IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
{2)
OF
INTEREST
TO
OTHE
(3) REVISED: YES
In
the matter
between
:
THOMAS NTSOANE
THONTS PROPERTIES
And
HLEKANI DUDU MUKANSI
RHULANI YVONNE MUKANSI
HLEKANI MUKANSI N.O.
RHULANI MUKANSI N.O.
CITY
OF
JOHANNESBURG
METROPOLITAN
MUNICIPALITY
JUDGMENT
ALLY
AJ
CASE NO: 11161/2022
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH
RESPONDENT
2
INTRODUCTION
[1]
This is an opposed application for the eviction of the First and Second
Respondents and any person holding or occupying through them, from the property
described as 1638 Honiton Drive Dainfern Golf Estate, Extension 11, Randburg,
hereinafter referred to as ‘the property’.
[2]
The Applicants purchased ‘the property’ at an auction which was arranged
by the Sheriff of this Court in accordance with a Court Order
1
dated 11 May 2020.
[3]
Subsequent to the said purchase, ‘the property’ was registered in the name
of the Second Applicant
2
.
[4]
The First Applicant alleges that he then tried negotiating with the First and
Second Respondent to vacate ‘the property’ without success. He alleges that he
even went further and offered them alternative accommodation to move into whilst
they searched for a place of their own.
[5]
He alleges that they are being prejudiced by the unlawful occupation of ‘the
property’ by the First and Second Respondents. He alleges that they are in unlawful
1
Caselines: 001-47 – 001-48; Annexure “TN 1.1”
2
Caselines: 001-65 – 001-71; Annexure “TN3”
3
occupation for the reason that the Second Applicant is the owner ‘the property’ as
evidenced by the title deed
3
and that accordingly, the First to the Fourth
Respondents should be evicted.
[6]
The Applicants allege that a condition of the sale was that the Applicants are
to take measures at their own cost to evict any person occupying ‘the property’ and
vacant occupation has not been guaranteed.
[7]
The prejudice mentioned above lies in the fact, as alleged by the Applicants,
that the Applicants have been issued with invoices in respect of the levies to be
paid although they have not occupied ‘the property’.
[8]
The First to Fourth Respondents on the other hand allege that they are in the
process of applying for a rescission of judgment in the case wherein the Court
granted the Orders that resulted in the Applicants obtaining ownership of ‘the
property’.
[9]
The Applicants’ response to the above allegation is that the Court should not
take these allegations into consideration, firstly, because the First to Fourth
Respondents have not apprised this Court of the rescission application date nor
3
supra
4
have they shown or requested from the Court to file supplementary papers to deal
with the rescission application and thereby placing such issue before the Court.
[10]
It should be noted that the parties have been litigating against each other for
some time and whilst the First and Respondent have obtained spoliation orders
against the Applicants such Orders have merely confirmed the status quo until such
time this eviction application has been finalised.
[11]
The important question remains, however, as to whether taking into account
the allegations in relation to impropriety regarding the sale of ‘the property’ this
Court is enjoined to consider this as a defence to the eviction application?
[12]
In my view, the principles of the interests of justice which inculcate the
principle of ‘just and equitable’, would justify this Court granting interim relief to the
Applicant whilst allowing for the First to Fourth Respondent a prescribed time to file
the necessary papers dealing with rescission failing which the interim order would
be made final. The interests of justice, in this context refer to the ventilation of
justiciable disputes before a Court of law as well as applying the test of just and
equitable relief in the circumstances of eviction from ones primary residence.
5
[13]
A Court, however, in circumstances such as the present must weigh up and
balance the interests of both parties. In my view, the Order which I propose
hereunder, takes into account this principle.
[14]
This Court takes this position, the granting of an interim order rather than a
final order, for the reason further that ‘the property’ is the primary residence of the
First and Second Respondent.
[15]
Any prejudice suffered by the Applicants in granting an interim order is
mitigated by placing the First to Fourth Respondents on terms with regard to the
rescission application.
[16]
The First to Fourth Respondents went to great lengths to explain that the
relief sought by the Applicants has been sought on an urgent basis and on that
ground alone should be dismissed. It is important for this Court, whilst granting
interim relief, to deal with this point.
[17]
In response to this point, the Applicants have submitted that the application
has actually been brought in terms of Section 4 of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act.
4
4
19 of 1998
6
[18]
In my view, the point raised by the First to Fourth Respondents can be
dismissed outright for the reason that the First to Fourth Respondents were given
sufficient time to deal with application and the raising of this issue, in my view, is a
red herring and falls to be dismissed.
[19]
Relief, whether interim or not in circumstances of an eviction application
cannot be granted without the Court finding that the First to Fourth Respondents
are in unlawful occupation, albeit in the circumstances of this particular case, on a
prima facie basis.
[20]
In respect of costs, the Applicants have been granted interim relief and have
therefore, in my view, been successful. As a result, I see no reason why the norm
should not be applied, that is that the successful party is entitled to their costs.
[21]
Accordingly and for the reasons set out above, the following Order will issue;
a).
The First to the Fourth Respondents are hereby evicted from the property
described as 1638 Honiton Drive, Dainfern Golf Estate, Extension 11, Randburg;
b).
The Order in paragraph (a) is suspended for a period of 30 [thirty] days from
the date of this order pending the filing of a rescission application by the First to
Fourth Respondents in Case No 25860/2019;
7
7
c).
Should the First
to
Fourth Respondents fail
to
comply with the order in
paragraph (b),
the
order in in paragraph (a) shall become final and the First
to
Fourth Respondents shall vacate the property mentioned in paragraph (a) within 30
days
of
the expiry
of
the period mentioned in paragraph (b).
d). The First to Fourth Respondents shall the pay the costs
of
this application jointly
and severally, the one paying
the
other to be absolved.
ACTING JUDGE
OF
THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted
therefore
unsigned
Delivered: This judgement
was
prepared and authored
by
the Judge whose name
is reflected and is handed down electronically by circulation
to
the Parties/their legal
representatives by email and by uploading it
to
the electronic file
of
this matter
on
Caselines.
The
date for hand-down is deemed
to
be
30
January
2023.
Date
of
virtual hearing: 27 October 2022
Date
of
judgment:
23
January 2023
8
Appearances:
Attorneys for the Applicant:
K S DINAKA ATTORNEYS
info@ksdinakaattorneys.co.za
Counsel for the Applicant:
Adv. A.K. Maluleka
Attorneys for the Respondent:
G M TIJANE ATTORNEYS INC
graham@gmt-inc.co.za/
sicelo@gmt-inc.co.za
Counsel for the Respondent:
Adv. M.R. Maphuta