Pitjie and Another v Van Der Merwe and Others (25095/09) [2010] ZAGPPHC 626 (10 June 2010)

Pitjie and Another v Van Der Merwe and Others (25095/09) [2010] ZAGPPHC 626 (10 June 2010)

The court found that the rule 49(11) application was granted in the absence of the second applicant, which constituted a procedural irregularity. The order of Webster J was interlocutory in nature and could be varied. The court held that the circumstances justified the suspension of the execution order pending the determination of the rescission application, to prevent injustice and irreparable prejudice to the applicants. The status quo prior to the eviction should be restored, and the respondents were ordered to return possession of the property to the applicants. Costs were ordered to be costs in the rescission application.

Citation
[2010] ZAGPPHC 626
Parties
Applicant: S.M. Pitje; Applicant: N. Pitje; Respondent: G.T. van der Merwe; Respondent: A.P.J. Els; Respondent: Sheriff Pretoria-East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 June 2010
Case Number
25095/09
Procedural Posture
Urgent Application / Application for Variation of Interlocutory Order; Urgent Court
Outcome
Application granted; order of Webster J varied to suspend execution order and restore possession to applicants pending rescission application.
Judges
T M Makgoka
Legal Topics
Variation of Interlocutory Order, Eviction, Rescission Application, Rule 49 11, Urgent Interdict
Civil Procedure Land and Property Variation of Interlocutory Order Eviction Rescission Application Rule 49 11 Urgent Interdict

Case Brief

Summary, issues, holding and outcome

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Parties

S.M. Pitje

Applicant

N. Pitje

Applicant

G.T. van der Merwe

Respondent

A.P.J. Els

Respondent

Sheriff Pretoria-East

Respondent

Procedural Posture

Urgent Application / Application for Variation of Interlocutory Order; Urgent Court

Legal Issues

  1. 1 Whether the order of Webster J dated 4 December 2009 should be varied to suspend the execution order granted by Potterill J on 2 December 2009 pending the rescission application.
  2. 2 Whether the rule 49(11) application was granted in the absence of the second applicant and if this warrants variation.
  3. 3 Whether the rescission application automatically suspends the operation of the eviction order.

Ratio Decidendi

The court found that the rule 49(11) application was granted in the absence of the second applicant, which constituted a procedural irregularity. The order of Webster J was interlocutory in nature and could be varied. The court held that the circumstances justified the suspension of the execution order pending the determination of the rescission application, to prevent injustice and irreparable prejudice to the applicants. The status quo prior to the eviction should be restored, and the respondents were ordered to return possession of the property to the applicants. Costs were ordered to be costs in the rescission application.

Court Disposition

Application granted; order of Webster J varied to suspend execution order and restore possession to applicants pending rescission application.

Orders

  • The order made by Webster J on 4 December 2009 is varied to suspend the execution order granted by Potterill J on 2 December 2009, pending determination of the rescission application launched by the applicants on 3 December 2009.
  • The first, second and third respondents are ordered to forthwith restore the immovable property situated at 22 Verbenia Street, Lynwood Ridge, to the first and second applicants.