Molokomme and Others v Fetakgomo Tubatse Local Municipality and Another (7127/2021) [2024] ZALMPPHC 83 (2 August 2024)

Molokomme and Others v Fetakgomo Tubatse Local Municipality and Another (7127/2021) [2024] ZALMPPHC 83 (2 August 2024)

The court found that the original eviction order was procedurally defective due to the use of the incorrect section of the PIE Act, lack of evidence of proper municipal authorisation, and disputed service. The municipality, as an organ of state, should have proceeded under Section 6 of the PIE Act, which requires specific considerations that were not addressed in the original application. Furthermore, the municipality failed to provide proof of council resolution or delegation authorising the eviction application, as required by the Municipal Systems Act. The applicants were not required to challenge authority under Rule 7, as the application was brought by a municipal employee, not an...

Citation
[2024] ZALMPPHC 83
Parties
Applicant: Phathi Elex Molokomme; Applicant: Cincinatia Masupyane Kgagara; Applicant: Gerreson Kodibona; Respondent: Fetakgomo Tubatse Local Municipality; Respondent: Sheriff of the Court, Praktiseer
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
2 August 2024
Case Number
7127/2021
Procedural Posture
Urgent Application / Application for Reconsideration and Setting Aside of Eviction Order
Outcome
Eviction order set aside; costs awarded to applicants.
Judges
Gaisa
Legal Topics
Eviction Procedure, Municipal Authorisation, Service of Process, Prevention of Illegal Eviction Act, Urgent Interim Relief
Civil Procedure Land and Property Administrative Law Eviction Procedure Municipal Authorisation Service of Process Prevention of Illegal Eviction Act Urgent Interim Relief

Case Brief

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Parties

Phathi Elex Molokomme

Applicant

Cincinatia Masupyane Kgagara

Applicant

Gerreson Kodibona

Applicant

Fetakgomo Tubatse Local Municipality

Respondent

Sheriff of the Court, Praktiseer

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration and Setting Aside of Eviction Order

Legal Issues

  1. 1 Whether the requirements for reconsideration under Rule 6(12)(c) have been met.
  2. 2 Whether the original eviction order was erroneously granted in the applicants' absence.
  3. 3 Whether the First Respondent followed the correct procedure under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act).

Ratio Decidendi

The court found that the original eviction order was procedurally defective due to the use of the incorrect section of the PIE Act, lack of evidence of proper municipal authorisation, and disputed service. The municipality, as an organ of state, should have proceeded under Section 6 of the PIE Act, which requires specific considerations that were not addressed in the original application. Furthermore, the municipality failed to provide proof of council resolution or delegation authorising the eviction application, as required by the Municipal Systems Act. The applicants were not required to challenge authority under Rule 7, as the application was brought by a municipal employee, not an...

Court Disposition

Eviction order set aside; costs awarded to applicants.

Orders

  • The eviction order granted on 12 October 2021 under case number 7127/2021 is hereby set aside.
  • The first respondent is ordered to pay the applicants' costs of this application, including both Parts A and B.