Empilweni Home and Another v Lusu and Others (2955/11) [2017] ZAECMHC 37 (26 September 2017)

Empilweni Home and Another v Lusu and Others (2955/11) [2017] ZAECMHC 37 (26 September 2017)

The court held that the second appellant was a mere detentor, occupying the premises for the benefit of his employer, and did not possess the requisite possessory interest for spoliation relief. The law requires both physical control and intention to benefit personally, which the second appellant lacked. The suspension was lawful and unchallenged, negating any claim to possession or authority. Regarding contempt, the respondents' actions did not amount to wilful or mala fide disobedience of the interim order, as the order did not require reinstatement or relinquishing bank account control. The explanation provided by the respondents dispelled any inference of contempt. Both the main and...

Citation
[2017] ZAECMHC 37
Parties
Appellant: Empilweni Home; Appellant: Daniel Dumalisile Ngcuka; Respondent: Humphrey Mcebisi Lusu; Respondent: Pastor M. Sovara; Respondent: Dr Primrose Majozi; Respondent: Mkhumbuzi Titus; Respondent: Ncediwe Nqwane; Respondent: Z.K. Gqwetha; Respondent: N. Vakalisa; Respondent: Tembile Kanise; Respondent: N. Gilman; Respondent: Department of Social Development, Eastern Cape Province
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 September 2017
Case Number
2955/11
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Main and Interlocutory Applications
Outcome
Appeal dismissed. The second appellant is ordered to pay the costs of the appeal.
Judges
S M Mbenenge, F B A Dawood, G N Z Mjali
Legal Topics
Mandament Van Spolie, Possession and Detentor, Contempt of Court, Locus Standi, Interim Interdict
Civil Procedure Land and Property Mandament Van Spolie Possession and Detentor Contempt of Court Locus Standi Interim Interdict

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Empilweni Home

Appellant

Daniel Dumalisile Ngcuka

Appellant

Humphrey Mcebisi Lusu

Respondent

Pastor M. Sovara

Respondent

Dr Primrose Majozi

Respondent

Mkhumbuzi Titus

Respondent

Ncediwe Nqwane

Respondent

Z.K. Gqwetha

Respondent

N. Vakalisa

Respondent

Tembile Kanise

Respondent

N. Gilman

Respondent

Department of Social Development, Eastern Cape Province

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Main and Interlocutory Applications

Legal Issues

  1. 1 Whether the second appellant, as a mere detentor, was entitled to the spoliation remedy.
  2. 2 Whether the respondents acted in contempt of the interim court order.
  3. 3 Whether the second appellant had locus standi to institute proceedings on behalf of the first appellant.

Ratio Decidendi

The court held that the second appellant was a mere detentor, occupying the premises for the benefit of his employer, and did not possess the requisite possessory interest for spoliation relief. The law requires both physical control and intention to benefit personally, which the second appellant lacked. The suspension was lawful and unchallenged, negating any claim to possession or authority. Regarding contempt, the respondents' actions did not amount to wilful or mala fide disobedience of the interim order, as the order did not require reinstatement or relinquishing bank account control. The explanation provided by the respondents dispelled any inference of contempt. Both the main and...

Court Disposition

Appeal dismissed. The second appellant is ordered to pay the costs of the appeal.

Orders

  • The appeal is dismissed.
  • The second appellant shall pay the costs of the appeal.