By Avani Singh on 19 February 2014

This is an application for leave to appeal against a decision of the Western Cape High Court (per Dolama J) (“the High Court“) that ordered the eviction of Johanna Malan (“Malan“).  The main issue for determination is whether the City of Cape Town (“the City“) was entitled to cancel Malan’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 scheme.

During October 1979, Malan and her husband entered into a lease agreement with the City for a property that was part of the City’s sub-economic housing scheme which is subsidised by the government for the purpose of providing housing to persons with incomes below certain maximum limits.  Following the death of Malan’s husband, she then entered into another lease agreement with the City in 1982, which forms the subject of the present application.

According to the City, the lease agreement (i) required Malan to make monthly rental payments in a nominal amount; (ii) did not permit the property to be used for illegal activities; and (iii) did not permit any structural alterations to be made to the property.  The City contended that Malan had breached the lease agreement in all three material respects, and that in view of this breach – and in particular the serious nature of the illegal conduct that it alleges was being carried out by Malan – it was necessary for the City to cancel the lease.  However, when Malan refused to surrender the property, the City brought an eviction application in the High Court.

The City launched its eviction application in October 2009, whereafter Malan filed her answering affidavit in response to the eviction application in December 2009.  Nothing further was then heard from the City until it filed a replying affidavit in January 2012.  Following an exception taken by Malan, the City then filed an application for condonation for the late filing of the replying affidavit.  The condonation application was granted, and the eviction application was then enrolled for hearing.

The High Court held that Malan and her children were unlawful occupiers in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“PIE“).  As such, the High Court granted the eviction application, but ordered that the City was not to effect the eviction until the City had found suitable alternative accommodation for Malan.

Malan sought leave to appeal this decision to the Supreme Court of Appeal, but this application was dismissed.  Malan then filed an application for leave to appeal to the Constitutional Court.  In setting the matter down for hearing, the Constitutional Court directed the parties to file an agreed statement of facts based on the factual findings of the High Court that were pertinent to the issues.  However, in the event that the parties could not reach agreement, the Constitutional Court directed the parties to file separate statements setting out the factual findings of the High Court that the parties dispute, together with those portions of the record that were relevant to the impugned findings.  It is apparent that a number of factual disputes have been raised by the parties.

Before the Constitutional Court, Malan intends to argue inter alia that she did not materially breach the lease agreement and that, in any event, any breach committed did not justify the City cancelling the agreement.  Malan further intends to argue that the City’s purported cancellation of the lease agreement was invalid on the basis that certain clauses of the agreement offend the rights and values in the Constitution, including sections 9, 10, 14, 25 and 26 of the Constitution.  Accordingly, Malan seeks the order of the High Court to be set aside.

In response, the City contends inter alia that the findings of the High Court were correct in all material respects.  Furthermore, the City denies Malan’s allegations that the terms of the lease permitting cancellation were contrary to public policy or exploitative of Malan’s weaker bargaining position, and further denies that its notice of cancellation was invalid.  Accordingly, the City seeks that the application for leave to appeal be dismissed.