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[2016] ZAECPEHC 78
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Romanco 5 (Pty) Ltd v Zono (2267/2016) [2016] ZAECPEHC 78 (13 December 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 2267/2016
Date
Heard: 8 December 2016
Date
Delivered: 13 December 2016
In
the matter between:
ROMANCO
5 (PTY) LTD
Registration
No.:
2007/005134/07)
Applicant
and
NOMABANDLA
PATIENCE
ZONO
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The
applicant seeks the eviction of the respondent from the property
situated at Erf [....], Humewood, being [....] L. R., Humerail,
Port
Elizabeth. The application is opposed.
[2]
The
application was initially launched by the liquidators for Elizabeth’s
Developments (Pty) Ltd (Elizabeth’s) who were
at the time the
registered owner of the property. The liquidators sought the
eviction of one “Namhla” and all
persons occupying the
property through her. The liquidators intimated that they were
unaware of her further particulars and
they have been unable to
obtain clarity as to her further names. Upon receipt of the
papers the respondent entered an appearance
to defend. She does
not deny that she goes by the name of Namhla but recorded that her
true name was Nomabandla Patience
Zono. I accordingly granted
an application to amend the papers so as to cite the respondent as
Nomabandla Patience Zono.
[3]
The
liquidators sold the property to the applicant and were required to
give vacant occupation, hence the launching of the application.
In the interim transfer of the property occurred and the applicant
was accordingly substituted for the liquidators. The applicant
persists in the application.
[4]
At
the time of the launching of the application the deponent to the
founding affidavit, one De Jager, one of the liquidators, declared
that notwithstanding his researches he was unable to obtain any
information relating to the basis upon which the respondent took
occupation of the premises. One Dakin, on the instruction of
the liquidators, attended upon the property to explain to the
respondent the need for her to vacate the property in question.
The respondent advised Dakin that she had no intention of
vacating
the property and that she owned it. This, as an established
fact, is not true.
[5]
The
attorney on behalf of the liquidators in a letter demanded to her to
vacate the property. In the demand the attorney indicated
that
they held instructions to the effect that the respondent occupied the
premises in terms of an oral agreement of lease concluded
with
Elizabeth’s prior to its liquidation and that the lease was
terminable on one month’s notice. The said attorney
accordingly gave the respondent one calendar months’ notice of
termination of the agreement and to vacate the property.
This
letter prompted a response from the respondent supported by the
occupiers of certain other properties in the immediate vicinity
of
the property in issue. It recorded:
“
We would
like to respond in (
sic)
the
contents of the letters. This aforementioned case was
investigated by our Lawyers, 2010, 2013, and 2015 and all those
findings were filed for anything that will be relevant to the
findings.”
[6]
The
response proceeded to record that the respondent’s lawyers
would be responding to the letters of the said attorney by
the end of
April 2016. The undertaking was not honoured and no response
was every forthcoming.
[7]
The
provisions of section 4 of the Prevention of Illegal Occupation of
Land Act (PIE) were duly complied with. The respondent
entered
an appearance to defend and, after some delay, ultimately filed
answering papers. She explains in her answering papers
the
basis upon which she came to occupy the property. On 1 August
2007, she declares, she entered into an oral lease agreement
with a
certain Pauline Willart Agency to rent and occupy the house at [....]
L. R.. She paid monthly rentals of R2 800
directly into
the bank account of the said agent. Shortly after taking
occupation she noted certain household items which
had been left in
the house. In due course one Norval, who claimed to be the
registered owner of the property at the time,
came to collect the
goods. Norval advised that he was the owner of the property and
indicated to her that she could rent
the house for as long as she
wanted to and could become the owner of it, if she wanted to, in five
years.
[8]
After
taking occupation in 2007 the respondent states that she received
notice of certain unpaid municipal bills. She sought
then to
report this issue to the said Pauline Willart Agency, only to find
that Pauline Willart had disappeared and that her offices
were
closed. In these circumstances the respondent made arrangements
to pay the municipal bills.
[9]
In
due course Elizabeth’s became the owner of the property and the
respondent contends that she entered into an oral agreement
of lease
with Elizabeth’s with a change in the monthly rental. She
does not, however, allege that she ever paid the
rental to
Elizabeth’s. De Jager, who deposed to the founding
affidavit, states that he could find no evidence that
any rentals had
ever been paid to Elizabeth’s. The respondent accordingly
does not dispute that Elizabeth’s became
the lawful owners of
the property. She bewails however that she has occupied the
house for more than eight years and been
under the impression that
she will be given a right of first refusal to purchase the property
and she was not given such an opportunity.
It is not clear from
the affidavit where this perception arose from and it can only be
assumed to arise from the alleged oral statement
of Norval to which I
have referred earlier. There is no written agreement to this
effect and even if there was it could only
be enforced against
Norval.
[10]
The
respondent is a single woman living with two adult children, both of
whom are enrolled at tertiary institutions. She pleads
that the
court should find an alternative remedy to deal with the impasse in a
fair and reasonable manner.
[11]
At
the time of the filing of the answering affidavit transfer of the
property had already occurred. The said Dakin deposed
to the
replying affidavit on behalf of the applicant. It appears from
the replying affidavit that the property in question
had been
purchased by the applicant for R1,4 million as one of a number of
properties purchased in order to effect a housing development.
Considerable sums of money have already been spent in obtaining the
necessary zoning approvals and money had been borrowed from
Investec
Bank for purposes of the development in respect of which interest is
payable.
[12]
It
is common cause on the papers that the applicant is the rightful
owner of the property and the respondent has not set out any
facts
upon which she could hold any right to occupation. Initially
she advised Dakin that she owned the property. Of
this nothing
is said in her answering affidavit and it is clearly not true.
In her answer she contended that she occupied
in terms of an oral
agreement with Elizabeth’s. This agreement was duly cancelled
as set out earlier. After the replying
papers were filed and at
the eleventh hour a further affidavit was filed. Therein she
suggests laconically that she also
entered into a written agreement
through Sotheby International. This is new and contrary to her
earlier assertions.
She does not provide a copy of such an
agreement nor does she allege any of the terms of the alleged
agreement. She does
not say with whom the agreement was or when
it was concluded. She does not suggest that this agreement has
any application
at present. In my view this new allegation does
not advance the matter at all. On the undisputed facts she has
not
paid any rental to Elizabeth’s or to the applicant in
respect of her occupation.
[13]
She
protests that she is a single woman with two children and she states
that she has no alternative accommodation for herself or
her
children. The applicant does not, however, contend that she is
improvised and therefore unable to afford other accommodation.
She is in fact unhappy that she had not been granted the opportunity
to purchase the property which, it is established, was sold
for R1,4
million. During argument se disclosed that she is in fact a
medical practitioner. She has two adult children
currently
enrolled at tertiary institutions and the conclusion is inescapable
on the facts presented by the respondent that she
is a woman of some
means. There does not appear to be any impediment to her
obtaining alternative accommodation. Although
the notices in
terms of section 4 of PIE were duly served on the Nelson Mandela Bay
Municipality, the Municipality has not submitted
any report. By
virtue, inter alia, of the financial circumstances of the respondent
as appears from the papers I do not consider
however that the present
is a matter in which it is material whether or not the municipality
has made available or can reasonably
make available land for purposes
of the relocation of the respondent.
[14]
The
respondent requests that the court find an alternative remedy to deal
with the “impasse”. Whilst the respondent
does not
specifically refer to the provisions of PIE I can merely assume that
the respondent intended to rely on the provisions
of section 7 of
PIE. Section 7(1) of PIE provides for mediation in
circumstances where the municipality is not the owner
of the land in
issue. It authorises the municipality to appoint a mediator in
order to attempt to mediate and settle any
dispute in terms of the
Act. It does not appear to me that there is any material dispute
between the parties. The applicant
is the rightful owner of the
property and the respondent has no legal right to occupy. I do
not think that the provisions
of section 7 of PIE can find
application to the facts of the present matter.
[15]
In
terms of section 4(7) of PIE a court may grant an order for the
eviction if it is of the opinion that it is just and equitable
to do
so, after considering all the relevant circumstances. On a
consideration of all the circumstances set out above I consider
that
it is just and equitable to order the eviction of the respondent and
all persons occupying through her. It is, however,
undeniable
that respondent has no immediate accommodation at her disposal.
Ms
Rossi
,
who appeared on behalf of the applicant, fairly in my view,
acknowledged that. She requested an order that respondent
should
vacate the property by 31 January 2017. I agree that
such an order would afford sufficient time for respondent to find
alternative
accommodation.
[16]
In
the result I make the following order:
1.
The
respondent and all other persons occupying the premises at [....] L.
R., Humerail, Port Elizabeth, being situated at erf [....]
Humewood,
are to vacate those premises by the close of business on 31 January
2017.
2.
The
Sheriff is ordered and authorised to evict the respondent and all
other persons occupying the premises in the event that they
fail to
comply with the provisions of the order in para 1.
3.
The
respondent is to pay the costs of the application.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv T Rossi instructed by BLC Attorneys, Port Elizabeth
For
Respondent:
In person