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[2009] ZAGPJHC 78
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Johannesburg Social Housing Company (Pty) Ltd v Tshomela and Another (2008/21105) [2009] ZAGPJHC 78 (30 September 2009)
IN THE HIGH
COURT OF SOUTH AFRICA
(WITWATERSRAND
LOCAL DIVISION) CASE NO 2008/21105
In the matter between
:
Date Heard: 16 September 2009 PH No: 342
Judgment
on: 30 September 2009
In the matter between:
JOHANNESBURG SOCIAL HOUSING
COMPANY
(PTY)
LTD Applicant
And
TSHOMELA
FRANK First Respondent
MAPHOSA
BUHLE Second Respondent
JUDGMENT
GILDENHUYS
J.:
[1] This
is an application by the fist and second respondents for leave to
appeal against and eviction order which I gave under
the Prevention
of Illegal Eviction from a unlawful occupation of Land Act, 1998
[PIE] on 24 October 2008. The order reads as follows:
The first and second
respondent is evicted from the property known as:
Block 16, Unit 22
Kliptown
Johannesburg
(hereinafter
referred to as “the property”)
The applicant is ordered and
directed to make available for rental to the respondents at
an initial rental of R660.00
per month, a unit in the Pennyville Development with effect from the
1
st
December 2008, that the Sheriff of the Court or his lawfully
appointed Deputy is authorized and directed to evict the Respondents
from the property on or after the 3
rd
December 2008.
In the event that the
respondents do not vacate the property by the 1
st
December 2008, that the
Sheriff of the Court or his
lawfully appointed Deputy is authorized and directed to evict the
respondents from the property on or
after the 3
rd
December 2008.
The respondents are directed
to pay the costs of this application.
I did not give a reasoned judgment at the time, nor was I requested
to do so.
[2] It is
common cause that, with effect from 1 July 2006, the applicant let to
the respondents (as joint tenants) Flat No 202,
Block 16, Kliptown,
and Johannesburg. The monthly rental payable by the respondents was
the sum of R1840, 00. The respondents
have fallen into arrears with
the payment of rental. They admit having received a letter calling
upon them to rectify the said
breach. They failed to remedy the
breach. The first respondent stated that, at all material times he
acknowledge his arrears and
tried to settle them. He made some
payments on account. He further stated that his is still willing to
settle the arrears, but
cannot do so for financial reasons. His wife
lost her employment and the family’s income was substantially
reduced.
[3] On or
about 9 May 2008, the applicant cancelled the agreement of lease, as
it was entitled to do. The respondent admitted that
their agreement
of lease was so terminated. Despite the (admitted) termination, the
respondents remained in occupation of the
flat. He said an eviction
would be prejudice to himself, his two children and his wife, who at
that stage was five months pregnant.
[4] The
following two paragraphs from part of the respondent’s
answering affidavit:
“At the time when the units were advertised the leaflets
distributed provided that Johannesburg Social Housing Company’s
(JOSHCO) sole purpose is to provide affordable and quality housing to
citizens of Johannesburg through provincial subsidies, grant
funding
as well as loan funding. JOSHCO caters for individuals earning a
household income between R1500-R1700 a month. When we
applied for
this Unit we were therefore inform by Cheryl [from JOSHCO that we do
not qualify for a subsidy as my total income together
with the second
respondent (herein after referred to as my wife) makes R14284.00 and
therefore can not be considered for subsidy.
Nothing
much was made of these paragraphs when the matter was argued before
me on 24 October 2008, the do, however, feature in the
application
for leave to appeal.
[5] The
grounds for appeal as contained in the application for leave to
appeal are as follows:
1. His
lordship erred in not having regard to the report of the City of
Johannesburg detailing its position with respect
to alternative
accommodation referred to in the letter of
the City of Johannesburg to the applicant’s attorneys dated
7 August 2008 which letter is filed of record at page 46
of the
paginated record, having regard to the provisions of section 4(7) if
the Prevention of Illegal Eviction from and Occupation
of Land Act,
no 19 of 1998.
_____________________
A
GILDENHUYS
JUDGE OF
THE HIGH COURT
APPEARNCES:
For the plaintiff
Mr S J van
Niekerk
instructed
by
Smith
Sewgoolan Inc
For the
defendant
Mr H C van
Zyl
instructed
by
Mabuli &
Molele Inc