Mahomed NO and Another v Kassem t/a Patel and Company (27161/16) [2017] ZAGPPHC 499 (18 August 2017)

Mahomed NO and Another v Kassem t/a Patel and Company (27161/16) [2017] ZAGPPHC 499 (18 August 2017)

The court held that the applicant's right to evict the first respondent is a question of law, not fact, and is suitable for determination by motion proceedings. The transfer of the property to the applicant stands as an administrative act and has legal effect until reviewed and set aside. The first respondent's challenge to the validity of the transfer must be pursued by way of review under PAJA, not as a defence in eviction proceedings. Given the intertwined nature of the eviction and the pending review, the court ordered that the eviction application be suspended pending the outcome of the review, and that the first respondent must pay rental to the applicant as owner until the review...

Citation
[2017] ZAGPPHC 499
Parties
Applicant: Rasia Mahomed N.O.; Applicant: Rasia Mahomed; Respondent: Bhika Kassem t/a Patel and Company; Respondent: Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 August 2017
Case Number
27161/16
Procedural Posture
Urgent Application / Eviction Application in High Court; Application to Stay Pending Review
Outcome
Eviction application suspended pending review; first respondent to pay rental to applicant; costs reserved.
Judges
Hughes
Legal Topics
Eviction, Transfer of Ownership, Jurisdictional Facts, Review of Administrative Action, Section 79 Ordinance 17 1939, Promotion of Administrative Justice Act
Land and Property Administrative Law Eviction Transfer of Ownership Jurisdictional Facts Review of Administrative Action Section 79 Ordinance 17 1939 Promotion of Administrative Justice Act

Case Brief

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Parties

Rasia Mahomed N.O.

Applicant

Rasia Mahomed

Applicant

Bhika Kassem t/a Patel and Company

Respondent

Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Eviction Application in High Court; Application to Stay Pending Review

Legal Issues

  1. 1 Whether the applicant has the right to evict the first respondent from the property.
  2. 2 Whether the transfer of ownership of the property to the applicant was procedurally valid under section 79(18) of Ordinance 17 of 1939.
  3. 3 Whether the first respondent is entitled to remain in occupation pending review of the administrative decision.

Ratio Decidendi

The court held that the applicant's right to evict the first respondent is a question of law, not fact, and is suitable for determination by motion proceedings. The transfer of the property to the applicant stands as an administrative act and has legal effect until reviewed and set aside. The first respondent's challenge to the validity of the transfer must be pursued by way of review under PAJA, not as a defence in eviction proceedings. Given the intertwined nature of the eviction and the pending review, the court ordered that the eviction application be suspended pending the outcome of the review, and that the first respondent must pay rental to the applicant as owner until the review...

Court Disposition

Eviction application suspended pending review; first respondent to pay rental to applicant; costs reserved.

Orders

  • The eviction application is suspended pending review proceedings to be instituted within 60 days in the High Court for a declaration on the validity of the transfer of ownership of ERF 652, Asiatic Bazaar Ext 1 Gauteng Province to applicant on 2 October 2008.
  • Pending adjudication of the review application, the applicant is ordered not to interfere with the first respondent's occupation of the property.