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[2021] ZAGPJHC 365
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Tshabalala v Moletsane and Another (A3101/2019) [2021] ZAGPJHC 365 (2 June 2021)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No.: A3101/2019
Reportable:
No
Of
interest to other judges: No
DATE:
2/06/2021
In
the matter between:
KIEWIET
ELIAS TSHABALALA
Appellant
And
THABO
VICTOR MOLETSANE
First Respondent
EMFULENI
LOCAL MUNICIPALITY
Second Respondent
JUDGMENT
VAN
DER MERWE AJ:
INTRODUCTION
[1]
The appellant appeals against the judgment
and order handed down by magistrate N. Kamba on 8 October 2018,
dismissing the appellant’s
application to evict the first
respondent from the property situated at Erf [....], Sebokeng, Unit
13 also known as [....] Zone
13 Sebokeng. (“the property”)
[2]
The second respondent did not oppose the
proceedings.
RELEVANT
FACTS
[3]
The property was registered in the names of
the appellant and his wife on 22
nd
September 1999 as per title deed number [....], annexed as “KET1”
of the founding affidavit in support of the eviction
application.
“KET1” is a Certificate of Registered Grant of Leasehold
(the “leasehold”), granted to the
Appellant and his wife.
[4]
The appellant avers that he and his wife
had allowed the appellant’s niece (the daughter of his
brother), Mrs. Nkutha to occupy
the property. Neither he nor his wife
had any knowledge as to how the first respondent gained access to the
property and came to
occupy it. At the end of 2016 the appellant was
approached by his niece and the first respondent to hand over the
title deed of
the property, which he refused as he did not sell the
property to anyone.
[5]
There is no lease agreement between the
appellant and first respondent. The first respondent is
occupying the property and
he pays no rent to the appellant or anyone
else.
[6]
The Emfuleni Local Municipality rates and
taxes account dated 7 February 2018 is addressed to the appellant and
shows an outstanding
amount of R100 104.18 at the time. The
first respondent is not paying anything towards the account.
[7]
A letter of demand was sent to the first
respondent to vacate the property in February 2017, which demand is
attached to the founding
affidavit, indicating that despite numerous
requests the first respondent failed to vacate the property and
accordingly affording
the first respondent 30 days at the time to
vacate the property.
[8]
The first respondent denied all these
allegations and stated that he took occupation of the said property
in 2001 after he purchased
the property for R52 000 from the
appellant’s daughter and son-in-law, Mr. and Mrs. Nkutha (“the
Nkuthas”),
who in turn purchased the property from the
appellant and his wife. He paid the full purchase price to the
Nkuthas.
[9]
In this regard he relied on two separate
deeds of sale. The first deed of sale is dated 20 September 2000 from
which it appears
that the Appellant and his wife sold the property to
the Nkuthas for an amount of R22 000.00. The second deed of sale
is dated
24 July 2001 (10 months later) from which it appears that
the first respondent purchased the property from the Nkuthas for an
amount
of R52 000. In both deeds of sale Messrs Pienaar Swart &
Nkaiseng Incorporated (“PSN”) were authorized to attend
to the necessary registration.
[10]
The first respondent attaches no proof that
registration of the property was effected into his name or into the
names of the Nkuthas
at the time when he signed the deed of sale with
the Nkuthas (the second deed of sale). No explanation is given with
regards to
the instructions to PSN pertaining to the registration,
payment of transfer duty and the like.
[11]
The first respondent then states further
that he was under the
bona fide
belief
that he was the lawful owner and attended to several improvements to
the property. He changed the doors, painted inside and
outside, the
ceilings, the gates and the outside room.
[12]
At the time of signing his opposing
affidavit the first respondent reserved his right to file a valuation
report in support thereof
and it was submitted on his behalf by his
legal representative that he had a lien over the property based on
unjustified enrichment.
[13]
The first respondent stated in the opposing
affidavit that he lives on the property with his son who was 7 years
old at the time
as well as with an older child who was a student at
the time. He indicated that he had no alternative accommodation
because he
earned no income at that time, although he added in his
opposing affidavit that he is an educator at the Mbali Combined
Private
School, Orange Farm ext.1. According to the appellant the
first respondent can stay with family, apply for his own RDP house or
rent his own place.
[14]
Regarding the transaction between the
appellant, his wife and the Nkuthas (the first deed of sale), the
appellant replied under
oath that he never received the purchase
price from the Nkuthas and their transaction never realised.
[15]
The appellant furthermore denied knowledge
of the transaction between the first respondent and the Nkuthas (the
second deed of sale)
and denied that the Nkuthas had the authority to
sell his property.
[16]
The court
a
quo
dismissed the application for
eviction with costs, reasoning that the issue of ownership is in
dispute and that the court a quo
lacks jurisdiction to decide on the
issue of who the rightful owner is.
[17]
The magistrate was not satisfied that the
first respondent is an unlawful occupier for the following reasons:
a.
The first deed of sale between the Nkuthas
and the Appellant and his wife remains undisputed evidence before the
court
a quo
.
b.
The second deed of sale between the Nkuthas
and the first respondent also remains undisputed evidence before the
court a quo.
c.
Reliance is also placed on a supporting
affidavit of Mr. Nkutha in respect of the purchase of the property
from the appellant and
his wife in the court
a
quo
.
d.
Nowhere does it appear from the appellant
and his wife’s papers that the deed of sale as per “M5”
(the first deed
of sale) never existed or that it was not a valid
purchase of the property in question from the appellant and his wife.
THE
GROUNDS OF APPEAL
[18]
In the notice of appeal filed in the
magistrate’s court on 2 April 2019, the appeal turns on
the issues that the court
a quo
erred
in:
a.
Dismissing the application for the eviction
of the first respondent.
b.
Finding that the first respondent is not an
unlawful occupier of the immovable property.
c.
Finding that the first respondent had, on a
balance of probabilities, shown that he was a lawful occupier of the
immovable property.
d.
Failing to consider, properly or at all,
the argument by the appellant and his wife that the principles of
prescription apply to
the claim by the first respondent that he had a
legal right to ownership of the immovable property.
e.
Stating that the magistrate’s court
cannot decide on issues of ownership of immovable property, when such
ruling was never
expected or required from her.
f.
Finding that the sale agreements, alluded
to by the first respondent as “M4” and “M5”
[being the first and
second deeds of sale], was “undisputed
evidence” of the fact that he was not an unlawful occupier.
g.
Finding that the appellant and his wife
were not regarded as the registered owners of immovable property by
virtue of TL [....],
when this was never denied by the first
respondent.
h.
Accepting, without reservation, the first
respondent’s submission that he was under the
bona
fide
belief to be the lawful owner of
the property – even though it was shown that he has neglected
to
i) attend to registration
of transfer of ownership of the property into his name, or ii) ever
attended to payment of the municipal
accounts pertaining to the
property.
[19]
After receipt of the transcripts from the
court
a quo
on 8 August 2019, a notice of appeal was filed in this court on 16
September 2019 on the grounds that the court
a
quo
erred
in finding that:
a.
It is not a competent court to decide on
the issue of ownership
b.
It cannot make a determination as to the
validity of the sale agreement
c.
The first respondent is not an unlawful
occupant
d.
The first respondent had a valid defence to
the claim for eviction
e.
The claim for eviction should be dismissed
f.
The appellant should be paying the costs.
ISSUES
TO BE DECIDED ON THE DAY OF THE APPEAL
[20]
On the day of the appeal the appellant was
represented by Mr. Prinsloo employed by the Legal Aid Board and the
first respondent
appeared in person. At the commencement of the
hearing the first respondent applied for the matter to be postponed.
After discussion
with the parties it became clear that the issues to
be decided were:
a.
Whether the application for postponement
(“THE POSTPONEMENT APPLICATION”) should be granted
b.
Whether an application for condonation by
the Appellant regarding his failure to file his appeal within the
time periods provided
in terms of the Uniform Rules of Court (“THE
CONDONATION APPLICATION”) should be granted.
c.
Whether the appeal had any merits (“THE
MERITS OF THE APPEAL”).
THE
POSTPONEMENT APPLICATION
The
facts
The
submissions by the first respondent
[21]
The first respondent initially during
argument requested a postponement for a period of three months and
later that it be postponed
for six months, which he submitted would
grant him sufficient time to find employment, enabling him to afford
attorneys who could
represent him in the appeal.
[22]
The first respondent submitted that after
his attorneys of record had withdrawn, he, on 4 December 2019,
approached the offices
of the Legal Aid South Africa in Vereeniging
to assist in the matter. He initially submitted that they declined to
take on his
case on the basis that they are already representing the
Appellant. The first respondent then read the contents of a letter in
his possession from the Legal Aid office in Vereeniging, which states
that his application for legal aid failed because his case
lacked
merit. The writer of the letter also informed the first respondent
that should he be aggrieved by the decision to refuse
him legal
assistance with his case, he may appeal the decision, which appeal
should be raised with the National Office of Legal
Aid South Africa.
The court stood the matter down and asked the appellant’s
representative, Mr. Prinsloo, to enquire from
the National Office
regarding the status of the appeal. Upon resumption of the hearing Mr
Prinsloo informed the court that the
National Office reported to him
that there is no record of the first respondent’s appeal.
[23]
The first respondent submitted further that
he is trying to collect funds from his family members to assist him
with funding for
the litigation.
Submissions
on behalf of the appellant
[24]
The application for postponement by the
first respondent was opposed on two bases:
firstly
,
the prejudice the appellant would suffer should the matter pend for
another six months, bearing in mind that the first respondent
resides
on his property without compensating the appellant for the use
thereof and
secondly
,
the first respondent had sufficient time to obtain other legal
representation since his erstwhile attorneys withdrew, which was
on
or about 15 November 2019.
The
legal principles relating to postponements
[25]
In Erasmus, Superior Court Practice, Vol 2,
pp D1-552A, the following is said about postponements (footnotes
omitted):
“
The
legal principles applicable to an application for the grant of a
postponement by the court are as follows:
(a) The
court has a discretion as to whether an application for a
postponement should be granted or refused. Thus,
the court has a
discretion to refuse a postponement even when wasted costs are
tendered or even when the parties have agreed to
postpone the matter.
(b)
That discretion must be exercised in a judicial manner. It should not
be exercised capriciously or upon any
wrong principle, but for
substantial reasons. If it appears that a court has not exercised its
discretion judicially, or that it
has been influenced by wrong
principles or a misdirection on the facts, or that it has reached a
decision which could not reasonably
have been made by a court
properly directing itself to all the relevant facts and principles,
its decision granting or refusing
a postponement may be set aside on
appeal.
(c) An
applicant for a postponement seeks an indulgence. The applicant must
show good and strong reasons, i.e.
the applicant must furnish a full
and satisfactory explanation of the circumstances that give rise to
the application. A court
should be slow to refuse a postponement
where the true reason for a party’s non-preparedness has been
fully explained, where
his unreadiness to proceed is not due to
delaying tactics, and where justice demands that he should have
further time for the purpose
of presenting his case.
(d) An
application for a postponement must be made timeously, as soon as the
circumstances which might justify such
an application become known to
the applicant. If, however, fundamental fairness and justice justify
a postponement, the court may
in an appropriate case allow such an
application for postponement even if the application was not so
timeously made.
(e) An
application for postponement must always be bona fide and not used
simply as a tactical manoeuvre for the
purpose of obtaining an
advantage to which the applicant is not legitimately entitled.
(f)
Considerations of prejudice will ordinarily constitute the dominant
component of the total structure in terms
of which the discretion of
the court will be exercised; the court has to consider whether any
prejudice caused by a postponement
can fairly be compensated by an
appropriate order of costs or any other ancillary mechanism.
(g) The
balance of convenience or inconvenience to both parties should be
considered: the court should weigh the
prejudice which will be caused
to the respondent in such an application if the postponement is
granted against the prejudice which
will be caused to the applicant
if it is not
.
”
[26]
It is common cause that the first
respondent’s erstwhile attorneys McLoughlin Porter Incorporated
withdrew on or about 15
November 2019. The date of withdrawal is
after the notices of appeal were filed in the court
a
quo
(2 April 2019) and this court (16
September 2019) respectively. The first respondent had known since
November 2019, alternatively
by 4 December 2019 after he had applied
for legal aid, further alternatively by 27 January 2020 (more than a
year ago) when he
again applied for legal aid that he would in all
probability not be able to obtain legal assistance from Legal Aid
South Africa.
The first respondent submitted that he is trying to
collect funds from his family members to assist in funding the
litigation,
but was unable to proffer any explanation as to why he
was unable to make any progress in this regard for over a year.
[27]
The record reveals that in the court
a
quo
, the matter was postponed on three
occasions,
firstly
on 22 May 2018 to afford the first respondent an opportunity to
obtain legal representation,
secondly
on 12 June 2018 and
thirdly
on 16 July 2018, the reason being that the 1
st
Respondent had only placed his legal representatives in funds the
week before and delivery of the opposing affidavit was accordingly
only effected on the morning of the hearing on 16 July 2018. The
appellant and his wife needed time to deliver a reply and the
first
respondent tendered costs. The matter was eventually heard on 20
August 2018.
[28]
In
Olerilwe
Daniel Koagile v PRASA
the following
was stated by Van der Linde J:
“
Generally,
if a bona fide reason is furnished for such a postponement and if the
defendant will not be unduly prejudiced by a postponement,
such an
application is granted, provided of course there is any point in the
postponement”
[1]
[29]
Taking into consideration the merits of the
appeal, if a postponement is allowed the Appellant will be severely
prejudiced, suffer
irreparable harm and it is not in the interests of
justice to grant a postponement.
[30]
The first respondent had not made out a
case for the postponement.
[31]
The application for postponement was
accordingly refused.
THE
CONDONATION APPLICATION
The
facts
[32]
The application for condonation was served
on the first respondent’s erstwhile attorneys on 18 September
2019. This was approximately
two months before the first respondent’s
attorneys of record had withdrawn. The application for condonation
was not opposed
at the time.
[33]
The first respondent opposed the
application for condonation on the day of the appeal stating that he
was not aware of such application.
Chronology
[34]
The appellant was formerly represented by
Lautenbach Attorneys when the application for eviction was heard in
the magistrate’s
court.
[35]
Shortly after judgment on 8 October 2018,
the Appellant approached Legal Aid South Africa for assistance
regarding the possibility
of an appeal against the judgment. He is
not sure why the file was only opened during February 2019.
[36]
Legal Aid office in Vereeniging opened a
file on 4 February 2019.
[37]
The attorney representing the appellant
received the file on 21 February 2019.
[38]
On 26 February 2019 he attended to the
Sebokeng Magistrate’s court and obtained copies of the court
file.
[39]
On 2 April 2019 a Notice of Appeal, dated
12 March 2019 was filed at the court
a
quo.
The magistrate filed her reasons
on the same day, stating that she had nothing further to add to her
written judgment dated 8 October
2018.
[40]
On 3 April 2019, the appellant’s
attorney requested a typed record of the proceedings, but only
received same on 8 August
2019 due to a backlog of cases awaiting
transcription.
[41]
On 16 September 2019 the appellant
delivered a notice of appeal and an application for condonation for
failure to file his appeal
within the time periods prescribed.
[42]
The application for a the date for the
hearing of the appeal, dated 31 January 2020 was served by the
sheriff on the first respondent
on 23 March 2020 and filed in this
court on 14 October 2020. On 8 March 2021 a date for the appeal was
allocated by the registrar.
[43]
The notice of set down of the appeal was
served on the first respondent on 31 March 2021.
[44]
On behalf of the appellant it is submitted
on the papers that the delay in bringing the appeal did not prejudice
the first respondent
as he all along continued to live on the
property. The first respondent confirmed that he is still residing at
the property.
[45]
As a result of the failure to prosecute the
appeal within the prescribed time periods, the appeal had
automatically lapsed in terms
of rule 50(1) of the Uniform Rules of
Court. However, the condonation application is essentially an
application for the appeal
to be reinstated.
The
law
[46]
In the matter of
Uitenhage
Transitional Local Council v South African Revenue Services
the
following was stated:
“
one
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out”
[2]
[47]
As a general rule a court, when considering
an application for condonation is required to have regard to the
following factors:
a.
The degree of non-compliance
b.
The explanation therefor
c.
The importance of the case
d.
the [respondent’s] interest in the
finality of the judgment sought to be appealed from
e.
the convenience of the court
f.
the
avoidance of unnecessary delay in the administration of justice
[3]
[48]
In considering the above factors and taking
into consideration that the affidavit in support of condonation is
somewhat sketchy,
it is nevertheless important to bear in mind that
the appellant’s prospects of success are very good. These are
discussed
below.
[49]
It is for this reason that the application
for condonation is granted and the appeal is reinstated.
THE
MERITS OF THE APPEAL
[50]
The appellant asks that the order made by
the court a quo on 8 October 2018 be set aside and that the first
respondent be evicted
from the property three months after the date
of the order of this court.
[51]
At the hearing of the appeal the first
respondent admitted that the title deed (being the leasehold)
relating to the property rests
with the appellant. He agreed that the
property was never transferred into his name.
Whether
the first respondent is an unlawful occupier
[52]
An application for eviction can be based on
contract or on the owner’s ownership. In order to succeed with
eviction, the owner
of the property has to allege and prove his
ownership and the fact that the said property is held by another
without his consent.
The owner of a property will produce a title
deed indicating that the property is registered in his name. The
occupier will on
the other hand have to prove that he has a valid
right to occupy the property.
[53]
The appellant and his wife are the lawful
holders of a leasehold.
[54]
There exists no agreement between the
appellant and the first respondent allowing the latter to occupy the
property.
[55]
Accordingly, the first respondent is an
unlawful occupier.
Whether
the first respondent has a valid defence
[56]
The first respondent laboured under a wrong
impression that he was the owner of the property and improved the
property as described
(changing the doors and painting inside,
outside, the ceilings, the gates and the outside room).
[57]
He claimed in the opposing affidavit dated
16 July 2018 that he has a lien over the property based on
unjustified enrichment and
reserved his right to file a valuation in
support thereof.
[58]
In the matter of
Guman
NO v Ansari and others
, the legal
principles around the dilatory defence of a lien were reiterated and
it was stated that among other things:
“
To
successfully raise the defence of a lien, the defendant must allege
and prove a lawful possession of the object”
[4]
[59]
The first respondent did not ever
have lawful possession of the property.
CONCLUSION
[60]
It is my finding that the first respondent
is an unlawful occupier.
[61]
In considering all the facts and
circumstances on the papers filed of record, it is just and equitable
to order the first respondent’s
eviction. Taking into
consideration that a minor child, now approximately ten years old
also resides at the property, it would
in my judgment be prudent and
fair to grant the first respondent approximately three months to
arrange his affairs and acquire
alternative accommodation.
ORDER
[62]
In the result the following order is made:
1.
The appeal is reinstated.
2.
The appeal succeeds.
3.
The decision of the court
a
quo
made on 8 October 2018 is set
aside.
4.
The first respondent and any person
occupying the property through him are to vacate the property
situated at Erf [....] Sebokeng
Unit 13, also known as [....] Zone 13
Sebokeng and remove their belongings by no later than 30 August 2021,
failing which the sheriff
is hereby authorized to carry out the
eviction.
5.
The first respondent is ordered to pay the
costs of the application in the court
a
quo
.
A.M.
VAN DER MERWE
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
I
AGREE
B.
VALLY
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
: 11 May 2021
DATE
OF JUDGMENT
: 2 June 2021
APPELLANT’S
ATTORNEY
: Mr. N.H. Prinsloo (Attorney)
Legal
Aid South Africa Vereeniging -
:
Local Office
FIRST
RESPONDENT
: In person
[1]
Unreported
judgment
Daniel
v PRASA (01663/14) [2019] ZAGPJHC 139 (19 May 2019)
[2]
2004(1)
SA 292 (SA) para 6
[3]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA) para 11 and the authorities cited
therein
[4]
Guman
NO v Ansari and others
(2011/2648)
[2001] ZAGPJHC 124 (23 September 2011) at para [15] and authorities
cited therein.