Dube and Another v Ninarich Investments (Pty) Ltd and Others (2023/00000054) [2023] ZAGPJHC 295 (27 March 2023)

Dube and Another v Ninarich Investments (Pty) Ltd and Others (2023/00000054) [2023] ZAGPJHC 295 (27 March 2023)

The court found that the applicants were never in peaceful and undisturbed possession of the property, as the respondents continuously resisted the hijacking through criminal charges and legal proceedings. The applicants' possession was always contested, and the deprivation of possession was effected by the South African Police Service pursuant to criminal charges, not by unlawful self-help. The requirements for the mandament van spolie were not met, and the application was dismissed. The applicants abused the court process by repeatedly setting the matter down on short notice, justifying a punitive costs order.

Citation
[2023] ZAGPJHC 295
Parties
Applicant: Sinethemba Dube; Applicant: The Tenants of 31 Betty Street listed in Annexure 'A' of the Notice of Motion; Respondent: Ninarich Investments (Pty) Ltd; Respondent: Ninarich Trading 3 (Pty) Ltd; Respondent: G3 Holdings (Pty) Ltd t/a Investigations & Security Services; Respondent: City of Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 March 2023
Case Number
2023/00000054
Procedural Posture
Urgent Application / Judgment After Urgent Application and Interlocutory Joinder Application
Outcome
Application dismissed with punitive costs order against the applicants.
Judges
Moorcroft
Legal Topics
Mandament Van Spolie, Peaceful and Undisturbed Possession, Unlawful Deprivation, Urgent Interdict, Costs Punitive Order
Civil Procedure Land and Property Mandament Van Spolie Peaceful and Undisturbed Possession Unlawful Deprivation Urgent Interdict Costs Punitive Order

Case Brief

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Parties

Sinethemba Dube

Applicant

The Tenants of 31 Betty Street listed in Annexure 'A' of the Notice of Motion

Applicant

Ninarich Investments (Pty) Ltd

Respondent

Ninarich Trading 3 (Pty) Ltd

Respondent

G3 Holdings (Pty) Ltd t/a Investigations & Security Services

Respondent

City of Johannesburg

Respondent

Procedural Posture

Urgent Application / Judgment After Urgent Application and Interlocutory Joinder Application

Legal Issues

  1. 1 Whether the applicants were in peaceful and undisturbed possession of the property at 31 Betty Street.
  2. 2 Whether the deprivation of possession was unlawful and constituted spoliation.
  3. 3 Whether the respondents' continuous resistance negated the applicants' claim to possession.

Ratio Decidendi

The court found that the applicants were never in peaceful and undisturbed possession of the property, as the respondents continuously resisted the hijacking through criminal charges and legal proceedings. The applicants' possession was always contested, and the deprivation of possession was effected by the South African Police Service pursuant to criminal charges, not by unlawful self-help. The requirements for the mandament van spolie were not met, and the application was dismissed. The applicants abused the court process by repeatedly setting the matter down on short notice, justifying a punitive costs order.

Court Disposition

Application dismissed with punitive costs order against the applicants.

Orders

  • The application by the 1st and 2nd respondents to join third parties is removed from the roll, with no order as to costs.
  • The main application is dismissed.