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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,

PRETORIA

(1)   REPORTABLE: YES / NO

(2)   OF INTEREST TO OTHER JUDGES: YES/NO

(3)   REVISED

20 November 2020.       

 

                                                                                                            CASE NO: 73355/2019

 

IN THE MATTER BETWEEN

 

REM MAMS CONSTRUCTION AND PROJECTS (PTY) LTD                      Applicant

(REGISTRATION NUMBER:2015/227755/07)

 

and

 

KHUMALO, EMMANUEL NDUKUYAKHE

(IDENTIFICATION NUMBER: [….])                                                                 First Respondent

 

ALL OTHER UNLAWFUL OCCUPIERS OF ERF 235

BIRCHLEIGH NOORD EXTENSION 3 SITUATED AT                                Second Respondent

23 AMANDA ROAD, BIRCHLEIGH NOORD EXTENSION 3    

 

THE EKURHULENI METROPOLITAN MUNICIPALITY                            Third Respondent

 

JUDGMENT

 

Ceylon AJ

 

The Application:

[1]  This is an application for the eviction of the 1^st and 2^nd respondents from erf 235, Birchleigh Noord Extension 3, situated at 23 Amanda Road , Birchleigh Noord, Extension 3, together with ancillary relief. The Ekurhuleni Municipality was joined as third respondent.

 

[2]  The application is opposed by the 1^st and 2^nd respondents.

 

The applicant’s case:

 

The main points of the applicant’s case are as follows (refer to the founding affidavit):

[3]  The applicant contends that it is the registered owner of the property by virtue of title deed: T50010/2019, which is evidenced by the search works deeds office search attached as annexure “REM2” to this founding affidavit. It submits that it therefore an “owner” as defined in the PIE Act. As an owner, the applicant submits that it has locus standi to launch this application.

 

[4]  The applicant submits further that the 1^st and 2^nd respondents are presently residing and/or working at the said property, and these includes the 1^st respondent, and/or such other unlawful occupiers family, servants and/or employees.

 

[5]  The applicant avers that it is not its duty, as a private land owner, to provide accommodation to the 1^st and 2^nd respondents , but such duty is that of the 3^rd respondent, who is cited in this application in compliance with the PIE Act and because the property is situated within the 3^rd respondent’s area of authority and jurisdiction. No cost order is sought against the 3^rd respondent, save in the opposition of this application.

 

[6]  The applicant contends that it bought the property from Nedbank Ltd on 15 April 2019 on auction, and after complying with all its obligations in terms of the conditions of sale, the property was transferred and registered into its name on 15 August 2019.

 

[7]  The applicant submits that it caused its attorneys, CSM Attorneys (“CSM”) to deliver a notice to vacate on the 1^st and 2^nd respondents, advising that the property be vacated before or on 06 September 2019 [refer to “REM4” to the founding papers]. In terms of the notice, the 1^st and 2^nd respondents were to furnish CSM with a written undertaking by 30 August 2019 that they would vacate the property before/on 06 September 2019, which the 1^st and 2^nd respondents failed and/or refused to do. The applicant contends that despite demand thereto, the 1^st and 2^nd respondents failed to vacate its property.

 

[8]  The applicant submits that the 1^st and 2^nd respondents, and all those who occupy the property by virtue of their occupation thereof, including their family, servants, and/or employees are unlawful occupiers as defined in section 1 of the PIE Act and are attempting to abuse the purpose of the PIE Act and our common law to bring about delays and to frustrate the applicants’ rights of ownership in order to possess and use the property.

 

[9]  He contends that he is not aware of any elderly persons, children, disabled persons or whether the property is being occupied by a woman headed household who would be unduly affected by this eviction application.

 

[10]   The applicant submits that the unlawful occupation of its property is prejudicial in that:

- what should have been an investment is now a liability;

- he remains liable for payment of rates and taxes and municipal charges relating to the property without the use or enjoyment thereof;

- access to the property has been prevented by the 1^st and 2^nd respondents;

- the property may be neglected and could cause the applicant costs for the restoration of the property;

- the applicant is out of pocket whilst the 1^st and 2^nd respondents occupy the property for free;

- the applicant will unlikely be able to recover his losses from the 1^st and 2^nd respondents.

 

The 1^st and 2^nd respondents’ case:

 

The 1^st and 2^nd respondents’ case are mainly the following (answering affidavit):

[11]   The 1st respondent submits that his occupation of the property is lawful and that the applicant purchased the property at an unlawful auction sale.

 

[12]   He submits further that he has never been served with any notice or summons which entitled the applicant to hold the possession of the title of his property, as a result his property was sold unlawfully, and further that he was never served with court documents indicating legal action against him for his property. He contends that the property was always registered in his name and suspect that the sale thereof to the applicant was unlawful, unconstitutional and that this application does not comply with the PIE Act.

 

[13]   The 1^st respondent in his supplementary answering affidavit, submits further as follows:

- he did not see the applicant’s original title deed of the property to date (of said affidavit);

- that he has brought a rescission application against Nedbank Ltd and that he intends to settle all outstanding     balances as he believes that the default judgment was granted erroneously against him due to factual and administrative errors on the part of Nedbank, as they   erroneously relied on mistaken foreclosure documents when they had in fact previously undertake to resolve his bond  repayment issues.

 

[14]   The 1^st respondent submitted that the hearing of this proceedings be stayed pending the finalisation of the rescission application, for which he submits he has good prospects of success as Nedbank committed similar errors in this matter as the ones they did in 2008 and 2013 when he got judgment in his favour.

 

[15]   In its replying affidavit, the applicant contends mainly as follows:

- that, despite this court ordered that the 1^st and 2^nd respondents file their answering affidavits by 06 March 2020, it was only filed on 19 March 2020;

- that the said answering affidavits comes down to bare or unsubstantiated denials;

- that it is the registered owner of the property as evidenced by the deeds search (“REM2”) but also now attach a copy of the title deeds of the properly, as annexure “RA5”;

- that the 1^st and 2^nd respondent s failed to take cognisance of the dictum in Knox v Mofokeng & Others (2011/33437) [2012] ZAGPJHC 23.

 

[16]   With regard to the 1^st and 2^nd respondents’ request to admit the supplementary answering affidavit, due to new information coming to their attention, this court admitted the affidavit at the hearing of the application, mainly on the basis that there would be no prejudice to the applicant, that the delay will not result in any hardship on the applicant. Further, given the nature of the eviction application and the consequences thereof (the possible eviction of the respondents) and that no mala fides on the part of the respondents could be detected, this court is of the view that it would be in the interest of justice that the said document be admitted.

 

[17]   In the view of this court, the following are the issues to be decided in this application:

              (i)        is the applicant the owner of the property?

              (ii)        are the 1^st and 2^nd respondents unlawful occupiers of the property?

             (iii)        has the requirements of the PIE Act been met ?

             (iv)        is it just and equitable (as prescribed in the PIE Act) that the eviction order be granted?

             (v)        what is a just and equitable date for eviction (if eviction was to be granted)?

 

      - Ownership of the property /unlawful occupation:

 

[18]   The applicant contended in its founding and replying affidavits that it is the registered owner of the property. In the founding affidavit, a deeds print out is attached and a copy of the title deed is attached to his replying papers to evidence such ownership.

 

[19]   It is trite that “the best evidence of ownership of immoveable property is the title deed to it” [Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1992 ZASCA 186; 1993 (1) SA 77 (A) at 82; R v Nhlanhla 1960 (3) SA 568 (T) at 570D-H]. The fact that the applicant used a deeds print-out (search works) in his founding affidavit, and the founding affidavit is the document which constitutes and must contain both the pleadings and evidence, is problematic. The problem is that a deeds print out normally has a disclaimer regarding its information, which is gathered from suppliers and to this extend it indemnifies itself. The information obtained is also hearsay in that the person responsible for extracting the information does not confirm the correctness by way of an affidavit [Sibango v PPM Plumbing (Pty) Ltd 2016 JBR 0799 (GP) at para 20; Dwele v Phalatse & Others (11112/15) [2017] ZAGPJHC 146(07 June 2017) at para 9]. In the view of this court, the applicant did raise and averred ownership in its founding affidavit and provided evidence for same therein by attaching the title deed. What he failed to do is put up his best evidence for same. In the opinion of this court the applicant did not assert new facts in its replying papers by attaching the title deed. It was confirming what it has already contended in its founding papers. The truth of the matter is, from the papers before this court, there is persuasive evidence that the applicant is the owner, and not the 1^st respondent. This court is therefore inclined to find that the applicant became the lawful owner of the property after taking transfer thereof from Nedbank Ltd on 15 August 2019. Accordingly, this court is of the view that there is no legal basis to find that the 1^st and 2^nd respondent occupies the property lawfully. The provisions of the PIE Act accordingly applies to this matter.

 

Requirements of the PIE Act:

 

[20]   The relevant provisions in the PIE Act regarding procedural and substantive issues are contained in section 4 thereof. Section 4(2) thereof requires notice of eviction proceedings to be effected on the unlawful occupiers and the municipality having the jurisdiction at least 14 days before the hearing of such proceedings. In Moela v Shoniwe it was held that:

“[7] This court held in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001(4) SA 1222 (SCA) that these provisions are peremptory (paras [11] and [17]. In respect of the notice required by s4(2) it held that it must be effective notice; that it must contain the information stipulated in ss(5); and it must be served “by the court”. The latter requirement is interpreted to mean the contents and manner of the service of the notice must be authorized and directed by an order of court (para [11]). 

[8] In the as yet unreported judgment of this court in The Unlawful Occupiers of the School Site v The City of Johannesburg (case no: 36/2006), referring to the fact that the requirements of s4(2) were peremptory, Brand JA said (para [22]):

“Nevertheless, it is clear from the authorities that even where the formalities required by statute are peremptory it is not every deviation from the literal prescription that is fatal. Even in that event, the question remains whether, in spite of the defects, the object of the statutory provision had been achieved (see for example Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 433H-434B; Weenen Transitional Local Council v Van Dyk 2002 (4) SA 653 (SCA) at para [13] [2005 (4) SA 357 (SCA) at 632 C-363A].

 

[21]   This court (per Phalane AJ) authorized a notice in terms of section 4(2) of the PIE Act to be served on the respondents. The notice was duly served on all the respondents on 29 January 2020, as evidenced by the sheriff’s returns of service on pages 45, 46 and 47 of the paginated bundle (or 007-1 to 007-3 of the Caselines bundle). This court is therefore satisfied that proper service and notice of the proceedings were effected 14 days prior to the hearing hereof and the requirements of sections 4(2), 4(3), 4(4) and 4(5) and that of the Moela v Shoniwe and Cape Killarney Property Investments decisions, supra, have been satisfied by the applicant.

 

[22]   The provisions of section 4(6) provides that “if an unlawful occupier has occupied the land in question for longer 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”.

 

[23]   Section 4(7) states that: “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 persuant to a mortgage, where the land has been made available or can reasonably be made available by a municipality or other organ of state or another landowner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

 

[24]   In terms of section 4( 8) if the court is satisfied that all the requirements of this section has been complied with and that no valid defence has been raised by the unlawful occupier, it must grant the eviction order, 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 the eviction order may be carried out if the unlawful occupier had not vacated the land on the date contemplated in paragraph (a) above.

 

[25]   In determining a just and equitable date contemplated in sections 4(8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or his family has resided on the land in question [section 4(9)].

 

[26]   In Dwele v Phalatse & Others,supra, it was held that, in determining whether or not to grant the eviction order, the court must exercise a discretion based on what is just and equitable, which discretion is one in the wide and not the narrow sense [at para 19; Bekker and Another v Jika 2004 (1) SA 114 (SCA) at para 18].

 

[27]   Section 26 (3) of the constitution provides that " No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions."

 

[28]   In Mphoka V Kekana (HCA 14/2016)[2017] ZALMPPHC 26 (30 August 2017) it was held that the duty that rests  on the court under section 26(3) of the Constitution  and section 4 of the PIE Act goes beyond the consideration of the lawfulness of the occupation. It is a consideration of justice and equity in which the court is required an expected to take an active role [at para 28]. In FHP Management (Pty) Ltd v Theron NO and Another 2004(3) SA 392 (C) at 393 C-E the court stated:
" in terms of s 4(7)of the PIE Act 19 of 1998 read with s26(3) of the Constitution of the Republic of South Africa Act 108 of 1996, it is not necessary for an applicant, in proceedings to evict an unlawful occupiers from such applicant’s property, to place more before the court by way of evidence then that such applicant is the owner of the property in question and the respondent is in unlawful occupation thereof. It is then up to the occupier to disclose to the court “relevant circumstances" to show why the owner should not be granted an order for the eviction of the occupier. Unless the occupier opposes and discloses circumstances relevant to the eviction order, the owner, in principle, will be entitled to an order for eviction... "

 

[29]   The interests of the landowner and the unlawful occupiers should both be taken into account and balanced [PE Municipality v People's Dialogue on Land and Shelter 2000 (2) SA 1074 (SELCD) at 1081F-G; Mphoka v Kekana, supra, at para 30]. 

 

[30]   The facts and circumstances relevant to this matter are not very clear. Not much detail can be extracted from the papers before this court. In paragraph 20 of its founding affidavit the applicant states that it is unaware of any elderly persons, children, disabled persons on the property or whether the property is a woman headed household which would be unduly affected by the eviction application. In answer hereto, the 1^st respondent merely admits his family and the property and nothing more in relation to the details of his family, children, etc. No further information could be detected from the answering affidavit, the supplementary answering affidavit or the replying affidavit. In paragraphs 36 to 42 of the applicant’s HOA, the applicant deals with section 4(7) and contends that even though it bears the onus to comply therewith, it is not required to provide more than what it knows or could ascertain. The applicant relies on City of Johannesburg v Changing Tides 74(Pty) Ltd & Others which states that the relevant circumstances are nearly without fail, facts within the exclusive knowledge of the occupiers and it cannot be expected of an owner to negate and advance facts not known to him and not in issue between them”. [2012 (6) SA 294(SCA) at paras 26-34]. It goes on to submit that it does not have any information relating to the status, ages and social standing of the occupiers , and that the 1^st respondent elected not to bring such information to the attention of the court through his answering affidavit. The applicant contends that this court is invited to draw an inference that the 1^st and 2^nd respondents, although legally represented, and to their detriment, preferred not to divulge this information to court. According to the applicant, the only information to its disposal is that the 1^st applicant is an adult male person of 46 years old. The 1^st and 2^nd respondents’ HOA is also silent on this point.

 

[31]   This court have considered the fact that the 1^st and 2^nd respondents did not place any facts before it in relation to the occupiers of the property, that there are any children , elderly or disabled persons or women headed households on the property. This court would have expected the 1^st and 2^nd respondents to provide as much detail as possible in the event that an eviction is granted. As indicated before, the 1^st respondent only refers to “his family” in his answering affidavit, nothing more. The 1^st and 2^nd respondents also did not raise the issue of alternative accommodation in their papers. In addition, the said respondents could not offer any defence to the prejudice the applicant raised [refer to para[10] above]. The said respondents did not deny the losses the applicant is suffering in respect of municipal rates and services etc.

 

[32]   In light of the above, this court is satisfied that the continuous occupation of the property by the 1^st and 2^nd respondents is extremely prejudicial to the applicant and that the applicant is unlikely to recover its losses occasioned by the occupation of the property by the said respondents. This court accordingly draw the inference that the respondents preferred not to divulge the relevant information to it in the case of an eviction.

 

[33]   With regards to the defence to the claim of ownership and eviction, the 1^st and 2^nd respondents merely state that the property was unlawfully purchased at the auction and the sale was unlawful. No proof of any of these allegations are provided. None of these contentions are properly substantiated. These defences are accordingly not sustainable. There is therefore no defence against the applicant’s ownership and eviction.

 

[34]   This court must now consider what is just and equitable in respect of the date on which the unlawful occupier has to vacate the property and if any conditions must be attached to the eviction order. As indicated previously, this court has not been provided with much information regarding the circumstances by the parties. The first and second respondents did not divulge the relevant information within their knowledge as envisaged in the FHP Management v Theron, decision, supra. This court can therefore only assume that evictions are often traumatic and difficult for the unlawful occupiers and their families, especially on children. It may even cause temporary homelessness and hardship, and the eventual relocation may be inconvenient and costly.

 

[35]   In view of all the circumstances and evidence before it, this court is of the opinion that it cannot afford the said respondents less than three (3) months to vacate the property.

 

[36]   At this point, it would be apposite to examine the impact of the rescission application of the 1st  respondent against the judgement (dated 22 September 2016) that Nedbank Ltd obtained against them in this court. The details thereof will not be entertained in this judgement, save to note that it was for payment of the amount of R 677 313. 94 (home loan arrears), that the property (erf 235, Birchleigh Noord Ext 3, Gauteng Province) was declared executable, that a writ be authorised and issued for the attachment of the property and for costs of suit. The applicant requested that the eviction application be stayed pending the finalisation of the rescission application.

 

[37]   It is clear and undisputed that the property was bought on auction and that the purchaser (respondent) bought it at the auction as a bona fide purchaser. The property was bought and transferred into the name of the purchaser (the 1st respondent) before the rescission application was launched. The property was declared executable by this court and was therefore legally sold in terms of that court order.

 

[38]   In Erstwhile Tenants of Willistone Court and Another v Lewray Investments (Pty) Ltd and Another 2016(6) SA 466 (GJ), paras 18-20 , it was held that:
“[18] the provisions of section 18 of The Superior Courts Act must be interpreted in accordance with the established principles of interpretation (see Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18; Bothma Batho Transport (Edms) Bpk v Bothma & Seun Transport (Edms) Bpk 2014(2) SA 494 (SCA) para J2).Contextually read, I am of the view that it had been the intention of the legislature for the operation and execution of a decision which is the subject of an application for a rescission also to be automatically suspended, then such decision would have been expressly included section 18(1). The legislature would have expressed its intention to include such decision in clear and unambiguous language"
“[19]the contrary interpretation would result in the absurdity that the filing of any unmeritorious application for rescission could foil the operation and execution of a decision which is the subject of such application. But a person against whom the decision which is the subject of an application for rescission was given can always approach the court under rule 45A to suspend its execution pending the finalisation of an application for rescission. I see no reason in the principle or in logic why an application for rescission should be placed in a better position that an applicant for leave to appeal or an appellant as far as the operation and execution of court orders are concerned. The glaring absurdities that could result in hardship to the party in whose favour a decision that forms the subject of an application for rescission was given could never have been contemplated by the legislature... "
“[20] the Superior Court Act commenced on 23 August 2013. Its section 18 only provides for automatic supervision of the operation and execution of a decision pending an application for leave to appeal. No other provision of The Superior Court Act provides for the automatic suspension of the operation and execution of a decision which is subject of an application to rescind, correct, review or vary any order of court. There is also nothing which indicates an intention on the part of the legislature to broaden the automatic suspension of the operation and execution of decisions beyond those included in section 18. A court can always be approached under rule 45A to suspend the operation and execution of orders not included section 18. But their operation and execution are not automatically suspended. "

 

[39]   In Ebrahim NO and Others v Mohamed and Others it was held that there was no basis in law for the automatic suspension of the operation and execution of a court order that is subject of a rescission application and to say that the mere filing of a rescission application will automatically suspend the operation and execution of a court order will indeed be absurd and will render the provision of rule 45A nugatory [(40478/16) [2017] ZAGPPHC 516 (17 March 2017) paras 14 - 15].

 

[40]   Accordingly, the rescission application does not suspend or stay these proceedings in the absence of a rule 45A order. The applicant's application in this regard therefore cannot succeed.

 

[41]   Apart from the above, the rescission application is directed against Nedbank Ltd and not to a party in the current proceedings. It could, in the view of this court, not be expected that the rescission application in one unrelated matter stay the proceedings in another, especially where it is not the same litigants involved in both matters, and where a bona fide purchaser bought the property before the recession  application was instituted.

 

Costs:

 

[42]   The general principle is it costs follows the result except where there are good grounds to deviate from this principle [Meyers v Abrahson 1951 (3) SA 348 (C) at 455]. This court finds no grounds to deviate from this principle in casu.

 

Order:

 

[43]   In the result, the following order is made:

(a)       the application for the eviction of the 1st and 2nd respondents is granted;

(b)       the 1^st  and 2^nd  respondents are ordered to vacate the property before   or on the 28th of February 2021 and not  return thereafter, failing which   this order may be carried out at any time after the 7th of March 2021, in accordance with section 4(8) of the PIE Act 1998;

(c)        that the sheriff, alternatively, his duly appointed deputy  is authorised   and directed to evict the 1st and 2nd respondents from the property;

(d)       the 1^st and 2^nd  respondents to pay costs of the application inclusive of the section 4(2) PIE Act application.  

 

 

 

 

 

 

                             

               

B CEYLON

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA,

GAUTENG DIVISION,

PRETORIA

 

 

 

 

 

Appearances:

For the applicant                  : Adv CM Shongwe

Instructed by                        : CSM Attorneys

For the respondents             : Adv JC Nkosi

Instructed by                        : Graham Attorneys

Date of hearing                    : 04 August 2020

Date of judgment                 : 20 November 2020

 

 

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