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[2015] ZAGPJHC 158
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Magadla and Another v Daniso and Others (43143/2013) [2015] ZAGPJHC 158 (11 June 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 43143/2013
DATE: 11 JUNE 2015
In the matter between:
HERBET
MAGADLA
.....................................................................................................
First
Applicant
MAUD LINDELWA
MAGADLA
...............................................................................
Second
Applicant
And
THE MAGISTRATE: MS
DANISO
...........................................................................
First
Respondent
FAWZIA
CHOONARA
............................................................................................
Second
Respondent
THE CITY OF
JOHANNESBURG
..........................................................................
Third
Respondent
METROPOLITAN MUNICIPALITY
J U D G M E N T
MALI AJ
[1] The applicants brought an
application for an order reviewing and setting aside the judgment of
the first respondent (the Magistrate).
On 17 October 2013 in the
Vereeniging Magistrate Court the first respondent ordered the
eviction of the applicants.
[2] The eviction order was granted in
terms of the Prevention of Illegal Eviction from Unlawful Occupation
of Land Act 19 of 1998
(“the PIE Act”). The applicants
were evicted from Erf [2……..], [Z…….]
Park Extension 1,
situated at [3…….] [A……….],
[Z……..] Park (“the property”).
[3] The applicants’ grounds of
review are the following;
(i) the first respondent lacks
jurisdiction as the location of the property ([Z…………]
Park) does not
fall within the magisterial district of Vereeniging;
(ii) that the property has since been
paid up by the applicants and
(iii) that the second respondent is not
the owner of the property.
[4] Section 24 of the Supreme Court Act
no 59 of 1959 provides as follows:
“(1) The grounds upon which the
proceedings of any inferior court may be brought under review before
a provincial division,
or before a local division having review
jurisdiction, are-
(a) absence of jurisdiction on the part
of the court;
(b) interest in the cause, bias, malice
or the commission of an offence referred to in Part 1 to 4, or
section 17, 20 or 21 ( in
so far as it relates to the aforementioned
offences) of Chapter 2 of the
Prevention and Combating of Corrupt
Activities Act, 2004
, on the part of the presiding judicial officer;
(c) gross irregularity in the
proceedings;
(d) the admission of inadmissible or
incompetent evidence or the rejection of admissible or competent
evidence.”
LACK OF JURISDICTION
[5] Section 1 of the PIE Act provides
that a Magistrate’s court or a High Court in whose area of
jurisdiction the immovable
property is situated has jurisdiction to
hear proceedings instituted in terms of the PIE Act. Sections 26, 28
and 29 of the Magistrate’s
Court Act 32 of 1944 (“the
Act”) provide that the civil jurisdiction of the Magistrate is
determined by the reference
to its area of jurisdiction, the persons
of whom the court has jurisdiction and the causes of action in
respect of which it has
jurisdiction.
[6] Mr Ngqwangele, Counsel for the
applicant argued that [Z………] Park does not fall
under the jurisdiction of
the Vereening Magistrate’s court. The
unsubstantiated argument advanced by the Counsel is that the court’s
jurisdiction
is determined by the municipal boundaries. The
applicant’s case is that the Johannesburg Magistrates Court or
the South
Gauteng High Court had the requisite jurisdiction. This is
because the applicants’ municipality bills are issued by the
City
of Johannesburg. No reference was made to any authority to
support this submission. Accordingly this contention is unfounded.
[7] The first respondent relied on
document submitted by the second respondent. The said document
contained a list of localities
and their respective magisterial
jurisdictions. According to the document marked annexure “E”,
which the respondent
contented that it is an issue of the Department
of Justice, [Z……….] Park falls within the
magisterial area
of Meyerton or Vereeniging Noord. The undisputed
submission by the respondent is that the magisterial area referred to
as Vereeniging
Noord in the document is the same as Vereeniging
Magistrate’s Court. Meyerton and Vereeniging have concurrent
jurisdiction.
[8] I find that the first respondent
considered all evidence before her and have correctly founded on the
issue of jurisdiction.
Accordingly the first ground of review falls
away.
PROPERTY SINCE PAID UP
[9] It is common cause that the
applicants were financed by Eskom to acquire the property as the
first applicant was employed by
Eskom. The first respondent had
regard to the applicant’s contradicting submissions. The first
submission is that the property
was paid up. On the other hand the
applicant submitted that after he paid R100 000.00 as a final
settlement a dispute between him
and his then employer Eskom arose.
[10] The dispute was as a result of a
sum of R55 124.61 outstanding balance despite the already made
payment of R100 000.00. The
applicants stated that their property was
sold fraudulently and illegal since it was paid up. However three
months later when
the matter was heard by the first respondent they
still had not launched the rescission application.
[11] The respondent must approach the
appropriate forum in order to have the order set aside, until then;
the order is valid and
effective. In Oudekraal Estates ( Pty) Ltd v
City of Cape Town & Others
(2004) 6 SA 222
at 242 A-C the
Honourable Howie P et Nugent JA held that “until the
administrator’s approval, and thus also consequence
for the
approval, is set aside by a Court in the proceedings for judicial
review, it cannot simply be overlooked. The proper functioning
of a
modern state would be considerably compromised if all administrative
acts could be given effect to be ignored depending upon
the view the
subject takes of the validity of the act in question… 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..”.
[12] In Davids and Others v Van
Straaten and Others
[2005] ZAWCHC 16
;
2005 (4) SA 468
( C ) the following was stated:
“that the magistrate had had
before him all the relevant circumstances to make a proper finding,
including the fact that the
respondents were the owners of the
premises, that the leases had been terminated in compliance with the
provisions of the Rental
Housing Act and of PIE and that the tenants
were holding over. He furthermore had had before him information as
the personal circumstances
of the applicants. [484 F-G] The
respondents had been indirectly expropriated of their land by the
conduct of the applicants, and
that this was an example of the
serious abuse which PIE could give rise. That it was upon
consideration of all the relevant circumstances,
just and equitable
that the parasitic occupation by the applicants of the respondent’s
property had to be terminated and
the applicants evicted from the
premises”.
[13] Having regard to the above I find
that the first respondent appropriately considered the evidence
before her. It was not the
first respondent’s function to set
aside the transfer and registration of property because of the
allegations of fraud. What
was required for the first respondent was
to satisfy herself whether the requirements of the PIE Act were met.
Consequently the
complaint that the magistrate failed to consider
that the property is paid up falls away.
SECOND RESPONDENT IS NOT THE OWNER
OF THE PROPERTY
[14] The applicants alleged that the
second respondent was not the owner of the property. They challenged
the fact that the conditions
of sale were not signed by the second
respondent. They contended that the second respondent acquired the
property fraudulently.
[15] The first respondent considered
the second respondent’s confirmatory affidavit and the
answering affidavit duly deposed
to by her former brother in law
Anver Choonara (“Anver”). The affidavits state that the
second respondent appointed
Anver through a general power of
attorney. Anver was mandated to manage the second respondent’s
property and sign the conditions
of sale. He was also authorised to
duly depose to the affidavits in the Vereeniging’s Magistrate’s
court. The first
respondent also had regard to the title deed which
is in the name of the second respondent which clearly shows when she
acquired
the property.
[16] Having regard to the above this
ground of appeal also falls away. I find that the learned magistrate
did not commit gross
irregularity in the proceedings. She appositely
found that the applicants were in unlawful occupation, and that the
Second respondent
has the right to occupation of her property.
[17] In the circumstances I accordingly
make the following order:
1. The application is dismissed with
costs.
MALI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
Counsel for the Applicant : Adv
Ngqwangele
Instructed by : Malangeni Attorneys
Counsel for the second Respondent :
Adv WJ Scholtz
Instructed by : De Wet Lyell Nel &
Maeyane
Date of Hearing : 29 April 2015
Date of Judgment: 11 June 2015