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[2014] ZAGPPHC 173
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Tayob and Others v Mamabolo and Others (27591/2012) [2014] ZAGPPHC 173 (19 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 27591/2012
DATE:
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 3RD
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.
0n 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