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[2015] ZAGPPHC 471
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Cassim v Munsay and Others (13044/14) [2015] ZAGPPHC 471 (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: 13044 / 14
n the
matter
between:
AHMED ARSHAD
MOHAMED YUNUS
CASSIM
APPLICANT
And
MR. A
MUNSAMY
FIRST RESPONDENT
(AND ALL OTHER UNLAWFUL OCCUPANTS OF [……]
ERASMIA/ ERF
[………], GAUTENG)
MRS.
MUNSAMY
SECOND RESPONDENT
THE
ILLEGAL
OCCUPIERS
THIRD
RESPONDENT
OF [……..]
ERASMIA/ ERF […….], GAUTENG)
CITY OF THSHWANE
METROPOLITAN
MUNICIPALITY
FOURTH
RESPONDENT
J
U
DG
MENT
MAVUNDLA, J.
[1] On the 12
November 2014 this Court granted the following order:
"l.
That
the
first
respondent,
second
respondent,
third
respondent
and
all
other
illegal occupants who illegally occupy the Property,
[…….], Erasmia / ERF [……]Gauteng
(hereinafter referred
to as the "the Property") under and
by virtue of their title, be hereby ordered to vacate the property
within thirty
(30) days from the date upon which this order is
granted;
2.
That
in
the event of the first
respondent,
second
respondent, third
respondent
and
all those who
illegally
occupy the
Property
under and by virtue of their title, fail and or
refuse to vacate
the
property within the stipulated
by the above Court order
in
prayer
1
,
then
and
in that
event,
the
relevant
Sheriff,
be and
is
hereby
authorised and
ordered
to forthwith
enter
upon the
property
and to evict
the
first
respondent,
second respondent, third respondent and all those who illegally
occupy the Property under and by virtue of their title.
3.
That the first, second, third respondents
pay the costs of this application on a party and
party scale, jointly and severally, the one paying the to be
absolved."
At the time the reasons for this order were not furnished and these
are therefore chronicled herein below.
[2] The first respondent in resisting the eviction application,
alleged in his papers that a sale and occupation agreement dated
26
June 2013 was concluded between himself and Felstead.
[3] It is not in dispute that Vasanthamalai Felstead was the
erstwhile owner of the property. On 16 September 2010 the FirstRand
Bank Limited obtained judgment against Felstead and the property was
declared executable.
[1]
On the 15 November 2010 the property was attached by the Sheriff
Pretoria South East
[2]
.
[4] The property was subsequently offered, sold and purchased by the
applicant on a public auction on 18 July 2013. The property
was
subsequently registered in the name of the applicant on 30
I
10/ 2013.
[5] Once judgment was obtained by the First Rand Bank against
Felstead, and the relevant property subsequently
attached by the Sheriff, and transferred into the name of the
applicant, Felstead was divested of any right to transact over
the
said property,
[3]
unless that judgment was rescinded and set aside.
Besides, s40 of the Supreme Court Act, No 59 of 1959 criminalises
any
sale of such attached property, by a person either than the Sheriff.
The purpose of this section is to protect the interest
of the
creditor who has attached the property. But once the property was
transferred into the names of the applicant,
any
subsequent sale, as
in
casu,
by Felstead, is
void
ab initio.
[6] The applicant is the title holder of the aforesaid immovable
property by virtue of the fact that he purchased same in a public
auction from the sheriff Pretoria South West. The immovable property
was subsequently registered in his name on the 30th October
2013 in
the Deeds Office in Pretoria. In this regard the applicant has
attached annexure YC1A which is Windeed showing
that Title Deed T8766/2013 in respect of Property ERF […….]
was purchased on 18
I
07
I
2013 and registered on 30
I
10/
2013 in the name of
Cassim
Ahmed
Arshad
Mohamed
Yunus
for purchase consideration of R795, 000. 00. In his
replying affidavit the applicant averred that he purchase the
property in a
public auction where the First Rand Bank limited was
the plaintiff / execution Creditor. The execution creditor was paid
an amount
of R608 687. 02 which was the amount due and payable by the
erstwhile title holder and the execution debtor Mr. Felstead had a
credit available in his favour in the amount of R186 312. 98.
[7] The applicant having purchased the property in a public auction,
and which was subsequently registered in his name, is the
lawful
owner thereof. He said that there is no agreement between himself and
the respondent to occupy the said property and as
such, the
occupation is unlawful. The applicant as the title holder, his right
supersedes whatever right the first respondent may
have had;
vide
the matter of
City of Johannesburg v
Changing Tides
74
(Pty) Ltd
&
others
2012 (6) SA 294
(SCA) at p305.
[8] The first respondent alleged that his father lived on the
property f since 1993 and it is their family home. It would seem
that
he lives together with his wife, daughter and son-in-law. The
property represents a home for two generations.
[9] The first respondent is a businessman. He did not take this Court
into his confidence as regards the nature of his business
and his
financial means. It is noted that the property is a home for two
generations. It is nonetheless not explained why only
in 2013 was
there an effort to purchase the property then and the basis of the
occupation for the past years since 1993. In my
view, a respondent
faced with an eviction order, must place sufficient facts before the
Court to demonstrate that it would not
be just and equitable to grant
the eviction order. On the other hand,
in casu,
from
the facts, this Court is satisfied that the applicant has shown that
he has a right and title over the property and has not
given the
respondents any right of occupation.
[10] The respondents were served with s4(2) notice as far back as in
May 2014. The period of thirty days afforded the respondents
to
vacate the property, is in my view a reasonable period for them to
make suitable arrangements for alternative accommodation.
[11] With regard to costs, it stands to follow that the applicant as
the successful party is entitled to costs, as already granted.
[12] I therefore hand down the reasons for the order granted against
the first, second and third respondents.
DATE OF JUDGMENT: 09 JULY 2015
APPLICANT'S ADV: ADV D. J. G. THIART
INSTRUCTED BY BARNARD
&
PATEL INC
RESPONDENTS' ADV: MR A MUNSAMY
INSTRUCTED BY MR A MUNSAMY
[1]
Annexure "YC3" is a
copy of the Order granted by Makgoba J under case number 33018/2010.
[2]
Annexure 'YC4" is a copy of
the Warrant of attachment of the relevant property.
[3]
Rule 46(10) of the Uniform High
Court Rules.