October NO and Another v Hendricks and Another (23189/2011) [2013] ZAWCHC 12; 2016 (2) SA 600 (WCC) (31 January 2013)

October NO and Another v Hendricks and Another (23189/2011) [2013] ZAWCHC 12; 2016 (2) SA 600 (WCC) (31 January 2013)

The court found that the respondents were unlawful occupiers as defined by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, since their right to occupy the property was terminable on reasonable notice and such notice had been given and expired. The purpose for which the respondents were invited to occupy the property had failed, and they had ceased paying rent, further undermining any claim to lawful occupation. The court considered the interests of both the applicant, an elderly pensioner wishing to return to her home, and the respondents, who have a disabled child, but concluded that the respondents would not be rendered homeless and could secure alternative...

Citation
[2013] ZAWCHC 12
Parties
Applicant: Daphne Marguery Rosemerien October; Applicant: Daphne Marguery Rosemirien October N.O.; Respondent: Carmel Vania Hendricks; Respondent: Kevin Hendricks
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 January 2013
Case Number
23189/2011
Procedural Posture
Eviction Application / Judgment
Outcome
Eviction order granted against the respondents; no order as to costs.
Judges
Rogers AJ
Legal Topics
Prevention of Illegal Eviction Act, Usufruct and Bare Dominium, Unlawful Occupation, Just and Equitable Eviction, Res Judicata
Land and Property Civil Procedure Prevention of Illegal Eviction Act Usufruct and Bare Dominium Unlawful Occupation Just and Equitable Eviction Res Judicata

Case Brief

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Parties

Daphne Marguery Rosemerien October

Applicant

Daphne Marguery Rosemirien October N.O.

Applicant

Carmel Vania Hendricks

Respondent

Kevin Hendricks

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the respondents are unlawful occupiers under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
  2. 2 Whether it is just and equitable to order the eviction of the respondents, considering the rights of disabled persons and the elderly.
  3. 3 Whether the previous magistrate's court decision bars the present application on grounds of res judicata.

Ratio Decidendi

The court found that the respondents were unlawful occupiers as defined by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, since their right to occupy the property was terminable on reasonable notice and such notice had been given and expired. The purpose for which the respondents were invited to occupy the property had failed, and they had ceased paying rent, further undermining any claim to lawful occupation. The court considered the interests of both the applicant, an elderly pensioner wishing to return to her home, and the respondents, who have a disabled child, but concluded that the respondents would not be rendered homeless and could secure alternative...

Court Disposition

Eviction order granted against the respondents; no order as to costs.

Orders

  • The respondents and all those holding under them are to vacate the premises known as 26 Scrabble Crescent, Alpine Park, Beacon Valley, Mitchells Plain by not later than Tuesday 30 April 2013.
  • If the respondents and those holding under them fail to vacate the property by Tuesday 30 April 2013, the eviction order may be carried out on or after Monday 6 May 2013.