Krugersdorp Town Council v Fortuin

• Judge: Hiemstra J and Jansen J
• Judgment Date: 16 March 1964
• Hearing Date: 03 March 1964
• Court: Transvaal Provincial Division

F Hiemstra, J.:

The appellant was plaintiff in the court below and issued summons against the respondent, who was defendant in that court. The summons reads:

'(1)

Plaintiff is the owner of certain immovable property known as stand 125 (2) (Avenue), Cape Coloured Settlement, Krugersdorp.

(2)

Defendant is in possession of the said immovable property, G wherefore plaintiff prays for the ejectment of defendant from the said immovable property with costs.'

The defendant asked for particulars, inter alia: In what manner did defendant come into possession thereof? For what reasons or on what grounds is defendant in possession thereof? For what reasons or on what H grounds does plaintiff claim the ejectment of defendant therefrom? To this request plaintiff replied that defendant does not require the particulars for pleading, and is not entitled thereto. Plaintiff refused to furnish them. Defendant thereupon excepted to the summons on the ground that it did not disclose a cause of action. The magistrate upheld the exception on the basis that, as the summons stands, there is no indication on what grounds the plaintiff is suing the defendant. The only reason given is that defendant is in occupation. The magistrate

Hiemstra J

agreed with the submission of defendant's attorney that the plaintiff must allege that the defendant is in unlawful occupation.

The plaintiff now appeals and contends that the summons is perfectly in A order because an owner is prima facie entitled to possession and if the defendant is in possession he must give it up unless he can in his pleading advance grounds as to why he should be entitled to retain possession.

The plaintiff bases his case on the well-known case of Graham v Ridley, 1931 T.P.D. 476. The head-note of that case reads:

B 'Where an owner of property sues for ejectment his real cause of action is simply the fact that he is owner, and therefore prima facie entitled to possession. Consequently, an allegation in his declaration or summons that he has granted defendant a lease which is terminated is merely a convenient way of anticipating defendant's plea that he is in possession by virtue of a lease, and is not strictly necessary to the cause of action.'

C This case was followed by the Appellate Division in the case of Jeena v Minister of Lands, 1955 (2) SA 380 (AD) at p. 382. In that case the then CHIEF JUSTICE said:

'It was common cause that the Government is the owner of lot 21...