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Van der Westhuizen v Nxiweni and Others (21145/17) [2018] ZAGPJHC 97 (8 May 2018)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the lawand SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case number: 21145/17

Not reportable

Not of interest to other judges

Revised.

8/5/2018

In the matter between: The last of us license key pc free.

GERHARD VAN DER WESTHUIZENApplicant

and

PINKY NXIWENIFirst Respondent

ALL THE UNLAWFULL OCCUPIERS OF SECTIONAL

TITLE UNIT […], WITH SCHEME NAME […]

BETTER KOWN AS […] A.

NEW REDRUTH, ALBERTONSecond Respondent

CITY OF EKURHULENI METROPOLITAN

MUNICIPALITYThird Respondent

JUDGMENT

Molahlehi, J

Introduction

[1]This an application in terms of which the applicant seeks an order evicting the respondent, Ms Nxiweni and those occupying the propertywith her at […] A. New Redruth, Alberton, Johannesburg (the property). The respondents are allegedly occupying theproperty without the consent of the applicant.

Background facts

[2]It is common cause that initially the occupation of the property by the first respondent was with the prior consent of the applicantin that the parties concluded a lease agreement which commenced on 1 October 2015.

[3]In terms of the lease agreement the first respondent had to pay the sum of R6 000.00 deposit and after that pay the sum of R6 600.00per month as the advanced rental. Clause 11 of the lease agreement made the first respondent liable for municipal charges of theproperty.

[4]Failure to make payment of any amount required in terms of the lease agreement would result in a breach of the agreement. In thatevent the first respondent would be given twenty days by the applicant to remedy such a violation, and after that, the applicantwould be entitled to terminate the agreement.

[5]The lease agreement further provided that upon cancellation of the lease as a result of the breach, the first respondent and anyother person occupying the premises through her would be required to immediately vacate the premises and allow the applicant totake unhindered occupation as provided for in clause 24.2 of the lease agreement.

[6]The applicant states in his founding affidavit that the first respondent had breached the lease agreement by not paying the requiredrent, utility charges and deposit which is outstanding in the sum of R131 453.59.

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[7]On 8 January 2016, the first respondent through her erstwhile attorney was placed on terms to remedy the breach by paying the outstandingrental in the amount of R7 365.21. The respondent having allegedly failed to remedy the breach was then issued with the letterof termination of the lease agreement on 19 January 2016. The respondent has refused to vacate the property despite the cancellationof the lease agreement and the demand that she leaves the property.

[8]The application is opposed by the first respondent who represented herself during the hearing before me. She has raised severalpoints in her defence against the application to evict her from the property she raised the following points.

Non-joinder

[9]The respondent contends that the applicant ought to have joined in these proceedings the Estate Agent because she assisted in thesigning of the lease agreement.

[10]The test for non- joinder is set out by the Supreme Court of Appeal in Absa Bank Ltd v Naude NO,[1] in the following terms:

“[10] The test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matterof the litigation which may prejudice the party that has not been joined. In Gordon v Department of Health, Kwazulu-Natal it washeld that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had notbeen joined, then those third parties have a legal interest in the matter and must be joined.” (Footnotes omitted).

[11]In Judicial Service Commission and Another v Cape Bar Council and another[2], the Court held that:

“[12] It has by now become settled law that the joinder of a party is only required as a matter of necessity – as opposed toa matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by thejudgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinderplea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thusbeen held to be a limited one.”

[12]Applying the above test, in the present matter, I am of the view that the point raised by the responden