Tavon Props (Pty) Ltd v Amon Technologies (Pty) Ltd and Others (2023-062827) [2025] ZAGPJHC 35 (28 January 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

 

CASE NO: 2023-062827

DATE OF APPEAL:30/08/2024

 

 

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

 

 

28 January 2025 -------------------

DATE: SIGNATURE

 

 

 

 

 

 

 

 

 

 

 

In the matter between:

 

TAVON PROPS (PTY) LTD

(Registration number: 2022/462761/07) : Applicant

[respondent in the application for leave to appeal]

and

 

 

AMON TECHNOLOGIES (PTY) LTD : First Respondent

OLIVIA NGULUBE : Second Respondent

THEMBELANI NGULUBE : Third Respondent [Applicants in the application for leave to appeal]

CITY OF TSHWANE MUNICIPALITY Fourth Respondent

 

 

 

JUDGMENT

MIA J:

 

[1] The application is for leave to appeal against the whole judgment granted on 4 June 2024, where the court granted an eviction order against the first to third respondents and anyone holding occupation under them. The application for leave to appeal is opposed. I will refer to the parties as they appeared in the application for eviction.

[2] The first to third respondents (the respondents) raised several grounds of appeal. I deal with the salient issues. The first ground relied upon is that the dispute was to be determined in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and was erroneously dealt with in terms of the Prevention of Illegal Eviction and Unlawful Occupation Act 19 of 1998 (PIE) where the property was agricultural land. The second ground relied upon is that the court erred in finding that the report from the fourth respondent was not required to inform the court’s finding that it was just and equitable to grant an eviction order. The respondents asserted that the law had been developed to permit the fourth respondent to include a financial investigation into their means to assist the court in reaching a just and equitable decision before granting an eviction. The court's failure to postpone the matter to obtain a report and its finding that the report was not required in the present matter violates the respondent’s rights in terms of the Constitution, which was the respondent's position and the basis on which the appeal is pursued.

[3] The respondents stated that the court erred in finding they were persons of financial means. Counsel for the respondents argued that the companies referred to were not operating or making a profit, and there was no evidence to support that they were. Moreover, the respondents maintain that the court erred in not considering that their pre-covid position differed from their post-covid position, rendering them vulnerable. The respondents have five children who they state are dependent on them even though some have reached the age of majority. They maintain that the court did not consider this whilst there is no mention that the facts relied upon was not in the respondents opposing affidavit.

[4] Counsel for the respondents also argued that the court erred in not considering the validity of the property sale agreement, which the applicant purchased from a third party and resulted in the applicant pursuing the eviction. While arguing the agreement was not considered, counsel argued that this court improperly considered an agreement pending between the parties before another court. The respondents assert that the agreement between themselves and a third party is pending in the North Gauteng High Court. That dispute was pending when the application for eviction was heard in the South Gauteng High Court. Counsel for the respondent submitted to this court it ought to have referred the eviction application to be determined in the North Gauteng High Court or alternately postponed the matter until the matter in North Gauteng High Court was determined. On the foot of this submission, counsel continued that this court failed to consider why the application for eviction did not proceed in the North Gauteng High Court whilst the respondents had a pending matter. Extraordinarily, counsel also argued that this court entertained the merits of the dispute pending before the North Gauteng High Court. It is not clear, having regard to the judgment, how this conclusion is reached.

[5] The application for leave to appeal was accompanied by an application to adduce further evidence before a Full Court or before the Supreme Court of Appeal.

[6] Counsel for the applicant submitted that the respondents failed to raise the issue that the land was agricultural land as a ground in opposition to the application for eviction and could not do so in their appeal. The respondent also failed to indicate the presence of animals and mentioned this for the first time in the appeal. No assertion indicated that farming activities were conducted on the property. Counsel continued that the respondents did not raise the issue of misjoinder in their opposition; the presence of the assistant on the property was raised for the first time in the appeal.

[7] In further support of the opposition, counsel submitted that the respondents are not occupiers in terms of the Extension of Security of Tenure Act (ESTA) as they did not demonstrate that their right to reside on the land was dependent on the consent of another person or that their maximum income did not exceed R13 625 as provided in section 1(1) of ESTA. This is unlikely counsel submitted where the respondents' children attended an expensive private school. Relying on the decision in City of Johannesburg v Changing Tides [2012] ZASCA 116, 2012(6) SA 294 (SCA), counsel argued that the respondents misconstrued their reliance on the report to be filed by the fourth respondent. This is so as the purpose of the report from the fourth respondent is intended to assist the court as stated by the Court in Changing Tides:

[47] In considering the grant of an eviction order the court is concerned with the plight of those who, as a result of poverty and disadvantage, are unable to make alternative accommodation arrangements themselves and require assistance from the local authority to do so. It is particularly concerned to ensure, so far as possible, that those who face homelessness are provided at least with temporary emergency accommodation.

In considering the application for leave to appeal, including the submissions made by both counsel and the numerous grounds of appeal raised by the respondents, including the application to adduce new evidence, I consider whether another court will make a different decision on the points raised. Specifically, will another court be persuaded by the evidence that the applicants provided sufficient information for the court to conclude that they are impoverished and disadvantaged and require temporary emergency accommodation to be arranged by the fourth respondent? I do not think another court will come to a different conclusion on this ground.

[8] Considering the application to adduce new evidence, the respondents have not satisfied the criteria applicable to adduce new evidence. The evidence the respondent seeks to introduce was previously available. The respondents have shown no exceptional circumstances to warrant the introduction of evidence which was available previously. The blame is placed on their legal representative for failing to prepare the answering affidavit properly. The deponent signed the affidavit. There is no satisfactory explanation why the deponent was satisfied to place an affidavit before the court, which failed to place the factors it now relies upon properly before the court.

[9] The respondent did not demonstrate that the eviction order would result in homelessness. While the previous test was whether another court might make a different decision, the bar has been raised. The respondent must show a measure of certainty that another court will come to a different conclusion than the court whose decision is to be appealed.¹ On the evidence placed before me, I am not persuaded that another court would come to a different decision where the respondents, the directors of companies and linked to alternative addresses failed to demonstrate that the eviction order would result in their homelessness.

[10] The matter pending before the North Gauteng High Court , which was related to an agreement between to the respondents and a third party was not before this court for determination. Counsel appearing for the respondent indicated specifically that the only issue for determination was whether the eviction could be granted in the absence of a report from the fourth respondent.

[11] Even where the court considers counsel for the respondent’s submission on appeal that the land is described as agricultural land, the respondents would have to show they were occupiers in terms of ESTA. This has not been demonstrated. Counsel for the respondent submitted during the application for eviction that the respondent accepted the sale of the property. This allowed for a distinct determination of the eviction, which did not require a consideration of a dispute pending between different parties in the North Gauteng High Court. It may be that a different court may reach a different conclusion on this aspect. For this reason, it may be appropriate that the respondents be granted leave to appeal.

[12] For the above reason, I make the following order:

1. The first to third respondents are granted leave to appeal to the Full Court of this Division with costs to be costs in the appeal.

 

 

 

 

_________________________________________________

S C MIA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

 

 

 

DELIVERED: This judgment was handed down electronically by circulation to the parties’ legal representatives by e‑mail and publication on CaseLines. The date and time for hand-down is deemed to be 10h00 on 28 January 2025.

 

Appearances:

 

On behalf of the applicant : Adv P Strathern SC

Instructed by : Vermaak Marshal Wellbeloved Inc.

Johannesburg

 

 

On behalf of the 1^st to 3^rd respondents : Adv. Manaka

Instructed by : Cornelius JM Attorneys

Johannesburg

 

 

Date of hearing : 30 August 2024

Date of judgment : 28 January 2025