Diamond Hill Trading 99 BK v Soet and Others (1752/2011) [2012] ZAFSHC 82 (26 April 2012)

Diamond Hill Trading 99 BK v Soet and Others (1752/2011) [2012] ZAFSHC 82 (26 April 2012)

The court found that the respondents, in their personal capacities, resided on the property with the consent of the previous owner (the trustees of the Thusong Trust), and such consent is binding on the applicant as successor in title under section 24 of ESTA. The respondents fall within the definition of 'occupier' under ESTA and are therefore excluded from the definition of 'unlawful occupier' under PIE. The applicant was obliged to follow the eviction procedure prescribed by ESTA, not PIE. The High Court does not have jurisdiction to hear eviction proceedings under ESTA unless all parties consent in advance, which did not occur in this case. Consequently, the application must be...

Citation
[2012] ZAFSHC 82
Parties
Applicant: Diamond Hill Trading 99 BK; Respondent: Piet Soet; Respondent: Monnadule Johannes Matina; Respondent: Mzemene Isaak Ntholeng; Respondent: Motshedisi Lenah Soet; Respondent: Mamokone Sana Reit; Respondent: Kgosimang Lucas Reit; Respondent: Modisenyane Simon Sekopa; Respondent: Seapehi Dinah Ntholeng; Respondent: Kalodi Danie Kaizer; Respondent: Bonakele Koos Reit; Respondent: Mapitso Elisa Jeloa; Respondent: Setori Emily Sekopa; Respondent: A group of unidentified occupiers on the farm Uitkijk, District Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 April 2012
Case Number
1752/2011
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application dismissed with costs.
Judges
Van Zyl, R
Legal Topics
Prevention of Illegal Eviction Act, Extension of Security of Tenure Act, Jurisdiction, Occupier Definition, Trust Law
Land and Property Civil Procedure Prevention of Illegal Eviction Act Extension of Security of Tenure Act Jurisdiction Occupier Definition Trust Law

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Parties

Diamond Hill Trading 99 BK

Applicant

Piet Soet

Respondent

Monnadule Johannes Matina

Respondent

Mzemene Isaak Ntholeng

Respondent

Motshedisi Lenah Soet

Respondent

Mamokone Sana Reit

Respondent

Kgosimang Lucas Reit

Respondent

Modisenyane Simon Sekopa

Respondent

Seapehi Dinah Ntholeng

Respondent

Kalodi Danie Kaizer

Respondent

Bonakele Koos Reit

Respondent

Mapitso Elisa Jeloa

Respondent

Setori Emily Sekopa

Respondent

A group of unidentified occupiers on the farm Uitkijk, District Bloemfontein

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the respondents are unlawful occupiers under PIE or occupiers under ESTA.
  2. 2 Whether the applicant followed the correct statutory procedure for eviction.
  3. 3 Whether the High Court has jurisdiction to hear the matter under ESTA.

Ratio Decidendi

The court found that the respondents, in their personal capacities, resided on the property with the consent of the previous owner (the trustees of the Thusong Trust), and such consent is binding on the applicant as successor in title under section 24 of ESTA. The respondents fall within the definition of 'occupier' under ESTA and are therefore excluded from the definition of 'unlawful occupier' under PIE. The applicant was obliged to follow the eviction procedure prescribed by ESTA, not PIE. The High Court does not have jurisdiction to hear eviction proceedings under ESTA unless all parties consent in advance, which did not occur in this case. Consequently, the application must be...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the application.