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[2022] ZAGPJHC 1049
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Ngwenya and Others v Ngomane Property Trust and Others (2022/11313) [2022] ZAGPJHC 1049 (25 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2022/11313
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
DATE:
25/03/2022
In
the matter between:
SAMUEL
NGWENYA First
Applicant
PHUMULANI
MKHWANAZI Second
Applicant
LINDANI
BUTHELEZI Third
Applicant
EMMANUEL
MKHIZE Fourth
Applicant
KHETHUKUTHULA
MHLUNGU Fifth
Applicant
SINETHEMBA
MYEZA Sixth
Applicant
WELILE
MYEZA Seventh
Applicant
KHULEKANI
ZIKALALA Eighth
Applicant
ZANELE
MYEZA Ninth
Applicant
NKOSIKHONA
NKABINDE Tenth
Applicant
NONHLE
BHENGU Eleventh
Applicant
TEBEGO
KHUMALO Twelfth
Applicant
NONTOBEKO
NGCOBO Thirteenth
Applicant
NKOSINGIPHILE
MASUKU Fourteenth
Applicant
ZINHLE
MLAMBO Fifteenth
Applicant
SITHEMBILE
VILAKAZI Sixteenth
Applicant
NOKUTHULA
LUNGA Seventeenth
Applicant
THEMBA
MTSHALI Eighteenth
Applicant
JEFRY
MYEZA Nineteenth
Applicant
SBUSISO
ZULU Twentieth
Applicant
LUNGILE
KHUMALO Twenty
First Applicant
and
NGOMANE
PROPERTY TRUST First
Respondent
SHERIFF
JOHANNESBURG EAST Second
Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY Third
Respondent
JUDGMENT
MOORCROFT
AJ:
Order:
[1]
In this matter I granted the following order after hearing the
application as
an urgent application on 24 March 2022:
“
1.
Pending the return day of the application on 29 March 2022 –
1.1.
The first respondent is interdicted from evicting the applicants in
the premises described as ERF 462 Denver situated
at no 8 and 10
Morice Street, Malvern, Gauteng province;
1.2.
The first respondent is ordered to return to all the applicants the
keys to the premises insofar as same are in the possession
of the
first respondent;
1.3.
The first Respondent is ordered to restore occupation of the premises
to the applicants;
2.
The respondents may file their answering affidavit on or before 12h00
on 28 March 2022;
3.
The applicants may file replying affidavits by 18h00 on 28 March
2022;
4.
The application is postponed to the urgent court on 29 March 2022;
5.
The attention of the respondents are directed to Uniform Rule 6(12)
in terms of which the respondents
or any of them may set the matter
down for reconsideration of the order;
6.
The costs are reserved.”
[2]
The reasons for the order follow below.
[3]
The application was argued in the absence of the respondents and no
answering
affidavits are to hand. I rely solely on the applicant’s
affidavits.
The
pending appeal:
[4]
The first respondent brought an application as applicant in the
Johannesburg
Magistrates’ Court for the eviction of the present
first applicant (then the first respondent) and others.
[5]
On 21 October 2021 the Learned Magistrate granted an order that
the present
first applicant and his immediate family be ordered to
vacate premises situated at Erf 462 Denver, Melvern, Johannesburg on
or
before 5 January 2022, and dismissed the application against
the remaining respondents.
[6]
The present first respondent was not satisfied with the order and
noted an appeal
to the Gauteng Division of the High Court in
Johannesburg “
against the whole of the judgment and order
delivered by the Honourable Magistrate Rooy on 21
st
October 2021 in the above matter”
. This was done on 27
October 2021.
[7]
The present first respondent rather surprisingly therefore also
appealed against
the part of the order in which it was successful.
[8]
The present applicants were evicted from the premises on 22 March
2022.
[9]
The present applicants then launched the application in the Urgent
Court in
Johannesburg that the present first respondent be
interdicted from evicting the applicants, that the eviction be
declared unlawful,
that the first respondent be ordered to return the
applicants’ keys in respect of the premises, that the
respondents be ordered
to file answering affidavits on or before noon
on 28 March 2022, and that the matter be postponed by way of a
rule
nisi
to 29 March 2022.
[10]
The application was set down for the 23
rd
at 14h00 and
then stood down to the 24
th
at 10h00. On the basis of the
allegations in the founding affidavit I ruled that the application
was urgent.
[11]
The application was served on 23 March 2022 by hand delivery to
the wife of a trustee of the first
respondent and by sending an
electronic mail copy to the first respondent on the same day. The
application was also served on the
same day on the second and third
respondents.
[12]
In the founding affidavit it is alleged that the applicants were
evicted on 22 March 2022 despite
the fact that the appeal lodged
on 27 October 2021 was never finalised or withdrawn.
[13]
A decision by a Court that the subject of an appeal is suspended
pending the decision of the appeal,
unless the Court orders otherwise
and under exceptional circumstances. This principle now entrenched in
section 18
of the
Superior Courts Act, 10 of 2013
, has its origins in
the common law.
[14]
No order was granted against the second to twenty first applicants.
The position as regards the first
applicant is more complicated. An
eviction order was indeed granted against him but the present first
respondent chose to also
appeal that part of the order as well and
for that reason I find that the notice of appeal also suspended the
decision in respect
of the first applicant.
[15]
The respondents were therefore not entitled to evict the applicants.
I therefore granted the order
quoted above.
J
MOORCROFT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
JOHANNESBURG
Electronically
submitted
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be
24 March 2022
COUNSEL
FOR THE APPLICANTS: A
Khoza
INSTRUCTED
BY: Mafenya
Attorneys
DATE
OF THE HEARING: 24
March 2022
DATE
OF ORDER: 24
March 2022
DATE
OF JUDGMENT: 25
March 2022