REPUBLIC OF SOUTH AFRICA

Transcription

1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: 12535/2015 3/12/2015 In the matter between: CONRAD ALEXANDER STARBUCK N.O VUSIMUZI LUCAS MATIKINCA N. 0. and ZANE MERVYN HALIM MILLY-JO GRECIAN HALIM YUSUF ISMAIL DELON ALEXANDER JACQUELINE ALEXANDER (ATTWELL) CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY FIRST APPELLANT SECOND APPLICANT FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT FOURTH RESPONDENT FIFTH RESPONDENT SIXTH RESPONDENT JUDGMENT KUBUSHI, J

2 [1] The factual background to this application is that the first and second respondents, married in community of property, were the registered owners of the property situated at [ ], Fleurhof, Florida, Gauteng ("the property"). A mortgage bond was registered over the property in favour of the South African Home Loans Guarantee Trust. The first and second respondents could not service the loan in terms of the registered bond and subsequent to an application for the surrender of their estate the first and second respondents' estate was sequestrated. The applicants were appointed trustees over the insolvent estate of the first and second respondents. In terms of the sequestration order the property was placed within the full control and legal rights of the applicants as trustees of the insolvent estate. [2] The applicants as trustees of the insolvent estate of the first and second respondents have served the first to fifth respondents with numerous written demands to vacate the property without success. The applicants have consequently, in their representative capacity, approached this court for relief in terms of s 4 (1) of the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act"), seeking an order that the first, second, third, fourth and fifth respondents and all those who occupy the property by virtue of the first to fifth respondents' occupation thereof, be ordered to vacate the property. An order granting the applicants leave to serve the s 4 (2) notice on the respondents has already been granted on 9 June [3] Only the third respondent is opposing the application and contends that the application should be dismissed on the ground that there are factual disputes which cannot be resolved on the papers before me. In support of this contention the third respondent has raised two defences, namely, that he entered into an oral lease agreement with the first and second respondents in respect of the property and also that he has a lien over the property in respect of the renovation effected on the property. [4] The issue before me is whether the defences raised by the third respondent create a dispute of fact that bars the applicants from obtaining the relief they seek. [5] It is the third respondent's submission that in November 2013 he entered into an oral lease agreement with the first and second respondents with the express, alternatively tacit, further alternatively implied term that the third respondent had an option to purchase the property sometimes in the future. It is a further submission by the third respondent that the parties to the lease agreement agreed that the rental would be an amount of R3 000 per month and that the third respondent will be notified as soon as

3 the first and second respondents made a decision to give the third respondent the option to purchase the relevant property. The third respondent asserts that to date hereof he has been paying the monthly rental amount in cash to the first and second respondents. [6] The third respondent argues further that as he was under the impression that he would be given an option to purchase the property he made various renovations to the property to the value of approximately R of which the receipts are not available due to a long lapse of time. [7] Section 20 (1) (a) of the Insolvency Act 24 of 1936 ("the Insolvency Act") provides that - "20 Effect of Sequestration on an Insolvent's Property (1) The effect of the sequestration of the estate of an insolvent shall be - (a) to divest the insolvent of his or her estate and to vest it in the Master until a trustee has been appointed, and upon the appointment of a trustee, to vest the estate in him or her." [8] It is trite that once a sequestration order has been granted all the property of the insolvent on the date of sequestration form part of his or her insolvent estate. It follows, therefore, that once the estate has been sequestrated the insolvent loses control over his or her estate, the estate vests in the Master and then on the trustee of the insolvent estate. 1 [9] As a general rule insolvency does not affect the insolvent's contractual capacity. But, in order to protect the creditors, the Insolvency Act provides for certain limitations on the insolvent's contractual capacity. For instance, the insolvent cannot enter into an agreement that purports to dispose of property in the insolvent estate or enter into an agreement that adversely affects his or her estate without the written consent of his or her trustee(s). 2 [10] I am in agreement with the submission by the applicant's counsel that there are no factual disputes in the papers before me. [11] It is not in dispute that the estate of the first and second respondents has been finally sequestrated in the hands of the master. It is also common cause that as at November 2013 when the third respondent allegedly entered into an oral lease agreement with the first and second respondents the first and second respondents' 1 See s 20 (1) (a) of the Insolvency Act

4 estate had already been sequestrated. [12] The argument by the third respondent's legal representative is that, at the time of entering into the lease agreement, the third respondent, as a layman, could not have known that the first and second respondents' estate had been sequestrated. This argument, in my view, does not assist the third because, even though the property was still registered in the names of the first and second respondents, the legal position remains that on the date of sequestration the first and second respondents were divested of their estate, which also included the property, and it vested in the master and later in the trustees. If the first and second respondents had indeed entered into the lease agreement with the third respondent, they had no authority to do so as there is no evidence before me that proves that the trustees had given them a written consent so to deal with the property. On this basis, alone, the application stands to succeed. It cannot be said that there is a factual dispute. The issues are common cause. [13] Secondly, the third respondent cannot rely on the defence of lien since he is not living in the property in question. [14] The third respondent is relying in his claim of a lien on an enrichment lien. It is thus trite that in order to successfully raise the defence of an enrichment lien, the third respondent must allege and prove lawful possession of the object. 3 [15] The third respondent does not in his papers allege any form of possession of the property. He, however, concedes that he does not reside in the property. He states in his answering affidavit that he is currently residing at [ ], Johannesburg. The third respondent will as such not be able to prove lawful possession as a requirement of an enrichment lien. Even in this instance, it cannot be said that there is a dispute of fact. [16] Lastly, the third respondent's legal representative further submits that the applicants have not succeeded to prove their claim and as such the application must be dismissed with costs. I do not agree. [17] Section 4 (7) of the PIE Act provides that if an unlawful occupier occupies the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order of eviction if it is of the opinion that it is just and equitable to do so after considering all the relevant circumstances, including, except whether the land is sold in a sale in execution pursuant to a mortgage, where the land has been made available or can reasonably be made available by a municipality or other organ of state 2 See s 23 (2) of the Insolvency Act.

5 or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women. [18] In the absence of the circumstances mentioned in paragraph (17] of this judgment, which the third respondent failed to place before me for consideration, I have to conclude that a proper case has been made out for the eviction of the third respondent and anyone occupying the property by virtue of his occupation. No evidence was presented by the third respondent to enable me to exercise my discretion in his favour as such it is just and equitable that he be evicted from the property. [19] In the premises I make the following order: 1. The first, second, third, fourth, and fifth respondents, and all those who occupy the property at Erf [ ], Fleurhof, Gauteng situated at: [ ], Fleurhof, Florida, Gauteng (hereafter referred to as "the property"), by virtue of the first, second, third, fourth and fifth respondents' occupation thereof, are ordered to vacate the property within fourteen (14) days from the date upon which this order is served on them. 2. In the event of the first, second, third, fourth and fifth respondents and/or any of those who occupy the property under and by virtue of their occupancy thereof fail and/or refuse to vacate the property within the period stipulated in order 1 above, then and in that event, the sheriff of the court, alternatively for the district where the property is located, are hereby authorised and ordered, after 30 (thirty) days from the date upon which this order was served on the first to fifth respondents and/or any of those who occupy the property under and by virtue of their occupancy thereof, to forthwith enter onto the property and to the evict the first, second, third, fourth and fifth respondents and/or all those who occupy the property under and by virtue of their occupancy thereof. 3. The third respondent is ordered to pay the costs of suit. E. M:KUBUSHI JUDGE OF THE HIGH COURT 3 See Roux v Van Rensburg (1996) (3) All SA 499 (A).

6 APPEARANCES HEARD ON THE: 25 NOVEMBER 2015 DATE OF JUDGMENT: 03 DECEMBER 2015 APPLICANTS' COUNSEL: ADV.W.ROOS APPLICANTS' ATTORNEY: VELILE TINTO & ASSOCIATES INC. THIRD RESPONDENT'S ATTORNEYS: MR. J. PRINSLOO, PRINSLOO ATTORNEYS