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[2024] ZAECMHC 5
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MEC for Department of Public Works & Infrastructure, Eastern Cape v Ngunuza and Others (1529/2020; 1789/2020; 2802/2020; 2794/2020; 1786/2020; 1779/2020) [2024] ZAECMHC 5 (23 January 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 1529/2020
CASE NO. 1789/2020
CASE NO. 2802/2020
CASE NO. 2794/2020
CASE NO. 1786/2020
CASE NO. 1779/2020
In
the matter between:
MEC
FOR DEPARTMENT OF PUBLIC WORKS
&
INFRASTRUCTURE, EASTERN CAPE
Applicant
and
NOLUTHANDO
NGUNUZA
1
st
Respondent
TEMBISA
TERRESA NTLOKO
2
nd
Respondent
NOZIPHO
TSHANDU
3
rd
Respondent
ZOLEKA
NANCY ERASMUS
4
th
Respondent
JACQUELINE
ADDISON
5
th
Respondent
BERNADETTE
HORSEFIELD
6
th
Respondent
KING
SABATA DALINDYEBO MUNICIPALITY
7
th
Respondent
JUDGMENT
JOLWANA J:
Introduction.
[1] The applicant
instituted separate eviction proceedings against the six
respondents. The applications were later consolidated
and
proceeded as one application under case No. 1529/2020. On the
date of the hearing of the consolidated applications counsel
for the
applicant placed on record that the sixth respondent has since left
the premises, and as such the applicant only seeks
an order of costs
against her. It was further placed on record that the
lis
between the applicant and the third, fourth and fifth respondents has
been resolved in that these respondents have agreed that
an order in
terms of the notice of motion may be granted against them. In
so doing they effectively withdrew their opposition
to the granting
of the eviction order against them. The eviction proceedings
therefore proceeded on an opposed basis only
in respect of the first
and second respondents.
Background.
[2] The applicant
instituted eviction proceedings against various individual
respondents all of whom had previously concluded lease
agreements for
their tenancy of the respective residential properties. All
such lease agreements expired some years ago after
which the
respondents continued being in occupation of the various properties
on a month to month basis on the same terms that
were agreed upon in
the lease. All the eviction applications were initially opposed
with opposition papers being filed and
in some cases, even heads of
argument being filed. However, as indicated hereinbefore, the
sixth respondent left the premises
at some point shortly before the
hearing of this matter. The third, fourth and fifth respondents
have agreed to the order
sought against them. I will therefore
not be dealing with the facts pertaining to these respondents.
It is only the
factual matrix relating to the first and second
respondents that deserves consideration and analysis in some detail.
The factual matrix in
respect of the first and second respondents.
The first respondent.
[3]
The property concerned in respect of Ms Ngunuza is erf 2[..]3,
Mthatha which is also known as No. […] A[…] Street,
Fortgale, Mthatha. This property appears to be still registered
in the name of the government of the former Republic of Transkei.
However, through a vesting process as provided for in Item 28(1) of
Schedule 6
[1]
of the
Constitution of the Republic of South Africa, 1996 which appears to
be still underway, the said property is now under the
care,
management and control of the provincial Department of Public Works
and Infrastructure, in the Eastern Cape (the department).
This
property is incorrectly reflected as erf 2[…]9, Mthatha in the
lease agreement in what appears to be a typographical
error.
The physical address is reflected as No.[…] A[…] Street
in the lease agreement. No issue arises
or has been raised
about the identity of the property concerned it being common cause
that Ms Ngunuza is being evicted from No.
[…] A[…]
Street, Fortgale, Mthatha.
[4] On 01 March 2015 the
department through its duly authorised official and Ms Ngunuza acting
personally entered into a written
lease agreement. The said
lease was for the residential tenancy of erf 2[…]3, Mthatha,
also referred to in the lease
agreement as No.[…] A[…]
Street, Fortgale, Mthatha. Some of the essential terms of the
said lease agreement
were briefly the following. The lease was
to run for a period of almost two years commencing on 01 March 2015
and would expire
on 31 January 2017. The property was to be
used as a residential dwelling by Ms Ngunuza and her immediate
family. For
the period of her tenancy Ms Ngunuza agreed to pay
a monthly rental of R7 700.00. The said rental would escalate
at the rate
of 10% on the first anniversary of the lease.
[5] On its expiry on 31
January 2017 the lease agreement was not renewed and Ms Ngunuza’s
occupancy was thereafter regulated
by common law and continued on a
month to month basis. On 13 November 2019 the applicant’s
attorneys addressed a termination
letter to Ms Ngunuza receipt of
which was acknowledged by one Lindiwe Mantyi on 22 November 2019.
In that letter Ms Ngunuza
was given 30 days within which to vacate
the property failing which legal proceedings for her eviction would
be instituted. Despite
being in receipt of the termination notice, Ms
Ngunuza did not vacate the property.
[6] It is alleged that in
addition to the lease agreement having expired, Ms Ngunuza not only
remained in and continued with her
occupation of the property, she
also failed to keep herself up to date with her rental obligations.
As a result she accumulated
arrear rentals in the sum of R811
154.63. Ms Ngunuza also failed to keep her water services
account with the relevant water
services authority up to date.
As a result, as at the 31 March 2020 the water services account was
in arrears in the sum
of R32 381.87 which, the department had to pay
to prevent its other properties from being disconnected by the water
services authority.
The applicant alleges that in those circumstances
the department has been indirectly financing Ms Ngunuza’s
illegal occupation
of its property. At the same time the
property is depreciating as it is not being properly taken care of or
maintained.
[7] Ms Ngunuza opposes
her eviction from the property. To that end she filed an
answering affidavit in which she sets out
the basis of her opposition
to the eviction application. In essence, she gives the
following background. She has been
in occupation of the
property since 1996 for a period of about 24 years. She took
occupation thereof as a police officer
under a dispensation in which
police officers were assisted with accommodation by government
through the department. She
has been residing continuously in
that property with her children and grandchildren since she took
occupation with no interruption.
[8] She initially stayed
with her husband and the rest of her family members. However,
her husband passed away in 2004. At
some point she applied for a
lease agreement and was given a lease agreement by the department at
a monthly rental of R1000.00.
She continued to pay that amount
and has been doing so ever since. She
maintains
the property inside and outside including repairs to the
piping, broken windows, roof leakages and anything that needed to be
taken
care of as part of maintenance. She alleges that she was
told by the department that she was on a rent to buy programme in
terms of which those in occupation of the department’s
properties would be given the right of first refusal should the
properties
be disposed of. There have been some rental
increases from R1000.00 to R1100.00 and ultimately to R1200.00 in
terms of that
lease. She is up to date with her rental
obligations in respect of the above amounts and she has never missed
a monthly payment
as rentals are paid through direct deposits.
[9] She has written
numerous letters to the department offering to purchase the property
as she was renting with an intention to
buy it. There were some
positive responses in terms of which it was indicated that when the
properties were sold the tenants
would be given first preference.
In anticipation of buying the property, she remained in occupation
thereof with her family
for some 24 years. She contends that
the eviction process instituted by the applicant is unlawful, unfair,
and is based on
incorrect information. As a single female
person, she feels harassed by an unjust eviction process that is
traumatic, discriminatory
and depressing to her.
She alleges that on a particular Sunday on a year she could not
remember there was a meeting
between the department’s officials
with the tenants in which they were promised that the properties they
occupied would be
sold to them.
[10] In dealing directly
with the founding affidavit, Ms Ngunuza has raised a point in
limine
of prescription. In that point of law she seems to be
suggesting that the rights of the applicant, presumably to apply for
her eviction, have expired or never came into being. I do not
understand what is sought to be conveyed by this submission.
It
is, in any event, not pursued in the heads of argument filed on Ms
Ngunuza’s behalf. Instead, some other points
are raised
ranging from section 217 of the Constitution to certain provisions of
the Public Finance Management Act and even the
Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE
Act) without any factual basis.
These submissions are
incomprehensible, incoherent and appear not to have been thought
through at all. Ms Ngunuza further
contends that even after
April 2017 she continued paying a rental amount of R1200.00 in terms
of the previous lease agreement.
She never paid the R7700.00
provided for in the new lease agreement. This was because the
department’s officials openly
said that the tenants should
continue paying the old rental amounts as the new lease agreements
were just for the purposes of legitimising
their occupation of the
respective properties.
[11] It is not in dispute
that Ms Ngunuza did sign the lease agreement dated 01 March 2015 in
terms of which she agreed to pay the
rental amount of R7700.00 per
month. However, she contends that they were requested by the
department’s officials to
sign those lease agreements to
legitimise their occupation of the properties for purposes of making
them qualify for consideration
for first preference should the
properties be disposed of. As a result, she continued paying
R1200.00. She therefore
denies being in arears of R811 154.63.
She further says that the water services account with the OR Tambo
District Municipality
is in her name. She pays her accounts
with that municipality. She therefore denies any alleged prejudice on
the part of the
department as she pays both the water services and
electricity accounts at the respective municipal authorities.
[12] She further denies
being in illegal occupation of the property. This she says is
because she is paying her rentals and
alleges that it is the
department that should have come up with a new lease agreement when
the lease agreement concluded on 01
March 2015 expired. I do
not understand how Ms Ngunuza could contend that she should have been
provided with a new lease
agreement when the one dated 1 March 2015
expired when she admittedly did not even comply with it. Her
contentions in this
regard simply do not make sense. Besides,
even if she was religiously complying with all the terms of that
lease agreement,
once it expired there was no obligation on the part
of the department to enter into another lease agreement with her or
to extend
that lease agreement.
[13] With regard to
alternative accommodation Ms Ngunuza, has on two different occasions
in her answering affidavit, made the averment
that she is not an
indigent person. However, contrariwise she also contends that
her eviction from the property will render
her homeless. She
contends that it is the department that has an obligation to provide
her with alternative accommodation
and not King Sabata Dalindyebo
Municipality which is the seventh respondent herein. However,
she does not explain the factual
basis on which she alleges that she
needs alternative accommodation and the legal basis on which she
alleges that it is the department
and not the seventh respondent that
should provide her with alternative accommodation if she is evicted.
The second respondent.
[14] The facts as they
relate to the second respondent, Ms Ntloko, are the following.
The applicant seeks an order for the
eviction of Ms Ntloko from a
property described in the papers as Erf 1[…]4, Mthatha also
known as No. […] E[…]
S[…] Street, Mthatha (the
property). This is consequent upon a lease agreement entered
into between Ms Ntloko and
the department on 01 April 2017 having
been terminated. It was a term of the said lease agreement that
it would not have
a specific termination date but would, from the
onset, be a month to month lease agreement. The monthly rental
as agreed
between the parties was R5500.00 escalating at the rate of
10% from the first anniversary of the lease and annually thereafter.
The property would be used as a residential dwelling by Ms Ntloko and
her immediate family members.
[15] The applicant
alleges that Ms Ntloko would at times fail to pay the agreed monthly
rentals. This has resulted in her
being in arrears in the sum
of R94 281.52. On 13 January 2020 the applicant’s as
attorneys addressed a letter to Ms
Ntloko terminating the lease
agreement and giving her a notice to vacate the property within 30
days of receipt of the said termination
notice. Receipt of that
termination notice was acknowledged by one Onesimo Ntloko on 29
January 2020 who was at the property
at the time and who accepted the
termination notice on her behalf. Furthermore, as at the 31
March 2020 Ms Ntloko was in
arrears with her water services account
with the water services authority in the sum of R68 013.94. The
applicant says that
the department had to pay this amount to prevent
the municipality from switching off or disconnecting its services at
other properties
owned by the department. As a result the
department found itself in an untenable situation of indirectly
funding the illegal
occupation of its own property by Ms Ntloko.
[16] Ms Ntloko opposes
her eviction application and has filed an answering affidavit in
which she makes her case as follows.
She is employed as a
magistrate by the Department of Justice and Correctional Services.
She resides on the property.
She started her affidavit by
raising two points of law. The first point in
limine
is
that of jurisdiction. She seems to be suggesting that because
an option to institute proceedings in the magistrates’
court
was made available in the lease agreement, that option somehow ousted
the jurisdiction of this Court from dealing with her
eviction
application. This submission is absurd, to put it mildly and
nothing further needs to be said about it. The
second point of
law is that of a dispute of fact. She creates this alleged
dispute of fact by denying that she received the
termination notice
and therefore being aware of her obligation to vacate the property.
She further denies being in breach
of clauses 9.1 and 9.2 of the
lease agreement.
[17] Those clauses of the
lease agreement deal with sub-letting and assignment which are not at
the heart of the termination of
the lease and therefore these
proceedings. This point, just like the first one, seems to have
been craftily raised just to
create a non-existent dispute of fact.
The last issue raised on which the alleged dispute of fact is said to
exist is her
denial that the department has incurred expenses in
respect of her water services account. This seems to be on the
basis
of her allegation that she has been paying for the water
services provided to the property. None of these alleged
disputes
of fact come anywhere close to being genuine disputes of
fact or even relevant
apropos
the eviction application. As
such they are all fully deserving of being given a short shrift
without further ado.
[18] The rest of Ms
Ntloko’s answering affidavit consists of bare denials and what
appears to be legal arguments with nothing
that could be said to be
evidence by her of any fact alleged or an attempt on her part to
engage directly with the issues raised
by the applicant. Even
where she could easily disprove the applicant’s allegations,
she does not even try to do so.
For instance, she could easily
deal with being in arears with her rental obligations and her water
services account by attaching
proof of payments which would show that
she has always been up to date with her rentals and has been paying
her water services
account as she alleges. Not that any of that
would have entitled her never to be evicted from the property, an
issue she
does not deal with.
The PIE Act.
[19] The applicant has
explained in some detail how the PIE Act has been complied with in
respect of all the respondents.
None of the respondents have
come up with any cogent reason for any suggestion that the PIE Act
may not have been complied with.
In any event, even if
non-compliance with the PIE Act was not raised by any of the
respondents, this Court would still have had
to be satisfied that it
has been complied with before it entertains the applications for the
eviction of the respondents.
Compliance with the PIE Act is not
one of the defences that, if not pleaded, the court may not,
mero
motu,
consider or raise it. Courts are obliged to ensure
that they do not grant orders for the eviction of any person unless
they
are satisfied that the PIE Act has been complied with.
[20]
This was explained in some detail in
Changing
Tides
[2]
in which the Supreme Court of Appeal stated the legal position as
follows:
“
In
terms of s 4(7) of PIE an eviction order may only be granted if it is
just and equitable to do so, after the court has had regard
to all
the relevant circumstances, including the availability of land for
the relocation of the occupiers and the rights and needs
of the
elderly, children, disabled persons and households headed by women.
If the requirements of s 4 are satisfied and no
valid defence to an
eviction order has been raised the court ‘must’, in terms
of s 4(8), grant an eviction order. When
granting such an order the
court must, in terms of s 4(8)(
a
)
of PIE, determine a just and equitable date on which the unlawful
occupier or occupiers must vacate the premises. The court
is
empowered in terms of s 4(12) to attach reasonable conditions to an
eviction order.”
I am satisfied that the
applicant has complied with the PIE Act in every material respect in
respect of all the respondents.
No relevant circumstances have
been brought to the attention of the court by the respondents, having
been given an opportunity
to do so in the appropriate fashion.
The analysis.
[21] The next issue for
consideration is whether any of the respondents has, on the papers,
raised a valid defence to the eviction
orders. On the day of
the hearing of this matter, there was no appearance by a legal
representative on behalf of Ms Ngunuza.
Her last attorneys of
record withdrew as her attorneys of record in September 2021.
When the matter was due to be heard on
10 August 2023 she was not
legally represented. On that day the hearing was postponed to
the 2 November 2023. It appears
from the return of service in
respect of the notice of set down for the 2 November 2023 that the
deputy sheriff served the notice
of set down on one Nozuko Matshoba
who is described therein as a nephew notifying Ms Ngunuza about the
new date of hearing.
[22] However, on 2
November 2023 Ms Ngunuza was not in attendance. Instead,
another person who introduced herself as Nozuko
Tshoba and Ms
Ngunuza’s niece, who seemingly was the same person on whom the
notice of set down was served, was in attendance
in court. She
was asked about the whereabouts of Ms Ngunuza. She informed the
court that Ms Ngunuza was on her way
travelling to Mthatha. The
matter proceeded on the basis that Ms Ngunuza had not attended the
hearing, having been made aware
that her eviction application would
be heard on 2 November 2023. I have carefully considered her
answering affidavit and
I have dealt with all her major contentions
raised therein. I am of the view that none of them are a valid
defence or stands
in the way of the eviction order being granted
against her.
[23] Ms Ntloko has also
not made out a case in her answering affidavit. I have already
demonstrated elsewhere in this judgment
that the answering affidavit
consists of incomprehensible and unmeritorious points of law being
raised. Secondly, she dealt
with the case against her through
bare denials with no real attempt to deal with the applicant’s
allegations or confronting
them. Even in the heads of argument
filed on her behalf, a lot of submissions are being made about Ms
Ntloko not being in
arears with her rentals. However, there is
no reference to any evidence of the payments that were made on the
basis of which
her contentions of not being in arrears are founded.
Besides, she seems not to understand the fact that she is being
evicted
mainly on the basis that the lease agreement between her and
the department has been terminated. Therefore, even if she were
to prove that she was not in arears with her rental obligations, that
would not render her immune from eviction. She does
not deal
with this fundamental issue in her papers. These serious
shortcomings in her answering affidavit and the defence
sought to be
championed therein as well as the submissions made on her behalf by
her counsel during the oral hearing of this matter
do not assist her
in preventing the granting of the eviction order.
[24]
On the basis of all the bare denials made in her answering affidavit
an attempt is made to raise a spurious point about a dispute
of
fact. The point raised about a dispute of fact can simply be
disposed of with reference to the well-known case of
Plascon
– Evans
[3]
in which Corbett JA stated the legal position which still holds true
even today as follows:
“…
[W]here
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant’s affidavits which have been admitted
by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the Court to give
such
final relief on the papers before it is, however, not confined to
such a situation. In certain instances the denial
by respondent
of a fact alleged by the applicant may not be such as to raise a
real, genuine or
bona
fide
dispute
of fact …. If in such a case the respondent has not
availed himself of his right to apply for the deponents
concerned to
be called for cross-examination under Rule 6 (5) (
g
)
of the Uniform Rules of Court … and the Court is satisfied as
to the inherent credibility of the applicant’s factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether
the
applicant is entitled to the final relief which he seeks. …
Moreover, there may be exceptions to this general rule,
as, for
example, where the allegations or denials of the respondent are so
far-fetched or clearly untenable that the Court is justified
in
rejecting them merely on the papers. …”
[25]
The above legal position was referred to with approval by the
Constitutional Court in
Rail
Commuters
[4]
in which the court said:
“…
[T]he
Court will consider those facts alleged by the applicant and admitted
by the respondent together with the facts as stated
by the respondent
to consider whether relief should be granted. Where however a
denial by a respondent is not real, genuine
or in good faith, the
respondent has not sought that the dispute be referred to evidence,
and the Court is persuaded of the inherent
credibility of the facts
asserted by an applicant, the Court may adjudicate the matter on the
basis of the facts asserted by the
applicant.”
[26] The case of Ms
Ntloko is clearly such a case which should be determined on the basis
of the inherent credibility of the facts
asserted by the applicant.
One of the alleged disputes of fact relates to the service of the
termination notice which Ms
Ntloko says was not served personally on
her. The assertion that there should have been a personal
service of the termination
notice is misplaced and ill-advised.
In any event, not only was the termination notice properly served as
indicated before
but also she has since been served with the summons.
There have been numerous postponements of this matter which gave her
more
than ample time to consider her position since 2020 when these
proceedings were instituted. The alleged disputes of fact must
be rejected as must all the other spurious defences she has attempted
to raise both in her answering affidavit and in her heads
of argument
as well as during the oral submissions made in court on her behalf
during the hearing of this matter.
[27] Some of the defences
raised could not have been genuinely raised or with any sense of
conviction about their correctness as
they lack factual grounding and
legal merit. For instance, a point was raised, for the
first time in court, in which
it was sought to argue that the lease
agreement in question should not have been entered into and that Ms
Ntloko should not have
signed it seemingly on the basis that the
property is currently not registered in the name of the department.
None of this
was raised in the answering affidavit or at the very
least, in the heads of argument. It must therefore be rejected
on that
basis alone. In addition to that it
surely
cannot be correct for a tenant to say that she or he is not
bound by a lease agreement she or he signed because the property does
not belong to the applicant. This submission ignores the fact
that ownership is not a requirement for a lessor to enter into
a
lease agreement with a third party. Therefore, lack of
ownership, even where it is proved, does not take the matter any
further regarding the issue of whether or not an eviction order
should be granted.
[28]
In dealing with this point, counsel for the applicant immediately
provided an authority pointing to the fallacy in that argument.
He
referred the court to the case of
Boompret
Investments
[5]
in which Van Heerden JA stated the legal position as follows:
“
It
is, of course, true that in general a lessee is bound by the terms of
the lease even if the lessor has no title to the property.
It
is also clear that when sued for ejectment at the termination of the
lease it does not avail the lessee to show that the lessor
has no
right to occupy the property.”
Conclusion.
[29] With all of this
having been said, I must point out that there was no merit in any of
the other arguments made on Ms Ntloko’s
behalf. Resisting
the application for eviction was clearly not made on the basis of the
existence of some genuinely held
belief on her part that the
applicant was not entitled to apply for her eviction. It was
made, disingenuously it would seem,
to prolong her unlawful
occupation of the property even as she was evidently not being
religious in paying her rentals in circumstances
in which she could
afford to pay rentals. In doing so, she was taking advantage of
the historically poor administration and
mismanagement in respect of
a number of government entities to whom some properties have been
entrusted. I must say that
she, as a magistrate, should have
known better and acted more honourably than adding to the prevailing
lawlessness and malfeasance
which inevitably results in many
government properties being illegally occupied. This
lawlessness must be deprecated whenever
it is identified, regardless
of whomsoever is involved.
[30] The same applies to
Ms Ngunuza. She was a police officer until she retired.
She stayed on the property for more
than twenty-four years paying, on
her own submission, a paltry rental of R1000.00 and at some stage
R1200.00. It needs no
rocket scientist to see that that was,
from the beginning, far below a market related rental. This is
besides the fact that
she did not provide any evidence of the
existence of the said lease agreement or her compliance with it.
It appears that
the department tried to regularise that situation by
concluding lease agreements with its tenants instead of evicting
them.
In those lease agreements a reasonable rental of R7700.00
and R5500.00 was required and Ms Ngunuza and Ms Ntloko agreed to
those
terms of the lease which they never honoured. They
evidently failed to pay those agreed rentals.
[31] The founding
affidavit explains how the current head of department and the
applicant identified this problem when they got
appointed. They
identified it for what it is. The theft or misuse of government
properties which seems to be fuelled
by the historical and endemic
malfeasance as well as the general maladministration besetting most
government entities. Those
who have continued to enjoy the
results of this lawlessness seek to prolong this situation and
continue benefitting at the expense
of the taxpayers of this
country. This is untenable and cannot be countenanced.
The applicant must succeed in its application
for the eviction of all
the respondents from the properties they occupy.
The result.
[32] In the result the
following orders shall issue:
1.
The lease agreement entered into between the
Department of Public Works & Infrastructure and the first
respondent, Noluthando
Gladys Ngunuza for the residential tenancy of
Erf No. 2[…]3, Mthatha also known as No. […] A[…]
Street, Fortgale,
Mthatha (the property) has been terminated by the
effluxion of time and/or cancelled by notice.
2.
The first respondent, Noluthando Gladys Ngunuza
and all other persons occupying the property be and are hereby
directed to vacate
the said property within 30 (thirty) days from the
date of the service of this order.
3.
The lease agreement entered into between the
Department of Public Works & Infrastructure and the second
respondent, Tembisa
Teressa Ntloko for the residential tenancy of erf
No. 1[…]4, Mthatha otherwise known as No.[…] E[…]
S[…]
Street, Mthatha (the property) has been terminated by the
effluxion of time and/or cancelled by notice.
4.
The second respondent, Tembisa Teressa Ntloko, and
all other persons occupying the property be and are hereby directed
to vacate
the said property within 30 (thirty) days from the date of
the service of this order.
5.
The lease agreement entered into between the
Department of Public Works & Infrastructure and the third
respondent, Nozipho Elisa
Tshandu for the residential tenancy of Erf
No.8[…]5, Mthatha otherwise known as No. 4[…] R[…]
N[…]
Street, Northcrest, Mthatha (the property) has been
terminated by the effluxion of time and/or cancelled by notice.
6.
The third respondent, Nozipho Elisa Tshandu and
all other persons occupying the property be and are hereby directed
to vacate the
said property within 30 (thirty) days from the date of
the service of this order.
7.
The lease agreement entered into between the
Department of Public Works & Infrastructure and the fourth
respondent, Zoleka Nancy
Erasmus for the residential tenancy of Erf
No.8[…]5, Mthatha, otherwise known as No. 7[…] M[…]
Street, Northcrest,
Mthatha has been terminated by the effluxion of
time and/or cancelled by notice.
8.
The fourth respondent, Zoleka Nancy Erasmus and
all other persons occupying the property be and are hereby directed
to vacate the
said property within 30 (thirty) days from the date of
the service of this order.
9.
The lease agreement entered into between the
Department of Public Works & Infrastructure and the fifth
respondent, Jacqueline
Addison for the residential tenancy of Erf No.
1[…]8, Mthatha, otherwise known as No. 2[…] E[…]
S[…]
Street, Mthatha (the property) has been terminated by the
effluxion of time and/or cancelled by notice.
10.
The fifth respondent, Jacqueline Addison and all
other persons occupying the property be and are hereby directed to
vacate the said
property within 30 (thirty) days from the date of the
service of this order.
11.
In the event that the first, the second, the
third, the fourth and the fifth respondents and/or any other person
or persons occupying
the properties referred to above fail to vacate
them within 30 (thirty) days from the date of the service of this
order, the sheriff
or his deputy is authorised and directed to evict
the respondents and all and any other person or persons occupying the
said properties
or being found therein.
12.
The sheriff or his deputy and the applicant’s
security officers and/or persons appointed by the applicant and
members of the
South African Police Service, are authorised to:
12.1
Remove any person or persons found to be in breach
of this order; and
12.2
Remove materials and possessions of the first to
fifth respondents and all other persons occupying the properties, not
removed by
them and found at the said properties and to dispose of
them within a period of 1 (one) week should they not have been
claimed
by the lawful owners thereof.
13.
The first to fifth respondents are directed to pay
the costs of this application including the costs of two counsel
where so employed.
14. The sixth respondent
is ordered to pay the costs of the application excluding the costs of
the hearing of this matter on 02
November 2023.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel
for the applicant
M
Gwala SC with O Makiwane
Instructed
by
Mvuzo
Notyesi Inc.
Mthatha
Counsel
for the 2
nd
Respondent
L
Matotie with G Madubela
Instructed
by
W
Quluba Attorneys
Mthatha
Counsel
for the 3
rd
, 4
th
& 5
th
Z.N.
Dumalisile
Instructed
by
Z.N.
Dumalisile Attorneys Inc.
Mthatha
Date
heard
02
November 2023
Date
delivered
23
January 2024
[1]
Item
28 (1) of Schedule 6 of the Constitution reads:
On the production of a
certificate by a competent authority that immovable property owned
by the state is vested in a particular
government in terms of
section 239 of the previous Constitution, a registrar of deeds must
make such entries or endorsements
in or on any relevant register,
title deed or other document to register that immovable property in
the name of that government.
[2]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294
(SCA) at 304 D-E.
[3]
Plascon
– Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(AD) at 634 H to 635 A-C.
[4]
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005
(2) SA 359
(CC) at 392 C - D.
[5]
Boompret
Investments (Pty) Ltd and Another v Paardekraal Concession Store
(Pty) Ltd
1990
(1) SA 347
(AD) at 351 H-I.