Mitchell v Mathews and Others (2522/2014) [2014] ZAWCHC 60; 2015 (4) SA 351 (WCC) (23 April 2014)

Mitchell v Mathews and Others (2522/2014) [2014] ZAWCHC 60; 2015 (4) SA 351 (WCC) (23 April 2014)

The court held that the rescission order obtained by Matthews & Oliver did not affect the applicants' ownership of the property because the applicants were not joined as parties to those proceedings. According to established legal principles, an order made against a party not cited is a nullity and may be disregarded. The registration of transfer to the applicants remains valid, and they are the true owners of the property. Matthews & Oliver are in unlawful occupation, but the applicants' request for eviction must be refused due to non-compliance with the procedural requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The request to compel the...

Citation
[2014] ZAWCHC 60
Parties
Applicant: Michael Mitchell; Applicant: Lorraine Rebecca Mitchell; Respondent: Dale Mathews; Respondent: Elton James Oliver; Respondent: Firstrand Bank Limited; Respondent: Waszzm Ahmed Dadarker; Respondent: Dadarker & Associates Attorneys; Respondent: The Standard Bank of South Africa Limited; Respondent: The Sheriff of the Court, Mitchells Plain North; Respondent: De Abreu & Cohen Inc; Respondent: Sunset Bay Trading 546 cc t/a Pam Golding Properties Athlone; Respondent: City of Cape Town; Respondent: The Registrar of Deeds; Respondent: South African Revenue Services
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 April 2014
Case Number
2522/2014
Procedural Posture
Civil Application / Unopposed Motion Court; Application for Declaratory and Ancillary Relief
Outcome
Application granted in part: declaratory order of ownership and unlawful occupation; eviction and damages orders refused; costs awarded to applicants.
Judges
Breitenbach
Legal Topics
Ownership of Immovable Property, Sale in Execution, Rescission of Judgment, Unlawful Occupation, Prevention of Illegal Eviction Act
Land and Property Civil Procedure Ownership of Immovable Property Sale in Execution Rescission of Judgment Unlawful Occupation Prevention of Illegal Eviction Act

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Parties

Michael Mitchell

Applicant

Lorraine Rebecca Mitchell

Applicant

Dale Mathews

Respondent

Elton James Oliver

Respondent

Firstrand Bank Limited

Respondent

Waszzm Ahmed Dadarker

Respondent

Dadarker & Associates Attorneys

Respondent

The Standard Bank of South Africa Limited

Respondent

The Sheriff of the Court, Mitchells Plain North

Respondent

De Abreu & Cohen Inc

Respondent

Sunset Bay Trading 546 cc t/a Pam Golding Properties Athlone

Respondent

City of Cape Town

Respondent

The Registrar of Deeds

Respondent

South African Revenue Services

Respondent

Procedural Posture

Civil Application / Unopposed Motion Court; Application for Declaratory and Ancillary Relief

Legal Issues

  1. 1 Whether the applicants are the true owners of the property despite prior rescission of default judgment and sale in execution.
  2. 2 Whether the respondents are in unlawful occupation of the property.
  3. 3 Whether the applicants are entitled to an eviction order against the respondents.

Ratio Decidendi

The court held that the rescission order obtained by Matthews & Oliver did not affect the applicants' ownership of the property because the applicants were not joined as parties to those proceedings. According to established legal principles, an order made against a party not cited is a nullity and may be disregarded. The registration of transfer to the applicants remains valid, and they are the true owners of the property. Matthews & Oliver are in unlawful occupation, but the applicants' request for eviction must be refused due to non-compliance with the procedural requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The request to compel the...

Court Disposition

Application granted in part: declaratory order of ownership and unlawful occupation; eviction and damages orders refused; costs awarded to applicants.

Orders

  • It is declared that the applicants are the co-owners of the property and that the first and second respondents are in unlawful occupation.
  • The application for orders directing the first and second respondents to vacate the property and authorising the Sheriff to evict them is refused.