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[2020] ZAGPJHC 209
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Murray NO and Another v Msibi and Others (26535/2019) [2020] ZAGPJHC 209 (20 March 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO: 26535/2019
In
the matter between -
CLOETE
MURRAY
N.O.
First Applicant
ASAD
SULIMAN
N.O.
Second Applicant
(In
their capacities as joint provisional trustees of the insolvent
estate of Kwa-Ndlondlo Trust)
And
SIFISO
AUBREY
MSIBI
First Respondent
(ID
No. […])
MMAPHEKO
DORIS
MSIBI
Second Respondent
(ID
No. […])
JOHANNESBURG
METROPOLITAN MUNICIPALITY
Third Respondent
JUDGMENT
MAKOLA
AJ:
[1]
This matter concerns the interpretation of
section 4(2) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land
Act 19 of 1998 (“PIE Act”).
[2]
The question that arises is whether it is
just and equitable to evict the first and second respondents
(respondents) from
the property described as Portions 1 and 2,
Erf […] Hyde Park Township, Registration Division IR in extent
1457 and 1336
square metres held by Deed of Title T60331/2010,
corresponding to […] Road, Hyde Park, Sandton (“the
property”).
[3]
The Kwa-Ndlondlo Trust (“the Trust”)
is the owner of the property. The first and second respondents are
married to each
other and they live on the property with their three
minor children. The applicants were appointed provisional
trustees on
17 July 2018 and the Trust was finally sequestrated on 16
October 2018. On 12 November 2018 the applicants wrote a letter to
the
respondents cancelling any lease agreements there with the Trust
and demanding that they vacate the property by no later than 31
December 2018.
[4]
The respondents failed to comply with the
demand, thus triggering these proceedings. As grounds for their
relief, the applicants
say that the Trust is the owner of the
property; the respondents are in unlawful occupation of the property;
the applicants are
entitled to sell the property in the
administration of the insolvent estate for the benefit of the general
body of creditors; there
is no agreement between themselves and the
respondents as regards the occupation of the property and as such the
occupation is
unlawful. At the time of launching these proceedings in
July 2019, the respondents had been in unlawful occupation of the
property
for four months.
[5]
The second respondent says in her answering
affidavit that she resides on the property with the first respondent
and their three
minor children who are all of school going age, the
eldest being 14 years old. The property is the primary
residence of the
family, the children attend school in the area and
there are domestic workers on the premises but they do not reside
there on a
fulltime basis.
[6]
The respondents’ defence was struck
out because they failed to comply with the order of Ally J of 28
January 2020 requiring
them to deliver their heads of argument and
practice note within three court days of the order.
[7]
Section 4(1) of the PIE Act provides that
notwithstanding anything to the contrary contained in any law or the
common law, the provisions
of this section apply to proceedings by an
owner or person in charge of land for the eviction of an unlawful
occupier.
Under section 4(2) at least 14
days before the hearing of the proceedings contemplated in subsection
1, the court must serve written
and effective notice of the
proceedings on the unlawful occupier and the municipality having
jurisdiction. The contents and the
manner of service of the notice
contemplated in subsection (2) must be authorised and directed by an
order of the court concerned(
Killarney
Property Investments (Pty) Ltd v Mahamba and others
200
1
(4) SA 1222
(SCA) [11])
[8]
The section 4(2) notice must be served upon
a respondent at least 14 days before the date upon which the
application is to be heard.
It must conform with the previously
obtained directions of the court, with reference to both its contents
and the manner in which
it is to be served
(Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at
[17]; Moela v Shoniwe
2005 (4) SA 357
(SCA) [9])
.
[9]
The effect of section 4(2) is clearly to
ensure that the unlawful occupier and municipality are fully aware of
the proceedings and
that the unlawful occupier is aware of his rights
under section 4(5)(d). It may well be that the object, in
appropriate circumstances,
may be achieved notwithstanding that
service of the notice required by section 4(2) has not been
authorised by the court.
[10]
This court has held that a deviation from
the proceedings set out in section 4(2) is not fatal (
Van
Niekerk and Ano v Favel and Ano
[2006] ZAGPHC 24
;
2006
(4) SA 548
(W) at
[39]
).
The
question is whether in spite of the deviation, there was substantial
compliance with the requirements of the statute (
Unlawful
Occupiers
supra at
[22], Moela at 8-12; Maharaj and others v Rampersad
1960 (4) SA 638
(A) at 646 C-E)
.
[11]
This court authorised the section 4(2)
notice on 18 February 2020 (the order). In terms of the
notice, the respondents
are informed that the applicants intend to
make application on 16 March 2020 at 10h00 or so soon thereafter as
counsel may be heard
for an eviction order against the respondents
from the property and directing the respondents to pay the costs of
the application.
The grounds of the application are as set out
above. The respondents are told that they are entitled to
appear on 16 March
2020 at 10h00 to defend the case and to state any
grounds and/or reasons why they should not be evicted. They are
told to
appear in person or through a legal practitioner and if they
are unable to afford such they have a right to apply for legal
aid. The Sheriff is directed that the notice must be served on
the respondents in accordance with the provisions of Rule
4,
alternatively, if such notice is not possible, by affixing the notice
to the front gate at the property. The Sheriff is
also directed
to read out and explain to the respondents in English that the return
of service must specifically state that each
of the above directions
was duly carried out.
[12]
On 20 February 2020 the applicants’
attorneys instructed the Sheriff to serve the order on the
respondents personally. As
can be seen from his return, the Sheriff
made numerous attempts to serve the order on the respondents
personally. This he did on
20, twice on 21, 24 and 25 February 2020
and on 9 March and 10 March 2020.
[13]
On 21 February 2020, the security guard at
the property informed the Sheriff that the first respondent’s
father had passed
away and that the latter was in Kwa-Zulu Natal.
The first respondent also contacted the Sheriff and informed
him that he
would be returning to Johannesburg on 2 March 2020.
He forwarded his father’s death certificate to the Sheriff. The
first respondent subsequently informed the Sheriff that he would be
returning to Johannesburg only on 9 March 2020 and that he
will
contact the Sheriff on his return.
[14]
The applicants’ attorneys on 24
February 2020 and on 4 March 2020 served the order by email on the
attorney representing the
respondents.
[15]
The Sheriff attempted again to serve the
order on 9 and 10 March 2020 but was unsuccessful. The Sheriff says
that the respondents
were home but refused to open the gate for him.
On 10 March 2020 Mr Azar informed the applicants’ attorneys
that he had not
received the order timeously. This is disputed by the
applicants’ attorney, Ms van der Merwe, in her compliance
affidavit.
[16]
The Sheriff eventually served the order on
11 March 2020 by affixing it to the principal door at the
respondents’ place of
residence. The Sheriff says in his return
that after a diligent search and enquiry no other manner of service
was possible at the
given address. The applicants’ attorney
says that the respondents are attempting to evade service in an
effort to stave off
an eviction order for as long as possible and
that their conduct is obstructive and disingenuous and interferes
with the proper
functioning of the court. I agree with her.
[17]
As stated in
Moela
supra
,
the object of section 4(2) is to ensure that the unlawful occupier
and municipality are fully aware of the proceedings, and the
unlawful
occupier is aware of his rights referred to in section 4(5) (d).
I have no doubt that the respondents were informed
about the eviction
proceedings and were made aware of their rights under section 4(5)
(d). Their attorney was informed twice about
these proceedings. It
was his duty as their legal representative to bring the order to
their attention.
[18]
Also, the first respondent was aware that
the Sheriff was attempting to serve the order on him. He called the
Sheriff to let him
know that he was in Kwa-Zulu Natal attending his
father’s funeral and that he will be back in Johannesburg on 2
March 2020.
He knew the reason why the Sheriff was looking for him.
He called again to let the Sheriff know that he will be coming back
only
on 9 March 2020. The sheriff did what he is allowed under the
Rules, he affixed the order to the principal door.
[19]
I am satisfied that the proceedings were
brought to the attention of the respondents as early as 24 February
2020 and 4 March 2020
(through service on their attorney) and that
they were made aware of their rights under the PIE Act. There
is thus no merit
in the assertion that there was no compliance with
section 4(2) of the PIE Act.
[20]
Section 4(7) provides that 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 , whether land has been made available or can reasonably be
made
available by a municipality or other organ of state or another
landowner for the relocation for the unlawful occupier, and including
the rights and needs of the elderly, children, disabled persons and
households headed by women.
[21]
Under section 4(8), if the court is
satisfied that all the requirements of the 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.
[22]
Section 4(9) provides that 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.
[23]
The Trust became the owner of the property
on 1 September 2010, presumably it was from this date that the
respondents and their
children acquired the right to occupy the
property. The property is located in the middle to upper income
suburb of Hyde Park on
two stands. It is a large three story
residential. The market value of the property is estimated to be
R13.5m and it has a forced
sale value of R8.7m. The respondents
reside on the property and their children attend school in the area.
[24]
The respondents are unlawfully occupying
the property and have been since 31 December 2018. They do not pay
rental for the occupation,
nor do they pay the municipality rates and
taxes. As at the date of the replying affidavit, 19 September 2019,
there was an outstanding
amount of R678, 603.68 owed in respect of
portion 1, and R426, 867.00 in respect of portion 2 of the property.
The applicants
are also deprived of monthly rental of between
R80 000 and R120 000. Their agents are unable to market the property
whilst the
respondents are in occupation of and control access to the
property. This is untenable.
[25]
I have taken note of the circumstances of
the respondents, including the fact that they are minor children who
go to school in the
local area. I am also satisfied that there
is no valid defence raised by the respondents. In my view it would be
just and
equitable to afford the respondents no more that thirty (30)
calendar days to secure alternative accommodation.
[26]
I accordingly make the following order:
(1)
The first and second respondents are
ejected and evicted from the immovable property described as Portions
1 and 2, Erf […]
Hyde Park Township, Registration Division IR
in extent 1457 and 1336 square metres held by Deed of Title
T60331/2010, corresponding
to […] Road, Hyde Park, Sandton.
(2)
The first and second respondents and all
persons claiming occupation through or under them are hereby ordered
to vacate the property
by 20 April 2020.
(3)
The Sheriff of this court is hereby
authorised to eject and evict the first and second respondents (and
all persons claiming through
or under them) from the immovable
property on 30 April 2020, in the event that the first and second
respondents (and all persons
claiming through or under them) have not
vacated the immovable property on the date referred to above.
(4)
The first and second respondents are
ordered jointly and severally to pay the costs of this application.
__________________________
BL MAKOLA
ACTING JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION
DATE
OF HEARING:
17 March 2020
DATE
OF JUDGMENT
20 March 2020
Counsel
for the applicants:
Adv JE Smit
Counsel
for the second respondent:
Mr Fehler (attorney)