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NOT REPORTABLE

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: 13106/2012

DATE: 13/05/2013

In the matter between

HOPE SERAME CHILOANE..................................................................................Applicant

and

IDA CHILOANE.............................................................................................First Respondent

ALL OTHER UNLAWFUL OCCUPIERS ….........................................Second Respondent

OF ERF 1549 MOLAPO TOWNSHIP

REGISTRATION DIVISION I.Q

THE PROVINCE OF GAUTENG

JUDGMENT

MADIMA, AJ

Introduction

[1]. This is an application in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, Act No.19 of 1998 (“the PIE Act”).

[2]. The Applicant is Hope Serame Chiloane (“Serame”). The first Respondent is Ida Chiloane (“Ida”). The Second Respondents are what Applicant refers to as “all other unlawful occupiers of Erf 1549 Molapo Township”. The Applicant was represented by Adv N. Felgate.

[3]. I must mention that at the commencement of the hearing, Mr Ngwadla, an attorney who was in court on another matter was requested by one Ms Mamabolo, an attorney without the right of audience in the High Court to make an application for a postponement on behalf of the respondents. Ms Mamabolo is with the attorneys’ firm Ramushu Mashile Twala Inc (“the respondents’ attorneys”).

[4]. Mr Ngwadla read out a letter dated 3 May 2013 from the respondents’ attorneys which states thus

1. We refer to the above matter that is on the role on 07^th May 2013 and confirm that we are acting pro bono on behalf of the Respondents.

2. We received instructions on this matter on 02^nd May 2013 in the afternoon. We would therefore not be ready to proceed with the hearing on the set date.

3. Kindly postpone the matter and allow us some time to properly prepare for hearing in this regard.

4. Our notice of appointment will follow shortly

5. We hope you will find the above in order.

[5]. I allowed Ms Mamabolo to explain the circumstances around the non readiness of the respondents to proceed. Ms Mamabolo explained that the reason for the request for a postponement was that the First’s Respondent’s counsel, one Mr Mthimunye could not be located. All possible attempts were made to find him but to no avail. Mr Felgate stated that he called Mr Mthimunye over two days without success. He called counsel’s chambers and was informed that Mr Mthimunye was not in chambers. Ms Mamabolo confirmed that Mr Mthimunye was on brief.

[6]. Mr Felgate opposed the postponement. He submitted that the matter was a simple one and that the papers were not voluminous. He argued that the respondents have had about five (5) days to prepare and be ready for court on 7 May 2013. He also submitted that the dispute has been going on for some considerable time and it would be prejudicial to the Applicant if the matter did not proceed.

[7]. I agreed with Mr Felgate’s submission. I accordingly did not allow the postponement. The matter is a simple and straight forward one. No explanation was offered by Ms Mamabolo regarding the absence of any of the senior attorneys in her firm in Court on 7 or 8 May 2013. I also took into account the prejudice to the Applicant as well as the First Respondent’s meek defence in her answering affidavit.

Background

[8]. Serame and Ida are nephew and aunt respectively. Serame is Ida’s brother’s son. In his notice of motion Serame seeks inter alia the following relief against the respondents:

1. That the first and further respondents vacate the property, being Erf 1549 Molapo Township, Gauteng within 30 days from the granting of the order, failing which the Sheriff be duly authorised to evict the respondents from the property;

2. That the Sheriff or the Deputy Sheriff be authorised to request any person, including members of the South African Police to assist him in the eviction of the respondents and/or their structures from the property

3. That the respondents pay the costs of the application in the event of opposition.

[9]. The Applicant claims ownership of Erf 1549, Molapo Township (“the property”). He states in his affidavit that he purchased the property in 2003 for an amount of R18 000.00. To back this claim, Serame attached to his papers a deed of Transfer dated 09 July 2003. So far so good.

[10]. The Applicant further claims that he had allowed First Respondent to move into the property at a time when Applicant and his siblings needed someone older to take care of them after the death of their parents. Over the years, so claims the Applicant, First Respondent ill-treated Applicant and his siblings culminating with the departure of Applicant and his siblings from the property.

[11]. Applicant claims that he now wishes to reclaim his property from First Respondent and other occupiers. He states that despite a demand that First Respondent and other occupiers vacate his property, the respondents refuse to do so.

[12]. First Respondent opposes the application. Her version is that the property belonged to her deceased parents. The property was, according to First Respondent, the family home for herself and her siblings, including her brother, who is Serame’s father. First Respondent attached a “house permit” to assert her claim to the property.

[13]. First Respondent’s parents died in 1969 and 1984 respectively. She states in her answering affidavit, that because of the previous laws that prevented a female from owning property, the Municipality advised her mother to surrender her powers as the “permit holder” to her son, Petrus Chiloane, the father of Serame.

[14]. The whole family apparently lived together at the property. Petrus died in 1991, followed by his wife in 1994. Petrus’ children also left the family home.

[15]. However the Applicant and his siblings returned in 2011 and demanded “that which belonged to their father”, says First Respondent. She surmised that “that which belonged to their father”, could only mean the property. She made inquiries at the local Municipality and discovered that indeed the property was registered in Applicant’s name. She does not know how this happened.

The Deed of Transfer

[16]. The Applicant has attached a Deed of Transfer to his papers. The Deed of Transfer is indeed in Applicant’s name. For their part, the respondents have failed to set out any meaningful opposition to the Applicant’s claim. All First Respondent states in her affidavit in her opposition to Applicant’s claim is that that the property was a family home which belonged to her deceased parents.

[17]. The First Respondent has not implied any impropriety having taken place in the registration and transfer of the property to Applicant’s names. All she states is that she does not understand how it ended in Applicant’s name.

[18]. In the application before me I am not being asked to look into the circumstances surrounding the registration and transfer of the property. Should First Respondent not be satisfied with my decision, there exist other options that she could persue.

[19]. I am accordingly satisfied that the Applicant should succeed in his bid to evict the respondents.

[20]. My order is as follows:

1. An order for eviction of respondents is hereby granted;

2. The respondents and all persons occupying the property located at Erf 1549 Molapo Township, Gauteng through or under them are to vacate said property by no later than 8 June 2013.

3. Should the respondents fail to vacate the property by 8 June 2013 the Sheriff is authorized to evict such persons from the property forthwith.

4. The respondents to pay the cost of the application.

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T S MADIMA: AJ

ACTING JUDGE OF THE HIGH COURT

On behalf of the Applicant: Adv. Felgate

011 337 4355

083 332 1557

Instructed by: Maharaj Attorneys

011 782 0924

On behalf of the Second Respondent: Mr X Ngwadla

011 333 0595

082 860 2543

Instructed by: Ramushu Mashile Twala Inc

011 444 3008

Dates of Hearing: 08 May 2013

Date of Judgment: 13 May 2013

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