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[2014] ZAGPJHC 437
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Ingelosi House (Pty) Ltd v Howard and Others (38755/2013) [2014] ZAGPJHC 437 (28 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
CASE NO: 38755/2013
DATE: 28 MAY 2015
In the matter between
INGELOSI HOUSE (PTY)
LTD
.......................................................................................
APPLICANT
And
NLENYA HOWARD AND 28
OTHERS
....................................................................
RESPONDENTS
J U D G M E N T
VICTOR J:
[1] This is an eviction application.
The applicant in this matter seeks an order in terms of Part B of the
notice of motion that
Ingelosi House Ltd with the registration number
2011/129776/07, hereinafter referred to as the property, belongs to
the applicant
and that the respondents be evicted from the property.
An answering affidavit was filed in terms of which two issues were
challenged
viz. ownership of this property, as well as the non-
joinder of the City of Johannesburg. No basis for the mediatory role
of the
City Council was suggested. At the hearing the authority of
the applicant’s deponents to bring such an application for
their
eviction was raised as well as the authority of the person who
deposed to the answering affidavit on behalf of the respondents.
[2] On 25 October 2013 leave was given
by this court in terms of section 4(2) of PIE to serve the
application for eviction.
[3] There are five respondents before
Court, they are the 5th, 6th, 13th, 23rd and 29th respondents save
that the 6th respondent,
Ms Lewile Sekhakane is not before Court but
is assisted by her brother.
Challenge to ownership
[4] The applicant has demonstrated
unequivocally both in the founding affidavit and in reply that it is
indeed the owner of the
property. The applicant purchased the
property on public auction on 5 August 2011. The sale agreement was
attached. On 1 October
2013 the property was transferred into the
applicant’s name. A Deeds Office report together with an
affidavit confirming
the registration was attached. I am satisfied
that the applicant is the owner of the property.
[5] The right of occupation was
terminated in writing on 30 November 2011. The respondents did not
vacate and further demands were
made and in particular 20 July 2013.
[6] The respondents contend that the
family of an unidentified person is in charge of the property. The
erstwhile owner is a company
and is in final liquidation according to
the records of CIPIC.
Challenge to the applicant’s
authority
[7] The respondents have challenged the
applicant’s authority to bring the application. The challenge
was raised at the hearing.
It was general in nature. Rule 7(1)
requires the challenge to be specific. It is not stated whether it is
to the deponent of
the affidavit or to the attorney representing the
applicant. No challenge was filed within 10 days of the respondents
becoming
aware of the purported lack of authority nor was leave
sought on good cause for their failure to do so.
[8] The respondents before Court today
state that they do not know the first respondent who deposes to the
affidavit on their behalf.
The deponent to the answering affidavit is
Mr Howard Nlenya who deposes to the fact that he speaks on behalf of
the 29 respondents.
In fact he attaches at page 61 a list referred
to as LO1 of the present respondents that are cited in this
application. Therefore,
the submission by the parties before Court
today that they do not know Mr Howard Nleya lacks credibility.
[9] There has been a submission that
the parties do not have money to appoint an attorney, but it is clear
to me that any defence
which the respondents would have proffered is
contained in their answering affidavit to these papers. They were
represented at
the time of filing the answering affidavit.
[10] This application was launched in
October of 2013, we are almost in the middle of 2014 and the
respondents have clearly had
more than enough time to deal with this
matter. In addition, the respondents are not paying any rent, those
respondents who made
submissions to me stated that they do not pay
rent and I accept that they are not paying rent. They could have used
the rental
money that they withheld to brief an attorney.
[11] In addition, there are pro bono
facilities such as the WITS Law Clinic, the Legal Resources Centre
and other public bodies,
such as the Legal Aid Board where they could
have obtained legal advice in the light of their attorney withdrawing
from the matter
or not taking their cause any further. No such
attempt has been made.
In the result, I make the following
order:
1. The relief sought in the B Part of
the notice of motion, prayers 1, 2 is granted.
2. The respondents are ordered to
vacate the property on or before 30 June 2014 and grant prayers 3, 4,
and 5.
M.VICTOR
JUDGE OF THE SOUTH GAUTENG LOCAL
DIVISION
Appearances:
Case Nr: 38755/13
Counsel for Plaintiff: Adv.
Pullinger
Instructed by:SERI Law Clinic
6th Floor Aspen House
54 De Korte Street
Braamfontein
(011) 356 5860
Counsel for Defendant: Adv. Bodlani
Instructed by: Maseti Attorneys
Klamstown Towers
1st Floor Suite 113
151 Commissioner & Von Weilligh
Streets
Johannesburg
(011) 053 - 6001
Date of hearing: 2014-05-28
Date of judgment: 2014-05-28