Tapuch v Aswagen and Others (19980/2016) [2016] ZAGPPHC 572 (11 May 2016)

Tapuch v Aswagen and Others (19980/2016) [2016] ZAGPPHC 572 (11 May 2016)

The court held that a discharged interim order cannot be revived, as there is nothing to revive once it has been discharged. Section 18(2) of the Superior Courts Act does not provide for the revival of discharged orders, but only for the suspension of interlocutory orders not having the effect of a final judgment. The applicant misconstrued the legal principle and failed to make out a case for the alternative relief sought, as the founding affidavit did not support the relief claimed. The application was considered on its own merits, and the requirements for an interim or final interdict were not established. The respondents were successful and entitled to their costs.

Citation
[2016] ZAGPPHC 572
Parties
Applicant: Johan Arthur Tapuch; Respondent: Henning Jonathan van Aswagen; Respondent: Henning Jonathan van Aswegen N.O.; Respondent: Vanessa van Aswegen N.O.; Respondent: Cornelius Johannes Petrus Gerhardus Malan N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 May 2016
Case Number
19980/2016
Procedural Posture
Urgent Application / Application for Revival of Interim Order and Alternative Interdict, Heard on Urgent Basis
Outcome
Application dismissed with costs, including reserved costs.
Judges
E.M. Kubushi
Legal Topics
Interim Interdict, Revival of Discharged Order, Urgent Application, Spoliation, Jurisdiction, Superior Courts Act
Civil Procedure Land and Property Interim Interdict Revival of Discharged Order Urgent Application Spoliation Jurisdiction Superior Courts Act

Case Brief

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Parties

Johan Arthur Tapuch

Applicant

Henning Jonathan van Aswagen

Respondent

Henning Jonathan van Aswegen N.O.

Respondent

Vanessa van Aswegen N.O.

Respondent

Cornelius Johannes Petrus Gerhardus Malan N.O.

Respondent

Procedural Posture

Urgent Application / Application for Revival of Interim Order and Alternative Interdict, Heard on Urgent Basis

Legal Issues

  1. 1 Whether a discharged interim order (rule nisi) can be revived pending an appeal.
  2. 2 Whether the applicant made out a case for alternative interdictory relief restoring occupation of the farm.
  3. 3 Whether the North Gauteng High Court has jurisdiction over the farm in Christiana.

Ratio Decidendi

The court held that a discharged interim order cannot be revived, as there is nothing to revive once it has been discharged. Section 18(2) of the Superior Courts Act does not provide for the revival of discharged orders, but only for the suspension of interlocutory orders not having the effect of a final judgment. The applicant misconstrued the legal principle and failed to make out a case for the alternative relief sought, as the founding affidavit did not support the relief claimed. The application was considered on its own merits, and the requirements for an interim or final interdict were not established. The respondents were successful and entitled to their costs.

Court Disposition

Application dismissed with costs, including reserved costs.

Orders

  • The application is dismissed with costs, including the costs reserved on 26 April 2016 when the matter was struck from the roll for lack of urgency.