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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

	Case Number: 33916/2020

In the matter between:

EPHRAIM KGADI LETLALO	First Applicant

OSLINA RAMATLOTLOO LETLALO	Second Applicant

AMMONGOLWANE MINICA LETLALO	Third Applicant

STEPHEN TSHWLE LETLALO	Fourth Applicant

MMANAPE MARIA LETLALO	Fifth Applicant

and 		
MOKGAETJI SARAH MALAPILE	First Respondent
 
EKURHULENI METROPOLITAN COUNCIL	Second Respondent

Neutral Citation: EPHRAIM KGADI LETLALO & OTHERS v MOKGAETJI SARAH	                                                  MALAPILE & EKURHULENI METROPOLITAN COUNCIL (Case No: 33916/2020) [2023] ZAGPJHC 593 (30 May 2023)

JUDGMENT
MALUNGANA AJ 

Introduction 

[1]	The five applicants are the registered joint owners of the immovable property known as Erf […] Maokeng Section, Tembisa (‘the property). It is alleged by the applicants   that the first respondent is in unlawful occupation of the said  property, in that she occupies the property without their consent.

[2]	As a result the applicants now seek the eviction of the first respondent and all the persons holding occupation through her from the property in terms of section 4(2) of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998 (“the PIE”). Orders are also sought directing the Sheriff or his deputy to evict the first respondent and any occupiers of the property.

[3]	The founding affidavit filed in support of the application is extremely terse. The applicants rely on the title deed annexed to the founding affidavit marked “A”. The founding affidavit also annexes a copy of the deed search marked “B”. 

[4]	To the present application, the first respondent delivered her opposing affidavit. At the outset therein, the first respondent seeks condonation of her three days late filing of the application. Amongst the reasons stated in her condonation application is the lack of funds and COVID 19 complications. I have considered the issues raised and am satisfied that a good cause has been shown for granting of condonation. It is so granted.

[5]	In the answering affidavit filed on her behalf, the first respondent denies that she is unlawfully occupying the property. She avers that she was the second wife to the late Thaluki Jeremia Meso (“the deceased”), to whom she was married in terms of customary law. She further contends that the deceased had executed a will during his life time in terms of which she was nominated as beneficiary of the property, whilst his first wife, Mamonoke Meso (‘the widow’) would retain the dwelling in Matlakereng Village.

[6]	It is noteworthy to state that the deceased was the registered owner of the property in question before it was sold by the widow to the applicants. The background to this application will be helpful.

History and nature of proceedings

[7] 	On 11 March 2016 and pursuant to an interdictory application launched by the first respondent against the widow and other respondents, Spilg J granted an order in favour of the first respondent as follows:

		(a)  	Interdicting and restraining the widow and the deeds office from 			selling, and/or transferring the property  registered in the name 			of the deceased, being Erf [...], situated in Maokeng Section, 			Tembisa, pending the finalisation of the deceased estate, which 			would include the consideration by the Master of the High Court, 			the last will and testament of the deceased.

		(b) 	A copy of the will had to be lodged with the Master of the High 			Court within 14 days of the Order.

		(c)  	The Master of the High Court was directed not to give effect to an 			instruction to have the property transferred into the name of any 			third party or purchaser (s), and to endorse the title deed to that 			effect.

[8]	During July 2018, the first respondent instituted another interdictory proceedings against the Master of the High Court and Mrs Mamonoke Meso, in which she sought the following relief:

		(a) 	That the Master of the High Court, Johannesburg, be directed to 			accept a copy of the will and testament of the deceased who died 			on 25 February 2007.

		(b) 	That the Master be directed to cancel Letters of Executorship 			issued to Mrs Mamonoko Meso on 28 April 2015.

		(c)	Directing that the estate of the deceased be administered and 			devolve in terms of the said will and testament.

Applicant’s contention

[9]	The first applicant contends that the first respondent’s occupation of the property is unlawful, more particularly that he is the registered owner of the immovable property. He has nothing to do with the litigation which had ensued between the widow and the first respondent. He goes on to state that the first respondent must sort it out her legal issues with the previous owner. Consequently, it is just and equitable to evict the first respondent from the property. 

Respondent’s contention 

[10]	According to the first respondent there is a non-disclosure of the material facts by the applicants, which will have a material impact on the relief sought in this application.The first respondent avers that pursuant to the court order issued by Spilg J, the Master of the High Court considered the deceased’s will and rejected it. Her contention in this regard is that the consideration of the will does not end with the rejection, as it includes  all rights of recourse bestowed upon the person aggrieved by the Master’s decision. The Master had allowed the transfer of the immovable in circumstances where it was not free of objection.

[11]	In paragraph 8.5 of the answering affidavit the first respondent contends as follows:

		“8.5 Ad paragraph 8,9 and 10 
	
		Save to admit that the Applicants, is on the face of the Deed of Transfer, I deny 	that the Applicants are innocent and genuine bona fide purchasers of the 	property.
	
		I say this because the property was sold to the Applicants under the 	circumstances that violates the court order under case number:2016/07388. In 	the light of the contentions I have advanced in the preceding paragraphs of this 	affidavit, I respectfully submit that the agreement of sale between the First to 	Fifth Applicants and the executrix  was a nullity. 

		The averments I have made and facts stated in the various affidavits deposed 	to by me in matters relating to this property were known by the First Applicant.

		I find it important at this stage to highlight to this Honourable Court that, the first 	applicant is my late husband’s nephew. During my late husband’s lifetime, the 	first Applicant stayed with us in the same property. In 2016, the first occasion I 	established that the First applicant had offered to purchase this property I 	applied for an order interdicting the proposed sale.”

Applicant’s replying affidavit

[12]	The relevant portions of the applicant’s replying affidavit in response to the above allegations read:

		“8.5 	I still submit that this arguments are irrelevant in the court dealing 			with eviction and should be properly raised with the previous 			owner in an appropriate court as the time of first registration into 			the seller’s names there was no existing interdict on the property 			as the Will was rejected already by the Master of the High Court. 			I hereby enclose the previous owner’s affidavit that deals with this 			aspect of the matter together with attachments.

		8.6 	I am adamant that the first respondent is an illegal occupant and 			that the will presented by her to the Master was rejected.

		8.7 	I am still adamant that the first respondent is an illegal occupant 			and it is just and equitable that she must vacate the property in 			dispute. 

		8.8 	I am advised that court order and rejected Will were presented to 			the Deeds Office for the purpose of registration and therefore it 			was proper that the registration into the previous owner was 			made.”

The widow’s answering affidavit to the first respondent’s application in case 
number 24678/2018

[13]	The relevant portions of the widow’s answering affidavit referred to in paragraph 8.5 of the applicant’s replying affidavit, supra read:

	“3.3  	After seven months, my attorney approached the Master of the 			High Court to find out about the decision and it was then 				established that the will was rejected by the Master of the High 			Court as it clearly appears on the attached copy of a will. Then 			six months after the rejection of the will by the Master of the high 			Court, I instructed my attorneys to apply for endorsement of the 			title deed in terms of sec 45(1) of Act 47 of 1937, I hereby enclose 		confirmation that was made by the Registrar of Deeds office on 			30 June 2017 as annexure marked “F”. I am therefore the lawful 			new owner of the property situated at Erf [...] Maokeng Extension 			1 Tembisa.

	3.4 	I must submit that the applicant had more than reasonable 				opportunity to challenge the Master’s decision but neglected to do 			so. Her application now when I have already taken full ownership 			is simply to prejudice me as the owner of the property. I am almost 		80 years old of age and wish  that the applicant must leave me 			in peace to dispose of the property and enjoy the benefits of my 			marriage with my late husband to the fullest before I die. On that 			basis I request the Honourable court to dismiss this application.”

The legal framework

[14] 	At this stage it is convenient to consider the applicable legal principles. Section 1 of the PIE Act defines an Unlawful occupier as:

		“unlawful occupier means a person who occupies land without the 	express or tacit consent of the owner or a person in charge, or without 	any other right in law to occupy such land, excluding a person who is an 	occupier in terms of the Extension of Security of Tenure Act, 1997, and 	excluding a person whose informal right to land, but for the provisions of 	this Act, would be protected by the provisions of the interim Protection 	of Informal Land Rights Act, 1996 (Act No. 31 of 1996).”

[15]	Section 4(7) provides that the court may grant an order for eviction if an unlawful occupier has occupied the land in question for more than six months when the proceedings are initiated, if it is of the opinion that it is ‘just and equitable to do so,’ and  after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. 

[16]	Section 4(8) empowers to evict an unlawful occupier if it is satisfied that all the requirements of this section had been complied with and no valid defence has been raised by the unlawful occupier, and to determine- 

“(a) 	a just and equitable date on which the unlawful occupier must 		vacate the land under the circumstances; and 
		
		 (b)	 the date on which an eviction order may be carried out if the 		unlawful occupier has not vacated the land on the date 			contemplated in paragraph (a).”

[17]	In determining whether an eviction is just and equitable the court is required to consider amongst others, whether land has been made available or can be made available by a municipality or an organ of state for the relocation of the occupier. See Occupiers of Erf 101,102,104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and others [2009] 4 All SA 410 (SCA).

Submissions 

[18]	It was submitted on behalf of the applicants that the property was bought free of interdict as it was already in the names of the widow. Furthermore the applicants have complied with the procedural requirements set out in the PIE Act.

[19] 	On behalf of the first respondent it was argued that the widow sold the property to the applicants in total disregard of the court order debarring the Registrar of Court from giving effect to the purchaser and from endorsing the title to that effect. He further submitted that the issue relating to the rejection of the will should first be ventilated before the issues of administration of the estate can be finalized. Reference was made to the definition of the spouse as contemplated in the Reform of Customary Law of Succession and Regulations of Related Matters Act 11 of 2010, in respect of which it was submitted that the first respondent falls within the category of spouse described therein. 

Analysis of the issues 

[20] 	It emerges from the facts on record that the first respondent has been in occupation of the property concerned for a period in excess of 10 years. At all material times she occupied the property through the deceased, presumably with his consent. The applicant averred that the first applicant is the deceased’s nephew, and at some stage he lived with them in the property. I observe that this averment is neither denied nor challenged by the applicants.

[21]	Importantly, the fist respondent instituted proceedings against the Master of the High Court challenging his decision reject the will purportedly executed by the deceased. Similarly  it is not denied that the application is still pending. In this connection the first respondent contends in her answering papers that the consideration of the will does not end with the rejection of the will by the master, as his decision can still be challenged. It is unclear if the first respondent was aware that the property which formed the subject matter of the application was being registered or sold to the applicants. I am respectfully in agreement with the first respondent’s proposition that she is in an  interested party and ought to have been informed of the further step relating to the property after the rejection of the will by the Master. 

[22]	It has also been argued on behalf of the first respondent that the property was transferred to the applicants in total disregard of the order by Splig J. In my view this is not a matter where the application for eviction can be decided on affidavit. The issues raised pertaining to the merits of the order and the rejection of the will  do not belong to this application. The method for resolving dispute of fact in motion proceedings has been laid down in Plascon -Evans (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCAA 51; [1984] 2 SA 366. The first respondent’s version that she was married to the deceased is met with a denial from the widow. The validity or otherwise of her marriage cannot be entertained here. 

[23] 	In light of the above, it remains to consider whether it would be just and equitable to grant an eviction order. Sachs J, dealing with the concept ‘”just and equitable” in the context of PIE in Port Elizabeth Municipality v Various Occupiers, 2005 (1) SA217 (CC), referred to the comments of Horn AJ in Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and others and stated in paragraph 33 as follows:

		“… [1] In matters brought under PIE, one is dealing with two diametrically 	opposed fundamental interests. On the one hand, there is the traditional 	real right inherent in ownership, reserving exclusive use and protection 	of property by the landowner. On the other hand, there is a genuine 	despair of people in dire need of adequate accommodation …It is the 	duty of this court, in applying the requirements of the Act, to balance 	these opposing interests and brings out a decision that is just and 	equitable… The use of the term “just and equitable” relates to both 	interests, that is, what is just and equitable not only to persons who 	occupied the land illegally but to landowner. 

		… [36] The Court is thus called upon to go beyond its normal 		functions and to engage in active judicial management according to 	equitable principles of ongoing, stressful and law-governed social 	process. This has major implications for the manner in which it must 	deal with the issues before it, how it should approach questions of 	evidence, the procedures it may adopt, the way in which it exercises its 	powers and the orders it might make. The Constitution and the PIE 	require that, in addition to considering the lawfulness of the occupation, 	the court must have regard to the interests and circumstances of the 	occupier and pay regard to the broader considerations of fairness and 	other constitutional values, so as to produce a just and equitable result.

		[37]	Thus, PIE expressly requires the court to infuse elements of grace 	and compassion into the formal structures of the law. It is called upon to 	balance competing interests in a principled way and to promote the 	constitutional vision of a caring society based on good neighbourliness 	and shared concern. The Constitution and PIE confirm that we are not 	islands unto ourselves. The spirit of ubuntu , part of a deep cultural 	heritage of the majority of population, suffuses the whole constitutional 	order. It combines individual rights with a communitarian philosophy. It 	is a unifying mortif of the Bill of Rights, which is nothing if not structured, 	institutionalised and operational declaration in our evolving new society 	of the need for human interdependence, respect and concern.” 

[24] 	It follows from the above decision that the court should not blindly focus on the lawfulness of the occupation but should infuse other elements of grace and compassion into the formal structures of the law in order to achieve just and equitable result. It is therefore not sufficient to consider only the issue of ownership of the property and conclude that the occupier is in unlawful occupation of the property. Other factors such as how the occupier occupied the property deserve consideration, so is the manner in which the  landowner acquired ownership of the property from which he seeks to evict the occupant. 

[25]	In the instant case the first respondent does not only rely on the alleged customary union with the deceased, but also on the purported will of the deceased. Further she avers that the first  applicant is the nephew of the deceased, and that at some stage he came to stay with her and the deceased in the disputed property. As regards the relevant factors. I have observed that the first respondent is out age, and presumably unemployed. It is not clear from the papers as what her source of income. There is simple no sufficient evidence placed before to consider whether that the first respondent can be able to afford or find an alternative accommodation if evicted from the property. If the first applicant had stayed with the first respondent, which evidently is not denied, he ought to have brought to light issues which the court appertain the personal circumstances of the first respondent. For all of these reasons I am  unable to conclude in the context of s 4(8) that the eviction of the first respondent would be just and equitable in the circumstances. 

Conclusion 

[26] 	In regard to the contention raised by the applicants that the first respondent had had ample time to challenge the Master’s decision but neglected to do so, I am of the view that there is merits in that assertion. It is apparent ex facie the record that the first respondent did absolutely nothing to pursue the application since the filing of the widow’s answering affidavit in 2018. No reasonable explanation has been proffered for the stagnation of the case. No doubt the applicants have suffered some prejudice as a result of this inordinate delay. It is therefore necessary for this court to express its deprecation of the first respondent’s conduct.  In addition, the court should also issue an appropriate order to prevent the recurrence of this conduct. 

[27]	Having reached  a conclusion that it will not be just and equitable to grant an eviction order against the first respondent at this stage, I also  find it unnecessary to make any findings on the contentious issues raised in this application.

[28]	Accordingly, the order is:

	(1) 	The matter is postponed sine die pending the determination of the 		application launched by the first respondent under case 			number:24678/2018
	
	(2) 	The first respondent is directed to take the necessary steps to 		secure the enrolment the said application within 60 (sixty) days of 		the date of this order;

	(3) 	Should the respondent fail to comply with clause 2 of this order, 		the applicants are authorised to approach this court on the same 		papers duly supplemented for an eviction order.

	(4) 	The first respondent is directed to pay the wasted costs of this 		application.

							MALUNGANA PH 
							Acting Judge of the High Court
APPEARANCES

For the Applicant:		: Mrs. Molope-Madondo
				: Molopo-Madondo Attorneys

For the Respondent 	: Mr. T Mashishi
				: Tsoku F. Mashishi Attorneys