About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2013
>>
[2013] ZAKZPHC 38
|
|
Ngcobo v Mdunge (2278/12) [2013] ZAKZPHC 38 (13 June 2013)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 2278/12
In the matter between:
MOKHA REUBEN NGCOBO
....................................................
Applicant
and
THEMBA
ETHEL MDUNGE
.................................................
Respondent
JUDGMENT
Delivered
on 13 June 2013
STRETCH AJ:
[1] This is an
application in terms of the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (“PIE”)
in terms of which the applicant seeks an order evicting the
respondent and all other persons
occupying under or through her, from
the property described as erf 96, Thornville (near Thornville
Garage), Richmond, KwaZulu-Natal
(“the property”).
[2] The application came
before me as an opposed motion on 8 May 2013. There was no appearance
for the respondent.
[3] The applicant had, in
compliance with this court’s practice directives, delivered his
heads of argument and a practice
note well in advance of 30 April
2013, being the due date for compliance.
[4] The respondent’s
heads of argument and her practice note, which were due on 3 May
2013, have not been delivered at all.
[5] When the respondent
originally opposed the application, she was represented by attorneys
Khanyile and Associates from Pietermaritzburg.
When the matter came
before me the applicant’s counsel advised that the applicant’s
attorneys had, on 6 May 2013, received
a transmission, purportedly
from “Mlilo Attorneys” advising that they had been
informed that the respondent had been
hospitalised on 2 May 2013 and
that they were requesting a postponement of the hearing. The
applicant’s attorneys refused
to agree to this, pointing out
(and this is admitted by Mlilo Attorneys) that the notice of set down
had been served as far back
as 14 January 2013, and that the
applicant had, in the circumstances, been afforded ample opportunity
to prepare.
[6] The matter in any
event stood down for the applicant’s attorneys to make further
enquiries. When the matter was recalled,
Mr Mnikathi (the author of
the correspondence from Mlilo Attorneys) advised me that they were
not representing the respondent.
I mention that the papers reflect
that the latest formal correspondence on this aspect is the
respondent’s notice of intention
to oppose the application
(dated 2 April 2012) which is not only addressed by Khanyile &
Associates on her behalf, but wherein
she also appoints Khanyile &
Associates as her duly authorised agents, and to whom the notice of
set down had accordingly been
addressed.
[7] In the premises I am
satisfied that the defendant, despite having delivered a notice of
opposition and an opposing affidavit,
has failed to prosecute her
case to its ultimate conclusion. This means that this court can (if
it is of the view that a case has
been made out for the relief sought
on the applicant’s papers), grant judgment in his favour
without any recourse to that
contained in the answering papers.
[8] In the exercise of my
discretion however, I intend in any event to consider the applicant’s
grounds of opposition as set
forth in her affidavit as if they had
been specifically traversed in argument before me.
[9] The respondent has
raised as her first point
in limine
that there are proceedings
pending in the magistrates’ court. It is common cause that
these proceedings were instituted against
the respondent’s
spouse who is now deceased. There is accordingly no
lis
pending
between the parties in that court. Even if it is the respondent’s
contention that she occupies the property by or
under the authority
of the deceased, such authority ceased to exist upon his death. See:
Botha N.O. v
Deetlefts and Another
2008 3 SA 419
(NPD)
[10] The respondent’s
second point
in limine
(that the applicant has failed to
comply with the provisions of section 4(2) of PIE) insofar as it may
have been a valid point
at the time that she deposed to the
affidavit, has ceased to be so by virtue of this court’s order
on 10 April 2013, causing
notices which give proper effect to the
provisions of PIE to be re-issued. There is accordingly no merit in
either of the points
raised
in limine.
[11] The respondent’s
main ground of opposition is that she is in lawful occupation of the
property (having taken such occupation
in May 2002) after she and her
deceased spouse had entered into an oral agreement with one K.E.
Ngcobo that her daughter would
purchase the property from its owner,
Ngcobo Brothers Proprietary Holdings CC for R150 000,00. She avers
that certain sums of money
were paid to K.E. Ngcobo both towards the
purchase price and for occupational rental pending the finalisation
of the sale. She
categorically admits that the property was never
transferred into her daughter’s name because the full purchase
price had
not been paid. Significantly, the respondent admits that
the applicant is the registered owner of the property, having
acquired
it in terms of a deed of sale concluded on 19 March 2008
with the erstwhile registered owner, Ngcobo Brothers Proprietary
Holdings
CC. She also admits that the property was registered in the
applicant’s name in the office of the registrar of deeds on 24
June 2008 under deed of transfer no. T29808/2008, copies of which are
annexed to the applicant’s affidavit. This title deed
(duly
confirmed by a deeds office report describing the applicant as the
registered owner of the land) is sufficient for the applicant
to
establish that he is the lawful owner of the land in terms of the
definition of “owner” in the Alienation of Land
Act 68 of
1981 (being “the person in whose name the land is registered in
the deeds office concerned”). Notwithstanding
this, the
respondent dismisses the title deeds as being “invalid”
because, so she contends, this sale took place after
her oral
agreement with K.E. Ngcobo had been entered into. The applicant’s
counsel has raised a number of valid challenges
to this claim. In my
view the undisputed proof of registration of transfer into the
applicant’s name by virtue of the title
deed is sufficient
proof of ownership, particularly when the challenge thereto is based
on an alleged oral agreement which does
not comply with the
formalities in respect of alienation of land set forth at
section 2
of the
Alienation of Land Act.
[12
] I am accordingly
constrained, having carefully considered the papers before me, to
find that the applicant has:
established his
locus
standi
(by virtue of the title deed annexed to his papers);
established that the
respondent is in wilful, persistent and unlawful occupation of the
property which he lawfully owns (by virtue
of his uncontested
averment that the respondent is in occupation of the land without
his express or tacit consent and also by
virtue of the respondent
having failed to establish that she has any other right in law to
occupy the land which makes her an
“unlawful occupier”
as defined in
section 1
of PIE);
established that he has
duly fulfilled all the procedural requirements of PIE (in particular
those set forth at
section 4
of PIE) in order to secure the
respondent’s eviction.
[13] The aforegoing
having been established,
section 4(7)
of PIE sets forth what this
court should then take into consideration in deciding whether or not
to grant an order for the respondent’s
eviction. It reads as
follows:
‘
If an
unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated,
the court may
grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering all
the relevant
circumstances, including … whether land has been made
available or can reasonably be made available by a municipality
or
other organ of state or another land owner for the relocation of the
unlawful occupier, and including the rights and needs of
the elderly,
children, disabled persons and households headed by women.’
[14] The papers before me
are not lacking in averments pertaining to such relevant
circumstances, as would, for example, be the
case where an
application has proceeded entirely without challenge and it is
evident that the applicant has made no effort whatsoever
to establish
the personal circumstances of the occupiers and whether alternative
accommodation can be made available for them.
[15] In the matter before
me, the applicant caused the relevant notice in terms of
section 4(2)
of PIE to be served on the municipal manager of the municipality
within whose jurisdiction the property is situated, more than
three
weeks before the application was heard. This not being an eviction at
the instance of a public body where public land is
unlawfully
occupied by potentially homeless and destitute people, I do not deem
it necessary for the applicant to have taken any
further steps to
involve arms of government to make land available. The applicant,
being a landowner with his own right to property
in terms of section
25 of the Constitution is not, by virtue of this application,
attempting to sterilise property which he has
no need for. He has
made it clear in his founding papers that:
the respondent’s
deceased spouse of the respondent used to lease the property from
the applicant’s predecessor in
title;
he gave the deceased
generous notice to vacate in October 2008 after ownership had been
lawfully transferred to him;
the respondent and her
deceased spouse before her, have refused to vacate not because they
would be rendered homeless otherwise,
but because they claimed that
it was their right to occupy the property as lawful owners, a claim
which the respondent persisted
in pursuing in her answering papers;
the deceased was evicted
by virtue of an order in the magistrates’ court granted in his
absence. This order was subsequently
rescinded, not on grounds of
justice and equity, but because the deceased resurrected his claim
of lawful entitlement;
the respondent’s
daughter is gainfully employed and occupies her own home in
Pietermaritzburg (not only is this admitted
but the respondent
herself mentions a second daughter who occupies a second home);
he, as the owner, not
only has a right to the use and enjoyment of his own land and vacant
occupation and possession thereof,
but that he envisages making the
property available to tenants who are prepared to pay rental (unlike
the respondent who not
only declines to pay rental, but also allows
those who occupy the property through her to live rent-free).
[16] The respondent does
not seriously challenge these averments. She maintains that she is
entitled to occupy the property as the
rightful owner thereof. Her
claim of a significant amount of money having been paid to a third
party to secure ownership, is not
a valid ground upon which this
court should find that it would be unjust and unequitable to evict
her. She has separate commercial
and financial rights of recourse in
that regard, and by her own admission enjoys financial assistance
from her two daughters who
each occupy separate properties. It seems
to me that her averment that she and her three grandchildren will be
left destitute should
this order be granted is an opportunistic one
which has been tagged onto her main claim as a convenient alternative
plight. The
respondent has, in any event, not elected to disclose why
her three grandchildren are living with her, and not with their
natural
mothers who ought to be their primary carers.
[17] In the premises am
satisfied, particularly in that the respondent has failed to
seriously pursue her opposition to this application,
that the
applicant has demonstrated that it is just and equitable for the
respondent to be evicted, and that he has placed sufficient
information before this court to justify the granting of such an
order, insofar as the recent judgment of the Supreme Court of
Appeal
may also be interpreted to apply to private landowners with respect
to the question of
onus
. See:
City of
Johannesburg v Changing Tides
74
(6) SA 294
(SCA)
at 314B-G
[18] The respondent has
been in occupation of the premises since 2002. However, it is common
cause that she has been aware of the
real prospect of eviction
(particularly in that such an order was previously granted) since
June 2009, and that she has alternative
support systems at the very
least in the form of two of her children. I am accordingly of the
view that it would be just and equitable
to grant an order
determining that the respondent and those who occupy with her, should
vacate the premises by the end of July
2013, which allows her in
excess of six weeks’ notice.
In the premises I make
the following order:
ORDER:
The respondent and all
persons occupying
under or through her are
hereby evicted from the property known as erf 96, Thornville (near
Thornville Garage), Richmond, KwaZulu-Natal.
The respondent and all
persons occupying under or through her are consequently directed to
vacate the aforesaid property and to
ensure that all their movable
belongings have been removed from the property by no later than
16h00 on Wednesday, 31 July 2013,
failing which the sheriff of this
court is directed to forthwith carry out and give effect to the
aforesaid orders for eviction
and removal.
The respondent is
directed to pay the applicant’s costs of this eviction
application.
___________
STRETCH AJ
Appearances /
Appearances
For the Applicant
:
Mr. C. Pretorius
Instructed by
:
Lister & Lister Pietermaritzburg
For the Respondent
:
Not represented
No
appearance in person
Instructed by
:
Not applicable
Date
of Hearing
: 08 May 2013
Date of Filing of
Judgment
: 13 June 2013