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[2021] ZAGPJHC 855
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Dodson N.O. and Another v Quattro L Consortium (Pty) Ltd and Others (28472/2020) [2021] ZAGPJHC 855 (26 July 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 28472/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
26/7/21
In
the matter between: -
PETER
DODSON N.O.
(in
his capacity as trustee for the time being of
THE
GRIFFON RESIDENTS
TRUST)
First
applicant
THE
BEST TRUST COMPANY (JHB) (PTY) LTD N.O.
(in
its capacity as trustee for the time being of
THE
GRIFFON RESIDENTS
TRUST)
Second applicant
and
QUATTRO
L CONSORTIUM (PTY) LTD
First respondent
GILHAR,
ADRIANA
BERTHEIL
Second respondent
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Third respondent
J
U D G M E N T
DELIVERED
:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e mail and publication
on CaseLines. The date
and time for hand-down is deemed to be 10h00 on 26 July 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The applicants
(“
the
Trust
”)
seek an order for the eviction of the second respondent (“
Ms Gilhar
”)
in terms of section 4(1) of the Prevention of Illegal Eviction
From and Unlawful Occupation of Land Act, 19 of 1998
(“
PIE
”)
from the residential property situated at Portion 4 of
Erf [....], Morningside Extension
21
Township, more commonly described as 4, [....] C[....]
Road, Morningside (“
the
property”
).
[2]
In addition to the
eviction order, the Trust claims monetary relief from both Ms Gilhar
and the first respondent, formulated
at prayer 4 of the notice
of motion as follows: -
“
4.
That the first and second respondent, being
jointly and severally liable, be ordered to pay the applicants
the
amount of:
4.1
R69,987.99 for the water and electricity consumption for
the period 11 December 2019 to 31 August 2020;
4.2
R22,500.00 for the levies for the period
11 December 2019 to 31 August 2020; and
4.3
R420,000.00 for the rental period of 18 August 2019
to 31 August 2020;
4.4
R35,000.00 per month for rental for the period
1 September 2020 until the date that the second respondent
and all those occupying the property through her vacate the Property;
4.5
All the water and electricity consumption accounts for
the Property for the period 1 September 2020 until the date
that the
second respondent and all those occupying the Property through her
vacate the Property; and
4.6
The levy amount of R2,500.00 per month for the levies
for the property for the period 1 September 2020 until the
date that
the second respondent and all those occupying the Property through
her vacate the Property.”
[1]
[3]
Ms Gilhar
does not oppose an order for her eviction. In fact, she states that
she tendered to vacate the property on the 28
th
of February 2021 “
and
will do so in terms of the directives issued by the above Honourable
Court”
.
[2]
[4]
However,
Ms Gilhar, together with the first respondent, oppose the
monetary claims.
[3]
THE
EVICTION
[5]
At paragraph 1 of her heads of argument,
Ms Gilhar states that the application is defective as it has not
been served on the
City of Johannesburg (“
the
City
”) in terms of
section 4(2) of PIE.
[6]
Section 4(2) of PIE provides that at
least 14 days before the hearing of the eviction proceedings, the
Court must serve written
and effective notice of the proceedings on
the unlawful occupier and the municipality having jurisdiction.
Service of the application
itself is therefore not required, but
rather the service of notice of the proceedings. Notice of the
proceedings must, in compliance
with section 4(5) of PIE: -
[a]
state that proceedings are being
instituted in terms of section 4(1) for an order for the eviction of
the unlawful occupier;
[b]
indicate on what date and at what time
the Court will hear the proceedings;
[c]
set out the grounds for the proposed
eviction; and
[d]
state that the unlawful occupier is
entitled to appear before the Court and defend the case and, where
necessary, has the right
to apply or legal aid.
[7]
The
Supreme Court of Appeal in
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
[4]
held that the aforementioned provisions are peremptory. In respect of
the notice required by section 4(2) it held that it
must be
effective notice; that it must contain the information stipulated in
section 4(5); and that it must be served “
by
the Court
”.
The latter requirement it interpreted to mean that the contents and
the manner of service of the notice must be authorised
and directed
by an order of the Court.
[8]
In
the present application the section 4(2) notice was not
authorised by the Court. However, it was served by way of sheriff
on
the City on 6 April 2021.
[5]
The fact that the notice was not issued by the Court prior to its
service is not fatal. In
Moela
v Shoniwe
[6]
the Supreme Court of Appeal reaffirmed what it found in
Unlawful
Occupiers of the School Site v City of Johannesburg
[7]
where Brand JA said the following regarding the peremptory
requirements of section 4(2): -
“
Nevertheless,
it is clear from the authorities that even where the formalities
required by statute are peremptory it is not every
deviation from the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defect,
the object of the statutory
provision had been achieved (see, for example, Nkisimane and Others v
Santam Insurance Co Ltd
1978 (2) SA 430
(A) at 433H – 434B;
Weenen Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA)
para [13]).”
[8]
[9]
In
Moela
the content and manner of service of the notice had also not been
authorised and directed by an order of Court. Notwithstanding,
the
Supreme Court of Appeal found that: -
“
[9]
… The object of section 4(2) is clearly to ensure
that the unlawful occupier and municipality are fully
aware of the
proceedings and that the unlawful occupier is aware of his rights
referred to in section 4(5)(d). It may well be that
that object, in
appropriate circumstances, may be achieved notwithstanding the fact
that service of the notice required by section
4(2) had not been
authorised by the Court. That may, for example, be the case if at the
hearing it is clear that written and effective
notice of the
proceedings contained in the information required in terms of section
4(5) had in fact been served on the unlawful
occupier and
municipality 14 days before the hearing.”
[10]
When considering the content of the
section 4(2) notice in this matter, it clearly states that
proceedings have been instituted
for an order for the eviction of the
second respondent, it indicates the date and time of the court
proceedings, it sets out the
grounds for the proposed eviction and
states that the second respondent is entitled to appear before Court
and defend the case.
Quite evidently, the notice complies in all
respects with section 4(5) of PIE.
[11]
Moreover,
the Trust served the application for eviction on the City on
2 October 2020.
[9]
As
far as notification is concerned, the Trust did more than it was
statutorily required to do. I therefore find no merit in Ms Gilhar’s
argument that there has not been compliance with section 4(2) of
PIE.
[12]
In any event, the entitlement of the
Trust to seek an order for the eviction of Ms Gilhar is not
disputed as already stated.
It is most certainly also not suggested
that Ms Gilhar is homeless and has in fact during argument
voiced her intention of
returning to Israel. The only consideration
is what period of time would be regarded as just and equitable to
afford Ms Gilhar
to vacate the property.
[13]
In
determining a just and equitable date contemplated in section 4(8)
of PIE, the Court must have regard to all relevant factors,
including
the period the unlawful occupier has resided on the land in
question.
[10]
[14]
The
legislature did not limit those circumstances the Court should
consider and neither did it arrange the circumstances in order
of
priority. It referred to “
all
the relevant circumstances”
and left it to the Court to determine which circumstances are
relevant and to consider all those in conjunction. The fact that
the
legislature referred specifically to the rights and needs of the
elderly, children, the disabled and households headed by women
and,
in certain instances, also the availability of alternative land, does
not mean that the legislature intended to elevate these
circumstances
to absolute prerequisites which have to be met before an order may be
granted. If the legislature intended such a
consequence, it would
have said so specifically.
[11]
[15]
In arriving at a just and equitable date
on which Ms Gilhar is required to vacate the property, I have
taken the following
facts into consideration: -
[a]
Ms Gilhar occupied the property on
18 August 2019;
[b]
The
agreement of sale which gave rise to Ms Gilhar’s
occupation of the property, was cancelled by mutual consent on
27 February 2020;
[12]
[c]
The
parties agreed that Ms Gilhar would vacate the property on
30 March 2020;
[13]
[d]
On
the 26
th
of March 2020 a moratorium was placed on evictions during the
national state of lockdown as a result of the Covid 19
pandemic;
[14]
[e]
The
movement of persons was relaxed as of the 1
st
of June 2020, but notwithstanding, Ms Gilhar failed to
vacate the property;
[15]
[f]
The
Trust procured a new tenant during June/July 2020 and therefore
informed Ms
Gilhar
that she was required to vacate the property by the end of
July 2020;
[16]
[g]
Ms Gilhar
informed the Trust that she was planning to relocate to Israel and
that she would only move out of the property once
she has removed her
furniture from the property so that she could relocate in one go;
[17]
[h]
On
22 July 2020, the Trust and the new tenant concluded a lease
agreement commencing on the 1
st
of September 2020;
[18]
[i]
Ms
Gilhar was informed of the concluded lease and agreed to vacate the
property on or before the 30
th
of August 2020;
[19]
[j]
A
day after the agreement to vacate was recorded in a letter, Ms Gilhar
informed the Trust that she was “
going
nowhere without a Court Order
”;
[20]
[k]
The
first respondent and Ms Gilhar failed to make payment of the
water and electricity and levies since December 2019,
notwithstanding her continued occupation of the property;
[21]
[l]
The
property is occupied by Ms Gilhar and her adult son;
[22]
[m]
Ms Gilhar
is an elderly person and approximately 69 years of age;
[23]
[n]
Ms Gilhar
is not disabled and she is the head of the household;
[24]
[o]
No
rental is being paid to the Trust, despite Ms Gilhar’s
continued occupation;
[25]
[p]
The
Trust continues to suffer damages as a result of the unlawful
occupation, the non-payment of rental and the increase in consumption
charges which similarly remain unpaid, as well as its inability to
fulfil its obligations in terms of the lease agreement concluded
with
the new tenant;
[26]
[q]
There
is suitable alternative accommodation for rental in the same area
which can be readily provided to Ms Gilhar at a suitable
rental
fee;
[27]
[16]
In
the circumstances, the Trust contends that a period of 30 calendar
days to vacate the property would be more than reasonable
in the
circumstances.
[28]
[17]
It
is apposite that Ms Gilhar states in her answering affidavit
that she has been burdened with severe health issues “
for
the best part of the last several years”
.
[29]
She states that she attempted to obtain medical reports to prove her
condition from Edenvale Hospital, which she attended on
30 October 2020.
[18]
On
the 1
st
of December 2020, after the filing of her answering affidavit,
Ms Gilhar filed a supplementary answering affidavit. In
this
affidavit she refers to medical reports.
[30]
[19]
The medical reports referred to are in
the form of mostly illegible handwritten notes. It is not clear from
these notes who the
healthcare practitioner is who examined and
treated Ms Gilhar. A confirmatory affidavit by this healthcare
practitioner is
not attached either. From what I am able to decipher
from these notes, it would appear that Ms Gilhar suffers from
lower back
ailments and requires ongoing physiotherapy. It also
states that she is not fit to work.
[20]
Ms Gilhar
also suffers from chronic obstructive pulmonary disease, but appears
to be medicated for this condition and she does
not require
supplementary oxygen.
[31]
[21]
Ms Gilhar’s
general medical practitioner, Dr Grant Dalziel, in a short
note dated the 24
th
of
October 2019, states that Ms Gilhar is a severe diabetic
for many years and that she is medicated with insulin.
[32]
Again, there are no confirmatory affidavits attached to the
supplementary answer and as a result, very little weight can be
attached
to this evidence in my view.
[22]
At
best for Ms Gilhar, these medical notes reveal that she does
indeed suffer from certain medical conditions, but that she
is
receiving proper care and medication. Her conditions are therefore
managed and do not pose a deterrent to an order for her eviction.
In
fact, it does not appear to be Ms Gilhar’s case that her
medical conditions are such that she should not be evicted.
I
understand her case to be that she simply requires a reasonable
period within which to vacate the property.
[33]
[23]
In the premises, having considered the
factors advanced by both parties, I find that a period of 30 calendar
days afforded to Ms Gilhar
to vacate the property, would be just
and equitable.
THE
DISASTER MANAGEMENT ACT, 2002
[24]
Ordinarily, and
having considered all the relevant factors, the determination of a
just and equitable date upon which upon which
Ms Gilhar is to vacate
the property, would be the end of the matter. Nowadays, the position
has been complicated by the onset of
the worldwide COVID-19 pandemic.
Various restrictions have been imposed upon residential evictions
in terms of the Regulations
issued under the
Disaster Management Act,
2002
.
[25]
Since the hearing of this application,
and due to a surge in infections, the country was moved to adjusted
alert level 4 on 25 June
2021 and thereafter to adjusted alert level
3 on 25 July 2021.
[26]
In
Rathabeng
Properties (Pty) Limited v Mohlaol
i
[34]
this Court had occasion to consider the impact of the lockdown
regulations on evictions. I agree with the Court’s reasoning
and therefore consider this judgment as binding on me.
[27]
Under
the present Regulations for adjusted level 3 a curfew is in place
which requires persons to return to their residence by a
specific
time, otherwise risk being arrested.
[35]
[28]
Some
assistance can be gleaned from a comparison of the Regulations in
relation to each alert level provided for in the Regulations
that
were published on 29 April 2020
[36]
and
which have been amended from time to time, the most recent amendment
in relation to the hearing date being on 25 July
2021 which
substituted Chapter 4 to provide for an "
Adjusted
Alert Level 3
".
[29]
Chapter 3 of
the Regulations provides for alert level 4 and in
regulation 19
provides for a
'prohibition
on evictions'
as
follows:
"A
competent court may grant an order for the eviction of any
person from land or a home in terms of the provisions
of the
Extension of Security of Tenure Act, 62 of 1997
and the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act,
19 of 1998: Provided that any order
of eviction
shall
be
stayed and suspended until the last day [sic] Alert Level 4, unless a
court decides that it is not just and equitable to
stay and suspend
the order until the last day of the Alert Level 4 period.
"
(my emphasis)
[30]
This
prohibition, as also found in
Rathabeng
,
is clear enough in providing that such order of eviction as
may be granted by a court shall be stayed and suspended
until the end
of Alert Level 4, unless the court decides that it is not just and
equitable to so stay and suspend the order. The
stay and suspension
are linked to the end of Alert Level 4.
[37]
The severity of COVID-19 was sufficient that the Minister of
Cooperative Governance and Traditional Affairs, in consultation with
the relevant Cabinet members, promulgated a stay and suspension of
an eviction order as the default position i.e. unless
the
court ordered otherwise.
[31]
Chapter 4 of
the Regulations, which introduced alert level 3 with effect from 1
June 2020 provided in regulation 36 that a person
may not be evicted
from his or her land or home during the period of Alert Level 3
period, however a competent court may grant
an order for
the eviction of a person from his or her land or home in
terms of the provisions of the Extension of Security
of Tenure Act,
1997 (Act 62 of 1997) and the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act,
1998 (Act 19 of 1998), provided
that an order of eviction may be stayed and suspended until
the last day of Alert Level
3 period, unless a court decides that it
is not just and equitable to stay and suspend the order until the
last day of the Alert
Level 3 period.
[32]
The default
position under adjusted alert level 3 appears to be that a person
person may not be evicted from her home during the
period of adjusted
alert level 3, unless the court decides that it is not just and
equitable to so stay and suspend the order.
[33]
The
introduction of Chapter 5 into the regulations providing for Alert
Level 2, provides for more extensive regulations. The relevant
regulation, Regulation 53, is no longer headed
"Prohibition
on evictions"
but
rather
"Eviction and
demolition of places of residence"
and
reads:
"53. Eviction and
demolition of places of residence.— (1) A person may not be
evicted from his or her land
or home or have his or her place of
residence demolished for the duration of the national state
of disaster unless a
competent court has granted an order
authorising the eviction or demolition.
(2)
A competent court
may
suspend or stay any order
for eviction or demolition contemplated in subregulation
(1) until after the lapse or termination
of the national state
of disaster unless the court is of the opinion that it is
not just or equitable to suspend or stay
the order having regard, in
addition to any other relevant consideration, to—
(a)
the need, in the public interest for all persons to have access to a
place of residence and basic services
to protect their health and the
health of others and to avoid unnecessary movement and gathering with
other persons;
(b)
any restrictions on movement or other relevant restrictions in place
at the relevant time in terms of
these regulations;
(c)
the impact of the disaster on the parties;
(d)
the prejudice to any party of a delay in executing the order and
whether such prejudice outweighs the
prejudice of the person who will
be subject to the order;
(e)
whether any affected person has been prejudiced in his or her ability
to access legal services as a
result of the disaster;
(f)
whether affected persons will have immediate access to an alternative
place of residence
and basic services;
(g)
whether adequate measures are in place to protect the health of any
person in the process of a relocation;
(h)
whether any occupier is causing harm to others or there is a threat
to life; and
(i)
whether the party applying for such an order has taken reasonable
steps in good faith, to
make alternative arrangements with all
affected persons, including, but not limited to, payment arrangements
that would preclude
the need for any relocation during the national
state of disaster.
(3)
A court hearing any application to authorise an eviction or
demolition may, where appropriate and in addition to any
other report
that is required by law, request a report from the responsible member
of the executive regarding the availability
of any emergency
accommodation or quarantine or isolation facilities pursuant to these
Regulations.”
(my
emphasis)
[34]
Ultimately the power
whether to suspend or stay the eviction order remains
discretionary.
[35]
As the court stated in
Rathabeng
common sense should
compel the conclusion that the restrictions provided for in Levels 1
and 2 should be less onerous than those
for Level 3 and 4 where the
risks posed by the COVID-19 pandemic are less than they would be
under Level 3.
[36]
Judicial
notice in my view can be taken of the fact that since the 'third
wave' of the pandemic arrived in South Africa, there has
been some
decline in new infections and that Government is making every effort
to ensure that vaccinations are administered at
a rapid pace.
Nonetheless one cannot ignore the highly infectious Delta variant of
the corona virus either.
[37]
Based upon
such relevant factors I am of the view that it would be just and
equitable to stay or suspend the eviction order
until after
the end of adjusted level 3. This means that Ms Gilhar and other
occupants of the property will have two weeks after
the end of
adjusted level 3 to vacate the property, failing which
the eviction order may be carried out a further two
weeks
thereafter. This effectively affords Ms Gilhar and other occupants a
month to vacate the property once the present adjusted
level 3 ends.
[38]
The
stay of the eviction order shall be a condition as
envisaged in terms of section 4(12) of PIE, which will enable either
of the parties to approach the court in terms of that subsection, on
good cause shown, for a variation of the eviction order.
This allows for the exigencies that may arise, such as a resurgence
in the spread of the COVID-19 virus. “
The
regulations themselves are in a state of flux and therefore too an
order of suspension cannot be so cast in stone that it cannot
be
revisited should it be necessary to do so if a change in
circumstances so requires.
”
[38]
THE
MONEY CLAIMS
[39]
As alluded, the Trust, simultaneously
with the eviction proceedings, claims payment of rental, levies and
water and electricity.
Rental
[40]
On
the 12
th
of August 2019 the Trust and the first respondent, represented
by Ms Gilhar, concluded a written agreement of sale in
respect
of the property.
[39]
The
material terms of the agreement were as follows: -
[a]
The purchase price for the property was
R7 million;
[b]
The full purchase price would be paid by
way of an irrevocable bank guarantee provided to the attorneys within
three days of acceptance
of the offer;
[c]
Transfer of the property would be
effected by the 15
th
of February 2020 of earlier by mutual agreement;
[d]
Occupation of the property would be
given on satisfaction of an irrevocable bank guarantee drawn in
favour of the Trust or its nominee;
[e]
The first respondent would be liable for
payment of all utilities from date of occupation, which would include
water and electricity
and levies in the amount of R2,500.00 per
month;
[f]
If requested by the Trust, the first
respondent would be obliged to vacate the property immediately upon
cancellation of the sale
for any reason whatsoever, it being agreed
that no tenancy would be created by any such prior occupation (clause
3.2).
[41]
It
is apposite that the occupational rental payable was not stipulated
in clause 3.1.
[40]
[42]
The
original guarantee was delivered to the estate agents by Ms Gilhar
on 15 August 2019.
[41]
On the face of it, the guarantee appeared to be legitimate and as a
result, Ms Gilhar was afforded occupation to the property
on
18 August 2019.
[42]
However, on closer inspection of the guarantee the conveyancing
attorneys expressed concern that it did not provide for the immediate
transfer of the purchase price upon registration of the property into
the name of the first respondent. Therefore, in an effort
to obtain
clarity, the conveyancing attorney contacted the bank that issued the
guarantee and requested verification that the guarantee
was true and
proper and that the funds stipulated in the guarantee would be paid
out on the date of transfer of the property. The
bank was requested
to confirm how payment would be effected since it did not have a
local bank in South Africa.
[43]
[43]
On
27 September 2019 Ms Gilhar informed the conveyancing attorney
that her communications with the bank who granted the guarantee
were
unacceptable. The bank who granted the guarantee never replied to the
e
mail
of the conveyancing attorneys.
[44]
[44]
In
an effort to resolve the issue regarding the guarantee, the Trust and
the first respondent concluded an addendum on the 25
th
of October 2019 in terms whereof the full purchase price would
be paid into the conveyancer’s trust account on written
demand,
but in any event at least 10 working days prior to the lodgement of
the transfer in the Deeds Office. It was further agreed
that all
water and electricity consumption charges, together with the levy in
the amount of R2,500.00 would be paid on the first
day of each month
and that the first respondent would vacate the property within
30 days after cancellation of the agreement
for any reason
whatsoever.
[45]
[45]
On
20 January 2020 the conveyancing attorneys informed the first
respondent and Ms Gilhar that the guarantee of R7 million
was required by the 3
rd
of
February 2020.
[46]
[46]
On
the 31
st
of January 2020 the conveyancing attorneys followed up again
with the first respondent and Ms Gilhar and enquired when
payment of the purchase price and transfer costs could be expected.
Ms Gilhar replied on the 31
st
of
January 2020 and advised that the conveyancing attorneys would
not be “
receiving
a guarantee but an eft directly into [their] account.”
[47]
[47]
Notwithstanding
the undertaking, payment was not made on the 3
rd
of February 2020 and Ms Gilhar was afforded a further
opportunity to pay the full purchase price by the 15
th
of
February 2020.
[48]
Notwithstanding the commitment to make payment by the 15
th
of
February 2020, the purchase price remained unpaid. As a result,
the agreement was cancelled by mutual consent and
Ms Gilhar
agreed to vacate the property by the 30
th
of
March 2020, which she failed to do.
[48]
In
support of its claim for monthly rental in the amount of R35,000.00,
the Trust relies on the lease agreement that it concluded
with one
Yehuda Schaverin during the month of June/July 2020. I
emphasize that neither the agreement of sale, nor the
addendum
specifies a particular monthly rental amount. This omission does not
necessarily pose a difficulty for the Trust. The
rental provided for
in an agreement is no more than evidential material as to
market-related rental.
[49]
Therefore, what is of importance is what the occupier states or
pleads in response to an allegation of a market rental value.
[50]
[49]
If there is no legally effective
challenge to the landlord’s allegations that the rental
provided for in the lease is the
market rental value, then the
damages are readily ascertainable and therefore liquidated. This
Court has found previously that: -
“
This
appears to be the most sensible approach because without
countervailing evidence the agreement struck by the parties reflects
the amount at which willing and able parties are prepared to conclude
their transaction. It also enables a landlord to use the
expedited
process of motion proceedings and summary judgment to pursue a
damages claim based on holding over.”
[51]
[50]
Where
however there is a legitimate challenge to the rental provided for in
the lease being equivalent to the market rental value,
then the basis
for relying on the lease to render the damages claim liquidated
fails, thereby rendering the claim illiquid. However,
the respondents
must still be able to challenge the legal assumption that the rental
provided for in the lease agreement is not
market-related. In this
regard it would become necessary to examine how the principles
enunciated in
Sandown
Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd
[52]
is to be applied to motion proceedings which require a real, genuine
or
bona
fide
defence to be raised in order to defeat a claim for final relief.
[53]
[51]
It
therefore appears that in this instance the rental dilemma is to be
resolved as follows: If the respondents did not set out a
bona
fide
defence, then there is no countervailing evidence regarding
market-related rental and the actual rental charged or agreed to
between
the Trust and the respective tenant would be the only
acceptable evidence. If that is so, then the amount is liquidated,
otherwise
it is illiquid and incapable of supporting motion
proceedings.
[54]
[52]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[55]
is the
locus
classicus
on what constitutes a
bona
fide
defence. In
Hyprop
the Full Bench of this Court broadly summarised the principal ways in
which a dispute of fact arises as enunciated in
Room
Hire
as follows: -
“
(a)
Where the respondent denies all material allegations ‘and
produces or will produce, positive evidence
by deponents or witnesses
to the contrary’;
(b)
Although admitting the applicant’s evidence, the respondent may
allege other facts which the former
disputes;
(c)
Where the respondent claims lack of knowledge and puts the applicant
to the proof, but produces evidence,
or indicate that he intends
leading evidence to demonstrate the unreliability of the applicant’s
averments and that certain
essential facts are untrue.”
[53]
In
Plascon-Evans
[56]
the then Appellate Division considered the circumstances where a
dispute would not be considered
bona
fide
: -
“
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 respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact
(see in this regard Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163-5;
Da Matta v Otto N.O.
1972 (3) SA 858
(A) at 882D - H). If
in such a case the respondent has not availed himself of his right to
apply for the deponent’s concern
to be called for
cross-examination under rule 6(5)(g) of the Uniform Rules of
Court (cf. Peterson v Cuthbert & Co
Ltd
1945 AD 420
at 428;
Room Hire case supra at 1164) 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 (see example Rikhoto v
East Rand Administration Board and Another
1983 (4) SA [....] (W) at
283E - H). 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 (see the remarks of
Botha AJA in the Associated South African Bakeries case, supra
at 924A).”
[57]
[54]
Applying these principles to the
answering affidavit, I find that Ms Gilhar and the first
respondent have failed to establish
a real, genuine and
bona fide
factual dispute, for the following reasons: -
[a]
Ms Gilhar baldly states at paragraph 6
of the answering affidavit that: -
“
None
of these amounts claimed is based on an agreement and there are
obvious disputes of fact, which necessarily ought to be resolved
by
way of action (and trial) and not by way of application.”
[58]
[b]
Ms
Gilhar states further at paragraph 7 that evidence would be required
to be led substantiating the claims and that such evidence
would
require expert testimony “
for
example the reasonableness of the rental claimed of R35,000.00 per
month”
;
[59]
[c]
Ms
Gilhar baldly denies that the relief sought is appropriate in motion
proceedings and she denies any liability for the amounts
claimed by
the applicants.
[60]
[55]
Significantly, Ms Gilhar does not
respond to the allegation contained in the founding affidavit that a
lease agreement for
a monthly rental amount of R35,000.00 was
concluded. Although she states that no evidence is before Court that
the rental amount
is reasonable, she most certainly made no effort to
advance any facts before this Court proving that the rental amount is
unreasonable.
As a result, there is no challenge to the Trust’s
allegation that the reasonable monthly rental amount whilst in
occupation
of the property would be R35,000.00 per month.
[56]
In the premises, I find that the Trust
discharged its onus of proving the rental amount and rental period
claimed.
Levies,
water and electricity
[57]
In
its founding affidavit the Trust provides evidence by way of
municipal accounts and schedules with a breakdown of the amount
paid
for water and electricity and levies for the period of September to
November 2019. This amount totals R27,094.59 and
was paid by the
Trust.
[61]
[58]
Significantly,
when the conveyancing attorneys furnished Ms Gilhar with proof
of payment of the aforesaid amount, the first
respondent made payment
of R27,094.59 on 28 December 2019 and made a further
payment of R3,129.14 in December 2019.
[62]
[59]
The
Trust asserts that at some stage Ms Gilhar questioned the water
consumption as she believed there was a leak on the property.
The
Trust promptly employed the services of plumbers to check for any
leaks on the property and received confirmation that no leak
was
detected.
[63]
[60]
The
Trust made further payments of water and electricity costs for the
period December 2019 to August 2020 in the amount
of
R69,987.99 and attaches municipal accounts, together with proof of
payment in support.
[64]
It
also attaches a statement reflecting the payments in respect of
levies for the period December 2019 to August 2020.
[65]
[61]
The fact that the first respondent made
payment of the water and electricity and levies for the period
September to November 2019
indicates an admission of liability
for these amounts. In Ms Gilhar’s answering affidavit, she
does not dispute the
schedules or the amounts claimed. Accordingly, I
find that the Trust is entitled to payment of the water, electricity
and levies
as claimed for in its notice of motion.
COSTS
[62]
The Trust seeks an order for costs
against the first respondent and Ms Gilhar jointly and
severally. Ms Gilhar does not
ask for a dismissal of the
application, nor does she claim an order for costs. However, it must
be borne in mind that Ms Gilhar
did represent herself throughout
the proceedings, although it is apparent from the issues raised in
her answering affidavit as
well as in her heads of argument that she
may have received some legal advice, albeit on an informal basis. In
fact, Ms Gilhar
conceded that much during the hearing.
[63]
It
is trite that the issue of costs falls within the judicial
discretion. The basic principle in awarding costs is that a party
who
is substantially successful is entitled to be awarded costs in the
absence of special circumstances.
[66]
[64]
In
Fleming
v Johnson & Richardson
[67]
the principle was explained as follows:
-
“
It
is a sound rule that where a plaintiff [applicant] is compelled to
come to Court and recovers a substantial sum which he would
not have
recovered had he not come to Court, then he should be awarded his
costs.”
[65]
Ms Gilhar made it abundantly clear
in correspondence which preceded the present litigation, that she
would not vacate the property
unless a Court issued directives in
this regard. She repeated this statement in her heads of argument.
The Trust therefore had
no alternative but to approach the Court in
these circumstances.
[66]
I therefore find no special
circumstances urging me to deviate from the normal principle that
costs should follow the result.
ORDER
I
therefore make the following order: -
[1]
The second
respondent, and all those claiming occupation through, by or under
her are evicted from
Portion 4
of Erf [....], Morningside Extension 21 Township, situated
at 4, [....] C[....] Road, Morningside
["the
property"].
[2]
On condition,
as envisaged in section 4(12) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Act,
1998, that the present adjusted level 3 under the Regulations issued
in terms of section 27(2) of the Disaster Management Act,
2002 ("the Regulations") has ended, the first and second
respondents, and all those that occupy through, by or under
them are
ordered to vacate the property within fourteen days on the condition
being fulfilled.
[3]
The sheriff
and/or deputy sheriff, assisted by such persons as he or she requires
including the South African Police Services, are
authorised and
directed to give effect to paragraphs 1 and 2 above, including
removing from the property the respondents and any
other occupants
and/or their belongings, no earlier after the fourteen days after the
period specified in paragraph 2 above in
the event the property is
not vacated within the period specified in paragraph 2 above.
[4]
The first and second respondents shall,
jointly and severally, the one paying the other to be absolved, make
payment to the applicants
of the following amounts: -
[a]
R69,987.99 for the water and electricity
consumption for the period 11 December 2019 to 31 August
2020;
[b]
R22,500.00 for the levies for the period
11 December 2019 to 31 August 2020;
[c]
R420,000.00 for the rental period of
18 August 2019 to 31 August 2020;
[d]
R35,000.00 per month for rental for the
period 1 September 2020 until the date that the second
respondent and all those
occupying the property through her, vacate
the property;
[5]
All amounts in relation to the water and
electricity consumption for the property for the period
1 September 2020 until
the date that the second respondent
and all those occupying the property through her, vacate the
property;
[6]
The monthly levy amount of R2,500.00 in
respect of levies raised over the property for the period
1 September 2020 until
the date that the second respondent
and all those occupying the property through her, vacate the
property;
[7]
The first and second respondents shall
pay the costs of the application, jointly and severally, the one
paying the other to be absolved.
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE
HIGH COURT
Date
of hearing:
30 April 2021
Date
of judgment:
26 July 2021
APPEARANCES:
On
behalf of applicants:
Adv O Mokgotho
o.mokgotho@group621.co.za
Instructed
by:
Mervyn Taback Inc t/s Andersen
Sibusiso.mlangeni@za.andersen.com
On
behalf
second
respondent:
Appearance in person.
adriana1st@icloud.com
[1]
CaseLines:
pp 001-2 to 001-3.
[2]
CaseLines:
Respondents’ heads of argument, paragraph 2, p 006-25.
[3]
CaseLines:
Respondents’ heads of argument, paragraph 2, p 006-25.
[4]
2001
(4) SA 1222 (SCA).
[5]
CaseLines:
return of service, p 002-5.
[6]
2005
(4) SA 357 (SCA).
[7]
2005
(4) SA 199 (SCA).
[8]
Paragraph
[22].
[9]
CaseLines:
return of service, p 002-1.
[10]
Groen
Gras Eiendomme (Pty) Ltd and Others v Elandsfontein Unlawful
Occupants and Others
2002 (1) SA 125 (T).
[11]
Groen
Gras Eiendomme (Pty) Ltd and Others v Elandsfontein Unlawful
Occupants and Others
2002 (1) SA 125
(T), paragraph [32].
[12]
CaseLines:
founding affidavit, annexure “PD25”, p 001-106.
[13]
CaseLines:
founding affidavit, annexure “PD25”, p 001-106.
[14]
CaseLines:
founding affidavit, paragraph 52, p 001-20.
[15]
CaseLines:
founding affidavit, paragraph 55, p 001-21.
[16]
CaseLines:
founding affidavit, paragraphs 56 and 57, p 001-21.
[17]
CaseLines:
founding affidavit, paragraph 58, p 001-21.
[18]
CaseLines:
founding affidavit, paragraph 61, p 001-22.
[19]
CaseLines:
founding affidavit, paragraph 65, p 001-22.
[20]
CaseLines:
founding affidavit, paragraph 67, p 001-23; annexure “PD28”,
p 001-118.
[21]
CaseLines:
founding affidavit, paragraph 72, p 001-24.
[22]
CaseLines:
founding affidavit, paragraph 110.1, p 001-31.
[23]
CaseLines:
founding affidavit, paragraph 110.2, p 001-31.
[24]
CaseLines:
founding affidavit, paragraphs 110.3 and 110.4, p 001-31.
[25]
CaseLines:
founding affidavit, paragraph 111.1, p 001-31.
[26]
CaseLines:
founding affidavit, paragraphs 111.2 and 111.3, pp 001-31 and
001-32.
[27]
CaseLines:
founding affidavit, paragraph 114.3, p 001-33.
[28]
CaseLines:
founding affidavit, paragraph 130, p 001-36.
[29]
CaseLines:
answering affidavit, paragraph 9, p 004-4.
[30]
CaseLines:
supplementary answering affidavit, paragraph 2, p 016-1.
[31]
CaseLines:
supplementary answering affidavit, p 016-6.
[32]
CaseLines:
supplementary answering affidavit, p 016-7.
[33]
CaseLines:
answering affidavit, paragraph 15, p 004-5.
[34]
2021
JDR 0275 (GJ)
[35]
Regulation
33; GN 650 and 651 of GG 44895
[36]
GNR
480 of GG43258, 29 April 2020.
[37]
See
Anchorprops
31 (Pty) Ltd v Levin
[2020]
ZAGPJHC 183 (28 May 2020), para 40 as an example of the application
of regulation 19.
[38]
Rhatabeng
par. 62
[39]
CaseLines:
founding affidavit, annexure “PD5”, p 001-43.
[40]
CaseLines:
founding affidavit, offer to purchase, p 001-45.
[41]
CaseLines:
founding affidavit, paragraph 24, p 001-14.
[42]
CaseLines:
founding affidavit, paragraph 25, p 001-14.
[43]
CaseLines:
founding affidavit, paragraph 27, p 001-15.
[44]
CaseLines:
founding affidavit, paragraph 30, p 001-15.
[45]
CaseLines:
founding affidavit, paragraph 32, p 001-16; annexure “PD12”,
pp 001-61 to 001 62.
[46]
CaseLines:
founding affidavit, paragraph 43, p 001-19.
[47]
CaseLines:
founding affidavit, paragraph 46, p 001-19; annexure “PD23”,
p 001-103.
[48]
CaseLines:
founding affidavit, paragraph 48, p 001-20.
[49]
Hyprop
Investments Ltd and Another v NCS Carriers and Forwarding CC and
Another
2013 (4) SA 607
(GSJ), paragraph [66].
[50]
Hyprop
Investments Ltd and Another v NCS Carriers and Forwarding CC and
Another
2013 (4) SA 607
(GSJ), paragraph [67].
[51]
Hyprop
Investments Ltd and Another v NCS Carriers and Forwarding CC and
Another
2013 (4) SA 607
(GSJ), paragraph [68].
[52]
1985
(1) SA 248 (W).
[53]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634I.
[54]
Hyprop
Investments Ltd and Another v NCS Carriers and Forwarding CC and
Another
2013 (4) SA 607
(GSJ), paragraph [71].
[55]
1949
(3) SA 1155 (T).
[56]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[57]
At
634H – 635C.
[58]
CaseLines:
answering affidavit, paragraph 6, p 004-4.
[59]
CaseLines:
answering affidavit, paragraph 7, p 004-4.
[60]
CaseLines:
answering affidavit, paragraph 8, p 004-4.
[61]
CaseLines:
founding affidavit, paragraph 33, p 001-17.
[62]
CaseLines:
founding affidavit, paragraphs 36 and 37, p 001-17.
[63]
CaseLines:
founding affidavit, paragraphs 38 and 39, p 001-18.
[64]
CaseLines:
founding affidavit, paragraph 41, p 001-18.
[65]
CaseLines:
founding affidavit, paragraph 42, p 001-18.
[66]
Kathrada
v Arbitration Tribunal
1975 (2) SA 673
(A) at 680C;
Fleming
v Johnson & Richardson
1903 TS 319
at 325.
[67]
1903
TS 319
at 325.