Osborn v Erasmus and Others (90835/2016) [2020] ZAGPPHC 550 (17 March 2020)

Osborn v Erasmus and Others (90835/2016) [2020] ZAGPPHC 550 (17 March 2020)

The court found that the applicant had provided prima facie evidence that the first respondent was in occupation of the property, including historical leases, sheriff's returns, and the respondent's own knowledge of the property and its occupants. The first respondent failed to provide any credible evidence of residence in Mozambique or proof of vacating the property, nor did he submit confirmatory affidavits from alleged occupants. The court held that the onus was on the applicant to prove unlawful occupation, which was discharged, and that the respondent had an evidentiary burden to rebut the applicant's case, which he failed to do. The respondent's conduct was found to be mala fide and...

Citation
[2020] ZAGPPHC 550
Parties
Applicant: Allan Francis Osborn; Respondent: Ettiene Erasmus; Respondent: All occupiers of Number 81 Albatross Drive Fourways, Johannesburg, Gauteng (also known as ERF 115, Fourways Township, Registration Division I.Q. Province of Gauteng); Respondent: City of Johannesburg Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 March 2020
Case Number
90835/2016
Procedural Posture
Eviction Application / Opposed Application for Eviction and Rescission; Judgment After Hearing
Outcome
Eviction application granted; first respondent and all those occupying under him ordered to vacate the property within thirty days; punitive costs order against first respondent on attorney and client scale.
Judges
Prinsloo
Legal Topics
Prevention of Illegal Eviction Act, Unlawful Occupation, Onus of Proof, Eviction Procedure, Punitive Costs
Land and Property Civil Procedure Prevention of Illegal Eviction Act Unlawful Occupation Onus of Proof Eviction Procedure Punitive Costs

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Parties

Allan Francis Osborn

Applicant

Ettiene Erasmus

Respondent

All occupiers of Number 81 Albatross Drive Fourways, Johannesburg, Gauteng (also known as ERF 115, Fourways Township, Registration Division I.Q. Province of Gauteng)

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Eviction Application / Opposed Application for Eviction and Rescission; Judgment After Hearing

Legal Issues

  1. 1 Whether the first respondent is an unlawful occupier of the property for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
  2. 2 Whether the applicant has discharged the onus of proving occupation by the first respondent.
  3. 3 Whether partial or ad hoc occupation entitles the applicant to relief under the Act.

Ratio Decidendi

The court found that the applicant had provided prima facie evidence that the first respondent was in occupation of the property, including historical leases, sheriff's returns, and the respondent's own knowledge of the property and its occupants. The first respondent failed to provide any credible evidence of residence in Mozambique or proof of vacating the property, nor did he submit confirmatory affidavits from alleged occupants. The court held that the onus was on the applicant to prove unlawful occupation, which was discharged, and that the respondent had an evidentiary burden to rebut the applicant's case, which he failed to do. The respondent's conduct was found to be mala fide and...

Court Disposition

Eviction application granted; first respondent and all those occupying under him ordered to vacate the property within thirty days; punitive costs order against first respondent on attorney and client scale.

Orders

  • The first respondent and all those occupying the property or holding under him are declared not to be in lawful possession and have no legal right to occupy the property.
  • The first respondent and all those holding under him are ordered to vacate the property within thirty days from the date of the order.