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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 849
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Chris Vlok Property Services Tshwane CC v Gerber (49234/2020) [2021] ZAGPPHC 849 (24 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
: 49234/2020
DATE:
2021.06.24
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between
Chris
Vlok Property Services Tshwane CC
and
Ms
T Gerber
JUDGMENT
VORSTER,
AJ:
Before me
is an application for
leave to
appeal. On
the 21
ST
of May I granted an eviction order against the respondent
.
I will refer to the parties as in the
main application. A commercial entity, the applicant, is the owner of
a property, and based
on the
·
rei
vindication,
reclaimed possession of
the property. It is not in dispute that there is no legal basis, a
contractual agreement between the parties
which entitles the
respondent
to
remain in occupation of the property. The only basis upon which he
resists the eviction application, the respondent, is based
on a purported
enrichment
claim.
I
have dealt in my judgment with why I was not of the view that the
enrichment defence can succeed. And it is basically because
the
expenses which were incurred, rendered the use of the property
illegal. It basically rendered the owner of the property, the
applicant, susceptible to criminal prosecution, and also to
substantial civil liability.
The
basis of the application for leave to appeal is that these
improvements, although it is common cause on the papers, and it is
also stated in the application for leave to appeal, that it was
effected in order to convert the residence to a restaurant, may
also,
and it is pleaded in very ambiguous terms, could also be useful from
a residential perspective.
Now,
there
is
a
complete
lack
of
particularity,
a
dearth
of
any
evidence of any sort in the papers itself, which would give the
Cou
r
_
t
any indication which of the expenses would have been useful also from
a residential perspective, and to extricate those expenses,
mean, it
is not only an exercise which support cannot embark on, it is simply
not set out in the papers.
Ms Stroebel has
now asked me to grant punitive costs against the sole member, Mr
Vlok,
de bonis propriis,
and
she has alluded to the circumstances under which a person in a
representative capacity
might
be
held
personally
liable
for
costs.
I
have also made reference to the Constitutional Court case where those
requirements were discussed in my main judgment when I dealt
with
costs.
But
I do not, as
have
indicated to Ms Stroebel, I do not believe I can make a cost order
against
Mr
Vlok
himself,
the
only
member,
even
if
I
was
inclined to do so, because he was not given prior warning that such
an order would be sought against him in his representative
capacity,
or personally
against
him.
I
might just also mention that this application is decided in default
of appearance by the respondent, Mr, or Mr Vlok, his representative,
although he had proper knowledge of these proceedings, and to that
effect, I have already alluded to the fact that I have asked
the
applicants attorney to upload a service
affidavit
onto
Caselines
indicating
that
the
respondent had notice
of
these
proceedings.
I
take a dim view of the fact that the application for leave to appeal
is brought, which has delayed execution of the order, which
I granted
by almost a month now. And then the respondent, or his
representative, simply does not show up.
So,
Ms Stroebel requested me to reserve the issue of costs, so that they
can bring an application to hold Mr Vlok, the only member,
personally
liable for the costs of this application for leave to appeal.
So,
having said that, the application for leave to appeal is dismissed,
and the costs of the application is reserved.
I
hand down judgment.
VORSTER,
AJ
ACTING
JUDGE OF THE HIGH COURT
DATE:
24/6/21