Msimang and Others v Kingston and Others (Leave to Appeal) (13623/2022) [2024] ZAGPPHC 265 (26 March 2024)

Msimang and Others v Kingston and Others (Leave to Appeal) (13623/2022) [2024] ZAGPPHC 265 (26 March 2024)

The court found that the applicants failed to provide a comprehensive and reasonable explanation for the delay in filing the application for leave to appeal. The explanation was vague, unsupported by evidence, and did not cover the entire period of delay. The applicants' grounds of appeal were based on new arguments not advanced in the original eviction proceedings, particularly regarding consent to occupy the property. The court held that the factual basis for lawful occupation was not established in the eviction application, and shifting the grounds at this stage would be unfair to the respondent. The terms of the joint venture agreement regarding sale by public auction were clear and...

Citation
[2024] ZAGPPHC 265
Parties
Applicant: Fabian Zimpande Msimang; Applicant: Unlawful Occupiers of 321 Derrick Avenue, Waterkloof Ridge, Pretoria; Applicant: Fabian Zimpande Msimang N.O.; Respondent: Martin Lawrence Kingston; Respondent: City of Tshwane Metropolitan Municipality; Respondent: The Master of the High Court
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 March 2024
Case Number
13623/2022
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Judgment; Condonation for Late Filing Sought
Outcome
Application for condonation for late filing of leave to appeal dismissed; application for leave to appeal struck from the roll; costs awarded against first and third applicants jointly and severally.
Judges
E van der Schyff
Legal Topics
Condonation for Late Filing, Eviction Proceedings, Locus Standi, Lawful Occupation, Joint Venture Property, Rule 41a Non Compliance
Civil Procedure Land and Property Condonation for Late Filing Eviction Proceedings Locus Standi Lawful Occupation Joint Venture Property Rule 41a Non Compliance

Case Brief

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Parties

Fabian Zimpande Msimang

Applicant

Unlawful Occupiers of 321 Derrick Avenue, Waterkloof Ridge, Pretoria

Applicant

Fabian Zimpande Msimang N.O.

Applicant

Martin Lawrence Kingston

Respondent

City of Tshwane Metropolitan Municipality

Respondent

The Master of the High Court

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Judgment; Condonation for Late Filing Sought

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the applicants have reasonable prospects of success on appeal regarding the eviction order.
  3. 3 Whether the grounds of appeal raised constitute new issues not advanced in the original proceedings.

Ratio Decidendi

The court found that the applicants failed to provide a comprehensive and reasonable explanation for the delay in filing the application for leave to appeal. The explanation was vague, unsupported by evidence, and did not cover the entire period of delay. The applicants' grounds of appeal were based on new arguments not advanced in the original eviction proceedings, particularly regarding consent to occupy the property. The court held that the factual basis for lawful occupation was not established in the eviction application, and shifting the grounds at this stage would be unfair to the respondent. The terms of the joint venture agreement regarding sale by public auction were clear and...

Court Disposition

Application for condonation for late filing of leave to appeal dismissed; application for leave to appeal struck from the roll; costs awarded against first and third applicants jointly and severally.

Orders

  • The applicants’ application for condonation of the late filing of the notice of application for leave to appeal against the judgment of this court handed down on 27 November 2023 is dismissed.
  • The applicants’ application for leave to appeal dated, and filed on, 29 February 2024 is struck from the roll.