Kemp v Khohlile

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 26 February 2009
• Docket Number: 1778/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 19 February 2009
• Citation: 2009 JDR 0140 (T)

Jones J:

[1] This is an application in terms of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 for the eviction of the unlawful occupier of a house at 41 Hlobo Street, Motherwell, Port Elizabeth (Erf 7293 Motherwell), which is part of the Nelson Mandela Metropolitan Municipality, Port Elizabeth. The respondent is a Mrs Kohlile, who is alleged to reside at the property. The applicant's founding papers allege that the applicant does not know whether other persons occupy the property with her, but it is now common cause that her father and mother, aged 81 and 78 years, her two children aged 24 and 20 years, and her infant grandchild aged 2 years live at the property.

[2] The respondent opposes the application. Her sole defence is that she is not in occupation. She lived there with her parents, two children and her grandchild from 2004 until 2006, when she moved out and took up residence with her boyfriend at 2 Mpetha Street, NU 10 Motherwell, Port Elizabeth. That is where she now resides.

2009 JDR 0140 p2

Jones J

Her parents, children and grandchild still live at 41 Hlobo Street, and she goes there on a daily basis to cook and clean for them. She also on occasion sleeps over there when her parents are ill or need assistance. But she denies that she is the occupier.

[3] The applicant has established that he is the registered owner of the property. It was formerly registered in the name of the respondent's brother and sister in law, a Mr and Mrs Oliphant, but was apparently repossessed in 1993 and was registered as the property of a number of financial institutions before it was purchased by the applicant in 2007. The applicant has also established that those presently in occupation are unlawful occupiers within the meaning of the Act, that they have been given proper notice to vacate, and they have failed to do so. Assuming for the moment that the respondent is the occupier, I can accept that the formal requirements of section 4 of the Act in respect of notice of these proceedings have been satisfied. The respondent was given notice in terms of section 4(2), although there is ambiguity, to say the least, in the return of service of the court order and rule 4(2) notice on her. [1] Nothing has been made of this lack of clarity in argument on behalf of the respondent, and I accept for present purposes that she and the persons presently living there have all been made aware of this...