Andreini and Others v Mbunu and Others (28918/2019) [2021] ZAGPJHC 685 (17 August 2021)

Andreini and Others v Mbunu and Others (28918/2019) [2021] ZAGPJHC 685 (17 August 2021)

The applicants, as registered owners, lawfully cancelled the lease agreements after the respondents breached by failing to pay rent and utilities. The respondents’ opposition is based on bare denials and unsupported claims regarding refunds and jurisdiction. The jurisdiction clause does not preclude the High Court’s competence. The respondents have no bona fide defence and remain in unlawful occupation. The court considered the personal circumstances of the respondents, including income, dependents, and alleged disabilities, and found they would not be rendered homeless. The applicants complied with PIE and are suffering ongoing financial prejudice. The court determined a just and...

Citation
[2021] ZAGPJHC 685
Parties
Applicant: Andrea Pieter Andreini; Applicant: Andreina Giovanna Scaramal; Applicant: NAMM (Pty) Ltd; Respondent: Kalula Mbunu; Respondent: Mkhululi Dube; Respondent: Lillian Ndlovu; Respondent: Liznet Sibonile Linda; Respondent: All Other Occupants of Erf [….]; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 August 2021
Case Number
28918/2019
Procedural Posture
Urgent Application / Eviction Application Under Pie; Opposed Motion Proceedings
Outcome
Eviction order granted against the first to fifth respondents and all persons occupying through them, with execution stayed until the end of adjusted alert level 3. Costs awarded against respondents.
Judges
F Bezuidenhout
Legal Topics
Prevention of Illegal Eviction Act, Lease Cancellation, Jurisdiction Clause, Just and Equitable Eviction, Covid19 Regulations, Municipal Arrears
Land and Property Civil Procedure Prevention of Illegal Eviction Act Lease Cancellation Jurisdiction Clause Just and Equitable Eviction Covid19 Regulations Municipal Arrears

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Parties

Andrea Pieter Andreini

Applicant

Andreina Giovanna Scaramal

Applicant

NAMM (Pty) Ltd

Applicant

Kalula Mbunu

Respondent

Mkhululi Dube

Respondent

Lillian Ndlovu

Respondent

Liznet Sibonile Linda

Respondent

All Other Occupants of Erf [….]

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Eviction Application Under Pie; Opposed Motion Proceedings

Legal Issues

  1. 1 Whether the eviction application should have been instituted in the Magistrate’s Court due to a jurisdiction clause in the lease agreement.
  2. 2 Whether the applicants lawfully cancelled the lease agreements.
  3. 3 Whether the respondents are entitled to remain in occupation due to alleged payments of municipal charges and lack of refund.

Ratio Decidendi

The applicants, as registered owners, lawfully cancelled the lease agreements after the respondents breached by failing to pay rent and utilities. The respondents’ opposition is based on bare denials and unsupported claims regarding refunds and jurisdiction. The jurisdiction clause does not preclude the High Court’s competence. The respondents have no bona fide defence and remain in unlawful occupation. The court considered the personal circumstances of the respondents, including income, dependents, and alleged disabilities, and found they would not be rendered homeless. The applicants complied with PIE and are suffering ongoing financial prejudice. The court determined a just and...

Court Disposition

Eviction order granted against the first to fifth respondents and all persons occupying through them, with execution stayed until the end of adjusted alert level 3. Costs awarded against respondents.

Orders

  • The first to fifth respondents and any person occupying through them the property shall vacate within 30 calendar days from service of this order.
  • On condition that adjusted level 3 under the Disaster Management Act regulations has ended, the respondents and all those occupying through them are ordered to vacate within fourteen days.