Builder's Depot CC v Damian (2011 (4) SA 486 (GSJ)) [2011] ZAGPJHC 37; A3008/11 (13 May 2011)

Builder's Depot CC v Damian (2011 (4) SA 486 (GSJ)) [2011] ZAGPJHC 37; A3008/11 (13 May 2011)

The court held that the appellant lost possession of the property on 28 October 2010 when the Sheriff sold the property in execution, accepted payment from the respondent, and authorised the respondent to take possession by changing the locks. The Sheriff acted bona fide and in accordance with the conditions of sale, and the respondent became a bona fide possessor. The operative law in this jurisdiction is that a spoliation order cannot be granted against a party who has acquired possession bona fide from a spoliator. The appellant misconstrued its remedy, as the dispute had moved from possessory remedies to vindicatory action. There was no evidence of mala fide conduct by the Sheriff,...

Citation
[2011] ZAGPJHC 37
Parties
Appellant: Builder's Depot CC; Respondent: Damian, Testa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 May 2011
Case Number
A3008/11
Procedural Posture
Civil Appeal / Appeal From Dismissal of Spoliation Application in the Regional Magistrate's Court
Outcome
Appeal dismissed with costs.
Judges
H Van Eeden, C Nicholls
Legal Topics
Mandament Van Spolie, Bona Fide Possession, Sale in Execution, Builder Lien
Civil Procedure Land and Property Mandament Van Spolie Bona Fide Possession Sale in Execution Builder Lien

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 15 Party arguments 2
Sign in to unlock

Parties

Builder's Depot CC

Appellant

Damian, Testa

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Spoliation Application in the Regional Magistrate's Court

Legal Issues

  1. 1 Whether the appellant was unlawfully dispossessed of immovable property entitling it to a spoliation order.
  2. 2 Whether possession passed to the respondent as a bona fide third party, precluding a spoliation remedy.
  3. 3 Whether the Sheriff acted mala fide or bona fide in transferring possession after sale in execution.

Ratio Decidendi

The court held that the appellant lost possession of the property on 28 October 2010 when the Sheriff sold the property in execution, accepted payment from the respondent, and authorised the respondent to take possession by changing the locks. The Sheriff acted bona fide and in accordance with the conditions of sale, and the respondent became a bona fide possessor. The operative law in this jurisdiction is that a spoliation order cannot be granted against a party who has acquired possession bona fide from a spoliator. The appellant misconstrued its remedy, as the dispute had moved from possessory remedies to vindicatory action. There was no evidence of mala fide conduct by the Sheriff,...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.