Tsotetsi NO v Radebe and Another (A3084/16) [2018] ZAGPJHC 536 (4 September 2018)

Tsotetsi NO v Radebe and Another (A3084/16) [2018] ZAGPJHC 536 (4 September 2018)

The court held that an order of absolution from the instance does not constitute a final determination on the merits and therefore cannot sustain a plea of res judicata. The previous eviction application was disposed of by absolution, which did not decide the merits of the dispute between the parties. Consequently, the appellant was entitled to institute a fresh application for eviction. Furthermore, the issue of lis pendens was not properly pleaded by the respondent and was incorrectly raised by the magistrate. The proceedings in the earlier application were concluded and no longer pending, rendering lis pendens inapplicable. The appeal was upheld and the point in limine dismissed.

Citation
[2018] ZAGPJHC 536
Parties
Appellant: Tiro Tsotetsi N.O.; Respondent: Doreen Busisiwe Radebe; Respondent: Ekurhuleni Metro Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 September 2018
Case Number
A3084/16
Procedural Posture
Civil Appeal / Appeal From Magistrates' Court Order on Point in Limine
Outcome
Appeal upheld; magistrate's order set aside and point in limine dismissed with costs.
Judges
P.A. Meyer, G. Kairinos
Legal Topics
Res Judicata, Lis Pendens, Absolution From Instance, Eviction Application
Civil Procedure Res Judicata Lis Pendens Absolution From Instance Eviction Application

Case Brief

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Parties

Tiro Tsotetsi N.O.

Appellant

Doreen Busisiwe Radebe

Respondent

Ekurhuleni Metro Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates' Court Order on Point in Limine

Legal Issues

  1. 1 Whether an order of absolution from the instance constitutes a final judgment on the merits for purposes of res judicata.
  2. 2 Whether the defence of lis pendens was properly raised and applicable in the circumstances.
  3. 3 Whether the appellant was entitled to institute a fresh eviction application after absolution from the instance.

Ratio Decidendi

The court held that an order of absolution from the instance does not constitute a final determination on the merits and therefore cannot sustain a plea of res judicata. The previous eviction application was disposed of by absolution, which did not decide the merits of the dispute between the parties. Consequently, the appellant was entitled to institute a fresh application for eviction. Furthermore, the issue of lis pendens was not properly pleaded by the respondent and was incorrectly raised by the magistrate. The proceedings in the earlier application were concluded and no longer pending, rendering lis pendens inapplicable. The appeal was upheld and the point in limine dismissed.

Court Disposition

Appeal upheld; magistrate's order set aside and point in limine dismissed with costs.

Orders

  • The appeal succeeds with costs.
  • The order of the learned magistrate, Mr M Masango, issued on 22 July 2016 under case no. 1513/2016 is set aside and replaced with the following order: 'The point in limine is dismissed with costs.'