Moosa v Ramsugit and Others (76/2020) [2020] ZAECPEHC 3 (30 January 2020)

Moosa v Ramsugit and Others (76/2020) [2020] ZAECPEHC 3 (30 January 2020)

The court held that the mandament van spolie is a possessory remedy and cannot be granted where the property has been destroyed or restoration of possession is factually impossible. The applicant sought restoration of possession of a container that no longer existed and of immovable property in the possession of a third party, making restoration impossible. The court declined to develop the common law remedy or to fashion constitutional relief under section 38 of the Constitution, as no constitutionally protected rights such as housing or dignity were engaged. The application was distinguishable from cases where constitutional rights were infringed by dispossession. The court found that...

Citation
[2020] ZAECPEHC 3
Parties
Applicant: Mogamat Rifaad Moosa; Respondent: Himat Ramsugit; Respondent: Claudette Dorothy Louisa van der Mescht N.O; Respondent: Wanda Alfonso N.O
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
30 January 2020
Case Number
76/2020
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application dismissed with costs.
Judges
Goosen
Legal Topics
Mandament Van Spolie, Restoration of Possession, Constitutional Relief, Joinder, Urgency, Rule of Law
Civil Procedure Mandament Van Spolie Restoration of Possession Constitutional Relief Joinder Urgency Rule of Law

Case Brief

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Parties

Mogamat Rifaad Moosa

Applicant

Himat Ramsugit

Respondent

Claudette Dorothy Louisa van der Mescht N.O

Respondent

Wanda Alfonso N.O

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to restoration of possession of the destroyed container under the mandament van spolie.
  2. 2 Whether the common law remedy of mandament van spolie should be developed to provide constitutional relief when the property has been destroyed.
  3. 3 Whether the failure to join Astana Properties and the current occupant of the property is fatal to the application.

Ratio Decidendi

The court held that the mandament van spolie is a possessory remedy and cannot be granted where the property has been destroyed or restoration of possession is factually impossible. The applicant sought restoration of possession of a container that no longer existed and of immovable property in the possession of a third party, making restoration impossible. The court declined to develop the common law remedy or to fashion constitutional relief under section 38 of the Constitution, as no constitutionally protected rights such as housing or dignity were engaged. The application was distinguishable from cases where constitutional rights were infringed by dispossession. The court found that...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.