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[2021] ZAGPPHC 63
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Ziakria and Another v Unlawful Occupiers of [....] and Others (33233/2019) [2021] ZAGPPHC 63 (29 January 2021)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED.
29
January 2021
CASE
NO: 33233/2019
In
the matter between:
MOHAMED
IQBAL
ZIAKRIA
First
Applicant
HANG
CUANE
Second
Applicant
and
THE
UNLAWFUL OCCUPIERS OF
[….]
First
Respondent
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
Second
Respondent
J U D G M E N T
The judgment and order are accordingly published and
distributed electronically. The date and time of hand down is
deemed
to be 10:00 on 29 January 2021.
TEFFO, J
:
[1]
The applicants, Mr Mohamed
Iqbal Ziakria (the first applicant) and Ms Hang Cuane (the second
applicant), seek an order for the eviction
of the first respondents
(the unlawful occupiers of the property and all those occupying the
property through or under them from
the immovable property known as
[….] Gauteng (“
the
property
”).
[2]
The application was also
served on the second respondent, the City of Tshwane Metropolitan
Municipality.
[3]
The application is only
opposed by the first respondents.
[4]
The applicants allege that
the first respondents and the persons who occupy the property through
or under them are residing on the
property without any right in law.
They are the unlawful occupiers of the property in terms of the
Prevention of the Illegal Eviction
from and Unlawful Occupation of
Land Act, 19 of 1988 (“
the
PIE Act
”).
The applicants assert that they are the lawful owners of the
property. The first respondents deny the allegations.
Although they
concede that they reside on the property, they deny that they have
occupied the property unlawfully. Mr Ndlovu, who
deposed to an
answering affidavit on behalf of the first respondents, claims that
he and his family are in lawful occupation of
the property by virtue
of the sale agreement that he and his wife have concluded with the
first applicant in 2013 and that the
applicants are aware that he and
his family reside on the property. On the face of it,
therefore, a dispute of fact has been
created.
DISPUTES
OF FACT AND THE APPLICABLE LEGAL PRINCIPLES
[5]
In dealing with disputes
of fact in motion proceedings, Conradie J in
Cullen
v Haupt
[1]
said:
“
I have consulted some of the better known decisions
concerning the referral of applications to evidence or to trial.
The leading
decision in this regard is, of course, Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162,
where Murray AJP said that if a dispute cannot properly be determined
it may either be referred to evidence or to
trial, or it may be
dismissed with costs, ‘particularly when the applicant should
have realised when launching his application
that a serious dispute
of fact was bound to develop’. The next of better known
cases on this topic is that of Conradie
v Kleingeld
1950 (2) SA 594
(O) at 597, where Horwitz J said that a petition may be refused where
the applicant at the commencement of the application should
have
realised that a serious dispute of fact would develop.
”
[6]
In
National
Director of Public Prosecutions v Zuma
[2]
Harms DP observed that motion proceedings were really designed for
the resolution of legal disputes based on common cause facts.
In most applications, however, disputes of fact, whether minor or
more substantial, arise. As a result, rules have been developed
to determine the facts upon which matters must be decided where
disputes of fact have arisen and the parties do not want a referral
to oral evidence or trial.
[7]
In proceedings for
final relief the approach to determine the facts was authoritatively
set out by Corbett JA in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
as follows:
“
It is correct that, where 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 the 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 …
”
[8]
In
Wightman
t/a JW Constructions v Headfour (Pty) Ltd & Another
[4]
,
Heher JA dealt with how courts should decide on the adequacy of the
respondent’s denial in motion proceedings for determining
whether a real, genuine or
bona
fide
dispute of fact
had been raised. He stated:
“
[11] The first task is accordingly to
identify the facts of the alleged spoliation on the basis of which
the legal
disputes are to be decided. If one is to take the
respondent’s answering affidavit at face value, the truth about
the
preceding events lies concealed behind insoluble disputes.
On that basis the appellant’s application was bound to fail.
Bozalek J thought that the court was justified in subjecting the
apparent disputes to closer scrutiny. When he did so, he
concluded that many of the disputes were not real, genuine or bona
fide …
[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 …
[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.
There will of course be instances
where a bare denial meets the requirement because there is no other
way open to the disputing
party and nothing more can therefore be
expected of him. But even that may not be sufficient if the
fact averred lies purely
within the knowledge of the averring party
and no basis is laid for disputing the veracity or accuracy of the
averment. When
the facts averred are such that the disputing
party must necessarily possess knowledge of them and be able to
provide an answer
(or countervailing evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare or
ambiguous denial,
the court will generally have difficulty in finding
that the test is satisfied. I say ‘generally’
because factual
averments seldom stand apart from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at
a decision.
A litigant may not necessarily recognise or
understand the nuances of a bare or general denial as against a real
attempt to grapple
with all relevant factual allegations made by the
other party. But when he signs the answering affidavit, he
commits himself
to its contents, inadequate as they may be, and will
only in exceptional circumstances be permitted to disavow them. There
is thus
a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts which his
client
disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not happen it should come
as no surprise that the court takes a robust view of the matter.
”
BACKGROUND
[9]
The applicants assert that
the property was registered in their names on 17 August 1994.
[10]
During 1995 they leased
the property to one Mr Phillip Botha. Mr Botha occupied the
property for approximately 9 (nine) years
and vacated during 2004.
[11]
The applicants reside in
Johannesburg. They occasionally visit the property. In
October 2018, they visited the property.
They found that the
garden on the property was neglected and the property was in a state
of disrepair.
[12]
On 31 March 2019, the
applicants again visited the property. To their surprise the
garden was tidied-up, the property was
decorated with new furniture,
old carpets were replaced with wooden floors and more renovations
were undergoing. There was a Mercedes
Benz motor vehicle parked in
the driveway. They met a certain Mr Louis Baloyi who advised
them that he was employed by Mr
Ndlovu to make renovations on the
property. Mr Ndlovu was not available to meet with them. They
immediately proceeded to
Brooklyn Police Station and opened a case of
trespassing against the first respondents. The police could not
assist them without
a court order.
[13]
On 1 April 2019 the first
applicant consulted with his attorneys, Patel Incorporated and
instructed them to proceed with an application
for the eviction of
the first respondents.
[14]
On 2 April 2019 Patel
Incorporated served the first respondents with a letter through the
Sheriff demanding that they vacate the
property within 20 days from
date thereof. A letter and affidavit was also served on the
same day upon the second respondent.
[15]
On 29 April 2019 another
correspondence was sent to the first respondents. The first
respondents were once again requested
to vacate the property and also
cease all renovations on the property.
[16]
Mr Ndlovu admits that the
property was registered in the names of the applicants on 17 August
1994. He contends that he has
no knowledge of the lease of the
property to one Mr Botha. He also admits that the applicants
reside in Johannesburg although
at the time he entered into the sale
agreement with the first applicant, he was told that the applicants
resided in Mozambique.
He claims that he only came to know
afterwards that the
applicants
resided in Johannesburg.
DISPUTES
OF FACT
[17]
The sale agreement
allegedly entered into between Iqbal Ziakria Mohamed (the first
applicant) and Hlupeka David Ndlovu and Nongedi
Fanny Klaas (the
first respondents) reads as follows: (Quotated Verbatim)
“
The parties hereby agree as follows:
1.
That the property
with full description [….] is registered in the name of
Mahomed Iqbal Ziakria.
2.
The selling amount
of the said property is R1 200 000,00 (one million two
hundred thousand) that the abovementioned property
is not financed by
any institution. Payment of the amount is as follows:
R600 000,00 (six thousand rand) is paid in
cash on signature as
a deposit and the remaining balance will be paid in terms as follows,
R25 000,00 (twenty-five thousand)
per month for 2 years.
3.
The abovementioned
property will be ceded to Hlupheka David Ndlovu and Nongedi Fanny
Klaas with all the liability and assets and
he will be responsible
for renovations as the property is vandalised and the yard needs
attention. The parties agreed that Hlupheka
David Ndlovu and Nongedi
Fanny Klaas will take over possession of the property upon payment of
the deposit.
4.
The parties agreed
that until final payment of the balance is paid in full the title
deed will not be changed into the purchasers’
names and that
the property ownership will remain in the name of the seller (Mahomed
Iqbal Ziakria). In the event of any default
in making payment in
respect of the balance the party may be entitled to cancel the
agreement forthwith to take the possession
of the property.
5.
The agreement
constitutes the entire contract between the parties and any
variation, amendment or consensual cancellation thereof
shall not be
of any force and effect unless reduced to writing and signed by the
parties or their authorized in writing.
6.
Should any party
mentioned in the agreement breach or fail to comply with the terms of
the agreement the without prejudice to any
other right the other
party shall be entitled to cancel this agreement and take possession
of the property.
7.
The parties choose
the abovementioned addresses as their respective citandi et
executandi for all purposes arising of this agreement.
8.
Should Mahomed
Iqbal Ziakria want the property back in his name, he will have to buy
it in the current prevailing market from the
buyer.
Dated and signed at Pretoria on this the 10
th
day of
October 2013.
[18]
Mr Ndlovu contends that he
was introduced to the property by the first applicant’s brother
in 2011, and in 2013 after he had
inspected the property, he was
taken to Segida Attorneys to conclude the sale agreement as well as
to arrange the mode of payment.
The sale agreement was concluded on
10 October 2013 whereof the first applicant signed it and the second
applicant signed as a
witness. Mr Ndlovu and his wife also
signed the agreement. He further contends that the parties
agreed that the purchase
price of the property is the amount of
R1 200 000,00 (one million two hundred thousand rand).
He paid the deposit
of R600 000,00 (six hundred thousand rand)
on 9 October 2013 and on 28 November 2013 he made another payment of
R100 000,00
(one hundred thousand) to the applicant’s
attorneys of record in the presence of the applicants. Further
amounts of
R150 000,00 and R50 000,00 were paid to the
applicant’s attorney of record respectively on 14 January 2014
and
24 March 2014. He has attached copies of the receipts of
payments that were issued by Segida Attorneys. He claims to have
paid
the balance of R300 000,00 in cash to the first applicant
directly but has failed to attach the proof of payment.
[19]
Mr Ndlovu further denies
that the renovations on the property were still on in 2019 as alleged
by the applicants. He contends that
he started renovating the
property in 2013 after the conclusion of the sale agreement. He spent
about R700 000,00 on the renovations.
According to him, the
renovations were long completed in 2019. He also denies that the
property was in a state of disrepair and
the garden was neglected in
October 2018. He contends that he and his family occupied the
property from 2017.
[20]
The applicants deny the
allegations in the replying affidavit. The first applicant
denies that his brother is a South African
citizen and/or that he
resides in South Africa. He claims that he has one brother who
has never taken up residence nor established
a business in South
Africa as alluded to by the first respondents.
[21]
He further denies that he
concluded a contract of sale in respect of the property with Mr
Ndlovu and his wife. He claims that
he has no knowledge of
Segida Attorneys who are alleged to have been his attorneys of record
at the time. He asserts that on 25
July 2019, his current attorneys
of record contacted the Legal Practice Council (“
the
LPC
”) and
enquired about Segida Attorneys. They were advised that the
firm was in practice from 2009 to 2016. Mr Lawrence
Segida, who was
the director of the firm, was struck from the roll of attorneys in
2017.
[22]
The files of Segida
Attorneys were as a consequence thereof placed under the control of
the curator’s department of the LPC
in Pretoria.
[23]
The applicants’
attorneys made enquiries with the LPC as to whether the sale was ever
recorded in Segida Attorneys’
database and the LPC confirmed
that the alleged sale is non-existent. The first applicant’s
name could not be located
on Segida Attorneys’ database as a
client as alleged by Mr Ndlovu. Instead a file for H D Ndlovu
was located on Segida
Attorneys’ database and a requisition of
the file was submitted to the LPC. The matter was allocated to
another firm
of attorneys, namely SSB Attorneys and Conveyancers
(“
SSB
”).
The applicants’ attorneys have been in contact with SSB to
ascertain whether the file of H D Ndlovu related
to the alleged
sale. The file has not been located but from the electronic
data captured on the LPC records, the file does
not relate to the
alleged sale.
[24]
An email correspondence
from SSB to the applicants’ attorneys attached to the replying
affidavit dated 5 August 2019 confirms
the above averments that SSB
contacted the LPC regarding the file that relates to the sale of
property. SSB checked their
records. The records do not show
that they have the file. A certain Lebo from the LPC also checked the
list of the files that was
provided to SSB. She could not find
the file. SSB confirmed having been in possession of a file
with H D Ndlovu as
a client, but H D Ndlovu is the seller and not the
purchaser. The file does not in any way relate to the current matter.
[25]
An agreement of sale
allegedly concluded by the first applicant and the first respondents
has been attached to the opposing papers.
It is contended that the
reason why the first respondents are in occupation of the property is
because they purchased the property
from the first applicant in terms
of the alleged agreement of sale. They continued to renovate the
property after the conclusion
of the alleged agreement and
subsequently occupied it. It appears from the papers that a municipal
account for the property which
has been previously registered in the
names of the applicant has now been registered in the names of Mr
Ndlovu.
[26]
The applicants while they
deny that first applicant concluded the alleged agreement, continued
to challenge the validity of the
agreement to prove that the disputes
of fact that arise from the papers are not genuine and bona fide.
[27]
In my view all the
above-mentioned disputes of fact cannot be ignored. I find them to be
genuine and bona fide disputes of fact
which are clearly not capable
of resolution on affidavits. The first respondents have denied
material allegations made in the founding
affidavit and further
produced positive evidence to the contrary in the answering
affidavit. They have admitted the facts
and evidence in the
applicants’ founding affidavit, however, they have alleged
additional facts and evidence that the applicants
dispute. It can
therefore not be argued that the first respondents’ version
consists of bald or uncreditworthy denials, raises
fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting
them merely on the
papers.
[28]
The disputed issues raised
in this application ought to be properly ventilated in a trial. It
was argued on behalf of the first
respondents that the applicants
should have foreseen when launching the application that material
disputes of fact were bound to
develop in that from the applicants’
version they were aware of significant developments on the property.
Further that the
full purchase price has been paid. The applicants
submitted that there is no evidence to show that they knew who the
first respondents
were prior to the launching of the application. The
allegations relating to the payment of the purchase price have been
denied
as discussed above. I do not find merit in this argument.
However, having regard to the applicants’ version relating to
the
renovations that were made on the property, I agree that the
applicants should have foreseen when launching the application that
material disputes of fact were bound to develop irrespective of
whether they knew who the first respondents were prior to launching
the application. In view of the importance of the application to the
parties, the amount involved and the fact that the application
relates to a sale agreement allegedly concluded in 2013, dismissing
the application will be unfair.
ORDER
[29]
Accordingly, the following
order is made:
1.
The application is
referred to trial.
2.
The notice of motion and
the founding affidavit shall stand as combined summons. The
answering affidavit shall stand as the
defendant’s plea and the
replying affidavit shall stand as a replication.
3.
The provisions of the
Uniform Rules of Court shall then apply.
4.
Costs are reserved.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For the applicants
S Swiegers
Instructed
by
Patel Incorporated Attorneys
For
the first respondents
M C Mavunda
Instructed
by
Ngomane Attorneys
Heard
on
20 October 2010
Handed
down on
29 January 2021
[1]
1988
(4) SA 39
(C) at p 40F-H
[2]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26
[3]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635C
[4]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) paras 11-13