Languza v Nkewu and Others (4026/2019) [2020] ZAECMHC 44 (8 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO. 4026/2019

In the matter between:

NOMONDE MONDRESS LANGUZA

Applicant

and

INNOCENCIA NKEWU (born LANGUZA)

1st Respondent

BERRY NKEWU

2nd Respondent

SENQU MUNICIPALITY

(JOE GQABI DISTRICT)

3rd Respondent

JUDGMENT

DUKADAAJ

[1] The applicant, aged 80 years, claims to be the owner of immovable property situate at No. 4A Tienbank, 81 Hershel Road, Sterkspruit. She is seeking for an order for the 1st and 2nd Respondents to be evicted from the property. The 3rd Respondent is cited for purpose of complying with the provisions of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (No. 19 of 1998 (" the PIE" ). The application is opposed by the 1st and 2nd Respondents.

[2] As a foundation for her claim of the property, the Applicant avers:

"11. During 1995 I approached Basotho Tribal Authority ('the BTA' ), and applied for a piece of land at a rural land located adjacent to the town of Sterkspruit, Eastern Cape, with the intention of starting business.

12. In the same year, the BTA allocated me with site SBC under Administrative Area 81 in Senqu Local Municipality. The site is now known as NO.4A Tienbank , situated at 81 Hershel Road Sterkspruit

('the property').

13. I then built a structure on the property and started with a business of a car wash within the same year of obtaining the land but before obtaining the registration papers for the land. This I did whilst I was still in the full employment of the Department of Education as a teacher.

14. Some few year later, after I took retirement from the Department of Education in 2000 , I built other structures in the property utilising my income and pension monies that I received for my service as a teacher over the years. I then commenced a Bed and Breakfast Accommodation business that is known as Ekhaya Lodge .

15. As the business grew over the years, I built the other structures and commenced business of a butchery and conference facilities in the property. At the moment, the property has all the business income streams up and running, namely Ekhaya Lodge with Conference

facilities, a car wash and a Butchery [1]

[3] The Applicant further avers that whilst in occupation of the property, she requested formal registration papers for ownership of the property. On 12 April 2007 the BTA issued a Recommendation for Approval of Registration of the property as Site 58C under Administrative Area 8 in Senqu Local Municipality which was submitted to the Department of Agriculture and Land Affairs for final approval and registration. Thereafter the Department of Agriculture issued a Certificate of Allotment to the Applicant. On 15 April 2015 the Senqu Municipality, under the Department of Local Government and Traditional Affairs, issued to the Applicant a Confirmation of her residence at the pro pert y. She has attached to her founding affidavit the BTA's Recommendation for Approval of Registration,

Certificate of Allotment and confirmation of residence as Annexures NMl, NM2 and NM3 respectively.

[4) The 1st and 2nd Respondents have raised the following points in limine:

(a)

Locus standi of the Applicant.

The 1st and the 2nd Respondents ("the Respondents") claim that the late son of the Applicant, Sifundo Languza, was the owner of Ekhaya Lodge, being the property in dispute. A certain Simthandile Maqashala/a has since been appointed as an executor of the estate of the late Sifundo Languza. Therefore, it is Simthandile Maqasha/ala who has the locus standi to evict the Respondents, not the Applicant. Significantly, no document has been attached by the Respondents indicating the ownership of the Ekhaya Lodge by the late Si/undo Languza. It is difficult to comprehend how they come to the conclusion that Sifundo Languza was the owner of Ekhaya Lodge.

[b]

Non-joinder of Simthandile Maqashalala.

The Respondents contend that Simthandile Maqashalala should have been joined in these proceedings because he is the executor of the property in question. As already stated, the Appl icant claims to be the sole owner of the property and it would have been inappropriate for her to join Simthandile Maqhashalala in these proceedings.

(c)

Non-compliance with PIE

The complaint of the Respondents is that the Applicant should have given them the statutory notice of fourteen (14) days before instituting these proceedings. A notice was issued by the Applicant and is annexure NM14 to her founding affidavit. In any event, the Respondents have prepared fully and no prejudice has been suffered by them.

[5] The Respondents further contend that in 1995 the deceased (i.e. Sifundo Languza) approached the BTA to apply for the land, which happened to be the same land where Ekhaya Lodge is situated . In fact, the deceased had been occupying the land until he was finally fined for illegal occupation - that is why he applied for the land. According to the Respondents, in 1998, the Basotho chief gave the deceased the land. The deceased started a small car wash business on the land that grew up. In 2006 the deceased registered Ekhaya Lodge as a close corporation by the name Sterkspruit Lodge with numbers 2006/157801/23 t/a as Ekhaya Lodge Accommodation and Conference Transport Company, Car Watch and Full Licenced Restaurant. The deceased was the only member of Ekhaya Lodge.

[6] All this evidence does not deal with the main issue i.e. whether the Respondents are in lawful occupation of the land in question. The evidence of the Respondents is significantly deficient of proof of any title to remain in occupation of the land. This is confirmed by the Applicant in her replying affidavit. She states clearly that she gave her son (i.e. the deceased) permission to improve the business, hence the deceased formed a close corporation.

[7] The Applicant denies that she ever wrote an obituary of her deceased son stating "Seven came back to Sterkspruit starting his present business from small beginnings of a car wash later 'Ekhaya Lodge' involving himself in tourism etc." She states that she could not be querying any statements that were intended to speak well about her son at his funeral. The Respondents have not indicated who wrote the obituary of the deceased Sifundo Languza.

[8] The Respondents have alternative accommodation in the event the court evicts them. The 1st Respondent has her mother's place and both Respondents own a property in Cape Town. In City of Johannesburg v Changing Tides[2] 74 (Pty) Ltd the Supreme Court of Appeal held:

"A court hearing an application for eviction at the instance of a private person or body owing no obligations to provide housing or achieve gradual realisation of the right to access to housing in terms of section 26 (1) of the Constitution is faced with two

separate inquiries. First it must determine whether it is just and equitable to grant eviction order having regard to all relevant

factors. Under section 4(7) those factors include availability of alternative land or accommodation. The weight to be attached to that factor must be assessed in the light of the property owner's protected right under section 25 of the Constitution, and on the footing that the limitation of those rights in favour of the occupiers will be ordinarily limited in duration. Once the Court decides that there is no defence to the claim for eviction and that it will be just and equitable to grant an eviction order, the court is obliged to grant that order, Before doing so, however, it must consider what just and equitable demand in relation to the date of implementation of that order and must consider what conditions must be attached to that order." (Own emphasis)

[9] I am of the view that the Applicant has met the requirements of PIE and that the Respondents have no valid defence to remain in the premises in question . Accordingly, I grant the following order:

(a) The 1st and 2nd Respondents, and any person occupying the premises through the 1st and 2nd Respondents at No. 4A Tienbank, Sterkspruit be evicted from the property within thirty (30) days from the 8 September 2020.

(b) In the event of the 1st and 2nd Respondents refusing to vacate the premises at No. 4A Tienbank, Sterkspruit, the Sheriff of this Honourable Court is authorised to evict the Respondents and any person occupying the property through the Respondents and, if necessary, to enlist the services of the South African Police Service to so effect the eviction.

(c) The 1st and 2nd Respondents are ordered, jointly and severally, the one paying the other to be absolved, to pay costs of the application.

Acting Judge of the High Court

Date matter argued

27 August 2020

Date judgment delivered 8 September 2020

Counsel for Applicant

Adv. Z Mapoma

Instructed by

Godla & Partners Inc.

Counsel for 1st and 2nd Respondents P C Ploos van Amstel

Instructed by

Phatshoane Henney Attorneys

[1] See page 11 and 12 of papers

[2] 2012 (6) SA 294 (SCA)