Ngwenya and Others v Ngomane Property Trust and Others (2022/11313) [2022] ZAGPJHC 1049 (25 March 2022)

Ngwenya and Others v Ngomane Property Trust and Others (2022/11313) [2022] ZAGPJHC 1049 (25 March 2022)

The court found that the eviction of the applicants was unlawful because the notice of appeal lodged by the first respondent suspended the operation of the eviction order. This suspension applied to all applicants, including the first applicant, as the first respondent appealed against the entire judgment, including the part in its favour. Since the appeal was neither finalised nor withdrawn, the respondents were not entitled to execute the eviction order. The court granted an interim interdict restoring possession to the applicants, ordering the return of keys, and postponing the matter for further hearing.

Citation
[2022] ZAGPJHC 1049
Parties
Applicant: Samuel Ngwenya; Applicant: Phumulani Mkhwanazi; Applicant: Lindani Buthelezi; Applicant: Emmanuel Mkhize; Applicant: Khethukuthula Mhlungu; Applicant: Sinethemba Myeza; Applicant: Welile Myeza; Applicant: Khulekani Zikalala; Applicant: Zanele Myeza; Applicant: Nkosikhona Nkabinde; Applicant: Nonhle Bhengu; Applicant: Tebego Khumalo; Applicant: Nontobeko Ngcobo; Applicant: Nkosingiphile Masuku; Applicant: Zinhle Mlambo; Applicant: Sithembile Vilakazi; Applicant: Nokuthula Lunga; Applicant: Themba Mtshali; Applicant: Jefry Myeza; Applicant: Sbusiso Zulu; Applicant: Lungile Khumalo; Respondent: Ngomane Property Trust; Respondent: Sheriff Johannesburg East; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 March 2022
Case Number
2022/11313
Procedural Posture
Urgent Application / Interim Interdict Pending Return Day; Urgent Court
Outcome
Interim interdict granted; eviction declared unlawful pending return day; restoration of possession and return of keys ordered; costs reserved.
Judges
Moorcroft
Legal Topics
Eviction Proceedings, Interim Interdict, Suspension of Order on Appeal, Urgent Application, Restoration of Possession
Civil Procedure Land and Property Eviction Proceedings Interim Interdict Suspension of Order on Appeal Urgent Application Restoration of Possession

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Samuel Ngwenya

Applicant

Phumulani Mkhwanazi

Applicant

Lindani Buthelezi

Applicant

Emmanuel Mkhize

Applicant

Khethukuthula Mhlungu

Applicant

Sinethemba Myeza

Applicant

Welile Myeza

Applicant

Khulekani Zikalala

Applicant

Zanele Myeza

Applicant

Nkosikhona Nkabinde

Applicant

Nonhle Bhengu

Applicant

Tebego Khumalo

Applicant

Nontobeko Ngcobo

Applicant

Nkosingiphile Masuku

Applicant

Zinhle Mlambo

Applicant

Sithembile Vilakazi

Applicant

Nokuthula Lunga

Applicant

Themba Mtshali

Applicant

Jefry Myeza

Applicant

Sbusiso Zulu

Applicant

Lungile Khumalo

Applicant

Ngomane Property Trust

Respondent

Sheriff Johannesburg East

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Return Day; Urgent Court

Legal Issues

  1. 1 Whether the eviction of the applicants was lawful in light of the pending appeal.
  2. 2 Whether the applicants are entitled to restoration of possession and return of keys.
  3. 3 Whether the respondents were entitled to execute the eviction order while the appeal was pending.

Ratio Decidendi

The court found that the eviction of the applicants was unlawful because the notice of appeal lodged by the first respondent suspended the operation of the eviction order. This suspension applied to all applicants, including the first applicant, as the first respondent appealed against the entire judgment, including the part in its favour. Since the appeal was neither finalised nor withdrawn, the respondents were not entitled to execute the eviction order. The court granted an interim interdict restoring possession to the applicants, ordering the return of keys, and postponing the matter for further hearing.

Court Disposition

Interim interdict granted; eviction declared unlawful pending return day; restoration of possession and return of keys ordered; costs reserved.

Orders

  • The first respondent is interdicted from evicting the applicants from ERF 462 Denver, 8 and 10 Morice Street, Malvern, Gauteng province, pending the return day.
  • The first respondent is ordered to return all keys to the applicants insofar as they are in the possession of the first respondent.