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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: 1907/2020

In the matter between:

STEPHEN RAMABODU                                                                          1^st Applicant

NTHABISENG RAMABODU                                                                  2^nd Applicant

and

CHARLTON MICHAEL REX                                                               1^st Respondent

ANY OTHER UNLAWFUL OCCUPIERS                                           2^nd Respondent

(Erf […], Bloemfontein, Extension 166, district

Bloemfontein, better known as […] W Street,

Woodland Hills, Bloemfontein, Free State Province)

MANGAUNG METROPOLITAN MUNICIPALITY                               3^rd Respondent

                  

HEARD ON: 13 AUGUST 2020

JUDGMENT BY: MATHEBULA, J

DELIVERED ON: 1 OCTOBER 2020

 

[1] This is an application in terms of the Prevention of Illegal Eviction from and lawful Occupation of Land Act 19 of 1998 (“the PIE Act”). The applicants seek an order for the eviction of the first respondent and all unknown persons occupying erf […] Bloemfontein, Extension 166 better known as […] W Street, Woodland Hills, Bloemfontein (“property”) as well as ancillary relief. The third respondent is only cited as an interested party and no order is sought against the Mangaung Metropolitan Municipality.

[2] On 1 April 2016 the applicants and the first respondent entered into a written lease agreement for the lease of the aforementioned property. The relevant and material terms of the lease agreement provided the commencement date and rental in the amount of R20 000.00 payable to the applicants at such place they or their agent may stipulate from time to time. It was stated that the rental shall be due and payable on the first day of each and every month of the lease. This included any extension or renewal thereof. In terms of other provisions the first respondent undertook to keep the property including the main walls, roof and other structural parts in good order and repair. It was agreed that the applicants were not responsible for any loss or damage which the first respondent sustained if the property fell in the defective state and will not be entitled to any remission of rent.

[3] It is common cause that the applicants gave the first respondent uninterrupted use of the property. In turn the first respondent committed a breach in failing to make consistent and timeous rental payments. The first respondent alleges that the main reason he deliberately withheld making rental payments is because applicants failed to repair the identified defects. Over time the arrears accumulated and at the time of the deposition of the founding affidavit, the total amount owing was R117 000.00. The applicants further alleges that the first respondent omitted a breach by failing to maintain the property in good order and repair and in a neat, clean and tidy condition. A total of forty one colour photos attached to the founding affidavit as annexure “FA 5.1 to FA 5.41” depict extensive damage to it to the first respondent denies breach and avers that the defects were in existence during the inspection of the immovable property and the existence of the lease.

[4] The applicants caused their attorneys to direct a letter per registered post dated 29 November 2019 to the first respondent. In it, the first respondent was instructed to remedy the breach and in the event of failure to do so the written agreement will be deemed to have been cancelled. On 18 December 2019 a notice of cancellation dated 9 December 2019 was dispatched to the first respondent. In terms of paragraph 5 he was required to vacate the property no later than 9 January 2020. None of these letters elicited the required response from the first respondent. In order to enforce their rights the applicants instituted a claim against the first respondent under case no 108/2020 praying inter alia for cancellation of the agreement, payment of the sum of R95 500.00 and costs. This matter is pending before this court. It is on this basis that the first respondent has raised a point in limine of lis pendens.

[5] In order to sustain a defence raised by the first respondent, it must be established that there is pending litigation between the same parties based on the same cause of action in respect of the same subject matter.[1]  It is undesirable or inappropriate that one dispute be litigated in the court where the plea has been raised. There must be finality in litigation and once a suit has been commenced before a court it must be concluded before that court.[2]  The first respondent contend that there is a pending lis which is similar.  The main issue is whether the respondent has breached the lease agreement or not. The issues being the same the first respondent has made out a case for stay of the proceedings in this matter. The contention of the applicants is that the cause of action in relation to the action for the outstanding rental payments and eviction are not the same. The argument is that the one is about a debt and the other concerns exercise of the right to ownership.  I agree.

[6] There is no dispute that the parties before this court are engaged in a pending litigation. It is accepted that the cause of action need not be identical in the two matters but whether the issues that are substantially determinative of the one are substantially determinative of the other. In my view, they are not. The decision in this matter will not have a bearing or effect on the continuation of case number 108/20. Even if I am wrong, the issue in this matter is whether or not it would be just and equitable to grant eviction as prescribed in the PIE Act.

[7] The first respondent did not plead ever on the merits of the eviction. In paragraph 3 of the opposing affidavit the first respondent alleges that it will be “senseless and unduly burdensome to answer to the merits of the eviction”. The reluctance to deal with the issue confronting him is repeated in the heads of argument that it will constitute an unnecessary repetition.  Clearly the first respondent is seeking indulgence on his terms and conditions. The first respondent does not advance reasons why this matter must be held over while he engages in the courts according to his own rules. In any event it will appear that even if he is granted the opportunity, there is nothing more to add other than to repeat what is already on record. I formed the impression that this is purely to delay the matter and display of pure arrogance in the manner he approaches this litigation. Such lackadaisical approach tantamount to abuse of court processes cannot be sanctioned by this court.

[8] In dealing with matters of this nature, it is incumbent upon the applicants to establish facts upon which their case is based which satisfy the general rule that he who alleges must prove. There is no doubt that the ownership of the property belongs to the applicants. Equally it is accepted by the first respondent that he had withheld rental payments which accumulated to a substantial amount over a period of time. All this because the applicants have apparently failed to repair the certain defects which rendered the least property not of the required standard.  This constitutes the breach of the lease agreement.

[9] This brings me to the consideration of the application before me. There is no contention that the applicants have not complied with all the procedural requirements. I am satisfied that they have and the application is properly before me. There is no dispute regarding the issue of ownership of the property. The only enquiry is whether it is just and equitable as per the governing legislation to order and eviction. All the relevant factors must be taken into consideration and the necessary weight attached to them. If the answer is in the affirmative, then the last aspect is to determine the date of eviction.

[10] The applicants cancelled the lease agreement as far back as 9 December 2019. The first respondent was required to vacate the premises but failed to do so. This means that as at 9 January 2020 the first respondent had no valid reason or right to remain on the property. There was no longer any express or tacit consent by the applicants to still occupy the property. That made him an unlawful occupier as defined in the PIE Act.  The applicants are simply enforcing their proprietary rights.  The first respondent does not raise any valid defence but requires time to be allowed to plead over the merits. I have already expressed my view that this argument is clearly untenable.

[11] Undoubtedly there is extensive damage to the property as shown on the photographs.  Clearly the first respondent is not an indigent person. The monthly rental of R20 000.00 for a property in a prime Estate is the high end of the market. This is indicative of a person who can easily secure alternative accommodation should he be required to do so. It is unclear whether there are any children or elderly persons occupying the property with the first respondent. The difficulty is that the first respondent chose not to delve into this aspect when invited to do so. It can safely be presumed that it is not the case otherwise he would have disclose such information.  The conclusion is that it is just and equitable to grant an eviction order.

[12] The last aspect is when must the eviction order be implemented and what conditions to attach aligning the decision to the principles of justice and equity. The court is enjoined to exercise a wide discretion in the determination of the date.[3]  It is not an easy exercise to be uprooted and rendered homeless. However, this matter has been in the coming for approximately seven (7) months after an appropriate notice was given to him. Therefore the first respondent had adequate time to prepare himself for such an eventuality. Taking the prevailing circumstances into consideration, it will be just and equitable that the first respondent is ordered to vacate the property in a matter of a few weeks.

[13] I conclude that there are no sufficiently compelling reasons to depart from the general rule that the costs follow the event.  These costs must include the costs of Part A that stood over for determination with Part B of the Notice of Motion.

[14] I make the following order.

14.1 The first respondent and any and all persons occupying with and through him are hereby evicted from the immovable property known as erf […], Bloemfontein, Extension 166, district Bloemfontein, better known as […] W Street, Woodland Hills, Bloemfontein.

14.2 The first and second respondents must vacate the property on/or before Wednesday, 30 October 2020 and not to return thereafter.

14.3 In the event that the first and/or second respondent do not comply with paragraph 14.2 above, the Sheriff and/or his duly appointed deputy with or without the assistance from the South African Police Service is authorized and directed to evict the respondents from the property.

14.4 The first and second respondents, the one paying the other two be absolved, are ordered to pay the costs of this application including the costs of the application in terms of section 4(2) of the PIE Act.

 

 

­­__________________

M. A. MATHEBULA, J

 

 

On behalf of applicant: Adv. K Nhlapo

Instructed by: Phatshoane Henney Attorneys

BLOEMFONTEIN

On behalf of respondents: Adv.  H J vd Merwe

Instructed by: Symington & De Kok

BLOEMFONTEIN

 

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