South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:1 5690/0

DATE:2002-10-31

In the matter between

HLOMANE, MPHO........................................................................................................Applicant

and

HLOMANE,............................................................................................................... Respondents

JUDGMENT

WILLIS, J: The applicant has made an application seeking an order ejecting respondent from the property, being Erf 2124 Craig Avenue, Dube Village, Soweto. The applicant is the former wife of one Lebopo Pilato Hlomane. The two respondents are the daughters of Lebopo Pilato Hlomane who is now deceased.

It is common cause that the deceased appointed the applicant as his sole and universal heir to the estate. It is common cause that the property in question is now owned by the applicant in terms of a title deed registered in terms of section 5 of the Conversion of Certain Rights into Leasehold or Ownership Act 1988. It is common cause that in 1988 the applicant brought an application for the ejectment of the respondents in the Small Claims Court and obtained the same and the two respondents have remained in occupation of the property in defiance of this order.

The applicant is not only widowed but unemployed and aged 63 years. She says that she was violently forced to move out of the property by the respondents who are in their thirties and had to find alternative accommodation in Soweto which is not fully completed and still in an advanced state of disrepair. It seems that there has been something of a family squabble. The applicant is the stepmother of the two respondents. The home was the childhood home of the respondents. They clearly are distressed that their stepmother, who it seems was married to their father for not a particularly long period of time, should have succeeded in being appointed his sole and universal heir and in this way acquired ownership of the property.

It is clear that whatever the emotional rights and wrongs of the situation may be, that at common law the respondents have no right whatsoever to be in occupation of the property. The applicant is the owner and the respondents are unable to allege that there is a valid lease agreement is existence between them and the applicant. Accordingly, at common law the rights of the applicant are obvious and clear. The situation is somewhat more complicated by reason of the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act No. 19 of 1998 (commonly referred to as ("PIE"). The Supreme Court of Appeal has recently given a judgment touching upon the interpretation of this Act. That judgment is as yet not reported and concerns two cases, Peter Ndlovu v Mpike Lawrence Ngcobo. The second case is Charles Alfred Bekker and Michael John Bosch v Jimmy-Rodgers Jika. The case numbers of 240/2001 and 136/2002.

I intend no disrespect whatsoever to the Supreme Court of Appeal when I note that this judgment has been highly controversial and has received much publicity in the media. The court was divided three to two.

The respondents clearly fall within the definition of an unlawful occupier in the PIE Act. Section 6 defines unlawful occupier as:

"Any person who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land excluding a person who is an occupier in terms of the Extension of Security of Tenure Act 1 997 and excluding a person who his informal right to land but for the provisions of this Act would be protected by the provisions of the Interim Protection of Informal Land Rights Act 1996 (Act 31 of 1996)". 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 bond, where the land has been made available or can reasonably be made available by a municipality or other organ of State or another landowner for the relocation of the unlawful occupier including the rights and needs of the elderly, children, disabled persons and households headed by women". Section 4(21 provides that:

"At least 14 days before the hearing of the proceedings contemplated in subsection (1) the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction". Clearly in this case the respondents have had plenty of notice concerning the eviction.

After some argument this morning between Mr Mpanza, counsel for the applicant, and Mr Sibuyi, they both very sensibly and fairly came to the conclusion that taking into account the respective interests of all the different parties, that it would be just and equitable if I were to make an order for the eviction of the respondents but make it effective only after six months of the date of the court's order. In my view counsel for both parties are to be commended for the sensible approach that they have taken to this matter. Counsel for both parties agreed that it would be appropriate if I made no order as to costs.

The following order is made:

1. The first and second respondents and also all persons claiming possession and occupation under and through them, are evicted from the property known as Stand No. 3234 Craig Avenue, Dube Village, Soweto.

2. The aforesaid order is to take effect from 1 May 2003.