About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 54
|
|
Minister of Police v Legoabe and Others (71797/2017) [2018] ZAGPPHC 54 (8 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case
No. 71797/2017
8/3/2018
In the matter between:
THE
MINISTER OF
POLICE
APPLICANT
And
LESIBA
MOSES
LEGOABE
FIRST RESPONDENT
ANY
OTHER UNLAWFUL OCCUPIER OF ERF 604
TRAKASTREETELARDUSPARK
SECOND
RESPONDENT
CITY OF
TSHWANE
MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
MILLAR
AJ
1.
The
first respondent in this application is a former employee of the
applicant, a Lieutenant Colonel in the South African Police
Service. One of the benefits of his employment was the right to
occupy the property from which the applicant now seeks to evict
him.
2.
This
application is before me for confirmation of a
rule
nisi
granted on 24 October 2017 and
subsequently extended on 14 November 2017 to the opposed roll on 5
March 2018.
3.
The
first respondent had appeared on 14 November 2017 and the rule had
been extended so as to afford him an opportunity to obtain
legal
representation and file papers.
4.
By
the time this application was heard, the first respondent had filed
an answering affidavit and the applicant a reply.
5.
The
applicant appeared in person and handed in a letter from the Legal
Aid Board which showed that his application to them for assistance
had been declined. There were no reasons for the decline. The first
respondent handed in the letter to demonstrate that he had
attempted
to comply with the order of 14 November 2017.
6.
The
facts of the matter are largely common cause. The main point of
dispute was in respect of whether the first respondent was still
employed by the applicant or not.
7.
It
is the case for the applicant that the first respondent is no longer
in the employ of the applicant. The applicant relied
inter
alia
upon a letter of dismissal
dated 26 March 2015 to establish the dismissal. This was not disputed
by the first respondent.
8.
The
case for the first respondent, both in his answering affidavit and
amplified in argument was that he had been dismissed but
that it was
unlawful and fell to be set aside. He said that he had been dismissed
for what he termed "political reasons"
and that an
investigation had been requested by him into the matter. He said that
the investigation was at a sensitive stage and
that the Minister of
Police as well as other senior officers were aware of this.
9.
In
his answering affidavit he had named an Advocate. Ntsoane and a
Lieutenant-Colonel Groenewald as both being aware of this
investigation.
10.
The
first respondent had attached to his answering affidavit a document
purporting to be an affidavit by Advocate Ntsoane. This
document was
unsigned although the word "confirmed" had been written on
the space provided for signature. Advocate. Ntsoane
was stated by the
first respondent to be unavailable to testify. There was no
explanation as to why the document had not been signed
and the first
respondent contended that the contents had been confirmed to him. The
applicant applied to strike this document out
and after hearing the
parties, I granted the order.
11.
The
first respondent was steadfast in his assertion that due to the
sensitive political nature of the alleged investigation he was
unable
to disclose any details of it. He contended that this was why he had
not challenged his dismissal through the usual channels
for doing so.
12.
The
applicant denied that any such investigation was underway and had
produced, in reply, an affidavit by Lieutenant-Colonel Groenewald
in
which she had denied any knowledge of the alleged investigation.
13.
The
first respondent has failed, to my mind, on any basis
[1]
to establish on the papers that the alleged investigation is underway
or that his dismissal some three years ago is impeachable.
This being
the case, the first respondent was no longer entitled to occupy the
property from 26 March 2015 and has been in unlawful
occupation since
then.
14.
The
applicant also contended that the continued occupation of the
property by the first respondent would result in substantial injury
or damage to the property. The applicant attached photographs of the
property from which it appears that the property is derelict
and in a
poor state of repair as well as affidavits from persons who live in
close proximity to the property as to its deteriorating
condition.
15.
The
electricity supply to the property has been disconnected and the
first respondent is alleged to be building an open fire in
the garage
on a daily basis. This together with the overgrown state of the
garden is stated to constitute a fire hazard, not only
for the
property occupied by the first respondent but also for neighbouring
properties.
16.
The
respondent denied this in his answering affidavit but also stated
that the obligation to maintain the property was not his but
that of
the Department of Public Works. He went on to say that if he was paid
to do so, he would maintain the property.
17.
The
first respondent has failed to place any facts before the court which
would indicate that he falls into the group of persons
for whom
special care and consideration should be given when considering an
application such as the present.
[2]
18. The
applicant has established: -
18.1
That the first respondent is no longer
employed by the applicant;
[3]
18.2
That there is a real and imminent danger
of damage to the property.
[4]
19.
Having regard to the above, I am of the
view
that
it would be just and equitable to grant the order sought.
[5]
20.
In the premises it is ordered:
20.1
The first respondent, together with all
persons claiming any right, title or interest to occupation of the
land or building described
as erf 8604 Traka Street, Elarduspark are
directed to vacate the property and building within 30 days of the
granting of this order;
20.2
In
the event that the first respondent together with all persons
claiming any right, title or interest to occupation of the land
or
building described as Erf 8604 Traka Street, Elarduspark failing to
vacate the property and building within the time aforesaid,
then the
Sheriff of this Court or his Deputy together with the assistance of
members of the South African Police Services, if necessary,
be
authorized to evict the first respondent and any other person
claiming any right , title or interest.
20.3
The applicant is authorized to take such
steps as may be necessary to preserve the structural integrity of the
property and to remove
all hazardous materials from the land or
building.
20.4
The first respondent is ordered to pay
the costs of the application which costs are to include the costs of
the application to strike
out.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
7 MARCH 2018
JUDGMENT
DELIVERED ON:
8 MARCH 2018
COUNSEL
FOR THE APPLICANT:
ADV. H MODISE
INSTRUCTED
BY:
STATE ATTORNEY PRETORIA
REFERENCE:
MS D MOLEPO
THE
FIRST RESPONDENT:
IN PERSON
THE
SECOND RESPONDENT:
NO APPEARANCE
THE
THIRD RESPONDENT:
NO APPEARANCE
[1]
Plascon-Evans Paints Ltd v van Riebeeck Paints (pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 624 A-B.
[2]
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC) at page 229 paragraph 23 and
Wormald N.
0
and
Others v Kambule
2006 (3) SA 562
(SCA) at paragraph 18.
[3]
African Granite
Co
(Pty) Ltd v MUN
1993 ILJ (LCN) and
section 1 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998
[4]
Shanike Investments NO (Pty) Ltd v Ndima and Others
2015 JOL
3275789
(GJ) at paragraph 20.
[5]
City of Johannesburg v Changing Tides
7
4
2012 (6) SA
294
(SCA) paragraph 11.