Vogel v Tshivhula and Others (65580/2013) [2015] ZAGPPHC 1069 (20 November 2015)

Vogel v Tshivhula and Others (65580/2013) [2015] ZAGPPHC 1069 (20 November 2015)

The applicant lawfully purchased the property at a public auction after Absa obtained default judgment against the second respondent, who defaulted on his loan obligations. The respondents' occupation is unlawful under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, as they have no legal right or consent to occupy the property. The lease agreement relied upon by the respondents has lapsed. The application for leave to appeal against the rescission judgment was not properly filed with the registrar and does not suspend execution of the order. The applicant effected proper service of the eviction application on the respondents and their attorneys, and the...

Citation
[2015] ZAGPPHC 1069
Parties
Applicant: Charmaine Vogel; Respondent: Makhomisane Lovemore Tshivhula; Respondent: Vutshilo Theophilos Muthurana; Respondent: Makhado Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 November 2015
Case Number
65580/2013
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Eviction order granted against the first and second respondents and any other persons occupying the property under them; costs awarded against the first and second respondents jointly and severally.
Judges
M J Teffo
Legal Topics
Eviction, Unlawful Occupation, Prevention of Illegal Eviction Act, Service of Process, Rule 49 11 Suspension, Sale in Execution
Land and Property Civil Procedure Eviction Unlawful Occupation Prevention of Illegal Eviction Act Service of Process Rule 49 11 Suspension Sale in Execution

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Parties

Charmaine Vogel

Applicant

Makhomisane Lovemore Tshivhula

Respondent

Vutshilo Theophilos Muthurana

Respondent

Makhado Municipality

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to evict the first and second respondents and any other persons occupying the property under them from the property.
  2. 2 Whether the respondents' occupation is unlawful under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
  3. 3 Whether the application for leave to appeal against the rescission judgment suspends the eviction proceedings.

Ratio Decidendi

The applicant lawfully purchased the property at a public auction after Absa obtained default judgment against the second respondent, who defaulted on his loan obligations. The respondents' occupation is unlawful under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, as they have no legal right or consent to occupy the property. The lease agreement relied upon by the respondents has lapsed. The application for leave to appeal against the rescission judgment was not properly filed with the registrar and does not suspend execution of the order. The applicant effected proper service of the eviction application on the respondents and their attorneys, and the...

Court Disposition

Eviction order granted against the first and second respondents and any other persons occupying the property under them; costs awarded against the first and second respondents jointly and severally.

Orders

  • An eviction order is granted against the first and second respondents and any other persons who occupy or hold the immovable property known as Erf [1…….] [L……] [T…….], Extension 1 Township, Registration Division LS, Limpopo Province and held by Deed of Transfer [T………] under the first and second respondents.
  • The first and second respondents and/or any other persons who currently occupy or hold the property under the first or the second respondent are ordered to vacate the property within 14 days from the date of this order.