Court orders eviction of occupiers despite claim of fraudulent transfer

A woman has succeeded in the Johannesburg high court in having occupiers evicted from an Ekurhuleni property she inherited from her father despite claims the property was fraudulently transferred.

The court dismissed the occupiers’ claims as “pure speculation”.

Abram Mathabatha obtained the property in Ekurhuleni in 2009 but died before drawing up a valid will. SA law determines that if people die without a valid will, their property goes to their next of kin, such as children or spouses. The property thus went to his daughter, Tracy Kgwete.

Kgwete discovered the property had occupiers who refused to vacate. In June, she brought an application to begin eviction proceedings but still they refused, claiming concerns with the 2009 transfer of the property to Kgwete’s father.

After hearing argument, acting judge Don Mahon dismissed the occupier’s allegations of the illegitimacy of the 2009 transfer.

“Not only are these allegations difficult to understand,” Mahon said, “but the allegations of fraudulent conduct appear to be based on pure speculation.”

The unspecified number of occupiers, led by one Johannes Makonko, told Mahon that in terms of an earlier oral agreement with Kgwete’s mother, Makonko sold the property for R150,000 and six trucks. In a sworn affidavit, he told Mahon he had received the R150,000.

But Mahon was unmoved. “It is not clear what the relevance of these allegations are as Mr Makonko did not own the property and was not in a position to effect transfer thereof, either to [Kgwete] or to [Kgwete’s] mother or to [Kgwete’s deceased father],” he said.

Mahon also said the occupiers cannot question the legitimacy of 2009 transfer in which they played no part. “If the legitimacy of the [2009] transfer … was to be placed in issue, one would have expected the [occupiers] either to have provided an affidavit by [the original owner who sold it to Kgwete’s father] or to have explained why they were unable to do so.”

The occupiers seem to have anticipated this because they requested to be allowed to call the original owner to give oral testimony. But Mahon says that gets things back to front. “One does not order a referral to evidence on the basis that a dispute of fact might arise during the hearing of oral evidence.” The dispute must exist beforehand, and he found none was properly established.

He noted that the occupiers had R150,000 and, as such, “I am satisfied that they are of sufficient means so as not to be rendered homeless by their eviction.”

He therefore ruled that all the occupiers of the property are evicted and had to vacate the property within 30 calendar days from the granting of the order.

Mahon also ordered the occupiers to pay the legal costs.

moosat@businesslive.co.za