Mnguni v Louw and Others (2013/ 30945) [2013] ZAGPJHC 253 (10 October 2013)

Mnguni v Louw and Others (2013/ 30945) [2013] ZAGPJHC 253 (10 October 2013)

The court held that section 78 of the Magistrate's Court Act applies to review applications, and its wording requires that a party seeking to execute a judgment must obtain leave from the court when such proceedings are pending. In this case, no such leave was sought by the first respondent before executing the ejectment order. The execution was therefore unlawful and amounted to spoliation. The applicant is entitled to restoration of possession of the property, and the first respondent must take steps to enable this. Costs are awarded against the first respondent.

Citation
[2013] ZAGPJHC 253
Parties
Applicant: Mnguni Albert Muzikayifani; Respondent: Louw Mara Ilda Michela; Respondent: Ms Mosasa (Magistrate); Respondent: Ekurhuleni Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 October 2013
Case Number
2013/30945
Procedural Posture
Urgent Application / Application for Restoration of Possession Following Ejectment and Review of Magistrate's Order
Outcome
Application granted. The applicant is restored to possession of the property. Costs awarded against the first respondent.
Judges
C Lamont
Legal Topics
Spoliation, Stay of Execution, Magistrates Court Act, Sale in Execution, Rescission Application
Civil Procedure Land and Property Spoliation Stay of Execution Magistrates Court Act Sale in Execution Rescission Application

Case Brief

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Parties

Mnguni Albert Muzikayifani

Applicant

Louw Mara Ilda Michela

Respondent

Ms Mosasa (Magistrate)

Respondent

Ekurhuleni Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Application for Restoration of Possession Following Ejectment and Review of Magistrate's Order

Legal Issues

  1. 1 Whether execution of the ejectment order was lawful in light of pending review proceedings.
  2. 2 Whether section 78 of the Magistrate's Court Act applies to review applications and suspends execution.
  3. 3 Whether the applicant is entitled to restoration of possession due to unlawful execution.

Ratio Decidendi

The court held that section 78 of the Magistrate's Court Act applies to review applications, and its wording requires that a party seeking to execute a judgment must obtain leave from the court when such proceedings are pending. In this case, no such leave was sought by the first respondent before executing the ejectment order. The execution was therefore unlawful and amounted to spoliation. The applicant is entitled to restoration of possession of the property, and the first respondent must take steps to enable this. Costs are awarded against the first respondent.

Court Disposition

Application granted. The applicant is restored to possession of the property. Costs awarded against the first respondent.

Orders

  • The first respondent is to take steps to enable the applicant to restore the status quo ante and take possession of the property at 35 Pongola Street, Brackendowns, Alberton.
  • The applicant is restored to possession of the property.