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[2015] ZAGPPHC 503
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Mokwana and Others v Fakude (17861/2013) [2015] ZAGPPHC 503 (5 June 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 17861/2013
In the matter between:
AMOS STEFAANS MOKWANA
N.O FIRST
APPLICANT
MOJASAGAGE SOPHIE
MOKWANA N.O SECOND
APPLICANT
MPHO STEPHEN MOKWANA
l.O THIRD
APPLICANT
and
REBECCA
FAKUDE
RESPONDENT
J
U D G M E N T
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 [……..], Groblersdal Extension
9.
[2] Section 4 of the
Preventior, 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]
I
t
vests in
the courts
the rig
h
t
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previous attorneys had withdrawn on 1
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
Family
Trust with
registration
number
IT
1
1
0/09.
The Mokwana
Family
Trust
is
the registered
owner of
the following
property
described
as:
PORTION 98 OF ERF 772
GROBLERSDAL [………] 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)
...................................................................................................
.
(6)...................................................................................................
.
(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.
(ii)
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]
I
n
her answering
affidavit
the respondent alleges that the applicants in a prior appl
i
cation
brought against her, seeking her eviction
i
n
the
Mag
i
strate's
Court in
the
D
i
strict
of Groblersdal under case number 779/2012,
[4]
l
aunched
the
present
appl
i
cation,
seeking
the
same rel
i
ef,
whilst the
previous appl
i
cation
remained
pending.
[12]
In reply hereto, the applicants contend that the proceedings
instituted in the
Groblersdal Magistrates
Court, was
withdrawn
as early
as 25 May
2013 and
as
such
no
other
application
was
pending
seeking the same
rel
i
ef.
[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
/is pendens
bears the
onus
of alleging and proving the following:
(i)
there must
be l
i
tigation
pending;
[6]
(ii)
the other
proceedings must be pending as
against
the same
parties
or
their
privies;
[7]
(iii)
the pending
proceedings must be
b
ased
on
the
same cause of
action;
[8]
(iv)the
pending proceedings
must be
i
n
respect of the same subject-matter.
[9]
[15] Having regard to the
previous matter having been withdrawn, no /is 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.
[
1
7]
In rebuttal, the
applicants
i
n
paragraph
9
to their
replying
affidavit allege that their instructing attorney had made attempts to
peruse the court file
i
n
question and found
i
t
to be
empty. This
wa5 confirmed by
their
i
nstructing
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
6896812012 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
lien
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.
[221
A
l
i
en
(r
i
g
h
t
of
rete
n
tion)
is
the
right
to
retain
physical
control
of
another's
property,
whether
movable or
i
mmovable,
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
[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 [………],
Groblersdal, Extension 9.
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 all persons living
through 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 Killarney Property
I
nvestments
I
Pty
Ltd
v Mahamba
and
Others
2001 (4) SA 1222
(SCA) at 1229E
[2]
Founding affidavit
para 2
and 3
[3]
See in
this
regard
I
ndex
pages 24 & 25.
[4]
See in this regard Answering Affidavit para 6
[5]
See in
this
regard Replying
Affidavit
para
5
[6]
See in this regard Van As v Appolus
1
993
(1) SA 606 (CJ)
[7]
See
in
this
regard
Marks
&
Kantor
v
Van
Diggelen 1935
TPD
29
[8]
See in
this
regard Nestle
(SA) (Ply)
Ltd
v
Mars Inc
2001 (4)
SA 542 (SCA)
[9]
See in
this
regard
Williams v
Shub 1976
(4) SA 567
(CJ
[10]
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
[12]
See
i
n
this regard the decision Port E
l
i
zabeth
Mun
i
cip11llty
v Various Occupiers 2005
(1) SA
217 (CC)
at
224H,
229F-G.