Lowery v Jordan (2249/2012) [2012] ZAECPEHC 88 (5 December 2012)

Lowery v Jordan (2249/2012) [2012] ZAECPEHC 88 (5 December 2012)

The court found that the balance of convenience favoured the respondent, who is the owner of the property and had obtained an eviction order against the applicant. The history of conflict between the parties demonstrated that they could not live together. The applicant failed to make out a case for the interdict, which would effectively amount to an eviction order against the respondent. Considerations of fairness and justice required the upliftment of the suspension of the eviction order, allowing the respondent undisturbed possession pending the outcome of the appeal.

Citation
[2012] ZAECPEHC 88
Parties
Applicant: Emily Daisy Lowery; Respondent: Janet Jordan
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
5 December 2012
Case Number
2249/2012
Procedural Posture
Urgent Application / Application for Interdict and Upliftment of Suspension Pending Appeal
Outcome
Application dismissed. Suspension of eviction order uplifted. Respondent to have undisturbed possession pending appeal.
Judges
E Revelas
Legal Topics
Eviction Order, Interdict, Suspension Pending Appeal, Balance of Convenience
Civil Procedure Land and Property Eviction Order Interdict Suspension Pending Appeal Balance of Convenience

Case Brief

Summary, issues, holding and outcome

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Parties

Emily Daisy Lowery

Applicant

Janet Jordan

Respondent

Procedural Posture

Urgent Application / Application for Interdict and Upliftment of Suspension Pending Appeal

Legal Issues

  1. 1 Whether the applicant is entitled to an interdict granting her access and undisturbed possession of the property pending appeal.
  2. 2 Whether the suspension of the eviction order should be uplifted pending the outcome of the appeal.
  3. 3 Whether considerations of fairness and justice require the respondent to have undisturbed possession of the property.

Ratio Decidendi

The court found that the balance of convenience favoured the respondent, who is the owner of the property and had obtained an eviction order against the applicant. The history of conflict between the parties demonstrated that they could not live together. The applicant failed to make out a case for the interdict, which would effectively amount to an eviction order against the respondent. Considerations of fairness and justice required the upliftment of the suspension of the eviction order, allowing the respondent undisturbed possession pending the outcome of the appeal.

Court Disposition

Application dismissed. Suspension of eviction order uplifted. Respondent to have undisturbed possession pending appeal.

Orders

  • The application for access and undisturbed possession by the applicant is dismissed.
  • The suspension of the eviction order dated 12 May 2011 is uplifted pending the outcome of the appeal.