Davids and Others v Hassam (A193/20) [2020] ZAWCHC 159 (16 November 2020)

Davids and Others v Hassam (A193/20) [2020] ZAWCHC 159 (16 November 2020)

The appeal was dismissed as the magistrate correctly found that the respondent was in peaceful and undisturbed possession of the sliding door and was unlawfully deprived of it by the appellants. The appellants failed to demonstrate any right to file further affidavits, as no formal application was made and no new cause of action was raised in reply. The argument that the appellants were incorrectly cited in their personal capacity was rejected, as there was no evidence they acted in a representative capacity or were authorised by the Mosque trust. The magistrate's cost order was upheld, as the appellants' conduct in removing the sliding door was unlawful and the general rule that costs...

Citation
[2020] ZAWCHC 159
Parties
Appellant: Ziyaad Davids; Appellant: Shafieck Walters; Appellant: Rashied Nackerdien; Respondent: Mohamed Nuhr Hassam
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 November 2020
Case Number
A193/20
Procedural Posture
Civil Appeal / Appeal Against Final Spoliation Order From Magistrates Court
Outcome
Appeal dismissed; magistrate's order confirmed.
Judges
Ndita, Lekhuleni
Legal Topics
Mandament Van Spolie, Possession, Spoliation Order, Costs Award
Civil Procedure Land and Property Mandament Van Spolie Possession Spoliation Order Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Ziyaad Davids

Appellant

Shafieck Walters

Appellant

Rashied Nackerdien

Appellant

Mohamed Nuhr Hassam

Respondent

Procedural Posture

Civil Appeal / Appeal Against Final Spoliation Order From Magistrates Court

Legal Issues

  1. 1 Whether the magistrate erred in denying the appellants an opportunity to file further affidavits.
  2. 2 Whether the magistrate was correct in dismissing the appellants' point in limine regarding citation in personal capacity.
  3. 3 Whether the respondent was in peaceful and undisturbed possession of the sliding door and thus entitled to spoliation relief.

Ratio Decidendi

The appeal was dismissed as the magistrate correctly found that the respondent was in peaceful and undisturbed possession of the sliding door and was unlawfully deprived of it by the appellants. The appellants failed to demonstrate any right to file further affidavits, as no formal application was made and no new cause of action was raised in reply. The argument that the appellants were incorrectly cited in their personal capacity was rejected, as there was no evidence they acted in a representative capacity or were authorised by the Mosque trust. The magistrate's cost order was upheld, as the appellants' conduct in removing the sliding door was unlawful and the general rule that costs...

Court Disposition

Appeal dismissed; magistrate's order confirmed.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs.