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[2014] ZAGPJHC 409
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Mfuphi v Lekata and Another (2013/32291) [2014] ZAGPJHC 409 (18 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE GAUTENG
HIGH COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE
NO: 2013/32291
DATE:
18 NOVEMBER 2014
In
the matter between
GABANI
PETRUS
MFUPHI
..........................................................................................
First
Applicant
And
JOYCE
MAMPHO
LEKATA
.....................................................................................
First
Respondent
THE
CITY OF
JOHANNESBURG
........................................................................
Second
Respondent
J
U D G M E N T
Summary:
A contract for the alienation of land
shall be in writing. It may be written in any language including the
Zulu language. It must
comply with the peremptory provisions of
section 2 read with subsection 6(1) of the
Alienation of Land Act 68
of 1981
for it to be valid.
The
process of eviction by a private owner of land which is consistent
with the provisions of subsections 25 and 26 (3) of the Constitution
read with section 4 of the
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act
is constitutionally and
legislatively compliant.
MOSIKATSANA
AJ
Introduction
:
[1]
This is an application for an eviction order in terms of section 4 of
the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
[1]
(PIE Act). First applicant seeks the eviction of first respondent and
all those occupying through or under her, from certain immovable
property known as Erf 5009 Orange Farm Extension 2 Township –
also known as 5009 Jikeleza Street, Orange Farm Extension 2,
Johannesburg, registered under the name of the first applicant.
Factual
Background
:
[2]
The facts of this case are sharply contested. They are characterised
by two conflicting narratives. First applicant’s
narrative
consists of the following chronology of events.
First Applicant’s
Narrative:
[3]
During the course of the year 2005, first applicant took ill and
could no longer work. He left his residence in Johannesburg,
to
return to the Free State Province, to convalesce close to his family,
where he would obtain medical treatment.
[4]
Prior to first applicant’s departure for the Free State
Province, he entered into an oral lease agreement with first
respondent. According to the oral lease agreement, the first
respondent was to pay the first applicant, monthly rental of R1,
500.00.
[5]
First applicant contends that from the inception of the oral lease
agreement, first respondent failed to make regular rental
payments.
First applicant contends that consequently, first respondent fell
into arrears. The last rental payment by the first
respondent was
made in June 2008.
[6]
In 2008 first applicant had recuperated from his illness. He was
re-employed. He moved back to Orange Farm where his residential
property is situated. Upon his return, first applicant, informed
first respondent, that she should vacate his property, so he could
move back in. First applicant contends that first respondent refused
to vacate the property and continues to live on the property
which is
the subject of the current dispute.
[7]
First applicant contends that since January 2013, he has consistently
informed first respondent that he has cancelled the verbal
lease
agreement they had entered into and that she must surrender vacant
possession of the property to him. However, first respondent
resolutely refused to vacate the property.
[8]
First applicant avers that the first respondent and all persons
holding by, through or under her, are unlawful occupiers of
the
residential property that is registered in his name.
[9]
First applicant states that he is currently in a lease agreement in
terms of which he pays a monthly rental of R2,000.00. He
submits that
he considers it unfair that he should continue to pay rent when he
has property which is unlawfully occupied by first
respondent.
First applicant states that he needs the property for himself and his
children’s accommodation.
[10]
First applicant asserts that first respondent is not an indigent
person and that she can obtain rental property for herself
anywhere
in the Johannesburg area. First applicant submitted a housing report
from the second respondent indicating the availability
of residential
properties within the Johannesburg area.
[11]
On 30 July, 2013 first applicant through his attorneys, caused to be
delivered to first respondent, a letter of notice, calling
upon the
respondents and/or any persons occupying the property through or
under her, to vacate the property by no later than
31 August
2013. The letter of notice was delivered to the first respondent, by
the first applicant’s son, Nkosinathi Mfuphi,
who has filed a
confirmatory affidavit. The notice period has since expired and first
respondent refuses to vacate the property.
First
Respondent’s narrative
[12]
First respondent contends that she purchased the property from the
first applicant for an amount of R35, 000.00. First respondent
submitted as proof of purchase, a handwritten document, which she
asserts in her replying affidavit, is a signed agreement, for
the
purchase and sale of land. The document which is handwritten in the
Zulu language, states:
‘
Imvume
yo ku thengiselana kwendlu Mina ngingu Petros Gabani Mfuphi
Ngithengisela U Mampho Joyce Lekata indlu yase Ext 2 ngoba ngiyo
hlala e ext 7 nomfazi wami. Indlu Ibiza R35-000 I mali a banginikeze
yona u R20,000.00 cash. Savumelana ngokuthi e sele uzoikhokha
khona
maduzane nje.’
[2]
First
respondent asserts that the handwritten document is a valid contract
for the purchase and sale of immovable property in that
it identifies
the parties, the immovable property and the purchase price. First
respondent, asserts that she paid the full
purchase price during
2007.
[13]
First respondent states that during 2007, she instructed her
attorneys to attend to the registration of the property in her
name.
She submitted a letter dated 1 November, 2007. The letter
addressed ‘to whom it may concern’ and apparently
signed
by someone named Ashlie Farrand, states that Backenberg attorneys
have been instructed to attend to the registration of
transfer, of
the above mentioned property, from the first applicant, to the first
respondent. The letter from the first respondent’s
attorney
also states in part that:
‘
All
of the relevant costs have already been paid in full and the parties
have signed all of the necessary documentation to enable
me to
proceed with my mandate.’
[14]
First respondent submits that during May 2013 she was informed by a
previous employee of Backenberg attorneys, that the attorney
who was
attending to the transfer of the property in first respondent’s,
name was struck off the roll and that first respondent’s
conveyancing file was transferred to Langehoven Attorneys.
[15]
First respondent also states that during May 2013 she attended at the
offices of Langehoven attorneys, who informed her that
the deeds
registration documents had been sent to Pretoria, for registration of
transfer. First respondent, also states, that when
she followed up on
the matter of the registration of the transfer of title in her name,
she was informed that her file was lost.
She accordingly referred the
matter to the Law Society.
[16]
First respondent states that on 7 February, 2010 first applicant gave
her an affidavit, in which first applicant deposed to
the fact that,
he had sold first respondent the above mentioned property and that
first applicant, also gave first respondent,
a copy of the title deed
to the property. First respondent attached a copy of the affidavit
allegedly deposed to by first applicant,
to her answering affidavit.
In the affidavit it is partly stated as follows:
‘…
I
wish to give my property to Mampho Joyce Lekata ID 760826 0677 086.
Situated on this property is a seven roomed house. I also
willingly
handed over my title deed to the lawyers for transfer purposes.’
First
applicant vehemently denies that he deposed to the said affidavit. He
also denies that the signature that appears on the affidavit
is his
signature.
[17]
First respondent denies that she is an unlawful occupier. She avers
that she did everything in her power to effect registration
of
transfer of the property in her name to no avail. First respondent
also denies that, Nkosinathi Mfuphi, delivered to her, a
letter of
notice to vacate,
sent by the first
applicant’s lawyers. First respondent states that Nkosinathi
Mfuphi, is her ex-boyfriend, and that he had
only attended at the
property, to discuss an outstanding domestic violence dispute,
between himself and first respondent.
Issues for
Determination:
[18]
The following issues which arise from the foregoing facts are to be
determined by this Court:
[18.1]
Whether or not there is a valid agreement between first applicant and
the first respondent for the sale of land;
[18.2]
Whether or not the court ought to grant an eviction order in favour
of the applicant.
[18.3]
In the event, that an eviction order is granted, the amount of time,
that the first respondent must be afforded to find alternative
accommodation.
Determination
of the Issues:
[19]
This Court is confronted with two conflicting versions of the events
leading to this dispute. In weighing the probabilities
the Court is
guided by the principles enunciated in the classical case of
Plascon
Evans Paints Limited v Van Riebeek Paints (Pty) Limited.
[3]
[20]
Applying the probability calculus articulated in the
Plascon
Evans
case
[4]
to the factual matrix of
this application, I proceed to make my findings regarding the
following issues:
Whether or not
there is a valid agreement between first applicant and first
respondent for the sale of land:
[21]
First applicant has proven ownership of the property within the
meaning of section 1of the PIE Act,
[5]
by producing a title deed registered in his name.
[22]
First applicant stated that he terminated the oral lease entered into
between himself and first respondent. Conversely, first
respondent
avers that she purchased the property from first applicant pursuant
to a sale agreement. In support of this contention
she produced a
handwritten document in the Zulu language, purporting to be a
contract for the purchase and sale of land.
The fact that the
purported deed of alienation is written in the Zulu language does not
invalidate it. If anything, it brings it
in line with s 5
[6]
of the Alienation of Land Act
[7]
(ALA) read with s 6
[8]
of the
Constitution Act
[9]
. However,
the purported deed of alienation, does not fully comply with s 2 and
s 6 of the
ALA
,
in that the formalities prescribed in s 2A and ss 6(1) of the ALA,
are omitted in the purported handwritten deed of alienation.
The
requirements prescribed in s 2A read with ss 6(1) of the
ALA
are peremptory. Non-compliance therewith invalidates the purported
handwritten deed of alienation.
[23]
First respondent alleges that she paid an amount of R 35,000.00 as
the purchase price for the property. However, she has not
provided
proof of such payment.
[24]
First respondent also relied on a letter from her lawyer, stating
that the lawyer was charged with the process of transferring
ownership of the property from the first applicant to the first
respondent’s name. Before registration of transfer could
be
effected, the lawyer was according to the first respondent’s
version, struck off the roll of attorneys.
[25]
First respondent also proffered an affidavit, purportedly deposed to,
by the first applicant, in which he allegedly deposes
to the fact
that, he
gives
the property, to the first respondent.
The use of the word
give
in the affidavit is
inconsistent with the notion of a contract for the purchase and sale
of land mooted by the first respondent.
I find the first applicant’s
remonstration that he did not depose to the affidavit plausible and I
am persuaded by it.
[26]
In my view, it is unnecessary to decide on the validity of the
impugned contract for the purchase and sale of land in order
to
determine who the rightful owner of the property is, under the PIE
Act. Even if it were to be found that the handwritten contract
for
the purchase and sale of land between the parties is valid, it would
not defeat the title deed as proof of the first applicant’s
lawful ownership of the land for purposes of making a determination
under the PIE Act.
Whether or not
the court ought to grant an eviction order in favour of the
applicant:
[27]
A determination of this issue must necessarily be made with reference
to the PIE Act. The history and purpose
[10]
of the PIE Act is not to subvert, the property rights of lawful
owners of land such as the first applicant
[11]
,
but to ensure the orderly eviction of unlawful occupiers in line with
section 26(3) of the Constitution.
[28]
In order to balance the competing rights of landowners and unlawful
occupiers of land, the PIE Act has set out an equitable
scheme in ss
4(6) 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.
[29]
Subsection 4(7) envisages that a person in the position of first
respondent, 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.’
[30]
Subsection 4(8) of the PIE Act further provides that:
‘
4.
Eviction of unlawful occupiers
…
(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).’
[31]
I now turn to consider whether this Court ought to grant an eviction
order. First applicant has complied with all the formalities
under
the PIE Act. All the relevant information relating to the
circumstance of the first respondent, were placed before this court
including the fact that she has two children one of whom is a minor.
No tangible evidence has been led to the fact that the first
respondent is indigent. First applicant solicited the views of the
second respondent, regarding the availability of land within
its
jurisdiction for the accommodation of the first respondent and her
two children.
[32]
The fact that information pertinent to the personal circumstances of
first applicant and her children was placed before this
court as
prescribed under the PIE Act and that the second respondent was
joined in the action indicates that this court is fulfilling
its
constitutional and statutory mandate in terms of the PIE Act in
granting an eviction order and that in the circumstances an
order of
eviction ought to be granted.
In
the event that an eviction order is granted, the amount of time that
the first respondent, must be afforded to find alternative
accommodation:
[33]
In determining a just and equitable date on which the unlawful
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.
[34]
Having considered all the relevant circumstances above, I find that
first applicant has made a proper case for the eviction
of the first
respondent and all those persons occupying through or under her.
Accordingly, the period of time within which first
respondent is to
vacate property is set out in the order below.
The
Order
:
[35]
An order is granted in the following terms:
[35.1]
First respondent and all other persons occupying or claiming a right
of occupation through or under her, are ordered to vacate
the
property known as Erf 5009 Orange Farm Extension 2 Township –
also known as 5009 Jikeleza Street, Orange Farm Extension
2,
Johannesburg.
[35.2]
First respondent and all other persons occupying or claiming a right
of occupation through or under her are ordered to vacate
the said
property by no later than 15 January, 2015.
[35.3]
In the event that first respondent and all other persons occupying or
claiming a right of occupation through or under her
have not vacated
the said property as directed in paragraphs [35.1] and [35.2] above,
the Sheriff is hereby authorised and required
to carry out the
eviction order forthwith, by removing the first respondent, and/or
any other person occupying the property through
or under her from the
said property.
[35.4]
The Sheriff is authorized to approach the South African Police
Service for assistance.
[35.5]
First respondent is ordered to pay the costs of the application.
TL
MOSIKATSANA AJ
APPEARANCES:
COUNSEL
FOR FIRST APPLICANT J MBELE
INSTRUCTED
BYMJ MBELE INC ATTORNEYS
COUNSEL
FOR FIRST RESPONDENTCM VAN DER BERG
INSTRUCTED
BYLEGAL AID SOUTH AFRICA
COUNSEL
FOR SECOND RESPONDENT UNREPRESENTED
DATE
OF HEARING 26 MARCH 2014
DATE
OF JUDGMENT 18 NOVEMBER 2014
[1]
Act
19 of 1998
[2]
Loose
translation: ‘Agreement for the sale of a house
I
Petros Gabani Mfuphi, sell to Mampho Joyce Lekata, the house
situated at Ext 2 because I am going to stay at ext 7 with my wife.
I am selling the house for the amount of R35, 000.00
I
received a deposit in the amount of R20,000.00 cash. We agreed that
the balance will be paid in the near future.’
[3]
[1984]
ZASCA 51; 1984 (3) SA 623 (A)
[4]
Id
[5]
Section
1 defines owner of land partly as ‘the registered owner of
land…’
[6]
which
states that the purchaser is entitled to choose the language in
which the deed of alienation shall be drawn up.
[7]
68
of 1981.
[8]
The
section includes Zulu as one of the eleven official languages of
South Africa and it enjoins respect for all official languages.
[9]
108
of 1996
[10]
For
an analysis of the history and purpose of the PIE Act, see
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 91) SA 217
at paras: 8-15
[11]
The
rights of property owners are protected in s 25 of the Constitution
Act 108 of 1996.