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[2017] ZAGPPHC 122
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Standard Bank of South Africa Limited v Sithole and Others (95657/2015) [2017] ZAGPPHC 122 (8 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 95657/2015
DATE:
8/2/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA
LIMITED
Applicant
and
MAVIS
NOMSA
SITHOLE
1
st
Respondent
CHARLENE
MKHONTO
2
nd
Respondent
THE
OCCUPIERS
3
rd
Respondent
THE
EKURHULENI
METROPOLITAN
MUNICIPALITY
4
th
Respondent
JUDGMENT
Baqwa
J
[1]
This is an application in which the applicant seeks an eviction order
against the first to the third respondents.
[2]
The first and second respondents have filed an application for
condonation together with an opposing affidavit and the applicant
has
filed a replying affidavit.
[3]
In order for an order to be granted for an eviction in terms of the
Prevention of Illegal Eviction and Unlawful Occupation of
Land Act,
19 of 1998 (commonly referred to as the PIE Act) an applicant must
prove that he is the owner or person in charge of
the property in
question and that the occupation of the property is unlawful in that
the occupier or occupiers have no legal right
to occupy the property.
[4]
A court hearing such an application must also consider whether in the
circumstances of the case it is just and equitable to
evict the
occupiers. The Pie Act prescribes certain circumstances to be taken
into account in determining the terms of the eviction.
[5]
If an applicant proves the above requirements and that the
respondents have no valid defence he becomes entitled to an eviction
order.
[6]
In
casu
the respondents have not placed
the ownership of the property in dispute but have instead sought in
their opposing affidavit to
either lease or purchase the property.
[7]
On the other hand the applicant whilst not denying the expressed
desire on the part of the respondents has stated that it does
not
wish to and is under no obligation to enter into such an agreement
with the respondents. It states that it is currently in
the process
of selling the property to a third party.
[8]
The applicant has tendered a deed search as proof of ownership
together with the conditions of sale obtained from the sale in
execution at which the property was purchased by the applicant.
[9]
What is apparent from the deed search is that neither of the opposing
respondents has ever been owner of the property and any
allegation by
them that they purchased the property cannot hold water.
[10]
From a reading of both the applicant's and respondents' papers, the
respondents do not have a legal right to occupy the property
as there
is no lease agreement between them.
[11]
The respondents do however raise a right to a lien in respect of
improvements they claim to have effected on the property and
that
they can therefore not be evicted until the lien has been fully paid
by the applicant.
[12]
A lien can only be enforced in circumstances where the occupation of
the immovable property is lawful. As already alluded to
the
respondents do not have a legal right to possess the property and as
such the alleged lien cannot be available to the respondents
to
resist an eviction application.
[13]
Before granting an eviction order the Court must consider the
circumstances of the respondent and determine a just and equitable
date on which the unlawful occupier must vacate the property.
[14]
In their opposing affidavit the respondents state that the property
is occupied by eight (8) orphans and five (5) grand children
together
with the first respondent's 79 year old mother.
[15]
The first respondent is employed by an orphanage of which she is
director and founder. She is therefore a person of means who
can
afford to provide for those occupying the property under her. Over
and above her employment, she has sponsors from London who
are
willing to even assist her purchase the property.
[16]
As appears from the conditions of sale the property is quite
extensive consisting of six (6) bedrooms, six (6) bathrooms, six
(6)
garages and two (2) servant's quarters and was purchased by the
applicant in a forced sale for R3.5 million.
[17]
Although the Court has to consider the circumstances set out in
sections 4 (6) and 4 (7) of the Pie Act it would seem that
the
balance of convenience follows the eviction of the respondents in
terms of section 4 (8) of the Pie Act.
[18]
Counsel for the applicant submits and I accept that the applicant is
prevented from dealing with or marketing the property
or selling it
to prospective buyers. The respondents' cost-free living at the
property is to the detriment and expense of the applicant.
The
applicant is deprived of the use, enjoyment and the occupation of the
property and suffers financial loss as a result thereof.
[19]
In the circumstances I consider it just and equitable to make the
following order:
19.1
The respondents and all the persons occupying the property described
in the Notice of Motion
through or under her are evicted from the
premises as set out in prayers 1, 2 and 3 of the Notice of Motion.
19.2
It is further ordered that the eviction in terms of prayer 1 shall
take place within 90 days
from date of service of this order.
_________________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Heard
on:
8 February 2017
Delivered
on
:
8 February 2017
For
the Applicant:
Advocate L. Keijser
I
nstructed
by:
Vezi de Beer Incorporated
For
the First Respondent:
In person