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[2016] ZAGPPHC 492
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Alcock and Another v Erasmus and Another (36480/2014) [2016] ZAGPPHC 492 (29 June 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
29/6/2016
Case
Number 36480/2014
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
ANTHONY
GRAHAM
ALCOCK
First
Applicant
SUSAN
KAREN
ALCOCK
Second
Applicant
and
ANDRE
CARL
ERASMUS
First
Respondent
KUNGWINI
LOCAL
MUNICIPALITY
Second
Respondent
JUDGMENT
CANCA
AJ
INTRODUCTION
[1]
This is an application for the eviction of the first respondent, and
all persons holding under him, from the property situated
at Portion
457 of Portion 57 of the farm Zwavelpoort, Registration Division JR,
Gauteng Province (“the property").
[2]
The applicants are the registered co-owners of the property and
allege that the first respondent is in unlawful occupation thereof.
[3]
The first respondent, who previously owned the property prior to it
being sold in execution, opposes the application.
[4]
The second respondent has not opposed the application nor was it
represented at the hearing of the matter.
BACKGROUND
FACTS
[5]
I set out hereunder the factual history of this matter
chronologically.
[6]
On 5 November 2007 Absa Bank Limited ("Absa") obtained a
judgment, by default, against the first respondent for,
Inter
alia,
payment of the sum of R2 622 923.86 and an order declaring
the property executable.
[7]
On 25 May 2011Absa buys the property at a sale of execution.
[8]
On 16 November 2011the first respondent brings an application for the
rescission of Absa's judgment. The application is dismissed
on 18
December 2012.
[9]
The first respondent then applies for leave to appeal the dismissal.
This application is dismissed on 6 March 2013.
[10]
On 12 November 2013 the Supreme Court of Appeal grants the first
respondent leave to appeal to the Full Bench of this Court.
He
delivers his Notice of Appeal on the respondents in the appeal on 26
November 2013.
[11]
The property is transferred into the names of the applicants on 2
April 2014.
[12]
The applicants then launched this application against the respondents
in terms of the provisions of the Prevention of Illegal
Eviction from
and Unlawful Occupation of Land Act No 19 of 1998 ("the PIE
Act'') on 20 May 2014.
[13]
Although the first respondent was, in terms of the Uniform Rules of
Court ("the Rules"), required to have served
his answering
affidavit to the first applicant's founding affidavit by 20 June
2014, he only did so on 7 August 2014, a few days
before the initial
hearing of this matter.
[14]
The first respondent averred that he could not be evicted from the
property because the order in terms of which the property
was sold in
execution was incorrect and that his application to have the sale
declared void and set aside was still the subject
of an appeal.
[15]
In reply, the applicants averred,
inter alia,
that the outcome
of the appeal would not effect this application or their title to the
property and finally that, having failed
to prosecute the appeal In
terms of the Rules, the first respondent's appeal had, in any event,
lapsed.
[16]
On 24 November 2014 the application is heard by Mphahlele J who
reserved her judgment. On 28 November 2014, the application
is
postponed
sine die
possibly because of the pending appeal.
[17]
The appeal against the dismissal of the rescission application is
struck from the roll with costs on 9 September 2015, possibly
for
failure by the first respondent to prosecute his appeal.
[18]
The applicants then re-instated the matter and set it down for
hearing on 25 April 2016. At the hearing of the matter, Mr Maritz,
for the first respondent, raised two issues: Firstly, he contended
that the matter could not proceed as it was
res iudicata.
Secondly, he drew my attention to the fact that the first
respondent had earlier that morning served an application for
condonation
on the respondents in the appeal.
[19]
During the course of argument, I raised the question of what would be
a reasonable time for the first respondent to move from
the property
if the eviction application was successful and whether there were
special circumstances I would have to consider when
determining the
equities of the case.
[20]
Following argument, I directed the parties to furnish me with short
heads of argument dealing with the issues raised in oral
argument.
The applicants filed their supplementary heads of argument ("heads")
on 4 May 2016 and the first respondent
filed his heads the following
day, 5 May 2016. However, in his supplementary heads, the first
respondent raised, as a point
in limine,
the non-applicability
of the PIE Act in these proceedings. This necessitated, at my
request, written submissions on the weight to
be accorded to this
point given that it was raised for the first time at that late stage
of the proceedings. The applicants duly
furnished their second set of
further supplementary heads on 9 June 2016.
POINT
IN LIMINE
[21]
Mr Maritz contended that, rather than the PIE Act being applicable,
it was the Extension of Security of Tenure Act 62 of 1997
("ESTA")
which was of application in this matter. Reliance for this contention
was placed on the fact that the property
was described as a farm and
not a stand in a township. ESTA was applicable to land “other
than land in a township established,
proclaimed or otherwise
recognised as such...'', so the contention continued.
[22]
Although Mr Maritz was contrite in not having canvassed this issue in
any of the previous papers, he is well within his rights
to raise a
point of law at any stage before judgment. However, save for making
the bald assertion that section 20 of ESTA specifically
excluded the
jurisdiction of this Court, Mr Maritz neither cited the relevant
provisions of section 20 on which he based his argument
nor did he
support his argument with any authority.
[23]
Mr Campbell, for the applicants, correctly conceded the first
respondent's right to raise a legal point at this late stage.
However, he argued that there was no merit to the point raised
in
limine.
Mr Campbell deals fairly comprehensively in his further
supplementary heads with this issue. I am grateful to him for this
point
can now be satisfactorily discussed.
[24]
The differences between the PIE Act and ESTA are set out briefly as
follows by Tshiqi AJA in
Randfontein Municipality v Grobler and
Others
[2010] 2 All SA 40
(SCA) at 42 e-h:
"The
main distinction is that broadly speaking ESTA applies to rural land
outside townships and protects the rights of occupation
of persons
occupying such land with consent after 4 February 1997, whilst PIE is
designed to regulate eviction of occupiers who
lack the requisite
consent to occupy. Occupiers protected under ESTA are specifically
excluded from the definition of Nun/awful
occupier6 in PIE. An order
for the eviction of occupiers may be granted under ESTA by a
competent court on just and equitable grounds,
having regard to the
different considerations applicable in each instance. The land Claims
Court is a specialist tribunal established
by section 22 of the
Restitution of land Rights Act 22 of 1994 and enjoys jurisdiction,
subject to sections 17, 19, 20 and 22 Of
ESTA, to deal with cases
determined under ESTA. It follows, therefore, that if the land was
occupied with consent, either express
or tacit, the jurisdiction of
the High Court to deal with It Is excluded in the absence of consent
to its jurisdiction.”
It
is also important to note that the PIE Act applies In respect of all
land throughout the Republic and defines land to include
a portion of
land.
[25]
In order to succeed with his point
in limine,
it is not
sufficient for the first respondent to merely show that the property
in question was rural in nature. The hurdle to be
surmounted is
steeper than that.
[26]
The first respondent has to show that he is an occupier in terms of
ESTA. An occupier is defined as
"a person residing on land
which belongs to another and who has
or
on 4 February 1997
or
thereafter had consent
or
another right in law to do so...”
[27]
The first respondent commenced living on land belonging to another
from the date when he lost his ownership pursuant to the
transfer
thereof to Absa and the subsequent owners of the property. The first
respondent also had to show that he earned less than
R5 000.00 per
month.
[28]
The intention of the Legislature in enacting ESTA was held in
Molusi
v
Voges
NO
2016 (3) SA 370
(CC) at [1] to be the
regulation the eviction of vulnerable occupiers from land in a fair
manner, while recognising the rights
of land owners.
[29]
There is no evidence that the first respondent has been occupying the
property with the applicants' consent or that he is a
vulnerable
occupier. On the contrary, the applicants initiated these eviction
proceedings shortly after they acquired ownership
of the property.
Therefore it cannot be seriously argued that the first respondent
occupied the property with the applicants' express
or tacit consent.
Even if there was such consent between the period when the applicants
acquired ownership and the launch of these
proceedings, the notice
served on the first respondent in terms of section 4 (2) of the PIE
Act was sufficient notification that
such consent was being revoked.
See the dictum of Harms JA in
Ndlovu v Ngcobo
2003 (1) SA 113
at 121 D-E where the learned Judge states that an erstwhile owner
becomes an unlawful occupier once his property has been sold
in
execution and thereafter transferred to a purchaser.
[30]
In my view, the first respondent is not an occupier as defined in
ESTA. Whilst the first respondent might be entitled to re-transfer
of
the property if his rescission application succeeds, until the
property is transferred back to him, he is not the owner thereof.
[31]
It follows that, in my view, there is no merit to the point
in
limine.
[32]
This brings me to the next enquiry.
IS
THIS MATTER RES IUDICATA?
[33]
Mr Maritz argued that when Mphahlele J, following argument by the
parties, postponed the matter
sine die,
the learned Judge had
considered the same papers and the same arguments before me,
rendering the issue
res iudicata.
[34]
Mr Campbell countered this argument, relying on the dictum of Brand
JA in
Prinsloo NO & Others v Goldex 15 (PTY} Ltd & Another
[2012) JOL 28866 (SCA) at [10) where the learned Judge described
res iudicata
to mean that:
"...the
matter has already been decided. The gist of the plea is that the
matter or question raised by the other side has been
finally
adjudicated
upon in proceedings between the parties and that
it therefore cannot be raised again."
[35]
I have difficulty in understanding on what basis Mr Maritz,
merely because the matter was argued but ended up being postponed
sine die,
is seriously contending that these proceedings have
been "finally adjudicated". A matter that is postponed
sine
die
clearly means that no final decision has been taken. Any
party to such a matter is well within his or her rights to re-enrol
same
in order to obtain a final determination thereof. This is what
the applicants have done
in casu.
The order granted by
Mphahlele J which postponed the matter
sine die,
does not
state that such postponement should endure until finalisation of the
appeal.
[36]
There is, in my view, no traction to the
res iudicata
argument.
It therefore cannot be sustained.
IS
THE APPEAL RELEVANT TO THESE PROCEEDINGS?
[37]
The first respondent contended that in view of the provisions of
Section 18(1)
of the
Superior Court's Act 10 of 2013
which states
that
"The operation and execution of the decision which Is
the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application on appeal. "
these proceedings could not be determined until the appeal has
been disposed of. The sale and transfer of the property was in
contravention
of the aforesaid
section 18(1)
and therefore void, the
contention continued. Mr Maritz relying on the judgments of the South
Gauteng Full Bench in
Vosal Investments (PTY)
Limited v
City of Johannesburg
2010 (1) SA 595
at para 16 and
Knox v
Mofokeng & Others
2013 (4) SA 46
(GSJ) at 50 A-G further
contended that should the rescission application succeed on appeal,
the sale and registration of the property
into the name of the
applicants will be impeachable.
[38]
The essence of these authorities is that an owner of immovable
property is entitled to its restoration from a
bona fide
purchaser
at a sale in execution, following a rescission of the judgment,
particularly where the purchaser was aware of an attack
on the
judgment.
[39]
In the view that I take it is irrelevant whether or not there is
substance to Mr Maritz's argument and whether the appeal is
relevant
to these proceedings. The fact of the matter is that there is no
pending appeal and no pending application for leave to
appeal. The
application delivered on the morning of 25 April 2016 is for
condonation and other relief relating to the lapsed appeal
against
the dismissal of the rescission application. It does not constitute a
bar to this PIE ACT application.
FACTORS
RELEVANT TO THE EVICTION
[40]
As stated in paragraph 18 above, I requested the parties to furnish
me with written submissions on,
inter alia,
factors I should
consider regarding the equities of the matter in the event that I
found that the applicants were successful in
these proceedings. The
first respondent elected not to address this issue.
[41]
According to Mr Campell's further supplementary heads, the first
respondent is 54 years of age and neither party has contended
that
the property, which has two dwellings on it, is occupied by persons
warranting the attention of this Court. There is also
no indication
that any farming is undertaken on the property. The first respondent
has also not indicated that he cannot afford
alternative
accommodation.
CONCLUSION
[42]
The applicants have complied with the statutory provisions entitling
them to the relief they seek. I can find no reason for
them to
continue to be deprived of their right to the use and enjoyment of
the property.
[43]
In the result, I order as follows:
1. Andre Carl Erasmus and
all persons holding under him are hereby ordered to vacate the
property situated at Portion 457 of Portion
57 of the farm
Zwavelpoort, Registration Division JR, Gauteng Province, measuring
1,0005 (ONE COMMA ZERO ZERO ZERO FIVE) hectares,
held by Deed of
Transfer T23737/2014,on or by 29 July 2016.
2. Should Andre Carl
Erasmus and all persons holding under him, fail and or refuse to
vacate the property situated at Portion 457
of Portion 57 of farm
Zwavelpoort, Registration Division JR, Gauteng Province by 29 July
2016, the Sheriff for the District or
his Deputy, where the property
is situated, are hereby authorised to evict Andre Carl Erasmus and
all persons holding under him
from the property on or after 1August
2016.
3. The first respondent
is ordered to pay the costs of the eviction application.
__________________
MP
Canca
Acting
Judge of the High Court
Gauteng
Division, Pretoria.
APPEARANCES:
For
the applicants: Mr AG Campbell
Instructed
by: REG JOUBERT ATTORNEY, Edendale.
For
the first respondent: Mr S Du T Maritz
Instructed
by: CMM ATTORNEYS INC,
C/O
VAN RENSBURG JORDAAN & OLIVIER Centurion.
Date
Heard
Date
of Judgment :