Taddese and Others v Peer NO and Others (5250/2016) [2016] ZAKZDHC 26 (4 August 2016)

Taddese and Others v Peer NO and Others (5250/2016) [2016] ZAKZDHC 26 (4 August 2016)

The court found, on a balance of probabilities, that the applicants were in occupation of the disputed premises at the relevant time. The trust's own admissions and correspondence confirmed that Mr Taddese and his co-applicants were in possession, and that sub-tenants occupied the premises through him. The respondents' act of locking the gate and denying access constituted unlawful deprivation of possession. The requirements for spoliatory relief were met, and the applicants were entitled to restoration of possession without inquiry into the lawfulness of their occupation.

Citation
[2016] ZAKZDHC 26
Parties
Applicant: Yinebeb Gebisa Taddese; Applicant: Khanisa Mlenzana; Applicant: Mahomed Billy; Respondent: Moosa Mahomed Peer NO; Respondent: Soraya Peer NO; Respondent: Roquayya Bibi Mahomed Timol NO
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
4 August 2016
Case Number
5250/2016
Procedural Posture
Urgent Application / Application for Spoliatory Relief
Outcome
Application granted; possession and access to the disputed premises restored to the applicants.
Judges
Gorven
Legal Topics
Spoliation, Mandament Van Spolie, Unlawful Deprivation of Possession, Lease Dispute
Civil Procedure Land and Property Spoliation Mandament Van Spolie Unlawful Deprivation of Possession Lease Dispute

Case Brief

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Parties

Yinebeb Gebisa Taddese

Applicant

Khanisa Mlenzana

Applicant

Mahomed Billy

Applicant

Moosa Mahomed Peer NO

Respondent

Soraya Peer NO

Respondent

Roquayya Bibi Mahomed Timol NO

Respondent

Procedural Posture

Urgent Application / Application for Spoliatory Relief

Legal Issues

  1. 1 Whether the applicants were in peaceful and undisturbed possession of the disputed premises on 31 May 2016.
  2. 2 Whether the applicants were unlawfully deprived of possession without consent or recourse to law.
  3. 3 Whether the requirements for spoliatory relief are satisfied.

Ratio Decidendi

The court found, on a balance of probabilities, that the applicants were in occupation of the disputed premises at the relevant time. The trust's own admissions and correspondence confirmed that Mr Taddese and his co-applicants were in possession, and that sub-tenants occupied the premises through him. The respondents' act of locking the gate and denying access constituted unlawful deprivation of possession. The requirements for spoliatory relief were met, and the applicants were entitled to restoration of possession without inquiry into the lawfulness of their occupation.

Court Disposition

Application granted; possession and access to the disputed premises restored to the applicants.

Orders

  • The respondents are directed to forthwith restore possession of and access to the premises situate at Shop 126 (back) and 128 (back and first floor) at 126-128 Umgeni Road to the applicants.
  • In the event of the respondents failing to comply with paragraph 1, the Sheriff is authorised to take such steps as may be necessary to do so on their behalf.