Norman Ndongeni v Thembisa Ndongeni and 3 Others (CA28/23) [2024] ZAECMHC 8 (30 January 2024)

Norman Ndongeni v Thembisa Ndongeni and 3 Others (CA28/23) [2024] ZAECMHC 8 (30 January 2024)

The majority held that the appellant's PTO, issued by the competent authority and not set aside by a court, confers exclusive occupational rights to the property. The first respondent's failure to serve the counter-application on the third respondent and to invoke administrative review under PAJA was fatal to her challenge of the PTO's validity. The property was not registered in the mother's name, nor was it allotted to her, and the PTO did not extend occupational rights to siblings. The first respondent's claim to the property as a common home did not override the appellant's rights under the PTO. The requirements for eviction under PIE were satisfied, as the first respondent was found...

Citation
[2024] ZAECMHC 8
Parties
Appellant: Norman Ndongeni; Respondent: Thembisa Ndongeni; Respondent: All Unlawful Occupiers of Residential Allotment No.1[…]A, Ndongeni Residence, Lubhacweni Location, Mount Frere; Respondent: Department of Rural Development and Agrarian Reform; Respondent: Umzimvubu Local Municipality
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
30 January 2024
Case Number
CA28/23
Procedural Posture
Civil Appeal / Appeal From High Court Judgment; Main Application and Counter Application
Outcome
Appeal upheld; main application for eviction granted; counter-application dismissed; costs awarded to appellant.
Judges
Nhlangulela, Majiki, Tilana-Mabece
Legal Topics
Permission to Occupy, Eviction Under Pie Act, Administrative Review, Family Home Rights, Old Order Legislation, Customary Law Tenure
Land and Property Civil Procedure Administrative Law Permission to Occupy Eviction Under Pie Act Administrative Review Family Home Rights Old Order Legislation +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Norman Ndongeni

Appellant

Thembisa Ndongeni

Respondent

All Unlawful Occupiers of Residential Allotment No.1[…]A, Ndongeni Residence, Lubhacweni Location, Mount Frere

Respondent

Department of Rural Development and Agrarian Reform

Respondent

Umzimvubu Local Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment; Main Application and Counter Application

Legal Issues

  1. 1 Whether the appellant's Permission to Occupy (PTO) confers a right to evict the first respondent from the property.
  2. 2 Whether the failure to join and serve the third respondent (Department) in the counter-application is fatal to the relief sought.
  3. 3 Whether the property constitutes a common home entitling both siblings to occupation.

Ratio Decidendi

The majority held that the appellant's PTO, issued by the competent authority and not set aside by a court, confers exclusive occupational rights to the property. The first respondent's failure to serve the counter-application on the third respondent and to invoke administrative review under PAJA was fatal to her challenge of the PTO's validity. The property was not registered in the mother's name, nor was it allotted to her, and the PTO did not extend occupational rights to siblings. The first respondent's claim to the property as a common home did not override the appellant's rights under the PTO. The requirements for eviction under PIE were satisfied, as the first respondent was found...

Court Disposition

Appeal upheld; main application for eviction granted; counter-application dismissed; costs awarded to appellant.

Orders

  • The appeal is upheld with costs.
  • The order of the high court is set aside and replaced by the following order: