Matsika v Chingwena (28030/2019) [2021] ZAGPJHC 759 (23 November 2021)

Matsika v Chingwena (28030/2019) [2021] ZAGPJHC 759 (23 November 2021)

The court found that the notice of appeal and all necessary steps to prosecute the appeal were taken timeously and properly served. The failure to file the power of attorney with the notice of appeal did not cause the appeal to lapse; rather, Rule 7(2) only prohibits the allocation of a hearing date until the power of attorney is filed. Discharging the rule nisi and allowing eviction would not serve the interests of justice, as the appeal was properly before the court. Therefore, the interim interdict staying eviction was confirmed and varied to ensure that the applicant is not evicted pending the final determination of the appeal.

Citation
[2021] ZAGPJHC 759
Parties
Applicant: Farai Matsika; Respondent: Moses Chingwena
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 November 2021
Case Number
28030/2019
Procedural Posture
Urgent Application / Reconsideration of Interim Interdict and Confirmation of Rule Nisi Pending Appeal
Outcome
The rule nisi staying eviction is confirmed and varied; the sheriff is prohibited from evicting the applicant pending the final determination of the appeal. Costs of the interdict will be costs in the appeal.
Judges
Senyatsi ML
Legal Topics
Eviction Proceedings, Interim Interdict, Stay of Execution, Appeal Procedure
Civil Procedure Land and Property Eviction Proceedings Interim Interdict Stay of Execution Appeal Procedure

Case Brief

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Parties

Farai Matsika

Applicant

Moses Chingwena

Respondent

Procedural Posture

Urgent Application / Reconsideration of Interim Interdict and Confirmation of Rule Nisi Pending Appeal

Legal Issues

  1. 1 Whether the failure to file a power of attorney with the notice of appeal causes the appeal to lapse.
  2. 2 Whether the rule nisi staying eviction should be discharged due to alleged procedural defects.
  3. 3 Whether it is in the interests of justice to maintain the stay of eviction pending the outcome of the appeal.

Ratio Decidendi

The court found that the notice of appeal and all necessary steps to prosecute the appeal were taken timeously and properly served. The failure to file the power of attorney with the notice of appeal did not cause the appeal to lapse; rather, Rule 7(2) only prohibits the allocation of a hearing date until the power of attorney is filed. Discharging the rule nisi and allowing eviction would not serve the interests of justice, as the appeal was properly before the court. Therefore, the interim interdict staying eviction was confirmed and varied to ensure that the applicant is not evicted pending the final determination of the appeal.

Court Disposition

The rule nisi staying eviction is confirmed and varied; the sheriff is prohibited from evicting the applicant pending the final determination of the appeal. Costs of the interdict will be costs in the appeal.

Orders

  • Paragraph 5 of the previous court order is varied to prohibit the sheriff from evicting Mr Matsika and any occupants of the property until final determination of the appeal under case number A5047/2021.
  • The rule nisi granted by Windell J is confirmed and varied as above; costs of the interdict will be costs of appeal.