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[2009] ZAGPPHC 282
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Priseshelf 11177CC v Joubert (39065/09) [2009] ZAGPPHC 282 (4 September 2009)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUHT AFRICA
(NORTH
GAUTEN HIGH COURT, PRETORIA)
CASE
NO: 39065/09
In
the matter between:
PRISESHELF
11177CC APPLICANT
AND
F
D
JOUBERT RESPONDENT
TLHAPI
AJ:
[1]
The applicant seeks an order for the eviction of the respondent and
of (all persons who occupy through her) from certain property
known
as […….] (‘the property’)
THE
FACTS:
[2]
During February 2002 Mr Henry Ingram King Angelo (‘Mr Angelo’),
sole member of the applicant entered into an oral
agreement of rental
with the respondent and her deceased husband. The respondent was
expected to pay a monthly rental of R3000.00
per month, and be
responsible for the payment of municipal rates and taxes, and monthly
water and electricity accounts.
[3]
Mr Angelo loaned a sum of R300000.00 from the respondent, payable in
monthly instalments, and the final payament had been made
on the 10
October 2007. In the year that the lease was to terminate, he gave
the Respondent notice by letter during May 2007 that
the lease would
terminate end of October of that year and that she would be expected
to evacuate the property by the 1 November
2007. According to Mr
Angelo, the respondent failed to evacuate the property. Furthermore,
she had no consent to occupy the property,
and had since failed to
make any payment towards rental, municipal rates and taxes and, water
and electricity. The amounts of R33000.00
and R38075.00 respectively
remained outstanding at the launch of this application. Preceding
this application, he sued the respondent
in the Magistrate’s
Court sitting in Pretoria, for outstanding rentals, outstanding rates
and taxes plus interest. Then,
during September 2008 the applicant
obtained an order authorising a notice in terms of section 4(2) of
the Prevention of Illegal
Eviction from and Unlawful Occupation of
Land Act,
No. 19 of 1998, (‘the
Act’) to be served on the respondent and all other persons
occupying the property and, this notice
was not served on the
municipality having jurisdiction.
[4]
The respondent confirmed the loan and that the loan amount plus
interest had been paid off by him during October 2007. She however
denied the existence of a lease agreement. She stated that besides
having made monthly payment towards water and electricity, there
was
agreement that she and her late husband would live on the property
free of charge and that they would be entitled to a lifelong
use of
the property.
[5]
In the answering affidavit the respondent raised three points in
limine:
(a)
the applicant being aware that the Act was applicable in the
circumstance, failed to disclose a cause of
action, in that this application was not brought by him as registered
owner of the property
or as the person in charge of the property, as
required by the Act;
(b)
the applicant failed to show that he had the necessary locus standi
to bring the application;
(c)
as
a result of certain previous litigation still pending before the
magistrates court the applicant should have been aware of the
disputes of fact that could result in him brining this application;
[6]
In his reply Mr Angelo attached an extract from the Registrar of
Companies stating the correct name of the applicant thereby
correcting the mistake on the notice of motion, a certificate proving
that he was the sole member and, a resolution from the applicant
dated the 7 October 2008 authorising him as member to litigate in the
name of the applicant. Furthermore, he drew the courts attention
to
the contradictory statements in this application and in the
respondent’s plea relating to the respondent’s version
of
the dispute between them.
SUBMISSIONS
[7]
For applicant:
(a)
It was submitted that there had been compliance with Rule 4 (2) the
Act in that an order dated the 15 September 2008 had been
served on
the respondent;
(b)
that the first and second points in limine raised in the respondent’s
answering affidavit be dismissed with costs in that
applicant had
provided proof that it was a duly registered closed corporation and
that a resolution authorizing Mr Angelo to act
on behalf of the
applicant had been produced;
(c)
the court is not obliged to look into every instance where a dispute
of fact is alleged to have arisen; that the dispute of
fact should be
a genuine one and the court in appropriate instances should follow
the ‘robust common sense approach’
For
the respondent:
In
addition to the points in limine raised in the answering affidavit,
it was submitted that:
(a)
the relevant municipality had not been joined as a party as required
by the Act;
(b)
that the hearing of this matter was premature in that the applicant
had failed to comply with section 4(2) of the Act;
THE
LAW
[8]
It is proper for this court to also deal with those points in limine
which were not raised by the respondent in her answering
affidavit
and which were only raised by her counsel in heads of argument. The
said points in limine relate to the application and
the
interpretation of the law . The legality of the eviction sought by
the applicant is in my view reliant on a proper compliance
with those
provisions of the Act, especially those provisions which are
peremptory.
Joinder
of the relevant Municipality
[8]
The provisions of section 4(2) of the Act are peremptory. An
application for the eviction must be preceded by service of a notice
of the proceedings 14 days before the hearing, on the
unlawful
occupier
and on
the municipality
having jurisdiction
.
This should occur before any argument on the merits of the case is
heard by the court. Although there is an undertaking in paragraph
13
of the founding affidavit that a notice will be served in compliance
with this section, the deponent failed to mention the municipality
having jurisdiction. It is common course that the municipality having
jurisdiction was neither joined as a party, nor served with
a section
4(2) notice as required by law. The order issued by the above court
on the 10 September 2008 only affected the respondent
and it was
therefore not in compliance with section 4(2). (my underlining)
[10]
It is trite that before granting an order to evict, all the relevant
circumstances need to be considered and
an order be granted which is
just
and equitable to the applicant and unlawful occupier. Having
regard to the duration in which the
respondent was resident on the
property
and, in pursuance of an order which would be just and
equitable to her, in the light of her
rights as enshrined in the
Constitution,
the municipality having jurisdiction had to be enjoined
in order to establish and reasonably
facilitate alternative
relocation
for the respondent (the unlawful occupier in the event
that the decision did not favour her),
and to report to the court
before
the order
is
granted
in
this regard, so that the court in
dealing with the matter is
appraised
of all facts. The Occupiers of Erf 101,102,104 and 112, Shorts
Retreat, Pietermaritzburg v Daisy Dear Investments (Pty)
Ltd
(SCA) Case 245/08
paragraphs
4, 5, 11 (unreported
and delivered
3 July 2009).
In
Cashbuild
(South Africa) (Pty) Ltd v Scott and
Others
2007 (1) SA
332
(T) Poswa J Stated at paragraph 28:
“
Sight
must not be lost of the purpose for which the PIE Act was enacted,
and, inter alia why municipalities were given the role
in that Act.
In the Bill of Rights, the Constitution provides the background in.
inter alia, ss 25(1) and 26(3).. ”
It
is my understanding that even before this court can determine whether
there is a dispute of fact in the matter, or whether there
was
contradiction in the respondent’s version in this application
and in her plea in the action before the magistrate, the
issue of
joinder of the municipality has to be insisted upon.
Locus
standi of Mr Angelo
[11]
In terms of section 4(1) of the Act, the application for eviction is
to be brought lby the owner or person in charge of land
for the
eviction of an unlawful occupier’. The resolution gives Mr
Angelo the authority to represent the applicant in his
capacity as a
member of the applicant and, to litigate in the name of the
applicant, in respect of the property which is the subject
of
this application. The founding affidavit was lacking in the averment
to establish the cause of action as required by the Act.
The
issue of locus standi becomes important to establish in order to
chart the way forward. It is my view, that having regard to
the
resolution, and the founding affidavit, the legal status of the
applicant and Mr Angelo are not interchangeable. Even if this
application could be postponed to allow proper joinder and service
upon the municipality having jurisdiction, the founding affidavit
does not establish proper locus standi which stipulates that he is to
litigate only in the name of the applicant and not in his
personal
capacity. The respondent has therefore in my view made out a case for
the dismissal of the application with costs.
[12]
In the premises, the following order is given:
“
The
application is dismissed with costs”
V
V TLHAPI
(ACTING
JUDGE OF THE HIGH COURT)
FOR
THE APPLICANT:
ADVOCATE
R F DE VILLIERS
ADVOCATE
JH SULLIVAN
FOR
THE RESPONDENT:
ADVOCATE PJ VERMEULEN