ABSA Bank Limited v Mahlaba and Others (3321/2021) [2022] ZAGPJHC 988 (24 November 2022)

ABSA Bank Limited v Mahlaba and Others (3321/2021) [2022] ZAGPJHC 988 (24 November 2022)

The court found that the respondents raised no new issues in their application for leave to appeal and that all arguments had been addressed in the original eviction judgment. The respondents failed to provide evidence of a valid and enforceable agreement regarding improvements or of a lien over the property....

Source-derived case information.

Citation
[2022] ZAGPJHC 988
Parties
Applicant: ABSA Bank Limited; Respondent: Mahlaba, Frans Sipho; Respondent: All persons residing at the property under the control and authority of the first respondent; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 November 2022
Case Number
3321/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
Adams
Legal Topics
Eviction Order, Leave to Appeal, Unlawful Occupation, Lien Defence
Civil Procedure Land and Property Eviction Order Leave to Appeal Unlawful Occupation Lien Defence

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Parties

ABSA Bank Limited

Applicant

Mahlaba, Frans Sipho

Respondent

All persons residing at the property under the control and authority of the first respondent

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Order

Legal Issues

  1. 1 Whether the respondents have reasonable prospects of success on appeal against the eviction order.
  2. 2 Whether a valid and enforceable agreement existed between the applicant and first respondent regarding improvements to the property.
  3. 3 Whether the respondents' alleged lien over the property entitled them to remain in occupation.

Ratio Decidendi

The court found that the respondents raised no new issues in their application for leave to appeal and that all arguments had been addressed in the original eviction judgment. The respondents failed to provide evidence of a valid and enforceable agreement regarding improvements or of a lien over the property. Applying the Plascon Evans principle, the respondents' version was rejected. The court held that there were no reasonable prospects that another court would reach different factual or legal conclusions. The threshold for granting leave to appeal under s 17(1)(a)(i) of the Superior Courts Act is stringent, and the respondents did not meet it. Leave to appeal was therefore refused.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The first and second respondents’ application for leave to appeal is dismissed with costs.