Zwiegers v Bethlehem and Others (43334/2018) [2020] ZAGPJHC 435 (4 September 2020)

Zwiegers v Bethlehem and Others (43334/2018) [2020] ZAGPJHC 435 (4 September 2020)

Condonation for the late filing of the application for leave to appeal is granted due to the relatively short delay and the impact of COVID-19 regulations, but the explanation for the delay is not reasonable. The sheriff was authorized to sell the property under the Brenner order after the applicant failed to make payment arrangements. The applicant's reliance on lis pendens is misplaced, as the doctrine of res litigiosa permits successive sales subject to the first purchaser's rights. The improvement lien was not asserted at the time of attachment and sale, and thus does not bind the respondents. Earlier judgments cited by the applicant are consistent with the principle that a lien must...

Citation
[2020] ZAGPJHC 435
Parties
Applicant: Willem Barend Johannes Zwiegers; Respondent: Lael Irene Bethlehem; Respondent: Nina Cohen; Respondent: David Harris Lewis; Respondent: Brett Antony Morris; Respondent: Dora Souleika Rebecca Mascha Wynchank
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 September 2020
Case Number
43334/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Eviction Order
Outcome
Application for leave to appeal dismissed with costs. Eviction order varied to allow applicant four weeks to vacate property.
Judges
Lapan
Legal Topics
Eviction, Improvement Lien, Sale in Execution, Condonation, Lis Pendens, Variation of Order
Land and Property Civil Procedure Eviction Improvement Lien Sale in Execution Condonation Lis Pendens Variation of Order

Case Brief

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Parties

Willem Barend Johannes Zwiegers

Applicant

Lael Irene Bethlehem

Respondent

Nina Cohen

Respondent

David Harris Lewis

Respondent

Brett Antony Morris

Respondent

Dora Souleika Rebecca Mascha Wynchank

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Eviction Order

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the sheriff had authority to sell the property to the respondents despite a prior sale agreement with the applicant.
  3. 3 Whether pending litigation regarding the prior sale agreement precludes eviction (lis pendens).

Ratio Decidendi

Condonation for the late filing of the application for leave to appeal is granted due to the relatively short delay and the impact of COVID-19 regulations, but the explanation for the delay is not reasonable. The sheriff was authorized to sell the property under the Brenner order after the applicant failed to make payment arrangements. The applicant's reliance on lis pendens is misplaced, as the doctrine of res litigiosa permits successive sales subject to the first purchaser's rights. The improvement lien was not asserted at the time of attachment and sale, and thus does not bind the respondents. Earlier judgments cited by the applicant are consistent with the principle that a lien must...

Court Disposition

Application for leave to appeal dismissed with costs. Eviction order varied to allow applicant four weeks to vacate property.

Orders

  • Prayer 2 of the order granted on 7 May 2020 is deleted and replaced with: 'The first respondent and all those who occupy the property by, through or under him, are ordered to vacate the property on or before 2 October 2020.'
  • The applicant is directed to pay the costs of this application, including the wasted costs occasioned by the postponement of the hearing on 28 August 2020.