Mdaka and Another v Msongelwa and Others (26148/14) [2014] ZAGPPHC 270 (22 April 2014)

Mdaka and Another v Msongelwa and Others (26148/14) [2014] ZAGPPHC 270 (22 April 2014)

The court found that the applicants were in peaceful occupation of Keta House and were unlawfully dispossessed by the first and second respondents, who took the law into their own hands by locking and chaining the premises. The respondents' denial of the applicants' rights and refusal to acknowledge the second applicant were rejected as unfounded and disrespectful. The court held that the mandament van spolie remedy was applicable, as the applicants were entitled to restoration of possession without regard to the merits of the underlying dispute. The respondents' justification for locking the premises due to its condition did not entitle them to dispossess the applicants without due process.

Citation
[2014] ZAGPPHC 270
Parties
Applicant: Johnson Famanda Mdaka; Applicant: Kemptonpark Taxi Association Concerned Group; Respondent: Elijah Msongelwa; Respondent: Kemptonpark Taxi Association; Respondent: Station Commissioner SAPS Kemptonpark; Respondent: Gauteng Transport Registrar; Respondent: MEC Public Transport Roads and Works
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 April 2014
Case Number
26148/14
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted; possession and occupation of Keta House to be restored to the applicants.
Judges
BAM
Legal Topics
Mandament Van Spolie, Possession and Occupation, Urgent Interdict, Restoration of Possession
Civil Procedure Land and Property Mandament Van Spolie Possession and Occupation Urgent Interdict Restoration of Possession

Case Brief

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Parties

Johnson Famanda Mdaka

Applicant

Kemptonpark Taxi Association Concerned Group

Applicant

Elijah Msongelwa

Respondent

Kemptonpark Taxi Association

Respondent

Station Commissioner SAPS Kemptonpark

Respondent

Gauteng Transport Registrar

Respondent

MEC Public Transport Roads and Works

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of possession and occupation of Keta House.
  2. 2 Whether the mandament van spolie remedy is applicable in the circumstances.
  3. 3 Whether the respondents were entitled to lock out the applicants without due process.

Ratio Decidendi

The court found that the applicants were in peaceful occupation of Keta House and were unlawfully dispossessed by the first and second respondents, who took the law into their own hands by locking and chaining the premises. The respondents' denial of the applicants' rights and refusal to acknowledge the second applicant were rejected as unfounded and disrespectful. The court held that the mandament van spolie remedy was applicable, as the applicants were entitled to restoration of possession without regard to the merits of the underlying dispute. The respondents' justification for locking the premises due to its condition did not entitle them to dispossess the applicants without due process.

Court Disposition

Application granted; possession and occupation of Keta House to be restored to the applicants.

Orders

  • The first and second respondents are ordered to restore the applicants' possession and occupation of Keta House, 28 Pretoria Road, Kempton Park, not later than 15h00 on 22 April 2014.
  • If the first and second respondents fail to comply, the local Sheriff is authorized to remove the chains and locks to the gates and doors leading to the property.