In a recent decision of the Gauteng North High Court in a purported Pie eviction, it was held that the application was fatal due to non-joinder of interested parties. The decision is unreported. The facts, and the merits have relevance for other reasons as well. These are as follows :
Mr Grobler, a farmer in the Ermelo district, bought land which he leased for farming purposes. The Applicants alleged that the sale and subsequent lease agreements had prescribed and lodged an application in terms of the Pie Act for the eviction of mr Grobler from the land. The transfer of the land took 4 years which is due to the fact that various interested parties (the seller comprises various individuals who are parties to a fideicommissum) passed away along the line. Each time new transfer documents had to be drawn and the appointment of executors caused delays. We argued that nothing turns on the defence of prescription, for various reasons, not relevant here.
It was also argued (much to my amasement) that the former seller of the land who had bought the land in terms of a valid deed of sale, could not sell the land to mr Grobler because “only an owner can sell property”. This is obviously not the case. The same principle as in the case of the right of a lessor to let, applies : the lessor or seller need not have title; the only requirement is that he or she must be able to give vacua possessio. You can sell the Eiffel Tower! The principle is so trite that it baffles the brain how experienced practitioners still get it wrong. This is how trite it is : see Grotius 3.19.5 and Van der Keessel’s note thereon (Praelectiones vol 5 p 21); Voet Commentarius 19.2.3; Pothier par 20; Frye’s (Pty) Ltd v Ries 1957 3 SA 575 (A) 581.
Two parties were not joined, the reason being that they “could not be found” and in any event “would not understand the documents”. The court held that these arguments are unfounded. An interested party must be joined. Failure to do so is fatal. The application was accordingly dismissed on that basis and the merits were not dealt with.
The Applicants also argued that the Pie Act applied. We are of the respectful view that the application was also fatally flawed on this basis as mr Grobler (Respondent) does not and never has resided on the land in question. The Pie Act is limited to evictions from residential property or land utilized for residential purposes. See Ndlovo’s matter 2003(1) 113(SCA). Practitioners should acquaint themselves with the basic principles underlying Pie because failure to do so can result in grave consequences for clients of which wasted costs are not the least.