Mailula v Mashele and Others [2008] ZAGPHC 451; 53/08/01 (13 November 2008)

Mailula v Mashele and Others [2008] ZAGPHC 451; 53/08/01 (13 November 2008)

The court found that both parties would suffer prejudice regardless of the order made, but the balance of hardship favoured the applicant. The applicant faced the risk of foreclosure and substantial financial loss if unable to develop the property and service debts, including mortgage and arrears to service providers. The respondents, while not indigent, had not paid rentals to the applicant and their tender did not address the applicant's principal concern of liquidating the debt. The court accepted that there were reasonable prospects of success on appeal but emphasized the necessity of balancing competing interests. The applicant's exception for five respondents was considered...

Citation
[2008] ZAGPHC 451
Parties
Applicant: Marofane William Mailula; Respondent: Andrew Mashele and 67 Others
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
13 November 2008
Case Number
4453/08
Procedural Posture
Leave to Appeal / Application for Leave to Execute Pending Appeal
Outcome
Leave to execute the eviction order pending appeal is granted in terms of prayers 1 and 2 of the application for leave to execute dated 11 November 2008.
Judges
Willis
Legal Topics
Eviction, Leave to Execute Pending Appeal, Balance of Hardship, Mortgage Foreclosure
Land and Property Civil Procedure Eviction Leave to Execute Pending Appeal Balance of Hardship Mortgage Foreclosure

Case Brief

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Parties

Marofane William Mailula

Applicant

Andrew Mashele and 67 Others

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Execute Pending Appeal

Legal Issues

  1. 1 Whether leave to execute the eviction order pending appeal should be granted.
  2. 2 Whether the balance of hardship favours the applicant or the respondents.
  3. 3 Whether the respondents' tender to pay rental pending appeal is sufficient to prevent eviction.

Ratio Decidendi

The court found that both parties would suffer prejudice regardless of the order made, but the balance of hardship favoured the applicant. The applicant faced the risk of foreclosure and substantial financial loss if unable to develop the property and service debts, including mortgage and arrears to service providers. The respondents, while not indigent, had not paid rentals to the applicant and their tender did not address the applicant's principal concern of liquidating the debt. The court accepted that there were reasonable prospects of success on appeal but emphasized the necessity of balancing competing interests. The applicant's exception for five respondents was considered...

Court Disposition

Leave to execute the eviction order pending appeal is granted in terms of prayers 1 and 2 of the application for leave to execute dated 11 November 2008.

Orders

  • Leave to execute the eviction order is granted against all respondents except Tulane Mthembu, Elizabeth Dladla, Andrew Mashele, Dennis Sifiso Khoza, and Petrus Joseph Chauke, who may remain pending the outcome of the appeal.
  • The remaining respondents are to be evicted from Angus Mansions, erf 4562, Johannesburg, pending the outcome of the appeal.