About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 576
|
|
Mdhlomo and Another v Manzana and Others (A633/13) [2015] ZAGPPHC 576 (4 August 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 HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A633/13
DATE: 04 AUGUST 2015
In the matter between:
ELIZABETH SISI
MDHLOMO
....................................................................................
First
Appellant
UNLAWFUL
OCCUPIERS
.........................................................................................
Second
Appellant
And
VICKY SEESI
MANZANA
.........................................................................................
First
Respondent
THOMAS
MDHLOMO
...........................................................................................
Second
Respondent
THE CITY OF TSWANE
METROPOLITAN
.........................................................
Third
Respondent
MUNICIPALITY (SOSHANGUVE)
JUDGMENT
Baqwa J
[1] This is an appeal against the order
of the Magistrate, Soshanguve of 15 July 2013 evicting the appellants
and all persons claiming
right title and interest to occupation of
house number [5………], [B………],
[S…………].
[2] The order was granted subsequent to
an application which was brought by the first respondent.
[3] The main ground of appeal is that
the Magistrate erred in finding that the appellants were “unlawful
occupiers”
in terms of the Prevention of Illegal Eviction and
Unlawful Occupation of Land Act 19 of 1998 the Pie Act).
Background
[4] The appellants opposed the
application in the court a quo and denied that they were illegal
occupants. It is common cause that
the property in question was
originally allocated to the appellant’s parents.
[5] When the parents became older the
second respondent who was listed together with the appellant in the
house permit as the children
of the appellant’s parents, was
named as the permit holder being the eldest male descendant.
[6] In 1999 the appellant lodged a
dispute with the local municipal office in order to establish the
lawful permit holder as the
second respondent had by that time moved
out of the house and found himself a place at Block K………..
S………..
[7] The matter was adjudicated under
arbitration case number 13988 on 10 August 1999. The second
respondent filed an affidavit which
stated that he relinquished all
the rights he might have had to the property and gave exclusive usage
of the property to the appellant.
[8] An arbitration award is part of the
papers before me wherein it is recorded that the second respondent
waved his right to the
property in favour of the appellant.
[9] During or about 2012 the appellant
observed people coming to view House number 503 which according to
them was for sale. The
appellant tried in vain to obtain clarity from
the second respondent in this regard. Whenever she tried to get this
clarity, she
would find him under the influence of alcohol and he
would abuse her buy hurling insults at her. She still let him know
that the
house would not be sold as it was a “family home”.
The first respondent was one of the people who came to view the
house.
[10] It later transpired that the
second respondent had surreptitiously obtained the transfer of House
number 503 into his name
and that it was in that capacity unbeknown
to the appellant, that he had sold the property, House number 503 to
the first respondent.
[11] These facts were put before the
court a quo at least in the appellant’s answering affidavit but
it seems the court totally
ignored those facts or those facts were
not fully ventilated. In the face of those facts the court a quo
treated the appellant
as an unlawful occupiers in terms of Pie Act.
This in my view was a misdirection on the part of the magistrate.
[12] It is therefore, necessary to have
these matters canvassed, preferably by way of oral evidence before
the Magistrate, Soshanguve.
[13] This would be necessitated by the
need not only to establish the factual matrix of the case but also to
enable that court to
apply the provisions of the following pieces of
legislation, namely, the Interim Protection of Land Rights Act 31 of
1996 and the
Conversion of Certain Rights in Leasehold or
Ownership Act 81 of 1988 if applicable.
[14] The respondent submits that the
parties were legally represented when the order in the court a quo
was made and that the appeal
should not be allowed for that reason.
[15] In that situation the correct
legal stance in my view is as follows. If parties agree that a case
be dealt with in a certain
manner which may not be in accordance with
the relevant legal prescripts, a presiding officer should not be
acquiescent in regard
to that agreement, he or she must intervene and
raise the issue of the legal prescripts because being acquiescent
could lead to
a result that is not in accordance with justice.
[16] In casu, it would appear that
certain information regarding events which took place after the
demise of the parents of the
appellant and the second respondent were
not considered by the court a quo. The appellant and the respondent
are not ad idem regarding
these events and that would necessitate the
leading of oral evidence.
[17] In the circumstances I propose
that the following order be made:
17.1 The appeal is upheld.
17.2 The order of the Magistrate,
Soshanguve granted on the 15 July 2013 is set aside.
17.3 The case is remitted to the
magistrate’s court for hearing of oral evidence on the
following specific issues:
17.3.1 The acquisition of the
occupation rights regarding House number 503 [Block …….],
[S……….]
from inception.
17.3.2 How and when or at what stage
the right to occupy the house changed to an ownership right and on
what authority.
17.3.3 Who is/are the rightful owner(s)
of the property.
17.3.4 Any documents and testimony of
witnesses that the parties may call to corroborate their evidence
ought to be allowed.
17.3.5 There is no order as to costs.
S. A. M. BAQWA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
J. J. STRIYDOM
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Heard on: 04 August 2015
For the Appellant: Adv. R. Jansen SC
Instructed by: Lawyers for Human
Rights
For the Respondent: MrV. Malebye
Instructed by: Malebye Maleho
Attorneys