SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN

Case no: D 10106/22

In the matter between:

JACOBUS WILLEM VENTER N.O. FIRST APPLICANT
JUSTI STROH N.O. SECOND APPLICANT
(In their capacity as joint liquidators of JUBILEE
PLANT HIRE SA CC (IN LIQUIDATION))

and
LOVENDRAN MARIMUTHU FIRST RESPONDENT
(Identity number 8[ …])

RAMONA BUDDEN SECOND RESPONDENT
(Identity number 8[ …])
eTHEKWINI METROPOLITAN MUNICIPALITY THIRD RESPONDENT
THE MASTER OF THE HIGH COURT, KWAZULU- FOURTH RESPONDENT
NATAL

Coram : Mossop J
Heard: 7 May 2025
Delivered: 7 May 2025
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ORDER


The following order is granted:
1. In terms of s 4(8) of the Prevention of Eviction from and Unlawful Occupation
of Land Act 19 of 1998, the first and second respondents , and any person occupying
through them, are ordered to vacate the immovable property with the address of Unit
[…], P[…] of U[…], […] L[…] Drive, U[ …] R[…], KwaZulu -Natal (the apartment ) by 30
June 2025.
2. In the event of the first and second respondents failing to vacate the
apartment as ordered, the sheriff of this court is directed to eject and evict them from
the apartment together with any other person claiming a right of occupation through
them .
3. The first and second respondents are directed to pay the applicants’ costs,
jointly and severally, the one paying the other to be absolved, on the scale as between attorney and client , with such costs to include the costs reserved on 26
April 2023, 24 July 2024 and 9 December 2024.


JUDGMENT

MOSSOP J :
Introduction [1] This is an ex tempore judgement.
[2] The applicants , who are the joint liquidators of Jubilee Plant Hire SA CC
(Jubilee) seek the ejectment of the respondents from the immovable property with
the address of Unit […], P[…] of U[…], […] L[…] Drive, U[ …] R[…], KwaZulu -Natal
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(the apartment ) in terms of the provisions of s 4(8) of the Prevention of Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (the Act). Their entitlement to do so
is based upon the fact that the apartment is owned by Jubilee.

The basis for the application
[3] The ownership mentioned above is not disputed, nor is the fact that Jubilee is
in final liquidation and that the applicants are the duly appointed joint liquidators of
Jubilee.
1 The applicants assert that the first and second respondents are in unlawful
occupation of the apartment. In the performance of their official duties, the applicants
seek to sell the apartment as an asset in the insolvent estate of Jubilee and for this to occur they require the respondents to vacate the apartment .
[4] As regards the first and second respondent’s unlawful occupation of the
apartment, the applicants observe that:
‘Five years after the winding up of Jubilee, the first and second respondents still occupy the Property unlawfully.’’
And, further, they mention that:
‘There is no lease agreement in place with the first and second respondents or any other occupant of the Property nor has the first and second respondents, or anyone else, ever compensated Jubilee for the occupation of the Property.’
The apartment

[5] The apartment is in a well-known, expensive, and prestigious building located
in the upmarket suburb of Umhlanga Rocks. The apartment has been valued at between R7,5 million and R10 million by a professional valuator appointed by the applicant and that valuation, replete with photographs, is before the court. The accuracy of that valuation has also not been challenged by the respondents.


1 Initially , a Mr Cloete Murray was appointed as one of the joint liquidators of the close corporation,
but he was tragically murdered, along with his son, a killing that enjoyed national notoriety and
publicity . The presently named first applicant, Mr Jacobus Willem Venter , was substituted in the place
and stead of the late Mr Murray.
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The respondents’ approach to the applicants’ allegations

[6] The first respondent has elected not to directly challenge the allegations made
by the applicants by delivering an answering affidavit. Instead, the strategy employed by him and the second respondent, to whom he is m arried, was for the second
respondent to deliver an answering affidavit and for him to merely deliver a
confirmatory affidavit in which he confirms all references made to him in the
answering affidavit delivered by his wife. There are, as a matter of fact, but three
direct references to the first respondent in the second respondent’s answering
affidavit .
[7] The difficulty that this occasions for the first respondent is that where the
second respondent fails or neglects to address an allegation in the founding affidavit,
he, too, does not address it. He has thus wedded himself entirely to his wife’s
version. Any shortcomings in her answer becomes his shortcoming.
The second respondent’s allegations

[8] In her answering affidavit, the second respondent admits her occupation of
the apartment. What she says in justification of this is the following:
‘I respectfully submit that I have historically been in lawful occupation of the
said property independent of the First Respondent and such lawfulness of my occupation of the said property has not been disturbed.’
[9] A point of considerable interest , and significance, is what right the second
respondent claims to have entitling her to occupy the apartment against the wishes
of the applicants and when, and how , she acquired that right. The applicants can
have no personal knowledge of the claimed right given that the alleged acquisition of
the right appears to have predated their appointment . The information relating to the
right that the second respondent claims is personal to herself and must be facts
uniquely known to her. [10] To resist the allegations of the applicants that there is no basis in law for her
occupation of the apartment, the second respondent should have been entirely frank
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and forthcoming with the court and should have provided full particularity of her
alleged right of occupation to permit it to be examined. She did not embrace this
approach and the vague, and slightly coquettish, reference to an historical right of
occupation is as far as she goes. The obvious inference to be drawn therefrom is
that there is no right worthy of disclosure or , if such a right does exist, that it would
not survive the slightest scrutiny if it were disclosed and examined.

[11] The second respondent does assert , however, that the applicants have fallen
short in framing their case against herself . She explains this as follows:
‘The applicants conveniently fails (sic) to place before this H onourable Court
any documentation and or any allegation in their founding affidavit to suggest
that I am in unlawful occupation of the subject property.’
[12] One is forced to ponder w hat documentation could the applicants produce to
show that she is in unlawful occupation? Reference has already been made to the
applicants’ allegation that there is no lease in place. The lack of any such
documentation, as alleged by the second respondent , ironically, may very well
establish the unlawfulness of her occupation. The proper question to be asked , in my
view, is the obverse of the question that the second respondent poses, namely what
documentation exists to establish the right claimed by her ? If there is documentation
that establishes the lawfulness of her occupation, the second respondent was required to produce it or, if she did not have it, she was required to indicate where it
could be found. She did not do either of these things .
[13] Furthermore, the second respondent is seriously mistaken when she asserts
that the applicants have not suggested that she is in unlawful occupation of the
apartment . The founding affidavit literally groans with the weight of such references.
Two such examples from the founding affidavit will suffice:
(a) At indexed page 10, paragraph15:
‘The first and second respondents are in unlawful occupation of the Property …’;
and
(b) At indexed page 11, paragraph 20:
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‘The first and second respondents are in unlawful occupation of the Property
and are liable to be evicted.’
[14] It may legitimately be inquired as to what defence has been raised by the
respondents . No factual defence has been raised. Instead, the second respondent
has devoted five pages of her nine page answering affidavit to submissions of an entirely legal nature. The second respondent does not disclose that she has any
legal training y et has seen it fit to make submissions and advance legal argument
that only a person trained in, and skilled in , the law could make.
[15] However, for the purpose of completeness, I shall consider the legal point
raised by the second respondent . To do s o, it may assist by first considering a brief
chronology of the more salient facts of this matter:
(a) The application papers were served upon the first respondent and
second respondent by the sheriff on 18 November 2022 by affixing to the main door of the building in which the apartment is situat ed;
(b) On 29 November 2022, both the respondents caused their attorney to
deliver a notice of intention to defend the application on their behalf ;
(c) The first date of appearance was 20 January 2023, but because of the
filing of the respondent’s notice of intention to defend the matter , it was
properly removed from the roll;
(d) The respondents delivered their answering affidavits on or about 26
April 2023; and
(e) On the same date, 26 April 2023, M E Nkosi J granted an order
authorising the service on the respondents by the applicants of the notice
contemplated by s 4(2) of the Act.
[16] With those dates in mind, I address the point taken by the second respondent
in her answering affidavit. It appears to relate to service of the notice in terms of s
4(2) of the Act. If I correctly understand th at point , it is that the original application
papers did not include a draft of the s 4(2) notice. I must accept that this was the case since the sheriff’s return of service makes no reference to serving such a
document on either of the respondents . What effect does that have on the facts of
this particular case?
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[17] In my view, the purpose behind the prescribed formalities to be found in the
Act are intended to protect both the owner and the alleged unlawful occupier .
Experience teaches us that very often, th ose in unlawful occup ation are the least
fortunate citizens who find themselves in straitened financial circumstances and
may, in addition, not be aware of their legal rights. Thus, s 4(2) of the Act requires a landowner to ensure that unlawful occupiers are:
(a) Given proper and sufficient notice of the proceedings intended to result
in their eviction;
(b) Made aware of the date and time upon which the eviction hearing will
be conducted;
(c) Informed of the grounds upon which their eviction is being sought ; and
(d) Fully informed of the right to legal representation and of their right to
appear in person and to dispute the granting of the order of eviction being
sought and that if they desire to have legal representation but cannot afford
it, that they may approach Legal Aid South Africa and seek assistance there.

[18] The legal argument advanced by the second respondent alleges that there
has not been compliance with the procedural requirements of the Act. Accepting, as I do, that the blank s 4(2) notice did not accompany the application papers when they
were first served, I fail to understand what prejudice she or the first respondent have
suffered as a consequence. The s 4(2) notice would have been inchoate at the
commencement of the application. It could not have stated when the matter was going to be heard for the simple reason that the date was not known at that time.
The respondents , in any event, had their own legal representatives from the outset
and were consequently not persons who had to be alerted to the possible availability,
and whereabouts , of Legal Aid South Africa for legal assistance. They have always
been represented by independent attorneys of their own choice and the matter has been defended since the application papers were first served.
[19] In any event, the completed s 4(2) notice, with the date of the hearing
inserted, was approved by this court and was served upon the respondents on 4 June 2024 in compliance with the order of M E Nkosi J. Factually, t hat service was
entirely redundant because all the information contained in the s 4(2) notice therein
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was already either known to the respondents , or had no relevance to them , and had
been dealt with by them in their answering affidavits . That is the only defence that
has been raised by the respondents.

A further defence?
[20] The applicants have teased out a further potential defence that they speculate
may have been raised by the first respondent. It is alleged by the applicants that the
apartment is Unit 4 in the building known as ‘Pearls of Umhlanga’. When he
delivered his confirmatory affidavit to the second respondent’s answering affidavit, the first respondent stated that his address was Units 1 and 2 in the ‘Pearls of Umhlanga’. Thus the applicants concluded that he did not stay at the apartment. I do not take the same view. [21] There were several allegations made in the founding affidavit that the first and
second respondents both resided at the apartment. Those allegations were never denied by either of the respondents. In my estimation, a married couple ordinarily
reside together. If that is not the case, and if it is the case here that they reside
separately from each other in the same building but in different units, I would expect to be explicitly informed of this. I am not so informed and I take it therefore to be
admitted that the respondents reside together in the apartment.
[22] Even should that not be the case, an order for the ejectment of the first
respondent would be competent based upon the dicta of Di dcott J in Lurlev (Pty) Ltd
v Unifreight General Services (Pty) Ltd and others ,
2 where he stated that the primary
object of an ejectment order
‘…is to put the party obtaining it in possession of the premises to which it
relates. So that this may be achieved, the right of the claimant instead of the other party to possess the premises must first be acknowledged and
proclaimed. That is accomplished by the judicial declaration implicit in the
order. The other party, if he occupies the premises, must then be compelled to
vacate them, and the command which the order embodies attend s to that . But

2 Lurlev (Pty) Ltd v Unifreight General Services (Pty) Ltd and others 1978 (1) SA 74 (D) 79.
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the order’s transcendent and more enduring effect, even when such is the
case and a fortiori when it is not, is the confirmation of the claimant ’s better
title to the ir possession which the declaration signifies. These consequences
would ensue from the grant of an ejectment order in the present case. In
particular, the order would uphold the plaintiff’s cause of action in all its
essentials, vindicate the plaintiff ’s cancellation of the tenancy by reason of the
first defendant ’s breach of the lease, and rec ognize that the plaintiff rather
than the first defendant was entitled to occupy the premises . All this would
then be res judicata. A n order with that import would be no brutum fulme n. It
would serve a definite and real purpose, even if it is true that the first
defendant does not occupy the premises and there is thus no occasion for its
physical removal from them.
I have therefore come to the conclusion that the award of an ejectment order against the first defendant does not depend on its actual occupation of the premises, and that the second defence is no answer to the claim for that
relief. ’ (Authorities omitted)

Conclusion

[23] Nothing of any legal significance has been advanced by the respondents to
justify their continued occupation of the apartment. They are clearly people of substantial means: the first respondent, on his own version, apparently occupies two
units in the same building and drives a Lamborghini. He is described in the founding
affidavit as being a ‘socialite’, an epithet that he has chosen not to deny. There is consequently no prospect that either of the respondents will be rendered homeles s
by the order sought.
[24] I am, in the circumstances, satisfied that it will be just and equitable to order
the eviction of the respondents from the apartment. This application has been looming for a substantial period of time. The respondents have thus had sufficient
time to consider the acquisition of alternative accommodation. However, based upon what the first respondent states in his confirmatory affidavit, they could notionally only be required to move one door down from the apartment to acquire new
accommodation. Not much tim e will be required to achieve that. In my view, the
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submission of Mr Smit SC , who appears for the applicants, that the respondent be
ordered to vacate the apartment by 30 June 2025 is more than generous and will
meet the need.

Costs
[25] It is not in dispute that the respondents are people of means and appear to
enjoy a monied lifestyle. They have occupied the apartment unlawfully for over five years without paying a sou for that occupation and they have opposed this
application without having any grounds to do so simply , it would appear , to extend
their gratis occupation of the apartment for as long as possible. Decisions to conduct
oneself in that fashion must have consequences. The consequence in this instance
is that the respondents mus t pay the applicant’s costs on the scale as between
attorney and client , including all costs previously reserved.
Order

[26] I accordingly grant the following order:
1. In terms of s 4(8) of the Prevention of Eviction from and Unlawful Occupation
of Land Act 19 of 1998, the first and second respondents, and any person occupying through them, are ordered to vacate the immovable property with the address of Unit […], P[…] of U[…], […] L[…] Drive, U[ …] R[…], KwaZulu -Natal (the apartment) by 30
June 2025.
2. In the event of the first and second respondents failing to vacate the
apartment as ordered, the sheriff of this court is directed to eject and evict them from the apartment together with any other person claiming a right of occupation through them.
3. The first and second respondents are directed to pay the applicants’ costs,
jointly and severally, the one paying the other to be absolved, on the scale as between attorney and client , with such costs to include the costs reserved on 26
April 2023, 24 July 2024 and 9 December 2024.

MOSSOP J
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APPEARANCES
Counsel for the applicant: Mr J E Smit SC
Instructed by: MacRobert Incorporated
Pretoria
Locally represented by:
Cox Yeats Attorneys
Ncondo Chambers
Vuna Close
Umhlanga Ridge
Durban
Counsel for the respondent : Ms M Pillay

Instructed by: MJM and Associates
Suite 303, 3
rd Floor
Cowey Park
91-123 Problem Mkhize Road
Berea
Durban