About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1094
|
|
Jhinabhai v Jhinabhai and Another (75807/2013) [2016] ZAGPPHC 1094 (3 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
3/11/2016
CASE
NUMBER: 75807/2013
In
the application of:
JAYANTA
KESAW
JHINABHAI
APPLICANT
and
CHOONILAL
JOGIBHAI JHINABHAI
FIRST RESPONDENT
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
[1]
The Applicant applies for the eviction of the First Respondent and
anyone else occupying the property known as Erf [....] situated
in
the Township Laudium Extension 3, Registration Division J.R. Gauteng,
also known as [....] L. S., Ladium (and hereinafter referred
to as
"the property") within 30 days from service of the court
order alternatively within such a period of time as this
Court deems
just and equitable from the property and for ancillary relief. The
application is dated the 15th January 2014. There
is compliance with
the requirements of Section 4(2) of The Prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act 19 of 1998
(hereinfurther referred to as "PIE") in terms of a separate
Notice of Motion dated the 15th January 2014.
The application (that
is both Notices of Motion and founding papers) were issued on the
15th January 2014. The application was
served on the First Respondent
personally on the 24th February 2014. An order for directions
regarding service of the application
in terms of Section 4(4) of PIE
was made on the 18th March 2014 as is evidenced by the order granted
by Hughes, J at page 70 to
72 of the paginated papers.
[2]
The First Respondent's opposing affidavit was delivered on the 1st
April 2014 and the Applicant's affidavit on the 3rd
June
2014. The matter was enrolled for hearing during
the week of 4 May 2015.
[3]
Before dealing with the facts of the matter I need to refer to the
fact that I took time to deliver this judgment. I reserved
judgment
after hearing argument in order to consider what my judgment and
order must be. The matter arises
from what I regard as
a distressful set
of
circumstances where the Applicant and the First Respondent, who had
been married to each other, divorced and then for
many years
on some, now disputed, basis both utilised the property. Due to
other commitments I unduly delayed in producing
this judgment. I
profoundly and sincerely apologise to the parties for this delay.
[4]
The Applicant and the First Respondent were married to each other in
community of property on the 5th July 1971. A final divorce
order,
dissolving the marriage of the Applicant and the First Respondent,
was issued on the 3rd November 1982. This much
is common
cause. There is a dispute on the papers as to the reasons for
the divorce and the precise nature of
the relationship between the
parties since the divorce. It is however common
cause that the Applicant married
Mr
lshwar
Bhaga on the 7
th
April 2013.
It is further evident that the
relationship between the Applicant and
the First Respondent has
deteriorated to the extent that one may describe it as acrimonious
now.
[5]
It is common cause that after their divorce (despite a submission to
the contrary in the Heads of Argument of the Applicant)
the property
was transferred into the name of the Applicant ostensibly for payment
of the amount of R80 000.00.
There is
a dispute as to whether the R80 000.00 was
paid by the Applicant. However, the ownership
of the Applicant of the
property since the 3rd November 1989 is not disputed and in any
event cannot be
disputed as the Applicant
produced the deed of transfer T74342/1989 evidencing ownership
and stating that
the First Respondent transferred
ownership thereof for the purchase price of R80 000.00 in terms
of a sale dated the 23rd
May 1989.
[6]
It is common cause that the Applicant and the
First Respondent resided together at the property
despite
their divorce of the 3rd November 1982. It is in dispute whether they
lived together as husband and wife after their
divorce. The
Applicant admits that there was a time when they attempted to restore
their relationship. She denies the
allegation that they
lived together as husband and wife. According to the Applicant the
First Respondent was allowed to
live with her
whilst he seeks employment and alternative accommodation
on an as soon as possible basis. This
is disputed by the First
Respondent. There is a dispute as to who precisely of the Applicant
and the First Respondent paid for
the upkeep and the water and
electricity usage of the property. It is common cause that the First
Respondent and his niece were
in India during a period in 2012 but
there is a dispute on the question since when the First Respondent,
after his return
from India in June 2012 moved into
the home on the property again. On the First Respondent's
own admission
he resides on the property together with his
niece from the 14
th
June 2013. The nature of
the relationship between the First Respondent and his niece is a
further disputed issue.
[7]
The First Respondent was at the time of his opposing affidavit,
namely the 31st March 2014, 70 years old and thus at this time
72
years of age. He says that he familiarised himself with his
surroundings and that the home on the property has been his home
for
many years. He states that it would be unjust to force him to leave
the place at his age and in his state of health. However,
no specific
ailments or health problems are mentioned.
[8]
He says that he made arrangements to settle in his
"current home" being the home on the property
and
live a comfortable and peaceful life. He denies having received
payment of R80 000.00 from the Applicant entitling the Applicant
to
be the sole owner of the property.
[9]
He states that it would be unjust to move him from the
home on the property in circumstances where it appears that
the
Applicant wishes to sell the property and to relocate to India
together with her husband.
[10]
The Applicant made the allegation that the First Respondent is the
co owner of an immovable property with his sister.
The First
Respondent denies this allegation. The Applicant attached a
"Searchworks" record of the Deeds Office
information
indicating that the Applicant is a co owner, together with one
Gheenah Maneebhan of an immovable property in Laudium.
The
Searchworks document is no official deed of transfer and in the
circumstances of the matter I am not in a position to accept
the
veracity of the said document. There are a number of
further allegations and counter allegations on the relationship
of the First Respondent with his niece, on
whether there was theft of R12
000.00
of the Applicant's money, on whether the First Respondent and his
niece are maintaining the property or make contributions
to the
upkeep thereof.
[11]
It is common cause that the Applicant intends to sell the property
and she informed the Court in the founding affidavit that
she would
be moving to India at the end of September 2013. It is furthermore
common cause that after the Applicant had informed
the First
Respondent of her intention to bring an application for the eviction
of the First Respondent from the property, the First
Respondent
issued summons in this Court against the Applicant. The combined
summons and particulars of claim are attached
to the
founding affidavit. The case number thereof is
33834/2013 and the summons was issued on the
30
th
May 2013. The particulars of claim sets forth a purported claim
(the validity and cogency whereupon I do not make any pronouncement).
According to the particulars of claim the divorce proceedings between
the parties were purely for convenience and financial expediency
and
after the divorce they continued to live together as husband and
wife. On this basis the First Respondent then claims in the
particulars of claim that the Applicant shall be unduly benefitted
if she is allowed to sell the
house and not to divide the proceeds
thereof between herself and the First Respondent. In addition
the First Respondent also alleges in the particulars of claim
that he shall be prejudiced should the estate which was not
dissolved
in 1982 (at the time of the divorce) and to which he contributed to
is not divided on the basis of a marriage in community
of property.
[12]
All these allegations are disputed by the Applicant in her plea,
which is also an attachment to the particulars of claim.
[13]
The argument on behalf of the Applicant is that the Applicant is
indeed the owner of the property as is evidenced by her deed
of
transfer. It is submitted that the First Respondent is not entitled
to claim 50% of the Applicant's estate and that he is not
entitled to
reside in the home on the property and that there is no reason to
suspend his eviction from the property. It was submitted
that the
First Respondent has no right to remain in occupation of the property
even if he did make improvements to it and the pertinent
point was
made that the First Respondent did not set forth the nature of such
improvements.
[14]
Submissions were made in support of the fact that the application
must be granted and in support of the eviction order.
[15]
The First Respondent's argued that the First
Respondent is a pensioner, aged 71 (as stated
now
already 72 years of age), that there are numerous factual disputes
and that the First Respondent contends that he is not in
unlawful
occupation of the property despite the fact that the property was
transferred into the name of the Applicant. The submission
is then
made that in view of the numerous factual disputes oral evidence will
be necessary as regards the question whether the
First Respondent
could be evicted in terms of the provisions of PIE.
Alternatively it is submitted that the action as instituted
by the
First Respondent must first be determined as the factual disputes can
be ventilated in that action. The submission is made
that the
Applicant continued by way of motion proceedings despite knowing of
the factual disputes. A submission is made that the
First Respondent,
on his version, invested money in the property over the years and
that he would have a lien over the property.
[16]
With regard to the requirements under PIE, submissions are made on
behalf of the First Respondent that the First Respondent
has
over years settled himself on the property together with the
Applicant and that the First Respondent now faces
an eviction from
the property whilst the Applicant only intends to sell
the property and to move to India with
her new husband, factors that,
according to the submissions, cannot tip the scale in favour of it
being just and equitable to evict
the First Respondent.
[17]
The Second Respondent did not take part in the proceedings.
[18]
The matter can be finalised on the common cause facts as
well as those facts that cannot be disputed.
On the common
cause facts the Applicant clearly is the sole owner of the property.
The fact that the First Respondent occupies
the property is also a
common cause fact. Purely on these facts the Applicant is entitled,
on common law grounds, to the eviction
order.
See:
Graham v Ridley
1931 TPD 476
;
Krugersdorp
Town Council v Fortuin
1965 (2) SA 335
(T);
Chetty
v Naidoo
1974
(3)
SA 13
(A);
Singh
v
Santam
Insurance
Compan
y Limited
1997
(1) SA
291 (SCA).
[19]
I have not lost sight of the requirements of PIE and will deal with
same later on.
[20]
The dispute regarding payment of the R80 000.00 is irrelevant for
purposes of the question of ownership. The title deed proves
ownership conclusively and any dispute as regards payment of
the R80 000.00 could only possibly be relevant for purposes
of
the requirements of PIE that I will deal with herein later.
[21]
In any event, not even in the First Respondent's combined summons is
there any claim for payment of the R80 000.00 that allegedly
remains
unpaid. Any claim for the R80 000.00
as purchase price for the
property,
prima
facie
prescribed.
[22]
As regards the purported lien the First Respondent himself nowhere
alleges that he has a lien over the property, nor does he
in any
fashion explain the nature of the improvements that he might have
effected to the property. No exposition is given indicating
whether
any such improvements were necessary or useful or luxurious
improvements. The value of any such improvements
and the
increase in value of the property as a result thereof are nowhere
explained. In the circumstances I cannot find that
such a lien
exists and, as was found in
Rhoode
v
De
Kock
2013
(3)
SA
123
(SCA)
at
par
17,
it would be to allow an abuse of the process of court to find the
existence of a lien on the contents of the opposing affidavit of
the
First Respondent. In any event further the fact that the First
Respondent utilises the property to reside upon, is wholly contrary
to the obligations of a retentor who is entitled to only hold the
item over which he/she/it has a lien as security and who may
not make
use thereof. See:
Rekdurum (Pty)
Ltd
v Weider
Gym
Athlone
(Pty)
Ltd
1997 (1)
SA
646
(CPD) at 6540 -
E.
[23]
Accordingly, apart from considerations arising from
PIE, the Applicant is entitled to evict the First
Respondent from the
property. The litigation under the First Respondent's combined
summons does not require that the Applicant
remains the owner of the
property nor does it require that the First Respondent be in
possession thereof. In fact the very
litigation in terms of the
First Respondent's combined summons envisages that the purported
joint estate be divided in equal halves
in favour of each of the
Applicant and the First Respondent. That inevitably will result in a
sale of the whole or at least one
undivided half of the property or a
payment of some nature by one or the other of the Applicant or the
First Respondent or a liquidation
of the purported joint estate.
[24]
Accordingly, subject to the considerations under PIE, the Applicant
is entitled to evict the First Respondent.
[25]
In terms of Section 4(7) of PIE an eviction order may only be granted
if it is just and equitable to do so. The eviction order
can only
follow after the Court has had regard to all the relevant
circumstances, including the availability of land for the relocation
of occupiers and the rights and needs of the elderly, children,
disabled persons and households headed by woman. If
the
requirements of Section 4 are satisfied and no valid defence to the
eviction order has been raised, the Court must, in terms
of Section
4(8), grant an eviction order. When granting such an order the Court
must in terms of Section 4(8)(a) determine a just
and equitable date
on which the unlawful occupier or occupiers must vacate the premises.
The Court is empowered in term of Section
4(12) to attach reasonable
conditions to an eviction order. See:
Prinsloo
NO
and
Others
v
City
of Johannesburg
v
Changing
Tides 74
(Pty) Ltd and
Others
2012 (6) SA
294
(SCA) at par 11.
[26]
The first inquiry that must be undertaken under Section 4(7) is that
it must be determined whether it is just and equitable
to order
eviction having considered all relevant circumstances. The issue of
no valid defence to an eviction order refers to a
defence that would
entitle the occupier to remain in occupation as against the owner of
the property. The order must be just and
equitable to all the
parties. Once the conclusion is reached that the eviction will be
just and equitable, the conditions that
should attach to the eviction
order and the date thereof must be considered. See:
par
12 of
The Changing
Tide
s-judgment.
[27]
The question of onus of proof must not be over-emphasised but
if there is doubt on the issue whether it would
be just and equitable
to order an eviction, the Court must refuse an order. See:
Changing
Tides
par 29.
[28]
The Applicant is a private person and has no constitutional
obligation to provide housing. In this regard the following is
said
in paragraph 18 of
Changing
Tides:
"The
Constitutional Court has said that private entities are not obliged
to provide free housing for other members of the community
indefinitely, but their rights of occupation may be
restricted, and they
can
be
expected
to
submit
to some
delay
in
exercising,
or
some
suspension of, their
right to
possession
of their
property
in order to
accommodate the
immediate
needs
of
the
occupiers.
That
approach
makes
it difficult
to see
on
what basis
the availability
of
alternative
land or accommodation
bears
on the question whether an
eviction order
should be granted, as opposed to the
date of eviction and the conditions attaching to such an order. One
can readily appreciate
that the date of the eviction may be
more immediate if alternative accommodation is available, either
because the circumstances
of the occupiers are such that they can
arrange such accommodation themselves, or because the local authority
has in place appropriate
emergency or alternative accommodation.
Conversely, justice and equity may require the date of
implementation of an
eviction order to be delayed if alternative
accommodation is not immediately available."
[29]
In paragraph 19 of
Changing
Tides
it was found that where the owner of property seeks the
eviction of unlawful occupiers, whether from land or the buildings
situated
on the land, and demonstrates a need for possession and that
there is no valid defence to that claim, it will be just and
equitable
to grant an eviction order. In this regard the
availability of alternative land or accommodation is of greater
importance
in the second inquiry, namely what is a just and equitable
date for eviction.
[30]
The First Respondent opposes an eviction
order on grounds thereof that:
30.1
He is 70 years old;
30.2
He is familiar with his surroundings and the property has been his
home for many years;
30.3
He cannot obtain alternative accommodation due to his age and health.
He has made arrangements
to settle in the property and to live a
comfortable and peaceful life;
30.4
The Applicant has no emotional ties to the property, wishes to sell
same and is either in the
process of relocating or intends to
relocate to India.
30.5
He refuses to look for alternative housing.
[31]
The Applicant is a private person and is not obliged to provide
housing on a long term basis to any other person and
that includes
the First Respondent. Furthermore the First Respondent's own
particulars of claim in the action
that he instituted
envisages a division of the purported joint estate. Such division
would include the property. Accordingly on
the implications of the
First Respondent's own particulars of claim there must be an
end to the purported joint estate and
an end to the purported joint
ownership of the property. Secondly there is the unproved allegations
that the First Respondent is
the co owner of other land in
Laudium. I return to this issue in due course.
[32]
I find on the facts that this is a case where
the Applicant indeed is entitled to
an eviction
order.
[33]
The question of what is a just and equitable date for eviction
arises. In this regard the disputed existence of the immovable
property purportedly held by the First Respondent and his sister is
of some relevance. A further aspect of relevance is the fact
that, on
the First Respondent's version, he has a connection and a residency
of some sort at the property for many many years.
[34]
According to the submissions on behalf of the First
Respondent the period of the First Respondent's involvement
with the property is 33 years (1982 to 2015). The further submissions
were that the issues of the intentions of the parties must
be
referred to trial for oral evidence. This is not necessary. As
explained earlier, on the First Respondent's own combined summons
and
particulars of claim it is envisaged that there will be a break with
the property for either one of the Applicant or the First
Respondent
or both of them. That is the clear implication of the form of
litigation that was instituted by the First Respondent.
In
those circumstances it cannot be said that the Applicant is not
entitled to, as owner, to evict the First Respondent from
the
property. On his own version, the effect of the relief prayed for in
the combined summons and particulars of claim would be
that the First
Respondent (should he attain the property) will have to buy the
undivided half of the Applicant. (Any
such relief
is naturally dependant upon the question whether the Applicant
will be successful with the claim as formulated
in his
particulars of claim).
[35]
The parties have been involved in protracted litigation, not only in
these proceedings, but also in terms of the separate action
that the
First Respondent instituted and in terms of a protection order that
the Applicant obtained against the First Respondent.
Accordingly the
First Respondent must be aware of the real prospect of eviction at
least since the legal proceedings commenced.
In the circumstances a
reasonable period for the First Respondent to vacate the premises
would be a period of 6 (six) months
except if it is indeed so that he
is the co-owner of the immovable property allegedly registered in
both his and his sister's names.
In those circumstances I am of the
view that a reasonable period for the First Respondent to vacate the
premises would be
a period of 3 (three) months from date of
granting of this order.
[36]
The property allegedly held in ownership by the First
Respondent and his sister, according to the document annexed
at pages
103 to 104 (Annexure "JAA5") to the Applicant's replying
affidavit is Erf [....] , Ladium, Pretoria that is
held under title
deed T49495/1986. I intend to make an appropriate order for the
filing of an affidavit together with a copy of
the title deed of that
property, duly and properly certified for legal purposes, for
purposes of issuing of a warrant of execution.
If it
appears that the Applicant's version in this regard was
incorrect, then the time for eviction is
6 (six) months after
granting of this order.
[37]
It also follows, insofar as it might still be necessary to expressly
make a finding in that regard, that I find that there
is no valid
defence to the Applicant's claim for eviction of the First
Respondent.
[38]
In the circumstances I make the following order:
1.
The First Respondent and
anyone else occupying the property through
him must vacate the property situated at Erf [....] situated in the
Township Laudium
Extension 3, Registration Division J.R., Gauteng,
also known as [....] L. S., Laudium (hereafter referred to as "the
property")
not later than 6 (six) months from date of service of
this order by the Sheriff of the Court on the First Respondent,
subject
to the contents of prayer 2 hereunder.
2.
The period of 6 (six) months
provided for in prayer 1 above will be
reduced to a period of 3 (three) months after service of this order
by the Sheriff of the
Court on the First Respondent if the Applicant
files an affidavit of the Applicant or her attorney of record
to which is
attached a copy of the title deed of the property known
as Erf [....] , Laudium, Registration Division J.R., Gauteng that
proves
that the First Respondent is either together with any other
person or alone the owner of the said Erf [....] , Laudium. The
period of 3 (three) months is to be calculated as from date of
service of this order together with the said affidavit and attachment
on the First Respondent. The copy of the said title deed must be
certified by the Registrar of Deeds for use for legal purposes.
3.
Should the First Respondent
as well as anyone else occupy the
property through him not vacate the property as provided for in
prayers 1 and 2 above, the Sheriff
is authorised to request any
person, including members of the South African Police Service, to
assist him in the eviction and/or
removal of the First Respondent and
all those occupying the property through him together with their
possessions (if any) from
the property, provided that the
Sheriff must at all times be present during such eviction and/or
removal.
4.
The First Respondent is
ordered to pay the costs of the application.
_______________________
AJ
LOUW AJ