Barker v Zimemo and Others (EL270/17, ECD970/2017) [2017] ZAECELLC 15 (28 June 2017)

Barker v Zimemo and Others (EL270/17, ECD970/2017) [2017] ZAECELLC 15 (28 June 2017)

The court held that the review application constituted the respondent's defence to the eviction proceedings and must be determined before the eviction application can be decided. The interests of justice require postponement of the eviction application pending the outcome of the review. The argument that the transfer of property is unassailable unless the sale or judgment is a nullity is correct, but if the review succeeds and the underlying judgment is set aside as a nullity, the transfer may be impugned. The review application cannot be heard in the East London Circuit Local Division due to jurisdictional rules; both matters should be transferred to the seat of the court in Grahamstown...

Citation
[2017] ZAECELLC 15
Parties
Applicant: David Barker; Respondent: Nati Anne Zimemo; Respondent: Buffalo City Metropolitan Municipality; Respondent: Yazbeks Inc
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
28 June 2017
Case Number
EL270/17, ECD970/17
Procedural Posture
Eviction Application / First Instance
Outcome
The matter is postponed sine die pending the determination of the review application.
Judges
C Plasket
Legal Topics
Prevention of Illegal Eviction Act, Sale in Execution, Review of Magistrates Court Decision, Transfer of Property, Nullity of Judgment
Land and Property Civil Procedure Prevention of Illegal Eviction Act Sale in Execution Review of Magistrates Court Decision Transfer of Property Nullity of Judgment

Case Brief

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Parties

David Barker

Applicant

Nati Anne Zimemo

Respondent

Buffalo City Metropolitan Municipality

Respondent

Yazbeks Inc

Respondent

Procedural Posture

Eviction Application / First Instance

Legal Issues

  1. 1 Whether the eviction application should be granted pending the outcome of the review application.
  2. 2 Whether the transfer of property to the applicant can be undone if the review succeeds.
  3. 3 Whether the review application constitutes a valid defence to the eviction proceedings.

Ratio Decidendi

The court held that the review application constituted the respondent's defence to the eviction proceedings and must be determined before the eviction application can be decided. The interests of justice require postponement of the eviction application pending the outcome of the review. The argument that the transfer of property is unassailable unless the sale or judgment is a nullity is correct, but if the review succeeds and the underlying judgment is set aside as a nullity, the transfer may be impugned. The review application cannot be heard in the East London Circuit Local Division due to jurisdictional rules; both matters should be transferred to the seat of the court in Grahamstown...

Court Disposition

The matter is postponed sine die pending the determination of the review application.

Orders

  • The matter is postponed sine die.
  • The costs of the postponement shall be costs in the cause.