Striving Mind Trading 960 CC v Mabelane and Others (20297/17) [2018] ZAGPPHC 521 (4 July 2018)

Striving Mind Trading 960 CC v Mabelane and Others (20297/17) [2018] ZAGPPHC 521 (4 July 2018)

The applicant established a clear proprietary right to Erf 347, which was unlawfully interfered with by the first and fourth respondents, who used the property as a playground for the creche and denied access. The PIE Act does not apply because the property is vacant land, not used as a dwelling, and the respondents are not in occupation as contemplated by the Act. The requirements for a final interdict are satisfied: the applicant has a clear right, injury is reasonably apprehended, and no alternative remedy is available. The interests of the children do not require joinder of the MEC or appointment of a curator, as the constitutional issue is not strictly necessary to decide. The...

Citation
[2018] ZAGPPHC 521
Parties
Applicant: Striving Mind Trading 960 CC; Respondent: Josnia Mabelane; Respondent: Akaal's Property Investments CC; Respondent: City of Tshwane Metropolitan Municipality; Respondent: The de facto manager of the creche being run from Erf 348, Asiatic Bazaar, PTA
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 July 2018
Case Number
20297/17
Procedural Posture
Urgent Application / Final Judgment on Application for Interdict
Outcome
Application granted. Final interdict issued in favour of the applicant.
Judges
Ellis
Legal Topics
Final Interdict, Proprietary Rights, Unlawful Occupation, Children's Act Partial Care, Prevention of Illegal Eviction Act
Land and Property Civil Procedure Final Interdict Proprietary Rights Unlawful Occupation Children's Act Partial Care Prevention of Illegal Eviction Act

Case Brief

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Parties

Striving Mind Trading 960 CC

Applicant

Josnia Mabelane

Respondent

Akaal's Property Investments CC

Respondent

City of Tshwane Metropolitan Municipality

Respondent

The de facto manager of the creche being run from Erf 348, Asiatic Bazaar, PTA

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application for Interdict

Legal Issues

  1. 1 Whether the applicant is entitled to unfettered and unrestricted access to Erf 347, Asiatic Bazaar, Pretoria.
  2. 2 Whether the conduct of the first and fourth respondents constitutes unlawful occupation or interference with proprietary rights.
  3. 3 Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) applies to the facts.

Ratio Decidendi

The applicant established a clear proprietary right to Erf 347, which was unlawfully interfered with by the first and fourth respondents, who used the property as a playground for the creche and denied access. The PIE Act does not apply because the property is vacant land, not used as a dwelling, and the respondents are not in occupation as contemplated by the Act. The requirements for a final interdict are satisfied: the applicant has a clear right, injury is reasonably apprehended, and no alternative remedy is available. The interests of the children do not require joinder of the MEC or appointment of a curator, as the constitutional issue is not strictly necessary to decide. The...

Court Disposition

Application granted. Final interdict issued in favour of the applicant.

Orders

  • It is declared that applicant is entitled to unfettered and unrestricted access to Erf 347, Asiatic Bazaar, Pretoria, Gauteng.
  • First and fourth respondents are interdicted and restrained from interfering with the proprietary rights of applicant in respect of the property.