T E and P Properties Investments CC v Mabasa and Others (38773/2013) [2017] ZAGPJHC 182 (25 May 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 38773/2013

Not reportable

Not of interest to other judges

Revised.

25 May 2017

In the matter between:

TE AND P PROPERTIES INVESTMENTS CC Applicant

and

Mabasa, Nyiko Godfrey First Respondent

THE UNLAWFULL OCCUPANTS OF ERF

2015 HELDERKRUIN EXT. 12 TOWNSHIP Second Respondent

THE CITY OF JOHANNESBURG Third Respondent

JUDGMENT

OPPERMAN J

[1] On 5 January 2010, the applicant purchased Erf 2015, Helderkruin Extension 12 Township, registration Division IQ, Province of Gauteng (‘the property’) from Nedbank Ltd (‘Nedbank’). On 30 July 2010 the property was transferred and registered into the name of the applicant.

[2] The first and second respondents are in occupation of the property and the applicant seeks the eviction of the first and second respondents and all other occupants occupying the property through or with them.

[3] The application has a long history. It was launched on 16 October 2013. On 28 August 2014, Mphahlele J granted an order in terms of section 4(2) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19 of 1998 (‘the Pie Act’). The application was eventually enrolled for hearing on 13 March 2017 (Monday). On 9 March 2017 (Friday) at 14h00, the attorneys of record, representing the first and second respondents, withdrew. At the commencement of the matter, the first respondent (‘Mr Mabasa’) appeared and requested a postponement as Mr Mabasa wanted an opportunity to obtain legal aid explaining that his attorneys had withdrawn due to a lack of funding. Having heard argument, the following order was granted:

3.1. The matter was postponed to 2 May 2017;

3.2. It was recorded that it would be the last postponement;

3.3. It was recorded that the first respondent was going to seek pro bono assistance;

3.4. First respondent was ordered to pay the costs as between attorney and client.

[4] Mr Mabasa appeared on 22 May 2017 and advised that he wished to argue the matter in person. The matter proceeded on this basis.

[5] Mr Mabasa’s answering affidavit was deposed to on 22 November 2013. When represented by BH Taula Attorneys and on 2 June 2015, he had filed a supplementary affidavit and a counter application. The facts as they appear from these affidavits can be summarised as follows:

5.1. The property was purchased by Mr Mabasa during 2004 for an amount of R 1 300 000, the financing having been obtained from Nedbank.

5.2. By 2009 this sale had been undone. It is unclear whether the property had, post 2004, been registered into Mr Mabasa’s name. It is common cause though that on 22 August 2009, Mr Mabasa was no longer the registered owner and again made an offer to Nedbank to purchase the property for R1 200 000. This offer was accepted subject to bond finance or written confirmation that the funds were available, within 14 days of 22 August 2009. This did not occur.

5.3. Mr Mabasa requested that the current litigation be stayed pending an application to be brought to the constitutional court to rule on ‘their rights to owning property or a house have been infringed upon by a corrupt collusion between the banking officials and the applicant’.

5.4. Mr Mabasa contended that the delay in launching the application constituted a bar to the relief sought by the applicant. At the very least, he contended, it was support for the conclusion that the applicant knew it had no entitlement to the property.

5.5. Mr Mabasa argued further that Nedbank was a necessary party to these proceedings and ought to have been joined.

5.6. Mr Mabasa tendered to reimburse the applicant the purchase price of the property as well as all legal costs.

Mr Mabasa’s right to the property

[6] It is common cause that the offer to purchase the property dated the 22 August 2009 was subject to Mr Mabasa providing Nedbank with written confirmation of bond approval or written confirmation that funds were available, if the offer to purchase was a cash offer, within 14 days of date of the letter (22 August 2009) and that such offer would expire should Nedbank not receive Mr Mabasa’s confirmation within the 14 day period. It is further common cause that this did not occur within 14 days or at all. Mr Mabasa contended that he could raise R 800 000 but not the balance of R 400 000. Nedbank subsequently, approximately 4 months later, sold the property for R 780 000, to the applicant. Mr Mabasa feels aggrieved that Nedbank had refused Mr Mabasa a 30 day extension in order to raise the R 400 000 but had accepted an offer of R 780 000, 4 months later. From these facts he concluded that ‘a relationship exists between the applicant and corrupt – Banking officials’. Mr Mabasa did not explain, nor did he provide any documentary proof of the R 800 000 that he could raise. Whatever Mr Mabasa’s grievance with Nedbank, there exists not a shred of evidence in this application, that the applicant, 4 months later, had conducted itself in an underhanded manner.

[7] Mr Mabasa argued that Nedbank ought to have been joined in these proceedings. The well-established test is whether or not a party has a direct and substantial interest in the subject matter of the litigation, that is, a legal interest in the subject matter of the litigation which may be adversely affected by the judgment of the Court, see City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, 2011 (4) SA 337 (SCA) at 359D. I find that Nedbank need not be joined as no relief is sought against it and the order, if granted, will not affect its rights adversely or at all.

[8] It is unclear what the argument is Mr Mabasa intends raising in the Constitutional Court should this court grant a stay of these proceedings. Should Mr Mabasa be so advised, he could pursue a damages claim against Nedbank for the alleged unlawful conduct but, on the application as it stands, I see no issue which can or should be referred to the Constitutional Court for determination and accordingly decline this request.

[9] The applicant seems to have dragged its heels in getting to court but this does not constitute a bar, in these proceedings, against it asserting its rights now. No legal basis for this ‘defence’ has been suggested and I know of none.

[10] The deponent to the applicant’s replying affidavit has rejected Mr Mabasa’s offer of wanting to repay the applicant its purchase price (R 780 000) and its costs. I do not find it surprising. Mr Mabasa is offering only the capital sum paid by the applicant. This under circumstances where Mr Mabasa paid no rental or any other compensation for the use of the property for the full duration of the applicant’s ownership. Thus, for 7 years, Mr Mabasa has not been paying a cent for the use of the applicant’s property and now offers to repay only the capital with no interest at all. The offer also rings hollow for the following reason: the applicant intended developing the property and requested, through its attorney, the first and second respondents to vacate the property. Pursuant to such request, which was embodied in a letter dated 29 August 2013, a meeting was held where Mr Mabasa had requested the applicant to donate the property to the respondents without offering to purchase the property from the applicant.

[11] I can see no right in law for the first and second respondents to occupy the property. There is or was no lease agreement. I cannot but conclude that the first and second respondents are in unlawful occupation of the property. The applicant has met all the procedural requirements imposed on it in terms of the Pie Act.

[12] The enquiry of course does not end there. The next question which falls for determination is whether there are any facts or circumstances relevant to the application which, notwithstanding that the occupation of the property is unlawful, would result in this court exercising it’s discretion in favour of the first and second respondents and cause it to refuse the application for eviction. During questioning by the court, the following was disclosed by Mr Mabasa:

12.1. The property is the primary residence of Mr Mabasa, his wife and their four children, currently 11, 15, 17 and twenty something (Mr Mabasa wasn’t quite sure of his second eldest son’s age).

12.2. Mr Mabasa has been paying the electricity account for the electricity consumed by the family at the property.

12.3. Mr Mabasa’s wife is a nurse by profession. Mr Mabasa was uncertain as to how much she earned.

12.4. An eviction order would not render them homeless. Mr Mabasa is the co-shareholder in Thistle Rock (Pty) Ltd (‘the company’) which has concluded an agreement with the Free State Development Corporation to build 35 000 houses. The company has been employed as the project manager in this development. Phase 1 commences in June of 2017 and involves building 6000 houses, which will yield R 80 million. A large portion of this amount constitutes profit. In my view Mr Mabasa has inflated the figures somewhat to persuade the court that he is able and willing to purchase the property. The sting in the acceptance of this evidence lies in the fact that it is clear that Mr Mabasa is well able to find alternative accommodation and that, should an eviction order be granted, he will not be rendered homeless, see Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown Urban Village, 2013 (1) SA 583 (GSJ) at para [80] and [85].

[13] Further factors relevant to this enquiry are:

13.1. The first and second respondents have been in occupation of the property for seven years without paying a single cent for such occupation.

13.2. The applicant never had any dealings with the first and second respondents – there never was any lawful occupation at all.

13.3. The applicant has paid the rates and taxes on the property for the duration of the first and second respondents’ occupancy.

13.4. Mr Pillay, the deponent to the applicant’s affidavit, a medical doctor, is the sole member of the applicant, a close corporation. He has had no access to, nor any benefit of, the property and wants to develop it.

[14] On the 4th of June 2015 (and whilst represented), Mr Mabasa filed a document entitled ‘Counter Application’. In it’s heading it reflected Mr Mabasa as the applicant, the applicant in the present application as the First Respondent, Nedbank as the Second Respondent and the City of Johannesburg as the Third Respondent. No founding affidavit was attached to it, nor was it served on either Nedbank or the City of Johannesburg. The relief requested included the cancellation of the Deed of Transfer of the property, this without the Registrar of Deeds having been cited or served. This document is fatally defective and is disregarded for present purposes.

[15] The property has been the home of Mr Mabasa and his family for many years. I accept that it is situated conveniently across the road from the school. I accept that it will be inconvenient for the family to relocate. I have empathy for their predicament. The applicant is, however, under no obligation to provide accommodation for Mr Mabasa and his family.

[16] At the commencement of the hearing, Mr Marais, representing the Applicant, handed a letter to this court dated 24 April 2017, written by Mr Mabasa’s erstwhile attorney, Mr B.H.Taula of B.H. Taula Attorneys, in which, despite their withdrawal on 9 March 2017, the firm confirmed that they were acting for the first and second respondents and that they had been instructed to serve and file a ‘notice of intention to abide by the court order, with intent to settling this matter amicably’. It records that their clients are busy looking for alternative accommodation and that they request a period of three months from the date of the court order to do so.

[17] Mr Mabasa, when confronted with this communication advised that he would abide the court order but that he nonetheless wanted to oppose the application, which opportunity he was afforded. At the conclusion of the hearing Mr Mabasa requested that, should an eviction order be granted, the respondents be afforded a period of three to four months to vacate. The applicant opposed this request contending that the practice in Pretoria was 15 days and 1 month in Johannesburg.

[18] The first and second respondents have had ample opportunity to make alternative arrangements. In my view, one month from the date of the granting of this order would be just and equitable having regard to all the circumstances.

[19] I accordingly grant the following order:

19.1. The First Respondent and all persons occupying through or with him are ejected from the premises situated at Erf 2015, Helderkruin Extension 12 Township, Registration Division IQ, Province of Gauteng, measuring 900 (nine hundred) square meters, presently held by Deed of Transfer T244087/2010 (‘the property’).

19.2. The First Respondent and all persons occupying through or with him, is ordered to vacate the property by no later than 30 June 2017. Should the First Respondent fail to vacate the property by 30 June 2017, the Sheriff of this Court is authorised to remove the First Respondent and all persons occupying through or with him from the property.

19.3. The First Respondent is ordered to pay the Applicants’ costs.

__________________________________________

I Opperman

Judge of the High Court

Gauteng Local Division, Johannesburg

Heard: 22 May 2017

Judgment delivered: 26 May 2017

Appearances:

For Applicant: Adv H Marais

Instructed by: Jarvis Jacobs Raubenheimer Inc. Attorneys

For First and Second Respondents: Mr Mabasa

For Third Respondent: No Appearance