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[2015] ZAGPPHC 399
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Mokwana N.O and Others v Fakude (17861/2013) [2015] ZAGPPHC 399 (5 June 2015)
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Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 17861/2013
DATE:
05 JUNE 2015
In the
matter between:
AMOS
STEFAANS MOKWANA
N.O
.................................................................
FIRST
APPLICANT
MOJASAGAGE
SOPHIE MOKWANA
N.O
.................................................
SECOND
APPLICANT
MPHO
STEPHEN MOKWANA
4.0
...................................................................
THIRD
APPLICANT
And
REBECCA
FAKUDE
.....................................................................................................
RESPONDENT
JUDGMENT
COLLIS
AJ
INTRODUCTION
[1]
In the present
application applicants seeks an order for the eviction of the
respondent and all persons living through or under
her from the
premises situated and described as Portion 98 of Erf 772, also known
as 3….. W…….. Street, G……..
Extension …,
[2]
Section 4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998
(the Act)
prescribes
the procedure to be followed by an applicant in proceedings for the
eviction of unlawful occupiers. The Act,
inter alia
has
its roots in section 26(3) of
the
Bill of Rights, which
provides that ‘no one may be evicted from their home without an
order of court after consideration of
all the relevant
circumstances.’
[1]
It
vests in the courts
the right and duty to make the order, which in the
circumstances
of the case, would be
just and equitable and it
prescribes
certain circumstances
that have to be taken into account in determining the terms of
eviction.
[3]
At the hearing of the
application, the respondent applied for a postponement to secure the
services of an attorney to assist her
to defent the application. It
should be noted that Lingerfelder & Baloyi, her erstwhile
attorneys had assisted her in filing
her answering affidavit as early
as October 2014. When the matter was first enrolled on the opposed
roll for 16 March 2015, her
previous attorneys had withdrawn on 12
March 2015. On this day, this court afforded her an indulgence and
postponed the matter,
on her request, to secure the services of
another attorney.
[4]
Before me the
respondent once again applied for a postponement to secure the
services of an attorney. This application was opposed.
The request
was not premised on good and strong enough reasons and the prejudice
to the applicants out-weighed the prejudice to
the respondent. Her
request for a postponement was not acceded to.
BACKGROUND
[5]
As per the founding
affidavit
[2]
the First to Third applicants set out that they are the trustees
of
the
Mokwana
Fan"
My Trust
with
registration number
IT
110/09.
The Mokwana Family
Trust is the registered owner of the following property described as:
PORTION 98 OF ERF 772 G………….EXTENSION ….
TOWNSHIP REGISTRATION DIVISION J.S PROVINCE OF LIMPOPO
MEASURING 1100
(ONE THOUSAND ONE HUNDRED SQUARE METRES FIRST TRANSFERED BY DEED OF
TRANSFER T117212/1997 WITH DIAGRAM LG NUMBER
A1644/1987 RELATING
THERETO AND HELD BY DEED OF TRANSFER T117213/1997.
[6]
On 18 July 2012 the
applicants became the registered owners of the property described
above and despite numerous requests for the
respondent to vacate the
premises, she refuses to vacate the premises.
[7]
The Act prescribes
that before an unlawful occupier can be evicted; the applicant needs
to comply with the provisions of section
4(2). The section reads as
follows:
S
4(1)
Notwithstanding anything to the
contrary contained in any law
or the
common law;
the
provisions of
this
section
apply to
proceedings
by
an
owner
or person in charge of land
for
the
eviction
of an unlawful occupier.
(2)
At least 14 days before the hearing of
the proceedings contemplated in subsection (1), the court must serve
written and effective
notice of the proceedings on the unlawful
occupier and the municipality having jurisdiction.
(3
)..................................................................................................................................................................
(4
)...................................................................................................................................................................
(5
)...................................................................................................................................................................
m
........................................................................................................................................
(7
)..............................................................................................................................................................
(8)
If the court is satisfied that all the
requirements of this section have been complied with and that no
valid defence has been raised
by the unlawful occupier; it must grant
an order for the eviction of the unlawful occupier, and determine-
(a)
a just and equitable date on which the
unlawful occupier must vacate the land under the circumstances; and
(b)
the date on which an eviction order may
be carried out if the unlawful occupier has not vacated the land on
the date contemplated
in paragraph (a).
[8]
In compliance with
the provisions of Section 4(2), the applicants on 15 May 2013
obtained an order for service of the Section 4(2)
notice, which
notice was subsequently served on the respondent and the Groblersdal
Municipality.
[9]
Having regard to the
returns
[3]
of service filed of record, I am satisfied that the procedural
requirements as envisaged by section 4(2) have been met.
DEFENCES
[10]
The Respondent in her
answering affidavit had raised a number of defences. These defences
can be listed as follows:
(i)
Lis Alibi Pendens.
[11]
Challenging the
transfer of the property under case number 68968/12.
(iii)
Commissioning of the
Founding Affidavit.
(iv)
Lien over the
property for improvements made by her.
Lis
Alibi Pendens
[11]
in her answering
affidavit the respondent alleges that the applicants in a prior
application brought against her, seeking her eviction
in the
Magistrate’s Court in the District of Groblersdal under case
number 779/2012,
[4]
launched the present application, seeking the same relief, whilst the
previous application remained pending.
[12]
In reply hereto, the
applicants contend that the proceedings instituted in the Groblersdal
Magistrates Court, was withdrawn as eariy
as 25 May 2013 and as such
no other application was pending seeking the same relief.
[5]
[13]
When the respondent
deposed to her answering affidavit, during October 2013, the
application in the Groblersdal Magistrates Court
had been withdrawn.
Therefore it is simply factually incorrect for the respondent to
contend that a similar application was pending
against her at the
time.
[14]
A party wishing to
raise a
Its pendens
bears
the
onus
of alleging and
proving the following:
(i)
there must be
litigation pending;
[6]
(ii)
the other proceedings
must be pending as against the same parties or their privies;
[7]
(iii)
the pending
proceedings must be based on the same cause of action;
[8]
(iv)
the pending
proceedings must be in respect of the same subject-matter.
[9]
[15]
Having regard to the
previous matter having been withdrawn, no
lis
remained
between the parties and as such all the requirements to successfully
rely on this defence have not been met.
Challenging the transfer of the immovable
property.
[16]
In paragraphs 7 to 9
of the answering affidavit the respondent alleges that she launched
motion proceedings in this court under
case number 68968/2012,
seeking to set aside the sale agreement and the transfer of the
immovable property into the names of the
applicants. Further, in
paragraph 9, she alleges that the application is still pending before
this Court, but fails to indicate
what progress she has made in
finalising the said application.
[17]
In rebuttal, the
applicants in paragraph 9 to their replying affidavit allege that
their instructing attorney had made attempts
to peruse the court file
in question and found it to be empty. This was confirmed by their
instructing attorney in a subsequent
confirmatory affidavit deposed
to.
[10]
[18]
In the absence of the
respondent stating objective facts indicative thereof that she is
desirous of prosecuting her proceedings
initiated under case number
68968/2012 this Court cannot discount the possibility that she
initiated these proceedings as a mere
pretext and as such this
defence cannot be sustained.
Commissioning
of the Founding Affidavit
[19]
In relation to the
commissioning of the founding affidavit, more specifically paragraphs
14 to 16 thereof, the respondent took the
point that the founding
affidavit was commissioned by a Commissioner of Oaths, who at the
time of the commissioning was in the
employ of the applicants
attorney of record. As such the respondent regarded the commissioning
of the founding affidavit as irregular.
[20]
In response hereto,
the applicants conceded the point and had taken steps to have the
founding affidavit re-commissioned. As a consequence
I am satisfied
that the commissioning of the founding affidavit complied with the
requirements as stipulated in the relevant regulations
governing the
administering of an oath.
Lien
over the property for improvements made by her.
[21]
The last defence
raised by the respondent relates to the purported
fien
she
alleges she holds over the immovable property in question. In
paragraph 18 of her
answering
affidavit, she
alleges that she had over the years effected substantial improvements
to the immovable property which gave her a
right of retention over
the immovable property.
[22]
A lien (right of
retention) is the right to retain physical control of another’s
property, whether movable or immovable, as
a means of securing
payment of a claim relating to expenditure of money or something of
monetary value by the possessor on that
property, until the claim has
been satisfied.
[11]
[23]
One of
the
requirements to
be
satisfied
in
order
to
successfully
raise
the
defence
of a lien, is the
lawful possession of the object. In the present proceedings this
defence could never be sustained as against the
applicants before
this court,
because
the respondent
is
in
unlawful possession
of
the immovable property.
[24]
As mentioned in
paragraph 7
supra
, if the
court is satisfied, that no valid defence has been raised by the
unlawful occupier, the court hearing the application,
must grant an
order for the eviction of the unlawful occupier.
[25]
A court having
ordered the eviction of the unlawful
occupier,
must then determine a
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances and in
the event of the unlawful
occupier failing to vacate the land on such determined date,
determine a date on which the eviction order
may be carried out.
[26]
In this regard, the
respondent save for alleging in her answering affidavit that she is
not elderly; a mother of two children, one
being a 16 year old
disabled child and that she had occupied the land in question since
1999, she has placed no additional evidence
before this Court as to
the steps she had taken to secure alternative accommodation in the
event of this Court ordering her eviction.
At the hearing when she
was invited to address the court as to factors to be taken into
account by the Court, in determining a
just and equitable date she
elected not address the Court in that regard. This Court also took
into account that the respondent
the head of a household.
[27]
In determining a just
and equitable date a Court must weigh up the property owner's rights
protected under section 25 of our Constitution
as against the basic
human rights of the occupier and in so doing exercise a judicial
discretion.
[28]
The Courts have a
duty to ensure that the constitutional rights of all the parties are
protected and enforced-
[12]
ORDER
[29]
in the result the
following order was made:
29.1
The Respondent and
all persons living through or under her are ejected from the premises
situated at Portion 98 of Erf 772 situated
at 3….. W………
Street, G………, Extension ...
29.2
The Respondent and
all persons living through or under her are ordered to vacate the
said premises within 60 days from date of service
of this order,
failing which the Sheriff of this Court is authorised to evict the
Respondent and ail persons living thrcugh or
under her from the said
premises.
29.3
The Respondent is
ordered to pay the costs of this application.
C. J.
COLLIS
ACTING
JUDGE GAUTENG DIVISION PRETORIA APPEARANCES:
FOR
APPLICANT: ADV M RILEY INSTRUCTED BY: SEBUENG ATTORNEYS FOR
RESPONDENT: IN PERSONA DATE OF HEARING: 4 JUNE 2015 DATE OF JUDGMENT:
5 JUNE 2015
[1]
Cape Killamev Property
Investments (Ptv)
Ltd v
Mahamba and Others
2001 (4) SA 1222
(SCA)
at
1229E
-
Founding affidavit para 2 and 3
[3]
See in this regard Index pages
24 & 25.
[4]
See in this regard Answering
Affidavit para 6
[5]
See in this regard Replying
Affidavit para 5
8
See in
this regard Van As v Appolus 1993 (1) SA 606 (C)
[7]
See in this regard Marks &
Kantor v Van Diggeien
1935 TPD 29
0
See in this regard Nestle (SA)
(Pty) Ltd v Mare Inc 2001 (4) SA 542 (SCA)
[9]
See in this regard Williams v
Shub
1976 (4) SA 567
(C)
See
in this regard Index paginated page 112,
Annexure
MMS 3
[11]
See in this regard the decision
Guman NO v Ansari and Others (2011/2648) [2011] ZAGPJHC 124
at
11
r£
See in this regard the decision
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
at224H, 229F-G.