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[2014] ZAGPJHC 326
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Business Partners Limited v Occupants of ERF 134, Randparkrif and Others (13/03451) [2014] ZAGPJHC 326 (14 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 13/03451
DATE:
14 MARCH 2014
In the matter
between:
BUSINESS PARTNERS
LIMITED
...............................................................
Applicant
And
THE OCCUPANTS OF
ERF 134, RANDPARKRIF
............................
First
Respondent
KHOABANE, PINKY
JULIA
.......................................................
Second
Respondent
MABUZA, HERBERT
THULANI
...................................................
Third
Respondent
CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
...........................................................................
Fourth
Respondent
J U
D G M E N T
MAKUME, J:
[1] In this matter
the applicant seeks an order evicting first, second and third
respondents from certain residential property described
as Erf 134,
Randparkrif situate at 3 Kokkewiet Road, Randparkridge, Randburg
(“the property”).
[2] It is not in
dispute that the applicants are the owners of the property. They
acquired ownership when the title to the property
was registered in
their favour on the 12th October 2012.
[3] Prior to
launching this application the applicant complied with the statutory
requirements in terms of Act 19 of 1998 (“the
PIE Act”)
in that:
3.1 An ex parte
application for the authorisation of and direction regarding service
of a section 4(2) notice in terms of the PIE
Act was launched.
3.2 An order
authorising the notice and directing the manner in which the notice
was to be served on the respondents.
3.3 The authorised
notices as well as the court order authorising same were served on
the respondents.
3.4 Fourteen
calendar days elapsed from the date of service of the notice as well
as the court order authorising same on the respondents.
[4] On the 15th
October 2012 the applicant’s attorneys addressed a letter to
the respondents requesting them to vacate the
property within 30 days
from date of the letter in view of the fact that no agreement was in
existence between the applicant and
the respondents enabling them to
continue residing on the property. In response to this letter the
respondents’ attorneys
wrote as follows:
“As our client
does not have alternative accommodation, our client undertakes to
vacate the property by 31 December 2012 and
undertakes on a strictly
without prejudice basis not to proceed with legal action to recover
the damages suffered.”
[5] The respondents
did not vacate the property as promised in their letter referred to
above and instead on the 4th March 2013
they filed an opposing
affidavit to the application for eviction. In an answering affidavit
second respondent who does not profess
to be acting on behalf of the
other respondents raises two points in limine firstly challenging the
authority of Mrs Dorothea Regina
van Heerden to depose to the
applicant’s affidavit and secondly that she Van Heerden as the
Assistant General Manager does
not state how the allegations in her
affidavit fall within her personal knowledge.
[6] There is nowhere
in the answering affidavit where the second respondent deposes to
reasons why she should remain on the property.
She does not say that
she has a valid lease agreement to stay on the property nor does she
attack the applicant’s right
to ownership of the property.
[7] The first point
in limine raised by the second respondent is without merit as it was
said by Streicher JA in the matter of Ganes
and Another v Telecom
Namibia Ltd
2004 (3) SA 615
at page 624 paragraph [19]:
“In my view,
it is irrelevant whether Hanke had been authorised to depose to the
founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution of the proceedings
and the
prosecution thereof which must be authorised.”
[8] It is trite law
that a party who challenges the authority of any party in the legal
proceedings must utilise the provisions
of the Uniform Rules of
Court. The respondents’ failure to serve a Rule 7 notice on
the applicant renders the point in limine
useless and of no
assistance to the respondents (see Unlawful Occupiers School Site v
City of Johannesburg
2005 (4) SA 199
(SCA)).
[9] In the replying
affidavit the applicant has annexed a document marked “BP13”
dated the 16th August 2012 which document
clearly indicates that the
deponent Dorothea van Heerden Assistant General Manager at Business
Partners Limited has been duly authorised
by the applicant’s
Board to deal with legal matters including this application.
[10] The second
point in limine raised by the second respondent is that she has never
had any personal dealings with Van Heerden
and therefore that Van
Heerden can never claim to possess personal knowledge of the facts in
this matter.
[11] This second
point in limine is likewise without merit. Van Heerden deposed to
the affidavit when applicant applied for default
judgment as well as
to declare the property specially executable. There was no
opposition to that application. If that was the
case the respondent
should by now be applying for rescission of judgment.
[12] The other
defences raised by the second respondent is to be found in paragraph
31 of her answering affidavit wherein the second
respondent says that
the applicant vandalised and rendered inhabitable the second
respondent’s residential property situate
at 19 Monkor Road,
Randpark Ridge and therefore because of that she cannot vacate the
property.
[13] In a letter
dated the 22nd October 2012 addressed to applicant’s attorneys
the respondent does not say that the applicant
vandalised and
rendered her property situate at 19 Monkor Road uninhabitable. In
that letter all that the respondent says is that:
“Subsequent to
a judgment being obtained against our client and a warrant of
execution being issued and served, our client
was unlawfully denied
access to the property at 19 Monkor Road, Randpark Ridge …
that for the period during which access
was unlawfully denied the
property was vandalised.”
[14] The version in
the letter of the 22nd October 2012 and the version that she deposed
to in the answering affidavit are contradictory.
In any case if the
respondent was unlawfully spoliated of her property why did she not
take legal action and seek appropriate
relief. The applicant
disputes ever having denied the second respondent access to her own
property and further denies that the
property is vandalised. In the
absence of any proof this allegation is spurious and stands to be
dismissed.
[15] The conclusion
in answer to the question whether it is fair and equitable to evict
the second respondent and the other respondents
from the property is
that the second respondent has at all times retained possession of
and exercised control over her property
situate at 19 Monker Road,
Randpark Ridge. She accordingly has alternative accommodation for
herself and her children.
[16] In the result I
make the following order:
1.The first, second
and third respondents and all those who occupied the premises
described as Erf 134 Randpark Ridge situate at
3 Kokkewiet Road,
Randpark Ridge (“the premises”) under and by virtue of
the first, second and/or third respondents
occupancy of the property
be and are hereby evicted from the property by not later than the
28th April 2014.
2.In the event of
the first, second and/or third respondents and all those who occupy
the property under and by virtue of the first,
second and/or third
respondents occupancy of the property failing and/or refusing to
vacate the property within the period stipulated
above:
2.1 That the Sheriff
of the Honourable Court be and is hereby authorised to forthwith
enter upon the property and evicts the first,
second and/or third
respondents and all those who occupy the premises under and by virtue
of the first, second and/or third respondents’
occupancy of the
property.
3. The second and
third respondent are ordered to pay the costs of this application
jointly and severally the one paying the other
to be absolved.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
ATTORNEYS FOR THE
APPLICANT SHIRISH KALIAN ATTORNEYS
44 DUDLEY ROAD
Cnr BOLTON ROAD
PARKWOOD
REF NO: S
Kalian/B Jurgens/BUS/0141
ATTORNEYS FOR THE
RESPONDENTS ALAN LEVY ATTORNEYS
THE CHAMBERS
1 THE AVENUE
NORWOOD
REF NO:
MAT3066/SK
DATE OF HEARING 3
MARCH 2014
DATE OF JUDGMENT
14 MARCH 2014