KES v NCX and Another (2419/19) [2020] ZAECMHC 43 (21 July 2020)

KES v NCX and Another (2419/19) [2020] ZAECMHC 43 (21 July 2020)

The court found that the application for eviction was substantially identical to pending review proceedings, thus upholding the plea of lis alibi pendens. The distinction made by the applicant between her personal and representative capacity was deemed artificial and not substantive. Furthermore, the court accepted the first respondent's version that she was married to the deceased and had lawfully occupied the property for over thirty-two years. The applicant failed to prove unlawful occupation by the first respondent or that the property was owned or controlled by her late father. Accordingly, the application was dismissed on the ground of lis alibi pendens and failure to establish...

Citation
[2020] ZAECMHC 43
Parties
Applicant: K[…] E[….] S[….] (Executor of the Estate Late K[…] P[…]); Respondent: N[…] C[….] X[….]; Respondent: Port St Johan's Local Municipality
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
21 July 2020
Case Number
2419/19
Procedural Posture
Eviction Application / High Court Motion Proceedings
Outcome
Application dismissed with costs to be recovered from the estate.
Judges
N Dukada
Legal Topics
Eviction Proceedings, Lis Alibi Pendens, Locus Standi, Unlawful Occupation, Contradictory Pleadings
Land and Property Civil Procedure Eviction Proceedings Lis Alibi Pendens Locus Standi Unlawful Occupation Contradictory Pleadings

Case Brief

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Parties

K[…] E[….] S[….] (Executor of the Estate Late K[…] P[…])

Applicant

N[…] C[….] X[….]

Respondent

Port St Johan's Local Municipality

Respondent

Procedural Posture

Eviction Application / High Court Motion Proceedings

Legal Issues

  1. 1 Whether the application for eviction should be dismissed on the basis of lis alibi pendens.
  2. 2 Whether the applicant has locus standi as executrix to seek eviction of the first respondent.
  3. 3 Whether the first respondent is in unlawful occupation of the property.

Ratio Decidendi

The court found that the application for eviction was substantially identical to pending review proceedings, thus upholding the plea of lis alibi pendens. The distinction made by the applicant between her personal and representative capacity was deemed artificial and not substantive. Furthermore, the court accepted the first respondent's version that she was married to the deceased and had lawfully occupied the property for over thirty-two years. The applicant failed to prove unlawful occupation by the first respondent or that the property was owned or controlled by her late father. Accordingly, the application was dismissed on the ground of lis alibi pendens and failure to establish...

Court Disposition

Application dismissed with costs to be recovered from the estate.

Orders

  • The application for eviction is dismissed.
  • Costs are to be recovered from the estate of the late K[…] P[…].