Maistry and Another v Khemese and Others (2013/17484) [2014] ZAGPJHC 21 (14 February 2014)

Maistry and Another v Khemese and Others (2013/17484) [2014] ZAGPJHC 21 (14 February 2014)

The court found that the applicants, as bona fide purchasers at a sale in execution, were entitled to recover possession of the property. The second respondent was aware of the default judgment as early as October 2009 but failed to act until after the sale in execution. The magistrate's refusal of condonation and rescission was unlikely to be overturned on appeal, and any suspension of the order under rule 49(11) did not affect the validity of the sale or transfer. The respondents' continued occupation and refusal to recognise the applicants' title constituted repudiation of any lease, which the applicants had accepted and cancelled. The counter-application for a stay was dismissed as it...

Citation
[2014] ZAGPJHC 21
Parties
Applicant: Edgar Noel Maistry; Applicant: Celeste Maistry; Respondent: Niniwe Khemese; Respondent: Arthur Petrus Mabasa; Respondent: BBM Attorneys; Respondent: Johannesburg Metropolitan Local Council
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 February 2014
Case Number
2013/17484
Procedural Posture
Stay Application / Application for Eviction and Counter Application for Stay Pending Appeal
Outcome
Application for eviction granted; counter-application for stay dismissed.
Judges
André Gautschi
Legal Topics
Eviction, Sale in Execution, Bona Fide Purchaser, Rescission of Judgment, Lease Cancellation
Land and Property Civil Procedure Eviction Sale in Execution Bona Fide Purchaser Rescission of Judgment Lease Cancellation

Case Brief

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Parties

Edgar Noel Maistry

Applicant

Celeste Maistry

Applicant

Niniwe Khemese

Respondent

Arthur Petrus Mabasa

Respondent

BBM Attorneys

Respondent

Johannesburg Metropolitan Local Council

Respondent

Procedural Posture

Stay Application / Application for Eviction and Counter Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether the applicants are entitled to recover possession of the sectional title unit from the respondents.
  2. 2 Whether the lease agreement between the first and second respondents should be declared cancelled.
  3. 3 Whether the eviction application should be stayed pending appeal against refusal of rescission of default judgment.

Ratio Decidendi

The court found that the applicants, as bona fide purchasers at a sale in execution, were entitled to recover possession of the property. The second respondent was aware of the default judgment as early as October 2009 but failed to act until after the sale in execution. The magistrate's refusal of condonation and rescission was unlikely to be overturned on appeal, and any suspension of the order under rule 49(11) did not affect the validity of the sale or transfer. The respondents' continued occupation and refusal to recognise the applicants' title constituted repudiation of any lease, which the applicants had accepted and cancelled. The counter-application for a stay was dismissed as it...

Court Disposition

Application for eviction granted; counter-application for stay dismissed.

Orders

  • The cancellation of any lease agreement between the first and second respondents pertaining to the property is confirmed.
  • The first and second respondents and all persons holding occupation through or under them are to vacate the property within 30 days from the date of service of this order.