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[2015] ZAGPJHC 307
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Khosa v Ntlemeza and Another (2013/25560) [2015] ZAGPJHC 307 (9 November 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2013/25560
DATE: 09 NOVEMBER 2015
In the matter between:
ODIRILE SYDNEY LETSOGO
KHOSA
..............................................................................
Applicant
And
NTLEMEZA S’BUSISO
CECIL
.................................................................................
First
Respondent
NOMBEU
YANDISA
................................................................................................
Second
Respondent
SUMMARY
Eviction in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
(“the PIE Act”)
– ownership of property –
eviction order granted by default – subsequently application
for leave to appeal –
unmerited grounds of appeal –
application for leave to appeal unsuited instead of rescission
application – current
practical procedure in respect of
applications for leave to appeal in this local division not
waterproof – application for
leave to appeal dismissed –
and eviction order declared not suspended as there were no
exceptional circumstances as envisaged
in sec 18(1) of the Superior
Courts Act.
JUDGMENT ON APPLICATION
FOR LEAVE TO APPEAL
MOSHIDI, J:
INTRODUCTION
[1] This is an application for leave
to appeal against the whole of my judgment and order delivered on 16
April 2014.
THE PARTIES
[2] The present applicant was the first
respondent in the main application, whilst the respondents were the
two applicants in the
eviction proceedings. I shall henceforth, and
for the sake of convenience, refer to the parties as they were,
namely (“the
applicants”), and (“the first
respondent”).
THE GROUNDS OF APPEAL
[3] The first respondent’s for
leave to appeal are as set out in the application for leave to appeal
dated 5 May 2014. I
must at the outset place on record that the
application for leave to appeal, filed with the registrar on 8 May
2014, was never
brought to my attention, nor that of my clerk, until
recently when the applicants lodged a complaint. The delay is
regrettable.
The application is in any event opposed.
THE MAIN APPLICATION
[4] In the main application, the
applicants applied for the eviction of the first respondent and
others from the property situated
at [Erf 1…..], [E…..]
[P…..] [E…..] 1 Township, Gauteng (“the
property”). The matter came
before me in the unopposed motion
court. Pursuant to hearing argument on behalf of the applicants, and
having been satisfied that
the applicants had made out a case, I duly
granted the order evicting the first respondent and the second
respondent (unknown and
unlawful occupiers) from the property. At
the time, I gave an ex tempore order not accompanied by comprehensive
reasons. What
follow hereafter are such reasons.
[5] In the founding papers,
commissioned as far back as July 2013, the applicants contended that
they are the joint owners of the
property. In support of this
allegation, the applicants attached the Deeds Office register,
annexure “scn2”, as well
as a conveyancer certificate
(“scn1”) confirming that the property was registered in
their names on 27 May 2013. The
applicants acquired the property
through a mortgage loan granted by First Rand Bank Limited in the
amount of approximately R380
000,00 (three hundred and eighty
thousand rand).
[6] The documentary evidence as well
submissions made on behalf of the applicants proved on a balance of
probabilities that the
applicants are the registered lawful owners of
the property. The applicants complained that since the property was
registered
in their names, and since the mortgaged bond was
registered over the property, they are obliged ineluctably to pay to
the local
municipality the rates and taxes, various charges and other
charges levied, as well as the monthly bond instalment to the bank
this, without enjoying the benefits of occupation of their property.
On the other hand, all that is known of the first respondent
is that
he is one of the previous occupiers/owners of the property which
occupation is unlawful. This prompted the applicants
to launch the
eviction application in terms of the provisions of the Prevention of
Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998
(“the PIE Act”).
OWNERSHIP OF THE PROPERTY AND THE
LAW
[7] The applicants’ right of
ownership to the property is unassailable. Indeed, the onus of proof
of ownership, and that
the first respondent is in unlawful occupation
of the property was on the applicants. In Chetty v Naidoo
1974 (3)
SA 13
(A) at p 20, the Court said that:
“The incidence of the burden of
proof is a matter of substantive law (Tregea and Another v Godart and
Another,
1939 AD 16
at p 32), and in the present type of case it must
be governed, primarily, by the legal concept of ownership …
it is inherent
in the nature of ownership that possession of the res
should normally be with the owner, and it follows that no other
person may
withhold it from the owner unless he is vested with some
right enforceable against the owner (e.g. a right of retention or a
contractual
right).”
See also Rhoode v De Kock and Another
2013 (3) SA 123
(SCA), from which it appears that an application for
eviction is inherently vindicatory. In Wormald NO and Others v
Kambule
2006 (3) SA 562
(SCA) at para [11], the Court said:
“[11] An owner is in law
entitled to possession of his or her property and to an ejectment
order against a person who unlawfully
occupies the property except if
that right is limited by the Constitution, another statute, a
contract or on some or other legal
basis. Brisley v Drotsky
2002 (4)
SA 1
(SCA)
(2002) (12) BCLR 1229).
In terms of s 26(3) of the
Constitution, from which PIE partly derives (Cape Killarney Property
Investments (Pty) Ltd v Mahamba
and Others
2001 (4) SA 1222
(SCA)
([2001]
4 All SA 479)
at 1229E (SA)), ‘no one may be evicted
from their home without an order of court made after consideration of
all the relevant
circumstances’. PIE therefore requires a
party seeking to evict another from land to prove not only that he or
she owns
such land and that the other party occupies is unlawfully,
but also that he or she has complied with the procedural provisions
and that on a consideration of all the relevant circumstances (and,
according to the Brisley case, to qualify as relevant the
circumstances
must be legally relevant), an eviction order is ‘just
and equitable’.”
[8] The applicants in this matter, have
not given the first respondent any permission to occupy their
property. Neither is there
any arrangement entered into for the
first respondent to occupy the property. In addition, as discussed
below, the first respondent
had not filed any opposing papers, showed
no valid defence to the eviction, leading to the eviction order being
granted by default.
It was incumbent on the court, as happened here,
to determine a just and equitable date on which the unlawful occupier
must vacate,
the property, and a date on which the eviction order can
be enforced, as provided for in secs 4(8) and 9 of the PIE Act.
Subject
to the procedural requirements being met, an owner is
entitled to approach the court on the basis of ownership and the
respondent’s
unlawful occupation. This will be so unless the
occupier poses and discloses circumstances relevant to the eviction
order, the
owner, in principle, is entitled to an order for eviction.
The issue of relevant circumstances is nearly, without fail, facts
within the exclusive knowledge of the occupier, and it cannot be
expected of an owner, like the applicants, to negate in advance
facts
not known to them. See in this regard, Ndlovu v Ndlovu; Bekkker and
Bosch v Jika
2003 (1) SA 113
(SCA) para [19]. In this matter, I was
satisfied that the applicants had met all the procedural
requirements, in particular sec
4(2) of the PIE Act, which entitled
them to en eviction order, and that the first respondent had neither
advanced a defence to
the eviction order, nor placed any relevant
circumstances for consideration before the court. It was for these
reasons that I granted
the eviction order on 16 April 2014, and
ordered that the eviction order be carried out by 17 May 2014.
FINDING ON THE GROUNDS OF APPEAL
[9] I have considered carefully the
grounds of appeal as contained in the application for leave to
appeal. These grounds are plainly
misplaced and unsustainable. The
grounds were never raised in any answering papers. In any event, the
first and the second respondents’
attention were drawn to the
provisions of sec 26(1) of the Constitution as well the necessity to
obtain legal assistance in para
[35] of the founding papers.
Further, in any event, the first respondent enjoyed legal
representation until shortly before the
hearing of the eviction
application. For these reasons, I concluded that there are no
reasonable prospects of success on appeal.
The application for leave
to appeal must fail.
[10] However, if I am incorrect in my
above finding, I believe that the present application should also
fail for another reason.
That is that, the impugned order was
granted in the unopposed motion court, and under circumstances where
the first respondent
was in default. At the hearing of the matter on
16 April 2014, the following facts were placed before the court: the
notice of
motion was served on the first and the second respondents
during July 2013; the court order in terms of sec 4(2) of the PIE
Act
was served on the first and the second respondents on 14 March
2014; the matter was previously on the court roll on 31 October
2013
and again on 9 January 2014; on both occasions the first respondent,
asked for, and was afforded the opportunity to file opposing
papers;
and this was never done until the order now on appeal was granted on
16 April 2014.
[11] The point is simply that the first
respondent should rather have applied for the rescission of the
judgment either in terms
of rule 31(2)(b) or rule 42(1)(a) of the
Uniform Rules of Court, or still under the common law. This did not
happen. The instant
appeal procedure is therefore incompetent, it is
susceptible of alteration by the court of first instance. See in
this regard,
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at
532H-J; and S v Western Areas Ltd and Others
2005 (5) SA 214
(SCA) at
para [20]. Until varied or rescinded, the eviction order granted on
16 April 2014, remains extant. For this reason too,
the present
application was unsuited. In my view, it will nevertheless be in the
interest of justice, avoidance of the abuse of
court process, and
based on the principle of utilising the court’s inherent
jurisdiction ‘to protect and regulate’
its own process,
as envisaged in sec 173 of the Constitution, to refuse this unmerited
application instantly. The applicants’
prejudice remains
unabated and irreparable in the interim. I must mention that the
application for leave to appeal was previously
enrolled for hearing
on 14 October 2015. However, on the latter date, the matter was
struck off the roll as there was no appearance
for the appellant.
[12] At the invitation of the court
previously, the parties also addressed me on the question as to
whether or not the eviction
order ought to be suspended pending the
outcome of any further appeal that the first respondent may entertain
hereafter. The question
is governed by the recently introduced
provisions of sec 18 of the Superior Courts Act 10 of 2013 (“the
Superior Courts Act&rdquo
;), referred to immediately below.
[13] In regard to the discretion to
order that an order shall not be suspended, pending the outcome of an
appeal,
sec 18(3)
of the
Superior Courts Act provides
that “a
court may only order otherwise …, if the party who applied to
the court to order otherwise, in addition proves,
on a balance of
probabilities, that he or she will suffer irreparable harm if the
court does not so order and that the other party
will not suffer
irreparable harm if the court so orders”. In the present
matter, and as set out above, the following are
common cause: the
property was registered in the names of the applicants as far back as
27 May 2013; they took out a loan for
the purchase price through a
mortgage bond; they have been, and are paying bond repayments ever
since; they are also liable for
rates and taxes and other charges
levied in respect of the property; they are not enjoying the right to
occupy the property; and
the first respondent is occupying the
property unlawfully and free of charge. The loss suffered by the
applicants is increasing
on a daily basis, and they may not or will
not be compensated by the first respondent at the end of the probable
further appeal
proceedings. Indeed, counsel for the first
respondent, in closing argument, conceded these common cause facts.
The only argument
advanced on behalf of the first respondent was that
in the event of the eviction order being carried out, his right to
housing
in terms of sec 26(1) of the Constitution will be infringed.
It was also argued that the first respondent’s version on the
merits of the eviction proceedings was not before the court as he
omitted to file answering papers in regard thereto. It was conceded,
however, that the first respondent was in fact in court when the
eviction order was granted on 16 April 2014. This implied that
the
first respondent was aware of the order from inception.
[14] The above submissions of the first
respondent are by far outweighed by the harm caused to the applicants
for as long as they
are denied occupation of the property. The
record shows that at the previous hearing of the matter on the
unopposed roll on 31
October 2013, the first respondent was present
and the court postponed the matter sine die in order for the first
respondent to
file answering papers. This was not done. Later, on 9
January 2014, the matter was on court roll. The first respondent was
present.
Once more, the matter was postponed sine die in order to
allow the first respondent to file his answering affidavit. Once
more,
this was not done, up to the time of the granting of the order
on 16 April 2014.
[15] In my view, all of the above
constitute exceptional circumstances not to order the suspension of
the eviction order as envisaged
in
sec 18(1)
of the
Superior Courts
Act. (Cf
for example, Incubeta Holdings (Pty) Ltd v Ellis
2014 (3)
SA 189
(GJ) at 194J-195I.)
THE ORDER
[16] The following order is made:
1.The application for leave to appeal
is dismissed with costs.
2. The eviction order remains in force
and executable immediately.
D S S MOSHIDI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE FIRST RESPONDENT M J
MBELE
INSTRUCTED BY M J MBELE INC
ATTORNEYS
COUNSEL FOR THE APPLICANTS J H
KORSTEN
INSTRUCTED BY K N B ATTORNEYS INC
DATE OF HEARING 4 NOVEMBER 2015
DATE OF JUDGMENT 9 NOVEMBER 2015