Masilo v Somandass and Another (57928/14) [2015] ZAGPPHC 290 (7 April 2015)

Masilo v Somandass and Another (57928/14) [2015] ZAGPPHC 290 (7 April 2015)

The court found that the applicant had lawfully confessed to judgment and that ABSA was entitled to obtain judgment and a writ of execution without further notice. The applicant's constitutional rights were not infringed at the stage of judgment, and the confession to judgment was not defective. The property was validly sold in execution and transferred to the respondent, who obtained an eviction order under PIE. The applicant had no prospects of success in rescinding either the ABSA judgment or the eviction order. However, considering the applicant's family circumstances, the court held it was just and equitable to grant her a further 45 days to vacate the property.

Citation
[2015] ZAGPPHC 290
Parties
Applicant: Cecilia Mosiamiemang Masilo; Respondent: Rajendra Somandass; Respondent: Sherriff of the High Court Tshwane South East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 April 2015
Case Number
57928/14
Procedural Posture
Urgent Application / Application to Suspend Eviction Order Pending Rescission Applications
Outcome
Application dismissed with costs. Applicant ordered to vacate the property within 45 days.
Judges
E M Kubushi
Legal Topics
Eviction Proceedings, Prevention of Illegal Eviction Act, Confession to Judgment, Adequate Housing Right, Just and Equitable Eviction, Default Judgment Rescission
Land and Property Civil Procedure Constitutional Law Eviction Proceedings Prevention of Illegal Eviction Act Confession to Judgment Adequate Housing Right Just and Equitable Eviction +1 more

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Parties

Cecilia Mosiamiemang Masilo

Applicant

Rajendra Somandass

Respondent

Sherriff of the High Court Tshwane South East

Respondent

Procedural Posture

Urgent Application / Application to Suspend Eviction Order Pending Rescission Applications

Legal Issues

  1. 1 Whether the applicant is entitled to a suspension of the eviction order pending rescission applications.
  2. 2 Whether the confession to judgment infringed the applicant's constitutional rights to adequate housing and property.
  3. 3 Whether there are prospects of success in the intended rescission applications.

Ratio Decidendi

The court found that the applicant had lawfully confessed to judgment and that ABSA was entitled to obtain judgment and a writ of execution without further notice. The applicant's constitutional rights were not infringed at the stage of judgment, and the confession to judgment was not defective. The property was validly sold in execution and transferred to the respondent, who obtained an eviction order under PIE. The applicant had no prospects of success in rescinding either the ABSA judgment or the eviction order. However, considering the applicant's family circumstances, the court held it was just and equitable to grant her a further 45 days to vacate the property.

Court Disposition

Application dismissed with costs. Applicant ordered to vacate the property within 45 days.

Orders

  • The application is dismissed with costs.
  • The applicant is ordered to vacate the property at 266 Johan Rissik Street, Waterkloof, Pretoria, Erf 305 Waterkloof Ridge Township, JR Gauteng, within forty-five (45) days from the date of this order.