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[2019] ZAGPJHC 27
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Poole NO and Another v Powell and Others (7395/18) [2019] ZAGPJHC 27 (7 February 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 7395/18
In
the matter between:
ANGELENE
POOLE N.O.
First
Applicant
YUSUF
EBRAHIM N.O.
(in their capacities as the duly appointed
joint liquidators of
BUSTQUE 330 (PTY) LTD
(in
liquidation))
Second
Applicant
and
NATALIE-ANNE
POWELL
First
Respondent
THE
OCCUPANTS OF ERF […] JUKSKEI PARK, EXT 5 TOWNSHIP
situated
at […] S Street, Jukskei Park, Johannesburg
Second
Respondent
THE
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Third
Respondent
JUDGMENT
ANDRÉ
GAUTSCHI AJ:
1
This is an application for the eviction of the first respondent and
the other occupants of a property situated in Jukskei Park,
Johannesburg described in the heading (“the property”).
The application is brought by the liquidators of a company
(Bustque
330 (Pty) Ltd) which is in liquidation and which is the owner of the
property.
2
The application is governed by the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, No 19 of 1998 (“the
PIE Act”).
3
The material facts are not in dispute.
Bustque 330 (Pty) Ltd (“Bustque”) purchased the prope
rty
during 2008 with funds borrowed largely from Nedbank and secured by a
mortgage bond. It was unable to meet its monthly
commitments to
Nedbank and borrowed an amount of money from one of its two
shareholders, Ms Brown (the other shareholder
being the
first respondent) to enable it to do so. When it subsequently
appeared that Bustque could also not repay the monies
it had borrowed
from Ms Brown, she brought an application and obtained a final
winding-up order against Bustque on 9 February 2016.
4
The applicants were then appointed as Bustque’s liquidators and
received instructions from Nedbank to sell the property
in settlement
of the bond. During the course of making their preparations to
sell the property, it came to their attention
that it was occupied by
the first respondent, allegedly in terms of a lease concluded between
herself and Bustque on 1 September
2009.
5
The lease provided for occupation for five years
and thereafter an automatic renewal for 12 months at a time, with the
ability to
cancel the lease on three months’ written notice.
Such notice w
as given on behalf of the applicants, and the
lease was cancelled with effect from 31 January 2018. The first
respondent,
and her partner, failed to
vacate the
premises thereafter.
6
On the papers, the following is not in dispute:
6.1 That Bustque is the
lawful owner of the property and that the applicants, who are its
duly appointed liquidators, have the necessary
locus standi
to
bring and prosecute this application.
6.2 That the lease was
validly cancelled and that the first respondent and any other
occupants of the property are accordingly in
unlawful occupation
thereof.
6.3 That the applicants
have complied with all the procedural formalities in terms of the PIE
Act which are required to prosecute
this application.
7
Sections 4(6) and (7) of the PIE Act provide as follows:
“
(6) If an unlawful
occupier has occupied the land in question for less 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 the rights and needs of the elderly, children, disabled
persons and households headed by women.
(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, except where the land is sold in a sale of execution
pursuant to a mortgage, 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
It will be seen that the test to be applied in the eviction
depends on a cut-off period of six months. The applicants
contended
that the six month period related to unlawful occupation
and not simply occupation, whereas the third respondent (the City of
Johannesburg)
in its heads submitted that it related to occupation,
whether unlawful or not. The occupation referred to in sections
4(6)
and (7) relates to unlawful occupation (see
Ndlovu v Ngcobo;
Bekker and Another v Jika
2003 (1) SA 113
(SCA) at para [17]) and
this was conceded by the third respondent during argument. However,
in my view, on the facts of this
case, it does not matter which I
apply. The difference is whether, where occupation (or unlawful
occupation) has been for
more than six months when the proceedings
were initiated, land has been or can reasonably be made available by
a municipality or
the State for the relocation of the unlawful
occupier. This latter requirement in my view is relevant only
where the person
evicted requires such assistance. As will be
seen, the first and
second
respondent
s do not require such assistance.
9
The first respondent has no children, but has pets in the
forms of dogs and cats. She earns money as a Reiki practitioner
of between R5 000 and R8 000 per month, and has stated on
oath that from the end of June 2018 her partner would be earning
enough money to be able to obtain a bond with a view to purchasing
the property. They are not destitute and, objectively,
it seems
to me, do not require the assistance of the municipality or the State
to afford them
alternative
accommodation. In any event it appears from the affidavit and
report filed by the City of Johannesburg that it
is faced with
enormous challenges in providing temporary emergency accommodation
for persons being evicted within its jurisdiction,
that the demand
for such accommodation far outstrips the supply thereof, and there
are evicted persons who are much more needy
than the first respondent
and her partner.
10
In her answering affidavit,
the first
respondent
referred only to her partner, her four cats and her three dogs that
occupied the property. In addressing me in the hearing,
she
advised me that there are two other families living on the property.
The first, Frank and Ester Nkoma and their three
children, have been
living on the property, she said, for a long time. The other
family, Ms Charmaine Nkosi and her four
children, moved in in
December 2018 as a result of a tragedy which left them destitute.
Nowhere in the answering affidavit
are these other persons
mentioned. Whilst failure to mention the second family is
understandable, because they only moved
in after the answering
affidavit was filed, the absence of any mention of the first family
is surprising. However, the first
respondent
stated unequivocally that these two families held their occupancy
through and under her, and that, when she moved, she intended
to take
them with her and to look after them. In those circumstances, I
am of the view that I do not have to be concerned
for their welfare
if I evict the first
respondent
.
11
The first
respondent
’s
partner was identified by name for the first time in court, as being
Kevin Vahid Fitzpatrick. Now that his name is
known, he becomes
the named
second
respondent
in the
application. The other persons on the property hold through or
under the first
respondent
,
and need not be joined (
Sheshe
v Vereeniging Municipality
1951 (3) SA 661
(A) at 666G-667B).
12
The first respondent has not
put up any defence other than to plead for more time. Since
filing her answering affidavit in
April 2018, she has had ample
opportunity to arrange her affairs in anticipation of an eviction.
She confirmed when addressing
me orally in the hearing that Mr
Fitzpatrick now has the financial wherewithal to obtain a bond of up
to R2 million and that
they had in fact put in an offer on the
property to the liquidators. It is clear that the first
respondent
and her partner are not destitute, and have the financial means to
obtain alternative accommodation, either in the form of
purchasing
a property (which they intend to do, whether the property or another
property), or of renting accommodation.
13
I have given careful
consideration to whether it is just and equitable to grant an order
for eviction in the circumstances of this
case and, if section 4(7)
is applicable, the question of whether land should be made available
by the City of Johannesburg (which
I have considered above). I
have come to the conclusion that it is just and equitable that an
order for eviction of the first
and
second
respondent
s should be
ordered. A second enquiry is then to determine a just and
equitable date on which the first and
second
respondent
s must
vacate the property. The first
respondent
asked for three calendar months, which she said was the time she had
been advised by various estate agents transfer of any other
property
they
purchase
d
would take, and before they could be expected to obtain occupation of
a new property. Given the circumstances set out above,
I am of
the view that a period of just short of three months is just and
equitable.
14
After the conclusion of the
hearing and after preparing this judgment, I received, irregularly, a
“clarifying memo”
from the first
respondent
.
It deals with the question of who the
second
respondent
is, and in
essence attempts to explain the absence of any mention of the other
occupants of the property. I have had regard
to the contents of
that memorandum despite it being in my view irregular, and it does
not affect the conclusion that I have come
to.
15
In the circumstances I make
the following order:
1
The first and
second
respondent
s and all those claiming
occupation through and under them are ordered to be evicted from the
property described as Erf […]
Jukskei Park, Ext 5 Township,
situated at […] S Street, Jukskei Park, Johannesburg
(hereinafter “the property”).
2
Directing that the first and
second
respondent
s and all those claiming
occupation through and under them vacate the property on or before 30
April 2019.
3
In the event that the first and
second
respondent
s and those claiming
occupation through and under them should fail to vacate the property
by 30 April 2019, the sheriff (or his/her
deputy) is hereby
authorised and directed to evict the first and
second
respondent
s and all those claiming
occupation through and under them from the property on 1 May 2019.
4
Directing the first and
second
respondent
s to pay the applicants’
and the third respondent’s costs of this application jointly
and severally
.
______________
ANDRÉ
GAUTSCHI
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing:
5
February 2019
Judgment
Delivered:
7
February 2019
APPEARANCES
For
the Applicants:
Adv
AR Newton
Instructed
By:
Lamprecht
and Associates (
Cape Town
);
De
Vries Inc (Sandton)
For
the First Respondent:
In
person
For
the Second Respondent:
In
person
For
the Third Respondent:
Mr
G McMaster (attorney with right of appearance)
Instructed
By:
Kunene
Rampale Inc (
Johannesburg
)