About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2022
>>
[2022] ZAGPJHC 236
|
|
Verster and Another v Mafadi Management Letting Sales (2022/012294) [2022] ZAGPJHC 236 (19 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2022/012294
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
19/4/2022
In
the matter between:
VERSTER,
JACQUES
First Applicant
ERASMUS,
WILLIAM
Second Applicant
and
MAFADI
MANAGEMENT LETTING SALES
Respondent
JUDGMENT
MOORCROFT
AJ:
Order
[1]
This application was heard on 18 April
2022 and I handed down the following order:
“
1.
The Respondent be ordered and directed to forthwith restore full
beneficial possession
of the residential property situated at 57A 2nd
Avenue, Westdene, Johannesburg (hereinafter referred to as “the
property”)
to the Applicants;
2.
That the Respondent be ordered and directed to forthwith take all
necessary steps
to ensure that:
3.1
the locks its employees or sub-contractors had placed on one of the
garage doors and on the outside gate at
the property, are removed
immediately;
3.2
the First Applicant’s house keys are returned to him
immediately;
3.3
the electricity to the property is restored immediately;
3.
The Respondent and any person acting on its behalf or on its
instructions are
interdicted and restrained from interfering with or
hindering the Applicants’ occupation of the property, other
than by means
of a Court sanctioned process;
4.
The Respondent is ordered to pay the costs of this application on the
scale as
between attorney and client.”
[2]
The reasons for the order follow below.
Introduction:
[3]
The present application was preceded by an
earlier one that was dismissed. It was held that the applicant had
failed to make out
a case on the papers on the basis disclosed in the
founding affidavit. A new application was then drafted relying on
different
points of law and served on 16 April 2022.
[4]
In the compliance affidavit it is confirmed
that the applicant had received a telephone call from the
respondent’s attorney
to inform him that the respondent was a
client of his firm. The application was then forwarded by email to
the respondent’s
attorney.
[5]
Under the circumstances I was satisfied
that the application had been duly served.
[6]
The applicants were evicted from leased
residential premises on 11 April 2022. At the time they lived at
the premises and they
were in peaceful occupation of the property.
They were evicted without a Court order and without compliance with
the provisions
of the Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act, 19 of 1998 (“the PIE Act”).
In the
eviction the applicants’ rights against arbitrary
eviction in terms of Section 23(3) of the Constitution were also
infringed.
[7]
The
respondent’s actions in carrying out the eviction
[1]
quite obviously acted on the premise that the respondents were in
unlawful occupation, which begs the question why the PIE Act
was not
complied with.
[8]
If
the PIE Act were not to be applicable the question still remained why
the respondent did not obtain a court order. An applicant
for an
eviction order at the end of a lease must allege and prove that the
right of the occupier had been terminated. He cannot
resort to
self-help.
[2]
[9]
The respondent did an about turn and
alleged in an email on 14 April 2022 that the applicants “
has
access to the unit and all the keys are with the tenant.”
The
respondent however chose not to oppose the application and the only
evidence of the eviction remains that of the applicant.
This email
was written when the respondent already was in possession of the
first application and knew that the applicants alleged
a forceful
eviction.
[10]
The applicants also enjoyed water and
electricity services that form an integral and incidental element of
their occupation and
enjoyment of the property. They state in the
founding affidavit that the respondent was contractually obliged to
invoice them in
arrears for the services but has never done so
despite many requests. They therefore paid an estimated amount. It
stands to reason
that they would expect the respondent to inform them
accordingly should this amount be too low and they are in any event
entitled
to receive invoices or statements of account.
[11]
In the aforementioned email of 14 April
2022 the respondent denied that any municipal services were
disconnected by the respondent.
The inference to be drawn from the
email of 14 April 2022 is that the respondent does not dispute the
applicants’ entitlement
to the relief sought but does not go
further and dispute that the eviction occurred.
[12]
I am satisfied that a case has been made
out that the matter is urgent, that the applicants have been
unlawfully deprived from their
possession and occupation of their
home, that were evicted without a court order, and that the
provisions of
section 4
of the
Prevention of Illegal Eviction From
and Unlawful Occupation of Land Act, 18 of 1998
were not complied
with.
[13]
I am also of the view that the respondent’s
actions in carrying out the eviction as described in the affidavit
merit a punitive
cost order. The applicants were dealt with forcibly;
they were evicted without a court order; they were deprived of their
keys;
and they were frogmarched out of the home they occupied.
[14]
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
19 April 2022
APPEARANCE
FOR APPLICANTS:
M VERSTER
INSTRUCTED
BY:
BMV ATTORNEYS
NO
APPEARANCE FOR RESPONDENT
DATE
OF THE HEARING:
18 April 2022
DATE
OF ORDER:
18 April 2022
DATE
OF JUDGMENT:
19 April 2022
[1]
Paragraphs
11 to 26 of the founding affidavit (Caselines 0006-7 to 0006-11)
[2]
Boshoff
v Union Government
1932 TPD 345
; Myaka v Havemann
1948 (3) SA 457
(A);
Matador
Buildings (Pty) Ltd v Harman
1971 (2) SA 21
(G);
Schnehage
v Bezuidenhout
1977
(1) SA 362
(O).