Albertse N.O and Others v Nelesco 91 (Pty) Ltd (1096/2022) [2023] ZAFSHC 5 (13 January 2023)

Albertse N.O and Others v Nelesco 91 (Pty) Ltd (1096/2022) [2023] ZAFSHC 5 (13 January 2023)

The court found that Ancor Trust has a direct and substantial interest in the proceedings due to its claim over a portion of the property, and thus should have been joined as a party. The Applicants failed to establish locus standi in their founding affidavit, which is a prerequisite in motion proceedings. There were genuine disputes of fact, particularly regarding the alleged new tenant and the circumstances of the lease termination, which could not be resolved on affidavit. The court exercised its discretion under Rule 6(5)(g) to refer the matter to trial, with the application papers to stand as pleadings. The Applicants were ordered to pay the costs of the points in limine and the...

Citation
[2023] ZAFSHC 5
Parties
Applicant: Levina Francina Albertse N.O; Applicant: Nelmari Albertse Oosthysen N.O; Applicant: Jaco Albertse N.O; Respondent: Nelesco 91 (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 January 2023
Case Number
1096/2022
Procedural Posture
Motion Application / Referral to Trial After Opposed Motion and Points in Limine
Outcome
Application referred to trial; costs awarded against Applicants for points in limine and application.
Judges
Chesiwe
Legal Topics
Joinder of Parties, Locus Standi, Lease Agreement Termination, Eviction, Dispute of Fact, Motion Proceedings
Civil Procedure Land and Property Joinder of Parties Locus Standi Lease Agreement Termination Eviction Dispute of Fact Motion Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Levina Francina Albertse N.O

Applicant

Nelmari Albertse Oosthysen N.O

Applicant

Jaco Albertse N.O

Applicant

Nelesco 91 (Pty) Ltd

Respondent

Procedural Posture

Motion Application / Referral to Trial After Opposed Motion and Points in Limine

Legal Issues

  1. 1 Whether the Lease Agreement was validly terminated on 31 January 2022.
  2. 2 Whether the Respondent's occupation of the property after 31 January 2022 is unlawful.
  3. 3 Whether the Applicants established locus standi in their founding affidavit.

Ratio Decidendi

The court found that Ancor Trust has a direct and substantial interest in the proceedings due to its claim over a portion of the property, and thus should have been joined as a party. The Applicants failed to establish locus standi in their founding affidavit, which is a prerequisite in motion proceedings. There were genuine disputes of fact, particularly regarding the alleged new tenant and the circumstances of the lease termination, which could not be resolved on affidavit. The court exercised its discretion under Rule 6(5)(g) to refer the matter to trial, with the application papers to stand as pleadings. The Applicants were ordered to pay the costs of the points in limine and the...

Court Disposition

Application referred to trial; costs awarded against Applicants for points in limine and application.

Orders

  • The Applicants’ application under Case Number: 1096/2022 is referred to trial.
  • The Notice of Motion shall stand as the Applicants’ particulars of claim.