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IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

9684/2006

KRISHNA REUBEN VENGADESAN N.O. APPLICANT

SANJEEV SINGH N.O. SECOND APPLICANT

versus

CLIVE NAIDOO RESPONDENT

RESERVED JUDGMENT

Delivered on: 22 August 2008

NTSHANGASE, J

[1] In this matter the applicants are seeking an order:

1. Ejecting the respondent and all persons occupying through him from the premises situated at 27 Musari Road, Asherville, Durban [“the property”]

2. Costs of suit.

[2] The first and second applicants purport to bring this application in their capacities as the joint liquidators of DSS Warehousing and Transport close corporation which was provisionally liquidated by special resolution registered on 5 November 2003. The provisional liquidation was later confirmed. The close corporation, whose sole member, appears to be the respondent’s wife, owned the property.

[3] In June 2005 the applicants had instituted an action against the respondent to claim payment of arrear rental, it being alleged that the respondent had breached the terms of the lease agreement, and to seek an order confirming cancellation of the lease agreement and authorising the sheriff to eject the respondent from the property. The applicants also lodged a “notice of proceedings in terms of section 4(1) and (2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1988 (sic) (certainly meant to be ‘19 of 1998’), [“the PIE Act”]. What followed was a discussion at court on 20 July 2006 and an agreement to adjourn the action sine die and that the respondent would make a formal offer of R650 000 to purchase the property from the applicants (in their capacities as liquidators). Thereafter on 24 July 2006, the applicants filed a notice of withdrawal of their action against the respondent.

[4] It is in regard to such withdrawal that the respondent, in his affidavit in answer to the applicants’ notice of motion states:

“It is instructive to note that the applicants did not withdraw the PIE application which is still pending before the Magistrate’s court.”

Therein lies the basis of the respondent’s point in limine of lis pendens reflected in his answering affidavit which reads as follows:

“In the premises I have been advised and respectfully submit that the applicants had no basis upon which to launch a PIE application in the High Court without first having the PIE application in the Magistrate’s court finalised.”

[5] In argument Mr Dayal, who appeared for the respondent, treated the PIE Act application as subsisting independently of the action instituted by the applicants. Mr Oliff, for the applicants, in an argument to the contrary, treated the PIE Act application as ancillary to that part of the action which related to the applicants’ claim for an order of ejectment of the respondent. In a counter-argument Mr Dayal submitted that:

“… it would not be ancillary to an action as sought by the applicants in the Magistrate’s court because they could not get ejectment by way of action.”

[6] I understand this argument to be based on the proposition that the PIE Act application subsisted independently because there was no proper process before court to which it could relate when, before court, there was a combined summons instead of an application brought on notice of motion and, on the action thus instituted the applicants could not be granted an order of ejectment, and that as the PIE Act application under such circumstances subsisted independently, when the action was withdrawn, the PIE Act application was not.

[7] I have a difficulty with such a contention as I do not read from the provisions of section 4 of the PIE Act anything which precludes its application to eviction proceedings which are not before court by way of application brought on notice of motion. Section 4(1) of the Act provides:

“Notwithstanding anything to the contrary contained in any law or the common law the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.” [my emphasis]

Section 4(1) thus defines the ‘proceedings’ to which the section applies, namely proceedings for the eviction of an unlawful occupier. The PIE Act application in issue here was lodged in terms of the peremptory provisions of section 4(1) as an interlocutory application, an integral imperative incidental to pending eviction proceedings. It follows, in my view, that when such proceedings were withdrawn such proceedings’ unseverable component, the application for directions in terms of section 4(2) of the Act, also fell away as withdrawn. Nothing therefore remains as a basis to sustain the point in limine of lis pendens which, in my view, must accordingly fail.

[8] Another contention advanced by Mr Dayal is that it is not open to the applicants to rely on the notice of 18 March 2005 issued to the respondent to vacate the property as subsequent to the issue of such notice the action brought against the respondent in the Magistrate’s Court was withdrawn which was followed by the respondent’s offer of R650 000 to purchase the property. Mr Dayal submitted that “whatever happened thereafter ought to have been premised on a fresh notice to vacate.” He argued that what nullified the notice to vacate is “that the entire action in the Magistrate’s Court was almost compromised or settled on the basis that an offer of R650 000 would be made.” He did however concede that although such an offer was made, the process remained inchoate as no written purchase and sale agreement was concluded. In that regard it appears that no success resulted from the parties’ efforts to resolve the matter. There is, in my view, no merit in the argument that the notice of 18 March 2005 had been nullified, and Mr Dayal’s contentions in that regard are of no avail.

[9] On the merits, no valid defence was raised by the respondent. There was no valid challenge to the applicant’s version that the respondent is and has been in unlawful occupation particularly after he had been served with the notice of 18 March 2005 to vacate the property. He also has put forward no legal basis for his continued occupation of the property. Accordingly the application for eviction must, in my view, succeed.

[10] The respondent has occupied the property for a number of years. The respondent does not appear to have engaged in a serious endeavour to acquire legal occupancy of the property or to find alternative accommodation. He has been described as a businessman, and this had not been disputed. There is no evidence to present him as destitute. At some stage during his occupation of the property he disclosed an availability of R650 000 which he offered for the property. No reason has been disclosed as to why he did not pursue the matter. There is evidence that the applicants had agreed to sell the property to him. It appears to me that land can reasonably be made available by another land owner for the relocation of the respondent. I am of the opinion that it is just and equitable to grant the order of eviction.

[11] I accordingly make the following order:

1. The respondent and all persons occupying through him are ordered to vacate the premises situated at 27 Musari Road, Asherville, Durban not later than 30 September 2008.

2. Failing compliance with the order in paragraph (a) above, the Sheriff is authorised and directed to evict the respondent and all persons who occupy through him from the said premises.

3. The respondent is ordered to pay the costs of this application.

Date of Hearing: 8 May 2008

Date of Judgment: 22 August 2008

Counsel for the applicants’: Adv MA Oliff

Instructed by: Johnston & Partners

Counsel for the respondent: Adv SK Dayal

Instructed by: Omar & Associates

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