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[2014] ZAGPJHC 294
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Khumalo and Another v Polkadots Property (Pty) Ltd (30023/2013) [2014] ZAGPJHC 294 (29 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE GAUTENG
HIGH COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE
NO:30023/2013
DATE:
29 OCTOBER 2014
In
the matter between
MANDISA
OLIVE
KHUMALO
............................................................................
FIRST
APPLICANT
ALL
OTHER UNLAWFUL OCCUPANTS OF
PORTION
15 OF ERF 899, 4 MANGENI ROAD,
PAULSHOF
......................................................................................................
SECOND
APPLICANT
And
POLKADOTS
PROPERTY (PTY)
LTD
.......................................................................
RESPONDENT
J
U D G M E N T
Summary:
Rescission of judgment – Good cause shown
– Bona fide defence based on non-compliance with s 4(6) and (7)
of the Prevention
of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 and s 26(3) of the Constitution.
MOSIKATSANA AJ:
Introduction
[
1]
This is an application for rescission of judgment granted against the
applicants on 9 October 2013. First applicant relies on
Uniform Rule
of Court 42(1)(a) in so far as she alleges that the eviction order
was erroneously sought and erroneously granted
due to defective
service. Alternatively, first applicant relies on the common law.
[2]
First applicant raises a further point
in limine
that the
respondent failed to cite or jointly sue the Mzilikazi Trust, who,
allegedly are the owners of the property. The record
indicates that
the Mzilikazi Trust, are no longer the registered owners of the
property as it was sold in execution to the respondent.
[3]
Respondent opposes the application requesting that the rescission
application be dismissed with costs.
Factual
Background
[4]
First applicant’s version is that she bought the property
situated at Portion 15 Erf 899, 4 Mangeni Road, Paulshof, Gauteng
on
or about May 2003. The property was placed under the Mzilikazi Trust
(‘the trust’). The first applicant and a Mr
Linda Leonard
Khumalo were the only trustees. She has been living at the property
with her two minor children aged 8 and 14 and
her major child aged 21
in 2013.
[5]
The first applicant applied for and was granted a loan by Nedbank
(the bank) for R600 000. A bond was registered against
the
property as security for the loan. The property was registered under
the Mzilikazi trust at the deeds registry’s office.
She has
been paying on the bond since June 2003 until June 2012 when she
admittedly started defaulting on her bond payments. In
an effort to
remedy her default, she entered into a verbal arrangement with the
bank to pay back the overdue amounts in extended
instalments.
[6]
First applicant states that she was caught by surprise when on 18
June, 2013 a certain Mr Ilia Davidovich Lechtman, whom she
incorrectly refers to as a ‘Mr Eli’, attended at her home
to inform her that he has purchased the property she is residing
at
and that he was the new owner.
[7]
On 21June, 2013 at approximately 19h00 Mr Lechtman returned with the
police to inform the first applicant that she should vacate
the
house. The first applicant informed them that she has nowhere to go,
whereupon they left.
[8]
On 10 October, 2013 the first applicant was informed, apparently by a
representative of the respondent’s law firm that
she was to be
evicted from the house she was residing in the following week. On the
11 October, 2013 the respondent’s legal
representatives sent
the first applicant a letter informing her of the eviction order and
advising her to vacate the property by
the 14 October, 2013.
[9]
Subsequently, first applicant attended at the Courthouse to obtain
copies of the eviction process. After obtaining the Court
papers the
first applicant was directed to consult an attorney for legal advice.
She then approached her attorney of record, who
advised her to apply
for rescission of the judgment of this Court which was granted in
favour of the respondent against the applicants
on 9 October 2013.
[10]
In her rescission application, first applicant contends in her
founding affidavit, that the judgment was erroneously sought
and
erroneously granted in that she was not duly served with a Notice of
Motion, Ex parte and a Draft Order pursuant to s 4(2)
Of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
[1]
(PIE).
[11]
In his return of service, the Sheriff deposes that the notice in
terms of s 4(2) of PIE was personally served on the first
applicant
at 4 Mangeni Road, Paulshof on 20 August, 2013. Apparently service
was frustrated allegedly due to the first applicant’s
uncooperativeness.
[12]Finally,
on12 September, 2013 service was effected by affixing the process on
first respondent’s main door. The Sheriff
also deposes, in his
affidavit that the first applicant, informed him, that the house
belongs to a trust, and that she could not
move nor can the house be
‘action’
[2]
(sic).
[13]
First applicant’s version is that on 20 August, 2013 the day
which is indicated on the Sheriff’s return as the
date on which
she was personally served and apparently refused her cooperation, she
was at home attending to her business and that
if the Sheriff
attended at her home as stated in the Sheriff’s return, she
would have seen him and obliged to being served
in the same manner
that she obliged when Mr Lechtman, attended at her home to inform her
that he had purchased the house and wanted
her to vacate the house.
[14]
First applicant also contends that she is not in wilful default to
oppose the eviction application, as she was not aware of
the
launching of the application, and that if she was aware of it, she
would have obtained legal assistance in opposing it.
[15]
First applicant contends that because there was no proper service,
the eviction order was erroneously granted and that this
is a proper
case for rescission in terms of Rule 42(1)(a)
[3]
.
[16]
First applicant further states that to her knowledge, the property is
owned by the Mzilikazi Trust. She states that she does
not know how
the property was sold and registered in the respondent’s name,
as she did not receive any summons. Evidently,
first applicant knew
of the proceedings instituted against her as the proceedings were
opposed. First applicant was granted a postponement
on 23 November,
2011 to the 31
January, 2012 to allow her to file opposing
papers. Despite being granted an opportunity to file opposing papers,
first applicant
did not do so. Consequently, an order declaring the
property executable was granted on 01 February, 2012.
[17]
Respondent opposes the rescission application on the basis that:
[17.1]
the first applicant’s contention that the s 4(2) notice in
terms of PIE was not served at her home is without merit
in that the
s 4(2) notice had been properly served at her home; and
[17.2]
the first applicant does not have a
bona fide
defence to the
respondent’s claim.
Issues
for Determination:
[18]
The issues for determination are whether:
[18.1]
the eviction order was erroneously sought or erroneously granted in
that the s 4(2) PIE notice was not properly served or
at all; and
[18.2]
there was wilful default by the applicant at common law.
Irregular
Service:
[19]
Sheriff deposed to the fact that on the 16 August, 2013 and 20
August, 2013 he attended at the home of the applicant who refused
to
accept service of the s 4(2) PIE notice. Instead , of leaving
the notice in terms of s 4(2) of PIE with respondent or
affixing it
to her door, the Sheriff leaves with the process unserved and
returns to attempt service again on 12 September,
2013 only to find
that respondent is not home. According to the Sheriff, only then does
he affix the process to the door of the
first applicant’s home.
[20]
First applicant disputes the Sheriff’s claims. She, on the
other hand, deposed that she was home on 20 August, 2013 and
that the
Sheriff never showed up at her home. She also states that it would
not have been practical for the Sheriff to affix process
on her door
on 12 September, 2013 as there are physical security barriers that
would have prevented the Sheriff from going past
the gate to affix
the s 4(2) PIE notice to her door.
[21]
In weighing the probabilities, it is difficult to understand why the
Sheriff elected not to effect service by affixing the
process on the
door of the applicant’s home either on the 16 August, 2013 or
particularly on the 20 August, 2013 which is
the day that he
allegedly found the applicant home and she allegedly refused to
accept service.
[22]
Instead, the Sheriff claims to have made a third attempt at service
on 12 September, 2013 on which day, he affixed the notice
on first
applicant’s door, which surprisingly, is what he could have
done on the 16 August, 2013 and 20 August, 2013 especially
because on
the 20 August, 2013 the first applicant was present at home and
would have seen the process being affixed to her
door.
[23]
First applicant further deposed that she has never resisted lawful
process. To this end, she states that on18 June, 2013 Mr
Lechtman
attended at her home to inform her that he is the new owner of the
property and that he intends to have her evicted. There
is nothing on
the record to indicate that she was in any manner unreceptive or even
hostile to Mr Lechtman’s overtures, which,
I suppose, would
have been unwelcome news to her
[24]
Mr Lechtman, attended at applicant’s home again on 21 June,
2013. On this occasion, he was accompanied by police officers.
I
would imagine that on this particular occasion, first applicant
already knew Mr Lechtman, having seen him previously on 18 June,
2013. It is also reasonable to assume that the police would have been
fairly visible and having had previous contact with the new
owner, Mr
Lechtman, the applicant would have known the purpose of their visit
and would if she was so inclined, have attempted
to evade them.
Instead, the record shows that she received them without incident.
This clearly begs the question why the
applicant would have resisted
service on 20 August, 2013 when she did not resist all the other
encounters with the new owner and
the police whose aim was to
facilitate the eviction process?
[25]
In these circumstances the first applicant’s denial that she
was duly served must prevail consistent with
the well-
established rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[4]
Common
Law:
[26]
In order to succeed under the common law, first applicant must
demonstrate that:
[26.1]
she is not in wilful default;
[26.2]
the application is brought
bona fide;
and
[26.3]
she has a
bona fide
defence which holds some prospect of
success.
The
issues of wilful default and her
bona fides
have, by and
large, been addressed above. However, what remains to be considered
is the question of a
bona fide
defence to the respondent’s
claim for eviction.
[27]
Respondent has argued that first applicant does not have a
bona
fide
defence. First applicant asserts that she has a
bona fide
defence in that as a mother with two minor children who have nowhere
to go if evicted, she is entitled to legal protection under
PIE. Upon
examining the relevant papers, I am inclined to believe that the
first applicant is an indigent person and that she is
the head of a
household which includes her three children, two of whom are minors.
Accordingly, the first applicant’s personal
circumstances bring
her within the purview of PIE, read with s 26(3) of the Constitution,
which states that:
‘
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.’
[28]
The history and purpose
[5]
of
PIE, point decisively to the fact that it is not aimed at defeating
the rights of property owners that are protected in terms
of s 25 of
the Constitution. Its main thrust, is to balance the rights of
property owners against the interests of illegal occupiers
of land,
by reinforcing the provisions of s 26(3) of the Constitution which
seeks to ensure that evictions are conducted in a manner
that is
consistent with our Constitutional values.
[6]
Sachs J points out that:
‘
PIE
expressly requires the court to infuse elements of grace and
compassion into the formal structure of the law. It is called upon
to
balance competing interests in a principled way and promote the
constitutional vision of a caring society based on good
neighbourliness
and shared concern.’
[7]
He
goes on to emphasise that:
‘…
[T]hose
seeking eviction should be encouraged not to rely on concepts of
faceless and anonymous squatters automatically to be expelled
as
obnoxious social nuisance. …At the same time those who find
themselves compelled by poverty and landlessness to live
… on
the land of others, should be discouraged from regarding themselves
as helpless victims, lacking the possibilities
of personal moral
agency.’
[8]
[29]The
current dispute is regulated by s 4(6) of PIE which applies to
proceedings by an owner or a person in charge of land for
the
eviction of an unlawful occupier of land, who has been in occupation
of the property, for longer than six months.
[30]
Section 4(7) envisages that a person in the position of first
applicant, can only be evicted if a court,
‘…
is
of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including… the
rights and needs of the elderly, children, disabled persons and
households headed by women.’
[31]
Section 8 of PIE further provides that:
‘
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the
unlawful occupier must vacate the land under the circumstances; and
(b)
the date on which an eviction order may be
carried out if the unlawful occupier has not vacated the land on the
date contemplated
in paragraph (a).’
[32]
Further, in determining a just and equitable date on which the
occupier must vacate the property, the court must have regard
to all
the relevant factors, including the period the unlawful occupier and
her family resided on the property.
[33]
I now turn to consider whether the Court in granting the eviction
order, properly executed its constitutional and statutory
mandate.
Evidently, all the relevant information relating to the circumstance
of the first applicant, were not placed before the
court. The court
was also bereft of the views of the municipality
[9]
which is favourably placed to inform the court as to available land
within its jurisdiction and processes that the court could
implement
to temporarily or permanently accommodate the first applicant and her
minor children.
[10]
[34] The fact that
information pertinent to the personal circumstances of first
applicant and her children was not placed before
the court granting
the eviction as prescribed under PIE and that the municipality was
not joined in the action suggests that the
court granting the
eviction order was deprived of the opportunity to fulfil its
constitutional and statutory mandate in terms of
PIE.
[35] In the result,
first applicant has shown good cause for a rescission order under the
common law. It is therefore unnecessary
to consider whether first
applicant would be entitled to claim rescission in terms of Uniform
rule 42(1) and whether the failure
to join the municipality as a
party to the eviction proceedings was fatal.
Order:
[36] The following
order is made:
[36.1]
The default judgment granted against the first applicant on 9
October, 2013 is rescinded and the first applicant is granted
leave
to oppose the application for her and her children’s eviction.
[36.2]
The first applicant is directed to file opposing affidavits within
the time period prescribed by the Uniform Rules of this
Court and the
dies
in this respect will be calculated as from the date of
this order.
[36.3]
Costs are reserved for the court hearing the matter.
T
MOSIKATSANA
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR FIRST APPLICANT UNREPRESENTED
FIRST
APPLICANT’S ATTORNEYS LINDA MAQHEYANA ATTORNEYS
COUNSEL
FOR RESPONDENT MRS E LE ROUX
INSTRUCTED
BYSTEYN,STEYN& PARTNERS
DATE
OF HEARING 25 MARCH 2014
DATE
OF JUDGMENT 29 OCTOBER 2014
[1]
Act
19 of 1998 hereafter referred to as PIE.
[2]
I
presume this was intended to mean that the house could not be
auctioned off.
[3]
Rule42(1)(a)
stipulates that: ‘The court may, in addition to any other
powers it may have,
mero
motu
or upon the application of any party affected, rescind or vary: (a)
An order or judgment erroneously sought or erroneously granted
in
the absence of any party affected thereby;’.
[4]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 H-I
[5]
For
an insightful elucidation of the history and purpose of PIE, see
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 91) SA 217
at paras: 8-15
[6]
Id
at para:16.
[7]
Id
at para: 37.
[8]
Id
at par: 41.
[9]
See
Occupiers of Erf 101,102, 104 and 112
Shorts
Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd &
others
[2009] 4 All SA (SCA);
[2009] ZASCA 80
at para: 11.
[10]
Compare:
The
Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele
ZASCA 28;
2010 (9) BCLR 911
(SCA);
[2010] 4 All SA 54
(SCA) (25
March 2010).