Khoza and Others v Body Corporate Ella Court (07/22463) [2008] ZAGPHC 429; 2014 (2) SA 112 (GSJ) (13 October 2008)

Khoza and Others v Body Corporate Ella Court (07/22463) [2008] ZAGPHC 429; 2014 (2) SA 112 (GSJ) (13 October 2008)

The court held that Rule 49(11) is a procedural rule, not a substantive rule of law. The previous decision in United Reflective Converters (Pty) Ltd v Levine, which held that Rule 49(11) does not suspend orders pending rescission applications, was found to be clearly wrong. The court reasoned that both at common law and under the Uniform Rules, the institution of a rescission application suspends the operation and execution of the order in question. This interpretation is necessary to prevent irreparable prejudice to applicants seeking rescission, aligning with the rationale for suspending orders upon the noting of appeals. Even if no substantive rule existed, the court would be entitled...

Citation
[2008] ZAGPHC 429
Parties
Applicant: PE Khoza and 17 Others; Respondent: The Body Corporate, Ella Court
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
13 October 2008
Case Number
07/22463
Procedural Posture
Urgent Application / Application for Order Restraining Execution of Eviction Pending Rescission Application
Outcome
The eviction order made on 16 April 2008 was suspended by operation of Rule 49(11) pending finalization of the rescission application. The applicants were permitted to return to the premises. No order as to costs.
Judges
SV Notshe
Legal Topics
Rule 49 11 Uniform Rules, Suspension of Order, Rescission Application, Stare Decisis, Common Law Development
Civil Procedure Rule 49 11 Uniform Rules Suspension of Order Rescission Application Stare Decisis Common Law Development

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Parties

PE Khoza and 17 Others

Applicant

The Body Corporate, Ella Court

Respondent

Procedural Posture

Urgent Application / Application for Order Restraining Execution of Eviction Pending Rescission Application

Legal Issues

  1. 1 Does the institution of a rescission application suspend the operation and execution of an eviction order under Rule 49(11)?
  2. 2 Is Rule 49(11) a substantive or procedural rule of law?
  3. 3 Should the doctrine of stare decisis bind the court to the previous decision in United Reflective Converters (Pty) Ltd v Levine?

Ratio Decidendi

The court held that Rule 49(11) is a procedural rule, not a substantive rule of law. The previous decision in United Reflective Converters (Pty) Ltd v Levine, which held that Rule 49(11) does not suspend orders pending rescission applications, was found to be clearly wrong. The court reasoned that both at common law and under the Uniform Rules, the institution of a rescission application suspends the operation and execution of the order in question. This interpretation is necessary to prevent irreparable prejudice to applicants seeking rescission, aligning with the rationale for suspending orders upon the noting of appeals. Even if no substantive rule existed, the court would be entitled...

Court Disposition

The eviction order made on 16 April 2008 was suspended by operation of Rule 49(11) pending finalization of the rescission application. The applicants were permitted to return to the premises. No order as to costs.

Orders

  • The order made on 16 April 2008 by Mr. Justice Horn is declared suspended by virtue of Rule 49(11) of the Uniform Rules pending finalization of the rescission application instituted by the applicants on 24 July 2008.
  • The respondent is directed to allow the applicants to return to the upper rooms of Ella Court Building, 296 Smith Street, Joubert Park, Johannesburg.