Korkie and Others v Ismail and Others (4305/2017) [2018] ZAECPEHC 37 (31 July 2018)

Korkie and Others v Ismail and Others (4305/2017) [2018] ZAECPEHC 37 (31 July 2018)

The court found that the applicants failed to establish, on the papers, that the respondents acted unlawfully by making threats or damaging the fence. The respondents' denials were supported by affidavits from other residents, and the factual disputes could not be resolved in the applicants' favour in motion...

Source-derived case information.

Citation
[2018] ZAECPEHC 37
Parties
Applicant: June Korkie; Applicant: June Korkie N.O.; Applicant: Jack Allers Group; Applicant: Werner Holland; Respondent: Ibrahim Ismail; Respondent: Muneep Ismail; Respondent: Mustafa Ismail; Respondent: Dawayda Ismail; Respondent: Wayne Lester Jaggers
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
31 July 2018
Case Number
4305/2017
Procedural Posture
Urgent Application / Final Interdict Application Following Interim Rule Nisi and Extensions
Outcome
Application for final interdict dismissed; rule nisi discharged; each party to pay its own costs.
Judges
G G Goosen
Legal Topics
Sectional Title Schemes Management, Interdict, Locus Standi, Dispute of Fact, Body Corporate Governance
Land and Property Civil Procedure Sectional Title Schemes Management Interdict Locus Standi Dispute of Fact Body Corporate Governance

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Summary, issues, holding and outcome

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Parties

June Korkie

Applicant

June Korkie N.O.

Applicant

Jack Allers Group

Applicant

Werner Holland

Applicant

Ibrahim Ismail

Respondent

Muneep Ismail

Respondent

Mustafa Ismail

Respondent

Dawayda Ismail

Respondent

Wayne Lester Jaggers

Respondent

Procedural Posture

Urgent Application / Final Interdict Application Following Interim Rule Nisi and Extensions

Legal Issues

  1. 1 Whether the applicants are entitled to a final interdict against the respondents for alleged threats and damage to property.
  2. 2 Whether the first applicant has locus standi to act on behalf of the Body Corporate.
  3. 3 Whether the factual disputes regarding threats and damage to the fence preclude final relief.

Ratio Decidendi

The court found that the applicants failed to establish, on the papers, that the respondents acted unlawfully by making threats or damaging the fence. The respondents' denials were supported by affidavits from other residents, and the factual disputes could not be resolved in the applicants' favour in motion proceedings. The requirements for a final interdict were therefore not met. The first applicant was found to be duly authorised to act on behalf of the Body Corporate, but the essential factual basis for relief was lacking. The court also noted the fraught situation among residents and the financial difficulties of the Body Corporate, concluding that each party should bear its own costs.

Court Disposition

Application for final interdict dismissed; rule nisi discharged; each party to pay its own costs.

Orders

  • The Rule Nisi issued on 16 December 2017 is discharged.
  • Each party is ordered to pay its own costs.