IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT Case No: 143/13 WCHC Case No: 20682/2009
In the matter between:
JOHANNA MALAN Applicant
and
CITY OF CAPE TOWN Respondent
RESPONDENT’S PRACTICE NOTE
NATURE OF THE APPLICATION
1. This is an application for leave to appeal against the order of the Western Cape Division of the High Court, Cape Town by Dolamo J (“High Court”), handed down on 22 April 2013.
ISSUES FOR DETERMINATION
2. The main issue for determination is whether the Respondent (“City”) was entitled to cancel the Applicant’s lease and seek her eviction, along with that of her children, from property owned by it and forming part of its sub-economic housing rental stock.
DURATION OF ORAL ARGUMENT
3. Oral argument will not exceed 1 day.
4. The City estimates that it will require 1 hour for oral argument.
RELEVANT PORTIONS OF THE RECORD
5. The portions of the record relevant to the City’s case are referred to in its heads of argument.
SUMMARY OF THE ARGUMENT
6. The Applicant and her children occupied premises owned by the City, which formed part of its rental housing stock.
7. The Applicant was the lessee of in respect of the property and her children held title to occupy the property through her.
8. The lease required the Applicant to make monthly rental payments in a nominal amount, not permit the property to be used for illegal activities and not make any structural alterations to the property.
9. The Applicant breached the lease in all three material respects.
10. The City attempted to accommodate the applicant’s breach through her failure to pay rental by entering into a payment arrangement with her in respect of her arrear rental, which she also breached.
11. In the circumstances, and with particular regard being had to the serious nature of the illegal conduct being carried out on the property, the City cancelled the lease and communicated same to the Applicant in a letter of cancellation.
12. Failing the Applicant’s surrender of the property, the City was compelled to bring an eviction application in the High Court.
13. The High Court found that the Applicant and her children were unlawful occupiers in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). The High Court also found that it would be just and equitable to order the eviction of the Applicant and her children, subject to alternative accommodation being found for the Applicant at one of the City’s old age homes.
14. The City denies the Applicant’s allegations that the terms of the lease permitting cancellation were contrary to public policy or exploitative of the Applicant’s weaker bargaining position.
15. The City denies that its notice of cancellation was invalid.
16. The City supports the High Court’s findings in all material respects, and argues that the application for leave to appeal should be dismissed in the light of the factual background and precedent of this Court in similar fact cases.
MAIN AUTHORITIES ON WHICH THE CITY RELIES
17. The authorities on which particular reliance will be placed during oral argument have been indicated with asterisks in the Respondent’s attached list of authorities.
____________________
NAZREEN BAWA
____________________
UDAY KIRAN NAIDOO Respondent’s counsel
LIST OF AUTHORITIES
1. Blankenberg and Others v City of Cape Town [ZAWHC]
A246/2012 (11 March 2013) ***
2. Abahlali baseMjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others 2010 (2) BCLR 99 (CC)
3. Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) ***
4. Barkhuizen v Napier 2007 (5) SA 323 (CC) ***
5. City of Cape Town v Daniels and Others [ZAWHC]
5090/2011 (25 August 2011) ***
6. Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC)
7. City of Cape Town v De Bruin [ZAWHC] 6914/2009 (10 August 2010)
8. Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & Others 2010 (3) SA 454 (CC)
9. FHP Management (Pty) Ltd v Theron NO and Another 2004 (3) SA 392 (C) ***
10. Mohunram v National Director of Public Prosecutions 2007 (4) SA 222 (CC)
11. Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T) ***
12. Premier, Western Cape v Acting Chairperson, Judicial Services Commission 2010 (5) SA 634 (WCC)
13. Von Abo v Government of the Republic of South Africa 2009 (2) SA 526 (T)
14. Soffiantini v Mould 1951 (3) SA 307 (O) ***
15. Wightman t/a J W Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) ***
