Mntambo and Others v Changing Tides 74 (Pty) Ltd (08/39225) [2009] ZAGPJHC 17 (4 May 2009)

Mntambo and Others v Changing Tides 74 (Pty) Ltd (08/39225) [2009] ZAGPJHC 17 (4 May 2009)

The court found that the service of process was fatally flawed and did not comply with the directions given by the court or the requirements of the PIE Act. The number of copies served was insufficient for the number of occupiers, and the method of service did not ensure that all affected parties were notified. The applicants were prejudiced by this inadequate service and cannot be said to have been in wilful default. Furthermore, the court that granted the eviction order failed to consider all relevant circumstances, including the availability of alternative accommodation for vulnerable groups such as women, children, and the elderly. The applicants demonstrated sufficient cause for...

Citation
[2009] ZAGPJHC 17
Parties
Applicant: Mntambo Flora; Applicant: Occupiers of 50 Davies Street, Doornfontein, Johannesburg; Respondent: Changing Tides 74 (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 May 2009
Case Number
08/39225
Procedural Posture
Rescission Application / Application to Rescind Eviction Order
Outcome
Application for rescission granted; eviction order rescinded.
Judges
Matojane
Legal Topics
Eviction Proceedings, Service of Process, Prevention of Illegal Eviction Act, Constitutional Right to Housing
Land and Property Civil Procedure Constitutional Law Eviction Proceedings Service of Process Prevention of Illegal Eviction Act Constitutional Right to Housing

Case Brief

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Parties

Mntambo Flora

Applicant

Occupiers of 50 Davies Street, Doornfontein, Johannesburg

Applicant

Changing Tides 74 (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application to Rescind Eviction Order

Legal Issues

  1. 1 Whether the applicants were in wilful default in failing to oppose the eviction order.
  2. 2 Whether the eviction order was erroneously sought or granted due to non-joinder and inadequate information.
  3. 3 Whether the applicants had a bona fide defence to the eviction proceedings.

Ratio Decidendi

The court found that the service of process was fatally flawed and did not comply with the directions given by the court or the requirements of the PIE Act. The number of copies served was insufficient for the number of occupiers, and the method of service did not ensure that all affected parties were notified. The applicants were prejudiced by this inadequate service and cannot be said to have been in wilful default. Furthermore, the court that granted the eviction order failed to consider all relevant circumstances, including the availability of alternative accommodation for vulnerable groups such as women, children, and the elderly. The applicants demonstrated sufficient cause for...

Court Disposition

Application for rescission granted; eviction order rescinded.

Orders

  • The order of court dated 22 April 2008 is rescinded.
  • Costs be costs in the course.