Omar NO v Omar and Others (9643/2007) [2011] ZAWCHC 415 (1 November 2011)

Omar NO v Omar and Others (9643/2007) [2011] ZAWCHC 415 (1 November 2011)

The Court found that the Respondents failed to provide meaningful evidence that reasonable alternative accommodation was unavailable to them, nor did they take proactive steps to seek such accommodation despite ample opportunity and the Applicant's efforts to facilitate engagement. The evidential onus rested on the Respondents to demonstrate circumstances justifying postponement or refusal of eviction, which they did not discharge. The Applicant's tender of rent-free accommodation and relocation payment was considered fair and reasonable. For the Fourth, Seventh, and Tenth Respondents, the evidence indicated that they could obtain alternative accommodation with family support. The...

Citation
[2011] ZAWCHC 415
Parties
Applicant: Essop Mohamed Omar N.O.; Respondent: Ebrahim Essop Mohamed Omar; Respondent: Ahmed Essop Mohamed Omar; Respondent: Anwa Essop; Respondent: Latiefa Edries; Respondent: Janey Halim; Respondent: Shanaaz Samuels; Respondent: Magdalene George; Respondent: Rediwaan Philanders; Respondent: Mogamat Abrahams; Respondent: Veronica Bart; Respondent: Nadia Rossie; Respondent: Allie Rhode
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 November 2011
Case Number
9643/2007
Procedural Posture
Urgent Application / Eviction Application Under PIE Act; Final Determination and Orders
Outcome
Eviction granted against Fourth, Seventh, and Tenth Respondents; application against Eleventh Respondent postponed sine die.
Judges
Assheton-Smith
Legal Topics
Prevention of Illegal Eviction Act, Eviction Procedure, Just and Equitable Test, Onus of Proof, Right to Alternative Accommodation, Section 26 Constitution
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Eviction Procedure Just and Equitable Test Onus of Proof Right to Alternative Accommodation +1 more

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Parties

Essop Mohamed Omar N.O.

Applicant

Ebrahim Essop Mohamed Omar

Respondent

Ahmed Essop Mohamed Omar

Respondent

Anwa Essop

Respondent

Latiefa Edries

Respondent

Janey Halim

Respondent

Shanaaz Samuels

Respondent

Magdalene George

Respondent

Rediwaan Philanders

Respondent

Mogamat Abrahams

Respondent

Veronica Bart

Respondent

Nadia Rossie

Respondent

Allie Rhode

Respondent

Procedural Posture

Urgent Application / Eviction Application Under PIE Act; Final Determination and Orders

Legal Issues

  1. 1 Whether the Fourth, Seventh, Tenth and Eleventh Respondents should be evicted from the property under section 4 of the PIE Act.
  2. 2 Whether the Respondents have demonstrated that reasonable alternative accommodation is unavailable to them.
  3. 3 Whether it is just and equitable to order eviction in the circumstances.

Ratio Decidendi

The Court found that the Respondents failed to provide meaningful evidence that reasonable alternative accommodation was unavailable to them, nor did they take proactive steps to seek such accommodation despite ample opportunity and the Applicant's efforts to facilitate engagement. The evidential onus rested on the Respondents to demonstrate circumstances justifying postponement or refusal of eviction, which they did not discharge. The Applicant's tender of rent-free accommodation and relocation payment was considered fair and reasonable. For the Fourth, Seventh, and Tenth Respondents, the evidence indicated that they could obtain alternative accommodation with family support. The...

Court Disposition

Eviction granted against Fourth, Seventh, and Tenth Respondents; application against Eleventh Respondent postponed sine die.

Orders

  • The Fourth, Seventh and Tenth Respondents and persons occupying under them are directed to vacate Erven 8504, 8505 and 8513 Cape Town by 29 February 2012.
  • Upon compliance, the Applicant shall pay R7,500 to each of the Fourth, Seventh and Tenth Respondents as a contribution to relocation costs.