Botha and Another v Hendriks N.O and Others (700/2008) [2008] ZANCHC 25 (6 June 2008)

Botha and Another v Hendriks N.O and Others (700/2008) [2008] ZANCHC 25 (6 June 2008)

The court held that the noting of an appeal, even if late and subject to condonation, automatically suspends execution of the Magistrate's Court judgment under common law. The first applicant complied with the procedural requirements for noting an appeal by delivering the notice and furnishing security. The distinction between condonation and due noting of appeal was emphasized; condonation is for the appeal court, while due noting is a procedural matter in the Magistrate's Court. The court found that the first applicant's right to possession, derived from the deed of sale, was exercised through the second applicant, a close corporation of which she is the sole member. The respondents'...

Citation
[2008] ZANCHC 25
Parties
Applicant: Lorraine Sophie Botha; Applicant: Khulelekani Laundry CC; Respondent: Johannes Jacobus Wiese Hendriks NO; Respondent: Martha Magrieta Hendriks NO; Respondent: Henry Robins Rich NO; Respondent: Cyril Strydom; Respondent: Johan Hendriks; Respondent: The Sheriff
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
6 June 2008
Case Number
700/2008
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Appeal
Outcome
Application granted. Interim interdict issued pending appeal.
Judges
Majiedt
Legal Topics
Interdict Pendente Lite, Suspension of Execution, Appeal Procedure, Possession and Occupation, Locus Standi
Civil Procedure Land and Property Interdict Pendente Lite Suspension of Execution Appeal Procedure Possession and Occupation Locus Standi

Case Brief

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Parties

Lorraine Sophie Botha

Applicant

Khulelekani Laundry CC

Applicant

Johannes Jacobus Wiese Hendriks NO

Respondent

Martha Magrieta Hendriks NO

Respondent

Henry Robins Rich NO

Respondent

Cyril Strydom

Respondent

Johan Hendriks

Respondent

The Sheriff

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Appeal

Legal Issues

  1. 1 Whether the execution of the Magistrate's Court judgment is automatically suspended upon the noting of an appeal.
  2. 2 Whether the applicants are entitled to restoration of possession and occupation of the property and equipment pending appeal.
  3. 3 Whether the second applicant has locus standi to seek relief despite not being a party to the Magistrate's Court proceedings.

Ratio Decidendi

The court held that the noting of an appeal, even if late and subject to condonation, automatically suspends execution of the Magistrate's Court judgment under common law. The first applicant complied with the procedural requirements for noting an appeal by delivering the notice and furnishing security. The distinction between condonation and due noting of appeal was emphasized; condonation is for the appeal court, while due noting is a procedural matter in the Magistrate's Court. The court found that the first applicant's right to possession, derived from the deed of sale, was exercised through the second applicant, a close corporation of which she is the sole member. The respondents'...

Court Disposition

Application granted. Interim interdict issued pending appeal.

Orders

  • The first, second and third respondents are interdicted from denying the applicants access to erf 4128 for purposes of trading on the premises as a laundry service provider pending the outcome and finalisation of the appeal under case number CA&R 37/08.
  • The Sheriff of the Magistrate's Court, De Aar, is ordered to release the machinery and tools of trade attached in terms of annexure A to the founding affidavit for purposes of trade only, pending the outcome and finalisation of the appeal under case number CA&R 37/08, subject to the goods remaining under judicial...