Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South (46484/2021) [2022] ZAGPPHC 80 (21 January 2022)

Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South (46484/2021) [2022] ZAGPPHC 80 (21 January 2022)

The court found that the applicants demonstrated sufficient urgency, as the eviction was imminent and they had acted as soon as legal representation was secured. The right at stake was access to the screening process for leave to appeal, which includes the right to apply for condonation. The court held that Rule 45A and the common law provide the discretion to suspend the execution of an order in the interests of justice. The applicants did not have an alternative remedy, as the eviction would render their appeal moot. The respondents' challenge to locus standi was dismissed as it was not properly raised in the papers. The balance of convenience favoured the applicants, who faced...

Citation
[2022] ZAGPPHC 80
Parties
Applicant: Paseka Pascal Ndevu; Applicant: The Borwa Community Action Group, consisting of all occupiers; Respondent: Westonaria South Property Holding (Pty) Ltd t/a Westonaria South; Respondent: Westonaria Borwa Mega Project (Pty) Ltd; Respondent: Crimson King Properties 351 (Pty) Ltd t/a Crimson King Developments
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 January 2022
Case Number
46484/2021
Procedural Posture
Urgent Application / Application for Stay of Eviction Order Pending Condonation and Leave to Appeal
Outcome
Application granted. Condonation for non-compliance with the rules is granted and the eviction order is suspended pending finalisation of the condonation and leave to appeal application.
Judges
Selby Baqwa
Legal Topics
Stay of Execution, Eviction Order, Condonation, Leave to Appeal, Urgency, Access to Court
Civil Procedure Land and Property Stay of Execution Eviction Order Condonation Leave to Appeal Urgency Access to Court

Case Brief

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Parties

Paseka Pascal Ndevu

Applicant

The Borwa Community Action Group, consisting of all occupiers

Applicant

Westonaria South Property Holding (Pty) Ltd t/a Westonaria South

Respondent

Westonaria Borwa Mega Project (Pty) Ltd

Respondent

Crimson King Properties 351 (Pty) Ltd t/a Crimson King Developments

Respondent

Procedural Posture

Urgent Application / Application for Stay of Eviction Order Pending Condonation and Leave to Appeal

Legal Issues

  1. 1 Whether the applicants are entitled to a stay of execution of the eviction order pending the outcome of their condonation and leave to appeal application.
  2. 2 Whether urgency exists justifying deviation from the normal court rules.
  3. 3 Whether the applicants have an alternative remedy to the relief sought.

Ratio Decidendi

The court found that the applicants demonstrated sufficient urgency, as the eviction was imminent and they had acted as soon as legal representation was secured. The right at stake was access to the screening process for leave to appeal, which includes the right to apply for condonation. The court held that Rule 45A and the common law provide the discretion to suspend the execution of an order in the interests of justice. The applicants did not have an alternative remedy, as the eviction would render their appeal moot. The respondents' challenge to locus standi was dismissed as it was not properly raised in the papers. The balance of convenience favoured the applicants, who faced...

Court Disposition

Application granted. Condonation for non-compliance with the rules is granted and the eviction order is suspended pending finalisation of the condonation and leave to appeal application.

Orders

  • Condonation is granted for non-compliance with the Uniform Rules of Court and the application is heard as one of urgency in terms of Rule 6(12)(a).
  • The operation and execution of the eviction order made on 15 December 2021 is suspended pending finalisation of the applicants' application for condonation and leave to appeal.