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IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: M333/2016

Reportable: No

Circulate to Judges: No

Circulate to Magistrates: No

Circulate to Regional Magistrates: No

In the matter between:

RABORIFE MILICENT MARIA                                                                               Applicant

AND

NKOSI JAN                                                                                                 First Respondent

MAFIKENG LOCAL MUNICIPALITY                                                    Second Respondent

 

DATE OF HEARING                             :        08 DECEMBER 2016

REASONS FOR JUDGMENT               :        16 FEBRUARY 2017

 

COUNSEL FOR THE APPLICANT       :       MR NKOMO

COUNSEL FOR RESPONDENTS         :       MR RABORIFE

 

JUDGMENT

 

LEEUW JP

 

Introduction

[1] This is an application for eviction of the first respondent from the following premises: House No: 1764 Motlhamme Crescent, Unit 8, Mmabatho (house no. 1764) and house no. 1756 Robert Sobukwe Street, (house no.1756), The applicant was granted leave by Kgoele J to serve this application on all the other occupants of the said premises as well as the 2^nd respondent in accordance, section 4 (2) and (5) of the Prevention of the Illegal Eviction and unlawful occupation of Land Act No. 19 of 1998.

[2] The applicant, Millicent Maria Raborife (Ms Raborife), is the registered owner of the said properties. Erf 1764 was registered in the her  name on the 22 October 2015 and Erf 1756 was registered and transferred into her name on  the 3^rd June 2015. Both properties were bought from Tshwantsao Maria Mokobane (Ms Mokobane).

 

Point in limine

[3] Mr Nkosi raised a preliminary point that Ms Mokobane should have been  joined as a party to the proceedings, based on the fact that he has taken issue with her with regard to the sale of the two properties to Ms Raborife, which matter is still pending in this court.

 

Factual Backround

[4] The first respondent Jan Nkosi (Mr Nkosi) was a life partner to Ms Mokobane. According to Mr Nkosi, he co-habited with Ms Mokobane from 2003. They subsequently married on the 18^th December 2007 out of community of property, without the application of the accrual system. Their marriage was dissolved on the 13^th October 2010.

[5] During the subsistence of his relationship with Ms Mokobane, they entered into an oral partnership agreement regarding the purchase of house no 1764. The house was bought on the 3^rd December 2003 at a public auction. Per agreement, the house was registered in the name of Ms Mokobane, even though they equally contributed to the monthly instalments payable to the Bank towards the purchase of the house.

[6] In respect of House no 1756, Ms Mokobane applied for a home loan from Standard Bank in her name. She was granted  a loan amount of R67, 000-00 to purchase the house on 2 May 2007. Before the transfer of the property in the name of Ms Mokobane, on the 26 January 2007 he entered into an oral agreement with Ms Mokobane that even though the house was to be registered in her name, he would still be liable for payment of the balance of the purchase price to the seller. It was also agreed that the transfer costs, as well rates and taxes would be paid by him because his ex-wife and his children were staying in that house. Mr Nkosi has attached an affidavit from the seller of the house, Sepojane Martha Mahole, who confirms that she sold the house to him and that he was liable to pay the balance of R34,000.00 for the purchase of the house, which amount was payable on or before the 31^st December 2015. He further attached a copy of an agreement between him and Ms Mokobane wherein they agreed that after the settlement of the purchase amount, the house will be leased to tenants and the rental utilized to pay back the loan taken by Ms Mokobane for house no 1764, as well as the R70, 000-00 house loan obtained by Ms Mokobane from the Bank for the purchase of the house no 1756. This agreement is dated 26 January 2007.

[7] Mr Nkosi attached several bank deposits made in Ms Mokobane’s account as proof of payments towards the defrayment of the home loans, which were in the name of Ms Mokobane. He submits that he owns the two houses.

[8] He further intimates that after their marriage on the 18 December 2007, they experienced financial problems. As a resulted took a house loan from Nedbank and used house no 1764 as security. They used some of the money to purchase another house number 394 Montshiwa which was registered in both their names. Because of their financial constraints, they sold the house and on 20 November 2009, they  agreed that the proceeds thereof be paid to Ms Mokobane and that Mr Nkosi would retain full ownership of house no 1756. Mr Nkosi has been residing in house number 1764 for almost 13 years now, and had leased out house no 1756 to tenants.

[9] Prior to the transfer of the properties to the applicant, Mr Nkosi lodged an urgent application in this court on 12 June 2015 per case no. M206/15 against Ms Mokobane, Ms Raborife Absa Bank: Mahikeng, Mahikeng Local Municipality, Huizemark Estate Agancy, and Chris Maritz Attorneys seeking the following order:

1. Restraining ABSA Bank from releasing a payment of R230, 000-00 to Ms Mokobane pending an action which he intended to institute against  Ms Mokobane within a period of 30 days;

2. That Ms Mokobane be restrained from transferring the house No 1756 to Ms Raborife pending an application to set aside the registration of the house which had taken place on the 3 June 2015;

3. Restraining Ms Mokobane, Huizenmark Estate Agents and attorney Chris Maritz, from transferring house no 1756 to any third party pending the action instituted by Mr Nkosi against Ms Mokobane for the dissolution of the partnership between himself and Ms Mokobane. The application was dismissed by Gura J on 13 August 2015, “due to the non-joinder of Nedbank”.

[10] Pursuant thereto, on the 14 August 2015 Mr Nkosi filed a similar application under Case No. M317/2015 on an urgent basis.  Nedbank Limited was joined as an additional party. This application was removed from the roll by Hendricks J on 20 August 2015 due to lack of urgency. There is nothing on record to indicate a subsequent re-enrolled this appcation.

[11] However, Mr Nkosi instituted action (case No. 1206/2015) on 20 August 2015 against Ms Mokobane and Ms Raborife, Nedbank and the Registrar of Deeds, wherein he claims:

“1. An order that it be declared that the Plaintiff is the lawfull owner of Erf 1756 Robert Sobukwe Street, Unit 1, Mmabatho.

2. That it be declared that the Plaintiff is the lawfull owner of Erf 1764 Motlhamme Crescent, Unit 8, Mmabatho, alternatively and only in the event that it be found that the aforesaid property belongs to the partnership between the parties, an order appointing the liquidator with such power and/or authority to realise the aforesaid asset, and to liquidate the liabilities of the partnership and to prepare a final account and to pay the Plaintiff half the net profits made by the partnership.

3. That the sale agreements entered into between the First and Second Defendant be declared mala fide, and accordingly void.

4. That the Fourth Defendant be ordered to effect transfer of the aforesaid properties in the name of the Plaintiff. Alternatively, Erf 1756 Robert Sobukwe Street, Unit 1, Mmmabtho.

5. Costs against the First Defendant, and any other Defendant opposing the relief.

6. Further and/or alternative relief.”

[12] On perusal of the file in the main action instituted by Mr Nkosi, it is evident that Ms Raborife filed a notice of intention to defend on 25 November 2015. She has not filed a plea, despite being duly served with the summons on the 26^th October 2015.

 

Analysis

[13] Mr Nkosi has always been desirous of regaining his properties from Ms Mokobane. All his cases were unsuccessful only on technical issues: Case No. M317/15 was removed from the roll on the 13 August 2015 due to lack of urgency: Case No. M206/15, was dismissed on the 13 August 2015 due to the non-joinder of the Nedbank. (See paragraph [11] above)  In the meantime, the two properties were transferred to Ms Raborife on the 3^rd June 2015 and 22 October 2015 respectively. Ms Raborife was cited as a party in the above mentioned cases lodged by Mr Nkosi.

[14] Mr Nkosi has a right to have the dispute relating to his alleged claim to the two properties, adjudicated by the court. He is a lay person who should obtain legal representation in order to have his case adequately prepared. Ms Raborife was aware of the fact that Mr Nkosi had approached the court on various occasions seeking an order to protect his alleged rights to the properties and further that the merits of the cases were never resolved by the court. She nonetheless opted to proceed with the purchase of the properties.

[15] Mr Nkomo who appeared for Ms Raborifi submitted that Mr Nkosi should have filed a notice of bar when he realized that Ms Raborife failed to file a plea. This argument has no merit and cannot be sustained in the circumstances of this case. Mr Nkosi indicated that he has no money to appoint a legal representative. Ms Raborife did not defend the action. Instead she approached this court for an order to evict Mr Nkosi from the two properties. This is an abuse of the Court process.

[16] Mr Nkosi has been occupying house no. 1756 for almost thirteen years now. He has no alternative place to stay. He raises issues about having bought the properties which issues ought to be decided by the court after affording all parties affected an opportunity  to present their cases.

[17] Considering the fact that Ms Mokobane and Ms Raborife have been joined as defendants in the main action, it was necessary for Ms Raborife to join Ms Mokobane as a party to the present proceedings because she has a direct and substantial interest in the outcome of the order that is sought in the proceedings. See Snyders and Others v De Jager (Joinder) (CCT186/15) 2016 ZACC 54 (21 December 2016. Where Zondo J (for the majority) in paragraph [9] stated:

“A person has a direct and substantial interest in an order that is sought in proceedings if the order would directly affect such person’s rights or interest. In that case the person should be joined in the proceedings. If the person is not joined in circumstances in which his or her rights or interests will be prejudicially affected by the ultimate judgment that may result from the proceedings, then that will mean that a judgment affecting that person’s right or interests has been given without affording that person an opportunity to be heard. That goes against one of the most fundamental principles of our legal system. That is that, as a general rule, no court may make an order against anyone without giving that person the opportunity to be heard.”

[18] Furthermore, Ms Raborife cannot, whilst the main action is pending, have Mr Nkosi evicted from the two properties, when she was afforded the opportunity to defend the case, and has opted not to do so. It is in the interest of justice that Mr Nkosi be afforded an opportunity to have his dispute on the ownership of the properties resolved by the Court.

 

Order

[19] Consequently,

1. The applicant is ordered to join Ms Millicent Maria Mokobane as a party to these proceedings.

2. The respondent is directed to obtain legal representation and if necessary, to approach Legal Aid South Africa for assistance;

3. This matter is removed from the roll.

4. Each party to pay its own cost.

 

________________________

M M LEEUW

JUDGE PRESIDENT OF THE

NORTH WEST HIGH COURT, MAHIKENG

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