Masango and Others v Sunset Bay Trading 156 (Pty) Ltd and Others (17272/20) [2020] ZAGPJHC 240 (1 October 2020)

Masango and Others v Sunset Bay Trading 156 (Pty) Ltd and Others (17272/20) [2020] ZAGPJHC 240 (1 October 2020)

The court found that the applicants had established that they were in undisturbed possession of the property and that their possession was unlawfully taken away. However, the applicants failed to provide sufficient factual evidence linking the respondents to the demolition of the structures. The respondents' denial of responsibility was not so far-fetched or untenable as to be rejected on the papers. The matter involved a real dispute of fact that could not be resolved on affidavit alone, especially given the urgency and lack of oral evidence. Consequently, the applicants did not meet the requirements for a spoliation order against the respondents, and the application was dismissed.

Citation
[2020] ZAGPJHC 240
Parties
Applicant: Elias William Masango; Applicant: Masango Industries (Pty) Ltd; Applicant: Nelson Jali; Applicant: Qeda Ngcobo; Applicant: Steve Million; Applicant: Mduduzi Mdluli; Applicant: Ernest Mathonsi; Applicant: Nkosikhona Mnguni; Applicant: Misheck Spondo; Applicant: Nosipho Ngubane; Applicant: Trompies Ngwenya; Applicant: Anele Jacu; Applicant: Vesi Mbukiseni; Applicant: Bongani Ngubane; Applicant: Musa Hlatswayo; Applicant: Alfred Dambuza; Applicant: Nkululeko Ndlovu; Applicant: Themba Shoka; Applicant: Bernad Ndaba; Applicant: Fighton Nyoni; Applicant: Mandla Mpofu; Applicant: Mziwendoda Khanye; Applicant: Tawanda Kunza; Applicant: Nokuthula Ndlovu; Applicant: Jenet Ndulini; Applicant: Lihle Ndulini; Applicant: Hlupheph Doris Sibiya; Applicant: Mandoza Lebele; Applicant: Reanard Muhamed; Applicant: Kwanele Mpofu; Applicant: Qhinga Ntshayintshay; Applicant: Ngqqabutho Mhlanga; Applicant: Bheki Jali; Applicant: Thabisile Zulu; Applicant: Lenard Banad; Applicant: Ndudue Ndebele; Applicant: Thami Khumalo; Applicant: Cipho Muchari; Applicant: O'Brian Nguenya; Respondent: Sunset Bay Trading 156 (Pty) Ltd; Respondent: Sibonginkosi Magagula; Respondent: Nathan Len
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 October 2020
Case Number
17272/20
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs.
Judges
Strydom
Legal Topics
Spoliation, Urgent Interdict, Eviction Proceedings, Dispute of Fact
Civil Procedure Land and Property Spoliation Urgent Interdict Eviction Proceedings Dispute of Fact

Case Brief

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Parties

Elias William Masango

Applicant

Masango Industries (Pty) Ltd

Applicant

Nelson Jali

Applicant

Qeda Ngcobo

Applicant

Steve Million

Applicant

Mduduzi Mdluli

Applicant

Ernest Mathonsi

Applicant

Nkosikhona Mnguni

Applicant

Misheck Spondo

Applicant

Nosipho Ngubane

Applicant

Trompies Ngwenya

Applicant

Anele Jacu

Applicant

Vesi Mbukiseni

Applicant

Bongani Ngubane

Applicant

Musa Hlatswayo

Applicant

Alfred Dambuza

Applicant

Nkululeko Ndlovu

Applicant

Themba Shoka

Applicant

Bernad Ndaba

Applicant

Fighton Nyoni

Applicant

Mandla Mpofu

Applicant

Mziwendoda Khanye

Applicant

Tawanda Kunza

Applicant

Nokuthula Ndlovu

Applicant

Jenet Ndulini

Applicant

Lihle Ndulini

Applicant

Hlupheph Doris Sibiya

Applicant

Mandoza Lebele

Applicant

Reanard Muhamed

Applicant

Kwanele Mpofu

Applicant

Qhinga Ntshayintshay

Applicant

Ngqqabutho Mhlanga

Applicant

Bheki Jali

Applicant

Thabisile Zulu

Applicant

Lenard Banad

Applicant

Ndudue Ndebele

Applicant

Thami Khumalo

Applicant

Cipho Muchari

Applicant

O'Brian Nguenya

Applicant

Sunset Bay Trading 156 (Pty) Ltd

Respondent

Sibonginkosi Magagula

Respondent

Nathan Len

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the applicants were in undisturbed possession of the property and structures prior to demolition.
  2. 2 Whether the respondents were responsible for the unlawful deprivation of possession.
  3. 3 Whether the application meets the requirements for spoliation relief.

Ratio Decidendi

The court found that the applicants had established that they were in undisturbed possession of the property and that their possession was unlawfully taken away. However, the applicants failed to provide sufficient factual evidence linking the respondents to the demolition of the structures. The respondents' denial of responsibility was not so far-fetched or untenable as to be rejected on the papers. The matter involved a real dispute of fact that could not be resolved on affidavit alone, especially given the urgency and lack of oral evidence. Consequently, the applicants did not meet the requirements for a spoliation order against the respondents, and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.