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[2013] ZAGPPHC 290
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Ucon Projects v Scheepers and Others (65657/12) [2013] ZAGPPHC 290 (11 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case no: 65657/12
DATE:11/10/2013
In
the matter between:
UCON
PROJECTS
….................................................................
APPLICANT
and
SCHEEPERS CJ AND
OTHERS
.........................................
RESPONDENT
JUDGMENT
HASSIM A AJ
1.
This matter began as an application for the eviction of the First to
Fourth respondents from portion 78 of the farm California,
507,
Registration Division LT, Limpopo Province by virtue of a rei
vindicatio in that the Applicant is the owner of the property.
2.
When the matter was called for hearing, counsel for the applicant
sought leave to hand up a supplementary affidavit setting out
developments in the matter since the last pleadings were filed. There
was no appearance for the Respondents.
3.
It emerges that since the application was instituted the Third
Respondent has been placed under provisional liquidation on 30
August
2013. The Applicant is therefore not seeking relief against the Third
Respondent at this stage and requests a postponement
of the matter in
respect of the Third Respondent. The return date for the provisional
liquidation is 10 February 2014.
4.
The First Respondent is no longer occupying the property, having left
the employ of the Third Respondent. The court has been
advised that
he now lives in the Kalahari and that he evacuated the property on 15
May 2013.
5.
The Second Respondent, a former security guard of the Third
respondent also no longer occupies the property. On 26 July 2013,
the
Applicant, upon visiting the property, found an elderly gentleman
living on the property, having been hired as a security guard
by the
Third Respondent. This gentleman has since been employed by the
Applicant.
6.
The Fourth Respondent is simply cited as “The Occupiers’
of the property in question. There are no named individuals
identified. The return of service from the sheriff indicates that no
other workers or tenants were found or reside on the property,
and
the sheriff was also informed of such by the First and Second
Respondents at the time.
7.
The Applicant nevertheless wishes the court to grant an order against
the Fourth Respondent. Counsel submitted that this is necessary
because Mr Michael Bryant, who is the sole director of the Third
Respondent, is frustrating the Applicant’s right of ownership
by claiming that he is a lawful lessee in his personal capacity. Mr
Bryant does not appear to be physically occupying the land.
Mr Bryant
is not cited in these proceedings in his personal capacity, nor is
any relief sought against him in his personal capacity.
8.
To add a further twist, Mr Bryant has launched spoliation proceedings
against the Applicant, the return date being 7 November
2013.
9.
I am firmly of the view that I cannot grant the order requested by
the Applicant regarding the Fourth Respondent. There is no
person
identified as being the fourth Respondent. The suggestion that the
use of the citation of ‘occupiers’, without
more, may be
used even where the applicant is fully aware of the party against
whom he seeks relief, is misguided. It is not intended
for a case
where the applicant knows exactly who the occupier is. The effect of
this would be to subvert the provisions of the
Prevention of illegal
Eviction From and Unlawful Occupation of Land Act 19 of 1998. Section
4 of that Act sets out the procedure
to be followed, including the
details that are to be provided to the occupier on notice, and the
factors that the court should
consider in order to make an order that
is just and equitable in the circumstances.
1.
What is more, were I to grant the order requested it would frustrate
spoliation proceedings that are already before another court.
It is
not for me to decide possessory rights as between the Applicant and
Mr Bryant. Mr Bryant is not before this court.
2.
In summary, no relief is sought against the first, second and fifth
respondents, a postponement is sought in relation to the
third
respondent, and an order of eviction is sought against the nameless
fourth respondent.
3.
In the circumstances, I make the following order:
3.1.
The application against the fourth respondent is dismissed.
3.2.
The application in respect of the third respondent is postponed.
3.3.
Costs of the postponement to be costs in the cause.