Absa Bank bpk v Murray and Another (8946/02) [2003] ZAWCHC 48; 2004 (1) BCLR 10 (C); 2004 (2) SA 15 (C) (18 September 2003)

Absa Bank bpk v Murray and Another (8946/02) [2003] ZAWCHC 48; 2004 (1) BCLR 10 (C); 2004 (2) SA 15 (C) (18 September 2003)

The court held that the provisions of PIE require a substantive enquiry into whether eviction is just and equitable, considering all relevant circumstances, including the rights and needs of the occupiers and the proprietary rights of the owner. The sale of the property by the mortgagee under the Insolvency Act was...

Source-derived case information.

Citation
[2003] ZAWCHC 48
Parties
Applicant: Absa Bank bpk; Respondent: P J J Murray; Respondent: D D Murray
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 September 2003
Case Number
8946/02
Procedural Posture
Urgent Application / Application for Eviction Order Under PIE After Sale of Property by Mortgagee
Outcome
Eviction order granted against the respondents, with execution suspended until 1 October 2003. Application for postponement refused. No order as to costs.
Judges
Binns-Ward
Legal Topics
Prevention of Illegal Eviction Act, Eviction Proceedings, Just and Equitable Standard, Constitutional Property Rights, Onus in Eviction, Municipal Role in Eviction
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Eviction Proceedings Just and Equitable Standard Constitutional Property Rights Onus in Eviction +1 more

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Summary, issues, holding and outcome

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Parties

Absa Bank bpk

Applicant

P J J Murray

Respondent

D D Murray

Respondent

Procedural Posture

Urgent Application / Application for Eviction Order Under PIE After Sale of Property by Mortgagee

Legal Issues

  1. 1 Whether it is just and equitable to grant an eviction order against the respondents under section 4(7) and 4(8) of PIE.
  2. 2 Whether the sale of the property by the mortgagee under the Insolvency Act constitutes a 'sale in execution' for purposes of PIE.
  3. 3 What circumstances must be considered in balancing the rights of the owner and the unlawful occupiers under PIE.

Ratio Decidendi

The court held that the provisions of PIE require a substantive enquiry into whether eviction is just and equitable, considering all relevant circumstances, including the rights and needs of the occupiers and the proprietary rights of the owner. The sale of the property by the mortgagee under the Insolvency Act was not a 'sale in execution' as contemplated by PIE, so the full range of relevant circumstances applied. The respondents’ circumstances, while sympathetic, did not justify overriding the owner’s right to possession, especially given the respondents’ ability to provide for themselves and the extended period they had already occupied the property without compensation. The court...

Court Disposition

Eviction order granted against the respondents, with execution suspended until 1 October 2003. Application for postponement refused. No order as to costs.

Orders

  • The respondents’ application for postponement is refused.
  • An order is granted for the eviction of first and second respondents and all persons occupying under them from erf 3523, Westfleur, also known as 3 Wielewaal Crescent, Robinvale, Atlantis.