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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER : 11943/2016

Reportable: No

Of interest to other judges: No

Revised.

17/2/2017

In the matter between

MOHAMED ZAHED EBRAHIM SUJEE	Applicant
and
SHAHNAAZ KASHIF	First Respondent
MOHAMED KASHIF	Second Respondent
TAAHIR AHMED	Third Respondent
MAZHAR ALLY	Fourth Respondent
KHALID MOHAMED	Fifth Respondent
ALL OCCUPIERS OCCUPYING THE PREMISES (residing at Portion 7 of Erf 87 Kelvin, Johannesburg, situated at 52 Louis Way, Kelvin)	Sixth Respondent
CITY OF JOHANNESBURG	Seventh Respondent

JUDGMENT

ANDRÉ GAUTSCHI AJ :

[1] This is an application for the eviction of the third, fourth and fifth respondents and all other occupiers of a certain immovable property in Kelvin, Johannesburg.  The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (“the PIE Act”) applies.

[2] The applicant is the registered owner of the immovable property in question (“the property”).  On 14 November 2008 he sold the property to the first respondent in terms of a written sale agreement, for R3 million, payable by way of a deposit of R400 000 and the balance of R2.6 million to be paid in instalments of less than R10 000 per month, commencing on 1 January 2009, which was also the occupation date.  The balance of the purchase price was payable five years after the signature date, namely on or about 13 November 2013.

[3] There are two houses built on the property.  The first respondent and her husband, the second respondent, occupied the one house.  The other was occupied by the third, fourth and fifth respondents, whom I understand to be brothers of the first and/or second respondents.

[4] Various instalments were paid, but the first respondent was unable to pay the balance of the purchase price at the expiry of the five year period.  Indulgences were given, but eventually the first respondent accepted the inevitable, agreed to cancel the sale agreement (which was done) and agreed that amounts paid on account of the purchase price be allocated to occupational interest.  The first and second respondents duly and honourably vacated the premises on 31 March 2016 as agreed with the applicant.

[5] The third, fourth and fifth respondents (“the occupant respondents”) however remained and refused to vacate the property.  Whilst the first respondent supports the applicant in this application, the occupant respondents have opposed it.  They have also launched a counter-application.  The main relief sought therein is a rectification of the sale agreement.  They allege that they and the second respondent, too, were to be purchasers under the sale agreement, which was not for a purchase price of R3 million but only for R1 million, and the agreement must be rectified to record that.  They then claim that they and the first and second respondents are entitled to registration of transfer of the property into their joint names.  In the alternative, they seek an order declaring that the agreement of sale is void ab initio and of no force or effect, and claim a statement and debatement of account of all the instalments paid over the years.  There is also a prayer to recall an order made on the date when this application was set down on the unopposed roll.  The content of the order is not germane to this application. 

[6] The defence to the application is accordingly an entitlement to be in occupation of the property as purchasers who had paid the full purchase price and were entitled to transfer of the property into their name.  That is negated by the alternative relief, namely to declare the agreement of sale void ab initio, since then the occupant respondents would have no claim to occupation, but be that as it may.

[7] In support of the counter-application for rectification, the occupant respondents attached a written mandate, mandating the first respondent to sign the sale agreement on their behalf.

[8] A week before this matter came before me, the occupant respondents’ attorney withdrew “with immediate effect due to lack of further instructions and inadequate funds”.  When the matter was called before me, Mr Boitumelo Lesomo, an attorney with right of appearance, appeared for the occupant respondents.  He requested a postponement of the matter in order to file further affidavits, on the basis that his instructions on the facts differ radically from the versions set out in the affidavits filed hitherto by the occupant respondents.  He handed in a letter which he had addressed the previous day to the applicants’ attorney setting out the inaccuracies in the existing papers.  Most important of these is that, as a result of miscommunication with the previous attorney, the rectification could not be supported; the written mandate was fraudulent; another brother, Mr Nadeem Mohamed, had concluded an oral agreement with the applicant for the purchase of the property in 2008 for an amount of R2 million (and not R3 million or R1 million); the occupant respondents would only be occupiers of the property, and not purchasers; and the first respondent was in no financial position to have afforded to purchase the property.  It was accepted that the rectification, submissions regarding the National Credit Act, the prayer that the previous court order be recalled and the prayer for debatement, had no basis and were without merit.

[9] Upon considering the letter it seemed to me that it disclosed no better defence than the occupant respondents previous affidavits had disclosed, and that to postpone the matter in order to have these defences set out on affidavit would serve no beneficial purpose to the occupant respondents and would indeed be prejudicial to the applicant.  With the consent of the applicant’s counsel, I proposed that I accept the facts in the letter as if they had been put before me by way of affidavit, and that the matter should then proceed.  On that basis I refused the application for the postponement.

[10] The rectification, as I have said, was effectively abandoned by Mr Lesomo.  It could in any event not fly.  There was no allegation in the affidavits that the applicant had been in error, and the written mandate was suspicious to say the least.  It is now confirmed that the written mandate was fraudulent, and that the occupant respondents were not intended to be purchasers.  All this had explicitly been raised as a defence and claim previously.  There was also no factual basis why the purchase price would have been recorded as R3 million, when in fact R1 million was intended.  Although I need not justify it at this stage given the concession by Mr Lesomo, I would have had no hesitation in rejecting the defence of rectification as far-fetched or clearly untenable.

[11] The alternative claim in the counter-application, that the agreement of sale be declared void ab initio, is equally puzzling and without merit.  The occupant respondents base their right of occupation on some valid agreement.  If they seek to have that agreement declared invalid, they would have no further right of occupation, and so this relief would not have assisted them.

[12] Instead, they now rely on an oral agreement for the sale of the property concluded between the applicant and another brother, who is not a respondent, Mr Nadeem Mohamed.  That agreement was never reduced to writing.  Mr Lesomo suggested that in the proposed further affidavits, the occupant respondents would seek specific performance to turn the oral agreement into a written agreement.  That is impermissible.  It would circumvent the Alienation of Land Act, No 68 of 1981, which requires the sale of immovable property to be in writing and signed by the parties.  If an oral agreement for the sale of immovable property could be enforced by demanding a court order that the one party reduce the agreement to writing and sign it, that would give efficacy to an oral agreement for the sale of immovable property and undermine the provisions of the Alienation of Land Act.  Even accepting the facts at their best for the occupant respondents, the oral agreement from which they seek to derive their rights of occupancy, affords them no defence.

[13] The occupant respondents therefore have no defence to the application for eviction.  They have no right to be in occupation.  They are presently, according to the papers, living free on the property which, the papers say, could earn in the order of R20 000 per month rental on the open market.  The occupant respondents have paid no rental, or made any payments in respect of the property to the applicant, since January 2016.  It is an untenable situation.

[14] The occupant respondents have put no facts before me as to their personal circumstances, whether in the affidavits or in the letter, which might militate against an order of eviction.  In the papers it appears that they are businessmen.  On their own version (the first version) they were purchasers of a property and paid instalments of about R1.6 million over a few years.  They are not indigent persons.  They do not say in the papers that they are unable to find or pay for alternative accommodation.  They have simply put nothing before me which would indicate that an order of eviction would cause them any hardship at all or cause them to lose a roof over their heads.

[15] I have taken into account a statement from the Bar given by Mr Lesomo that there are indeed a number of children on the property.  That is not a bar to an eviction order, where it seems that the occupant respondents are able to afford alternative accommodation, but I shall take that into account by affording the occupants a longer period to vacate the property.

[16] Save for one aspect, the applicant has complied with the provisions of the PIE Act, and Mr Lesomo expressly indicated that he was not going to make any submissions to the contrary.  I was told that, although proper notice in terms of section 4(2) of the PIE Act had been given in respect of the first hearing in May 2016, no similar notice was given prior to the present hearing before me.  However, the occupant respondents were at all times represented by an attorney and counsel, and the notice of set down was properly served on their attorney of record.  Their counsel delivered heads of argument in December 2016.  When the previous attorney withdrew a week before the hearing before me, notice was served on the occupant respondents by sheriff to the effect that the matter would be heard by me on 14 February 2017 at 14h00.  The nature of the matter is such that the municipality having jurisdiction (the seventh respondent) is not required to come to the assistance of the occupant respondents.  The purpose of section 4(2) of the PIE Act has been achieved, namely to give notice to the occupant respondents of the relief which they face and their rights.  See in this regard Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at para’s [22] to [24].

[17] In the circumstances, the applicant is entitled to an order of eviction and to a dismissal of the counter-application. I accordingly make the following order :

1. The third, fourth and fifth respondents and all other persons occupying portion 7 of erf 87, Kelvin, Johannesburg situate at 52 Louis Way, Kelvin (“the property”) unlawfully or claiming a right to occupy the property through or under the third, fourth or fifth respondents are ordered to vacate the property within 30 days of service of this order upon them, failing which the sheriff is authorised and directed immediately to evict the third, fourth and fifth respondents and all other occupants aforesaid from the property.

2. The counter-application is dismissed.

3. The third, fourth and fifth respondents jointly and severally are ordered to pay the costs of this application and the counter-application.

 

 

_____________________

ANDRÉ GAUTSCHI

ACTING JUDGE OF THE HIGH COURT

Date of hearing	:	14 February 2017
Date of judgment	:	17 February 2017
Counsel for the applicant	:	Ms S Freese
Attorney for the applicant	:	Amina Rahman Attorneys and Conveyancers Johannesburg (Ms AB Rahman)
Attorney with right of appearance for the third, fourth and fifth respondents	:	Mr B Lesomo Seokane Lesomo Inc Midrand

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