Erstwhile Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd and Another

• Jurisdiction: South Africa
• Citation: 2016 (6) SA 466 (GJ)

Erstwhile Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd and Another
2016 (6) SA 466 (GJ)

2016 (6) SA p466

Citation	2016 (6) SA 466 (GJ)
Case No	17119/15
Court	Gauteng Local Division, Johannesburg
Judge	Meyer J
Heard	September 8-10, 2015
Judgment	September 8-10, 2015
Counsel	B Ngqwangele for the applicants.; C van der Merwe for the respondents.

Flynote : Sleutelwoorde B

Practice — Judgments and orders — Rescission — Whether order suspended by application for its rescission — Superior Courts Act 10 of 2013, s 18.

Headnote : Kopnota

C Applicants were the erstwhile occupiers of a building, respondents its owners or controllers. The owners had obtained an interim eviction order, and the occupiers had applied for its rescission. While the application was pending the sheriff evicted the occupiers, who applied for a mandament van spolie. One of its requisites, unlawful deprivation of possession, was in focus: if the D eviction order was suspended by the rescission application, the eviction would be unlawful; if the order were not suspended, the eviction would be lawful. The issue were whether there existed a rule that an order was suspended by an application for its rescission.

Held, that it was doubtful that there was a common-law rule to this effect; and that neither s 18 nor any other section of the Superior Courts Act 10 of 2013 created such a provision. (Paragraphs [15] – [16], [18] and [20] at 469J – 470C, 470H – I and 471D – E.) E

The order not having been suspended, eviction under it had been lawful, and the occupiers not unlawfully deprived of possession. The application for the mandament van spolie was consequently refused. (Paragraphs [21] – [22] at 471F – G.)

Cases Considered

Annotations F

Case law

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) ([2013] ZASCA 176): dictum in para [12] applied

Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ): doubted & not followed G

Klein NO and Another v Minister of Trade and Industry and Another 2007 (1) SA 218 (T) ([2007] 1 All SA 257): dictum in para [34] applied

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied

Peniel Development (Pty) Ltd and Another v Pietersen and Others 2014 (2) SA 503 (GJ): not followed H

United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W): considered.

Statutes Considered

Statutes I

The Superior Courts Act 10 of 2013, s 18: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-267.

Case Information

B Ngqwangele for the applicants.

C van der Merwe for the respondents. J

2016 (6) SA p467

An application for a mandament van spolie. The court dismissed the A application (see [22]).

Judgment

Meyer J:

[1] This is an urgent application for relief by way of the mandament van spolie. The applicants occupied the property situate at Williston Court, B corner Clarendon Road and Louis Botha Avenue, Parktown, Johannesburg (the property). They were evicted from the property by execution of an interim eviction order of this court. They contend that the execution of the order amounted to an unlawful deprivation of their possession of the property and they accordingly seek relief to the effect that their possession be restored. C

[2] The respondents launched an application for the eviction of the applicants from the property in this court on 8 May 2015. In part A of the notice of motion, they sought that the applicants be evicted from the property pending the finalisation of part B of the notice of motion in D which a final eviction order is sought. The proceedings were instituted in terms of s 5(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) in terms of which —

'the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order . . .'. E

The application was opposed by the applicants. On 14 July 2015 Modiba AJ granted the interim eviction order of the applicants as sought in part A of the notice of motion. The hearing of part B of the application has not yet taken place. F

[3] The respondents' attorneys, Vermaak & Partners Inc, by letter dated 17 July 2015, informed the applicants' attorneys, Malangeni Attorneys, that 'all the occupiers will be evicted in terms of the interim order of the honourable Mr Justice Modiba'.

[4] The applicants then launched an application on 21 July 2015 in this G court in which they sought the rescission of the interim eviction order in terms of rule 42(1)(b) of the Uniform Rules of Court, which provides that —

'(t)he court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary . . . an order or judgment in which there is an ambiguity, or a patent error H or omission, but only to the extent of such ambiguity, error or omission'.

The application for...