Barnard and Another v Henderson and Another (2303/2018) [2018] ZANCHC 78 (2 November 2018)

Barnard and Another v Henderson and Another (2303/2018) [2018] ZANCHC 78 (2 November 2018)

The court found that the applicants are entitled to eviction of the first respondent under section 4(1) read with section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The evidence established that the lease agreement terminated on 31 August 2017, and no valid extension was proven beyond that date. The respondent remained in occupation without paying rent or municipal charges, accumulating substantial arrears. The applicants demonstrated financial hardship, particularly affecting the elderly second applicant, who relies on rental income for her care and accommodation. The respondent's claims regarding repairs and alleged amounts owed were unsupported...

Citation
[2018] ZANCHC 78
Parties
Applicant: Gertruida Botha/Barnard; Applicant: Gertruida Fleming; Respondent: John-Ross Henderson; Respondent: Sol Plaatje Municipality
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
2 November 2018
Case Number
2303/2018
Procedural Posture
Urgent Application / Eviction Application Under PIE Act; Final Order
Outcome
Eviction order granted against the first respondent and all persons occupying under him; costs awarded against the first respondent.
Judges
BM Pakati
Legal Topics
Prevention of Illegal Eviction Act, Unlawful Occupation, Lease Termination, Urgent Eviction, Just and Equitable Relief
Land and Property Civil Procedure Prevention of Illegal Eviction Act Unlawful Occupation Lease Termination Urgent Eviction Just and Equitable Relief

Case Brief

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Parties

Gertruida Botha/Barnard

Applicant

Gertruida Fleming

Applicant

John-Ross Henderson

Respondent

Sol Plaatje Municipality

Respondent

Procedural Posture

Urgent Application / Eviction Application Under PIE Act; Final Order

Legal Issues

  1. 1 Whether the applicants have made out a case for the eviction of the first respondent under section 4(1) read with section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
  2. 2 Whether the requirements for urgent eviction under section 5(1) of the Act have been satisfied.
  3. 3 Whether the respondent is an unlawful occupier and whether it is just and equitable to grant an eviction order.

Ratio Decidendi

The court found that the applicants are entitled to eviction of the first respondent under section 4(1) read with section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The evidence established that the lease agreement terminated on 31 August 2017, and no valid extension was proven beyond that date. The respondent remained in occupation without paying rent or municipal charges, accumulating substantial arrears. The applicants demonstrated financial hardship, particularly affecting the elderly second applicant, who relies on rental income for her care and accommodation. The respondent's claims regarding repairs and alleged amounts owed were unsupported...

Court Disposition

Eviction order granted against the first respondent and all persons occupying under him; costs awarded against the first respondent.

Orders

  • Mr John-Ross Henderson and all persons occupying the immovable property under him are ordered to vacate the property known as Erf [...], Kimberley, held by title deed [...], also known as [...] Constantia Avenue, Royldene, Kimberley, on or before 20 November 2018.
  • In the event that Mr John-Ross Henderson and all persons occupying the immovable property under him fail to adhere to this order, the Sheriff or his Deputy for the district of Kimberley is authorised and ordered to give effect to this order in a manner deemed practical and necessary, and may obtain the assistance of...