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[2013] ZAGPJHC 80
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Buylines 168 (Pty) Ltd v Mabula and Others (30029/2012) [2013] ZAGPJHC 80 (2 April 2013)
REPORTABLE
SOUTH
GAUTENG HIGH COURT JOHANNESBURG
CASE
NO: 30029/2012
DATE:02/04/2013
In
the matter between:
BUYLINES
168 (PTY)
LTD
…....................................................................
Applicant
and
MABULA,
EMMANUEL
JOHN.
..................................................................
First
Respondent
MABULA,
LUCY ETHEL
…........................................................................
Second
Respondent
CITY
OF
JOHANNESBURG.
......................................................................
Third
Respondent
ILLEGAL
OCCUPANTS OF ERF 441
WINDSOR
WEST, RANDBURG
…...........................................................
Fourth
Respondent
JUDGMENT
KGANYAGO.
AJ:
[1]
This is an eviction application in which the applicant is requesting
the court to grant an order evicting the first, second
and fourth
respondents from the property known as erf 441 Windsor Township,
situated at 15 Duchesses Avenue, Windsor West, Randburg
(“the
property”).
[2]
The first and second respondents were initially the registered owner
of the property. The first and second respondents had a
loan
agreement with Nedbank in terms of which a mortgage bond was
registered over the property. The first and second respondent
fell in
areas with their bond repayments. Nedbank obtained a judgment against
the first and second respondents and sold the property
in a sale in
execution on the 12th February 2008. Nedbank bought that property
during the sale in execution for R 710 000-00.
[3]
On the 27th July 2011 the applicant bought the property from Nedbank
for R350-000-00. The property was registered in the names
of the
applicant on the 17th May 2012.
[4]
On the 13th February 2012 Nedbank informed the first and second
respondents that the applicant has bought the property. Nedbank
gave
the two respondents notice to vacate the property within 30 days.
They did not vacate the property.
[5]
On the 10th of August 2012, the applicant instituted the present
proceeding wherein they are seeking to evict the respondents.
The
first and second respondents are opposing the applicant’s
application, whilst the third and fourth respondents did not
enter
any notice to oppose. The first and second respondent issued summons
against Nedbank and the applicant on the 13th September
2012 wherein
they are seeking to set aside the sale in execution which took place
on the 12th February 2008.
[6]
The respondents has raised three points in limine in their answering
affidavit, however, they abandoned the three points in
limine when
they argued their case. Their main contention now is that there is a
pending action against the applicant and Nedbank,
and that the
present application be stayed pending the outcome of the action that
they have instituted against the applicant and
Nedbank.
[7]
The first and second respondents have issued summons against the
applicant and Nedbank on the 13/09/12. The said summons have
not yet
been served on the applicant and Nedbank. The sheriff has attempted
to serve the applicant on the 14/09/12, but there was
a return of
non-service. As per the sheriff’s return of non-service, the
applicant was no longer carrying on business at
that premises.
[8]
The applicant has brought their application for eviction of the
respondents in terms of the PIE Act. The question is whether
the
respondents are the unlawful occupiers within the meaning of the PIE
Act and also whether the applicant have made out a case
for the
eviction of the respondents in terms of the PIE Act. The other
question is whether it is just and equitable to grant an
eviction
order.
[9]
According to the PIE Act an unlawful occupier is any person who
occupies land without the express or tacit consent of the owner
or
person in charge, or without any other right in law to occupy such
land, excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act, 1997
, and excluding a person whose
informal right to land, but for the provision of this Act, would be
protected by the provision of
the Interim Protection of Informal Land
Rights Act, 1996 (Act no 31 of 1996).
[10]
The respondents does not dispute that the property is now registered
in the names of the applicant. The respondents occupy
the said
property without the consent of the applicant. The applicant in their
papers has made an allegation that the respondents
are in unlawful
occupation of the property and the respondents did not dispute that.
Therefore, in my view the respondents are
in unlawful occupation of
the property.
[11]
The respondents have been aware that the property has been sold in
execution since 2008. They did nothing to set aside the
sale in
execution. The respondents only acted after they were served with an
eviction application by the applicant. Their claim
against Nedbank
might have even prescribed since three years has lapsed since the
property was sold in execution by Nedbank. Even
up to date the said
summons has not yet been served on the applicant or Nedbank. The
respondents have failed to present satisfactory
and convincing
reasons as to why it took them more than four years before they
institute their action for setting aside the sale
that took place
during 2008. That shows that the respondents have no interest in
their case but just wanted to frustrate the applicant
in taking
occupation of its property.
[12]
Beside contending that the proceeding should be stayed pending the
outcome of the action that they have instituted against
Nedbank and
the applicant, the respondents have failed to submit any reasons why
they should not be evicted. The occupiers become
liable to eviction
and attract the provision of PIE only if they are in unlawful
occupation. No evidence was presented relating
to the vulnerability
of the respondents.
[13]
The applicant did not consent to the respondents occupying the
property. Therefore in my view, the applicant has made out a
case for
the eviction of the respondents from the property.
[14]
The difficult question is whether despite the action which the first
and second respondents have instituted against Nedbank
and the
applicant, they should be evicted. The first and second respondent
had more than four years to challenge Nedbank but they
failed to do
so. On the 13th February 2012 Nedbank notified them to vacate the
property and they did nothing. They only acted sometimes
during
September 2012 after they received the eviction application by the
applicant. The summons which they have issued against
the applicant
and Nedbank has not yet been served. Basically there is no action
that is pending.
[15]
It is therefore the court’s finding that is just and equitable
that the respondents be evicted from the property.
ORDER
[16]
The following order is made:
(1)
The respondents vacate the immovable property described as no 15
Duchesses Avenue, Windsor West, Randburg, Johannesburg on or
before
the 30th June 2013, failing which the sheriff be authorized to evict
the respondents from the immovable property if they
did not vacate
the immovable property by the 30th June 2013.
(2)
The first and second respondents are ordered to pay the costs of the
applicant jointly and severally, the one paying the other
to be
absolved.
MF
KGANYANGO
ACTING
JUDGE OF THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG