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[2016] ZAGPPHC 243
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Sibango and Sixteen Others v PPM Plumbing (Pty) and Another (20933/2016) [2016] ZAGPPHC 243 (20 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
20/4/2016
Case Number: 20933/2016
Not reportable
Not of interest to other
judges
Revised
In the matter between:
GCOBISA SIBANGO and
Sixteen Others
1st
APPLICANT
and
PPM PLUMBING (PTY)
previously known as 1st
RESPONDENT
PRETORIA PROPERTY
MAINTENANCE CC OR
(PTY) LTD
SCENIC ROUTE TRADING 502
CC t/a DEVCO 2nd
RESPONDENT
GROUP
Coram:
HUGHES J
JUDGMENT
HUGHES J
[1] The respondent's in
this application have been embroiled in litigation over an extended
period of time in respect of the properties
owned by the applicants,
amongst others.
[2] This urgent
application is instituted by the applicant's, as owners of the
properties, which properties are presently in the
possession of the
first respondent. The applicant's seek an order that the first
respondent vacate their properties.
[3] The applicant's
bought property in a residential development in Westbrook, Midrand.
The applicant's concluded a building contract
with the second
respondent to construct their homes on the properties purchased.
[4] The second respondent
sub-contracted the aforesaid contract to the first respondent. As a
result of the said sub-contract the
first respondent contends that
the second respondent owes millions in respect of payments and has
failed to pay. The second respondent
denies these allegations. As a
result a deadlock has resulted between the two respondents'.
[5] In a number of
spoliation applications between the respondent's, to which the
applicants were never a party, the first respondent
has been the
victor in retaining possession of the applicant's properties.
[6] In the circumstances
the first respondent has retained possession of the applicant's
properties whilst it battles in court the
issue of the second
respondent indebtedness. The building on the applicant's properties
has come to a halt and the applicants are
being held ransom over
their own property which is currently in the hands of the first
respondent.
[7] The applicant's
contend that they are the lawful owners of the property and seek to
take possession of their properties as owners
of the properties. This
is a
rei vindicatio.
URGENCY
[8] The first respondent
argued that this application was not urgent and as such should be
struck off the roll with costs. The first
respondent confirms that
the properties are in its possession however that the urgency claimed
by the applicants is 'meagre and
unspecified and unsubstantiated and
does not warrant the extent of departure from the Rule of Court'.
[9] The applicants
contend that the matter is urgent as they will not be able to obtain
substantial redress in due course for the
levies that are being paid
to the Westbrook home owners association for homes that they are not
living in, for rentals that they
are paying in other facilities as
their home are not complete, for interest on the monies not yet
disbursed and the possibility
of their mortgage bonds being withdrawn
by their respective banks which will leave the applicants with no
funds to continue with
their prospective building projects.
[10]
The
applicant's concede
that
they
were
aware of
the
dispute between
the
respondent's
as
far back as November 2015.
However, they add that they were advised by
the
second
respondent
that it
was seeking
legal
advice and
exploring
different
avenues
on
the
matter.
The
second
respondent
undertook
to
endeavour
to
resolve the
impasse that
prevailed.
[11] On 3 March 2016
after all the legal measures taken by the second respondent it became
apparent to the applicant's that the
second respondent was
unsuccessful in bring an end to the impasse that prevailed, so their
argument goes. They then sought legal
representation on 13 March
2016.
[12] It was argued for
the applicant's that they are being held ransom in a situation where
there is no prospect of settlement in
the near future between the
respondents and they have no input in the resolution of the dispute
between the respondents. They have
no control over their own
properties and the possibility arises that they will lose their
properties if this situation is left
to perpetuate. They are paying
expenses for property they cannot use. This, it was argued, is akin
to vindication of possession
from a spoliator and as such is urgent.
[13] I find nothing
unreasonable in the applicant's conduct or in the fact that they
relied upon the second respondent's word to
resolve the impasse. The
second respondent's undertaking to address the issue on a legal basis
is borne out by the many court battles
involving the respondent's. As
the applicants were never a party to these court proceedings, to my
mind, they had to give the second
respondent the benefit of the
doubt. However, when it became apparent that the second respondent
was unsuccessful at every challenge
the applicants had to take
control of their own destiny.
[14] On my examination of
the submissions advanced by the applicant's as to why this court must
entertain this matter on an urgent
basis what I find that is born out
is the right to obtaining their home built on their property. This in
my view falls under section
26 of the Constitution, the right to
housing. These applicants are well within their rights to seek the
relief sought, the vindication
of possession from the possessor, the
first respondent, on an urgent basis.
[15] In the result the
matter will be dealt with on an urgent basis and the applicant's
failure to comply with the prescribed provisions
for service of
process is condoned.
THE LAW
[16] The applicant's
argued that in a
rei
vindicatio
they need only
allege and prove that they are the owners, by title, and that the
first respondent is in possession of the property
so owned.
[17] It is trite that
ownership was essential and the proof thereof had to be adequate in a
vindicatory claim. See
Rusken
NO
v
Thiergen1962
(3)
SA
737
(A)
at 744A-B;
Goudini
Chrome
(PTY) LTD
v MCC
Contracts
(PTY) LTD
[1992] ZASCA 208
;
1993 (1) SA
77(A)
at 82.
OWNERSHIP
[18] The applicants
submitted that each owner, or at least one of the owners where there
is co-ownership, have put up a confirmatory
affidavit in support of
the allegations made by the first applicant. In addition each
applicant has put up a copy of the Windeed
search report to
substantiate their proof of ownership.
[19] Adv. Ellis SC
representing the applicant's argued that this Windeed document search
report was sufficient proof of ownership.
He further argued that the
mere denial of ownership by the first respondent does not create a
factual dispute which disentitles
the applicant's from the relief
they seek.
[20] On the other hand
Adv. Pelser SC for the first respondent argued that applicants have
not proven that they are the owners of
the properties by way of the
Windeed's put up. The argument is developed that Windeed has a
disclaimer as regards the information
gathered, in addition they make
use of suppliers for such information gathered and indemnify
themselves from that attained by their
suppliers. The second leg of
the argument is that the information obtained is hearsay as the
person responsible for extracting
the information has not put up
affidavits. There is only an affidavit from the attorney instructed
in this matter who states that
his offices executed the search. Thus
this information is hearsay and the applicants have not stated that
they could only provide
the information on their ownership as a
result of urgency of the matter.
[21] It is settled law
that the best evidences of ownership of immovable property is a
titled deed. See
Goudini
Chrome
supra at pg. 82.
[22] The argument raised
by the Adv. Pelser SC is technical in nature and is easily overcome
by the production of the original title
deed. However, does the
production of the Windeed in this urgent application not suffice as
proof of ownership?
[23] In the founding
papers of the applicants mention was made that the document attached
was a 'copy of a deeds office printout',
which is the Windeed. On the
Windeed under General Information it is recorded that the deeds
office concerned is that of Pretoria,
the date information was
requested being '14/03/2016' and the 'Information source' being the
'Deeds Office'.
[24] To claims made of
ownership by the applicant's in the founding affidavit the first
respondent denied that the applicants were
the registered owners. As
regards the documents put up to prove their ownership the first
respondent in its answering affidavit
states 'Annexure "FA2"is
not a copy of a Deeds Office printout and does not prove ownership.'
[25] I find the aforesaid
strange of the first respondent as in the same affidavit it
acknowledges all the applicant's as homeowners
having transmitted
correspondence to each one of them on two occasions and the said
applicants, one time or the other, having attended
one or all of the
two meetings held by the first respondents with the homeowners of
Westbrook. See paragraphs 29.3, 29.4 and 29.5
of the first
respondent's answering affidavit.
[26] It was also pointed
out by Adv. Ellis SC that in terms of the contract between the
respondents at paragraph 3.3.2 the first
respondent would not be
instructed by the second respondent, if, the property was not
registered in the name of the second respondent
or the owner of the
works to be constructed.
[27] In the face of that
set out in the preceding paragraphs supra it is, in my view,
disingenuous of the first respondent to now
deny that property is
owned by the applicants.
[28] Even so, has the
applicant's provided sufficient proof to assert ownership as is
required?
[29] In the replying
affidavit of the applicants the only reply to the allegations made
regarding the denial of the applicant's
ownership is just a denial
from the applicants.
[30] In dealing with the
Windeed document as proof of ownership it is noted that the source of
the information is the Deeds Office
Pretoria. I also take heed of the
fact that on the document it is clearly indicated that there is an
endorsement by a financial
institution I find stands to reason that
the original title deeds of the property would be in possession of
the financial institutions.
[31] In the circumstances
of this specific case there is the first respondent's affirmation in
the agreement between it and the
second respondent that work would
not commence unless the owner is confirmed and there is the admission
of the applicants as homeowners
by virtue of the correspondence sent
to them and their attendances as owners at the meetings called by the
first respondent. Both
these facts were extracted from the first
respondent's own answering affidavit. This together with the Windeed,
the source thereof
being the Deeds Office Pretoria is sufficient to
hold out that in the circumstances this is the best evidence that
could be adduced,
as in any event a copy of the title deed would have
had to be put up as the properties of the applicants are all
endorsed. Lastly,
here is the affidavit of the attorney for the
applicant from whose office the search was conducted. See
Goudini
Chrome
at 82 and 83; Gemeenskapapsontwikkelingsraad v
Williams and others (1)
1977 (2) SA 692
(W) at 697.
[32] In the result I
accordingly allow the evidence submitted as having proven the
ownership of the applicant's to the properties
concerned.
LIEN
[33] The first respondent
when arguing the matter before me abandoned the defence raised of a
lien and as such I do not intend to
deal with this issue.
COSTS
[34] The general rule of
the costs is that costs following the result. However, mention must
be made of the fact that this application
was heard over two days.
Adv. Ellis SC rightfully conceded that the applicants only sort cost
for one day as the second day was
occasioned through a delay on the
part of the applicants. That being the case, which party will be
responsible for the costs occasioned
by the first respondent for the
second day in court? In all fairness I am of the view that the
applicants will have to be responsible
for the first respondent's
costs of the second day as this came about due to the fault of the
applicants.
[35] The second
respondent filed an answering affidavit in support of the applicants
and did not oppose the applicant's application.
[36] Consequently the
following order is made:
[36.1] It is ordered that
the matter is to be dealt with as urgent and that the applicant's
failure to comply with the prescribed
provisions for service .is' are
condoned;
[36.2] The first
respondent is ordered forthwith to vacate the following properties:
Stands: 2397, 2403, 2404, 2405,2407, 2408,2417,
2418, 2419, 2424,
2426, 2429 and
2394 Noordkwyk Extension
63, City of Johannesburg, situated in the Westbrook Estate, Midrand,
Gauteng;
[36.3] The first
respondent is ordered to pay the costs of this application, which
shall include the costs consequent upon the employment
of senior
counsel. The costs for the hearing of the application being limited
to one day only being the 29 March 2016;
[36.4] The applicants are
ordered to pay the costs of the first respondent's attendance at
court for the 31 March 2016 such costs
are to include the costs of
senior counsel.
Judge of the High Court
Gauteng, Pretoria.
Delivered: 20 April 2016
For the applicants:
MANLEY INC.
Telephone: 012-346 3388
Counsel: Adv. Ellis SC
For the First Respondent:
JURGENS BEKKER ATTORNEYS
Telephone: 011-622
5472/5445
Counsel for the First
Respondent: Adv. Pelser SC