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[2019] ZAGPJHC 418
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Msibi v Buthelezi and Others (22770/2015) [2019] ZAGPJHC 418 (10 October 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 22770/2015
In
the matter between:
KHAYELIHLE
LUCKYBOY
MSIBI
Applicant
And
NOMGQIBELO
MAVIS
BUTHELEZI
First
Respondent
SIZILE
NGAMLANA
Second
Respondent
CITY
OF JOHANNESBURG METRO MUNICIPALITY
Third
Respondent
J
U D G M E N T
MODIBA
J
INTRODUCTION
[1]
This is an opposed eviction application. The applicant brings it in
terms of section 4 (1) of the Prevention of Illegal Eviction
from
Unlawful Occupation of Land
[1]
(“the Act”).
[2]
He is the registered owner of the property described as Erf […],
Mofolo Central Township, Gauteng, held by Deed of Transfer
T027358/2014 with the street address […] M. Street, Mofolo
Village, Soweto (‘the property”). This is the property
from which he seeks to evict the second respondents and all those who
claim occupation through and under her.
[3]
The second respondent occupies the property together with her 6 year
old son. The first respondent has since passed away. Therefore
the
application is only considered in respect of the second respondent
and those claiming occupation through and under her.
[4]
The third respondent in the City of Johannesburg (“the City”).
It is cited because it bears the statutory duty to
provide temporary
emergency assistance (TEA) to persons within the city. It is not
opposing the application. On 21 November 2018,
Cowen AJ ordered it to
consider the second respondent’s eligibility for TEA. It has
complied with that order and filed a
report on 31 January 2019.
CONDONATION
APPLICATION
[5]
The second respondent filed her answering affidavit late. She seeks
condonation for its late filing. The applicant does not
oppose this
relief. I am satisfied that the second respondent has shown good
cause for condonation to be granted. She served her
notice of
intention to oppose on 13 July 2015 and her answering affidavit on 31
August 2015. It was due on 27 July 2015. The explanation
for the
delay is that she had to raise funds for legal fees. The delay in
filing the answering affidavit is not inordinately long.
The reason
for the delay is rational. I am satisfied that the second respondent
has shown good cause for condonation to be granted.
WHETHER
THE APPLICANT MAKES OUT A CASE FOR THE EVICTION OF THE SECOND
RESPONDENT
[6]
The applicant seeks to evict the second respondent on the basis that
she is an unlawful occupant who occupies his property without
his
permission. She does not deny that the applicant is the registered
owner and that she lacks his permission to occupy the property.
She
seeks to regularise her occupation on the basis of the permission
purportedly obtained from the previous owner of the property.
[7]
It is common cause that the applicant purchased the property from
Nombi Theresa Ngamlana (‘the deceased”) for an
amount of
R420, 000.00 pursuant to a written contract concluded on 2 May 2014.
On 9 June 2014, the deceased passed away. The property
was
transferred into the applicant’s name on 21 July 2014. He
obtained a mortgage loan in terms of which he registered a
mortgage
bond over the property. He duly paid the sale price in terms of the
contract of sale. It accrued to the deceased’s
estate. Under
these circumstances, the deceased’s permission to the
respondents, allowing the second respondent to occupy
the property,
no longer holds. Its validity ceased when the transfer of the
property was registered in the applicant’s name.
It does not
place a hurdle on the applicant’s efforts to evict the
respondents from the property.
[8]
The second respondent intends impugning the applicant’s
ownership of the property by bringing an application to have the
agreement of sale that the applicant concluded with the previous
owner and the transfer of registration to the applicant, pursuant
thereto, set aside. Her intention also does not place a hurdle on the
applicant’s effort to evict her. The second respondent
contends
that she has delayed to bring the application because she needs to
raise funds for legal fees. She fails to explain why
she did not
bring the application when she filed the answering affidavit. The
transfer of the property was registered in July 2014.
More than five
years after the registration of transfer and four years after filing
her answering affidavit, she has not carried
out her intention to
bring the predicted application. To date, the second respondent has
not brought the envisaged application.
In the meantime she continues
to occupy the property without any legal basis and without any
consideration to the applicant.
[9]
The applicant’s monthly instalment towards the loan he took out
to purchase the property, which he is currently paying,
is R4, 500.
He is also responsible to the City for rates, taxes and services
towards which he makes monthly payments. Under these
circumstances,
it is not in the interest of justice to pend this application in
order to allow the second respondent to impugn
the applicant’s
ownership of the property.
[10]
I find that the applicant is the owner of the property and that the
second respondent’s occupation of the property is
unlawful as
envisaged in section 4 (1) of the Act.
IS
IT JUST AND EQUITABLE TO EVICT THE SECOND RESPONDENT FROM THE
PROPERTY?
[11]
The second respondent has been residing on the property with her son
for longer than six months. The City has determined that
she does not
qualify for TEA, as earns in excess of the applicable income
threshold. She has not taken the court into her
confidence
regarding how she spends her income. It is not her case that she is
unable to rent alternative accommodation. She has
not placed any
information before the court that would enable the court to determine
this issue in her favour. Under these circumstances,
I find that if
evicted, she will not be rendered homeless.
[12]
Her eviction from the property under these circumstances is further
rendered just and equitable by the financial prejudice
her continued
occupation causes the applicant as described in paragraph 9 above.
[13]
She has been aware of the applicant’s efforts to evict her
since 2015. Due to the length of time since the applicant
launched
this application, as well as the financial prejudice he continues to
suffer as a result of the second respondent’s
occupation, it is
just and equitable that she is evicted from the property within 30
days of the date of service of the eviction
order.
[14]
In the premises the application stands to success with costs.
ORDER
1. The application
succeeds.
2. The second respondent
and any person claiming occupation in the property either through or
under her shall vacate […]
M. Street, Mofolo Village, Soweto
(‘the property”), within 30 days of service of this order
on the second respondent.
In the event that the second respondent and
any person claiming occupation through or under her fails or refuses
to voluntarily
vacate the property as ordered in paragraph 1 above,
the Sheriff of the court and where necessary with the assistance of
the members
of the South African Police Service is authorized and
directed to take all such steps as may be necessary to evict the
aforesaid
persons from the property and to give vacant possession
thereof to the applicant.
3. The second respondent
shall pay the costs of the application.
__________________________
MADAM
JUSTICE
L T MODIBA
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARENCES:
Counsel
for Applicant: Advocate T Mosikili
Attorney
for Applicant: Machaba Attorneys
Counsel
for the 1
st
and 2
nd
Respondents: Advocate C
Carelse
Attorney
for the 1
st
and 2
nd
Respondents: R Masilo
Attorneys
Counsel
for the 3
rd
Respondent: Attorney GB McMaster
Attorney
for the 3
rd
Respondent: Kunene Ramapala INC
Date
heard: 19 September 2019
Date
of judgment: 10 October 2019
[1]
Act 19 of 1998.