Berger v Unknown Individuals trespassing and-or attempting to invade and-or settle on the immovable property known as the remaining portion 331 of the farm Waterkloof 305 JQ (M501/16) [2017] ZANWHC 70 (27 October 2017)

Berger v Unknown Individuals trespassing and-or attempting to invade and-or settle on the immovable property known as the remaining portion 331 of the farm Waterkloof 305 JQ (M501/16) [2017] ZANWHC 70 (27 October 2017)

The court found that the Rule Nisi was properly granted to prevent unlawful land invasion and only uninhabited structures were demolished, as confirmed by the Sheriff's return. The respondents failed to establish that they were lawful occupiers under ESTA or that the Sheriff acted unlawfully in executing the order. The deponent to the founding affidavit had sufficient authority to institute proceedings on behalf of the applicant. The rescission application was dismissed as the requirements under Rule 42(1)(a) were not met, and the High Court lacked jurisdiction to entertain ESTA-related claims absent consent from all parties. The relief sought and granted was appropriate under the...

Citation
[2017] ZANWHC 70
Parties
Applicant: Esme Berger; Respondent: Unknown Individuals trespassing and/or attempting to invade and/or settle on the immovable property known as the remaining portion 331 of the farm Waterkloof 305 J.Q.; Respondent: Station Commander: Rustenburg Police Station; Respondent: Minister of Police; Appellant: Abel Molefe and 38 Others; Respondent: Johannes Hendrik Lubbe De Klerk; Respondent: Gustav du Toit Heuer; Respondent: Sheriff of the High Court Rustenburg; Respondent: Provincial Commissioner SAPS N.W.; Respondent: Minister of Police of the Republic of South Africa
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
27 October 2017
Case Number
M501/16
Procedural Posture
Urgent Application / Confirmation of Rule Nisi and Rescission Application
Outcome
Rule Nisi confirmed; rescission application dismissed; costs awarded against respondents.
Judges
A.M. Kgoele
Legal Topics
Interdict, Eviction, Extension of Security of Tenure Act, Rule Nisi, Authority to Institute Proceedings
Land and Property Civil Procedure Interdict Eviction Extension of Security of Tenure Act Rule Nisi Authority to Institute Proceedings

Case Brief

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Parties

Esme Berger

Applicant

Unknown Individuals trespassing and/or attempting to invade and/or settle on the immovable property known as the remaining portion 331 of the farm Waterkloof 305 J.Q.

Respondent

Station Commander: Rustenburg Police Station

Respondent

Minister of Police

Respondent

Abel Molefe and 38 Others

Appellant

Johannes Hendrik Lubbe De Klerk

Respondent

Gustav du Toit Heuer

Respondent

Sheriff of the High Court Rustenburg

Respondent

Provincial Commissioner SAPS N.W.

Respondent

Minister of Police of the Republic of South Africa

Respondent

Procedural Posture

Urgent Application / Confirmation of Rule Nisi and Rescission Application

Legal Issues

  1. 1 Whether the Rule Nisi granted to interdict land invasion should be confirmed.
  2. 2 Whether the respondents were unlawfully evicted from the property in violation of the Extension of Security of Tenure Act (ESTA).
  3. 3 Whether the deponent to the founding affidavit had authority to institute proceedings on behalf of the applicant.

Ratio Decidendi

The court found that the Rule Nisi was properly granted to prevent unlawful land invasion and only uninhabited structures were demolished, as confirmed by the Sheriff's return. The respondents failed to establish that they were lawful occupiers under ESTA or that the Sheriff acted unlawfully in executing the order. The deponent to the founding affidavit had sufficient authority to institute proceedings on behalf of the applicant. The rescission application was dismissed as the requirements under Rule 42(1)(a) were not met, and the High Court lacked jurisdiction to entertain ESTA-related claims absent consent from all parties. The relief sought and granted was appropriate under the...

Court Disposition

Rule Nisi confirmed; rescission application dismissed; costs awarded against respondents.

Orders

  • The Rule Nisi granted on 3 October 2016 is confirmed.
  • The application for rescission of the Rule Nisi and ancillary reliefs is dismissed.