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[2016] ZAGPJHC 19
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Schilling N.O v Gao and Another (2015/26685) [2016] ZAGPJHC 19 (14 February 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2015/26685
DATE: 14 FEBRUARY 2016
In the matter between:-
RONALD FRANZ SCHILLING
N.O
.....................................................................................
Applicant
And
WEI GAO (AND ALL THOSE HOLDING UNDER
HER)
.....................................
First
Respondent
THE CITY OF
JOHANNESBURG
........................................................................
Second
Respondent
JUDGMENT
Delivered on: 14 FEBRUARY 2016
CORAM: CRUTCHFIELD AJ
[1]
This matter came before me during the
course of the opposed motion roll of the week of 25 January
2016. Prior to the
hearing, I brought certain case law
[1]
to the attention of the parties’ counsel, and requested that
they address me in argument on the cases.
[2]
This application is brought in terms of the
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act, 19 of 1998
(as amended) (“
PIE”
),
for the eviction of the first respondent and all those holding under
her, from certain premises referred to below.
[3]
The applicant is the duly appointed
executor of the estate late Reinhold Dieter Schilling (estate No:
17036/2013, Master of the
Western Cape High Court).
[4]
The first respondent is the occupant,
allegedly unlawful, (‘the respondent’), of sectional
title premises situated at
[7….] [U…….], [1……]
[D……] [L…….] Avenue, [R……..]
[R……]
[(Erf 3…….], [R……]
[Ext 3…..], City of Johannesburg), (‘the property’).
[5]
The second respondent did not participate
in the proceedings.
[6]
Reinhold Dieter Schilling, a major male,
died on 26 August 2013, (‘the deceased’). Prior to his
death, the deceased
and the respondent were involved in a life
partnership but were never married to each other.
[7]
The applicant seeks the following relief:
7.1
The eviction of the respondent from the
property together with all persons occupying the property by, through
or under her (‘the
ancillary persons’).
7.2
Failing compliance by the respondent with
the relief sought immediately above, that the relevant sheriff of the
High Court or his
lawful deputy, be authorised to evict the
respondent from the property.
7.3
In the event of the respondent, or any
ancillary persons, re-occupying the property subsequent to the
eviction referred to hereinabove,
the relevant sheriff or his lawful
deputy be authorised to re-evict the respondent and the ancillary
persons occupying the property.
7.4
That the respondent pay the costs of the
application.
[8]
The respondent opposed the application,
relying in the main on:
8.1
An alleged right to financial support
subsequent to the death of the deceased; and hence, a right to occupy
the premises;
8.2
An alleged agreement between the parties’
attorneys’ of record together with various of the deceased’s
family
members, to the effect that:
8.2.1
The respondent would be permitted to remain
in occupation of the property pending finalisation of the winding-up
of the estate and
payment to her of an alleged financial settlement
from the estate; and
8.2.2
That the estate would carry the cost of the
municipal imposts on the property in the interim.
(“
the accommodation agreement
”).
[9]
Accordingly, the respondent denied that she
was an unlawful occupant.
[10]
Pursuant to counsel being referred to
Botha
NO v Deetlefs,
[2]
the respondent’s counsel made various
concessions, all of which were well
founded.
[11]
The property was purchased by the deceased
and registered in his name on 30 January 2007.
[12]
A life partnership agreement was executed
by the deceased and the respondent before a notary public on 8
January 2009, (‘the
agreement’). In terms thereof, the
deceased and the respondent:
12.1
Had a permanent heterosexual relationship
with each other and had lived together in a spousal relationship
since 2005 to the exclusion
of all others.
12.2
Agreed to ‘provide each other with
mutual, financial and emotional support.’
12.3
Agreed that their ‘estates would
remain separate.’
12.4
Acknowledged and recorded that they entered
into the agreement fully and with full appreciation of its
consequences.
12.5
Agreed that notwithstanding anything to the
contrary in any conflict of law rules contained and subject to the
terms of the agreement,
the construction and interpretation of the
agreement would be governed by and regulated in accordance with the
laws of the Republic
of South Africa.
[13]
The deceased’s last will and
testament dated 24 August 2013, (“
the
will”
), provided
inter
alia
, that:
13.1
The respondent was not a beneficiary under
the will.
13.2
The property comprised part of the residue
of the estate.
13.3
The applicant, in terms of clause 6 read
together with clause 6.1, would:
“
... have
full power in (his) sole and absolute discretion to ... retain any
asset or assets found in (the) estate and to sell, realise
or dispose
of or let all or any assets at such time and in such manner and on
such conditions as (the applicant) may deem fit”.
13.3.1
Thus, the applicant holds the necessary
authority to grant permission to, or retract such permission from, a
party to enter or reside
upon the property.
13.3.2
Furthermore, the applicant is entitled to
sell, realise, dispose of or let the property in any manner he deemed
fit.
[14]
Whilst the agreement provided unequivocally
for financial support during the course of the life partnership, the
respondent did
not dispute at the hearing, that:
14.1
The agreement terminated upon the
deceased’s death;
[3]
14.2
The respondent was not a beneficiary under
the will;
14.3
The provision in the agreement to the
effect that the deceased and the respondent’s estates should
remain separate precluded
any inference that the respondent was
entitled to maintenance subsequent to termination of the agreement.
[15]
Pursuant to the above mentioned assertions,
together with the fact that the cost or provision of reasonable
accommodation comprises
an element of maintenance, the respondent
recognised that she could not rely upon the agreement to found a
right to continued financial
support as alleged in the respondent’s
opposing affidavit, after the deceased’s death.
[16]
Hence, the respondent conceded in argument
that absent a valid agreement permitting the respondent to remain in
occupation of the
property, the respondent was not entitled to do so.
[17]
As a result, the respondent relied at the
hearing, upon the accommodation agreement alone, (which the applicant
denied), and argued
that it raised a genuine dispute of fact, such
that should be submitted to oral evidence.
[18]
The respondent’s counsel referred to
Botha NO,
[4]
in support of the concessions made by her, in the following terms:
“
[18]
In the absence of agreement:
(a) a
former, albeit anonymous, partner, cannot remain in exclusive
possession and occupation of a partnership asset to the exclusion
of
the other partner (or his estate), and
a fortiori
where no
contribution is being made by that partner towards the mortgage bond
liability in respect thereof, especially where this
was the case up
to the date of death;
(b) the
option to buy in the other half share in the property, even after a
full accounting (or,
in casu
, finalisation of the pending
action) by one partner cannot be enforced. The other partner
(or the heirs of the deceased partner’s
estate) might have a
similar desire. That is all the more so where the only evidence
of the state of the assets and liabilities
of such a partnership
indicates that the property will have to be sold to liquidate the
debts of the disclosed partner primarily
liable therefor. That
is the very fate that will befall any partnership asset, whether in a
disclosed or anonymous partnership.
[19] A
half owner of property is not
ex lege
entitled to occupation
or to remain in occupation of property, but is only the owner of an
undivided (in the absence of partition)
half share. In the
absence of agreement, the first respondent has no greater rights to
exclusive occupation of the property
than the other owner of the
remaining half share. The first respondent’s occupation
of the property is unlawful.
Her right to an undivided half
share in the partnership (assuming it to have existed) is not
necessarily co-extensive with the
half share in the immovable
property....”
[19]
Paragraph [16] is also relevant, providing
as it does, that:
“
In
the absence of some agreement, or a unilateral legal act making over
such property to the first respondent, for example as a
bequest (none
of which is alleged, the deceased also having died intestate), no
actio pro socio
seems to be available, only the
actio
communi dividundo
.”
[20]
The requirements of a real, genuine or
bona
fide
dispute of fact have been the
subject of attention in our courts for many years. They were restated
in
Wightman t/a JW Construction v Head
Four (Pty) Ltd,
[5]
to the effect that it has long since been the rule that:
‘
[12] ...
an applicant who seeks final relief on motion must, in the event of
conflict, accept the version set out by his opponent
unless the
latter’s allegations are, in the opinion of the court, not such
as to raise a real, genuine or bona fide dispute
of fact or are so
far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers: ...
[13] A real, genuine
and bona dispute of fact can exist only where the court is satisfied
that the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be
instances where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more
can therefore be expected of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge
of the averring party and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts
averred
are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will
generally
have difficulty in finding that the test is satisfied.’
[21]
The respondent urged me to find that a real
and genuine dispute of fact existed in respect of the accommodation
agreement.
[22]
The respondent pointed to the applicant’s
alleged bare denial of the accommodation agreement, relying upon
Standard Bank of SA LTD v Sewpersadh
2005 (4) SA 148
(C) in this regard.
[23]
The respondent averred that her version of
the agreement was plausible to the extent that it should be remitted
to oral evidence.
[24]
I was referred to various items of
correspondence from the respondent’s attorney of record, Mr
Merry, as well as to a confirmatory
affidavit of Mr Merry, (an
officer of this court), and a confirmatory affidavit by one Frank
Lakie, all of which allegedly supported
the respondent’s
version that the accommodation agreement had been reached.
[25]
On 18 February 2015, the applicant’s
attorneys of record, wrote the following
inter
alia
, to Mr Merry:
“
3. …
we understand that the Executor has been more than patient in trying
to accommodate your client. Our client is however
not prepared to
enter into any more negotiations with your client and we have been
instructed to give your client notice that she
must vacate the
property within 60 calendar days of the date hereof.
4. Should your client
not have vacated by then, our client will be forced to seek the
Court’s assistance and all costs will
be borne by your client.
…”
[26]
The respondent pointed to an alleged draft
settlement agreement in terms of correspondence dated 24 February
2015, allegedly purporting
to record the terms of an agreement
previously concluded between the parties.
[27]
However, the applicant annexed to the
founding affidavit, certain correspondence dated 2 June 2015, the
most recent of the correspondence,
from the applicant’s
attorneys of record, Smiedt & Associates Attorneys, addressed to
Mr Merry, stating:
‘
2. With
the greatest respect your client is changing the goal posts every
time we have made a suggestion both in respect of the
due date for
payment and the due date for leaving.
3. Less there be any
misunderstanding, the following is the position:
3.1 Your client will
either vacate the premises on the 21
st
June 2015, failing
which our client will have no hesitation in proceeding for her
eviction.
3.2 Your client accepts
the agreement forwarded to you “in toto”, in which event
your client can remain in occupation
until the 30
th
June
2015.
3.3 Your client can
either accept or reject the offer.
4. We do not intend to
exchange any more letters on the subject.
5. Our client views
your client’s actions as simply a delaying tactic in order to
gain more time and we will not tolerate
that any longer.’
[28]
The respondent’s answer was to rely
upon the prior stream of correspondence between the parties’
attorneys, and the
applicant’s alleged noncompliance with the
procedural requirements of PIE.
[29]
In short, the respondent was not able to
deal with the applicant’s correspondence afore, either in the
answering papers or
in argument. Thus the respondent fell foul of the
restatement of the requirements
[6]
for ‘a real, genuine and bona dispute of fact ...’,
referred to afore.
[30]
It speaks for itself that the respondent,
as the disputing party, must have had knowledge of the applicant’s
averments and
been able to provide an answer (or countervailing
evidence)
[7]
,
if they were not true or accurate, which the respondent did not do.
[31]
It was clear that the respondent engaged in
attempting to negotiate a solution to her dilemma at being left out
of the deceased’s
will. However, it was self-evident that
there was no meeting of the minds between the respondent and the
applicant, he being
the executor of the estate, as to the terms of
the alleged agreement.
[32]
Given the content of the applicant’s
correspondence of 2 June 2015, and the absence of any cogent answer
to it, I cannot find
that the applicant has hidden behind a bare
denial, and nor can I find that there is a real and genuine dispute
of fact such that
would justify the issue raised by the respondent,
being referred to oral evidence.
[33]
Accordingly, I cannot find that the
respondent has a right to occupy the property, or that the respondent
is anything other than
an unlawful occupant.
[34]
The respondent conceded at the hearing that
the applicant had complied with the procedural requirements of
Section 4(2) of PIE.
[35]
It was common cause that the respondent had
occupied the property for a period in excess of six (6) months. The
respondent was alleged
to earn a relatively modest income, of R6
000.00 per month, and to have been the deceased’s life and
business partner for
a number of years. However, I cannot close my
eyes to the fact that the respondent is not contributing to the costs
of the property
including the municipal charges and the mortgage bond
registered over it, and that the estate has had to carry these costs
whilst
not earning any income from the property.
[36]
In the circumstances, and given the
provisions of the Act, I am obliged to find in favour of the
applicant in respect of prayers
1, 2 and 4 of the notice of motion.
[37]
As regards prayer 3 of the notice of
motion, the applicant claims relief authorising the sheriff to evict
the respondent or any
ancillary persons, from the property in the
event of a reoccupation of the premises by the respondent (or any
ancillary persons),
subsequent to the eviction in term of prayer 2 of
the notice of motion.
[38]
To my mind, a reoccupation of the property
by the respondent or any ancillary persons on a subsequent date,
would constitute a new
cause of action, wholly separate from the
instant cause, and stand to be determined on a consideration of its
own merits, as, when
and if it is appropriate to do so.
[39]
The Applicant relied upon Blue Moonlight
Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and
another,
[8]
and
averred that the statutory period of twenty-one days was sufficient
notice to the respondent to vacate the premises.
[40]
The respondent urged me, in the event of an
eviction order, to allow a period of between four and six months for
the respondent
to vacate the premises prior to the order being of
effect.
[41]
However, I am obliged to consider not only
the interests of the respondent but also those of the applicant, and
to balance the interests
of both in a manner which is just and
equitable.
[42]
In the circumstances, and in the light of
the fact that it was approximately one year ago that the applicant
first requested the
respondent to vacate the premises, it appears to
me that it would be appropriate for the respondent to be ordered to
vacate the
property on or before 30 April 2016.
[43]
I make the following order:
43.1
The first respondent and all persons
occupying the property by, through or under her, are to be evicted
from the property being
[7……] [U……],
[1…….] [D…..] [L……] Avenue, [R………]
[R……] ([Erf 3……], [R……..]
[Ext 3…….], City of Johannesburg) (‘the
poroperty’), on or before 30 April 2016.
43.2
In the event of the first respondent
failing to comply with prayer 1 immediately above, the Sheriff or his
lawful deputy, of the
High Court for the area within which the
property is situated, is authorised to evict the first respondent and
all persons occupying
by, through or under her from the property.
43.3
The first respondent is ordered to pay the
costs of this application.
43.4
The first respondent’s counterclaim
is dismissed with costs.
A
A CRUTCHFIELD
ACING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPLICANT
INSTRUCTED
BY
COUNSEL
FOR RESPONDENT
INSTRUCTED
BY
DATE OF
HEARING
DATE OF
JUDGMENT
[1]
Botha NO v Deetlefs
2008 (3) SA 419
(N); Sepheri v Scanlan 2008 (1)
SA 322 (C)
[2]
2008 (3) SA 419 (N)
[3]
Botha NO
supra
at [14]
[4]
Botha NO
supra
at [18] and [19]
[5]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at
[12]
[6]
Wightman
supra
at [36]
[7]
Wightman
supra
at [36]
[8]
2012 (2) SA 104
(CC)