Halle & another v Downs (LCC78R/2007) [2008] ZALCC 15 (20 November 2008)
This judgment deals with the scenario where an elderly couple had breached the terms of their lease agreement. When the property owner applied for their eviction, they relied on the provisions of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’) and alleged that they were ‘occupiers’ for purposes of this Act and that they should therefore be provided the benefits of ‘security of tenure’ as contained therein. On the facts, the court found that they were not ‘occupiers’ as defined in the Act, that their continued occupation of the land constituted unlawful occupation as defined in the Prevention Illegal Eviction from and Unlawful Occupation of Land Act 19, 1998 (‘PIE) and that they should therefore be evicted from the property in terms of the latter Act.
The judgment is an interesting example of the application and interaction between the ESTA and PIE Acts and is a worthwhile read for practitioners specialising in the application of these acts.
The judgment can be viewed here.
Facts:
Mr and Mrs Halle, both over 60 years old, were married out of community property. Mrs Halle purchased a farm in [1983] and they have lived on the farm [since 1966]. Due to financial difficulties [1], Mrs Halle sold the farm to Downs in 1994. The agreement included the provision that Mr & Mrs Halle could remain in residence on the farm and would for a period of 5 years have the right to buy back the farm at the same price that Downs had paid for it. Subsequently Mr Halle and Downs entered into a lease agreement in respect of a portion of the farm. At some stage Mr Halle fell into arrears with the lease and subsequently also refused to re-negotiate the terms of the lease with Downs.
Downs accordingly applied to Court for an order evicting Mrs & Mrs Halle from the premises. Their defence was that they are long-term occupiers, over the age of 60 and had resided on the farm for longer than 10 years - and that they accordingly are protected in terms of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’).
The Magistrate’s Court found that they did not fall within the definition of ‘long-term occupiers’ as provided for in ESTA and granted the eviction order in terms of ESTA. Mr & Mrs Halle then appealed to the Land Claims Court.
Held:
ESTA defines an occupier as a person residing on land that belongs to another and who had consent to so reside on 04/02/1997 or thereafter, but excluding a person who uses the land mainly for industrial, mining or commercial farming and excluding a person who has an income in excess of R 5000 a month.
In this matter however the Court agreed with the Magistrate's Court finding that Mr and Mrs Halle did not fall within the definition of an 'occupier'. In the first place, with regard to the position of Mrs Halle, the Court found that she was not an ‘occupier’ in her own right since it was her husband who had concluded the lease agreement with Downs; Mr Halle was the ‘occupier’.
Secondly, with regard to the income requirement in the definition of ‘occupant’ the Court held that in order to avoid absurdities the income referred to in the definition should be interpreted as the income accruing to spouses jointly. To hold otherwise would result in the situation that spouses can claim the protection of ESTA in circumstances where one spouse has the required consent to occupy property but receives a minimal income, while the other (who may not be an occupier in his own right) is wealthy and earns a substantial income.
Furthermore, in order to qualify as an occupier, the spouses must have had a joint income of less than R 5000[2] for a full period of at least 10 years.
On the facts is was apparent that at least for certain periods Mr and Mrs Halle earned an income in excess of R 5000 per month which they earned from running business activities from the farm.
However, the Court noted that even if it was found that Mr and Mrs Halle were ‘occupiers’ for purposes of ESTA, the action would still not succeed because they had committed breaches as contemplated in section 10 of ESTA. The section reads as follows:
“10
(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if -
(a) the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;
(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month’s notice in writing to do so;
(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or …”
On the [available] evidence, Mr Halle breached the terms of the lease agreement by refusing to tender payment in terms of the lease agreement. He thereafter also refused to enter into consultations with Downs to re-negotiate a lease agreement and has thereby breached the relationship with the property owner.
Taking the above into account the Court held that the Halle pair could not avail themselves of any of the protection afforded under ESTA.
How should they then be dealt with? The Court held that in the circumstances Mr and Mrs Halle are ‘unlawful occupiers’ for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19,1998 (‘PIE’). Since Downs had complied with the necessary notification procedures as laid down in PIE, the Court was at liberty to grant an eviction order. It was also shown that Mr & Mrs Halle were not destitute in that their children were willing to and in a position to accommodate them.
The order was accordingly granted and Mr and Mrs Halle were evicted from the farm.
Moral of the story: It is important to be aware that for purposes of the definition of 'occupier' in ESTA, the joint income of the spouses are used as a guideline. Moreover, applying for protection in terms of ESTA requires fair play on the side of the occupier. In terms of section 10 of ESTA the occupier is obliged to maintain bona fides in his or her dealings with the property owner failing which he or she may forfeit the protection that the Act can provide.
Source: gqwetha Training Academy
[1] The court did not inquire as to the nature of the financial difficulty
[2] This threshold has not been amended since the inception of ESTA, despite cost of living increases
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