Ingelosi House (Pty) Ltd v Howard and Others (38755/2013) [2017] ZAGPJHC 379 (10 September 2017)
- Citation
- [2017] ZAGPJHC 379
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M Victor
- Case number
- 38755/2013
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M Victor
- Case number
- 38755/2013
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The applicant proved ownership of the property through documentary evidence of purchase and registration. The respondents failed to establish any legal right to remain on the property and did not pay rent. Their challenge to the applicant's authority was vague and procedurally defective under Rule 7(1). The issue of non-joinder of the City of Johannesburg was raised without any substantive basis. The respondents had sufficient time and opportunity to obtain legal representation, including access to pro bono services, but failed to do so. The court found no credible defence to the eviction and granted the relief sought by the applicant.
Court disposition
Eviction granted; respondents ordered to vacate property.
Orders
- The relief sought in Part B of the notice of motion, prayers 1 and 2, is granted.
- Respondents are ordered to vacate the property on or before 30 June 2014.
- Prayers 3, 4, and 5 of the notice of motion are granted.
02
Material facts
Parties
Ingelosi House (Pty) Ltd
Applicant Counsel: Adv. PullingerNlenya Howard and 28 Others
Respondent Counsel: Adv. Bodlani03
Procedural history
Posture
Eviction Application / Final Determination
04
Questions and positions
Legal issues
- 01
Whether the applicant is the lawful owner of the property.
- 02
Whether the respondents have any legal right to remain on the property.
- 03
Whether there was a failure to join the City of Johannesburg as a necessary party.
- 04
Whether the applicant and respondents had proper authority to depose affidavits.
Party arguments
- Applicant
- The applicant asserts ownership of the property, having purchased it at public auction and registered it in its name. The right of occupation was terminated in writing, and the respondents have refused to vacate despite repeated demands. The applicant contends that the respondents have no legal basis to remain and have not paid rent.
- Respondent
- The respondents challenge the applicant's ownership and raise the issue of non-joinder of the City of Johannesburg. They also question the authority of the applicant's deponent and claim that the person deposing on their behalf is not known to them. They argue financial inability to appoint legal representation and suggest that the family of an unidentified person is in charge of the property.
05
Court’s reasoning
Legal principles
- 01
Deeds Registries Act
Ownership is established by registration in the Deeds Office and transfer of title following a valid sale.
- 02
Uniform Rule 7(1)
A challenge to authority under Rule 7(1) must be specific and filed within 10 days of becoming aware of the alleged lack of authority.
- 03
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
Eviction proceedings under section 4(2) of PIE require proper service and consideration of the rights of unlawful occupiers.
06
Ratio, limits and disposition
Ratio decidendi
The applicant proved ownership of the property through documentary evidence of purchase and registration. The respondents failed to establish any legal right to remain on the property and did not pay rent. Their challenge to the applicant's authority was vague and procedurally defective under Rule 7(1). The issue of non-joinder of the City of Johannesburg was raised without any substantive basis. The respondents had sufficient time and opportunity to obtain legal representation, including access to pro bono services, but failed to do so. The court found no credible defence to the eviction and granted the relief sought by the applicant.
Obiter and limits
- Respondents could have used withheld rental payments to secure legal representation.
- Pro bono legal services are available to indigent litigants, and failure to seek such assistance does not excuse non-compliance with legal procedures.
- The credibility of the respondents' claim not to know their own deponent is questionable given the evidence attached to the answering affidavit.
Court disposition
Eviction granted; respondents ordered to vacate property.
- The relief sought in Part B of the notice of motion, prayers 1 and 2, is granted.
- Respondents are ordered to vacate the property on or before 30 June 2014.
- Prayers 3, 4, and 5 of the notice of motion are granted.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE NO: 38755/2013
Not reportable
Not of interest to other judges
Revised.
10 September 2017
In the matter between
INGELOSI HOUSE (PTY)
LTD APPLICANT
and
NLENYA HOWARD AND 28
OTHERS RESPONDENTS
JUDGMENT
VICTOR J:
[1] This is an eviction application. The applicant in this matter seeks an order in terms of Part B of the notice of motion that Ingelosi House Ltd with the registration number 2011/129776/07, hereinafter referred to as the property, belongs to the applicant and that the respondents be evicted from the property. An answering affidavit was filed in terms of which two issues were challenged viz. ownership of this property, as well as the non- joinder of the City of Johannesburg. No basis for the mediatory role of the City Council was suggested. At the hearing the authority of the applicant’s deponents to bring such an application for their eviction was raised as well as the authority of the person who deposed to the answering affidavit on behalf of the respondents.
[2] On 25 October 2013 leave was given by this court in terms of section 4(2) of PIE to serve the application for eviction.
[3] There are five respondents before Court, they are the 5th, 6th, 13th, 23rd and 29th respondents save that the 6th respondent, Ms Lewile Sekhakane is not before Court but is assisted by her brother.
Challenge to ownership
[4] The applicant has demonstrated unequivocally both in the founding affidavit and in reply that it is indeed the owner of the property. The applicant purchased the property on public auction on 5 August 2011. The sale agreement was attached. On 1 October 2013 the property was transferred into the applicant’s name. A Deeds Office report together with an affidavit confirming the registration was attached. I am satisfied that the applicant is the owner of the property.
[5] The right of occupation was terminated in writing on 30 November 2011. The respondents did not vacate and further demands were made and in particular 20 July 2013.
[6] The respondents contend that the family of an unidentified person is in charge of the property. The erstwhile owner is a company and is in final liquidation according to the records of CIPIC.
Challenge to the applicant’s authority
[7] The respondents have challenged the applicant’s authority to bring the application. The challenge was raised at the hearing. It was general in nature. Rule 7(1) requires the challenge to be specific. It is not stated whether it is to the deponent of the affidavit or to the attorney representing the applicant. No challenge was filed within 10 days of the respondents becoming aware of the purported lack of authority nor was leave sought on good cause for their failure to do so.
[8] The respondents before Court today state that they do not know the first respondent who deposes to the affidavit on their behalf. The deponent to the answering affidavit is Mr Howard Nlenya who deposes to the fact that he speaks on behalf of the 29 respondents. In fact he attaches at page 61 a list referred to as LO1 of the present respondents that are cited in this application. Therefore, the submission by the parties before Court today that they do not know Mr Howard Nleya lacks credibility.
[9] There has been a submission that the parties do not have money to appoint an attorney, but it is clear to me that any defence which the respondents would have proffered is contained in their answering affidavit to these papers. They were represented at the time of filing the answering affidavit.
[10] This application was launched in October of 2013, we are almost in the middle of 2014 and the respondents have clearly had more than enough time to deal with this matter. In addition, the respondents are not paying any rent, those respondents who made submissions to me stated that they do not pay rent and I accept that they are not paying rent. They could have used the rental money that they withheld to brief an attorney.
[11] In addition, there are pro bono facilities such as the WITS Law Clinic, the Legal Resources Centre and other public bodies, such as the Legal Aid Board where they could have obtained legal advice in the light of their attorney withdrawing from the matter or not taking their cause any further. No such attempt has been made.
In the result, I make the following order:
The relief sought in the B Part of the notice of motion, prayers 1, 2 is granted.
The respondents are ordered to vacate the property on or before 30 June 2014 and grant prayers 3, 4, and 5.
______
M.VICTORJUDGE OF THE SOUTH
GAUTENG LOCAL DIVISION
Appearances:
Case Nr: 38755/13
Counsel for Plaintiff: Adv. Pullinger
Instructed by: SERI Law Clinic
6th Floor Aspen House
54 De Korte Street
Braamfontein
(011) 356 5860
Counsel for Defendant: Adv. Bodlani
Instructed by: Maseti Attorneys
Klamstown Towers
1st Floor Suite 113
151 Commissioner & Von Weilligh Streets
Johannesburg
(011) 053 - 6001
Date of hearing: 2014-05-28
Date of judgment: 2014-05-28
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