Peniel Development (Pty) Ltd and Another v Pietersen and Others (34819/2013) [2013] ZAGPJHC 298; 2014 (2) SA 503 (GSJ); [2014] 2 All SA 219 (GJ) (27 November 2013)

Peniel Development (Pty) Ltd and Another v Pietersen and Others (34819/2013) [2013] ZAGPJHC 298; 2014 (2) SA 503 (GSJ); [2014] 2 All SA 219 (GJ) (27 November 2013)

The court held that Rule 49(11) must be given its plain meaning: the filing of a rescission application suspends the operation and execution of the judgment unless the court orders otherwise. However, the respondents demonstrated that the applicants have no legal right to occupy the premises, are causing irreparable harm by remaining rent-free, and failed to dispute the factual allegations in the counter application. The interests of justice favour granting the respondents leave to execute the eviction order pending the outcome of the rescission application. The judgment of 11 July 2013 is not appealable, and the application for leave to appeal is set aside. The application to stay...

Citation
[2013] ZAGPJHC 298
Parties
Applicant: Peniel Development (Pty) Ltd; Applicant: Duba Given Pitsi; Respondent: Isak Smolly Pietersen and Five Others
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 November 2013
Case Number
34819/2013
Procedural Posture
Urgent Application / Application and Counter Application for Stay and Execution Orders
Outcome
The counter application is granted; the application to stay execution is refused.
Judges
Vally
Legal Topics
Stay of Execution, Rescission of Judgment, Eviction, Default Judgment, Rule 49 11, Counter Application
Civil Procedure Land and Property Stay of Execution Rescission of Judgment Eviction Default Judgment Rule 49 11 Counter Application

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Parties

Peniel Development (Pty) Ltd

Applicant

Duba Given Pitsi

Applicant

Isak Smolly Pietersen and Five Others

Respondent

Procedural Posture

Urgent Application / Application and Counter Application for Stay and Execution Orders

Legal Issues

  1. 1 Does the lodging of a rescission application automatically suspend the operation and execution of a judgment under Rule 49(11)?
  2. 2 Are the respondents entitled to execute the eviction order pending the outcome of the rescission application?
  3. 3 Is the judgment of 11 July 2013 appealable?

Ratio Decidendi

The court held that Rule 49(11) must be given its plain meaning: the filing of a rescission application suspends the operation and execution of the judgment unless the court orders otherwise. However, the respondents demonstrated that the applicants have no legal right to occupy the premises, are causing irreparable harm by remaining rent-free, and failed to dispute the factual allegations in the counter application. The interests of justice favour granting the respondents leave to execute the eviction order pending the outcome of the rescission application. The judgment of 11 July 2013 is not appealable, and the application for leave to appeal is set aside. The application to stay...

Court Disposition

The counter application is granted; the application to stay execution is refused.

Orders

  • It is declared that the judgment of this Court granted on 11 July 2013 is not appealable.
  • The application for leave to appeal that judgment filed on 17 September 2013 is set aside.