Chiloane v Maduenyane

• Jurisdiction: South Africa
• Judge: Goldstone AJ
• Judgment Date: 22 May 1980
• Citation: 1980 (4) SA 19 (W)
• Hearing Date: 22 May 1980
• Court: Witwatersrand Local Division

Goldstone AJ:

The applicant seeks an ejectment order against the G respondent and all persons claiming through him from stand 978, Thladi, Soweto. The application arises out of a far more substantial dispute between two rival church congregations. When the matter was called before me, Mr Burman, who appears for the respondent, raised three points in limine. They all relate directly or indirectly to the grounds on which the H applicant claims a right of possession of the stand, namely a lodger's permit issued by the township manager of Thladi in terms of s 20 of chap 2 of the regulations governing the control of an urban Black residential area.

The first point raised is that the photocopy of the permit served upon the respondent is not a true copy of the original because the signature of the township manager does not appear thereon. In other words it has the appearance of having been unsigned. It is true that Rule 6 (5) (a) of the Rules of Court obliges an applicant to serve true copies of all annexures

Goldstone AJ

on the respondent. However, the copy attached to the notice of motion, that is the original copy, is not defective. Although the signature or A signatures are illegible, it is apparent that the document was signed. An inspection of that original copy would have shown that fact. Furthermore, in terms of Rule 35 (12) of the Rules of Court, the respondent could have called for the production of the original document. The original has by consent been handed to me, and it is clearly regular on the face of it. In addition the applicant attached to his founding affidavit an affidavit by B the township manager of Thladi, one Loots, in which he identifies the permit and the fact that it was signed by him. It follows, in my opinion, that the respondent has not been prejudiced at all by the fact that imperfect copies of the documents were served upon him, and it follows that the objection is without merit. In any event no formal application C was brought by the respondent to set aside these proceedings as irregular under Rule 30 and, indeed, not even informal notice of the point was given by the applicant.

The second point in limine is that the applicant, as the holder of a lodger's permit, has no locus standi to claim the relief sought by him. It D is clear from the founding affidavit, and, indeed, it was conceded by Mr Heher, who appeared for the applicant, that there is no other basis upon which the applicant can rely for his right to claim the ejectment of the respondent.

Mr Burman submitted that the holder of a lodger's permit has no greater rights than those of a lessee and that, prior to having been placed in E possession of the premises in question, he has no right to claim possession thereof from anyone other than the landlord or the equivalent of the landlord. For this submission Mr Burman relied upon the judgments in Tshandu v City Council of Johannesburg1947 (1) SA 494 (W); Bodasingh's Estate v Suleman1960 (1) SA 288 (N) and Padayache v Veerepan and Another F 1979 (1) SA 992 (W). In Bodasingh's case FANNIN J held that a tenant under a long lease did not become possessed of any real rights prior to taking occupation of the premises in question notwithstanding registration of a long lease, and that such a tenant has no right to approach a court for the ejectment of a trespasser. Tshandu's case is more directly in point. It was there held by BLACKWELL J that the holder of a site permit, under G the regulations then in force, was in the position of a lessee and that it was the duty of the superintendent of the township concerned, who had issued the permit in question, to ensure that possession of the premises was given to the permit holder. In Padayache's case COETZEE J held that the holder of a latter of authority from the Johannesburg City Council to H carry on business as a flower...