Mngomezulu and Another v Van Den Heever NO and Another (626/05) [2006] ZASCA 119; [2007] 2 All SA 357 (SCA); 2007 (2) SACR 266 (SCA) (29 November 2006)

Mngomezulu and Another v Van Den Heever NO and Another (626/05) [2006] ZASCA 119; [2007] 2 All SA 357 (SCA); 2007 (2) SACR 266 (SCA) (29 November 2006)

The Supreme Court of Appeal held that the case did not concern eviction, as the appellants voluntarily surrendered possession of the residential property to the curator bonis upon service of the restraint order. The curator bonis did not evict the appellants, and there was no opposition or constraint in their vacating the property. The court found that the curator bonis was entitled to impose reasonable conditions on re-occupation to fulfil his statutory duty to preserve the property. The conditions sought were not unreasonable and served the legitimate objective of safeguarding the restrained assets. The appellants' constitutional and statutory arguments regarding eviction were...

Citation
[2006] ZASCA 119
Parties
Appellant: Ngengelezi Zaccheus Mngomezulu; Appellant: Nontando Mngomezulu; Respondent: Theodor Wilhelm van den Heever NO; Respondent: National Director of Public Prosecutions
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2006
Case Number
626/05
Procedural Posture
Civil Appeal / Appeal From Full Court Decision
Outcome
The appeal is dismissed with costs.
Judges
Howie, Zulman, Cameron, Mthiyane, Theron
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Curator Bonis Powers, Surrender of Property, Eviction Rights
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Curator Bonis Powers Surrender of Property Eviction Rights

Case Brief

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Parties

Ngengelezi Zaccheus Mngomezulu

Appellant

Nontando Mngomezulu

Appellant

Theodor Wilhelm van den Heever NO

Respondent

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court Decision

Legal Issues

  1. 1 Whether the surrender of residential immovable property under a restraint order in terms of section 28(1)(b) of POCA amounts to eviction.
  2. 2 Whether the curator bonis may impose conditions on re-occupation of restrained property by the appellants.
  3. 3 Whether the appellants' constitutional and statutory rights against arbitrary eviction were infringed.

Ratio Decidendi

The Supreme Court of Appeal held that the case did not concern eviction, as the appellants voluntarily surrendered possession of the residential property to the curator bonis upon service of the restraint order. The curator bonis did not evict the appellants, and there was no opposition or constraint in their vacating the property. The court found that the curator bonis was entitled to impose reasonable conditions on re-occupation to fulfil his statutory duty to preserve the property. The conditions sought were not unreasonable and served the legitimate objective of safeguarding the restrained assets. The appellants' constitutional and statutory arguments regarding eviction were...

Court Disposition

The appeal is dismissed with costs.

Orders

  • The appeal is dismissed with costs.