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[2019] ZAGPJHC 488
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JFS Properties No 12 (Pty) Limited v Unlawful Occupiers of Holding 24 Inadan AH Agricultural Holdings Gauteng and Another (2019/08402) [2019] ZAGPJHC 488 (28 November 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:
2019/08402
In
the matter between:
JFS
PROPERTIES NO. 12 (PTY) LIMITED
(REG
NO.
2006/021257/07) Applicant
and
THE
UNLAWFUL OCCUPIERS OF HOLDING 24
INADAN
AH AGRICULTURAL HOLDINGS GAUTENG
First
Respondent
CITY
OF
JOHANNESBURG
Second
Respondent
JUDGMENT
Goedhart
AJ
[1]
The Applicant, JHF Properties No 12 (Pty) Ltd, seeks the eviction of
the unlawful occupiers from Holding 24 Inadan Agricultural
Holdings
Gauteng which is situated at corner Orleans Road and Clairvaux Road,
Johannesburg, 2162 (“the property”).
The application for
eviction is brought in terms of The Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act
(“the PIE Act”).
In terms of section 4(1) of the PIE Act, the Applicant has to be the
owner or person in charge of
the property in order to succeed with
the application for eviction.
[2]
The Applicant purchased the property on 14 May 2018 from Randabel CC
for a purchase consideration of R1,200 000,00. The property
was
registered in the name of the applicant in the office of the
Registrar of Deeds, Pretoria on 8 November 2018 under Title Deed
Number T78485/2018. A judicially certified copy of the Title Deed was
attached to the replying affidavit after ownership was placed
in
dispute in the answering affidavit.
[1]
The Applicant has therefore proven ownership of the property.
[3]
The Applicant followed the procedures prescribed under the PIE Act.
On 13 March 2019 Siwendu J authorised the section 4(2) notice
and
service thereof.
[2]
A similar order was granted by Wright J on 17 May 2019.
[3]
[4] The Applicant’s case is that
it must succeed with its eviction application based on its compliance
with the PIE Act. Further,
that in so far as the property is occupied
for both residential and commercial purposes, the application must be
determined based
on the principles of
rei vindicatio
as far as
the commercial occupants are concerned. In this regard, the applicant
relies on
Chetty v Naidoo 1974(3) SA 13 (A) at para 20:
“
It is
inherent in the nature of ownership that possession of the res should
normally be with the owner , and it follows that no
other person may
withhold it from the owner unless he is vested with some right
enforceable against the owner (e.g. a right of
retention or a
contractual right). The owner, in instituting a rei vindication need
therefore do no more than allege and prove
that he is the owner and
that the defendant is holding the res – the onus being on the
defendant to allege and establish
any right to continue to hold
against the owner.”
[5]
On 11 July 2019, having been served with the notice of motion and
the. sction4(2) notice, Mr Dumisani Nkomazana (“Nkomazana”)
served an answering affidavit. His affidavit sets out that:
[5.1] He is
employed by Ms Maria Lubelia Barcelos (“Barcelos”).
[4]
Barcelos emigrated to Australia and left him in charge of the
property “and the business in question”.
[5]
[5.2] A certain Mr
Mokwejane (“Mokwejane”) attempted to hijack the property.
Mr Nkomazana was arrested for trespassing.
He avers that a case of
fraud was opened against Mokwejane which is under investigation by
the Commercial Crimes Unit Johannesburg
under reference number
Douglasdale CAS328/11/2010.
[6]
He did not see Mokwejane again, but reported the incident to his
employer, Barcelos, who deposed to an affidavit on 4 April 2011.
[7]
[5.3] Nkomazana was
surprised when he was served with this application, as he had not
been advised that the property had been put
up for sale.
[8]
Upon receipt of the application for eviction, he contacted Barcelos
to make inquiries and was then advised by Barcelos that she
has not
sold the property.
[9]
Based on his inquiry, Barcelos sent an email on 30 May 2019 in which
she states that she had not given any authority to sell the
property,
and that she will not “once again have this hijacked”.
[10]
Barcelos’ version as evidenced by the attachments to the
answering affidavit, corresponds with that of Nkomazama and is to
the
effect that she has a 50% interest in Randabel CC, with the remaining
50% held by her sister.
[5.4] Nkomazama
also sets out that he has been employed and residing at the property
since 1998 with his wife and his five minor
children.
[11]
He provides no further information regarding his personal
circumstances, that of this wife or his five minor children. He sets
out that he has no other means of income “except from the
business” that is conducted on the property, and that if
the
eviction is permitted, it will be severely prejudicial to him and his
family.
[12]
[5.5] Nkomazama
avers that there has been non-compliance with the law because there
is no report from the municipality regarding
alternative
accommodation.
[13]
He refers to the relevant considerations that a court must take into
account, such as female or child headed families and whether
they may
be rendered homeless.
[14]
This notwithstanding, he volunteers no information regarding his and
his family’s personal circumstances.
[6]
The crux of the answering affidavit is that Mr Nkomazana occupies the
property through Barcelos who, it is alleged, is the rightful
owner.
To the extent that the property was sold to the Applicant, it is
alleged that it was fraudulently sold. Nkomazana
also avers that
there has not been compliance with the Applicant’s statutory
duties under the PIE Act.
[7]
In its replying affidavit, the Applicant sets out the steps it took
to verify the allegations that the property had been “hi-jacked”
by Mokwajana. The Applicant attaches the documents which it
obtained during the course of the process of investigating the
allegations in the answering affidavit to the replying affidavit.
[8] The documents obtained by the
Applicant through its attorneys of record reflect that:
[8.1] On 21
February 1989, Barcelos and her sister resigned as members of
Randabel CC. This appears from the CK2 form attached to
the replying
affidavit as “RA-2”.
[15]
[8.2] On the same
day, one Humbertu Rufinu Ferreira and Lidia Marta Ferreira were
appointed as members of Randabel CC.
[16]
[8.3] On 29 October
2010, Humbertu Rufinu Ferreira and Lidia Marta Ferreira were removed
as members by order of court dated 15 October
2010. The CK2 form
which reflects this is attached as “RA-5”.
[17]
[8.4] On 29 October
2010, Mokwajana was appointed as sole member of Randabel CC.
[18]
There have been no subsequent changes to the membership of Randabel
CC.
[8.5] On 14 May
2018, Randabel CC, represented by Mokwajana, concluded the offer to
purchase the property with the applicant.
[19]
[9]
The consequence, the contentions by Nkomazana (and Barcelos) are not
borne out by the replying affidavit and the documents attached
to the
reply. From these documents it would appear that Barcelos had
voluntarily resigned as a member of Randabel CC in 1989.
The
manuscript annotation on “RA-5” is to the effect that
Humbertu Rufinu Ferreira and Lidia Marta Ferreira were “removed
by court order dated 15 October 2010”, and that Mokwajana
became the sole member of Randabel CC on 29 October 2010. If indeed
the records of the Companies office do not reflect the correct
position, Barcelos has known since 4 April 2011, when she deposed
to
the affidavit, of this state of affairs. However, nothing has been
done for a period exceeding eight years to correct the records
in the
Companies Office. In contrast, the applicant has demonstrated that it
is a bona fide third party purchaser and now registered
owner of the
property. It was entitled to rely on the representation that
Mokwajana is the sole member of the Randabel CC, the
previous owner
of the property. The applicant purchased the property from Randabel
CC for value.
[10]
The section 4(2) notice which was served on the property on one Dumi
Makosana pursuant to the orders granted by Siwendu J on
13 March 2019
and Wright J on 17 May 2019, requires of the occupiers to disclose
their personal circumstances. In respect of the
personal
circumstances of Nkomazana, the answering affidavit only sets out
that he has lived at the property since 1998 with his
wife and five
minor children. The answering affidavit reflects that a business is
being operated from the property. Nkomazana does
not state that he
will be rendered homeless if evicted. He does not provide the ages of
his children or any details regarding his
wife. Thus, despite being
aware of the factors that the court would take into account in
considering an eviction application, Nkomazana
does not volunteer the
information.
[11]
On 9 April 2019, Sutherland J granted an order in terms of which the
Second Respondent was to conduct an inspection of the
property
within 30 days of the order and to deliver a report within 30
days thereafter setting out which of the First Respondent/s
qualify
for the provision of temporary emergency accommodation. The order was
served on the Second Respondent on 25 April 2019.
The Second
Respondent has not complied with the order. The Applicant did not
compel compliance. Although there is no report by
the Second
Respondent, there is no indication in the answering affidavit that
Nkomazana and his family would be rendered homeless
and would require
emergency temporary housing.
[20]
[12]
Counsel for the First Respondent submitted that the Applicant ought
to have joined other interested parties. In light of the
averments
set out in the replying affidavit and the supporting documents
attached thereto, more particularly the documents reflecting
Ms
Barcelos’ resignation as a member of the CC in 1989, which
demonstrate that Nkomazana could not hold the property through
Barcelos, the argument was not persisted with.
[13]
It appears that Barcelos and Nkomazana caused a summons to be issued
against the Applicant as first defendant and against Randabel
CC as
second defendant during or about 31 October 2019. The summons was
served on 19 November 2019. The relief sought is that the
sale
between the First Defendant and Randabel CC be set aside. The summons
and particulars of claim were handed up by agreement
during the
course of the hearing. The action does not affect the current
proceedings. On the facts before me, the Applicant has
demonstrated
that Barcelos does not have any interest in the property having
resigned as a member of Randabel CC in 1989. Further,
the applicant
has proven that it is the registered owner of the property which it
acquired from Randabel CC for value.
[14]
In respect of costs, there is no justification for seeking a costs
order against Nkomazana under circumstances where he placed
before
the court what was within his knowledge concerning the ownership of
the property as conveyed to him by Barcelos. Mr Hollander
was
requested to obtain an instruction from the Applicant in respect of
the issue of costs. He advised that the Applicant does
not persist
with an order for costs against Nkomazana/the First Respondents.
[15]
In the result, I make the following order:
[15.1] The First
Respondents, being Dumisani Nkomazana (Identity number […]),
Lungile Mtetha, Dumi Makosana, and all other
persons who occupy the
property are evicted from the property situated at cnr Orleans Road
and Clairvaux. Road, Johannesburg, 2162,
more fully described as
Holding 24 Inadan Agricultural Holdings Gauteng (“the
property”).
[15.2] The First
Respondents are ordered to vacate the property on or before 3
February 2020, failing which the eviction order may
be carried out.
[15.3] Each party
is to bear its own costs.
________________
G-M
Goedhart
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT:
Adv L. Hollander
APPLICANT’S
ATTORNEYS:
Vermaak & Partners Inc.
COUNSEL
FOR THE FIRST RESPONDENT:
Adv M. O. Mudimeli
FIRST
RESPONDENT’S ATTORNEYS:
Matojane. Malungana Inc.
DATE
OF HEARING:
26 November 2019
DATE
OF JUDGMENT:
28 November. 2019
[1]
Record,
p175-180, RA9.
Section
18(1) of the Civil Proceedings Evidence Act 25 of 1965 provides: “
Whenever
any book or other document is of such a public nature as to be
admissible in evidence on its mere production from proper
custody,
any copy thereof or extract therefrom proved to be an examined copy
or extract purporting to be signed and certified as
a true copy or
extract by the officer to whose custody the original is entrusted,
shall be admissible in evidence”;
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 82A-C.
[2]
Record,
p28-31.
[3]
Record,
p54-58.
[4]
Record,
p87, para 1; p88, para 5.
[5]
Record,
p88, para 8.
[6]
Record,
p88, para 9.
[7]
Record,
p88, para 9, Affidavit by Barcelos, p94-97.
[8]
Record,
p89, para 10.
[9]
Record,
p89, para 11.
[10]
Record,
p89, para 11 as read with p105.
[11]
Record,
p88, para 7; p90, para 15.
[12]
Record,
p90, para 15.
[13]
Record,
p90, para 16.
[14]
Record,
p90, para 17.
[15]
Record,
p116, para 11.2 as read with p158.
[16]
Record,
p117, para 11.3 as read with p163.
[17]
Record,
p117, para 11.4 as read with p164.
[18]
Record,
p117, para 11.5 as read with p165.
[19]
Record,
p117, para 11.6 as read with p166.
[20]
In
City
of Johannesburg Metropolitant Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & another
2012 (2) SA
104
(CC), the Constitutional Court determined that the City is
enjoined to provide temporary emergency accommodation for persons
evicted by private landowners.