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[2015] ZAGPPHC 64
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Randfontein Local Municipality v Selepe and Others (26342/2014) [2015] ZAGPPHC 64 (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DEVISION, PRETORIA)
CASE NUMBER:
26342/2014
DATE: 6 FEBRUARY
2015
In the matter
between;
RANDFONTEIN
LOCAL
MUNICIPALITY
......................................................................
APPLICANT
and
MARTINUS MOCHEUDI
SELEPE
............................................................................
1
st
RESPONDENT
JESUS CHRIST
FAMILY FELLOWSHIP
CENTRE
..............................................
2
nd
RESPONDENT
VOICE OF JESUS
CHRIST INSTITUTE FOR
SUPERNATURAL
MINISTRY
..................................................................................
3
rd
RESPONDENT
JUDGMENT
MOSEAMO AJ
[1] This is an
application for eviction of the first, second and third respondent.
Before this matter was dealt with, the respondents
brought a
substantive application for postponement of the application. However,
the application for postponement was dismissed
with costs because of
a defective resolution, the person purporting to act on behalf of the
respondents was not authorised to do
so.
[2] At the beginning
of the main application, counsel for the respondents indicated that
the resolution filed in support of the
supplementary affidavit and
the resolution filed in support of respondents’ opposing
affidavit were defective.
[3] Counsel
therefore conceded that on the basis of the ruling already made with
regard to the defective resolution in the application
for
postponement, she will not make any submissions as they would not
take the matter any further.
[4] The applicant is
a holder of a long term lease in respect of a notarial lease
registered over the property known as the remaining
Extent of Portion
99 of the farm Randfontein, 247, Registration Division IQ, also known
as Maugham Road, Randfontein Gauteng ("the
Community Hall”).
The first respondent leased the Community Hall from the applicant for
a period of seven days for purposes
of a church conference. After the
expiry of the seven days the respondents continued to occupy the
Community Hall and were still
occupying it as at the date of the
application. The respondents continued to occupy the community hall
despite the letter from
applicant advising them to vacate. The
applicant is applying for the eviction of first, second, and third
respondents from the
Community Hall.
[5] Notice of
intention to oppose was filed on behalf of the first, second and
third respondents. On the 16
th
May 2014 respondents filed
an answering affidavit signed by the first respondent.
[6] For the sake of
completeness I wish to address the issue of the defective
resolution(s) attached to the opposing affidavit.
[7]
First Respondent states in his opposing affidavit that he is duly
authorised to depose to the affidavit “on behalf of
the
first
Respondent
(
sic)"
by
virtue of a resolution attached to the opposing affidavit marked
"JCFFC 1”.
[8] There are four
documents marked “JCFFC1”. The document marked “JCFFC
1” on page 122 is a document with
the following heading “board
resolution of Jesus Christ Family Fellowship Centre amending the
signing at the bank”.
The documents marked “JCFFCr on
page 123, 124 and 125 relate to the bank signing policy of the second
respondent. The documents
therefore have nothing to do with this
application,
[9] In Mall (Cape)
(Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) 347 (C) it was pointed
out that the case of an artificial person
differs from that of a
natural person since an artificial person can function only through
its agents, and can take decisions only
by passing of resolutions in
the manner prescribed by its constitution. It was further said that
it cannot be assumed from the
mere fact that proceedings have been
brought in its name that those proceedings have in fact been
authorised by the artificial
person concerned. It was further stated
that in such cases some evidence should be placed before court to
show that the applicant
has resolved to institute the proceedings and
that the proceedings are instituted at its instance.
[10] In Yiba v
African Gospel Church
1999 (2) SA 949
(C) at 957 H, it was also held
that ‘where an association institutes motion proceedings, it
must appear that the person who
makes the application on behaif of
that association is duly authorised by it to do so’
[11] It is clear
that the documents attached to the opposing affidavit as "JCFFd"
do not provide first respondent with
the authority to act on behalf
of second and third respondents. There was therefore no resolution
authorising the first respondent
to act on behalf of the second and
third respondents,
[12] The application
is opposed on the following basis: (a) the first respondent does not,
in his personal capacity “hold
occupation over the Community
Hal! in any form . . (b) the second respondent remains in occupation
of the Community Hall because
of an oral lease agreement entered into
on behaif of the second respondent by the first respondent (c) the
third Respondent is
an outreach programme and is not operating from
the Community Hall.
[13] As a result of
failure to show that the first respondent is authorised to oppose the
application on behalf of the second and
third respondents, I will
only consider the first ground which relates to the first Respondent.
[14] I now turn to
consider whether the first respondent is in continued occupation of
the Community Hail.
[15] Counsel for the
applicant submitted that, by virtue of the fact that first respondent
signed the lease agreement in his personal
capacity, he is a pastor
of the second respondent and a member of the second respondent, it
therefore means that he is an unlawful
occupier of the Community
Hall. It was further submitted that he is in control of the second
and third respondent and they have
occupation through him.
[16] It was
submitted on behalf of the first respondent that he, the first
respondent, cannot be said to be responsible in his personal
capacity
as he stated in his opposing affidavit that he was acting on behalf
of the second respondent. It was contended that the
purpose for
leasing the Community Hall was for a church conference. It was
further contended that the first respondent, is not
in occupation of
the Community Hall, that it is the second and third respondents who
remain in continued occupation of the Community
Hall.
[17] It is common
cause that (a) the first respondent leased the Community Hall in his
personal capacity for purposes of a church
conference', (b) the first
respondent is a pastor of the second respondent; (c) the Community
Hall is currently being used for
purposes of the second respondent’s
church services; (d) the second and third respondents are in
continued occupation of
the Community Hall.
[18] The submission
that the first respondent leased the community Hall for purposes of
the second respondent's conference and can
therefore not be said to
be personally in occupation of the Community Hall is without merit as
it does not address the fact that
he signed the lease his personal
capacity.
[19] In my view,
first respondent as the pastor of the second respondent, he is
responsible for the church services that continue
to be held at the
Community Hall despite the fact that his right to occupy (as the
lesee) has been legally terminated. Second and
third respondent
occupy the Community Hall through the first respondent who secured
occupation through the initial seven day lease
of the Community Hall,
I am therefore satisfied that the first respondent is in continued
occupation of the Community Hall in his
personal capacity.
[20] I now turn to
consider whether the applicant has made out a case for the eviction
of the respondents.
[21] In order to
succeed with an application for eviction the applicant must allege
and prove the following: (a) the right of the
respondent to possess
e.g. lease agreement between the applicant and respondent; (b) a
valid termination of the right to possess;
(c) the continued
occupation by the respondent or someone holding on behalf of or
through the respondent; (d) damages suffered
as a result of the
holding over; (e) where the cause of eviction is not related to a
cancelled contract then reliance must be placed
on an applicant’s
superior right. See Amler’s Precedent of Pleadings, by LTC
Harms at 98.
[22]
In this case, there was a right to possess granted through a lease
agreement entered in to by the first respondent, there was
a valid
termination in the form of a letter from the applicant to the
respondents terminating their right to possess and the respondents
remain in continued occupation of the
Community
Hall,
it is also stated that the applicant suffered damages
in
the
sum of R1 254 795 (One Million Two Hundred and Fifty Four Thousand
Seven Hundred and Ninety Five Rands) as a result of the respondents'
continued occupation.
[23] I am therefore
satisfied that the applicant proved that the first, second and third
respondents are in unlawful occupation
of the Community Hall and
therefore the application for eviction stands to be granted.
Costs
[24] Applicant’s
counsel argued for costs on an attorney and client scale against the
respondents on the basis that the respondents
refused to vacate the
Community Hall despite the fact that applicant had written a letter
advising them to vacate. I however, do
not find the letter to be
sufficient reason for me to order the respondents to pay costs on an
attorney and client scale.
In the result, I
make the following order:
(1) Application
against the respondents is granted;
(2) First, second
and third respondents and all other persons holding through them are
evicted from the Community Hall;
(3) First, second
and third respondents shall vacate the Community Hall on or before
the 20
th
February 2015, failing which the Sheriff is
authorised to evict the first, second and third respondents and all
persons holding
through them;
(4) First, second
and third respondents to pay the costs on a party and party scale.
P.D MOSEAMO
ACTING JUDGE OF THE
HIGH COURT
On behalf of the
Applicants: Naidoo and Associates Inc.
446 Zita Street
Garsfontein
Pretoria
Adv.K. Fitzroy
On behalf of the
Respondents: Thulo Attorneys
C/O Leso Inc.
291 Pretorius Str
& Paul Kruger
Van Erkom Building,
5
th
Floor
Office 524
Pretoria
Adv.