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[2021] ZAGPJHC 469
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Agliotti v Agliotti and Others (2019/37944) [2021] ZAGPJHC 469 (27 September 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2019/37944
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
27 SEPTEMBER 2021
In the matter between:
AGLIOTTI,
ALAN
GORDON
Applicant
and
AGLIOTTI,
DANICA
First Respondent
OCCUPIERS OF ERF
[....] PARKMORE,
JOHANNESBURG TOWNSHIP,
REGISTRATION DIVISION
IR
PROVINCE OF GAUTENG
Second Respondent
JOHANNESBURG
METROPOLITAN MUNICIPALITY
Third Respondent
JUDGMENT
This judgment is
handed down electronically by circulation to the parties or their
legal representatives via email and by uploading
same onto CaseLines.
The handing down of this judgment is deemed to be 27 September 2021.
MOOKI AJ:
[1]
The applicant seeks to have the first and
second respondents evicted from premises situated at Erf [....],
Parkmore, Johannesburg
Township, Registration Division I.R., Province
of Gauteng (“the property” or “the premises”).
He seeks
eviction in terms of the Prevention of Illegal Evictions
from Occupation of Land Act, 19 of 1998 (“PIE”).
[2]
There is no challenge to the procedural
requirements for the grant of relief under PIE. The second and third
respondents did not
participate in the application. I refer to the
first respondent as “the respondent” for ease of
reference.
[3]
The applicant purchased the property at a
public auction on 12 September 2017. The property was transferred
into the applicant’s
name on 9 September 2019. The respondent
resides on the premises, which she also uses to conduct business as a
guesthouse.
[4]
The applicant has not given the respondent
permission to occupy the premises. She refuses to vacate. The
respondent admits that
the applicant is the lawful owner of the
property.
[5]
The respondent has known of the eviction
application since November 2019. She threatened to institute legal
proceedings against
the applicant. Those proceedings were,
ostensibly, to challenge the applicant’s right to the property.
The respondent had
not brought any legal challenge pertaining to the
property as at the hearing of this matter.
[6]
There are no minor children or disabled
persons residing at the property. The respondent owns and/or has
control of three different
properties. The applicant contends, on
that account, that the respondent has alternative accommodation. The
respondent does not
deny that the three properties constitute
adequate housing. She does not deny that the properties are available
to her for her
accommodation. She did not plead that an eviction
would render her homeless.
[7]
The applicant was compelled to sell the
property that was his residence leading to the eviction proceedings.
He could not afford
bond repayments. The bank was to sell the
property on auction.
[8]
The applicant is a boarder at a one-bedroom
cottage, having had to give-up his previous residence. His lease
commenced on 1 January
2021 for a period of 3 months. He remains in
occupation on a month-to-month basis. He contends that he will have
nowhere live absent
the respondent’s eviction.
[9]
The respondent has not shown a lawful
entitlement to residing on the property. She is in unlawful
occupation.
[10]
The court is then to consider whether it is
just and equitable that the respondent be evicted from the property.
There is no closed
list. A court must consider the circumstances
peculiar to a matter before court.
[11]
It is manifestly just and equitable that
the respondent be evicted. She has no entitlement to residence in the
property. She will
not be rendered homeless. Her contention that the
three properties are owned by trusts or that the properties are
saddled in debt
are not weighty considerations. She did not say how
the trusts being saddled with debt was a bar to her using any of the
properties
for her accommodation. Indeed, she did not contend that
she could not reside in any of the three properties. This is to be
contrasted
with the applicant, having purchased the subject property
for millions of Rand and now being obliged to be a lodger in a
cottage.
[12]
I grant relief as sought by the applicant.
The respondent should be given the opportunity to get her affairs in
order in relation
to where she will keep accommodation. A period of
two months from the date of service of this order ought to be
sufficient.
[13]
I make the following order:
1.
The first respondent and all persons
(collectively “respondents”) occupying with and through
the first respondent are
hereby evicted from the immovable property
situated at Erf [....] Parkmore, Johannesburg Township, Registration
Divisin IR Province
of Gauteng, referred to as “the property”.
2.
The respondents are ordered to vacate the
property within a period of two months of this order being served on
them.
3.
It is further ordered that if the
respondents do not vacate the property as set out in (2), then it
that event the Sheriff; alternatively,
the Sheriff’s appointed
deputy, together with such assistance as is deemed appropriate, is
authorised and directed to evict
respondents from the property.
4.
The first respondent is ordered to pay the
costs of this application and the costs of the s 4(2) application of
the PIE Act.
O. MOOKI
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard
:
19 July 2021
Judgment
:
27 September 2021
Applicant’s
Counsel
:
R Putzier
Instructed
by
:
Dewey
Hertzberg Levy Inc
Respondent’s
Counsel
: P W
Makhambeni
Instructed
by
:
Ranamane
& Kgabo Attorneys