Phayane v MC Denneboom Services Station CC and Another (51724/2012) [2013] ZAGPPHC 363 (28 November 2013)

IN THE HIGH COURT OF

SOUTH AFRICA

(NORTH GAUTENG HIGH COURT)

Case number: 51724/2012

Date: 28 November 2013

Not reportable

Not of any interest to other judges

In the matter between:

MOLEFE IAN PHAYANE………………………………………………..APPLICANT

and

MC DENNEBOOM SERVICES STATION CC…………………1st

RESPONDENT

NOLA ALLISON CHILOANE……………………………………2nd

RESPONDENT

Coram: CAMBANIS AJ

JUDGMENT

Delivered on: November 2013

CAMBANIS AJ

1.Applicant seeks an order to eject the first and second respondents and/or ’ all those persons working through or under them, from the premises known as Erf 22104, City of Tshwane Metropolitan Municipality, registration division J.R., Province of Gauteng, situate at 95 Tsamaya Road, Mamelodi.

2.The parties were engaged in litigation prior to the hearing of this matter in case number 11250/2012 in which the first respondents sought an order in which the first respondent in the present matter sought an order declaring it the lawful owner of the property described above. First respondent also sought an order of declaration that the deed of sale entered into between the first and second respondents and the trustee of the insolvent estate of the second respondent, be declared null and void.

3.Applicant made application at the hearing of this matter to amend its notice of motion in respect of the relief sought. Initially, applicant sought an order ejecting the first and second respondents and all those claiming through or under it from Erf 22104, Mamelodi, City of Tswane Metropolitan Municipality, registration division J.R., Province of Gauteng, situate at 95 Tsamaya Road, Mamelodi.

4.The amendment added the following words “excluding any residential occupants” to the order sought as set out above. I see no reason to refuse the amendment and prayer one (1) is accordingly amended.

5.Applicant relied on the evidence presented in its founding affidavit to the original notice of motion thus circumventing respondents objection to late filing and non compliance with the rules of court in respect of subsequent papers filed by the applicant.

6.In doing so applicant has neutralised first and second respondents opposition which was based on applicants alleged non-compliance with the Prevention for Illegal Eviction from and Unlawful Occupation of Land Act no 19 of 1998 (the PIE Act).

7.In the end, the only remaining question to be decided is whether this court may grant the order in view of the pending litigation referred to above, namely, the matter in which the ownership of the property is disputed by the first and second respondents.

8.The common cause facts before me are that the applicant is the registered owner of the property referred to above.

9.It was not disputed that the property is exclusively zoned for commercial purposes and not for any residential use at all

10.Neither was it disputed that the respondents currently conduct the business of a service station and convenience store at the afford said property. They do so in the absence of any right and\or agreement with the applicant. The applicant does not receive any compensation from the respondents.

11.As the registered owner of the property, the applicant remains responsible and liable for municipal charges in respect of water and electricity consumption on the property as from 12th May 2010 when the property was duly registered in its name.

12.The respondents quite correctly submit that applicants grounds for seeking an order as set out above is that he is the owner of the property and that the respondents are in possession of the applicants property.

13.Once the PIE Act has been taken out of the equation, as is the case before me, respondents submitted that the order cannot be granted because of what was referred to as “pending action”.

14.Applicant correctly submitted that the “pending action” relates to ownership whilst the current action relates to mere occupation. I agree with applicant’s submission

“That the respondents have failed to prove a stronger right of occupation than that of the applicant as registered owner”.

15.In the circumstances the following order is made:

15.1. Ejecting the first and second respondents and/or all those persons working through or under them excluding any residential occupants from the premises known as Erf 22104. City of Tswane Metropolitan Municipality, registration division J.R., Province of Gauteng, situate at 95 Tsamaya Road, Mamalodi;

15.2. That the costs of this application be paid by the first and second respondents on a party and party basis.

C. Cambanis

Acting Judge of the High Court