The
applicant herein is the registered owner of an immovable property
commonly known as 425 Dandaro Village. The applicant has owned the
property since April 2004. In this matter, the applicant is seeking
the eviction of the respondent from the premises.
The
respondent is opposed to the granting of the relief being sought.
The
respondent, in seeking to oppose the order being sought has raised a
point in
limine.
He avers that there are many disputes of fact on the papers which
cannot be disposed of without the hearing of oral evidence. He
alleges that he occupies the property with the consent of one
Margaret Kathleen Matthew and her husband. He said that these two had
sold the property to him in February 2004 and that this alleged sale
was an issue before this court in case number HC1454/05.
This
court, on 4 October 2006, did, under that case number, issue out a
judgment in terms of which the respondent was evicted from the
premises. This judgment is however the subject of an appeal to the
Supreme Court. I will therefore not comment on the findings by the
learned judge in that matter.
The
respondent contends, further, that even in these proceedings it is
the said Margaret Matthews and her husband who are seeking to evict
him and his family through the medium of the applicant.
It
is correct that the Matthews have been litigating with the respondent
under other case numbers for his eviction from the house. On 23
November 2006, Margaret Matthews filed an application for leave to
execute pending appeal which was unsuccessful. In his opposing
affidavit to that application, the respondent made the following
averments under oath:
“Para
3(e)(i)
In
my notice of appeal I raised a number of grounds against the
judgment. In essence, I contended that I had offered to buy the
property from the applicant to which the applicant did not act.
3(e)(ii)
In
any case, the applicant had acted prematurely in seeking my eviction
when I was expecting a written agreement to be signed by both
parties.
3(e)(iii)
I
deny that I appealed in order to frustrate the applicant. I raised
the necessary grounds of appeal. I want to protect the
offer
I made to purchase the house.”
It
is clear that whereas in the application before me the respondent
contends that he purchased the house from Mrs Matthews; in the
earlier application, where he was pitted against her, he told the
truth that he had in fact offered to purchase the house but Mrs
Matthews did not, as he put it, “act”.
I
therefore find that there is no dispute of fact on the alleged
purchase of the house by the respondent from Mrs Matthews.
As
to whether or not it is Mrs Matthews and her husband trying to evict
the respondent through the applicant is concerned, this averment has
no merit.
The
applicant is the registered owner of the property as the title deeds
would show. The respondent has not, apart from making a bald averment
as to their alleged involvement in this application, laid any
foundation for his claim about how they are acting and I find no
substance in the allegation.
It
is correct that the respondent assumed occupation through Mrs
Matthews in terms of an agreement of lease. It is not clear in what
capacity the said Mrs Matthews assumed control of the premises and
leased them to the respondent. At the time that the lease agreement
was concluded the property was registered in the name of Wenham
Investments (Pvt) Ltd. The capacity of Mrs Matthews to have concluded
the agreement in the first place was raised by the applicant in these
proceedings. She is not a party before me but the respondent, apart
from stating that her right to enter into the agreement was
recognized by this court, the respondent has not been able to place
me any facts which would confirm the legal capacity for Mrs Matthews
to have leased the property to him.
In
my view, he has not even been able to defend the legality of the
lease agreement that he alleges existed before the incidence of the
applicant on the scene. He has also claimed that he is on the
premises with the consent of Mrs Matthews, which claim I find
untenable as she has been actively seeking his ejectment from the
premises as far back as 2005 as the pleadings will show.
Coming
to the present, the applicant is now the registered owner of the
premises. It is therefore entitled to recover the same unless the
person in occupation is vested with an enforceable right against the
owner. See Chetty
v Naidoo
1974
(3) SA 13…,
where
JANSEN JA stated the following;
“…,.
It may be difficult to define dominium comprehensively (cf.
Johannesburg Municipal Council v Rand Townships Registrar and Others
1910 TS 1314 at 1319) but there can be little doubt (despite some
reservations expressed in
Munsamy
v Gen-gemma
1954 (4) SA 468 (N) at pp 470H-471E) that one of its incidents is the
right to exclusive possession of the res,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever holding it. It is inherent in the
nature of ownership that possession of the res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with some
right enforceable against the owner (eg. a right of retention or a
contractual right). The owner, in instituting a rei
vindicatio,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the res
-
the onus being on the defendant to allege and establish any right to
continue to hold against the owner (cf.
Jeena v Minister of Lands
1955 (2) SA 380 (AD).”
The
applicable action is the rei
vindicatio
which applies for both movables and immovables and it is an action in
rem, The Law of Property – SILBERBERG, 3ed…,.
An
owner who institutes a vindicatory action need allege, and prove, no
more than that he is the owner and that the property is in the
possession of the defendant at the time that the recovery action is
commenced. If the owner does not go beyond proving ownership in the
res, then the defendant has the onus to establish any right to retain
possession of the thing being sought to be recovered.
Thus,
in casu, the respondent can only remain therein if he can establish a
legal basis to do so.
He
has alleged an agreement of lease with Mrs Matthews. Mrs Matthews is
not the registered owner. If his alleged defence is based on an
agreement of lease, such defence would fail unless it was concluded
with the applicant herein or if it had been entered into with the
previous registered owner and was, at the time that the applicant
assumed ownership, still in force. His only recourse would be to
allege an agreement of lease with the applicant.
He
has attached an agreement of lease concluded on 10 January 2004 with
Mrs Matthews. An examination of the Deed of Transfer reveals that
transfer to the applicant was effected on 6 April 2004. He cannot
claim, therefore, to have concluded a lease agreement with the
applicant as it assumed ownership after the lease agreement was
concluded. The respondent has never held an agreement of lease with
the registered owner of the premises in question at any stage. He did
not purchase the property, and, consequently, he has not established
a right to remain on the premises.
The
respondent further contends that he is a statutory tenant.
A
statutory tenant can be protected from eviction as long as he shows
that he is paying rentals.
Apart
from alleging that he is a statutory tenant, the respondent has not
even claimed that he has been paying rentals. In case number
HC7306/06 the respondent claimed that Mrs Matthews had not indicated
how much rental was due to her, and, further, that she had made no
demands for rentals. That constitutes a clear admission, in my view,
that he had not paid rentals. In this application, the respondent has
conveniently left the issue of rentals unsaid.
The
applicant, as part of the order sought, prays that the order not be
suspended in the event that the respondent appeals against this
judgment.
The
respondent has not challenged the prayer for the order to remain
operational even in the event of an appeal being noted. At common
law, the noting of an appeal suspends the operation of the judgment
appealed against. It is trite that the court has the discretion to
grant an applicant leave to execute a judgment pending appeal.
In
Whata
v Whata
1994
(2) ZLR 277 (S)
GUBBAY CJ stated that the principle to be applied by the court
considering an application for leave to execute pending appeal is
what is just and equitable in the circumstances.
The
enquiry would involve the assessment of factors such as the
potentiality of irreparable harm or prejudice being sustained by
either the successful or losing party, and, if by both, the balance
of hardship or convenience; and the prospects of success on appeal,
including whether the appeal is frivolous, vexatious or has been
noted for some indirect purpose such as to gain time to harass the
other party.
The
applicant, in paragraph 12 of the founding affidavit, alluded to the
respondent probably noting an appeal to gain more time in on-going
occupation of the disputed premises. It also opined that an appeal
would have no prospects of success. There was, however, no attempt to
deal with the other factors that must be considered in an application
for leave to execute. I am of the view, therefore, that in the event
that the respondent notes an appeal against this order, the applicant
may, at that stage, lodge and file an application for leave to
execute pending appeal.
In
this regard, I wish to respectfully associate myself with the remarks
of the learned Chief Justice in Whata
v Whata
1994
(2) ZLR 277 (S)
where he stated…,:
“The
need to take account of such factors serves to underscore that it is
contrary to the basic tenets of natural justice for a court to order
that its judgment be operative and not be suspended before giving the
unsuccessful party the right to be heard as to why execution should
be stayed.”
In
the premises, the applicant's claim against the respondent for his
ejectment from the Dandaro house and an order will issue in terms of
the draft. The application succeeds to that extent. The respondent is
ordered to pay the costs of this application.
