Petersen and Another v Gqosha

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: B Hartle J
• Judgment Date: 09 June 2022
• Court: East London Circuit Local Division
• Docket Number: EL 1281/2021

Hartle J:

[1]

The applicants seek the eviction of the first respondent and all persons occupying through or under him from residential premises situated at 28 Bonnie Doon Place, East London ("the property").

[2]

The application purports to be one in terms of the provisions of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,

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No. 19 of 1998 (the "PIE Act") and is predicated on the basis that the applicants are the lawful owners of the property and the first respondent and his family in unlawful occupation thereof. The applicants launched the application on the basis of urgency as provided for in terms of Uniform Rule 6 (12).

[3]

The applicants divulged in their founding papers only the premise that they had recently purchased the property and, contrary to a provision in the deed of sale guaranteeing them vacant possession, that they had not acquired vacant possession thereof by virtue of the fact that the first respondent and his family were found to be unlawfully occupying the property after registration of transfer to them.

[4]

A copy of the deed of sale was not disclosed neither the rather unique circumstances under which the applicants came to acquire the property.

[5]

In proof of their ownership of the property they relied only on a copy of a WinDeed report, although at the abortive first appearance of this matter on 2 November 2021 [1] and in response to the first respondent's contention that the sale was contrived, put up a copy of the title deed which on the face of it confirms his and his wife's acquisition of the property on the basis of a sale to them on 12 February 2021 by one Colin Kriel for a purchase consideration of R2 500,000,00. [2] Even though this detail was not volunteered from the outset, it is common cause that Colin Kriel is the uncle of the second applicant who evidently also transacted professional business with her eponymous firm, Kriel Petersen Attorneys of East London. The firm's name is endorsed on the face of the title deed, suggesting their professional involvement in the transfer of the property to herself and her husband as well.

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[6]

Although the first respondent's attorney ostensibly objected to the introduction of the title deed as proof of ownership at the initial hearing when the application was struck from the roll for want of urgency, it can hardly be gainsaid that the applicants took ownership of the property on 28 July 2021.

[7]

Notwithstanding the applicants' rights as owners to recover possession of their property by resort to the rei vindicatio, the first respondent opposes the application on the primary basis that he is not an "unlawful occupier" within the meaning contended for in the PIE Act. [3] He pleads over that it would not be just and equitable to evict him and his family and that they would be rendered homeless by such injunction, but evidently his main concern by such eviction is that it will "render (his) case with Colin (Kriel) moot". [4] The first respondent and his family have lived in the property since February 2016 although the applicants plead that their unlawful occupation of the property spans only from the date upon which they took transfer of the property. [5]

[8]

In essence the first respondent alleges a contrived purchase by the applicants of the property in order to thwart a "lien" he has over it. This lien, so he explained, had its origin in a "loan" he advanced to Colin Kriel, who was introduced to him by the second applicant in her capacity as attorney or conveyancer after she was professionally involved in a failed property acquisition by him. He alleges that she encouraged him to "triple" his deposit of

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R1 900 000.00 which he had paid into the trust account of her law firm as a payment towards the purchase price of the failed transaction, by paying it to Colin Kriel as an investment.

[9]

On 24 June 2015 the second applicant advanced an initial sum of $86 500.00 to Colin Kriel from her firm's trust account pursuant to a loan agreement entered into between Colin Kriel and the first respondent which she herself drafted. Further advances were made to Colin Kriel at his request in due course, entailing addenda to the original agreement, culminating in an obligation by Colin Kriel ultimately to pay him a sum of $249 550.00, plus interest.

[10]

Colin Kriel's failure to pay the agreed amount to him in February 2016 led to the latter and him entering into a verbal agreement that he would take occupation of the property, then owned by Colin Kriel, "until (Kriel) has paid all the money that he owes me". [6] It appears further, according to him, that the understanding was that he would not be required to pay either rent or service charges for so long as he occupied the property on this basis.

[11]

Later, on 25 April 2016, when Colin Kriel fell into arrears with his bond repayments owed to Absa Bank Ltd, he and the latter entered into a mock deed of sale (sic) of the property to him (drafted by the second applicant's firm), but only to create the impression that the first respondent was purchasing the property from him for 7 million rands. Colin Kriel persuaded him that the simulated agreement was intended only to be used as leverage with Absa Bank Ltd in order for the latter to gain some time to catch up with his arrears on the mortgage loan(s). [7]

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[12]

He was surprised therefore when on 11 April 2019 Colin Kriel issued summons against him under East London Case No. 381/2019, alleging that he was holding over and in unlawful occupation of the property after having failed to pay him the purchase price as ostensibly agreed in the "mock" deed of sale. He has defended the claim of Colin Kriel for his ejectment on the basis that he is not in unlawful occupation of the property. At the launch of the present application that action stood poised to go to trial and is still a live dispute. A perusal of the court papers in that file, to which the first respondent referred this court in support of his plea of lis pendens as it were, confirms the same defence as presently raised to the applicants' claim for ejectment.

[13]

It is the first respondent's belief that the sale of the property to the applicants was - or since it has now been successfully concluded by way of registration of transfer, is, a "tactical maneuver by Colin Kriel acting in cahoots with (the applicants) to ensure his ejectment from the property without being paid what is owed to him by Colin Kriel."

[14]

The first respondent alluded to a separate action (EL 835/2016) in which Shumayela Properties (Pty) Ltd, represented by Colin Kriel's brother Tony Kriel as director, issued summons against Roger Charles Kriel, Colin Graham Kriel (who was joined in those proceedings only on 28 November 2018) and Geoffrey Colin Kriel, the second applicant's father and Colin's brothers respectively, cited nomine officio as defendants in their capacity as trustees of Thistle Trust No. IT 848/96, to recover certain indebtedness to it.

[15]

It appears from a copy of a court order granted by consent between the various family members put up by the first respondent in respect of that action ("the Order") that on the day of Colin Kriel's joinder, he was ordered in settlement of "claim 2" in the action to pay in his personal capacity to the plaintiff

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a sum of 1 340 000.00. Payment of this amount was to be secured by way of a mortgage bond to be registered over the property to rank behind Absa Bank Ltd, which was then already holding six bonds registered against the property. (It appears from the historic information furnished on the WinDeed search in respect of the property that such a bond was registered by Shumayela Properties (Pty) Ltd per document reference B7721/2019 although no date is indicated when this occurred.)

[16]

When Colin Kriel failed to pay this bond there was a sequel to the Order pursuant to which Shumayela Properties brought a further application to declare the...