Seven Isipingo households face eviction after two failed sale agreements

The occupants have until December 15 to vacant the premises.

The occupants of seven residential units in Isipingo, Durban, have until December 15 to find alternative accommodation after the Pietermaritzburg High Court ordered their eviction following two failed property sale agreements.

In a judgment delivered on October 15, Judge Robin Mossop ordered the occupants, together with two brothers, Deveraj and Vishnu Naidoo, who had separately agreed to buy the property, to vacate by 4pm on the day.

If they failed to comply, the sheriff was authorised to evict them and anyone claiming a right to occupy the property through them, remove their belongings and restore vacant possession to the registered owner, Angelfish Investments 536 CC.

The dispute arose after two agreements to sell the property fell through, leaving the company as its registered owner while people who had been permitted to occupy its seven residential units remained on the premises.

The first agreement was concluded with Deveraj Naidoo on April 19, 2021, for R2,7-million. He paid a R300,000 deposit, with the remaining R2.4-million payable in installments over 24 months. But Naidoo failed to make the first installment, which was due on May 10, 2021. 

Despite demands from Angelfish Investments, he did not meet his obligations and the agreement was cancelled. He later approached the company to negotiate another sale. This time, however, the company insisted that the purchase price be paid in a single amount rather than in installments.

Naidoo proposed that the property be sold to his brother, Vishnu Naidoo, whom he believed had a better chance of securing a loan from a financial institution.

A second agreement was concluded on June 17, 2023, at a reduced purchase price of R2,25-million. Vishnu Naidoo was required to provide a letter confirming that a financial institution had granted him the necessary loan by July 15, 2023. He failed to produce the letter by the deadline and the second agreement also fell through.

The occupants had come to live in the seven units through one of the brothers and were apparently required to pay rent to them.

There was a dispute over whether rental payments had actually been received, but Mossop said it was “overwhelmingly likely” that one of the brothers had received rental income.

With both sale agreements having failed, Angelfish Investments approached the court to regain possession of the property.

Five occupants, from units 2, 3, 4, 6 and 7, opposed the eviction application. They argued that they had a constitutional right to adequate housing and raised concerns about the difficulty of finding alternative accommodation as some had children.

The occupants also disputed allegations made by the company's representative that the property had fallen into disrepair and had become a “drug dealer’s paradise”. They said they would not allow their children to grow up in an environment where drugs were sold.

Judge Mossop found that the disputes did not address the central question of what legal right the occupants had to remain on the property against the owner's wishes.

While acknowledging the constitutional right of access to adequate housing, he said the law also protected property owners against arbitrary deprivation of their property.

“The stark truth of the matter is that the applicant is under no constitutional duty to provide it to them,” said Mossop.

He added: “The applicant may choose to rent out its property, but it has the right to determine to whom it wishes to let it.”

Mossop acknowledged the occupants' concerns about having to find alternative accommodation and said the court was concerned about the possibility of them being left homeless.

However, he noted that their affidavits indicated that each had some form of income and could use it to obtain alternative accommodation.

Mossop also recognised the economic difficulties of finding housing that was both affordable and conveniently located, describing the process as potentially time-consuming, frustrating and difficult.

He said the occupants would therefore be given a fair period to find suitable alternative accommodation.

“I am accordingly satisfied that none of the respondents have a defence to the applicant’s claim for the restoration of its property to it and that it would therefore be just and equitable to order their eviction,” he said.

The two brothers had argued that they could not be evicted because they did not physically occupy the property.

Mossop rejected the argument, agreeing with an earlier judgment that an eviction order did not depend on the respondents physically occupying the property.