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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NUMBER: 14908/16

04/09/2017

 

In the matter between:

 

GOVERNMENT EMPLOYEES PENSION FUND                                                    APPLICANT

 

And

 

RAMBOSE PROPERTY (PTY)LTD t/a SEKGALA GROUP                                    RESPONDENT

 

JUDGMENT

TLHAPI J

 

[1]        The applicant seeks an order directing forthwith the eviction of all persons in possession of and or occupying by, through or under the respondents, from the immovable property situated at Unit B6 - B7A, Greenoaks Office Park, Cnr Bekker and Gregory Avenue, Varna Valley, Midrand' and authorizing the Sheriff to evict such persons should they fail to vacate the property within 7 calendar days from date of service of the order. The application is opposed.

 

BACKGROUND

[2]        The founding affidavit was deposed to by Ms Mercy Maina, (Ms Maina), She was employed as regional manager of the Public Investment Corporation ('PIC') which was appointed as the managing agent of the applicant and she averred that she was authorized to depose to the founding affidavit. She attached annexure 'MM1' which was a copy of page 27 of a document titled at top 'Public Investment Corporation' and at the bottom 'Delegation of Authority approved by the Board' . She averred that the applicant was the registered owner of the premises and a Cipro search document was attached as MM2.

[3]          On 1 July 2010, the respondent represented by an employee or agent entered into a three-year oral lease agreement with one Tiveshenee Govender and employee of PIC, commencing 1 July 2010 to 30 June 2013. It was further agreed that after latter date. the lease would continue on a month to month basis. Applicant then in writing gave notice to terminate the lease agreement on 26 October 2015, coupled with a demand that the property be vacated no later than 25 November 2015.

[4]          The respondent remained in occupation until a second notice to vacate was sent sent on 12 January 2016 to the respondent and his attorney to vacate the premises within 7 (seven) days of such notice. The respondent has refused to vacate the property and still continues in occupation thereof. The applicant contends that it is entitled to evict the respondent and that it was suffering damages as a result of the continued unlawful occupation.

[5]          The respondent in opposition raised fourteen points in limine that:

 

5.1      The founding affidavit was deficient in that the deponent thereto failed to annex the agency agreement; she therefore lacked authority because it was not certain if the agency agreement confers powers upon the PIC to evict tenants;

 

reply: that deponent to the founding affidavit was a competent and compellable witness in so far as she bore knowledge of the matter and, that the absence of the agency agreement bore no relevance to the relief sought since the applicant remained owner of the property and launched the application;

 

5.2      It was not clear whether the authority to launch these proceedings derives from the agency agreement or from a resolution and no resolution or agency agreement was annexed to the founding affidavit;

 

reply: that the absence of a resolution does not detract from her uncontested testimony that the applicant authorized the launch of the application; the mere mention of what it believes to be the absence of a resolution does not suffice in the answering affidavit to seriously and unambiguously address the disputed fact;

 

5.3      'MMI' was an extract of a delegation of authority within the PIC, even if such authority exists, the founding affidavit is devoid of an allegation that the PIC authorized or agreed beforehand to the launch of the application.

 

Reply: the deponent to the founding affidavit remained a competent and compellable witness as she bears personal knowledge as an employee of PIC who acts as an agent for the applicant that it was the applicant who authorized the launch of the application, and that this has no bearing on the locus standi of the applicant;

 

5.4      There was no supporting affidavit from Tiveshnee Govender, and the deponent does not aver on what basis she acquired first-hand knowledge of the oral agreement, therefore paragraph 6.2 amounted to hearsay;

 

reply: the absence of thereof does not assist the respondent because the respondent was in unlawful occupation; the respondent would have been in unlawful occupation from cancellation of the l ase on.26.' October 2015 or, alternatively 12 January 2016; since it appeared to be common cause that no lease agreement was concluded between the applicant and the respondent, the respondent may not occupy the premises;

 

5.5      The notice of motion was defective because of the difference of the date on which it was signed by the attorney on 2 March 2016 and the date on the face of the document, 23 February 2016, and no condonation to correct this anomaly has been filed; and that the notice of motion remains defective until condonation has been granted;

 

reply: confirmatory affidavit by Mr S Darling, a candidate attorney was attached, stating that the application was signed on 2 March 2016 after which date it was issued; the fact that an incorrect date was affixed to the face of the application cannot be attributed to the applicant; the validity of the application was not affected, since it was the Registrar who was responsible for issuing the application.

 

5.6      There was a wrong citation of the party sought to be evicted in that the Company registration number of the respondent cited ends with on 06 which is allocated public companies and not private companies such as the respondent is.

reply: the applicant conceded but apologized for what appeared to be a typographical error and pointed out that the first page of the notice of motion and the first page of the founding affidavit properly identified the respondent;

5.7      The applicant has not complied with Rule 18(6) of the rules of court in that it is not mentioned who on behalf of the defendant entered into the alleged oral agreement and where it was concluded;

reply: while admitting the content of the rule, the applicant states that it does not rely on a contract, rather the absence thereof which resulted in the respondent being in unlawful occupation of its premises; the mention of a contract was intended to give explanation how the respondent came to be in occupation of the premises;

 

5.8      The applicant has launched this application with unclean hands in that it failed to disclose to the court that the disputes around the tenancy with the applicant and the respondent were initiated by way of action in the Randburg Magistrate's Court under case number 7191/2015 and, failed to provide information as to the status of the case, and to give reasons why it saw it fit to approach this court;

 

reply: the application in the Magistrate's Court under case 7191/2015 has been withdrawn and that there was no question of the matter being lis alibi pendens.

 

5.9      This application was an abuse of the court process because there was an automatic rent interdict in place under case number 7191/2015 above, the occupants were thereby prevented from vacating the property. Furthermore, the existence of the automatic rent interdict rendered invalid any letter purporting to terminate the lease agreement and of giving notice to vacate.

 

reply: as far as the rent interdict was concerned only the property of the respondent was attached and not the person of the deponent to the answering affidavit nor the staff of the respondent and, in any event the action was withdrawn, so too the automatic rent interdict

 

5.10   The applicant was not the owner of the property that formed the subject matter of the eviction being Unit 86-87A , Greenoaks Office Park situated at cnr Bekker and Gregory Avenue, Vorna Valley Midrand; MM2 the Cipro report shows that the applicant is owner of Erf 2023 Vorna Valley extension 63;

 

reply: there is undisputed evidence that the applicant owns the immovable property described in the application which include all units or offices built thereon (including the office or unit number occupied by the respondent), therefore the apprehension that applicant was not the owner of the unit occupied by the respondent was irrelevant;

 

5.11   The respondent is not in occupation of the property that forms the subject matter of this application in that it vacated the property at the end of June 2013, being the end of its three year written lease with a third party known as CBS Property Trust which claimed to have been 'the landlord' at the conclusion of the written agreement between the parties in 2010' and that the issue of occupation was indeed raised in case 7191/2015;

 

And

 

5.12   The property which forms the subject matter of this application should be a juristic person Manose Office Supplies (Pty) ('Manose') which is in occupation presently and, that the deponent to the answering affidavit was a director in the said company, which concluded an oral lease agreement with the applicant for the period 1 July 2013 to 30 June 2018 and that this application should be directed at 'Manose' and not the non-occupant respondent. The applicant had consequently failed to join 'Manose', its lawful occupant;

 

reply eleventh and twelfth point in Jimine: the applicant has no knowledge of or heard of "Manose" and applicant has never concluded a lease agreement with the said entity, and the signboards themselves tell the story; the notice of motion of motion state "that any and all persons in possession of and/or occupying the premises by through or under the respondent" also to be evicted; that a dispute of fact seems to have arisen where none is actually present, the following facts contradicts that ''Manose" presently occupies:

 

-the respondent itself has failed to comply with Rule 18(6) by alleging where, when and who represented the applicant and Manose at the relevant time that the alleged agreement was concluded;

-the respondent has not substantiated its version by annexing proof of the alleged lease, bank statements to show that Manose has been paying rent, to state the terms of the lease.

- these allegations are bald, vague and sketchy, and do not serve to prove allegations relied upon;

-the applicant issued summons in the past and the present application against the respondent; the applicant has addressed various letters to the respondent including annexures 'MM3' and 'MM4' which latter letters were not respondent to Questions need to be asked of the respondent or deponent to the answering affidavit as to why the applicant in all instances above proceeded against the respondent and not any other entity

 

5.13   There is no explanation why the applicant chose to launch this application in the high court thereby incurring unnecessary costs and also for seeking punitive costs. and for seeking punitive costs, when it could have been done in the magistrates;

 

reply: the Magistrate's Court Act, Act 32 of 1994 as at section 29 allows only for actions proceedings in eviction matter and that in the applicant's view this would have taken much longer to finalize, hence the move that an application be launched in the High Court.

 

5.14   Disputes of fact were the subject of litigation in case number 7191/2015 and despite this, the applicant chose to launch these proceedings

 

reply: while it appears that a dispute of fact has arisen as to who the occupant is, such is not a real dispute of fact as indicated in the responses in 4.11 and 4.12 above; it was common cause that the respondent was in occupation of the premises and that it had no right to be there;

 

[6]           On the date of hearing Mr Sekgala appeared in person being sole director of the respondent and one who deposed to the answering affidavit, as representing the respondent even where no Heads of Argument were filed by him or on behalf of the respondent. He was allowed to address the court in the interests of justice.

[7]           Points in Limine on submissionin the applicant's heads of argument:

 

In Limine 10: The facts in Redefine Properties Limited v Tiptop Nails CCTI ACOLOUR HARMONY (the unreported judgment of Khumalo J case 86043/205 (25/10/16), relied upon by the respondent were distinguishable as evidenced in paragraph (5) thereof . In this instance the applicant annexed a Cipro report confirming its ownership of the immovable property, which document gave details erf and title deed number. No such ownership detail is presented on behalf of the respondent as to the ownership of the unit it presently occupies.

These being application proceedings it is expected that more detail in this respect be provided because it goes to the heart of the applicant's locus standi. A mere suspicion on the part of the respondent is not sufficient. The applicant has annexed MM2 giving details of the erf on which the units are situated. I am satisfied with the explanation that a unit described has its own address, one of which is used by the respondent for commercial purposes. This point in Jimine is dismissed .

 

In limine 1, 2, 3: The applicant and not PIC has launched the application; the issue of authorization to launch the application or the absence of the agency agreement does not take the matter any further. I have determined above that the issue of ownership has been confirmed by the Cipro report, MM2 annexed to the founding affidavit and the evidence on these points remains uncontested. It also remains uncontested that the deponent to the founding affidavit had knowledge of the lease. These points in limine are dismissed.

 

In limine 4, 7: According to the applicant it does not rely on the existence of a contract as its cause of action. It states that the respondent is in unlawful occupation. As I see it, what is relevant and the basis for this application is the applicant being owner of the property terminated the alleged month to month oral lease on 26 October 2015 which was followed by a notice to vacate 12 January 2016. These points in limine are dismissed.

 

In limine 5, 6, 8.9 ,13 , : In as far as 5 and 6 are concerned the in limine's do not take the matter any further. With regard to 8, had the application in the Magistrate's Court not been withdrawn, such proceedings might have had relevance in resolving this application. The respondent maintained that the court was bound to develop the common law in as far as it would oblige the applicant, in good faith to disclose the existence of the case before the Magistrate. Giving any consideration to this in limine would amount to the court reviving an action the applicant does not wish to pursue before the magistrate. I do not find this to be necessary. Where a litigant relies on tis pendens alibi, in order to succeed the facts relied upon must be stated with clarity and. since these are application proceedings, the one relying on this plea must mention all facts which are necessary to satisfy the requirements that (i) there was pending litigation, (ii) which involved the same parties (iii) that the cause of action was based on the same facts. It is the respondent who relies on lis pendens and not the applicant, it therefore bears the responsibility to provide the necessary evidence to adjudicate the issue, which it has failed to do. These are eviction proceedings and it seems the action in the magistrate's court as stated by the respondent related to an automatic rent interdict. With regard to 13 the applicant maintained that there was no procedure provided for an eviction by way of application in the Magistrate's Act 32 of 1944. These points in limine are dismissed.

 

New point in limine: The respondent submitted that since the applicant relied on its ownership of the property as basis for the eviction it had failed to prove that section 1 of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (PIE) was not applicable in this application, and it relied on the case on Msomvubu Municipality and Lenkie Maartins (judgment of Henriques AJ in the High Court of the Northern Cape case 905/2007 (22/05/2009) ). I disagree with this submission as it was clearly stated in Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA),at paragraph [20] Harms JA stated the following:

 

“In this instance, having regard to the history of the enactment with, as already pointed out, its roots in section 26(3) of the Constitution which is concerned with the rights of one's home, the preamble to PIE which emphasizes the right to one's home and the interests of vulnerable persons, the buildings listed and the fact that one is ultimately concerned with 'any other form of temporary or permanent dwelling or shelter', the ineluctable conclusion is that, subject to the eiusdem generis rule, the term was used exhaustively. It follows that buildings or structures that do not perform the function of a form of dwelling or shelter for humans do not fall under PIE and since Juristic persons do not have dwellings, their unlawful possession is similarly not protected by PIE"

 

This point in limine is dismissed.

 

Disputes of Fact

 

[8]          In limine 11 12.14:

 

The real test as to whether disputes of fact do exist and as argued by counsel for the applicant was stated in Peterson v Cuthbert Company Limited 1945 AD 420 at 428:

 

"In every case, the court must...examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence; if this is not done, the lessee against whom the ejectment is sought, might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the lessor"

 

The test is therefore to examine what facts have been placed before the court for consideration. The allegation that 'Manose' and not the respondent above was in occupation must therefore be carefully examined and the question to be asked is, apart from such allegation, has the respondent set out facts with sufficient particularity to enable a determination on whether a referral to oral evidence is justified, also bearing in mind that there is not request to refer the matter to oral evidence. In my view this is not an instance where a bare or mere denial will suffice because the applicant gives one version as to its relationship with the respondent and the respondent gives a completely different version which seems to suggest that the lease with Manose is still in operation.

 

[9]           Unfortunately, Mr Sekgala, who alleges to be a director of 'Manose' and, who in my view should presumably have knowledge as to the facts pertaining to the Manose' lease. has failed to give additional facts which will enable me to determine whether a dispute of fact genuinely exists and one such fact would be proof that 'Manose' has been paying rentals to the applicant since the inception of the lease it now claims to be in place. Pertinent to this determination would be that the respondent has failed to respond to MM3 and MM4 in order to draw the applicant's attention to the existence of the Manose lease. The applicant seeks to evict the respondent on grounds that it is unlawfully in occupation of a unit it owns and reasons are clearly stated in MM4. It was argued that where such prevails the matter cannot to be adjudicated outside of these proceedings, that the approach to be adopted by the courts should follow what stated in Soffiantini v Mould 1956(4) SA 150, (ED), and I agree with such submission, and affirm that the approach has been adopted in a plethora of cases. In that matter Price J stated the following at 154 F - H:

 

“lf by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device. It is necessary to make a robust, common-sense approach to a dispute on motion or otherwise the effective functioning of the court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over fastidious approach to a dispute raised in affidavits”

 

In light of the above the application should be granted.

 

[10]      In the result the following order is given:

1.       The respondent and all those persons in possession of and/or occupying the immovable property situated at Unit B6-B7A, Greenoaks Office Park, Cnr Bekker and Gregory Avenue, ·vorna Valley, Midrand through or under the respondents are ordered to vacate the property within 10 days of the service of this order upon them;

 

2.       The Sheriff is hereby authorized and directed to evict the respondent and/or any person holding the property by, through or under the respondent should they have failed to vacate the property within the period menti6ned in 1 above and by giving 3 days notice to them ( to those persons mentioned in 1 and herein) to vacate the property.

 

3.       The respondent is ordered to pay the costs of this application

 

 

 

 

TLHAPI VV

(JUDGE OF THE HIGH COURT)

 

 

MATTER HEARD ON                               :           25 APRIL 2017

JUDGMENT RESERVED ON                  :           25 APRIL 2017

ATTORNEYS FOR THE APPLICANT   :           WESSELS & VANZYL ATT.

ON BEHALF OF THE RESPONDENTS :           RAMMUTLANA BOELIE

 SEKGALA

 

 

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