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[2015] ZAGPPHC 455
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Forster v Phambili Group CC and Others (35997 / 14) [2015] ZAGPPHC 455 (9 July 2015)
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 NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 35997 / 14
DATE:
09 JULY 2015
In
the matter between:
QUENTIN
SINCLAIR
FORSTER
...................................................................................
APPLICANT
And
PHAMBILI
GROUP
CC
...................................................................................
FIRST
RESPONDENT
PORTIA
WYNGARD
...................................................................................
SECOND
RESPONDENT
ALL
OCCUPIERS OF [31 T…..]
STREET,
..................................................
THIRD
RESPONDENT
[R………]
,
ALSO
KNOWN AS [ERF 4…………],
REGISTRATION DIVISION l.Q
GAUTENG
JUDGMENT
MAVUNDLA,
J.
[1]
The
applicant sought the eviction of the respondents from
the
property known as [31 T…………] Street,
[R……..…], [Erf 4…………..]
,
Registration Division I.Q, Gauteng, hereinafter referred to as the
property.
[2]
It
is common cause that the applicant is the registered owner of the
relevant property. It is also common cause that the applicant
and the
first respondent on the 23 March 2013 concluded a lease agreement in
respect of the said relevant property. The duration
of the lease
agreement was from 01 May 2013 and to expire on the 30 April 2014.
The lessee had an option for the lease to be renewed
for a further
negotiated period of 12 months, provided the renewal option was
excised on or before 28 February 2014.
[3]
According
to the applicant the property is being occupied by the second
respondent who is an employee of the first respondent. The
applicant
contended that the lease has expired and was not renewed and as such
the further occupation of the property by the respondents
is illegal
and therefore must be evicted.
[4]
The
second respondent, who on her own admission is the sole member of the
first respondent, contended in her answering affidavit
that: she was
approached by the applicant who offered to sell the property to the
respondents below its market value, for an amount
of R400 000. 00, if
the respondents were to take occupation and sign a lease agreement.
The applicant informed them that the municipality
value was Rl, 750
000. 00 and he will sell it to them for Rl, 300 000.00; the reason
for the conclusion of the said agreement was
because the property was
in a very bad state and lot of work needed to be done on it. It was
further agreed upon that the respondents
would improve the property
by, inter alia, installing a solar geyser and gas stove to reduce
electricity, for the sole purpose
of buying the property at the end
of the lease period.
[5]
The
respondents further contended that they expended more than R100 000.
00 in effecting improvements on the property with the hope
that, they
will eventually purchase it. They further contended that they
concluded a purchase agreement and also an amended lease
agreement.
The respondents further contend that the applicant on realising that
the improvements have enhanced the value of the
property and would
realise more money by selling the property and therefore reneged from
the initial agreement of sale.
[6]
The
respondents further contended that during April 2014, while they were
negotiating the new lease the applicant proposed that:
6.1
The amended lease agreement be finalized
and signed;
6.2
The
respondents proceed with the offer to purchase at the termination of
the lease agreement;
6.3
The respondents proceed to sell the
property and only pay him the amount of
Rl,
350 000. 00 from the proceeds and keep the balance for the
improvements of the property.
[7]
The
respondents in their opposing papers stated that they agree and
tendered to vacate the property as soon as:
7.1
They have an alternative residence; and
7.2
The
applicant reimbursed them for the improvements done to the property
as a result of the applicant's fraudulent and misleading
actions.
[8]
It
was correctly pointed out by counsel for the respondents that, in
motion proceedings:
"...where
in proceedings a notice of motion dispute of fact has arisen on the
affidavit, a final order, whether it be an interdict
or some other
form of relief, may be granted if those facts averred in the
applicant's affidavit which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such
order..." vide Plascon-Evons Paints Limited v
Van Riebeeck
Paints (Pty) Ltd.
[1]
[9]
In
the respondents' own version, it is admitted that the lease agreement
has not been renewed, thus admitting the applicant's version
that
their occupacy is unlawful. I am therefore satisfied that "on
the facts stated by the respondent, together with the admitted
facts
in the applicant's affidavits, the applicant is entitled to relief
sought."; vide Room Hire Co (Pty) Ltd vJeppe Street
Mansions
(Pty) Ltd
[2]
.
[10]
According
to the applicant, any agreement of sale was conditional on the
respondents securing a mortgage bond for an amount of Rl,
3 million,
which they have failed to secure and therefore there is no valid sale
agreement. The respondents have not refuted the
applicant's
contention in this regard and therefore this Court is bound to accept
the version of the applicant and consequently
conclude that there is
no valid sale agreement.
[11]
The
respondents have attached annexure "PW4"
[3]
which is supposed to be the invoice of their incurred expenses in the
amount of R114 762.63 inclusive VAT for the improvements
effected on
the property. This document, saves for the figures, does not provide
any explanation what these figures are in respect
of and therefore
does not prove anything. There is therefore no documentary supporting
invoices proving any alleged expenses incurred
by the respondents for
the alleged improvements effected. In my view, the respondents can
always bring an action at a later stage
in another appropriate forum
to claim for the alleged improvements they effected on the property.
They cannot seek to resist eviction
for the property on flimsy and
unsubstantiated and vague "lien right".
[12]
The
second respondent is the sole member of the first respondent. The
very fact that the respondents were prepared to purchase the
property
for an amount of R1.5 million, demonstrate, in my view, that the
second respondent can hardly be regarded as a person
of straw, who
must be provided with an alternative accommodation by the fourth
respondent, before eviction order can be granted.
[13]
In
my view, the dictates of fairness and justice cannot be stretched to
an extent where the rightful owner of property is literally
deprived
of the enjoyment of his property by an unlawful occupier. There is no
obligation on the part of the applicant, as a private
individual, to
provide alternative accommodation to the respondents. The respondents
were served with eviction application as far
back as in May 2014,
which was more than enough period for them to seek alternative
accommodation. In the circumstances, it would
be unjust and unfair to
delay the eviction much longer than 30 days from the grant of the
order I indent to grant.
[14]
In the result it is hereby ordered that:
1.
That
the first, second and third respondents be and are ordered to vacat
e
the property known as 31 [T……….] Street,
[R……….], [Erf 4…………….]
IRegistration Division I.Q, Gauteng, hereafter "the property'
within 30 days from date of this order;
2.
That
should the first, second and third respondents fail to comply with
the order referred to in order 1 above, the Sheriff of tis
Court be
and is authorised and or mandated to take all necessary steps to
execute this order and to evict the first, second and
third
respondents from the property and, if necessary, to obtain the
assistance of the South African Police Services to assist
him /her in
this regard;
3.
That
the first, second and third respondents be and are ordered to pay the
costs of this application jointly and severally, the
one paying the
other to be absolved.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 09 JULY 2015 APPLICANT'S ADV: ADV T. L. JACOBS
INSTRUCTED BY QUENTIN SINCLAIR FORSTER C/0 SJ ROUX INCORPORATED
RESPONDENT'S ADV: ADV P LOURENS INSTRUCTED BY DU RAND ATTORNEYS
[1]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E to 635D.
[2]
1949 (3) SA 1155
(T) at 1168 et the authorities therein cited.
[3]
Paginated page 76.