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[2015] ZAGPJHC 290
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Venpine Properties (Pty) Ltd v Nikitaridis and Others (07007/2013) [2015] ZAGPJHC 290 (18 December 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 07007/2013
DATE: 08 DECEMBER 2015
In the matter between:
VENPINE PROPERTIES (PTY) LTD
(REGISTRATION NO.
1986/000578/07)
................................................................................
Applicant
And
ANNA MARGRETHA
NIKITARIDIS
......................................................................
First
Respondent
GERASSIIMOS
NIKITARIDIS
..............................................................................
Second
Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
........................................................................................................
Third
Respondent
J U D G M E N T
MASHILE, J:
[1] This eviction application follows
upon the acquisition of ownership of the property described as, The
Remaining Extent of Holding
151 Kyalami Agricultural Holdings
Extension 1, situated at 170 Jakaranda Street, Kyalami Agricultural
Holdings Extension 1 (“the
property”) by the Applicant.
[2] Although there are three
respondents in this matter, reference to respondents in this matter
shall mean the First and the Second
Respondents as no order is sought
against the Third Respondent. The factual background is that:
2.1 The Respondents are husband and
wife, married out of community of property;
2.2 The First Respondent was the owner
of the property until she lost it in October 2012 as a result of
foreclosure proceedings
instituted by ABSA Bank Ltd;
2.3 The proceedings culminated in the
property being sold at a sale in execution where it was purchased by
Vernon Kenneth Matthews
who in turn sold it to the Applicant during
October 2012 for an amount of R3 200 000.00;
2.4 Following the acquisition of the
property by the Applicant in October 2012, the First Respondent
indicated that she wished to
repurchase the property from the
Applicant but has until the hearing of this application not
approached the Applicant with a view
to satisfying her wish;
2.5 The Respondents have since October
2012, the date on which the property was purchased by the Applicant,
been in unlawful occupation
as they do not have the permission of the
Applicant to remain on the property;
2.6 Furthermore, neither Respondent has
instituted proceedings to set aside the sale in execution;
2.7 None of the unlawful occupiers in
particular, the First and the Second Respondents pay any rates and
taxes and/or any occupational
rental to the Applicant;
2.8 In consequence of this, the
Applicant expends substantial amounts each month on assessment rates,
taxes, water and electricity
while the Respondents enjoy free
occupation. The Applicant has until now not recovered any of the
amounts that it had expended
monthly on the property.
[3] The Applicant contends that as the
registered owner of the property, it should be given possession and
occupation of the property.
Since there is no agreement between it
and the Respondents for the continued occupation of the property, the
sale in execution
has not been nullified and the First Respondent has
not repurchased the property from it, the Respondents have no right
to live
on the property and should vacate.
[4] Both Respondents have defended the
application but only the Second Respondent has delivered his
answering affidavit. When the
parties appeared before this court on
25 November 2015, the Second Respondent moved that the matter be
postponed sine die to enable
him to obtain legal representation. He
indicated that he would be financially ready to approach his
attorneys with instructions
after the end of January 2016.
[5] Needless to state that the
application to postpone was understandably vehemently opposed by the
Applicant. The grounds of such
opposition were that:
5.1 When Wanless AJ postponed the
matter sine die on 2 September 2015, he did so to enable the Second
Respondent to instruct attorneys
to represent him. At the hearing of
this matter the reason had not changed;
5.2 Like he did on the previous
appearance before Wanless AJ, the Second Applicant did not warn the
Applicant that he was planning
to apply for a postponement until he
was before court.
5.3 A further postponement of the
matter would highly prejudice the Applicant financially because as an
owner it remains liable
for all the property rates, taxes,
electricity and water, which amount it is likely not to recover from
anyone.
5.4 The Respondents’ defences for
remaining in occupation of the property were unsustainable.
[6] It was against that backdrop that
the court considered the Second Respondent’s application for
postponement and dismissed
it. The matter had to proceed without
legal representation for the Second Respondent.
[7] Although the Second Respondent had
on a previous occasion delivered an answering affidavit, no heads
were filed on his behalf.
He claimed that his entitlement to remain
in occupation of the property derives from an oral lease agreement
which he concluded
with his estranged wife, the First Respondent,
with whom he lives on the property. In the second place, he
maintained that he
has an oral option agreement to acquire the
property from the Applicant at fair market value.
[8] The court must decide, having
properly weighed all the circumstances surrounding all the parties,
whether or not the Respondents
should be evicted from the property.
It will follow as a matter of course that if the defences that the
Second Respondent has
raised are upheld, the court will decline to
entertain his eviction from the property. Since the First Respondent
did not file
any papers other than her Notice of Intention to Oppose,
the court surmises that she has no defence to the Applicant’s
claim
[9] The Applicant has already
demonstrated that it is the owner of the property by virtue of the
registration of transfer of the
property into its name. For that
reason, I do not need to traverse the subject of ownership. It is
settled in our law that the
possession of an owner’s property
by another is prima facie wrongful. Accordingly, it is not expected
of a Plaintiff to
allege or prove that the other party to the
proceedings’ possession is wrongful or against his wishes. If
they are nonetheless
made, they cannot attract additional onus upon
the party making them. See Chetty v Naidoo
1974 (3) SA 13
(A).
[10] A party depending on a right to
possession, like the Second Respondent does in this application,
bears the burden of alleging
and proving it. In this regard it could
be instructive to refer to the following paragraph uplifted from
Chetty v Naidoo supra:
“Once it has been established
that the plaintiff is owner of the property and the defendant is in
possession, then the onus
is on the defendant to prove that she has
the right to occupy the property.”
See also, Woemann N.O. v Masondo
2002
(1) SA 811
(SCA).
[11] In Fakie v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), Cameron JA, as he then was, stated:
“[55] That conflicting affidavits
are not a suitable means for determining disputes of fact has been
doctrine in this court
for more than 80 years. Yet motion
proceedings are quicker and cheaper than trial proceedings and, in
the interests of justice,
courts have been at pains not to permit
unvirtuous respondents to shelter behind patently implausible
affidavit versions or bald
denials. More than 60 years ago, this
Court determined that a Judge should not allow a respondent to raise
'fictitious' disputes
of fact to delay the hearing of the matter or
to deny the applicant its order.”
[12] Although the above passage
pertains to matters concerning disputes of fact, it is pertinent in
this case to the extent that
the Second Respondent is raising what
one can describe as fictitious defences and/or implausible versions.
[13] I turn now to consider the
defences of the Second Respondent, the first being that he has
concluded an oral agreement with
the First Applicant to remain in
occupation. The significance of such an agreement is that if the
court finds that he did conclude
such an agreement, the Applicant
will be obliged to recognise and honour its terms. Perhaps the first
remark should be that it
is uncharacteristic of a married couple, let
alone a couple whose relationship is estranged, to enter into a lease
agreement of
this nature.
[14] It is noteworthy to observe that
the idea of the lease agreement was not canvassed during earlier
communication whether by
telephone or correspondence between either
the First or Second Respondent’s attorneys and those of the
Applicant. Moreover,
the Second Respondent was afforded an
opportunity to prove payment of rental to the First Applicant by way
of production of bank
statements, which he failed to do.
[15] I have also noted that when the
sheriff sold the property at the sale in execution in October 2014,
he specifically recorded
that it was free of any encumbrances. Why
would the sheriff state that there were no encumbrances if there
were? In the circumstances,
I am persuaded that the concept of an
oral lease agreement was recently hatched to justify the Respondents’
continued occupation
of the property.
[16] The Second Respondent alleges that
he did not receive notification of the eviction proceedings against
him and the First Respondent.
However, the sheriff specifically notes
on his return that he served it upon the First Respondent who is
purportedly his estranged
wife. The Second Respondent received the
application for his eviction because the notice of intention to
oppose cites both of
them as respondents. A rhetorical question is,
could the attorney have done this without instructions? For those
reasons, I believe
it is safe to reject his evidence as false.
[17] The Second Respondent also alleged
that he has an option, probably also verbal as it is not attached to
his answering affidavit,
to purchase the property from the Applicant.
This is extraordinary because there are no details such as the date
of such option,
where, how, who represented the Applicant when it was
concluded. Like in the case of the lease, in all prior conversations
with
the Second Respondent’s attorneys there is no intimation
of the existence of such an option.
[18] The above being the case, it is
best to discard it as the idea has all the hallmarks of a fabrication
specifically designed
to ensure that the Respondents remain in
occupation of the property.
[19] This court cannot countenance the
Second Respondent to present the most untenable defences whose
objective is to delay and/or
deny the Applicant an order entitling it
to the enjoyment of its property. See the Fakie case supra.
[20] The Second Respondent has
impudently contended that the Applicant was not suffering any
prejudice as a result of the Respondents’
continued occupation
of the property. This assertion is devoid of any merit in view of
the fact that the Applicant has been paying
assessment rates, taxes,
electricity and water. On the other hand, the Respondents have
since October 2012 been living on the
property for free.
[21] The amount that the Applicant
disbursed monthly is unlikely to be recovered bearing in mind that
the Respondents can hardly
afford legal representation at present.
If this is not prejudice then it is difficult to imagine what
circumstances are likely
to constitute such.
[22] The Respondents have been in
occupation of the property for more than three years at no cost
whatsoever. The Applicant has
been the
registered owner of the property for
approximately three years and has been paying all the costs
associated with its ownership yet
it has neither possession nor
access to the property.
[23] The Respondents have failed to
demonstrate to this court that they are entitled to remain in
occupation. The Application must
succeed especially in view of the
Applicant’s compliance with the Prevention of Illegal Eviction
Act No. 19 of 1998 (“PIE”)
and that the Respondents have
been in unlawful occupation since 2012.
[24] In the result, I order that:
1. The First and the Second Respondents
are to vacate the property within 30 days of the date of this order;
2. The First and Second Respondents are
to pay the costs of the Applicant jointly and severally, the one
paying the other to be
absolved.
3. The Applicant is to serve this order
upon the First and the Second Respondents within three days of the
date of delivery hereof;
4. No order is made against the Third
Respondent.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for Applicant: Adv. R
Raubenheimer
Instructed by: Prinsloo Attorneys
Counsel for the Respondents: No
appearance
Instructed by:
Date of Hearing: 24 November 2015
Date of Judgment: 8 December 2015