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[2016] ZAGPPHC 918
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Highpoint Hotels (Pty) Ltd v May and Others (94285/2015) [2016] ZAGPPHC 918 (25 October 2016)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:
25/10/2016
CASE
NO:
94285/2015
Reportable:
No
Of
interest to other judges: No
Revised.
HIGHPOINT
HOTELS (PTY)
LTD
Applicant
(Registration
number: 1969/017054/07)
and
BARCY
MLUNGISI
MAY
First
Respondent
(Identity
number: …)
DELPHINE
NYAMEKA
MAY
Second
Respondent
(Identity
number: …)
ALL
OCCUPIERS OF ERF […],
YEOVILLE
Third
Respondent
CITY
OF JOHANNESBURG, GAUTENG
CITY
OF JOHANNESBURG
METROPOLITAN
Fourth
Respondent
MUNICIPALITY
JUDGMENT
AC
BASSON, J
[1]
The
applicant (Highpoint Hotels (Pty) Ltd) seeks an order for the
eviction of the first and second respondents (Mr and Mrs May)
and/or
anyone else that may be claiming the right to occupation through them
of the property known as Erf […], Yeoville,
Johannesburg (“the
property”). I will refer to the first and second respondents
jointly as “the respondents”.
[2]
It is
common cause that on 10 September 2013 the applicant and the
respondents have entered into a written offer to purchase. The
property was registered in the applicant’s name on 15 July
2015.
[3]
Notwithstanding
the transfer of the property, the respondents are still in occupation
of the property and have refused to vacate
the property. It is not in
dispute that the applicant has never granted the respondents any
permission to occupy the property.
[4]
A letter of
demand informing the respondents of their illegal occupation was
served on them on 12 August 2015. The applicant also
demanded that
the respondents vacate failing which the applicant will commence
eviction proceedings. In this letter the respondents
are informed of
the applicant’s intention to demolish the premises for further
development.
[5]
On 27
October 2015 the attorneys acting on behalf of the respondents
confirmed in writing that the respondents have no intention
to vacate
the property.
[6]
On 9
February 2016 the applicants obtained an order in this court in terms
of which it was authorised to serve a section 4(2) notice
in terms of
the PIE Act marked Annexure “X” on the various
respondents. The said section 4(2) notice was personally
served on
all the respondents on 3 December 2015.
[7]
The
applicant has therefore complied with the procedural requirements as
set out in the PIE Act.
[8]
The
applicant is approaching this court on the basis of its ownership of
the property and the fact that the respondents are in unlawful
occupation of the property. The applicant further approaches this
court pursuant to compliance with the procedural requirements
set out
in the PIE Act.
[9]
The
respondents do not dispute that the applicant is the registered owner
of the property. What is in dispute is the transfer of
ownership from
the respondents to the applicant.
[10]
The
respondents state that they have instituted proceedings in the High
Court in the South Gauteng High Court claiming that the
property be
transferred back to the respondents. They are also now asking this
court to stay the eviction proceedings pending the
outcome of the
High Court proceedings. The respondents also allege that the
applicant has failed to comply with the requirements
as set out in
section 4(7) of the PIE Act. I will return to this issue hereinbelow.
[11]
The first
point to be considered is whether the Prevention of Illegal Eviction
for and Unlawful Occupation of Land Act
[1]
(“the PIE Act”) is applicable in circumstances where the
respondents have before the transfer of ownership consequent
to a
sale of the property been in lawful occupation. After the transfer
they have become in unlawful occupation when they refused
to vacate
the property. The Supreme Court of Appeals
in
Ndlovu v Ngcobo; Bekker and another v Jika
[2]
clarified the legal
position and held that the PIE Act is applicable to persons who at
one stage had lawful possession but subsequently
became unlawful. The
court in
Ndlovu
further
made it clear that an owner is entitled, provided that the procedural
requirements have been met, to approach the court
on the basis of
ownership and on the basis that the respondent are in unlawful
occupation. Unless the (unlawful) occupier is able
to disclose some
circumstances relevant to the eviction, the owner is in principle
entitled to an order for the eviction of the
unlawful occupiers:
“
[19]
Another material consideration is that of the evidential
onus
.
Provided the procedural requirements have been met, the owner is
entitled to approach the court on the basis of ownership and
the
respondent's unlawful occupation. Unless the occupier opposes and
discloses circumstances relevant to the eviction order, the
owner, in
principle, will be entitled to an order for eviction. Relevant
circumstances are nearly without fail facts within the
exclusive
knowledge of the occupier and it cannot be expected of an owner to
negative in advance facts not known to him and not
in issue between
the parties. Whether the ultimate
onus
will be on the owner or the occupier we need not now decide.”
[12]
The
question to be considered by this Court is whether the court should
grant eviction.
[13]
The Act
distinguishes between unlawful occupiers who had occupied land for
less than 6 months (section 4(6)) and those who have
occupied land
for more than 6 months (section 4(9)).
[14]
This
discretion should be exercised taking into account the factors
contained in section 4(6) – (8) of the PIE Act.
[15]
In this
matter the property was registered in the name of the applicant on 15
July 2015. The applicant instituted proceedings in
terms of the PIE
Act on 24 November 2015. At the time the respondents have been in
unlawful occupation for less than six months.
In these circumstances
a court is therefore enjoined to consider the following:
“
4
Eviction of unlawful occupiers
(6) If an unlawful
occupier has occupied the land in question for less than six months
at the time when the proceedings are initiated,
a 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 the rights and needs of the elderly, children, disabled
persons and households headed by women.”
[16]
Save for
the fact that the respondents have referred a dispute regarding the
transfer of ownership to the South Gauteng High Court,
the
respondents have not placed any factors (except for their respective
ages), as envisaged by section 4(6) of the PIE Act, before
this court
which could persuade this court that it should not grant the eviction
order.
[17]
Although I
am mindful of the fact that this court is not seized with the merits
of the matter before the South Gauteng High Court
regarding the
dispute, I had nonetheless regard to what has been placed before that
court in considering whether this court should
grant an eviction
order. I am not persuaded that sufficient grounds exist upon which
this court should grant an order staying the
eviction order pending
outcome of the High Court proceedings.
[18]
I have
already referred to some of the common cause facts before the South
Gauteng High Court: The respondents concede that an offer
to purchase
was entered into on 10 September 2013 between the respective parties.
The respondents also concede that they had appointed
George Wolfe
Attorneys to attend to the transfer of the property. The respondents
also do not deny that they have signed the deed
of transfer, the
merely claim that they cannot remember having signed the documents.
This allegation is, however, disputed by the
applicant and George
Wolfe Attorneys. The respondents also do not deny that the applicant
had paid the purchase price. According
to them at one stage they had
informed their attorney that they no longer wanted to sell the
property and instructed him to cancel
the property. This allegation
however does not take the matter any further for the respondents: The
parties have entered into a
valid sale agreement, the respondents
have signed the transfer documents and they have received the benefit
of the purchase price.
The contract is therefore
perfecta
and could therefore not have been cancelled in the absence of a
material breach of the contract entitling the respondents to cancel.
[19]
Again,
although I am mindful of the fact that this court is not seized with
the merits of the dispute pending before the South Gauteng
High
Court, it does appear from a cursory consideration of the merits of
that case that the respondents’ prospects of success
in
succeeding with their claim is at best for them tenuous. I am
therefore not persuaded that the eviction order should be stayed
pending the outcome of those proceedings.
[20]
I have also
considered whether there are any other relevant factors as envisaged
in the PIE Act that should be taken into account.
The only
factor placed before the court is the fact that the respondents are
59 and 57 years old respectively and can therefore
not be considered
as elderly.
[21]
I can
therefore find no reason not to grant the order for the eviction of
the respondents.
[22]
In the
event the following order is made:
1.
The first
and second respondents and all persons occupying through the first
respondent are evicted from the property situated at
Erf […],
Yeoville, Johannesburg (… P. Street, Yeoville) within 14 days
from service of this order failing which the
Sheriff for the area
within which the property is situated is authorized to evict the
first and second respondents and all persons
occupying through them
from the property.
2.
The first
and second respondents are ordered to pay the costs of this
application jointly and severally, the one paying the other
to be
absolved.
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant :
Adv K Fitzroy
Instructed
by
:
Lacante Henn
Incorporated
For
the respondents:
Adv B Metu
Instructed
by
:
Savage
Jooste & Adams Inc.
[1]
Act 19 of 1998.
[2]
2003 (1) SA 113
(SCA).