Humair and Another v National Commissioner of the South African Police Service and Others (5747/2021) [2021] ZAGPJHC 105 (27 July 2021)

Humair and Another v National Commissioner of the South African Police Service and Others (5747/2021) [2021] ZAGPJHC 105 (27 July 2021)

The third respondent unlawfully dispossessed the applicants by locking them out of the business premises without a court order. The automatic rent interdict under section 31 of the Magistrates Court Act does not justify eviction or self-help; it merely prohibits removal of attached property. The applicants were in free and undisturbed possession until the lock-out, and the requirements for mandament van spolie are satisfied. The defence of lis alibi pendens does not preclude relief, as the court retains discretion and the applicants' previous applications failed for lack of urgency. The applicants are entitled to restoration of possession.

Citation
[2021] ZAGPJHC 105
Parties
Applicant: Raheel Humair; Applicant: Nabeel Khan; Respondent: National Commissioner of the South African Police Service; Respondent: Colonel Dlomo (Booysens Police Station); Respondent: Alan Hilton Eve
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 July 2021
Case Number
5747/2021
Procedural Posture
Urgent Application / Opposed Application for Mandament Van Spolie; Judgment Delivered After Virtual Hearing.
Outcome
Application granted; possession and occupation of the premises restored to the applicants.
Judges
Adams
Legal Topics
Mandament Van Spolie, Automatic Rent Interdict, Unlawful Eviction, Self Help Remedies, Lis Pendens
Civil Procedure Land and Property Mandament Van Spolie Automatic Rent Interdict Unlawful Eviction Self Help Remedies Lis Pendens

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Parties

Raheel Humair

Applicant

Nabeel Khan

Applicant

National Commissioner of the South African Police Service

Respondent

Colonel Dlomo (Booysens Police Station)

Respondent

Alan Hilton Eve

Respondent

Procedural Posture

Urgent Application / Opposed Application for Mandament Van Spolie; Judgment Delivered After Virtual Hearing.

Legal Issues

  1. 1 Whether the third respondent was justified in locking out the applicants from the business premises without a court order.
  2. 2 Whether the automatic rent interdict under section 31 of the Magistrates Court Act entitled the third respondent to evict the applicants.
  3. 3 Whether the applicants are entitled to restoration of possession under the mandament van spolie remedy.

Ratio Decidendi

The third respondent unlawfully dispossessed the applicants by locking them out of the business premises without a court order. The automatic rent interdict under section 31 of the Magistrates Court Act does not justify eviction or self-help; it merely prohibits removal of attached property. The applicants were in free and undisturbed possession until the lock-out, and the requirements for mandament van spolie are satisfied. The defence of lis alibi pendens does not preclude relief, as the court retains discretion and the applicants' previous applications failed for lack of urgency. The applicants are entitled to restoration of possession.

Court Disposition

Application granted; possession and occupation of the premises restored to the applicants.

Orders

  • The application against the third respondent succeeds.
  • Possession and occupation of the business premises at 116 – 5th Street, Booysens Reserve, Johannesburg shall be restored to the first and second applicants immediately by the third respondent.