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[2012] ZAGPJHC 280
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Real People Housing CC v Zamisa and Another (11464/2012) [2012] ZAGPJHC 280 (31 July 2012)
IN THE
HIGH COURT OF SOUTH AFRICA
(
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
)
CASE
NO
: 11464/2012
DATE
:
2012-07-31
In the matter between
REAL
PEOPLE HOUSING CC
Applicant
and
JOYCE
PIKI ZAMISA
1
st
Respondent
ALBERT
MBUTI ZAMISA
2
nd
Respondent
JUDGMENT
WILLIS
J
:
[1] This is an
application for the eviction of the respondents from immoveable
property at portion 23 of Erf 1497 Ironside, situate
at 23 Elsa
Street, Debonaire Park, De Deur, Gauteng.
[2] This matter has been
repeatedly postponed in this court by a now fewer than three judges.
It was posptoned by Tsoka J
on 15 May 2012, by Meyer J on 19 June
2012 and by Mabisele J on 24 July 2012.
[3] Numerous points have
been taken to resist the order for eviction. One of them is that
there was no proper notice in terms of
the PIE Act, PIE being an
abbreviation for the Prevention of Illegal Eviciton and Unlawful
Occupation of Land Act No. 19 of 1998.
Lest anyone at some
future stage say that I have failed to take this into account, I wish
to record that I have carefully looked
through the record in this
matter and it is clear that a notice of eviction was indeed served on
the respondents.
[4] Furthermore, I fail
to see how this point can be taken when the respondents have appeared
in court in person and have been represented
by counsel several times
in this matter, strenuously arguing it. It makes nonsense when
people stand up in court and say
that the whole application should
fail because there has not been proper notice, when in fact it is
abundantly clear that the respondents
are fully aware of their
intended eviction.
[5] Counsel for the
applicant has made much of the fact that the version of the
respondents is contradictory and inconsistent with
a version which
they gave in a dispute in the Vereeniging Magistrates Court, relating
to the same property under case number 1539/2010.
I shall say
as little as possible about this because in my experience the more
one says in these eviction matters, the more dangerous
it becomes.
Suffice it to say I think that there is some merit at least in the
point that the respondents had been inconsistent
and contradictory in
their defence in this matter.
[6] I need not make any
finding on that in order to make the order. It is quite clear
that the applicant is the registered
owner of the property, recorded
as such in the office of the Registrar of Deeds. There is no
contest about this issue.
[7] It is also quite
clear that whatever lease agreement that may have been in existence
between the parties, was validly cancelled
a long time ago.
Furthermore the defendants are justifying their non-payment to the
applicant on the basis of misrepresentations
made to them concerning
the lease agreement. Those misrepresentations, if valid, would
not entitle them to stay in the property.
The result would simply be
the termination of the the lease.
[8] What has been raised
is a vague defence that the respondents somehow purchased the
property and that it has not been registered
properly in their name.
Nothing has been done in ,that regard, but furthermore I can see no
reason, as a matter of law and
I wish to emphasise it, no reason as a
matter of law, as to why that would entitle them to remain in
occupation of the property.
[9] I have had regard to
the following cases:
-
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Limited
and
Another
2012 (2) SA 104
(CC).
-
Occupiers of Erf
101, 102, 104 and 112 Shorts Retreat Pietermaritzburg v Daisy D.A.
Investments (Pty) Limited and Others
[2009] 4 All SA 410
(SCA)
-
Occupiers of 51
Olyvia Road Bera Township and 197 Main Street., Johannesburg v City
of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC).
-
Port Elizabeth
Municipality and Various occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC).
-
Gundwana v Steko
Development and Others
2011 (3) SA 608
(CC).
I can see no basis upon
which the respondents can successfully resist the application for
their eviction.
[10] I may record that
that last week I specifically, as an indulgence to the respondents,
stood the matter down from the motion
court, in order to hear this
matter after appeals this week. in order that the point could be
fully ventilated as to whether
the municipality should have
been joined or not. I was advised from the bar this
morning that that point has been
abandoned wisely it would seem to
me. It is quite clear that the City of Johannesburg were given notice
of this matter and had
decided not to respond.
[11] The
Blue
Moonlight Properties
case decided in the Constitutional Court
seems clear authority to me that there is NOT an absolute requirement
that the municipality
should be joined as a party. Having
regard to all the circumstances in this matter and the fact that it
is quite clear from
salary slips appended to the papers, that the
respondents are not desperately poor squatters, that they are not
part of some mass
housing debacle playing out in the city, that there
is nothing that the city could add to put before this court that
could assist
it to make a proper decision, there is, in my view,
there no basis whatsoever upon which the respondents can succeed in
resisting
this application for their eviction. Counsel for the
applicant has prepared a draft order that reflects the intention of
the court
and I shall for the sake of completeness read this
draft
order into the record:
ORDER
1. It is ordered
that the respondents and all persons occupying through or under them
shall be evicted from the immoveable
property described as Portion 23
of Erf 1497 Ironside, situate at 23 Elsa Street, Debonair Park, De
Deur, Gauteng.
2. The respondents
and all persons occupying through or under them shall vacate the
property within 30 days of the granting
of this order, failing which
the sheriff for the area within which the property is situated, is
authorised and required to forthwith
carry out the eviction order by
removing the respondents and all persons occupying through or under
them from the property.
3. The respondents
shall pay the costs of the application including the wasted costs of
the postponement on 19 June 2012.
- - - - - - - - - - -
Counsel for the
applicant : Advocate
C Gordon
.
Attorneys for the
applicant : Craig Baillie Attorneys,
Counsel for the
respondents : Advocate
B.T. Ngqwangele
.
Attorneys for the
respondents : KP Ntila Attorneys.
CERTIFICATE OF
VERACITY
I, the undersigned,
hereby certify that,
in as far as it is audible
, the
aforegoing is a
VERBATIM
transcription of the
proceedings as was ordered to be transcribed by iAfrica
Transcriptions and which had been recorded by
Digital Court Recording
Services by means of a digital recorder in the matter of:
REAL PEOPLE HOUSING
Applicant
and
JOYCE PIKI ZAMISA
1
st
Respondent
ALBERT MBUTI ZAMISA
2
nd
Respondent
CASE
NO
: 11464/2012
RECORDED
AT
:
Court
:
High Court JHB
Court Nr
:
?
Stenographer
:
?
DATE
OF HEARING
: 31 July 2012
ORDER
TO TO TRANSCRIBE
: Record from
Audio CD as from 10:48 to 10:59
RECEIVED
BY TRANSCRIBER ON
:
15
March 2013
COMPLETED
BY TRANSCRIBER ON
: 16 March 2013
TRANSCRIBER
:
H van Rhyn
NO
OF CD’s
: 1 (One)
NUMBER
OF PAGES
: 6