Malelane Edms Bpk v Godfrey and Another (12323/07) [2007] ZAGPHC 250; [2008] 2 All SA 97 (T) (26 October 2007)

Malelane Edms Bpk v Godfrey and Another (12323/07) [2007] ZAGPHC 250; [2008] 2 All SA 97 (T) (26 October 2007)

The court found that both respondents had occupied the property for extended periods with the consent of Rogoff, the previous mining claims holder, and his successor, Marchetti. The applicant failed to credibly dispute the existence of such consent, and the presumption under ESTA operated in favour of the respondents. The court rejected the applicant's arguments regarding exclusion from ESTA based on the nature of the land and income, finding no evidence that respondents used the land for excluded purposes or earned above the prescribed threshold. The court held that any termination of rights must comply with ESTA, not solely with the Mineral and Petroleum Resources Development Act....

Citation
[2007] ZAGPHC 250
Parties
Applicant: Malelane (EDMS) BPK; Respondent: Duncan Godfrey; Respondent: Michelle Smith
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
26 October 2007
Case Number
12323/07
Procedural Posture
Urgent Application / Application for Eviction Under Pie; Jurisdictional Challenge Under ESTA
Outcome
Application struck from the roll with costs.
Judges
M F Legodi
Legal Topics
Prevention of Illegal Eviction Act, Extension of Security of Tenure Act, Jurisdiction, Consent to Occupy, Income Threshold for Occupier
Land and Property Civil Procedure Prevention of Illegal Eviction Act Extension of Security of Tenure Act Jurisdiction Consent to Occupy Income Threshold for Occupier

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Parties

Malelane (EDMS) BPK

Applicant

Duncan Godfrey

Respondent

Michelle Smith

Respondent

Procedural Posture

Urgent Application / Application for Eviction Under Pie; Jurisdictional Challenge Under ESTA

Legal Issues

  1. 1 Whether the respondents are occupiers in terms of the Extension of Security of Tenure Act 62 of 1997.
  2. 2 Whether the High Court has jurisdiction to hear the matter if respondents qualify as occupiers under ESTA.
  3. 3 Whether the applicant is entitled to relief under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act.

Ratio Decidendi

The court found that both respondents had occupied the property for extended periods with the consent of Rogoff, the previous mining claims holder, and his successor, Marchetti. The applicant failed to credibly dispute the existence of such consent, and the presumption under ESTA operated in favour of the respondents. The court rejected the applicant's arguments regarding exclusion from ESTA based on the nature of the land and income, finding no evidence that respondents used the land for excluded purposes or earned above the prescribed threshold. The court held that any termination of rights must comply with ESTA, not solely with the Mineral and Petroleum Resources Development Act....

Court Disposition

Application struck from the roll with costs.

Orders

  • The application is struck from the roll.
  • The applicant is ordered to pay the costs of the respondents, jointly and severally, the one paying the other to be absolved.