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[2024] ZAFSHC 12
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Jacobs N.O v Nakedi and Others (4648/2023) [2024] ZAFSHC 12 (30 January 2024)
SAFLII
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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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4648/2023
In
the matter between:
WELCOME
NORMAN JACOBS N.O.
Applicant
(In
his capacity as Liquidator of
TWO
FINE COMMODITIES (PTY) LTD (in voluntary liquidation))
and
NATHANE
SOULMAN
NAKEDI
1
st
Respondent
(ID
NO: 9[….])
ANY
FURTHER UNLAWFUL OCCUPIERS OF
UNIT
23 THORA’S PLACE, VAN BLERK STREET
STERLING
SMALL HOLDINGS, DISTRICT
BLOEMFONTEIN,
PROVINCE FREE STATE
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
CORAM:
JP DAFFUE J
HEARD
ON:
25 JANUARY 2024
DELIVERED
ON:
30 JANUARY 2024
ORDER
1.
The first respondent as well as all persons occupying the property
known as Unit 23, Thora’s Place, Van Blerk Street, Sterling
Small Holdings, Bloemfontein (the property) through him, cited
as the
second respondent, are ordered to vacate the property on/or before 31
March 2024.
2.
The sheriff of the court or his lawful deputy is authorised
and
directed to take such steps as are necessary to evict first
respondent and/or all other occupants occupying the property
described
in paragraph 1 above through first respondent, should they
fail to vacate the property on/or before 31 March 2024.
3.
The first
respondent shall pay the costs of the application, including those
costs reserved on 30 November 2023 and the costs relating
to the
relief obtained in part A of the notice of motion.
JUDGMENT
Introduction
[1]
This application has been brought in terms of the Prevention of
Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998
(PIE). An order is sought to secure the eviction of a law student and
all others
holding occupation through him. The application is opposed
by the law student, cited as the first respondent in the application.
[2]
The eviction order is sought in respect of a luxurious residence,
being Unit
23 in the scheme known as Thora’s Place, Van Blerk
Street, Sterling Small Holdings, Bloemfontein (the property).
The
parties
[3]
The applicant, Welcome Norman Jacobs is the sole liquidator of Two
Fine Commodities
(Pty) Ltd (in voluntary liquidation) (herein later
referred to as the company in liquidation), he being appointed by the
Master
of the High Court, Pretoria on 6 June 2023. His appointment
and therefore his
locus standi
, is not in dispute.
[4]
The first respondent is Nathane Soulman Nakedi, a single male law
student at
the University of the Free State. He is 29 years old,
turning 30 on 21 March 2024, less than two months from now.
The
relief sought and the opposition thereto
[5]
The applicant seeks an order directing the first respondent and all
others holding
through him to vacate the property within 5 days from
the date of the court order, failing which the sheriff or his deputy
shall
be authorised and/or directed to take all steps necessary to
evict them. A costs order is also sought.
[6]
The application is opposed by the first respondent only. It is his
case that
shortly after his registration as a law student at the
University of the Free State in 2017, his late father who was the
sole shareholder
of the company in liquidation, granted him the use
and benefit of the property and as a result he took lawful occupation
thereof.
Furthermore, his lawful occupation was never at any stage
terminated and he therefore denies that he is an unlawful occupier as
defined in s 1 of PIE.
[7]
It is important to quote first respondent’s version as alleged
in paragraph
6 of the answering affidavit
verbatim
:
‘
I
wish to further state that the company had upon the death of my
father devolved to his deceased estate and for unknown reasons
voluntarily liquidated and the Executrix engaged in a process of
selling of the assets of the company which are mainly immovable
properties including the property being the subject matter of this
proceedings. The applicant has failed to lay a basis to sustain
his
capacity to institute the present application against myself.’
Factual
background
[8]
The company in liquidation is the registered owner of Unit 23 in the
scheme
known as Thora’s Place as is evident from deed of
transfer ST[…]. The floor area of the unit is measuring 173 m
2
and the property has been purchased by the aforesaid company on 21
February 2017 for R1 470 000.00.
[9]
The applicant’s appointment followed upon a special resolution
taken by
the company in liquidation to wind up the company as a
solvent company in accordance with the provisions of s 80 of the
Companies
Act. Consequently, the company’s status was changed
to voluntary liquidation on 26 May 2023. This is also not in dispute.
[10]
The COR40.1, an official document issued by the Companies and
Intellectual Property Commission
(CIPC) shows that Dimakatso Nakedi
was appointed as director of the company on 29 July 2019. As I
gathered, when perusing the papers,
that this lady was possibly the
executrix referred to by first respondent in his answering affidavit,
I questioned his counsel,
Mr Mohlanga in this regard. I was informed
from the bar that this lady is the stepmother of first respondent and
that she is also
the executrix in the estate of first respondent’s
late father. A further factual version was placed before me in the
first
respondent’s heads of argument as well as during oral
argument which I strictly speaking do not have to deal with. It is
first respondent’s case that his stepmother has been acting at
all times to his detriment notwithstanding the fact that he
as the
eldest son is an heir in the intestate estate of his deceased father.
More about this will be said later herein.
[11]
The applicant attached official documentation from the deeds office
to his founding affidavit,
indicating that as at 16 August 2023 the
company in liquidation was the registered owner of six immovable
properties, including
the property relevant in
casu
. The other
properties are a property bought in the tourist town, Clarens on 25
May 2016 for R620 000.00 and four other properties
in Phuthaditjhaba,
two of which were bought for R550 000.00 and R300 000.00
respectively.
The
applicant’s powers as liquidator
[12]
The applicant is duty-bound to wind up the company in accordance with
the Companies Act and more
particularly s 80 of Act 71 of 2008 read
with s 386(1) and chapter 14 of the previous Companies Act 61 of
1973. Section 80(1) provides
that a solvent company may be wound up
voluntarily if it has adopted a special resolution to do so, which
may provide for the winding-up
to be by the company, or its
creditors. Section 80(5) reads as follows:
‘
(5)
A liquidator appointed in a voluntary winding-up may exercise all
powers given by this Act, or a law contemplated in item 9
of Schedule
5, to a liquidator in a winding-up by the court-
(a)
without
requiring specific order or sanction of the court; and
(b)
subject
to any directions given by-
(i) the
shareholders of the company in a general meeting, in the case of a
winding-up by the company; or
(ii) the
creditors, in the case of a winding-up by creditors.’
The
liquidator’s powers do not have to be sanctioned by the court,
but these are subject to any directions given by the shareholders
of
the company in the case of voluntary winding-up by the company, or
creditors in the case of a voluntary winding-up by creditors.
[13]
Section 386 of the 1973 Companies Act provides for the powers of
liquidators. In terms of s 386(1)(e)
the liquidator shall have the
power, subject to the provisions of ss (3), (4) and (5), to take such
measures for the protection
and better administration of the affairs
and the property of the company as the trustee of an insolvent estate
would be entitled
to take. In terms of ss (3) the liquidator in a
members’ voluntary winding-up shall, with the authority granted
by a meeting
of members, have the power to
inter alia
sell
immovable property of the company by public auction, public tender or
private contract as provided for in ss (4). The same
principle
applies if it is a creditors’ voluntary winding-up in which
case the creditors must grant the authority. I mention
both scenarios
as it is not entirely clear from the certificate of the CIPC whether
this is a members’ or creditors’
winding-up.
The
requirements of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) and an evaluation
thereof
[14]
It is appropriate to remind ourselves of the rationale of PIE, the
protection of people to be
vacated from their homes. Section 26(3) of
the Constitution provides that no one may be evicted from their home
without an order
of court which may only be issued after considering
all relevant circumstances. PIE gives practical effect to this right
and regulates
the eviction of unlawful occupiers. Provided the
procedural requirements of PIE have been met, the owner or person in
charge of
a property is entitled to approach the court for eviction
of an unlawful occupant. Unless such unlawful occupier opposes the
application
and discloses relevant circumstances why they shall not
be evicted, an eviction order should follow.
[15]
A three-fold enquiry is called for. First, it should be determined
whether the occupier has an
extant right to occupy the property. If
that is the case, the application for eviction must be dismissed.
Second, if the occupier
does not have the right to occupy, it must be
determined whether it is just and equitable to evict. Third, once the
court is satisfied
that the occupier should be evicted, the terms and
conditions thereof should be determined.
[16]
The applicant applied for leave to serve the required notice in terms
of s 4(2) of PIE upon the
first and second respondents, informing
them of the intention to apply on 19 October 2023 for their eviction.
This order was granted
on 14 September 2023 and on 28 September 2023
the notice of motion, founding affidavit and all annexures thereto,
as well as the
notice in terms of s 4(2) and court order, were served
upon the occupier of the property, he being described by the sheriff
as
a ‘male who refused to give his name’.
[17]
On 19 October 2023, the day of the hearing, the first respondent’s
attorneys filed a notice
of intention to oppose. This caused the
application to be postponed to the opposed roll of 30 November 2023
with further orders
pertaining to service and filing of affidavits.
First respondent was ordered to pay the wasted costs occasioned by
the postponement.
[18]
The answering and replying affidavits of the parties were filed in
accordance with the court
order, but on 30 November 2023 the first
respondent’s attorneys did not appear. They did not show any
respect or courtesy
to either the court or their colleagues for the
applicant, but remained on record. The first respondent who appeared
in person
sought a postponement. The matter was postponed to the
opposed roll of 25 January 2024 whereupon it was allocated to me.
[19]
The first
respondent’s attorney who eventually drafted heads of argument,
Mr M Kekana of Maweza Nkogatsi Inc in Johannesburg,
did not serve and
file his heads of argument timeously. This was only done the morning
of the hearing. However, numerous facts
not forming part of the
record, were relied upon in these heads of argument. Respondent’s
counsel, Mr Mohlanga, also reiterated
these facts during his oral
argument, although Mr Steenkamp, applicant’s counsel, objected
vehemently. I allowed the argument
and references to facts not
pleaded which I would not have done in normal circumstances. In this
regard I took cognisance of what
was said by Nkabinde J in
Pitje
v Shibambo
[1]
,
a unanimous judgment of the Constitutional Court.
[20]
Although the first respondent’s version has to be accepted that
his late father granted
him the right to occupy the property on
behalf of his company, it is common cause that his father must have
died prior to 29 July
2019, the date when his wife and first
respondent’s stepmother was appointed as director of the
company. Even if she had
given tacit consent to first respondent to
occupy the property thereafter, such consent could have no further
effect upon appointment
of applicant as the liquidator of the
company. As mentioned, the first respondent’s only defence is
that he was once during
his late father’s life given the right
to occupy the property and that his lawful occupation was never
terminated. Bearing
in mind the death of his father and the ultimate
liquidation of the property owner, this in no defence at all.
[21]
Upon his appointment, the applicant took charge of the company as
liquidator and consequently
also of
inter alia
the property
applicable to this application. As such, he was entitled to sell the
property and to disregard any rights that the
first respondent or
others holding occupation through him might have had pertaining to
the property. Although the applicant has
not,
ex facie
the
application papers, demanded that first respondent and other possible
occupiers of the property vacate same, it is common cause
that he has
never granted express or tacit consent to first respondent to occupy
the property. As a matter of fact, he proceeded
in accordance with
his duties to sell the property to a purchaser for the amount of R910
000.00 in terms of a written contract
attached to the papers. It is
furthermore apparent from the papers that an amount of R98 354.04 is
due and payable to the Mangaung
Municipality for municipal rates and
taxes in arrears and R119 346.08 to National Real Estate for levies
in arrears.
[22]
I am satisfied that the first respondent and all others holding
occupation through him are unlawful
occupiers of the property. The
applicant has proven the first element of the three-fold enquiry
provided for in s 4 of PIE.
[23]
The second issue to be determined is whether it is just and equitable
that first respondent and
others be evicted from the property, and if
so, finally and thirdly the terms and conditions of such eviction
will have to be determined.
[24]
The first respondent is a 29-year-old single male person and
according to the application papers
a law student. He has been
staying for free in the property for the last seven years. He has not
been paying any municipal rates
and taxes and/or levies. The property
occupied by first respondent can be classified as a luxurious
property, bearing in mind the
purchase price thereof as well as the
floor area. I take judicial notice of the fact that the floor area of
a batchelor flat is
anything between 20 and 30 m
2
, an
average two-bedroom flat is anything between 60 and 80 m
2
and that the property
in casu
must be at least be a
three-bedroom, two-bathroom unit. Compare that to the thousands of
tiny four-room RDP houses across the country
cramped by large
families.
[25]
Although the municipality has filed a report indicating that it does
not have serviced and/or
unserviced sites readily available and that
first respondent must in any event first of all register to be placed
on a waiting
list whereafter due processes will be followed in order
to
inter alia
screen and verify him, this information cannot
stand in the way of evicting the respondent from the property.
[26]
The first respondent is the eldest son of his late father and I have
been informed from the bar
that the father has died intestate. The
effect hereof is that the first respondent will be entitled to
inherit from his father’s
estate. Bearing in mind the father’s
shareholding in the company, there is reasonable possibility that
first respondent stands
to inherit a substantial inheritance. His
complaints towards the executrix who fails to ensure that the
deceased estate is finalised
in order for inheritances to be paid out
cannot be a stumbling block preventing the eviction order. His
attorney and counsel also
submitted that a mediation process should
have been followed and that the voluntary liquidation and subsequent
sale of the property
without consultation with the heirs could have
been avoided. This dissatisfaction may be considered in a different
forum and various
options are available to first respondent as a
dissatisfied heir. This aspect cannot be accepted in order to prevent
eviction
in casu
. In fact, it is apparent that the first
respondent is a member of a wealthy family and that he will not be
homeless if the application
is granted.
[27]
The first respondent has failed to place further facts before the
court to enable me to establish
when he would be graduating, if that
has not already happened, and/or why it is not possible to earn an
income in order to provide
for his own housing, even in the form of a
bachelor flat. Surely, by now he should have been an LLB graduate.
The LLB course is
a four-year course and no reasons have been
advanced why the first respondent has not qualified by the end of
2020. No explanation
has been forthcoming to indicate why he cannot
obtain employment.
[28]
The applicant is duty-bound to wind up the company’s estate as
soon as possible and it
cannot be expected of him to delay the
carrying out of his duties to liquidate whatever assets there are.
[29]
It is apparent that the first respondent became aware of the
application for eviction on 28 September
2023. Furthermore, as
indicated by his counsel during oral argument, he became aware that
the property was put on the market insofar
as the auctioneers’
notice boards were erected in front of the property. It appears from
the deed of sale, forming part of
the documents that the property was
put up for public auction on 2 August 2023. Consequently, the first
respondent must have become
aware of the intention to sell the
property before that date. That provided him with sufficient
opportunity and time to obtain
alternative housing.
[30]
I am
satisfied that an eviction order may only be granted in terms of s
4(7) of PIE if it is just and equitable to do so and after
having
regard to all relevant circumstances. I am indeed so satisfied. As
mentioned in
City
of
Johannesburg
v Changing Tides 74 (Pty) Ltd and Others
[2]
the
court must grant an eviction order in terms of s 4(8) if the
requirements of s 4 have been satisfied and no valid defence to
the
eviction order has been raised. I quote from the judgment:
‘
[25]
…. A court hearing an application for eviction at the instance
of a private person or body, owing no obligations to
provide housing
or achieve the 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 that
order. Before doing so, however, it must consider what justice and
equity demands 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 have 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.’
[31]
It would be unjust and inequitable to order the first respondent and
others occupying through
him to vacate the property within a mere
five days of the date of this order as sought in the notice of
motion. In the exercise
of my discretion I am of the view that the
first respondent and those occupying through him, if at all, should
at least be granted
a period of two months in order to find
alternative occupation. My order will reflect this.
Consideration
of a punitive costs order: the lack of respect and courtesy
[32]
The first respondent is represented by Mr Kekana of Maweza Nkogatsi
Inc. of Johannesburg who
instructed Motaung Attorneys of Bloemfontein
as their local correspondents. The answering affidavit has been
prepared by these
legal practitioners and duly served and filed prior
to the hearing of the matter on 30 November 2023. On that day no
legal practitioner
appeared on behalf of the first respondent who
attended the hearing in person. No apology was ever tendered. The
attorneys’
attitude is deplorable. The first respondent sought
an indulgence which was granted and the matter was accordingly
postponed to
the opposed roll of 25 January 2024. Naidoo J, who
presided over the matter on 30 November 2023, was extremely
dissatisfied with
the manner in which the attorneys neglected their
client and issued a letter, directing them to explain why punitive
costs orders
should not be made against them. Unfortunately, the
order for postponement in terms whereof costs were reserved, did not
call upon
the attorneys to explain why they should not be penalised
with a punitive costs order. Notwithstanding, the directive of Naidoo
J, the attorneys did not respond at all. According to Mr Mohlanga, he
has been appointed as late as Monday night, 22 January 2024
with
partial instructions to appear on behalf of the first respondent. Mr
Kekana, the Johannesburg attorney, emailed heads of argument
prepared
by himself through to his counsel just before the hearing of the
application who then presented me in chambers with a
copy thereof.
Consequently, these heads of argument were not filed timeously in
accordance with the Practice Directives of this
division. No
explanation whatsoever has been advanced for the failure to comply
with these directives. Also, neither Mr Kekana,
nor his local
correspondent, attended the court proceedings. I seriously considered
postponing the matter in order to call upon
the attorneys to show
cause why they should not be penalised with an appropriate costs
order, but such action would merely have
delayed the issue further.
The first respondent elected to appoint Mr Kekana as his attorney and
he must live with it.
[33]
The successful applicant is entitled to his costs, including the
costs in order to obtain the
order in part A of the notice of motion
as well as the costs reserved on 30 November 2023. Such order shall
be issued.
[34]
Consequently, I make the following order:
1.
The first respondent as well as all persons occupying the property
known as Unit
23, Thora’s Place, Van Blerk Street, Sterling
Small Holdings, Bloemfontein (the property) through him, cited as the
second
respondent, are ordered to vacate the property on/or before 31
March 2024.
2.
The sheriff of the court or his lawful deputy is authorised and
directed to take
such steps as are necessary to evict first
respondent and/or all other occupants occupying the property
described in paragraph
1 above through first respondent, should they
fail to vacate the property on/or before 31 March 2024.
3.
The first respondent shall pay the costs of the application,
including those
costs reserved on 30 November 2023 and the costs
relating to the relief obtained in part A of the notice of motion.
_______________________
JP
DAFFUE J
On
behalf of the Applicant: Adv GC Steenkamp
Instructed
by: Matsepes Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv HD Mohlanga
Instructed
by: Maweza Nkogatsi Inc. Attorneys
c/o
Motaung Attorneys
BLOEMFONTEIN
[1]
2016 (4) BCLR 460
(CC) paras 15 – 21.
[2]
2012
(6) SA 294
(SCA) at para 25.