Full Sail 75 (Pty) Ltd v Diamond Discount Liquor (Pty) Ltd (1387/2009) [2009] ZAWCHC 109 (29 January 2009)

Full Sail 75 (Pty) Ltd v Diamond Discount Liquor (Pty) Ltd (1387/2009) [2009] ZAWCHC 109 (29 January 2009)

The court found that the urgency claimed by the applicant was self-induced, as the applicant commenced demolition knowing the respondent disputed the termination of the lease and remained in occupation. The existence of an interim interdict issued by Mr Justice Fourie, which restrained the applicant from interfering with the respondent's possession and from demolishing the premises, constituted a material obstacle to granting the relief sought. Granting the eviction order would result in contradictory court orders, which is unacceptable. The proper course for the applicant would have been to seek acceleration of the return date for the interim interdict and its discharge before pursuing...

Citation
[2009] ZAWCHC 109
Parties
Applicant: Full Sail 75 (Pty) Limited; Respondent: Diamond Discount Liquor (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 January 2009
Case Number
1387/2009
Procedural Posture
Urgent Application / Application for Urgent Eviction Order; Preliminary Points in Limine Argued
Outcome
Application struck from the roll; costs awarded against the applicant.
Judges
Binns-Ward
Legal Topics
Urgent Eviction, Interim Interdict, Self Created Urgency, Lease Termination, Public Safety, Rule Nisi
Civil Procedure Land and Property Urgent Eviction Interim Interdict Self Created Urgency Lease Termination Public Safety Rule Nisi

Case Brief

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Parties

Full Sail 75 (Pty) Limited

Applicant

Diamond Discount Liquor (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Eviction Order; Preliminary Points in Limine Argued

Legal Issues

  1. 1 Whether the application for eviction is urgent and justifies immediate relief.
  2. 2 Whether the applicant's urgency is self-created due to its actions.
  3. 3 Whether relief can be granted in light of an existing interim interdict issued by another judge.

Ratio Decidendi

The court found that the urgency claimed by the applicant was self-induced, as the applicant commenced demolition knowing the respondent disputed the termination of the lease and remained in occupation. The existence of an interim interdict issued by Mr Justice Fourie, which restrained the applicant from interfering with the respondent's possession and from demolishing the premises, constituted a material obstacle to granting the relief sought. Granting the eviction order would result in contradictory court orders, which is unacceptable. The proper course for the applicant would have been to seek acceleration of the return date for the interim interdict and its discharge before pursuing...

Court Disposition

Application struck from the roll; costs awarded against the applicant.

Orders

  • The matter is struck from the roll.
  • The applicant is ordered to pay the respondent's costs of opposition.