REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO:13631 /2012

(1)	REPORTABLE:  NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:	
	
Molefe: Andrew							First Applicant

Molefe: Mamonyane Sanah					Second Applicant

and

Twala: Joyce Phindile			               		First Respondent

All other unlawful occupiers on					Second Respondent
Stand 1468 Moletsane Township
Soweto, JHB

Johannesburg Metropolitan Local Council                         Third Respondent

______________________________________________________________ 

JUDGMENT
______________________________________________________________ 

Mia AJ:
INTRODUCTION
[1]	The applicants approached this Court for an order evicting the first respondent and those holding under her from the immovable property owned by the applicants situated at Erf 1468 Moletsane Township, Soweto (the property) in terms of section 4(1) of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (the Act). The applicants also requested an order directing the first respondent to pay the amount of R57000.00 for arrear rental for the period 1 October 2001 up to and including March 2012 and R600 per month calculated from April 2012 plus interest to the date of vacating the property.  The respondent occupied the premises as a result of an agreement to purchase the property in 2001. The applicants cancelled the agreement in March 2012.

BACKGROUND FACTS
[2]	The applicants are the current owners of the property situated at Erf 1468 Moletsane.  They obtained a right to occupy the dwelling on site 1468 in Moletsane in terms of the Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant Matters G.N. 1036 dated 14 June 1968.The property was registered in the name of the applicants on 20 April 2004 and the Gauteng Provincial Government ceded all rights to the property to the applicants on 1 February 2006.  

[3]	The first respondent and Vivian Twala offered to purchase the property from the applicants in 2001.  The sale was conditional upon a mortgage bond being granted to the purchasers for the amount of R60 000.00 or such lesser amount as was acceptable to the buyer. It was a term of the agreement that in the event that a loan was not granted by 30 September 2002 then the sale would be of no force and effect unless the parties agreed in writing to the contrary. The first respondent did not secure a loan as required by the suspensive condition by 30 September 2002. The first respondent then continued paying amounts to the applicants. On 8 August 2003 the respondent addressed correspondence confirming that the applicants accepted R12000.00 and that the balance was R48000.00 for the purchase of the property. 

[4]	On 15 August 2003, the applicants acknowledged receipt of a deposit but relied the terms of the offer to purchase where the suspensive condition was not met and sought to cancel the agreement should the balance of R48 000.00 not be paid within fourteen days. There is a dispute with regard to the amounts paid toward the purchase of the property and occupational rental. The applicant acknowledged receiving only R12000.00 whilst the respondent alleged having paid R 28 100.00. The differences in the calculations appear to be related to whether payments made were toward the purchase price or occupational rent.  The above facts formed the basis of the previous application to evict the respondent from the premises when the matter came before Tsoka J when the application for eviction was dismissed.

[5]	Thereafter the applicants directed correspondence through their attorneys on 30 March 2012 demanding payment of R 57 000.00 as arrear occupational rental, R38 848.35 for arrear electricity and R 13 791.00 for arrear rates and taxes to be paid within seven days from the date of the letter. They also cancelled any agreement between that existed between the parties in relation to the property and afforded the respondent seven days to vacate the premises. The respondent filed an affidavit and raised a point in limine that the matter was res judicata.

ISSUES
[6]	If the point raised by the respondent that the matter is res judicata is upheld, the correct procedure is for the applicant to lodge an appeal. In the event the point in limine is dismissed, this Court must decide this matter in terms of section 4 of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 ( the Act).

LEGAL POSITION
[7]	On the point in limine, in Herbstein and Van Winsen, The Civil Practise of the High Courts of South Africa it is stated at p 609:
	“The requirements for successful reliance on the exceptio rei judicatae vel litis finitae (or lis finita) are: idem actor, idem reus, eadem res and eadem causa pendente. This means that the exception can be raised by a defendant in a later suit against the plaintiff who is ‘demanding the same thing on the same ground’ per  Steyn CJ in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562 A); or which comes to the same thing, ‘on the same cause for the same relief’ per Van Winsen AJA in Custom Credit Corporation (Pty)  Ltd v Shembe 1972 (3) SA 462 (A) at 472 A-B”

[8]	On the question of an eviction section 4 (7) of the Act informs the enquiry and provides as follows:
“ 4(7) An unlawful occupier who has occupied land for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of State or landowner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.” 

RES JUDICATA
[9]	The parties cited in this application are the same as the parties in the matter that came before Tsoka J in case number 9226/2009. The present application is brought before this Court in terms of section 4(1) of the Act. There is no opposing affidavit before this Court which places in dispute the facts placed before this Court in the founding affidavit.   The same relief namely an eviction of the respondents is demanded. However the unlawfulness of the respondent’s occupation in the present matter is based on the cancellation of the agreement between the parties by the applicants in March 2012. It is thus clear that point in limine that the matter is res judicata   cannot succeed in view of the cancellation of the agreement by the applicants. This cancellation is not disputed by the respondents. In light of the above I the respondent’s point in limine of exceptio rei judicatae vel litis finitae cannot be upheld.  

SECTION 4 OF THE ACT
[10]	A new notice in terms of section 4(1) of the Act was issued by this Court on 21 August 2012 and was served on the second and third respondent.  On the determination in terms of section 4(7) of the Act, Mr Beytel appearing for the applicants pointed out that the applicants request was supported by a new cause of action as the applicant’s cancelled any agreement between the applicants and respondent. He submitted that this placed the respondent in unlawful occupation of the premises. He submitted further that the applicants were senior citizens who are covering costs attached to the respondent’s occupation of the premises such as electricity and rates out of their pension monies, without receiving any money for the use of the property. Further that it was unfair to expect them to continue doing so. The outstanding electricity was estimated to be 38 848.35 for arrear electricity and R3 791.00 for arrear rates and taxes  In view of the absence of an opposing affidavit, he submitted that there was no indication before this Court that the respondent  was elderly, had children or lived with disabled persons affected by an eviction. 

[11] 	In view of Mr Beytel’s submissions the relief sought in the present application is subject to a determination having regard to section 4(7) of the Act and is based on the respondent being an unlawful occupier. The respondent having filed no opposing affidavit placing in dispute the facts placed before this Court, it follows that the facts in the applicants founding affidavit are undisputed in relation to the unlawful occupation. In addition to being an unlawful occupier the respondent does not appear to be paying for the electricity consumed and the services rendered to the property by the municipality.   The applicants as senior citizens are forced to cover the cost of electricity used by the respondent and the municipal charges attached to the respondent’s occupation of property. They are not able to use and enjoy their property or rent it for payment. It is thus unfair that they are denied the benefit, use and enjoyment of their property and in addition have to cover the costs of the respondent’s electricity consumption and municipal charges. I am satisfied that on the undisputed facts before me the respondent is an unlawful occupier and the applicants have made out a case for the eviction of the respondent and those holding under her. In view of the dispute regarding amounts payable I am not satisfied to order payment of any monies as requested in the notice of motion. Mr Beytel conceded this was not possible on the papers before me. 

ORDER
[12]	In view of the above the following order is made:
1.	The first respondent and all persons holding occupation through or under her  of the premises, situated at Erf 1468 Moletsane Township, Soweto  are to vacate on or before 31 May 2013.
2. 	Should the respondent fail to vacate the said property by 31 May 2013, the sheriff is hereby authorised to carry out the eviction order on or after 14 June 2013 by removing from the said property the respondent and all persons holding occupation through or under her. 
3. 	In the event of the Sheriff having to evict the respondent from the property, the Sheriff is authorised to enlist the services of the South African Police Service, if necessary. 
4. 	The respondent is ordered to pay the costs of the application.

							                       						S Mia
Acting Judge of the South 
Gauteng High Court, JHB

Counsel for the applicant:			G Beytel
Instructed by:				Groenewald Lubbe Incorporated
 for the second respondent:		G Mtotywa (Right of appearance in terms of 
						S4(2) of Act 62 of 1995)