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[2017] ZAGPJHC 44
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Khalil Ahmed Properties CC v Unlawful Occupiers of Erf 1453 Johannesburg and Another (81006/2015) [2017] ZAGPJHC 44 (23 February 2017)
REPUBLIC
OF South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG,
JOHANNESBURG
CASE
NO: 81006/2015
Reportable:
NO
Of
interest to other judges: NO
Revised.
23/2/2017
In
the matter between:
KHALIL
AHMED PROPERTIES
CC Applicant
And
THE
UNLAWFUL OCCUPIERS OF
ERF
1453
JOHANNESBURG First
Respondents
THE CITY OF
JOHANNESBURG Second
Respondent
Heard:
16 February 2017
Delivered:
23 February 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
This
is an urgent application in terms of which the applicant seeks to
have the first respondents (the respondents) evicted from
the
property situated at 271 Bree Street Johannesburg. This order which
is sought under Part “A” of the notice of motion
is
sought pending the determination of Part “B”. The
application is brought in terms of rule 6 (12) of the Uniform
Rule of
the Court (the Rules).
[2]
In
Part “B” of the notice of motion the applicant will seek
an order essentially compelling the second respondent to
determine
whether any of the respondents are of vulnerable demographic
disposition which would entitle them to temporary accommodation
by
the second respondent.
[3]
This
matter has a protracted history of litigation between the parties. I
do not intend dwelling into the details about that history
save to
say the following: During January 2014 the applicant instituted the
eviction proceedings against the respondents on the
urgent basis.
Those proceedings were opposed by the respondents. The application
came before Mphahlele J during July 2014. The
outcome was that the
second respondent was directed to file a report regarding the
alternate housing for the respondents.
[4]
Another
order was made by Tsoka J on 28 May 2015 the essence of which was
again to order the second respondent to furnish the court
with the
report regarding the alternate housing for the respondents. The order
further required the second respondent to indicate
which of the
respondents were eligible for temporary emergency accommodation
assistance and what temporary emergency accommodation
assistance
would be provided for those who qualified.
[5]
On
15 October 2015, Meyer J made the order similar to that of Tsoka J
setting out in details what the second respondent was to do
and also
what was required of the respondents.
[6]
On
3 December 2015, Wepener J made the order evicting the all the
respondents from the property in question. The order reads:
“
1.
The First Respondent and/or all persons in occupation of the premises
known as ERF 1453, Johannesburg Township, Registration
Division IR,
Province of Gauteng and situated at 271 Bree street, Johannesburg are
to vacate the property within thirty (30) days
of granting of this
Order, failing which the Sheriff is duly authorized to evict same.”
[7]
Aggrieved
by the outcome of the above order the respondents filed an
application for leave to appeal, assisted by SERI. It would
appear
from the applicant’s founding affidavit that it subsequent to
the application for leave to appeal by the first respondents,
filed
an application in terms of s 18(3) of the Superior Courts Act (the
Act).
[1]
Section 18 of the Act
provides:
“
18.
(1) Subject to subsections (2) and (3), and unless the court
under exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2) Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of
a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for
leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition, proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.”
The
reason for urgency
[8]
The
reasons for the urgency as appears for the applicant’s founding
affidavit can be summarised as follows:
a. The length of
time it has taken for the applicant to use or enjoy its property.
b. The unusual
step it has taken to identify and undertake to subsidise the
alternate accommodation for the respondents pending
the determination
by the second respondent as to whether the respondents qualify for
temporary emergency accommodation assistance.
c. The applicant
cannot afford to wait any longer whilst it continues to pay for the
rates and taxes.
d. The applicant
is suffering damages on a daily basis because it does not receive any
rental income from the building.
[9]
As
indicated above the applicant’s application is brought in terms
of rule 6 (12) of the Rules. The relevant provisions of
rule 6 (12)
of the Rules read:
“
(a)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as to it seems meet.
(b) In every
affidavit or petition filed in support of any application under
paragraph (a) of this sub-rule, the applicant shall
set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not
be afforded
substantial redress at hearing in due course.”
[10]
In
dealing with the provisions of rule 6 (12) of the Rules the
court in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers),
[2]
had the following to say:
“
Mere
lip service to the requirements of Rule 6 (12) (b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, . . .”
[11]
The
same sentiments, similar to the above, are expressed in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and
Others
,
[3]
where the court said:
‘‘
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.”
[12]
In
the present matter the applicant makes reference to the various
orders that had been issued by the court. The most important
order in
relation to the applicant’s effort to assert its right in
relation to the property is that which is quoted above.
[13]
It
is eminently clear that the respondents were ordered to vacate the
property within thirty (30) days of the granting of the order
3
December 2015. The order further authorized the Sheriff to evict the
respondents in case they did not comply.
[14]
The
respondents did not comply with the court order but as indicated
above instituted leave to appeal proceedings against the order.
Except for stating that the leave to appeal “was considerably
out of time,” the applicant does not say what happened
to that
application.
[15]
It
is trite that leave to appeal would suspend the enforcement of the
eviction order unless the court ordered otherwise in terms
of s 18
(3) of the Act. This, in the present matter, means that the
eviction order was suspended upon the filing of the leave
to appeal.
This assumption is made on the basis that there is no evidence
indicating that the leave to appeal lodged by the respondents
was
dismissed due to the failure to comply with the timeframe for lodging
same as suggested in the applicant’s founding affidavit.
[16]
The
deponent to the founding affidavit indicates at paragraph 37 of his
affidavit that the applicant made an application in terms
of s 18 (3)
of the Act. There is however, no evidence as to what happened to that
application. In other words there is no evidence
as to whether the
application was successful or not. If the application was successful
it would mean that the court would have
ruled otherwise in relation
the suspension of the order arising from the leave to appeal. This
court is left in darkness in as
far as this issue is concerned and
thus the only reasonable inference to draw is that the application in
terms s18 (3) of the Act
was unsuccessful, in which case the eviction
order remain suspended pending the leave to appeal or the appeal.
[17]
The
applicant seems to suggest that the respondents’ leave to
appeal is limited to the issue of the provision of temporary
accommodation only. If this interpretation is correct, it would then
mean that the part of the order relating to the eviction is
not
affected by the application for leave to appeal and thus in law that
part of the order could be enforceable. If this argument
was to be
accepted then the question would be why not enforce that part of the
order to obtain the relief that is now been sought
on the urgent
basis in the present matter.
[18]
In
my view the proper reading of the respondents’ application for
leave to appeal is far from limiting that application to
the issue of
emergency temporary accommodation only. In this respect the
respondents’ notice of motion states inter alia:
“(a) for
leave to appeal against the order of His Lordship Justice Wepener on
3 December 2015, wherein he granted an eviction
order” It is
also stated that “the Court erred in granting the eviction
order” The same is repeated in paragraph
9 of the supplementary
grounds of leave to appeal.
[19]
In
my view, the relief which the applicant is seeking in this urgent
application is the same as that which it obtained on 3 December
2015.
The operation of that relief was suspended by the application for
leave to appeal by the respondents which is still pending
before this
court. There is no evidence that the court has ordered otherwise in
relation to the operation or execution of that
order consequent the
application for leave to appeal by the respondents.
[20]
In
light of the above I am of the view that the applicant’s
application stands to fail for lack of urgency. I see no reason
why
costs should not in the circumstances follow the result.
Order
[21]
In
the circumstances the applicant’s application is struck off the
roll for lack of urgency with costs.
_______________________
E M Molahlehi
Judge of the High
Court; Johannesburg
Appearances:
For
the Applicant: Vermaak and Partners Inc
Tel
011 447 3690
Fax
086 644 4255
For
the Respondent: Khumalo T Attorneys
Tel
011 333-1958
Fax
011 333 2097
[1]
Act number
10
of 2013.
[2]
1977
(4) SA 135
(W) at 137F.
[3]
(11/33767)
[2011] ZAGPJHC 196 (23 September 2011).