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2021
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[2021] ZAGPJHC 8
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Rathabeng Properties (Pty) Ltd v Mohlaoli and Others (18957/2019) [2021] ZAGPJHC 8 (15 February 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: Yes
Case No.: 18957/2019
In
the matter between:
RATHABENG
PROPERTIES (PTY) LIMITED
Applicant
and
MOHLAOLI, SAMMY
SEBEL
First Respondent
RAMOKONE, PULANE
ALICE
Second Respondent
ALL OCCUPIERS OF
UNIT 77 OF SS TERRA NOVA,
NEEDWOOD EXT 7,
SITUATED AT 378 FIRST ROAD,
NEEDWOOD EXT 7
Third Respondent
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Fourth Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down upon such circulation.
Per Gilbert AJ:
1.
The applicant seeks to evict the respondents from
a residential property.
2.
What is of particular concern is the
interpretation and application of the restrictions on the execution
of eviction orders in respect
of places of residence under the
presently applicable COVID-19 regulations issued in terms of
section 27(2)
of the
Disaster Management Act, 2002
, and as
amended from time to time. This will be considered later in the
judgment, as it is first necessary to determine whether
the applicant
is entitled to an eviction order.
3.
The applicant is the owner of a residential
property in a sectional title scheme, which it purchased at a
sheriff’s sale in
execution after the previous mortgagee
foreclosed on the property. The applicant seeks to evict the first
respondent as the previous
owner and mortgagor, who has refused to
vacate the property.
4.
Once the common cause facts are set out in
chronological order, the defences to the eviction proceedings
dissipate.
5.
The previous mortgagee obtained judgment on
24 July 2017 against the first respondent pursuant to
foreclosure proceedings.
Although the court order does not form part
of the papers, it is not disputed that the court declared the
property executable and
did not set a reserve price.
6.
The first respondent on 2 October 2017
launched rescission proceedings.
7.
Uniform
Rule 46A
come into effect on 22 December
2017.
Rule 46A(8)(e)
provides that the court when considering an
application to declare residential immovable property executable
“
may… set a reserve price.”
8.
On 12 September 2018 the Full Bench of this
Division in
ABSA Bank Ltd v Mokebe and related
cases
2018 (6) SA 492
(GJ) considered
Rule
46A
and handed down judgment in which the court
inter
alia
held that save in exceptional
circumstances, a reserve price should be set by a court in all
matters where execution is granted
against immovable property which
is the primary residence of a debtor, where the facts disclosed
justify such an order.
9.
The rescission proceedings were dismissed with
costs on 31 July 2018.
10.
The applicant purchased the property at the
sheriff’s sale in execution on 23 October 2018. As no
reserve price had been
set by the court when declaring the property
executable, the property was sold without a reserve price.
11.
On 6 May 2019 registration of transfer of the
property was effected to the applicant.
12.
On 10 May 2019, the applicant as the new
owner furnished notice to the first respondent and other occupants of
the property
to vacate the property.
13.
The respondents, who appear at that stage to have
been the first respondent and the second respondent with their
daughter, did not
vacate the property. At some point thereafter the
second respondent appears to have become estranged from the first
respondent
and vacated the property, leaving the first respondent
with their fourteen year old daughter in occupation of the property.
14.
After having been furnished with the notice to
vacate the property, the first respondent on 27 May 2019
attended at the sheriff’s
office and was paid the balance of
the sale proceeds of R20 424.01 resulting from the sale in
execution that had taken place
on 23 October 2018. Clearly the first
respondent had learned of the sale in execution, and the property
having been sold for in
excess of what was outstanding to the
previous mortgagee.
15.
Four days later, on 31 May 2019 and after
having collected the surplus sale proceeds, the first respondent
launched a second
rescission application, based upon what the
applicant describes are substantially the same grounds. Those second
rescission proceedings
have not been pursued any further by the first
respondent.
16.
On 28 June 2019 the present eviction application
was served upon the respondents.
17.
On 4 July 2019 the court authorised the service
of the
section 4(2)
notice in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE”)
The notice was served on the respondents on 22 July 2019. The first
respondent has opposed these proceedings and so is aware of
these
proceedings.
18.
Against these facts, the first respondent’s
defences can be considered.
19.
The first respondent asserts that the sale in
execution is to be set aside for two reasons. The first reason is
that no reserve
price had been set by the court, and that this
vitiates the sale of the property to the applicant. The second reason
is that rescission
proceedings are presently underway and that those
rescission proceedings must first be determined because if the
judgment is set
aside, then so too would the sale in execution and
the transfer of the property.
20.
The judgment pursuant to which the property was
sold in execution was granted on 24 July 2017. Uniform Rule 46A
in dealing
with execution against residential immovable property
including the setting of a reserve price by the court would only come
into
effect on 22 December 2017. The
Mokebe
decision would only be handed down some
fourteen months later in September 2018. There is no indication in
the
Mokebe
judgment
that it was to have retrospective effect in relation to orders that
had already been granted. Neither were any submissions
made by the
parties as to whether it should have retrospective effect.
21.
In the circumstances, the court order of 27 July
2017 remains good. The property was sold pursuant to that court
order. Although
the conditions of sale did not stipulate for a
reserve price, it was for the court, should it so decide, to set the
reserve price
and not for the sheriff. As there was no obligation
upon the court to have set a reserve price when it granted the order,
the sale
cannot be challenged on this basis.
22.
But should I be incorrect on this issue, the
first respondent having attended upon the sheriff’s premises
after the sale in
execution and accepting and retaining the surplus
of the sale proceeds cannot now challenge that sale. The first
respondent has
not proffered any explanation for accepting and
retaining the sale proceeds whilst still seeking to challenge the
sale the fruits
of which he has retained.
23.
The applicant, correctly so in my view, argues
that the first respondent has perempted any challenge to the sale.
24.
Similarly,
in relation to the first respondent’s second defence, namely
that the judgment may be set aside in the rescission
proceedings. The
applicant pointed out that the first respondent failed to disclose to
the court that he had already instituted
and failed in earlier
rescission proceedings. The first respondent has also taken no steps
to further prosecute the second rescission
proceedings. By all
accounts the first respondent has abandoned those rescission
proceedings, and nothing was submitted by the
first respondent’s
counsel to persuade the court otherwise. The first respondent’s
counsel, justifiably, was unable
to submit with any conviction that
such rescission proceedings constituted a legitimate basis for
refusing an eviction order. It
may be, as contended for by the
applicant, that the court has already in dismissing the first
rescission application decided upon
the grounds relied upon by the
first respondent in his second rescission application and that
therefore the issue is
res
judicata
.
The first respondent also would face significant difficulties in
demonstrating that he was
bona
fide
in launching the second rescission application
[1]
and therefore that the judgment should be rescinded in circumstances
where he had already accepted the benefits from the sale in
execution
that took place consequent upon the judgment.
25.
But
even should the first respondent succeed in rescinding the judgment,
that in and of itself would not vitiate the sale
as the
underlying sale agreement which was concluded at the sale in
execution would not be vitiated, it being the real agreement
pursuant
to which ownership was transferred to the applicant. The rescission
of the judgment would not affect the sale in execution
itself, which
would remain valid. It is only where the sale in execution itself was
a nullity that the sale would be vitiated.
[2]
26.
To the extent that the first respondent asserts
that the sale itself was vitiated because no reserve price was set,
this defence
has already been traversed and rejected.
27.
In the circumstances, the first respondent has
advanced no valid defence to the eviction.
28.
The first respondent also did not take the court
into his confidence in relation to his personal circumstances to
enable the court
to come to his assistance as to whether it would not
otherwise be just and equitable to evict him and his daughter from
the property.
The first respondent has occupied the property for a
lengthy period since he ceased being the owner on 6 May 2019.
The first
respondent appears content to remain on the property
without making any attempt to find alternative accommodation or to
compensate
the applicant as the owner, including in respect of
ongoing municipal rates and other charges.
29.
Very limited averments are made by the first
respondent in his answering affidavit that are relevant to his
personal circumstances
and therefore whether it is just and equitable
to evict him and his daughter from the property and for purposes of
setting a date
upon which the eviction order is to be carried into
effect.
30.
The first respondent avers that “
[t]his
property is my primary place of residence with my family and my minor
daughter of 12 years of age. We have no other place
to stay, we
simply do not have an alternative and furthermore my aforementioned
child is attending school in the vicinity
”.
31.
To similar effect the first respondent later in
his affidavit avers that “
I submit that
on a scale, the prejudice I will suffer outweighs that of the
Defendant in that I am staying on the property with
my family as our
primary place of residence and the Applicant wants possession for the
purposes of investment and/or rental income
”.
32.
These statements are so terse and devoid of
supporting detail or evidence, they do little to assist the first
respondent in demonstrating
that it would not be just and equitable
to grant an eviction order in favour of the applicant who had now
been kept out of the
benefit of its property for some twenty months
and where the first respondent has not paid anything to the applicant
during that
period, such as for municipal rates and other charges.
33.
Taking
into account all the relevant circumstances, I am satisfied that it
is just and equitable to grant an eviction order.
[3]
34.
Ordinarily,
and having considered all the relevant factors, I would have
determined a just and equitable date upon which the first
respondent
and his daughter are to vacate the property as being two weeks after
the order, and a further two weeks before the eviction
order may be
carried out.
[4]
35.
But
the position is complicated by the onset of the worldwide COVID 19
pandemic. Various restrictions have been imposed upon
residential
evictions in terms of the Regulations. My registrar a few days before
the hearing issued a directive to the parties
to consider, and to the
extent so advised, to make submissions on the effect of regulation 37
of the Regulations for Adjusted
Level 3, which came into effect
on 11 January 2021 and which provides for a suspension or stay
of an order for eviction.
[5]
36.
Neither of the parties’ counsel submitted
any written submission and they only made cursory oral submissions
when the matter
was first called before me on 28 January 2021. I
remain concerned that the parties had not yet adequately considered
the effect
of the Regulations, particularly as the papers that had
been filed to date in the court file, which included the notice of
motion
in the eviction application and the various draft orders did
not show any appreciable cognisance of the reality of the COVID 19
pandemic which has gripped the nation since at March 2020. I
accordingly stood down the matter until the next day for the parties
to more closely consider these issues. I also invited the first
respondent, who is legally assisted by both an attorney and counsel,
to consider filing a further affidavit dealing in particular with the
first respondent’s and his daughter’s personal
circumstances so as to assist the court in deciding whether, if an
eviction order was granted, it should be stayed or suspended
as
envisaged in the Regulations.
37.
The first respondent did deliver overnight with
what is a surprisingly terse affidavit, considering that he is
legally represented.
That affidavit said no more than:
“
I have no
income since I lost my job in 2014. As my bank statement denotes, I
have since used money to fight for my primary residence
that I
[illegible] in a court case. I have nowhere else to stay with my 14
year old daughter.
”
38.
Attached to the affidavit are bank statements for
approximately three months which, although demonstrating that the
first respondent
has very little money in that bank account, raises
many questions. For example, there clearly is a source of income
which regularly
results in transfers into the bank account. These are
unexplained.
39.
When the matter resumed on 29 January 2021,
the respective counsel made oral submissions as to an appropriate
suspension of
the order should an eviction order be granted. Neither
counsel sought to make any written submissions or upload any draft
orders.
Neither counsel advanced any submissions which addressed the
Regulations directly and such submissions as were made were made
divorced
from any close reference to the Regulations themselves.
40.
The applicant’s counsel submitted that an
appropriate suspension should be for a period of two to three months
after the order
as that would bring certainty. The first respondent’s
counsel submitted that an appropriate order of suspension would be
until the relevant Regulations dealing with eviction were lifted.
Precisely what this entailed is unclear.
41.
It is
difficult not to reasonably draw the inference that the first
respondent is deliberately avoiding taking the court into his
confidence, especially as he is legally represented and he was given
the opportunity by the court to elaborate upon his personal
circumstances. It may be, as the applicant’s counsel submitted,
that this is deliberate further stratagem by the first respondent
to
remain in unlawful occupation of the property. Nonetheless the
difficulty that presents itself to the court, and as submitted
by the
first respondent’s counsel, is that whatever one wishes to make
of the first respondent’s
bona fides
,
there is more at stake than the eviction of the first respondent but
also the interests of his daughter and the wider community
should the
first respondent and his daughter be put out on the street with
potentially nowhere to go during the COVID 19 pandemic.
There
was considerable force in this argument, particularly bearing in mind
that under the present Regulations for Adjusted Level 3
a curfew
is in place which requires persons to return to their residence by a
specific time, otherwise risk being arrested.
[6]
42.
Some
assistance can be gleaned from a comparison of the Regulations in
relation to each alert level provided for in the Regulations
that
were published on 29 April 2020
[7]
and which have been amended from time to time, the most recent
amendment in relation to the hearing date being on 11 January
2021 which substituted Chapter 4 to provide for an “
Adjusted
Alert Level 3
”.
[8]
43.
Chapter 3 of the Regulations provides for Alert
Level 4 and in regulation 19 provides for a ‘
prohibition
on evictions’
as follows:
“
A
competent court may grant an order for the eviction of any person
from land or a home in terms of the provisions of the
Extension of
Security of Tenure Act, 62 of 1997
and the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, 19 of 1998:
Provided that any order of eviction
shall
be stayed and suspended until the last day [sic] Alert Level 4,
unless a court decides that it is not just and equitable to
stay and
suspend the order until the last day of the Alert Level 4
period.
” (my emphasis)
44.
This
prohibition is clear enough in providing that such order of eviction
as may be granted by a court shall be stayed and suspended
until the
end of Alert Level 4, unless the court decides that it is not just
and equitable to so stay and suspend the order. The
stay and
suspension is linked to the end of Alert Level 4.
[9]
The severity of COVID-19 was sufficient that the Minister of
Cooperative Governance and Traditional Affairs, in consultation with
the relevant Cabinet members, promulgated a stay and suspension of an
eviction order as the default position i.e. unless the court
ordered
otherwise.
45.
Chapter
4 of the Regulations, which introduced Alert Level 3 with effect
from 1 June 2020
[10]
provides in regulation 36 as follows:
“
(1)
Subject to subregulation 2, a person may not be evicted from his or
her land or home during the period of
Alert Level 3 period
[sic].
(2)
A competent court may grant an order for the eviction of a person
from his or her land or home
in terms of the provisions of the
Extension of Security of Tenure Act, 1997 (Act 62 of 1997) and
the Prevention of Illegal
Eviction from and Unlawful Occupation of
Land Act, 1998 (Act 19 of 1998): Provided that an order of
eviction may be stayed
and suspended until the last day of Alert
Level 3 period, unless a court decides that it is not just and
equitable to stay and
suspend the order until the last day of the
Alert Level 3 period.
”
46.
Although
not clear, it appears that the default position under Alert Level 3
was that the person may not be evicted from his home
during the
period of Alert Level 3, unless the court decides that it
is not just and equitable to so stay and suspend
the order.
[11]
This prohibition under Alert Level 3 is not the present
prohibition as the regulations relating to Alert Level 3
would
be subsequently amended on 11 January 2021, to provide for an
“Adjusted Level 3”.
47.
The
introduction of Chapter 5 into the regulations providing for Alert
Level 2,
[12]
provides for
more extensive regulations. The relevant regulation, Regulation 53,
is no longer headed “
Prohibition
on evictions”
but rather “
Eviction
and demolition of places of residence”
and reads:
“
53. Eviction
and demolition of places of residence.— (1) A person
may not be evicted from his
or her land or home or have his or her
place of residence demolished for the duration of the national state
of disaster unless
a competent court has granted an order authorising
the eviction or demolition.
(2) A
competent court may suspend or stay any order for eviction or
demolition contemplated in subregulation (1) until
after
the lapse or termination of the national state of disaster unless the
court is of the opinion that it is not just or equitable
to suspend
or stay the order having regard, in addition to any other relevant
consideration, to—
(a) the
need, in the public interest for all persons to have access to a
place of residence and basic services to protect their
health and the
health of others and to avoid unnecessary movement and gathering with
other persons;
(b) any
restrictions on movement or other relevant restrictions in place at
the relevant time in terms of these regulations;
(c) the
impact of the disaster on the parties;
(d) the
prejudice to any party of a delay in executing the order and whether
such prejudice outweighs the prejudice of the person
who will be
subject to the order;
(e)
whether any affected person has been prejudiced in his or her ability
to access legal services as a result of the disaster;
(f)
whether affected persons will have immediate access to an alternative
place of residence and basic services;
(g)
whether adequate measures are in
place to protect the health of any person in the process of a
relocation;
(h)
whether any occupier is causing
harm to others or there is a threat to life; and
(i)
whether the party applying for
such an order has taken reasonable steps in good faith, to make
alternative arrangements with all
affected persons, including, but
not limited to, payment arrangements that would preclude the need for
any relocation during the
national state of disaster.
(3) A
court hearing any application to authorise an eviction or demolition
may, where appropriate and in addition to
any other report that is
required by law, request a report from the responsible member of the
executive regarding the availability
of any emergency accommodation
or quarantine or isolation facilities pursuant to these Regulations.”
48.
Chapter
6 was inserted into the Regulations regulating Alert Level 1
with effect from 21 September 2020.
[13]
Regulation 70 is identically worded in regulation 53.
49.
And,
as appears above, with effect from 11 February 2021, an Adjusted
Level 3 was introduced.
[14]
Amended regulation 37 too is the same as Regulations 53 and 70.
50.
Therefore, the restrictions on eviction that are
in place under Levels 1, 2 and Adjusted Level 3 are the same.
51.
What is common to the relevant regulations under
each alert level is that the stay or suspension is linked to the end
of a particular
period, be it a particular alert level or the end of
the state of disaster. I therefore intend linking the stay or
suspension to
the end of a particular period.
52.
It is not easy to interpret the restrictions on
eviction for Levels 1, 2 and the now prevailing Adjusted Level 3.
Sub-regulation
(1) appears tautologous as no one can be evicted from
their residence without a court order in any event, and regardless of
whether
there is a national state of disaster.
53.
Sub-regulation (2) would be straight-forward if
it read “
A
competent court
must
suspend or stay any order for eviction or demolition contemplated
in subregulation (1) until after the lapse or termination
of the national state of disaster unless the court is of the opinion
that it is not just or equitable to suspend or stay the order
having
regard, in addition to any other relevant consideration, to…”.
But
subregulation (2) does not state a competent court ‘
must’
suspend or stay the order but rather that it “
may
”
suspend or stay the order. The use of the permissive “may”
does not sit comfortably with the court in any event
have the
discretion to suspend or stay the order.
54.
Nonetheless,
whatever the discomfort with the wording of sub-regulation (2`), the
power whether to suspend or stay the eviction
order is
discretionary.
[15]
55.
Girdwood
AJ in
Stuart
N.O. v Van Dyk
[16]
,
whilst stating that the court is not obliged to suspend or stay the
order, continues that if the court does so decide to suspend
or stay
the order, it is for the duration of the national state of disaster.
The court continues that ‘
[w]hen
the national state of disaster is likely to be terminated is anyone’s
guess’.
This appears to have weighed upon the court in finding on the
circumstances in that matter that it would not be just and
equitable to so suspend the order for such a long and indeterminate
period.
[17]
56.
It is not desirable, in my view, to strait-jacket
the court’s discretion into making one of two choices: either
suspend or
stay the eviction order for
the
duration of the national state of disaster, or not grant a stay or
suspension at all.
Common sense should
compel the conclusion that the restrictions provided for in Levels 1
and 2 should less onerous than those
for Level 3 and 4 where the
risks posed by the COVID 19 pandemic are less than they would be
under Level 3. It is therefore
peculiar that the Regulations for
Level 4 link and for Level 3, before adjusted, linked the stay and
suspension until the last
day of the relevant level, whereas the
Regulations for Levels 1, 2 and Adjusted Level 3 link the stay and
suspension until after
the lapse or termination of the national state
of disaster. The latter periods are longer and therefore more
restrictive than the
former periods.
57.
Following the logic that the restrictions in
Alert Levels 1, 2 and Adjusted Level 3 should be less than those for
Alert Level 4,
the restrictions for Adjusted Level 3, which is
the present alert level, should be less onerous towards a successful
applicant
for eviction than those for Alert Level 4.. But that is not
what regulation 37, as currently worded, provides.
58.
I find
the solution to be that whilst the court can pay homage to the
wording of regulation 37 and decline to then suspend or stay
the
order under regulation 37 as it is not just and equitable to do so
for the duration of the national state of disaster, effect
can
nevertheless be given to a suspension or stay for a lesser period in
applying its discretion after considering all the relevant
circumstances in stipulating a just and equitable date by which the
unlawful occupant must vacate the property in terms of section
4(8)
of PIE, or even through the use of a condition under section 4(12) of
PIE.
[18]
There is room under
sections 4(8) and 4(12) of PIE for the court to consider, and indeed
the court is obliged, to consider the
factors listed in regulation
37(2) as part of all the relevant factors that the court must take
into account.
[19]
The enabling
mechanism then for the court to stipulate for a stay or suspension
for a lesser period that the duration of the national
state of
disaster is not regulation 37, but rather sections 4(8) and 4(12) of
PIE.
59.
Of course, the dominating enquiry is a
consideration of all the relevant circumstances, which can and should
include those listed
in subregulation 2 so as to address the
challenges posed by COVID-19. But, as described above, neither of the
parties have placed
much evidence before the court to assist me in
assessing all the relevant circumstances. The first respondent should
have been
far more forthcoming with his personal circumstances,
supported by factual detail, and not have contented himself with
simply asserted
that he has no income and has nowhere else to stay.
Both parties could have been more forthcoming in relation to the
other factors
listed in regulation 37(2).
60.
I am of the view that I am permitted to take
judicial notice that the ‘second wave’ of the pandemic
has passed and that
there has been a significant decline in new
infections since January 2021. Nonetheless there is mention of a risk
of a ‘third
wave’.
61.
Based upon such relevant factors as are available
in this matter, sparse as they may be, I am of the opinion that it
would be just
and equitable to stay or suspend the eviction order
until after the end of Adjusted Level 3 (or the end of Level 4 or 5
should
such an alert level immediately follow on from Adjusted Level
3). This means that the first respondent and other occupants of the
property will have two weeks after the end of Adjusted Level 3 (or
the end of Level 4 or 5 should such an alert level immediately
follow
on from Adjusted Level 3) to vacate the property, failing which the
eviction order may be carried out a further two weeks
thereafter.
This effectively affords the first respondent and other occupants a
month to vacate the property once the present Adjusted
Level 3 ends
(or Level 4 or 5 ends should such an alert level immediately follow
on from the present Adjusted Level 3).
62.
I also intend making the stay of the eviction
order a condition as envisaged in terms of section 4(12) of PIE, and
so enabling either
of the parties to approach the court in terms of
that subsection, on good cause shown, for a variation of the eviction
order. This
allows for the exigencies that may arise, such as a
resurgence in the spread of the COVID-19 virus. The regulations
themselves
are in a state of flux and therefore too an order of
suspension cannot be so cast in stone that it cannot be revisited
should it
be necessary to do so if a change in circumstances so
requires.
63.
During the course of argument, it transpired that
it was only the first respondent who was effectively opposing the
proceedings
as the second respondent had since vacated the property.
64.
In the circumstances, the applicant sought that
costs only be paid by the first respondent, although
ex
abundanta cautela
the eviction order will
also be directed against the second respondent.
65.
The applicant also sought that costs be paid on
an attorney and client scale. In the exercise of my discretion, costs
against the
first respondent on the ordinary scale is sufficient.
66.
The following order is made:
66.1.
The first and second respondents, and all those
claiming occupation through, by or under them are evicted from
Unit 77 of SS Terra
Nova, Needwood Ext 7 situated at
375 First Road, Needwood Ext 7
[“the
property”].
66.2.
On condition, as envisaged in section 4(12) of
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 1998,
that the present Adjusted Level 3 under the
Regulations issued in terms of section 27(2) of the Disaster
Management Act, 2002 (“the
Regulations”) has ended (or
the relevant period under Alert Level 4 and/or 5 under the
Regulations has ended if such alert
level/s immediately follows the
present Adjusted Level 3), the first and second respondents, and all
those that occupy through,
by or under them are ordered to vacate the
property within fourteen days
on the condition
being fulfilled.
66.3.
The sheriff and/or deputy sheriff, assisted by
such persons as he or she requires including the South African
Police Services,
are authorised and directed to give effect to
paragraphs 66.1
and 66.2
above,
including removing from the property the respondents and any other
occupants and/or their belongings, no earlier than fourteen
days
after the period specified in paragraph 66.2
above
in the event the property is not vacated within the period specified
in paragraph 66.2
above.
66.4.
The first respondent is to pay the costs of the
application.
Gilbert AJ
Date of
hearing:
28 and 29 January 2021
Date of judgment:
15 February 2021
Counsel for the
Applicant:
Mr C Shongwe
Attorneys for the
Applicant:
Motshekga &
Roos Attorneys (Midrand)
c/o Albert Jacobs
Inc (Johannesburg)
Counsel for the
first respondent: Mr
Mureriwa
Attorneys for the
First Respondent: S E Kanyoka Inc Attorneys
(Pretoria)
c/o Mncube Attorneys
(Johannesburg)
[1]
An
applicant for rescission must not only show that he or she is not in
wilful default and has a bona fide defence which
prima
facie
carries some prospects of success, but also that he or she is
bona
fide
in launching the application:
Standard
Bank of South Africa Limited v El-Naddaf and Another
1999 (4) SA
779
(W) at 784D to 785H.
[2]
Knox NO v
Mofokeng and others
2013 (4) SA 46
(GSJ) para 18.
[3]
Section
4(7) of PIE;
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012 (6) SA 294
(SCA), para 12.
[4]
Sections
4(8) and 4(9) of PIE.
[5]
R 11 of
GG
44066, 11 January 2021.
[6]
Regulation
33.
[7]
GNR 480 of
GG43258, 29 April 2020.
[8]
GNR 11 of
GG
44066, 11 January 2021.
[9]
See
Anchorprops
31 (Pty) Ltd v Levin
[2020] ZAGPJHC 183 (28 May 2020), para 40 as an example of the
application of regulation 19.
[10]
Chapter 4
added by GN608 of GG43364, 28 May 2020.
[11]
Delta
200 Properties (Pty) Ltd v D and others
[2020]
ZALCC 24
(12 August 2020), para 109.
[12]
GNR 891 of
17 August 2020, with effect from 18 August 2020.
[13]
GN 999 of
GG43725, 18 September 2020.
[14]
GN 11 of
GG44066, 11 January 2021.
[15]
Stuart
N.O. v Van Dyk and another
2020]
ZAGPPHC 570 (22 September 2020), at para 59, applying regulation 53
for Alert Level 2 and then regulation 70 for Alert Level
1.
[16]
Above,
at
para 59.
[17]
At
para 70.
[18]
The
court in
Delta
200
above
in para 109 expressly referred to the comparative section 12(5) in
the
Extension of Security of Tenure Act, 1997
as a means to grant an
appropriate order in the context of
Regulation 36
as it applied to
Alert Level 3, before it was adjusted.
[19]
Esau
and others v Minister of Co-Operative Governance and Traditional
Affairs and others
[2020]
ZAWCHC 56
(26 June 2020), para 211, in the context of
regulation 19
,
in relation to Alert Level 4.