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[2011] ZAGPJHC 60
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Ndlovu v Unlawful Occupiers Erf 3200 (1739/2011) [2011] ZAGPJHC 60 (30 March 2011)
IN THE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:
1739/2011
DATE:
2011-03-30
In the matter between
JUSTICE NDLOVU AND CATHERINE
NDLOVU
......................
Applicants
A
nd
UNLAWFUL OCCUPIERS ERF
3200
..................................
Respondents
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS
,
J
:
[1] This is an application for the eviction of unlawful occupiers of
premises at 41 Edith Caville Street in Hillbrow, Johannesburg.
These
premises are a block of flats. It has not been clear to me what
exactly the relief is which the respondents, represented
in court
today, seek in this matter.
[2] The respondents have been given a more than adequate opportunity
to file answering affidavits prior to this hearing. They
have failed
to take advantage of this opportunity. Nothing has been filed on
their behalf. It is clear from then correspondence
between Moodie
and Robertson, acting for the applicants and Engelbrecht-Madlanga
acting for 25 of the 31 unlawful occupiers that
it was accepted that
the answering affidavit in this matter should have been filed on
11March 2011, and that a further indulgence
was agreed to by Moodie
and Robertson. Again, the extended deadline has not been met.
[3] Mr
Pheto
, who appears for 25 of the 31 respondents, today
submitted that the return of service indicated that there had not
been proper
compliance with the order of this court authorising
service of the notice of the intended eviction. In this regard, the
answer
is to be found in the unanimous decision of the Supreme Court
of Appeal in the recent case of
Theart v Minnaar
2010 (3) SA 327
(SCA) especially at paragraphs [13] and [14]. In
these paragraphs, the court makes what, in my respectful opinion, is
an utterly
unanswerable proposition of law. It is this: it is no
good for the respondents represented by counsel in court to complain
that
they did receive not receive perfect notice of the application.
Quite clearly, by virtue of the fact that there is an advocate
in
court instructed by an attorney, they were indeed made aware of these
proceedings. That, at the end of the day, is what court
orders
related to service are all about. They are designed precisely to
ensure that a court can be reasonably comfortable with
the fact that
those who may be affected by the orders have been made aware of the
proceedings and can put before the court facts
and reasons why a
court order adverse to them should not be made.
[4] There is, of course, the interesting question of the six
occupiers who have not instructed attorneys to represent them in
these proceedings. Mr
Pullinger
, who appears for the
applicants, is nevertheless prepared to take his chances in this
regard. That is the right of the applicants.
In other words, these
six may later raise a defence to an order granted in their absence
that they were unaware of these proceedings
and present a
bona
fide
defence.
Prima facie
, they have received adequate
notice. They too have failed to file any affidavit indicating why
they should not be evicted.
[5] Accordingly, it seems to me that the applicants must succeed and
an order is granted in terms of prayers 1, 2, 3, 4, 5 and
6 of part B
of the notice of motion dated 18 January 2011. The date of the
eviction, the date upon which the respondents
are to vacate the
property and which is to be determined by the court is 30 April 2011.
---oOo---
Counsel for the applicants: Advocate
A. W. Pullinger
Counsel for 25 of the respondents: Advocate
A. M.
Pheto
Attorneys for the applicants: Moodie and Robertson
Attorneys for 25 of the respondents: Ngcebetsha-Madlanga
Date of Hearing: 30 March 2011
Date of Judgment: 30 March 2011