N.M and Another v Mnyameni and Others (3892/2019) [2020] ZAFSHC 201 (31 July 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3892/2019

In the matter between:

N M

1st Applicant

E M

2nd Applicant

and

THABANG

ANDRIES

MNYAMENI

1st Respondent

ALL

UNLAWFUL OCCUPIERS OF THE PREMISES

OF ERF [...] (EXTENSION 33), DISTRICT

BLOEMFONETIN

2nd Respondent

MANGAUNG

METROPOLITAN MUNICIPALITY

3rd Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: 07 MAY 2020

DELIVERED ON: 31 JULY 2020

MHLAMBI, J

[1] This is an opposed application in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), in terms of which the applicants seek an order for the eviction of the first and second respondents from the property described as Erf […] (extension 33), district Bloemfontein, Free State held under deed of transfer: T3193/2005.

[2] Background

2.1 It is common cause that the first applicant entered into a contract of sale of the property with Kgwabane Abraham Mokhitli and Nthibe Sara Mokhitli on 25 January 2019. The property was transferred onto her name on 25 April 2019.

2.1 The first respondent, together with his minor daughter, are in occupation of the property since 2001. It is not in dispute[1] that the first respondent paid an amount of R 1 500.00 to a certain Justice, attached to the third respondent as at that time, for the purchase of the empty stand (the subject matter of the current dispute) whereafter he resided thereon with Thiwe Sara George. The couple had a minor child, who is at present 17 years old and who resides with the first respondent.

2.3 During 2005, the first respondent participated in the government's housing subsidy scheme, known as the low cost housing. A four-room "RDP" house was erected on the premises and registered in the name of Sara George, who was then unemployed, in order to fulfil the requirements of the said scheme. The property was transferred under deed of transfer T3193/2005 into her name.

2.4 The relationship between the couple soured. Sara left the common home during 2007 and married another man. The minor child was left with the first respondent with whom she resided to date. The first respondent continued to pay all expenses relating to the property.

2.5 During 2016, Sara and the first respondent concluded a deed of sale in terms of which the property was sold to the first respondent for the amount of R 50 000.00; an amount of R 40 000.00 was paid as a deposit and the balance was paid on 01 October 2016[2].

2.6 The written deed of sale was drawn by the seller's attorneys and the original deed of transfer was handed to Sara's attorney by the name of Mr Mahiro[3].

[3] The Parties' submissions

3.1 The applicant contended that as a bona fide purchaser and the owner of the property in terms of the Alienation of Land Act 68 of 1981, her right to the property was unassailable. The applicants duly complied with the procedural requirements of the PIE Act to secure the respondent's eviction.

3.2 The first respondent was in unlawful occupation of the property as his claim to have the property registered in his name had prescribed. He failed to establish that he has any other right in law to occupy the property and was therefore in wilful, persistent and unlawful occupation of the said property.

3.3 The first respondent failed to disclose under oath the information relating to his and his daughter's health and/or disability as well as whether or not they possessed alternative accommodation. The first respondent had, at the most, a claim of unjustified enrichment as against the said Sara Mokhitli.

[4]

4.1 It was contended on behalf of the first respondent that he was at all 'times satisfied that he was the owner of the property and had stayed with his daughter there ever since. It was submitted that the applicants had colluded with his erstwhile wife when they entered into a further agreement of sale which culminated into the registration of the property into the first applicant's name. On being informed that the applicants were the new owners of the property, he presented the applicants and their attorney with a copy of the deed of sale that he entered into with his erstwhile wife.

4.2 A combined summons was issued under case number 1112/2020 against Mokhitli Sara, her husband, the first and the second applicant seeking an order for the transfer of the property into the name of the first respondent and, amongst others, a claim based on the fraud committed by the applicants and his previous wife[4]. It would appear that in that action only the applicants had entered an appearance to defend and the matter is pending[5].

4.3 Relying on Quartermark Investments (Pty) Ltd vs. Mkwanazi and another[6], it was contended on behalf of the first respondent that it is trite law that where the underlying transaction is tainted by fraud, the real agreement is defective and ownership can therefore not pass despite registration. Consequently, it could never be found that the first respondent is an illegal occupier of the property as he has been residing thereon with his minor child for the past 19 years. His version of how he bought the property and acquired same could not be rejected on the papers. The application should therefore be dismissed with costs, alternatively, the application should be postponed for hearing until such date as case number 1112/2020 (the main case) has been adjudicated upon.

[5] The Law

Section 4(7) of the PIE Act provides as follows:

"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 pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.'

[6] Section 26(3) of the Constitution[7] 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. In Port Elizabeth Municipality vs. Various Occupiers[8], the following was stated:

"Section 26(3) evinces special constitutional regard for a person's place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often, it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat."

[7] The PIE Act is structured to provide legislative texture to guide the courts in determining the approach to eviction now required by section 26(3) of the Constitution. Its central operative provisions are section 4, which deals with evictions sought by owners or persons in charge of property.[9] In Port Elizabeth Municipality vs. People's Dialogue on Land and Shelter and Others[10], it was stated that the term "just and equitable" also implied that a court, when deciding on a matter of this nature, would be obliged to break away from a purely legalistic approach and have regard to extraneous factors such as morality, fairness, social values and implications and circumstances which would necessitate bringing out an equitably principled judgment.• The Constitution and PIE require that, in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result.[11]

[8] In Quartermark investments (Pty) Ltd[12] it was stated that:

"It is trite that in motion proceedings affidavits fulfil the dual role of pleadings and evidence. They serve to define not only the issues between the parties, but also to place their essential evidence before the court. They must therefore contain the factual averments that are sufficient to support the cause of action or defence sought to be made out. Furthermore, an applicant must raise the issues as well as the evidence upon which it relies to discharge the onus of proof resting on it. in the founding affldavit"[13]

[9] Conclusion

The first respondent made known in his opposing papers that, were the application not to be dismissed, that it should be postponed until finalization of the main action. In his heads of argument filed on 8 May 2020, it was indicated that the action was instituted under case number 1112/2020 against the sellers (Sara Mokhitli and her husband) and the applicants in respect of the disputed property. On 20 May 2020 the applicants' attorneys filed a letter dated 19 May 2020 in which they made known that the parties had agreed that the matter be adjudicated on the papers and heads of argument that were prepared and filed; that the appearances and oral submissions on behalf of the parties be excused and that the matter be decided on the abovementioned basis. In the given circumstances, I am of the opinion that it would not be just and equitable to grant an order as sought by the applicants. It would also be premature in my view that this matter should be dismissed at this stage, as action has already been instituted and has as yet not been finalised. I agree with the submissions by the first respondent's counsel that the application should be postponed for hearing until such date as the main case has been adjudicated upon.

[10] As regards' costs, cost should stand over.

[11] l therefore make the following order:

Order:

1. The application stands over pending the finalisation of the action under case number 1112/2020.

2. Costs to stand over.

______

J

J MHLAMBI J

Counsel for Plaintiff: Adv. I Macakati

Instructed by: Matsepes Attorneys

26 Aliwal Street

Bloemfontein

Counsel for 1st Defendant: Adv. SJ Reinders

Instructed by: Giorgi and Gerber Attorneys INC

Monte Carlo Building

65 Nelson Mandela Drive

[1] Paragraph 5 of the Opposing Affidavit and paragraph 7 of the Replying Affidavit

[2] Para 9: Opposing Affidavit

[3] ditto

[4] Paras 15 & 16 of the opposing affidavit

[5] First respondent's heads of argument: para 6

[6] 2014 (3) SA 96 (SCA)

[7] Act 108 of 1996

[8] 2005 (1) SA 217 (CC)

[9] Paragraph 24 Port Elizabeth Municipality supra

[10] 2000 (2) SA 1074 (SECLD) 1079

[11] Port Elizabeth Municipality supra para 36

[12] 2014 (3) SA 96 (SCA)

[13] Para 13