African Cellurar (Pty) Ltd and Another v Firstmile Prop JHB Crown Mines (Pty) Ltd and Another (2024/070849) [2024] ZAGPJHC 605 (28 June 2024)
- Citation
- [2024] ZAGPJHC 605
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- GC Wright
- Case number
- 2024/070849
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- GC Wright
- Case number
- 2024/070849
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, even if urgency exists, it is not sufficient to justify a Friday hearing. The respondents have not been given a fair opportunity to file an opposing affidavit. The applicants' attorney may set the matter down at a later date if urgency is established. The matter is accordingly removed from the roll and costs are awarded against the applicants.
Court disposition
Application removed from the roll; costs awarded against the applicants.
Orders
- The matter is removed from the roll.
- The applicants are jointly and severally to pay the respondents’ costs.
02
Material facts
Parties
African Cellurar (Pty) Ltd
Applicant Counsel: S.F SilamulelaWajahat Choudary
Applicant Counsel: S.F SilamulelaFirstmile Prop JHB Crown Mines (Pty) Ltd
Respondent Counsel: Phambane Mokone IncorporatedTake Shape Property Management (Pty) Ltd
Respondent Counsel: Phambane Mokone Incorporated03
Procedural history
Posture
Urgent Application / Application for Urgent Spoliation Relief; Opposed, Respondents Not Yet Filed Affidavit
04
Questions and positions
Legal issues
- 01
Whether the applicants are entitled to urgent spoliation relief for alleged deprivation of possession of the shop.
- 02
Whether the matter is sufficiently urgent to warrant a Friday hearing.
- 03
Whether the respondents have been afforded a fair opportunity to file an opposing affidavit.
Party arguments
- Applicant
- The applicants allege that the respondents switched off the electricity and locked the shop on 23 June 2024, depriving them of possession. They assert urgency on the basis that their business, which sells cellphones, faces liquidation and their employees risk unemployment if trading cannot resume.
- Respondent
- The respondents oppose the application but have not yet had time to file an opposing affidavit. Their counsel requested punitive costs, arguing that the matter should not proceed without proper opportunity to respond.
05
Court’s reasoning
Legal principles
- 01
General principles of South African civil procedure
A party seeking urgent relief must demonstrate sufficient urgency and that the opposing party has been afforded a fair opportunity to respond.
- 02
Nino Bonino v De Lange 1906 TS 120
Spoliation relief is available where a party is unlawfully deprived of possession, but urgency must be established and procedural fairness observed.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, even if urgency exists, it is not sufficient to justify a Friday hearing. The respondents have not been given a fair opportunity to file an opposing affidavit. The applicants' attorney may set the matter down at a later date if urgency is established. The matter is accordingly removed from the roll and costs are awarded against the applicants.
Obiter and limits
- The urgency alleged by the applicants is not urgent enough for a Friday hearing.
- It is open to the applicants’ attorney to set the matter down whenever he wants to, provided there is sufficient urgency.
Court disposition
Application removed from the roll; costs awarded against the applicants.
- The matter is removed from the roll.
- The applicants are jointly and severally to pay the respondents’ costs.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case NO: 2024-070849
1. REPORTABLE:
2. OF INTEREST TO OTHER JUDGES:
3.
REVISED
28 June 2024
In the matter between:
AFRICAN CELLURAR (PTY)
LTD
1ST Applicant
WAJAHAT
CHOUDARY
2nd Applicant
and
FIRSTMILE PROP JHB CROWN MINES (PTY) LTD
1st Respondent
TAKE SHAPE PROPERTY MANAGEMENT (PTY) LTD 2nd Respondent
JUDGMENT
WRIGHT J
1. The applicants rent a shop from the respondents in downtown Johannesburg.
2. In a very terse founding affidavit they seek urgent spoliation relief. They say that the respondents, on Sunday 23 June 2024, switched off the electricity and locked the shop.
3. Urgency is alleged in that the applicants sell cellphones and if they can’t trade they may be liquidated and employees will become unemployed.
4. The respondents oppose but have not had time to file an opposing affidavit. Counsel for the applicant insisted that the matter proceed today, Friday. Belatedly, he asked me to stand the case to Tuesday next week. It is open to the applicants’ attorney to set the matter down whenever he wants to provided there is sufficient urgency.
5. The urgency, if it exists at all and I make no finding thereon, is not urgent enough for a Friday hearing.
6. The respondents are entitled to an opportunity to file an opposing affidavit and have not yet been given a fair opportunity to do so.
7. Adv Mutenga for the respondents seeks punitive costs but in my view party and party costs on scale A suffice.
ORDER
1. The matter is removed from the roll.
2. The applicants are jointly and severally to pay the respondents’ costs.
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 28 June 2024
DELIVERED : 28 June 2024
APPEARANCES :
Applicant Att S.F Silamulela
084 525 3261
silamulela@silamlaw.co.za
1st Respondent Phambane Mokone Incorporated
010 446 0864
simon@phambaneattorneys.co.za
Karabo@phambaneaatorneys.co.za
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