Mhlongo and Another v Monsieur and Another (52197/10) [2010] ZAGPPHC 137 (4 October 2010)

Mhlongo and Another v Monsieur and Another (52197/10) [2010] ZAGPPHC 137 (4 October 2010)

The court found that the applicants were in possession of the premises and the business at BirdsEye Luxury Lodge, having invested in and administered the business. The first respondent, acting personally or as agent of the second respondent, unlawfully deprived the applicants of possession by locking them out and appropriating the keys. The evidence of voluntary abandonment by the applicants was rejected as a fabrication, and the allegations of theft and forgery were found to be unsubstantiated and part of a deliberate attempt to force the applicants out. The interruption of utilities was also found to be orchestrated by the first respondent to achieve the same end. Given the unresolved...

Citation
[2010] ZAGPPHC 137
Parties
Applicant: Lunga Siza Mhlongo; Applicant: Linda Msipa; Respondent: Stengie Monsieur; Respondent: Birdseye Luxury Lodge CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 October 2010
Case Number
52197/10
Procedural Posture
Urgent Application / Final Hearing and Judgment After Oral Evidence
Outcome
Application granted. Spoliation order issued restoring possession to applicants as partners. Costs awarded against respondents.
Judges
Tuchten
Legal Topics
Spoliation, Possession, Urgent Interdict, Lease Dispute, Partnership Agreement
Civil Procedure Land and Property Spoliation Possession Urgent Interdict Lease Dispute Partnership Agreement

Case Brief

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Parties

Lunga Siza Mhlongo

Applicant

Linda Msipa

Applicant

Stengie Monsieur

Respondent

Birdseye Luxury Lodge CC

Respondent

Procedural Posture

Urgent Application / Final Hearing and Judgment After Oral Evidence

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of possession of the premises and business at BirdsEye Luxury Lodge.
  2. 2 Whether the applicants are entitled to restoration of possession via a spoliation order.
  3. 3 Whether the applicants' occupation was as partners or lessees pending resolution of forgery allegations.

Ratio Decidendi

The court found that the applicants were in possession of the premises and the business at BirdsEye Luxury Lodge, having invested in and administered the business. The first respondent, acting personally or as agent of the second respondent, unlawfully deprived the applicants of possession by locking them out and appropriating the keys. The evidence of voluntary abandonment by the applicants was rejected as a fabrication, and the allegations of theft and forgery were found to be unsubstantiated and part of a deliberate attempt to force the applicants out. The interruption of utilities was also found to be orchestrated by the first respondent to achieve the same end. Given the unresolved...

Court Disposition

Application granted. Spoliation order issued restoring possession to applicants as partners. Costs awarded against respondents.

Orders

  • The respondents are directed immediately to restore to the applicants possession of both the entire premises called BirdsEye Luxury Lodge, 79 Allan Road Glen Austin, Midrand, and the business conducted thereon.
  • The respondents are directed immediately to restore to the applicants a set of keys to the premises and business identical to those appropriated by the first respondent on 1 September 2010.