Mfuniselwa v Mfuniselwa and Others (2818/2022) [2022] ZAECQBHC 47 (13 December 2022)

Mfuniselwa v Mfuniselwa and Others (2818/2022) [2022] ZAECQBHC 47 (13 December 2022)

The court found the application urgent, as the applicant acted within a reasonable time after being dispossessed. The applicant, as executrix, had locus standi to vindicate estate assets. The respondents were not residing at the property as their home prior to the spoliation, and their occupation was premeditated to hinder estate administration. The applicant was in peaceful and undisturbed possession until forcibly deprived by the respondents, who resorted to self-help. The defence of abandonment was rejected, as there was no intention by the applicant to relinquish possession. PIE was held not to apply, as the property was not the respondents' home. The applicant was entitled to...

Citation
[2022] ZAECQBHC 47
Parties
Applicant: Monalisa Pumla Portia Mfuniselwa; Respondent: Aviwe Arthur Mfuniselwa; Respondent: Bandile Aubrey Mfuniselwa; Respondent: Pamela Babalwa Mfuniselwa; Respondent: The Master of the High Court, Gqeberha
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
13 December 2022
Case Number
2818/2022
Procedural Posture
Urgent Application / Opposed Motion for Mandament Van Spolie
Outcome
Application granted. The applicant is restored to possession of the property. Costs awarded against the first, second, and third respondents jointly and severally on a party and party scale.
Judges
M M Chithi
Legal Topics
Mandament Van Spolie, Locus Standi, Urgent Interdict, Prevention of Illegal Eviction Act, Abandonment of Property
Land and Property Civil Procedure Mandament Van Spolie Locus Standi Urgent Interdict Prevention of Illegal Eviction Act Abandonment of Property

Case Brief

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Parties

Monalisa Pumla Portia Mfuniselwa

Applicant

Aviwe Arthur Mfuniselwa

Respondent

Bandile Aubrey Mfuniselwa

Respondent

Pamela Babalwa Mfuniselwa

Respondent

The Master of the High Court, Gqeberha

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Mandament Van Spolie

Legal Issues

  1. 1 Whether the application is urgent.
  2. 2 Whether the applicant has locus standi to institute the application as executrix.
  3. 3 Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applies to the respondents.

Ratio Decidendi

The court found the application urgent, as the applicant acted within a reasonable time after being dispossessed. The applicant, as executrix, had locus standi to vindicate estate assets. The respondents were not residing at the property as their home prior to the spoliation, and their occupation was premeditated to hinder estate administration. The applicant was in peaceful and undisturbed possession until forcibly deprived by the respondents, who resorted to self-help. The defence of abandonment was rejected, as there was no intention by the applicant to relinquish possession. PIE was held not to apply, as the property was not the respondents' home. The applicant was entitled to...

Court Disposition

Application granted. The applicant is restored to possession of the property. Costs awarded against the first, second, and third respondents jointly and severally on a party and party scale.

Orders

  • The first and second respondents are directed to forthwith restore the applicant's peaceful and undisturbed possession, occupation, use, and control of the property described as ERF 9[...] A[...] P[...], Gqeberha, held by Deed of Transfer T[...]CTN.
  • If the first and second respondents fail to comply, the Sheriff, assisted by the South African Police Service if necessary, is authorised to remove the first and second respondents from the property and hand the keys to the applicant.