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[2016] ZAGPPHC 377
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Botha NO and Another v Mouton and Others (25893/2015) [2016] ZAGPPHC 377 (4 March 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO CASE
NO:
25893/2015
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
4/3/2016
DATE
JOACHIM
HENDRIK BOTHA
N.O.
FIRST
APPLICANT
NOMVUYO
YVONNE SERITI N.O.
SECOND
APPLICANT
AND
BENJAMIN
MOUTON FIRST
RESPONDENT
GERTRUDIA
DOROTHEA MOUTON SECOND
RESPONDENT
THE
CITY OF TSHWANE
MUICIPALITY THIRD
RESPONDENT
TRAKPROPS
118 (PTY)
LTD FOURTH
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]On
28 January 2016 I gave an order in the following terms:
1.1.
The first and second respondent and all those holding under them, be
ejected from the immovable property situated at […],
Pretoria,
better known as […]("the property");
1.2.
That the ejectment order in paragraph 1 shall become
effective
and executable 30 days after the granting of this order ;
1.3.
That the first, second and fourth respondents jointly and severally
be ordered to pay the costs of this application.
I
indicated at the time that my reasons for the order will follow .
These are those reasons .
[2]
The applicants who are joint trustees in the insolvent estate of the
Pater Familias Trust, approached this court for an order
of eviction
of the first and second respondent from the immovable property known
as […], […], Pretoria . This application
is opposed by
the first, second and fourth respondents .
[3]
It is common cause that a final order of sequestration was granted
after an opposed hearing before Prinsloo J. An application
for leave
to appeal was subsequently launched, however it was dismissed by
Prinsloo J.
[4]
Thereafter, an application for leave to appeal was launched by the
trust in the Supreme Court of Appeal. I will deal in some
detail with
the pending appeal when considering the merits of the respondents'
opposition of this application.
[5]
The applicants make the point that;
5.1.
The immovable property is the only asset in the insolvent estate,
5.2.
The immovable property is occupied by the first and second respondent
without the consent of the applicants, the trustees,
5.3.
Whereas there is an agreement of lease entered into between the
fourth respondent on one hand and the trust on the other hand,
in
terms of which the occupational rental is debited against a loan
account, this arrangement is a sham aimed at frustrating the
sequestration process.
[6]
The application is opposed on the following basis,;
6.1.
That there is a pending appeal before the Supreme Court of Appeal. It
is in fact an application for leave to appeal,
6.2.
That there is a clear dispute of fact that was foreseeable and/or
foreseen, and,
6.3.
That the respondents are in lawful occupation of the property.
[7]
In the heads of argument counsel for the respondents deals
extensively with the provisions of The Prevention of Illegal Eviction
and Unlawful Occupation of Land Act 19 of 1998, hereinafter referred
to as the "PIE Act". This is despite the fact that
the PIE
Act is not referred to at all in the affidavit resisting the eviction
application. Ordinarily, this court would not entertain
any
submissions which do not have their genesis in the founding papers
and that are raised for the first time during argument.
Our law
requires that the parties themselves set out and define the nature of
the dispute as well as the issues to be canvassed.
The role of the
court is to adjudicate upon those issues as identified. See
National
Director
of Public
Prosecutions
v
Zuma
2009
(2)
SA 27
SCA para 15
and 19.
[8]
In this matter the respondents were allowed some leeway to deal with
the PIE Act and the applicants to respond to issues raised
with
regard thereto despite the absence thereof in the opposing affidavit
for the simple reason that this being an application
for eviction,
the provisions of the PIE Act would ordinarily be relevant.
[9]
I now turn to consider the various grounds of opposition.
IS
THERE A PENDING APPEAL
[10]
This defence is raised by the respondents
in
limine.
The respondents contend that there is an application for leave to
appeal the sequestration order pending before the Supreme Court
of
Appeal. For this reason, so they argue, granting the application and
ordering eviction will be tantamount to realizing the immovable
property, for which the requisite written consent, of the trustees,
has neither being sought nor provided.
[11]
In the applicants' replying affidavit, the applicants dispute the
contention that there is a pending application for leave
to appeal
before the Supreme Court of Appeal. In so doing, applicants relied on
a letter from the Registrar of the Supreme Court
of Appeal a Mr. PSW
Myburg, the relevant portions of which read as follows;
"
The applicant
has
to date
not served
an
application
that meets the requirements
of the Rules
of this Court
.
Until such time as the application
is
filed
there is no
application
for leave
to
appeal and there is nothing that suspends any legal process"
[12]
In light of the letter from the Registrar of the Supreme Court of
Appeal there can be no pending application for leave to appeal
before
the Supreme Court of Appeal. This point
in limine
must fail.
[13]
The respondents further contend that this application for eviction in
fact
"amounts to realisation
of the property
and
is
therefore
irregular".
The irregularity, so
they argue, lies in the fact that the trustees of the trust have not
given their consent. The respondents
have failed to advance reasons
why they hold the view that eviction from the property equals
realization thereof. In their papers
applicants indicate that the
property is an asset in the insolvent estate and that their intention
is to avail it for rental purposes
and perhaps later for sale. There
is nothing on the papers that suggests that the applicants plan to
deal with the asset in an
underhand manner. Further, there is no
application before me to authorise or ratify realisation of the
property. The submission
that this application amounts to a
realisation falls to be rejected.
DISPUTE
OF FACT
[14]
The respondents state in their answering affidavit that;
"/
am
further advised that there is
a
clear substantial
dispute of fact in this
matter, which dispute was,
from
the
reading of the founding affidavit, clearly anticipated by
the
applicants, who
despite knowledge of the mentioned
disputes, proceeded with the eviction proceedings on notice and not
by way of action. In the
premises the application should be dismissed
with costs".
[15]
The respondents however do not indicate what the dispute of fact is
so that the court can determine whether there is in fact
such a
dispute of fact, that it was anticipated or foreseeable and therefore
that the proceedings ought to have taken the form
of an action and
not an application.
[16]
In the case of
Room Hire
Co (Pty) Ltd
v
Jeppe
Street Mansions
Ltd
1949
(3)
SA 1155
(T),
it was
decided, as a general rule, that the choice between the procedures
depends on whether a bona fide material dispute of fact
should have
been anticipated by the party launching the proceedings. When such a
dispute is anticipated, a trial action should
be instituted. At page
1161 Murray AJP stated;
"...There
are certain types of proceeding (e.g., in connection with insolvency)
in which by Statute motion proceedings are
specially authorised or
directed... There are on the other hand certain classes of case (the
instances given...are matrimonial
causes and illiquid claims for
damages) in which motion proceedings are not permissible at all. But
between these two extremes
there is an area in which...according to
recognised practice a choice between motion proceedings and trial
action is given according
to whether there is or is not an absence of
a real dispute between the parties on any material question of fact"
[17]
Accordingly, a court will be less inclined, when there are genuine
disputes of fact on material issues, to decide the matter
on motion
on a mere balance of probabilities, as would be ordinarily done in an
action. If, during an application, a dispute of
facts arises, the
court must exercise a discretion as determined in terms of Rule 6(g)
of the Uniform rules, to dismiss the application
or to refer the
disputes to oral evidence or to trial. This discretion must be
exercised judiciously.
[18]
In
P/ascon-Evans
Paints
Ltd
v
Van Riebeeck
Paints
(Pty)
Ltd
1984
(2)
All SA
366 (A)
at page 368 Corbett JA
stated;
"...where
in
proceedings on notice of
motion disputes of fact
have
arisen on the
affidavits, a
final order,
whether it
be
an interdict or some other form of
relief, may be granted if those facts averred in
the
applicant's
affidavits
which
have
been
admitted
by
the respondent,
together
with
the facts alleged by the respondent, justify such an
order.
"
[19]
In the case of
Room Hire
supra at page 1162, it was
stated that an
"...application
may be dismissed with costs, particularly when the applicant should
have realised when launching his application
that a serious dispute
of fact was bound to develop.
It
is
certainly
not
proper
that
an
applicant
should
commence proceedings
by
motion
with
knowledge
of
the
probability
of
a
protracted
enquiry
into
the
disputed
facts
not
capable
of
easy
ascertainment
...what
is
essentially
the
subject
of
an
ordinary
trial
action."
[20]
This was supported in the case of
Lombaard v
Droprop
CC
and
Others
2010
(5)
SA
1
(SCA).
At page 11
Heher JA et Shongwe JA stated;
"...Therefore,
if
a
party
has
knowledge
of
a
material
and
bona
fide
dispute,
or
should
reasonably
foresee
its
occurrence
and nevertheless proceeds on motion, that party will usually find
the application
dismissed."
[21]
In
Wightman t/a
JW Construction v
Headfour (Pty) Ltd and
Another
[2008] ZASCA 6
;
2008
(3)
SA 371
(SCA)
the Supreme Court
of Appeal succinctly and meticulously set out what is a dispute of
fact and the approach to be adopted when confronted
thereby. Heher JA
said;
“
A
real,
genuine
and
bona
fide
dispute
of
fact
can
exist
only
where the court is satisfied
that the
party
who
purports
to raise
the
dispute
has
in
his
affidavit
seriously
and
unambiguously
addressed
the fact
said to be disputed.
There
will of course be instances
where
a
bare
denial meets
the
requirement
because
there
is
no
other
way
open
to the
disputing
party
and
nothing
more can therefore be expected
of him.
But even that may
not be
sufficient if the fact averred lies purely
within
the knowledge of
the
averring
party and
no
basis is
laid for
disputing
the veracity
or
accuracy
of the
averment.
When the
facts
averred
are
such that the disputing party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing
evidence} if
they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will
generally have
difficulty in finding that the test is satisfied. I say 'generally'
because factual averments seldom stand apart
from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily
recognise or understand
the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual
allegations made by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate
as they may be, and will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon
a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect
such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court
takes a robust view of the matter.”
[22]
In light of the above approach, the respondents, who are under
obligation to point out the disputes of fact, in my view, have
failed
to unambiguously identify and address any facts disputed. Instead,
the answering affidavit is replete with bare denials.
In the opposing
papers and in argument before me, there was lack of articulation of
the basis for disputing certain facts. This
is one matter where a
robust view of the matter, as cautioned by Heher JA in
Whightman
v Headfour,
above, is warranted. The defence that there are
disputes of fact must fail.
DO
THE
RESPONDENTS OCCUPY
THE
PROPERTY LAWFULLY
[23]
The first and second respondent contend that their occupation of the
property is lawful in that there is a lease agreement
dated 20 July
2012, concluded between first respondent and second respondent,
albeit in a representative capacity as trustee of
the fourth
respondent. The question that inadvertently arises, in the event it
is found that the agreement is valid, is whether
the agreement is
binding on the applicants in their capacities as trustees in the
insolvent estate of the Pater Familias Trust.
[24]
The applicants dispute that the lease agreement is genuine. In fact
counsel for the applicants called it a "simulated"
agreement or contract. In his view, it was entered into for the sole
purpose of frustrating the liquidation process. The applicants
highlighted numerous grounds on which they base such strong
submissions;
24.1.
Nowhere in the agreement is it stated that the right to occupy the
property is derived from the fourth respondent,
24.2.
That the occupation of the property without payment of rental is an
absurdity,
24.3.
That the fourth respondent is burdened with the duty of keeping the
immovable property in good condition without any corresponding
responsibility from the lessee. By way of example clause 5 has very
strange provisions. Clause 5.6 thereof provides that the Lessor
must
obtain prior written consent from itself. The list is not exhaustive
but some of the strange provisions provide that;
"The
Lessor shall:
5.1.
Be
responsible
for the maintenance
of the
interior of the premises
and undertakes
to deliver the
premises back to the Lessee at the termination
of
this
lease in the
same
good order and conditional r cried
by the
Lessor from the
Lessee with
allowances
only for
ordinary wear
and
tear.
5.2.
Repair,
or
where
necessary replace,
any
door handles,
Jocks
and
keys,
glass,
Window
fasteners, electrical
fittings
and
figures,
baths,
basins,
sanitary ware, water
taps,
burglar
alarm
a,
automated
gates/
g
arage doors and sprinkler systems, which are damaged by the
Lessee. The Lessor shall also replace at his/her expense, any light
bulbs, fluorescent tubes, fluorescent starters, tap washers and water
blasts on the premises as and when necessary. All repairs
affected
shall be to the level of quality acceptable to the Lessee.
……………………
..
……………………
..
5.6.
Not to cut or remove trees or plants or effect any alterations to the
garden, without the Lessors prior written consent.
24.4.
That with regard to subletting, there is a clear imbalance of power
demonstrative of the contrived nature of the agreement.
The Lessor is
barred from ceding or subleasing its own property without prior
written consent of the Lessee. The strangest provision
is this;
6.2.
Any exercise of the Lessors rights in terms of this agreement, will
be without prejudice to any claim that the Lessee may have
for rental
and or for damages arising from the lessors breach.
24.5.
That in essence, the agreement is entered into between husband and
wife,
24.6.
That the loan agreement forming the basis of the lease has not been
made available despite requests,
24.7.
That the agreement of lease was in any event cancelled.
[25]
Coupled with the enquiry as to whether the respondents occupy the
immovable property lawfully, are issues raised in connection
with
noncompliance with the PIE Act, which issues do not warrant detailed
consideration. I shall nevertheless touch on the PIE
Act, if only
briefly.
[26]
The issue of the immovable property and the occupational rental was
briefly dealt with by Prinsloo J in his judgment. He said;
"The
issue
of the alleged
occupational
rental
is,
to put
it mildly,
a
vague affair:
the first
respondent
told Murray
that the trust entered into
a
lease
agreement
with
a
company
known
as
Trac Props
for
occupational rent, which
was
not
paid though,
but
debited to loan
account in favour of the trust. It is common cause that the trustees
have been occupying the property at all material
times and still do
so, without paying any occupational rental to the trustees or to
anyone else.
[27]
Prinsloo J, in summarizing his conclusions, further states;
"Moreover,
I
am
satisfied,
as
this court also found
when
the provisional
sequestration
order
was granted,
that
a
proper
case has
been
made
out
to
the
effect
that
a
sequestration
order
will be
to
the
advantage
of
the
creditors
of
the
trust.
Mr.
Van
der
Merwe argued that the
property is the only asset of the trust (this is common cause) and
therefore the only source of money for
the creditors. Mr. Mouton
stated, although ambiguously, that the movable assets attached belong
either to his wife or to the company
with which the alleged contract
(as yet unseen) with
regard to occupational
rental has been
entered into.
"
[28]
Since the immovable property is the only asset of the trust, it is
important that it be utilized maximally for the benefit
of all,
particularly creditors. On the assumption that there is a valid lease
agreement, the nonpayment of occupational rental
does not amount to
beneficial use. Even more non-beneficial is the arrangement in terms
of which occupational rent is debited to
a loan account against a
trust, especially in light of the fact that the terms of the loan
agreement or as it is referred to in
the lease agreement the
"financial accommodation agreement", are unknown. In his
judgment Pronsloo J, touches on the
meagre nature of the sum of R 10
000-00 as occupational rental which amount is clearly
disproportionate to the market related rental,
agreed at the trial to
be the sum of R25 000-00.
[29]
A clause in the agreement records the following;
"Lessor
has
signed
a
financial
accommodation
agreement
(the agreement) with
the
Lessee
in
terms
of
which
financial assistance
is given by the Lessee the Lesssor on condition that:
(a)
The
Trustees
shall
be allowed
(as from
the effective
date)
to remain in beneficial
occupation of the
property for residential purposes;
(b}
and
further
on
condition
that
the
market
related
rental
for
the
premises is
paid
monthly by
the Trustees to the Lessee
(my emphasis).
Until such time
as a
market
related
rental
is
determined
by an
independent
third party,
the minimum
amount of
R10 000-00 (ten thousand Rand) shall be paid monthly
and shall
be applied
towards
the repayment
of
the
loan
amount
from
time
to
time
outstanding
and
owing
to the Lessee
in
terms
of the
agreement".
[30]
The criticism leveled at the lease agreement by the applicant is
founded on solid legal grounds. The cumulative effect of the
contradictory nature of the provisions of the agreement, the fact
that the lease does not make any commercial sense, the clear
disproportionate nature of rights and obligations of parties to the
lease, the prejudicial nature of the agreement to creditors
and to
the applicants, add to that, the fact that the property which is the
only asset of the insolvent estate is kept out of reach
of the
applicants for purposes of carrying out their functions, lead me to
conclude that the agreement was created for no other
purpose but to
frustrate the applicants and is clearly prejudicial to creditors.
[31]
No explanation has been advanced by the respondents, if they hold the
view that the agreement is valid, why they do not respect
the
cancellation of the lease agreement as communicated by Mr. Murray or
at the very least make available all documents, including
the loan
agreement and most importantly the reconciliation statement in
respect thereof, to the applicants for purposes of proving
that such
an arrangement exists as well as the details thereof. The fact that
the lease agreement with its numerous flaws coupled
with
circumstances of its disclosure, was touted as evidencing lawful
occupation is something that this court takes a dim view
on.
[32]
There can be no doubt that the lease agreement is a fabricated
document. Occupation of the property based on the lease agreement
is
equally unlawful. Even on the assumption that occupation of the
property by the respondents is lawful, which lawfulness is derived
from the agreement, the lease agreement was cancelled in clear and
unequivocal terms.
THE
PIE
ACT
[33]
The respondents argued extensively that the PIE Act has not been
complied with and that therefore on that basis alone the application
for eviction must be dismissed. As indicated above, this defence was
only raised in argument and is not encapsulated in the papers
before
me. I am of the view that willful, persistent and unlawful occupation
of the property, in light of the findings above, has
been
established. I also could find no other basis of occupation of the
property in the papers before me as the respondents failed
to state
any other right in law permitting occupation of the property. The
respondents, as an afterthought, argued that the procedural
requirements of the PIE Act have not been complied. Such submissions
were baseless and opportunistic in light of the fact that
the
applicants did cause the application for eviction to be served on all
the parties including the municipality. I was also referred
to the
order of my brother Justice AA Louw dated the 5th May 2015,
authorizing the form and manner of service of the eviction
application, as well as returns of service evidencing compliance with
the order of Louw J.
[34]
The aforegoing having been established, section 4(7) of PIE sets out
what this court should take into consideration in deciding
whether or
not to grant an order for the respondents' eviction. It reads thus;
"If
an
unlawful
occupier
has
occupied
the
land
in
question
for more
than
six
months
at
the
time
when
the
proceedings are initiated,
the court may grant
an order
for 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 land owner for the relocation of the unlawful occupier, and
including the rights
and needs of the elderly, children, disabled
persons and households headed
by
women."
[35]
The respondents developed their argument further and submitted that
since the application for eviction was postponed
sine die
after
the initial date contained in the section 4(2) notice, the applicants
were under obligation to seek further authorization
and/or serve
afresh the section 4(2) notice before proceeding further. Counsel for
the applicants referred me to the unreported
judgment of
Van
der Berg AJ,
in this division;
G.P. Troskie
and
another v
Liquidator of
RSD Construction
CC
Wilbecar
Liquidators
CC tla Bureau
Trust Gauteng
RSD Construction CC
and Others, case no: 7132212012
at paragraph 65, where it was held, in summary, that in circumstances
where a matter had been postponed
sine die
the party setting
the matter down cannot be expected to once again serve the section
4(2) notice, where parties had been aware of
the pending application
and had participated in the proceedings. Although the reasoning is
not set out in the judgment, it is easy
to understand why the court
arrived at that conclusion. The purpose of a section 4(2) notice is
to inform the respondent of an
application to be brought seeking,
among others his/her eviction. Once the respondents had been made
aware and had participated
in the legal proceedings up to the date of
postponement of the application
sine die,
they can not be
heard to be saying they need to be notified, again, that an order for
their eviction would be sought.
[36]
In the papers before me it is clear;
36.1.
How the respondents came to occupy the property;
36.2.
How the respondents continue to occupy the property and claim that
their right is derived from the lease agreement discussed
above;
36.3.
How the respondents failed to advance reasons why they should
continue to occupy the property or why their right in law, if
any, is
superior than that of the applicants;
36.4.
How the respondents failed to place facts before me, despite having
ample opportunity to do so, about any prejudice they stand
to suffer
if the order of eviction is granted;
36.5.
How the insolvent estate stands to be prejudiced should occupation
under these circumstances be persisted with, in light of
the fact
that the immovable property is the only asset at the trustees'
disposal, nor has the respondent dealt with the plight
of creditors;
36.6.
There has not been any allegation that the respondents are a
vulnerable group whose plight the municipality has a vested interest
on, thus triggering the municipality's obligation to provide
accommodation;
[37]
In the premises I am satisfied that applicants have demonstrated that
it is just and equitable for the respondents to be evicted,
and that
applicants have placed sufficient information before this court to
justify the granting of such an order.
[38]
In the result I make the following order;
1.
The first and second respondent and all those holding under them, be
ejected from the immovable property situated at […]("the
property");
2.
That the ejectment order in paragraph 1 shall become effective and
executable 30 days after the granting of this order ;
That
the first, second and fourth respondents jointly and severally be
ordered to pay the costs of this application.
___________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
ATTORNEYS
FOR THE APPLICANT :TIM
DU TOIT & CO INC.
COUNSEL
FOR THE APPLICANT :ADV.
MP VAN DER MERWE, SC
ATTORNEYS
FOR THE RESPONDENT :KMG
& ASSOCIATES INC.
COUNSEL
FOR THE DEFENDANTS :ADV.
R. RAUBENHEIMER