Makwakwa and Another v Mohlamme Funeral Services CC and Others (17716/14) [2015] ZAGPPHC 868 (18 December 2015)

Makwakwa and Another v Mohlamme Funeral Services CC and Others (17716/14) [2015] ZAGPPHC 868 (18 December 2015)

The applicants proved ownership of Erf 4307 by producing a valid title deed. The respondents failed to establish any registered right to occupy or sublet the property, and the alleged subdivision and consolidation were never registered. The defence of lis pendens was dismissed as the pending review application did not involve the same parties or cause of action. The lease agreement between the respondents was unlawful under the PIE Act, as it was concluded without the owner's consent. The occupation by the respondents was therefore unlawful, and the applicants are entitled to eviction and demolition of structures, with compensation for such structures. Costs follow the result.

Citation
[2015] ZAGPPHC 868
Parties
Applicant: Solomon Makwakwa; Applicant: Mmapeu Margaret Makwakwa; Respondent: Mohlamme Funeral Services CC; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Rirhandzu Bottle Store (Pty) Limited; Respondent: Omar Igshan N.O.; Respondent: The Master of the High Court, Pretoria; Respondent: First National Bank Limited; Respondent: Registrar of Deeds, Pretoria; Respondent: Lena Mmantsweng Ngwenyama; Respondent: Thomas Ngwenyama
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 December 2015
Case Number
17716/14
Procedural Posture
Eviction Application / Judgment
Outcome
Application for eviction granted with costs.
Judges
S Madiba
Legal Topics
Eviction, Rei Vindicatio, Unlawful Occupation, Lis Pendens, Prevention of Illegal Eviction Act
Land and Property Civil Procedure Eviction Rei Vindicatio Unlawful Occupation Lis Pendens Prevention of Illegal Eviction Act

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Parties

Solomon Makwakwa

Applicant

Mmapeu Margaret Makwakwa

Applicant

Mohlamme Funeral Services CC

Respondent

City of Tshwane Metropolitan Municipality

Respondent

Rirhandzu Bottle Store (Pty) Limited

Respondent

Omar Igshan N.O.

Respondent

The Master of the High Court, Pretoria

Respondent

First National Bank Limited

Respondent

Registrar of Deeds, Pretoria

Respondent

Lena Mmantsweng Ngwenyama

Respondent

Thomas Ngwenyama

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the applicants, as title holders, are entitled to evict the 1st, 8th, and 9th respondents from portion 1 of Erf 4307.
  2. 2 Whether the defence of lis pendens raised by the respondents is sustainable.
  3. 3 Whether the lease agreement between the respondents is lawful and enforceable.

Ratio Decidendi

The applicants proved ownership of Erf 4307 by producing a valid title deed. The respondents failed to establish any registered right to occupy or sublet the property, and the alleged subdivision and consolidation were never registered. The defence of lis pendens was dismissed as the pending review application did not involve the same parties or cause of action. The lease agreement between the respondents was unlawful under the PIE Act, as it was concluded without the owner's consent. The occupation by the respondents was therefore unlawful, and the applicants are entitled to eviction and demolition of structures, with compensation for such structures. Costs follow the result.

Court Disposition

Application for eviction granted with costs.

Orders

  • The 1st, 8th, and 9th respondents and all persons occupying Erf 4307 Saulsville Township are evicted from the premises.
  • The 1st, 8th, and 9th respondents and all persons occupying portion 1 of Erf 4307 must vacate the property by 18 January 2016. Applicants are authorized to demolish the wall fence, three carports, and any other structures erected thereon.