Sports tarven (Pty) Ltd and Another v Executor, Estate Late A.P Santos and Another (1902/2019) [2019] ZALMPPHC 51 (31 October 2019)

Sports tarven (Pty) Ltd and Another v Executor, Estate Late A.P Santos and Another (1902/2019) [2019] ZALMPPHC 51 (31 October 2019)

The court found that the first respondent issued the writ of eviction prematurely, as the appeal had not yet been declared lapsed by the court. The mere lapse by operation of the rules does not exhaust the applicants' rights, as they may still apply for condonation and reinstatement. The writ of eviction was therefore a nullity. The applicants satisfied all four requirements for interim relief: they demonstrated a prima facie right to remain on the premises pending appeal, a well-grounded apprehension of irreparable harm to their business and goodwill, the balance of convenience favoured their continued occupation, and there was no other satisfactory remedy available. The first...

Citation
[2019] ZALMPPHC 51
Parties
Applicant: The Sports Tarven (Pty) Ltd; Applicant: Moagabo Elizabeth Molapo; Respondent: The Executor, Estate Late A.P Santos; Respondent: Sheriff A.T Ralehlaka
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
31 October 2019
Case Number
1902/2019
Procedural Posture
Urgent Application / Confirmation of Rule Nisi and Counterclaim for Declaration of Lapsed Appeal
Outcome
The interim relief is confirmed, the warrant of eviction is set aside as a nullity, the first respondent is interdicted from evicting the applicants pending finalisation of the appeal, the counterclaim is dismissed, and costs are awarded to the applicants.
Judges
MF. Kganyago
Legal Topics
Eviction Proceedings, Interim Relief, Lapsed Appeal, Writ of Execution, Magistrates Court Rules
Civil Procedure Land and Property Eviction Proceedings Interim Relief Lapsed Appeal Writ of Execution Magistrates Court Rules

Case Brief

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Parties

The Sports Tarven (Pty) Ltd

Applicant

Moagabo Elizabeth Molapo

Applicant

The Executor, Estate Late A.P Santos

Respondent

Sheriff A.T Ralehlaka

Respondent

Procedural Posture

Urgent Application / Confirmation of Rule Nisi and Counterclaim for Declaration of Lapsed Appeal

Legal Issues

  1. 1 Whether the warrant of eviction issued by the first respondent was valid.
  2. 2 Whether the applicants have satisfied the requirements for interim relief pending appeal.
  3. 3 Whether the appeal had lapsed and if the first respondent was entitled to execute the eviction order.

Ratio Decidendi

The court found that the first respondent issued the writ of eviction prematurely, as the appeal had not yet been declared lapsed by the court. The mere lapse by operation of the rules does not exhaust the applicants' rights, as they may still apply for condonation and reinstatement. The writ of eviction was therefore a nullity. The applicants satisfied all four requirements for interim relief: they demonstrated a prima facie right to remain on the premises pending appeal, a well-grounded apprehension of irreparable harm to their business and goodwill, the balance of convenience favoured their continued occupation, and there was no other satisfactory remedy available. The first...

Court Disposition

The interim relief is confirmed, the warrant of eviction is set aside as a nullity, the first respondent is interdicted from evicting the applicants pending finalisation of the appeal, the counterclaim is dismissed, and costs are awarded to the applicants.

Orders

  • Pending finalisation of the appeal under case number ACA04/2019, the interim relief granted on 28 March 2019 is confirmed.
  • The warrant of eviction issued by the first respondent on 20 March 2019 is set aside as a nullity.