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[2024] ZAECMKHC 102
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Coetzee and Others v Popeye Trust (CA65/2024) [2024] ZAECMKHC 102 (1 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Appeal
Case No: CA 65/2024
Case
No. (Court
A quo
): 330/2022
Date
Heard: 06 September 2024
Date
Delivered: 01 October 2024
In
the matter between:
SHELLY-ANN
COETZEE
FIRST APPELLANT
CATHARINA
COETZEE
SECOND APPELLANT
ANY
PERSON OCCUPYING THE IMMOVABLE
THIRD APPELLANT
PROPERTY
ERF 2[…], JEFFREYS BAY, SITUATED
AT
3[…] K[…] STREET JEFFREYS BAY
THROUGH
THE FIRST RESPONDENT
and
POPEYE
TRUST
(IT9522/2004)
RESPONDENT
JUDGMENT
MULLINS
AJ:
[1]
This is an appeal against a judgment of the Regional Court sitting in
Humansdorp,
Eastern Cape Province, in terms of which the Appellants
were ordered in terms of the Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act, 19 of 1998 (“PIE Act”)
to vacate a property registered in the name of the Respondent, a
trust.
[2]
The matter has a long and unfortunate history, which it is necessary
to briefly set
out:
(a)
Due to a commercial dispute the First Appellant and one Christo
Coetzee (“Coetzee”),
who are married to each other, were
sued in the (then) Port Elizabeth Regional Court by Coetzee’s
erstwhile business associate.
Although no details of this
dispute have been disclosed (nor is it necessary to go there), in
2019 a default judgment was granted
against them, which they failed
to satisfy, as a result of which the judgment creditor initiated
execution proceedings against
them;
(b)
In due course an immovable property owned by Coetzee was sold in
execution, the Respondent
being the purchaser thereof;
(c)
The property in question, being Erf 2[…] Jeffreys Bay,
Division of Kouga, Province
of the Eastern Cape, which is situated at
3[…] K[…] Street, Jeffreys Bay (“the Property”),
was registered
in the Respondent’s name on 10 November 2021;
(d)
At the time the Property was still occupied by Coetzee, his wife and
his mother, who are
the First and Second Appellants. All
attempts to get them to vacate proved fruitless, as a result of which
the Respondent
was eventually obliged to resort to the PIE Act, the
statutory notice being served on 15 June 2022 and the application
being launched
on 7 September 2022;
(e)
For reason which are unclear the application cited Coetzee’s
wife and mother as the
unlawful occupiers, but not him.
However, as the Third Respondent was cited as “Any Person
Occupying the Immovable
Property …” in question, and as
it is not in dispute that Coetzee is also in occupation thereof,
describing himself
as “
the primary occupier”,
nothing
turns on this issue;
(f)
Through Coetzee the Appellants have tried every stratagem to avoid
their eviction.
They took numerous spurious technical points
and adopted delaying tactics worthy of the epithet “Stalingrad”.
Fortunately, it is not necessary to list the tactics adopted by the
Appellants to avoid the inevitable, but the Court’s displeasure
at their conduct will be reflected in the costs order we intend to
make.
[3]
So much for the background. The only cogent argument raised by
the Appellants
in the court
a
quo
,
and before us, is based on the decision of
Campbell
v Botha and Others
[1]
which is dealt with below.
[4]
Section 70 of the Magistrates’ Court Act, 32 of 1944 states:
“
70
Sale in execution gives good title
A sale in execution by
the messenger shall not, in the case of movable property after
delivery thereof or in the case of immovable
property after
registration of transfer, be liable to be impeached as against a
purchaser in good faith and without notice of any
defect.”
[5]
In
Campbell
a municipality
[2]
was granted a
default judgment against the registered owner of an immovable
property, who was a minor at the time, for failing
to pay rates and
taxes. In due course the property was sold in execution
to satisfy the judgment. For reasons
which are not relevant the
action never came to the owner’s attention. And although
in dispute, it was accepted by
the court that the notice of
attachment, as required by what was then rule 43(2)(a) and (b) of the
Magistrates’ Court Rules,
[3]
had not been served on him, nor had it been published.
[6]
An application by the original owner for the recission of the default
judgment was
successful.
[7]
Thereafter, based on his lack of capacity to be sued
and
the
fact that the notice of attachment had neither been served nor
published, an application to have the sale in execution set
aside was
brought. The application was opposed by the purchaser of the
property who, it was not in dispute, had purchased
in good faith.
The application was dismissed by the court
a quo
.
On appeal the Supreme Court of Appeal held that, quite apart from the
judgment being void because of the owner’s lack
of legal
capacity, in the absence of proper service of the warrant or notice
of attachment, i.e., compliance with the then rule
43(2), no
attachment had occurred. The court held:
“
[18]
An attachment is effected by way of a notice by the sheriff served
together with a copy of the warrant of
execution upon the execution
debtor as owner, upon the registrar of deeds, upon all registered
holders of bonds registered against
the property, if the property is
in the occupation of some person other than the execution debtor,
also upon such occupier and
upon the local authority in whose area
the property is situated. Whatever the position may be if
service is not effected on
any of the other interested persons there
can, in my view, never be said to have been an attachment where
neither the warrant nor
the notice of attachment had been served on
or brought to the notice of the owner.
[19]
In the present case neither the warrant nor the notice of attachment
was served on the appellant
and he was unaware of the purported sale
in execution. In the circumstances there can be no question of the
sheriff having substantially
complied with what was required for an
attachment. There had been no compliance at all. The fact that it is
unlikely that there
would have been any reaction from the appellant
had the warrant been published in the Cape Argus, as was found by the
court a quo
to have been the case, does not assist the respondents
either as such unlikelihood cannot convert a non-attachment into an
attachment.
[20] As the property had
not been attached in execution of a judgment the sale that was
conducted was not a sale in execution of
the judgment and was
therefore not protected by s 70. It was no more than a purported sale
in execution. Not having attached the
property, the sheriff had no
authority to conduct a sale thereof and to transfer the property to
the purchaser. As was said by
Maasdorp JA in Rossouw and Steenkamp v
Dawson
1920 AD 173
at 180:
‘
The Sheriff acting
without authority is in no different position to any other person
acting without authority in selling the property
of a person who has
not authorised such sale.’
It
follows that the appellant remained the owner of the property.”
[8]
In the present matter the Appellants rely on what can only be
described as a “throw-away
line”. In the answering
affidavit on behalf of the Appellants Coetzee states:
“
22.
In short, the Respondents were never notified of the attachment of
the property by the execution creditor,
and only learnt about the
sale in execution less than five days prior to the sale in
execution. The same factual situation
which arose in CAMPBELL v
BOTHA
[2008] ZASCA 126
;
2009 (1) SA 238
(SCA), was prevalent in the case of the sale in
execution of my and the Respondents’ property.”
[9]
It is not correct that the same factual situation arises, in that:
(a)
Coetzee, who was the registered owner of the Property, was not a
minor when default judgment
was granted against him and the First
Appellant;
(b)
The Appellants rely on a bald statement that Coetzee was not notified
of the attachment
of the Property. By contrast, in
Campbell
the original owner of the property went to great lengths to prove
that the notice of attachment had not been served on him, nor
published as is required by the then rule 43(2) of the rules of that
court;
[4]
(c)
Despite numerous references to pending applications (plural) in
various different
courts for the rescission of the default judgment
granted against the First Appellant and Coetzee, no such application
has ever
been brought to finality
[5]
and the judgment stands. It is odd, to say the least, that
although these applications were apparently handed up during the
proceedings in the Regional Court the Appellants, who are responsible
for the preparation of the appeal record, did not see fit
to include
them in the record before us;
(d)
Perhaps most significantly, in
Campbell
the default judgment
had been rescinded and what was before the court was the setting
aside of the sale in execution. That
is not what we are faced
with. This is a PIE Act application brought by the current
registered owner of the Property and
there is no counter-application
before us to have the sale in execution set aside.
[10]
In conclusion, the Appellants’ reliance on the
Campbell
judgment is misguided.
[11]
That brings us to the requirements of the PIE Act.
[12]
It is not in dispute that the formal requirements were duly complied
with. Having rejected
the Appellant’s only potentially
valid argument, their continued occupation of the Property is
unlawful.
[13]
There are three persons living on the Property: Coetzee, his
wife and his mother.
They do not allege that they will not have
a roof over their heads if they are evicted. In fact, on the
contrary, it is alleged
that Coetzee owns another property in
Gqeberha, which is not denied on the papers. Counsel for the
Appellants very properly
confirmed that this is correct.
[14]
The only defence to the eviction is Coetzee’s allegation that
his mother is 81 years of
age and “…
She is on
numerous types of medication and not of good health”
.
Not only is this a bald statement, in her confirmatory
affidavit, which is all of four lines long, Mrs Coetzee senior
fails
to elaborate on the status of her health. A litigant who
seeks the sympathy of the court is obliged to do more
than make a
bald, unsupported statement. If Mrs Coetzee senior really has
health problems which militate against her eviction
it would have
been the easiest thing to specify what they are and why it would not
be just and equitable to order her to vacate
the Property.
[15]
As the Appellants have been in occupation of the Property for more
than six months section 4(7)
of the PIE Act is applicable. We
are satisfied that it would be just and equitable to order their
eviction.
[16]
Section 4(8) of the PIE Act provides that where a court is satisfied
that the requirements of
the section have been complied with it
must
grant an eviction order, having regard to:
(a)
A just and equitable date on which the unlawful occupier must vacate
the land and in what
circumstances;
(b)
A date upon which the eviction order is to be carried out if the
unlawful occupier of the
land fails to vacate.
[17]
Section 4(9) of the PIE Act provides that in determining a just and
equitable date on which an
unlawful occupier is to vacate, the court
must have regard to the length of time he/she and his/her family have
resided on the
land in question. In the present matter one does
not know how long the Appellants have lived on the Property.
However,
the unlawful occupation has endured for three years, but
given the history of the matter this is an aggravating factor rather
than
a mitigating one. They have abused the system to frustrate
every attempt by the Respondent to get vacant occupation.
[18]
It is also relevant that the Property was purchased by the Respondent
for R755,920.90 as the
retirement home of its trustees, Mr and Mrs
Viljoen. To date they have been unable to take up occupation.
Furthermore,
apart from paying the municipal account, the Appellants
have been living on the Property rent free for three years. The
Respondent
estimates that the Property would fetch between R9,000.00
to R10,000.00 rental per month, which is not disputed.
[19]
In the circumstances we are of the view that the Appellants should be
afforded 30 calendar days
from the date of this order to vacate the
Property, failing which the Sheriff be authorized to evict them
forthwith.
[20]
Insofar as costs are concerned, we have already alluded to the fact
that the Appellants have
employed numerous stratagems to delay the
matter, which they succeeded in doing for years. Their
opposition in the Regional
Court was without merit, as is their
appeal in this court. In the circumstances a punitive costs
order is merited.
[21]
The following order shall issue:
1.
The appeal is dismissed.
2.
The Appellants, which includes Christo Coetzee, Shelly-Ann Coetzee
and Catharina
Coetzee (the “Appellants”), and any person
occupying the immovable property described as erf 2[…]
Jeffreys Bay,
held under title deed T20304/2021, situated at 3[…]
K[…] Street, Jeffreys Bay (“the Property”) are
hereby
evicted from the Property.
3.
The Appellants are ordered to vacate the Property within 30 calendar
days of
the date of this order.
4.
In the event of the Appellants, and all who occupy through them,
failing to comply
with prayer 3 above, the Sheriff of this Honourable
Court is authorized, duly assisted by the South African Police
Service, if
necessary, to forthwith take all steps necessary to evict
the Appellants.
5.
Any costs occasioned by the Sheriff in giving effect to paragraph 4
above shall
be paid by the Appellants.
6.
The Appellants are ordered to pay the costs of the appeal on an
attorney and
client scale.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
I
Agree
R
W N BROOKS
(JUDGE
OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Appellants:
Adv.
T COUTTS
Instructed
by:
RDL
ATTORNEYS
33
Lewerkie Street
GQEBERHA
c/o
WHEELDON RUSHMERE & COLE
INC.
MATHEW
FOSI CHAMBERS
119
High Street
MAKHANDA
Obo
the Respondent:
Adv.
P DU TOIT
Instructed
by:
NEL
MENTZ STEYN ELLIS INC.
14
Bureau Street
HUMANSDORP
c/o
N N DULLABH & CO.
5
Bertram Street
MAKHANDA
[1]
2009 (1) SA 238 (SCA)
[2]
Ironically, the same local authority in which the Property in
question is situated.
[3]
The current rule is rule 43(3)(a) and (b)
[4]
Campbell
supra
:
paras [4] and [5].
[5]
If an application has been finalised, successfully or
unsuccessfully, it was not brought to our attention.