MAIN IMAGE: Marlon Shevelew, director Marlon Shevelew & Associates.
Marlon Shevelew
Facts, facts, facts – the lack of which can clinch or sink an eviction order.
No matter how clear-cut the facts of any matter appear in an eviction case, there can be no clarity until the proverbial fat lady sings. In the following case the lady in question is our court system.
Landlords who are faced with the prospect of applying for the eviction of a tenant need to be aware that even though it appears clear that a tenant is unlawfully occupying a property, and that he “ABSOLUTELY MUST” not be permitted to reside any longer, a case can turn out to be much more nuanced, and factors such as the conduct of the parties, a national state of disaster, and the way in which papers are drafted all can materially influence the way any litigation will play out.
The case of Elmo-York Stuart NO v Van Dyk
Late in September 2020 a judgment was handed down by the Pretoria High Court in an eviction application. The judgment begins as countless others have, setting out that it is an opposed eviction application. The applicant was the executor of the estate of the late Mr Serfontein. The immovable property in question formed part of the estate. Where this judgment takes an interesting turn is the basis on which the respondent, Mr Van Dyk sought to oppose the application, which is borne out from the facts.
The facts
Van Dyk contested the eviction, alleging that he had a right to possess the property based on a draft covering mortgage bond over the property as well as an unsigned written offer to purchase the property. He alleged Serfontein had signed the mortgage bond, and the court consequently had to determine whether there had been compliance with section 2(1) of the Alienation of land Act 68 of 1981 (“the Act”).
Serfontein and Van Dyk were in the process of negotiating a purchase by Van Dyk of the property. In terms of the draft offer to purchase the purchase price of R1.6m would be paid in instalments and Van Dyk would be entitled to occupy the property from 1 November 2019. The final payment would be payable on 30 September 2020.
Unfortunately, Serfontein committed suicide on 16 May 2019. Van Dyk moved into the property on or before 8 August 2019. The applicant informed Van Dyk that he would consider an offer to purchase the property in the amount of R2m, since there had been no signed sale agreement between Serfontein and Van Dyk. The applicant advised Van Dyk that if no binding agreement was concluded effectively by the end of July 2019, that the property would be sold by way of public auction.
Van Dyk did not respond to an invitation to purchase the property, and the executor gave Van Dyk notice to vacate the property by 31 August 2019. The application was launched and there was a flurry of back-and-forth correspondence. Eventually an interdict was granted ordering Van Dyk to provide the executor access to potential purchasers of the property, and argument was heard on the eviction application.
Van Dyk’s contentions
Van Dyk contended that he had indeed purchased the property from Serfontein in October 2018, that an agreement of sale was signed by Van Dyk, but that he was not in possession of the contract signed by Serfontein. Van Dyk furthermore alleged that the bond documents had been signed by both himself and Serfontein, which evidenced their intention at the time of signature. He contended that the property had been purchased for R1.6m but that Serfontein had committed suicide before the registration of the bond, and before the purchase price could be paid.
Van Dyk also contended that the signing of the mortgage bond by himself and Serfontein evidenced their intention to sell the property. This was the basis on which Van Dyk alleged that section 2(1) of the Act had been complied with. He furthermore argued that the unsigned deed of sale should be read with the signed mortgage bond as this would prove compliance with section 2(1) of the Act.
Van Dyk did not address the equities in opposition to the initial application. In response to the invitation from the court to address the impact of COVID-19 on the situation, Van Dyk made various vague allegations about his health and income in general but failed to provide any proof of the allegations he made.
The applicant’s contentions
The executor alleged that since there was no signed agreement of sale, the property simply had not been sold to Van Dyk, and that any agreement was void for non-compliance with section 2(1) of the Act, which requires that any deed of alienation of immovable property be signed by the parties thereto or their agents.
The executor contended further that it was equitable for Van Dyk to be evicted, and that the order should not be suspended despite the national state of disaster, as there was ample opportunity for alternative housing since Van Dyk was not without financial means, and because of the sparseness of the allegations made by Van Dyk in his papers.
Court’s reasoning
Although the court was not in possession of a copy of the mortgage bond signed by Serfontein, the court accepted that Serfontein had signed the mortgage bond. Eventually the court considered the terms of the mortgage bond and the unsigned deed of sale and found that, contrary to Van Dyk’s contention, they did not contain the same terms. The court therefore found that even if the mortgage bond is read with the unsigned deed of sale it does not comply with section 2(1) of the Act.
The court therefore found that the executor had proved that the estate was the owner of the property and that Van Dyk had failed to prove that he was entitled to possess the property. The court then proceeded to consider the remainder of the eviction application, and the equitable factors surrounding Van Dyk’s possession of the property.
The court also considered the impact of COVID-19, as courts are enjoined to do in terms of the various practice directives issued by the heads of court of inter alia the Constitutional Court and the regulations issued in terms of the Disaster Management Act 57 of 2002 (“the regulations”). In terms of the regulations, a court may suspend an order for eviction until the termination of the state of disaster unless a court is of the opinion that it is not just and equitable to suspend the order.
The court remarked that Van Dyk’s legal team did not place facts and circumstances before the court which could influence the outcome. Likewise, in respect of COVID-19 the court found that the affidavits filed by Van Dyk in respect of the impact of COVID-19 are “a study in bold assertion-making”. The court made specific mention of the duty which is on the lawyers representing respondents in eviction, and that there is a duty on them to place sufficient facts before the court.
Critical analysis
In this case the respondent did not place any significant facts before the court on which the consideration of the equities were allowed to significantly impact the outcome. And the respondent herein also did not raise any issues of substance regarding COVID-19 and the impact it should have on the equities.
One has to wonder how different this judgment may have been had Van Dyk’s attorneys simply placed more emphasis on the equities surrounding the eviction, or availed themselves of the opportunity afforded them to address the impact of COVID-19 on the eviction.
This court took a robust approach to the facts before it, commenting that the respondent has taken advantage of the situation by occupying the property without cost. The court recognized that the respondent had been dilatory and unreasonable and was not fooled by the mere say-so of Van Dyk that he would be prejudiced were the eviction granted.
Conclusion
This case is an excellent example of the twists and turns that a straightforward eviction can take. There was no defence in law. And in this case the court found, correctly in my view, that the respondent should be evicted, and that it would be inequitable for that order to be suspended.
But the outcome could have been very different: if the respondent had placed enough facts before the court regarding the circumstances surrounding or the consequences of the eviction, or if the respondent had perhaps not been legally represented, then the court may have exercised its discretion to suspend the eviction order in favour of the respondent, saddling the applicant with the unlawful occupant much longer.
This case is also a lesson for anyone who may one day have to take part in similar litigation. Facts are of cardinal importance. Even if you have a good case, it can be torpedoed by a failure to place sufficient facts and proof before the court. And if you have a poor case on the strict law, the equities can significantly influence the outcome, but only if you have sufficient facts before the court to enable it to exercise its equitable discretion in your favour.
There is also a final takeaway. Courts are not blind to shenanigans, and though an email sent during an argument may make one beam with the satisfaction that comes from feeling decisive, a court may look on such an attitude with an equally strong, but opposite sentiment. Landlords are not immune from this either – trying to take a tenant for everything that he’s got will inevitably result in an unfavourable reaction from any judge who gets wind of such an attitude.
The full judgment is currently published under Juta’s Unreported Judgments and cited as Stuart NO. v Van Dyk 2020 JDR 2118 (GP), and can be found on SAFLII cited as Elmo-York N.O v Van Dyk and Another (67219/2019) [2020] ZAGPPHC 570 (22 September 2020) and retrievable here.
About the author: Marlon Shevelew is the director of law firm Marlon Shevelew and Associates Inc. Shevelew is a well-known expert authority on residential property law in South Africa.
