Moiloa and Another v Nyokong and Others (128/2007) [2007] ZAFSHC 42 (30 May 2007)

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[2007] ZAFSHC 42
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Moiloa and Another v Nyokong and Others (128/2007) [2007] ZAFSHC 42 (30 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 128/2007
In
matter between:
TSHEGOFATSO BOTSALA
MOILOA
1
st
Applicant
OTSHEGO
TSHIAMO MOILOA
2
nd
Applicant
and
PASCAL DICHABE
NONAMODI NYOKONG
1
st
Respondent
JEANETTE GALETLALE
NYOKONG
2
nd
Respondent
MANGAUNG LOCAL
MUNICIPALITY
3
rd
Respondent
HEARD ON:
24
May 2007
JUDGMENT BY:
C.J.
MUSI, J
_____________________________________________________
DELIVERED ON:
30
May 2007
[1] This is an
application for the eviction of the first and second respondents.
The applicants seek the following order:
“
2.1 that
First and Second Respondent be evicted from the premises known as Erf
1785, Selosesha, Unit 1, district THABA NCHU, Province
Free State, in
extent 1057 square meters and that First and Second Respondents be
ordered to vacate the aforementioned property within
one (1) month
after date of this order, by failure of which the sheriff of Thaba
Nchu be authorised and ordered to evict First and
Second Respondents
immediately from the aforementioned premises
that
First and Second Respondents be ordered to pay the
costs
of this application.”
The first and second
respondents are married to each other. The third respondent is the
Mangaung Local Municipality. A copy of the
notice of motion was
served on all three respondents.
[2] It is common
cause that;
the first and second
applicants are the lawful owners of the premises known as Erf 1785
Selosesha Unit 1, district Thaba Nchu,
Free State Province. (the
property).
that the first and
second respondents are occupying the said property since March 2001
pursuant to a verbal lease agreement that
the respondents shall pay
R400.00 per month rent and also be responsible for the water,
electricity and rates levy on the property.
that during June 2004
first and second applicants instituted an eviction action against
the first and second respondents claiming
their eviction from the
property and for payment of R12 791.29 in respect of alleged arrear
rental and outstanding water and
rates accounts.
that the first and
second respondents are an educator and a nursing sister
respectively.
that first and second
respondents can afford alternative accommodation.
[3] The action to recover
the arrear rental and service charges was postponed sine die on 2
February 2005 at the Thaba Nchu Magistrate’s
Court (case number
697/2004). The eviction application was removed from the roll in the
same court on 10 February 2005 (case no
958/2004). The parties
decided to endeavour to settle these matters out of court.
[4] On
13 April 2005 the respondents’ attorney wrote to the applicants’
attorney that:
“
We
refer to the above and to the discussion the writer hereof had with
you on the 7
th
April 2005 and we attach hereto a copy of the state guarantee in
favour of the prospective purchasers.
The attached state guarantee expired
in December 2004 as the purchasers did not proceed to obtain a home
loan in the light of the
pending action between the parties. It can
still be applied at any time if it is based the agreed purchase price
of R150 000.00.
We shall appreciate to hear from
yourselves regarding the above matter.”
[5] On 11 May 2005 the
applicants’ attorney responded as follows:
“
With reference to the above as well
as your settlement proposal.
We
confirm that we have consulted with our clients and is the offer
accepted.
We (condition) that the offer is
accepted on condition that:
Your client will stand in for the
rates and taxes as from date of occupation; and
That the purchase agreement between
our client and the third party regarding the house () duly
cancelled.
We trust you will find the above in
order and will revert to you in due course.”
[6] On 29 June 2005 the
respondents’ attorney wrote to the applicants’ attorney and sent
them a signed deed of sale and stated
that:
“
With
further reference to the above matter we send under cover hereof for
your attention a contract of sale duly signed by the purchasers.
We
shall appreciate it if you would peruse same and, if so instructed,
have it signed by the sellers and proceed with the registration
process.
The
purchasers’ application for a home loan has been approved and
details thereof will be furnished once the sellers have instructed
you to proceed in accordance with the attached contract of sale.”
[7] The response to that
letter was on 6 July 2005 to the following effect:
“
We
refer to the above mentioned matter as well as your letter dated the
29
th
of June 2005.
We have instructions from the sellers
not to proceed with the Agreement of Sale regarding your client, due
to the fact that our client
is still awaiting (furthermore) offers
regarding the property.
We
will obtain (furthermore) instructions from our client in due course
and will keep you posted.”
[8] I deliberately don’t
deal with the issues prior to February 2005 because it is clear from
the letters quoted above that the
parties at least between 13 April
2005 and 6 July 2005 wanted to settle the matter amicably. It is
clear that the respondents made
an offer to purchase the property and
that their offer was not accepted. There is no further written
communication from the applicants’
attorney to the respondents’
attorney in relation to this matter. There is also no written demand
that the respondents should
vacate the premises.
[9] The applicants aver
that the respondents are unlawful occupiers of their property. The
respondents on the other hand aver that
they had tacit consent to
occupy the property at the time of the launching of these
proceedings.
[10] Section one of the
Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act
, No. 19 of 1998 (PIE Act) defines an unlawful
occupier as follows:
“
unlawful occupier” means 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 No. 31 of 1996).”
[11] The applicants must
therefore prove that at the time of launching these proceedings the
respondents occupied the property unlawfully.
Ndlovu v Ngcobo;
Bekker and Another v Jika
2003 (1) SA 113
(SCA) at 120 D –E.
If the applicants as owners succeed in doing that it would then be
up to the unlawful occupier to disclose
relevant factors why the
Court should not exercise its discretion in favour of the applicant
and grant an eviction order.
FHP Management (Pty) Ltd v Theron
NO and Another
2004 (3) SA 392
(C).
[12] In applications
where there are factual disputes, like in this matter, it is trite
that a final order, as sought in this matter,
may be granted if those
facts averred in the applicants’ affidavits which have been
admitted by the respondents together with the
facts alledged by the
respondents together justify such an order. If however the
respondents deny a fact that denial should not
be far fetched or
clearly untenable. Vide
Plascon-Evans Paints v Van Riebeeck
Paints
1984 (3) 623 (AD) at 634 H – 635 C.
[13] It is clear that the
lease agreement between the parties came to an end in November 2003.
Whether the respondents stopped paying
rent during 2002 or 2003 is
irrelevant to determine this dispute. The applicants can always
institute action for the recovery of
their arrear rent money. What
is clear is that during 2004 the applicants showed unequivocally that
they do not want the respondents
on the property. They went to the
magistrate’s court Thaba Nchu to seek an eviction order. They also
claimed arrear rental and
service charges. As stated above the one
matter was removed from the roll and the other was postponed, by
agreement, sine die.
[14] The parties’ legal
representatives started negotiations in order to settle the matter.
From the missives by the attorneys
it is clear that the main offer on
the table was that respondents buy the house for R150 000.00. Whilst
these negotiations took
place and clearly driven by the respondents
nothing was said about the respondents occupation of the house. In
fact the respondents
were made to believe that their offer has been
accepted. The letters clearly support the respondent’s contention
that they may
remain in the house; buy the house at R150 000.00 but
that they would be liable to pay all the arrear rates and taxes in
order to
effect transfer.
[15] The applicant’s
contention that their mother does not recall ever instructing Mr CJ
Dippennar of Honey Attorneys to conclude
an agreement of sale with
First Respondent is simple not true and very hollow. It is clear
from the letters that Dippenaar indicated
that he had the necessary
instructions and where necessary that he would revert to his clients.
In fact on the applicants own case
they concede that there were
negotiations to sell the property to the respondents. The first
applicant states in her replying affidavit
(paragraph 23.4).
“
As far as our mother can recall the
attempts to sell the property to First Respondent was (sic) done out
of pure frustration since
she had so much difficulty in evicting
First and Second Respondents from our property.”
Whatever drove her or
whatever her reasons or motives were is irrelevant. The fact of the
matter is that there were attempts to sell
the property to the
respondents.
[16] When the applicants
rejected the respondents’ offer to purchase they deliberately
attempted to leave the back door open. Instead
of saying
unequivocally that the respondents offer is rejected and that the
negotiations in relation thereto has deadlocked or will
not be
proceeded with they decided to inform the respondents that they “will
obtain furthermore (sic) instructions from our client
in due course
and will keep you posted.” This letter was written on 6 July 2005.
They knew that the respondents were still staying
on the property.
They did nothing between then and when they served these papers on
the respondents on 23 January 2007.
[17] The respondents deny
that the applicants’ mother requested them to vacate the premises
during May 2005 and June 2005. This
denial is plausible, because the
respondents’ attorney sent a signed offer to purchase on 29 June
2005 to the applicants’ attorney.
On 6 July 2005 the applicants’
attorney rejected the offer but did not request the respondents to
vacate the property.
[18] It is clear from
these facts that the respondents defence that the applicants at least
through their attorney showed their acquiescence
with the state of
affairs. Moreover since July 2005 to January 2007 the applicants
have done nothing to show their disapproval.
One would have expected
some express act to show that the negotiations have finally failed
and that the respondents must vacate
the property. Acquiescence or
tacit consent can only be destroyed by an express act. It is that
express act after 6 July 2005 that
is missing in the applicants’
case. The applicants can therefore not succeed.
[19] I am constrained to
add the following. This is yet another case which illustrates how
difficult, frustrating, time consuming
and costly it can become for
the lawful owner of the property to evict a person in terms of PIE.
The situation in this matter was
compounded by the legal
representatives of the applicants. Firstly, by not putting a proper
application before the magistrate at
Thaba Nchu and having the matter
removed from the roll. Secondly, by failing to take obvious steps
and thereby opening the door
for the respondents to take technical
but legal points which could have been avoided had the applicants’
legal representatives
been more vigilant. On the other hand one must
emphasise, again, that PIE is not a way to expropriate the landowner
and that it
cannot and should not be used to expropriate someone
indirectly.
Wormald NO and Others v Kambule
2006 (3)
SA 562
at 569 F. PIE is also not a way of forcing a landowner to
sell his/her property to the occupier. The owner of land can
lawfully
refuse to sell his/her land to the occupier. Worst still
when the occupier wants the property to be sold on his terms. I can
only
express the hope that the applicants in pursuing this matter
will make sure that they follow the law (substantive and procedural).
[20] In relation to the
cost in this matter, the applicants instituted eviction proceedings
in the magistrates’ court. Those proceedings
were removed from the
roll. The applicants, wrongly, thought that their application was
dismissed. They suspected, without any
course or substance, that the
magistrate colluded with the respondents, whereas they did not have
their house in order. They lodged
an application for the
magistrate’s recusal and later withdrew the application. They
argue that the reason why they launched the
proceedings in this court
is because of their unsubstantiated fear of bias. There are three
magistrates at Thaba Nchu. One of the
two others could have dealt
with this case. If they feared bias from all three, they could have
requested that a magistrate from
an adjacent district preside over
this matter. They dragged the respondents to this court based on
this spurious and unsubstantiated
allegation against the magistrate.
I considered making a punitive cost order to show my displeasure but
due to the facts and circumstances
of this case I decided against it.
The respondents as successful parties, are entitled to costs on this
court’s scale.
[21]
I accordingly
make the following order:
(a) The application
is dismissed.
(b) The
applicants are ordered to pay the respondent’s
costs jointly and
severaly, the one paying the other to be absolved.
____________
C.J. MUSI, J
On
behalf of the Applicants: Adv. H.J. Cilliers
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Respondents: Mr. M.S. Litheko
Instructed
by:
Majola
Attorneys
BLOEMFONTEIN
/ms