Mnyandu v Oliphant and Others (A202/2016) [2017] ZAFSHC 61 (20 April 2017)

Mnyandu v Oliphant and Others (A202/2016) [2017] ZAFSHC 61 (20 April 2017)

The appellant is the registered owner of the property by virtue of a valid Deed of Transfer, which was not set aside by any competent court. The Magistrate erred in questioning the validity of the title and in finding that the respondent had a lawful right to occupy the property by inheritance, as there was no valid sale or transfer to the respondent or his predecessors. The respondent's occupation is unlawful under PIE, and the requirements for eviction have been met. Considering the respondent's long occupation and family circumstances, a just and equitable period of two months is granted for vacating the property.

Citation
[2017] ZAFSHC 61
Parties
Appellant: Kegomoditswe Irene Mnyandu; Respondent: Zacharia Oliphant and/or the occupants of the property known as Erf [...], Thabong, Welkom
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 April 2017
Case Number
A202/2016
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment Dismissing Eviction Application
Outcome
Appeal upheld; eviction order granted against respondents.
Judges
P Daffue, PJ Loubser
Legal Topics
Eviction, Unlawful Occupation, Deeds Registry Act, Upgrading of Land Tenure Rights, Just and Equitable Requirement
Land and Property Civil Procedure Eviction Unlawful Occupation Deeds Registry Act Upgrading of Land Tenure Rights Just and Equitable Requirement

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Parties

Kegomoditswe Irene Mnyandu

Appellant

Zacharia Oliphant and/or the occupants of the property known as Erf [...], Thabong, Welkom

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment Dismissing Eviction Application

Legal Issues

  1. 1 Whether the appellant is the registered owner of the property and entitled to seek eviction.
  2. 2 Whether the respondent has a lawful right to occupy the property by inheritance or other means.
  3. 3 Whether the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) have been met.

Ratio Decidendi

The appellant is the registered owner of the property by virtue of a valid Deed of Transfer, which was not set aside by any competent court. The Magistrate erred in questioning the validity of the title and in finding that the respondent had a lawful right to occupy the property by inheritance, as there was no valid sale or transfer to the respondent or his predecessors. The respondent's occupation is unlawful under PIE, and the requirements for eviction have been met. Considering the respondent's long occupation and family circumstances, a just and equitable period of two months is granted for vacating the property.

Court Disposition

Appeal upheld; eviction order granted against respondents.

Orders

  • The appeal is upheld with costs.
  • The dismissal of the application in the Magistrate's Court is set aside and substituted with an order for eviction.