Automated Summary
Key Facts
The Applicant (Welkom Retirement Village) successfully applied for an eviction order against the 1st Respondent (Beverley-Anne Shahia) under the Prevention of Illegal Eviction Act (PIE). The court declared her an illegal occupier of a unit in the retirement village, ordered her to vacate by 31 March 2023, and authorized the Sheriff to enforce the eviction. The 1st Respondent's appeal for leave to challenge this order was dismissed due to no reasonable prospects of success, as the court found her failure to pay levies and breach of the endowment agreement justified the eviction.
Transaction Type
Endowment Agreement between Welkom Retirement Village and Beverley-Anne Shahia regarding residency and service charges.
Issues
- Whether the 1st Respondent has a reasonable prospect of success on appeal regarding the court's decision on the settlement agreement and breach of contract.
- Whether the settlement agreement reached with the Ombudsman in 2018 amended the terms of the original endowment agreement regarding insurance premiums.
- Whether the 1st Respondent's partial payment of levies, based on her disagreement with the insurance premium, constitutes a breach of the endowment agreement.
Holdings
The court dismissed the application for leave to appeal, determining that the appeal does not have any reasonable prospects of success. The order was made with costs, and the application was not pursued with sufficient grounds to warrant granting leave under Section 17 of the Superior Courts Act 10 of 2013.
Remedies
- The First Respondent is ordered to pay the costs of the Condonation Application and the Application on a party and party scale.
- The Sheriff may enlist the assistance of South African Police Services to enforce the eviction if deemed necessary.
- The Sheriff of the Court is authorized to evict the First Respondent and any other occupiers if they refuse or fail to comply with the Court Order by 31 March 2023.
- The First Respondent and any other occupiers must vacate the immovable property on or before 31 March 2023.
- The First Respondent and any others occupying the property are declared illegal occupiers under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE).
- The First Respondent must remove all personal belongings, furniture, and equipment from the property by 31 March 2023.
Legal Principles
The court applied the legal standard for granting leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013, emphasizing that leave must only be granted if there is a realistic chance of success on appeal, not merely a possibility.
Precedent Name
- S v Smith
- Matoto v Free State Gambling and Liquor Authority and Others
- MEC for Health, Eastern Cape v Mkhitha and Another
Key Disputed Contract Clauses
- Clause 6 of the endowment agreement obligates the Donor to pay a monthly service charge as determined by the Board, which the 1st Respondent disputed by paying only self-determined amounts.
- Clause 11 of the endowment agreement grants the Board the right to terminate the Donor's occupation of the cottage if the Donor breaches any terms and conditions or is guilty of misconduct deemed detrimental to the Board or other occupants.
Cited Statute
- Community Service Schemes Act
- Superior Courts Act 10 of 2013
- Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (PIE)
Judge Name
BERRY, AJ
Passage Text
- 1. The First Respondent and/or any other person occupying the immoveable property, Unit Number [...], Welkom Retirement Village, P [...] Avenue, Jan Cilliers Park, Welkom, is declared to be illegal occupiers. 2. The First Respondent and/or any other person occupying the immoveable property, Unit Number [...], Welkom Retirement Village, P [....] Avenue, Jan Cilliers Park, Welkom, is ordered to vacate the immovable property on or before 31 March 2023.
- 1. The Application for leave to appeal is dismissed with costs.
Damages / Relief Type
- Eviction order requiring vacating and removal of belongings by 31 March 2023
- Costs awarded to Applicant on party and party scale for Condonation Application and eviction proceedings
- Declaration of illegal occupation under the Prevention of Illegal Eviction Act (PIE)