In this case, the Applicants (“the Van Collers”) sought an order to evict the First, second (“the Macheles”) and Third Respondents from the property situated at 27 2nd Road, Hyde Park in Sandton (“the property”). The Applicants sough this relief in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“Pie Act”).
The first issue was whether or not the Applicants were entitled to bring the application and whether Respondents were the unlawful occupiers of the property. The second issue was whether or not there was proper notice given to the Third Respondent. The final issue was whether it was just and equitable to grant an order for eviction of the Respondents from the property.
The First Applicant purchased the property on auction on the 29 November 2016. The Macheles were the registered owners of the property when application was launched.
The application was issued on 12 December 2016 against the Macheles as well as the Third and Fourth Respondent. The Macheles served their notice of intention to oppose on 6 January 2017 and their answering affidavit on 2 February 2017. The Van Collers then filed their replying affidavit on 22 February 2017. The Macheles raised a preliminary point that the Van Collers lacked locus standi to launch the application on 12 December 2016 on the basis that they were not the registered owners of the property when the application was issued. The Macheles were still occupying the property when it went on auction. The first Applicant was aware that the property was occupied by the Macheles.
Counsel for the Van Collers, Mr Jacobs, argued that they were entitled to approach this court as they were people in charge of the premises. He conceded that they were not the registered owners on the date that application was launched however, he argued that the Pie Act provides for both “registered owner” or “a person in charge of the premises” to the bring an application of this nature.
In support of his submission he argued that the Sheriff had control and possession of the property in a sale in execution and passed same to successful bidders being the Van Collers. He argued that the control of the property passed to the Sheriff and thus to the Van Collers, putting them in charge of the property. The Macheles as the previous owners, had until the last moment of the actual sale by the Sherriff to redeem their property.
He relied on the Simpson Judgment where court regarded the “last moment before actual sale” to be the date when ownership is passed rather than the date of the actual sale in the form of acceptance of the successful bid and signature of acceptance to offer to purchase.
Mr Schoeman, counsel for the Macheles, referred to Section 1 of the Pie Act which provides that the:
“Owner’ means the registered owner of the land including an organ of the state.
“Person in charge’ means a person who has at the relevant time had legal authority to give permission to the person to reside upon the land in question.
He argued that the Macheles were the registered owners and entitled to be on the property when served with the application. Furthermore, as the registered owners they did not require permission from anyone to be on the premises. He argued that the application be dismissed with costs on the attorney client scale.
Mr Schoeman argued that based on the evidence before the court it was clear that the Van Collers lacked locus standi from the outset.
The Van Collers were attempted to introduce new evidence regarding their locus Standi in their replying affidavit where such evidence ought to have been included in their founding affidavit.
The court held that the Applicants were not the registered owners of the property as reflected in the Windeed dated 30 January 2017. The court went on to say that in terms of Section 1 of the Pie Act the right of “person in charge of the premises” does not trump the rights of the registered owner of the property as at the date of the launching an application in terms of this Act.
Therefore, the Applicants lacked locus standi to bring the application at the time the application was launched.
In respect of the evidence introduced in the replying affidavit, the court held it is trite law that the Applicant makes out its case in the founding affidavit. The court went on to indicate that it would be impermissible to consider the Windeed report attached by the Van Collers and it would be unjust as the Macheles would be denied the opportunity to answer the claim made therein. Therefore, to grant an eviction order flowing from such circumstances would not be just and equitable.
The application was accordingly dismissed.
In terms of the Pie Act, the registered owner or the person in charge of the property can bring an eviction against an unlawful occupier. However, the provision of “person in charge” caters for the situation position where the registered owner of the property was not readily available at the time when the eviction application was launched.