CASE NO. 89/2002 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: 1 ST APPLICANT

Similar documents
IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST HIGH COURT, MAHIKENG

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

Guidelines for sheriffs: EVICTIONS

REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

H.M. MUSI, JP et HANCKE, J

Republic of South Africa IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) MR VIDEO (PTY) LTD...Applicant / Respondent

Pensions (Amendment) Act, No. 18/1996: PENSIONS (AMENDMENT) ACT, 1996 ARRANGEMENT OF SECTIONS

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION

IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE, MTHATHA CASE NO. CA&R 53/2013 REPORTABLE JUDGMENT

(5) A witness summons issued by a Tribunal shall be in Form E set out in the First Schedule.

IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST DIVISION, MAFIKENG JASPER JOHANNES MALAN

IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION CASE: 504/07. In the matter between: MORETELE LOCAL MUNICIPALITY APPLICANT.

RULES BOARD FOR COURTS OF LAW ACT, 1985 (ACT NO. 107 OF 1985)

GOVERNMENT NOTICES GOEWERMENTSKENNISGEWINGS

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Plaintiff. Defendant

Rule 4. Process. (a) Summons Issuance; who may serve. Upon the filing of the complaint, summons shall be issued forthwith, and in any event within

MINISTER OF CORRECTIONAL SERVICES JUDGMENT. [1] In accordance to an agreement which was reached between the

HOW TO DEAL WITH ILLEGAL OCCUPATION OF LAND

IN THE HIGH COURT OF SOUTH AFRICA. FIRSTRAND BANK LIMITED Plaintiff. ANDRé ALROY FILLIS First Defendant. MARILYN ELSA FILLIS Second Defendant JUDGMENT

CHAPTER 6:05 STATE LIABILITY AND PROCEEDINGS ACT ARRANGEMENT OF SECTIONS PART I PART II

Commissioners Guidelines_Oct2016

CHAPTER 318 THE TRUSTEES' INCORPORATION ACT An Act to provide for the incorporation of certain Trustees. [25th May, 1956]

BELIZE LANDLORD AND TENANT ACT CHAPTER 189 REVISED EDITION 2003 SHOWING THE SUBSIDIARY LAWS AS AT 31ST OCTOBER, 2003

In the matter between: OLD MUTUAL ASSURANCE COMPANY. TYCOON TRADING ENTEPRISE CC trading as COPPER CHIMNEY RESTAURANT

1. The name of the society shall be THE POLOKWANE SOCIETY OF ADVOACTES (hereinafter referred to as the Society ).

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

BELIZE INTERNATIONAL FINANCIAL SERVICES COMMISSION ACT CHAPTER 272 REVISED EDITION 2011 SHOWING THE SUBSTANTIVE LAWS AS AT 31 ST DECEMBER, 2011

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

THE PARTIES The applicant is a director of companies having his principal place. of business at Long Ridge Building 53, Ridge Road, Glenhazel,

Maintenance Act 9 of 2003 section 49

FREE STATE HIGH COURT, BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA KRAMER WEIHMANN & JOUBERT INC

COMMUNAL PROPERTY ASSOCIATIONS AMENDMENT BILL

ORDINARY STANDING ORDERS OF THE INCORPORATED PRE-SCHOOL LEARNING ALLIANCE ( THE CHARITY )

THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971 ACT NO. 40 OF 1971

IN THE NORTH WEST HIGH COURT, MAHIKENG MARTHINUS JOHANNES LAUFS DATE OF HEARING : 28 OCTOBER 2016 DATE OF JUDGMENT : 01 DECEMBER 2016

The Natural Products Marketing Act

PORTIONS OF ILLINOIS FORCIBLE ENTRY AND DETAINER ACT 735 ILCS 5/9-101 et. seq.

CAPE KILLARNEY PROPERTY INVESTMENTS (PTY) LTD v MAHAMBA AND OTHERS 2001 (4) SA 1222 (SCA) Vivier Adcj, Howie JA and Brand AJA

Court of Appeal Act Chapter C37 Laws of the Federation of Nigeria Arrangement of Sections. Part I General

TWILIGHT BREEZE TRADING 119 CC [Registration number: 2003/065363/23]

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) JUDGMENT. [1] The applicant seeks a final interdict in terms of which he claims

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG THE SPAR GROUP LIMITED

YACHTING WA CONSTITUTION

In the matter between: Case No: 1288/2012. TRANSNET LIMITED First Applicant. LE TAP CC Second Applicant. OCEANS 11 SEAFOODS TAKE OUT CC Respondent

STANDING ORDER (GENERAL) 307 PROCESSES AND REGISTER [SAPS 264]

CHAPTER 337 THE SOCIETIES ACT An Act to provide for the registration of societies and for other related matters. [1st June, 1954]

PROCEDURE TO FILE AN EVICTION

IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

Buffalo City Metropolitan Municipality JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT: MTHATHA) CASE NO : 1766/08. Date heard : 21 June Date delivered : 08 July 2010

Income Tax Authorities

LEASE ADDENDUM FOR DRUG-FREE HOUSING. Property Address:

LAW SOCIETY OF KENYA ACT

SP & C CATERING INVESTMENTS (PTY) LTD. MANUEL JORGE MAIA DA CRUZ First Respondent. CASCAIS RESTAURANT CC Second Respondent

CASE NO. 795/2000 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: and

JURISDICTION OF REGIONAL COURTS AMENDMENT ACT

Supreme Lodge of the World, Loyal Order of Moose

THE PUNJAB RIGHT TO SERVICE ACT, 2011 ( PUNJAB ACT NO.24 OF 2011.) A ACT

SOUTH GAUTENG HIGH COURT, JOHANNESBURG REPUBLIC OF SOUTH AFRICA. SP&C CATERING INVESTMENTS (PTY) LTD Plaintiff

IN THE LAND COURT OF LESOTHO

IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA, PRETORIA

BELIZE BELIZE BUSINESS BUREAU ACT CHAPTER 307 REVISED EDITION 2000 SHOWING THE LAW AS AT 31ST DECEMBER, 2000

Doctors Nova Scotia Act

BAYELSA STATE DEVELOPMENT AND INVESTMENT CORPORATION LAW, 2012

LAWS OF TRINIDAD AND TOBAGO MARRIED PERSONS ACT CHAPTER 45:50. Act 52 of 1976

CHAPTER 77 THE GOVERNMENT PROCEEDINGS ACT. Arrangement of Sections.

Nigerian National Petroleum Corporation Act Chapter N123 Laws of the Federal Republic of Nigeria 2004

NC General Statutes - Chapter 1A 1

Haryana School Education Act, 1995

2011 Bill 6. Fourth Session, 27th Legislature, 60 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 6 RULES OF COURT STATUTES AMENDMENT ACT, 2011

2017 Commonwealth of Massachusetts Town of Essex Warrant for Special Town Meeting ARTICLE 1

IN THE HIGH COURT OF SOUTH AFRICA (NORTHERN CAPE DIVISION, KIMBERLEY)

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

Circuit Court for Montgomery County Case No V UNREPORTED. Berger, Friedman, Fader,

Judgment Sheet IN THE HIGH COURT OF SINDH AT KARACHI. Suit No. 812 of 2001

The Magistrates Court Act

G-STAR RAW SOUTH AFRICA (PROPRIETARY) LIMITED MANUAL PREPARED IN ACCORDANCE WITH SECTION 51 OF

IN THE HIGH COURT OF SOUTH AFRICA JUDGMENT

Registered at the Post Offıce as a Newspaper CONTENTS

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

THE WAQF PROPERTIES (EVICTION OF UNAUTHORISED OCCUPANTS), BILL, 2014

NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH ACT

INFORMATION DOCUMENT ON HOW TO DEAL WITH UNLAWFUL OCCUPATION OF LAND

Civil Procedure II - Part II: Civil proceedings in the High Court Multi Choice Q & A 2014 S1 3 April 2014: Unique number:

NC General Statutes - Chapter 19 Article 1 1

Nigerian Prisons Service Commission (Establishment, etc.) NIGERIAN PRISONS SERVICE COMMISSION (ESTABLISHMENT, ETC.) BILL, 2006

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Rules for the conduct of proceedings before the CCMA. Act. Published under. GN R1448 in GG of 10 October as amended by

CONSTITUTION OF THE CAPE BAR

REPUBLIC OF SOUTH AFRICA. Judicial Matters Amendment Bill, 2016

LEGISLATIVE HOUSES (POWERS AND PRIVILEGES) ACT

Inter-State River Water Disputes Act, 1956

RAeS Royal Charter (17 October 2012) Royal Aeronautical Society Royal Charter

RULES AND REGULATIONS GOVERNING THE LICENSING OF MEAT SHOPS IN NASHIK

Increase in 2013 TABLE A COSTS PART I

CHARTERED INSTITUTE OF STOCKBROKERS ACT

BELIZE AUCTIONEERS ACT CHAPTER 274 REVISED EDITION 2000 SHOWING THE LAW AS AT 31ST DECEMBER, 2000

The registered office of the Company is at De Waterkant Building, 10 Helderberg Street, Stellenbosch.

Transcription:

CASE NO. 89/2002 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: SHERA INVESTMENTS CC t/apie CITY SEHER BANO PEER 1 ST APPLICANT 2 ND APPLICANT and THE PUBLIC INVESTMENT COMMISSIONERS THE SHERIFF, MORETELE 1 ST RESPONDENT 2 ND RESPONDENT JUDGMENT MOGOENG J. [1] The first Applicant is a closed corporation, a franchisee of Pie City, of which the second Applicant is the sole member. The first Respondent is a body which is duly vested with the authority and power to lease out business premises or office space at the Temba City Shopping Complex to any interested person. The first Respondent did lease out business premises at the abovementioned shopping complex to the Applicants. It follows that the Applicants were operating their pie business from this complex. [2] During 2001 the first Respondent instituted an action for the ejectment of the Applicants in the Magistrate s Court at Temba. Judgment was given in favour of the first Respondent on 09 January

2002. On the basis of this judgment, the first Respondent sued a warrant of ejectment out of the office of the Clerk of Court. It was duly handed over to the second Respondent for execution. [3] Armed with the aforementioned warrant of ejectment, the second Respondent went to the Applicants aforementioned business premises and removed the second Applicant and his employees. Thereafter, he locked the doors so as to deny the Applicants and their employees access to the premises. When the second Applicant and the employees were removed from the premises, the Applicants stock, equipment and other belongings were not removed. [4] About one or two hours after the abovementioned people had been removed from the building, the Applicants served a notice of appeal on the Respondents. When the first Respondent still refused to restore the status quo ante as the Applicants apparently expected them to do, upon being served with the notice of appeal, this application was then launched. [5] Two issues, which were raised by the Applicants, fall for determination in this application: 5.1 Did failure to remove the Applicants movable property result in an incomplete eviction which, it is common cause, would be tantamount to no eviction at all? 5.2 If no eviction had taken place, then it would follow that the abovementioned notice of appeal had the effect of suspending the execution of the Court order and that the status quo ante would have to be restored. I address these issues below.

[6] The form, nature and contents of the warrant of ejectment are set out as follows in FORM 30" of the Rules of the Magistrate s Court: This is to authorise and require you to put the said plaintiff in possession of the said premises or land by removing therefrom the said defendant for which this shall be your warrant. This is the form which any Warrant of Ejectment issued by any Clerk of Court must substantially comply with. Accordingly, when the first Respondent approached Magistrate s Court, Moretele, for a Warrant of Ejectment to be sued out against the Applicants, it was issued in the following terms: This is to authorise and require you to put the said Plaintiff in possession of the said premises or land by removing therefrom the said Defendant and all persons claiming occupation by or through or under him for which this shall be your warrant. [7] This warrant of ejectment complies with the material terms of FORM 30 above. It also complies with the same FORM 30 that is reproduced in the SHERIFF S HANDBOOK 1 for the guidance and benefit of the Sheriffs. The warrant of ejectment told the second Respondent exactly what was expected of him. All that the second Respondent was called upon to do in terms of the above warrant of ejectment was to remove the Applicants and their employees from the first Respondent s premises. This he did. There is nothing in the warrant of ejectment enjoining him to remove the belongings of the Applicants as well. When the second Respondent took possession of the keys to the business premises and locked the doors, thereby denying the Applicants

and their employees any further access to the premises, he had thereby completed their eviction and taken possession of the said premises on behalf of the first Respondent at whose instance he was acting. 2 The eviction was complete. Whatever logistical problems and misunderstanding that may have arisen, relating to the belongings of the Applicants that remained in the premises, have no bearing on the completeness or validity of their ejectment. I am, therefore, satisfied that the eviction was completed, as per the warrant of ejectment, when the second Respondent locked the door(s) of the premises after having removed the Applicants and their employees therefrom. I deal next with the effect of the notice of appeal. [8] It was the Applicants contention that their notice of appeal mentioned above should have had the effect of automatically suspending the operation or execution of the Court order. As a general principle, this is correct. 3 However, I have already found, above, that the Court Order was executed when the second Respondent removed the Applicants and their employees from the first Respondent s premises and locked them out. Accordingly, when the Applicants filed and served their notice of appeal one or two hours after their effective removal from the premises, there was nothing to suspend anymore. The order had been fully executed and could not at that late stage be suspended by the notice of appeal. The notice of appeal did not, therefore, have the effect of automatically suspending the operation of the Court order. I turn now to costs.

[9] The second Respondent was nothing more than an agent of the first Respondent. If the first Respondent ordered him to release the goods of the Applicants he would, no doubt, have done so without hesitation. On the other hand, the Applicants never wrote a letter to any of the Respondents asking them to release their goods. In all the letters they wrote to the first Respondent, they sought to rely on the fact that their goods were not removed from the premises to strengthen their case that they had not yet been evicted and that since they had filed a notice of appeal, the operation of the Court order was thereby suspended and they should be allowed back into the premises. [10] The first Respondent 4 at its own risk caused a notice of attachment in execution, filed of record as Annexure D, to be sued out of the office of the Clerk of Court. As a result, the Applicants movable property at the premises in question was attached. No order was made in favour of the first Respondent under case No. 1647/2001 5 which would have entitled the first Respondent to sue out such a notice. It is, therefore, clear to me that the first Respondent must have known firstly, that the Applicants movables were in its premises even after the removal of the Applicants and their employees, and secondly, that the reason why the Applicants movables were kept in those premises was its own notice of attachment in execution aforementioned. The Applicants must have known this reason as well. Notwithstanding this the Applicants never wrote a letter to the first Respondent alerting it to the irregularity of the attachment and demanding the release of their goods. It was only in the urgent application that all these things were complained about for the first time. When that was done, the

first Respondent agreed that the goods be released. [11] In all likelihood the second Respondent would not have opposed this application had the Applicants not asked for an order for costs against him. The Applicants should have realised that the second Respondent was merely the first Respondent s agent, acting both in terms of the notice of attachment in execution and a warrant of ejectment. The Applicants should have refrained from seeking a costs order against him. Accordingly, in respect of the second Respondent, I will order that the Applicants should pay the costs which were reserved on 05 March 2002, if any, and the costs of the 28 March 2002 application. As regards the Applicants and the first Respondent, they have both attained a measure of success on 05 March 2002 and on 28 March 2002. Accordingly I will order that each of these parties pay its own costs. In the result, I make the following order: a). b). c). The Respondents are finally directed to release all the movable property, belonging to the Applicants, to the Applicants; The other prayers are refused and the application in respect thereof is accordingly dismissed; The Applicants are to pay costs of this application to the second Respondent; and d). The Applicants and the first Respondent are each to pay their own costs.

M.T.R. MOGOENG JUDGE OF THE HIGH COURT

APPEARANCES DATE OF HEARING : 28 MARCH 2002 DATE OF JUDGMENT : 18 APRIL 2002 COUNSEL FOR APPLICANTS : ADV G. BLOM COUNSEL FOR 1 ST RESPONDENT COUNSEL FOR 2 ND RESPONDENT ATTORNEYS FOR APPLICANT : ADV A. BESTER : ADV N. GUTTA : HERMAN SCHOLTZ ATTORNEYS FOR 1 ST & 2 ND RESPONDENTS : VAN ONSELEN & VAN ROOYEN