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[2021] ZAKZDHC 25
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Singh v Maharaj and Another (D4121/2020) [2021] ZAKZDHC 25 (18 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: D4121/2020
In
the matter between:
AVISHA
SINGH APPLICANT
and
VISHAL SURRENDRA
MAHARAJ FIRST
RESPONDENT
ETHEKWINI
MUNICIPALITY SECOND
RESPONDENT
ORDER
(a) The
first respondent and all persons occupying under his authority, be
and are hereby ordered to vacate the
property situated at Unit […],
[…], […], […], Umhlanga, Durban by not later
than 31 October 2021, and
to deliver the keys to the premises to the
applicant or her appointed agent;
(b) That
in the event of the first respondent and all persons occupying under
his authority failing to comply with
the order in paragraph (a)
above, the Sheriff is hereby authorised and directed to eject the
first respondent and all those occupying
under his authority from the
property and to take all steps as may be necessary to give effect to
the order in paragraph (a); and
(c) The
first respondent is directed to pay the costs of this application.
JUDGMENT
CHETTY
J
[1] This
is an application for the eviction of the first respondent and his
family from their primary residence,
being a property of which the
applicant is the registered owner. The second respondent takes no
part in these proceedings and is
cited as a formality in terms of the
Prevention of Illegal Evictions from and Unlawful Occupation of Land
Act 19 of 1998 (PIE).
Where reference is made to the ‘respondent’
in this judgment, such reference for convenience is intended to refer
solely
to the first respondent.
[2] It
is not in dispute that the applicant concluded a purchase and sale
agreement on 2 July 2018 with the respondent
in terms of which the
applicant agreed to pay the sum of R2,5 million as a purchase price
for the property, the amount being payable
on registration of
transfer. The agreement further provided that vacant possession and
occupation would be given by the respondent
to the applicant on the
occupation date, which, on the most generous interpretation of the
agreement would be on the date of registration
of transfer. The
registration of transfer was concluded on 21 January 2019. It bears
noting that on the same date a print out of
the respondent’s
home loan account with Standard Bank reflects an electronic funds
transfer (EFT) into the account in an
amount in excess of R2,3
million. This would be consistent with the terms of the written
agreement of sale of the immovable property
concluded by the parties.
[3] Notwithstanding
the transfer of the property having taken place on 21 January 2019,
the respondent continues
to remain in occupation of the premises,
without any authority or agreement with the applicant and without
paying anything towards
the occupation of the premises or any of the
utilities relating to the property.
[4] On
29 July 2019, the applicant engaged the services of an attorney who
addressed a letter to the respondent
demanding that the latter vacant
the immovable property by 31 August 2019. It is evident from the
notice that subsequent to transfer
taking place, the respondent
attempted to repurchase the property from the applicant. Those
negotiations broke down as the parties
appear to have been unable to
reach an agreement on the price. The applicant recorded that she no
longer wished to sell the property
to the respondent.
[5] The
applicant contends that she meets all of the requirements in terms of
PIE to seek the eviction of the respondent
as she is the registered
and lawful owner of the property. The respondent, it is contended,
occupies the property unlawfully without
any agreement or the consent
of the applicant. Despite demand, he refuses to vacate. As a result,
the applicant was obliged to
institute proceedings for his eviction
and all those who occupy by or through him.
[6] Mr
Khan
SC, who appeared on behalf of the respondent, conceded at
the outset that it was not in dispute that the applicant is the
registered
owner of the property. The respondent’s contention
is that the agreement of sale through which the applicant acquired
ownership,
was a fictitious agreement. It is contended that in
reality the conveyancing attorney acting on behalf of the applicant,
Mr Sahadaw,
together with the applicant’s husband, Mr Singh,
loaned an amount of approximately R5 million to the respondent. In
exchange,
the respondent was compelled to put up his immovable
property as security for the loan. The respondent agreed to the sale
and transfer
of the property into the name of the applicant, whom it
is alleged was merely a nominee for her husband and Sahadaw.
[7] According
to the respondent, an agreement was concluded with the applicant, her
husband and her attorney that
the property would be repurchased by
the respondent when his financial predicament improved. As there was
no breach of the loan
agreement between the parties, the respondent
contends that any application for his ejectment is premature. I
should point out
that there is nothing on record to indicate the
further terms of the loan, the date or the manner in which it was
advanced to the
respondent and any proof of the amount of R5 million
being paid to him. As stated earlier, the only reference to a
transaction
commensurate with the written agreement between the
parties is that for the amount of approximately R2,3 million paid on
registration
of transfer.
[8] The
second leg of opposition is that there exists a dispute of fact on
the papers, necessitating that the mater
be referred to oral
evidence. Lastly, and closely aligned to the first ground of
opposition, it is contended that the contract
for the purposed sale
of the property constitutes an illegal contract as it was essentially
a fiction, masquerading the true nature
of the loan agreement between
the parties. Relying on the principle
ex turpi causa non oritur
actio
it is contended that the contract is unenforceable and
consequently the relief of eviction which the applicant is seeking,
is tainted
by the illegality of the sale agreement.
[9] In
his answering affidavit, the respondent asserts that the applicant is
not ‘the true owner of the property’
and proceeded to
explain in some detail how the property came to be registered in her
name. The respondent is a clinical technologist
having, on his
version, achieved significant success in the field of his expertise,
until falling ill and suffering from depression.
This had a
significant impact on his business operations and his finances, as a
result of which he fell into difficulties resulting
in his bond
account falling into arrears. In order to prevent the foreclosure on
his bond, through his sister who is an attorney,
he approached the
applicant’s attorney, Mr Sahadaw, to loan him an amount of
approximately R5 million. At the time of the
sale of the property,
the respondent owed Standard Bank, the mortgagor, approximately R3,4
million. Pursuant to negotiations conducted
by Mr Sahadaw, the bank
agreed to accept a reduced offer of settlement on the outstanding
amount of approximately R2,3 million.
As referred to earlier, this
approximates to the amount paid into the bond account of the
respondent by the applicant on registration
of transfer.
[10] The
version of events set out by the respondent in his opposing affidavit
is largely consistent with the version
of the applicant, save for the
allegations of a sham purchase and sale agreement having been
concluded. It is not disputed that
the respondent’s sister was
party to the negotiations leading to the sale and transfer of
property. It seems to me highly
unusual that the respondent would
have entered into a sham sale agreement without any demur from his
sister.
[11] The
respondent further contends that after the registration of transfer
into the name of the applicant, it
was his intention to repurchase
his property from the applicant. This was largely dependent on the
respondent being successful
in the outcome of his litigation against
Discovery Life following the rejection of his claim for loss of
earnings subsequent to
the onset of an illness. At best, the
respondent believed that with the money he hoped to secure from the
successful litigation,
he would be able to repurchase his property,
which he contends was valued at far more than the amount for which
the applicant purchased
it. There is nothing unusual or sinister in
the applicant purchasing the property for less than its value as many
prospective purchasers
would be keen to snatch a bargain where an
owner falls on hard times. In the context of the version set out by
the respondent,
while there is a written purchase and sale agreement
of the property between he respondent to the applicant, there is no
written
agreement for the repurchase of the property by the
respondent. His averments in this regard stands without any proof. In
addition,
the respondent does not deny payment into his bond account
of approximately R2,3 million.
[12]
The
allegations of a sham agreement, involving the applicant, her husband
and her attorney, is vehemently denied by the applicant.
To the
extent that the respondent relies on a fraud having been perpetrated,
it is well established that where a party seeks to
rely on fraud as
its cause of action it must be properly pleaded and proved. In
Nedperm
Bank Ltd v Verbri Projects CC
1993
(3) SA 214
(W)
at 220B, although the court considered the matter in the context of a
summary judgement application, the court noted the following
:
‘
At the outset one
has to observe that it is trite that fraud is a most serious matter
and the type of allegation which is not lightly
made and which is not
easily established. What is important is that a factual basis must be
laid for an allegation of fraud, and
it is not sufficient,
particularly in an affidavit resisting summary judgment, merely to
put up speculative propositions or to
raise submissions or to advance
arguments on probabilities which might indicate a fraud. What is
essential is that there should
be hard facts, as it were, upon which
the Court can exercise the discretion which it is given in terms of
the Rule relating to
summary judgment.’
[13]
Where
allegations of fraud are contained in affidavit form, these
allegations are incapable of being properly assessed through the
tool
of cross-examination. As Harms DP noted in
National
Director of Public Prosecutions v Zuma and others
2009
(2) SA
277
(SCA)
para 26:
‘
Motion
proceedings, unless concerned with interim relief, are about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.’
In
addition, as the SCA pointed out in
Raubex
Construction (Pty) Ltd v Bryte Insurance Company Limited
[2019]
2 All SA 322
(SCA)
para 24:
‘
(F)raud will not
be readily inferred; particularly where it is sought to be
established in motion proceedings. A mere error, misunderstanding
or
oversight, however unreasonable, does not amount to fraud and it is
insufficient merely to show that contentions are incorrect.
A party
has to go through and show that the representor advanced the
contentions in bad faith, knowing them to be incorrect.’
[14]
To
the extent that that the respondent contends that there is a dispute
of fact on the papers and that the matter should be referred
to oral
evidence, Mr
Naidu
,
who appeared for the applicant, submitted that this was nothing more
than a delaying tactic intended to further deprive the applicant
of
her right to the use and enjoyment of her property, of which she
become the lawful owner in January 2019. Since then, the respondent
has frustrated her attempts to obtain possession while living rent
free in upmarket surroundings in a home valued at R5 million.
In
furtherance of his opposition, it was submitted by counsel that the
respondent has resorted to making vexatious and defamatory
allegations against the applicant’s attorney. The approach to
be adopted when factual disputes arise on the papers has been
set out
in
Wightman
t/a JW Constructions v Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
paras
12-13,
where Heher JA remarked as follows.
‘
[12] Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at634E – 635C…
[13] A real, genuine and
bona fide dispute of fact can exist only where the court is satisfied
that the party who purports to raise
the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.’
[15] I
am in agreement with the submissions by counsel for the applicant
that the contentions raised by the respondent
are nothing but an
attempt to delay the finalization of this matter to the continuing
prejudice of the applicant. As stated earlier,
the respondent
provides no ‘hard facts’ of the loan of R5 million
supposedly advanced through a scheme conjured between
Sahadaw and the
applicant’s husband. There is nothing before me of a binding,
written agreement to repurchase the property
or of any entitlement
for him to remain on the property after transfer had taken place.
[16] Counsel
for the respondent conceded that despite the respondent’s
contention that the sale agreement
was factitious and a sham, a
period of three years has elapsed since he signed the sale agreement
and almost two and half years
since the registration of the transfer
of the property was passed. In all that time, the respondent has
taken no steps towards
setting aside either the sale agreement or the
registration of transfer. It is also evident that while he alleges a
factitious
sale, he has made no attempt to tender return of the
amount paid into his bond account together with an action to set
aside the
sale. Applying the principals from
Oudekraal Estates
(Pty) Ltd v City of Cape Town & others
2004 (6) SA 222
(SCA),
the registration of transfer of the property into the name of the
applicant accords her the status of lawful owner. That
position
remains legally effective and intact until properly set aside by a
court. On that basis alone, the registration of the
property into the
name of the applicant remains unimpeached. The applicant, as the
lawful owner, has the necessary locus to assert
her right of
possession in respect of the property and to demand the eviction of
the respondent and anyone holding through him.
[17] Added
to the above, the respondent has failed to take any steps to report
the conduct of the applicant’s
attorney to the professional
regulatory body over the latter’s alleged unprofessional
conduct in coercing the respondent
to enter into a sham sale
agreement. Mr
Khan
attributed the lack of action against the
applicant’s attorney to the close friendship that existed
between the parties. I
am not persuaded by this explanation,
particularly as the applicant had set herself on course to evict the
respondent as early
as July 2019. Despite the passing of two years,
the respondent has not taken any action against Mr Sahadaw. I am in
agreement that
these allegations are nothing more than an attempt to
muddy the waters and a distraction from the failure of the respondent
to
vacate the property.
[18] For
all of the above reasons, I am satisfied that there is no genuine
dispute of fact on the papers and that
the purported defences put up
by the respondent are nothing but an attempt at delaying the
inevitable. In
Wormald NO and others v Kambule
2006 (3) SA 562
(SCA) para 11, Maya AJA held that ‘[a]n owner is in law
entitled to possession of his or her property and to an ejectment
order against a person who unlawfully occupies the property except if
that right is limited by the Constitution, another statute,
a
contract, or any legal basis’.
[19] I
am accordingly satisfied that there is no merit in any of the
defences raised by the respondent to the application
for eviction and
that the applicant has satisfied the onus of establishing that the
respondent is an ‘unlawful occupier’
as defined in PIE.
He occupies the property without the necessary express or tacit
consent of the applicant.
[20] As
the applicant’s property is residential in nature with the
respondent residing on it for a number
of years, the provisions s
4(7) of PIE govern any eviction proceedings against the respondent.
This sections 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 land owner for the relocation of the unlawful occupier, and
including the rights and needs of
the elderly, children, disabled
persons and households headed by women.’
[21] The
Act therefore limits the right of an owner to vindicate her property
in these circumstances. In
City of Johannesburg v Changing Tides
74 (Pty) Ltd and others
2012 (6) SA 294
(SCA) para 25, Wallis JA
held that the provisions of this section trigger a two-stage enquiry:
‘
A court hearing an
application for eviction at the instance of a private person or body,
owing no obligations to provide housing
or achieve a gradual
realisation of the right of access to housing in terms of s 26(1) of
the Constitution, is faced with two separate
enquiries. First it must
decide whether it is just and equitable to grant an eviction order
having regard to all relevant factors.
Under s 4(7) those factors
include the availability of alternative land or accommodation. The
weight to be attached to that factor
must be assessed in the light of
the property owner’s protected rights under s 25 of the
Constitution, and on the footing
that a limitation of those rights in
favour of the occupiers will ordinarily be limited in duration. Once
the court decides that
there is no defence to the claim for eviction
and that it would be just and equitable to grant an eviction order,
it is obliged
to grant the order. Before doing so, however, it must
consider what justice and equity demand in relation to the date of
implementation
of that order and it must consider what conditions
must be attached to that order. In that second enquiry it must
consider the
impact of an eviction order on the occupiers and whether
they may be rendered homeless thereby or need emergency assistance to
relocate elsewhere. The order that it grants as a result of these two
discrete enquiries is a single order. Accordingly, it cannot
be
granted until both enquiries had been undertaken and the conclusion
reached that the grant of an eviction order, effective from
a
specified date, is just and equitable. Nor can the enquiry be
concluded until the court is satisfied that it is in possession
of
all the information necessary to make both findings based on justice
and equity.’
[22] In
Ndlovu v Ngcobo; Bekker and another v Jika
2003 (1) SA 113
(SCA) para 19, the SCA in considering what constituted relevant
circumstances, said the following: ‘Unless the occupier opposes
and discloses circumstances relevant to the eviction order, the
owner, in principle, will be entitled to an order for eviction.
Relevant circumstances are nearly without fail facts within the
exclusive knowledge of the occupier and it cannot be expected of
an
owner to negative in advance facts not known to him and not in issue
between the parties.’
[23] Mr
Naidu
submitted that the respondent is or was a successful
businessman. There is nothing on the papers to suggest that he would
be left
homeless if he were to be evicted. His sister is an attorney,
someone whom the respondent could turn to, to assist him in finding
alternative accommodation. Although his medical practice has been
liquidated and he has fallen on hard times, he is still pursuing
a
claim of approximately R100 million against Discovery Limited arising
from the insurer’s failure to pay out on a policy
arising from
the respondent’s illness. Should he eventually succeed in his
claim, he would have no difficulty in securing
suitable
accommodation. In any event, he has long een aware of the applicant’s
intention to seek his eviction and has had
ample opportunity to find
alternative accommodation.
[24] In
accordance with the enquiry to be undertaken by the court in terms of
ss 4(8) and (9) of PIE, Mr
Naidu
suggested that a date of 31
October 2021 would be sufficiently adequate to enable the applicant
to find suitable, alternative accommodation.
There was no suggestion
from Mr
Khan
that this date was too soon or for some other
reason it would not be considered to be just and equitable.
[25] Lastly,
counsel for the respondent contended that there had been non-
compliance with s 4(2) of PIE as the
notice in terms of that section
had been served less than 14 days before the hearing of the
application. It is correct that the
notice was served on the
respondent’s attorneys one day less than the period prescribed
in the Act. There is no prejudice
to the respondent as he had already
filed his opposing papers in the matter as far back as August 2020. I
am satisfied that no
prejudice or hardship has been occasioned to the
respondent and such non-compliance is condoned.
[26] In
the result I grant the following order:
(a) The
first respondent and all persons occupying under his authority, be
and are hereby ordered to vacate the
property situated at Unit […],
[…], […], […], Umhlanga, Durban by not later
than 31 October 2021, and
to deliver the keys to the premises to the
applicant or her appointed agent;
(b) That
in the event of the first respondent and all persons occupying under
his authority failing to comply with
the order in paragraph (a)
above, the Sheriff is d hereby authorise and directed to eject the
first respondent and all those occupying
under his authority from the
property and to take all steps as may be necessary to give effect to
the order in paragraph (a); and
(c) The
first respondent is directed to pay the costs of this application.
M R Chetty
Appearances
For
the applicant: Mr
R Naidoo
Instructed
by: Vishal
Junkeepersad
& co.inc
Suite
304, African Palm
9
Palm Boulevard
Umhlanga
Email:
vishalsj@sai.co.za
c/o Messenger
King
Suite
801,8th Floor
Esplanade
Garage
Durban
For
the respondent: Mr M S Khan
SC
Instructed
by: Ashika
Maharaj &
associates Attorneys
First
respondent’s attorneys
103
Smiso Nkwanyana Road
Morningside
Email
info@amaattorneys.co.za
Ref: AMAM91/19
Date
reserved: 3
August 2021
Date
of delivery: 18
August 2021