Ross v South Peninsula Municipality (A741/98) [1999] ZAWCHC 2; [2000] 4 All SA 85 (C); 2000 (1) SA 589 (C) (3 September 1999)

Ross v South Peninsula Municipality (A741/98) [1999] ZAWCHC 2; [2000] 4 All SA 85 (C); 2000 (1) SA 589 (C) (3 September 1999)

Section 26(3) of the Constitution has modified the common law as laid down in Graham v Ridley. A plaintiff seeking to evict a person from his or her home must now allege relevant circumstances that would entitle the court to issue an eviction order. Mere ownership and unlawful occupation are insufficient; the pleadings must enable the court to consider all relevant circumstances as mandated by the Constitution. The adversarial system requires both parties to place such information before the court, and the onus is on the plaintiff to allege and prove these circumstances. The appellant's right of appeal was not perempted, as the request for reasons for judgment and ongoing discussions...

Citation
[1999] ZAWCHC 2
Parties
Appellant: Vanessa Ross; Respondent: South Peninsula Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 September 1999
Case Number
A741/98
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Decision on Exception to Particulars of Claim
Outcome
Appeal upheld; exception to particulars of claim sustained; respondent's claim dismissed for failure to allege relevant circumstances under section 26(3) of the Constitution.
Judges
Josman, Desai
Legal Topics
Bill of Rights Limitation, Eviction Proceedings, Section 26 Right to Housing, Pleading Requirements, Onus of Proof, Exception to Particulars of Claim
Constitutional Law Land and Property Civil Procedure Bill of Rights Limitation Eviction Proceedings Section 26 Right to Housing Pleading Requirements Onus of Proof +1 more

Case Brief

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Parties

Vanessa Ross

Appellant

South Peninsula Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Decision on Exception to Particulars of Claim

Legal Issues

  1. 1 Whether section 26(3) of the Constitution alters the common law regarding eviction proceedings.
  2. 2 Whether a plaintiff seeking eviction from a home must allege relevant circumstances justifying eviction.
  3. 3 Whether the appellant's right of appeal was perempted by subsequent pleadings.

Ratio Decidendi

Section 26(3) of the Constitution has modified the common law as laid down in Graham v Ridley. A plaintiff seeking to evict a person from his or her home must now allege relevant circumstances that would entitle the court to issue an eviction order. Mere ownership and unlawful occupation are insufficient; the pleadings must enable the court to consider all relevant circumstances as mandated by the Constitution. The adversarial system requires both parties to place such information before the court, and the onus is on the plaintiff to allege and prove these circumstances. The appellant's right of appeal was not perempted, as the request for reasons for judgment and ongoing discussions...

Court Disposition

Appeal upheld; exception to particulars of claim sustained; respondent's claim dismissed for failure to allege relevant circumstances under section 26(3) of the Constitution.

Orders

  • The defendant Mrs Ross's exception to the plaintiff's particulars of claim is upheld.
  • The plaintiff's claim is dismissed for failure to make the necessary allegations mandated by section 26(3) of the Constitution Act 108 of 1996.