Botes Auto CC v Bararage Auto Sales (CC) and Others (2778/2020) [2020] ZAFSHC 144 (17 August 2020)

Botes Auto CC v Bararage Auto Sales (CC) and Others (2778/2020) [2020] ZAFSHC 144 (17 August 2020)

The court found that the applicant was unlawfully deprived of possession of the business premises by the respondents, who closed the premises, handed the keys to the landlord, and excluded the applicant from access. The respondents failed to follow due process and resorted to self-help. The lease agreement had not been validly terminated, as cancellation required written notice, which was not provided. The applicant demonstrated that it was in possession and was unlawfully dispossessed. The respondents' defences were rejected as lacking substance, and the requirements for a mandament van spolie order were satisfied. The applicant was entitled to restoration of possession and costs.

Citation
[2020] ZAFSHC 144
Parties
Applicant: Botes Auto CC; Respondent: Bararage Auto Sales (CC); Respondent: Gorgina Florence Swanepoel; Respondent: Erik Liebenberg
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 August 2020
Case Number
2778/2020
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted. The applicant is entitled to restoration of possession and costs.
Judges
Mhlambi
Legal Topics
Mandement Van Spolie, Possession of Immovable Property, Self Help, Lease Termination, Urgent Interdict
Civil Procedure Land and Property Mandement Van Spolie Possession of Immovable Property Self Help Lease Termination Urgent Interdict

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Botes Auto CC

Applicant

Bararage Auto Sales (CC)

Respondent

Gorgina Florence Swanepoel

Respondent

Erik Liebenberg

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicant was unlawfully deprived of possession of the business premises at 204, 206 and 208 Church Street, Bloemfontein.
  2. 2 Whether the respondents' conduct constituted spoliation justifying restoration of possession.
  3. 3 Whether the lease agreement was validly terminated and whether the applicant was in lawful possession at the time of dispossession.

Ratio Decidendi

The court found that the applicant was unlawfully deprived of possession of the business premises by the respondents, who closed the premises, handed the keys to the landlord, and excluded the applicant from access. The respondents failed to follow due process and resorted to self-help. The lease agreement had not been validly terminated, as cancellation required written notice, which was not provided. The applicant demonstrated that it was in possession and was unlawfully dispossessed. The respondents' defences were rejected as lacking substance, and the requirements for a mandament van spolie order were satisfied. The applicant was entitled to restoration of possession and costs.

Court Disposition

Application granted. The applicant is entitled to restoration of possession and costs.

Orders

  • Prayer 1 of the notice of motion is granted.
  • Prayer 2 is granted with the amended description of the immovable property as 204, 206 and 208 Church Street, Bloemfontein.