Fisher N.O and Another v Mwaba and Another (2020/ 25663) [2021] ZAGPJHC 546 (11 October 2021)

Fisher N.O and Another v Mwaba and Another (2020/ 25663) [2021] ZAGPJHC 546 (11 October 2021)

The court found that the respondent was in unlawful occupation of the property. Even if the lease agreement was accepted as valid, the respondent repudiated it by failing to pay rental, and the liquidators accepted this repudiation. The lease agreement was deemed simulated and contrived to prolong unlawful occupation. The respondent provided no evidence of vulnerability or risk of homelessness, nor did he identify any other persons who would be affected by eviction. Applying section 4(7) and (8) of PIE and the Constitutional Court's guidance in Occupiers, Berea v De Wet NO, the court held that eviction was just and equitable. The respondent's opposition was unnecessary, and costs were...

Citation
[2021] ZAGPJHC 546
Parties
Applicant: Jaques Andre Fisher NO; Applicant: Maryke Landman NO; Respondent: Emmamuel Chola Mwaba; Respondent: City of Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 October 2021
Case Number
2020/ 25663
Procedural Posture
Eviction Application / Opposed Motion for Eviction Under PIE
Outcome
Eviction granted against the first respondent and all those occupying through or under him; costs awarded against the first respondent.
Judges
Molahlehi
Legal Topics
Prevention of Eviction From Unlawful Occupation of Land Act, Lease Agreement Validity, Repudiation, Just and Equitable Eviction
Land and Property Civil Procedure Prevention of Eviction From Unlawful Occupation of Land Act Lease Agreement Validity Repudiation Just and Equitable Eviction

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Parties

Jaques Andre Fisher NO

Applicant

Maryke Landman NO

Applicant

Emmamuel Chola Mwaba

Respondent

City of Johannesburg

Respondent

Procedural Posture

Eviction Application / Opposed Motion for Eviction Under PIE

Legal Issues

  1. 1 Whether the respondent is in unlawful occupation of the property.
  2. 2 Whether the lease agreement relied upon by the respondent is valid or simulated.
  3. 3 Whether it is just and equitable to grant an eviction order under section 4(7) and (8) of PIE.

Ratio Decidendi

The court found that the respondent was in unlawful occupation of the property. Even if the lease agreement was accepted as valid, the respondent repudiated it by failing to pay rental, and the liquidators accepted this repudiation. The lease agreement was deemed simulated and contrived to prolong unlawful occupation. The respondent provided no evidence of vulnerability or risk of homelessness, nor did he identify any other persons who would be affected by eviction. Applying section 4(7) and (8) of PIE and the Constitutional Court's guidance in Occupiers, Berea v De Wet NO, the court held that eviction was just and equitable. The respondent's opposition was unnecessary, and costs were...

Court Disposition

Eviction granted against the first respondent and all those occupying through or under him; costs awarded against the first respondent.

Orders

  • The first respondent and all those occupying the property through or under him must vacate Portion 4 of Erf 301 Hyde Park, Extension 12 Township, 33 Ruth Road, Unit 4 Sherwood Estate, Hyde Park, Johannesburg within 30 days of the order.
  • If the first respondent or any person in occupation through or under him fails to vacate within 30 days, the Sheriff is authorised and directed to evict them forthwith.