Summary of Judgment

1. Introduction

The proceedings concerned an urgent application arising from the execution of an eviction order granted under the Prevention of Illegal Eviction from, and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The applicants were Jerome Badenhorst and the unlawful occupiers of immovable properties at Portion 102, Holgatfontein 36 IR, Nigel (also referred to as Mackenzieville Extension). The principal respondent was the City of Ekurhuleni Metropolitan Municipality, with the Sheriff of the High Court, Nigel, the South African Police Service (SAPS), Nigel, and the Ekurhuleni Metropolitan Police Department (EMPD) cited as further respondents.

An eviction order had been issued by Molahlehi J on 9 June 2021. On 28 February 2023, the eviction order was executed. On 3 March 2023, Wilson J made an order declaring that the execution of the eviction order by the municipality, SAPS, and the EMPD in the absence of the Sheriff was unlawful, and directed the restoration of the applicants to the properties from which they had been removed. The court also suspended the further execution of Molahlehi J’s order pending judgment on additional relief sought by the applicants, namely a stay pending an investigation into the applicants’ need for alternative accommodation.

On 6 March 2023, the municipality applied for leave to appeal, but only against the declaration of unlawfulness; it did not seek leave to appeal against the restoration order or the interim suspension of execution. The present judgment (delivered on 8 March 2023) records the court’s reasons for declaring the execution unlawful. The judgment on the requested stay remained reserved.

2. Material Facts

It was common cause that the eviction order issued under section 4 of the PIE Act was executed on 28 February 2023 without the Sheriff being present. The municipality, SAPS, and EMPD carried out the eviction in the Sheriff’s absence.

The court recorded that there was reason to believe the eviction may not have been carried out humanely or orderly, and the court was informed from the bar that the eviction commenced without notice at 5am, that it allegedly involved tear gas and rubber bullets, and that a large number of families and children were targeted. However, the court expressly indicated that, in the absence of the Sheriff, it was not possible at that stage to make an independent assessment of what occurred. The court’s conclusion of unlawfulness did not depend on making factual findings on the alleged conduct beyond the undisputed absence of the Sheriff.

A further factual aspect relevant to the court’s determination was that the applicants raised the Sheriff’s absence as a point in their replying affidavit. The municipality accepted that the Sheriff was not present and did not seek to strike out the new matter or file further affidavits to address it.

The text of Molahlehi J’s eviction order was also material. Paragraph 3 of the order contained wording that the municipality argued created ambiguity about who could execute it. Paragraph 4 referred more specifically to execution by the “Sheriff and/or his/her authorised deputy”, which the court regarded as aligning with the statutory framework governing executions.

3. Legal Issues

The central legal question was whether the execution of a PIE eviction order in the absence of the Sheriff was unlawful, having regard in particular to section 4(11) of the PIE Act, which provides that the Sheriff must at all times be present during an eviction, demolition, or removal.

A connected interpretive issue concerned the proper construction of the eviction order itself, specifically whether its terms permitted execution by the municipality and police services without the Sheriff, or whether the order required the Sheriff’s presence.

The municipality advanced an additional contention that reversing the practical consequences of execution would amount to an impermissible assumption of appellate jurisdiction by the urgent court. Although the court ultimately considered it unnecessary to decide this as a determinative issue, it addressed it as part of explaining why the declaration of unlawful execution did not entail setting aside or varying Molahlehi J’s order.

A further issue arose from procedure and pleading, namely whether the court could grant declaratory relief of unlawfulness based on a point raised in reply and not framed as specific relief in the notice of motion or founding papers. This raised a question of application of law to the facts within the constraints of fairness in motion proceedings, rather than a primary dispute of credibility or contested evidence.

4. Court’s Reasoning

The court approached the matter from the standpoint that eviction orders under PIE must be executed in compliance with statutory safeguards. It emphasised the evident purpose of section 4(11) of the PIE Act, namely ensuring that evictions from homes are carried out lawfully, orderly, and humanely. The court linked this purpose to the constitutional requirement that evictions be executed humanely, referencing authority recognising the constitutional implications of eviction processes under section 26 of the Constitution.

Against that backdrop, the court reasoned that the Sheriff’s presence is a structural safeguard. The court noted that, where allegations exist that an eviction may have involved harsh or disorderly conduct, the absence of the Sheriff makes it difficult to later form an independent assessment of events. This observation supported, but did not replace, the court’s main legal point: the Sheriff’s absence meant the eviction was carried out in breach of section 4(11).

Because the Sheriff was not present, the court held that execution occurred ultra vires the PIE Act and was therefore unlawful. The court characterised the eviction, in consequence, as “no more than a spoliation” and treated it on that footing, which underpinned the restorative relief previously granted on 3 March 2023.

On the municipality’s argument that the eviction order’s wording allowed execution without the Sheriff, the court considered the text of the order. While paragraph 3 contained language that the municipality relied upon to suggest alternative executing agents, the court held that paragraph 4 made clear that execution was by the “Sheriff and/or his/her authorised deputy.” The court further grounded this construction in the statutory framework, including section 43(1) of the Superior Courts Act, which places responsibility on the Sheriff to execute court processes directed to the Sheriff and to make return of execution. The court stated that, even if there were ambiguity (which it denied), it would have to be resolved in favour of an interpretation consistent with the statutes the order was meant to enforce.

In addressing the contention that reversing the consequences of execution would amount to exercising appellate power, the court drew a distinction between setting aside or varying the eviction order and declaring that its execution was unlawful. The court stated that it did not set aside, vary, or correct Molahlehi J’s order; it merely declared that the manner of execution on 28 February 2023 was unlawful and that the consequences of those steps had to be reversed. The court added that the eviction order remained valid, and that if the interim suspension were later lifted and a stay refused, the municipality would remain at liberty to execute the eviction order again, but then in compliance with statutory requirements.

On pleading and the fact that the Sheriff’s absence was raised in reply, the court relied on the principle that a court may decide any point arising on the papers, within the bounds of fairness, and may grant consequential relief. The court applied the approach articulated in authority on when new matter in reply may be considered, noting that the material fact was common cause, that the municipality could not plausibly claim surprise about the purpose of the point (restoration of possession), and that the municipality did not seek procedural steps (such as striking out or further affidavits) to meet it. The court also accepted counsel’s submission that the legal significance of the Sheriff’s absence was not known to the applicants when the application was launched.

The court further stated that, particularly in urgent proceedings, imprecision in pleading should not prevent correction of a clear illegality where the material facts are common cause, and it referred to constitutional-court authority endorsing that approach.

5. Outcome and Relief

The court’s reasons culminated in confirmation of its earlier order of 3 March 2023, namely that the execution of the eviction order on 28 February 2023 by the municipality, SAPS, and EMPD in the absence of the Sheriff was unlawful, because it contravened section 4(11) of the PIE Act.

As recorded in the reasons judgment, the court had already ordered that the applicants be restored to the properties from which they had been unlawfully evicted, and had suspended execution of the eviction order pending judgment on the separate application for a stay related to alternative accommodation. The municipality’s leave to appeal application was directed only at the declaration of unlawfulness; the restoration and suspension aspects were not part of what it sought to appeal, as described by the court.

The reasons judgment itself did not determine the reserved stay application, and it did not set out a fresh costs order within the extracted text; it explained only why the declaration of unlawfulness was made.

Cases Cited

Moddder East Squatters and Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd [2004] 3 All SA 169 (SCA).

Robinson v Randfontein Estates GM Co Ltd 1925 AD 173.

Mostert v Firstrand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA).

Maphango v Aengus Lifestyle Properties 2012 (3) SA 531 (CC).

Legislation Cited

Prevention of Illegal Eviction from, and Unlawful Occupation of Land Act 19 of 1998 (section 4(11)).

Constitution of the Republic of South Africa, 1996 (section 26).

Superior Courts Act 10 of 2013 (section 43(1)).

Rules of Court Cited

No specific rules of court were cited in the extracted judgment text.

Held

The court held that the execution of a PIE eviction order without the Sheriff being present, as required by section 4(11) of the PIE Act, is unlawful. The execution on 28 February 2023 was therefore ultra vires the statutory framework and amounted in effect to a form of spoliation, justifying restoration of the occupiers to the properties. The court further held that declaring the execution unlawful did not amount to setting aside or varying the underlying eviction order, and that it was permissible, within the confines of fairness, to decide the point based on common-cause facts even though it was raised in reply.

LEGAL PRINCIPLES

Compliance with section 4(11) of the PIE Act is mandatory: the Sheriff “must at all times be present” during an eviction, demolition, or removal carried out under PIE, and execution in breach of that requirement is unlawful.

Eviction processes must be carried out humanely, consistently with section 26 of the Constitution, and statutory safeguards—such as the Sheriff’s presence—serve to promote lawful, orderly, and humane execution.

A court order should, where reasonably possible, be interpreted consistently with the statutes it is intended to enforce. Where there is any ambiguity in an order’s phrasing, an interpretation consistent with statutory requirements is to be preferred.

Declaring that an order was unlawfully executed does not, without more, constitute setting aside, varying, or correcting the original order, and therefore does not necessarily involve an impermissible exercise of appellate jurisdiction.

In motion proceedings, and especially in urgent matters, a court may decide a point that arises on the papers and grant consequential relief within the bounds of fairness. In exceptional circumstances, a court may have regard to new matter in reply where the material facts are before the court, where unfair prejudice is absent or can be cured, and where disregarding the point would cause waste or perpetuate illegality.