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[2012] ZAECPEHC 88
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Lowery v Jordan (2249/2012) [2012] ZAECPEHC 88 (5 December 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE – PORT ELIZABETH
Case No: 2249/2012
In the matter between:
EMILY DAISY LOWERY
..........................................................
Applicant
and
JANET JORDAN
..................................................................
Respondent
JUDGMENT
REVELAS J
[1] In the course of an ongoing
dispute which arose from the simultaneous occupation of a certain
dwelling by both parties in this
matter, Mrs Jordan (the respondent)
obtained an eviction order against Mrs Lowery (the applicant) in this
Court on 12 May 2011.
In terms of the order, Mrs Lowery was ordered
to vacate the premises within thirty days of the order.
[2] On 29 August 2011, leave to
appeal against the eviction order was granted. The appeal is to be
argued on 10 December 2012 which
is next week, Monday.
[3] Section 49(11) provides that
where an appeal has been noted, the operation and execution of the
order appealed against, shall
be suspended pending the decision of
such appeal, unless directed otherwise by the court.
[4] Mrs Lowery, as applicant,
subsequently brought an application that Mrs Jordan, as the
respondent, be held in contempt of court
for not complying with the
suspension of the eviction order by operation of the pending appeal,
in her favour. This relief (the
contempt application) was abandoned,
but Mrs Lowery still sought an interdict against Mrs Jordan to remove
any obstruction which
may prevent her from having access to the
dwelling in question (23 Tembani Road, Greenbushes, Port Elizabeth)
and allow her undisturbed
possession thereof. This application came
before Alkema J on 18 October 2012 when the matter was postponed and
Mrs Jordan granted
leave to bring an application for the upliftment
of the suspension of the eviction order, pending the outcome of the
appeal. Mrs
Jordan brought the application in person because she
could not afford to pay her attorneys of record.
[5] In my view, the balance of
convenience favours Mrs Jordan. She is the owner of the house and she
obtained an eviction order
against Mrs Lowery who now seeks access to
the property by operation of the suspension. Moreover, the long
history of conflict
and acrimony between the two women in this matter
has overwhelming demonstrated that the parties cannot live in one
house.
[6] In my view, Mrs Lowery has not
made out a case for granting her the interdict prayed for, which is
in effect an eviction order
against Mrs Jordan.
[7] Considerations of fairness and
justice compel me to order the upliftment of the suspension of the
eviction order, pending the
outcome of the appeal. In my view, no
order as to costs should be made since Mrs Jordan appeared in person.
[8] I make the following order:
The application to grant the
applicant (Mrs Lowery) access to and undisturbed possession of the
property situated 23 Tembani Road,
Greenbushes, Port Elizabeth is
hereby dismissed.
The suspension of the eviction
order dated 12 May 2011 is hereby uplifted, pending the outcome of
the appeal against the aforesaid
eviction order, and Mrs Jordan is
to have undisturbed possession of and undisturbed access to the
aforesaid property, pending
the appeal.
____________________
E
REVELAS
Judge
of the High Court
For
the Applicant: Mr Naidoo
Instructed
by: Justice Centre
Port
Elizabeth
For
the Respondent: Mrs Jordan
Instructed
by: In Person (Mrs Jordan)
Date
Heard: 4 December 2012
Date
Delivered: 5 December 2012
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