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[2023] ZAKZPHC 85
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Soleprops 145 CC v Ndlovu and Others (1674/22P) [2023] ZAKZPHC 85 (22 August 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 16742/22P
In
the matter between:
SOLEPROPS
145 CC
APPLICANT
and
MANDLA
FELIX NDLOVU
FIRST RESPONDENT
THE
UNLAWFUL OCCUPIERS
OF
3[...] B[...] STREET, PIETERMARITZBURG
SECOND RESPONDENT
MSUNDUZI
MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
Nicholson
AJ:
Introduction
[1]
Soleprops 145 CC ('Soleprops'), the applicant, is the owner of a
property situated
at 3[...] B[...] Street, Pietermaritzburg ('the
property'). It seeks an order in terms of the Prevention of Illegal
Eviction from
and Unlawful Occupation of Land Act 19 of 1998 ('PIE
Act') for the eviction of Mandia Felix Ndlovu (Mr Ndlovu), the first
respondent,
all those occupying through Mr Ndlovu, and the unknown
unlawful occupiers of the property, being the second respondent.
[2]
It is common cause that the second respondent occupies the property
with the permission
of, and as tenants of Mr Ndlovu.
Factual
background
[3]
On 24 March 2016, Soleprops and Mr Ndlovu entered into an agreement
of lease whereby
Soleprops leased the property to Mr Ndlovu.
[1]
A material condition of the agreement w.as that Mr Ndlovu would take
occupation of the property in exchange for rental payments.
[4]
While it is not apparent from the papers when Mr Ndlovu took
occupation of the property,
as a deposit was payable on or about 1
April 2016 with the rental to be paid on 1 May 2016, it may be
inferred from the papers
that Mr Ndlovu took occupation during this
period.
[5]
On 10 November 2016, Soleprops and Mr Ndlovu entered into a written
deed of sale whereby
Soleprops agreed to sell the property to Mr
Ndlovu for an amount of R22 million.
[2]
[6]
Mr Ndlovu has since rented out individual portions of the property to
students who
attend the university in Pietermaritzburg, and has not
made any allegation, neither in the papers or from the bar, that Mr
Ndlovu
resides on the premises. Accordingly, while this application
is prosecuted under the PIE Act, the interest of Mr Ndlovu is merely
commercial. The second respondents, being the students occupying
through Mr Ndlovu have not opposed this application.
Common
Cause
[7]
Upon perusal of the papers, the following is either axiomatic or
common cause:
7.1
Second respondent does not oppose the application.
7.2
Mr Ndlovu has neither paid the rental amount, nor the purchase price.
Accordingly, he is
in breach of both the deed of sale and the lease
agreement.
7.3
Mr Ndlovu's interest in the property is commercial; accordingly, the
PIE Act finds no application
in Mr Ndlovu's circumstances.
7.4
Soleprops, through its attorney, sent two letters to Mr Ndlovu
cancelling the deed of sale;
the first letter was drafted on 6
January 2022
[3]
, and a second
letter was drafted on 3 October 2022.
[4]
7.5
Mr Ndlovu responded on 31 January 2022, and merely sought an
extension but raised no other
query.
7.6
Second respondent occupies the property for purposes of student
accommodation and not as
a primary residence.
7.7
In as far as the second respondent is concerned, it has not been
disputed, neither in the
papers, nor in argument before me, that
Section 4 of PIE has not been complied with.
Dispute
[8]
In his answering affidavit, Mr Ndlovu raises a single defence, namely
that they do
not occupy the property through the deed of sale but
through the lease agreement, and accordingly, the wrong agreement had
been
cancelled. In the circumstances, they are not illegally on the
property as they occupy the property through a lease agreement. In
the premises, the single issue to be determined is whether or not the
lease agreement had been cancelled.
[9]
It is instructive that no defence relevant to the PIE Act has been
raised. Accordingly,
no grounds have been placed before me that it
would not be just and equitable to evict second respondent.
Argument
[10]
Mr Blomkamp, who appeared for Soleprops, made three submissions in
motivation for the eviction
order:
10.1
Firstly, when answering to the letter of cancellation, Mr Ndlovu
merely sought an extension but did not raise
the issue of the
incorrect agreement being cancelled.
10.2
Secondly, at common law a lease may be cancelled either in the
founding affidavit or in the summons, and
accordingly, the lease has
been cancelled in these papers.
10.3
Thirdly, he called upon the court to use pragmatism and common sense
in dealing with this matter because
if the matter is not dealt with
on these papers, it would merely mean that Soleprops will immediately
issue a cancellation letter
putting Mr Ndlovu on terms to come up to
date with the arrears which are in excess of R1 million, plus unpaid
utilities in excess
of R1.8 million and thereafter cancelled the
lease, and return to court thereafter.
[11]
Mr Zondi, who appeared for Mr Ndlovu, argued that in light of
the deed of sale never having
come into existence due to the fact
that the condition precedent to raise the finance did not
materialise, the lease agreement
was revived and the occupation of
the property is therefore not unlawful because Soleprop purported to
cancel the non-existent
agreement, and not the lease agreement.
Accordingly, the lease agreement has not been cancelled and since
they occupy the property
through the lease agreement, their
occupation is not unlawful.
[12]
As I have already pointed out, it is common cause that Mr
Ndlovu has complied with neither
the lease agreement, nor the deed of
sale. Furthermore, save for stating that he has effected various
repairs to the property,
he does not state when he intends complying
with either of the agreements or bringing the arrear rental up to
date. Accordingly,
it appears that Mr Ndlovu intends remaining on the
property indefinitely, at the expense of Soleprops.
[13]
It is apparent that the deed of sale was concluded after the lease
agreement. The two agreements
cannot run parallel to each other,
which would mean that the deed of sale would have cancelled the lease
agreement. Accordingly,
should the argument of Mr Ndlovu be followed,
it would mean that before the deed of sale could have been concluded,
Soleprops would
have needed to ensure vacant occupation of the
property by evicting Mr Ndlovu and thereafter giving him back
occupation. This,
in my view, would be unintelligible.
[14]
Further, Mr Ndlovu failed to respond to the first letter of
cancelation and in the second
letter of cancelation. hemerely
requested time to respond without denying that they are in unlawful
occupation and asserting that
they occupy through the lease agreement
and not the purchase and sale agreement. In this regard, McWilliams v
First Consolidated
Holdings (Pty) Ltd
[5]
is instructive, where the court observed:
'I
accept that "quiescence is not necessarily acquiescence"
(see
Collen v Rietfontein Engineering Works
1948 (1) SA 413
(A) at 422) and that a party's failure to reply to a letter asserting
the existence of an obligation owed by such party to the
writer does
not always justify an inference that the assertion was accepted as
the truth. But in general, when according to ordinary
commercial
practice and human expectation firm repudiation of such an assertion
would be the norm if it was not accepted as correct,
such party's
silence and inaction, unless satisfactorily explained, may be taken
to constitute an admission by him of the truth
of the assertion, or
at least will be an important factor telling against him in the
assessment of the probabilities and the final
determination of the
dispute. And an adverse inference will the more readily be drawn when
the unchallenged assertion had been
preceded by correspondence or
negotiations between the parties relative to the subject-matter of
the assertion.'
[15]
In the premises, Mr Ndlovu's failure to set the record straight once
receiving the cancelation
notices, and his failure to explain the
reason for not setting the record straight, infers that Mr Ndlovu too
believed that he
occupied through the purchase and sale agreement,
and raises the issue of the non-cancelation belatedly in the
answering affidavit
in a last-ditch attempt to conjure a defence.
[16]
Even if I am wrong, various authorities encourage this court to use
common sense and pragmatism
[6]
as suggested by Mr Blomkamp. In light of the fact that Mr Ndlovu, is
not complying with the lease agreement that he purports to
be in
effect and has not given any indication when and how he intends to
comply with the agreement, it is not in the interest of
justice to
allow him to continue to occupy the property. Accordingly, applying
common sense and pragmatism, the application must
succeed.
[17]
In the premises, I am of the view that sale agreement has been
properly cancelled, and therefore,
the application must succeed.
[18]
Turning to the second respondent, it is trite that I have a
discretion with regard to the eviction
date and such discretion must
be exercised judicially, in the interest of justice, and taking into
account just and equitable considerations.
It is common cause that
second respondent are tertiary education students. The term for
tertiary education comes to an end late
November or early December.
Accordingly, staying the eviction for six months will allow second
respondent to complete the school
year without disruption and without
any prejudice to them.
[19]
With regard to costs, it is usual for costs to follow the result. Mr
Blomkamp has requested the
costs of Senior Counsel to be awarded, in
the event the applicant is successful. The respondent has not made
any submissions in
that regard. In light of the costs of the property
and the importance of the matter, I see no reason not to grant the
costs of
Senior Counsel.
Order
[20]
In the result, I make the following order:
1.
The first respondent and the second respondent, and all those
occupying through
the first respondent are ordered to vacate the
property described as Portion 11 of Erf 2[...] Pietermaritzburg,
situated at 3[...]
B[...] Street, Pietermaritzburg within six months
of the granting of this order.
2.
Should the first and second respondents, and all those occupying
through the
first respondent, fail to vacate the property described
above, within the timeframe referred to above, the Sheriff or her
duly
appointed Deputy, together with the assistance of the South
African Police Services and/or private security company, is directed
to evict such persons from the property.
3.
The first respondent is ordered to pay the costs of this application
which include
the
costs of senior counsel where employed.
NICHOLSON
AJ
Date
heard:
19 July 2023
Date
handed down: 22 August 2023
Appearances
For applicant:
PJ Blomkamp SC
Instructed by:
Vathers Attorneys
13
Prince Edward Street
Pietermaritzburg
Ref: UJ
VATHER/Nikita/Soleprops 145 CC
For first
respondent:
SH Zondi
Instructed by:
MS Dlamini
Attorneys
222 Hoosen Haffejee
Street
Pietermaritzburg
No
appearances for second and third respondents
[1]
Answering affidavit para 3.1 at page 45 and annexure 'AA1' at page
51.
[2]
Founding affidavit para 10 at page 8 and annexure 'FA2' at page 21.
[3]
Founding affidavit para 11.9 at page 10 and annexure 'FA3' at pages
26-27.
[4]
Founding affidavit para 15 at page 12 and annexure 'FA4' at pages
28-31.
[5]
McWilliams v First Consolidated Holdings (Pty) Ltd
1982 (2) SA 1
(A)
at para 10
[6]
Chief Executive Officer, South African Social Security Agency, and
others v Cash Paymaster Services (Pty) Ltd
2012 (1) SA 216
(SCA)
para 29; Canton Trading 17 (Pty) Ltd t/a Cube Architects v Hattingh
NO
2022 (4) SA 420
(SCA} para 80; Thoroughbred Breeders' Association
of South Africa v Price Waterhouse
2001 (4) SA 552
(SCA) para 52;
LagoonBeach Hotel (Pty) Ltd v Lehane NO and others
2016 (3) SA 143
(SCA) para 15 and 16; Born Free Investments 247 (Pty) Ltd v Kriel NO
[2019] ZASCA 21
para 10; Solomon NO and others v Spur Cool
Corporation (Pty) Ltd and others
2002 (5) SA 214
(C) para 46