Kgwete v Makonko and Others (2022/010418) [2023] ZAGPJHC 885 (8 August 2023)

Kgwete v Makonko and Others (2022/010418) [2023] ZAGPJHC 885 (8 August 2023)

The court found that the applicant is the lawful owner of the property by virtue of intestate succession and a valid deed of transfer. The respondents' challenge to the legitimacy of the transfer was speculative and unsupported by any affidavit from the relevant transferor, Ms Makonko. The prior Magistrates Court proceedings were withdrawn and do not bar the present application. The alleged procedural irregularity under Rule 30 was dismissed, as the PIE Act requires the section 4(2) notice to be authorised after service of the eviction application, not before. No bona fide dispute of fact was established to warrant a referral to oral evidence. The respondents have sufficient means and...

Citation
[2023] ZAGPJHC 885
Parties
Applicant: Tracy Mathuding Kgwete; Respondent: Dineo Ennica Makonko; Respondent: All Occupants of the Property Situated at [...], Tembisa; Respondent: The City of Ekurhuleni Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 August 2023
Case Number
2022/010418
Procedural Posture
Eviction Application / Judgment
Outcome
Eviction application granted; respondents' Rule 30 application and counter-application for referral to evidence dismissed with costs.
Judges
D Mahon
Legal Topics
Eviction Under Pie Act, Intestate Succession, Lis Alibi Pendens, Rule 30 Irregular Proceedings
Land and Property Civil Procedure Eviction Under Pie Act Intestate Succession Lis Alibi Pendens Rule 30 Irregular Proceedings

Case Brief

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Parties

Tracy Mathuding Kgwete

Applicant

Dineo Ennica Makonko

Respondent

All Occupants of the Property Situated at [...], Tembisa

Respondent

The City of Ekurhuleni Metropolitan Municipality

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to evict the respondents from the property under the PIE Act.
  2. 2 Whether the respondents' challenge to the legitimacy of the property transfer raises a bona fide dispute of fact.
  3. 3 Whether the proceedings are irregular due to alleged procedural defects under Rule 30.

Ratio Decidendi

The court found that the applicant is the lawful owner of the property by virtue of intestate succession and a valid deed of transfer. The respondents' challenge to the legitimacy of the transfer was speculative and unsupported by any affidavit from the relevant transferor, Ms Makonko. The prior Magistrates Court proceedings were withdrawn and do not bar the present application. The alleged procedural irregularity under Rule 30 was dismissed, as the PIE Act requires the section 4(2) notice to be authorised after service of the eviction application, not before. No bona fide dispute of fact was established to warrant a referral to oral evidence. The respondents have sufficient means and...

Court Disposition

Eviction application granted; respondents' Rule 30 application and counter-application for referral to evidence dismissed with costs.

Orders

  • The first and second respondents’ application in terms of Rule 30 is dismissed with costs.
  • The first respondent and all other occupants residing through and under her, including the second respondent, are evicted from the property in terms of Section 4(1) read with Section 6(1) of Act 19 of 1998.