Masipa and Another v Masipa (23224/2020) [2020] ZAGPPHC 214 (4 June 2020)

Masipa and Another v Masipa (23224/2020) [2020] ZAGPPHC 214 (4 June 2020)

The court found that the applicants failed to establish genuine urgency. The first applicant had vacated the matrimonial home more than a year prior, and his claim of urgency due to the Covid-19 pandemic was unsupported by evidence of financial hardship or inability to secure alternative accommodation. The second applicant's claim of being denied access was contradicted by correspondence showing prior knowledge of lock changes and no actual prevention of access by the respondent. The court applied the Plascon Evans principle, accepting the respondent's version in the absence of a replying affidavit. Consequently, the application did not warrant urgent attention and was struck from the roll.

Citation
[2020] ZAGPPHC 214
Parties
Applicant: Masipa Masube Michael; Applicant: Thobja John Masipa; Respondent: Masipa Matshediso Ruth
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 June 2020
Case Number
23224/2020
Procedural Posture
Urgent Application / Application to Strike From the Roll for Lack of Urgency
Outcome
Application struck from the roll for lack of urgency; costs awarded against applicants.
Judges
E van der Schyff
Legal Topics
Urgent Interdict, Matrimonial Property, Lockdown Eviction, Condonation of Late Filing
Civil Procedure Family and Children Urgent Interdict Matrimonial Property Lockdown Eviction Condonation of Late Filing

Case Brief

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Parties

Masipa Masube Michael

Applicant

Thobja John Masipa

Applicant

Masipa Matshediso Ruth

Respondent

Procedural Posture

Urgent Application / Application to Strike From the Roll for Lack of Urgency

Legal Issues

  1. 1 Whether the application is sufficiently urgent to warrant hearing on the urgent court roll.
  2. 2 Whether the applicants are entitled to relief preventing eviction and interference with possession of the matrimonial property during the national lockdown.
  3. 3 Whether the respondent unlawfully denied access to the property to the applicants.

Ratio Decidendi

The court found that the applicants failed to establish genuine urgency. The first applicant had vacated the matrimonial home more than a year prior, and his claim of urgency due to the Covid-19 pandemic was unsupported by evidence of financial hardship or inability to secure alternative accommodation. The second applicant's claim of being denied access was contradicted by correspondence showing prior knowledge of lock changes and no actual prevention of access by the respondent. The court applied the Plascon Evans principle, accepting the respondent's version in the absence of a replying affidavit. Consequently, the application did not warrant urgent attention and was struck from the roll.

Court Disposition

Application struck from the roll for lack of urgency; costs awarded against applicants.

Orders

  • The application is struck from the roll.
  • The applicants are to pay the costs of the application on an attorney and own client scale, jointly and severally, the one paying the other to be absolved.