Venter and Others v Van Rensburg and Others (2121/2017) [2017] ZAGPPHC 906 (11 April 2017)

Venter and Others v Van Rensburg and Others (2121/2017) [2017] ZAGPPHC 906 (11 April 2017)

The court found that the applicants were unlawfully dispossessed of their residence and businesses by the respondents, who padlocked the premises and prevented access. The respondents failed to prove true impossibility of restoring possession, as the residence and property remained in a habitable state and their belongings were still stored there. The court held that mere refurbishment or partial reconstruction does not preclude restoration under the mandament van spolie. The interim interdict granted was temporal and not final in effect, thus not appealable. Exceptional circumstances were established due to ongoing irreparable harm suffered by the applicants, including financial...

Citation
[2017] ZAGPPHC 906
Parties
Applicant: Doreen Venter; Applicant: Jacoba Johanna Dorothea du Plessis; Applicant: Colosseum Arabian Stud (Pty) Ltd; Applicant: Doreen Venter N.O (as trustee of the Doreen Venter Family Trust); Applicant: Colosseum Reale (Pty) Ltd; Respondent: Andries Gerhardus van Rensburg; Respondent: Millenium Body Guards; Respondent: Johan Lemmer
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 April 2017
Case Number
2121/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and S 18 Application for Execution Pending Appeal
Outcome
Leave to appeal refused; application for execution pending appeal granted; judgment and order not suspended pending appeal.
Judges
N V Khumalo
Legal Topics
Mandament Van Spolie, Interim Interdict, Impossibility of Performance, Exceptional Circumstances, Execution Pending Appeal
Civil Procedure Land and Property Mandament Van Spolie Interim Interdict Impossibility of Performance Exceptional Circumstances Execution Pending Appeal

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Parties

Doreen Venter

Applicant

Jacoba Johanna Dorothea du Plessis

Applicant

Colosseum Arabian Stud (Pty) Ltd

Applicant

Doreen Venter N.O (as trustee of the Doreen Venter Family Trust)

Applicant

Colosseum Reale (Pty) Ltd

Applicant

Andries Gerhardus van Rensburg

Respondent

Millenium Body Guards

Respondent

Johan Lemmer

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and S 18 Application for Execution Pending Appeal

Legal Issues

  1. 1 Whether the court erred in granting a spoliation order restoring possession of the property and residence to the applicants.
  2. 2 Whether the interim interdict granted is final in effect and therefore appealable.
  3. 3 Whether impossibility of performance precluded the granting of the mandament van spolie.

Ratio Decidendi

The court found that the applicants were unlawfully dispossessed of their residence and businesses by the respondents, who padlocked the premises and prevented access. The respondents failed to prove true impossibility of restoring possession, as the residence and property remained in a habitable state and their belongings were still stored there. The court held that mere refurbishment or partial reconstruction does not preclude restoration under the mandament van spolie. The interim interdict granted was temporal and not final in effect, thus not appealable. Exceptional circumstances were established due to ongoing irreparable harm suffered by the applicants, including financial...

Court Disposition

Leave to appeal refused; application for execution pending appeal granted; judgment and order not suspended pending appeal.

Orders

  • Leave to appeal the order for both spoliation and temporary interdicts is refused.
  • The application to implement the order delivered on 6 and 9 March 2017 is granted with costs; the judgment and order will not be suspended pending determination of any appeal process.