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[2019] ZAGPJHC 358
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Masawi and Another v Sekele and Others (2018/37942) [2019] ZAGPJHC 358 (6 September 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO.:2018/37942
In
the matter between:
MASAWI
:
TAYENGWA
First
Applicant
MASAWI
:
IRENE
RUMBIDZAI
Second
Applicant
And
SEKELE
:
LERATO
L.
First
Respondent
MBOKANE
:
BAWINILE
Second
Respondent
MATHABATHE
:
MOKGADI
M.
Third
Respondent
SEKELE
:
KEBONE
E.
Fourth
Respondent
SELEKE
:
MARIA
Fifth
Respondent
CITY
OF
JOHANNESBURG
Sixth
Respondent
judgment
E
DREYER AJ
:
1.
The Applicants seeks
an order that the First to Fifth Respondents and all those occupying
through, or under them, be evicted from
the property situate at […]
Street, Booysens, more fully described as Portion 3 of Erf […],
Booysens Township, Registration
Division IR, Province of Gauteng
(“the property”).
2.
The Applicants are
the registered co-owners of the property. The property has been
improved by the erection of a building comprising
15 separate rooms
and communal amenities. The First Applicant, trading as TM Properties
(“the First Applicant”), rents
out these rooms for
residential purposes.
3.
The First to Fifth
Respondents occupies rooms at the property in terms of a verbal lease
agreement (“the lease agreement”)
concluded between the
First Applicant and the First to Fifth Respondents respectively, as
follows:
3.1
First Respondent – Room 4;
3.2
Second Respondent – Room 8;
3.3
Third Respondent – Room 9;
3.4
Fourth Respondent – Room 11; and
3.5
Fifth Respondent – Room 12.
4.
A material term of
the lease agreement is that the First to Fifth Respondents
respectively would pay monthly rental in advance to
the Applicants.
5.
The First to Fifth
Respondents all fell into arrears in respect of payment of their
respective monthly rental and on 12 September
2018 the First
Respondent addressed a Letter of Demand to each of the First to Fifth
Respondents demanding payment their respective
arrear rental within 7
(seven) days from the letter. The letter was delivered to the
respective rooms of the First to Fifth Respondents.
6.
The First to Fifth
Respondents, despite demand, failed to make payment of their
respective arrear rental and on 26 September 2018
the attorneys of
record of the Applicants addressed a Notice of Termination to each of
the First to Fifth Respondents whereby terminating
the lease
agreement concluded between the First Applicant and the First to
Fifth Respondents respectively. Each Notice of Termination
was served
on the First to Fifth Respondents by Sheriff on 26 September 2018.
7.
The Notice of
Motion, Founding Affidavit and annexures were served on the First to
Fifth Respondents by Sheriff on 17 October 2018.
The First to Fifth
Respondents thereafter proceeded to serve an Intention to Oppose on
the attorneys of record of the Applicants
on 1 November 2018.
8.
The First to Fifth
Respondents however failed to deliver an Answering Affidavit
subsequent to serving the Intention to Oppose and
on 3 December 2018
Vally J authorised the Notice in terms of Section 4(2) (‘the
notice”) of the Prevention of Illegal
Eviction from and
Unlawful Occupation of Land Act19 of 1998 (“the Act”),
notifying the First to Fifth Respondents that
the eviction
application will be heard on 8 January 2019. The notice was served on
the First to Fifth Respondents by Sheriff on
11 December 2018.
9.
At the hearing of
the matter on 8 January 2019 the First to Fifth Respondents appeared
in person and the matter was postponed to
5 February 2019 by Twala J.
10.
On 5 February 2019
Unterhalter J again postponed the matter to 11 March 2019 in order to
afford the First to Fifth Respondents,
who again appeared in person,
to deliver an Answering Affidavit.
11.
At the hearing of
the matter on 11 March 2019 Wright J ordered the First to Fifth
Respondents to file an Answering Affidavit by
18 March 2019 at 17:00.
12.
On 14 March 2019 the
attorneys of record of the First to Fifth Respondents served an
Answering Affidavit on the attorneys of record
of the Applicant.
13.
In the Answering
Affidavit the First to Fifth Respondents avers that they complained
about the condition of the property and invited
the Applicants to
address the problems but the Applicants failed to address the
problems and instead instituted eviction proceedings.
14.
The First to Fifth
Respondents however fail to set out any detail in the Answering
Affidavit with regards to their complaint to
the Applicants such as
the date of their complaint, whether it is was done in writing and
what their complaints were in respect
of the condition of the
property i.e. what needed to be corrected.
15.
It is evident from
the Lease Statement of each the First to Fifth Respondent that:
15.1
The First Respondent last made payment towards rental on 8 August
2018;
15.2
The Second Respondent last made payment towards rental on 3 July 2018
and made a payment of R100.00 (One Hundred Rand) on 20
October 2018;
15.3
The Third Respondent last made payment towards rental on 1 October
2018;
15.4
The Fourth Respondent last made payment towards rental on 13 July
2018; and
15.5
The Fifth Respondent last made payment towards rental on 6 August
2018.
16.
It appears that the
First to Fifth Respondents appeared to have implemented a rent
boycott based on the poor condition of the property.
However, there
is not a single fact or evidence advanced as to the alleged poor
condition of the property.
17.
Section 4(6) of the
Act provides 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 woman.
18.
In determining
whether it is just and equitable to evict the First to Fifth
Respondents I must have regard to all the relevant circumstances
as
set out in the parties’ affidavits.
19.
In
Occupiers,
Berea v De Wet NO and Another
2017 (5) SA 346
(CC) at par. 47 the Court held that the obligation to
provide the relevant information is first and foremost on the parties
to
the proceedings. As officers of the Court, attorneys and advocates
must furnish the Court with all relevant information that is
in their
possession in order for the Court to properly interrogate the justice
and equity of ordering an eviction.
20.
At the hearing of
the matter the Court was informed by Counsel for the First to Fifth
Respondents, Mr. S Sukwana (“Mr. Sukwana”),
that the
First to Fifth Respondents would be rendered homeless if they are
evicted. This is a concern, but it is not supported
by evidence and
is not raised in the Answering Affidavit. Although the Court was not
specifically told where they can rent alternative
accommodation, the
First to Fifth Respondents have not said that they won’t be
able to find any. The Lease Statement of each
of the First to Fifth
Respondents reflects various payments made towards rental. The First
to Fifth Respondents are therefore able
to pay for occupation.
21.
The First
Applicant’s expressed position is that he relies on the rental
income generated from the property in order to meet
various
obligations, including maintenance, and further attaches a municipal
statement from the City of Johannesburg reflecting
the arrear
municipal charges in respect of the property.
22.
Mr. Sukwana, relying
on
Mpange,
Zithulele and 20 Others v Sithole, Mthokozisi, Case No: 07/7063
,
argued that the Court should grant an order for specific performance
that the Applicants address the complaints of the First to
Fifth
Respondents coupled with an order that the rental payable by the
First to Fifth Respondents to the Applicants are reduced.
There is
however not a single fact or evidence before the Court as to the
alleged poor condition of the property nor is there information
before the Court on which the Court can determine a reduction in the
rental. In the circumstances a case has not been made out
for such
relief.
23.
In the circumstances
I consider it just and equitable to evict the First to Fifth
Respondents from the property.
24.
Counsel for the
Applicants, Adv. C Shahim, submitted that a just and equitable date
for the implementation of the eviction order
would be end November
2019, which proposed date I am in agreement with.
25.
I make the following
order:
25.1
An order for the eviction of the First to
Fifth Respondents from the
property
situate at […] Street, Booysens, more fully described as
Portion 3 of Erf […], Booysens Township, Registration
Division
IR, Province of Gauteng (“the property”)
is hereby granted.
25.2 The First to Fifth
Respondents is ordered to vacate the property by no later than 29
November 2019.
25.3 If the First to
Fifth Respondents have not vacated the property by 29 November 2019,
the Sheriff is hereby authorised and required
to carry out the
eviction order by removing from the property the First to Fifth
Respondents and all persons who occupy the premises
through or under
them.
25.4 The First to Fifth
Respondents are ordered to pay the costs of the application jointly
and severally, the on paying the other
to be absolved, including the
costs of the application authorising the notice in terms of Section
4(2) granted on 3 December 2018.
__________
E
DREYER
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearance
for Applicant: Adv. C Shahim
Instructed
by: Vermaak & Partners Inc.
Appearance
for Respondent: Mr. S Sukwana
Kekana
Hlatshwayo Radebe Inc.
Date
of hearing: 27 August 2019
Date
of Judgment: 6 September 2019