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