Summary of Judgment

1. Introduction

The matter concerned an application for the eviction of an unlawful occupier from residential immovable property in Bloemfontein. The proceedings were brought in the Free State High Court, Bloemfontein, by Firstrand Bank Ltd (the applicant), which alleged that it was the registered owner of the property and sought eviction in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act).

The cited respondents included Chris Slabbert (first respondent), Aletta Johanna Slabbert (second respondent), all other unlawful occupiers residing at the property (third respondent, being the principal opposing party described in the judgment as “she”), and the Mangaung Local Municipality (fourth respondent). Although multiple respondents were cited, the judgment’s reasons focused on the opposition advanced by the third respondent in relation to her continued occupation.

The procedural history recorded was that the court had previously granted leave in terms of section 4(2) of the PIE Act on 19 January 2012, and thereafter, on 7 February 2013, the court granted an eviction order against the third respondent. The written judgment comprised reasons furnished in terms of Rule 49(1)(c) following a request for reasons after the eviction order had been granted.

The general subject-matter of the dispute was whether the applicant was entitled to evict the third respondent as an unlawful occupier, and whether the opposition raised (principally relating to authority and certain alleged irregularities) prevented eviction.

2. Material Facts

It was common cause that the third respondent came into occupation of the property by concluding a memorandum of lease with an entity described as the To Let Trust on 15 September 2010, at a rental of R10 000.00 per month. It was also common cause that, notwithstanding the existence of the lease document, the Trust was never the owner of the property and had no right to lease the property to the third respondent.

It was further common cause that the applicant became the registered owner of the property by Deed of Transfer dated 4 March 2011. On the facts accepted by the court, the third respondent consequently had no valid and enforceable right in law to remain in occupation of the property.

The court also recorded as common cause that the third respondent had occupied the property for approximately three years, and that for almost an entire year she had not paid rental.

The third respondent’s opposition included challenges that were not treated as determinative in the reasons ultimately provided. These included an attack on the validity of the notice advertising the sale in execution, based on the allegation that an incorrect street address was reflected, and a challenge to the validity of the registration of transfer to the applicant on the basis that it was allegedly irregular because it was finalised after the date on which the Trust (which had initially rented the property to her) was sequestrated. The judgment’s reasoning, however, centred on the authority point raised against the applicant’s deponent.

3. Legal Issues

The central legal question addressed in the reasons was whether the eviction application was properly before the court in light of the third respondent’s contention that the deponent to the applicant’s founding and replying affidavits, Janina Almog, allegedly lacked authority to depose to those affidavits and to bring the proceedings on behalf of the applicant.

This issue was primarily a question concerning the procedural requirements for challenging authority, namely whether a respondent may attack authority on the affidavit papers in the absence of a challenge brought under Rule 7(1), and what the applicant is required to show regarding authorisation for the institution and prosecution of proceedings by an artificial person.

As dealt with by the court, the dispute was principally one of law and procedure (the proper mechanism for challenging authority and the consequences of not invoking it), rather than a factual dispute requiring resolution on evidence.

4. Court’s Reasoning

The court identified that the third respondent’s principal opposition was directed at the authority of Janina Almog, who signed the founding affidavit, on the basis that she alleged she represented the applicant and was duly authorised, while the resolution relied upon was said not to authorise her by name to bring the present application. The resolution was characterised as a general authority to sign affidavits relating to the purchase of property on behalf of the applicant, rather than a specific mandate naming her in relation to this eviction application.

In dealing with this objection, the court relied on the Full Bench decision in ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP). The court accepted the principle stated in that case that, absent a specific challenge under Rule 7(1), the signature of the notice of motion by an attorney and the fact that proceedings purport to be brought in the name of an applicant are ordinarily sufficient, and that it is not appropriate to attempt to determine authorisation on the application papers if the proper Rule 7(1) procedure has not been invoked. On this approach, the court treated Rule 7(1) as the appropriate procedural route for a respondent who wishes to put authority in issue.

The court also referred to Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) for the proposition that what must be authorised is the institution of the proceedings and the prosecution thereof. Applying that principle, the court placed emphasis on the fact that the eviction proceedings were properly prosecuted by a firm of attorneys representing the applicant, and that this aspect was not challenged and was in fact common cause.

On the basis of these principles, the court concluded that there was no merit in the submission that the proceedings were not duly authorised. The court accepted that the institution and prosecution of the proceedings were duly authorised and granted the application. The reasoning as provided did not engage in detail with the additional challenges raised by the third respondent concerning the sale in execution notice or the alleged irregularity in transfer, indicating that the authority objection was regarded as dispositive of the opposition advanced in the reasons.

5. Outcome and Relief

The court granted an order on 7 February 2013 evicting the third respondent from the residential premises situated at 22 Deane Street, Waverley, Bloemfontein, following leave having been granted under section 4(2) of the PIE Act on 19 January 2012. The reasons delivered on 20 March 2013 confirmed that the authority objection lacked merit and that the eviction application was properly authorised and prosecuted.

The judgment text provided did not set out a costs order in the reasons furnished, and therefore no specific cost determination is recorded in the summary beyond what appears in the text.

Cases Cited

ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP)

Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA)

Legislation Cited

Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (section 4(2))

Rules of Court Cited

Uniform Rules of Court, Rule 7(1)

Uniform Rules of Court, Rule 49(1)(c)

Held

The court held that the third respondent’s objection to the authority of the deponent to the applicant’s affidavits was not sustainable in the absence of a proper challenge under Rule 7(1). The court accepted that the proceedings were instituted and prosecuted by attorneys on behalf of the applicant and that this prosecution was not contested. Applying the principle that it is the institution and prosecution of proceedings that must be authorised, the court concluded that the eviction application was duly authorised and therefore granted the eviction order against the third respondent.

LEGAL PRINCIPLES

The judgment applied the principle that where a litigant wishes to challenge the authority of an opposing party’s legal representative to act, the appropriate procedural mechanism is Rule 7(1), and that, absent such a challenge, the fact that proceedings are brought in a party’s name and are signed and prosecuted by attorneys may be treated as sufficient for purposes of authority in application proceedings.

The judgment further applied the principle that the legally material authorisation concerns the institution of proceedings and their prosecution, rather than an overly formalistic focus on whether a particular deponent is specifically named in a resolution, particularly where the litigation is in fact being conducted by duly appointed attorneys and no proper procedural challenge has been invoked.