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[2019] ZAGPJHC 33
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Boyles and Another v Tawana and Another (A3072/2018) [2019] ZAGPJHC 33 (20 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A3072/2018
COURT
A QUO
CASE NO
:
25972/2017
DATE
:
20
th
February 2019
In
the matter between:
BOYLES
,
CHARLES
WINSTON
First
Appellant
BOYLES
,
THERESA
ANN
Second
Appellant
-
and -
TAWANA
,
TSHEPO
JACOB
First
Respondent
ZWANE
,
DUDUZILE
CYNTHIA
Second
Respondent
JUDGMENT
THLAPI
J
:
Introduction
[1].
This is an appeal against an order granted on 26 March 2018 by the
Magistrate sitting in Johannesburg, evicting the appellants
from a
residential property they previously owned, and ordering them to
vacate the said property by 29 June 2018.
[2].
The notice of appeal was filed and served on the respondents on 18
April 2018. The appellant’s attorneys, Mervyn Fehler
Attorneys,
served and filed an index and record of the proceedings before the
magistrate, and the annexures, on 29 June 2018. On
4 October 2018
Mervyn Fehler formally withdrew as attorney of record for the
appellants and gave a ‘last known address’
where they
could be reached, which was the same address as the one from which
they were evicted.
[3].
On 27 November 2018 the respondents wrote to the Deputy Judge
President with a request that the Registrar be authorised to
enrol
the appeal for hearing and the following reasons were provided:
1. That the appeal was prosecuted on
29 June 2018 by the delivery of the appeal record together with an
application for a date of
hearing and this was followed by the
delivery of a supplementary record on 5 July 2018. These papers were
not accompanied by a
practise note and heads of argument.
2. Contrary to the practice manual,
the Registrar allocated a case number. The appellants’
attorneys failed to deliver the
practice note and heads of argument
despite repeated requests to do so. Hoping to expedite the matter the
respondents’ attorneys
delivered their practice note and heads
of argument on 25 September 2018 and this was followed by the
withdrawal of the attorneys
for the appellants.
[4].
The respondents’ attorneys were notified by the office of the
Deputy Judge President that the appeal would be heard on
29 January
2019 and a notice to that effect was communicated to the parties by
the Registrar on 4 December 2018. The said notice
was sent to the
appellants’ physical address. At the appeal hearing on 29
January 2019 the appellants were not in attendance
and Mr Shull, for
the respondents, informed us that he had also caused to be served on
the appellants a notice of set down by Sheriff
on 21 January 2019. He
sent the returns of service back of the Sheriff for correction
because they had erroneously stated that
service was effected on the
respondents instead of on the appellants. By the time of the appeal
hearing the error had not been
rectified. In the interests of
justice, the matter stood down to the 31 January 2019. The deputy
Sheriff, Mr Willem Benjamin van
Dijk, filed an explanatory affidavit,
confirming personal service on the appellants on 21 January 2019.
Background
[5].
On 28 June 2017 and at a public auction, the respondents purchased a
residential property, namely Erf […] Malvern, […]
Street, Malvern, Johannesburg, from Nedbank for an amount of
R300 000. The property was put up for sale as a result of the
appellants defaulting on their mortgage bond payments. The property
was transferred into the names of the respondents on 23 August
2017.
The appellants continued to reside on the said property after
transfer without the consent of the respondents.
[6].
The eviction proceedings were commenced on 2 February 2018 by serving
a Notice in terms of section 4(2) of the Prevention of
illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘the
PIE Act’) on the appellants and the local
Municipality. The
appellants opposed the application and the matter was heard on 26
March 2018.
[7].
The respondents contended that the appellants were in unlawful
occupation and they had complied with the provisions of PIE
and these
were addressed under several headings. In particular, they had also
served on the local municipality. They contended
that it would be
just and equitable to make an order for the eviction of the
appellants who had persisted in their unlawful occupation
thereby
depriving them of the right to occupy the property, or to rent it out
at a market related price or to generate income from
the said
property. The respondents were being severely prejudiced and had
suffered financial loss due to the appellants utilizing
all
facilities including water and other municipal services payable by
them.
Alternative
Accommodation
[8].
In the opposing papers the first appellant averred that he was a 57
year old businessman and a diabetic. The property had been
his
primary residence since 2005. He continued to reside there with his
wife and three children after transfer to the respondents.
Their two
adult children were above 30 years and both had disabilities and that
he was a diabetic. His business was not doing well
and his monthly
earnings amounted to R4000. His wife was unemployed and she assisted
in caring for their disabled children who
both receive a disability
grant amounting to R1600 per month.
[9].
The first appellant contended that eviction would render him
homeless, deprive him and his family of their constitutional right
to
housing. Furthermore, the area where the residence is situated was
important for his trade. He averred that the first applicant
was a
substantial property owner and he called upon him to produce the
rates and taxes accounts from which the municipal valuation
of the
properties could be determined. He contended that one of the
properties must be worth millions of rand.
Grounds
of Appeal
[10].
The following are appellants grounds of appeal:
‘
The
magistrate had erred in that:
1.
It is the winter months
on the 2
nd
July 2018 onwards, when they are due to be evicted in terms of the
court order.
2.
The 1
st
Appellant and 2
nd
Appellant and their three children are likely to suffer severe
prejudice to their health due to the likely cold weather should
they
be evicted from their home during such period, when they will all be
homeless.
3.
The learned magistrate
should have ordered the eviction as at the end of September 2018;
3.1
when the weather is
likely to be warmer.
3.2
The Appellants attorney
at the hearing advised the court that the Appellants would be likely
to find alternative accommodation only
at the end of September 2018.’
Evaluation
[11].
It is common cause that the respondents launched the application in
compliance with the provisions of PIE. Having considered
arguments on
behalf of the parties, the learned magistrate concluded that the
appellants had failed to put up a defence and he
granted the relief
sought. The notice of appeal is not contesting the grant of the
relief except that it is alleged, that the learned
magistrate had
only erred in that he had brought forward the date of eviction to the
29 June 2018, when it would have been just
and equitable, given the
personal circumstances of the appellants, to have extended their
occupation beyond the cold winter months,
to the end of September
2018. Mr Fehler had submitted before the court that as at that date
the appellants would have found alternative
accommodation.
[12].
It is my view that no purpose would be served by striking the appeal
from the roll because it has become moot. The end of
September 2018
has come and gone. Furthermore, the appellants have not followed
through to finalize an appeal they had initiated
even after their
attorneys had withdrawn as attorneys of record by filing their heads
of argument and by causing the matter to
be set down for hearing.
[13].
For these reasons, the appeal stands to be
dismissed.
Order
Accordingly,
I make the following order:-
1.
The appellants’ appeal is dismissed
with costs.
________________________________
V V THLAPI
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
I agree,
__________________________
L R ADAMS
Acting Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
HEARD
ON:
29
th
and 31
st
January 2019
JUDGMENT
DATE:
20
th
February 2019
FOR
THE APPELLANTS:
No
appearance
INSTRUCTED
BY:
No
appearance
FOR
THE RESPONDENTS:
Mr
B J Shull
INSTRUCTED
BY:
Stabin
Gross & Shull Attorneys