Top Assist 24 (Pty) Limited T/A Form Work Construction v Cremer and Another (5335/2015) [2015] ZAWCHC 102; [2015] 4 All SA 236 (WCC) (28 July 2015)

Top Assist 24 (Pty) Limited T/A Form Work Construction v Cremer and Another (5335/2015) [2015] ZAWCHC 102; [2015] 4 All SA 236 (WCC) (28 July 2015)

The court found that the applicant was in joint, peaceful, and undisturbed possession of the premises up to and including 19 March 2015. The respondents, dissatisfied with the progress and quality of work, cancelled the contract and took steps to remove the applicant's equipment and workforce from the premises. The court rejected the respondents' argument that the applicant had already been dispossessed by virtue of the keys being taken, finding that possession of the premises was not lost until the events of 19 March 2015. The court held that the applicant did not consent to vacate the premises and that the actions of the respondents and the estate's security amounted to unlawful...

Citation
[2015] ZAWCHC 102
Parties
Applicant: Top Assist 24 (Pty) Limited T/A Form Work Construction; Respondent: George Cremer; Respondent: Renate Cremer
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 July 2015
Case Number
5335/2015
Procedural Posture
Urgent Application / Final Determination of Urgent Spoliation Application
Outcome
Application granted. Spoliation order issued in favour of the applicant.
Judges
N P Boqwana
Legal Topics
Mandament Van Spolie, Builder Lien, Joint Possession, Unlawful Dispossession, Restoration of Possession
Civil Procedure Land and Property Mandament Van Spolie Builder Lien Joint Possession Unlawful Dispossession Restoration of Possession

Case Brief

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Parties

Top Assist 24 (Pty) Limited T/A Form Work Construction

Applicant

George Cremer

Respondent

Renate Cremer

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Spoliation Application

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the premises on 19 March 2015.
  2. 2 Whether the respondents unlawfully deprived the applicant of possession of the premises.
  3. 3 Whether the applicant consented to vacate the premises or was dispossessed without consent.

Ratio Decidendi

The court found that the applicant was in joint, peaceful, and undisturbed possession of the premises up to and including 19 March 2015. The respondents, dissatisfied with the progress and quality of work, cancelled the contract and took steps to remove the applicant's equipment and workforce from the premises. The court rejected the respondents' argument that the applicant had already been dispossessed by virtue of the keys being taken, finding that possession of the premises was not lost until the events of 19 March 2015. The court held that the applicant did not consent to vacate the premises and that the actions of the respondents and the estate's security amounted to unlawful...

Court Disposition

Application granted. Spoliation order issued in favour of the applicant.

Orders

  • The respondents are directed to forthwith restore peaceful and undisturbed possession of the immovable property described as Erf 1496, Somerset West and situated at 5 Aries Street, Croydon Vineyard Estate, Somerset West to the applicant.
  • The respondents must pay the costs of this application, including costs that stood over for later determination, jointly and severally, the one paying the other to be absolved, except for costs occasioned by amendments to the notice of motion.