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[2021] ZAGPJHC 546
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Fisher N.O and Another v Mwaba and Another (2020/ 25663) [2021] ZAGPJHC 546 (11 October 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
number: 2020/ 25663
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
11/10/2021
In
the matter between:
JAQUES
ANDRE FISHER NO
FIRST APPLICANT
MARYKE
LANDMAN NO
SECOND APPLICANT
AND
EMMAMUEL
CHOLA MWABA
FIRST RESPONDENT
CITY
OF JOHANNESBURG
SECOND RESPONDENT
Delivery:
This judgment is
handed down electronically by circulation to the parties' legal
representatives through email and released to the
court's library.
The date for hand-down is deemed to be 11 October 2021.
Summary:
Eviction application. Section 4 (7) and
(8) of PIE. The respondent relying on a lease agreement disputed by
the applicant. The respondent
repudiating the lease agreement by not
paying rental. The respondent unlawfully occupying the
property. The principles of
equity applicable in eviction matters
restated and applied.
JUDGEMET
Molahlehi
J
Introduction
[1]
This is an
opposed application to evict the first respondent and those occupying
the property described as a portion of ERF 1 Hyde
Park extension 12
Township, Johannesburg (the property).
Background
facts
[2]
The applicants
are joint liquidators of African Management Communications (Pty) Ltd
(AMC), a company registered in terms of the
company laws of the
Republic of South Africa. The first respondent is Mr Mwaba, the
erstwhile director and shareholder of AMC.
[3]
AMC was placed
under final winding-up on 11 May 2021 by the Master of the High
Court. The first and second applicants being liquidators
of the
estate of AMC were appointed as final liquidators on 12 February
2020. The property that AMC owns had multiple mortgage
bonds
registered under the property in the combined sum of R6.4 million.
Currently. The Standard Bank of South Africa is owed in
the aggregate
R7 .7 million regarding the loans advanced to AMC.
[4]
The
liquidators are in terms of the Companies Act,
[1]
and the Insolvency Act,
[2]
entitled to receive rental from any person occupying the
property in terms of such a lease agreement.
[5]
It is not in
dispute that, on 21 November 2017, the first respondent and the
erstwhile sole shareholder of AMC took a resolution
placing capital
AMC under the supervision and commencing rescue proceedings.
[6]
The business
rescue practitioner, Mr Naude, resigned his position soon after his
appointment because of the disagreement with the
first respondent
about the prospect of rescuing the company. He left before the
publication of the business rescue plan was developed.
[7]
After the
resignation of Mr. Naude, the Standard Bank applied for the order
under case number 16100/15, placing AMC under final
winding up. The
two liquidators were appointed on 7 June 2018. The application to
appeal this order went up to the Constitutional
Court but was
unsuccessful. After failing to oppose the liquidation order, the
respondent offered to purchase the property, but
that was also
unsuccessful.
[8]
After all the
above failures to rescue the estate of the property from winding-up,
the first respondent furnished the liquidators
with a copy of the
written lease agreement purportedly concluded with AMC. In terms of
the lease agreement, the monthly rental
was R500. 00 per month with
an escalation rate of 6% per annum for a period of nine years.
[9]
In November
2019, the liquidators' attorneys addressed a letter to the respondent
demanding that he vacates the property before
29 November 2019. In
response to the above letter, the first respondent indicated that he
was unwilling to leave the property.
[10]
Based on the
above, the liquidators contend that the first respondent is in
unlawful occupation of the property. It has also questioned
the
validity of the lease agreement produced by the first respondent.
They contend in this respect that the lease agreement is
nothing but
a simulation.
[11]
The applicant
contends that the property was liable for the monthly instalment of
R63,000 to the Standard Bank at the time of the
liquidation.
[12]
About the
contention that the agreement is simulated and thus cannot be
regarded as valid, the applicants based this on the following:
(a)
The monthly rental of R500.00 is not sufficient to defray the cost of
the payment of the rates and taxes and levies raised by
the body
corporate.
(b)
The respondent did not produce evidence of witnesses to confirming
the signature of Mr Harrybarram when he signed the lease
agreement.
[13]
There is no
proof that the R40,000, alleged to have been paid on 30 December
2011, was made to AMC and why the respondent elected
to pay rental
for eight months in advance.
[14]
The applicant
further contends that the alleged payment of R5 000 between 11
December 2018 and 13 March 2020 is a further indication
that the
agreement was contrived because there is no indication why such
payment was made when on the respondent's version. He
had already
paid R40,000 in advance on 30 December 2016.
The
respondent's case
[15]
The respondent
opposed the eviction application mainly on the ground that he had
entered into a lease agreement with AMC, which
is to endure for a
period of nine years on a monthly rental mentioned earlier.
[16]
In concluding
the lease agreement, AMC was represented by its erstwhile corporate
manager. In support of the proposition that the
lease agreement
between him and AMC was valid, the first respondent attaches to his
answering affidavit annexures ECM3, ECM for,
and ECM6. He contends
that he has made the following payments since December 2016:
"12.1.
On 30 December 2016, I paid a . . . lump sum amount of R40 000 to
cover at least 80 months of the 9 year lease period.
12.2.
On 11 December 20181, paid a lump sum amount of R5000.00.
12.3.
On 15 March 2019, I paid a lump sum amount of R5000.00.
12.4.
On 15 April 2019, I paid a lump sum amount of R5000.00.
12.5.
On 10 March 2020, I paid a lump sum amount of R5000.00.
12.6.
On 13 March 2020, I paid a lump sum amount of R5000.00."
[17]
Based on the
above, the respondent contended that it could not be said that he was
in unlawful occupation of the property. He further
argued that the
applicants are not entitled to the relief sought on the papers
because there exists a dispute of facts. The dispute
of fact concerns
the disputes about the validity of the lease agreement. According to
him, the court is thus not able to resolve
the dispute on the papers
as they stand before it.
[18]
Even if the
version of the respondent that there is a valid lease agreement
between him and the applicant, that does not sustain
his legal status
of occupying the property. He remains in unlawful occupation of the
property in that he repudiated the very lease
agreement that he
placed reliance on for his occupation. In this respect, the deponent
to the founding affidavit avers that:
"39.2.
the Liquidators submitted that the aforesaid lease agreement is a
simulated agreement contrived by the first respondent
in order to
prolong his long-term and unlawful occupation of the property; and
39.3.
the Liquidators accepted the first respondent's repudiation of the
purported lease agreement, which was evidenced by his failure
to pay
a single months rental thereunder from inception thereof to date, and
to the extent that it may be found to be valid, which
is, in any
event, denied."
[19]
In support of
the above the applicant attached to the founding affidavit annexure
"FA11," correspondence from their attorneys
addressed to
the respondent on 10 February 2020, which reads as follows:
"4.
Our instructions are as follows:
4.1.
We submit that the Purported Lease is nothing more than a simulated
or bogus agreement contrived by you in an attempt to secure
your
long-term unlawful occupation of the property;
4.2.
In any event, you have failed to make payment of the rental in terms
of the Purported Lease; and
4.3.
To the extent that it may be found that the terms of the Purported
Lease are of any force or effect (which is denied), your
failure to
make payment of rental in terms thereof constitutes a repudiation of
the Purported Lease. The liquidators, on behalf
of Africa Management,
hereby accept your repudiation."
[20]
In response to
the above, the respondent, in his answering affidavit in paragraph
31, simply makes a bare denial and insist that
he has been paying
rental since the inception of the lease agreement.
[21]
In
light of the above, the respondent is unlawfully occupying the
property, and he has not proffered any sustainable defence. It
follows, therefore, that the applicant is entitled to the relief
sought subject to the determination as to whether it would be
just
and equitable to evict him in terms of sections 4 (7) and (8) of
Prevention of Eviction from the Unlawful Occupation of Land
Act
(PIE).
[3]
[22]
In
interpreting the provisions of section 4 of PIE the Constitutional
Court in Occupiers, Berea v De Wet NO and Another,
[4]
set out the enquiry to be conducted in determining whether an
eviction order in term of section 4 of PIE should be granted
in the
following terms:
"First,
it must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors. Under
section 4(7),
those factors include the availability of alternative land or
accommodation. The weight to be attached to that factor
must be
assessed in the light of the property owner's protected rights under
section 25 of the Constitution and on the footing
that a limitation
of those rights in favour of the occupiers will ordinarily be limited
in duration. Once the court decides that
there is no defence to the
claim for eviction and that it would be just and equitable to grant
an eviction order, it is obliged
to grant that order.”
[45]
The second enquiry, which the court must undertake before granting an
eviction order, is to consider—
"what
justice and equity demand in relation to the date of implementation
of that order and it must consider what conditions
must be attached
to that order. In that second enquiry it must consider the impact of
an eviction order on the occupiers and whether
they may be rendered
homeless thereby or need emergency assistance to relocate elsewhere.
The order that it grants as a result
of these two discrete enquiries
is a single order. Accordingly, it cannot be granted until both
enquiries have been undertaken
and the conclusion reached that the
grant of an eviction order, effective from a specified date, is just
and equitable. Nor can
the enquiry be concluded until the court is
satisfied that it is in possession of all the information necessary
to make both findings
based on justice and equity."
[23]
In applying
the above principles to the present matter, it is to be noted that I
have already found that even if the lease agreement
relied on by the
respondent is accepted, he remains an illegal occupier. He repudiated
the same lease agreement, which repudiation
was accepted by the
applicant. Accordingly, the respondent has no lawful right or
entitlement to occupy the property.
[24]
In my view,
the facts and circumstances of this case support the proposition that
it is just and equitable that the respondent should
be evicted from
the property. In this respect, the applicants raised this issue in
paragraph 52 of the founding affidavit wherein
the deponent to the
founding affidavit avers as follows:
"52.
To the best of my knowledge, the property is not a household headed
by a woman, and there are no elderly women or disabled
persons
occupying the property. The Liquidators are not aware of the personal
circumstances of the first respondent."
[25]
In his
answering affidavit, the applicant provides no evidence or
information as to whether he is staying on the property with other
vulnerable people who may be negatively affected by the decision to
evict him. He also provides no evidence or information about
his
circumstances and in particular, whether he will be rendered homeless
by an eviction.
[26]
For the above
reasons, I find that it is just and equitable to order the eviction
of the respondent, and it be done within thirty
days from the date of
the order. As concerning the costs I find it to have been
unnecessary for the respondent to have opposed
this application. I do
not , however, agree with the applicant that the appropriate order
should be punitive.
Order
[27]
In the
premises, the following order is made:
1.
The first
respondent, and all those who occupy the property described as
Portion 4 of Erf 301 Hyde Park, Extension 12 Township,
situate at 33
Ruth Road, Unit 4 Sherwood Estate, Hyde Park, Johannesburg (Property)
through or under the first respondent, are
to vacate the Properly
within 30 (thirty) days from the date of the granting of the order.
2.
In
the event of the first respondent and/or any person in occupation of
the property, through or under the first respondent, failing
to
vacate the property in accordance with prayer 1 above, then and in
that event, the Sheriff of the above Honourable Court be
and is
hereby authorised and directed, to evict the first respondent
forthwith and/or any person in occupation of the property,
through or
under the first respondent, from the property.
3.
The
first respondent be ordered to pay the costs of this application on
the party and party scale.
E
MOLAHLEHI J
Judge
of the High Court of South
Africa,
Johannesburg
Representations:
For
the applicant: Adv. M De Oliveria
Instructed
by: Jason Michael smith Incorporated Attorneys
For
the respondent: Adv. L Siyo
Instructed
by: Petker and Associates Incorporated Attorneys
Hearing
date: 27 July 2021
Delivered:
11 October 2021
[1]
Act
number
71
of 2008.
[2]
Act
number
71
of 2008.
[3]
Act number 19 of 1998.
[4]
2017
(5) SA 346
(CC).