Ziakria and Another v Unlawful Occupiers of [....] and Others (33233/2019) [2021] ZAGPPHC 63 (29 January 2021)

Ziakria and Another v Unlawful Occupiers of [....] and Others (33233/2019) [2021] ZAGPPHC 63 (29 January 2021)

The court found that genuine and bona fide disputes of fact exist regarding the lawfulness of the respondents' occupation and the validity of the alleged sale agreement. The respondents provided positive evidence and material denials that cannot be resolved on affidavit alone. The applicants should have foreseen the likelihood of such disputes given the circumstances and history of occupation and renovations. Dismissing the application would be unfair due to the importance and value of the matter. Accordingly, the application is referred to trial for proper ventilation of the disputed issues, with affidavits standing as pleadings and costs reserved.

Citation
[2021] ZAGPPHC 63
Parties
Applicant: Mohamed Iqbal Ziakria; Applicant: Hang Cuane; Respondent: The Unlawful Occupiers of [....]; Respondent: The City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 January 2021
Case Number
33233/2019
Procedural Posture
Civil Application / Referral to Trial After Opposed Motion Proceedings
Outcome
Application referred to trial; affidavits to stand as pleadings; costs reserved.
Judges
M J Teffo
Legal Topics
Eviction, Unlawful Occupation, Prevention of Illegal Eviction Act, Dispute of Fact, Sale of Immovable Property
Land and Property Civil Procedure Eviction Unlawful Occupation Prevention of Illegal Eviction Act Dispute of Fact Sale of Immovable Property

Case Brief

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Parties

Mohamed Iqbal Ziakria

Applicant

Hang Cuane

Applicant

The Unlawful Occupiers of [....]

Respondent

The City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Civil Application / Referral to Trial After Opposed Motion Proceedings

Legal Issues

  1. 1 Whether the first respondents are unlawful occupiers of the property under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
  2. 2 Whether a valid sale agreement exists between the applicants and the first respondents regarding the property.
  3. 3 Whether the disputes of fact raised are genuine and bona fide, warranting referral to trial.

Ratio Decidendi

The court found that genuine and bona fide disputes of fact exist regarding the lawfulness of the respondents' occupation and the validity of the alleged sale agreement. The respondents provided positive evidence and material denials that cannot be resolved on affidavit alone. The applicants should have foreseen the likelihood of such disputes given the circumstances and history of occupation and renovations. Dismissing the application would be unfair due to the importance and value of the matter. Accordingly, the application is referred to trial for proper ventilation of the disputed issues, with affidavits standing as pleadings and costs reserved.

Court Disposition

Application referred to trial; affidavits to stand as pleadings; costs reserved.

Orders

  • The application is referred to trial.
  • The notice of motion and founding affidavit shall stand as combined summons; the answering affidavit shall stand as the defendant's plea; the replying affidavit shall stand as a replication.