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[2014] ZAGPPHC 26
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Tayob N.O. and Others v Mamabolo and Others (27591/2012) [2014] ZAGPPHC 26 (19 February 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
/ES
(
GAUTENG DIVISION,
PRETORIA
)
CASE NO: 27591/2012
DATE: 19 FEBRUARY 2014
IN THE MATTER BETWEEN
S O TAYOB
NO
....................................................................
1
ST
APPLICANT
O M TAYOB
NO
..................................................................
2
ND
APPLICANT
Z O TAYOB
NO
....................................................................
3
RD
APPLICANT
AND
JOHN
MAMABOLO
................................................................
1
ST
RESPONDENT
THE OCCUPIERS OF 66 PAUL KRUGER STREET
............
2
ND
RESPONDENT
POLOKWANE
THE POLOKWANE LOCAL MUNICIPALITY
.....................
3
RD
RESPONDENT
JUDGMENT
MOGOTSI, AJ
Introduction
[1] This is an application for eviction of the respondents.
[2] The respondents oppose
the application on the basis that:
2.1 an action is pending in
respect of the ownership of the property (
res litigiosa
);
2.2 the respondent obtained
a right to lease the property to a third party in terms of the sale
agreement. That sale agreement
has not been cancelled and it is
therefore valid and binding and subject to the principle of "huur
gaat voor koop".
Background
Messrs Huang and Mogashoa entered into a sale agreement in
respect of the property on 22 February 2001. Mogashoa had
started
the actual occupation of the property in 1999, this is the
date on which according to the sale agreement "the purchaser
shall
be entitled to all rentals, if any, accruing from the property
and shall be liable for all imposts ..."
Mr Huang issued summons in terms of which he claimed cancellation
of the aforesaid sale agreement. Mr Mogashoa defended
his
action and Mr Huang withdrew in November 2011. Mr Huang never
asked for the eviction of Mr Mogashoa.
On 1 December 2007 Mr Mogashoa and the first respondent John
Mamabolo entered into a lease agreement regarding the same property.
The trust bought the property from Mr Huang and transfer
took place on or about 13 February 2008.
The trust now contends that the first and second respondents are
in unlawful occupation of the property and that it will be just
and
equitable if they are evicted.
There is a pending action instituted on or about 24 April 2012
(Limpopo case no LP/PLK/RC372/2012) in terms of which Mr Mogashoa
inter alia
seeks an order that the transfer of the property
from Mr Huang to the trust be set aside and/or be declared a nullity
and that
the trust should pass transfer to him.
Mr Molebatse pleads that he signed a lease agreement with Mr
Mogashoa on 3 July 2006. Mr Molebatse knows Mr Mogashoa
to
be the owner of the property. Applicants dispute the validity
of that lease agreement.
The matter appeared before the Honourable LEDWABA, J (as he then
was) and the following order was made:
1. The application is
postponed
sine die
pending the finalization of the action
proceedings under case number LP/PLK/RC372/2012 in the regional court
of Polokwane.
2. The rental payable in
terms of the lease agreement between Mr Mogashoa and the first
respondent Mr John Mamabolo is to be paid
into the trust interest
bearing account of the first respondent's attorney pending the
finalization of the above action proceedings.
The first
respondent's attorney should not release the rental monies to any
party unless so authorised by this court.
3. The occupants of the
property should not pay any rental to any person except to deposit
the rental monies into the first respondent's
attorneys' trust
account.
4. The property should not
be let to anybody except the present occupiers of the property who
cannot be evicted from the property
unless there is a valid court
order authorizing such eviction.
5. Should the action
proceedings not be finalised within a period of six months from the
date of this order and/or the first respondent
fail and/or the
occupants fail to deposit the rental monies into the first
respondent's attorneys' trust account in terms of the
lease agreement
the applicant may set this matter down for hearing.
The matter now appears before me because of the parties' failure
to comply with paragraph 5 of the order.
What complicates this matter is the following:
(a) the matter in Limpopo is not
reaching finality;
(b) in the Limpopo
matter the parties are Mr Mogashoa, Mr Huang and the trust.
Mr Mamabolo is not cited.
The trust contest the consent to jurisdiction of the magistrate's
court. Further that the magistrate's court cannot obtain
jurisdiction to declare that a transaction is null and void and set
it aside. The same applies to the
ad factum praestandum
order that the trust transfer its property to a third party.
The first applicant avers that an agreement of sale between Mr
Huang and Mr Mogashoa got cancelled by Mr Huang and
ownership
could never have passed to Mr Mogashoa. There is
no confirmatory affidavit to that effect. The first applicant
further argues that if in fact Mr Mogashoa had complied with his
contractual obligations, his claim to demand transfer would have
prescribed.
The first respondent disputes that this agreement was cancelled
and relies on the fact that an action instituted by Mr Huang for
the
cancellation of the agreement was withdrawn.
The trust contests the validity of the lease agreement between Mr
Mogashoa and Mr Mamabolo as according to them Mr Mogashoa
is not
the owner of the property. Furthermore the trust is aware of
the fact that the property was occupied by other persons
not claiming
a right of occupation through Mr Molebatse. It is also not
clear whether Mr Molebatse and his family have vacated
the property
or not. There is no confirmatory affidavit to that effect.
More detail is required in respect of the first
and second
respondents more so that it is alleged by applicants that second
respondents are paying rent to Mr Mogashoa and/or Mr
Molebatse and
that they are in a position to afford alternative accommodation.
First respondent's supplementary heads of argument
inter alia
high lights three difficulties:
(i) possibility of dispute of fact;
(ii) citation of correct parties; and
(iii) failure to seek appropriate
relief.
According to
Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949 3 SA 1155
(T) at 1162 a dispute of fact might
arise in the following situations:
• where the respondent
denies all the material allegations made by the various deponents on
behalf of the applicant and furnishes
positive evidence by deponents
or witnesses to the contrary;
• confessions and
avoidance where the respondent admits the allegations (or evidence)
in the applicant's founding or supporting
affidavit, but raises other
facts which in turn are denied by the applicant.
A dispute of fact does not necessarily preclude the court from
granting relief on notice of motion. If the real issue is
capable
of resolution on acceptance of facts which are common cause
or indisputable, relief may be ordered without reference to the facts
in dispute.
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd (supra)
lays down the method on which facts should
either be accepted or omitted from consideration in the adjudication
of applications
on notice of motion where there are material disputes
of fact in the affidavits at 634E-635C.
In
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty)
Ltd
1957 4 SA 234
(C) at 235E-G the general rule was further
stated to be:
"...
where there is a dispute as to the facts a final interdict should
only be granted in notices of motion proceedings if
the facts as
stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order ...
. Where it is clear
that facts, though not formally admitted, cannot be denied, they must
be regarded as admitted."
A further clarification and qualification was made in case no
2241/2006
National Director of Public Prosecutions v T S P van der
Walt and another
(not reportable) that if in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned
to be called for cross-examination under rule
6(5)(g) of the Uniform Rules of Court (cf
Pietersen v Cuthbert &
Co Ltd
1945 AD 420
at 428;
Room Hire
case,
supra
,
at 1164) and the court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the
basis of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled to
the final relief
which he seeks (see
Rikhotso v East Rand Administration Board and
another
1983 4 SA 278
(W) at 283E-H). Moreover there may be
exceptions to this general rule, as, for example, where the
allegations or denials
of the respondent are so far-fetched or
clearly untenable that the court is justified in rejecting them
merely on the papers.
The general rule, then, is that where in proceedings on notice of
motion
bona fide
disputes of fact have arisen on the
affidavits, a final order may be granted if those averred in the
applicant's affidavits which
have been admitted by the respondent,
together with the facts alleged by the respondent, justify such an
order.
The nature of factual disputes in this matter is such that the
court will not be able to make a finding on the papers.
After I have read all the papers and listen to counsels for both
sides I am of the opinion that this matter should be referred to
trial and I make the following order:
Order
1. The application is referred to trial.
2. The notice of motion shall stand as a simple summons.
3. The answering affidavit shall stand as a notice of intention to
defend.
4. A declaration shall be delivered within twenty days of this
order.
5. Uniform rules of court thereafter apply.
6. Costs of the application is reserved for the trial court to
determine.
D D MOGOTSI
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA