Machaka and Another v Rubidge and Another (2012/31313) [2013] ZAGPJHC 236 (5 August 2013)

Machaka and Another v Rubidge and Another (2012/31313) [2013] ZAGPJHC 236 (5 August 2013)

The applicants are the registered owners of the property and have complied with all statutory requirements for eviction under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. The respondents' occupation is unlawful, and their allegations of fraud or irregularity in the sale and transfer do not affect the applicants' rights until a competent court sets aside the sale in execution. The respondents have not instituted any review or appeal proceedings, and the court is not empowered to set aside the sale in these proceedings. The interests of fairness require that the applicants be allowed to take possession of their property, and the respondents must vacate.

Citation
[2013] ZAGPJHC 236
Parties
Plaintiff: Maleka Mackay Machaka; Applicant: Joseph Letsie Moshesh; Respondent: Yunus Rubidge; Defendant: Anthea Castelia Rubidge
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 August 2013
Case Number
2012/31313
Procedural Posture
Civil Application / Final Judgment
Outcome
Eviction granted; respondents ordered to vacate property.
Judges
Madima
Legal Topics
Eviction, Unlawful Occupation, Sale in Execution, Title Deed, Judicial Review
Land and Property Civil Procedure Eviction Unlawful Occupation Sale in Execution Title Deed Judicial Review

Case Brief

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Parties

Maleka Mackay Machaka

Plaintiff

Joseph Letsie Moshesh

Applicant

Yunus Rubidge

Respondent

Anthea Castelia Rubidge

Defendant

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants, as registered owners, are entitled to evict the respondents from the property.
  2. 2 Whether the respondents have any lawful right to remain in occupation pending a challenge to the sale in execution.
  3. 3 Whether compliance with the Prevention of Illegal Eviction from Unlawful Occupation of Land Act has been met.

Ratio Decidendi

The applicants are the registered owners of the property and have complied with all statutory requirements for eviction under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. The respondents' occupation is unlawful, and their allegations of fraud or irregularity in the sale and transfer do not affect the applicants' rights until a competent court sets aside the sale in execution. The respondents have not instituted any review or appeal proceedings, and the court is not empowered to set aside the sale in these proceedings. The interests of fairness require that the applicants be allowed to take possession of their property, and the respondents must vacate.

Court Disposition

Eviction granted; respondents ordered to vacate property.

Orders

  • The respondents and all persons occupying through them or under their control must vacate Erf 350 Ormonde Extension 3 Township.
  • Failing compliance, the Sheriff or deputy is authorized and directed to evict the respondents and all persons occupying through them.