About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 175
|
|
Motete and Another v Mogorosi (A20/2014) [2014] ZAFSHC 175 (18 September 2014)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : A20/2014
DATE:
18 SEPTEMBER 2014
In matter
between:
LAZARUS TUMELO
MOTETE
.........................................
First
Appellant
KEDIBONE MARTHA
MOTETE
..................................
Second
Appellant
And
LENTIKILE
CAMPBELL MOGOROSI
…............................
Respondent
CORAM: RAMPAI,
AJP et MOTLOUNG, AJ
HEARD ON: 11
AUGUST 2014
DELIVERED ON: 18
SEPTEMBER 2014
JUDGMENT
BY: MOTLOUNG, AJ
Introduction
[1] This is an
appeal against an eviction order. The respondent, successfully
applied for an eviction of the appellants from a residential
property. The appellants were aggrieved by the said order and now
seek an order whereby the occupation of the property is restored
to
them plus ancillary relief.
Facts briefly
[2] In his founding
affidavit, the respondent (applicant in the magistrate’s court)
alleged that he based his claim on an
alleged purchase and sale
agreement of a house (4126 Unit 1, Selosha, Thaba Nchu) that was
concluded between him and the North
West Housing Corporation (NWHC)
on the 21 September 2011, annexed to his founding affidavit as
annexure “A”. He alleged
that the couple was occupying
the property unlawfully since August 2010 (before he bought the
property) in terms of an oral lease
agreement with an unknown person,
in respect of which they were paying a monthly rental of R500.00. He
further alleged that he
was “the contractual purchaser and
person in control of the property”, and “was not aware of
any person with
better rights to the premises than [himself] in terms
of annexure “A”. He concluded by stating that the
appellants
did not have his permission to occupy the property, and
were thus illegally occupying it.
[3] The first
appellant (first respondent in the magistrate’s court) deposed
to the opposing affidavit (to which the second
appellant’s
confirmatory affidavit was annexed) in which he stated the following,
amongst others: He has been occupying the
the property together with
the second appellant “since around January 2004 when the
previous occupants, namely Mr and Mrs
Tubane vacated same. We
occupied the property with their knowledge and consent and since then
we have been in peaceful and undisturbed
possession thereof. I have
made a deed search at the deeds office and I was advised that the
property …has never been registered
in the name of any person,
natural or juristic. I submit therefore that the instance referred to
as the seller [NWHC] in what purports
to be a deed of sale annexed
…does not have the authority to dispose of the said property
as it is neither the owner nor
the agent of the owner of the
property”. He denied that he and the second appellant were
occupying the property illegally.
He also denied that the property
belonged to the respondent. He further denied that annexure “A”
conferred any rights
on the respondent. He pointed out the respondent
has never been in occupation of the property, and asserted that he
did not require
the respondent’s permission to occupy it as the
respondent was neither the owner or person in charge thereof.
[4] The respondent
filed no replying affidavit.
[5] This being an
application within the purview of the PIE Act, the respondent also
cited the relevant municipality, which did
not oppose the
application.
[6] The parties were
legally represented when the matter was heard in the magistrate’s
court on the 24 April 2013. The magistrate
found that the Deed of
Sale (annexure “A”, referred to hereafter as “the
Deed”) was valid, that the respondent
was the person in charge
and consequently had the locus standi to bring the eviction
proceedings against the appellants, and made
an order for the
eviction of both appellants, together with some ancillary relief. It
is that order that has come before us, on
appeal. The appellants
appeal the whole of the magistrate’s judgment and state a
number of grounds for their appeal, appearing
in their notice of
appeal filed on the 11 July 2013, appearing on pages 32 to 33 of the
record. The appellants also filed applications
for condonation for
non-compliance with the various time frames (which I do not deem
necessary to list for purposes of this judgment)
regarding the
prosecution of the appeal and the said applications were granted by
the court before the parties could argue the
merits of the appeal,
after the respondent indicated that there was no objection thereto.
Other facts
necessary to complete the appeal record
[7] There were no
issues raised between the parties regarding the procedural
requirements prescribed by the PIE Act, but the court
mero motu
pointed out that the section 4 (1) notice seemed to be defective as
it was signed by the respondent’s attorney
instead of by the
clerk of court - as the notice is actually a notice by the court, and
that annexures B and C alleged to be annexed
to the founding
affidavit to the eviction proceedings were not attached to the
record, and the NWHC was not cited as a party to
the proceedings,
despite it apparently having a substantial interest in the matter.
The court, however, indicated that it would
proceed to hear the
appeal on the merits, having noted the said points so that the
parties could deal with them if necessary, and
reserved its right to
deal with these points later in its judgment if necessary.
[8] In the heads of
argument and during argument, Mr Litheko, on behalf of the appellant,
raised a whole range of grounds of appeal.
These grounds were:
8.1. The allegation
that the magistrate only afforded the parties an opportunity to
address him on the points-in-limine that had
been raised by the
appellants (both pertaining to the validity of the Deed) but failed
to afford them an opportunity to address
him on the merits, before
proceeding to deliver the judgment.
8.2. The magistrate
erred in finding that the Deed was valid despite having being signed
by one official or representative of the
NWHC (instead of two in
terms of section 22 of the NWHC Act), and despite not specifically
mentioning the name of the single person
who signed on its behalf.
8.3. The magistrate
erred in finding that the NWHC was the owner of the property and thus
had the authority to dispose of it, by
selling it to the respondent.
8.4. The magistrate
erred in finding that the respondent was the person in charge of the
property as a result of having purchased
it from the NWHC.
8.5. The magistrate
erred in finding that the appellants were in unlawful occupation of
the property.
8.6. The magistrate
erred in finding that an eviction order should have been authorized
against the appellants. In this respect
the appellants mentioned a
number of grounds on the merits, which I do not deem necessary to
mention in this judgment because of
the reasons I have used to come
to my judgment.
8.8 Mr Litheko
submitted that the court has to determine, in the main, whether the
Deed of Sale between the NWHC is valid or not,
and related to that,
whether the respondent has the locus standi to bring the eviction
proceedings (i.e. whether the respondent
is an owner or person in
charge).
[9] On the other
hand, Mr Mazibuko, on behalf of the respondent, submitted that:
9.1. Even though
section 22 of the NWHC Act 24 of 1982 requires signatures of the
General Manager or Chairman of the Board and any
other member of the
Board duly authorized thereto by the Board, or if so authorized by
the Board, any two members of the Board
or the General Manager and
any officer of the NWHC, the court should find that the Deed of Sale
is valid because both parties to
the agreement have performed in
full.
9.2. The title of
the NHWC to the property, which previously fell under the
Bophuthatswana Housing Corporation, now vests in the
NWHC as
previously decided by this court in the unreported judgment of Khoete
Churchill Khoete v Judith Nomathemba Dimbaza in the
appeal case
number A448/2007.
9.3. On the strength
of the Khoete decision, the NHWC is entitled to conclude the Deed of
Sale, and once concluded, the purchaser
becomes the person in charge,
and consequently endowed with the locus standi to institute the
eviction proceedings.
9.4. On the merits
of the matter, the magistrate was correct in finding that the
eviction was just and equitable. He provided a
number of reasons for
this submission, which I do not deem necessary to mention here
because of the reasons I used to come to my
judgment.
The issue to be
decided
[10] Counsel for
both parties spent most of their time arguing the question of whether
or not the respondent had the locus standi
to initiate the eviction
proceedings against the appellants, in terms of PIE Act, and I am of
the view that this is indeed the
main question to be decided by this
court, after which it may or not become necessary to examine other
issues raised on appeal.
Some of the
applicable legal principles
[11] The
requirements to be met before a court may order an eviction from a
residential property in terms of the PIE Act are found
in the Act
itself. I deem the following provisions of the PIE Act (regarding
the requirements for eviction) to be relevant to
the determination of
this matter:
11.1. Section 4 (1)
states the following:
“Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to
proceedings by an owner or person
in charge of land for the eviction of an unlawful occupier” (my
emphasis).
11.2.The other
subsections of section 4 state what the procedural requirements are
for an application for eviction.
11.3. Section 2
states that the Act applies in respect of all land throughout the
Republic of South Africa.
11.4. Section 11 (3)
states that:
“Any law in
force in those parts of the Republic which formerly constituted the
national territories of the entities known
as Transkei,
Bophuthatswana, Venda, Ciskei, Gazankulu, KaNgwane, KwaZulu,
KwaNdebele, Lebowa and QwaQwa, is hereby repealed to
the extent that
such law is inconsistent with or deals with any matter dealt with by
this Act” (my emphasis).
11.5. Section 1
provides the definitions applicable to the Act and the following are
the ones relevant to subsection 4 (1) referred
to above:
11.5.1. “Owner”
means the registered owner of land, including an organ of state”.
11.5.2. “Person
in charge” means a person who has or at the relevant time had
legal authority to give permission to
a person to enter or reside
upon the land in question.
11.5.3. “Unlawful
occupier” means a person who occupies land without the express
or tacit consent of the owner or person
in charge, or without any
other right in law to occupy such land, excluding a person who is an
occupier in terms of the
Extension of Security of Tenure Act, 1997
,
and excluding a person whose informal right to land, but for the
provisions of this Act,
would be protected
by the provisions of the Interim Protection of Informal Land Rights
Act, 1996 (Act No. 31 of 1996) (my emphasis).
11.5.4. Section 22
of the North-West Housing Corporation Act 24 of 1982 requires
signatures of the General Manager or Chairman of
the Board and any
other member of the Board duly authorized thereto by the Board, or if
so authorized by the Board, any two members
of the Board or the
General Manager and any officer of the NWHC for a binding disposition
of the property of the NHWC.
Applying the
above legal principles to the facts of this case
[12] None of the
parties addressed the court as regards the points mentioned by the
court mero motu mentioned above, and I am satisfied
that nothing
turns on them and that the appellants were not prejudiced by the
defective section 4(1) notice as regards the signature
thereof,
especially because the appellants have not claimed prejudice from
such non-compliance. Therefore, this matter will be
decided without
any further reference to the points initially raised mero motu by the
court. I will thus approach this matter on
the basis that all the
procedural requirements of the Act are deemed to have been complied
with and this aspect can be regarded
as closed.
[13] The first
question to be answered is whether the respondent is either the owner
or the person in charge of the property in
question, as defined in
the PIE Act. If the respondent is neither nor, then the respondent
cannot qualify as a person or entity
entitled in law to bring
eviction proceedings in terms of the Act, and that should be the end
of the enquiry regarding whether
the magistrate’s eviction
order was valid or not. In legal parlance, it would mean that the
respondent lacks the necessary
locus standi to bring the eviction
proceedings. However, if the respondent has the locus standi, the
court must proceed to check
whether all the substantive requirements
of the Act have been met for the respondent to be entitled to an
eviction order.
[14] An owner is
defined as the person or entity in whose name the property is
registered. This means registered in the deeds registry.
On the facts
of this case, there is no dispute regarding the fact that the
property is not registered in the name of the respondent
(or the
NWHC, which was never a party to this case). Even if there was a
valid purchase and sale agreement between the owner of
the property
and the respondent (i.e. a valid Deed), the respondent would not have
qualified as an owner unless and until transfer
of the property to
his name had been effected, by registering such transfer in the deeds
register. This means that the respondent
has no locus standi as an
owner of the property, and thus cannot use PIE Act to evict the
appellants in that capacity.
[15] This takes me
to the second level of the enquiry, being whether the respondent
qualifies, in the alternative, as a person in
charge of the property
as envisaged by the PIE Act. A person in charge is defined in the Act
as one who has legal authority (meaning
the authority or power at
law, whatever the source thereof, be it from contract or a statutory
provision etc) to give permission
or allow another to enter or occupy
the property, or conversely, who has authority to refuse another
permission to enter or occupy
the property.
[16] At common law,
one needed to be either an owner or lawful occupier in order to be
clothed with the authority to initiate eviction
proceedings. The
definition of “a person in charge” has therefore extended
the category of persons or entities that
could qualify to bring
eviction proceedings, without being necessarily an owner or someone
already in occupation.
This opened room for
persons or entities who are not owners and have never been in
occupation of the property to be able to bring
eviction proceedings,
subject to one qualification: such person or entity must have the
legal authority to allow or refuse entry
or occupation of such
property. In other words, as long as the person or entity has some
legal basis or entitlement (whatever the
source) to have the said
authority. An owner obviously has such authority. The same goes for a
lessee who occupies in terms of
a valid lease or who has been
conferred with the authority by the owner or landlord, or is
subleasing lawfully in terms of a valid
lease agreement, although not
in occupation then or was never in occupation before.
[17] A fairly recent
appeal decision in this division, of Khoete Churchill Khoete v Judith
Nomathemba Dimdaza (unreported) Appeal
Number A448/07, a decision
delivered on the 12 November 2009, by Van Zyl J, a judgment in which
Mocumie J concurred, is very instructive.
The facts of that case were
almost similar to those of this case, although distinguishable in a
number of material respects, as
appears later in this judgment. Just
like in this case, the applicant in that case initiated eviction
proceedings against the respondent,
relying for his entitlement to
the property on a written Deed of Sale concluded with the NWHC (a
government entity in the former
Bophuthatswana homeland). The
applicant had subsequent to concluding the agreement, found the
respondent in occupation of the property.
Although the respondent
opposed the application on a number of grounds, on appeal the
respondent only persisted with the grounds
that the applicant did not
have the locus standi as she was neither the owner nor the person in
charge of the property, and the
respondent also denied that he was in
unlawful occupation of the property. The respondent had further
contended that the property
was not the property of the NWHC but that
of the government of the RSA, as the government of the RSA had taken
over ownership of
all property belonging to the then Bophuthatswana
government. On the basis hereof, the NWHC was not authorized to
transfer any
right of ownership to the applicant as it was neither
the owner nor the person in charge as defined in the PIE Act, so
contended
the respondent. The respondent also stated that he was
renting the property from some Mr Tshikare who in turn based his
right to
occupy on a Certificate of Occupation issued to him by the
Department of the Interior of the former Bophuthatswana government,
who had in turn leased the property to him in terms of a verbal
agreement.
[18] After an
extensive investigation of the history of the succession to the title
of the said property, the court stated the following
at paras [20] to
[24]:
“The result of
the aforesaid, in my view, is that the North-West Housing Corporation
was now vested with the authority to
deal with the current property
in terms of the North-West Housing Corporation Amendment Act, 9 of
1994, read with the principal
Act, and furthermore in terms of the
terms and conditions set out in Proclamation No. 293 of 1962.
Regulation 11 of the
aforesaid Proclamation prohibits the subletting of the property
without the permission of the landlord, in
this instance the
North-West Housing Corporation, whilst section 23(1)(a)(iii)
prohibits an occupant to abandon or to fail to occupy
a unit referred
to in the Certificate of Occupation for a period in excess of two
months, unless he / she shall have obtained prior
permission in
writing from the landlord. Because of the aforesaid reasons,
regulation 23(1) entitled the management of the landlord,
in this
instance the North-West Housing Corporation, to terminate the lease
agreement that was granted to Mr Tshikare in terms
of the Certificate
of Occupation.
This is exactly what
has been done by the North-West Housing Corporation in terms of the
letter dated 5 May 2005, exhibit A, page
46 of the record. I
therefore find that the cancellation of the Certificate of Occupation
was a valid cancellation.
Considering that the
rights that vested in the North-West Housing Corporation in terms of
section 20 of the North-West Housing Corporation
Amendment Act, the
North-West Housing Corporation was, subsequent to the cancellation,
fully entitled to have concluded a Deed
of Sale with the applicant in
terms of the Deed of Sale attached to the founding affidavit as
annexure “A”. …The
applicant’s entitlement
to the property as a “legal occupant” thereof, was
furthermore also confirmed in the
last paragraph of the letter dated
5 May 2005, exhibit A, addressed by the North-West Housing
Corporation to Mr Tshikare.
In the result I am
satisfied, as was the court a quo, that the applicant discharged the
onus of proving that she, at the time of
the institution of the
application, was the person in charge of the property and further
discharged the onus of proving that the
respondent was and still is a
lawful occupier of the property in that he does not have the consent
of either the owner (currently
still the North-West Housing
Corporation) nor the person in charge (the applicant) nor does he
have any other right in law to occupy
the said property”.
The court went on to
find that there was no merit in the appeal and dismissed it. I have
quoted fairly extensively from the said
decision as I am of the view
that it is relevant to answering the question whether the respondent
qualifies as the person in charge
of the property, as will become
clear later on in this judgment.
[19] Applying the
Khoete decision to the facts of this case mutatis mutandis, I make
the following findings:
19.1. The NWHC is
not registered as the owner of the property in the deeds registry.
Whilst I take cognisance of the fact that the
court in the Khoete
decision used the word “owner” in respect of the NWHC as
regards the property, in the circumstances
of this case I cannot find
that the NWHC qualifies as owner of the property in this case, as the
property is not registered in
its name in the deeds register. In my
view, on the strength of the Khoete decision, the NWHC would qualify
as “a person in
charge” – as an entity bestowed
with legal authority (per statutory promulgations) to either allow or
refuse someone
entry to or occupation of the property. This means
that the NWHC is vested with the authority to deal with the property
in terms
of the North-West Housing Corporation 24 of 1982, as amended
(in particular as amended by the North-West Housing Corporation Act
Amendment Act 9 of 1994), read with Proclamation No. 293 of 1962, and
thus the NWHC has the authority to dispose of the property.
19.2. One of the
ways of disposing the property would be the conclusion of Deeds of
Sale with purchasers. Therefore, the NWHC is
entitled to conclude a
Deed of Sale with the respondent.
19.3. However, the
Deed of Sale concluded with the respondent must comply with all other
legal requirements for a valid agreement.
In particular, the Deed of
Sale must comply with the provisions of section 22 of the North-West
Housing Corporation Act 24 of 1982,
which requires signatures of the
General Manager or Chairman of the Board and any other member of the
Board duly authorized thereto
by the Board, or if so authorized by
the Board, any two members of the Board or the General Manager and
any officer of the NWHC.
19.4. On the facts
of this case, the Deed of Sale (annexure “A”) does not
meet the requirements of section 22 as it
was signed by only one
representative, whose status was not stated or declared, and there is
no indication whether such official
was duly authorized by the Board
to act for the NWHC in respect of the said transaction or not. The
magistrate’s finding
that the simple signing of the Deed of
Sale despite all the shortcomings mentioned above is clearly
incorrect. Therefore, the respondent
could derive no rights
whatsoever from the invalid Deed, just like the NWHC could not
dispose of the property or confer any rights
to anyone in terms of an
invalid Deed.
19.5. The submission
made by Mr Mazibuko that the Deed of Sale should be deemed to be
valid despite the shortcomings alluded to
above, together with the
authorities he referred us to, do not assist the respondent’s
case, as the principle referred to
by him and the said authorities
only apply where both parties to the transaction have performed in
full. In this respect, the Deed
of Sale states the following at
clause 5:
“Delivery and
possession of the property: Possession and vacant occupation of the
property shall be delivered to the Purchaser
on transfer or such
earlier date as mutually agreed upon by the parties, from which date
it shall be at the sole risk, loss or
profit of the Purchaser”
(my emphasis).
Clause 12 of the
Deed of Sale constituted a non-variation clause, requiring that any
change to the Deed be in writing and signed
by both parties. As the
property had not yet been transferred to the respondent, there was no
performance in full by both parties,
and thus the respondent cannot
find support in the submission of full performance by both parties.
19.6. This also
means that even if the Deed was found to be valid, which it is not as
already stated above, in the absence of a
written agreement to
deliver vacuo possessio on an earlier date than upon transfer of the
property, the respondent would have no
right or entitlement to occupy
the property, and thus cannot qualify as a person in charge (as a
lawful tenant or lessee) in terms
of the Deed.
[20] In the light of
my findings stated above, I come to the conclusion that the
respondent was neither the owner nor the person
in charge of the
property, and thus had no locus standi at the time of instituting the
eviction proceedings. This means that the
magistrate was incorrect in
finding that the Deed was valid and that the NWHC duly conferred the
rights of a person in charge to
the respondent.
This being so, it
becomes unnecessary to even investigate or explore whether the
appellants were unlawful occupiers or not. It is
even lesser
necessary to examine what the rights of the appellants, if any, were
to the property or whether the circumstances that
must be taken into
account before an eviction order may be issued existed or not at the
time of initiating the eviction proceedings.
This also means that it
is unnecessary to examine all other grounds raised by the parties in
the appeal (apart from the one I have
already dealt with, regarding
whether the respondent was either owner or person in charge).
Ordinarily, once I have come to the
conclusion that the respondent is
neither an owner nor a person in charge, that would be the end of the
enquiry, as stated above.
[21] I, however,
find it necessary to mention that the Khoete decision would not have
assisted the respondent in any case, as the
facts thereof were
distinguishable from those of this case. In that case, unlike in this
case, there was no challenge to the validity
of the Deed of Sale
based on whether all the necessary signatures had been attached. In
that case the challenge was based on the
allegation that the property
did not belong to or the NWHC did not have the authority to deal with
it, and the court found that
the NWHC inherited the authority to deal
with the property through a statutory promulgation. I have already
stated above that the
challenge to the validity of the Deed, in this
case, was mounted on non-compliance with section 22 of the NWHC Act.
Furthermore,
the NWHC had served a letter of termination of the
leasehold enjoyed by the respondent in terms of the terms and
conditions set
out in Proclamation No. 293 of 1962, which is not the
case here. The NWHC had also confirmed the right of the applicant to
occupy
the property in that case. There were no such allegations or
facts in this case. Even in the Khoete decision, the court would have
most probably found that the “huur gaat voort koop”
principle would have operated against the NWHC if it had not lawfully
terminated the (original) lease by giving due notice of such
termination to Mr Tshikare (which would have meant, in this case,
that the NWHC should have first terminated the right to occupy of the
Tubane’s in this case, which was not alleged or proven).
[22] Because of my
reasons for concluding that the magistrate was wrong in granting the
eviction order, it is unnecessary to examine
the possibility of
succumbing to Mr Mazibuko’s alternative prayer during argument,
to the effect that if we find that there
were insurmountable
irregularities with regard to the Deed of Sale, which he finally
conceded, that we should remit the matter
back to the magistrate, so
that he may consider all the relevant factors. No useful purpose will
be served by such referral as
the respondent’s application was
fundamentally defective for lack of jurisdictional facts that would
even entitle the court
to examine all the factors relevant to an
eviction in terms of the PIE Act. This appeal must therefore fail.
[23] There is no
reason why the ordinary rule of the costs following the result should
not apply. After all, there was no argument
to the contrary. These
costs should include both the costs in the court below and the costs
of this appeal.
[24] In the
premises, I propose the following order: The appeal is dismissed,
with costs, including the costs in the court below.
I. MOTLOUNG, AJ
I agree.
RAMPAI, AJP
For appellants:
Mr Litheko
Instructed by:
Litheko Motsoeneng Incorporated
Thaba Nchu
For respondent:
Mr MS Mazibuko
Instructed by:
Moroka attorneys
Bloemfontein