Nakeli and Another v Sello and Another (2023/91850) [2023] ZAGPJHC 1070 (22 September 2023)

Nakeli and Another v Sello and Another (2023/91850) [2023] ZAGPJHC 1070 (22 September 2023)

The court found that the applicants were not unlawfully deprived of possession, as the eviction was executed by the Sheriff pursuant to a valid court order obtained by the first respondent. The order was clear and unambiguous, authorizing the Sheriff to evict the applicants if they failed to vacate by the specified date. The applicants did not pursue available remedies such as appeal or rescission of the eviction order. The court held that the first respondent followed due process and did not resort to self-help. The applicants failed to provide sufficient information regarding their personal circumstances to support a claim for alternative accommodation from the second respondent....

Citation
[2023] ZAGPJHC 1070
Parties
Applicant: Jeminah Nakeli; Applicant: Unlawful Occupiers of Erf 85 Jan Hofmeyer Township, Registration Division I.R, Province of Gauteng; Respondent: Monama Enos Sello; Respondent: City of Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2023
Case Number
2023/91850
Procedural Posture
Urgent Application / Final Determination of Urgent Spoliation Application
Outcome
Application dismissed with costs against the applicants in favour of the first respondent.
Judges
Phahlamohlaka
Legal Topics
Spoliation, Eviction Order, Mandament Van Spolie, Section 26 Constitution, Alternative Accommodation, Prevention of Illegal Eviction Act
Land and Property Civil Procedure Constitutional Law Spoliation Eviction Order Mandament Van Spolie Section 26 Constitution Alternative Accommodation +1 more

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Parties

Jeminah Nakeli

Applicant

Unlawful Occupiers of Erf 85 Jan Hofmeyer Township, Registration Division I.R, Province of Gauteng

Applicant

Monama Enos Sello

Respondent

City of Johannesburg

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Spoliation Application

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of possession of the property by the Sheriff.
  2. 2 Whether the eviction order granted by Senyatsi J was lawfully executed.
  3. 3 Whether the applicants are entitled to restoration of possession under the mandament van spolie.

Ratio Decidendi

The court found that the applicants were not unlawfully deprived of possession, as the eviction was executed by the Sheriff pursuant to a valid court order obtained by the first respondent. The order was clear and unambiguous, authorizing the Sheriff to evict the applicants if they failed to vacate by the specified date. The applicants did not pursue available remedies such as appeal or rescission of the eviction order. The court held that the first respondent followed due process and did not resort to self-help. The applicants failed to provide sufficient information regarding their personal circumstances to support a claim for alternative accommodation from the second respondent....

Court Disposition

Application dismissed with costs against the applicants in favour of the first respondent.

Orders

  • The matter is heard on an urgent basis in terms of Rule 6(12) of the Uniform Rules of Court.
  • The application is dismissed.