AMC Property (Pty) Ltd and Another v Kleynhans and Others (1348/2021) [2021] ZAFSHC 168 (11 August 2021)

AMC Property (Pty) Ltd and Another v Kleynhans and Others (1348/2021) [2021] ZAFSHC 168 (11 August 2021)

The court found that there is a genuine dispute of fact regarding the terms of the oral agreement governing the respondents' occupation of the farms. The affidavits do not resolve whether the respondents' occupation was permitted until December 2020 or December 2021. Given that the probabilities on the papers are evenly balanced and the dispute is narrow and can be expeditiously resolved by oral evidence, the court exercised its discretion to refer the matter for viva voce evidence. This approach is consistent with the principles governing disputes of fact in motion proceedings and ensures a just and expeditious resolution of the central issue.

Citation
[2021] ZAFSHC 168
Parties
Applicant: AMC Property (Pty) Ltd; Applicant: Hughes Properties (Pty) Ltd; Respondent: Chris Kleynhans; Respondent: Any other unlawful occupiers of the farms described as Remainder of Portion 6 of the farm Mimosa Glen 885, Bloemfontein, District Bloemfontein and Portion 7 of the farm Mimosa Glen 885, Bloemfontein, District Bloemfontein, Free State Province; Respondent: The farms described as Portion 3 (of 2) of the farm Fairview 1756, Bloemfontein, District Bloemfontein and Portion 7 of the farm Fairview 2845, Bloemfontein, District Bloemfontein, Free State Province; Respondent: Mangaung Metropolitan Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 August 2021
Case Number
1348/2021
Procedural Posture
Urgent Application / Referral for Oral Evidence After Opposed Motion
Outcome
Application referred for oral evidence to determine the terms of the oral agreement regarding occupation of the farms.
Judges
Voges, A J
Legal Topics
Unlawful Occupation, Eviction, Oral Agreement Dispute, Prevention of Illegal Eviction Act, Dispute of Fact, Referral for Oral Evidence
Land and Property Civil Procedure Unlawful Occupation Eviction Oral Agreement Dispute Prevention of Illegal Eviction Act Dispute of Fact Referral for Oral Evidence

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Parties

AMC Property (Pty) Ltd

Applicant

Hughes Properties (Pty) Ltd

Applicant

Chris Kleynhans

Respondent

Any other unlawful occupiers of the farms described as Remainder of Portion 6 of the farm Mimosa Glen 885, Bloemfontein, District Bloemfontein and Portion 7 of the farm Mimosa Glen 885, Bloemfontein, District Bloemfontein, Free State Province

Respondent

The farms described as Portion 3 (of 2) of the farm Fairview 1756, Bloemfontein, District Bloemfontein and Portion 7 of the farm Fairview 2845, Bloemfontein, District Bloemfontein, Free State Province

Respondent

Mangaung Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Referral for Oral Evidence After Opposed Motion

Legal Issues

  1. 1 Whether the respondents are unlawful occupiers of the applicants' farms.
  2. 2 Whether the oral agreement permitted occupation until December 2020 or December 2021.
  3. 3 Whether the applicants are entitled to an eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998.

Ratio Decidendi

The court found that there is a genuine dispute of fact regarding the terms of the oral agreement governing the respondents' occupation of the farms. The affidavits do not resolve whether the respondents' occupation was permitted until December 2020 or December 2021. Given that the probabilities on the papers are evenly balanced and the dispute is narrow and can be expeditiously resolved by oral evidence, the court exercised its discretion to refer the matter for viva voce evidence. This approach is consistent with the principles governing disputes of fact in motion proceedings and ensures a just and expeditious resolution of the central issue.

Court Disposition

Application referred for oral evidence to determine the terms of the oral agreement regarding occupation of the farms.

Orders

  • The matter is referred for viva voce evidence to determine the terms of the oral agreement reached between the applicants and the first respondent in respect of occupation of the farms Mimosa Glen and Fairview.
  • The witnesses who may be called will be limited to Mr Warwick Leonard Ronald Hughes, Mr Johannes Petrus Jordaan, Mr Chris Kleynhans and Mr Theuns Wolmarans.