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[2019] ZAGPJHC 403
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G M J Property Trading (Pty) Limited v Molenge and Others (2019/29235) [2019] ZAGPJHC 403 (13 September 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2019/29235
DATE
:
13
TH
September 2019
In
the matter between:
G
M J PROPERTY TRADING (PTY)
LIMITED
Applicant
and
MOLENGE
,
DJABAKA
MARTINE
First Respondent
OTHER
UNLAWFUL OCCUPIERS OF
NO
[…] O. ROAD,
KENSINGTON
Second Respondent
THE
CITY OF
JOHANNESBURG
Third Respondent
JUDGMENT
Adams
J:
[1].
This is an opposed urgent application by the applicant for the
eviction of the respondents and all other occupiers from the
residential
property, being Erven […]2 and […]3,
Kensington Township, Gauteng Province, situate at number […]
O. Road,
Kensington, Johannesburg (‘the premises’). As a
precursor to the eviction order, the applicant applies for an order
declaring as cancelled and terminated the written lease agreement
concluded between the applicant and the first respondent on the
5
th
of March 2019. The applicant also applies for other relief ancillary
to the order for an eviction from the premises of all of the
occupiers. In addition to opposing the applicant’s urgent
application, the first and second respondents launched an urgent
counter-application
inter alia
for an order directing the
applicant to restore the supply of electricity to the premises.
[2].
The first and second respondents are lessees of the applicant.
The applicant is the owner of the immovable property on which the
premises are situated, and the premises were let to the respondents
in terms of a written lease agreement concluded on the 5
th
of March 2019 between the applicant and the first respondent. The
monthly rental was agreed upon at R30 000 per month, but
in
terms of ‘special conditions’ in the contract the rental
for the first three months was agreed at R25 000 per
month,
pending certain alterations to be effected to the premises by the
applicant. The monthly rental was apparently further reduced
by
agreement between the parties to R18 000 per month. The lease
period, as per the written lease, is a period of twelve months
from
the 1
st
of April 2019 to the 31
st
of March
2019. The lease provides that the maximum number of occupants at any
given point in time should be no more than fourteen
people.
[3].
As and at the 1
st
of July 2019, the respondents
were in arrears with their rental, the last payment having been
received from the respondents on
the 15
th
of June 2019,
being the sum of R8 000. The applicant alleges that the amount
then outstanding was the sum of R55 000. There
is a dispute relating
to the arrear rental. However, there is no doubt in my mind that as
and at the 1
st
of July 2019 the respondents were in
arrears with the monthly rental. No further rentals have been
received by the applicant from
the respondents since the payment on
the 15
th
of June 2019.
[4].
On the 16
th
of July 2019 the applicant caused a
letter of demand to be addressed the first respondent, placing the
respondents on terms to
bring their monthly rental up to date,
failing which, so the demand said, the respondents were required to
vacate the premises
within thirty days from date of the demand.
Implicit in the letter of demand was a notice of repudiation of the
lease agreement
on the basis of the breach by the respondents of the
terms of the lease. The respondents did not comply with this demand
and on
the 20
th
of August 2019 the applicant caused this
urgent application to be issued and served on the respondents. In
these circumstances,
I am of the view that the applicant is fully
within its rights to claim a cancellation of the lease agreement. The
respondents
are in breach of the said agreement and despite demand
from the applicant that they remedy their breach, the rental remains
in
arrears.
[5].
On the 27
th
of August 2019 this court (Mahalelo J)
issued directions in respect of the service on the respondents of the
notice in terms of
section 5(2) of the
the
Prevention of Illegal Eviction from, and Unlawful Occupation of Land
Act 19 of 1998 (‘the PIE Act’). These directions
were
complied with and it is in response to this notice and the notice of
motion that the respondents delivered their notice of
intention to
oppose and filed a counter-application and opposing affidavits.
[6].
The applicant contends that this matter is urgent for the
simple reason that there is a dire need to continue with the
renovations
to the property. The applicant is suffering irreparable
harm in that it presently pays monthly bond fees of approximately
R15 000
per month with no rental income being earned on the
premises. There is a substantial amount in respect of arrear rental
payable
by the respondents. There is a mortgage bond of R1.25 million
registered over the property and the applicant remains liable to
service the bond whilst faced with the non – or late payment of
rent. The respondents are refusing to pay rental and has since
July
2019 refused to pay rental as per the lease agreement.
[7].
In sum, Mr Mhlanga, Counsel for the applicant, submitted that
they have illustrated that the applicant is suffering damages in the
form of financial losses as a result of the failure by the
respondents to vacate. The damages are accumulating as time passes
and flow from the non / late – payment of rental, the continued
obligation on the applicant to pay for municipal services,
the delay
in the initiation and finalisation of the renovations.
[8].
It is trite that commercial urgency warrants the relaxation of
the Uniform Rules of Court in terms of Rule 6(12). In this matter,
the applicant has afforded the respondents sufficient time and
opportunity to oppose the application and to fully present their
case
to court. The respondents in fact availed themselves of this
opportunity and, in my view, any and / or all facts relevant
to the
adjudication of the application have been placed before me.
Additionally, they have filed a counter-application in response
to
the applicant’s urgent application. I am of the view that
relaxation from the normal time parameters is commensurate to
the
urgency of the matter. It is indeed so that the respondents have not
alleged prejudice as a result of this application being
launched on
an urgent basis. There is therefore, in my judgment, no possible
prejudice suffered by the respondents as a result
of this application
being launched on an urgent basis.
[9].
In that regard, I have had regard to what is said by the court
in
Luna Meubel Vervaardigers v Makin Furniture Manufacturers,
1977
(4) SA 135
(W) at pg 137E-F:
‘
Practitioners
should carefully analyse the facts of each case to determine, for the
purposes of setting the case down for hearing,
whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify the
particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down’.
[10].
The point about this matter is that it has
been more than two months since the applicant demanded that the
respondents, who are
in flagrant breach of the lease agreement, bring
their rental up to date, and the matter is no closer to being
resolved. Therefore,
in my judgment, the applicants have made out a
case for urgency and for a truncation of the time periods as provided
for in Uniform
Rule 6(12).
[11].
The main contention by the respondents in
relation to urgency is that the applicant’s urgent application
for eviction was
brought by the applicant in terms the provisions of
s 5 of the PIE Act. The application, so the respondents contend, has
however
not been brought within the confines of s 5, the requirements
of s 5 not having been met.
[12].
The
PIE Act expressly makes provision for and deals specifically with
procedures for the eviction of unlawful occupiers. Section
5 of the
PIE Act provides as follows:
‘
5
Urgent
proceedings for eviction
(1)
Notwithstanding
the provisions of section 4, the owner or person in charge of land
may institute urgent proceedings for the eviction
of an unlawful
occupier of that land pending the outcome of proceedings for a final
order, and the court may grant such an order
if it is satisfied that-
(a)
there
is a real and imminent danger of substantial injury or damage to any
person or property if the unlawful occupier is not forthwith
evicted
from the land;
(b)
the
likely hardship to the owner or any other affected person if an order
for eviction is not granted, exceeds the likely hardship
to the
unlawful occupier against whom the order is sought, if an order for
eviction is granted; and
(c)
there
is no other effective remedy available.
(2)
Before
the hearing of the proceedings contemplated in subsection (1), the
court must give written and effective notice of the intention
of the
owner or person in charge to obtain an order for eviction of the
unlawful occupier to the unlawful occupier and the municipality
in
whose area of jurisdiction the land is situated.
(3)
The
notice of proceedings contemplated in subsection (2) must-
(a)
state
that proceedings will be instituted in terms of subsection (1) for an
order for the eviction of the unlawful occupier;
(b)
indicate
on what date and at what time the court will hear the proceedings;
(c)
set
out the grounds for the proposed eviction; and
(d)
state
that the unlawful occupier is entitled to appear before the court and
defend the case and, where necessary, has the right
to apply for
legal aid.
[13].
In
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & Others,
2010 (3) SA 454
(CC), the Constitutional Court had opportunity to
deal with s 5. At par [90] the Constitutional Court (Yacoob J) has
this to say
on the issue.
‘
[90]
It is apparent that s 5(1) sets out certain very stringent
requirements to obtain an urgent eviction pending the determination
of proceedings for a final order of eviction of the applicants. In
proceedings in terms of s 5 therefore, any issue in relation
to
whether an order for eviction should be granted, and, in particular,
whether it is just and equitable to grant the eviction
order, would
be entirely irrelevant. The PIE Act contemplates that urgent
proceedings in terms of s 5 will be separate, independent
and
distinct from the substantial eviction proceedings contemplated in s
6.
The
High Court found that 'the applicants had clearly complied with the
procedure laid down in s 5 of PIE' on the basis of certain
notices
that had been issued by that court. One would ordinarily have
expected an urgent eviction order to have been obtained upon
proof of
the stringent requirements of s 5 of the PIE Act, including the
existence of a real and imminent danger of substantial
injury or
damage to any person or property. In the event, although an urgent
order in terms of s 5 was applied for, no order was
in fact obtained.
[91]
What happened was this. Although the application was initially a s 5
application, the order asked for was not a s 5 order
but one for a
final eviction and relocation, competent only in terms of s 6 of the
PIE Act. The notice to residents had in the
meantime made it plain
that a final eviction order would be asked for. It will be seen that
s 6 issues, that have nothing to do
with an interim eviction order
and which are relevant to a grant of a final order of eviction, were
dealt with in the papers. These
issues include whether the eviction
should be ordered in all the circumstances and whether it is just and
equitable to evict. Argument
was heard on whether a final eviction
order should be granted, and that order was in fact granted.
[92]
The High Court would have put form above substance if it heard the
case on the ultimate date of hearing as a s 5 case. By the
time the
matter was heard about three months after the application had been
filed, much water had passed. Notices of intention
to oppose had been
filed and the parties had dealt in detail with the s 6 issues in the
papers. The urgent s 5 application had
been overtaken by events. In
the circumstances the High Court was right to deal with the case as
one which started as a s 5 case
and which, by the time it was argued,
had matured into a fully-fledged s 6 application. In my view, there
could indeed have been
no opposition of substance had the respondents
applied for an amendment in the High Court shortly before the date of
hearing, an
amendment to regularise the matter and to make explicit
what was already implicit, that an eviction was, at the date of
hearing,
being sought in terms of s 6. In the circumstances the
question whether the stringent requirements of s 5 had been met was
not
material before the High Court as at the date on which the matter
was finally heard. Indeed, the s 5 issues were never material
because
no order in terms of s 5 had ever been sought. It is therefore
unnecessary for me to decide in this case whether the stringent
s 5
requirements had been complied with.
[93]
The High Court was undoubtedly right in ultimately deciding the case,
and making an order, in terms of s 6 of the PIE Act.
I conclude
therefore that the occupants enjoyed no right of occupation. It was
therefore not necessary for the City to terminate
that right. The
essentially technical defence by the applicants that they had a right
of occupation which had not been terminated
fails. That does not mean
that they can be evicted or relocated without more. The requirements
of the PIE Act must be complied
with. I must say immediately that the
most important of the requirements of the PIE Act for present
purposes is the requirement
that their eviction must be just and
equitable. I come to that later. First, however, certain essentially
technical objections
based on the PIE Act and taken by the applicants
must be carefully considered.’
[14].
I deemed it necessary to cite as
extensively as I did from the
Joe Slovo
judgment so as to place in context my view on the interpretation to
be given to section 5. But before I do that I interpose to
note that,
in applying the principles as enunciated in this ConCourt judgment,
the applicant is, in my view, entitled to the relief
sought in this
application.
[15].
The applicant is entitled to an eviction of
the respondents in that they have complied with the procedural and
substantive requirements
of s 5.
[16].
In any event, I am of the view that the
applicant, notwithstanding the formulation of the notice of motion is
entitled to an eviction
order in terms of the provisions of s 4 of
the PIE Act. In my judgment, the applicant has complied with the s 4
requirements of
the PIE Act must be complied with, the most notable
of which is the requirement that the eviction of the respondents must
be just
and equitable.
[17].
I say so for the following reasons.
[18].
My reading of the
Joe
Slovo
judgment, and in particular the
long extract from that judgment cited immediately above, does not
mean that any and / or all urgent
applications for eviction should be
brought in terms of section 5 of the PIE Act. This section of the act
most certainly does not
expressly provide that urgent eviction
applications shall only be brought in terms of section 5. Moreover,
the opening phrase of
the section 5 provides as follows:
‘
Notwithstanding
the provisions of section 4, the owner or person in charge of land
may institute urgent proceedings for the eviction
of an unlawful
occupier …’
[19].
Of significance in my view is the use of
the phrase ‘notwithstanding the provisions of section 4’
and the use of the
word ‘may’ in the section. This
construction, in my judgment, affords an applicant the option of
applying for an interim
eviction order pending an application for a
final order, without in any way depriving the applicant of its right
to launch an urgent
application in terms of section 4. I am
strengthened in my finding in that regard by the wording of section
4, which provides as
follows in subsection (3);
‘
(3)
Subject to the provisions of subsection (2), the procedure for the
serving of notices and filing of papers is as prescribed
by the rules
of the court in question’.
[20].
I therefore interpret these provisions to
mean that the applicant was fully within its rights to urgently apply
for an eviction
order in terms of section 4 of the PIE Act, read with
Uniform Rule of Court 6(12), because that is exactly what section
4(3) of
the PIE Act says. I cannot find anything in the
Joe
Slovo
judgment, which in the end dealt
with an application for eviction which in effect was not brought on
an urgent basis, which contradicts
my aforesaid view. I reiterate
that, in my judgment, the
Joe Slovo
judgment is not authority for the propositions that an urgent
application for eviction can only be brought in terms of section
5 of
the PIE Act and that pursuant to an urgent application for eviction
the court can only grant an interim eviction order pending
the final
order for eviction.
[21].
The respondents’ opposition to the
eviction application is based primarily on their claim that they are
entitled to withhold
payment of the rental because the applicant, in
breach of the lease agreement, has terminated the supply of
electricity to the
premises. There is a fundamental flaw in this
approach. The lease agreement expressly provides that ‘the
rental cannot be
reduced by the tenant, for any reason whatsoever’.
The respondents therefore do not have defence on the merits to the
application
for an eviction. They are unlawful occupiers of the
premises and, provided the provisions of the PIE Act are complied
with, they
should be evicted. The point is this: If regard is had to
the notice to vacate of the 15
th
of June 2019, the respondents should not be in occupation of the
premises. This makes them unlawful occupiers as they are occupying
the premises against the wishes of the owner and without a valid
right to be there.
[22].
The only question remaining relates to the requirement in
eviction matters that in terms of section 4(7) of the PIE Act the
eviction
should be just and equitable. The respondents did not bring
to my attention any factors which would make their eviction not just
and equitable. They seemingly are able to pay rental of R18 000
per month, which means that they would be able to find alternative
accommodation without any difficulty.
[23].
On the point of the ‘just and equitable’
requirement, it requires emphasising that risk of any one occupier
being rendered
homeless is slim to non – existent. In
The
Occupiers, Berea v De Wet NO and Another
,
2017 (5) SA 346
(CC),
the Constitutional Court remarks as follows at par [48]:
‘
[48]
The court will grant an eviction order only where:
(a)
it has all the information about the occupiers to enable it to decide
whether the eviction is just and equitable; and
(b)
the court is satisfied that the eviction is just and equitable,
having regard to the information in
(a)
.
The two requirements are inextricable, interlinked and essential. An
eviction order granted in the absence of either one of these
two
requirements will be arbitrary. I reiterate that the enquiry has
nothing to do with the unlawfulness of occupation. It assumes
and is
only due when the occupation is unlawful.’
[24].
The respondents should be given sufficient
time to vacate the premises. I am of the view that it would be just
and equitable to
afford the respondents until the end of October 2019
to vacate the premises.
[25].
I am satisfied that the urgent application of the applicant
for the eviction of the respondents should succeed. Accordingly, I
intend
granting the relief prayed for by the applicant in their
notice of motion.
The
respondents’ counter-application
[26].
The respondents counter-apply for an order for the restoration
of the supply of electricity to the premises, which supply, according
to the respondents, was summarily terminated on the 2
nd
of
August 2019. The application for the reconnection of the supply of
electricity is based on the
mandament van spolie
.
[27].
The difficulty which the respondents face in this
counter-application is that, on their own version, the supply of
electricity was
terminated by City Power, being a division of the
City of Johannesburg. The spoliation was therefore committed by City
Power and
the application for an order against the applicant, who did
not spoliate them, is ill-conceived at a fundamental level. The
aforegoing,
in my view, is confirmed by the fact that the first
respondent in her founding affidavit in support of the
counter-application
cites ‘City Power Johannesburg (Pty)
Limited’ as a ‘fourth respondent’, although it
appears that the counter-application
was never served on City Power
nor was the counter-application brought to the attention of City
Power.
[28].
The counter-application therefore stands to be dismissed.
Cost
[29].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[30].
I can think of no reason why I should
deviate from this general rule.
[31].
I therefore intend awarding cost against
the respondents in favour of the applicant.
Order
Accordingly,
I make the following order:
(1)
The applicant’s non-compliance with
the Rules of this Court be and is hereby condoned and its application
is heard as one
of urgency in terms of the provisions of Uniform Rule
of Court 6(12).
(2)
The written lease agreement concluded
between the applicant and the first respondent on the 5
th
of March 2019 be and is hereby cancelled and terminated.
(3)
The first and second respondents and all
other occupiers of the applicant's property, being Erven […]2
and […]3, Kensington
Township, Gauteng Province, situate at
[…] O. Road, Kensington, Johannesburg (‘the premises’),
be and are hereby
evicted from the said premises.
(4)
The first and second respondents and all
other occupiers of the premises shall vacate the property on or
before the 31
st
of October 2019.
(5)
In the event that the respondents and the
other occupiers of the premises not vacating the premises on or
before the 31
st
of October 2019, the Sheriff of this Court or his lawfully
appointed deputy be and is hereby authorized and directed to
forthwith evict the respondents and all other occupiers from the
premises.
(6)
Once evicted, the respondents are
interdicted and restrained from entering the property at any time
after they have vacated the
property or have been evicted therefrom
by the sheriff of the court or his lawfully appointed deputy.
(7)
In the event that any of the unlawful
occupiers contravene the order in para 6 above, the sheriff of the
court or his lawfully appointed
deputy, is authorised and directed to
remove them from the property as soon as possible after their
reoccupation thereof.
(8)
The respondents jointly and severally, the
one paying the other to be absolved, shall pay the applicant’s
cost of this urgent
application, including the cost relating to the
applicant’s ex parte application in terms of section 5(2) of
the Prevention
of Illegal Eviction from, and Unlawful Occupation of
Land Act (‘the PIE Act’).
(9)
The counter-application of the respondents
be and is hereby dismissed with cost.
(10)
The respondents jointly and severally, the
one paying the other to be absolved, shall pay the applicant’s
cost of the counter-application.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
10
th
September 2019
JUDGMENT DATE:
FOR THE APLICANT:
13
th
September 2019
Adv L Mhlanga
INSTRUCTED BY:
Precious Muleya Incorporated
FOR
THE FIRST AND SECOND RESPONDENTS:
Adv
Michael Laws
INSTRUCTED
BY:
Hajibey
Bhyat Incorporated