X-Pharm (Pty) Ltd v Emoyamed Hospital (Pty) Ltd and Another (6458/2022) [2023] ZAFSHC 197 (25 May 2023)

X-Pharm (Pty) Ltd v Emoyamed Hospital (Pty) Ltd and Another (6458/2022) [2023] ZAFSHC 197 (25 May 2023)

The court found that the applicant was in de facto possession of the pharmacy premises, as evidenced by rental invoices and correspondence from the first respondent acknowledging occupation. The applicant exercised possession through its registered pharmacist, Mr Meyer, who was in its employ from 19 December 2022. The respondents' denial of possession was contradicted by their own communications and conduct. The court held that the applicant was unlawfully deprived of possession when the locks were changed on 24 December 2022, and that the respondents, given their nexus as owner and sub-lessor, were co-spoliators. The application for condonation was granted as the delay was not inordinate...

Citation
[2023] ZAFSHC 197
Parties
Applicant: X-Pharm (Pty) Ltd; Respondent: Emoyamed Hospital (Pty) Ltd; Respondent: Emoya Prop Med (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 May 2023
Case Number
6458/2022
Procedural Posture
Urgent Application / Final Determination of Mandament Van Spolie Application After Interim Relief and Multiple Postponements.
Outcome
Application granted. The respondents are ordered to restore possession of the premises to the applicant and pay costs as specified.
Judges
NG Gusha
Legal Topics
Mandament Van Spolie, Unlawful Deprivation of Possession, Oral Lease Agreement, Condonation of Late Filing, Hearsay Evidence, Costs Orders
Civil Procedure Land and Property Mandament Van Spolie Unlawful Deprivation of Possession Oral Lease Agreement Condonation of Late Filing Hearsay Evidence Costs Orders

Case Brief

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Parties

X-Pharm (Pty) Ltd

Applicant

Emoyamed Hospital (Pty) Ltd

Respondent

Emoya Prop Med (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Determination of Mandament Van Spolie Application After Interim Relief and Multiple Postponements.

Legal Issues

  1. 1 Whether the applicant had peaceful and undisturbed possession of the premises.
  2. 2 Whether the applicant was unlawfully deprived of possession by the respondents.
  3. 3 Whether condonation for late filing of affidavits should be granted.

Ratio Decidendi

The court found that the applicant was in de facto possession of the pharmacy premises, as evidenced by rental invoices and correspondence from the first respondent acknowledging occupation. The applicant exercised possession through its registered pharmacist, Mr Meyer, who was in its employ from 19 December 2022. The respondents' denial of possession was contradicted by their own communications and conduct. The court held that the applicant was unlawfully deprived of possession when the locks were changed on 24 December 2022, and that the respondents, given their nexus as owner and sub-lessor, were co-spoliators. The application for condonation was granted as the delay was not inordinate...

Court Disposition

Application granted. The respondents are ordered to restore possession of the premises to the applicant and pay costs as specified.

Orders

  • The first and second respondents are ordered to restore forthwith to the applicant full access to and undisturbed possession of the premises situated at Suite 14 Emoya Hospital, 7 Frans Klenyhans Avenue, Groenvlei, Bloemfontein.
  • The first and second respondents are ordered to pay the costs of this application, the costs occasioned by the application for condonation, and the costs occasioned by the application for leave to appeal the 2 February 2023 rule nisi, on a party and party scale, the one paying the other to be absolved.