Spinks v Botha and Others (16669/2007) [2008] ZAWCHC 183 (24 April 2008)

Spinks v Botha and Others (16669/2007) [2008] ZAWCHC 183 (24 April 2008)

The applicant was in peaceful and undisturbed possession of the premises from 13 to 19 November 2007, having changed the locks and conducted her own business. The respondents' forcible entry and dispossession on 19 November 2007 did not constitute lawful counter-spoliation, as their recovery was not immediate and the applicant's possession had become stabilized. The respondents' conduct amounted to a new breach of the peace. The applicant established a real apprehension of future harassment and intimidation, justifying a final interdict. The respondents are ejected from the premises and restrained from further harassment. Costs are awarded against the first and second respondents on the...

Citation
[2008] ZAWCHC 183
Parties
Applicant: Yvonne Dorothy Spinks; Respondent: Elmarie Susan Botha; Respondent: Albe van der Westhuizen; Respondent: Essence by Elmarie CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 April 2008
Case Number
16669/2007
Procedural Posture
Spoliation Application / Extended Return Day of Rule Nisi; Final Interdict Sought
Outcome
The rule nisi is made final. The respondents are ejected from the premises and interdicted from harassing or intimidating the applicant and her employees. Costs are awarded against the first and second respondents jointly and severally.
Judges
Louw
Legal Topics
Spoliation, Counter Spoliation, Interdict, Peaceful and Undisturbed Possession, Harassment, Costs Order
Civil Procedure Land and Property Spoliation Counter Spoliation Interdict Peaceful and Undisturbed Possession Harassment Costs Order

Case Brief

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Parties

Yvonne Dorothy Spinks

Applicant

Elmarie Susan Botha

Respondent

Albe van der Westhuizen

Respondent

Essence by Elmarie CC

Respondent

Procedural Posture

Spoliation Application / Extended Return Day of Rule Nisi; Final Interdict Sought

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the premises at the time of dispossession.
  2. 2 Whether the respondents' conduct constituted lawful counter-spoliation.
  3. 3 Whether the applicant is entitled to a final interdict restraining harassment, threats, and intimidation by the respondents.

Ratio Decidendi

The applicant was in peaceful and undisturbed possession of the premises from 13 to 19 November 2007, having changed the locks and conducted her own business. The respondents' forcible entry and dispossession on 19 November 2007 did not constitute lawful counter-spoliation, as their recovery was not immediate and the applicant's possession had become stabilized. The respondents' conduct amounted to a new breach of the peace. The applicant established a real apprehension of future harassment and intimidation, justifying a final interdict. The respondents are ejected from the premises and restrained from further harassment. Costs are awarded against the first and second respondents on the...

Court Disposition

The rule nisi is made final. The respondents are ejected from the premises and interdicted from harassing or intimidating the applicant and her employees. Costs are awarded against the first and second respondents jointly and severally.

Orders

  • The rule nisi issued on 4 December 2007 is made final.
  • The respondents are ejected from the premises of the applicant's business at Vanilla Body & Beauty Therapy, Unit 3, Gerfa Centre, 6th Avenue, Melkbosstrand, Cape Town.