It was therefore a total shock when he was informed by the Appellant that he had been appointed as executor of the estate of the deceased and that the Respondent and his by aT10o94U

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									               IN THE HIGH COURT OF SOUTH AFRICA

          (WESTERN CAPE HIGH COURT, CAPE TOWN)


CASE NUMBER:                                         A355/1 1

DATE:                                        24 NOVEMBER 2011

In the matter between:

CLYDE STEWART MEYER NO                               Appellant

And

SIMPHIWE SIFILE                                      Respondent




                               JUDGMENT




LE GRANGE, J:




In this matter the Appellant brought an application in the Court a quo for the eviction

of the Respondent in terms of Section 4(1) of the Prevention of Illegal Eviction from

Unlawful Occupation of Land Act, 19 of 1998, (the "PIE Act").




Today the Respondent is absent and various attempts were made to secure the

presence of the Respondent. It appears that his attorneys of record withdrew from

record. This Court then instructed the Justice Legal Centre to be of assistance and

this morning Mr Goosen from the Justice Centre was present and indicated on

record what attempts were made to get the Respondent here at Court.
Adv Filand for the Appellant also indicated that his attorneys tried to inform the

Respondent to be here present, but the Respondent indicated that the respondent

has got no interest in the matter anymore.




In the interest of justice, this Court will now proceed.




The magistrate, having heard argument, dismissed the application on the basis that

the Appellant lacked the necessary loco standi. The Appellant now appeals against

that decision.




The common cause facts underpinning the application between the parties can

briefly be summarised as follows:




The Appellant was appointed by the Master of this Court on 22 June 2010, as the

executor of the estate of the late Katriena Pietersen ("the deceased"), who died on

30 October 2007.




In terms of a written notice issued on 28 September 2010 by the Stellenbosch

Municipality, Erf 1188, Klapmuts, also known as 18 Remmit Street, Klapmuts,

Stellenbosch ("the Property") was allocated to the deceased in the form of an

approved subsidy and, at the time of the application was in a process of being

transferred into her name. This property is also the same house that the deceased
lawfully occupied and resided in before her untimely death.




The Appellant, as executor of the deceased's estate, decided to launch an

application on 25 November 2010, in terms of the PIE Act, to evict the Respondent

and all those occupying the property under his name.




In the finding affidavit of the Appellant, the following relevant averments are

recorded:




            "3. Die boedel van me Pietersen is aangestel as persoon in beheer van

            die perseel gelee te Erf 1188 Klapmuts, ook bekend as Remmitstraat 18,

            Klapmuts, Stellenbosch (die perseel). Vind asseblief hierby aangeheg 'n

            bewys van die voorgemelde gemerk Aanhangsel (CSM2).

            4. Respondente se woonregte was by wyse van skrywe gedateer 28

            Oktober 2010 van CSM Prokureurs beeindig. Vind asseblief hierby

            aangeheg 'n afskrif van gemelde skrywe as gemerk Aanhangsels

            (CSM3)

            5. Nieteenstaande bogemelde weier en of versuim Respondente om

            perseel te ontruim en bewoon die Respondente die perseel onwettig.

            6. Respondent se onregmatige optrede verhoed dat wyle me Pietersen

            se erfgenaam besit van die eiendom kan neem.

            7. Ons versoek dus die Agbare Hof om 'n bevel toe te staan soos

            versoek ingevolge meegaande aansoek."
The letter from the Municipality (marked CSM2) contains the following relevant

information:




           "Boedel wyle K Pietersen, erf 1188, Klapmuts. Graag erken ons kantoor

           ontvangs van u skrywe gedateer 2 Augustus 2010. Ons stel u ook in

           kennis dat die eiendom wel aan me K Pieterse geallokeer is deur middel

           van 'n goedgekeurde subsidie en dat hierdie kantoor besig is met

           oordragproses."




The relevant notice is dated 28 September 2010 that the Appellant relied upon to

terminate the Respondent's occupational rights to the property was framed as

follows:

           "Dit is ons instruksies dat u tans die perseel gelee te Remmitstraat 18,

           Klapmuts, Stellenbosch, die perseel bewoon. Ons beeindig hiermee u

           woonreg ten opsigte van die perseel en versoek dat u asook alle ander

           persone wat onder u die perseel bewoon dit voor of op 15 Oktober 2010

           moet verlaat. Geliewe kennis te neem dat sou u versuim om gemelde

           perseel voor of op 15 Oktober 2010 te verlaat ons sonder enige verdere

           kennisgewing 'n uitsettingsaksie teen u sal loods welke regskostes aan u

           aanspreeklik gehou sal word."




The Respondent in his opposing affidavit does not dispute that he is residing at the
property with his common law wife and five minor children. According to the

Respondent, during 2005 he and his family reached an agreement with the late Ms

Pietersen to stay with her. He had to pay an amount of R200.00 per month for rent.

As a result of his big family, the deceased gave permission for them to erect a steel

and wooden structure at the back of the property, which they subsequently did

during 2006. The deceased then increased the rental amount to R300.00 per month,

which amount they regularly paid directly to her. During 2007 the deceased fell ill

and requested the Respondent and his family to move back into her house so that

his common law wife could take care of her. On 30 October 2007, the deceased

passed away and was buried soon thereafter.




According to the Respondent, he then contacted the Stellenbosch Municipality in

order to enquire what was going to happen with the property as they were presently

occupying it. An Officer at the subsidy office at the Stellenbosch Municipality

informed him that he and his family could stay on as the property was not registered

in the name of the deceased. Furthermore the same officer, whose details the

Respondent did not have, informed the Respondent that the deceased was only

allocated a subsidy and the house was not yet registered in her name. The

Respondent is adamant that none of the deceased's family members came forward

to make any claims regarding the said property and since 2007 he and his family

had uninterrupted occupation of the said property.




The Respondent states that due to the conduct of the municipality, he gained the

impression that he and his family could qualify for a subsidy for the house. It was
therefore a total shock when he was informed by the Appellant that he had been

appointed as executor of the estate of the deceased and that the Respondent and

his family had to vacate the house.

At the hearing, the Respondent's attorney raised the point in limine regarding the

Appellant's lack of locus standi. It was contended on behalf of the Respondent that

the Appellant was not the owner of the property and that the property was never

registered in the name of the Appellant. It follows therefore, so it was argued, that

the Appellant lacked the requisite locus standi \o bring the application.




The magistrate in his judgment relied heavily on the dictum in Reddy v Decro

Investments CC t/a Cars African and others 2004(1) SA 618 D + CLD to arrive at his

finding that the Appellant failed to establish the requisite locus standi in the matter

and accordingly dismissed the application without making any costs order.




It is trite law that an executor is not a mere procurator or agent for the heirs, but is

legally vested with the administration of the estate. The executor is therefore the

proper person to enforce rights of action and recover property which belongs or

aught to belong to the estate. Moreover, an estate is an aggregate of assets and

liabilities and a totality of the rights, obligations and powers of dealing therewith,

vests in the executor so that he can alone deal with them.




In this regard see Botha NO v Deetlefs and Another 2008(3)

SA 419 (N) at 421 h-j:
           "And a commentary of legal right as in other case law referred to

           therein."




In the present instance the provisions of Section 4 and 7 of the PIE Act are

applicable. Sub-sections 4(1); 4(2); 4(8) and 4(9) reads as follows:




           "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.

           (2) At least 14 days before the hearing of the proceedings contemplated

           in subsection (1) the court must serve written and effective notice of the

           proceedings on the unlawful occupier and the municipality having

           jurisdiction.

           (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 the relevant circumstances,

           including, except where the land is sold in a sale of execution pursuant

           to a mortgage, whether land has been made available               or   can

           reasonably       be   made available by a municipality or other organ of

           state    or     another     land   owner     for     the relocation of the

           unlawful occupier,        and including    the     rights   and    needs      of
           the elderly,        children,        disabled      persons     and households headed

           by women.

           (8)      If    the     court         is    satisfied    that   all    the requirement s

           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."




On a conspectus of all the facts in this instance, the magistrate clearly erred and

adopted a wrong approach in dismissing the Appellant's application on the basis of

lack of locus standi. The reliance by the magistrate on the dictum in the Reddy

matter to arrive at the result was contrived. In the Reddy matter it was held that in

an ordinary lease a lessee of premises not yet in possession thereof who having no

real right to such property does not have locus standi to bring an application for the

ejection of occupiers. The definition of an "owner or person in charge of land" as

stipulated in the PIE Act did not arise in the Reddy matter.
On the undisputed facts, it is common cause that the deceased occupied the

property until her death. Furthermore, the letter from the Stellenbosch Municipality

indicates that the property was already allocated to the deceased by way of an

approved subsidy and that the Municipality was already in the process of registering

the transfer of property to the deceased.

The deceased, so it appears from the municipality letter, was as a result of the

allocation by the municipality in lawful possession and in charge of the property.

Moreover, if one has regard to the definition in terms of the Act as to the person in

charge, it means the, the definition is as follows:




           "The person in charge means a person who has or at the relevant time

           had legal authority to give permission to a person to enter or reside upon

           the land in question."




It is patently clear that the executor in this instance had legal authority to institute

these proceedings. The reliance by the Magistrate on the Reddy judgment was

therefore misplaced. The Reddy judgment does not find application on the facts of

this matter.




Furthermore the magistrate's view that the purpose of the PIE Act is to protect only

a certain type of occupier and that the Act does not extend to executors, is clearly

wrong. The estate of a deceased person is an aggregate of assets and liabilities
and a totality of the rights, obligations and the powers of dealing therewith, vests in

the executor.

The Appellant in casu is the duly appointed executor of the deceased estate. In the

instant case, the registration of the transfer of the property is in process and should

the registration proceed, the deceased's estate will have an undisputed right, title

and interest in respect of the property.




Accordingly, the Appellant does have the necessary locus standi to bring an

application of this nature as he alone can deal with the property. As such the

magistrate's refusal of the application on these grounds is incorrect.




There are, however, other concerns in this matter. On the papers filed of record it is

unclear whether the municipality was given proper notice as required by Section 4(2)

of the PIE Act. In this regard see Cape Killarney Property Investments (Ptv) Ltd v

Mahamba 2001(4) SA 1222 (SCA) at 1227e.




Moreover, the allegations by the Respondent that permission was granted by him to

an officer of the municipality to occupy the property was not fully investigated.




Furthermore, it is questionable whether the time period of a day given in the

Appellant's notice to the Respondent to terminate his occupation and to vacate the

property was equitable and reasonable at all.
It is, therefore, necessary that the matter be properly investigated by the magistrate

when the merits in the Court a quo are considered. It follows that the appeal in this

matter should succeed.




In the result the following orders are made:




(a)      The appeal succeeds. The Court a quo's finding that

                 "Die Applikant se aansoek word van die hand gewys"

         is set aside and substituted by the following:

                    "Die Respondent se aansoek in limine dat die Applikant geen

                    locus standi het nie, word van die hand gewys."

(b)      There is no order as to costs in this matter.



      LE GRANGE, J

      I agree.




      VAN STADEN, AJ

								
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