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[2014] ZAGPPHC 237
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Govan Mbeki Municipality v Xaba and Others (45410/13) [2014] ZAGPPHC 237 (28 February 2014)
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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:
……………………)
ALL THE OTHER UNLAWFUL
OCCUPIERS RESIDING ON 2nd
RESPONDENT
And/or […….]
Also known as [……]
SAMUKELISIWE
NGEMA INTERVENING
PARTY
Identity number:
[……..]
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