Shaher Banoo Mia N.O v Mia and Others (43863/2016) [2018] ZAGPJHC 126 (4 May 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

NOT REPORTABLE NOT OF INTEREST TO OTHER JUDGES

Case Number: 43863/2016 4/5/2018

In the matter between:

SHAHER BANOO MIA N.O

Applicant

And

F.E MIA

First Respondent

ALL UNLAWFUL OCCUPIERS

Second Respondent

EKHURULENI METRO MUNICIPALITY

Third Respondent

JUDGMENT

FISHER J:

[1] The applicant who is the executor of the deceased estate of Mr Rhamatulla Mia “the deceased”) and, as such, in control of the property in issue, seeks the eviction of the respondent from the property. The respondent has resided there since 1991.

[2] The respondent tells of a family saga which commenced with her marriage to and subsequent divorce from Farouk Mia ("Farouk"). She states that, pursuant to the divorce, her father - in- law Abdul Mia (“Abdul”), undertook orally that she would be allowed to reside in the property until her death. The property was purchased for this purpose, she says, and was registered in the name of Mr Rhamatulla Mia (“the deceased”) who was also a son of Abdul. The deceased, according to her, was well aware of the obligation to allow her to reside in the property and in agreement therewith. The applicant is the daughter of the deceased, and thus the granddaughter of Abdul.

[3] The respondent states however that, contrary to the express wishes of his father, the deceased mortgaged the property to Standard Bank. This, she says, led to the eventual sale of the property in execution as the deceased fell into arrears in respect of payments on the mortgage agreement. She says that her son, Mohammed Mia (“Mohammed”) then purchased the property at this sale, which purchase she says was orchestrated by the intervention of Abdul. This was done she says in order to allow her continued occupation of the property.

[4] She is, however, unable to explain why the property remains registered in the name of the deceased - thus falling into his deceased estate. It appears that no attempt has been made by her to investigate this position. The fact remains that there was indeed no change of ownership in relation to the property.

[5] Although she alleges that she pays for the electricity water, rates, taxes in respect of the property, she annexes in support of this, only one account from the municipality dated some four years ago. She provides no explanation as to why she does not advance evidence of more recent payments. In fact, the tenor of her defence is of this bald and unsubstantiated nature.

[6] What she asserts is thus in the nature of a usufruct over the property. The respondent thus attempts to rely on alleged historical oral undertakings of the family of her ex -husband to come to her support. These alleged undertakings date back decades. It is, however, not the estate of her brother-in-law which can reasonably or lawfully be called upon to maintain her. The duty to support her falls, to the extent that she is unable to support herself, on her adult children – of which there are five.

[7] A usufruct is a real right in terms of which the owner of property confers on the usufructuary the right to use and enjoy the thing to which the usufruct relates. As in the case of praedial servitudes, these are created by agreement between the relevant parties, followed by registration. The usufruct, as a real right comes into existence only when the agreement has been registered by an appropriate endorsement against the title deeds to the property ( see 65(1) of the Deeds Registries Act.)

[8] The absence of any writing and/or registration renders the alleged usufruct invalid. The registration of real rights in immovable property is designed, in the main, to avoid the sort of contention which is made by the respondent herein. It would indeed render the position of owners of immovable property, precarious, to say the least, if people could have resort to historical oral promises to usage of their property.

[9] In these circumstances, the respondent has put up no defence whatsoever to the claim for eviction. In relation to her personal circumstances, she is 57 years of age and the mother of 7 children – one of whom is still a minor. Her two youngest children aged 18 and 15 reside with her. It is not denied that she has 6 adult children. It is also not denied that they would have the obligation to support her should this become necessary. She has also been engaged for some time in relation to this matter with the Benoni Muslim Charity Organization which is a charitable organisation that attends to the needs of Muslim people in its community. There is no doubt in my mind that the eviction sought will not lead to the homelessness of the respondent or her two minor children.

[10] The respondent has resided at the property for a period of approximately 27 years. In the circumstances it would be unjust and inappropriate

to have her vacate the property in less than 3 months.

[11] in the circumstances, I grant the following order:

1. the first respondent and all those occupying the property situated at 1370 Loonat Street, Actonville, Benoni (“the property our ordered to vacate the property by 7 August 2018.

2. the sheriff having jurisdiction is authorized to give effect to this order in the event of the failure by the respondent and those holding occupation through her to vacate the property.

3. the first respondent is ordered to pay the costs of this application.

FISHER J

HIGH COURT JUDGE

GAUTENG LOCAL DIVISION

Date of Hearing: 26 April 2018

Judgment Delivered: 04 May 2018

APPEARANCES:

For the Applicant: Adv Potgieter Instructed by C/O Swanepoel Attorneys.

For the 1st and 2nd Respondent: Adv A Rawhani Instructed by M.F Martins Costa Attorneys.