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[2014] ZAGPPHC 44
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Govan Mbeki Municipality v Xaba and Another (45410/13) [2014] ZAGPPHC 44 (28 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(THE
REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 45410/13
DATE:
28/2/2014
In the matter
between:
GOVAN MBEKI
MUNICIPALITY
......................................................................................
APPLICANT
And
MMABOTHINI
VICTORIA
XABA
........................................................................
1st
RESPONDENT
(Identity number:
5……………………….)
ALL THE OTHER
UNLAWFUL OCCUPIERS RESIDING ON
........................
2nd
RESPONDENT
And/or OCCUPYING
ERF 3……….., E….. 7…., S…..,
Also known as 11
W…. STREET, S….., M……
SAMUKELISIWE
NGEMA
….......................................
INTERVENING
PARTY
Identity number:
9……………
REASONS FOR JUDGMENT
RAULINGA J,
[1] This matter
concerns the eviction of the respondents from the immovable
properties of the applicant in compliance with section
5 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land,
Act No 19 of 1998(“the Act”).
[2] On the 4 October
2013, the applicant brought four urgent applications against several
respondents which were heard together.
Because of the similarity of
the facts and the commonality of the respondents, I will refer the
matter as “the application”
and the respondents as the
“the respondents”. The respondents involved in this
application are M V Xaba Case No 454101/2013,
L R Bosini Case
No45411/2013 R Adams Case No 45412/13 and NE Kunene Case No 43413/13.
[3] On the 4 October
2012 I ruled that the matter is urgent and made an order which I can
paraphrase in the following terms:
(i) That the
respondents are ordered to vacate the properties as stated in the
notices of motion(herein referred to as (“the
properties”)
on or before Wednesday 1 January 2014;
(ii) Should the
respondents fail to comply with the order referred to in paragraph 1
of each of the notice of motion, the Sheriff
of this Court and/or
his/her Deputy is authorised and/or mandated to take all necessary
steps to execute the orders and to evict
the respondents from the
properties and, if necessary, to obtain the assistance of the South
African Police Services to assist
him/her in this regard;
(iii) These orders
should be served on the respondents immediately and or forthwith; and
(iv) The respondents
are ordered to pay the costs of this application jointly and
severally the one paying the others to be absolved.
[4] After handing
down the said orders, I indicated that if any party wished that I
furnish my reasons for judgment, such request
should be done within
ten days of the date of the order having been given. All the
respondents made such a request on the 21 October
2013, which was
still within the acceptable time.
[5] In February
2012, the applicant took a resolution to sell certain houses. The
respondents were given the first option to purchase
the properties
and were advised to indicate their intention to buy the properties
within a period of three months and in the event
that the respondents
decide not to purchase the properties, to vacate the properties
before the expiry of the next three months.
The respondents confirmed
same and made offers to purchase the properties at certain purchase
prices respectively. The applicant
accepted the respondents’
offers to purchase the properties within the agreed period. The
respondents were each obliged to
present a bank guarantee to the
conveyancing attorneys within a period of 14 days after acceptance of
the aforementioned offers,
payable free of exchange on date of
registration of the transfers. As a consequence valid and binding
agreements of sale came into
existence.
[6] The respondents
failed to comply with the suspensive condition that they had to
obtain a mortgage loan to finance the purchase
prices within a period
of 30 days. The respondents were granted extension within which they
had to comply with the suspensive condition
but to no avail.
[7] When it became
apparent that the respondents were not in a position to comply with
their obligations, the applicant sold the
properties to potential
purchasers who made reasonable offers which could match market
related prices. The said purchasers complied
with their obligations
and the said properties were sold to them.
[8] The applicant
has complied with section 5(2) of the Act in that section 4(2)
notices were served on the respondents. Further
the section 5(2)
notices were accordingly served on the respondents.
[9] It is indeed
true that the respondents have been occupying the properties for a
long time. There are children and households
headed by women
occupying the said properties. The issue to be determined is whether
it is just and equitable as contemplated in
section 5(8) of the Act
whether the respondents should be evicted from the said properties
considering the factors mentioned above.
[10] In the first
instance, the respondents concluded valid and binding agreements with
the applicant to buy the properties. All
the respondents failed to
meet their obligations, despite the fact that they were granted
extension of time. The rights of children
and those of household
headed by women will not be affected in that the applicant is
providing alternative and suitable accommodation
in Secunda/Evander
for rental purposes. Further, the respondents are employees of the
applicant who receive monthly salaries. It
follows therefore that
they can afford to meet the rental for the available accommodation.
[11] Section 26 of
the Constitution must not be construed to convey an interpretation
that obliges the applicant, (as a municipality)
to provide
accommodation to its employees. The first port of call for the
application of section 26 is to provide suitable accommodation
to the
indigent people. The case for the respondents is plagued further by
the fact that the applicant is offering alternative
accommodation at
reasonable rental. The requirements of section 26 have therefore been
met by the applicant. It follows that the
application must be granted
in favour of the applicant.
[12] In the premises
the order I made on 4 October 2013 stands.
TJ RAULINGA
JUDGE OF THE
NORTH GAUTENG HIGH COURT