Creighton v Van Heerden (4945/2006) [2006] ZAGPHC 236 (29 August 2006)

Creighton v Van Heerden (4945/2006) [2006] ZAGPHC 236 (29 August 2006)

The applicant established ownership of the property and the respondent's unlawful occupation. The agreement of sale was conditional on simultaneous transfer of properties by 31 May 2005, which did not occur, and the respondent failed to pay the balance of the purchase price despite demand. The respondent's reliance on the agreement of sale is misplaced as the agreement no longer serves as a valid basis for occupation. The respondent did not disclose any circumstances justifying continued occupation. The applicant is entitled to an eviction order. However, there is a bona fide dispute regarding the validity of the cancellation and entitlement to retain amounts paid, which must be referred...

Citation
[2006] ZAGPHC 236
Parties
Applicant: Arthur William Creighton; Respondent: Talita Van Heerden
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 August 2006
Case Number
4945/2006
Procedural Posture
Urgent Application / Part B: Application for Eviction Under Section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act
Outcome
Eviction order granted against the respondent; costs awarded to the applicant; issues of cancellation validity and retention of amounts paid referred to trial.
Judges
E M Patel
Legal Topics
Prevention of Illegal Eviction Act, Rei Vindicatio, Contract Cancellation, Unlawful Occupation, Liquidated Damages
Land and Property Civil Procedure Prevention of Illegal Eviction Act Rei Vindicatio Contract Cancellation Unlawful Occupation Liquidated Damages

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Parties

Arthur William Creighton

Applicant

Talita Van Heerden

Respondent

Procedural Posture

Urgent Application / Part B: Application for Eviction Under Section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act

Legal Issues

  1. 1 Whether the applicant is entitled to evict the respondent from the property under section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act.
  2. 2 Whether the agreement of sale was validly cancelled by the applicant.
  3. 3 Whether the respondent has any right to continue occupying the property.

Ratio Decidendi

The applicant established ownership of the property and the respondent's unlawful occupation. The agreement of sale was conditional on simultaneous transfer of properties by 31 May 2005, which did not occur, and the respondent failed to pay the balance of the purchase price despite demand. The respondent's reliance on the agreement of sale is misplaced as the agreement no longer serves as a valid basis for occupation. The respondent did not disclose any circumstances justifying continued occupation. The applicant is entitled to an eviction order. However, there is a bona fide dispute regarding the validity of the cancellation and entitlement to retain amounts paid, which must be referred...

Court Disposition

Eviction order granted against the respondent; costs awarded to the applicant; issues of cancellation validity and retention of amounts paid referred to trial.

Orders

  • The respondent and all persons occupying the applicant's property at Erf 911 Warmbaths Extension 5 are evicted and must vacate the property on or before 30 September 2006.
  • The respondent is ordered to pay the applicant's taxed costs of the argument for the eviction order sought in prayer 1 of Part B.