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[2011] ZAECPEHC 32
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Transnet Ltd v Andrews and Others (2509/10) [2011] ZAECPEHC 32 (29 July 2011)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE – PORT ELIZABETH)
Case No: 2509/10
Date Heard: 8/06/11
Date Delivered: 29/07/11
In the matter between
TRANSNET LIMITED
….......................................................
Applicant
and
MR ANDREWS
…......................................................
First
Respondent
BERNADETTE ANDREWS
…..................................
Second
Respondent
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY
….........................
Third
Respondent
JUDGMENT
REVELAS J
[1] The applicant seeks to evict the
first and second respondents from their home, a property at 10
Horatio Street, Booysenville,
Port Elizabeth (“the property”).
The property is also described as erf 1332, Bloemendal, in the
records of the Deed
Office in Cape Town. The property is currently
registered in the name of the applicant, according to a Deeds Office
Search conducted
by Mr CH Dreyer (a conveyare) of the applicant’s
attorney’s of record. The conveyer’s certificate is dated
16
August 2010. This information was also confirmed in a report of a
‘Windeed’ search conducted on 25 January 2011 in the
Cape
Town Deeds Office.
[2] The first and second
respondents, Mr and Mrs Andrews to whom I shall refer to collectively
as “the respondents”,
maintain that they had purchased
the property in 2004 and they are its owners. They allege that it was
a vacant site used as a
rubbish dump when he purchased it for R13
500.00 when it from Nico Real Estate, and they cleared the property
from all rubbish
and then built a house upon it. Attached to their
answering papers, was a copy of a written agreement of sale,
purportedly between
the second respondent under her maiden name,
(Dennis) and someone, probably the estate agency, representing a Mr
DF Smith. The
agreement comprises an offer and acceptance to sell the
property in question for R13 500.00, and is printed on a letter head
bearing
the estate agency’s name, Nico Real Estate. The
acceptance was signed on April 2004. The respondents also attached a
copy
of a receipt from the same estate agent, for the aforesaid
amount made out to Ms B Dennis (the second respondent) as proof that
they indeed purchased the property from the estate agent and (not Mr
DF Smith).
[3] The Mohamed couple fell in
arrears with the bond repayments and the applicants issued summons
against them in December 2008.
When an attempt was made to serve the
summons on the Mohameds, the applicant became aware for the first
time that the respondents
were in occupation of the house.
[4] The applicant then obtained a
judgment for the perfection of the bond in the magistrate’s
court, against the Mohameds
and proceeded with the subsequent sale in
execution in February 2010. The applicant then purchased the property
at a nominal amount
of R10.00. On 18 June 2010 the property was
registered in the name of the applicant. In order to obtain transfer,
the applicant
was obliged to pay all the arrear rates and taxes on
the property. As at January 2010, the outstanding balance was R40
001.11 which
the applicant paid in full. Though the account reflected
that the second respondent became responsible for the account after
the
Mohameds, account remained unpaid for two years.
[5] However, it is quite clear from
all the documentation in this application, that the property was
never transferred to the respondents
or registered in their names.
The documentation (Windeed report) supports the applicant’s
version, that a bond was registered
over the property for an amount
of R51 000.00 in favour of the applicant, when it was transferred
from a Mr and Mrs Menders to
Mr and Mrs Mohamed in 1992. The
respondents never owned the property. The respondents provided
documentation, ostensibly from the
third respondent’s
Electrical Engineer’s Department, reflecting that the property
was vacant as the dwelling on it
had burnt down and was demolished
during 1999.
[6] When the applicants first became
aware of the respondents on the property in December 2008, the
property was still owned by
the Mohameds. It is also quite clear that
if the respondents believed that they had legitimately bought the
property from Nico
Real Estate for R13 500.00, they were completely
misguided. They have no legal right to occupy the property. On the
other hand
it seems, somewhat unfair at first blush, that the
applicant, who was able to buy the property for a paltry nominal
price of R10.00,
should be in a position to evict the respondents and
their children from their home, which they built (or renovated from a
burnt
out dwelling) on property they had paid money for. Their
reluctance to move from the house is understandable. However, the
matter
is not that simple. The following important events took place
since it came to the applicant’s attention that the respondents
were occupying the house.
[7] During 2009, the applicant did
not take any legal steps against the respondents, only against the
Mohameds. When it obtained
the judgment referred to above in the
Magisrate’s Court, Port Elizabeth, the property was declared
executable. The sale in
execution during which the property would be
sold, was set down for 18 February 2010. The respondents were
notified thereof, and
they instructed attorneys Schoonraad, Delport &
van der Merwe Inc, who wrote to the applicant’s attorneys with
a request
that the sale be held in abeyance, to enable the
respondents to approach the Mohameds (in whose name the property
still was) in
an attempt to come to an agreement with them, to take
over their bond obligations towards the applicant, and have the
property
transferred to them.
[8] The applicant, through its
attorneys, pointed out that it could not engage in any meaningful
negotiations with parties who were
not the registered owners of the
property, but it suggested that the respondents attend the sale
scheduled for 18 February 2010
to acquire the property through
legitimate means.
[9] The sale proceeded as planned
but, according to the applicant, the respondents disrupted the
auction to such an extent, threatening
to vandalize the structure on
the property up for sale that the buyers who bought the property for
R78 000.00 declared a dispute,
and the property was re-auctioned
the following day on which the applicant then bought the property
(bonded in its favour), for
a mere R10.00.
[10] The applicant was, then in a
stronger position to negotiate with the respondents. In the process
of becoming the registered
owner of the property, it could invite the
respondents to submit an acceptable offer to purchase the property.
Such an offer was
made through the applicant’s attorneys on the
day of the auction (19 February 2010).
[11] In the interim, the applicant
had settled the arrear rates and taxes for two years in respect of
the property in excess of
the amount of R41 100.11. This debt
was solely for the respondents’ responsibility but was paid by
the applicant. The
applicant also informed the respondents on 15
March 2010 of its intention to sell the property on the open market
if the respondents
did not make an offer to purchase the property.
The respondents sought another indulgence for a period of three
months to enable
them to seek the necessary finance to purchase the
property. Through their attorneys, the respondents indicated their
willingness
to pay the applicant R750.00 per month as rental for
their occupation from 1 July 2010, pending the finalisation of
application
for financial assistance to buy the property. The
applicant was amenable to this arrangement but wished to formalize
it.
[12] Its attorneys then wrote a
letter indicating that the expected date for the transfer of the
property into its name was 18 June
2010 and forwarded (in the same
letter dated 3 June 2010) a written lease agreement which was to came
into operation on 1 July
2010, in terms whereof the respondents could
lease the property from the applicant. The respondents failed to sign
the agreement
and continued to occupy the property without paying
rental.
[13] On 27 August 2010 the applicant
served an application in terms of Section 4(2) of the Prevention of
Illegal Eviction from Unlawful
Occupation of Land Act 19 of 1998, as
amended, (‘the Act’) on the respondents giving notice of
its intention to evict
them from the property. The respondents were
duly notified that the application would be heard on 21 September
2010.
[14] The subsequent application to
evict them was set down for 19 October 2010, and served on the
respondents, who filed a notice
of opposition on 18 October 2010. On
19 October 2010 the parties agreed to postpone the matter to 27
January 2011. Thereafter the
application was postponed on two further
occasions and it was eventually argued before me on 9 June 2010.
[15] The applicant is the owner of
the property and the respondents are in illegal occupation. If the
procedural requirements of
the Act had been met, as they were in this
case then in terms of Sections 4(6) and 4(7) of the Act, an eviction
order would be
justified if in the circumstances of the matter, it is
just and equitable to do so. (See:
Ndlovu v Ngcoco; Bekker and
Another v Jika
2003(1) SA 113(SCA);
Jackpersad NO and Others v
Mitha and Others
2008(4) SA 522 at 528H-529B.
[16] In exercising the broad
judicial discretion I have in a matter such as this, the particular
circumstances, rather than generality
should inform my decision (See
Jackpersad
supra
, at 528I). The applicant’s interest in
this property which is of comparatively little value appears to be of
a commercial
nature. On the other hand, I bear in mind that the
property is the respondents’ home where they raise their
children.
[17] The respondents however, have
not put forward any information about their financial position and
how that might affect their
ability to find alternative
accommodation, and such details would fall in their own and exclusive
knowledge. Also of concern, is
the fact that the respondents did not
put forward any evidence regarding what happened to their transaction
after they had “purchased”
the property. They ought to
have realized that it was never transferred into their names and that
the substantial sum paid by them
afforded them no proprietary rights.
It is almost inconceivable that they did not take steps to ensure the
repayment of their R13 500.00
to the estate agent. An affidavit
from the agent in question could also have assisted in determining
this question.
[18] The absence of any details as
to the extent, nature and cost of the improvements or renovations
allegedly effected by the respondents
on the property, is
particularly unhelpful. The respondents started living on the
property five years after it became vacant and
while it was still the
property of Mr and Mrs Mohamed. The value of improvements, if any,
can safely be set off against the huge
municipal account referred to
above, which was their responsibility but was paid by the applicant.
An enrichment claim may lie
against the Mohameds, on whose property
the respondents lived rent-free for years.
[19] Also of significance is the
fact that the respondents were at one stage amenable to lease the
property, but later adopted the
stance that they would continue
occupying the property regardless of any other party’s
ownership and rights. They clearly
shunned all opportunities to
legitimately occupy the property.
[20] The fact that the respondents
considered purchasing the property if they were able to obtain
financial assistance, is an indication
that they could have perhaps
afforded cheaper, alternative accommodation. On the papers before me,
their own determination not
to make any form of financial
contribution towards their continued occupation of the property is
the only reason why the respondents
have not vacated the property
yet.
[21] In the circumstances I am
satisfied that the applicant is entitled to an eviction order and
there is no reason, given the nature
of their opposition, why the
respondents should not pay the costs of the application.
[22] I make the following order:
The First and Second Respondents
and such persons as might occupy the property, are hereby evicted
from the said property known
as Erf 1332 Bloemendal, which is
situated at 10 Horatio Street, Booysen Park, Bloemendal, Port
Elizabeth.
All moveables and furniture
belonging to the respondents and/or such persons who occupy the
aforesaid premises through them shall
be removed from the said
premises.
The eviction of the respondents and
persons aforesaid and removal of furniture and property, shall take
place no later than 12:00
on Thursday 29 September 2011, by which
time and date the respondents and any persons occupying the property
through them shall
vacate the property.
The Sheriff or his deputy, shall
carry out the eviction order as set out above with the assistance of
a locksmith, if necessary,
on the aforesaid date.
The respondents are ordered to pay
the costs of this application.
_________________
E REVELAS
Judge of the High Court
Counsel for the Applicant: Adv B
Pretorius
Port Elizabeth
Instructed by: Greyvensteins Inc
Port Elizabeth
Counsel for the Respondents: Adv
Vusani
Port Elizabeth
Instructed by: JF Stoffels Attorneys
Port Elizabeth
Date Heard: 8 June 2011
Date Delivered: 29 July 2011