Fikela and Others v Minister of Safety and Security and Another (228/09) [2016] ZAECMHC 40 (22 September 2016)

Fikela and Others v Minister of Safety and Security and Another (228/09) [2016] ZAECMHC 40 (22 September 2016)

The appeal succeeded because the respondent failed to establish the jurisdictional requirements for eviction under PIE. The court a quo erred by not properly applying the Plascon-Evans rule to the disputed facts in the affidavits. The appellants' version regarding the applicable housing policy and lack of notice to vacate was not bald or uncreditworthy and should have been accepted. The respondent did not provide sufficient evidence that the amended housing policy applied to the appellants or that proper notice to vacate was given. Consequently, the respondent was not entitled to final relief, and the application for eviction should have been dismissed.

Citation
[2016] ZAECMHC 40
Parties
Appellant: Bongiwe Philda Fikela & Others; Respondent: Minister of Safety and Security; Respondent: King Sabata Dalindyebo Municipality
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
22 September 2016
Case Number
228/09
Procedural Posture
Civil Appeal / Appeal From Order of Eviction Granted by Court a Quo
Outcome
Appeal upheld; eviction order set aside; application against appellants dismissed with costs.
Judges
RWN Brooks, J Smith, M Notununu
Legal Topics
Prevention of Illegal Eviction Act, Motion Proceedings, Plascon Evans Rule, Housing Policy, Eviction, Costs Order
Land and Property Civil Procedure Prevention of Illegal Eviction Act Motion Proceedings Plascon Evans Rule Housing Policy Eviction Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Bongiwe Philda Fikela & Others

Appellant

Minister of Safety and Security

Respondent

King Sabata Dalindyebo Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Eviction Granted by Court a Quo

Legal Issues

  1. 1 Whether the respondent established the jurisdictional requirements for eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
  2. 2 Whether the court a quo correctly applied the Plascon-Evans rule in motion proceedings.
  3. 3 Whether the appellants' occupation was governed by the housing policy relied upon by the respondent.

Ratio Decidendi

The appeal succeeded because the respondent failed to establish the jurisdictional requirements for eviction under PIE. The court a quo erred by not properly applying the Plascon-Evans rule to the disputed facts in the affidavits. The appellants' version regarding the applicable housing policy and lack of notice to vacate was not bald or uncreditworthy and should have been accepted. The respondent did not provide sufficient evidence that the amended housing policy applied to the appellants or that proper notice to vacate was given. Consequently, the respondent was not entitled to final relief, and the application for eviction should have been dismissed.

Court Disposition

Appeal upheld; eviction order set aside; application against appellants dismissed with costs.

Orders

  • The appeal succeeds, with costs.
  • The judgment and order of the court a quo dated 11 February 2014 are set aside and replaced with: 'The application against the twenty-six respondents is dismissed with costs.'