Botha NO and Another v Mouton and Others (25893/2015) [2016] ZAGPPHC 377 (4 March 2016)

Botha NO and Another v Mouton and Others (25893/2015) [2016] ZAGPPHC 377 (4 March 2016)

The court found that there was no pending application for leave to appeal before the Supreme Court of Appeal, as confirmed by the Registrar's letter, and thus no suspension of legal process. The respondents failed to identify any genuine dispute of fact; their answering affidavit consisted of bare denials without substantive engagement. The purported lease agreement was found to be a contrived document, created to frustrate the sequestration process and prejudicial to creditors, and had been cancelled. The respondents' occupation was therefore unlawful. The court held that the procedural requirements of the PIE Act had been met, including proper service on all parties and the...

Citation
[2016] ZAGPPHC 377
Parties
Applicant: Joachim Hendrik Botha N.O.; Applicant: Nomvuyo Yvonne Seriti N.O.; Respondent: Benjamin Mouton; Respondent: Gertrudia Dorothea Mouton; Respondent: The City of Tshwane Municipality; Respondent: Trakprops 118 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 March 2016
Case Number
25893/2015
Procedural Posture
Urgent Application / Application for Eviction Order Following Sequestration; Opposed Motion
Outcome
Eviction order granted against the first and second respondents and all those holding under them; order executable 30 days after granting; costs awarded jointly and severally against first, second, and fourth respondents.
Judges
SA Thobane
Legal Topics
Eviction, Unlawful Occupation, Pie Act Compliance, Dispute of Fact, Sequestration, Trustees Powers
Land and Property Civil Procedure Eviction Unlawful Occupation Pie Act Compliance Dispute of Fact Sequestration Trustees Powers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Joachim Hendrik Botha N.O.

Applicant

Nomvuyo Yvonne Seriti N.O.

Applicant

Benjamin Mouton

Respondent

Gertrudia Dorothea Mouton

Respondent

The City of Tshwane Municipality

Respondent

Trakprops 118 (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Eviction Order Following Sequestration; Opposed Motion

Legal Issues

  1. 1 Whether there is a pending application for leave to appeal that suspends the eviction process.
  2. 2 Whether the respondents occupy the property lawfully under a lease agreement.
  3. 3 Whether there is a genuine dispute of fact requiring referral to trial.

Ratio Decidendi

The court found that there was no pending application for leave to appeal before the Supreme Court of Appeal, as confirmed by the Registrar's letter, and thus no suspension of legal process. The respondents failed to identify any genuine dispute of fact; their answering affidavit consisted of bare denials without substantive engagement. The purported lease agreement was found to be a contrived document, created to frustrate the sequestration process and prejudicial to creditors, and had been cancelled. The respondents' occupation was therefore unlawful. The court held that the procedural requirements of the PIE Act had been met, including proper service on all parties and the...

Court Disposition

Eviction order granted against the first and second respondents and all those holding under them; order executable 30 days after granting; costs awarded jointly and severally against first, second, and fourth respondents.

Orders

  • The first and second respondent and all those holding under them are ejected from the immovable property situated at Pretoria.
  • The ejectment order shall become effective and executable 30 days after the granting of this order.