Van Zyl en Andere v Steyn NO en Andere (A475/2003) [2004] ZAFSHC 93 (14 October 2004)

Van Zyl en Andere v Steyn NO en Andere (A475/2003) [2004] ZAFSHC 93 (14 October 2004)

The court held that the lease agreements relied upon by the respondents were entered into after the mortgage bonds were registered and without the required written consent of the bondholders. As such, these leases were invalid and unenforceable against the purchasers who acquired the properties at the judicial auction free of any leases. The principle of 'huur gaat voor koop' does not apply in these circumstances, and the remedy for the lessees lies in a claim for damages against the lessor, not in enforcing occupation against the purchasers. The court further found that, under PIE, both the purchasers and the sheriff qualify as persons in control of the land and thus have locus standi to...

Citation
[2004] ZAFSHC 93
Parties
Applicant: Albert Carl van Zyl; Applicant: Maritz Wolfaardt; Applicant: Willem Abraham Bernard; Applicant: Barend Jacobus de Lange N.O; Applicant: Petrus Jacobus Theron N.O; Applicant: Elizabeth Maria Theron N.O; Applicant: Barend Jacobus de Lange; Applicant: Die Balju, Landdrosdistrik Boshof; Respondent: Magdalena Petronella Johanna Steyn N.O.; Respondent: Anna Jacoba Catharina de Neysschen N.O.; Respondent: D H Naude; Respondent: Petrus Daniël Gerhardus Steyn; Respondent: Jacomina Elizabeth Steyn; Respondent: Tokologo Munisipaliteit
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 October 2004
Case Number
A475/2003
Procedural Posture
Civil Appeal / Appeal From Single Judge's Dismissal of Eviction Application
Outcome
Appeal upheld; order of the court a quo set aside and replaced with eviction and costs order.
Judges
Wright R, Rampai R, Kruger R
Legal Topics
Eviction, Locus Standi, Sale in Execution, Invalid Lease, Prevention of Illegal Eviction Act
Land and Property Civil Procedure Eviction Locus Standi Sale in Execution Invalid Lease Prevention of Illegal Eviction Act

Case Brief

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Parties

Albert Carl van Zyl

Applicant

Maritz Wolfaardt

Applicant

Willem Abraham Bernard

Applicant

Barend Jacobus de Lange N.O

Applicant

Petrus Jacobus Theron N.O

Applicant

Elizabeth Maria Theron N.O

Applicant

Barend Jacobus de Lange

Applicant

Die Balju, Landdrosdistrik Boshof

Applicant

Magdalena Petronella Johanna Steyn N.O.

Respondent

Anna Jacoba Catharina de Neysschen N.O.

Respondent

D H Naude

Respondent

Petrus Daniël Gerhardus Steyn

Respondent

Jacomina Elizabeth Steyn

Respondent

Tokologo Munisipaliteit

Respondent

Procedural Posture

Civil Appeal / Appeal From Single Judge's Dismissal of Eviction Application

Legal Issues

  1. 1 Whether the applicants had locus standi to bring the eviction application.
  2. 2 Whether the lease agreements entered into after registration of the mortgage bonds were valid and enforceable against the purchasers at the judicial auction.
  3. 3 Whether the purchasers and sheriff were entitled to seek eviction of the respondents under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

Ratio Decidendi

The court held that the lease agreements relied upon by the respondents were entered into after the mortgage bonds were registered and without the required written consent of the bondholders. As such, these leases were invalid and unenforceable against the purchasers who acquired the properties at the judicial auction free of any leases. The principle of 'huur gaat voor koop' does not apply in these circumstances, and the remedy for the lessees lies in a claim for damages against the lessor, not in enforcing occupation against the purchasers. The court further found that, under PIE, both the purchasers and the sheriff qualify as persons in control of the land and thus have locus standi to...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced with eviction and costs order.

Orders

  • Orders in terms of paragraphs 2.4 and 2.5 of the Notice of Motion are granted, with the one-month period commencing from the date of this judgment.
  • First, second, third, fifth, and sixth respondents are ordered to pay the costs of the application jointly and severally, payment by one to operate as a discharge for the others.