Unlawful Occupiers […] A[…] Street and Others v Rohlandt Holding CC and Others (7583/2019) [2025] ZAGPJHC 512 (27 May 2025)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 7583/2019
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
27 MAY 2025
In
the matter between:
UNLAWFUL
OCCUPIERS: […] A[…] STREET
1ST APPLICANT
UNLAWFUL
OCCUPIERS: 1[…] P[…] STREET
2ND APPLICANT
UNLAWFUL
OCCUPIERS: 2[…] M[…] DRIVE
3RD APPLICANT
UNLAWFUL
OCCUPIERS: 1[…] M[…] DRIVE
4TH APLLICANT
UNLAWFUL
OCCUPIERS: 1[…] J[…] STREET
5TH APPLICANT
UNLAWFUL
OCCUPIERS: 1[…] M[…] STREET
6TH APPPLICANT
UNLAWFUL
OCCUPIERS: 1[…] K[…] STREET
7TH APLLICANT
UNLAWFUL
OCCUPIERS: 7[…] P[…] STREET
8TH APPLICANT
UNLAWFUL
OCCUPIERS: 1[…] K[…] STREET
9TH APPLCIANT
UNLAWFUL
OCCUPIERS: […] G[…] STREET
10TH APPLICANT
UNLAWFUL
OCCUPIERS: 4[…] S[…] STREET
11TH APPLICANT
UNLAWFUL
OCCUPIERS: 5[…] E[…] STREET
12TH APPLICANT
UNLAWFUL
OCCUPIERS: S[…] C[…]
13TH APPLICANT
UNLAWFUL
OCCUPIERS: 2[ ] P[…] STREET
14TH APPLICANT
UNLAWFUL
OCCUPIERS: U[…] B[…]
15TH APPLICANT
UNLAWFUL
OCCUPIERS: F[…] C[…]
16TH APPLICANT
And
ROHLANDT
HOLDING CC
1ST RESPONDENT
4[…]
P[…] STREET PROPERTIES CC
2ND RESPONDENT
LANRON
PROPERTIES CC
3RD RESPONDENT
RICHMOND
INVESTMENT CC
4TH RESPONDENT
GERMISTON
CENTRAL REAL ESTATE CC
5TH RESPONDENT
LIMA
JOSE MANUEL MONTEIRO
6TH RESPONDENT
EKURHULENI
METROPOLITAN MUNICIPALITY
7TH RESPONDENT
MEC
FOR DEPARTMENT OF HUMAN SETTLEMENTS 8TH
RESPONDENT
SHERIFF
OF COURT GERMISTON SOUTH
9TH RESPONDENT
WAVERLEY
COURT CC
10TH RESPONDENT
JUDGMENT
Mahomed J
INTRODUCTION
[1]
The applicants in this matter, seek a stay of execution of the order
granted by Victor J, as she was then, for their eviction
from 16
buildings in the Germiston area. Advocate Louw who represented the
property owners, 1st to 6th and 10th respondents, submitted
that the
application has no merit, and must be dismissed. He informed the
court that the unlawful occupiers by way of a mass invasion
in 2017,
over a period of two weeks forcefully occupied his client’s
buildings, forcing out paying tenants. Counsel
argued that the
order is clear, the court having heard submissions from all counsel,
ordered the eviction of the unlawful occupiers.
Advocate
Sithole appeared for the 7th Respondent and contended that, his
client was not ordered to provide alternate accommodation
and that
the occupiers simply refuse to accept the import of the order, the
7th respondent is drawn into further unnecessary litigation
with no
prospect of recovering its costs.
Application
Postponement
[2]
Mr Mhlanga who represented the unlawful
occupiers, applied for a postponement of their application for a
stay, on grounds that the
7th respondent’s counsel on the
morning of the hearing, served him with a set of papers and he had
not had an opportunity
to peruse them, he was of the view that he
would have to respond and to obtain confirmatory affidavits from
clients, therefor it
was contended that the matter cannot proceed.
The application was opposed, Mr Sithole submitted that the document
he handed
over, was simply to assist this court on the litigation
history of the matter and to highlight the issue that is before me.
I read the documents and found nothing controversial which would
cause the matter to be postponed, accordingly I dismissed the
application and directed parties to proceed with the application
before me.
Application R45 A
[3]
This court is asked to stay the execution
of an order for eviction in terms of the Rule 45 A of the Uniform
Rules of Court.
Mr Mhlanga informed the court that there is no
written judgment only an order was granted, as the usual order marked
“X,”
delivered ex tempore. Counsel conceded that
the order does not include an order for the provision of alternate
accommodation.
However, he contended that during his
submissions to the court in 2018, the court had engaged fully and
extensively on the provision
of alternate accommodation for his
clients. He informed me that his clients are in the process of
obtaining a transcript
of the hearing before Victor J, however it is
a long record of a few thousand pages and the transcription services
are working
on it.
[4]
He contended that Victor J, suspended the
execution of her order for three months to allow the 7th respondent
time to provide his
clients with alternate accommodation. He
conceded that the 7th respondent was not ordered to provide alternate
accommodation
but argued that if the court had regard to the
transcript, which he is loaded on a compact disc and which is being
prepared for
the court, it will become clear that the court was
of the mind that the 7th respondent is to provide his client’s
with alternate
accommodation.
[5]
Advocate Sithole relies on the order:
It
is hereby ordered that:-
“ 1. The
eviction of the occupants of the following immovable properties by
the sheriff … is hereby ordered subject to the
provisions of
paragraph 3 below:-
… ..
3. The respondents are
to vacate the properties on 22 February 2019, failing which the
Sheriff of the above Honourable Court or
such competent authority
shall be authorized to immediately execute the provisions of
paragraph 1 above.” He insists
that his client was not ordered to provide the occupiers
accommodation. He referred to the judgment of Wilson
J,
on facts like those in casu and where that court refused to interfere
with the court’s judgment, it understood that
it was not a
court of appeal. I shall return to the judgment later.
[6]
Mr Mhlanga argued that if the order were be
executed his clients would be homeless and threatened that they
“would waste no
time in approaching the urgent court for
relief.” Counsel referred the court to the provisions of
R45 A of Uniform
Rules of Court, which provides:
“the court
may suspend the execution of any order for such period as it may deem
fit.”
[7]
The general principles for the granting of
a stay in execution were summarised in GOIS T/A SHAKESPEARE’S
PUB v Van Zyl 2011 (1) SA 148 LC at 155H-156B, where the court
stated:
(a)
A court will grant a stay of execution
where real and substantial justice requires it or where injustice
would otherwise result.
(b)
The court will be guided by factors which
are usually applicable to interim interdicts, except
where the applicant is
not asserting a right, but attempting to avert
injustice.
(c)
The court must be satisfied that:
(i)
The applicant has a well-grounded
apprehension that the execution is taking place at the instance of
the respondents; and
(ii)
Irreparable harm will result if the
execution is not stayed and the applicant ultimately succeeds in
establishing a clear right.
(d)
Irreparable will result if there is a
possibility that the underlying causa may ultimately be removed, i.e.
where the underlying
cause is the subject of an ongoing dispute
between the parties.
(e)
The court is not concerned with the merits
of the underlying dispute- the sole inquiry is simply whether the
causa is in dispute.”
[8]
Mr Mhlanga contended that he was clear in
his mind that the court in 2019 held the view that the
municipality was to provide
his clients with alternate accommodation,
it simply was not included in the order. However, it
remains unclear why
at the time the order was granted, nothing was
done to clarify the meaning and import of that order, if it is
“incomplete”
as is contended. Counsel expects the
court to rely on his say so. It is also concerning that counsel
for the parties
hold such divergent views on a matter they all appear
to have been involved in over the years. Advocate Louw
persisted with
his view that the applicants are simply stalling, and
that his clients have no other recourse, except to pursue damages
claims
against the city.
[9]
Mr Sithole argued that there is no merit in
the application and referred this court to a judgment by Wilson J
when a similar dispute
was before that court. I noted that in
that matter Wilson J had the benefit of a reasoned judgment by
Molahlehi J who refused
to order the municipality to provide
alternate accommodation, as the learned judge was concerned that such
an order “would
encourage the unlawful occupation of other
properties in similar circumstances and imperil the rule of law.”
Wilson
J held that he could not revisit an issue which was already
ventilated and for which a court had granted an order.
Res judicata
[10]
The learned Victor J ordered, under two
case numbers, 43010/17 and 40089/17, the eviction of the applicants,
suspended for three
months, although no judgment with reasons is
before this court, the applicants insist that the learned judge
“intended”
to order that the eviction is subject to the
7th
respondent providing them with alternate accommodation. The
evidence is that the 7th
respondent’s management were before the court in 2019, the
court considered all submissions made and granted the order which
was
suspended for three months. I noted Mr Mhlanga’s
explanation for the three month suspension; however, it
may well be
that the suspension was in place to allow the applicants’ time
to vacate the property.
[11]
It is unclear as to why the
applicants/owners waited this long to execute the order, but it
cannot be disputed that they have been
deprived of their property for
an unreasonably long time, they carry the burden of the state and
have reserved their rights in
that regard, the 7th
respondent must take heed. Advocate Louw argued that the
applicants argued the same case as before Victor J, their
issues were
fully ventilated and determined by Victor J, they argue the matter is
res judicata.
[12]
Mr Mhlanga contended that his clients have
been living there for a long while, their children attended schools
in the area and this
court must consider the collateral damage that
they will suffer if they are evicted, many hold jobs in the area, and
some residents
are disabled. The occupiers service the areas around
the Germiston and Johannesburg.
[13]
Mr Mhlanga contended that his clients have
been living there for a long while, their children attended schools
in the area and this
court must consider the collateral damage that
they will suffer if they are evicted, many hold jobs in the area, and
some residents
are disabled. The occupiers service the areas around
the Germiston and Johannesburg.
[14]
I considered the judgment by Wilson, J and
am of the view that it is distinguishable, in that the Wilson J, had
a basis and reasons
before him, which must stand, the court correctly
stated that it was not an appeal court and therefor the order stands
until set
aside. It is noteworthy that a consent order, albeit
unlawful, was pursued, however it is not for this court to speculate
as to
the facts relied on for the order to have been made.
[15]
Given the nature of the dispute, and the
applicants’ argument that the record will “reveal”
the applicant’s
rights as ordered, the underlying causa is in
dispute and a dismissal of the application, will likely result in an
injustice which
will be widespread given the number of applicants in
casu and the various categories of vulnerable persons who occupy the
property.
[16]
I am of the view that the execution must be
stayed for 4 months from date of this order. The applicants have
failed to pursue their
remedies regarding the order that is in
dispute, it is their choice on their next course, but this court
cannot permit a revisit
of the hearing of the matter. The order
was granted in 2018, and the applicants appear be in no hurry to
“prove”
their case regarding their alleged right to
alternate accommodation. See Stoffberg NO and Another v Capital
Harvest (Pty)
Ltd 2021 JDR 1664 WCC on a courts power to regulate its
processes. The preparation of a “long record” has
been
their excuse for delay in the resolution of the matter, however
it appears to me to be opportunistic.
[17]
At this juncture, I must make mention that
the owners of the buildings have their constitutional rights for
protection of their
property. Advocate Louw contended that his
clients have voiced their intention to claim damages for losses
suffered and the
municipality will be well advised to take this issue
seriously.
[18]
An injustice will ensue, should this court
allow the evictions to proceed having regard to the fact that the
legal representatives
cannot agree that the order granted is
“complete”, I cannot determine the outstanding issue of
the provision of alternate
accommodation, it “allegedly”
has been dealt with by Victor J, but not included the order she
granted. The record
must be made available to the respondents
within 2 months of this judgment.
[19]
The applicant cannot be permitted to hold
this court and the respondents to any further delays, which might
suit their case.
Litigants are entitled to the finalisation of
disputes, and the court roll must be relieved of the burden of
lengthy delays, and
long records that sometimes by design, serve the
interests of certain litigants.
Accordingly, I make the following
order:
1.
The order granted under case numbers 43010/2017
and 40089/2017 on 28 September 2018 is hereby stayed for four (4)
months, from date
of this order.
2.
The record of the proceedings must be delivered
to the respondents within two months of this order.
3.
A copy of this order is to be affixed to
entrances to all buildings occupied by applicants.
4.
The parties are to approach the secretary of this
court by 3 October 2025, for further directions to the finalisation
of this matter.
Mahomed J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date
of hearing: 12 February 2025
Date
of Judgment: 27 May 2025
Appearances:
For Applicants:Mr Mhlanga instructed
by Precious Muleya Attorneys
For 1st to 6th
and 10th Respondents:Advocate Louw instructed by JHS
Attorneys
For 7th Respondent:
Advocate Sithole instructed by Steven Maluleke Attorneys
For
the Applicant:
Adv
Blou SC and Adv C Bester instructed by Fluxmans
Inc
For
the Respondent:
Adv Daniels SC instructed by Eversheds
Sutherland Inc
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