About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 235
|
|
Senne v Munzhedzi and Others (28227/2011) [2013] ZAGPJHC 235 (31 July 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 28227/2011
DATE:31/07/2013
In the matter between
SENNE NARE
COMFORD
.............................................................................
Applicant
and
MASHUDU MATTWES
MUNZHEDZI
.............................................................
First
Respondent
UNLAWFUL OCCUPIERS OF ERF 2860
KAALFONTEIN
.......................
Second
Respondent
CITY OF
JOHANNESBURG
..........................................................................
Third Respondent
JUDGMENT
MADIMA, AJ
Introduction
[1]. This application has been before
this court on several occasions. For one reason or the other, it
could not be brought to finality.
The Applicant is the registered
owner of the property described as Erf 2860 Kaalfontein (“the
property”). He purchased
this property from one Patricia
Tshabalala (“Tshabalala”) sometime in 2010. Applicant
registered a mortgage bond with
First National Bank (“the
bank”) to the value of R250 000.00. He currently pays the
amount of R3 225.22 per
month to the bank in order to service
the loan. Applicant states that he is also paying rates and taxes to
the Municipality. The
Applicant is the holder of a valid title deed
in respect of the property. Applicant has attached to his papers all
the relevant
documents in support of his claim. He however is not in
occupation and peaceful possession of the property because of the
unlawful
occupation thereof by First and Second Respondent.
[2]. The First Respondent retorts in
his answering affidavit that he had also purchased the property from
the same Tshabalala in
2004. He attached as proof of such purchase, a
document he named “deed of sale”. The document is dated
06-11-2004 and
reads in part thus “
This
is to confirm that Matthews Mas (sic) Munzhedzi, I.D.No …..
had pa (sic) R25 000.00 for the house to Tshabalala
Patricia
I.D.No …... On the above mentioned date
.
There are also signatures apparently of the parties, including those
of First Respondent and also apparently that of Tshabalala,
who
confirm the purchase.
[3]. The First Respondent states
further in his answering affidavit that the house in question is an
RDP house, and that he paid
R35 000.00 for it. He also alleges
that he paid an additional R70 000.00 for the renovations
thereto. He has not been
able to have the property transferred to his
name. He claims that after full payment of the purchase price, he
contacted Tshabalala
to assist him in transferring the house to his
name but Tshabalala told him that the house will not be transferred
to his name
as she, Tshabalala was not in possession of her own title
deed yet. Tshabalala undertook to effect the transfer once she had
the
title deed.
[4]. The Applicant states that upon
registration of the property in his names, he requested the First and
Second Respondent to vacate
the property. They refused to move out,
hence the instant application.
[5]. On or about 11 October 2011 the
Honourable Judge Carelse authorized a section 4(2) of the Prevention
of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of
1998 (“the Act”) notice. The grounds for eviction in the
notice were that
(a). the applicant is the owner of the property and
that respondent was occupying the property without applicant’s
consent,
(b). the applicant purchased the property and a copy of the
deeds search was attached, (c). the respondent’s occupation of
the property was unlawful and prejudices the applicant, and (d). that
respondent refused to vacate the property notwithstanding
demand. It
is important that I reproduce the provisions of section 4 of the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998 (“the Act”) which provides that
‘
4.
Eviction
of unlawful occupiers
(1).
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings
by an
owner or person in charge of land for the eviction of an unlawful
occupier.
(2).
At least 14 days before the hearing of the proceedings contemplated
in ss(1), the court must serve written and effective notice
of the
proceedings on the unlawful occupier and the municipality having
jurisdiction.
(3).
Subject to the provisions of ss(2), the procedure for the serving of
notices and filing of papers is as prescribed by the Rules
of the
court in question.
(4).
Subject to the provisions of ss(2), if a court is satisfied that
service cannot conveniently or expeditiously be effected in
the
manner provided in the Rules of the court, service must be effected
in the manner directed by the court: Provided that the
court must
consider the rights of the unlawful occupier to receive adequate
notice and to defend the case.
(5).
The notice of proceedings contemplated in ss(2) must –
(a).
state that the proceedings are being instituted in terms of ss(1) for
an order for the eviction of the unlawful occupier;
(b).
indicate on what date and at what time the court will hear the
proceedings;
(c).
set out the grounds for the proposed eviction; and
(d).
state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the right
to
apply for legal aid
[6]. In his answering affidavit, and
at the hearing of the application, the First Respondent raised
several points
in limine
claiming,
inter
alia
, non compliance with
the provisions of s4 of the Act. The Respondent stated in this regard
that the applicant for eviction should
first approach the court on an
ex parte basis, and thereafter serve the entire application, together
with the ex parte application
on respondent. The respondent claimed
that the applicant did not obtain authorization from the court to
serve the application on
respondent. Further that applicant had
failed to show that all the requirements of the Act had been complied
with.
[7]. The second point raised in limine
was that applicant had failed to join the municipality in the
eviction proceedings. Respondent
stated that the applicant only cited
the municipality but did not serve the application on it.
[8]. The third point raised in limine
was that the applicant had miscalculated the dies.
[9]. The fourth point was that the
respondent had purchased the property from the same person who had
allegedly sold the same property
to the applicant. The seller should,
because of her unquestionable interest, be joined in the proceedings.
[10]. The final point raised by the
respondent was that the applicant served a notice of set down on
respondent’s correspondent
attorneys for 13 September 2011
without mentioning the s(4) notice. The applicant was ordered to pay
the costs occasioned by the
postponement thereof.
[11]. On 27 October 2011, Honourable
Rossouw AJ ordered that the applicant “
to
ensure that there has been compliance with the provisions of s4(2)
and (5) of the Act 19 of 1998 before the matter is set down
for
hearing
”
.
[12]. On 6 December 2011, Honourable
Boruchowitz J granted an order evicting the respondent. The judge
ordered that
The
First Respondent and others are to be evicted from Portion 148 of
Erf 2860 Kaalfontein Extension 5.
The
Respondents are to vacate the property on or before 20
th
January
2012.
In
the event that the Respondents do not vacate the property on the
20
th
January
2012 the Sheriff
of
the Court or his lawfully appointed Deputy be authorized to evict
the Respondents from the property.
The
First Respondent is to pay Applicants’ costs of suit.
[12]. The First Respondent
successfully applied for the rescission of the order against him
which was granted on 6 December 2012
by Boruchowitz J. It would
appear that the Applicant was not represented on the day in question.
Honourable Francis J made the
following order:
The judgment granted by this court on
6 December 2011 under case number 2011/28227 is hereby rescinded and
set aside.
The First Respondent is to pay the
costs of this application.
.
[13]. It would appear that for a
period of over eight months nothing happened with regard to this
matter. On 21 August 2012 Honourable
Vally J removed the matter from
the roll with no costs ordered. No reasons were provided. I shall
assume that it was by agreement
between the parties. Be that as it
may, this has no bearing in the current circumstances.
[14]. Another eight months were to
pass until the matter came before Honourable Modiba AJ on 22 April
2013. The First Respondent
again raised the point that the applicant
had failed to comply with the provisions of s4(2) of the Act. The
Honourable Judge upheld
the point and held that
“
having
upheld the first point in limine raised by the first respondent, it
is not appropriate for me to consider the merits of this
case until
applicant has addressed the relevant point in limine
”
.
[15]. The relevant portion of the
Honourable Judge’s order reads thus:
The first point in limine raised
by the first respondent is upheld;
The applicant is to serve an
amended s4(2) notice of the first, second and third respondent; and
to a lesser extent;
The applicant is to pay the first
respondent’s wasted costs occasioned by the hearing of this
matter de bonis proprii
.
[16]. On 27 April 2013 the applicant
re-served his s4 notice. On 29 May 2013 the parties appeared before
me. Ms T Seboko for the
First Respondent submitted that the First
Respondent purchased the property from Tshabalala. He could not
obtain transfer because
Tshabalala kept on making excuses. Ms Seboko
concedes that Applicant purchased the same property from Tshabalala
for the amount
of R250 000.00. Counsel also conceded that the
property has since been transferred into the name of Applicant.
[17]. Counsel for First Respondent
referred me to the provisions of s4 of the Act and also to
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
[2001
(4) SA 1222
(SCA)
] where
the court held that “
Since
no indication is given in s4 about how the court’s directions
regarding the s4(2) notice are to be obtained, common
sense dictates
that the applicant approach the court by way of an ex parte
application for such direction
”
.
[18]. I do not comprehend how
Chetty
v Naidoo
1974 (3) SA 12
(A)
assists
the First Respondent. The court, dealing with the underlying
principles of ownership held that “
it
may be difficult to define dominium comprehensively but there can be
little doubt that one of its incidents is the right of exclusive
possession of the res, with the necessary corollary that the owner
may claim his property wherever found from whomever holding
it
.”
I doubt that the First Respondent can claim ownership of the property
by merely
occupatio
alone. He is not the holder of the
title deed. The property is thus not registered in his name.
[18]. Mr N Mahlangu, who represented
the Applicant submitted that applicant had complied with the
peremptory procedural requisites
of s4(5) and (6) of the Act. He
further reminded the court that the relief his client seeks has been
previously granted to the
applicant by the court. More importantly,
so submitted Mr Mahlangu was the fact that the First Respondent had
not provided new
facts for the court not to grant the eviction
application.
[19]. Counsel for the applicant
submitted further that the First Respondent’s case was, apart
from the points in limine that
were raised, one of which was upheld,
that the first respondent had purchased the property from Tshabalala,
and also his reliance
on sections 7, 10A and B of the Housing Act of
107 of 1997. These relevant sections provide that
10A
Restriction
on voluntary sale of state-subsidised housing
(1).
Notwithstanding any provisions to the contrary in any other law, it
shall be a condition of every housing subsidy, as defined
in the
Code, granted to a natural person in terms of any national housing
programme for the construction or purchase of a dwelling
or serviced
site, that such person shall not sell or otherwise alienate his or
her dwelling or site within a period of eight years
from the date on
which the property was acquired by that person unless the dwelling or
site has first been offered to the relevant
provincial housing
department.
(2).
The provincial housing department to which the dwelling or site has
been offered as contemplated in subsection (1) shall endorse
in its
records that the person wishes to vacate his or her property and
relocate to another property and is entitled to remain
on a waiting
list of beneficiaries requiring subsidized housing.
(3).
When the person vacates his or her property the relevant provincial
housing department shall be deemed to be the owner of the
property
and application must then be made to the Registrar of Deeds by the
Provincial housing department for the title deeds of
the property to
be endorsed to reflect the department’s ownership of that
property.
(4).
No purchase price or other remuneration shall be paid to the person
vacating the property but such person will be eligible
for obtaining
another state-subsidised house, should he or she qualify therefor
.
10B Restriction on involuntary sale of
state-subsidised housing
(1).
Notwithstanding any provisions to the contrary in any other law, it
shall be a condition of every housing subsidy, as defined
in the
Code, granted to a natural person in terms of any national housing
programme for the construction or purchase of a dwelling
or serviced
site, that such person’s successor’s in title or
creditors in law, other than creditors in respect of credit-linked
subsidies, shall not sell or otherwise alienate his or her dwelling
or site unless the dwelling or site has first been offered
to the
relevant provincial housing department at a price not greater than
the subsidy which the person received for the property.
[20]. It is indeed surprising that the
First Respondent raised the above provisions of the Housing Act as a
defence against his
eviction when he himself is a party to a sale and
purchase that is prohibited by the Housing Act. First Respondent has
no clean
hands. Our courts are very clear in this regard. If First
Respondent and indeed the Provincial Housing Department are of the
view
that the sale and purchase of the property was unlawful, and
therefore the transfer should not have been effected, then they
should
have both the sale to and the transfer into Applicant’s
name be reviewed and set aside. Unless and until this has been done,
the sale and transfer remain valid.
[21].
The
courts held in (
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
(2004) 6 SA 222
at
242A-C
)
that “
until the
administrator’s approval, and thus also consequences of the
approval, is set aside by a Court in proceedings for
judicial review,
it exists in fact and it has legal consequences that cannot simply be
overlooked. The proper functioning of a
modern state would be
considerably compromised if all administrative acts could be given
effect to or ignored depending upon the
view the subject takes of the
validity of the act in question”
.
[22]. The Court went further and
held that “
No
doubt it is for this reason that our law has always recognised that
even an unlawful administrative act is capable of producing
legally
valid consequences for so long as the unlawful act is not set aside
.”
[23]. I do not believe that the
sections of the Housing Act that first Respondent seeks to rely on
are useful to his case. This
is an eviction matter. First Respondent
cannot refuse to vacate a property on the basis that the Housing Act
provides otherwise.
First Respondent must state why an eviction order
should not be granted against him. So far he has failed lamentably.
[24]. I now return to the Act. Section
4(6) of the Act provides that the court can grant an eviction order
if it is just and equitable
and after taking into consideration
relevant facts such as the rights and needs of the elderly, the
rights of children, the rights
of disabled person and the rights of
households headed by children.
[25]. First Respondent claims that he
bought the property from Tshabalala. That may well be so. He has
however failed to proof that
he is the owner thereof. On the other
hand, the Applicant has a title deed in his name . That is enough to
establish ownership
of the property. Our courts have held in
Ndlovu
v Ngcobo, Bekker and Another v Jika
2003 (1) SA 113
at 124J-125A
that
“….
provided the
procedural requirements had been met, the owner was entitled to
approach the court on the basis of ownership and the
respondent’s
unlawful occupation. Unless the occupier opposed or disclosed
circumstances relevant to the eviction order,
the owner, in principle
would be entitled to an order for eviction”
.
[26]. I find that the Applicant’s
s4 notice is in order. He has been able to establish his ownership of
the property. The
First Respondent’s continued insistence on
Applicant’s non compliance of s4 is ill founded, ill advised
and unavailing
to First Respondent. The First Respondent has no
credible defence against the application for his eviction.
[27]. The First Respondent’s
submission that he is the owner of the property is flabbergasting.
What is more astounding is
his further reliance on such “ownership”
to oppose the eviction application. The fact that he could have paid
Tshabalala
for the property has nothing to do with the Applicant...
[28]. I must also mention that
Tshabalala has not been called upon by the First Respondent to depose
to a supporting affidavit in
order to confirm the First Respondent’s
claim. I am also unsure how the confirmatory affidavit would have
assisted the First
Respondent even in the event she had done so.
[29]. I am accordingly satisfied that
the Applicant has successfully made out a case for the eviction of
the First and Second Respondent.
His application should therefore
succeed.
[30]. I therefore make the following
order that:
The Respondents and all persons
occupying through them or under their control to vacate the
respective premises as described
as Erf 2860 Kaalfontein;
Failing compliance with the order,
the Sheriff or his deputy is authorized and directed to evict the
First and Second Respondent
and all persons occupying through them
in the aforesaid premises;
The Sheriff is authorized to
approach the South African Police Services for such assistance.
The Respondents and all persons
occupying through them are to vacate the premises by 30 August
2013.
The First Respondent to pay the
costs of the application on an attorney and own client scale.
________________________________
TS
MADIMA: AJ
ACTING JUDGE OF THE HIGH COURT
On behalf of the Applicants: Mr N
Mahlangu
Instructed by: Matela Sibanyoni &
Associates
011 331 1473
On behalf of the Respondent: V.T
Seboko
Instructed by: Mopeli Attorneys
C/O Mpitso Attorneys
011 869 0024/0521
Dates of Hearing: 30 May 2013
Date of Judgment: 31 July 2013