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[2012] ZAGPPHC 107
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Nedbank v Unlawful Occupants of Portion 66 Farm Number 469, Elandskraal and Another (21167/2011) [2012] ZAGPPHC 107 (13 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
Case
No: 21167/2011
DATE:13/06/2012
In
the matter between:
NEDBANK
LTD
.............................................................................................................
Applicant
and
THE
UNLAWFUL OCCUPANTS OF PORTION 66 FARM NUMBER 469,
ELANDSKRAAL
.................................................................................................
1st
Respondent
MADIBENG
LOCAL
MUNICIPALIT
....................................................................
2nd
Respondent
JUDGMENT
MNGQIBISA
-THUSI, J:
[1]
The applicant seeks an eviction order against the first respondent
from immovable property situated at Portion 66 Farm Number
469,
Elandskraal (the property) and owned by the applicant in terms of
section 4(6) of Prevention of Illegal Evictions from and
Unlawful
Occupation of Land Act 19 of 1998 (PIE).
[2]
On 06 August 2010 the applicant acquired ownership of the property
after purchasing the property at an auction sale. The property
was
registered in its name on 6 December 2010.
[3]
After the purchase the applicant had written several notices to the
occupiers informing them that it was now the owner of the
property
and requesting them to vacate the property.
[4]
When the occupants, who were at that time unknown to the applicant
refused to vacate the property, the applicant sought leave
from this
court to serve them with eviction notices in terms of section 4(2) of
the PIE. In the notice the occupiers were informed
of the intention
of the applicant to apply for an eviction order.
[5]
On 04 August 2011 this court granted the applicant leave to serve the
section 4(2) notice on the first respondent and the second
respondent. The section 4(2) notices were duly served on the first
and second respondent on 25 August 2011 and 18 August 2001,
respectively, as appears from the sheriff's returns of service.
[6]
Mr John Eric Aucamp (Aucamp) is opposing the application on the
following grounds:
6.1
that he is a lessee in terms of a lease agreement concluded with the
former owner of the property, a Mr Robinson, on 25 April
2010. The
lease was for a period of 1 May 2010 to 31 April 2015. It is Aucamp's
contention that in accordance with the yhuur gaat
voor koop'
principle, he was lawfully entitled to occupy the property for the
duration of the lease, which was determined to terminate
on 1 May
2015. At the moment Aucamp has sublet the property to a mining
company whose employees are currently occupying the property.
6.2
That this court does not have jurisdiction as the default judgment
and the location of the property was in the North West province.
6.3
that the applicant should have foreseen the existence of issues in
dispute and should not have used motion proceedings.
[7]
From the reading of the papers, I did not find any issues in dispute
which cannot be resolved on the papers.
[8]
The issue to be determined is whether the Aucamp and all the
occupiers occupying the property through him are in lawful occupation
of the property.
[9]
The applicant did not concede to the existence of the lease
agreement. However it is trite that when a person acquires ownership
of an immovable property where there is an existing lease, his
ownership is subject to the lease. Therefore, Aucamp and all the
occupiers occupying the property through him are not unlawful
occupiers in terms of PIE.
[10]
With regard to jurisdiction, in its founding papers the applicant
alleges that this court has jurisdiction as the property
is situated
within its area of jurisdiction. In the alternative the applicant
alleges that the cause of action arose from this
court's area of
jurisdiction. In his answering affidavit Aucamp did not deal with the
issue of jurisdiction nor did he raise it
as a point in limine. As
correctly pointed out by counsel for the applicant, Aucamp's failure
to deal with the issue of jurisdiction
amounts to him consenting to
this court's jurisdiction.
[11]
Aucamp undertook to pay all accrued rental and rent due. He requested
the applicant to provide him with the details of an
account
in which he would deposit the arrear rentals and rent due. Despite
his undertaking and having been provided with the relevant
bank
details of the applicant, Aucamp failed to make the required
deposits. As a result the applicant formally cancelled the lease
in
terms of clausel4 of the lease agreement and gave notice to Aucamp to
vacate the property. Aucamp has refused to vacate the
property.
[12]
In view of the fact that Aucamp is in breach of the lease agreement
which led to the applicant cancelling the agreement, Aucamp
and all
occupiers through him are in unlawful occupation of the property as
the owner of the property has not consented to their
occupation.
[13]
The applicant has complied with the provisions of section 4(2) of the
PIE. I am satisfied that it is just and equitable to
grant an order
for the eviction of Aucamp and all other unlawful occupiers of the
property.
[14]
Accordingly an order is granted on the following terms:
1.
The occupants of Portion 66, Farm Number 469, Elandskraal, North West
Province, situated at Portion 66, Farm 469, Old Pretoria
Road,
Elandskraal, Brits ("the property"), as well as John Eric
Aucamp, identity number 630228 5090b084 ("Aucamp")
and all
persons occupying the property through Aucamp, vacate the immovable
property within 60 days of this order.
2.
Should Aucamp and all persons occupying the property through him not
vacate the property as set out in 8.1 above, the sheriff
is
authorised to evict Aucamp and/or all persons occupying the property
through him from the property.
3.
Aucamp to pay the costs of this application.
NP
MNGQIBISA-THUSI
Judge
of the High Court