Molefe and Others v Berger and Others (CIVIL APP.FB 03/2018) [2020] ZANWHC 43 (15 May 2020)

Molefe and Others v Berger and Others (CIVIL APP.FB 03/2018) [2020] ZANWHC 43 (15 May 2020)

The Full Court found that the ex parte interim order should not have been granted because the identities of the alleged trespassers were known and not disclosed, breaching the duty of full disclosure. The second respondent lacked authority to institute proceedings on behalf of the first respondent, as the letter of authority only named the third respondent and the confirmatory affidavit was irregular. The Sheriff’s returns indicated possible eviction and demolition of dwellings, contrary to the terms of the interim order, and material disputes of fact existed regarding the execution of the order and the status of the appellants as occupiers under ESTA. These disputes required referral to...

Citation
[2020] ZANWHC 43
Parties
Appellant: Abel Molefe & 38 Others; Respondent: Esme Berger; Respondent: Johannes Hendrik Lubbe De Klerk; Respondent: Gustav Du Toit Heuer
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
15 May 2020
Case Number
CIVIL APP.FB 03/2018
Procedural Posture
Civil Appeal / Full Court Appeal From High Court Judgment, With Leave Granted by the Supreme Court of Appeal
Outcome
Appeal succeeds in part; interim order discharged; rescission application dismissed; each party to pay its own costs.
Judges
J T Djaje, R D Hendricks, R Nonyane
Legal Topics
Ex Parte Application, Authority to Institute Proceedings, Extension of Security of Tenure Act, Eviction, Rescission of Order, Dispute of Facts
Land and Property Civil Procedure Ex Parte Application Authority to Institute Proceedings Extension of Security of Tenure Act Eviction Rescission of Order Dispute of Facts

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Parties

Abel Molefe & 38 Others

Appellant

Esme Berger

Respondent

Johannes Hendrik Lubbe De Klerk

Respondent

Gustav Du Toit Heuer

Respondent

Procedural Posture

Civil Appeal / Full Court Appeal From High Court Judgment, With Leave Granted by the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the ex parte interim interdict was properly granted when the identities of the alleged trespassers were known.
  2. 2 Whether the second respondent had authority to institute proceedings on behalf of the first respondent.
  3. 3 Whether the appellants were unlawfully evicted and their dwellings demolished contrary to the court order.

Ratio Decidendi

The Full Court found that the ex parte interim order should not have been granted because the identities of the alleged trespassers were known and not disclosed, breaching the duty of full disclosure. The second respondent lacked authority to institute proceedings on behalf of the first respondent, as the letter of authority only named the third respondent and the confirmatory affidavit was irregular. The Sheriff’s returns indicated possible eviction and demolition of dwellings, contrary to the terms of the interim order, and material disputes of fact existed regarding the execution of the order and the status of the appellants as occupiers under ESTA. These disputes required referral to...

Court Disposition

Appeal succeeds in part; interim order discharged; rescission application dismissed; each party to pay its own costs.

Orders

  • Condonation for the late filing of the corrected record and prosecution of the appeal is granted.
  • The appeal succeeds in part.