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[2013] ZAGPPHC 125
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Tayob N.O and Others v Mamabolo and Others (27591/12) [2013] ZAGPPHC 125 (16 May 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 27591/12
DATE: 16/05/2013
IN
THE MATTER BETWEEN:
SO
TAYOB NO AND
OTHERS
..............................................................................
Applicant
and
JOHN
MAMABOLO AND
OTHERS
.....................................................................
Respondent
JUDGMENT
LEDWABA
J:
[1]
This is an application for eviction which is opposed.
[2]
Omtay Property Holding Trust (“the trust”), the trustees
thereof being the applicants, is the owner of the property
situated
at 66 Paul Kruger Street, Polokwane (“the property”) in
the Limpopo district. It purchased the property from
Mr Tzu-Tsung
Huang (“Mr Huang”) and the property was registered in its
name on/or about 13 February 2008 when Mr Jacob
Molebatse (“Mr
Molebatse”) was still in occupation of the property.
[3]
In about June 2008 the trust instituted eviction proceedings against
Mr Molebatse in the Magistrate Court in Polokwane under
case number
3340/2008 and an eviction order was granted in the trust’s
favour.
[4]
In October Mr Molebatse together with one Mr Mogashoa who was joined
as a second applicant filed an application for the rescission
of the
default judgment granted in favour of the trust. In the said
application Mr Mogashoa, inter alia, alleged that he was the
owner,
because he concluded a contract of sale with Mr Huang in respect of
the property and he further stated that he leased the
property to Mr
Molebatse.
[5]
The eviction order was rescinded and the matter went on trial. After
the trial proceedings were finalized, the court granted
an eviction
order in favour of the trust. Mr Molebatse filed an appeal which
lapsed in about November 2011 because no steps were
taken to
prosecute in to finality.
[6]
The trust instructed the sheriff to evict Mr Molebatse and Mr
Mogashoa from the property only to find that the property is now
occupied by the first respondent herein, Mr John Mamabolo, and the
second respondent whose particulars are unknown to the trust.
[7]
The trust has now filed this eviction application against the first
and second respondents. One of the points in limine raised
by the
respondents is that there is a pending action in the Polokwane
Regional Court under case number LP/PLK/RC372/2012 issued
by Mogashoa
in April 2011 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 of the property to him, Mr Mogashoa.
The action has not yet
been finalized.
[8]
Even though the applicants’ counsel argued that there is no
merit in Mogashoa's pending action. I do not wish to express
my view
in respect of the pending action in the Regional Court and the said
court will deal with the matter at the hearing. However,
I have been
made aware that Mr Mogashoa is presently receiving some rental monies
from Mr Mamabolo. I will deal with this aspect
later.
[9]
It is indeed so that there is a dispute regarding the alleged
agreement of sale between Mr Huang and Mr Mogashoa. There is a
pending action that relates to the said issue. It is imperative that
the said action should reach finality.
[9]
What should further be considered is that the delay in the
finalization of the said action proceedings is prejudicial to the
applicants herein and obviously Mr Mogashoa is benefitting by
receiving the rental monies.
[10]
Whether the relief sought by the applicant herein should be granted
or not depends on the outcome of the pending proceedings.
[11]
I think that the trust should have been joined as a party to the
action proceedings.
[12]
The respondents, further submitted that also the principle of 'Huur
Gaat Voor Koop’ is applicable and the principle should
be
applied in favour of the respondents.
[13]
As to whether the principle is applicable in casu is an issue that
can be determined after the validity of the contract of
sale between
Mr Huang and Mr Mogashoa has been finalized.
[14]
What further complicates this application is that Mr Mogashoa is not
a party to the proceedings before me. I am concerned that
if I do not
adopt what I may be regarded as judicial activism, justice may not be
seen to be done and prejudice to the rightful
owner of the property
may be unduly and unjustifiably perpetuated by delaying tactics in
this matter.
[15]
I think the order I am going to grant will also accelerate the
finalisation of the issue between the parties. In terms of our
Constitution, everyone is equal before the law and has the right to
equal protection and benefit of the law.
[16]
I requested both counsel to address me on the question of how would
the respondents be prejudiced if I order that the rental
monies be
paid into an attorneys trust account. The respondents counsel
submitted that the respondents may be evicted by Mr Mogashoa.
[17]
The Lease agreement between Mr Mogashoa and the first respondent
handed to the court in respect of the property is for a period
of ten
(10) years and it commenced on 1 December 2007. The first respondent
paid a deposit of R7000.00 and the monthly rental is
R3500.00. The
premises according to the lease are used for the purpose of
accommodation.
[18]
After carefully considering the background facts of this case and the
pending action, furthermore to protect the interests
of the
respondents I make the under mentioned order keeping in mind that the
rental monies would be protected and Mr Mogashoa is
not prejudiced.
[19]
I make the following order:
19.1
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.
19.2
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 authorized by this court.
20.3
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.
20.4
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 authorising such eviction.
20.5
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 attorney trust account in terms of
the lease
agreement the applicant may set this matter down for hearing.
20.6
Costs reserved.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 12 April 2013
FOR
THE APPLICANT: Adv D Prinsloo
INSTRUCTED BY: J J J Heunis Attorneys,
Pretoria
FOR
THE RESPONDENT: Adv K Fitzroy
INSTRUCTED
BY: Poela Maake Attorneys , Pretoria