Kerfkhof and Another v Pieterse (55641/12) [2014] ZAGPPHC 34 (19 February 2014)

Kerfkhof and Another v Pieterse (55641/12) [2014] ZAGPPHC 34 (19 February 2014)

The court found that the respondent's carport encroached upon the applicants' property and that the respondent admitted to erecting the structure. The points in limine raised by the respondent, including locus standi, non-joinder, prescription, and alleged factual disputes, were dismissed as lacking merit. The respondent failed to establish prescription, as there was no evidence of uninterrupted possession for 30 years. The alleged factual disputes were not genuine or material, and the respondent's bare denials were insufficient. The non-joinder of Rietfontein Beleggings did not preclude relief, as the respondent was the party responsible for the encroachment. The applicants were entitled...

Citation
[2014] ZAGPPHC 34
Parties
Appellant: Ferdinand Leonardus Kerfkhof; Appellant: Tineke Jo-Anne Kerfkhof; Respondent: Nicolaas Barnard Pieterse
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 February 2014
Case Number
55641/12
Procedural Posture
Civil Application / Judgment on Merits and Points in Limine
Outcome
Application granted in favour of the applicants.
Judges
Mogotsi
Legal Topics
Encroachment, Non Joinder, Prescription Act, Ownership Dispute, Removal of Structure
Land and Property Civil Procedure Encroachment Non Joinder Prescription Act Ownership Dispute Removal of Structure

Case Brief

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Parties

Ferdinand Leonardus Kerfkhof

Appellant

Tineke Jo-Anne Kerfkhof

Appellant

Nicolaas Barnard Pieterse

Respondent

Procedural Posture

Civil Application / Judgment on Merits and Points in Limine

Legal Issues

  1. 1 Whether the respondent's carport encroaches upon the applicants' property.
  2. 2 Whether the applicants' claim is prescribed under the Prescription Act.
  3. 3 Whether there is a genuine dispute of fact requiring referral to oral evidence or trial.

Ratio Decidendi

The court found that the respondent's carport encroached upon the applicants' property and that the respondent admitted to erecting the structure. The points in limine raised by the respondent, including locus standi, non-joinder, prescription, and alleged factual disputes, were dismissed as lacking merit. The respondent failed to establish prescription, as there was no evidence of uninterrupted possession for 30 years. The alleged factual disputes were not genuine or material, and the respondent's bare denials were insufficient. The non-joinder of Rietfontein Beleggings did not preclude relief, as the respondent was the party responsible for the encroachment. The applicants were entitled...

Court Disposition

Application granted in favour of the applicants.

Orders

  • The four points in limine raised by the respondent are dismissed as lacking merit.
  • The respondent is ordered to remove the encroachment erected upon the applicants' property within twenty-one days after the granting of this order and to make good the land.