Vorster v Van Niekerk and Others (6723/2008) [2009] ZAFSHC 9 (5 February 2009)

Vorster v Van Niekerk and Others (6723/2008) [2009] ZAFSHC 9 (5 February 2009)

The court found that there was a substantial dispute of fact regarding whether the respondents had agreed to vacate the property and whether any lifelong right of residence existed. The applicant failed to prove, on the papers, that the respondents were unlawful occupiers or that an eviction order should be granted under section 4(7) of PIE. Even if the applicant's version were accepted, the court held that it would not be just and equitable to grant an eviction order, given the respondents' advanced age and the explicit requirement in PIE to consider the rights and needs of elderly persons. Accordingly, the application was dismissed with costs.

Citation
[2009] ZAFSHC 9
Parties
Applicant: Hendrik Adriaan Vorster; Respondent: Jacobus Gustavus van Niekerk; Respondent: Mev van Niekerk; Respondent: Any other unlawful occupiers found at Saffierstraat 6, Jordania, Bethlehem, Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 February 2009
Case Number
6723/2008
Procedural Posture
Urgent Application / First Instance
Outcome
Application dismissed with costs.
Judges
A Kruger
Legal Topics
Prevention of Illegal Eviction Act, Unlawful Occupation, Eviction Proceedings, Burden of Proof
Land and Property Civil Procedure Prevention of Illegal Eviction Act Unlawful Occupation Eviction Proceedings Burden of Proof

Case Brief

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Parties

Hendrik Adriaan Vorster

Applicant

Jacobus Gustavus van Niekerk

Respondent

Mev van Niekerk

Respondent

Any other unlawful occupiers found at Saffierstraat 6, Jordania, Bethlehem, Free State Province

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the respondents are unlawful occupiers of Saffierstraat 6, Jordania, Bethlehem.
  2. 2 Whether the applicant is entitled to an eviction order under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
  3. 3 Whether it is just and equitable to grant an eviction order considering the rights and needs of elderly persons.

Ratio Decidendi

The court found that there was a substantial dispute of fact regarding whether the respondents had agreed to vacate the property and whether any lifelong right of residence existed. The applicant failed to prove, on the papers, that the respondents were unlawful occupiers or that an eviction order should be granted under section 4(7) of PIE. Even if the applicant's version were accepted, the court held that it would not be just and equitable to grant an eviction order, given the respondents' advanced age and the explicit requirement in PIE to consider the rights and needs of elderly persons. Accordingly, the application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.