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[2021] ZAGPJHC 470
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Fellinger v Cox and Others (2020/12597) [2021] ZAGPJHC 470 (27 September 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2020/12597
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
27 SEPTEMBER 2021
In the matter between:
FELLINGER,
ERIC
Applicant
and
COX,
ENOCH
First Respondent
COX,
DOREEN
Second Respondent
ALL
OCCUPIERS OF ERF [....] YEOVILLE TOWNSHIP
Third Respondent
THE
CITY OF JOHANNESBURG
Fourth 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 an order evicting the
respondents from premises at Erf [....] Yeoville Township,
Johannesburg (“the premises”).
The applicant contends
that the respondents are unlawful occupiers. The applicant
seeks eviction in terms of the Prevention
of Illegal Evictions from
Occupation of Land Act, 19 of 1998 (“PIE”).
[2]
I refer to the second respondent as (“the
respondent”). The City of Johannesburg Municipality did not
participate in
the proceedings.
[3]
The respondent seeks a counterclaim in
relation to the premises. The counterclaim is essentially to oblige
the applicant and his
former wife (“Doreen”), to effect
transfer of the premises into the name of one Gertrude Angela
Williams (“Williams”).
The counterclaim also seeks to
have Williams joined as a respondent. The applicant opposes the
counterclaim.
[4]
The applicant and Doreen were married in
community of property. The property that forms the subject of this
application is, by deed
[....]/1992, registered jointly in their
respective names. They divorced on 10 October 2003. The
settlement agreement
in the divorce does not address how the
immovable property was to be treated after the divorce.
[5]
Doreen has subsequently went missing. The
applicant filed a missing person’s report with the South
African Police Service
on 22 November 2019. Doreen’s
whereabouts remained unknown when this application was launched.
[6]
The respondent contends that the
application is premature. That is because only registered owners of
the property could bring eviction
proceedings. She contends that an
executor had to have been appointed for Doreen, pursuant to
sections
12
and
13
of the
Administration of Estates Act, 66 of 1965
and that
the applicant had no standing to bring the application.
[7]
The contention that the application is
premature is premised on Doreen having gone missing. The contention
is unsound. The respondent
has not shown that the estate of Doreen
must be dealt with as detailed in the two sections. The sections do
not apply to the estate
of a missing person.
[8]
The applicant and Doreen vacated the
premises as a family home in 2008. That is when the first and
second respondents took
occupation. The first respondent has since
died. The respondent remains in occupation. She stays with her three
adult children
and four grandchildren.
[9]
The applicant contends that the respondents
occupied the premises pursuant to an agreement of lease between the
applicant, Doreen
and the respondents; that the respondents failed to
comply with their obligations under that agreement, leading to
termination
of the lease.
[10]
The respondent contends that her occupation
has nothing to do with the applicant or Doreen; she never had
dealings with the applicant,
and never concluded any agreement with
the applicant or Doreen. She maintained that she occupies the
premises pursuant to an arrangement
between her and Williams, her
sister.
[11]
The case for the respondent is that
Williams purchased the property from Doreen in terms of a “deed
of sale” dated 31
October 2008. The first and second
respondents are indicated as witnesses to this document.
[12]
Williams, according to the respondent,
purchased the property on behalf of the first and second respondents
because they had no
money at the time. Doreen sold the property to
Williams for R250,000.00. Williams paid Doreen a deposit in the
amount of R30,000.00.
The arrangement between the first and second
respondents and Williams was that the respondent would pay Doreen
R3000,00 per month
until the purchase price was paid up. The property
would, thereafter, be transferred into the names of the first and
second respondents.
[13]
The applicant denies that Doreen sold the
property. The respondent, in turn, referred to a document styled
“Deed of Sale”,
bearing the date 31 October 2008 and to a
letter by Doreen dated 23 August 2011. Doreen addressed the
letter to the Observatory
Girls School. She copied Williams.
The letter reads as follows:
Dear Sir/Madam
Please be advised that
Mrs Williams has purchased the (sic) on deed of sale. Her
sister Doreen lives on the property a (sic)
monthly rent of R3000.
(sic) into my FNB bank account. Account number: [account number
specified].
For further information
please feel free to email me.
Yours faithfully
(signed)
D.F. Fellinger
[14]
The applicant contends that reference to
“rent of R3000” in the letter confirms his view that the
first and second respondents
are in occupation pursuant to a lease
agreement, which has since been cancelled. The respondent, on
the other hand, maintained
that the first line of the letter confirms
that Doreen sold the property to Williams.
[15]
Williams deposed to a confirmatory
affidavit. She agreed with the respondent regarding the purchase of
the property. She also supports
the counterclaim. Williams says in
her affidavit that it was agreed that Williams would, in due course,
either take transfer
and allow her sister and or her family to live
in the premises or that the respondent would take transfer of the
property after
the respondent had paid Williams the monies loaned to
the respondent; that she agreed with the respondent immediately
before purchasing
the property that the respondent and her family
could reside in the property; that the respondent would be
responsible for municipal
utility charges and was to pay the monthly
amount of R3000 in respect of the purchase price. Williams
further maintained
that the full purchase price had been made and
that she was entitled to acquire transfer of the property, which
transfer had been
refused despite her demand.
[16]
The applicant maintains that the deed of
sale does not bind him; that the deed of sale is invalid because he
did not, as a registered
co-owner of the property, sign the
agreement. The respondent in turn contends that the agreement is
valid because the divorce settlement
agreement entitled Doreen to
treat the property as her own.
[17]
The applicant denies that the settlement
agreement entitled Doreen to deal with the property however she
wished. He never
renounced his half share entitlement to the
property. He further pointed out that the stated deed of sale was
never registered
against the title deed, and, for that reason,
Williams had no right against him in relation to the property.
[18]
It was submitted on behalf of the
respondent that the “deed of sale” was valid because
Doreen was the beneficial owner
of the property and, for that reason,
could sign the deed of sale on her own. The respondent referred to
clause 2.3 of the divorce
settlement agreement in support of her
contention. The clause states that:
The parties have agreed,
with regard to their respective proprietary claims to retain those
assets presently in their respective
possession and/or under their
respective control in settlement of their respective claims in the
joint estate.
[19]
It was submitted for the respondent that
the applicant was hardly involved in dealings concerning the
property; that he became involved
after Doreen disappeared. That
fact, according to the respondent, confirmed Doreen’s
representation that she owned the property.
[20]
The respondent put up an annexure which,
according to her, showed that the property had been paid up.
[21]
The applicant denied that an executor had
to be appointed for Doreen. He maintained that he did not renounce
his right to a half-share
of the property; that the “deed of
sale” was not binding on him. He also denied that the
settlement agreement entitled
Doreen to do with the property as she
wished. The applicant also pointed out that the “proof of
payment” by the
respondent showed that the stated purchase
price had not, in any event, been paid in full.
[22]
The parties ultimately agreed that there is
no lease agreement between them. The dispute then turned on
whether the “deed
of sale” entitled the first and second
respondents to occupation.
[23]
I agree that the “deed of sale”
does not bind the applicant. It did not divest him of his
half-share to the property.
Whatever the status of the “deed
of sale” document, the applicant remained entitled to a
half-share of the property
on 31 October 2008. That half share
remained extant regardless of the status of the “deed of sale”
document.
Neither the respondent nor Williams have rights to
the property that trump the first applicant’s half share as
shown in the
title deed to the property.
[24]
It was submitted on behalf of the
respondent that Doreen represented to the respondent that Doreen
owned the property. Such
a representation did not divest the
applicant of his co-ownership of the property. Ownership of immovable
property is evidenced
by entries in a title deed.
[25]
The applicant contended that the “deed
of sale” did not, in any event, comply with the requirements in
section 2(1)
of the
Alienation of Land Act, 68 of 1981
. In this
regard, and as an illustration, the document does not mention the
extent of the land that is the subject of the contract.
[26]
Ownership of the property remained
indivisible as between the applicant and his former wife on 31
October 2008. The respondent did
not refer the court to any authority
to support her contention that Doreen was the “beneficial
owner” of the property
and, for that reason, could conclude a
binding deed of sale pertaining to the property without involving the
first applicant, notwithstanding
that the applicant is a registered
co-owner of the property. The respondent sought to square the circle
by submitting that a beneficial
owner can sign a deed of sale but
that the applicant and Doreen would both have had to sign to effect
transfer of the property.
There was, equally, no judicial
support for this submission.
[27]
The applicant has established that he is a
co-owner of the property, as recorded in the title deed. A Title Deed
is the best evidence
of ownership of immovable property.
[28]
To the extent that the respondent and her
sister contend for an entitlement to the property, that is not so.
The respondent’s
sister is not a litigant in this application.
There is no
lis
between her and the applicant. The respondent in turn has no right to
the property as between herself and the applicant. The respondent
should look to Doreen for any recourse that the respondent may have
in connection with the property.
[29]
The respondent has not shown a lawful
entitlement to residing on the property. She is in unlawful
occupation.
[30]
There is no challenge to the procedural
requirements for the grant of relief under PIE.
[31]
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 of considerations whether it is just and
equitable to order an eviction. A court must consider the
circumstances peculiar
to the matter before court.
[32]
The respondent avers that she has been
staying in the property since 2008. She stays with her adult
children and grandchildren;
she says that she is sickly, that both
she and two of her adult children are unemployed, and that she
receives a monthly stipend
of $500 United Dollars from her sister in
the United States of America. She further contends that she will have
no place to stay
should the court order her eviction.
[33]
The respondent did not provide support for
her contention that she is sickly. She also did not provide any
detail about the
minor children, such as whether they are
school-going and the like. She says that two of her adult
children are unemployed.
She does not say, however, whether those
children are actively seeking employment. She does not say, in
addition, that her adult
children receive social grants, such as for
a disability and the like.
[34]
The first and second respondent have been
aware that the applicant and Doreen have, since 2014, essentially
contended that the first
and second respondents had no lawful basis
to occupation. The first and second respondents threatened to
institute court proceedings
in 2015 for the property to be recorded
in their name. Nothing was done.
[35]
The respondent did not proactively seek to
find a solution or alternative accommodation. She has not
sought the assistance
of the fourth respondent. In any event,
it appears that the respondent would not qualify for low-cost housing
because the
$500 monthly stipend from her sister equates to more than
the minimum amount required to be considered for low-cost housing.
[36]
The applicant is an 80-year-old pensioner.
He receives a pension of some R1800 per month. He contends that the
property is his only
real asset and that he has spent more than five
years trying to secure this asset. He was unable, in the past, to
initiate eviction
proceedings for lack of means. He further pointed
out that the respondent had tenants in the property from whom she
collects rent.
The respondent denies keeping tenants. The applicant’s
daughter and her boyfriend deposed to affidavits confirming that the
respondent has tenants on the premises.
[37]
I conclude, having regard to what is stated
above, that it is just and equitable that the respondent and those in
occupation of
the premises be evicted. In addition, and with
reference to the respondent’s stated precarious financial
position; it bears
mentioning that the respondent receives an amount
of money from her sister that is almost 5 times what the applicant
receives as
a pension.
[38]
The respondent has been aware since 2014
that her claim to the property was precarious. It would be expected
of her to have taken
steps to secure what she considered her
interests. The applicant explained why he launched the eviction
proceedings when he did.
It remains a regret that the ability of the
public to use the machinery of the courts remains largely a function
of whether a member
of the public have means to prosecute their
interests in the courts.
[39]
The applicant and his former wife acquired
the property when the applicant was 52 years old. He is now an
80-year-old pensioner.
The property is his only real asset.
Permitting the respondent and those in occupation to remain in
occupation would amount
to indirect expropriation. The law does not
permit expropriation other than as contemplated in the Constitution.
The applicant,
as a registered co-owner of the property, will
effectively be permanently divested of his interest in the property
should the court
not order eviction. That would not be just and
equitable as between the respondent and the applicant.
[40]
The counterclaim is dismissed. The
respondent did not make a case for the relief sought. For
example (and assuming the validity
of the deed of sale), the
applicant and his former wife cannot be obliged to sign documents to
effect transfer of the property
to Williams when the document that
the respondent relies upon as proof of payment of the purchase price
does not, on the face of
the document, reflect payment of the
purchase price; even where one added R30,000 to the amount shown on
the document.
[41]
The applicant sought condonation for the
late filing of his replying affidavit. Condonation is granted.
[42]
The court will grant relief to the
applicant. The respondents should be given the opportunity to
get their affairs in order
in relation to where they will keep
accommodation. A period of three months out to be sufficient.
[43]
I make the following order:
1.
The second respondent and all persons
(collectively “respondents”) occupying with and through
the second respondent
are hereby evicted from the immovable property
situated at Erf [....] Yeoville Township, Johannesburg, also known as
[….]
Harley Street, Yeoville, Johannesburg, referred to as
“the property”.
2.
The respondents are ordered to vacate the
property within 90 calendar days of service of this order on each of
the second and third
respondents.
3.
It is further ordered that if the
respondents do not vacate the property as stated in paragraph 2
above, then it that event the
Sheriff; alternatively, the Sheriff’s
duly appointed deputy, together with such assistance as is deemed
appropriate, is authorised
and directed to evict the respondents from
the property.
4.
The second 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
:
B van Tonder
Instructed
by
:
Thomson
Wilks Inc.
Second and Third
Respondent’s
Counsel
: B
Friedland
Instructed
by
:
Beder
Friedland Inc.