De Beer N.O and Others v Ghulam and Another (4217/2022) [2024] ZAECMKHC 127 (26 November 2024)

De Beer N.O and Others v Ghulam and Another (4217/2022) [2024] ZAECMKHC 127 (26 November 2024)

The court found that the sale agreements were incidental credit agreements, not requiring registration as a credit provider under the National Credit Act. The Trust's cancellation of the agreements was lawful, and the settlement agreement was not void for misrepresentation. However, there is a material dispute of fact regarding whether the first respondent has paid more than 50% of the purchase price for 33 B[...] Street, which affects both the eviction application and the counter-application for transfer. The interests of justice, equity, and fairness require that the eviction application be dismissed and the counter-application be referred to oral evidence to resolve the factual dispute...

Citation
[2024] ZAECMKHC 127
Parties
Applicant: Johan De Beer N.O.; Applicant: Lizl De Beer N.O.; Applicant: Laurence Sahd N.O.; Respondent: Shabbir Ghulam; Respondent: Enoch Mgijima Local Municipality
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
26 November 2024
Case Number
4217/2022
Procedural Posture
Eviction Application / Final Judgment on Application and Referral of Counter Application to Oral Evidence
Outcome
Eviction application dismissed; counter-application referred to oral evidence.
Judges
L Rusi
Legal Topics
Prevention of Illegal Eviction Act, Alienation of Land Act, National Credit Act, Eviction Proceedings, Contractual Novation, Interest Calculation
Land and Property Civil Procedure Prevention of Illegal Eviction Act Alienation of Land Act National Credit Act Eviction Proceedings Contractual Novation Interest Calculation

Case Brief

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Parties

Johan De Beer N.O.

Applicant

Lizl De Beer N.O.

Applicant

Laurence Sahd N.O.

Applicant

Shabbir Ghulam

Respondent

Enoch Mgijima Local Municipality

Respondent

Procedural Posture

Eviction Application / Final Judgment on Application and Referral of Counter Application to Oral Evidence

Legal Issues

  1. 1 Whether the applicants (Trustees) are entitled to evict the first respondent from 33 B[...] Street under PIE.
  2. 2 Whether the first respondent is entitled to transfer of 33 B[...] Street under section 27(1) of the Alienation of Land Act.
  3. 3 Whether the sale agreements and settlement agreement are void due to non-compliance with the National Credit Act and alleged misrepresentation.

Ratio Decidendi

The court found that the sale agreements were incidental credit agreements, not requiring registration as a credit provider under the National Credit Act. The Trust's cancellation of the agreements was lawful, and the settlement agreement was not void for misrepresentation. However, there is a material dispute of fact regarding whether the first respondent has paid more than 50% of the purchase price for 33 B[...] Street, which affects both the eviction application and the counter-application for transfer. The interests of justice, equity, and fairness require that the eviction application be dismissed and the counter-application be referred to oral evidence to resolve the factual dispute...

Court Disposition

Eviction application dismissed; counter-application referred to oral evidence.

Orders

  • The application for eviction of the first respondent from 33 B[...] Street is dismissed with costs.
  • The counter-application is referred to oral evidence on whether the first respondent has paid more than 50% of the purchase price and, if so, whether the Trust must transfer the property.