Elmo-York N.O v Van Dyk and Another (67219/2019) [2020] ZAGPPHC 570 (22 September 2020)

Elmo-York N.O v Van Dyk and Another (67219/2019) [2020] ZAGPPHC 570 (22 September 2020)

The court found that the first respondent failed to discharge the onus of proving a right to possession of the property. The covering mortgage bond and unsigned deed of sale did not constitute a valid deed of alienation under section 2(1) of the Alienation of Land Act, as they were not signed by both parties and did not contain all material terms. The respondent's allegations regarding COVID-19 related hardship and lack of alternative accommodation were unsubstantiated and lacked supporting evidence. The requirements of PIE were satisfied, and no valid defence to eviction was raised. The court determined that it would not be just or equitable to suspend or stay the eviction order under...

Citation
[2020] ZAGPPHC 570
Parties
Applicant: Elmo-York Stuart N.O.; Respondent: Jan George Van Dyk; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 September 2020
Case Number
67219/2019
Procedural Posture
Eviction Application / Final Determination of Part B (eviction Relief) After Interim Order in Part a
Outcome
Eviction granted; first respondent and all those occupying through him ordered to vacate the property by 31 October 2020. Failing that, the Sheriff is authorised to evict. Punitive costs awarded against first respondent.
Judges
GW Girdwood
Legal Topics
Alienation of Land Act, Eviction Under Pie, Vindicatory Claim, Formalities of Sale, Just and Equitable Eviction
Land and Property Civil Procedure Alienation of Land Act Eviction Under Pie Vindicatory Claim Formalities of Sale Just and Equitable Eviction

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 13 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Elmo-York Stuart N.O.

Applicant

Jan George Van Dyk

Respondent

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Eviction Application / Final Determination of Part B (eviction Relief) After Interim Order in Part a

Legal Issues

  1. 1 Whether the first respondent has discharged the onus of proving a right to possession of the property.
  2. 2 Whether the covering mortgage bond and unsigned deed of sale constitute a valid deed of alienation under section 2(1) of the Alienation of Land Act.
  3. 3 Whether the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) have been satisfied for eviction.

Ratio Decidendi

The court found that the first respondent failed to discharge the onus of proving a right to possession of the property. The covering mortgage bond and unsigned deed of sale did not constitute a valid deed of alienation under section 2(1) of the Alienation of Land Act, as they were not signed by both parties and did not contain all material terms. The respondent's allegations regarding COVID-19 related hardship and lack of alternative accommodation were unsubstantiated and lacked supporting evidence. The requirements of PIE were satisfied, and no valid defence to eviction was raised. The court determined that it would not be just or equitable to suspend or stay the eviction order under...

Court Disposition

Eviction granted; first respondent and all those occupying through him ordered to vacate the property by 31 October 2020. Failing that, the Sheriff is authorised to evict. Punitive costs awarded against first respondent.

Orders

  • The late filing of the first respondent's answering affidavit is condoned.
  • The first respondent and all those occupying through him are ordered to vacate Erf 1686 Montana Park, Extension 29 Township, 726 Norman Street, Montana Park, Pretoria, by 31 October 2020.