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[2015] ZAGPPHC 267
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Sulelo v Kruger N.O. (49326/2013) [2015] ZAGPPHC 267 (11 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
49326/2013
Date: 11 March 2015
In the matter
between:
NGR
SULELO
..............................................................................................................................
APPLICANT
And
G KRUGER
N.O
......................................................................................................................
RESPONDENT
JUDGMENT
PRETORIUS J
[1] The applicant is
applying for the setting aside of an order granted against her on 23
September 2013 by this court. The order
was granted against the
applicant by default. The applicant had appeared in court in person
with a friend who could understand
English to assist her on 23
September 2013.
[2]
This court stood the application for the rescission of judgment down
for two days to enable the applicant to obtain legal assistance,
as
her previous attorneys of record had withdrawn. On Wednesday, 25
February 2015, she had still not obtained a legal representative.
The
court requested counsel to appear
pro
bono
on
her behalf and Adv TP Kruger represented her.
[3]
Background:
The applicant has
occupied the property at Stand 644, Diepkloof Extension Phase 2 since
at least 1983, when her father passed away.
Her mother passed away in
2007. The property was owned by the joint estate of her father and
mother, the late Mr and Mrs Sulelo.
[4] The applicant’s
brother, Mr Drummond Sulelo, was appointed as executor on 24 January
1992, after his father had passed
away. The applicant consented to
move out of the property once it was transferred. Her complaint to
the Master set out:
“
I
do not desire to leave my parents’ home, but when this whole
mess is resolved by you Master, I repeat, if push comes to
shove ‘God
forbid’
I
will willingly vacate
’’
[5] The property was
sold to the A Dlamini Trust, IT3561/2011, who is currently the
registered owner of the property. The Trust
had purchased the
property from the estate Late Dika Thompson Sulelo on 10 February
2012 for an amount of R690 000.00. The property
was transferred to
the trust on 21 November 2012.
[6] Prior to selling
the property the applicant’s brother, Mr Sulelo, had discussed
the fact that the property had to be sold
with the applicant. The
rates and taxes on the property were not paid and ultimately the
applicant conceded that the property had
to be sold.
[7] Numerous
potential buyers visited the property and the applicant cooperated
and welcomed these prospective purchasers. She agreed
that she would
vacate the premises once the property had been sold.
[8] Ultimately the
property was sold on 10 February 2012. The applicant had received an
amount of R93 000.00 after the trust had
paid the purchase price. She
received R50 000.00 on 4 March 2013 and R43 777.95 on 31 October
2013, which constituted her share
of the purchase price.
[9] The applicant
had turned down two offers of alternative accommodation when the
property was sold and she had to move. A property,
house number
14028, Section 24, Klerksdorp is available to her and her brother, Mr
Samuel Sulelo offered her alternative accommodation.
[10]
Court
proceedings - 23 August 2013:
On 23 August 2013
the eviction application served in front of Jordaan J. An application
was brought to evict the applicant from
the property in terms of the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998
(“PIE”). The applicant
was present at court and requested a postponement so that she could
obtain a lawyer from the
Legal Aid Board to assist her. Counsel for
the respondent (applicant in the application for eviction) informed
the court that counsel
had spoken to the applicant. A member of the
public assisted the applicant, indicating to Jordaan J that the
applicant requested
a postponement to enable her to get assistance
from the Legal Aid Board. She informed the court that she had
approached the Legal
Aid Board and was informed that it was too short
notice for somebody from the Legal Aid Board to attend to the matter.
[11] Counsel for the
respondent (applicant in the application for eviction) suggested to
the court to grant the eviction order,
but to grant the applicant a
substantial period of time to find alternative accommodation. Hence
the order that granted the applicant
45 days to leave the property.
[12] The applicant
applied for leave to appeal Jordaan J’s decision, but the
application for leave to appeal was dismissed
with costs. It is clear
that the applicant had been at court when default judgment was
granted. However, she was not granted an
opportunity to state her
intention to apply for legal aid and that she required a
postponement.
[13] Section 4(5)d
of the PIE Act provides:
“
(5)
The notice of proceedings contemplated in subsection (2) must
—
(a) state that
proceedings are being instituted in terms of subsection (1) for an
order for the eviction of the unlawful occupier;
(b) indicate on
what date and at what time the court will hear the proceedings;
(c) set out the
grounds for the proposed eviction; and
(d) state that
the unlawful occupier is entitled to appear before the court and
defend the case and, where necessary, has the right
to apply for
legal aid. ”
[14] Section 4(7)
provides:
“
If
an unlawful occupier has occupied the land in question for more 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, except where
the land sold in a sale in execution pursuant to a mortgage, whether
land had been made
available or can reasonably be made available by a
municipality or other organ of state or another landowner for the
relocation
of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and households
headed by
women. ”
(Court’s
emphasis)
[15]
In
Johannesburg
Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown
Urban Village 2013(1) SA 583 (GST)
Willis
J referred to
Machele
and Others v Mailula and Others 2010(2) SA 257 CC
in
para
23
where
Skweyiya J found:
“
The
application of PIE is not discretionary. Courts must consider PIE in
eviction cases. PIE was enacted by Parliament to ensure
fairness in
and legitimacy of eviction proceedings and to set out factors to be
taken into account by a court when considering
the grant of an
eviction order. Given that evictions naturally entail conflicting
constitutional rights, these factors are of assistance
to courts in
reaching constitutionally appropriate decisions. ”
[16] Section 26(3)
of the Constitution reads as follows:
“
3.
No one may be evicted from their home, or have their home demolished,
without an order of court made after
considering
all the relevant circumstances.
No
legislation may permit arbitrary evictions.”
(Court’s
emphasis)
[17]
In
M
C
Denneboom
Service Station v Phayane
2015(1)
SA
54
at
para
16,
Khampepe J held:
“
The
court
was
required
to ensure that PIE’s requirements had been met before ordering
his eviction."
[18]
There is thus a duty on the court to ensure that the
audi
alterem partem
rule
applies in these applications for evictions. The court had a duty to
ensure that the respondent (the present applicant) knew
her rights in
this application and had to afford the respondent the opportunity to
engage with the Legal Aid Board for assistance
in opposing this
application for eviction. This applies even more so in this instance
where the applicant was present at court.
She had made it plain to
the court that she intended opposing the application once she had
obtained Legal Aid. It is of vital importance
that PIE requirements
must be met before an eviction order can be granted. It is the
court’s function to ascertain that the
requirements have been
met.
[19] I have
considered all the arguments by both counsel and find that the
applicant was not granted the opportunity to appear in
court on 23
August 2013 and to apply for legal aid. The court relied on the
hearsay argument of counsel when granting an order,
but ameliorating
the order by suspending it for three months.
[20] The court
cannot find that the applicant was in wilful default as at all
material times she endeavoured to bring her defence
to the attention
of the court.
[21]
There is an attempt to set out a
bona
fide
defence
by the applicant by firstly submitting that Mr Drummond Sulelo had
forged her signature on the letter of consent to sell
the property.
Furthermore it is submitted that Mr Sulelo had not yet been appointed
as executor of his mother’s estate when
he sold the property.
These allegations, if proved, may have an impact on the eviction
application. The applicant should be granted
an opportunity to obtain
legal aid and to be heard.
[22] I therefore
make the following order:
1. The order
granted on 23 August 2013 is rescinded and set aside;
2. The applicant
is granted leave to oppose the application issued on 8 August 2013;
3. No order as to
costs.
Judge C Pretorius
Case number:
49326/2013
Application heard
on: 25 February 2015
For the Applicant:
Adv. TP Kruger
Instructed by: Pro
Bono Instruction
For the Respondent:
Adv. MP van der Merwe SC
Instructed by: Tim
Du Toit & Co Inc
Date of Judgment: 11
March 2015