Molefe and Another v Twala (13631 /2012) [2013] ZAGPJHC 111 (4 March 2013)

Molefe and Another v Twala (13631 /2012) [2013] ZAGPJHC 111 (4 March 2013)

The court found that the respondent's point in limine of res judicata could not succeed because the present application was based on a new cause of action, namely the cancellation of the agreement in March 2012, which was not disputed by the respondent. The respondent was deemed an unlawful occupier under section 4 of the Act, as she continued to occupy the property without a valid agreement and without paying for rent or municipal services. The applicants, as senior citizens, were unfairly burdened with these costs. The absence of an opposing affidavit meant the facts in the founding affidavit were undisputed. The court was satisfied that it was just and equitable to grant the eviction...

Citation
[2013] ZAGPJHC 111
Parties
Applicant: Andrew Molefe; Applicant: Mamonyane Sanah Molefe; Respondent: Joyce Phindile Twala; Respondent: All other unlawful occupiers on Stand 1468 Moletsane Township Soweto, JHB; Respondent: Johannesburg Metropolitan Local Council
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 March 2013
Case Number
13631 /2012
Procedural Posture
Eviction Application / Judgment
Outcome
Eviction order granted against the first respondent and all persons holding occupation through or under her; costs awarded against the respondent.
Judges
S Mia
Legal Topics
Prevention of Illegal Eviction Act, Res Judicata, Unlawful Occupation, Eviction Procedure
Land and Property Civil Procedure Prevention of Illegal Eviction Act Res Judicata Unlawful Occupation Eviction Procedure

Case Brief

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Parties

Andrew Molefe

Applicant

Mamonyane Sanah Molefe

Applicant

Joyce Phindile Twala

Respondent

All other unlawful occupiers on Stand 1468 Moletsane Township Soweto, JHB

Respondent

Johannesburg Metropolitan Local Council

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the respondent's point in limine of res judicata is sustainable in light of the cancellation of the agreement.
  2. 2 Whether the applicants have established that the respondent is an unlawful occupier under section 4 of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.
  3. 3 Whether it is just and equitable to grant an eviction order under section 4(7) of the Act.

Ratio Decidendi

The court found that the respondent's point in limine of res judicata could not succeed because the present application was based on a new cause of action, namely the cancellation of the agreement in March 2012, which was not disputed by the respondent. The respondent was deemed an unlawful occupier under section 4 of the Act, as she continued to occupy the property without a valid agreement and without paying for rent or municipal services. The applicants, as senior citizens, were unfairly burdened with these costs. The absence of an opposing affidavit meant the facts in the founding affidavit were undisputed. The court was satisfied that it was just and equitable to grant the eviction...

Court Disposition

Eviction order granted against the first respondent and all persons holding occupation through or under her; costs awarded against the respondent.

Orders

  • The first respondent and all persons holding occupation through or under her of the premises situated at Erf 1468 Moletsane Township, Soweto are to vacate on or before 31 May 2013.
  • Should the respondent fail to vacate the property by 31 May 2013, the sheriff is authorised to carry out the eviction order on or after 14 June 2013 by removing the respondent and all persons holding occupation through or under her.