Mofiko v Mthophe and Others (2024/044182) [2025] ZAGPJHC 772 (7 August 2025)

Mofiko v Mthophe and Others (2024/044182) [2025] ZAGPJHC 772 (7 August 2025)

The court found that the respondent's occupation of the property was lawful, as it was based on a written and signed sale agreement concluded with the applicant in her capacity as executrix. The respondent paid the full purchase price as required by the agreement, and there was no evidence that the sale agreement had been terminated or that the respondent had been placed in breach. The applicant failed to discharge the onus of proving that the respondent's occupation had become unlawful. The mere fact that the purchase price was misappropriated by the conveyancer did not render the respondent's occupation unlawful, nor did the applicant's need to wind up the estate justify eviction in the...

Citation
[2025] ZAGPJHC 772
Parties
Applicant: Dikeledi Edith Mofiko (in her capacity as executrix of the Estate Late Matsela Gladys Mfikwe); Respondent: Pearl Mthophe; Respondent: Unlawful occupiers of Erf 7[…] Jabavu Extension 2; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 August 2025
Case Number
2024/044182
Procedural Posture
Urgent Application / Judgment After Opposed Eviction Application
Outcome
Application dismissed with costs awarded against the applicant.
Judges
B R Kahn
Legal Topics
Eviction, Unlawful Occupation, Sale Agreement, Alienation of Land Act, Onus of Proof
Land and Property Civil Procedure Eviction Unlawful Occupation Sale Agreement Alienation of Land Act Onus of Proof

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Parties

Dikeledi Edith Mofiko (in her capacity as executrix of the Estate Late Matsela Gladys Mfikwe)

Applicant

Pearl Mthophe

Respondent

Unlawful occupiers of Erf 7[…] Jabavu Extension 2

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Judgment After Opposed Eviction Application

Legal Issues

  1. 1 Whether the respondent's occupation of the property is unlawful under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
  2. 2 Whether the sale agreement between the estate and the respondent is extant and regulates occupation.
  3. 3 Whether the applicant discharged the onus to prove unlawful occupation justifying eviction.

Ratio Decidendi

The court found that the respondent's occupation of the property was lawful, as it was based on a written and signed sale agreement concluded with the applicant in her capacity as executrix. The respondent paid the full purchase price as required by the agreement, and there was no evidence that the sale agreement had been terminated or that the respondent had been placed in breach. The applicant failed to discharge the onus of proving that the respondent's occupation had become unlawful. The mere fact that the purchase price was misappropriated by the conveyancer did not render the respondent's occupation unlawful, nor did the applicant's need to wind up the estate justify eviction in the...

Court Disposition

Application dismissed with costs awarded against the applicant.

Orders

  • The application is dismissed.
  • The applicant is to pay the respondent's costs on scale A.