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[2013] ZAGPPHC 61
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Mulea v Fourie NO (54595/2012) [2013] ZAGPPHC 61 (18 February 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 54595/2012
DATE:18/02/2013
In
the matter of:-
M
C
MULEA
….....................................................................................................................
Applicant
…
...........................................................................................
(First
Defendant in proceedings a quo)
and
J
F FOURIE N.O.
…........................................................................................................
Respondent
…
........................................................................................................
(Plaintiff
in proceedings a quo)
JUDGMENT
: REASONS FOR ORDER GRANTED ON 15 FEBRUARY 2013
Van
der Byl AJ:-
[1]
On 15 February 20131 dismissed, with costs, the application for leave
to appeal and indicated that written reasons would follow.
These are
the reasons.
(I
will, for the sake of convenience, refer to the parties as they were
cited in the proceedings a quo)
[2]
In terms of an order granted on 21 December 2012 I, in addition to
the usual order of costs, ordered in summary judgment proceedings
-
(a)
THAT the First Defendant and ail those occupying through her the
property situate at 703 Rubenstein Drive, Moreleta Park, (“ffte
Property) be directed to vacate the Property not later than 31
December 2012 or such later date as the Plaintiff may in his sole
discretion determine.
(b)
THAT, in the event of the First Defendant and any of those persons
occupying through her failing to vacate the property as directed
in
paragraph 1 of this order, she may be evicted by the Sheriff of this
Court and, if necessary, with the assistance of members
of the South
African Police Service, provided that the Sheriff must at all times
be present during such eviction.
[3]
in a Notice of Application for Leave to Appeal served on the
Plaintiff’s attorneys of record on 27 December 2012, the
First
Defendant now seeks leave to appeal against my judgment and order.
[4]
As is apparent from my judgment -
(a)
the Plaintiff addressed and delivered a letter to the occupants of
the property on
27
September 201 informing them that it is his duty to dispose of the
property and gave them notice to vacate the property no later
than 31
October 2011 and indicated that no monthly rental has been received
from any one of them in respect of their occupation
of the property;
(b)
that the Plaintiff, not having received any response from the
occupants and on their obvious refusal to vacate the property,
issued
summons against the First Defendant on 19 September 2012 claiming an
order for payment of R300 000 and the eviction of the
First
Defendant;
(c)
that, on the First Defendant having filed a notice of intention to
defend, the Plaintiff filed an application for summary judgment
on 22
October 2012 and enrolled the matter for hearing on 15 November 2012
seeking orders as claimed in the Particulars of Claim;
(d)
that, in an opposing affidavit filed by the First Defendant on 6
November 2012 she raised -
(i)
a point in limine that the Plaintiff has failed to obtained an order
in terms of section 4(2) of the Prevention of Illegal Eviction
from
and Unlawful Occupation of Land Act, 1998 (Act 19 of 1998) (“the
Act') and that the amount of R300 000 is not a claim
for a liquidated
amount;
(ii)
a defence that she occupied the property since 15 March 2009 pursuant
to
a lease agreement concluded with Ms Wakefield and that she on 31
August 2009 entered into another lease agreement with ABSA Bank
after
having been informed that Ms. Wakefield is no longer the owner of the
property.
[5]
I rejected for reasons apparent from my judgment both these defences.
[6]
In the Notice the First Defendant now seeks leave to appeal ub effect
on the
grounds
thereof -
(a)
firstly, that I erred in g ranting an eviction order when no proof
was furnished that a notice in terms of section 4(2) of PIE
was
served on the Second Defendant in terms of Rule 4;
(b)
secondly, that I erred in finding that the lease agreement entered
between the First Defendant and the Plaintiff’s predecessor
was
lawfully terminated and that I should have held that the lease
agreement was not so terminated as the Plaintiff has not given
notice
in terms of clause 14.1.2 of that agreement;
(c)
thirdly, that I misdirected myself in concluding that the provisions
of section 4(7) of PIE have been complied with when it
was not
possible to consider whether land can reasonably be made available
for the relocation of the First Defendant.
[7]
In relation to the first of those grounds, it is, apart from the fact
that such a notice
was
delivered at the Second Defendant’s offices and received by its
“Litigation Section", it was in argument contended
that it
was not served by the Sheriff in terms of Rule 4. This is not an
issue raised in the papers or in argument before me in
the
proceedings a quo. I am satisfied that the Second Defendant did
receive proper notice of the section 4(2) application and the
order
granted under that section.! fail to see that another Court will
interfere with my judgment and order merely on this ground.
[8]
In relation to the second of those grounds, it is clearly provided in
clause 3.2 of the lease agreement that after the termination
of the
agreement by effluxion of time on 30 September 2009, it would
continue on a month to month basis terminable by any party
with one
month’s notice “provided that the lessee has faithfully
carried out the terms and conditions and provided
that the lessee was
not at default at the time of the expiration of the lease". The
First Respondent’s contention that
the Plaintiff failed to give
due notice of termination can, bearing in mind that the First
Defendant admittedly failed to pay as
she was required to do in terms
of the agreement the agreed rental, for at least two reasons not be
sustained. Firstly, the continuation
of the agreement is, according
to the proviso, dependent on her having complied with the agreement
which she admittedly failed
to do so that the agreement expired on 30
September 2009, Secondly, the provisions of clause 14 of the
agreement cannot find any
application as she was in breach of the
agreement and in any event was indeed given notice of termination on
29 January 2010. There
in my view in these circumstances no
reasonable prospects that another Court may come to a different
conclusion.
[9]
In relation to the third of those grounds, the First Defendant
elected, apart from
relying
on the lease agreement, not to any circumstances envisaged in section
4(7) being circumstances which fall peculiarly within
her own
knowledge. She obviously did not do so because she did not regard
herself as an “unlawful occupier” was accordingly
not
provided with any information which would have enable me to consider
the circumstances envisaged in that section. She in any
event clearly
appears not to be an indigent person. In my view there are also here
no prospects of success on apepal.
[10]
I have no doubt that the First Defendant’s application for
leave to appeal has been launched merely in an attempt to
delay, to
the prejudice of the Plaintiff, her inevitable eviction from the
Property.
[11]
It is for these reasons that I made the order referred to in
paragraph [1] of this judgment.
.........
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT: MR B MOHLABA
MOHLABA
& MOSHOANA INC
230
Malherbe Street Capital Park
PRETORIA
Ref:
Mr Mohlaba/ETB/CIV/M 0934/12
Tel:
012 326 2529
ON
BEHALF OF THE RESPONDENT: ADV J J GREFF
On
the Instructions of KEMP DE BEER & GOOSEN ATTORNEYS
317
Paul Kruger Street Caiptal Park
PRETORIA
Ref: W S Badenhorst 012 321 1105
DATE
OF HEARING AND ORDER:15 February 2013
REASONS
FURNISHED: 18 February 2013