South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:14722/03

DATE:2004-10-06

In the matter between:

SYBEL GECELTER N.O...............................................................................................Applicant

and

CAINOT THABANG NARE & 17 OTHERS..............................................................Respondent

JUDGMENT

WILLIS, J: This is an application for the eviction of a number of persons (some 18 in number), from a building known as Winray Heights Court, situated Erf 3520, 96 Twist Street, Hillbrow.

The notices of the intended eviction have been served on all the respondents. The City of Johannesburg has also been notified of the intended eviction and took no position on the issue. Some of the respondents have been represented and others not. It is common cause that all of the respondents are tenants occupying the building in question, and that they have not been paying rental for the flats they occupied which form part of this building.

This matter has had a long and protracted history, commencing in 2003 with a number of points having been taken on behalf of the respondents. The first point that has been taken is that the applicant does not have locus standi. The applicant is the executrix of the estate of the late Morris Wynne. If one peruses the papers it is clear that there is in fact no dispute that the property was registered in the name of the late Morris Wynne and had not subsequently been transferred to any new owner.

It seems to me to be obvious that if the applicant is the executrix of the estate of the late Morris Wynne and the property in question has not been transferred to any other person, that she alone is the person who has locus standi in the present application. No serious suggestion was made as to who else will indeed have such locus standi. Ultimately if one peruses the papers in their entirety there is no merit on that particular point.

The other point that is taken on behalf of the respondents is that the cancellation notices are not valid, These cancellation notices were issued in 2003, were issued by Ian Levitt an attorney acting for Double-Quick Properties 72 CC. He was described in the notices as the landlord. It is clear that Double-Quick Properties 72 CC was an agent acting on behalf of the executrix. Accordingly I see no real merit in this point because ultimately the respondents conceded the point that Double-Quick Property 72 CC may indeed have been the landlord's agent.

A number of the respondents have filed affidavits in which they have said the following:

"I plead with the above honourable Court not to order our eviction at this stage, but to give me the opportunity to pay out the outstanding rental with Ms Sybel Gecelter. A firm proposal will be communicated by my attorneys in that regard." There had been no such a firm proposal.

It is quiet clear, however, that despite the point taken against Double-Quick Properties 72 CC, that they have not made it clear that they were the agents for the executrix, the respondents have been fully aware of their intended eviction for more than a year, that are now fully aware of who is the appropriate person to whom to pay rental, that they have not been paying rental and that they are in breach and that consequently their contracts have thus validly come to an end.

Nevertheless I am mindful of the fact that the respondents in this matter have been in occupation of the building in question for a considerable period of time. They are poor people. I do not think it would be fair to order their immediate eviction. The respondents must in my view have a reasonable opportunity in order to organise their own affairs and vacate the premises. I propose accordingly to make the evictions effective as from 15 November 2004.

Insofar as the question of costs is concerned, it is to me obvious that there will be no practical advantage in burdening the parties with a cost order. They are merely too poor to afford to pay any costs order 1 may make. Furthermore it seems that certain of the technical points which were taken, were points well taken and accordingly this has a bearing on the matter.

An order is made in terms of prayers 1, 2 and 3 of Part B of the claim for eviction dated 12 June2003, save that the date in paragraph 1 is to be 15 November 2004. In other words the first paragraph of my order directs the evictions of respondents and all occupants who may occupy the building known as Winray Court situated at Erf 3520, Johannesburg, 96 Twist Street, Hillbrow on 15 November 2005.

Similarly the relief in prayer 2 refers to seven days. The date in the order which relates to prayer 2 is also 15 November 2004.