SAFLII 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 SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 27040/2021
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
Judge Dippenaar
In the matter between:
KAMOGELO MAKHELE N.O
APPLICANT
And
SABELO REGINALD MHLOMI FIRST RESPONDENT
RAND WEST CITY LOCAL MUNICIPALITY SECOND RESPONDENT
JUDGMENT
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Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e- mail. The date and time for hand- down is deemed to
be 10h00 on the 5th of FEBRUARY 2025.
DIPPENAAR J:
[1] T he applicant, by way of motion proceedings launched during June 2021, sought
an order for the eviction of the first respondent and all those occupy ing the property
through him from premises situated at 3[…] V[…] Street (corner of Lembede Street),
Mohlakeng, Randfontein (‘the property’), with ancillary relief. In addition, an order was
sought directing the first respondent to pay arrear rental in an amount of R 1 024 000
and costs.
[2] The applicant launched the application in her capacity as the duly appointed
executrix of the estate of her mother, the late Johannah Masibitlo Mingo Makhele (‘Mrs
Makhele’) ‘ who was the daughter and the appointed executor of the deceased estate of
my late grandmother – Mmadibe Cathrine Makhele, who was the registered owner of
the said property (the deceased) ’.
[3] The first respondent is a medical practitioner who conducts his practice from the
property. The second respondent is the Rand West Local Municipality within whose
jurisdiction the property is situated. It was cited as an interested party and did not participate in the proceedings.
[4] In sum, the applicant’s case was that the first respondent is unlawfully occupying
the property as the oral lease concluded between Mrs Makhele and the first respondent
was cancelled on 31 July 2017 and he was put on terms to vacate the property on
various occasions, including on 27 August 2020. She aver red that t he first respondent
had made unauthorised improvements to the property and had sublet portions of i t to
various other medical practitioners without consent, from whom he is collecting rental without accounting therefor to the applicant. She further contended that the first
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respondent has not paid rental from October 2017 and claims an amount based on what
she contended was the agreement between the parties.
[5] The first respondent opposed the application on various grounds. First, h e
challenged the applicant’s locus standi . Second, as defence to the eviction application,
the first respondent raised an improvement lien of some R 1 033 380 based on certain
improvements to the property. Third, he sought dismissal of the application on the basis that there were various irresoluble disputes on the papers which were known to the applicant prior to the launching of the application, which justified the dismissal of the
application. I deal with these grounds in turn.
[6] It is trite that in motion proceedings, the affidavits constitute both the pleadings
and the evidence. It was thus incumbent on the applicant to present all available evidence in support of her averments. It is also incumbent on the applicant to establish her locus standi
1and illustrate an entitlement to the relief sought. The applicant must
illustrate that she has an enforceable right to the relief sought and a mere interest is not sufficient.
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[7] In the founding affidavit, t he applicant averred that she was duly appointed under
the Administration of Estates Act3 to take control of the estate of the late Mrs Makhele,
who passed away on 18 June 2018. In support of that averment , she attached letters of
executorship and a letter of authority. The property is not referred to as an asset in Mrs
Makhele’s estate in the letter of authority .
[8] The applicant provided no documentary proof in support of the contentions that
Mrs Makhele was the daughter and appointed executor of her late grandmother, the
deceased, or that Mrs Makhele was the owner of the property . The documentary
evidence reflected that the deceased was the owner of the property under
1 Scott v Hanekom 1980 (3) SA 1182 (C) at 1188H.
2 Vandenhende v Minister of Agriculture, Planning and Tourism, Western Cape 2000 (4) S A 681 (C) at
686B -691B.
3 66 of 1965.
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T11896/2014. No evidence was presented that the property fell into the estate of Mrs
Makhele or how it came about that the applicant had acquired any locus standi to claim
the relief sought. The mere say so of the applicant that she has authority, is insufficient,
more so in the face of the first respondent’s challenge.
[9] When her locus standi was challenged in the answering papers, the applicant in
reply relied on a residential permit issued in respect of the property in the name of one Sakie Molefe. The document styled ‘Municipal Certificate of Occupation, dated 17 February 1967, provides in relevant part, ‘... this is to certify that the right of occupation
of Municipal dwelling 355A Mohlakeng Location has been sold to SAKIE MOLEFE…and
that the said purchaser is permitted to occupy together with the undermentioned
members of his/her family the dwelling. The document does not refer either to the
deceased or to Mrs Makhele. The high watermark of the applicant’s evidence is a
document that evidences that the property was registered in the name of the deceased during 2014. Due to the inherent inconsistencies in the documentation, and the absence of a nexus between the applicant and the property, it cannot be concluded that the
applicant has established any right to seek the eviction of the first respondent from the property.
[10] In argument, applicant’s counsel attempted to present evidence from the bar in
clarification of the issue. That is impermissible and the application must be adjudicated
on the papers . There is thus merit in the first respondent’s contention that the applicant
failed to establish her locus standi to claim the relief sought, justifying the dismissal of
the application on that ground alone.
[11] There are however other difficulties with the application. The applicant seeks final
relief. It is trite that the well -known Plascon Evans
4 test applies and that the matter is
essentially determined on the basis of the respondent’s version,5 unless that version
can be rejected as false and clearly untenable.
4 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) S A 623 (A) at 634G635C.
5 Brisley v Drotsky 2002 (4) SA 1 (SCA) para 2.
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[12] Despite the applicant’s submissions to the contrary at the hearing, I am not
persuaded that the first respondent’s version can be rejected as false and untenable. In various instances, such as the first respondent’s version regarding the agreement pertaining to improvements, the applicant did not meaningfully grapple with the first respondent’s version in reply , but contented herself with bald assertions that his version
was false .
[13] On the applicant ’s own version, the first respondent effected certain
improvements to the property , albeit that the nature and extent of such improvements
are in dispute on the papers . The latter dis pute, which forms the basis of the
improvement lien, is irresoluble on the papers. The existence of an improvement lien
precludes the granting of the eviction relief sought.
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[14] There are also irresoluble factual disputes on the papers pertaining to (i) the
terms of the oral lease agreement and (ii) the rental amount claimed by the applicant.
Those issues were raised in the correspondence which was exchanged between the
parties’ respective legal representatives since 2017.
[15] The applicant did not seek a referral of the matter to trial or oral evidence. During
argument, the applicant expressly rejected any referral of the matter to trial as ‘ it would
cause a delay in the eviction’ . On the applicant’s own version, the disputes between the
parties already arose during June 2017 and the respondent’s version and contentions
were well documented in the correspondence between the parties. The nature and
ambit of the disputes between the parties were thus known to the applicant well before
the institution of the present proceedings. The applicant should have appreciated that the disputes between the parties could not be resolved on paper and that motion
6 United Building Society v Smookler’s Trustees and Golombick’s Trustees 1906 TS 623 at 626- 627;
Brooklyn house Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) at 270.
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proceedings would be inappropriate. She proceeded at her peril. Considering all the
facts, the dismissal of the application in terms of r 6(5)(g) is justified .7
[16] For these reasons, the application must fail. T here is no reason to deviate from
the principle that costs follow the result. The first respondent submitted that costs on Scale B would be appropriate. Other than to seek a punitive costs order in her favour the applicant did not contend that Scale B would not be appropriate. Having considered the matter and the issues raised, I am persuaded that costs should be granted on Scale B.
[17] In the result, the following order is granted:
The application is dismissed with costs on Scale B.
EF DIPPENAAR
JUDGE OF THE HIGH COURT JOHANNESBURG
HEARING
DATE OF HEARING : 4 FEBRUARY 2025
DATE OF JUDGMEN : 5 FEBRUARY 2025
APPEARANCES
APPLICANT’S COUNSEL : Adv TA Modisane
APPLICANT’ S ATTORNEYS: Kabai Attorneys
FIRST RESPONDENT’S COUNSEL : Adv. J W Steyn
7 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) S A 1155 (T) at 1162 and 1168;
Tamarillo (Pty) Ltd v BN Aiken (Pty) Ltd 1982 (1) SA 398 (A).
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FIRST RESPONDENT’S ATTORNEYS: Swart Redelinghuys Nel & Partners .