Vengadesan NO v Naidoo

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 22 August 2008
• Docket Number: 9684/2006
• Court: Durban and Coast Local Division
• Hearing Date: 08 May 2008
• Citation: 2008 JDR 1041 (D)

Ntshangase J:

[1]

In this matter the applicants are seeking an order:

1.

Ejecting the respondent and all persons occupying through him from the premises situated at 27 Musari Road, Asherville, Durban ["the property"]

2.

Costs of suit.

[2]

The first and second applicants purport to bring this application in their capacities as the joint liquidators of DSS Warehousing and Transport close corporation which was provisionally liquidated by special resolution registered on 5 November 2003. The provisional liquidation was later confirmed. The close corporation, whose sole member, appears to be the respondent's wife, owned the property.

2008 JDR 1041 p2

Ntshangase J

[3]

In June 2005 the applicants had instituted an action against the respondent to claim payment of arrear rental, it being alleged that the respondent had breached the terms of the lease agreement, and to seek an order confirming cancellation of the lease agreement and authorising the sheriff to eject the respondent from the property. The applicants also lodged a "notice of proceedings in terms of section 4(1) and (2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1988 (sic) (certainly meant to be '19 of 1998'), ["the PIE Act"]. What followed was a discussion at court on 20 July 2006 and an agreement to adjourn the action sine die and that the respondent would make a formal offer of R650 000 to purchase the property from the applicants (in their capacities as liquidators). Thereafter on 24 July 2006, the applicants filed a notice of withdrawal of their action against the respondent.

[4]

It is in regard to such withdrawal that the respondent, in his affidavit in answer to the applicants' notice of motion states:

"It is instructive to note that the applicants did not withdraw the PIE application which is still pending before the Magistrate's court."

Therein lies the basis of the respondent's point in limine of lis pendens reflected in his answering affidavit which reads as follows:

"In the premises I have been advised and respectfully submit that the applicants had no basis upon which to launch a PIE application in the High Court without first having the PIE application in the Magistrate's court finalised."

2008 JDR 1041 p3

Ntshangase J

[5]

In argument Mr Dayal, who appeared for the respondent, treated the PIE Act application as subsisting independently of the action instituted by the applicants. Mr Oliff...