Mtshali and Others v Tayengwa and Others (02312/2013) [2013] ZAGPJHC 219 (30 August 2013)

Mtshali and Others v Tayengwa and Others (02312/2013) [2013] ZAGPJHC 219 (30 August 2013)

The court found that the alternative relief regarding accommodation payments was reached by consensus between the parties and was fair, limiting payment to those with income and reducing the amount to R10.00. The main issue for determination was the rescission application, which the court dismissed after considering all relevant factors and exercising judicial discretion. The court was not persuaded that there were reasonable prospects that another court would reach a different conclusion. Furthermore, the matter had become academic, and the decision was fact-specific, not precedent-setting. Costs were not awarded to either party.

Citation
[2013] ZAGPJHC 219
Parties
Appellant: Mtshali Thokozani; Applicant: The Occupiers of 238 Mains and Berea Street; Respondent: Tayengwa Masawi; Respondent: Trene Rumbinzai Maswai; Respondent: Phumangelakhe Makhaya; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: National Commissioner of South African Police
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 August 2013
Case Number
02312/2013
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application of Eviction Order.
Outcome
Leave to appeal is refused; no order as to costs.
Judges
E Molahlehi
Legal Topics
Rescission of Judgment, Eviction, Alternative Accommodation, Judicial Discretion
Civil Procedure Land and Property Rescission of Judgment Eviction Alternative Accommodation Judicial Discretion

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Parties

Mtshali Thokozani

Appellant

The Occupiers of 238 Mains and Berea Street

Applicant

Tayengwa Masawi

Respondent

Trene Rumbinzai Maswai

Respondent

Phumangelakhe Makhaya

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

National Commissioner of South African Police

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application of Eviction Order.

Legal Issues

  1. 1 Whether there are reasonable prospects that another court would reach a different conclusion regarding the dismissal of the rescission application.
  2. 2 Whether the alternative relief regarding accommodation and payment was fair and based on consensus.
  3. 3 Whether the decision should be reversed to avoid setting a precedent.

Ratio Decidendi

The court found that the alternative relief regarding accommodation payments was reached by consensus between the parties and was fair, limiting payment to those with income and reducing the amount to R10.00. The main issue for determination was the rescission application, which the court dismissed after considering all relevant factors and exercising judicial discretion. The court was not persuaded that there were reasonable prospects that another court would reach a different conclusion. Furthermore, the matter had become academic, and the decision was fact-specific, not precedent-setting. Costs were not awarded to either party.

Court Disposition

Leave to appeal is refused; no order as to costs.

Orders

  • Leave to appeal is refused.
  • There is no order as to costs.