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[2018] ZAGPJHC 138
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Elit (SA) (Pty) Ltd v Phekani N.O. and Others (24535/2017) [2018] ZAGPJHC 138 (2 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 24535/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:
02/05/2018
In
the matter between: -
ELIT
(SA) (PTY)
LTD
Applicant
and
STANLEY
CHESTER PHEKANI N.O.
First
Respondent
STANLEY
CHESTER PHEKANI
Second
Respondent
THE
UNLAWFUL OCCUPIERS OF
NO
2 WOODSIDE AVENUE, SANDHURST, SANDTON
Third Respondent
THE
CITY OF
JOHANNESBURG
Fourth
Respondent
JUDGMENT
GRAVES
AJ
1.
By
notice of motion issued on 7 July 2017 the applicant seeks an order
evicting the respondents from an immovable property which
it owns.
In the founding affidavit the property is defined as Portion 5 of Erf
217, Sandhurst, Ext 3 Township, held by the
applicant under Deed of
Transfer No. T50278/1993 (‘the property”). It is situated
at 2 Woodside Avenue, Sandhurst,
Sandton. The applicant’s
ownership of the property is not in dispute on the papers before me.
[1]
2.
The
second respondent is cited in his personal capacity and in his
capacity as the trustee of the Phex Family Trust (“the
Trust”).
The second respondent and members of his family reside in a dwelling
on the property in circumstances explained
below. Where applicable I
will refer to the first and second respondents collectively as “the
respondents” and I will
refer to the first respondent, in his
representative capacity as “the Trust”. The City of
Johannesburg, the fourth
respondent was cited pursuant to section
4(7) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, 19
of 1998 (the PIE Act”).
[2]
3.
The
respondents are presently in occupation of the property, which
occupation the applicant styles as unlawful. The applicant
seeks by the
rei
vindicatio
to
assert its rights of ownership against the respondents. An
owner need do no more than allege and prove that he is the owner
and
that the defendant is holding the property, which casts an onus on
the opposing party to allege and establish any right to
continue to
hold against the owner. Adding the tag “unlawful”,
without more, does not alter this situation.
However, if the
owner concedes that the opposing party did have a right to hold which
has been terminated, then the owner must
prove termination.
[3]
4.
The history of the
occupation by the respondents is not without complexity. A
thread that runs through the narrative is a
desire on the part of the
Trust to acquire the property. This was sought to be achieved
through diverse agreements, which
included terms granting successive
rights of tenancy to the respondents. The second respondent
says that he lives in the
dwelling on the property with his wife and
his three children aged 17, 14 and 2.
5.
On 27 October 2013 the
applicant, the first respondent (representing the Trust) and the
shareholder of the applicant, a company
called Elit SPRL registered
in the Democratic Republic of South Africa, concluded a written
Memorandum of Understanding (“the
first MOU”). The
first MOU recorded that the Trust would purchase from the shareholder
the 100% shareholding (“the
shares”) in the applicant for
a purchase consideration of R9 million, to be formalised through the
signature of a share sale
agreement. The only asset of the
applicant was recorded as the property and the Trust was granted the
right to take occupation
of the property on 1 November 2013. The
Trust was required to settle the purchase price in instalments, R1
million on 15 November
2013, R1 million on 27 December 2013 and R7
million on 31 January 2013.
6.
The first MOU recorded
that occupation would be in terms of a lease agreement to be
concluded, which would provide for the Trust
to lease the premises to
its trustees on the provision that it timeously made payment of
rates, taxes, water and electricity charges
each month, payable
within 7 days of receipt of invoice. In the event of the Trust
failing to make full payment of R1 million
by 15 November 2014 it was
required immediately to vacate the property unless otherwise agreed
in writing. In the event
of the Trust making the first
payment but failing to make subsequent payments, it would be required
to make payment of rental in
the sum of R45 000,00 per month
from date of occupation and during its occupation of the premises as
well as the rates, taxes,
water and electricity charges. In the
event of the Trust not acquiring the shares as a result of failing to
make payment
of the full purchase price the lease agreement would
continue to operate on a month-to-month basis, terminable by the
applicant
on 30 days’ written notice to the trust. The
respondents admitted the conclusion of the first MOU.
7.
It is common cause on
the papers that these amounts towards the purchase price of the
shares were not paid on the specified dates
and that the only amount
paid by the Trust was the sum of R500 000, paid during June or
July 2014. The Trust placed
in dispute that this non-payment
was a breach of the agreement. The applicant says that as a
consequence of the breach the
Trust’s tenancy operated as a
monthly tenancy. Applicant’s counsel, Mr Bitter, submitted that
the terms of the first
MOU created a tenancy in favour of the Trust,
on default of certain payment obligations of the Trust and
notwithstanding that occupancy
was expressed to be in terms of a
lease agreement to be concluded. I agree. This flows from the Trust
being granted occupation
with effect from 1 November 2013 and from
the express terms recording the terms of occupancy in the event of
non-compliance with
the payment obligations.
8.
The applicant says that
on or around 7 June 2014 (by which stage the month-to-month tenancy
had come into operation) an oral agreement
was concluded between the
applicant and the Trust (“the oral agreement”) in terms
of which the sum of R500 000
held in Trust in respect of the
payment received from the Trust towards the purchase price of the
shares would be transferred to
the applicant and set off against the
arrears of rental and related charges owing in terms of the oral
tenancy. The respondents
say that whilst there was a meeting in
June 2014 in respect of the purchase of the property and the payment
made, there was no
agreement that this sum was to be set off against
arrear rentals. They maintain that this payment and other payments
were made
for the sole purpose of acquiring the shares.
9.
On 20 September 2014
the applicant, the Trust and the applicant’s shareholder
entered into a further Memorandum of Understanding
(“the second
MOU”). The second MOU provided for the Trust to purchase
the shareholding in the applicant for USD1
million, payable as to R6
million on 20 September 2014 and the balance to be paid within two
months (said in this document to be
before 1 December 2014). In
the event of the Trust failing to make full payment of USD1 million
by 1 December 2014 it was
required immediately to vacate the property
unless otherwise agreed in writing. It was further provided
that with effect
from the date on which occupation was given (1
November 2013) the Trust was required to make payment of rental in
the sum of R45 000
per month whilst in occupation of the
property as well as rates, taxes, water and electricity charges,
payable within seven days
from receipt of invoice. Finally, in
the event of the Trust not acquiring the shares as a result of
failing to make payment
of the full purchase price then the lease
would continue to operate on a month-to-month basis, terminable on 30
days’ written
notice. The respondents admitted signature
of the second MOU but said that there was a conflict between this
agreement and
the first MOU and that the second MOU is null and
void. They maintain that the first MOU remains of full force
and effect.
10.
Contemporaneously with
signature of the second MOU the applicant, the Trust and the
shareholder of the applicant executed a Sale
of Shares Agreement
recording the Trust’s purchase of 100% of the shares and claims
held by Elit SPRL in the applicant for
the sum of USD1 million.
The payment terms were as recorded in the second MOU as were the
arrangements relating to the monthly
tenancy in the event of the full
purchase price not being received. In their answering affidavit
the respondents contend
that the first MOU is the agreement
applicable to the sale of shares and they refer to further payments
made, totalling R2,5 million.
They however say that these
payments were made in respect of the
property
(and not the shares). They however do not deny signature of the
Sale of Shares Agreement.
11.
On 8 October 2014 the
applicant’s attorneys wrote to the Trust recording breaches of
the Sale of Shares Agreement through
non-payment of the balance of R6
million, calling for this breach to be remedied within 7 business
days failing which the agreement
would immediately and without
further notice be cancelled by the applicant. Nevertheless, it
appears that this agreement
was not cancelled at this time. On
24 February 2015 Erasmus Attorneys wrote to the applicant confirming
that a deposit of
R3 600 000 had been paid into its trust
account by Nazifar Distributors (Pty) Ltd/ the Trust, advising that
the balance
of the purchase price of R6 900 000 was to be
derived from the sale of another immovable property and confirming
instructions
received to attend to the transfer of the property.
The applicant says that throughout the intervening period the
respondents
continued to occupy the property and that no payments
towards rental were made save for the sum of R500 000 dealt with
in
terms of the first oral agreement. The respondents do not
deny remaining in occupation nor do they deny having failed to pay
rental or services for the monthly tenancy as recorded in the first
and second MOU’s and in the Sale of Shares Agreement.
They maintain that there was no obligation to pay rental because the
applicant never sent an invoice to them, as required. Even
if this
were to be so in respect of the services, it could not have been so
regarding the monthly rental which was stipulated and
quantified in
the first MOU, which the respondents say remains in force until the
present time.
12.
On 1 February 2016 the
applicant wrote to the Trust referring to the term in the second MOU
that on default of full payment of the
sum of $1 million on 1
December 2014, the Trust would be required immediately to vacate the
property. The applicant accordingly
gave the respondents 30
days’ written notice to vacate the property. This demand was
never enforced. On 10 February 2016
the Trust executed a written
Acknowledgement of Debt in favour of the applicant in which it
acknowledged its indebtedness to the
applicant for the sum of
R1 256 458,18 in respect of rental and municipal costs
incurred. The Trust undertook to
repay the admitted amount in
two equal instalments of R628 229,09 payable on 21 February and
31 March 2016. The Trust
admits execution of the
Acknowledgement of Debt but says that this document is “not
applicable” because it conflicts
with other agreements,
particularly with the first MOU. It is further said that
pursuant to the acknowledgement of debt,
R400 000 was paid on 4
July 2016, R200 000 on 21 July 2016, R150 000 on 25 August
2015 and R150 000 on 16 October
2015. The respondent says
that these payments were made towards purchase of the property in
terms of the first MOU.
13.
In its founding papers
the applicant indicated that it would, prior to the application for
eviction in terms of section 4(1) of
the PIE Act approached the Court
for authorisation to deliver a notice in terms of section 4(1) of
that Act. Such an application
was indeed brought by the
applicant which resulted in an order of Court being granted on 4
August 2017 authorising the form and
contents of the draft notice in
terms of section 4(2) of the PIE Act and directing this noticed to be
served on the respondents’
attorneys of record in accordance
with Rule 4(1) of the Uniform Rules of Court. There was
considerable debate before me concerning
the form of the notice and
the authorisation granted by the Court, on 4 August 2017. I now
turn to this.
14.
Respondents’
counsel raised a series of
in
limine
points. The first point related to non-joinder. Counsel said
that the applicant in these proceedings should have jointed,
as a
party, the shareholder which was a party to the first and second
MOU’s as also a party to the Sale of Shares Agreement.
This contention is not well-founded. A review of the first and
second MOU’s reveals that the shareholder was a party
to those
agreements because of the recordal of the intention of the
shareholder and the Trust to conclude a sale of shares agreement.
The Sale of Shares Agreement was the commercial document that is the
memorial of the sale of shares. The present application is
one for
eviction of the first, second and third (unnamed) respondents and has
nothing to do either with the sale of shares.
The basis on
which the respondents were entitled to occupy the premises on a
month-to-month basis is set out in the first and second
MOU’s.
The applicant is the owner of the property and there was no need in
these proceedings for the shareholder to
be joined. In
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
[4]
a full Court of this Division considered the principles applicable to
joinder, distinguishing between the case of necessary joinder
(where
failing to join a party amounts to non-joinder) and joinder as a
matter of convenience (where joinder of a party is permissible
and
would not give rise to a complaint of misjoinder)
[5]
.
The Full Court authoritatively held that the mere feature that a
person is a party to a multi-party agreement does not necessarily
have the consequence that such a person has a direct and substantial
interest of a legal (in contradistinction to financial) nature
in
litigation between or amongst other parties to the agreement.
Whether this is so depends on an analysis of the rights
and
obligations created by the multi-party agreement. Where a right
sought to be enforced vests in parties jointly or an
obligation
sought to be enforced rests on a party jointly, joinder is generally
necessary.
[6]
I
respectfully agree. It is clear that any right asserted by the
applicant in the instant case as owner, vests solely in
the
applicant. Even if this issue is approached from the
perspective that the various written agreements provide that on
default of payment obligations owed to the shareholder, obligations
to pay rental and services are triggered, this would not require
the
joinder of the shareholder. On the Trust’s own version,
it never made payment of the full purchase price for the
shares,
which non-payment triggered the monthly tenancy. It is also conceded
that no payments have been made in respect of rental
or other
services.
15.
The
second
in
limine
contention raised by respondents’ counsel related to whether
the applicant complied with section 4 of the PIE Act. It was
argued
that the order seeking authorisation was granted
ex
parte
and in contravention of the
audi
alteram partem
rule, thus keeping this procedure from the other respondents. The
process contemplated by section 4(2) of the PIE Act requires
written
and effective notice of the proceedings to be served on the unlawful
occupier at least 14 days before the hearing of the
application for
eviction of an unlawful occupier. Section 4(5) sets out the
detail of what this notice must contain.
The judgment of the
Supreme Court of Appeal in
Cape
Killarney Property Investments (Pty) Ltd vs Mahamba
[7]
accepts that the practicalities of such eviction applications will
result in the application for date of hearing of the merits
will only
being determined after the papers have been filed, which means that
the notice in terms of section 4(2) of the PIE Act
will inevitably
follow service of the notice of motion. Further, section 4 does not
indicate how the Court’s directions regarding
the section 4(2)
notice are to be obtained. However, Brand JA noted that a
common-sense approach dictates that the applicant can
approach the
Court for directions by way of an
ex
parte
application.
[8]
Section 4
of the PIE Act requires the Court to exercise judicial oversight of
the entire process of eviction, including the
contents of the notice
of the proceedings contemplated in section 4(2). If the
respondent in such proceedings believes that
the notice is defective,
then in the usual manner concerning
ex
parte
applications, she or he may raise this when the matter is heard.
There is no breach of the
audi
alteram partem
rule in the
ex
parte
procedure.
[9]
16.
The
next point
in
limine
raised concerns the staff members residing on the property.
[10]
Ms Mouton for the respondents referenced the definition of unlawful
occupier” in the PIE Act, being a person who occupies
land
without the express or tacit consent of the owner or person in
charge, or without any other right to occupy such land (with
certain
exclusions not presently applicable). Counsel submitted the PIE Act
required that staff members of the Trust or of the
second respondent
must receive
separate
notice in terms of section 4(2) before they could be evicted.
In support of this contention counsel referred to the applicant’s
founding affidavit which referred to certain staff members-
effectively, so it was contended, the cited third respondent- who,
counsel contended, were required to receive separate notice.
The first obstacle that this submission faces is that the respondents
in their answering affidavit deny the paragraph in the founding
affidavit which states that a domestic employee and a gardener
are
resident on the property. That puts an end to this
in
limine
contention. But in any event, the contention is without legal
foundation. The PIE Act has been held to afford unlawful
occupiers some procedural and substantive protection against eviction
from land.
[11]
As with
all legislation, a common-sense approach to the PIE Act must be
followed. I find nothing in the provisions
of the Act to
suggest that each individual person in occupation of a single
dwelling situated is required to be given a notice
in terms of
section 4(2). Were this to be so, then the application of the
Act would be rendered practically impossible, as
demonstrated by the
following. A single unlawful occupier, having received notice,
could thereafter invite other persons
onto the property, who would
(on the counsel’s contention) fall within the definition of
unlawful occupiers. These
individuals, once served with the
(second) section 4(2) notice, could repeat the process with other
individuals. This revolving
door process could continue
ad
infinitem
,
resulting in the complete emasculation of the Act. I decline to
uphold such an impractical interpretation. Staff members
derive
their right to be on a property through their employer and they do
not constitute a separate category of unlawful occupiers.
It has long
been the practice to seek an eviction order against individual
respondents and to include in the prayer an order seeking
eviction of
all persons claiming occupation through those respondents.
[12]
17.
I now turn to the third
and main
in limine
argument advanced on behalf of the respondents concerned the form and
contents of the notice which was approved by this Court on
4 August
2017. The irregularities complained about were said to be that:
17.1.
The notice served on
the respondents as authorised by this court on 4 August 2017 did not
contain the date and time on which the
eviction application was to be
heard, as required by section 4(5)(b) of the PIE Act.
17.2.
The notice setting the
evicting application down for hearing on 16 April 2018 did not have
attached to it a notice a fresh notice
in terms of section 4(2)
containing the hearing date, namely 16 April 2018.
17.3.
The notice authorised
by the Court did not contain sufficient details of the basis on which
eviction would be sought.
18.
The first point was
demonstrated to be without foundation when Mr Bitter, counsel for the
applicant handed up an original return
of service by the Sheriff
attaching that the notice in terms of section 4(2) of the PIE Act and
expressly stating that the eviction
application would be heard on 4
September 2017. This notice was served on the respondents’
attorneys of record at 10h00 on
21 August 2017. Ms Mouton quite
correctly accepted that this notice served complied with the
requirements of section 4(5)(b)
of the PIE Act.
19.
The
second leg of the respondents’ contention was that,
notwithstanding the date contained in the original section 4(2)
notice
served on the respondents’ attorneys, a new notice,
authorised by the Court and containing the details contained in
section
4(5) was required for the hearing before me during the week
of 18 April 2018. Once again, I can find no textual basis for
such an interpretation of section 4 of the PIE Act. Section
4(2) importantly requires
effective
notice
to be given in writing to the unlawful occupier and to the
municipality. Adopting the common-sense approach of Brand JA in
the
Cape
Killarney
judgment I can find no reason why in a case such as the instant one,
if the eviction application does not proceed on the date set
out in
the original section 4(2) notice, a new notice in identical terms –
but with a different date inserted – must
be served on the
unlawful occupier. Different considerations would almost
certainly apply if the grounds relied on by the
applicant for
eviction (see section 4(5)(c)) were to change materially between
service of the first notice and the hearing of the
eviction
application. But this does not apply here.
[13]
Effective notice as required by section 4(2) must contain the
essential elements set out in section 4(5) which are:
(a)
a statement that
proceedings are being instituted in terms of sub-section 4(1) for an
order for the eviction of the unlawful occupier;
(b)
an indication on what
date and what time the Court will hear the proceedings;
(c)
set out the grounds for
the proposed eviction; and
(d)
a statement that the
unlawful occupier is entitled to appear before the Court and defend
the case and, where necessary, has the
right to apply for legal aid.
All
of these elements are contained in the notice served upon the
respondents’ attorney on 21 August 2017. When the
matter
was re-enrolled for hearing for 16 April 2018, the notice of set down
indicating this date was served on the respondents’
attorneys
on 17 January 2018. In the present case (which is all that I
need to consider) there can be no good reason why
the effective
written notice required by section 4(2) of the PIE Act cannot be
contained in two separate documents, the first containing
all of the
requirements in terms of section 4(5), including the date, and the
second document, being the notice of set down, advising
the
respondents of the new date for hearing of the eviction application.
I find that in the circumstances effective notice
as required by
section 4(2) of the PIE Act was given to the respondents.
20.
In
support of submissions on the third leg of this argument it was
contended that section 4(5)(c) of the PIE Act had not been complied
with in the applicant’s notice. What the notice stated
was that the applicant applied for eviction of the respondents
on the
grounds that the applicant is the owner of the property and that the
respondents occupy the property without its consent
and against its
will, rendering the occupation unlawful. It was submitted that
there was no allegation in the notice that
the Sale of Shares
Agreement or any of the lease agreements had been cancelled. I
cannot agree that these details were required
to be included in the
applicant’s section 4(2) notice. The reason is that the
detailed evidence required to justify
an application for eviction
will be set out in the founding affidavit. The notice in terms
of section 4(2) does not serve
as a substitute for the evidence that
will be found in the founding affidavit. To my mind, what is
required by section 4(5)(c)
is that there must be reference to the
title of the applicant to the property (whether as owner or person in
charge)
[14]
and the reason for
the application for eviction being brought. The details
contained in the notice in question in question
are somewhat terse.
However, what is conveyed to the respondents is that the applicant is
the owner of the property, that
the respondents occupy the property
without its consent and that the applicant requires this situation to
cease, hence its application
for eviction.
21.
The second respondent
is no unsophisticate; he holds a senior employment position and has
concluded a series of commercial agreements
aimed at the acquisition
of the shares in Elit SPRL for sums ranging between R9 million and
some R10 500 000. He says
that he has made a number of
payments totalling some R2.5 million towards purchase of the shares,
and he is plainly a man of means.
I readily accept that with
unsophisticated occupiers, the imperative of effective notice imposed
by section 4(2) may require greater
detail to be contained in a
notice in terms of section 4(2). However, I find that this is
not such a situation, and I hold
that the details contained in the
applicant’s notice, albeit terse, were sufficient. The
respondents have at all times
been represented by attorneys and it is
apparent from their answering affidavit that they fully understood
the issues that arose
for determination and dealt with these issues
in their answering affidavit.
22.
This brings me to the
merits of the eviction application. Respondents’ counsel
contended that there were material disputes
of act which precluded
the grant of relief on motion. In truth, such disputes that do
exist are largely disputes as to the
legal effect of the various
agreements entered into. For the most part, the respondents’
contentions as to the import
and effect of the two MOU’s and
the Sale of Shares Agreement lack legal foundation. Although
the applicability of the
Acknowledgement of Debt was challenged, the
respondents did not deny concluding this document. It clearly
reflects an admitted
indebtedness on the part of the Trust to the
applicant for the sum of R1
256 458,18
in respect of rental and municipal costs due up to March 2018.
This unmistakeably constitutes a recognition,
and indeed an admission
by the respondents that a tenancy had existed and that the Trust was
required to pay rental and municipal
charges. I do not need to
make any express findings on the details of the agreement regarding
the payment of rental and services,
nor do I need to deal with the
rights to the amounts paid by the respondents which they say were
part of the purchase price.
23.
The
respondents claimed in answering papers that a number of meetings
were held at which agreement was reached that the payments
totalling
2.5 million were made towards the purchase price of R9 million. If
this is accepted on the basis that the first MOU remains
extant, then
I cannot comprehend on what grounds the Trust can contend, as it
does, that there has been no breach of this MOU and
that it is
entitled to receive transfer of the property.
[15]
24.
As
I have noted earlier the respondents admit that the applicant is the
owner of the property and that the respondents are in
occupation.
[16]
Contrary
to the respondents’ denials, I am satisfied that a monthly
tenancy existed between the applicant and the Trust
since November
2013. The respondents’ version is that the first MOU
remained applicable. If this is accepted,
then this document
created a monthly tenancy on default of payment of the purchase price
for the shareholding in the applicant.
It is specifically
recorded in this document that in the event of the Trust not
acquiring the shares as a result of failure to
make payment of the
full purchase price, then there would be a lease agreement operating
on a month-to-month basis, terminable
by the applicant on 30 days’
written notice to the Trust to vacate. This provision is
repeated in the second MOU, which
logically would seem to have
replaced the first MOU. The Sale of Shares Agreement also repeats the
terms concerning a monthly tenancy
in the event of default. I am
satisfied that even on the respondents’ version a monthly
tenancy was created once the first
MOU was breached. I need not
resolve the question as to which of the three written agreements
prevails. Once the Trust failed to
make payment of the purchase price
for the shares- whichever agreement prevails, or if none prevails-
the only legal basis for
continued occupation is a monthly tenancy.
[17]
25.
I
find that such formal disputes as are raised by the respondents are
bald and uncreditworthy denials and are further implausible,
far-fetched and clearly untenable and can safely be rejected on the
papers.
[18]
26.
In a letter from the
applicant’s attorneys addressed to the Trust on 5 April 2017
payment of the admitted debt recorded in
the Acknowledgement of Debt
was demanded. The letter further gave 30 days’ notice of
cancellation of any lease or sublease
and required the respondents to
vacate the property on or before 7 May 2017. It is common cause
that the respondents did
not so vacate and I find that the continued
tenancy continued on a month-to-month basis, terminable on reasonable
notice.
27.
I have considered the
provisions of section 4(7) and (8), having regard to the papers
before me. I am satisfied that the second
respondent is able to
make provision for alternative accommodation for his wife and
children and that the involvement of the City
of Johannesburg is not
required. I find that no valid defence has been raised by the
respondents to the eviction application
and I am further satisfied
that 30 calendar days’ notice following the grant of this
judgment is a just and equitable date
for the respondents to vacate
the property. In this regard I take note of the extended period
that the second respondent
and his family have resided on the
property, without paying rental or municipal charges.
28.
I make the following
order:
28.1.
The first and second
respondents and all persons claiming occupation through these parties
are required to vacate the property described
as remaining extent of
Portion 5 of Erf 217, Sandhurst, Ext 3 Township, situated at 2
Woodside Avenue, Sandhurst, Sandton within
30 calendar days following
the grant of this order.
28.2.
In the event that the
first and second respondents and all persons claiming occupation
through them do not vacate this property
by the end of the 30-day
period the Sheriff of the High Court is authorised to take whatever
steps as may be necessary to evict
these parties from the property.
28.3.
The first and second
respondents are directed to pay the costs of this application.
___________________
Graves
AJ
Acting
Judge of the High Court of South Africa
Appearances:
For
Applicant:
J J Bittter
Instructed
by:
Thomson Wilkes
For
First and Second Respondents:
C Mouton
Instructed
by:
Michael Krawitz & Co
Date
of hearing: 18 April 2018
Date
of judgment:
[1]
An
answering affidavit was delivered on behalf of the first and second
respondents. No replying affidavit was filed.
[2]
The
application was duly served on the fourth respondent, as was a
notice in terms of section 4(2) of the PIE Act.
[3]
Chetty v Naidoo
1974 (3) SA 13
(A) at 20C-H,
Airport
Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive
Books
2017 (3) SA 128
(SCA) at para 25.
[4]
2004 (2) SA 353 (W).
[5]
At para 11.
[6]
At para 14.
[7]
2001 (4) SA 1222 (SCA)
[8]
See at paras 14 and 15.
[9]
It is worth noting that section 10.9 of the Practice Manual of the
Gauteng Local Division makes express provision for the applicant
to
bring an
ex parte
interlocutory application authorising a section 4(2) notice and for
directions on service. The practice manual was only
circulated
for use during February 2018 and is consequently not applicable.
[10]
I was told
by respondents’ counsel at the commencement of the hearing
that the notice of intention to oppose wrongly reflected
that the
third respondent was also represented by the respondents’
attorneys.
[11]
See
Ndlovu
v Ncgobo
2003 (1) SA 113
(SCA) at para 1.
[12]
Compare:
United Apostolic
Faith Church v Boksburg Christian Academy
2011
(3) SA 156 (GSJ).
[13]
S
ection
10.9 of the Practice Manual of the Gauteng Local Division expressly
states that where an eviction application is postponed
in open court
on a day of which notice in terms of section 4(2) has been given,
and if the postponement is to a specific date,
it will not be
necessary to serve another notice in terms of section 4(2) in
respect of the latter date. I do not know how the
postponement in
the instant case came about, but this is moot because the new
Practise Manual is not applicable to this matter.
[14]
See the respective definitions in section 1 of the PIE Act.
[15]
On the
basis contended for by the Trust it would not receive transfer of
the
property
,
but rather transfer of the
shares
in the applicant.
[16]
The exact
basis on which the second respondent occupies the property the
property is unclear, but nothing turns on this. The second
respondent’s answer does not distinguish between himself and
the Trust, and the second respondent’s family occupy
through
him or through the Trust.
[17]
Compare
Airports
Company South Africa Ltd v Airports Bookshops (Pty) Ltd t/a
Exclusive
Books
2017 (3) SA 128
(SCA).
[18]
See
Media 24 Books (Pty)
Ltd v Oxford University Press Southern Africa (Pty) Ltd
2017
(2) SA 1
(SCA) at 18A-B.