuizen and on punishing the deceased for that.

[25.]In my view the only appropriate sentence would, unfortunately, still be a custodial sentence. Mr Nel in effect conceded this,but suggested that it should be a sentence of imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act, which would mean that the appellant could then after having served a relatively short portion of the sentence of imprisonmentbe released on correctional supervision. In my view, however, such a sentence would not be appropriate, taking into accountthe seriousness of the offence.

[26.]There is also the problem that there is no indication of any remorse on the part of the appellant. Despite this I am, however,of the view that the appellant should be afforded the opportunity of rehabilitation outside prison for at least part of his sentence. In my view an appropriate sentence would be one of 10 years imprisonment, of which 3 years are conditionally suspended.

[27.]It appears that the appellant had served 43 days of his sentence before being released on bail on 12 December 2012 pending the outcomeof this appeal. His sentence will therefore be antedated by an equal number of days, to 22 October 2015[9].

[28.]The following orders are therefore made:

1.THE CONVICTION OF MURDER IS SET ASIDE AND SUBSTITUTED WITH THE CONVICTION OF CULPABLE HOMICIDE.

2.THE SENTENCE OF 15 (FIFTEEN) YEARS IMPRISONMENT IS SET ASIDE AND SUBSTITUTED WITH THE FOLLOWING SENTENCE:

10 (TEN) YEARS IMPRISONMENT, OF WHICH 3 (THREE) YEARS ARE SUSPENDED FOR A PERIOD OF 5 (FIVE) YEARS ON CONDITION THAT THE ACCUSEDIS NOT CONVICTED OF AN OFFENCE INVOLVING AN ASSAULT ON ANOTHER, IN RESPECT OF WHICH THE ACCUSED IS SENTENCED TO UNSUSPENDED IMPRISONMENTOF MORE THAN 1 (ONE) YEAR WITHOUT THE OPTION OF A FINE AND WHICH OFFENCE IS COMMITTED DURING THE PERIOD OF SUSPENSION”.

3.THE SENTENCE IS ANTEDATED TO 22 OCTOBER 2015.

______________________

C J OLIVIER

JUDGE

NORTHERN CAPE DIVISION

I agree.

______________________

B M PAKATI

JUDGE

NORTHERN CAPE DIVISION

For the Appellant: ADV. I J NEL

Instructed by: Johan Kotzé Attorneys, Postmasburg

For the Respondent: ADV. C G JANSEN

Director of Public Prosecutions, Kimberley

[2]Apparently in the form of dolus eventualis.

[3]Compare S v Tembani 1999 (1) (SACR) 192 (W) at 198b – c

[4]2007 (2) SA 291 (SCA), dismissing an appeal against the judgment in the case referred to in footnote 3.

[6]2002 (1) SACR 233 (SCA)

[8]When Dr Necibi examined the deceased on 27 April he noted only an oedema of the jaw and a laceration of the lip.

You are here:SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2018 >> [2018] ZAGPJHC 97

Werner Van Der Westhuizen

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Van der Westhuizen v Nxiweni and Others (21145/17) [2018] ZAGPJHC 97 (8 May 2018)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the lawand SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case number: 21145/17

Not reportable

Not of interest to other judges

Revised.

8/5/2018

In the matter between:

GERHARD VAN DER WESTHUIZENApplicant

and

PINKY NXIWENIFirst Respondent

ALL THE UNLAWFULL OCCUPIERS OF SECTIONAL

TITLE UNIT […], WITH SCHEME NAME […]

BETTER KOWN AS […] A.

NEW REDRUTH, ALBERTONSecond Respondent

CITY OF EKURHULENI METROPOLITAN

MUNICIPALITYThird Respondent

JUDGMENT

Der

Molahlehi, J

Introduction

[1]This an application in terms of which the applicant seeks an order evicting the respondent, Ms Nxiweni and those occupying the propertywith her at […] A. New Redruth, Alberton, Johannesburg (the property). The respondents are allegedly occupying theproperty without the consent of the applicant.

Background facts

[2]It is common cause that initially the occupation of the property by the first respondent was with the prior consent of the applicantin that the parties concluded a lease agreement which commenced on 1 October 2015.

[3]In terms of the lease agreement the first respondent had to pay the sum of R6 000.00 deposit and after that pay the sum of R6 600.00per month as the advanced rental. Clause 11 of the lease agreement made the first respondent liable for municipal charges of theproperty.

[4]Failure to make payment of any amount required in terms of the lease agreement would result in a breach of the agreement. In thatevent the first respondent would be given twenty days by the applicant to remedy such a violation, and after that, the applicantwould be entitled to terminate the agreement.

[5]The lease agreement further provided that upon cancellation of the lease as a result of the breach, the first respondent and anyother person occupying the premises through her would be required to immediately vacate the premises and allow the applicant totake unhindered occupation as provided for in clause 24.2 of the lease agreement.

[6]The applicant states in his founding affidavit that the first respondent had breached the lease agreement by not paying the requiredrent, utility charges and deposit which is outstanding in the sum of R131 453.59.

[7]On 8 January 2016, the first respondent through her erstwhile attorney was placed on terms to remedy the breach by paying the outstandingrental in the amount of R7 365.21. The respondent having allegedly failed to remedy the breach was then issued with the letterof termination of the lease agreement on 19 January 2016. The respondent has refused to vacate the property despite the cancellationof the lease agreement and the demand that she leaves the property.

[8]The application is opposed by the first respondent who represented herself during the hearing before me. Logitech usb receiver driver download. She has raised severalpoints in her defence against the application to evict her from the property she raised the following points.

Non-joinder

[9]The respondent contends that the applicant ought to have joined in these proceedings the Estate Agent because she assisted in thesigning of the lease agreement.

[10]The test for non- joinder is set out by the Supreme Court of Appeal in Absa Bank Ltd v Naude NO,[1] in the following terms:

[10] The test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matterof the litigation which may prejudice the party that has not been joined. In Gordon v Department of Health, Kwazulu-Natal it washeld that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had notbeen joined, then those third parties have a legal interest in the matter and must be joined.” (Footnotes omitted).

[11]In Judicial Service Commission and Another v Cape Bar Council and another[2], the Court held that:

[12] It has by now become settled law that the joinder of a party is only required as a matter of necessity – as opposed toa matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by thejudgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinderplea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thusbeen held to be a limited one.”

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[12]Applying the above test, in the present matter, I am of the view that the point raised by the respondent bears no merit. There areno facts supporting the contention that it was necessary to join the Estate Agent as the party in these proceedings. Except forthe fact that it (the estate agent) assisted in the signing of the lease agreement, there is nothing to show that it has directand substantial interest in the matter.

Non-compliance with PIE

[13]The respondent contended that the applicant was not entitled to the relief sought because he did not comply with the provisionsof the Prevention of Illegal and Unlawful Occupation of Land Eviction Act (PIE)[3], as concerning the following:

The first point in this respect is that the notice in terms of section 4(2) of the PIE Act does not state that the applicant hasa title and that he is the owner of the property in question. This point is, in my view, unsustainable because the applicant hasattached to his papers the Windeed search which shows him as the owner of the property.”

[14]The respondent has also not disputed that the applicant is in control of the property as provided for in s 4 (1) of PIE Act.

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Ownership of the property

[15]The respondent disputes ownership of the property by the applicant. The applicant has alleged in his founding affidavit that heis the owner of the property and in support thereof attached the Windeed report downloaded from the web site of the Deeds Office.In my view this is sufficient to prove ownership of the property by the applicant.[4] However, even if that was not sufficient proof of ownership, the applicant still qualifies for the relief on the bases of the provisions of s 4. (1) of the PIE Act which provides:

4 (1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedingsby an owner or person in charge of the land for the eviction of an unlawful occupier.

[16]The second point is that the applicant has failed to provide a municipality report indicating that he intends evicting her withthe recommendation by the municipality on whether it can provide alternative accommodation to her and child of school going. Thispoint is dealt with later in the judgment under the general principles governing eviction. It suffices, however, to say that itdoes not bear any merit because of the failure by the respondent in her papers to deal with her circumstances that would justifyintervention by the municipality.

[17]The same applies to the third point which is that the applicant has failed to indicate whether the property in question is a primaryresidence of the applicant and whether the household is headed by a woman, disabled person and whether the rights of children orelderly people will be affected by the eviction and whether the municipality or any other organ of state has provided alternativeaccommodation to relocate the applicant.

[18]The first respondent has also submitted that she is a mother of school going children who attend school in the vicinity of the propertywhich is also a primary residence. According to her, this is a factor which the applicant ought to have taken into account beforeseeking her eviction.

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[19]The first respondent further contends that the applicant has failed to honour its obligation in as far as the provisions of thelease agreement are concerned. In this regard, she states that upon entering the property after the conclusion of the lease agreementshe found the property not repainted and in a near dilapidated state. She addressed a letter to the applicant’s estate agentabout the matter and was promised that it would be attended to, but nothing was done in that regard. She had to repair the geyserand the broken taps at her own cost. She sent the bill of the costs related to the repairs to the estate agent who failed to settleit.

[20]It seems from the above that the respondent is insisting on staying on the property despite the cancellation of the lease on theground that she had repaired the damaged facilities and made some improvements to it.

[21]Clause 16.2.11 of the lease agreement expressly states that the tenant is not allowed to make any improvement on the property withoutthe consent of the landlord. There is no evidence that the respondent complied with this requirement in making the alleged repairsand improvements. It follows therefore that this complaint cannot be a sustainable defence.

[22]She also complains that the applicant cancelled the lease agreement on the basis of a 30 days’ notice, rather than two months’notice as provided for in clause 23.1 of the lease agreement. Clause 23.1 of the lease agreement reads as follows:

23.1 The Landlord may cancel this Lease on 2 (Two) month’s written notice on the following conditions:

23.1.1 The Landlord intends to move into the Premises; or

23.1.2 The Landlord intends to sell the Premises.”

[23]It is clear from the proper reading of the above that the respondent’s contention that she was given notice of less than twomonths as required by the lease agreement is unsustainable because the cancellation of the lease was not based on any of the twoconditions. The cancellation on the applicant’s papers was based on clause 23.2 of the lease agreement which reads as follows:

23.2 The Landlord may cancel this Lease on 7 (Seven) days’ notice to the Tenant in the following circumstances:

23.2.1…

23.2.2…

23.2.3 The Tenant remains in continuous breach of the Lease for a period of 3 (Three] months and fails to remedy such breach, despitebeing notified of such breach, in writing, on 3 (Three) months’ and fails to remedy such breach, despite being notified ofsuch breach, in writing, on 3 (Three) months occasions by the Landlord.

24.1 In the event of the Tenant not paying the Rental or any other monies due in terms of this Lease on the date upon which suchmonies are due and payable, or committing any other breach in terms of this Lease then:

2.4.1.1 Should the visions of section 14 of the CPA apply to this Lease, and the Tenant remains in breach of any of the terms ofthis Lease for a period of 20 [Twenty] Business days after dispatch of a written notice, calling upon the tenant to remedy sucha breach; or

2.4.1.2 Should Lease continue on a Month- to -Month basis in accordance with the provisions of clause 6.1 and the provisions ofsection 14 of the CPA. Accordingly, not apply to this lease and the tenant remains in breach of any of the terms of this leasefor a period of 7 (seven) calendar days after dispatch of the written notice, calling upon the tenant to remedy such a breach:the landlord shall be entitled, in his sole discretion and without prejudice to any other rights that he may have in law to giveher claim specific performance in terms of this lease for to cancel the lease forth with and without further notice claim all arrearrentals and or any other damages from the Tenant.”

[24]The respondent further states that during June 2016 while attending her mother”s funeral in the Eastern Cape, the applicant brokedown her door, removed it and reduced the electricity supply to cater for only house lights. The applicant refused to replace thedoor he broke, resulting in the first respondent having to replace it at her own costs. After that, a meeting was convened betweenthe applicant and first respondent’s erstwhile attorneys.

[25]At that meeting, the arrears were reconciled to be at R 40 000. 00. The respondent disputes the amount of R131 453 99 and statesthat the applicant continued to charge her for electricity she did not consume.

[26]In the replying affidavit, the applicant denied all the allegations made by the first respondent, in particular in relation to therepair of the geyser and the breaking down of the door by the estate agent. He contended further that, even on the first respondent”sown version the amount of R40 000.00 was due and owing by the first respondent.

[27]As concerning arrears in terms of payment of the rental, the first respondent did not dispute that the last payment she made wasin May 2016. She in this regard undertook to pay the sum of R40 000,00 which she claims is the correct amount due and owing tothe applicant. The first respondent undertook to make an arrangement to have the amount paid by way of a debit order but has todate failed to do so. The first respondent has continued to occupy the property without title to it and continues to so withoutmaking any payment.

[28]The complaint about the failure by the applicant to repair or paint the property is no justification for withholding payment ofthe rental. The first respondent conceded in this regard that there is no clause in the lease agreement that allowed her to withholdpayment of the rental.

[29]The contention that the eviction is non-compliant with the law because there was no report from the municipality regarding alternativeaccommodation has no merit. All that the respondent needed to do was to make the municipality aware about the eviction. It wasthen for the first respondent to set out in her papers her personal circumstances which would indicate whether she would be renderedhomeless as a result of the eviction.

Legal principles- eviction

[30]The procedure to follow in initiating the eviction process is set out in s 4 (2) of the PIE Act which provides:

4 (2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve writtenand effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.”

[31]On the papers as they stand before me, there is no doubt that the applicant has complied with the procedural requirements of theAct.

[32]Turning to the substantive requirements for a lawful eviction the relevant subsections are; ss 4(6), (7), (8) and (9) of thePIE Act which provide:

(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 therelevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

(7) If an unlawful occupier has occupied the land in question for more 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 therelevant circumstances, including, except where the land sold in a sale of execution pursuant to a mortgage, where the land hasbeen made available or can reasonably be made available by a municipality or other Organ of State or another landowner for therelocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and householdsheaded by women.

(8) If the court is satisfied that all the requirements of this section had been complied with and that no valid defence has beenraised 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 contemplatedin paragraph (a).

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

[33]The requisite approach to adopt when dealing with issues of eviction is summarised by Wallis JA in City of Johannesburg v ChangingTides 74 (Pty) Ltd and Others,[5] as follows:

A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housingor achieve a gradual realisation of the right of access to housing in terms of s 26(1) of the Constitution, is faced with two separateinquiries. First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevantfactors. Under s 4(7) those factors include the availability of alternative land or accommodation. The weight to beattached to that factor must be assessed in the light of the property owner’s protected rights under s 25 of the Constitution,and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration. Oncethe court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an evictionorder, it is obliged to grant the order. Before doing so, however, it must consider what justice and equity demand in relationto the date of implementation of that order and it must consider what conditions must be attached to that order. In thatsecond inquiry, it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless therebyor need emergency assistance to relocate elsewhere. The order that he grants as a result of these two discreet inquiries isa single order. Accordingly, it cannot be granted until both inquiries have been undertaken and the conclusion reached thatthe grant of an eviction order, effective from a specified date, is just and equitable. Nor can the inquiry be concludeduntil the court is satisfied that it is in a position of all the information necessary to make both findings based on justice andequity.”

[34]There is nothing in the papers before this court indicating that the first respondent is an indigent and is unable to pay for alternativeaccommodation in the event that the applicant is granted the relief sought. Her case is not that her failure to pay the rentalis due to financial affordability but rather that she is refusing to pay because the applicant is alleged to have failed to repairthe damaged geyser and ensure that the property is in a good state of repairs.

[35]It is trite that in considering an application for the eviction of an occupier of property the court has the discretion to exercisebased on what is just and equitable in the circumstances. This principle is set out in Ndlovu v Ngcobo; Bekker and Another v Jika,[6] in the following terms:

[18] The court, in determining whether or not to grant an order or in determining the date on which the property has to be vacated(s 4(8)), has to exercise a discretion based upon what is just and equitable. The discretion is one in the wide and not the narrowsense (cf Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (‘Perskor’) [1992] ZASCA 149; 1992 (4) SA 791 (A) 800, Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) 360G-362G). A court of first instance, consequently, does not have a free hand to do whatever it wishes to do and a court ofappeal is not hamstrung by the traditional grounds of whether the court exercised its discretion capriciously or upon a wrong principle,or that it did not bring its unbiased judgment to bear on the question, or that it acted without substantial reasons (Ex parteNeethling and Others 1951 (4) SA 331 (A) 335E, Administrators, Estate Richards v Nichol and Another[1998] ZASCA 82[1998] ZASCA 82; ; 1999 (1) SA 551 (SCA) 561C-F).”

[36]The enquiry to conduct to properly exercise the discretion judicially is set out in Dwele v Phalatse and Others,[7] as follows:

20. Essentially there are two inquiries mandated by these sections. In terms of section 4(7) of the Pie Act, an eviction ordermay 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, disabledpersons and households headed by women. If the requirements of s 4 are satisfied and no valid defence to an eviction orderhas been raised, a court ‘must’, in terms of s 4(8) grant an eviction order. When granting such an order, thecourt must, in terms of s 4(8)(a) of the PIE Act, determine a just and equitable date on which the unlawful occupier or occupiersmust vacate the premises (the next inquiry). The court is empowered in terms of s 4(12) to attach reasonable conditions toan eviction order. The date that it determines must be one that is just and equitable to all parties.” (Footnote omitted).

[37]In the circumstances I find that the respondent and those occupying the property with her are doing so without the consent of theapplicant and their occupation is accordingly unlawful. There is thus there is no reason in fairness or equity consideringthe facts of this matter why the relief sought by the applicant should not granted. In other words it is just and equitable toorder the eviction of the respondent and those occupying the property with her.

[38]And about the date of the implementation of the eviction order, I am of the view that it is just and equitable to afford the respondenttwenty-one days from the date that this order is served on her for her to vacate the property.

Order

[39]In the premises the following order is made:

1.The First and Second Respondents, and all those that occupy the property by virtue of the occupation thereof by the FirstRespondent, are evicted from the following immovable property at […] A, NEW REDRUTH, ALBERTON, JOHANNESBURG as describedon Sectional Plan SS126/1988 on the Scheme known as […] in respect of the land and building and buildings situate at ERFNEW REDRUTH, […], GAUTENG PROVINCE, known as […] A., NEW REDRUTH, ALBERTON, JOHANNESBURG (the “Property”);

2.That the First and Second Respondents and all those that occupy the Property by virtue of their occupation thereof, are orderedto vacate the property within 21 (twenty-one) days from the date of service of this order;

3.Should the First and Second Respondents, and all those that occupy the Property by virtue of their occupation thereof, fail to vacatethe Property within 21 (twenty-one) days after receipt of this order, the eviction order may be carried out, in which event theSheriff of this Court is hereby authorized and directed to forthwith evict the First and Second Respondents and all those thatoccupy the Property by virtue of their occupation thereof, from the Property.

4.The Sheriff of this Court and his/her authorised deputy are hereby authorized to exercise any force necessary to execute and carryout the order granted in terms of prayer 3 above, for which purpose the Sheriff of the Court and/or his deputy may enlist the servicesof the South African Police Service to the effect above, should it so be necessary;

5.That the First Respondent be ordered to pay the cost of this Application on an attorney and client scale.

______________________

E Molahlehi

Judge of the High Court;

Johannesburg

Representation:

For the Applicants: Adv L Van Gass

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Instructed by: Nelis Brits Attorneys

For the 1st Respondents: In person

Heard: 18 April 2018

Judgment delivered: 08 May 2018

[1](20264/2014) [2015] ZASCA 97 (1 June 2015).

[3]Act 19 of 1998

[4]Sibango and Sixteen Others v PPM Plumbing (Pty) and Another ..

http://www.saflii.org/za/cases/ZAGPPHC/2016/243.htmlApr 20, 2016.

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[6]2004 (1) SA 114 (SCA) para 18.

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