The Prevention of Illegal Evictions Act 19 OF 1998 – What is new?

A brief discussion of the latest Constitutional Judgment on the Act – the matter of Occupiers of Erven 87 and 88 Berea v De Wet, Christiaan Fredrick N.O and Another CCT 108/2016:

This judgment deals with relevant circumstances that must be considered by the court, even if the order for eviction is made in terms of a settlement agreement, by consent.

It is important to bear in mind the provisions of Section 26 of the Constitutional Court set out below.

“26 Housing – (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of the right.

(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.”

In the De Wet Judgment by the Constitutional Court handed down on the 8th of June 2017 an application was brought for leave to appeal against the judgment of the High Court in JHB. The High Court refused to rescind an eviction order that had been granted against 184 men, women and children (occupiers) who occupied a block of flats. The property was owned by Rocha Investments CC since 1985. The first and second respondents were appointed as joint liquidators of the Close Corporation. Mr. Maseko purchased the property from the liquidators and intended to restore the property as residential accommodation. In January 2013 a preliminary notice of eviction was served on the occupiers and a court order obtained authorizing the service of the eviction application on the occupiers in terms of Section 4(2) of PIE.

After receiving the Notice of the date the occupiers appointed Mr. Magubane and four of the Occupiers were present. Counsel for the Liquidators informed the Court on the date of hearing that a settlement agreement was reached and that the occupants will vacate the property in terms of the settlement reached. The draft order was then made an order of Court by agreement with Mr. Magubane and the other four Occupants confirming the draft order.   The occupiers then obtained legal representation when they realized that they now have to vacate the property, on the basis that they only authorized Mr. Magubane to postpone the initial application and that he was not mandated to settle the matter on their behalf. The brought an application for rescission of the eviction order granted against them. The High Court refused the application for leave to appeal and a petition was lodged to the Supreme Court of Appeal to grant leave to appeal. This application too failed. The Constitutional Court was then approached for assistance.

 

The occupiers’ arguments can be summarized as follow:

  1. There was no consent by all the occupiers to settle the matter and that even if there were consent that the consent was no valid.
  2. They further argued that the Court dealing with their eviction was under the Constitutional and Statutory obligation to satisfy itself that the eviction would nevertheless be just and equitable after considering all the relevant circumstances.
  3. As such they sought a rescission of the order under Rule 42 of the Uniform Rules of Court and the common law.

The Liquidators in turn argued that:

  1. The Occupiers did not have any right to occupy the Property and had failed to disclose any defense.
  2. They also argued that the occupiers failed to take any steps to secure alternative accommodation and were represented in Court when the eviction order was made.
  3. Lastly the Liquidators contended that the Occupiers had failed to establish efficient cause for rescission of the consent order at common law.

There was a further party joined as friend to the court known as The Poor Flat Dwellers Association who submitted that even where parties in eviction proceedings seek to have an eviction order by agreement granted, such consent does not relieve the court of its obligation to perform the judicial oversight function imposed by PIE.

The Constitutional Court handed down a unanimous judgment through Mojapelo AJ, the thrust of the judgment is the following:

 

  1. Any agreement which waivers any Constitutional Right must be just and equitable and local authorities must be joined and take an active part in the process.
  2. Section 26(3) of the Constitution read with the PIE Act obliges a court to establish for itself whether it will be just and equitable to make the eviction order. The Court must take active part in making this finding. The PIE act has numerous Sections which refers to “the Court must…” The legislator clearly intended for the Court to play an active role before granting an eviction order.
  3. The Court added that the court should satisfy 2 enquiries, firstly whether the eviction order will be just and equitable and then to decide what the commencement date of the order should be.
  4. It is not however just the duty of the Court in the process but the onus of all the parties to make available all relevant and adequate information of the relevant circumstances to assist the Court in making a just and equitable finding.
  5. The Court was clear that where there are no or inadequate information the Court MUST NOT make an eviction order. The Court cannot enforce an agreement if all the relevant facts are not known to the Court even if it is a settlement agreement.
  6. It was confirmed by the Learned Judges that the PIE Act does not necessitate a joinder of the Municipality to an eviction application however Section 26 of the Constitution places a duty on the Municipality (local authority) to provide occupation to all in need of it. For practitioners this point is important as it seems where there is any signs that the Respondent might, once an eviction order is grant against him/her, become homeless it will be necessary to join the Municipality to the proceedings.
  7. In the Law “a valid defense” is a defense which is good in law. A defense that someone will be homeless if evicted is not a defense good in law. This was also the argument of the Liquidators. The Court disagreed and indicated that homelessness must be taken into account and it indeed a consideration of execution of the eviction. Where it will be unjust and inequitable then the defense of homelessness is indeed a valid defense.
  8. In respect of the settlement agreement the court held that the Court must still investigation whether enforcing the agreement will be just and equitable and only after making careful considerations of all the circumstances can the court enforce the agreement, if it will be just and equitable to do so.
  9. Finally the settlement agreement which was made an order of court by the Court a quo was rescinded. The Constitutional Court, after joining the Municipality as a Respondent referred the matter back to the High Court to make proper enquiries into whether it will be just and equitable to grant an eviction order.

For land owners the Court gave some hope when commenting that the PIE act does not seek to frustrate land owners or to emphasize illegal occupants rights above those of land owners, but rather the delay the right of an owner to ensure that the occupants, who are usually indigent persons, will not be left destitute and out on the street.

By
Marguerite Kirchner
marguerite@dyason.co.za

Court awards mother damages for loss of genetic affinity

After parents made sure that their bundle of joy is blessed with ten toes and ten fingers, family members usually make turns to opine about whose nose, eyes or hair the newcomer has inherited. But what if the new baby does not resemble any parent, siblings or other family members at all?

This was the situation faced by a couple undergoing In-Vitro Fertilisation (IVF) for a second time at a Singaporean fertility clinic in ACB v Thomson Medical Pte Ltd and others [2017] SGCA. Baby “P”, a healthy baby girl that was born to a Chinese mother and a German father, had a much darker skin colour than her parents and older sibling and could her blood type not be reconciled with that of her parents.

On closer investigation it became clear that the ovum of the mother was fertilised with sperm of an unknown donor of Indian ethnicity, instead of the sperm of her husband.

Although not able to identify the particular act of negligence, Baby “P’s” mother instituted a claim based on the legal principle of res ipsa loquitur, which means that the mere occurrence of this type of accident is sufficient to imply negligence committed by the fertility clinic and its staff. However, proving that the clinic and its staff acted negligently was not the real issue, but the court’s challenge to determine the basis of the damages that needed to be awarded to Baby “P’s” mother.

In Donoghue v Stevenson [1932] AC 562 the court acknowledged that scientific advancement is increasingly making things possible that were unimaginable only a decade ago and that the law must “…adapt itself to the changing circumstances of life…” IVF is but one example of recent scientific developments that challenge our ethical beliefs and legal systems. Thus considering the kind of damages that Baby “P’s” mother suffered as a result of the mixed up sperm sample, it is important to distinguish between a woman wanting to conceive a baby as opposed to Baby “P’s” mother who wanted to conceive a child with her husband. In the first instance the sperm of any willing and able sperm donor would suffice, where Baby “P’s” mother specifically wanted to have a baby with the man she was married to. Baby “P’s” mother subsequently found herself a parent to baby that shares half her genetic material with a complete stranger!

In recognition of the legal right to not merely wanting to have a child, but to have a child with someone specific was confirmed in the English case of Leeds Teaching Hospitals NHS Trust v Mr A and others [2003] EXHC 259 (QB)in which the court said that:

  …any wrongful action by Mr A would accordingly seek damages, not on the          basis that a conception took place, but rather that this conception took place… [t]o use deliberatively provocative language, the ‘harm’ would consist not in the conception and subsequent birth of a child to the woman who did not wish to become a mother, but in the conception and birth of these children to a woman who wished to become a mother to different children…

In the American case of Andrews v Keltz 15 Misc 3d 940 (2007) in which a mother’s egg was also inseminated with the sperm of a stranger the court acknowledged that due to the negligence of the fertility clinic and its staff, the mother ended up with a child she never wanted or planned for. The court subsequently found that the essence of any wrongful conception claim is that the Plaintiff never planned to have this child which resulted from the use of the wrong genetic material, but instead desired to have a child with a person with whom she shared a genetic kinship. This judgement confirmed similar findings in Weintraub v Brown 98 AD 2d 339 (1983) & O’Toole v Greenberg 477 NE 2d 445 (1985).

To determine whether a mother suffered any damages as a result of so-called loss of genetic kinship one must first determine what genetic kinship is.

William Donald Hamilton (1 August 1936 – 7 March 2000) an English evolutionary biologist actually devised a mathematical formula – now called Hamilton’s rule – that specifies the conditions under which reproductive altruism evolves: r x B > C (where B is the benefit (in number of offspring equivalents) gained by the recipient of the altruism, C is the cost (in number of offspring equivalents) suffered by the donor while undertaking the altruistic behaviour, and r is the genetic relatedness of the altruist to the beneficiary. This formula effectively confirms the evolutionary and biological nature and importance of genetic relatedness and kinship.

The legal twist on this scientific formula is that by reason of the fertility clinic’s negligence, Baby “P’s” mother suffered a severe dislocation of her reproductive plans that is constituted principally by the fracture of biological parenthood. In an article by Leon R Krass entitled: Life, Liberty and the Defences of Dignity: The Challenge for Bioethics (Encounter Books, 2002) he eloquently describes that:

…the desire to have a child of one’s own is a couple’s desire to embody, out of the conjugal union of their separate bodies, a child who is flesh of their separate flesh made one. This archaic language may sound quint, but…this is precisely what is being celebrated by people who rejoice at the birth of Louis Brown [the first baby born via IVF], whether they would articulate it this way or not. Mr. and Mrs. Brown, by the birth of their daughter, embody themselves in another, and thus fulfil this aspect of their separate sexual natures and of their married life together…

The Singaporean court in the case of Baby “P” concluded that the loss suffered by her mother is a culmination of biological, social, ethical and historical factors, many of which have to do with aspects of human relationships and personhood that are fundamental parts of the human condition, the role of genetic relatedness, physical resemblance, race, culture and the importance of familial relations – and became the first court in the world to award a mother damages purely on the basis of her loss of her genetic affinity with her baby.

This case opened the door for other courts to also recognise a mother’s interest in maintaining the integrity of her reproductive plans and specifically her decision to have a child with her husband to maintain an intergenerational genetic link and to preserve “genetic affinity”.

What happened with her husband’s sperm? That’s perhaps an article for another time 😉

By
Marietjie Botes
marietjie@dyason.co.za

@marietj72675939 (Biotech Law)

City of Tshwane Metropolitan Municipality v Peregrine Joseph Mitchell (38/2015) (2015) ZASCA 1

The event of buying of a home and its penumbra is such an esteemed and a pleasant thing, all emotional corners of your being are coerced into a transaction that should supposedly propel you into another level of the Maslow’s stairway.

Well, if anything is to go by it, consider the statutory hypothec the Municipality has over your new property for historical debts. To throw the spanner in works, this debt predates you. Now that I have your attention, in this article, I will endeavor to explain the current legal position herein.

In the court a quo, the court heard how Mr. Joseph Mitchell (hereafter Mitchell) bought a fixed property at a sale in execution. I pause to mention that it is important at the outset to note the different methods of buying property i.e. by Offer to Purchase, sale in execution, auction. So, the conditions of the sale in execution included, inter alia, “the purchaser shall be responsible for payment of all costs and charges necessary to effect transfer including conveyancing costs etc. or other like charges to procure a rate clearance certificate, transfer duty, VAT attracted by the sale and any Deeds registration office levies”.

Now, I implore you to consider the aforesaid within the context of what the law provides via the provisions of Section 118 of the Municipal Systems Act, 32 of 2000 (the Act):

  1. (1) A registrar of deeds or other registration officer of immovable property may not register the transfer of property except on production to that registration officer of a prescribed certificate— (a) issued by the municipality in which that property is situated; and (b) which certifies that all amounts due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid.

(2) In the case of the transfer of immovable property by a trustee of an insolvent estate, the provisions of this section are subject to section 89 of the Insolvency Act, 1936 (Act No. 24 of 1936).

(3) An amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property.

So, Mitchell enquired from the Municipality in respect of Section 118(1) supra for the clearance certificate to which an outstanding debt of R232 828.25 was owing. He asked the Municipality to revise the debt to show debt of two years prior and paid R126 608.50 towards same. Question is, whose debt does the differential being R106 2019.75 belong to? Things got shifty when he sold the property to one Ms. Prinsloo. She requested the Municipality, prior to registration, to have an account in her name opened so she can receive municipal services and the Municipality refused, grounds being the enormity of the outstanding debt (106K supra). At this point, she threatened to cancel the agreement with Mitchell. I refer you at this point to Section 118(3) supra.

Mitchell felt obligated to see the transfer through and approached the High Court in a bid to “force” the Municipality to accede to Prinsloo. The court aquo agreed with his averments. The celebrations were short lived as city residents’ alike cocooned emotions until an appeal judgment was handed down. In the Appeal, the judgment of the court a quo was reversed, without detailing the shortcomings of the applications and the arguments, here is for me what the matter turned on:

  1. Whether or not the position in common law was reversed by this statutory hypothec of Section 118, Voet noted an exception[1] which read: “Another exception when mortgaged properties have been sold and delivered on the petition of creditors by order of a judge with employment of the formalities of a spear and creditors holding a hypothec having kept quiet. Nevertheless, by our customs in such a case the price takes the place of the thing and a hypothecary creditor is permitted to contest with the rest of the creditors the privilege of preference over the price of the mortgaged property.”
  2. Whether or not the sale in execution severs the hypothec on a property after transfer as it is not a normal fixed property sale but one declared by a judge.

 

  1. Rule 46(5)(a) of the Uniform Rules of Court states: “No immovable property which is subject to any claim preferent to that of the execution creditor shall be sold in execution unless- (a) the execution creditor has caused notice, in writing, of the intended sale to be served by registered post upon the preferent creditor, if his address is known and, if the property is rateable, upon the local authority concerned calling upon them to stipulate within ten days of a date to be stated a reasonable reserve price or to agree in writing to a sale without reserve; and has provided proof to the sheriff that the preferent creditor has so stipulated or agreed, or…” If this Notice was served, why would the Municipality not have provided their outstanding debt so that they can recover same inclusive in the sale price?

The SCA argued and in my view, on technicalities of the initial application chief amongst which was Mitchell should not have launched the application because the Municipality showed an intention to proceed against Ms. Prinsloo for the historical debt and had not done so at the time, thereby deeming his application premature. That before the Municipality could pursue the historical debt, it has to comply with its own bylaw and do the following: It has to show that 1. There is no occupier on the property concerned and 2. The debtor who had a contract with the Municipality had absconded and could not be traced. Further held the common law position was amended by Section 118.

Interestingly, a dissenting judgment noted the legal issue differently and held that the common law was upheld by Section 118, if not, it would have read differently and that Voet’s exception would apply in casu and would sever the hypothec as a result. The latter he held would not apply where there was an agreement to purchase immovable property and that the Mathabathe[2] case which formed a part of the argument should not have become about since it involved an auction which had nothing to do with matter in casu.

In conclusion, the hypothec and or debt over immovable property may be enforced by the Municipalities. Legally vexed as it is, perhaps under a different legal argument, the matter on Section 118 may be challenged successfully, till then, you be the judge.

By

Phalen Selibi
phalen@dyason.co.za