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[2016] ZAGPJHC 343
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Tshabalala v Bidi and Another (03791/2016) [2016] ZAGPJHC 343 (12 December 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 03791/2016
12.12.2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:-
JULY
MARTINS
TSHABALALA
Applicant
and
FUNEKA
BIDI
First
Respondent
CITY
OF JOHANNESBURG
MUNICIPALITY
Second
Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
This opposed application came before me on the opposed motion roll of
the week commencing 12 September 2016.
[2]
The applicant sought the eviction of the first respondent from
certain property described as Erf […] Township Malvern,
Gauteng (‘the property’), together with any person
occupying the property by virtue of the first respondent’s
occupation thereof, with effect from a date to be determined by this
court, together with orders empowering the Sheriff or his
lawful
deputy to evict the first respondent and any others occupying the
property by virtue thereof, and costs including the costs
of the
Section 4(2) notice in terms of the Prevention of Illegal Eviction
from and Unlawful Occupation Of Land Act, 19 of 1998
(‘PIE’).
[3]
The application was opposed by the first respondent who alleged that
the parties, (being the applicant and first respondent),
had entered
into a customary marriage, alternatively a tacit universal
partnership, which precluded the granting of the eviction
order
sought by the applicant.
[4]
The City of Johannesburg Municipality, the second respondent, did not
participate in the proceedings.
[5]
The common cause facts material to the application were the
following:
5.1 The parties were involved in an
intimate relationship from at least May 2012 until approximately 2015
or thereabouts.
5.2 The property was occupied by the
parties from May 2012 or thereabouts, having been secured by the
applicant through a home loan
from Absa Bank.
5.3 Upon taking up occupation of the
property, the parties were already involved in an intimate
relationship. The applicant
was the sole provider and the first
respondent, unemployed.
5.4 One child, born of the
relationship between the applicant and the first respondent, was
living with the first respondent in
the property.
5.5 The first respondent was the head
of her household.
[6]
The applicant alleged that he was the sole owner of the property,
which was registered in his name and secured by way of a mortgage
bond from Absa Bank, pursuant to which he paid R5 141.31
monthly.
[7]
The applicant averred that the parties intended, at some stage, to
marry in terms of customary law. Notwithstanding, the
relationship broke down prematurely and the plans to marry came to
nought. Hence, the applicant demanded that the first respondent
vacate the property, which she refused to do.
[8]
Accordingly, the applicant alleged that the first respondent was in
unlawful occupation of the property.
[9]
The applicant alleged that he was suffering undue hardship pursuant
to the first respondent’s refusal to vacate the property.
The
first respondent was allegedly not paying the municipal charges
arising from the property, effectively consuming electricity
and
water at the applicant’s expense, although the first respondent
denied as much.
[10]
In addition, the first respondent was appropriating the rentals
received from the tenants occupying various informal structures
erected on the property.
[11]
Hence, two issues required determination:
11.1 Whether a valid customary
marriage existed between the applicant and the first respondent or
not; and
11.2 Whether or not the parties had
entered into a tacit universal partnership.
[12]
The applicant denied the existence of the customary marriage. The
applicant argued that the first respondent had failed to
demonstrate
compliance with the three requirements for the recognition of a
customary marriage in terms of the Recognition of Customary
Marriages
Act, 120 of 1998 (‘the Customary Marriages Act’).
This because the first respondent did not allege
that the marriage
was negotiated, or entered into, or celebrated in accordance with
customary law, as required in terms of section
3 of the Customary
Marriages Act.
[13]
Furthermore, the first respondent had failed according to the
applicant, in her duty to ensure that (the) marriage was registered
as required in terms of section 4(1) of the Customary Marriages Act.
[14]
The applicant argued that the
first respondent, if she was
bona
fide
in her assertion of a
customary marriage between the applicant and herself, ought to be in
possession of a customary marriage certificate
recording the marriage
and bearing the prescribed particulars’.
[1]
[15]
The first respondent’s allegations in respect of the existence
of the customary marriage, however, were confined to an
averment that
as at May 2012 or thereabouts, ‘
the applicant and
I had been staying together for some time and had already commenced
with arrangements for a customary marriage
and were, for all intents
and purposes, husband and wife
’.
[16]
In the circumstances, the applicant was correct in his contention
that the first respondent failed to aver facts sufficient
to
establish the customary marriage on a balance of probabilities
[17]
A tacit universal partnership
comprises four essential elements, all of which are required for the
existence of such a partnership,
[2]
namely:
17.1 A partnership agreement;
17.2 The purpose of the partnership
must be to make a profit;
17.3 Both parties must contribute to
the partnership; and
17.4 Both parties must benefit from
the partnership.
[18]
The applicant denied the alleged universal partnership. The
first respondent sought to substantiate the alleged existence
thereof
by reference to payment by her of the deposit and the erection and
payment of certain structures on the property.
[19]
A loan of R10 000.00 (ten thousand rand) was allegedly taken by
the first respondent from Capitec Bank in order to pay
the deposit on
the property, the amount of which was not disclosed by the first
respondent. The difficult with the first
respondent’s
averment is that the bank statement proffered in support thereof
reflected the deposit of R10 000.00 into
the account during
April 2012, and three separate cash withdrawals totalling R9 000.00,
in May 2012.
[20]
No allegation was made by the first respondent as to whom she paid or
transferred the funds to or when she allegedly did so.
Nor was any
documentary proof of the alleged payment of the R10 000.00 towards
the deposit furnished by the first respondent. In
effect, the first
respondent’s allegations in this regard were notably vague.
[21]
The applicant, however, furnished documentation in support of his
reply that he paid the deposit, the transfer costs and the
costs of
registering the mortgage bond over the property. The deposit of
R58 000.00 was paid on 20 July 2012, the transfer
costs of
R11 398.56 on 25 August 2012 and the bond registration fees
of R7 392.60 on 29 August 2012. The applicant
attached
copies of the pro forma statements of account in respect of the
transfer costs and bond registration fees, together with
proof of
payment thereof to the respective required recipients, the names of
whom correlated with the respective invoices. Additionally,
proof of
the applicant’s payment of the deposit was furnished by him.
[22]
The first respondent alleged further, that she was responsible for
the erection of the informal structures on the property
as well as
payment of the cost of materials required to build them.
[23]
In this regard, the first respondent alleged that she started the
process of building the structures to let out to tenants
and made
payments towards the finishing and renovations of some of the rooms.
The first respondent provided two invoices showing
the purchase of
building supplies, during January 2013.
[24]
The first respondent’s averments were effectively countered by
the applicant in reply.
[25]
Insofar as the first respondent alleged that the proceeds of the
rentals received from the occupiers of the informal structures
on the
property, were paid towards the mortgage bond instalments of the
property, (which the applicant denied), insufficient allegations
were
made by the first respondent in this regard. The first
respondent failed to furnish details of the rental amounts received
and proof thereof, as well as the amounts contributed to the mortgage
bond instalments and dates thereof. No documentary proof
of the
transfer or payment of those rentals towards the mortgage bond
instalments was furnished to the court. The first respondent’s
averments in this regard were somewhat vague.
[26]
Whilst the first respondent attempted to deal with the requirement of
her contribution to the alleged universal partnership,
there was an
absence of averments as regards the balance of the requirements.
[27]
Hence, the first respondent’s averments in respect of the
universal partnership were insufficient to establish the essential
requirements of such a partnership.
[28]
It is a well established
principle of our law
[3]
that:
‘
[12] … an
applicant who seeks final relief on motion must, in the event of
conflict, accept the version set up by his opponent
unless the
latter’s allegations are, in the opinion of the Court, not such
as to raise a real or 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 fide 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.
…’
[29]
In the light of the paucity of the first respondent’s averments
in respect of both grounds of opposition alleged by her,
the first
respondent has not ‘
seriously and unambiguously
’
addressed the facts raised by her in opposition to the applicant’s
claims.
[30]
Given the failure of the first respondent to deal sufficiently with
the requirements of both the alleged customary marriage
and the tacit
universal partnership, I am of the view that the allegations and the
grounds of opposition to the application, stand
to be rejected on the
papers.
[31]
Hence, I am compelled to conclude that the first respondent is in
unlawful occupation of the property.
[32]
The first respondent did not dispute that there was compliance with
the procedural requirements of PIE.
[33]
In the light of the fact that
the first respondent is in unlawful occupation, the question becomes
whether it is just and equitable
that she be ejected from the
property, and, if so, on what terms.
[4]
[34]
The first respondent has been in occupation of the property for more
than six (6) months. Accordingly, sections 4(7),
(8) and (9) of
PIE find application in the following terms:
‘
(7) If an unlawful
occupier has occupied the land in question for more than six months
at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and
equitable to do so, after considering all the
relevant circumstances,
including, ... whether land has been made available or can
reasonably be made available by a municipality
or other organ of
state or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of
the elderly,
children, disabled persons and households headed by women.
(8) If the court is
satisfied that all the requirements of this section have been
complied with and that no valid defence has been
raised by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine –
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).
(9) In determining a just
and equitable date contemplated in subsection (8), the court must
have regard to all relevant factors,
including the period the
unlawful occupier and his or her family have resided on the land in
question. …’
[35]
I am
obliged, ‘In determining a just and equitable date, …
(to) have regard to the interests and circumstances of the
first
respondent as occupier (together with those of her child) and pay due
regard to the broader considerations of fairness and
constitutional
values. I am required to infuse elements of grace and
compassion into the formal structures of the law …’
[5]
[36]
Taking into account that:
36.1 The applicant is the owner of the
property and is paying the mortgage bond together with the municipal
consumption incurred
by the first respondent and her household.
36.2 The applicant, notwithstanding,
has been deprived of the use and enjoyment of the property, as well
as the rental income derived
from the informal structures attached to
the property.
36.3 The first respondent is the head
of her household and lives with her six (6) year old child who
attends school in the area
of the property.
36.4 The applicant tendered
maintenance in the sum of R2 000.00 per month in respect of the
child.
36.5 The first respondent has been in
occupation of the property for more than six (6) months.
the first respondent should be ordered
to vacate the property on or before 30 January 2017 and if she has
not done so by that date,
an eviction order may then be carried out.
[37]
It appears from the papers that the first respondent is unemployed.
Whilst I was not advised of her prospects of obtaining
gainful
employment, I have found that she should vacate the property on or
before 30 January 2017.
[38]
Given that the minor child born of the parties’ relationship
attends school in the area, it will assist the first respondent
to
have until 30 January 2017 in order to locate alternate accommodation
in that area. Accordingly, in the light of the fact
that that
the first respondent, on the probabilities, will lose access to the
rentals from the informal structures located on the
property, and
simultaneously have to commence paying for accommodation for herself
and her child, it is just and equitable that
the applicant be ordered
to contribute towards the child’s maintenance with effect from
the first day of the month following
on the first respondent vacating
the property, in the amount of R2 000.00 per month, as tendered by
him.
[39]
It speaks for itself that the first respondent is entitled to
approach the maintenance court for the appropriate relief, as
indeed
is the applicant. I intend the maintenance order herein to operate
pending any order of the maintenance court.
[40]
I am of the view that it is
appropriate to take up the applicant’s tender of maintenance
given that the first respondent is
to vacate the premises, together
with the difficulties involved in procuring effective relief through
the maintenance courts.
[6]
[41]
Such an order will serve to assist the first respondent to relocate
together with the parties’ child, and to maintain
the child in
the area in which the child attends school. This will contribute,
albeit to a limited extent, to preserving the dignity
of the first
respondent and the parties’ child.
[42]
The applicant has been successful in this application, the first
respondent having denied any obligation to vacate the property.
Accordingly, the applicant is entitled to his costs of the
application.
[43]
Based on the aforegoing I grant the following order:
1. The first respondent and any person
occupying the property situated at Erf […] Township Malvern,
Gauteng, by virtue of
the first respondent’s occupation
thereof, is ordered to vacate the property on or before 30 January
2017.
2. In the event of the first
respondent failing and/or refusing to vacate the property on or
before 30 January 2017 in terms
of paragraph 1 above, the
Sheriff or his lawful deputy is authorised to enter upon the property
in order to evict the first respondent
together with all persons who
occupy the property under or virtue of the first respondent’s
occupation thereof.
3. With effect from the first day of
the month following on the first respondent vacating the property,
the applicant is ordered
to pay maintenance in respect of the child
born of his relationship with the first respondent, in the sum of
R2 000.00 (two
thousand rand) per month.
4. The first respondent is ordered to
pay the costs of this application together with the costs incurred in
respect of the Section
4(2) notice in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, 19 of
1998.
_________________________________________________
A
A CRUTCHFIELD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPLICANT:
Mr S B Dlamini.
INSTRUCTED
BY:
Mehlo and Ndedwa Incorporated.
COUNSEL
FOR FIRST RESPONDENT:
Mapheto Attorneys.
INSTRUCTED
BY:
Mapheto Attorneys.
DATE
OF HEARING
14 September 2016.
DATE
OF JUDGMENT
12 December 2016.
[1]
Section 4(4)(b) of the Customary Marriages Act.
[2]
Butters v Mncora
2012 (4) SA 1
(SCA) [11].
[3]
Wightman t/a JW
Construction v Headfour (Pty) Ltd & Another
2008
(3) SA 371 (SCA).
[4]
Botha NO v Deetlefs
2008
(3) SA 419
(N) [12].
[5]
Botha NO v Deetlefs &
Another
2008 (3) SA 419
(N) [23].
[6]
Bannatyne v Bannatyne &
Another
[2002] ZACC 31
;
2003 (2) SA 363
(CC) [26] – [30].