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[2016] ZAGPPHC 961
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Loucat Investments (Pty) Ltd v Shatz and Others (74442/2015) [2016] ZAGPPHC 961 (29 September 2016)
I
N
THE HIGH
COURT OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
29/9/16
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
CASE
N0.:74442/2015
In
the matter between:
LOUCAT
INVESTMENTS (PTY)
LTD
Plaintiff
and
ROSE
MARY SHATZ AND TWO OTHERS
First
Defendant
UNLAWFUL
OCCUPIERS OF ERF
249
Second
Defendant
NELSVILLE
TOWNSHIP
MBOMBELA
LOCAL
MUNICIPALITY
Third
Defendant
JUDGMENT
HUGHES
J:
[1]
This is an application in terms of section 4(1) of the Prevention of
Illegal Eviction from and Unlawful Occupation
of Land Act 19 of
1998 (the Act). The applicant seeks the eviction of the first and
second respondents.
[2]
From the outset both parties' counsel Adv Van der Merwe for the
applicant and Adv Riley for the first respondent advised this
court
that by agreement the issues pertaining to representation and
authority to depose to the affidavits on hand, would no longer
be
pursued and the parties are properly represented in this application.
[3]
It is not in dispute that the applicant is the registered lawful
owner of the property described as ERF 249 Nelsville, Mbombela,
being, [....] F. S., Nelsville, Nelspruit, situated in Mbombela,
measuring 379 square metres (three hundred and seventy nine) in
extent and held by Deed of Transfer T10109/2012 subject to all the
existing conditions of title and servitude as will appear more
fully
in in the existing Title Deeds of the Property. It is further not
disputed that the first respondent is occupying the aforesaid
property of the applicant.
[4]
The applicant contends that the first respondent has no right, legal
or otherwise to occupy the property. On the papers
before me
the first report states that the first respondent has occupied the
premises since 1981, this was since the death of her
father, as head
of household, that being some 30 years until she sold the property on
1 April 2012 to Ms Candice Smit (nee Hittler).
Ms Smit in turn sold
the property to the applicant on 29 November 2013 and transfer to the
applicant took place on 27 March 2014.
[5]
The applicant contends that the first respondent is occupying the
property without any right in law, without an agreement with
the
applicant and is not the lawful owner of the property. Even so, the
first respondent refuses to vacate the property and remains
in
occupation without the express, implied or tacit consent of the
applicant.
[6]
The first respondent contends that her right of occupancy of the
residential property arises from a lease agreement. This lease
agreement was concluded on 1 July 2012 between Rubigenix (Pty) Ltd
and RZT Zelpy 5241(Pty) Ltd (RZT Zelpy).
[7]
Adv Riley for the respondent argues that according to the lease
agreement the first respondent occupies the property on the
say so of
RZT Zelpy. As per clause 6(e) of the lease agreement the lessee would
use the property only for residential purposes,
with occupancy of no
more than three people. Further, in terms of the purchase and sale
agreement concluded by Ms Smit and the
applicant. At clause 20 it is
recorded that "any lease agreements relating to the property
will remain in full force and effect..."
Thus the applicant as
purchaser would become the landlord on transfer. She submitted that
in terms of clause 7 of this agreement
the risks and benefits of
ownership passed upon the applicant at registration of transfer.
[8]
Adv Van der Merwe submits that the first respondent's reliance on the
lease agreement must fail as the lessee who has rights
emanating from
that agreement is RZT Zelpy and not the first respondent. Further,
the first respondent on the papers does not demonstrate
that she
obtained a right from RZT Zelpy to occupy the premises. The applicant
argues that this lease agreement is denied and amounts
to a simulated
transaction and nothing more.
[9]
On my examination of the lease agreement it is noted that the parties
or companies who contracted were represented by Ms Candice
Hittler
(now Smit). The period of the lease agreement runs from 1 August 2012
to 3 July 2017. From clause 6(d) of the lease agreement
sub-letting
in whole or part is prohibited without the "written consent of
the Lessor". It is also notable that the first
respondent does
not make mention of how she came to occupy the property whilst RZT
Zelpy was the lessee. All she states is that
"the first
respondent has at all times had the right to live on the property,"
found at paragraph 32.4 of the answering
affidavit.
[10]
The first respondent does not take this court into her confidence and
explain how she attained a right to occupy without having
any right
enforceable against the owner, being the applicant.
See
Chetty
v Naidoo
1974
(3)
SA
at
20
B-D:
"It
is inherent in the nature of ownership that possession of the
res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with some
right enforceable against the owner (e.g., a right of retention or a
contractual right)"
[11]
The applicant's contention that the lease agreement amounts to a
simulated transaction is dealt with as follows:
[11.1]
The first respondent alleges that she sold the property to Ms Smit in
2012 and the property was sold on the premise that
she would be
afforded the opportunity to enjoy uninterrupted occupancy of the
property.
[11.2]
The first respondent sold the property "in an effort to
alleviate her personal financial difficulties ..."
[11.3]
Ms Smit, the owner of the property entered into a verbal lease
agreement during July 2012 with Rubigenix (Pty) Ltd, which
incidentally is owned by Ms Smit.
[11.4]
On 1 July 2012, Rubigenix (Pty) Ltd leases the same property to RZT
Zelpy 5241 (Pty) Ltd by way of the written lease agreement
mentioned
in this judgment.
[12]
On the facts in the preceding paragraph, mention must be made that
the applicant denies that they were aware of any lease agreement
over
the property prior to and during the sale of the property. Much was
made by the first respondent that Rubigenix and RZT Zelpy
have been
receiving and paying the municipal services such as water and
electricity for the property. The applicant does not dispute
this but
contends that in any event the risk associated therewith lies at the
applicant's doorstep and they are not indemnified
therefrom.
[13]
Mention is also made by the first respondent in her papers before
this court that the sale of the property to the applicant
by Ms Smit
was "subject to Corwil Investments Holding (Pty) Ltd purchasing
all the shares in the applicant..." Corwil
is managed by the
first respondent in her capacity as chief executive officer. The
contention is that the first respondent would
not be liable to pay
rental as Corwil would ultimately become the owner of the property
through the purchase of the shares in the
applicant.
[14]
I am in agreement with Adv Riley when she states that the sale of the
property is indicative that simulation has not taken
place and that's
where my agreement ends. However, I see the lease agreement as
formulated in this case to have been constructed
as such to entrench
a right to occupy that can only exist side by side with the lease
agreement. I say so because if indeed the
first respondent always had
this right to occupy, from the time she sold the property to Ms Smit,
then this would have been incorporated
in the lease agreement as a
special condition as the signatory to the lease as lessor and lessee
was the same Ms Smit who confirms
that the first respondent had the
right to occupy the property.
[15]
I am guided by the dictum in
Roshcon
(Pty) Ltd
v Anchor
Auto
Body
Builders
CC
2014
(4) SA 319
at 334
F-G:
"The
position remains that the court examines the transaction as a whole
including all surrounding circumstances, any unusual
features of the
transaction and the manner in which the parties intend to implement
it, before determining in any particular case
whether a transaction
is simulated."
[16]
Similarly in this case on an examination of all the surrounding
circumstances mentioned above it is clear that the introduction
of
the lease agreement as regards the property was a way to secure a
right of occupation for the first respondent as pre-existing
lease
agreements are catered for in the purchase and sale agreement at
clause 20. The applicant would then be bound to enforce
the lease
agreement. As stated above, if this lease agreement was indeed such a
valid lease agreement, then an undertaking for
the first respondent
to occupy the property would have, in my view, been expressed in the
lease agreement.
[17]
Thus it is my conclusion that the lease agreement is merely a
simulated agreement to try and create a right for the first
respondent to remain in occupation of the property.
[18]
Turning to section 26 of the Constitution, the first
respondent is the only person in occupation
of the
property, she has indicated her intention to purchase the
property thus she is financially
secure to obtain alternative
accommodation and will not be prejudiced by the eviction order.
[19]
The costs in this matter are to follow the result and from the
provision in the purchase and sale agreement no specific scale
is
mentioned. In the circumstances the scale of costs allowed would be
on a party and party scale.
[20]
Consequently the following order is granted:
[20.1]
That the first and second respondents and all other occupants, if
any, who occupy the premises described as Erf 249 Nelsville
Township,
Registration Division J.U, Province of Mpumalanga better known as
[....] F. S., Nelsville, Nelspruit ("the property")
by
virtue of the first and/or second respondents occupation be evicted
from the property within 30 days from the date of this order.
[20.2]
In the event of the first and/or second respondent and all those who
occupy the property, under and by virtue of the first
and/or second
respondents occupation, fail or refuse to vacate the property on the
date so ordered by this Honourable Court
as contemplated in 20.1
above, that the Sheriff or his deputy be authorised to enter upon the
property to evict the first and/or
second respondents and all those
who occupy the premises under or by virtue of their occupancy.
[20.3]
That the first respondent pay the costs of this application on a
party and party scale.
______________________________
W.
Hughes
Judge
of the
High Court
Appearances:
For
the Applicant:
Adv B Van der Merwe
Instructed
by:
Shickerling, Bowen and Hesselink Inc
For
the 1
st
Respondent: Adv M Riley
Instructed
by:
Pule
Incorporated Attorneys