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[2014] ZAGPPHC 91
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Leballo v Masungany and Others (40882/2012) [2014] ZAGPPHC 91 (19 February 2014)
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Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:19 FEBRUARY
2014
CASE
NO: 40882/2012
In the matter
between:
RICHARD
LEBALLO
................................................................
APPLICANT
And
THABO LEBALLO
MASUNGANY
.............................
1
ST
RESPONDENT
KOKI LEBALLO
MASUNGANY
...............................
2
ND
RESPONDENT
LYDIA LEBALLO
MASUNGANY
..............................
3
RD
RESPONDENT
ABE
LEBALLO MASUNGANY
.................................
4
TH
RESPONDENT
THE FAMILY
MEMBERS OF THE
.............................
1
ST
,
2
ND
, 3
RD
and
4
TH
Respondents and or any unlawful
occupiers of 1….
M…. Street, S……., Pretoria
CITY
OF TSHWANE MUNICIPALITY
........................
6
TH
RESPONDENT
JUDGMENT
MOGOTSI, AJ
[1]
Introduction
This is an
application for the eviction of the first, second, third, fourth and
fifth respondents from the house known as 1….
M…
Street, S….., Pretoria (hereinafter referred to as “the
property”) in terms of the Prevention of the
Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (as amended).
The
first, second, third and fourth respondents gave notice of intention
to oppose the application on 23 July 2012 and
filed heads
of argument on 15 July 2013. The matter was set down
for hearing on 25 November 2013.
The respondents
failed to appear on the trial date and no reason was given for such
failure. The court proceeded to hear
the application based on
affidavits filed.
2.
The Parties
2.1
The applicant is Richard Leballo an adult male employee at Putco Bus
Company, residing at 1…
M….. Street, S…….,
Pretoria.
2.2
The first respondent is Thabo Leballo Masunganyi an adult female
residing at 1….. M……
Street, S……,
Pretoria.
2.3
The second respondent is Koki Leballo Masunganyi an adult unemployed
male residing at 1…
M….. Street, S……,
Pretoria.
2.4
The third respondent is Lydia Leballo Masunganyi an adult unemployed
female residing at 1…
M… Street, S….., Pretoria.
2.5
The fourth respondent is Abbey Leballo, an adult unemployed male
residing at 1….. M….
Street, S……,
Pretoria.
2.6
The fifth respondents are all other unlawful occupants at the
property known as 1…. M….
Street, S……,
Pretoria.
2.7
The sixth respondent is the City of Tshwane, a municipality as
contemplated in section 2 of the
local Government, Municipal Systems
Act 32 of 2000, c/o the Municipal Manager, 20
th
floor
Saambou Building, 227 Andries Street, Pretoria.
2.8
The applicant, first and fourth respondents are siblings. The
second and third respondents
are the children of the first
respondent.
3.
Background
The
applicant, first and fourth respondents are the children of Moshidi
Florah Leballo (the deceased) who was awarded “the
property”
situated at 1…. M….. Street, S….., Pretoria
(“the property”) under the 99 year
leasehold.
On
or about January 1989 the deceased was given notice in terms of the
Convention of Certain Rights into Leasehold Act 81 of 1988
(“the
Act”) by the sixth respondent. The Act made provision for
the conversion of rights in land into ownership.
As at the time
of the deceased death (on 27 December 1995) transfer of
“the property” into her name had not
taken place and “the
property” remained the property of the sixth respondent.
An
inquiry was held by the sixth respondent in the year 2000 and
subsequent to that the property was registered into the names of
the
applicant and his deceased wife.
The
grounds for the eviction appear from the affidavits filed in the
proceedings and they are
inter alia
as follows:
“
The
applicant is the owner of the property.
You
are in unlawful occupation of the property.
You occupy the
property without any remuneration to the applicant.
You
have no right to remain in the property.
No relevant
circumstances prevail which justify your occupation of the property
and it is just and equitable in terms of the Act
that the court
grants an order for your eviction from the property.
You are entitled to
appear before the court and defend the matter and where necessary you
have the right to apply for legal aid.”
An
order was made by the Honourable RAULINGA J in terms of section 4(4)
of the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act, 1998 that the applicant’s main application for the
eviction of the respondents and related relief
be served on the first
to sixth respondents by the sheriff of the court at “the
property” by serving the application
on each occupier he/she
find there and by affixing a copy of the application at the main
entrance of the property. Notices
of intention to oppose were
filed.
First
respondent’s answering affidavit avers among others that she
indeed resides at “the property”. That
although she
was … in terms of customary law the marriage was discontinued
and the applicant recalled her to the property
due to circumstances
she was living in. The second and third respondents are her
children. The third respondent has
a small baby and she is
unemployed and single the first respondent is also single.
The
first respondent is still awaiting the results of her application for
a low income house (RDP). She prays that the matter
be referred
for mediation in terms of section 7 of Act 19 of 1998 and she avers
that he mother’s house was not acquired by
the applicant in
good faith.
The
third respondent avers that it is the applicant who starts arguments
when he is intoxicated.
The
fourth respondent avers in his affidavit that he has been staying in
that “property” since 1683 and that he has
not been aware
that the applicant is the owner of the property until the eviction
proceedings were started. He just like
other respondents
questions the procedure followed when the applicant acquired
ownership of the property.
All
the siblings except the fourth respondent vacated “the
property” and lived elsewhere. The first, second and
third respondents returned to the property on or about 2010 and they
once more left the property. The further respondent
appears to
be the only respondent still staying with the applicant. The
respondents are alleged to be causing mayhem in that
they tune up the
radio to full blast, inconsiderate of the applicant’s six
children who have to study. The third respondent
is alleged to
be very provocative, vulgar and has had several confrontations with
the applicant and his children.
The
respondents deny the allegations and they say the applicant is
difficult and provocative when drunk.
It
is the applicant’s further contention that the balance of
convenience favours him and that the respondents be evicted.
4.
The Merits of the Application
The
respondents’ main defence is that they should not be evicted
from their “mother’s house”. They
say there
is a factual dispute regarding the property and who is/are the legal
owners thereof.
Applicant
had “the property” registered in his name and the
respondents were under the impression that they were only
choosing
him as the principal member. The respondents only became aware
of the situation once they received the eviction
application.
The respondents say that they have a legal right to stay there and
should not be evicted.
The
sixth respondent should have converted the ownership to all
respondents as well and was actually bound to do so. They
respondent never lawfully save consent to ownership of the property
to be transferred to the applicant and the applicant never
acquired
the property in good faith.
It
will not be just and equitable for the court to grant and order for
eviction as in terms of section 21(1)9a) and 2(1)(b) schedule
1 of
Land Tenure Rights Act 112 of 1991. Ownership was to be
converted to the name of the person in whose name the land tenure
right was registered immediately before conversion.
5.
The Law
5.1
Section 26 of the Constitution Act 108 of 1996 as amended states that
everyone has the right to
have access to adequate housing and
requires the state to take reasonable measures to realise that right.
Section
26(3) of the Constitution provides that:
“
No
one may be evicted from their home or have their home demolished
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
Eviction
proceedings by the owner of land are governed by sections 4(6),
section 4(7) and 6 of the Prevention of Illegal Eviction
form and
Unlawful Occupation of Land Act 19 of 1998 (PIE Act). Clearly
the legislature contemplated two categories of applicants
or evictors
– “an owner” and “an organ of state” an
owner would then include registered owner of
land.
The
PIE Act was also introduced to regulate the eviction process and to
afford property judicial oversight. It was enacted
to balance
the owner’s property rights and the occupant’s right to
access to housing,
Port Elizabeth Municipality v Various Occupiers
2005 1 SA 217
(CC).
A
court may refuse an eviction application if the respondent would be
rendered homeless and the granting of the eviction order would
not be
just and equitable in the circumstances.
Occupiers,
… Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
[2010] 4 All SA 54
(SCA)
In
terms of section 6(3) of the PIE Act in deciding whether it is just
and equitable to grant an order for eviction the court must
have
regard to –
(a)
the circumstances under which the unlawful occupier occupied the land
and evicted the building
or structure;
(b)
the period the unlawful occupier and is or her family have resided on
the land in question;
and
(c)
the availability to the unlawful occupier of suitable accommodation
or land.
Factors
mentioned in section 6(3) of PIE Act are not numerous clauses in
determining what is “just and equitable”.
Section
4 of PIE Act is of more relevance in this matter than section 6.
Courts
have stressed the need for fairness regard to the constitution, the
need to treat people with dignity and respect and the
responsibilities of government in providing housing.
Residents
of Joe Slovo Community, Western Cape v Thebelisha Homes and Others
2001 1 SA 46
(CC);
2000 (1) SACR 1169
(CC) 82-88.
Amongst
the relevant circumstances to which this court must have regard in
determining justice and equity are the rights and needs
of the
children the parties before court and a household headed by a woman
(1
st
and/or 3
rd
respondents).
5.2
The difficulty that the respondents face is that:
(a)
The applicant has a deed of transfer (T123967/2003) (VA3290/2012).
(b)
They never had the process leading to the appointment of the
applicant reviewed or appealed
against even when they became aware of
the notice of eviction.
(c)
The applicant’s contention is further that when he took over
“the property”
its approximate value was R20 000.00
(twenty thousand rand). He renovated the house by adding more
rooms and it is now
valued at R700 000.00 (seven hundred
thousand rand).
The
applicant is of the view that the respondents want to be unduly
benefitted because they do not want to pay rent or contribute
towards
renovation costs. He also renovated the house believing that it
is his property. He argues that he acquired
ownership thereof
in a transparent and
bona fide
manner.
(d)
Although the respondents contend that the dispute of ownership is
factual and that it should
be referred for mediation in terms of
section 7 of Act 19 of 1998, they have not taken any steps towards
mediation despite the
fact that these proceedings were started on
13 July 2012.
(e)
The matter is further complicated by the respondents’
non-appearance on a trial date
and failing to give any reason for
that.
5.3
Dispute of Fact
In
the case of
Room Hire Co (Pty) Ltd v Jeppe Street Mansions Ltd
1949 3 SA 1155
(T) it was decided that: –
If,
during an application, dispute of facts arise, the court must
exercise a discretion as determined in terms of rule 6(g) of the
Uniform Rules, to dismiss the application or refer the dispute to
oral evidence or to trial. This discretion must be exercised
judiciously.
The
approach to be adopted when confronted with disputes of facts in
motion proceedings has been set out in
Plascon Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A).
“
It
seems to me, however, that his formulation of the general rule and
particularly the second sentence thereof, requires some clarification
and perhaps qualification. It is correct that where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits of final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred in the
applicants affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent, justify such
an
order. The power of the court to give such final relief on the
papers before it is, however, not confined to such a situation.
In certain instances the denial by respondent of a fact alleged by
the applicant may not be such as to raise a real, genuine or
bona
fide
dispute of facts.
In
Thebe Ya Bophelo Healtcare Administrators (Pty) and Others v
National Bargaining Council for the Road Freight Industry and Another
2009 3 SA 187
(W) 19.
“
The
applicants seek final relief in motion proceedings. Insofar as
the disputes of fact are concerned the time-honoured rules
…
are to be followed. These are that where an application in
motion proceedings seeks final relief and there is no
referral to
oral evidence, it is the facts as stated by the respondent together
with the admitted or undenied facts in the applicants’
founding
affidavit which provide the factual basis for the determination,
unless the dispute is not real or genuine or the denials
in the
respondent’s version are bold or uncreditworthy, or the
respondent’s version raises such obviously fictitious
disputes
of fact or is palpably implausible or farfetched or so clearly
untenable that the court is justified in rejecting that
version on
the basis that it obviously stands to be rejected.”
The
respondents were present when the issue of registration and or
transfer of “the property” in the name of the applicant
was discussed. If it was not their intention to have “the
property” registered in the name of the applicant it
is
surprising that ever since they became aware of the registration and
the fact that notices of eviction were served on them,
they showed no
interest in rectifying the situation if indeed registration was to be
dealt with. The question now is whether
such a dispute genuine
or
bona fide
.
At
times a denial by respondent of fact which has been alleged by
applicant may be insufficient to raise a real genuine or
bona fide
dispute regarding the alleged fact. If in such a case,
respondent has not availed itself of the right to apply for the
deponent
concerned to be called and cross-examined in terms of rule
6(5)(g) of the Uniform Rules of Court and the court is satisfied as
to the inherent credibility of the factual averment of the applicant,
it may proceed on the basis of the correctness of that averment
and
include it within the factual matrix upon which it determines whether
applicant is entitled to the final relief sought,
Peterson v
Cuthbert Co Ltd
1945 AD 420
at 428-429.
5.4
Just and Equitable to Order Eviction
Courts
have stressed on the one hand the need for fairness, regard to the
constitution, the need to treat people with dignity and
respect and
on the other hand, the responsibilities of government in providing
housing and the purposes of the proposed evictions.
Residents
of Joe Slovo Community, Western Cape v Thebalisha Homes and Others
2010 3 SA 459
at para 199;
Government of the Republic of South
Africa and Others v Grootboom and Others
2001 1 SA 46
(CC);
2000
(1) BCLR 1169
at paras 82-88.
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
2012 2 SA 104
(CC) – “In determining whether the eviction of the
occupiers will be just and equitable it is necessary to address
–
(a)
the rights of the owner in a constitutional and PIE era;
(b)
the obligations of the city to provide accommodation;
(c)
the sufficiency of the city’s resources;
(d)
the constitutionality of the city’s emergency housing policy;
and
(e)
an appropriate order to facilitate justice and equity in the light of
the conclusions on
the earlier issues.
6.
Conclusion
From
the above reasons I make a finding that the prejudice the applicant
continues to suffer from if the relief is not granted outweighs
any
prejudice the respondents will endure. The applicant has
standing as the owner of “the property” to seek
the
eviction of the respondents. The first, second, third, fourth
and fifth respondents are unlawful occupiers, having no
right to
remain on the applicant’s property and having been given notice
by him to vacate his property.
I
therefore came to the conclusion “that it is just and equitable
to grant an eviction order after considering all the relevant
circumstances, including the rights and needs of children and the
plight of first and second respondents as women heading their
respective households.
The
applicant pays rates, taxes and renovation of the house while
respondents stay for free. The balance of convenience favours
the applicant whose children study under difficult circumstances
occasioned by unlawful occupiers.
Having
reached such a conclusion, I make the following order:
Order
1.
An eviction order is issued in terms of section 4 of the Prevention
of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of
1998 against the first, second, third, fourth and fifth respondents,
being the unlawful
occupiers of “the property” known as
house number 13 Madisha Street, Saulsville, Pretoria and any person
occupying
the property through them.
2.
The eviction order may be enforced if the respondents and any
person(s) occupying the
property through the respondents do not
vacate the property within two (2) months of the service on the
respondents of this order.
3.
The sheriff of this court is authorised to enlist the assistance of
members of the
South African Police Service to carry out the order
set out in paragraph 2 above, if needs be, subject to the condition
that the
sheriff shall at all times be present during the eviction.
4.
Each party to pay his/her costs.
D D MOGOTSI
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
Heard
on:
For
the :
Adv
Instructed
by:
For
the :
Adv
Instructed
by:
Date
of Judgment
: