Diluculo Properties Ltd v Seema; - Diluculo Properties Ltd v Mpela

• Jurisdiction: South Africa
• Judge: Mavundla J
• Judgment Date: 02 October 2009
• Docket Number: 4731/09 and 5439/2009
• Hearing Date: 04 September 2009
• Court: North Gauteng High Court, Pretoria

Mavundla J:

[1]

The applicant in both matters apply for the eviction of all but last respective respondents from certain property known as Portion 6 (a portion of portion 2 of ERF 170. Pretoria Industrial Township, on the grounds that they are illegal occupiers of such property. The last respondent in both matters has been cited to satisfy the requirements of PIE [1] because it is the municipality in whose area of jurisdiction the relevant property is situated.

[2]

The relevant property under case number 4731/2009, which is allegedly occupied by 1st respondent to 41st respondents, is

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Blocks D and E, Quagga Estate 295 Research Road Pretoria West Industrial.

[3]

The applicant approached this Court on urgent basis, and obtained an order authorising the service of the papers upon the attorney of record of the respondents, and upon the municipality, in terms of s4 (2) of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 1998. The eviction application was duly served on KP Seabi & Associates, the attorney of record of all the individual respondents save the last respondent in both matters who is the City of Tswane Metropolitan Municipality (CTMM), as well as upon the aforesaid last respondent in both matters on 6 August 2009.

[4]

On the 4 September 2009 the matter came before me. Mr. Seabi filed an opposing affidavit in case number 5439/2009. Under case number 4731/09, he filed an affidavit and referred to his other under case number 5439/09 and requested that the contents thereof be regarded as incorporated in the other affidavit.

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[5]

CTMM did not oppose the matter, but filed a letter stating that it has no alternative accommodation to provide to the respondents whose eviction is sought.

[6]

The applicant is the registered owner of the property situated on Portion 6 (a portion of portion 20 of Erf 170, Pretoria Industrial Township, Registration Division JR, and Gauteng Province situated at 285 Research Road, Pretoria Industrial and commonly known as the Quagga Estate (the property"). The property is improved with six buildings or blocks which are marked A to F. The applicant seeks the eviction of the respondents who are occupying Blocks D and E of the aforesaid property. The flats occupied by the respective respondents are numbered. It is however common cause that the respondents are occupying their respective flats situated in Blocks D and E.

[7]

According to the applicant, it purchased the aforesaid property on 12 December 2007 from Blue Moonlight Properties 35 (Pty)

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Ltd. The property was transferred into its name on 28 April 2008. At the time of transfer into its name, most of the flats in the six blocks were occupied. The applicant was informed by a director of Blue Moonlight that most of the occupants initially did so by virtue of lease agreements, written and others oral. The applicant further avers that some of the occupiers are illegal occupiers of Block D and E since they took occupation without its consent.

[8]

According to the applicant the leases, written or verbal, can be terminated by the applicant in the event of non payment of the monthly rental. Further it would seem that because of renovations that were to be effected on the relevant blocks of flats. Moonlight subsequently terminated the leases and some of the occupiers vacated the premises while others were relocated. Renovation was subsequently effected on all the blocks save block D and E which are still being occupied by some of the respondents.

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[9]

According to the applicant, after the property was sold to and registered in its name. Blue Moonlight brought eviction proceedings against some of the respondents. In the magistrate's court. The respondents are defending that said matter and have raised a defence that Blue Moonlight has no locus standi in iudico to bring the eviction proceedings since it is not the owner of the relevant property. The applicant in casu states that the proceedings in the magistrate's court cannot influence the outcome of the present proceedings instituted by a different party.

[10]

The applicant further avers that it purchased the property for purposes of renting out the flats in the various blocks for residential purposes in order to make a profit. Towards this end, it says it is necessary to complete the renovations. This requires that the occupied flats should be vacated.

[11]

The applicant further avers that the respondents in both matters are not the owners of the property and their rights which they had to occupy the property were terminated. It further avers that

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as the owner of the property, it is entitled to the full use and enjoyment of the property and entitled to vacant possession thereof in order to renovate the buildings, with the ultimate goal to derive an income from the investment which it made when it purchased the property.

[12]

It furthers avers that the 1st to 150th respondents in the case number 5439/09, the 1st to 42nd respondents in case number 4731/2009 are presently occupying the property without its permission as the owner thereof and are consequently unlawful occupiers.

[13]

The applicant further avers that to its knowledge none of the respondents are destitute persons who are unemployed or unable to work and who cannot provide their own accommodation. It furthers avers that it is not aware of elderly persons, children, disabled persons, households headed by women amongst the respondents.

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[14]

The applicant further avers that it is not in a position to avail the respondents with alternative accommodation. It further avers that as a private owner it has no duty to provide the respondents with alternative accommodation. It further avers that it has no knowledge whether the municipality in whose jurisdiction the property is situated or any state organ is in a position to make available to the respondents land for the relocation of the respondents. The applicant therefore seeks an order in terms of the notices of motion.

[15]

Under case number 54349/ 2009 an answering affidavit deposed to by Mr. Motome Albert Mollakgotla was filed on behalf of all the respondents in that case. Mr Seabi in case number 4731/2009, in his affidavit referred to the affidavit of Mollakgotla and requested that the contents thereof be regarded as if incorporated in his affidavit.

[16]

Mollakgotla avers in his affidavit that initially the relevant premises in casu were a hostel, catering for the accommodation of labour tenants from Iscor. Some of these

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labour tenants have worked for Iscor for the past 40 years and are now in the employ of companies which took over Iscor, being Arcelor Mittal and Exxaro, Iscor transferred the site to Mittal Steel when the latter took over Iscor. At no stage were any of the residents (being the labour tenants) consulted.

[17]

According to Mollakgotla after Mittal took over, it sold off this particular property to a company named Blue Moonlight Properties 35 (Pty) Ltd trading as Quagga Estate. The latter wanted to change the hostel into flats. The tenants could however not afford the higher rental demanded by the aforesaid company. Blue Moonlight then brought...