Mntonga v Mamdulay and Another (1022/2024) [2024] ZAECMHC 24 (26 March 2024)

Mntonga v Mamdulay and Another (1022/2024) [2024] ZAECMHC 24 (26 March 2024)

The applicant was found to have been in peaceful and undisturbed possession of the premises, having received the keys and participated in the daily running of the business. The respondents' actions, including locking the premises and disconnecting electricity, constituted spoliation. The applicant's locus standi was established by her employment and involvement in the business, and the respondents themselves recognized her possession by seeking to interdict her in parallel proceedings. The respondents' reliance on affidavits not placed before the court was disregarded as hearsay. The point in limine regarding non-joinder was dismissed, as the relief sought was against the cited...

Citation
[2024] ZAECMHC 24
Parties
Applicant: Naledi Mntonga; Respondent: Silma Hamdulay obo Executor of the Deceased Estate of Sicelo Victor Mntonga; Respondent: Penrose Restaurants (Pty) Ltd
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 March 2024
Case Number
1022/2024
Procedural Posture
Urgent Application / Reasons for Judgment Following Urgent Spoliation Application
Outcome
Application granted. The applicant is entitled to restoration of possession and costs on an attorney and client scale.
Judges
Zilwa
Legal Topics
Mandament Van Spolie, Urgent Interdict, Locus Standi, Non Joinder, Restoration of Possession
Civil Procedure Land and Property Mandament Van Spolie Urgent Interdict Locus Standi Non Joinder Restoration of Possession

Case Brief

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Parties

Naledi Mntonga

Applicant

Silma Hamdulay obo Executor of the Deceased Estate of Sicelo Victor Mntonga

Respondent

Penrose Restaurants (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Reasons for Judgment Following Urgent Spoliation Application

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the premises and entitled to spoliation relief.
  2. 2 Whether the applicant had locus standi to bring the application.
  3. 3 Whether the respondents' actions constituted spoliation, including switching off electricity and locking premises.

Ratio Decidendi

The applicant was found to have been in peaceful and undisturbed possession of the premises, having received the keys and participated in the daily running of the business. The respondents' actions, including locking the premises and disconnecting electricity, constituted spoliation. The applicant's locus standi was established by her employment and involvement in the business, and the respondents themselves recognized her possession by seeking to interdict her in parallel proceedings. The respondents' reliance on affidavits not placed before the court was disregarded as hearsay. The point in limine regarding non-joinder was dismissed, as the relief sought was against the cited...

Court Disposition

Application granted. The applicant is entitled to restoration of possession and costs on an attorney and client scale.

Orders

  • The respondents are ordered to restore possession of the Wimpy and Debonairs Pizza premises at BT Ngebs and Circus Triangle Malls in Mthatha forthwith.
  • The respondents and any person acting at their instance are interdicted from entering or causing anyone to enter the premises pending finalisation of the application in Makhanda High Court under case number 430/2024.