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[2015] ZAGPPHC 701
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Draht N.O. and Others v Manqele and Others (18771/13) [2015] ZAGPPHC 701 (7 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
Number:
18771/13
Not
Reportable
Not
of Interest to other Judges
In
the
matter
between:
HEIKO
DRAHT
N.O.
…..............................................................................................
1st
APPLICANT
MARC
BRADLEY
BEGINSEL
N.O.
........................................................................
2nd
APPLICANT
DONOVAN
THEODORE
MAJIEDT
N.O.
..............................................................
3RD
APPLICANT
DYNAMIC
AUCTIONEERS
CC
..............................................................................
4
TH
APPLICANT
and
MBONGISENI
ISAAC
MANQELE
.....................................................................
1
ST
RESPONDENT
LINDIWE
GRACE
MANQELE
...........................................................................
2ND
RESPONDENT
EKURHULENI
METROPOLITAN
MUNICIPALITY
............................................
3RD
RESPONDENT
Coram:
HUGHES
J
JUDGMENT
Heard
on:
21
April
2015
Delivered
on:
07
August
2015
HUGHES
J
1. In
this
opposed
eviction
application
the
applicant
seeks
the
eviction
of
the
first
and
second
respondent
and
all
those
occupying
the
property
[….],
Leondale,
Roodekop,
Johannesburg,
Gauteng
("the
property").
2.
The
first
and
second
applicants
are
trustees
over
the
insolvent
estate
of
the
first
and
second
respondents.
The
respondents
were
the
registered
owners
of
the
property
having
two
mortgage
bond
registered
against
it.
3.
The
first
respondent
was
a
director
of
a
company
that
ran
into
financial
difficulties
in
addition,
the
respondents
failed
to
comply
with
their
legal
obligation
to
service
their
bonds.
The
respondents,
as
husband
and
wife,
applied
for
voluntary
sequestration
which
was
granted
on
4
November
2011.
As
a
result
the
property
together
with
the
legal
right
thereto
was
placed
in
full
control
of
the
trustees.
4.
The
applicant's
submit
that
they
are
unable
to
finalise
the
sequestration
the
estate
as
the
respondents
are
living
on
the
property.
The
property
cannot
be
rented
or
sold
to
gain
income
for
the
insolvent
estate.
The
applicants
have
notified
the
respondents
to
vacate
the
property,
orally
and
in
writing,
but
they
have
failed
and
refused
to
do
so.
5.
The
property
is
used
as
the
primary
residence
of
the
respondents.
To
the
best
of
the
applicant's
knowledge
they
are
not
aware
of
any
minor
children,
disabled
and
elder
persons
who
occupying
the
property.
6.
The
applicants
submits
futher
that
there
is
no
lease
agreement
between
the
parties
and
that
the
respondents
have
had
ample
time
to
seek
alternative
accommodation.
7.
The
applicants
submit
that
under
the
circumstances
set
out
above
they
are
entitled
to
the
order
as
sought
in
their
notice
of
motion.
8.
The
respondents
argue
that
a
deed
of
sale
was
provided
to
the
applicant's
for
the
property,
where
the
purchaser
was
Gonda
Logistics
CC
("the
CC").
the
CC
offered
to
purchase
the
property
for
R450
000.00
on
20
June
2012.
The
CC
paid
the
amount
of
R45
000.00
being
a
10%
deposit
together
with
5%
commission
of
R25
650.00
on
20
and
22
June
2012
respectively.
On
6
August
2012
a
further
R10
000.00
was
paid
at
the
request
of
the
applicants.
These
amounts
were
paid
into
the
account
of
Dynamic
Auctioneers.
9.
From
the
respondents
submissions
the
deed
of
sale
came
about
from
an
auction
sale
of
the
property.
The
bond
holders,
SA
Home
Loans
Guarantee
Trust,
were
auctioning
off
the
property
and
were
represented
by
the
trustees
together
with
the
auctioneers
were
Dynamic
Auctioneers.
10.
The
applicants
denied
that
a
sale
was
entered
into
and
that
any
monies
were
received
from
any
of
the
parties.
They
went
on
further
to
state
that
they
declined
the
purchasers
offer
and
were
not
aware
that
monies
had
been
paid
i
nto
Dynamic
Auctioneers
account.
I
note
at
this
point
that
the
proof
of
the
aforesaid
deposits
was
supplied
to
the
applicants.
11.
The
respondents
submit
that
the
payments
made
in
2012
are
still
being
held
and
have
not
been
paid
back
to
the
CC.
The
applicants
argue
that
they
are
not
responsible
for
those
payments
and
any
issues
in
that
regard
are
to
be
taken
up
with
Dynamic
Auctioneers
as
the
payment
is
alleged
to
have
been
mad
to
Dynamic
Auctioneers.
12.
Sometime
in
October
2012
it
would
seem
that
Dynamic
Auctioneers
under
the
instructions
of
the
applicants
requested
the
CC
to
increase
their
offer.
The
CC
responded
that
it
would
increase
its
offer
to
R550
000.00.
However
when
the
purchaser
was
requested
to
complete
a
new
deed
of
sale
the
CC
advised
that
the
applicants
had
taken
too
long
to
get
back
to
it
and
it
had
purchased
other
properties
and
was
no
longer
interested
in
the
property,
requesting
the
return
of
the
monies
paid.
13.
The
applicants
concluded
by
stating
that
as
at
February
2014
the
arrears
on
the
bond
stand
at
R211
182.44
whilst
the
amount
loaned
was
R597
266.69.
14.
It
is
trite
that
the
property
in
question
is
immovable
property.
In
terms
of
the
legal
position,
as
soon
as
there
is
a
sequestration
order
and
the
trustee
is
appointed
by
the
Master
the
property
vests
in
the
trustee
or
in
this
case
trustees
so
appointed.
See
EX
PARTE
VAN
DER
MERWE
2008
(6)
SA
451
(W)
where
MOSHIDI
J
sets
out
the
legal
position
at
paragraph
[6]
on
455
and
456:
"The
legal
position
[6]
There
is
no
doubt
that
the
immovable
property
in
question
falls
within
the
definition
of
'immovable
property'
as
defined
in
s
2
of the
Insolvency
Act
24
of
1936
(the
Act).
It
is
trite
law
that
the
effect
of
sequestration
of
the
estate
of
an
insolvent
is
to
divest
the
insolvent
of
his
estate
and
to
vest
it
in
the
Master
until
a
trustee
has
been
appointed,
and,
upon
the
appointment
of
a
trustee,
to
vest
the
estate
in
the
trustee.
In
this
regard,
s
20
of
the
Act
provides
as
follows:
20
Effect
of
sequestration
on
insolvent
property
The
effect
of
the
sequestration
of
the
estate
of
an
insolvent
shall
be
-
to
divest the insolvent
of
his
estate
and
to
vest
it
in
the
Master
until
a
trustee
has
been
appointed,
and,
upon
the
appointment
of
a
trustee,
to
vest
the
estate
in
him;
(b)
to
stay,
until
the
appointment
of
a
trustee,
any
civil
proceedings
instituted
by
or
against
the
insolvent
save
such
proceedings
as
may,
in
terms
of
section
twenty-three,
be
instituted
by
the
insolvent
for
his
own
benefit
or
be
instituted
against
the
insolvent:
Provided
that
if
any
claim
which
formed
the
subject
of
legal
proceedings
against
the
insolvent
which
were
so
stayed,
has
been
proved
and
admitted
against
the
insolvent's
estate
in
terms
of
section
forty-four
or
seventy
eight,
the
claimant
may
also
prove
against
the
estate
a
claim
for
his
taxed
costs,
i
ncurred
in
connection
with
those
proceed
i
ngs
before
the
sequestration
of
the
insolvent's
estate;
(c)
as
soon
as
any
sheriff
or
messenger,
whose
duty
it
is
to
execute
any
judgment
given
against
an
insolvent,
becomes
aware
of
the
sequestration
of
the
insolvent's
estate,
to
stay
that
execution,
unless
the
court
otherwise
directs;
(d)
to
empower
the
insolvent,
if
in
prison
for
debt,
to
apply
to
the
court
for
his
release,
after
notice
to
the
credi
tor
at
whose
suit
he
is
so
imprisoned,
and
to
empower
the
court
to
order
his
release,
on
such
conditions
as
it
may
think
fit
to
impose.
(2)
For
the
purposes
of
subsection
(1)
the
estate
of
an
insolvent
shall
include
-
(a)
all
property
of
the
insolvent
at
the
date
of
the
sequestration,
including
the
property
or
the
proceeds
thereof
which
are
in
the
hands
of
a
sheriff
or
a
messenger
under
writ
of
attachment;
(b)
all
property
which
the
insolvent
may
acquire
or
which
may
accrue
to
him
during
the
sequestration,
except
as
otherwise
provided
in
section
twenty-three."
15.
Further
at
456
and
457
paragraph
[7]
MOSHIDI
J
sets
out
the
duties
of
a
trustee:
"[7]
The
functions
of
a
trustee
are
essentially
to
control
and
administer
the
property
and
affairs
of
the
estate
and
to
liquidate
it
in
accordance
with
the
applicable
law.
In
this
regard
s
69
of
the
Act
provides:
69
Trustee
must
take
charge
of
property
of
estate
A
trustee
shall,
as
soon
as
possible
after
his
appointment,
but
not
before
the
deputy
sheriff
has
made
the
inventory
referred
to
in
subsection
(1)
of
section
nineteen,
take
into
his
possession
or
under
his
control
all
movable
property,
books
and
documents
belonging
to
the
estate
of
which
he
is
trustee
and
shall
furnish
the
Master
with
a
valuation
of
such
movable
property
by
an
appraiser
appointed
under
any
law
relating
to
the
administration
of
estates
of
deceased
persons
or
by
a
person
approved
by
the
Master
for
the
purpose.
If
the
trustee
has
reason
to
believe
that
any
such
property,
book
or
document
is
concealed
or
otherwise
unlawfully
withheld
from
him,
he
may
apply
to
the
magistrate
having
jurisdiction
for
a
search
warrant
mentioned
in
subsection
(3).
If
it
appears
to
a
magistrate
to
whom
such
application
is
made,
from
a
statement
made
upon
oath,
that
there
are
reasonable
grounds
for
suspecting
that
any
property,
book
or
document
belonging
to
an
insolvent
estate
is
concealed
upon
any
person,
or
at
any
place
or
upon
or
in
any
vehicle
or
vessel
or
receptacle
of
whatever
nature,
or
is
otherwise
unlawfully
withheld
from
the
trustee
concerned,
within
the
area
of
the
magistrate's
jurisdiction,
he
may
issue
a
warrant
to
search
for
and
take
possession
of
that
property,
book
or
document.
Such
a
warrant
shall
be
executed
in
a
like
manner
as
a
warrant
to
search
for
stolen
property,
and
the
person
executing
the
warrant
shall
deliver
any
article
seized
thereunder
to
the
trustee."
16.
Their
duty
is
from
the
onset
to
realise
the
assets
and
one
of
the
manners
to
do
so
is
to
sell
the
property
that
is
now
vested
in
them
in
manner
that
is
approved
the
creditor.
See
OERTEL
AND
OTHERS
NNO
v
DIRECTOR
OF
LOCAL
GOVERNMENT
AND
OTHERS
1981
(4)
SA
491
(T)
where
NESTADT
J
at
508H
stated:
"In
terms
of
s
82
the
trustee
of
an
insolvent
estate
shall,
as
soon
as
he
is
authorised
to
do
so
at
the
second
meeting
of
the
creditors
of
that
estate,
sell
all
the
property
in
such
manner
and
upon
such
conditions
as
the
creditors
may
direct."
17.
In
this
instance
this
is
exactly
what
the
trustees
tried
to
do
when
they
engaged
the
CC
in
the
sale
of
the
property.
However
that
sale
is
no
longer
on
the
table
and
as
such
they
need
to
move
on
and
quickly
as
the
arrears
are
accumulating
as
time
is
a
wasted.
18.
In
the
circumstances
of
this
case
it
is
prudent
to
bear
in
mind
that
the
duty
of
the
trustee
is
take
control
and
administer
the
estates
affairs
and
property.
The
situation
is
that
the
respondents
are
living
in
the
property
not
paying
any
rental
and
not
serving
the
bond
over
the
property.
The
arrears
are
escalating
month
by
month.
The
trustees
are
left
with
no
option
but
to
realise
the
asset
and
pay
off
the
creditor
being
SA
Home
Loans
Guarantee
Trust.
19.
The
respondents
have
been
given
ample
time
to
find
alternative
accommodation.
They
do
not
address
their
efforts
to
do
in
their
papers.
They
have
also
been
notified
in
term
of
section
4(2)(a)
on
13
October
2013
by
personal
service
upon
the
second
respondent
and
still
they
have
done
nothing
to
solve
the
dilemma
they
are
in.
20.
The
conclusion
is
clearly
that
the
trustees
who
are
vested
with
the
legal
rights
over
the
property
are
duty
bound
to
realise
the
property
to
pay
off
the
debt
that
is
not
been
serviced
and
attracting
interest
monthly.
21.
In
the
result
the
relief
as
set
out
in
the
notice
of
motion
is
duly
granted
with
an
amendment
to
the
costs
order
to
read
party
and
party
costs
and
not
attorney
and
client
costs
as
appears
in
prayer
3
in
the
notice
of
motion.
22.
The
order
made
is
set
out
below,
it
is
ordered
that:
22.1 The
first
and
second
respondents,
and
all
those
who
occupy
the
property
[…..],
Leondale,
Roodekop,
Johannesburg,
Gauteng
(hereafter
referred
to
as
"the
property"),
by
virtue
of
the
first
and
second
respondents'
occupation
thereof,
is
to
vacate
the
property
within
14
(fourteen)
days
from
the
date
of
this
order.
22.2 In
the
event
of
the
first
and
second
respondents
and/or
any
of
those
who
occupy
the
property
under
and
by
virtue
of
their
occupation
thereof
fail
and/or
refuse
to
vacate
the
property
within
the
period
stipulated
in
prayer
22.1,
then
and
in
that
event,
the
Sherriff
of
the
Honourable
Court,
alternatively
for
the
district
where
the
property
is
located,
be
and
is
authorized
and
ordered,
after
30
(thirty)
days
from
the
granting
of
this
order,
to
forthwith
enter
into
the
property
and
to
evict
the
first
and
second
respondent
and/or
any
of
those
who
occupy
the
property
under
and
by
virtue
of
their
occupation
thereof.
22.3
That
the
first
and
second
respondents
be
ordered
to
pay
the
cost
of
this
application
as
between
attorney
and
client.
________________________________
W.
Huges Judge of the High Court