Pitje and Another v Van Der Merwe and Others (25095/2009) [2010] ZAGPPHC 297 (15 January 2010)

Pitje and Another v Van Der Merwe and Others (25095/2009) [2010] ZAGPPHC 297 (15 January 2010)

The court found that the variation application was urgent, given the immediate effect of the eviction order under rule 49(11) and the applicants' loss of possession. However, the merits could not be determined without transcripts of the relevant proceedings, which constitute the best evidence of what transpired. The court held that neither the variation nor the rescission application should be re-enrolled until certified transcripts are delivered and parties have had an opportunity to respond by affidavit. The costs were reserved for later determination.

Citation
[2010] ZAGPPHC 297
Parties
Applicant: SM Pitje; Applicant: N Pitje; Respondent: GT Van Der Merwe; Respondent: AJP Els; Respondent: Sheriff Pretoria East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 January 2010
Case Number
25095/2009
Procedural Posture
Urgent Application / Application to Vary Interlocutory Order; Determination of Urgency
Outcome
Application declared urgent and postponed sine die pending production of transcripts; costs reserved.
Judges
NB Tuchten
Legal Topics
Urgent Interdict, Variation of Court Order, Rule 49 11 Application, Eviction Proceedings
Civil Procedure Urgent Interdict Variation of Court Order Rule 49 11 Application Eviction Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

SM Pitje

Applicant

N Pitje

Applicant

GT Van Der Merwe

Respondent

AJP Els

Respondent

Sheriff Pretoria East

Respondent

Procedural Posture

Urgent Application / Application to Vary Interlocutory Order; Determination of Urgency

Legal Issues

  1. 1 Whether the variation application should be heard as urgent under rule 6(12).
  2. 2 Whether the applicants are entitled to have the interlocutory order varied pending production of transcripts.
  3. 3 Whether the absence of transcripts precludes determination of the merits.

Ratio Decidendi

The court found that the variation application was urgent, given the immediate effect of the eviction order under rule 49(11) and the applicants' loss of possession. However, the merits could not be determined without transcripts of the relevant proceedings, which constitute the best evidence of what transpired. The court held that neither the variation nor the rescission application should be re-enrolled until certified transcripts are delivered and parties have had an opportunity to respond by affidavit. The costs were reserved for later determination.

Court Disposition

Application declared urgent and postponed sine die pending production of transcripts; costs reserved.

Orders

  • The variation application is declared urgent for the purposes of rule 6(12), enrolled and postponed sine die.
  • Applicants must deliver certified transcripts of the proceedings before Potterill J (2 December 2009), Webster J (4 December 2009), Sapire AJ (24 December 2009), and Makgoka J (1 January 2010).