Dira and Further Occupiers v Moodley and Another (009780/2022) [2023] ZAGPJHC 1379 (10 November 2023)
The court found that the applicants failed to establish any lawful basis for their occupation of the property under an enrichment lien. Bold Images, the entity allegedly entitled to the lien, was not a party to the proceedings, and its director did not provide affidavit evidence asserting the intention to exercise...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1379
- Parties
- Applicant: Tshirletso Harold Dira & Further Occupiers; Respondent: Delvin Moodley & Another
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 009780/2022
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Eviction Order
- Outcome
- Application for condonation granted; application for leave to appeal dismissed with costs.
- Judges
- Wilson
- Legal Topics
- Eviction, Enrichment Lien, Condonation for Late Filing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tshirletso Harold Dira & Further Occupiers
Applicant
Delvin Moodley & Another
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order
Legal Issues
- 1 Whether condonation for the late filing of the application for leave to appeal should be granted.
- 2 Whether the applicants are lawfully in possession of the property by virtue of an enrichment lien.
- 3 Whether another court might reasonably reach a different conclusion regarding the eviction order.
Ratio Decidendi
The court found that the applicants failed to establish any lawful basis for their occupation of the property under an enrichment lien. Bold Images, the entity allegedly entitled to the lien, was not a party to the proceedings, and its director did not provide affidavit evidence asserting the intention to exercise such a lien. In the absence of these procedural requirements, there was no conceivable basis for a court of appeal to find that any of the occupiers, including Mr Dira, were lawfully in possession of the property. The application for condonation was granted as it was unopposed, but the application for leave to appeal was dismissed as it had no reasonable prospects of success.
Court Disposition
Application for condonation granted; application for leave to appeal dismissed with costs.
Orders
- The application for condonation for late filing of the application for leave to appeal is granted, with the applicants to pay the costs of the application.
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 009780/2022
DATE: 2023-11-10
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
10/11/23
In the matter between
TSHIRLETSO HAROLD DIRA & FURTHER OCCUPIERS Applicants And DELVIN MOODLEY & ANOTHER Respondents
JUDGMENT EX TEMPORE
LEAVE TO APPEAL
WILSON, J: The applicants are the occupiers of the property at Erf [...], Greenstone Hill, Extension 15.
On 22 June 2023 I ordered their eviction in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
An application for leave to appeal was filed late, and an application for condonation was brought. I have not seen the application
but, given that the respondents in the application for leave to appeal, Delvin Moodley and Heidi Moodley, the purchasers of the
property, do not oppose the condonation application, I will grant it with Mr Dira and the occupiers of the property to pay the costs of the application.
On the merits of the application for leave to appeal, one point was raised on the basis of which it was submitted that another court
might reasonably consider that the conclusions I reached were wrong. That point was that Mr Dira and the other occupiers of the property are in possession of the property pursuant to an enrichment lien.
The enrichment lien was said have arisen from work done by a company known as Bold Images on the property in such a manner that enhanced the property’s value. The director of Bold Images is a person identified on the papers as Ms Thandi Makhoba. Mr Dira says that he occupies the property with her and her children.
Bold Images was not a party to the eviction application a quo nor did Ms Makhoba sign an affidavit in which she asserted Bold Images’ intention to exercise an enrichment lien.
In these circumstances I found in my judgment a quo that it was not possible for me to conclude that an enrichment claim was being exercised in such a way as to render Ms Makhoba, Bold Images, Mr Dira, or any of the other occupiers of the property lawfully in possession of it. The very beginning of such a case could only be made out if Bold Images itself was a party to the application and if Ms Makhoba, as Bold Images’ director, signed an affidavit confirming that she intended to exercise the enrichment lien on Bold Images’ behalf.
None of this was done in the court a quo and in the absence of that having been done in the court a quo, I can find no conceivable basis on which a court of appeal could find that any of the occupiers was in occupation of the property pursuant to an enrichment lien, especially Mr Dira, who appears to have nothing at all to do with any enrichment lien claimed on Bold Images’ behalf.
For all these reasons, any appeal against my judgment is doomed to predictable failure and the application for leave to appeal must be dismissed.
I make the following order:
1. The application for the condonation for late filing of the application for leave to appeal is granted with the applicants for leave to appeal to pay the costs of the application.
2. The application for leave to appeal is dismissed with costs.
WILSON, J
JUDGE OF THE HIGH COURT
10 November 2023