Chicken Licken v Liberty Group Ltd (21597/2017) [2017] ZAGPJHC 199 (20 July 2017)

Chicken Licken v Liberty Group Ltd (21597/2017) [2017] ZAGPJHC 199 (20 July 2017)

The court found that the applicant’s denials of breach were bald and unsupported by evidence, failing to raise a genuine dispute of fact. The applicant did not discharge the onus to prove payment. The court held that prospects of success on appeal are a relevant consideration under Rule 45A, contrary to the applicant’s argument. Since the applicant had not filed an application for leave to appeal and the merits were found wanting, the court exercised its discretion to refuse suspension of the eviction order. The application was dismissed with costs.

Citation
[2017] ZAGPJHC 199
Parties
Applicant: Chicken Licken; Respondent: Liberty Group Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 July 2017
Case Number
21597/2017
Procedural Posture
Urgent Application / Application to Suspend Execution of Eviction Order Under Rule 45 a
Outcome
Application dismissed with costs.
Judges
WHG van der Linde
Legal Topics
Suspension of Execution, Eviction, Rule 45a, Prospects of Success on Appeal
Civil Procedure Land and Property Suspension of Execution Eviction Rule 45a Prospects of Success on Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Chicken Licken

Applicant

Liberty Group Ltd

Respondent

Procedural Posture

Urgent Application / Application to Suspend Execution of Eviction Order Under Rule 45 a

Legal Issues

  1. 1 Whether the execution of the eviction order should be suspended under Rule 45A.
  2. 2 Whether the applicant has prospects of success on appeal.
  3. 3 Whether the merits of the underlying dispute are relevant to the suspension application.

Ratio Decidendi

The court found that the applicant’s denials of breach were bald and unsupported by evidence, failing to raise a genuine dispute of fact. The applicant did not discharge the onus to prove payment. The court held that prospects of success on appeal are a relevant consideration under Rule 45A, contrary to the applicant’s argument. Since the applicant had not filed an application for leave to appeal and the merits were found wanting, the court exercised its discretion to refuse suspension of the eviction order. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application to suspend execution of the eviction order is dismissed.
  • The applicant is ordered to pay the costs of the application.