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[2009] ZAFSHC 137
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Steenkamp v Stuurman and Another (A77/2009) [2009] ZAFSHC 137 (27 November 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal
No.:
A77/2009
In the case between:
LEANA
STEENKAMP
Appellant
and
SIMANGA
WILSON STUURMAN
1
st
Respondent
MARGARET
NODA STUURMAN
2
nd
Respondent
CORAM:
EBRHAHIM
et
MOCUMIE, JJ
HEARD
ON:
23 NOVEMBER 2009
_____________________________________________________
JUDGEMENT:
MOCUMIE, J
_____________________________________________________
DELIVERED
ON:
27 NOVEMBER 2009
_____________________________________________________
[1] This
an appeal against the judgment of the Magistrate of Bloemfontein in
which she made the following order against the appellant
(who was the
respondent in the court a quo) on
12
December 2008:
“
1. Evicting
the Respondent 353 Dr Belcher street, Heidedal, BLOEMFONTEIN, Free
State Province in terms of section 4(1) of Act 19
of 1998 9301 is in
unlawful occupation of the said property.
2. The Respondent shall vacate the
property on or before 22 January 2009 at 17h00.
3. Should the respondent fail to
comply with prayer 2,the Sheriff is authorized and ordered to
remove/evict the respondent and any
of the occupants forthwith.
4
.
Respondent to pay the cost of this application.”
[2] In her reasons for
the above order supplied in terms of Rule 51(1) of the Magistrates
Court Rules on 2 February 2009 the Magistrate
found that
“…
the
respondent did not discharge the onus of proving ‘relevant
circumstances’ [set out in s4(7) of PIE] to show why
the owner
should not be granted an order of eviction. Therefore, prima facie
evidence adduced on behalf of the applicants (annexures
B and C)
became conclusive evidence that the applicants are the legal owners
of the property. No convincing evidence was adduced
on behalf of the
respondent to proof the contrary. Only allegations of fraud were made
by the respondent, but this court is not
entitled to cancel the Deed
of Transfer issued by the Deeds Office. Consequently the respondent
is correct in lodging an application
in the High court for setting
aside the Deed of Transfer, if so proved.”
[3] In
her
written Notice of Appeal the following three grounds are advanced by
the appellant:
“
The
Honourable Magistrate erred in fact and/or Law by:
1.1 Failing to apply her mind and
to find that the respondents’ answering affidavit raised new
matters which entitled the
appellant to replicate;
1.2
Refusing
to accept and or/to consider the appellant’s replication;;
1.3 Failing to apply her mind to
the facts on which the alleged or purported ownership was based;
1.4 Failing to apply her mind and
to consider the legal position with regard to the appellant’s
option and/or pre-emptive
right;
1.5 Considering irrelevant and
failing to consider relevant facts
2.
Further,
the Honourable Magistrate erred in law and fact by failing to apply
her mind and to consider the summons under case No
687/08 challenging
the validity of the purported Title Deed after requesting and
accepting the said summons.
3. All in all,
the Honourable Magistrate erred both in law and fact by upholding the
respondents’ application eviction with
costs.”
[4] The
short history of this case is the following. The respondent
s
allege that they bought the property in dispute from Mr Petrus Matela
Shata who has since passed away on 12 May 2006 for R40 000,
00.During
2008 they became aware that the appellant and others were occupying
the property. The respondent approached the court
for an eviction
order which application was dismissed on 5 October 2006 on the basis
that the property was never registered in
Mr Shata’s names
after he bought it from a Mrs Maria Fischer who had also passed away.
[5] On advice of the
municipality the respondents approached Mr Fisher who had been
married to Mrs Fisher in her life and knew about
the sale of the said
property. The respondents and Mr Fischer concluded another deed of
sale and transferred the property to the
respondents. The property
has since 24 April 2008 been registered in the respondents’
names as reflected in the Title Deed
attached as annexure C to the
respondents’ affidavit. On 10 October 2006 the property was
registered in their names. The
appellants have since demand refused
to vacate the premises and claimed to have leased the property from
Mr Shata with the first
option to buy.
[6] In her opposing
papers the appellant states that she entered into a lease agreement
in respect of the same property with Mr
and Mrs Shata in 2006. The
lease was concluded on the basis of pre-emptive rights whereby the
owner agreed to give her first option
should they decide to sell.
This lease agreement is not attached to the papers before us.
[
7] The
appellant contends that in any event Mr Fischer did not have the
authority to sell the property as he was divorced from the
said Mrs
Fischer in 1994, almost 13 years ago. They allege that the respondent
bought the property fraudulently whilst knowing
that the property was
on lease.
[8] The appellant alleges
that when the respondents replied they raised new issues which
prompted her to seek leave to file a replicating
affidavit. It is not
in dispute that the appellant approached the court on the day of the
hearing, 14 November 2008, a month after
the respondents had filed
their replying affidavit, with an application from the bar for an
admission of a replicating affidavit.
As conceded by the appellant
the indulgence was sought from the bar and was not substantive. The
respondents objected to the application
and the application was
dismissed. In other words the fourth affidavit was not admitted.
[9] It
is trite law that all the necessary facts upon which a litigant
relies must appear in his or her affidavit. What authors
Van
Winsen et al The Civil Practice of the Supreme Court of South Africa,
54
refer to as
“an
affidavit of merit.”
He
or she will as a general rule not be allowed to supplement the
affidavit by adducing supporting facts in a later affidavit. See
Ferreira
v the Premier, Free State
2000 (1) SA 241
(O) at 254A. The admission of any further
affidavit(s) is clearly an indulgence resting on the discretion of
the court faced with
such an application. Such discretion can only be
exercised when a proper case for condonation setting out sufficient
facts and
information why the affidavit should be admitted at such a
late stage is made out. Taking into account of course the prejudice
that may be caused to the other party. I can find no fault in the
court a quo’s approach and decision in dismissing such
application. See Rule 25(1); Rule 25(2); Rule 26 and 27 of the High
Court Rules of Practice;
Levine
v Rix
1926
CPD 242
;
Dalhouzie v Bruwer
1970 (4) SA 566
(C);
Broadley
No v Stevenson
1973 (1) SA 585
(R).
[1
0] In
terms of s4(7) of PIE read with s26(3) of the Constitution of the
Republic of South Africa 108 of 1996 ,it is not necessary
for an
applicant, in proceedings to evict an unlawful occupier from such
applicant’s property, to place more before the court
by way of
evidence than that such applicant is the owner of the property in
question and that the respondent is in unlawful occupation
thereof.
It is then up to the occupier to disclose to the court relevant
circumstances to show why the owner should not be granted
an order
for the eviction of the occupier. See
FHP
Management (Pty)Ltd v Theron No and Another
2004 (3) SA 393
(C) at 401G-H with reference to
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113(SCA)
;
Silberberg
and Schoeman’s The Law of Property,
250-255.
[11] What is immediately
very clear is that from the date of registration of the property into
the names of the respondents they
are the owners of the said
property. Anyone who was in occupation thereafter was so unlawfully.
Those are the facts which the magistrate
was faced with and had to
bring a decision upon. Nothing else. That is what this Court of
appeal must also confine itself to. The
magistrate cannot be faulted
in any manner in her approach and her application of the law in terms
of PIE.
[12] Having come to this
conclusion I find it unnecessary to deal with other arguments which
the appellant raised.
[1
3] A
fundamental issue is that the respondents have title to the property
because it remains registered in their names. See
section 16
of the
Deeds Registries Act, 47 of 1937
;
Ex
parte Menzies et Uxor
1993(3) SA 799(C) at 803-806;
Silberberg
et al
supra
.
In any event in our law there’s an assumption that the
property registered in the Deeds register is legal until the contrary
is proven. The appellant’s case as presented is one which
cannot be entertained on appeal. Correctly so as accepted by the
magistrate and the appellant the right approach to adopt is to
approach the High Court to address the issue of the validity of
the
deed of sale. The appeal must therefore fail.
[14]
In
the circumstances I make the following order:
ORDER
The appeal is
dismissed with costs.
________________
B. C. MOCUMIE, J
I agree.
_______________
S. EBRAHIM, J