transfer of property - eviction - trespass - Soweto - Johannesburg Magistrate's Court
SERI has applied to rescind and set aside a default judgment in the matter of Chauke v Luvela. Our client, Nowandile Luvela, purchased a house in Soweto from Patrick Chauke. The purchase price was R40 000; with half payable on conclusion of the agreement and half payable on transfer. Our client paid R20 000. However Chauke then began to demand more money to effect transfer. After paying a further R7 500 to Chauke, our client refused to disburse further funds until transfer had been effected.
Chauke then asked our client to sign a “transfer document” which turned out to be a fresh sale agreement, in terms of which our client was bound to pay transfer fees, rates, services and “occupational rental” pending transfer. Luvela was not informed what she was signing.
For seven years, Chauke did not effect transfer to her. Then, in 2005, he sued Luvela for amounts allegedly owing in occupational rental, rates, services and an order for eviction. She did not attend the eviction proceedings and an order was granted in her absence. Thereafter she was evicted, together with her family, but immediately re-occupied her house because she had nowhere else to go. She was then prosecuted for trespass, convicted and sentenced to six months in prison. She served three months and then returned to her home.
SERI stepped in an applied to rescind the eviction order. While the application was pending, the state dropped its charges of trespass against the family after SERI made representations to it. The facts of this case show the inappropriateness of prosecutions for trespass in order to resolve what are essentially civil disputes over property. If necessary, we would represent Luvela at trial on the basis that trespass is not a competent charge where its basis is an essentially civil dispute.
However, on 22 November 2011, SERI's application to rescind the default eviction order granted against Luvela was successful in the Johannesburg Magistrates’ Court. The application was opposed, but neither Chauke nor his legal representatives attended court on the day it was set down for hearing. The Magistrate accordingly granted judgment rescinding the 2006 eviction order with costs. Luvela is now no longer in danger of prosecution for trespass. SERI will proceed to defend the eviction action if it is persisted with.