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[2019] ZAECBHC 9
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Nkomo v Mqokozo and Another (690/2018) [2019] ZAECBHC 9 (9 May 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION (BHISHO)
Not
Reportable
Case
No: 690/2018
In
the matter between:
BOCHABELO
WORREL VINCENT OREILY NKOMO
First Applicant
and
NOMPUCUKO
MQOKOZO
First
Respondent
THE
BUFFALO CITY METROPOLITAN
Second
Respondent
JUDGMENT
NQUMSE
AJ:
Introduction:
[1]
This is an application for eviction against the respondents in which
the applicant
seeks an order in the following terms:
1.1
that
the first respondent and any other occupiers of the property known
and described as No. 535 Zone 4, Zwelitsha, be evicted forthwith
alternatively within such period as the court may deem appropriate.
1.2
That
the sheriff of the court be directed to evict the first respondent
and all other occupiers of the property, should they fail
to comply
with the court’s direction in terms of paragraph 1 above, and
furthermore, if necessary, to obtain the aid and/or
assistance of the
South African Police Services to execute the order, provided that the
sheriff shall at all times be present during
such eviction.
1.3
That the costs of the application be paid
by the first respondent.
1.4
Further
and/or alternative relief.
[2]
The first respondent’s opposition to the application is
ostensibly premised
on acquisitive prescription.
[3]
Although the Buffalo City Metropolitan Municipality has been cited as
a respondent
no relief is sought against it and has therefore taken
no part in these proceedings.
Background
facts:
[4]
The applicant stated in his founding affidavit that his father who
passed away in
2008 was the registered owner of the aforementioned
property. Pursuant to his passing and according to his last
will and
testament all rights, title and interest in the property in
question shall pass to his mother who accordingly became the
registered
owner of the property. His mother passed away in
2016 leaving behind her will and testament according to which, all
rights,
title and interest in the said property passed to the
applicant. Accordingly the applicant became the registered
owner of
the property. In support of his allegation he attached
a copy of a title deed which was annexed to the founding affidavit
as
“BN 2”.
[5]
In 2017 the applicant visited the said property with a view to
prepare it for purposes
of letting it out to tenants. Upon
arrival at his property he established that it was occupied by the
first respondent who
she advised that he was the registered owner of
the property. He further advised the first respondent that she
had no lawful
right or entitlement therein. Despite his demand
for the first respondent to vacate his property his demand was met
with
resistance.
[6]
Applicant further stated that the first respondent enjoys a free stay
in his property
since she is not paying for her occupation and
neither does she pay the rates and taxes. As a result the
applicant is burdened
with the upkeep of a property that does not
generate any income to ameliorate his financial constraints. He
also stated that
the first respondent’s further occupation of
his property will further deteriorate his financial position.
This
is at the backdrop of the first respondent’s ownership of a
residential property in Ginsberg which she chose to lease
out to
tenants whilst she deprives him of the use and enjoyment of his
property that he is a registered owner thereof.
[7]
In her answering affidavit the first respondent raised a defence of
res judicata
as a point
in limine
.
She avers that the order sought by the applicant has been adjudicated
upon in the Zwelitsha Magistrate’s Court.
She therefore
contends that the remedy that was available to the applicant is to
appeal the judgment of the magistrate. She
made reference to
annexure “NM 1” as the annexure that purports to be the
judgment of the magistrate.
[8]
At this juncture I pause to indicate that as a result of the
reference to annexure
‘NM1’the proceedings took a
different turn momentarily, as it will become clearer hereunder.
[9]
After the first respondent had served and filed her answering
affidavit, she noticed
that the judgment referred to as “NM 1”
in her affidavit has not been annexed but instead had annexed the
transcript
of the proceedings. This prompted the first
respondent to serve on the applicant a notice of filing. It is
necessary
to refer in some detail to the notice of filing and the
contents therein:
The
notice states “Be pleased to take notice that the first
respondent herewith files documents for court’s attention
in
this matter. Be pleased to take notice further that this
document relates to the first respondent’s answering affidavit
which was unintentionally omitted. Annexure “NM 1”
in the papers is a transcript of court proceedings whereas
it should
have attached the actual judgment. That transcription is hereby
substituted for the final judgment as Annexure
“NMT 1”.
[10]
The document that was annexed to the filing notice is a copy of the
typed version of the judgment
of the magistrate which was marked “NM
3”. What was annexed in the answering affidavit is a copy
of an A4 page
which is a manuscript of the magistrate marked “NMT
1”. It is the latter document that counsel for the first
respondent sought to introduce as a judgment of the magistrate’s
court.
[11]
Counsel for the applicant protested the introduction of this document
on the grounds which were
set out in the replying affidavit which
ostensibly point to the fact that the procedure employed by the first
respondent to produce
the document was flawed. He further
pointed out the absence of the authenticity of the said document.
Counsel for the
first respondent was at pains to explain why the
document has not been authenticated by means of an affidavit, and it
lacked, the
bare minimum of affixing a stamp of the clerk of the
court or certification thereof as a true copy of the judgment of the
court.
He also had difficulty to reconcile the situation that
was addressed in
Yisehleli
Edward Nyamso and Head of Department of Sports and Others
[1]
by Mbenenge J (as he then was), in relation to the situation that is
obtaining in this matter, since what she seeks to do in this
matter
is to substitute a document that has been annexed on the papers with
another document. Whereas in
Nyamso,
the court sought to give a direction to what a litigant can do who
has ‘omitted’ to annex a document. He was
further
embattled with the numerous discrepancies which appear in the
markings of these documents and the obvious confusion that
has been
brought to bear, by the discrepancies in the markings and referencing
in the papers of the first respondent. Save
to admit repeatedly
the errors that are apparent, counsel for the first respondent could
proffer no other helpful explanation.
[12]
Consequently, I ruled that the document the first respondent sought
to introduce as inadmissible
for the reasons above. This
therefore was dispositive of the point
in
limine
and the defence of
res
judicata
.
[13]
I shall now revert to the remainder of the answering affidavit and
the averments made therein.
The first respondent alleges that
she has been in possession of the said property since 1975 with the
intention to acquire its
ownership. In 1979 her husband
purchased it from the applicant’s late father, however transfer
thereof failed due to
lack of co-operation from the applicant’s
father. She further states that since the eviction application
is launched
after 30 years being in uninterrupted occupation of the
property, in terms of the Prescription Act
[2]
she has acquired ownership through “acquisitive prescription”.
The first respondent reiterated in her answering
affidavit that the
property in her possession was purchased and has been in possession
thereof for 30 years. She therefore
denies that her occupation
is unlawful.
[14]
In reply, the applicant was more elaborate in his attack of the
defence of res judicata that
the first respondent had relied on as a
point
in limine
.
He pointed out quite sharply the failure of the first respondent to
meet the necessary requirements in order to succeed
with the defence
of
res judicata
.
Most importantly in his attack was the lack of showing that the
lis
in the previous proceedings was between the same parties, with the
same issues which were finally adjudicated upon.
[15]
However, in the light of the ruling I had already made on the
admissibility of the judgment that
was a subject of
res
judicata
,
the reply by the applicant on this aspect needed no further
consideration. Save that the first respondent has failed to
prove that the decision she was relying on of the magistrate was
between the same parties and the issue for adjudication was the
same
(see
Tradax
ocean Transportation SA MV and others
)
[3]
.
[16]
Applicant further contended in his reply that the first respondent
has not denied that he is
the registered owner of the property.
In light thereof the first respondent bears the onus to prove that
she has a better
title to the property than the applicant. He
further submitted that the first respondent has not placed evidence
before the
court in which she establishes acquisitive prescription.
[17]
As it can be gleaned from the facts above, it is not in dispute that
the property in question
belonged to the father of the applicant who
was the registered owner thereof and who in the event of his passing
transferred all
his rights, title and interest in the property to his
wife. It is also common cause his wife registered the property
in her
own name and in the event of her passing on, according to her
will and last testament, transferred all her rights, title and
interest
in the property to her son, who is the applicant.
[18]
It is further common cause that the applicant registered the said
property in his own name and
therefore became the title holder
thereof.
[19]
It is also common cause that the first respondent has no other right
she claims in the property
save that she has occupied it for more
than 30 years, a fact that has not been denied by the applicant.
Is
the first respondent an unlawful occupier?
[20]
As already alluded to above the first respondent has been in
occupation of the property in question
for a period not less than 30
years albeit not registered owner of the property. Of
significance are the averments made by
the first respondent that her
late husband purchased the property from the applicant’s
father, however, the property could
not be transferred to her late
husband and/or to their estate due to the non-co-operation of the
owner of the property. This
makes it patently clear that the
intended sale of the property between the parties aborted or at least
never yielded the desired
results.
[21]
In the absence of any other evidence how the first respondent became
in possession of the property,
the only reasonable inference that can
be drawn on the available evidence is that she gained possession
through the aborted sale.
Possession is described in the Prescription
Act 18 of 1943 as possession
nec
vic nec
claim
nec
precario
,
i.e. Peaceably and not with the revocable permission of the owner
(see generally
Bisschop
v Stafford
,
[4]
Malan
v Nabygeleegen Estates
,
[5]
Pratt
v Lourens)
.
[6]
[22]
In terms of the
Prescription Act 68 of 1969
a person shall by
prescription become the owner of a thing which he has possessed
openly and as if he were the owner thereof for
an uninterrupted
period of thirty years or for a period which together with any
periods for which such thing was so possessed by
his predecessors in
title, constitutes an uninterrupted period of thirty years.
[7]
If an acquirer had received either express or tacit consent it
follows that the acquirer did not act as if he or she was
entitled to
exercise the servitudal right.
[8]
[23]
The first respondent avers that she was in possession of the property
openly as if she was the
owner thereof for an uninterrupted period of
more than thirty years. She however, does not explain how she
possessed the
property openly as if she was the owner thereof.
In other words the first respondent has failed to show how she is an
adverse
possessor which excludes possession by virtue of some
contract or legal relationship that recognizes the ownership of the
other.
[9]
[24]
In
Morgenster
171 (Pty) ltd v De Kock & Others
[10]
Rogers AJ referred to
Welgemond
v Coetzer and 4 Others
[11]
where Murray J said that in order to constitute adverse possession
for purposes of acquisitive prescription there must be acts
of use
that are patent to the true owner. In
Smith
& Others v Martini Executor Dative
[12]
De Villiers CJ said the common law requirement ‘
nec
clam’
that
the possession should be so patent that the owner, with reasonable
care, could have observed it, that there should be ‘sufficient
visible proof of their possession’.
[25]
As indicated above there was no evidence proffered by the first
respondent to the effect that
she possessed the property in a manner
that constitutes adverse possession and which demonstrates in a
patent manner that she is
the owner thereof.
[26]
It is trite law that the first respondent must have been in
possession of the property
nec vic
,
nec clam
,
nec precario
in
order to claim prescription.
In
Malan v
Nybergelegan
, the Appellate Division held as follows
:
“
In
order to avoid misunderstanding, it should be pointed out that mere
occupation of property ‘
nec vic.
nec claim, nec precano
’ for a
period of thirty years does not necessarily vest in the occupier a
prescriptive title to the ownership of that property.
In order
to create a prescriptive title, such occupation must be a user
adverse to the true owner and not occupation by virtue
of some
contract or legal relationship such as a lease or sufruct which
recognizes the ownership of another.”
[27]
As indicated earlier that in this case the first respondent has not
explained how she became
in possession of the property except that
her husband bought it from the applicant’s father, who in turn
refused to co-operate
for the transfer of same. Whilst not much
said is about the sale of the property, the question is why does she
not allege
ownership by virtue of the sale agreement but instead
choose to rely on prescription that has not been fully proved.
On the
contrary, the evidence points to the fact that the applicant’s
father has been for all intends and purpose regarded himself
as the
owner of the property. This is borne out in his last will and
testament where upon his death, left the title and interest
to the
property to his wife who in turn regarded herself as the owner after
the passing of her husband and upon her death, as her
will dictated,
left the title and interest in the said property to the applicant.
[28]
In light of all the facts before me I am not satisfied that the first
respondent has satisfied
the requirements envisaged in the
Prescription Act upon
which she bases her claim for ownership.
[29]
My view in this regard is further fortified in the failure of the
first respondent to dispute
that the applicant is a title holder of
the property and consequently the owner thereof. She failed to
discharge the onus
on her to prove that she has a better title (See
Du
Toit and other v Furstenberg and others
[13]
[30]
In terms of the Prevention of Illegal Eviction from Unlawful
Occupation of Land Act
[14]
(PIE) an unlawful occupier is defined to mean –
“
A
person who occupies land without the express or tacit consent of the
owner in charge, or without any other right in law to occupy
such
land, excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act, 1997
and excluding a person where an
informal right to land, but for the provisions of this Act, would be
protected by the provision
of the Interim Protection of Informal Land
Rights Act, 1996 (Act 31 of 1996)”
Since
the applicant’s right to his property is unassailable, he is
entitled to evict the respondent from his property if her
occupation
thereof is without any consent or legal agreement that protects her
stay therein. In the circumstances of this
case I can come to
no other conclusion other than to find the first respondent to be an
unlawful occupier.
[31]
In terms of section 4(7) of PIE an eviction order may be granted if
it is just and equitable
to do so, after the court has had regard to
all the relevant circumstances including the availability of land for
the relocation
of the occupiers and the rights and needs of the
elderly, children, disabled persons and households headed by women.
If the
requirements of section 4 are satisfied and no valid defence
to an eviction order has been raised the court “must”,
in
terms of section 4 (8), grant an eviction order. When granting
such an order the court must in terms of section 4 (8)(a),
determine
a just and equitable date on which the unlawful occupiers must vacate
the premises. The court is also empowered
in terms of section
4(12) to attach reasonable conditions to an eviction order.
(See
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
)
[15]
.
[32]
The applicant has alleged in paragraph 22 of his founding affidavit
that the first respondent
is a joint owner with her husband of an
alternative residential property being 1069 Tyamyashe Street in
Ginsberg. In further
support of this allegation the applicant
annexed a Deeds Office Search marked “BN 6” which
confirmed first respondent’s
ownership thereof. The
applicant further went to lengths of investigating what the status of
that property was and found
that it is currently leased to tenants.
For sake of completeness I find it necessary to recite the response
of the first
respondent to this allegation where she states:
“
Save
to admit the allegation confirmed in paragraph 22 but I deny each and
every allegation contained in the remaining paragraphs”.
By
remaining paragraphs she was referring to paragraphs 23, 24 and 25
which paragraphs have no bearing whatsoever in the allegations
made
in paragraph 22 of the founding affidavit. The upshot is that
the first respondent admits that she has alternative accommodation.
[33]
The applicant having complied with the notice requirements under
section 4 of the Act and in
the absence of any relevant information
placed before me by the first respondent as envisaged in section 4
(8), I come to the only
conclusion that the eviction is just and
equitable. What remains to be considered is the date of
eviction of the first respondent
and any conditions that may be
attached to the order of eviction.
[34]
The first respondent has alternative accommodation and I therefore
find no reason to delay her
eviction unreasonably. As was
stated in
Ndlovu
v Ngcobo : Bekker & Another v Jika
[16]
that the effect of PIE is not to expropriate private property.
What it does is delay or suspend the exercise of the owner’s
rights until a determination has been made whether an eviction would
be just and equitable and under what conditions.
[35]
In City of Johannesburg
[17]
the court referred to the Constitutional Court judgment which stated
that private entities are not obliged to provide free housing
for
other members of the community indefinitively, but their rights of
occupation may be restricted, and they can be expected to
submit to
some delay in exercising, or some suspension of, their right to
possession of their property in order to accommodate
the immediate
needs of the occupier.
[18]
It is however difficult in this case to see on what basis I should
accommodate the first respondent to a lengthy period before
she can
vacate the applicant’s property in the light of her being an
owner of an alternative accommodation.
[36]
In the circumstances I make the following order:
36.1
The first respondent is declared an unlawful occupier of the property
described as No. 535, Zone 4, Zwelitsha.
36.2
The first respondent and any other persons occupying the said
property with and through the first respondent
are hereby evicted
from the property mentioned in paragraph 36.1 above
36.3
The first respondent is ordered to vacate the property on or before
30 May 2019 and not to return thereafter.
36.4 It
is further ordered that in the event that the first respondent and/or
any other persons who occupies the
aforementioned property through
the first respondent on the date indicated in paragraph 36.3 above,
refuse to vacate, the sheriff,
alternatively his duly appointed
deputy, together with such assistance as he deems appropriate as
authorized and directed to evict
the first respondent and any other
persons who occupy the property through the first respondent from the
said property.
36.5
the first respondent is ordered to pay the costs of this application
including reserved costs for the 6 and
20 November 2018.
________________________
V M NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the plaintiff
: Mr.
ADV
PT MARAIS …….
Instructed
by
: Rushmere
Noach/Incorporated
c/o
Squire Smith & Laurie Inc
44
Taylor Street………….
KING
WILLIAM’S TOWN
Counsel
for the defendant
: ADV
NABELA
Instructed
by
: Nomjana Attorneys
05
Lancester Road
c/o
CZ Mbanjwa Attorneys
3
Arthur Street………….
KING
WILLIAM’S TOWN
Date
heard
28
March 2019
Date
judgment delivered :09
May 2019
[1]
Case
No. 643/2014 ECLD (Bhisho) 27 September 2016
[2]
Act
68 of 1969
[3]
[1999]
3 ALL SA 175(A)
; and Hochfeld Commodities v Theron
2000 (1) SA 551
at 566-567.
[4]
1974
(3) SA 1(A)
[5]
1946
AD 562
[6]
1954
(4) SA 281 (N)
[7]
See
section 1
of the
Prescription Act.
[8
]
Pezwla
Private Estate (Pty) Ltd v Meterlerkamp
[2014] ALL SA 664 2014 (5) SA 37 (SA).
[9]
See
Malan
v Nabygeleegen Estates
supra at 572
[10]
(2012)
(3) SA 59
(WCC);
[2012] 2 ALL SA 640
(WCC); [2011] ZAWEHC 571;
ZAWCHC (5 December 2011)
[11]
1946
(TPD) 701
[12]
(1899)
16 SC 148
[13]
[1957]
1 ALL SA 172
(0) at 174
[14]
Act no of 1998
[15]
[2012] ZASCA 116
;
2012 (6) SA 294
(SCA),
2012 (11) BCLR 1206
(SCA),
2013 ALL SA 8
(SCA) 14 SEPTEMBER 2012).
[16]
2003
(1) SA 113
(SCA) para 17;
Wormeld
N.O. & Others v Khambule
2006 (3) SA 562
(SCA) para 15.
[17]
Supra
[18]
Para
18