Mpungose and Others v Shabalala and Others (2773/2015) [2018] ZAKZPHC 35 (24 August 2018)

Mpungose and Others v Shabalala and Others (2773/2015) [2018] ZAKZPHC 35 (24 August 2018)

The court found that the present application for rescission is not materially different from the previous application, which was dismissed and stands unchallenged. The applicants' attempt to distinguish the grounds for rescission was rejected. However, the court recognized that the circumstances on the ground have changed, with both parties occupying portions of the land and a real dispute over rights of access. The court held that, in the interests of justice and constitutional rights of access to court, execution of the ejectment order should be suspended pending determination of the applicants' rights in an action to be instituted within thirty days. Costs were awarded against the...

Citation
[2018] ZAKZPHC 35
Parties
Applicant: Bongani J Mpungose; Applicant: Mbongeni Steven Khoza; Applicant: John Khipha Zwane; Applicant: Elphas Buthelezi; Applicant: Dumisani P Mbhele; Applicant: Henry Msibi; Respondent: Gagi Kenneth Shabalala; Respondent: Meisie Annastasia Shabalala; Respondent: Greenddine Amperbaas Shabalala; Respondent: Trustees for the time being of Amantungwa Development Trust
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
2773/2015
Procedural Posture
Urgent Application / Application for Rescission of Final Order and Suspension of Execution
Outcome
Application for rescission dismissed with costs; execution of ejectment order suspended pending institution and determination of action by applicants.
Judges
Olsen
Legal Topics
Rescission of Judgment, Spoliation, Eviction, Unlawful Occupation, Constitutional Right of Access to Court
Civil Procedure Land and Property Rescission of Judgment Spoliation Eviction Unlawful Occupation Constitutional Right of Access to Court

Case Brief

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Parties

Bongani J Mpungose

Applicant

Mbongeni Steven Khoza

Applicant

John Khipha Zwane

Applicant

Elphas Buthelezi

Applicant

Dumisani P Mbhele

Applicant

Henry Msibi

Applicant

Gagi Kenneth Shabalala

Respondent

Meisie Annastasia Shabalala

Respondent

Greenddine Amperbaas Shabalala

Respondent

Trustees for the time being of Amantungwa Development Trust

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Final Order and Suspension of Execution

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of the final spoliation order granted on 12 March 2015.
  2. 2 Whether execution of the ejectment order should be suspended pending determination of applicants' rights to the land.
  3. 3 Whether the applicants' occupation of the land has become protected by constitutional or statutory provisions.

Ratio Decidendi

The court found that the present application for rescission is not materially different from the previous application, which was dismissed and stands unchallenged. The applicants' attempt to distinguish the grounds for rescission was rejected. However, the court recognized that the circumstances on the ground have changed, with both parties occupying portions of the land and a real dispute over rights of access. The court held that, in the interests of justice and constitutional rights of access to court, execution of the ejectment order should be suspended pending determination of the applicants' rights in an action to be instituted within thirty days. Costs were awarded against the...

Court Disposition

Application for rescission dismissed with costs; execution of ejectment order suspended pending institution and determination of action by applicants.

Orders

  • The application to rescind the final order made on 12 March 2015 is dismissed with costs on the scale as between attorney and client, the applicants being jointly and severally liable for payment of such costs.
  • Execution of paragraphs (a) and (b) of the final order made on 12 March 2015 (the ejectment provisions) is suspended pending determination of an action or actions to be instituted by the applicants against the respondents by service of summons not later than thirty days after the date of this order.