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[2024] ZALMPPHC 137
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Engelbrecht N.O and Others v Maluleke and Others (11334/2022) [2024] ZALMPPHC 137 (16 August 2024)
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Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SO
U
TH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 11334/2022
(1)
REPORTABLE: YES
(2)
OF INTEREST TO THE JUDGES: YES
(3)
REVISED.
DATE: 16/8/2024
SIGNATURE:
IN
THE MATTER BETWEEN:
KARIN
ENGELBRECHT N.O
.
1
st
Applicant
STEPHANUS
PAULUS ENGELBRECHT N.O.
2
nd
Applicant
THE
OFFICE OF STELLENBOSCH (PTY) LTD
(REPRESENTED
BY ILZEMARIE KNOETZE N.O.)
in
their capacities as trustees of the SP & K Trust
with
Master's reference:
IT 1459/2005
3
rd
Applicant
SP
& K PROPERTIES 1(PTY) LTD
4
th
Applicant
and
TSUNDZUKA
KEVIN MALULEKE
1
st
Respondent
THE
UNKNOWN OCCUPIERS OF UNIT NO. [...],
J[...],
B[...] STREET, N[...] ESTATE, BENDOR,
POLOKWANE,
LIMPOPO PROVINCE
2
nd
Respondent
THE
POLOKWANE LOCAL MUNICIPALITY
3
rd
Respondent
JUDGEMENT
TSHIDADA
J.
[1]
Having read
and considered the documents filed on record and having heard
counsel, the following order was granted by this court
on 21 May
2024, thus;
1.1
The
cancellation of the
lease
agreement is
confirmed
.
1.2
The 1
st
and 2
nd
Respondents are in unlawful occupation of the property known as Unit
No
.
[...],
J[...] B[...] Street, N[...] Estate, Bendor, Polokwane, Limpopo
Province (hereinafter referred to as
"the
property')
and that
it is just and equitable that the 1
st
and 2
nd
Respondents, as well as all persons occupying the said property,
should
be
evicted from the property in terms of Section 4(1) read with Section
6(1) of Act 19 of 1998, upon the grounds set out in the
application
whereby proceedings were instituted.
1.3
The court
deems it just and equitable the 1
st
and 2
nd
Respondents shall vacate the property by no later than 30 June 2024.
1.4
The 1
st
and 2
nd
Respondents and all those occupying the property through them are
ordered to remove all their personal belongings from the property
by
the date set in order 1.3 hereof.
1.5
The 1
st
Respondent is ordered to deliver to the Applicant's attorneys all
keys and/or remotes and/or access cards giving access to the
property
by the date set in order 1
.
3
hereof.
1.6
Should the 1
st
and 2
nd
Respondents not vacate the property by the date set in order 1.3
hereof, the court orders that the eviction order as set out above
may
be carried out by the Sheriff of the above Honourable Court on 1 July
2024 or any day thereafter as the Sheriff of the
above Court is able
to do so.
1.7
Directing and
authorizing the Sheriff of the above Honourable court to evict/eject
and to remove all the 1
st
and 2
nd
Respondent's personal belongings from the property as from the date
set
out
in
order
1
.
6
hereof.
1.8
The South
African Police Services is ordered to assist the Sheriff in the
execution of his duties in accordance with order 1.6,
if so,
requested by the Sheriff
.
1.9
The 1
st
and 2
nd
Respondents are ordered to pay the costs of the application on
attorney and own client scale.
[2]
Herein follows
a full judgment and reasons for the order granted afore, as requested
by the 1
st
Respondent's legal
representative.
[3]
Applicants
issued the current eviction application from this court, and on the
same day caused same to be personally served on the
1
st
Respondent at his chosen
domicilium.
1
st
Respondent in turn
served
and filed a
notice of intention to oppose the application dated 25 October 2022.
[4]
1
st
Applicant averred in their founding papers that on or about the 1
st
August 2016, SP and K Trust duly represented by its authorized agent,
namely Majacon 1129 (Pty) Ltd and the 1
st
Respondent in his personal capacity entered into a written Lease
Agreement (hereinafter referred to as
"
the
Lease Agreement
'
'),
for the
1
st
Respondent to rent,
occupy
and use the property as residence with his immediate family, as per
the agreed terms. A property listed and known as Unit
No. [...],
J[...], B[...] Street, N[...] Estate, Bender, Polokwane, Limpopo
Province situated on Erf 4[...], Bendor Ext 92, Polokwane
.
[5]
To be noted is
that the Trust later sold the property to the 4
th
Respondent on 16 September 2016. The 4
th
respondent as a result was therefore substituted
ex
lege
for
the original lessor. Notwithstanding, the 4th Respondent retained the
Trust and Majacom 1129 (Pty) Ltd as its agent, for them
to continue
managing and interacting with its tenants.
[6]
The lease of
the property was to commence from 1 August 2016 to continue for an
indefinite period subject to such further conditions
provided for on
the lease agreement.
[7]
Amongst
others, the monthly rental due and payable would be an amount of
R7
400.00
(Seven
Thousand Four Hundred Rand). The amount of rent was to increase in
accordance with further terms stipulated on Clause 1
.
7
of the lease agreement
[1]
.
[8]
Clause 18.1
provided that, should the 1
st
Respondent, as a tenant, fail to pay the rental or any portion
thereof by the due date thereof or breach any provision of the
agreement and or fail to comply with such provision,
the
Trust shall be entitled subject to the stipulations of the
Consumer
Protection Act 68 of 2008
, to cancel the agreement and to evict him
or any person or persons occupying the property, without prejudice to
the Trust's right
to claim any due rentals with interest on any
arrears, alternatively, the Trust may demand specific compliance of
the terms and
conditions of the agreement, in either event, without
prejudice to any right to damages.
[9]
In the event
of breach of any term or clause of the lease agreement, first part of
Clause 3.2, entitled either party to terminate
the lease by giving
not less than two (2) calendar month's written notice of termination
of the lease to the other party, provided
that such notice shall not
be given before the expiration of a period of twelve (12) months from
the commencement of the lease.
[10]
The 1
st
Respondent chose and selected the address of the leased property as
his
domicilium
citandi et executandi
henceforth
and up until the date of granting of the afore-stated order by this
court
.
[11]
Applicants alluded
that during the course and existence of the lease agreement,
unfortunately the 1
st
Respondent defaulted and failed to timeously pay his rentals when it
was due and payable. Despite various
verbal
demands, he is reported to have failed and/or refused to pay his
accrued arrears and current rentals
.
[12]
Complaints
regarding 1
st
Respondent's failure to honor his obligation was allegedly lodged and
referred to the Rental Housing Tribunal for possible resolution.
Subsequently, parties were able to reach an agreement in terms of a
written Settlement Agreement concluded on 14 March 2022, not
necessary to discern in this judgment.
[13]
Regardless of
the parties' agreement that, amongst others
,
the 1
st
Respondent shall
remain liable to pay the monthly rent of the property in terms of the
ex
i
sting
lease agreement, and further endeavor to bring the arrear rentals up
to date
,
sadly, the
Applicants indicated that the 1
st
Respondent was
furthermore unable to pay his monthly rentals and/or update his
arrears thereof
,
save for one
and only payment of
R7
000.00
(Seven
Thousand rand)
,
made on 3
March 2022.
[14]
In
l
ight
of the above, Applicant reinstated its complaint with the Rental
Hous
i
ng
Tribunal during April 2022. After the Mediator appointed by the
Tribunal referred the complaint for hearing, it is stated that
the
1
st
Respondent ostensibly as a knowledgeable practicing advocate of the
High Court of South Africa, took the Mediator's decision on
review
since 8 June 2022. For a period over two years the said review
remains unprosecuted for reasons better known by the 1
st
Respondent himself.
[15]
Applicants
have highlighted on a tenant's monthly rental statement annexed to
the founding papers that the 1
st
Respondent was in arrears with his monthly property rentals and
ancillary charges to the tune of
R110
300.02,
as
at 1 October 2022, excluding rentals and related charges that accrued
since October 2022 to date of final order.
[16]
Due to the 1
st
Respondent's failure
to comply with his obligations in terms of the parties lease
agreement, the Applicants resolved to invoke Clause
18
.
1
of the agreement, thereby notifying the 1
st
Respondent in writing on 24 August 2022 through the services of a
Sheriff of this court, of his breach and Applicant's subsequent
decision to cancel the agreement and demand that the 1
st
Respondent forthwith
vacate the leased property by no later than 30 September 2022,
failing which eviction proceedings shall be
instituted against him.
[17]
On 29 September 2022,
1
st
Respondent's legal representative wrote to the Applicant's legal
representatives
threatening
that should the Applicant attempt to
institute
eviction
proceedings against their client, same shall prompt the 1
st
Respondent to approach the High Court on urgent basis for unspecified
relief.
No
such application was ever
launched
by the 1st Respondent till the day of hearing of this application by
this court.
[18]
Of note is
that, in spite Applicant's letter of demand for 1
st
Respondent to vacate the property, he remained in occupation for the
entire period until the hearing of this application. An occupation
which the Applicants contends has always been unlawful until the
granting of a final eviction order of the 1st Respondent by this
court for his failure and/or refusal to pay the owing rentals and to
vacate the property.
LEGAL
FRAMEWORK
[19]
Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(herein referred to as
"PIE
Act')
is
intended to provide for the prohibition of unlawful eviction and also
to provide for procedures for the eviction of unlawful
occupiers.
[20]
Section 4(2)
of the PIE Act requires unlawful occupier facing eviction to be given
at least two weeks
"written
and
effective notice"
of
the date on which proceedings for their eviction will be heard. The
Applicant has to approach court ordinarily through an
ex
parte
application
that precedes the main application, seeking the court to grant an
order to authorize service of such notice combined
with the main
application, where necessary.
[21]
An
unlawful occupier is entitled to a 4(2)
[2]
notice
separately apart from the ordinary main application papers that
institute the eviction process
.
The
form and manner of service of the notice comprised of the main
application papers must be approved by the court. See paragraphs
13
and 14 of
Cape
Killarney Property Investment v Mahamba
[3]
.
[22]
It is trite
law that procedure contemplated on PIE Act is applicable to eviction
of unlawful occupiers from property used for residential
purposes
.
[23]
Section 4(2)
notice is peremptory to the extent that its purpose is obligatory for
the property owner to seek authorization from
court to serve a notice
advising the occupiers of the date on which the eviction per the main
application documents will be heard
.
The Act
requires that a Section 4(2) notice be served on occupiers and the
municipality having jurisdiction at least 14 days prior
the hearing
of the eviction proceedings.
[24]
The court may
after hearing an eviction application and in appropriate
circumstances grant an eviction order if it is
"just
and equitable"
to do so.
[25]
In compliance with
the prescribed notice requirement, the court granted Applicants
authorization on 2 February 2023, to serve the
notice on the
Respondents advising them that the eviction application against the
1
st
Respondent shall be
heard on 16 May 2003 at 10h00
on
the grounds
set out on the affidavit attached to the main application so
served
on the 1
st
Respondent.
[26]
With
no answering or opposing papers forthcoming from any of the
Respondents since February 2023, and when the
dies
to
file
same
having
lapsed, the Applicants then enrolled the application to be heard on
the unopposed roll of the 16 May 2023, in terms of Rule
6(5)(c) of
the Uniform Rules of the High Court and as per Directive 13.3.6
[4]
of
the Practice Directives of this Honourable Court.
[27]
However, the
application could not proceed on the day as scheduled and was
ultimately removed from the roll with no costs order
due to the
Applicant's omission to file all original documents in the court
file. Respondents were further ordered to file their
answering
affidavit within ten (10) days from granting of the order. Any reply
to be filed ten (10) days after receipt of answering
affidavits.
[28]
Surprisingly, the
Applicants indicated that to its dismay, on 19 May 2023, 1
st
Respondent filed
"leave
to appeal a
removal order" of an application which he did not oppose, and
astonishing, was that
the
purported
"leave
to
appeal" sought to contest an order which, in any case, and by
right was indirectly in his favour, in that the unopposed
eviction
application against him did not proceed on the day. The intention and
purpose of the leave to appeal an order granted
somewhat in ones
favour, in my view becomes questionable.
[29]
In order to
fulfill the purpose of Section 4(2), the Applicants enrolled a fresh
ex parte
Section
4(2) application seeking an order authorizing service of a notice on
the Respondents to inform them of 21 May 2024 to be
the allocated
date for hearing of the main eviction application
.
The court
granted the order which was equally served by Sheriff on Respondents
chosen
domicilium
.
[30]
Section
18(2) of the Superior Courts Act
[5]
,
provides thus;
"subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution
of
a
decision
that is an interlocutory order not having the final effect of
a
final
judgment, which is the subject of an application for leave to appeal
or of an appeal
,
is not
suspended pending the decision of the application or appeal."
[31]
Essentially
,
interim orders
which are not determinative of the issues are not appealable, unless
the court under "exceptional circumstances"
orders
otherwise. For instance, it is startling to fathom the cause and
bona
tide
intention
,
if any, to
appeal an
ex
parte
order
granted to authorize service of the 4(2) notice in terms of PIE Act
of which its primary purpose is merely to inform the other
party
alleged to being an unlawful occupier of a date for hearing of the
main eviction application
.
If anything,
such an order best serves any of the Respondent to enable him/her to
prepare opposition of the main application timeously,
if any.
[32]
All the
attempts by 1
st
Respondent to appeal the interlocutory orders which are not final in
nature nor decisive of the main application seemingly to circumvent
the hearing of the main application, were, in my view, spurious
,
unsustainable
in law, at best ill conceived, unfounded and frivolous
.
This court
finds the attempts to have been of no intent other than a delaying
tactic to halt the hearing and finalization of the
main dispute
between the parties. Much so because the 1
st
Respondent would always find time to file any other document to
impede the hearing of the main application
,
yet neglecting
to file answering papers to oppose the impending application on the
merits.
[33]
If indeed the real
intention was to contest the main application, I fail to understand,
ne
i
ther
did I find anything that could have prevented the
1st
Respondent, particularly, to file his opposing papers even after he
was invited to do so by the court on 16 May 2023
.
[34]
It is further
unimaginable why a Respondent would seek to appeal an order for the
removal of the matter from the roll without any
costs order granted
against him/her, not unless the approach is intended for ulterior
motive like what appears to be the case in
this matter.
[35]
In my view,
both the applications seeking to appeal the referred interlocutory
orders deserves for what it is worth to be declared
pro
non scripto.
[36]
The main
application then served before this court again on unopposed basis
for the sole reason that it remained without any opposing
papers
filed since its
inception
back in the
year 2022 to date.
[37]
Albeit, on the day of
hearing, counsel noted appearance on behalf of 1
st
Respondent. I found him to have been there clearly to interrupt the
hearing because he could barely proffer a reasonable explanation
and
basis for his opposition, absent any opposing or answering papers
filed on record or in his possession, notwithstanding the
court
reminding him of the basic rules regulating motion proceedings,
mainly that parties' cases are pleaded on paper/affidavits.
Further
that, an opposed
application
is comprised of three sets of affidavits, they being, the founding
affidavit, answering affidavit and replying affidavit,
if any,
[38]
As a result of
court's enlightenment to him, counsel rightly conceded that his
opposition from the bar was misplaced and inappropriate
to cause the
court to hear the application as an opposed matter, but for the
matter
to
proceed on unopposed basis, since
it
was so
enrolled with 1
st
Respondent full knowledge.
[39]
Counsel could
neither explain why the 1
st
Respondent has failed and/or neglected to file his answering
affidavit since the year 2022 when he first became aware of the
application,
and why he could not do so subsequent thereto when the
matter came before court and even after he was
invited
to do so at
the
instance
of both the
Applicants and the court when the matter was previously removed from
the roll.
[40]
Absent any
plausible explanation, counsel was excused from participating in the
proceedings simply because the 1
st
Respondent that he sought to represent had failed to oppose the
application on numerous occasions save for only filing a notice
of
intention to oppose.
[41]
The dire consequence
of the respondents' failure to file answering affidavit enabling them
to put their versions before court and
to oppose/challenge the
Applicant's averments from the founding papers is
considered
fatal, in that the Applicant's case remains and is bound to proceed
uncontested, likewise in this case.
[42]
Having perused
the documents and considered the submissions made by counsel for the
Applicants, this court was persuaded and satisfied
that a case has
been made out to prove that the 1
st
Respondent breached the terms of the parties' lease agreement, and
that the agreement was lawfully cancelled rendering the First
and/or
Second Respondents unlawful occupiers of the property.
[43]
This court
remains satisfied that there has been full and proper compliance with
the procedure and the law, as envisaged in the
PIE Act.
[44]
In the result,
this court was justified when granting an order in terms of the
relief sought in the notice of motion, succinctly
set out from sub
paragraphs 1.1 to 1.9 of this judgment.
[45]
I accord
i
ngly
confirm the court order granted by this court on 21 May 2024 and that
same is to be incorporated and read into this judgment.
[46]
The scale of costs
granted emanates and was provided for on Clause 5.8 of the Lease
Agreement, thus the legal costs arising
from any legal proceedings
between the parties shall be on an attorney and own client basis.
T.C.
TSHIDADA
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
Appearances:
For
the Appellant:
Adv HF Marx
Instructed
by:
De Bruin Oberholzer Attorneys
Polokwane
For
the 1
st
& 2
nd
Respondents:
Counsel excused (application
unopposed)
For
the 3
rd
Respondent:
No appearance
Date
of hearing:
21 May 2024
Judgement
delivered on:
16 August 2024
Judgment
electronically
transmitted
to the parties on:
16 August 2024
[1]
"The
Landlord
has the
right
to
increase
the
rent after giving two calendar months
'
notice
of the intention to increase
the
rent
.
The
rental
will
not
increase
before
the
expire
of
the
12 month
period
as stipulated in
paragraph
3.2
".
[2]
In
terms
of
PIE
Act
[3]
[2001)
4
ALL
SA
479
SCA
[4]
Where
the
Respondent
has
failed
to
deliver
an
answering
affidavit
and
has
not
given
notice of an
intention
to raise a question of
law
in
terms
of Rule 6(5)(c) or a
point
in
limine
,
the
application
must
NOT
be
enrolled
for
hearing on the opposed roll.
Such application
MUST
be
enrolled on the unopposed
roll".
[5]
Act
10 of 2013