Abstract

The applicant, as the registered owner of immovable property in Newlands East, Durban, applied for the eviction of the first and second respondents from the residence on the premises held by the applicant bought from the respondents in 2016. The repondents, on the face of it, as erstwhile tenants who had defaulted on the tenancy agreement have no ius possidendi to justify their continued occupation of the residence and premises.

The respondents, as former tenants, allegedly committed a material breach of contract by failing over a long period of time to pay either the agreed rent due or the municipal services bill as was agreed. The latter obligations, such as for the used electricity, water, sewerage and refuse removal, had allegedly not been paid by them since their occupation of the erf as tenants in December 2016, and the fact that the services have not been cut off is due simply to the fact that they had been paid for regularly by the applicant as registered owner. Notwithstanding demand and later the rightful termination of the tenancy agreement on account of that non-performance and consequent notice that the premises had to be vacated in view of the breach of contract, the respondents simply persisted in their unlawful occupation after nearly seven years. Moreover, their reliance on their supposed lien to bolster their alleged enrichment claim for unspecified so-called improvements made on the premises is most unconvincing.

On the face of it, this should be a clear case where the applicant is entitled to the requested legal aid. The court, however, decided to dismiss the application for the eviction of the respondents with costs, and to set aside the sale agreement entered into between the applicant and the respondents on 22 December 2016 in respect of the erf; since held under title deed number 8647/2017. The court also set aside the subsequent transfer of the above property from the respondents to the applicant, and authorised the registrar of deeds, Pietermaritzburg, to re-register the transfer of the abovementioned property in the names of the respondents.

The judgment not only punishes the registered owner with expropriation without compensation, but also punishes her with an outrageous cost order. Moreover, not a single word in the decision refers to the fact that the consequence of this judgment is to leave the respondents materially unjustly enriched. Not only do they benefit from the recovery of their unburdened right of ownership over an asset that, adjusted for inflation, is now worth more than half a million rand after more than seven years, but not a word is said about the outstanding debt plus interest over several years towards the applicant as a then friendly credit provider that is now likely to remain unsettled. Most of that debt had probably become prescribed by now.