Trolese v Henderson and Others (1335/2021) [2023] ZANCHC 50 (25 August 2023)

Trolese v Henderson and Others (1335/2021) [2023] ZANCHC 50 (25 August 2023)

The High Court retains concurrent jurisdiction to hear the eviction application, as the lease clause does not make the Magistrates Court the exclusive forum. The first respondent is not an unlawful occupier under PIE, as he does not reside at the property, and thus cannot be evicted. The second respondent and her children are unlawful occupiers, having occupied the property without the owner's consent. Although the municipality cannot provide permanent accommodation, it has made reasonable provision for temporary alternative accommodation in a transit camp. The second respondent failed to demonstrate efforts to secure alternative accommodation or that she would be rendered homeless. The...

Citation
[2023] ZANCHC 50
Parties
Applicant: Giuseppe Trolese; Respondent: Ross Kirby Henderson; Respondent: S Maretela; Respondent: Sol Plaatje Municipality
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
25 August 2023
Case Number
1335/2021
Procedural Posture
Eviction Application / Judgment
Outcome
Eviction of the second respondent and all persons occupying through her; costs order against the first respondent on attorney and client scale.
Judges
C C Williams
Legal Topics
Prevention of Illegal Eviction Act, Unlawful Occupation, Just and Equitable Eviction, Municipal Housing Obligations, Children and Eviction, Costs Orders
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Unlawful Occupation Just and Equitable Eviction Municipal Housing Obligations Children and Eviction +1 more

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Parties

Giuseppe Trolese

Applicant

Ross Kirby Henderson

Respondent

S Maretela

Respondent

Sol Plaatje Municipality

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to hear the eviction application despite a clause consenting to Magistrates Court jurisdiction.
  2. 2 Whether the first respondent is an unlawful occupier under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
  3. 3 Whether it is just and equitable to evict the second respondent and her children given the lack of alternative accommodation.

Ratio Decidendi

The High Court retains concurrent jurisdiction to hear the eviction application, as the lease clause does not make the Magistrates Court the exclusive forum. The first respondent is not an unlawful occupier under PIE, as he does not reside at the property, and thus cannot be evicted. The second respondent and her children are unlawful occupiers, having occupied the property without the owner's consent. Although the municipality cannot provide permanent accommodation, it has made reasonable provision for temporary alternative accommodation in a transit camp. The second respondent failed to demonstrate efforts to secure alternative accommodation or that she would be rendered homeless. The...

Court Disposition

Eviction of the second respondent and all persons occupying through her; costs order against the first respondent on attorney and client scale.

Orders

  • The second respondent and all persons occupying through her are evicted from the property at [...] T[...] M[...], Royldene, Kimberley.
  • The occupiers must vacate the property by no later than 29 September 2023; failing which, the eviction order may be carried out from 2 October 2023.