Botha N.O. and Another v Kies and Others (40111/2012) [2014] ZAGPPHC 809 (17 October 2014)

Botha N.O. and Another v Kies and Others (40111/2012) [2014] ZAGPPHC 809 (17 October 2014)

The applicants, as trustees of the insolvent estate, are the legal owners of the property and have locus standi to seek eviction. The respondents occupy the property without consent and are therefore unlawful occupiers under the PIE Act. The PIE Act applies to all unlawful occupiers, including those whose possession was previously lawful. The respondents have failed to disclose any relevant circumstances that would justify continued occupation. The continued occupation is to the detriment of the concursus creditorum, as it prevents the sale and distribution of the property to creditors. All procedural requirements for eviction have been met, and the applicants have provided the necessary...

Citation
[2014] ZAGPPHC 809
Parties
Applicant: Deon Marius Botha N.O.; Applicant: Sandra Joan McKenzie N.O.; Respondent: Theodore Frederik Kies; Respondent: Barbara Christina Kies; Respondent: All the other unlawful occupiers residing on and/or occupying Unit 2, SS 279 Milner, also known as 479B Milner Street, Waterkloof, Pretoria, Gauteng; Respondent: The City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 October 2014
Case Number
40111/2012
Procedural Posture
Eviction Application / Judgment
Outcome
Eviction application granted; respondents ordered to vacate property; costs awarded against first and second respondents.
Judges
C Pretorius
Legal Topics
Unlawful Occupation, Eviction, Insolvent Estate, Prevention of Illegal Eviction Act, Locus Standi
Land and Property Civil Procedure Unlawful Occupation Eviction Insolvent Estate Prevention of Illegal Eviction Act Locus Standi

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Parties

Deon Marius Botha N.O.

Applicant

Sandra Joan McKenzie N.O.

Applicant

Theodore Frederik Kies

Respondent

Barbara Christina Kies

Respondent

All the other unlawful occupiers residing on and/or occupying Unit 2, SS 279 Milner, also known as 479B Milner Street, Waterkloof, Pretoria, Gauteng

Respondent

The City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the applicants, as trustees of the insolvent estate, have locus standi to seek eviction of the respondents from the property.
  2. 2 Whether the respondents are unlawful occupiers under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE Act).
  3. 3 Whether the PIE Act applies to the eviction proceedings against the respondents.

Ratio Decidendi

The applicants, as trustees of the insolvent estate, are the legal owners of the property and have locus standi to seek eviction. The respondents occupy the property without consent and are therefore unlawful occupiers under the PIE Act. The PIE Act applies to all unlawful occupiers, including those whose possession was previously lawful. The respondents have failed to disclose any relevant circumstances that would justify continued occupation. The continued occupation is to the detriment of the concursus creditorum, as it prevents the sale and distribution of the property to creditors. All procedural requirements for eviction have been met, and the applicants have provided the necessary...

Court Disposition

Eviction application granted; respondents ordered to vacate property; costs awarded against first and second respondents.

Orders

  • The first, second and third respondents, and all other persons occupying or claiming through them, are ordered to vacate Unit 2, SS 279 Milner, also known as 479B Milner Street, Waterkloof, Pretoria, Gauteng, on or before 31 October 2014 at 17h00.
  • Should the respondents fail to vacate by the deadline, the Sheriff and/or Deputy is authorized to evict them and may obtain assistance from the South African Police Services.