Hyprop Investments Ltd v Jenni Button (Pty) Ltd and Klopper N.O. (Intervening) (65643/2015, A787/2015) [2017] ZAGPPHC 249 (25 April 2017)

Hyprop Investments Ltd v Jenni Button (Pty) Ltd and Klopper N.O. (Intervening) (65643/2015, A787/2015) [2017] ZAGPPHC 249 (25 April 2017)

The court held that Jenni Button (Pty) Ltd failed to prove, on a balance of probabilities, that it was in possession of the premises as required for mandament van spolie. There was a bona fide dispute of fact regarding the applicant's locus standi and whether it was the possessor of the premises. The conflicting versions about the lease agreement and the identity of the parties to any such agreement were not resolved, and neither party requested referral to oral evidence. Furthermore, the order sought could not be enforced as another entity was now occupying the premises. The court concluded that the application for restoration of possession should not have been granted and that the...

Citation
[2017] ZAGPPHC 249
Parties
Appellant: Hyprop Investments Ltd; Respondent: Jenni Button (Pty) Ltd; Respondent: Johannes Frederick Klopper N.O.; Respondent: Jacques du Toit N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 April 2017
Case Number
65643/2015, A787/2015
Procedural Posture
Civil Appeal / Appeal From Urgent Application (mandament Van Spolie)
Outcome
Appeal upheld; order of the court a quo set aside and substituted with dismissal of the application with costs, including costs of Senior Counsel.
Judges
H.J Fabricius, P. Rabie, F. Legodi
Legal Topics
Mandament Van Spolie, Possession and Dispossession, Locus Standi, Enforceability of Orders
Civil Procedure Land and Property Mandament Van Spolie Possession and Dispossession Locus Standi Enforceability of Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Hyprop Investments Ltd

Appellant

Jenni Button (Pty) Ltd

Respondent

Johannes Frederick Klopper N.O.

Respondent

Jacques du Toit N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Urgent Application (mandament Van Spolie)

Legal Issues

  1. 1 Whether Jenni Button (Pty) Ltd proved possession of the premises for purposes of mandament van spolie.
  2. 2 Whether Jenni Button (Pty) Ltd had locus standi to bring the spoliation application.
  3. 3 Whether the order of restoration of possession could be enforced given that another entity occupied the premises.

Ratio Decidendi

The court held that Jenni Button (Pty) Ltd failed to prove, on a balance of probabilities, that it was in possession of the premises as required for mandament van spolie. There was a bona fide dispute of fact regarding the applicant's locus standi and whether it was the possessor of the premises. The conflicting versions about the lease agreement and the identity of the parties to any such agreement were not resolved, and neither party requested referral to oral evidence. Furthermore, the order sought could not be enforced as another entity was now occupying the premises. The court concluded that the application for restoration of possession should not have been granted and that the...

Court Disposition

Appeal upheld; order of the court a quo set aside and substituted with dismissal of the application with costs, including costs of Senior Counsel.

Orders

  • The appeal succeeds with costs, including cost of Senior Counsel.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed with costs, including the cost of Senior Counsel.'