Lukhele and Another v Mitchell (LCC 36/2020B) [2022] ZALCC 6 (4 March 2022)

Lukhele and Another v Mitchell (LCC 36/2020B) [2022] ZALCC 6 (4 March 2022)

The court found that while the applicants provided some explanation for their absence at the contempt hearing, they failed to adequately explain their lack of action between service of the contempt application and the granting of the order. The applicants conceded non-compliance with the demolition order and did not advance evidence establishing reasonable doubt as to wilfulness or mala fides in their contempt. Their arguments based on impossibility and constitutional rights were not supported by sufficient evidence and should have been raised in the original demolition application, which is now res judicata. The application for rescission of the demolition order was not properly before...

Citation
[2022] ZALCC 6
Parties
Applicant: Fihli Johannes Lukhele; Applicant: All others who occupy the homestead of the late Mr Abraham Lukhele on Portion 15, Farm Rietfontein 395 Bashewa District, Tshwane, Gauteng Province; Respondent: Sean Mitchell
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
4 March 2022
Case Number
LCC 36/2020B
Procedural Posture
Urgent Application / Application for Rescission of Judgment and Contempt Order
Outcome
Application dismissed with costs; contempt order suspended pending eviction proceedings.
Judges
Y S Meer
Legal Topics
Rescission of Judgment, Contempt of Court, Demolition Order, Good Cause Requirement, Section 26 Constitution
Land and Property Civil Procedure Rescission of Judgment Contempt of Court Demolition Order Good Cause Requirement Section 26 Constitution

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Parties

Fihli Johannes Lukhele

Applicant

All others who occupy the homestead of the late Mr Abraham Lukhele on Portion 15, Farm Rietfontein 395 Bashewa District, Tshwane, Gauteng Province

Applicant

Sean Mitchell

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Judgment and Contempt Order

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the contempt order granted in their absence.
  2. 2 Whether the applicants have established a bona fide defence to the contempt application.
  3. 3 Whether the applicants are entitled to rescission of the demolition order.

Ratio Decidendi

The court found that while the applicants provided some explanation for their absence at the contempt hearing, they failed to adequately explain their lack of action between service of the contempt application and the granting of the order. The applicants conceded non-compliance with the demolition order and did not advance evidence establishing reasonable doubt as to wilfulness or mala fides in their contempt. Their arguments based on impossibility and constitutional rights were not supported by sufficient evidence and should have been raised in the original demolition application, which is now res judicata. The application for rescission of the demolition order was not properly before...

Court Disposition

Application dismissed with costs; contempt order suspended pending eviction proceedings.

Orders

  • The application is dismissed with costs.
  • The order granted by this Court on 29 November 2021 (Contempt Order) is suspended pending the resolution of eviction proceedings to be instituted by the respondent.