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[2011] ZAKZDHC 76
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Concrete Investments CC v Mahabeer (2237/2011) [2011] ZAKZDHC 76 (9 December 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 2237/2011
In the matter between
Concrete Investments
CC
…...................................................
Applicant
and
Keith Mahabeer
…................................................................
Respondent
JUDGMENT
9 December 2011
Steyn J
[1] On 10 August 2011
Nkosi AJ (as he then was) ordered:
“
1. That
the matter is adjourned for the hearing of oral evidence to the 5
th
and 6
th
December 2011.
That the issue to be determined
is whether the respondent has a right to occupy the premises in
terms of an oral agreement relied
on by him in the papers filed.
That all those who have deposed to
affidavits in the application must be available to testify and be
cross-examined at the hearing.
That the provisions of Rule 35 &
Rule 37 apply.
That costs to be reserved.”
(My emphasis)
[2] When the matter was
heard Mr Mohamed acted on behalf of the respondent and Mr Aboobaker
SC, assisted by Mr Moosa, acted on behalf
of the applicant. Since the
referral order clearly placed an
onus
on the respondent,
respondent commenced with evidence and called Mr Keith Mahabeer to
testify. After the testimony of this witness
the respondent closed
its case and thereafter the applicant closed its case. Mr Aboobaker
submitted that the respondent failed
to discharge the onus on him and
that applicant is entitled to the relief sought. Mr Mohamed argued
that there is some corroboration
for the evidence of Mr Mahabeer and
that the applicant is not entitled to the relief sought, since there
was not sufficient compliance
with the peremptory provisions of Act
19 of 1998. He submitted that irrespective of the notice that was
served on the respondent
in terms of section 4(2) of the Act, there
should have been a new notice issued before the hearing on 5 December
2011.
Before any evidence was
lead, Mr Aboobaker indicated that the applicant would no longer seek
an order against those occupants that
occupy through the respondent
but that relief is sought against the respondent only.
[3]
Background
The applicant is the
owner of certain immovable property situated at 5
th
Floor
Ebrahim Al Ebrahim, 85/87 Victoria Street, Durban (hereinafter
referred to as ‘the premises’). The property is
a
commercial and residential property. Respondent occupies the property
and claims to have an oral lease agreement which gives
him the right
to occupy the property.
[4]
Evidence
I shall at first deal
with the oral evidence and my findings on it and then deal with the
merits of the application. The evidence
of Mr Mahabeer was that he is
a tenant at 85/87 Victoria Street and that he had entered into a
lease agreement with Mr Seedat to
lease the property. He had
renovated the premises in order to make provision for his business,
which is low cost accommodation
to residents on a monthly basis. The
complex accommodates +-60 to 80 people per month. He provides rooms
to the occupants who in
addition make use of ablution facilities, a
communal kitchen and laundry. There is also 24 hour security service
at the complex.
According to him he had a
meeting with Mr Seedat in December 2009 where they discussed a
renewal of the existing agreement and whereupon
they agreed orally to
enter into a new lease with the right to renew. They agreed upon an
escalation of the rental rate at 10%
per annum and that the rental
would include electricity and water. He however stopped paying rent
in March 2010.
In cross-examination Mr
Mahabeer was asked to explain why he failed to mention the option to
renew the lease in his answering affidavit,
which consists of some 81
pages, excluding any annexures thereto.
A number of explanations
had been tendered by the respondent to this question. One, that his
memory failed him due to a lack of
sleep before the hearing, two -
that he had stated the renewal, and three - that he did not consider
it necessary to mention something
so obvious, and four - that there
was no reason to state it. I need to mention that he also stated that
he informed his legal representative
of the renewal throughout the
proceedings.
When it was put to him
that the first indication of any renewal was when a notice of renewal
was sent to applicant on 1 November
2011 and at no other time. Mr
Mahabeer remained silent and could not answer the question. It was
put to him that if he had recovered
his losses then he would not have
raised the issue of renewal at all, whereby he responded in saying
‘probably not’.
According to him no other terms were
discussed between him and applicant about the lease as per the
renewal except that it would
be the same as before. The witness was
asked to indicate whether he informed one of the occupants,
Wellington Cheke, of the intended
hearing on 5 December 2011. (Mr
Cheke lodged an urgent application under case 13515/2011 on 2
December 2011 to stay the present
matter that was set down for
hearing on 5
th
and 6
th
December 2011). His
answer was that Mr Cheke must have heard about the pending
application, but that he had nothing to do with
Mr Cheke’s
application. The witness was also confronted with parts of his
answering affidavit for example whether it is true
and correct that
he resides at Apartment 44 Idlewild, 92 Goble Road Morningside and on
occasion at 85/87 Victoria Street. He denied
that the information
contained in his answering affidavit was correct and blamed his legal
representative for the incorrect information.
[5]
Evaluation of
evidence
Mr Mahabeer did not
impress as a witness in fact he was one of the worst witnesses I have
ever seen. In the witness box he was unbelievably
garrulous and
extremely evasive. Time and time again he had to be reminded to
answer the questions put to him. He constantly tried
to move away
from the questions which had been asked, in order not to answer it.
He was argumentative and when pressed to explain
glaring
improbabilities in his evidence as per his answering affidavit and
his oral evidence he failed to do so. When driven in
a corner he did
not hesitate to place the blame for important information not
contained in his affidavit, on his own attorney.
His evidence is
neither credible nor satisfactory. I am satisfied that no reliance
can be placed on his version in the witness
stand. I reject it as
false.
It is common cause that
on the issue of the alleged oral agreement that the respondent bears
the
onus
. On the basis of my credibility finding the
respondent has failed to discharge the
onus
. Respondent’s
version is most improbable in the circumstances, and is inconsistent
with his failure to enforce the alleged
agreement. Accordingly I
conclude that it has not been established by the respondent on a
balance of probabilities that such agreement
was ever concluded
between the parties.
[6] I shall now turn to
the application and whether the applicant is entitled to the relief
sought. Having found that there is no
lease agreement between the
parties’ means that the respondent is not in lawful occupation
of the premises. An unlawful occupier
is defined in section 1 of the
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act, No. 19 of 1998 (hereinafter
referred to as ‘PIE’):
“
a person
who occupies land without the express or tacit consent of the owner
or person in charge, or without any other right in
law to occupy such
land, excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act, 1997
, and excluding a person whose
informal right to land, but for the provisions of this Act, would be
protected by the provisions
of the Interim Protection of Informal
Land Rights Act, 1996 (Act 31 of 1996).”
[7] In terms of our
common law ownership is an extensive right, protecting an owner
against unwanted intrusions on the property
and affording an owner
the right to evict those who illegally occupy the property. The Act
is not intended to expropriate the landowner
of his right to his
property. It has been succinctly stated by Maya AJA (as she then was)
in
Wormald
and others v Kambule
:
1
“
[15] It
must be borne in mind that the effect of PIE is not to
expropriate
the landowner and that it cannot be used to expropriate someone
indirectly. The landowner retains the protection against
arbitrary
deprivation of property under s 25 of the Bill of Rights.
PIE
serves merely to delay or suspend the exercise of the landowner’s
full proprietary rights until a determination has been
made whether
it is just and equitable to evict the unlawful occupier and under
what conditions.
Ndlovu
v Ngcobo
;
Bekker
and another v Jika
2003
(1) SA 113
(SCA) para 17. In the light of the aforegoing remarks, the
court
a
quo
erred
in finding that a right to occupy the property accrued as a result of
the alleged customary marriage. The respondent’s
occupation of
the property has no legal basis and is, thus, unlawful.”
(My emphasis)
[8] A notice has been
served in terms of s 4(2) of the Act, and in my view the notice and
whether it achieved its purpose should
not be considered in the
abstract. It could never have been the intention of the legislature
to expect that notices be issued each
and every time when an
application is adjourned. The purpose of a section 4(2) notice has
been definitively stated by our Supreme
Court of Appeal in
Unlawful
Occupiers of the School Site v City of Johannesburg
2
by Brand JA as follows:
“
The
purpose of s 4(2) is to afford the respondents in an application
under PIE an additional opportunity, apart from the opportunity
they
have already had under the rules of court, to put all the
circumstances they allege to be relevant before the court (See
Cape
Killarney Property Investments
(1229
E-F). The two subsections of s 4(5) that had not been complied with
were (a) and (c). The object of these two subsections
is, in my view,
to inform the respondents of the basis upon which the eviction order
is sought so as to enable them to meet that
case.”
3
Given the circumstances
of the application, it cannot be said that the respondent was not
aware of his right to be legally represented
neither was he unaware
of the case he had to meet. In my view the effectiveness of the
notice is determined not as a question of
law but as a question of
fact.
4
The facts of this case
show that the notice served its intended purpose as required by the
Act.
In the circumstances I
find that the applicant has established ownership of the property and
that the respondent is in occupation
of the said property. I find
that the respondent has failed to show that he is entitled to further
occupation of the property.
The respondent does not fall into any of
the categories for which special allowance is made in terms of s 5(7)
of the Act, and
cannot in the given circumstances make a claim to the
property. Having met the procedural requirements, the applicant is
entitled
to an order for eviction, with costs.
[9]
Order
The respondent is
directed to vacate the property, that is 5
th
Floor,
Ebrahim Al Ebrahim, 85/87 Victoria Street Durban, forthwith.
In the event that the
respondent fails or refuses to comply with paragraph (a) above, then
the Sheriff or his deputy of this court
is hereby authorised and
empowered to forthwith eject the respondent from the said premises.
The respondent is hereby
ordered to pay the costs of this application, including all reserved
costs, such costs to include the
costs of employing two counsel.
____________________________
Steyn, J
Date of Hearing: 5-6
December 2011
Date of Judgment: 9
December 2011
Counsel for the
Applicant: Adv T Aboobaker SC with
Adv N Moosa
Instructed by: Zaheer
Seedat and Associates
Counsel for the
Respondent: Adv R Mohamed
Instructed by: Motala and
Associates
1
[2005]
4 All SA 629
(SCA).
2
[2005]
2 All SA 108
(SCA).
3
At
para 23.
4
See
Unlawful Occupiers
,
supra
at para
28.