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[2019] ZAGPJHC 291
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Mathebula and Another v Ndlovu and Others (22031/2018) [2019] ZAGPJHC 291 (19 August 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 22031/2018
In
the matter between:
EBBY
ELVIS MATHEBULA
First
Respondent
NKHENSANI
NOMSA MATHEBULA
Second
Respondent
and
TSHEPO
NDLOVU
First
Respondent
OCCUPANTS
OF ERF 1958 KLIPSPRUIT EXTENSION 2 TOWNSHIP, PROVINCE OF GAUTENG
Second
Respondent
THE
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Third
Respondent
JUDGMENT
MATOJANE
J
Introduction
[1]
This is an application for the eviction of the first respondent and
all persons occupying the property through and under the
first
respondent. The provisions of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (the
‘PIE Act’)
apply.
[2]
The facts, briefly stated, are as follows. On 5 June 2017 the first
and second applicant purchased the property being Erf […]
Klipspruit Extension 2 Township, Registration Division IQ, Province
of Gauteng, held under Deed of Transfer T33644/2017 (the ‘property’)
for an amount of R390 000 from Margaret Tlisane, the previous
registered owner of the property. The property was registered
in the
applicants’ respective names on 30 August 2017 and a title deed
was issued in their names.
[3]
On 19 April 2018 the applicants delivered a notice to the first and
second respondents terminating their right to occupy the
property.
Despite the notice, the first respondent and all those who derive
their right of occupation through and under him have
failed,
neglected, or refused to vacate the property. The occupation of the
property is now wrongful and unlawful.
Applicable
legal principles
[4]
In terms of section 4(1) read with section 4(8) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998
(the ‘PIE Act’), a property owner may apply to court to
evict an occupier from property that the latter
occupies unlawfully.
Section 4 of the PIE Act further 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.
(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.’
[5]
In
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
[1]
the SCA dealt with the approach the court should adopt in determining
whether the evict people who are in unlawful occupation of
property.
The Court stated:
‘
The
implication of this is that, in the first instance, it is for the
applicant to secure that the information placed before the
court is
sufficient, if unchallenged, to satisfy it that it would be just and
equitable to grant an eviction order. Both the Constitution
and PIE
require that the court must take into account all relevant facts
before granting an eviction order. Whilst in some cases
it may
suffice for an applicant to say that it is the owner and the
respondent is in occupation, because those are the only relevant
facts, in others it will not. One cannot simply transpose the former
rules governing onus to a situation that is no longer governed
only
by the common law but has statutory expression. In a situation
governed by s 4(7) of PIE, the applicant must show that it
has
complied with the notice requirements under s 4 and that the
occupiers of the property are in unlawful occupation. On ordinary
principles governing onus it also has to demonstrate that the
circumstances render it just and equitable to grant the order it
seeks. I see no reason to depart from this. There is nothing unusual
in such an onus having to be discharged. One of the grounds
upon
which it was permissible to seek a winding-up order in respect of a
company under the Companies Act 61 of 1973 was that it
would be just
and equitable for the court to grant such an order. The law reports
are replete with cases in which courts dealt
with applications for
winding up on that basis. In cases where the applicant failed to
discharge the onus of satisfying the court
that it would be just and
equitable to grant a winding-up order it was refused.’
[6]
On 11 January 2019 a notice in terms of section 4(2) of the PIE Act
was authorised by the court and served on the first and
second
respondents.
[7]
The respondents have opposed the application on the basis that the
sale agreement entered into between the applicants and Ms
Tlisane was
invalid and that the property should not have been registered in the
name of the applicants. The first respondent contends
that his
grandparents, who were the previous owners of the property, intended
to bequeath the property to Tsietsi Agnes Ndlovu
(Ms Ndlovu) and in
this regard relies on clause 5 of the will of his grandparents which
reads:
‘
We
hereby declare that in the event of our joint and simultaneous death,
or should both of us die within a period of three weeks
from each
other we hereby nominate, constitute and appoint Tsietsi Agnes Ndlovu
I.D. […]. to be the sole and universal heiress
of our estate,
property and effects.’
[8]
The quoted paragraph states that the grandparents intended to
bequeath their property to their daughter, Ms Ndlovu, only in
the
event of their joint and simultaneous death, or if they died within a
period of three weeks from each other. Further, clause
2 of the will
reads as follows:
‘
We
hereby appoint the survivor of us to be the sole and universal heir
or heiress of the first dying of us of his or her estate,
property
and effects.’
[9]
The first respondent’s grandmother passed away on the 3 October
2005; his grandfather passed away on 23 December 2013.
Ms Ndlovu did
not stand to inherit in terms of the will.
[10]
After the first respondent’s grandmother’s death, his
grandfather, Mr Naphtaly Matonsi (‘Naphtaly’)
married
Margaret Tlisane in community of property on 13 September 2008.
It follows that at the time of Naphtaly’s death,
the joint will
was no longer valid and thus cannot be relied upon as a defence by
the first respondent.
[11]
In its counterclaim, the first respondent alleges that Ms Tlisane was
never the owner of the property and thus did not have
the authority
to sell it, as the property was owned by the Ms Ndlovu in terms of
the will. There is not merit in this submission.
[12]
First, according the Windeed Property Search and Deed of Transfer
T33644/2017, Ms Tlisane was the registered owner of the property,
it
having been transferred into her name in 2016. Second, the name of Ms
Ndlovu does not appear on any historic documents in respect
of the
property and there is no written proof of any such ownership.
[13]
I am satisfied that all the requirements of section 4 of the PIE Act
have been complied with and that no valid defence has
been raised by
the respondents. I now proceed to determine whether it is just and
equitable to grant the order of eviction.
[14]
According to the first applicant’s best knowledge, the first
respondent is employed and will be able to secure alternative
accommodation. The respondents were invited in a notice in
terms of section 4(2) of the PIE Act to appear in person to address
the Court in respect of any personal circumstances relevant to the
impact which the eviction order will have on their rights and
needs,
particularly if he, or any of those who reside under him, are elderly
persons, children, disabled persons and/or households
headed by
women. The respondents have failed to do so.
[15]
In
Ndlovu
v Ngcobo,
[2]
the SCA at paragraph 19 stated:
‘
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle will be entitled
to an order
for eviction. Relevant circumstances are nearly without fail facts
within the exclusive knowledge of the occupier and
it cannot be
expected of an owner to negative in advance facts not known to him
and not an issue between the parties.’
[16]
The applicants have been unable to take occupation of their property
despite being the registered owners thereof since 13 August
2017.
They suffer severe financial loss on an ongoing basis by being
deprived of that asset and home for which they are servicing
a bond
and are liable for the rates and taxes.
[17]
The respondents have failed to set forth any compelling reasons to
militate against the eviction application instituted against
them.
The respondent cannot expect to continue to reside in the applicant’s
property for an indefinite period.
For
the reasons set out above the following order is made:
1. The eviction of the respondents
from the property known as Erf […] Klipspruit Extension 2
Township, Registration Division
IQ, Province of Gauteng held under
Deed of Transfer T33644/2017 is hereby ordered.
2. The respondents must vacate the
property by not later than 15 September 2019.
3. Should the respondents fail to
vacate the property by 15 September 2019, the eviction order may be
carried out on or after 15
September 2019; the Sheriff is hereby
authorised to carry out the order.
4. The first and second respondents
are to pay the costs.
_____________________________
K
E MATOJANE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing: 19 June 2019
Date
of judgment: 19 August 2019
[1]
City of Johannesburg v
Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA
294
(SCA) para 30.
[2]
Ndlovu v Ngcobo; Bekker &
Another v Jika
2003 (1) SA
113
(SCA) para 19.