Alcock and Another v Erasmus and Another (36480/2014) [2016] ZAGPPHC 492 (29 June 2016)

Alcock and Another v Erasmus and Another (36480/2014) [2016] ZAGPPHC 492 (29 June 2016)

The court found that the first respondent does not qualify as an occupier under ESTA, as he does not occupy the property with the applicants' consent nor is he a vulnerable occupier. The PIE Act applies to the eviction proceedings. The res judicata argument fails because the previous postponement sine die did not constitute a final adjudication. There is no pending appeal or application for leave to appeal that would suspend the eviction proceedings. The applicants have complied with all statutory requirements under the PIE Act, and no special equities exist to prevent eviction. The applicants are entitled to the use and enjoyment of their property, and the first respondent must vacate.

Citation
[2016] ZAGPPHC 492
Parties
Applicant: Anthony Graham Alcock; Applicant: Susan Karen Alcock; Respondent: Andre Carl Erasmus; Respondent: Kungwini Local Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 June 2016
Case Number
36480/2014
Procedural Posture
Eviction Application / Final Judgment
Outcome
Eviction application granted; first respondent and all persons holding under him ordered to vacate the property by 29 July 2016; costs awarded against first respondent.
Judges
Canca
Legal Topics
Prevention of Illegal Eviction Act, Extension of Security of Tenure Act, Res Judicata, Appeal Suspension, Unlawful Occupation
Land and Property Civil Procedure Prevention of Illegal Eviction Act Extension of Security of Tenure Act Res Judicata Appeal Suspension Unlawful Occupation

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Parties

Anthony Graham Alcock

Applicant

Susan Karen Alcock

Applicant

Andre Carl Erasmus

Respondent

Kungwini Local Municipality

Respondent

Procedural Posture

Eviction Application / Final Judgment

Legal Issues

  1. 1 Whether the first respondent is an occupier as defined under ESTA and thus protected from eviction under that Act.
  2. 2 Whether the PIE Act applies to the eviction proceedings in respect of the property.
  3. 3 Whether the matter is res judicata due to previous postponement sine die.

Ratio Decidendi

The court found that the first respondent does not qualify as an occupier under ESTA, as he does not occupy the property with the applicants' consent nor is he a vulnerable occupier. The PIE Act applies to the eviction proceedings. The res judicata argument fails because the previous postponement sine die did not constitute a final adjudication. There is no pending appeal or application for leave to appeal that would suspend the eviction proceedings. The applicants have complied with all statutory requirements under the PIE Act, and no special equities exist to prevent eviction. The applicants are entitled to the use and enjoyment of their property, and the first respondent must vacate.

Court Disposition

Eviction application granted; first respondent and all persons holding under him ordered to vacate the property by 29 July 2016; costs awarded against first respondent.

Orders

  • Andre Carl Erasmus and all persons holding under him are ordered to vacate the property situated at Portion 457 of Portion 57 of the farm Zwavelpoort, Registration Division JR, Gauteng Province, measuring 1,0005 hectares, held by Deed of Transfer T23737/2014, on or by 29 July 2016.
  • Should Andre Carl Erasmus and all persons holding under him fail or refuse to vacate the property by 29 July 2016, the Sheriff for the District or his Deputy is authorised to evict them from the property on or after 1 August 2016.