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[2022] ZAGPJHC 775
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Mokone v Kone and Another (11258/2021) [2022] ZAGPJHC 775 (7 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 11258/2021
REPORTABLE:
OF
INTEREST TO OTHER JUDGE:
REVISED:
07/10/2022
CHRISTOPHER
MOKONE
Applicant
And
NDIVHUWO
PORTIA KONE
First Respondent
CITY
OF
JOHANNESBURG
Second Respondent
JUDGMENT
YACOOB
J
:
1.
The
applicant, Mr Mokone, and the first respondent, Ms Kone were romantic
partners from about May 2008 until May 2020. They have
a child born
in 2009 and Mr Mokone also took responsibility for Ms Kone’s
child from a previous relationship. The applicant
left their common
home in May 2020 and now seeks the eviction of the first respondent
in terms of the Prevention of Illegal Eviction
from and Unlawful
Occupation of Land Act, 19 of 1998 (“PIE”).
2.
Mr
Mokone and Ms Kone have occupied the property since 2011. Mr Mokone
contends that he has purchased the property, but that in
the meantime
he leases the property from the owner. He annexes a lease agreement
dated September 2019.
3.
According
to Ms Kone was under the impression that she and Mr Mokone purchased
the property in 2015. She and he certainly signed
an offer to
purchase. However the copy she annexes to the answering affidavit is
not signed by the seller, and Mr Mokone contends
that it was never
signed by the seller. He then maintains that the sale agreement he
concluded only in September 2020 is the valid
sale agreemtent.
4.
According
to Mr Mokone, when he left the home he told Ms Kone that he would
allow her and the children to remain there until the
end of September
2020, whereafter he would take occupation and operate his business
from the garage of the property. He contends
that she has been in
unlawful occupation since 1 October 2020.
5.
Ms
Kone, on the other hand, contends that she and Mr Mokone were married
in terms of customary law. Lobola negotiations were concluded
and
lobola paid. Her elder child was registered at school using Mr
Mokone’s surname. She and Mr Mokone signed the first lease
agreement for the property together. She considers herself to be a
joint owner of the property by virtue of the marriage. She and
Mr
Mokone have established a Trust. They were in business together but
Mr Mokone has taken that over and is excluding her. She
does not have
proof of many of her allegations because Mr Mokone took care of
things and kept documents.
6.
Ms
Kone also annexes to the papers an email from Mr Mokone relating to
payment to the landlord/ seller of the property. According
to her
this payment was towards the purchase price. Whether it was or not,
Mr Mokone says to her in the email that she needs to
sign off on the
payment, implying that they had some kind of mutual financial
arrangement.
7.
Ms
Kone also annexes a document dated 30 November 2020 inviting her as a
trustee to a meeting to discuss the purchase of the same
property by
the Trust.
8.
Ms
Kone also obtained a protection order against Mr Mokone when he
became violent towards her and her children.
9.
Mr
Mokone did not file a replying affidavit. These being motion
proceedings, it is the respondent’s version that prevails.
In
fact, her version is undisputed since there is no replying affidavit.
10.
It
is clear that Mr Mokone has not fully taken the court into his
confidence. There is doubt about who the purchaser of the property
and about whether the parties entered into a customary marriage.
11.
It
was submitted in argument that because Ms Kone referred to Mr Mokone
as her ex-husband in the application for a protection order,
she
cannot now speak of being married to him. This is not the case. What
she said in that application is not relevant. Also, while
she may
consider their relationship to be over on a personal level, and
therefore describe him as her ex-husband, that does not
determine the
legal ramifications of the end of their marriage.
12.
I
am not satisfied that Mr Mokone has made out a case for eviction in
terms of PIE. It is not clear that he is the person who has
the right
to evict Ms Kone. It is also not clear that eviction in terms of PIE
is appropriate in circumstances where there appears
to be a
dissolution of a marriage at stake.
13.
Mr
Mokone elected to bring motion proceedings, when in my view a dispute
of fact was obviously foreseeable. He appears not to have
been fully
candid with the court. And he failed to file any replying affidavit
to deal with Ms Kone’s version.
14.
For
these reasons, I make the following order:
The application is
dismissed with costs.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the Applicant:
N Rambachan-Naidoo
Instructed
by:
Robin Twaddle & Associates
Counsel
for the Respondent:
M Hlungwane
Instructed
by:
Legal Aid South Africa
Date
of hearing:
11 April 2022
Date
of judgment:
7 October 2022