Transnet Soc Ltd t/a Transnet Property v EBS Funeral and Tombstones Cash and Carry (4126/2014) [2015] ZAFSHC 26 (19 February 2015)

Transnet Soc Ltd t/a Transnet Property v EBS Funeral and Tombstones Cash and Carry (4126/2014) [2015] ZAFSHC 26 (19 February 2015)

The court found that the applicant satisfied the requirements for rei vindicatio, being the owner of the premises, with the respondent in possession and the premises identifiable and in existence. The respondent failed to provide proof of payment or a sustainable defence to the arrear rental claim, and did not present evidence to dispute the applicant's calculations. The court held that the applicant was entitled to eviction and to enforce the landlord's tacit hypothec over the respondent's movables for unpaid rent, despite the hypothec not being included in the notice of motion but raised in the affidavit. The respondent's arguments regarding disputes of fact and referral to trial were...

Citation
[2015] ZAFSHC 26
Parties
Applicant: Transnet SOC Ltd t/a Transnet Property; Respondent: EBS Funerals and Tombstones Cash and Carry
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 February 2015
Case Number
4126/2014
Procedural Posture
Urgent Application / Application for Eviction and Enforcement of Landlord's Tacit Hypothec
Outcome
Application granted. The applicant is entitled to eviction and enforcement of landlord's tacit hypothec. Condonation for late filing of respondent's affidavit is granted.
Judges
E.K. Tsatsi
Legal Topics
Eviction, Landlord Tenant, Tacit Hypothec, Rei Vindicatio, Arrear Rental, Condonation
Land and Property Civil Procedure Eviction Landlord Tenant Tacit Hypothec Rei Vindicatio Arrear Rental Condonation

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Parties

Transnet SOC Ltd t/a Transnet Property

Applicant

EBS Funerals and Tombstones Cash and Carry

Respondent

Procedural Posture

Urgent Application / Application for Eviction and Enforcement of Landlord's Tacit Hypothec

Legal Issues

  1. 1 Whether the applicant is entitled to evict the respondent from the two leased premises.
  2. 2 Whether the applicant may enforce a landlord's tacit hypothec over the respondent's movables for unpaid rent.
  3. 3 Whether condonation should be granted for the late filing of the respondent's opposing affidavit.

Ratio Decidendi

The court found that the applicant satisfied the requirements for rei vindicatio, being the owner of the premises, with the respondent in possession and the premises identifiable and in existence. The respondent failed to provide proof of payment or a sustainable defence to the arrear rental claim, and did not present evidence to dispute the applicant's calculations. The court held that the applicant was entitled to eviction and to enforce the landlord's tacit hypothec over the respondent's movables for unpaid rent, despite the hypothec not being included in the notice of motion but raised in the affidavit. The respondent's arguments regarding disputes of fact and referral to trial were...

Court Disposition

Application granted. The applicant is entitled to eviction and enforcement of landlord's tacit hypothec. Condonation for late filing of respondent's affidavit is granted.

Orders

  • Condonation is granted for the late filing of the respondent's opposing affidavit.
  • The applicant is authorised, through the Sheriff, to perfect its landlord's tacit hypothec over the respondent's movables at the two leased premises to recover arrears rental.