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[2017] ZAFSHC 61
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Mnyandu v Oliphant and Others (A202/2016) [2017] ZAFSHC 61 (20 April 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A202/2016
In
the matter between:
KEGOMODITSWE
IRENE
MNYANDU
Appellant
and
ZACHARIA
OLIPHANT AND/OR
THE
OCCUPANTS OF THE PROPERTY KNOWN
AS
ERF [...]
,
THABONG,
WELKOM
Respondents
HEARD
ON:
27 MARCH
2017
JUDGMENT
BY:
DAFFUE, J
et
LOUBSER,
AJ
DELIVERED
ON:
20 APRIL
2017
[I]
INTRODUCTION:
[1]
This is an appeal against the Judgment of the Magistrate of Welkom
dismissing an application for the eviction of one Mr Zacharia
Oliphant and all other occupants from the premises known as ERF
[...]
,
Thabong,
Welkom, together with some ancillary relief. The application was made
by
the
Appellant in terms of the provisions of the Prevention of Illegal
Eviction from and
Unlawful
Occupation
of
Land
Act,
number
19
of
1998
("PIE").
[2]
During the course of the proceedings,
the Magistrate referred the matter to oral evidence and proceeded to
hear the evidence of
several
witnesses,
including
the
evidence
of
the
Appellant
and
Mr
Oliphant, the principal occupier of the property
.
The following represents a summary of
the facts presented by the parties by means of the affidavits filed
of record, the supporting
documentation
and
the
oral
evidence
itself
:
(II)
FACTS
PRESENTED
BY
APPELLANT:
[3]
The
Appellant
is
a
widow aged
54
years
and
she
resides
in
Thaba Nchu. She wants to return to
Welkom where she and her late husband
,
Dr
.
Mnyandu, once lived
before his
death
in
2006. She is
the
registered
owner
of
the
property
in
question, and
in
support
of this contention, she produced a Deed of Transfer of the property
in
her
name,
number
T[....],
dated
23
May
2013.
[4]
She further testified that her late
husband had purchased the property from a Mr
.
Sipho Leeuw and his wife in 1988 for a
purchase price of R40 000,00. Before transfer of the property could
be effected, her husband
passed on. The said Mr.
Leeuw also
testified
at
the
hearing,
and
he
confirmed
his
prior
ownership, since 1988 of the property by
virtue of a Grant of Leasehold number
T[....], which
formed
part
of
the
papers
before
the
Court a quo
.
He
further confirmed his sale of the property to Dr
.
Mnyandu for the purchase price
mentioned. He further testified that
he
and
his
wife
eventually gave
transfer
of
the
property
to
the Appellant in 2013, since she was the
surviving spouse of Dr. Mnyandu,
who
had
passed
on
earlier
.
[5]
The Appellant concluded her evidence by
stating that the Respondents
were
occupying
her
property
without
her
permission or consent, and that
they were therefore illegal occupants.
They were not paying any rent to her, and possibly, not even any
municipal charges. They
have ignored a prior demand by her attorneys
to
vacate
the property before
10
September 2013
.
She prayed that the Court would find it
just and equitable in the circumstances to grant an order of eviction
against the Respondents.
(Ill)
FACTS PRESENTED BY MR.
ZACHARIA OLIPHANT:
[6]
Mr. Zacharia Oliphant stated that he
owned a tavern on the property
in
question and that he has been living
there with
his
wife and two children for about nine years at the time of his
testimony in the Court a quo. He was surprised when he received the
application for eviction, because he was of the opinion that he was
actually the rightful owner or occupier of the property.
[7]
He confirmed that Mr. Leeuw and his wife
were the initial leasehold owners of the property. This leasehold or
right to occupy
was
later
transferred
to
Dr. Mnyand
u
.
According
to him, Dr
.
Mnyandu then sold the property to one
Mr. Thomas Siska, and he handed in an Offer to Purchase in this
respect, which turned out
to
be a document not signed at
all
by
the purchaser. I pause
here
to
mention
that
the
Appellant
,
in
her
evidence, denied any knowledge of such a
transaction between her late husband and the said Mr
.
Siska. She told the Court a quo that her
husband had
actually
let
the
property
to
Mr.
Siska,
after
they,
the Mnyandu's, had left the property and
moved out
of
town. After a period of time, however, Siska had stopped paying the
rent. These facts were confirmed by Mr. Leeuw when he gave
his
evidence.
[8]
Be it as it may, Mr. Oliphant further
stated that transfer of the property could not be effected in the
name of Mr. Siska and his
wife at the time, since there were
outstanding service charges due
to
the
Welkom
Municip
a
lity
.
He
handed
in
several
documents to
show
that, eventually, a point was reached where the right of occupation
was awarded to the Siska's by the Welkom Municipality in
August 1997.
He
stated
in
his
Opposing Affidavit that,
"on
probabilities",
the right of
occupation had passed to Mr
.
Siska
and his wife, Moliehi Alina Siska. When the two of them passed on
later, Mrs
.
Mantso
Oliphant inherited the right to occupation
from
her
daughter,
the
abovementioned
Moliehi
Alina Siska. Mrs Oliphant then occupied
the property until her death, and Mr
.
Zacharia Oliphant, the son of Mrs.
Oliphant, thereafter
i
nherited
the
property
or
the
right
to
occupy
from
her.
[9]
Matsidiso Maphutsi, an
administration
officer of
the
Municipality, testified that, according
to
the
records relating
to
the
property
,
Dr. Mnyandu was the rightful owner of
the property. At some point, Mr
.
Thomas
Siska wanted to transfer the property into his
name by virtue of a
Deed of Sale he had concluded with Dr.
Mnyandu, but
ultimately
the
two
of
them
were
advised
to
consult
an
attorney with a view to such transfer
.
As far as she knows, the transfer never
happened because Mr. Siska, and later his wife
,
both passed
on
before
it
could
be
effected.
Meanwhile,
and
apparently on the basis of the Deed of
Sale, the housing committee of the Municipality resolved to grant the
right of occupation
of the property
to
Mr.
Siska
before
his
death.
(IV)
FINDINGS
OF
THE
MAGISTRATE:
[10]
On the facts outlined above, the Magistrate made the following
findings,
inter alia
:
(a)
The Deed of Sale between Dr. Mnyandu and
Mr
.
Siska
was sufficient proof of
an
agreement between the
two
of
them.
(b)
One of the relevant factors that cannot
be overlooked is the legality and the validity of the Deed of
Transfer (as produced by
the
Appellant) especially where
it is challenged. Accepting such a
document as legal and valid without further enquiries may lead to
untold
injustice.
(c)
The mere production of a Deed of
Transfer in circumstances such as in this matter, does not justify
the finding that the Appellant
is
the
true owner of
the property.
(d)
The Respondent has shown another right
in law, namely the right to inheritance that made his occupation of
the property lawful.
(e)
For these reasons, the application for
eviction was dismissed without an
order
as to costs.
[11]
Mr
.
Louw,
appearing for the Appellant before us, contended that the
Magistrate ought to have found that the Deed of Transfer,
number
T5331/20013, evidencing the transfer from Sipho Leeuw and his wife to
the Appellant in 2013, was conclusive proof of the
ownership of the
property in the absence of any valid challenge thereto. On the other
hand, he submitted, the Magistrate ought
to have found that there was
no evidence that Mr.
Thomas
Siska
had ever obtained a right in respect of the property
which could devolve upon his heirs or beneficiaries.
[12]
The Respondent occupants did not take part in the appeal
proceeding
.
sIn
a letter placed before us, dated 22 March 2017, the legal
representatives of the Respondent in the Court a quo, namely Legal
Aid South
Africa
(Welkom Justice Centre), informed the attorneys of the Appellant that
their client was notified about the pending appeal,
but that he
had given them instructions not to
oppose the appeal, and that he would abide by the ruling of this
Court.
(V)
THE RELEVANT STATUTORY
PROVISIONS:
[13]
Section 16A of the Deeds Registry Act, number 47 of 1937
provides that a right of leasehold in terms of the Black Communities
Act of 1984 which has been granted to a person, shall be transferred
by means of a Deed of Transfer to another person
.
This section must be
read with
Section 2(1) and Schedule 1 of the
Upgrading of Land Tenure Rights Act, number 112 of 1991, which
provides that a right of leasehold
shall be converted into
ownership,
'1and
as
from
such
conversion
the
ownership
of
such
erf or piece of land shall vest exclusively in the person who,
according to the Registrar of
Land
Rights in which that
land tenure right was registered
in terms of
a
provision
of any law, was the holder of that land
tenure
right
immediately
before
the
conversion"
.
[14]
In terms of Section 6(1) of the Deeds Registry Act, number 47 of
1937, read with Section 102 thereof, only the High Court may
cancel a
Deed of Transfer, and in such event, the deed under which the land or
real right in land was held immediately prior to
the registration of
the deed which is cancelled, shall be revived (Section 6(2)).
[15]
Section 4(1) of PIE provides that applications for the eviction of an
unlawful
occupier
apply
to
proceedings
instituted
by
an
owner or person in charge of land.
Section 1 thereof defines an owner as the registered owner of land,
and an unlawful occupier
as a person
who
occupies
land
without
the
express
or
tacit
consent of the
owner
or
without
any
other
right
in
law
to
occupy
such
land
.
[16]
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are initiated,
a
Court may grant an order of eviction if it is of the opinion that it
is just and equitable to do so, after considering all the
relevant
circumstances, including, whether land has been made available or can
reasonably be made available by a municipality or
other organ of
state, or another landowner for the relocation of the unlawful
occupier, and including the rights and needs of the
elderly,
children, disabled persons and households headed by women. (Section
4(7)).
[17]
Section 4(8) provides that, if the Court is satisfied that all the
requirements of Section 4 have been complied with and that
no
valid
defence has been raised by the unlawful occupier, it must grant an
order for the eviction of the unlawful occupier and determine
a just
and equitable date on which the unlawful occupier must vacate the
land under the circumstances.
(VI)
APPLICATION OF THE STATUTORY
PROVISIONS TO THE EVIDENCE:
[18]
The provisions referred to above are
clear in their wording and cannot leave any doubt as to their
ordinary meaning and substance.
[19]
In terms of those provisions, Mr
.
and Mrs. Leeuw were the rightful
leasehold owners of the
property, and
they later became the
exclusive
owners
of
the
property
in
question when
their
Grant
of Leasehold number T[....] became converted into ownership by virtue
of
the
quoted provisions of
the
Upgrading of Land Tenure Rights Act,
number 112 of 1991. It follows that, after 19881 the
Municipality
and/or its
various
departments or committees had
no authority over the
fate
of
ERF [...] since
it
had already become the lawful property of Mr. Leeuw and his wife, and
only they could decide the further ownership or occupation
thereof.
All the decisions and recommendations by the Municipality pertaining
to ERF [...] after 1988 are therefore irrelevant
and
should
have
been
ignored
by
the
Court
a
quo
.
[20]
The
evidence
is
uncontested
that,
in
2013,
Mr.
Leeuw
and
his
wife
eventually
gave
transfer
of
the
property
directly
to
the
Appellant
by means of Deed of Transfer number
T[....], since Dr Mnyandu had
long
passed away
by
then.
In
accordance with the abstract theory
which applies in this country the validity of a transfer of ownership
is not dependent upon
the validity of the underlying transaction such
as the deed of sale. See
Legator
Mckenna
Inc
and
Another v Shea and Others
2010
(1) SA
35
(SCA)
para [20]. The requirements for the passing of
ownership are twofold as stated in para
[22] of
Legator Mckenna,
namely
delivery
in
the
event
of
movables
and
registration
of
transfer
in
the
event
of
immovable property and
secondly a
valid
real
agreement has
to
be
in
existence.
The real agreement will
be
valid
if there is an
intention
on
the
part
of
the
transferor to
transfer ownership
and an intention on
the part of the transferee to become
owner of the property. See also
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA) at par (17]. The Appellant thereby became the
registered owner of the property, and therefore she had the necessary
locus standi
to
apply for the eviction of
unlawful
occupants, once the
procedural
formalities of PIE have been met. See in this respect
Jackpersad
NO and Others v Mitha and Others
2008(4)
SA 522 (D and CLO) at
528
H, with reference to
Ndlovu v
Ngcobo; Bekker and Another v Jika
2003(1) SA 113
(SCA)
.
[21]
In this respect, the Court a quo incorrectly borrowed the words of
Moloi J in
Dhlamini v Lopolo and
Another
2010 ZAFSHC 54
to the
effect that only a legally valid Deed of
Transfer
confers
ownership
in
propert
y
.
A
Deed
of
Transfer
is a valid
document indicating ownership in the
immovable property mentioned therein, until such time as it is set
aside by a High Court. The
Deed
of
Transfer
did
in
fact
justify
a
finding
that
the
Appellant was the owner of the property,
contrary to the Court a quo's misdirection in this regard. That
judgment is at best for
the Respondent distinguishable
on
the
facts,
but
from
a
legal
point
of viewl wrong
in
the
doubt
created
pertaining
to
the
Title
Deed
.
[22]
The
Magistrate
did
not
have any jurisdiction to
decide
the
validity of the Appellan
t
1s
Deed of Transfer or even to raise
questions
as
to whether it was defective or not. The Magistrate ought to have
found
that
the
Appellant
was
the
registered owner
of
the
property and therefore vested with the
necessary
locus standi
to
launch the application for eviction.
[23]
Once a Magistrat
1
e
s
Court is provided with a Deed of Transfer or a
Title
Deed
over
property by
an
Appellant
for
eviction
I then ownership of the property has been established and the only
alternative option
in
such circumstances! is for the Magistrate to stay the eviction
proceedings upon request by the party challenging the validity
of the
Deed pending the final determination thereof by the High Court. In
the Court a quo, an opportunity was indeed granted to
the Respondent
to approach the
High
Court
for
the
setting
aside
of
the
Appellant1s
Title
Deed,
but he failed to do so despite being legally represented at the time.
In such circumstance
s
1
the Magistrate
should
merely
have
proceeded to the second stage of the enquiry, namely to decide
whether the Respondent was an unlawful occupier of the property in
terms of the Act.
[24]
The Appellant testified that the Respondent was occupying the
property without her permission or consent, and it was never
the case
of the Respondent that he had such permission or consent, in any
event. In addition, it is important to note that the
purported Deed
of Sale between Dr. Mnyandu and Mr. Thomas Siska, obviously has no
legal effect in view thereof that it was not
signed by the purchaser.
Because there never was any valid sale to Mr. Siska, the Respondent
could not eventually have inherited
the property from his
predecessors. The Magistrate had therefore also erred by finding that
the Respondent has shown a right to
inheritance that made his
occupation of the property lawful. The Magistrate ought to have found
that the Respondent was an unlawful
occupier that had to be evicted
if it was considered just and equitable to make such an order
.
(VII)
THE
JUST
AND
EQUITABLE
REQUIREMENT:
[25]
In order to establish what is just and equitable in the
circumstances, a balanced approach must be adopted, that is by
considering the interests of the land owner on the one hand, and the
interests of the unlawful occupier on the other. See
:
Port
Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at par. (37), and
also the judgment of Davis J in
Resnick
v
Government of the RSA and Another
2014
(2) SA 337
(WCC) at 344 D.
[26]
Considerations of what is just and equitable may not be allowed
to trump the illegality of occupation. An unlawful occupier
can never
remain indefinitely on the property, and the question is merely how
much time should he be given to vacate the property.
[27]
As already mentioned at the outset, the
Respondent and his wife and two children, aged 5 and 15 years, have
been occupying the property
for some nine years prior to his
testimony in the Court a quo. The Respondent's source of income is a
tavern that he operates on
the
property. Although the application was initiated in the Court a quo
during the course of 2013, the hearing thereof was delayed
for a
period of some three years, mainly in order to allow the
Respondent the opportunity to approach
the High Court for
the
setting aside of the
Appellant's Deed of
Transfer.
[28]
The Respondent was therefore aware, at
least since 2013, that proceedings were under way to have him and his
family evicted from
the property. He had ample time to make provision
for such an eventuality. Moreover, he chose not to partake in these
proceedings,
and informed through his legal representatives that he
would abide by the
decision
of the
Court.
[29]
Having duly considered all the circumstances, I am of the opinion
that it would be just and equitable to grant the Respondent
a period
of some two months to vacate the Appellant
'
s
property. The following order is therefore made:
1.
The appeal is upheld with costs.
2.
The dismissal of the application in the
Court a quo is set aside
and
substituted with
the
following:
"2.1
The Respondent and all other persons occupying ERF [...], Thabong,
district of Welkom, are ordered to vacate the property
with all their
belongings by 30 June 2017, failing which the Sheriff for the
district of Welkom is authorised and directed to evict
the
Respondents from the property, duly assisted by the SAPS, if
necessary.
2
.
2
The Respondents are ordered to pay the costs of the application"
____________________
P.J
L
OUBSER, AJ
I
agree
____________________
P.
DAFFUE, J
On
behalf of appellant:
Adv
.
MC Louw
Instructed
by:
Honey Attorneys
Bloemfontein
No
appearance for respondent