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[2013] ZAGPPHC 140
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Kaufman v Els and Others (75253/10) [2013] ZAGPPHC 140 (3 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
Number: 75253/10
DATE:03/06/2013
PIETER
WILLIAMS
KAUFMAN
..................................................................
APPLICANT
And
MARTIHINUS
JOHANNES ELS
…............................................................
1st
RESPONDENT
EMALAHLENI
LOCAL MUNICIPALITY
….................................................
2ND
RESPONDENT
WITBANK
DISTRICT
OFFICE
....................................................................
3rd
RESPONDENT
DEPARTMENT
OF RURAL DEVELOPMENT & LAND REFORM
JUDGEMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
The applicant, being the registered owner of an immovable property,
known as Portion 72 (a portion of portion 14) of the farm
Leeuwpoort
283, Registration Division J.S., Province Mpumalanga (“the
property"), seeks the following relief against
the first
respondent, the occupier of the property:
"1.
Delivery by the 1st Respondent, to the applicant, the property known
as Portion 12 of the Farm Leeuwpoort 283, Registration
Division J.S.
Mpumalanga, size 8.5653 hectares, held by deed of transfer T324/2010.
2.
In the event of the 1st respondent failing to deliver the property to
the applicant, an order that the 1st respondent and all
other persons
who occupy or hold possession through the 1st respondent are to be
ejected/ evicted from the premises.
3.
An order that the Sheriff of the above Honourable Court be
authorised to do everything necessary, including but not limited
to
obtain the help of the South African Police Services to give effect
to prayer 2 above and evict/eject the 1st respondent and
all other
persons who occupy or hold possession of the property through him."
[2]
The first prayer is based on the rei vindicatio, whereas prayers 2
and 3 fall within the statutory framework of the Prevention
of
Illegal Eviction from and Unlawful Occupation of Land, Act 19 of 1998
("the Act").
[3]
Notwithstanding the aforesaid, the applicant has failed to comply
with the provisions of section 4(2) of the Act.
[4]
The first respondent opposed the relief claimed and filed a lengthy
opposing affidavit. In his affidavit, the first respondent
dealt in
detail with his defence to the relief claimed by the applicant. The
first respondent,
.
however, did not rely on the fact that the applicant failed to comply
with the provisions of section 4(2) of the Act.
[5]
Although the applicant's attorney stated, in the Heads of Argument
filed on behalf of the applicant, that the application is
one of
eviction in terms of the Act, non-compliance with the provisions of
the Act was, once again, not raised.
[6]
The applicant was represented at the hearing by Mr Kekana, who, for
the first time, raised non-compliance with the provisions
of section
4(2), as a defence. Section 4 (2) reads as follows:
"At
least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings on the unlawful occupier and the municipality having
jurisdiction."
[7]
The proceedings contemplated in subsection (1) of section 4, is that
of the eviction of an unlawful occupier from land.
[8]
It is common cause between the parties that the applicant served a
so- called "Notice of Termination of Right of Residence"
("termination notice") on the first, second and third
respondents, prior to the launching of the present application.
Service of the said notice was, however, not authorised and directed
by a court order.
[9]
Faced with this difficulty, Mr Vorster, who appeared on behalf of the
applicant, urged me to find that the termination notice
complies
substantially with the provisions of section 4 (2) read with section
4(5) of the Act alternatively to grant an order in
terms of prayer 1
of the notice of motion arid to postpone prayers 2 and 3 sine die.
[10]
In the premises, it is necessary to first of all, examine the
contents of the termination notice and the circumstances surrounding
the first respondent's knowledge of the present proceedings.
THE
TERMINATION NOTICE:
[11]
The notice consists of 6 pages and the relevant portions read as
follows:
NOTICE
OF TERMINATION OF RIGHT OF RESIDENCE (THIS IS A VERY IMPORTANT
NOTICE)
TO MARTHINUS JOHANNES ELS
TAKE NOTICE
Pieter
William Kaufman hereby gives you notice that your right to reside on
Portion 72 of the Farm Leeuwpoort 283, Registration
Division J.S.
Mpumalanga, size 8.5653 hectare, held by deed of transfer T324/2010,
has been terminated.
TAKE
FURTHER NOTICE
Pieter
William Kaufman is the owner of Portion 72 of the Farm Leeuwport 283,
Registration Division J.S. Mpumalanga, size 8.5653
hectares, held by
deed of transfer T324/2010, you are in possession of the farm and you
do not have the consent of Pieter William
Kaufman to be in possession
of the farm.
TAKE
FURTHER NOTICE
You
are hereby given 2 (two) months notice to vacate the farm. Should you
fail to vacate the farm in 2 (two) months after receiving
this
notice, Pieter William Kaufman will apply to court for an eviction
order.
TAKE
FURTHER NOTICE
The
land to which this notice relate if the property on which you stay
and is more fully described as Portion 72 of the Farm Leeuwpoort
283,
Registration Division J.S. Mpumalanga, size 8. 5653 hectares, held by
deed of transfer T324/2010
THE
SUMMARY CONTAINED IN THIS NOTICE OF YOUR LEGAL POSITION IS
INCOMPLETE. YOU MUST APPROACH AN ATTORNEY, THE DEPARTMENT OF LAND
AFFAIRS, THE EMALAHLENI MUNICIPALITY OR THE LEGAL AID BOARD TO
EXPLAIN YOUR RIGHTS TO YOU MORE FULLY, IF YOU CANNOT AFFORD AN A
TTORNEY YOU MA Y APPL Y FOR LEGAL AID AT THE LEGAL AID BOARD OR YOU
MAY APPROACH THE - DEPARTMENT OF LAND AFFAIRS FOR ASSISTANCE.
YOU ARE
URGED ... TO GET ASSISTANCE AS SOON AS YOU GET THIS NOTICE.
MORE
INFORMATION THIS IS A VERY IMPORTANT NOTICE
1.
The Constitution of the Republic of South Africa, 1996 (Act No. 108
of 1996) accords to everyone the right to have access to
adequate
housing.
Should
you feel that an eviction will infringe that right it is incumbent on
you to supply the owner with information
supporting
that claim to enable him to place that information before Court.
2.
The Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997)
applies
to you if you:
2.1.
Live on land which is not situated in a township established,
approved, proclaimed or otherwise recognised as such in terms
of any
law, or encircled by such a township or
townships.
2.2.
Live on land which belonged to another.
2.3.
Had consent or another right in law to reside on the land.
2.4.
Are not using or intending to use the land in question mainly for
industrial, mining, commercial or commercial farming purposes.
2.5.
Earn less than R5000.00
This
Act gives the right to live on the land where you were staying on 4
February 1997, or at any time thereafter, provided that
you had the
permission of the owner or person in charge. It also gives you the
right to carry on using any other land which the
owner or person in
charge gave you permission to use on or after that date. The Act
makes it possible in certain circumstances,
for these rights to be
brought to an end. The owner or person in charge must act fairly, and
follow the procedures set out in the
Act. The first step that the
owner or person in charge must take is to give you notice that your
right to occupy has been terminated.
This means that the owner or
person in charge of the land may go to court to get an order to evict
if you fail to vacate farm within
the period given in the notice.
Should
you claim that this Act applies to you it is incumbent on you to
supply the owner with information supporting that claim
to enable him
to place that information before Court.
3.
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 1998 (Act No. 19 of 1998) provide for the prohibition
of
unlawful eviction and for procedures for the eviction of unlawful
occupiers.
In
terms of this Act no one may be deprive of property expect in terms
of law of general application, and no law may permit arbitrary
deprivation of property. The Act further provides that no one may be
evicted from their home, or have their home demolished without
an
order of court made after considering all the relevant circumstances.
The Act regulates the eviction of unlawful occupiers from
land in a
fair manner while recognising the right of land owners to apply to a
court for an eviction order in appropriate - circumstances.
The Act
gives special consideration to the rights of the elderly, children,
disabled persons and particularly households headed
by women, and
recognise that the needs of those groups should be considered.
If
you do not claim that the
Extension of Security of Tenure Act, 1997
2
(Act No. 62 of 1997) applies to you the owner or person in charge
will comply with the procedures outlined in this Act before
applying
for your eviction."
[12]
The notice was served by the Sheriff on the applicant on 30 June 2010
and on the second (relevant municipality) and third (Rural
Development and Land Reform) respondents on 18 June 2010.
[13]
In terms of the provisions of section 4(5) of the Act, a notice
served in terms of the Act, must contain the following:
"(5)
The notice of proceedings contemplated in subsection (2) must-
(a)
state that proceedings are being instituted in terms of subsection
(1) for an order for the eviction of the unlawful occupier;
(b)
indicate on what date and at what time the court will hear
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the right
to
apply for legal aid."
[14]
In my view, the termination notice contains more information than the
information prescribed by the Act and consequently complies
with the
- statutory requirements contained in section (4)(5)(a), (c) and (d).
[15]
The notice does, however, not comply with section 4(5)(b), in that it
does not indicate the date and time on which the application
for the
first respondent's eviction will be heard.
[16]
In order to determine whether the notice is still effective notice as
contemplated in section 4(2), the circumstances relevant
to the first
respondent's actual knowledge of the intended eviction application is
relevant.
RELEVANT
CIRCUMSTANCES:
[17]
The termination notice was proceeded by a letter from the applicant's
attorney, Geyser Attorneys, dated 2 February 2010, addressed
to
Mbethe Attorneys, who represented the first respondent at the time. I
pause to mention that Mbethe Attorneys also represent
the first
respondent in these proceedings.
[18]
The letter informs the first respondent that the applicant became the
" registered owner of the property on 7 January
2010 and that
the first respondent must vacate the property by no later than 28
February 2010. Furthermore and should the demand
not be adhered to,
the applicant will launch a formal for the first respondent's
eviction.
[19]
On 24 February 2010, Mbethe Attorneys responded to the aforesaid
letter by contending that the property belongs to the deceased
estate
of A C K L Joubert. In the result and according to the first
respondent, the transfer of the property to the applicant is
void ab
initio. The eviction issue was not specifically addressed, but it is
clear from the contents of the letter that the first
respondent had
no intention to vacate the property.
[20]
The first respondent’s contention in this regard was, once
again, confirmed in a letter addressed by Mbethe Attorneys
to Geyser
Attorneys on 9 March 2010.
[21]
In the premises and on 30 June 2010, when the termination notice was
served on the fist respondent, the first respondent did
not only have
prior knowledge of the applicant's intention to evict him, but also
had legal representation.
[22]
This application was served on the first respondent on 14 January
2011 “and as alluded to earlier, the first respondent
filed a
comprehensive answer thereto.
[23]
The merits of the matter was, furthermore, fully canvassed at the
hearing of the. Application.
SUBSTANTIAL
COMPLIANCE / EFFECTIVE NOTICE:
[24]
In Cape Kiflarney Property Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
SCA, Brand AJA held that the procedural requirements
of
s 4(1)-(5) are peremptory. The court, however, also had regard to the
purpose of section 4(2) and stated the following at 1229
E -F:
“
Accordingly
the purpose ofs 4(2) is clearly to afford the respondents in eviction
proceedings a better opportunity than they would
have under the Rules
to put all the circumstances that they allege to be relevant before
the court. ”
[25]
Mr Vorster drew my attention to the judgment in Unlawful Occupiers,
School Site v City of Johannesburg
2005 (4) SA 199
SCA, where Brand
JA stated the following at para [22]:
"As
the appellants also correctly pointed out, it was held in Cape
Killarney Property (at 1227E- F) that the requirements of
s 4(2) must
be regarded '.' as peremptory. Nevertheless, it is clear from the
authorities that even where formalities required
by statute are
peremptory it is not every deviation from the literal prescription
that is fatal. Even in that event, the question
remains whether, in
spite of the defects, the object of the statutory provision had been
achieved..". . …
[26]
In the Unlawful Occupiers, School Site matter, the respondent did
comply with the provisions of section 4(2). The problem,
however,
arose with the contents of the notice, in that the notice did not
deal with the requirements contained in subsection (a)
and (c) of
section 4(5) of the Act. Having had regard to the events preceding
the service of the section 4(2) notices, the court
held that there
was, in the particular circumstances of the matter, substantial
compliance with the provisions of section 4(5).
[Para 24]
[27]
With reference to Unlawful Occupiers, School Site matter, Streicher
JA stated the following in Moela v Shoniwe
2005 (4) SA 357
SCA, at
para [9]:
“
Here
the contents and manner of service of the notice had not been
authorised and directed by an order of court. However, the object
ofs
4(2) is clearly to ensure that the unlawful occupier and municipality
are fully aware of the proceedings and that the unlawful
occupier is
aware of his rights referred to in $ 4(5) (d). It may well be that
that object, in appropriate circumstances, may be
achieved
notwithstanding the fact that sen/ice of ~ - the notice required by
s4 (2) had not been authorised by the court. That
’ may, for
example be the case if at the hearing it is clear that written and
effective notice of the proceedings containing
the information
required in terms of s 4(5) had in fact been served on the unlawful
occupier and „ — municipality .14
days before the
hearing,"
[25]
Although the facts in the Moela matter are similar to the facts
herein, the observation supra was made obiter and the court
held that
it was not necessary to decide the issue on the facts before them.
[26]
The issue of substantial compliance with the provisions of the Act
was once again dealt with by the Supreme Court of Appeal
in Theart
and Another v MinnaarNO; Senekal v Winskor 174 (Pty) Ltd
2010 (3) SA
327
SCA. Bosielo JA held as follows at para [14]:
"Viewed
against the main purpose of PIE, the real issue is not so much
whether or not there are two separate notices. The real
and proper
enquiry should be whether there has been effective notice of the
proceedings on the occupier in the sense that a court
is satisfied
that the occupier has been fully informed of the impending eviction,
the grounds therefor; the date and place of hearing,
and the right to
appear in court and be represented. This is exactly what happened in
the two • appeals. Accordingly I am
satisfied that effective
notice was given to the appellants. To hold otherwise would promote
slavish adherence to form above substance."
[22]
The applications in the Theart matter emanated from the Magistrates’
court and the issue on appeal was whether section
4(2) requires that
two separate notices be served on an occupier. [Also see: Minister of
Safety and Security \/ Moodley
[2011] 4 All SA 47
SCA]
[23]
In the present matter, the first respondent obtained knowledge of the
applicant's intention to evict him on or about 2 February
2010. If
one have regard to the contents of the two letters written on his
behalf by his attorney, it is clear that the first respondent,
upon
gaining knowledge of the threatened eviction, received the necessary
legal advice.
[24]
If the first respondent was still in doubt as to his rights, the
termination notice made it patently clear what his rights
were.
[25]
The fact that the first respondent had more than ample time to
consider his position, is further borne out by the contents
of the
opposing affidavit.
[26]
As stated supra, heads of argument was filed on behalf of the first
respondent and he was duly represented at the hearing of
this matter.
[27]
In the circumstances and although the termination notice was not
authorised by a court order, I find that the applicant had
substantially complied with the procedural requirements contained in
section 4(2) of the Act.
'MERTIS:
[28]
I now turn to the merits of the applicant's application.
[29]
The fact that the applicant is the registered owner of the property
is not in dispute. The applicant purchased the property
from
Anne-Marie Ford in terms of a written agreement of sale concluded on
20 April 2009.
[30]
The events preceding the acquisition of the property by Ms Ford, is
somewhat unfortunate and forms the basis of the first respondent's
defence to the relief claimed by the applicant herein.
[31]
The events was triggered by a loan agreement between Ms Ford and her
spouse as the lenders and a certain Ms Joubert and her
husband as the
borrowers. Ms Joubert passed away on 12 February 2006 and I will
refer to her herein after as the deceased. I pause
to mention that
the Jouberts were, at the time of the loan agreement, the registered
owners of the property.
[32]
The Jouberts did not honour their payment obligations in terms of the
loan agreement and Ms Ford instituted an action for the
recovery of
the outstanding amount.
[33]
On 25 March 2003 default judgment was granted in favour of Ms Ford.
In terms of the judgment the Jouberts had to pay an amount
of R 67
700, 00 together with interests and costs to Ms Ford.
[34]
Apparently the Jouberts did not satisfy the judgment debt which fed
to the property being sold in execution by the Sheriff
to Ms Ford.
[35]
On 27 October 2003, Ms Ford sold the property to the first
respondent. The following terms of the written agreement between
Ms
Ford and the first respondent is relevant:
”
1)
THE PURCHASER SHALL PAY THE AMOUNT OF R 20 000, 00 IN CASH DIRECT TO
SELLER, NOT LATER THAN AT 28-10- 2003 12H00 A.M.
2) .....
3)
SHOULD THE PURCHASER NOT PERFORM BY SET PERIOD r . THIS CONTRACT WILL
BE NULL AND VOID AND THERE SHALL. BE NO FURTHER ARRANGEMENTS
MADE."
[36]
The first respondent only paid the amount of R 20 000, 00 on 29
October 2003. As a result of the late payment, the contract
between
the first respondent and Ms Ford was null and void and had no further
legal effect.
[37]
Notwithstanding the aforesaid, the first respondent did made some
payments in terms of the "agreement" to Ms Ford.
The
property was, however, never transferred into the first respondent's
name.
[38]
In the meantime and on 26 May 2004, the default judgment against the
deceased was set aside. At the time, the transfer of the
property
into the name of Ms Ford had not been effected and the property,
should have reverted back to the estate of the deceased.
[39]
Ms Ford has to date not proceeded with the action and the action is
still pending in the Witbank Magistrates' court.
[40]
Although the judgment underlying the sale in execution was set
aside,deceased did“ Bot apply To” have the sale
in
execution set aside. Consequently and on 7 January 2010, the property
was transferred by the Sheriff into the name of Ms Ford
and
thereafter into the name of the applicant.
[41]
It is clear from the aforesaid facts that Ms Ford,.at the time of the
transfer, of the property to the applicant, had the necessary
intention to pass ownership to the applicant and that the applicant
had the intention to acquire ownership.
[42]
In South African Law the abstract system for the transfer of
ownership is applied and all that is needed for a valid transfer
is
the intention of the parties to pass and acquire ownership.
[43]
Even if the transfer of the property into the name of Ms Ford was
tainted, it is of no legal consequence to the transfer of
the
property into the name of the applicant.
[44]
This much was confirmed by the Appellate Division in Commissioner of
Customs and Excise v Randles, Brothers & Hudson Ltd
1941 AD 369
at 441:
"From
the passage it is clear, I think, that a wide meaning must be given
to the words ’justa causa' or 'causa habilis'.
(Voet 41.1.35)"
and that all that these words mean in the context I am considering,
is that the legal transaction preceding
the traditio may be evidence
of an intention to pass and acquire ownership. But there may be
direct evidence of an intention to
pass, and acquire ownership and,
if there is, there is no need to rely on a preceding legal
transaction in order to show that ownership
has, as a fact, passed."
[45]
The legal position set out supra, has been followed in various
decisions.
More
particularly and with reference to the passing of ownership in
immovable property, Stafford J held In Brits and Another v Eaton
NO
and Others
1984 (4) SA 728
T, at p 735H as follows:
"This
lends further support to Mr Goldstein's argument that ownership in
the said properties on the facts of this case passed
to the company
on transfer. After reviewing the authorities I am of the view that
despite the void agreement, ownership in the
properties passed to the
said company and that was the position when liquidation took place,"
[46]
In the aforesaid matter, the seller had the necessary intention to
pass ownership and the purchaser had the intention to acquire
ownership.
[47]
In the premises, the first respondent has not put any facts before me
that justifies this continued occupation of the property.
ORDER:
[48]
In considering a just and fair order, the time afforded to the first
respondent to vacate the property should be borne in
mind.
In
the premises, I make the following order:
1.
The first respondent is ordered to vacate the property known as
Portion 72 (a portion of portion 14) of the farm Leeuwpoort 283,
Registration Division J.S., Province Mpumalanga ("the property")
within 14 days from the date of this order.
2.
Should the first respondent fail to vacate the property in terms of
paragraph 1 of this order, the Sheriff of the above Honourable
Court
is authorised to do everything necessary to evict the first
respondent and all other persons who occupy or hold possession
of the
property through him.
3.
The first respondent is ordered to pay the costs of the application.
N
Janse van Nieuwenhuizen
Acting
Judge of the North Gauteng High Court, South Africa
Representation for the
Plaintiff/Respondent Instructed by: Mbethe Attorneys
Attorneys
for the Respondent
-
Per
Telefax as agreed Fax Nr: (013)656 6280
Representation
for the Defendant/ Applicant Counsel:
Adv. Adrian Vorster
Instructed
by:
Y Coetzee
-
Jasper Van Der Westhuizen & Bodenstein Inc 887 Stanza Bopape(
Church Street)
Arcadia
Pretoria