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[2018] ZAGPJHC 450
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Makholosa v Mombezi and Others (2017/36759) [2018] ZAGPJHC 450 (14 June 2018)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 2017/ 36759
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
In
the matter between:
MASANDE
MANUAL
MAKHOLOSA
Applicant
and
ORIPFA
MOMBEZI
First
Respondent
OCTAVIA
MONBEZI
Second
Respondent
VALENCIA
MOMBEZI
Third
Respondent
EKURHELENI
METROPOLITAN MUNICIPALITY
Fourth
Respondent
JUDGMENT
Headnote
- eviction – PIE complied with
The
occupiers resisted eviction on the premise that the house was in the
estate of their late father and the applicants had no rights
having
fraudulently acquired registered title – the house had been
allocated under the old permit system to the late father,
later
converted into ownership – however the late father then bonded
the house, defaulted and lost ownership as long ago
as 1993 through
a court sanctioned sale in execution – the house had been
sold and bought three times and the present
owners/applicants were
innocent third parties
No
attempt to set aside the transfer of ownership – no indication
of any grounds to substantiate a fraud by applicants
Ndlovu
Ngcobo Bekker v Jika
applied
Occupiers
of 87 Berea Road
considered
as to what is just and fair in circumstances
Eviction
granted – three months grace extended to evacuate
Sutherland
J:
Introduction
[1]
The relief sought in this application is the eviction of the first to
third respondents from the property at […] L. Street,
Tembisa
extension 5, Leboeng Section, also known as Erf […] Tembisa
Extension 5 Township.
[2]
I am informed that the respondents approached the Pro Bono desk at
this Court for assistance in November 2017, about 8 months
before the
hearing. They were represented at the hearing by Adv Mkhize,
instructed by BM Mudzuli attorneys at the request of the
Pro Bono
coordinator. Apparently, Adv Mkhize has been involved in assisting
the respondents from the time they approached the pro
bono desk.
Initially, another firm of attorneys were asked to take on the matter
but had not come on record by Monday 4 June when
the matter was
called for the first time. Adv Mkhize appeared without a
mandate, and the matter was stood down to 7 June
to enable him to
obtain one.
[3]
The respondents filed an answering affidavit in January 2018.
At my instance, at the time the matter stood down, I directed
that
the respondents were to file any further affidavits they saw fit to
address the issues relevant to an eviction order.
As a result,
a supplementary affidavit was filed at the hearing and admitted
without objection.
The
Ownership of the property
[4]
The applicant is the registered owner of the property. He acquired it
by purchase from Masenyeletsa and Maria Maponya on 15
February 2017.
A copy of the deed of transfer, no T37124/2017 date 24 May 2017, was
produced to establish this fact.
[5]
The respondents dispute this fact. The basis for that dispute is
meritless. The matter must be approached on the basis of the
proven
ownership of the applicant.
[6]
The respondents themselves have never been owners of the property.
They have lived continuously at the property since at least
1990.
[7]
The respondent’s late father, David Azwinhangwisa Mombezi and
their mother, Alvinah Thivauhudzi, were at one time vested
with
rights of leasehold in the property. Initially, they held a lease,
granted on 7 August 1990. The leasehold was converted to
full
ownership pursuant to section 2(1) of the Upgrading of Land Tenure
rights Act 112 of 1991. The Report of the Registrar of
Deeds does not
state on what date this was formalised.
[8]
A mortgage bond in favour of Khayalethu Home Loans (Pty) Ltd was
registered against the property. On 25 November 1993, pursuant
to an
attachment, a copy of which was presented to the court, the property
was sold in execution to the bondholder. By these means,
the parents
of the respondents ceased to hold rights to the property.
[9]
Since the time the parents of the respondents lost rights in the
property, the property changed hands on several occasions.
The
persons who sold the property to the applicant had bought it at a
sale in execution at the instance of Nedbank.
[10]
The respondents purport to have been ignorant of the events. Given
the history of the transfers of ownership and the previous
foreclosure this seems unlikely. A bond was registered and on the
probabilities the Bank would have at least inspected its security.
However, since service of this application, no steps have been taken
to set aside the several changes of ownership. Moreover, their
locus
standi to do so is doubtful, as they have never themselves been
owners. Their mother, a former co-owner, who is not a respondent
might have had locus standi to do so but she has not done so either.
[11]
Vague allegations of fraud are made concerning the several transfers.
The allegation is bald and unsubstantiated. The
respondents
persist in the specious belief that the property is still in the
estate of their late father. Moreover, no grounds
have been advanced
to question the bona fides of the applicant in buying the property.
The applicant has taken out a bond with
FNB to cover a purchased
price of R350,000.
[12]
To sum up, no sound reason exists to question the
bona fide
acquisition of the property by the applicant.
The
application of the Prevention of illegal eviction and unlawful
occupation of land Act 19 of 1998 (PIE)
[13]
Authorisation was obtained from this Court to serve the eviction
application on the respondents. Service was effected on 17
November
2017. The respondents procured, shortly thereafter, legal assistance,
as alluded to above.
[14]
Section 4(7) of PIE Act is applicable. It provides:
“
(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.”
[15]
The application of this section has been explained in
Ndlovu,
Ngcobo Bekker & Another v Jika
2003 (1) SA 113
(SCA) at [9
]
where it held that the factors referred to in section 4(7) do not
have to be taken into account if a property is sold in execution.
That is the approach pertinent to this case; indeed, on two occasions
there has been a sale in execution.
[16]
What remains is an evaluation of the fact-specific circumstances as
to the justice of an eviction.
[17]
On one hand, the applicant has bought a house, incurred a mortgage
liability and in addition to bearing those costs, is, at
present,
paying an additional sum in rent in a hostel. The property yields no
revenue to him. Self-evidently, he seeks to establish
a home in the
property.
[18]
On the other hand, the respondents who have never had any title to
the property but have nevertheless lived there for in excess
of 27
years, would have to find alternative accommodation. What information
is disclosed is a bald statement that their mother
and minor children
live there. Despite an opportunity having been granted to them to
supplement their papers with information that
would further address
their circumstances and lay a foundation for an argument that
eviction would be unjust, the additional material
before me does not
substantiate such a contention. With legal assistance they have
persisted in resisting the application by relying
on a claim to
possess the property derived from their parents’ title. I must
infer that no further pertinent information
could be adduced.
[19]
In
Occupiers
of Erven 87 and 88 Berea 2017(5) SA 346 (CC)
at
[47] that court emphasised that the parties and their representatives
have a duty to provide the court with information. Also,
a court must
active create opportunities for information to be presented pertinent
to the issues. The solicitation of supplementary
affidavits was to
facilitate that end, and the respondents have had the fullest
opportunity to place before the court whatever
was thought to be
relevant.
[20]
In my view, given these circumstances, it is just and equitable that
the eviction is granted. The competing interests have
to weighed. The
bona fide
owner has needs for stability no less than the
respondents. He cannot be expected to pay off a bond while the
respondents
occupy the property indefintely. The respondents, who
have had legal assistance, have never had title to the property and
in addition
have been either supine in advancing a case to resist the
application or have no real defence that can trump the case of the
applicant.
This is an example where the loss must be borne
where it falls.
The
conditions of the eviction order
[21]
Given the specific circumstances, as described above, in my view, an
allowance of a reasonable period in which to find alternative
accommodation is appropriate. The Municipality has been cited, and if
necessary it can be approached for temporary assistance.
[22]
In my view, a period of four months is adequate to make the necessary
arrangements. For the sake of clarity, the respondents
must vacate by
31 October 2018. If they refuse, the applicant may cause a physical
eviction on 1 November 2018.
The
Order
1.
The first
to third respondents, and all persons claiming any right or interest
of occupation through these respondents are evicted
from the property
Erf […] Tembisa Ext 5, also known as […] L. street,
Tembisa Ex 5, Leboeng Section, with effect
from 31 October 2018.
2.
In the
event that the respondents fail to vacate timeously, the sheriff is
authorised and directed to evict them on 1 November 2018
or as soon
thereafter as may be possible.
3.
The
respondents shall bear the costs of the application.
_______________________________
Roland
Sutherland
Judge
of the High Court
Gauteng
Local division, Johannesburg
Heard:
7 June 2018
Judgment:
14 June 2018.
For
the applicant:
Attorney
A L Cronje of Mackenzie Van der Merwe and Willemse Attorneys
For
the Respondents:
Adv
S W Mkhize,
Instructed
by B M Mudzuli Attorneys.