Du Plessis v Benson and Others (9982/2018) [2021] ZAGPJHC 576 (20 October 2021)

Du Plessis v Benson and Others (9982/2018) [2021] ZAGPJHC 576 (20 October 2021)

The court held that the respondents failed to demonstrate a reasonable prospect that another court would reach a different conclusion regarding their eviction from Erf 70 Montclare Township. The pending application for leave to appeal before another judge did not constitute lis pendens sufficient to justify granting leave, especially given the respondents' failure to prosecute that application timeously. The court found that the reference to 8 Clement Street was irrelevant, as the title deed and sale in execution clearly pertained to Erf 70 Montclare Township. The court emphasized the need for finality in litigation and rejected the respondents' dilatory tactics. Accordingly, the...

Citation
[2021] ZAGPJHC 576
Parties
Applicant: Du Plessis: Gert Cornelius; Respondent: Benson: Johan Marvin; Respondent: Benson: Gloria Valentia; Respondent: The Unlawful Occupiers of 74 Kent Avenue, Montclare, Randburg; Respondent: The City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2021
Case Number
9982/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
G Ally
Legal Topics
Leave to Appeal, Eviction, Lis Pendens, Dilatory Tactics, Finality of Litigation
Civil Procedure Land and Property Leave to Appeal Eviction Lis Pendens Dilatory Tactics Finality of Litigation

Case Brief

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Parties

Du Plessis: Gert Cornelius

Applicant

Benson: Johan Marvin

Respondent

Benson: Gloria Valentia

Respondent

The Unlawful Occupiers of 74 Kent Avenue, Montclare, Randburg

Respondent

The City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Order

Legal Issues

  1. 1 Whether the application for leave to appeal should be granted in light of the raised threshold under Section 17 of the Superior Courts Act.
  2. 2 Whether the pending application for leave to appeal before another judge constitutes lis pendens and affects the current proceedings.
  3. 3 Whether the alleged sale of the wrong property constitutes a valid ground for leave to appeal.

Ratio Decidendi

The court held that the respondents failed to demonstrate a reasonable prospect that another court would reach a different conclusion regarding their eviction from Erf 70 Montclare Township. The pending application for leave to appeal before another judge did not constitute lis pendens sufficient to justify granting leave, especially given the respondents' failure to prosecute that application timeously. The court found that the reference to 8 Clement Street was irrelevant, as the title deed and sale in execution clearly pertained to Erf 70 Montclare Township. The court emphasized the need for finality in litigation and rejected the respondents' dilatory tactics. Accordingly, the...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal by First and Second Respondents is dismissed with costs.