South Africa: High Courts - Gauteng

Case no: 31039/04

In the matter between:

RED STRIPE TRADING 68 CC                                             Applicant

and

KHUMALO MNDAU JOSEPH                                         Respondent

_____________________________________________________________________

GILDENHUYS J:

[1]      This case is one of 14 cases which came before me in motion court.       The other 13 cases are Red Stripe Trading 68 CC v Tsoari, case no 30985/04; Red Stripe
         Tradinv 68 CC v Sihishe and Another, case no 31031/04; Red Stripe Trading 68 CC v
         Pitlele and Another, case no 31042/04; Red Stripe v 68 CC v Molotsi and Another,
         Case no: 31049/04; Red Stripe Trading 68 CC v Tsabalala and Another, case no 31050/05;
         Red Stripe Tradinc 68 CC v Ngobese and Another, case no 31051/04; Red Stripe Trading
         68 CC v Maphoso, case no 31053/04; Red Stripe Trading 68 CC v Tshimangodzo and
         Another, case no 490/05; Red Stripe Trading 68 CC v Khumalo and Others, case no 491/05;
         Red Stripe Trading 68 CC v Mahlatsi, case no 497/05; Red Stripe Trading 8 CC v Maruping
         and Another, case no 504/05; Red Stripe Trading 68 CC v Mokubela, case no 506/05; Red
         Stripe Trading 68 CC v Selby and Another, case no 509/05. The applicant, which is the same corporation in each of the cases, applied under the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act    Act 19 of 1998. (to which I shall refer as “PIE”) for the eviction of the occupiers of specific erven in former Black townships. I dismissed all the applications, and undertook to give reasons today. Because the facts in each of the cases are virtually identical, the reasons which I give in this case also apply to the other cases. My reasons follow hereunder.

[2]      The respondent is the occupier of Erf 1271, Daveyton (to which I shall refer as “the property”). He became the registered a bond over the property in favour of the then Nedperm. He fell behind with his instalments under the bond. Nedperm foreclosed against the respondent, and the property was sold in execution. Peoples Bank Limited bought the property on 17 April 2003 and received transfer on 23 May 2003. It is still the registered owner of the property. Despite the sale and transfer of the property to Peoples Bank, the respondent and his family remained in occupation thereof.

[3]      On 11 August 2004, Peoples Bank sold the property together with a large number of other properties to Get-a-Home CC. The Deed of Sale contains the following provisions:

“4.1      The Purchaser shall take occupation or shall be deemed to have taken occupation on the date on which this Agreement is signed by the last party signing.
4.2     

…………..
4.3      The Seller does not guarantee vacant occupation of any of the properties and the Purchaser shall be solely responsible for the eviction and removal of unlawful occupiers from any property.”

[4]      On 30 November 2004 the applicant concluded a written deed of sale with Get-a-Home CC for the purchase of the property. Clause 2 of the deed of sale reads as follows:

“2        Possession date Possession of the property will be given to the Purchaser shall be obliged to take possession thereof, on date of signature hereof from which date the property shall be the sole risk, profit or loss of the Purchaser. For the purpose of Sections 1 and 4(1) of the Prevention of Illegal Eviction From and Occupation of Land Act, 19 of 1998 it is recorded that the Purchaser has the legal authority to enter or reside upon the property and further to give permission to a person to enter or reside upon the property.”

[5]      Having complied with the formal requirements of PIE, the applicant applied to this Court for an order evicting the respondent and his family from the property. The applicant is described in the founding affidavit as “a person in charge as defined in PIE”. PIE defines “person in charge” as

“a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”        Section 1 of PIE.

[6]      Mr Booyens, who appeared for the applicant, submitted that the applicant has locus standi to apply for the eviction of the respondent under the provisions of section 4 of PIE. The relevant subsections of section 4 reads as follows:

“(1)      Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.
(2)      At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.
(6)      If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
(7)      If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
(8)      If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine –

(a)      a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and
(b)      the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).”

[7]      PIE defines “unlawful occupier” as

“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…”          Section 1 of PIE.

There can be no doubt that, since the property has been sold in execution and transferred to Peoples Bank, the respondent is an unlawful occupier. See the judgment of Harms JA in Ndlovu v Ngcobo       2003 (1) SA 113 (SCA) at 121 D/E.. The eviction application is therefore subject to the provisions of section 4 of PIE.

[8]      PIE does no more than impose prerequisites to be complied with   Section 4(2) of PIE. and factors to be considered        Section 4(6) and (7) of PIE. in an application for the eviction of an unlawful occupier. It does not bestow any new entitlement on any person to apply for the eviction of such an occupier. In the words of Harms JA in Ndlovu v Ngcobo         2003 (1) SA 113 (SCA) at 13J-124A.

“What PIE does is to delay or suspend the exercise of the landowner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions. Simply put, that is what the procedural safeguards provided for in s 4 envisage.”

[9]      The contract of sale on which the applicant relies does not effect a translation dominii. The position of the seller under such a contract has been described by Van der Linde   Regtsgeleerd, Practical en Koopmans Handboek, 1.15.9. as follows:

“V r de levering, schoon de koop door wederzijdsche toestemming voltrokken is, blijft de verkooper eigenaar, en kooper en verkooper hebben tegen elkander niets, dan eene personeele actie, tot naarkoming hunner wederkeerige verpligtingen. – De eerste van die action komt toe aan den kooper, of zijnen erfenaam, tegen den verkooper, of zijnen erfgenaam. – De andere aan den verkooper, of zijnen erfgenaam, tegen den kooper, of zijnen erfgenaam.
De verkooper is gehouden, om aan den kooper het verkogte goed te leveren, en hem in’t bezit van het zelve te stellen, en zulks dadelijk, of op den tijd, bij het contract bepaald.”       Before delivery, although the purchase was concluded by mutual agreement, the seller re-
         mains the owner, and the purchaser and seller have nothing against each other, except a
         personal action for compliance with their reciprocal obligations. – The first such action enure
         to the benefit of the purchaser, or his heir, against the seller, or his heir . – The other to the
         seller, or his heir, against the purchaser, or his heir.

See also York & Co (Pvt) Ltd v Jones NO          1962 (1) SA 65 (SR) at 66G-H. and Sweet v Ragerguhara NO and Others.     1978 (1) SA 131 (D&CLD) at 134D-G. Possession of immovable property is a juristic fact.          The Law of South Africa (Joubert ed) Vol 27r para 244 p162. See the distinction drawn by CP
         Joubert in his article “Action for Ejectment – Possessor or Occupier” 19 62 (vol 79) SALJ 130
         Between ius possidendi being the right to obtain or be placed in occupation and possession,
         Possession, which is the fact of possession and ius possessionis, which denotes the legal
         consequences and relations of possession. It requires actual control of the property, and does not pass by virtue of a contractual provision that the purchaser “shall be deemed to have taken occupation” or “that the purchaser shall be obliged to take possession”.      See para [3] and [4] above.

[10]     Because the applicant’s right to obtain vacua possessio of the property is a mere personal right, it can only be enforced against the person from whom it was acquired. See Nkadia v Mahlazi and Others.         1982 (2) SA 441 (T) at 447G-H. The applicant has no real right to the property in question. It also has no contractual relationship with the respondent. In the absence of a real right or contractual relationship, it has no locus standi to evict the respondent from the property. This is evident form the judgment of Caney J in Jadwat and Moola v Seedat,        1956 (4) SA 273 (N) at 276C/D. where he said:

“Clearly the buyer of a property who has not obtained transfer (nor cession of the owner’s cause of action) is not entitled to sue for ejectment.”

[11]     The Natal decisions in Kanniappen v Govender     1962 (1) SA 101 (N) at 104H. and Nicholas v Wigglesworth         1937 NPD 376 at 380. are to the same effect. Botha J referred to these decisions in Buchholtz v Buchholtz        1980 (3) SA 424 (W) at 425B-D. and said

“Taking Nicholas’ case supra as the origin of what was said in the Natal cases, it is clear beyond doubt, in my opinion, that the Courts were dealing with the situation where a purchaser of property had not yet received either transfer or – and this is important – possession of the property purchased. In such circumstances it is indeed clear that the purchaser would have no right to sue for the ejectment of the person in possession of the property because the purchaser had not acquired a jus in rem in relation to the property. By virtue of his purchase of the property he acquires no more than a jus in personam against the seller, and, if someone is in possession of the property, then the purchaser must look to the seller, the owner, to obtain vacua possessio of the property.”

See also the judgment of Coetzee J in Padayache v Veerapan and Another   1979 (1) SA 992 (W) at 999B-G. and the informative article by CP Joubert in the South African Law Journal, “Action for Ejectment – Possessor and Occupier”.        1962 (vol 79) SALJ 130 at 131.

[12]     It is evident from the authorities referred to above that, under common law, the applicant has no standing to institute legal proceedings to evict the respondent. The applicant did not rely on a cession of Peoples Bank’s vindicatory action. Nor did Mr Booyens suggest that such a cession occurred. Although a vindicatory action (rei vindicatio) is capable of cession, such a cession will not be presumed unless the intention to make it was clear. See Marcus v Stamper and Zoutendijk       1910 AD 58 at 75. and Vivier v Waterberg Ko-Operatiewe Landboumaatskappy Bpk.    1956 (2) SA 665 (T) at 672D-E.

[13]     The applicant relies on its alleged status as person in charge, as defined in PIE, to support its standing. Even if the applicant does fall within the definition of person in charge, that does not give it the requisite locus standi to have the respondent evicted. Accordingly, the application for eviction which the applicant brought against the respondent had to fail, and was dismissed.

_______________
A GILDENHUYS
JUDGE OF THE HIGH COURT
23 March 2005

Appearances:

For the applicant:
         MR B BOOYENS
         B BOOYENS ATTORNEYS
         JOHANNESBURG.

For the respondent:
         IN PERSON.