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[2017] ZAGPJHC 175
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White Rock Property Trading (Pty) Limited v Khaka and Another (19602/16) [2017] ZAGPJHC 175 (7 June 2017)

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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
19602/16
Not
reportable
Not
of interest to other judges
Revised.
7/6/2017
In the matter between:
WHITE
ROCK PROPERTY TRADING (PTY)
LIMITED
Applicant
and
KHAKA;
THEMBEKA
BRENDA
First
Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Second
Respondent
JUDGMENT
OPPERMAN J
INTRODUCTION
[1]
This application involves the eviction
based on the provisions of the Prevention of Illegal Eviction from
and Unlawful Occupation
of Land Act 19 of 1998 (‘
the
PIE Act’
), of a former mortgagor,
from her formerly mortgaged property. The property, Erf […]
Riverclub Extension 38 Township, Registration
Division I.R., Province
of Gauteng physically situated at […] Road, Riverclub, Sandton
(‘
the property’
),
is situated in the affluent suburb of River Club, and even in
execution, fetched R 3 800 000.
[2]
This is the second eviction application
instituted by the applicant against the first respondent (‘
the
second eviction application’
).
The first eviction application (under case number 25098/2014)
(‘the
first eviction application’)
resulted
in an eviction order
(‘the first
eviction order’)
, but was set
aside on appeal on 7 December 2016
(‘the
appeal’)
, as the applicant was
not the registered owner at the time that the first eviction
application was instituted, thus the appeal
had succeeded on the
basis that the applicant then lacked
locus
standi
.
[3]
On 24 October 2014 (Pretoria, case number
77832/14) and by agreement between the parties, an order was sought
and obtained granting
the applicant access to the property with
specific directions as to how this was to occur. The alleged
non-compliance with this
order forms the subject matter of a contempt
application, which also falls for determination by this court
(‘the
contempt application’
).
APPLICATION FOR POSTPONEMENT
[4]
The matter was enrolled for hearing during
the week of 22 May 2017. It was allocated for hearing on 23 May 2017.
By agreement between
applicant’s representative, Mr van der
Merwe, and Mr Omar, the first respondent’s representative, this
court permitted
the matter to stand down until 14h00 on 25 May 2017.
[5]
The first respondent’s representative
was required to file heads of argument on 28 March 2017. No heads of
argument were filed
by her representative and no application for
condonation was brought.
[6]
At 14h00 on 25 May 2017, Mr Hayward and not
Mr Omar appeared on first respondent’s behalf, seeking a
postponement and tendering
the costs of the postponement. The
affidavit deposed to by the first respondent on 25 May 2017 and
handed up by Mr Hayward recorded
that:
‘
On
the 23 May 2017, my attorney of record travelled to Virginia in the
Free State to attend to a matter at the Virginia High Court.
While in
Virginia, Mr Omar became ill. Mr Omar returned to Gauteng late
yesterday evening and was very ill. Mr Omar indicated that
he will
visit a doctor today.
……
..Ms
Yasmin Omar, of the same firm as my attorney, is also unable to argue
this matter today as she is seized in trial preparation
in another
matter that is set down for trial tomorrow at the Springs Magistrates
Court.’
[7]
Mr Hayward also sought leave to file a
supplementary affidavit consisting of some 60 paragraphs.
[8]
After hearing argument and after Mr Hayward
had obtained instructions in this regard, the court permitted the
matter to stand until
11h30 on 26 May 2017 for argument on whether
the supplementary affidavit should be admitted and the merits of the
second eviction
application. The applicant consented to the contempt
application being postponed and accepted the tender of costs in
respect thereof.
[9]
The matter proceeded on 26 May 2017. Having
heard argument, this court admitted paragraph 50 of the supplementary
affidavit, and
disallowed the balance of such affidavit. It then
heard argument in respect of the second eviction application. The
reasons for
only allowing the content of paragraph 50 of the
supplementary affidavit are provided herein as well as the judgment
in respect
of the second eviction application.
APPLICATION TO SUPPLEMENT
[10]
The
test for the admission of further affidavits is set out in Erasmus
[1]
as follows:
‘
It
is essentially a question of fairness to both sides as to whether or
not further sets of affidavits should be permitted.
There
should in each case be a proper and satisfactory explanation, which
negatives
mala
fides
or culpable remissness, as to why the facts or information had not
been put before the court at an earlier stage,
and the court must be satisfied that no prejudice is caused by the
filing of the additional affidavits which cannot be remedied
by an
appropriate order as to costs. The tactic of holding back on evidence
in the hope that the other side will first commit itself
to an
untruthful version which can be resoundingly demolished in further
affidavits has attracted the opprobrium of the court in
Nick’s
Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC
.
The
factors that the court will consider are the following:
(a)
The reason
why the evidence was not produced timeously.
(b)
The degree of
materiality of the evidence.
(c)
The
possibility that it may have been shaped to ‘relieve the pinch
of the shoe’.
(d)
The balance
of prejudice to the applicant if the application is refused and the
prejudice to the respondent if it is granted.
(e)
The stage
which the particular litigation has reached. Where judgment has been
reserved after all the evidence has been heard and,
before judgment
is delivered, an applicant applies for leave to place further
evidence before the court, it may well be that he
will have a greater
burden because of factors such as the increased possibility of
prejudice to the respondent, the need for finality,
and the
undesirability of a reconsideration of the whole case, and perhaps
also the convenience of the court.
(f)
The
‘healing balm’ of an appropriate order as to costs.
(g)
The
general need for finality in judicial proceedings.
(h)
The
appropriateness, or otherwise, in all the circumstances, of visiting
the fault of the attorney upon the head of his client. If
the
court is satisfied on these points it will generally incline towards
allowing the affidavits to be filed. ‘(emphasis
provided)
[11]
I would add to these considerations listed
by the learned authors, who touch on the convenience to the court in
item (e) of their
list, the following consideration: the time
afforded to the Court to consider the content of the new affidavit.
It is generally
required of a Court to read the papers in the Court
file before hearing the matter. The heads of argument play an
important role
in directing the mind of the Court to the issues to be
decided. The Court should ideally have had some time after reading
the file
to reflect on and come to certain preliminary views,
formulate questions for clarification by counsel in the hearing and
generally
approach the hearing with as well prepared a judicial
mindset as the nature of the matter and the practices of the division
and
the individual Judge will allow. New affidavits delivered after
the heads of argument have been filed may contain material that
not
only the opponent has had inadequate time to consider but also the
Court itself which needs time to reflect on the new matter.
That time
may not be available to the Court. It may not be in the interests of
justice to permit the matter to be further delayed.
Late affidavits
disrupt the Court roll, make other litigants awaiting their turn to
be heard, have to wait longer and the quality
of the judicial
concentration is inevitably diminished proportional to the time
available. The more just approach to late affidavits
may well thus
be, for this as well as the other reasons listed by the learned
authors, to refuse to receive the late affidavit
and decide the
matter on the papers timeously filed.  This, of course, assumes
that the late filing is
bona fide
.
Where it is calculated to disrupt, delay and to obtain a strategic
advantage, such as prolonging unlawful occupation of premises,
the
Court’s refusal to receive late affidavits is even more likely
to serve the interests of justice.
[12]
The reason for first respondent wanting to
supplement her papers at the eleventh hour was explained, by the
first respondent, under
oath. She stated that she had taken the first
eviction application on appeal and that she had succeeded. She had
accepted that
she had won the case and that the second application
could not proceed against her. She said:
‘
I
stopped communicating with my attorneys and have been travelling in
and out of the country doing primarily humanitarian work.
I
had no idea
that the Applicant was persisting in further litigation against me.
Attempts by my attorneys to contact me were futile as when
they
phoned me I was away and did not receive their messages.’
(emphasis provided)
[13]
The section 4(2), of the Pie Act, notice
was served on the first respondent personally on 24 April 2017. The
sheriff’s return
of service, which constitutes
prima
facie
proof, states this quite clearly.
The notice advised the first respondent expressly that the second
eviction application would
be proceeding on 22 May 2017. In the face
of this, I do not accept the first respondent’s explanation
that ‘
she had no idea’
that the second application was proceeding. Her explanation can most
certainly not be labelled either ‘
proper
’
or ‘
satisfactory
’
in the absence of an explanation relating to the content of the
sheriff’s return.
[14]
The second eviction application was served
personally on first respondent on 14 June 2016. The notice of
opposition was supposed
to have been filed on 22 June 2016. It was
not. It was filed on 1 July 2016. The answering affidavit was
supposed to have been
filed on 22 July 2016. It was not. The matter
was enrolled on the unopposed motion court for hearing on 13
September 2017. On 9
September 2017, six weeks later, the first
respondent filed an answering affidavit with a condonation
application. The matter was
removed from the roll as it was now
opposed. The answering affidavit was not deposed to by the first
respondent but by Ms Yasmin
Omar (‘
Ms
Omar’
) as the first respondent
was apparently overseas at the time. The miracles of modern
communication methods between countries appear
not to have occurred
to the first respondent who might, instead of getting her attorney to
file an affidavit on her behalf, have
given telephonic or emailed
instructions, emailed an affidavit duly deposed to overseas and then
couriered the original affidavit
via
one of the many international courier companies to her attorney. Her
attorney’s affidavit was, according to first respondent,

inadequate. In respect of such affidavit, the first respondent now
says the following:
‘
However
that affidavit is insufficient and does not contain all of the
grounds I rely upon to oppose the application. At that stage
the
opposition raised was the fact that there was a pending appeal of the
previous eviction order and that the matter was therefore
lis
pendens
.
If I lost that appeal, it would have meant that another order for
eviction was still alive.
In
view of the appeal having succeeded and been finalised, there is a
need to supplement this case.’
(own
emphasis)
[15]
What is immediately apparent from the
emboldened portion, is that the first respondent was acutely aware of
the need to supplement
her papers in the event of her being
successful in the appeal. She knew of her success on 9 December 2016.
Yet she did nothing
until 25 May 2017, the day of the hearing of the
matter. I cannot accept that she stopped communicating with her
attorney as she
had accepted that the litigation would not proceed
against her. On her very own say-so, she knew her papers were
inadequate if
she won the appeal. She did nothing. This omission can
only be described as culpable remissness, and I so find.
[16]
The contempt application and the second
eviction application are separate and distinct from one another. The
contempt application
relates to the non-compliance of an order
granted in Pretoria and the second eviction application relates to a
fresh application
launched during June of 2016. The order forming the
subject matter of the contempt application was never subject to an
appeal.
There was no pending hearing in respect of such application
thus no ‘
lis
’
‘
pending
’
anywhere else in respect thereof. There was no reason whatsoever not
to have filed an answering affidavit in respect of
the contempt
application. The first respondent was once again, in respect of the
contempt application, culpably remiss in not filing
an answer to such
a weighty matter.
[17]
The
issues in the first and second eviction applications were not the
same. In the first eviction application Tsoka J, speaking
on behalf
of a full court
[2]
commented:
‘
[10]
In the present matter, White Rock had not taken delivery of the
property at the launching of the application. As at that time,
it had
no
locus
standi
to have instituted the application against Khaka as it was not yet
the owner……
[12]……….The
fact that at the time of the filing of the replying affidavit, the
property was registered in its
name is irrelevant. The point is, at
the time of the launching of the application, which is the relevant
period, it has no
locus standi
…’
[18]
At the time of the launching of the second
eviction application the property had been registered into the name
of the first respondent.
So much was, and remains, common cause. The
defence of
lis pendens
as at September 2016 (as raised in the answering affidavit) was thus
not good as the property had by then, and prior to, the launching
of
the second application, been registered into the name of the
applicant. This court could thus also on this basis conclude that
the
first respondent was culpably remiss in not filing an answering
affidavit dealing with the merits of the second eviction application.
[19]
Having regard to all of the aforegoing, I
conclude that the first respondent has failed to provide a proper and
satisfactory explanation
sufficient to negative
mala
fide
s or culpable remissness, as to why
the facts contained in the supplementary affidavit had not been put
before the court at an earlier
stage.
[20]
Despite the aforegoing finding, I will
nonetheless consider the other relevant factors in order to decide
whether the supplementary
affidavit should not be received.
[21]
The first respondent seeks to introduce new
defences never raised before. They include that:
21.1.
the first respondent had paid to Firstrand
Bank (‘
FNB
’)
the entire arrears and administration costs prior to the sale in
execution; and
21.2.
the first respondent and FNB had agreed
that the sale in execution would be cancelled (‘
the
compromise agreement’
).
[22]
The aforegoing, so the argument ran, would
bring the applicant’s
locus standi
into question, as the acceptance of such evidence would undermine
applicant’s claim to ownership of the property, a pre-requisite

in terms of section 4(1) of the Pie Act.
[23]
On
the first respondent’s papers it appears that she deliberately
withheld this evidence. She made an election to withhold
the
evidence. The introduction of evidence under such circumstances has
been frowned upon by this court.
[3]
This is a factor this court has regard to in determining
whether the explanation is proper and satisfactory and does not
stand
the first respondent in good stead.
[24]
Be that as it may, the compromise agreement
was allegedly concluded between the first respondent and FNB. There
is no allegation
that the applicant knew of the conclusion of such
compromise agreement. Moreover, the compromise agreement must have
been concluded
before the sale in execution, which occurred on 25
September 2013. The compromise agreement afforded the first
respondent a personal
right only. The alleged cause of action (‘debt’
– to use the terminology of the Prescription Act) which arose

upon FNB allegedly breaching the compromise agreement by selling the
property in execution on 25 September 2013, prescribed during

September 2016.
[25]
The
first respondent now seeks to introduce this prescribed ‘defence’
against the applicant, who was not a party to
the compromise
agreement, and who is a
bona
fide
purchaser.
[4]
Such evidence seems doomed to fail. It can most certainly not be
concluded that such evidence is material and I do not so conclude.
In
my view such evidence has very little prospects of success.
[26]
In
respect of the payment defence, not a shred of documentary proof has
been annexed to the papers to substantiate it. If this contention

were
bona
fide
and true, I would have expected some documentary proof but more
importantly, I would have expected the first respondent to raise
it
at the first opportunity. She did not do so. What inference does one
draw from her failure to have annexed documentary proof
of the
alleged payments to FNB to her supplementary affidavit? Under
circumstances where the first respondent is answering to contempt

allegations and where her liberty is at stake, one can safely assume
it is because she cannot and that such allegations are exactly
only
that, empty assertions.
[5]
[27]
This court permitted the receipt of the
content of paragraph 50, the salient parts of which read as follows:
‘……
The
house in question is my home. I have no other suitable alternative
accommodation. I was married to Edward Khaka. After my husband

divorced me, he left me without any substantial assets and the house
with a bond on it. I am the head of the household occupied
by my
children and myself. My children are dependent on me to provide them
with food and shelter and to care for them.’
[28]
In my view, the first respondent is, as of
right, entitled to place these facts before the court. This is so as
the section 4(2)
notice, invites the first respondent to do so. I
allowed the receipt of such evidence contained in paragraph 50
despite the first
respondent’s denial of the fact that she had
knowledge that the matter was proceeding on 22 May 2017. More about
the reliability
of the facts contained in paragraph 50, later.
[29]
I turn then to deal with the second
eviction application without regard to the content of the
supplementary affidavit save for paragraph
50.
LOCUS
STAND
I
[30]
On 25 September 2013, the applicant
purchased the property on a sale in execution. On 12 August 2014, the
applicant took registration
and transfer of the property. On 10 June
2016, this, the second eviction application was launched. Thus, at
the time that the current
eviction application was instituted, the
applicant was the registered owner of the property vesting it with
the requisite
locus standi
to institute the current application.
WHETHER THE RESPONDENT IS AN
UNLAWFUL OCCUPIER
[31]
Unlawful occupier is defined in the PIE Act
as follows:
‘
'unlawful
occupier'
means a person who occupies land without the express or tacit consent
of the owner or person in charge, or without any other right
in law
to occupy such land, excluding a person who is an occupier in terms
of the
Extension of Security of Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act 31 of 1996).
[32]
The first respondent is the former
registered owner of the property. The applicant did not give the
first respondent consent to
reside on the property.
[33]
The first respondent’s occupation
became unlawful, upon the property being registered in the name of
the applicant as her
right to occupy, terminated on that date, being
12 August 2014.
[34]
I thus find that the applicant has shown
that the first respondent is an unlawful occupier.
WHETHER THE REQUIREMENTS FOR S 4,
OF THE PIE ACT HAVE BEEN MET
[35]
The first respondent has been in unlawful
occupation since 12 August 2014.
[36]
On 24 April 2017, the applicant served a
section 4(2) notice on the first respondent personally and on the
second respondent.
[37]
It would appear that the additional
considerations, normally applicable to evictions of this kind, as
codified in Section 4(7) of
the PIE Act, do not find application as
the first respondent is a former mortgagor. It provides:
‘
Section
4(7) “If an unlawful occupier has occupied the land in question
for more than six months at the time when the proceedings
are
initiated, a court may grant an order for eviction if it is of the
opinion that it is just and equitable to do so, after considering
all
the relevant circumstances, including, except where the land is sold
in a sale of execution pursuant to a mortgage, whether
land has been
made available or can reasonably be made available by a municipality
or other organ of state or another land owner
for the relocation of
the unlawful occupier, and including the rights and needs of the
elderly, children, disabled persons and
households headed by women.
[38]
In
Ndlovu
v Ngcobo; Bekker and another v Jika,
2003
(1) SA 113
(SCA) at par 9 the following was held
“…
'If
an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering all the
relevant
circumstances, including,
except
where the land is sold in a sale of execution pursuant to a mortgage
,
whether land has been made available or can reasonably be made
available by a municipality or other organ of State or another
land
owner for the relocation of the unlawful occupier, and including the
rights and needs of the elderly, children, disabled persons
and
households headed by women.'
…
The
words italicised mean that, if land is sold in a sale of execution,
the court, in determining the relevant circumstances, does
not take
into account the factors   listed after the exception. It
has nothing to do with the question of holding over
by a
mortgagor…...”
[39]
In
Ives
v Rajah
,
2012 (2)
SA 167
(WCC) paras [15] and [16] Rogers AJ (as he then was),
commented as follows:
‘
[15]
In paragraph 10 of the majority judgment in Ndlovu v Ngcobo; Bekker
and
Another v Jika
2003 (1) SA 113
(SCA) there is an obiter
assumption that the effect of s 4(7) is that where land has been sold
in execution pursuant to a mortgage
both the question of alternative
land and the rights of the elderly and so forth are rendered
irrelevant. It was observed that
this appeared, when read in the
light of s 4(6), to give rise to an inexplicable anomaly, because it
put persons who have been
in unlawful occupation for longer than six
months in a worse position than persons who have been in unlawful
occupation for less
than six months.
[16]
In my respectful view, the said assumption in Ndlovu is unsound. The
repetition of the word "including" and the placing
of a
comma before each of them leads to the conclusion that on the natural
and grammatical meaning of s 4(7) the "except"
clause
applies only to the first "including" phrase. In other
words, where there is the sale of mortgaged property in
execution the
question of alternative land is excluded as a relevant consideration
but the rights of the elderly and so forth must
still be taken into
account. This removes the anomaly that was thought to exist between s
4(6) and 4(7).’
[40]
I will, in this matter assume, without
finding, that Rogers AJ is correct and adjudicate this matter
accordingly.
WHETHER IT IS JUST AND EQUITABLE
THAT THE EVICTION ORDER BE GRANTED
[41]
In my view, it is just and equitable that
an eviction order is granted as:
41.1.
The first respondent has now been in
unlawful occupation of the property since 12 August 2014 and has had
ample time to seek and
obtain alternative accommodation.
41.2.
Nothing in the papers suggests that the
first respondent cannot afford alternative accommodation, the facts
indicate the contrary
as:
41.2.1.
The first respondent could afford visiting
her uncle in Switzerland;
41.2.2.
The first respondent is a woman of means,
able to qualify for a bond of R 5 300 000, in 2006 in order to
acquire the property;
41.2.3.
The first respondent has utilised private
attorneys extensively.
41.3.
The first respondent neglects the
property, permitting same to fall into disrepair.
41.4.
The longer the first respondent remains in
occupation, the more the charges accumulate such as municipal
charges, body corporate
levies and the like.
41.5.
The property currently poses a health risk,
as the first respondent permits pests like mosquitoes and rats to
infest the property
and the swimming pool.
41.6.
The property is situated in an affluent
area, the first respondent having no Constitutional right to live in
the house, and in the
suburb of her choosing.
41.7.
The applicant tendered reasonable
alternative accommodation, should the first respondent have made out
a case for an inability to
obtain reasonable alternative
accommodation. This was not even responded to.
41.8.
The property is uninsured.
41.9.
The property’s current state poses a
risk to life and limb as the collapse of the roof is eminent and
endangers the lives
of those in occupation.
41.10.
The respondent appears to purposefully
neglect the property.
41.11.
The property appears to be at risk of being
set alight as a result of faulty electricity connections of
electricity connections
and an unsafe and uncertified gas
installation
.
41.12.
The applicant has incurred interest costs
in excess of R 500 000 and loses rental income daily.
[42]
Mr and Ms Yasmin Omar, the legal
representatives of the first respondent are no strangers to this
court. Mr Omar is a seasoned practitioner
with much experience in
eviction applications and the provisions of the Pie Act. The only
facts before this court are those contained
in paragraph 50 quoted
hereinbefore. The facts recorded therein do however not tie up with
the other facts presented in this application.
In
Johannesburg
Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown
Urban Village,
2013 (1) SA 583
(GSJ)
Willis J held as follows at para [80]:
“
[80]
In the context of engaging the City in eviction proceedings there has
been much ‘homeless’ talk. In the following
cases:
the
Grootboom
case;
the
Port
Elizabeth Municipality
case; the
Blue
Moonlight
case; the
Mooiplaats
case;
The
Occupiers of Erf 102, 103, 104 & 122, Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Limited & Others
;
Shulana
Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
;
and the
Changing
Tides
case the courts have insisted that where there is a likelihood that
the occupiers will be rendered homeless as a result of an eviction

the municipality should be engaged with a view  to  finding
alternative accommodation and, in the
Mooiplaats
case,
where the question of homelessness was not considered by the High
Court, the eviction was set aside…..
Also
relevant are paras [68] and [122]
‘
[68]
Counsel for the applicants contend that if the entry level for the
occupiers in the original scheme was an income of
R 3 500.00 per
month, 12 years ago and they were paying R900.0 per month as levies
then, which sum, with inflation, would now have
risen to R1600.00 per
month, the occupiers can hardly be considered indigent. They also pay
‘rental’ to Mr Masetla
in an undisclosed amount. The
City, in its affidavit resisting the application for its joinder in
this matter, has been scathing
about the opportunism of the
respondents, pointing out that they have not even attempted to
indicate that they are unable to obtain
suitable accommodation for
the same or a similar amount to what they are  paying. It is
clear from the City’s affidavit
that it considers the
respondents to be opportunists, who are and have been playing for
time…
[122]
All counsel who have struggled to resist an application for summary
judgment, will be familiar with the case of
Breitenbach v Fiat
in
which Colman J made it plain that it would be difficult indeed to
show good cause why such judgments should not be granted
where the
defence had been set out ‘baldly, vaguely or laconically’.
There is no reason why this principle should
not apply to occupiers
seeking to resist the application for their eviction. Of course,
every move from one dwelling to another
carries with it its own
traumas and disadvantages. That is not enough to resist an eviction
order where an occupier has no right,
recognised at common law, to
remain in occupation of a particular property. The case for remaining
in occupation of the property
has been set out by the occupiers
laconically.’
[43]
The first respondent does not say what her
income is, that she will be homeless should the eviction order be
granted or what efforts
she has made to find alternative
accommodation.
[44]
The court posed the following questions to
Mr Hayward who had no submissions/answers to any such questions:
44.1.
How much does the first respondent earn per
month?
44.2.
What does she do for a living?
44.3.
How old are her children?
44.4.
When was she divorced?
44.5.
What attempts has she made to get
alternative accommodation?
44.6.
Who cares for her children when she travels
in and out of the country doing humanitarian work?
44.7.
Would her sister be able to provide
alternative accommodation for her while she finds alternative
accommodation?
[45]
In this case the applicant, who has no
obligation to do so, offered alternative accommodation. This was not
even explored by the
first respondent. In my view, this is so as
there is, and was, no real threat of homelessness.
WHAT WOULD CONSTITUTE A JUST AND
EQUITABLE DATE FOR THE EVICTION
[46]
In my view, it would be just and equitable
for the property to be vacated by no later than 16h00 on 7 July 2017.
COSTS
[47]
The applicant has claimed attorney client
costs. In special cases the court may come to the conclusion that the
successful party
should not be out of pocket as a result of the
litigation and may then award attorney and client costs, see
Nel
v Waterberg Landbouwers Ko-operatiewe Vereniging
1946
AD 597.
[48]
An
attorney client costs order may issue where the other party has been
guilty of dishonesty, fraud or that his motives and conduct
may have
been vexatious, reckless, malicious or frivolous, or that he has been
guilty of some form of misconduct in connection
with the matter
investigated or in the conduct of the case. The intention to delay
the matter and to prolong the first respondent’s
occupation of
the property, is readily discernible in this matter.
[6]
[49]
I have found the first respondent’s
conduct in the second eviction application to include culpable
remissness and to be
mala fide
.
She appears throughout this second eviction application to have
conducted herself with scant regard to the rights of the applicant,

the convenience of the Court or the rules of Court.
[50]
The contempt application has been separated
and postponed but in relation to the second eviction application
alone I find the first
respondent’s conduct of the litigation
to fall so far below that of an ordinary litigant that an
extraordinary costs order
is called for to convey the Court’s
displeasure and to give the applicant some recompense for what it has
had to go through
in this second eviction application to obtain
access to its property.
ORDER
[51]
I accordingly grant the following order:
51.1.
The relief claimed in prayers 1 to 3 of the
amended notice of motion is postponed
sine
die
.
51.2.
The first respondent is to pay the wasted
costs occasioned by the postponement of prayers 1 to 3 of the amended
notice of motion.
51.3.
The first respondent and all those
occupying Erf […], Riverclub Extension 38 Township,
Registration Division I.R., the Province
of Gauteng, physically
situated at […] Riverclub Country Estates, […] Road,
Riverclub, Johannesburg
(‘the
property’
) are evicted from the
property.
51.4.
The first respondent and all those
occupying the property through or under her, including her family and
employees are ordered to
vacate the property on or before 16h00 on 7
July 2017.
51.5.
In the event that the first respondent and
those holding occupation under or through her, including her family
and employees, failing
to vacate the property by 16h00 on 7 July
2017, the Sheriff or his lawfully appointed Deputy, is authorised to
execute and carry
out the eviction of the first respondent and those
occupying the property under or through her, inclusive of her family
and employees,
on the first weekday following 7 July 2017.
51.6.
The first respondent and those occupying
the property through or under her, including her family and
employees, are interdicted
from regaining access or taking possession
of the property subsequent to vacating same alternatively subsequent
to being evicted
from same by the Sheriff in terms of paragraph 51.5
hereof.
51.7.
Should the first respondent and those
occupying the property through or under her, including her family and
employees, regain access
or take possession of the property after
having vacated same and/or after being evicted from the property by
the Sheriff as per
paragraph 51.5 hereof, the order for eviction
granted herein, may be executed and carried out again, and for such
purpose the Sheriff
of this Court and his lawfully appointed Deputy
are authorised and directed to again forthwith evict the first
respondent and those
occupying the property through or under her,
including her family and employees.
51.8.
The first respondent is to pay the costs of
this application on the scale as between attorney and client.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
25 May 2017
Judgment
delivered:  8 June 2017
Appearances:
For
applicant: Adv C Van der Merwe
Instructed
by: Bruno Simão Attorneys Ref: Mr Bouwer
For
First Respondent: Adv Hayward
Instructed
by: Zehir Omar Attorneys Ref: Mr Omar
For
Second Respondent: No appearance
[1]
Superior
Court Practice
,
(2016 edition) D1-68
[2]
Khaka v
White Rock Property Trading (Pty) Ltd, case no A5003/2016 (GLD)
[3]
Nick’s
Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC,
2009 (5)
SA 629
(W) at 641G – 642D
[4]
Knox N.O. v
Mofakeng, 2013 (4) SA 46 (GSJ)
[5]
Krishna v
Pillay, 1946 AD 946.
[6]
Van Dyk v
Conradie,
1963 (2) SA 413
(C); De Goede v Venter,
1959 (3) SA 959
(O) and Ward v Sulzer,
1973 (3) SA 701
(A).