Lubobo and Another v Naidoo and Others (43397/2020) [2022] ZAGPJHC 752 (4 October 2022)

Lubobo and Another v Naidoo and Others (43397/2020) [2022] ZAGPJHC 752 (4 October 2022)

The applicants failed to prove that the agreement was cancelled following breach as required for eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. Their evidence lacked detail regarding the alleged cancellation, and no written notice or clear communication of cancellation was provided. The applicants attempted to rely on a contractual clause not pleaded in their founding papers, which is impermissible. The dispute before the court was whether cancellation occurred after breach, and the applicants did not establish this. Consequently, they did not make out a prima facie case for eviction, and the application was dismissed.

Citation
[2022] ZAGPJHC 752
Parties
Applicant: Luvuyo Luzuko Lubobo; Applicant: Bongani Emmanuel Mlambo; Respondent: Mugandran Naidoo; Respondent: Yudgendree Naidoo; Respondent: Unlawful Occupiers Portion [....] A Portion of Farm [....], Roodekraans Registration Division IQ, Gauteng Province, Measuring One (1) Hectare; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 October 2022
Case Number
43397/2020
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs.
Judges
Bester
Legal Topics
Alienation of Land Act, Prevention of Illegal Eviction Act, Eviction Proceedings, Contract Cancellation, Specific Performance
Land and Property Civil Procedure Alienation of Land Act Prevention of Illegal Eviction Act Eviction Proceedings Contract Cancellation Specific Performance

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Parties

Luvuyo Luzuko Lubobo

Applicant

Bongani Emmanuel Mlambo

Applicant

Mugandran Naidoo

Respondent

Yudgendree Naidoo

Respondent

Unlawful Occupiers Portion [....] A Portion of Farm [....], Roodekraans Registration Division IQ, Gauteng Province, Measuring One (1) Hectare

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the respondents are in unlawful occupation of the property following alleged breach and cancellation of the instalment sale agreement.
  2. 2 Whether the applicants have proven cancellation of the agreement as required for eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
  3. 3 Whether the applicants may rely on a cause of action not pleaded in their founding papers.

Ratio Decidendi

The applicants failed to prove that the agreement was cancelled following breach as required for eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. Their evidence lacked detail regarding the alleged cancellation, and no written notice or clear communication of cancellation was provided. The applicants attempted to rely on a contractual clause not pleaded in their founding papers, which is impermissible. The dispute before the court was whether cancellation occurred after breach, and the applicants did not establish this. Consequently, they did not make out a prima facie case for eviction, and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.