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[2016] ZAGPJHC 82
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Gajoo and Another v Kock and Others (2015/33530) [2016] ZAGPJHC 82 (4 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/33530
DATE:
04 MAY 2016
In the matter
between:
GAJOO,
DIRAN
..............................................................................................................
First
Applicant
BALKISSOON,
RISHANA
.........................................................................................
Second
Applicant
And
KOCK,
DANIEL
..........................................................................................................
First
Respondent
ALL UNLAWFUL
OCCUPIERS OF PORTION [2….] OF
ERF [6….],
[N……], SITUATE AT [2…..] [P……],
3rd ROAD,
[N…….], [R…..] EXTENSION
[4……]
.............................................
Second
Respondent
CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
........................................................................................................
Third
Respondent
JUDGMENT
ADAMS AJ:
[1].
The
applicants apply for the eviction of the first respondent and all
other persons occupying the immovable property described as
Portion
[2…..] of Erf [6….], [N…..] Extension [4……]
Township, situate at [2….] [
P…..]
,
3
rd
Road, [N…..] Extension [4……], [R…..]
(‘The property’)
.
[2].
The
application was launched on the 22
nd
September 2015, and the applicants have complied in all respects with
the provisions of the Prevention of Illegal Eviction from
and
Unlawful Occupation of Land Act 19 of 1998
(‘the
PIE Act’).
[3].
The
property is at present occupied by the first respondent and his wife,
Carol Lynn Watt. According to the first respondent they
are the only
occupiers of the property and they have been in occupation of the
property since 1994.
The facts
[4].
The
first and second applicants are the joint owners of the property,
which was registered into their names on the 28
th
of July 2015 pursuant to the purchase of the property from White Rock
Property Trading (Pty) Limited
(‘White
Rock Property’)
on or about the
5
th
August 2014. The applicants are the registered owners of the property
under Deed of Transfer number: [T……..].
[5].
White
Rock Property had purchased the property at a Sale in Execution on
the 8
th
August 2013 pursuant to Summary Judgment granted by this Court on the
9
th
of
October 2012 against
inter alia
the first respondent in favour of Absa Bank Limited for payment of
the sum of R905,810.79, together interest thereon and costs
of suit.
Simultaneously with the granting of the summary judgment against the
first respondent, the Court had declared the property
specially
executable.
[6].
On
or about the date of the Sale in Execution of the property the first
respondent commenced proceedings in the Gauteng Division
of the High
Court for the sequestration of his estate. On the 8
th
of August 2013, being the date of the Sale in Execution by the
Sheriff of the Court, Randburg Southwest, to White Rock Property,
the
first respondent caused a notice in terms of section 4(1) of the
Insolvency Act to be published in the Government Gazette,
giving
notice that he will be applying for the surrender of his estate on
the 5
th
September 2013. The Sheriff of the Court, Randburg Southwest, was
advised of the aforegoing, and the Sale in Execution was made
subject
to the suspensive condition that the first respondent does not pursue
his application for the surrender of his estate.
[7].
The
application was not pursued, which meant that a valid sale in
execution came into existence, and White Rock Property acquired
ownership of the property in terms of the sale.
[8].
The
sum total of the defence of the respondents on the merits of the
application for their eviction is that the first applicant
is
‘
currently preparing an
application in terms of Rule 42 of the High Court Rules to rescind’
the summary judgment granted against
him as far back as the 9
th
October 2012, some three and a half years ago. The first respondent
also seems to suggest, although he does not say so in as many
words,
that he intends applying to set aside the sale in execution on the
basis that same ‘
constitutes an
invalid transaction of sale’.
Importantly,
to date hereof and despite these threats to institute the various
legal proceedings, the first respondent has not done
so.
INTENDED APPLICATION FOR RESCISSION
[9].
The
respondent has indicated in his answering affidavit that he intends
launching an application for a rescission of the summary
judgment
obtained against him. To date hereof and approximately three and a
half years later, the threatened application has not
been instituted.
[10].
It
is not altogether clear from his answering affidavit what the first
respondent’s
bona fide
defence
to the summary judgment is, which would entitle him to a rescission
of the judgment.
[11].
The
requirements for obtaining rescission of a judgment are
well-established: Firstly, the existence of a reasonable and
acceptable
explanation for the default in appearance (if applicable)
and secondly that a
bona fide
defence, carrying some prospect of success, exists (see
Chetty
v Law Society Transvaal,
1985 (2) SA
756
(A);
Silber v Ozen Wholesalers (Pty)
Ltd,
1954 (2) SA 345
(A)).
[12].
I
am of the view that the first respondent has not even began to place
before me evidence suggesting that he would be able to satisfy
these
requirements.
[13].
The
main difficulty I have with the first respondent’s intended
rescission application is that he is a tad thin on the detail
relating to the basis on which he would be entitled to the
rescission. Furthermore, there is no explanation by the respondent as
to why the application has to date, which is some three and a half
years after judgment was granted, not been launched. I am therefore
of the view that it will be difficult, if possible at all for the
respondent to demonstrate to a court that his application for
rescission is
bona
fide
.
[14].
No
reason has been proffered for the respondent’s failure to
launch the application for rescission as a counter –
application
to the present application before me.
[15].
I
am therefore of the view that the first and second respondents do not
have a defence to the merits of the application for their
eviction.
the
pie act
considerations
[16].
That
leaves me to consider whether, in the circumstances of this matter,
it would be just and equitable to order the eviction of
the first and
second respondents from the property.
[17].
The
PIE Act
imposed a new role on the courts in that they are required to hold
the balance between illegal eviction and unlawful occupation
and
ensure that justice and equity prevail in relation to all concerned.
Sachs J, in
Port Elizabeth Municipality
v Various Occupiers,
[2004] ZACC 7
;
2005 (1) SA 217
(CC), described this new role of the court as ‘
complex,
and constitutionally ordained’,
and one which required a court ‘
to
go beyond its normal functions, and to engage in active judicial
management’
.
[18].
A
number of courts have, in relation to the provisions of s 4 of PIE,
recognised the duty of the court to act proactively, as well
as its
powers to investigate, call for further evidence or make special
protective orders.
[19].
In
terms of s 4(7), a court is obliged, in addition to the circumstances
listed in s 4(6), namely, the rights and needs of the elderly,
children, disabled persons and households headed by women, to give
due weight to the availability of alternative land. There is
nothing
to suggest that in an enquiry in terms of s 4(6), a court is
restricted to the circumstances listed in that section. The
court
must have regard to all relevant circumstances. The circumstances
identified are peremptory but not exhaustive. The court
may, in
appropriate cases, have regard to the availability of alternative
land. However, where the availability of alternative
land is
relevant, then it is obligatory for the court to have regard to it.
[20].
An important consideration is whether
suitable alternative accommodation is available to the first and
second respondent. The relevant
authority is
Blue
Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue
and Another.
[1]
However, the case before me does not identify the
first and second respondents as persons who are within the class of
persons who
are referred to as the poorest of the poor or the fact
that the respondents may face the prospect of being homeless. No such
case
was made out in this matter.
[21].
In
Blue
Moonlight
the occupiers were identified
and represented and had placed undisputed information before the
court regarding their personal circumstances
and demonstrated that,
if evicted, they would be rendered homeless.
[2]
Blue Moonlight
further
held that affected individuals, including children, elderly people,
and people with disabilities or women headed households,
for whom the
need for housing is particularly great, homelessness would result in
particularly disastrous consequences.
[3]
[22].
Griffiths
J summarised the position as follows in
Mtshelakana:
[4]
‘
[9] As I
understand these cases, the function of a court in performing its
judicial oversight is to examine the papers before it
and determine
therefrom whether or not there is an apparent abuse of a fundamental
right or the rights of the respondent or respondents.
In practically
every case which has come before me in this regard it is generally
clear from the papers as to whether or not this
is the case. On the
extreme, there are the cases generally dealt with in the
above-mentioned judgments involving extremely poor,
landless people
who are merely attempting to exercise the rights afforded them by the
Constitution in claiming a small portion
of land and erecting a
modest shelter in order to protect themselves from the elements. On
the other extreme, there are those cases
where well-heeled tenants
have remained in occupation of rented premises well beyond the rights
accorded them in terms of the lease
without paying rental therefor,
despite being in a position to do so.
[10] It seems to me
that in the former case, and depending on the circumstances thereof,
the court may well decide (in the exercise
of its judicial oversight)
that the local municipality should be joined as a party to the
proceedings on the basis that it may
in those circumstances have a
direct a substantial interest in the proceedings in that it is
obliged to ensure adequate accommodation
for such persons in dire
need of adequate shelter.
[11] In the latter
case, however, it does not appear to me that the municipality would
have a direct and substantial interest in
the matter in that the
respondent concerned would clearly have the means to be able to
source accommodation elsewhere, either on
a rental basis or by
purchasing his or her own property. Thus, in such a case, there would
be no obligation on the court to ensure
that the municipality is
joined as a party.’
[23].
The
first respondent in this case occupied the property since 1994.
During 2012 Absa Bank obtained Summary Judgment against the
first
respondent and at the same time the property was declared specially
executable. Subsequently, the first and second applicants
became the
registered owner of the property on the 28
th
of July 2015.
[24].
The
first respondent, who is approximately 64 years old, and his wife are
the only occupiers of the property. I am of the view that
they do not
fall into the category of persons who can be described as the poorest
of the poor. If anything, they probably can safely
be categorised as
persons who clearly have the means to be able to source accommodation
elsewhere, either on a rental basis or
by purchasing their own
property.
[25].
There
are no facts which would justify a court to regard the first and
second respondents as falling into the class of persons requiring
for
example intervention by the local authority.
[26].
As
was said by Mokgoro J in
Jaftha v
Schoeman; Van Rooyen v Stoltz
,
[2004] ZACC 25
;
2005 (2)
SA 140
(CC) at par
[42]
:
‘
The interests of creditors must not
be overlooked. There might be circumstances where, notwithstanding
the relatively small amount
of money owed, the creditor’s
advantage in execution outweighs the harm caused to the debtor. In
such circumstances, it may
be justifiable to execute. It is in this
sense that a consideration of the legitimacy of a sale in execution
must be seen as a
balancing process’.
[27].
Also
at par [43]:
‘
However, it is clear that there will
be circumstances in which it will be unjustifiable to allow
execution. The severe impact that
the execution process can have on
indigent debtors has already been described. There will be many
instances where execution will
be unjustifiable because the advantage
that attaches to a creditor who seeks execution will be far
outweighed by the immense prejudice
and hardship caused to the
debtor. Besides, the facts of this case also demonstrate the
potential of the section 66(1)(a) process
to be abused by
unscrupulous people who take advantage of the lack of knowledge and
information of debtors similarly situated to
the appellants.
Execution in these circumstances will also be unjustifiable’.
[28].
The
property in question appears to be the primary residence of the first
and second respondents. It was not purchased with the
assistance of a
Government Housing subsidy. The respondents also are clearly not of
the same ilk from a means point of view as
the debtors in the
Jaftha
matter. I do not have before me any indication that the eviction
would infringe on the constitutional right of the respondents
to have
access to adequate housing.
[29].
The
property in question is occupied by the respondent and his wife.
There are no occupants who can be said to fall within the category
of
the vulnerable in our society. There is most certainly no information
and evidence before me of such circumstances. I can therefore
safely
infer that this is a consideration which would not favour the
respondents.
[30].
The
relative financial strengths of the applicants and the respondent is
a consideration which, at best for the respondents, is
a neutral one.
The applicants, two private individuals, who bought the property in
question with a view to securing a place of
abode and a roof over
their heads, have since July 2015 been servicing a mortgage bond over
the property which is in place to secure
the purchase price of the
property. Despite this, they have not had the benefit of their
ownership of the property. They are being
deprived of their
constitutional right to have the beneficial use of their property.
[31].
On
the available evidence, it cannot possibly be suggested that the
applicants have instituted action with an ulterior motive. If
anything, I am of the view that the applicants have treated the first
respondent fairly and reasonably, with due regard to his
constitutional rights.
[32].
These
factors, in my view, mitigate against the respondents and in favour
of the applicant.
[33].
In
the circumstances of this matter, I am of the view that there are no
circumstances that might be regarded as extraordinary which
would
persuade a court to decline an order for the eviction of the
respondents. Accordingly, there is no reason why I should not
order
that the respondents be evicted from the property.
[34].
The
only other issue which requires my consideration, and which is an
aspect relevant to the enquiry relating to whether it is just
and
equitable to evict, is the time period which I ought to give to the
respondents to vacate the premises. In that regard, Mr
Cremen, who
appeared on behalf of the applicants, submitted that, in the
circumstances of this matter, the respondents should be
afforded a
period of 2 (two) months within which to vacate the property. I agree
with this submission. I have had regard to the
fact that the first
notice to vacate was sent to the first respondent on or about the
31
st
of July 2015.
order
Accordingly, I make the following order:
1.
The
first and second respondents, together with all those occupying the
property by virtue of their occupation thereof, including
their
family and / or employees, are evicted from the property, being
Portion [2…..] of Erf [6…],
[N……] Extension [4…..] Township, Registration
Division I.Q., Gauteng
Province, situated at [2……]
[P……], 3
rd
Road, [N…….], [R…..]
(‘the
property’).
2.
The
first and second respondents, together with all those occupying the
property by virtue of their occupation thereof, including
their
family and / or employees, are to vacate the property, being
Portion
[2….] of Erf [6….], [N…..] Extension [4……]
Township, Registration Division I.Q., Gauteng
Province, situated at
[2….] [P……], 3
rd
[R…..], [N…..], [R…..]
(‘the
property’),
by no
later
than the
30
th
June 2016
.
3.
In
the event that the first and second respondents, together with all
those occupying the property by virtue of their occupation
thereof,
including their family and / or employees, do not vacate the property
on or before
the
30
th
June 2016
, the eviction order may be
executed and the sheriff of the court or his lawfully appointed
deputy is authorised and directed to
evict the first and second
respondents, together with all those occupying the property by virtue
of their occupation thereof, including
their family and / or
employees, from the property.
4.
The
first and second respondents, together with all those occupying the
property by virtue of their occupation thereof, including
their
family and / or employees are interdicted and restrained from
entering the property at any time after they have vacated the
property or have been evicted therefrom by the sheriff of the court
or his lawfully appointed deputy.
5.
In
the event that any of the first and second respondents, together with
all those occupying the property by virtue of their occupation
thereof, including their family and / or employees, contravene the
order in para 4 above, the sheriff of the court or his lawfully
appointed deputy, is authorised and directed to remove them from the
property as soon as possible after their reoccupation thereof.
6.
The
first and second respondents shall pay the first and second
applicants’ costs of this application.
L ADAMS
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON: 29th April 2016
JUDGMENT DATE: 4th May 2016
FOR THE APPLICANT: Adv Cremen
INSTRUCTED BY: Bruno Simão Attorneys
FOR THE RESPONDENT: Adv Sithole
INSTRUCTED BY: Christo Schoeman Attorneys
[1]
[2008] ZAGPHC 275
;
2009 (1) SA 470
(W).
[2]
Para 39.
[3]
Para 92.
[4]
Premier, Eastern Cape v Mtshelakana
2011
(5) SA 640
(ECM) paras 9-11.