Brief Summary

Eviction — Urgent application for stay of eviction — Applicant sought to stay eviction pending review of prior court order — Court found self-created urgency and lack of locus standi — Eviction application based on expiry of lease and unlawful occupation — Review application not affecting eviction proceedings — Urgency not established, application dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

This was an urgent application in the Gauteng Division, Pretoria, in which the applicant, Ms Constance Mutale, sought a stay of eviction proceedings pending in the Magistrates’ Court for the district of Pretoria. The eviction application had been launched by the first respondent (P[....], referred to in the judgment as the “PCC”) and was set down for hearing on 10 October 2022 under case number 17906/2022.

The applicant’s urgent application was brought together with, and expressly linked to, a review application instituted simultaneously in the High Court. The review was directed at an earlier magistrates’ court order granted under case number 17028/2021, referred to as the “Dangalazana order”, which embodied a settlement agreement between the PCC and the second respondent, Mr Michael Botha Potgieter.

Beyond the stay, the applicant also sought further relief aimed at an investigation into the condition of the premises where she resided and an interim determination by the court of a fixed monthly rental until the premises were repaired. The third respondent was the South African Human Rights Commission (SAHRC), cited in connection with the requested investigation-related relief.

The general subject-matter of the dispute concerned the relationship between (a) a prior settlement order relating to a lease and rental arrears, and (b) subsequent eviction proceedings brought under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), together with the applicant’s attempt to prevent the eviction from proceeding before the review was determined.

Material Facts

The court treated it as common cause that there were multiple legal proceedings involving the PCC, Mr Potgieter, and/or the applicant, arising from the occupation of a cottage on the PCC’s property. The initial litigation arose from rental arrears attributable to Mr Potgieter under a lease concluded between him and the PCC.

It was also not in dispute that the Dangalazana order (granted on 14 February 2022) was made by agreement between the PCC and Mr Potgieter. The order recorded, among other things, that the respondent (Mr Potgieter) and other occupiers would vacate the premises by 31 March 2022, that an amount of R154,477.43 (being outstanding amounts calculated up to 31 January 2022) would be paid in instalments, that further amounts for February and March 2022 would be provided and paid, that interest would run from 21 June 2021, and that costs would be paid.

It was further accepted that the eviction application (case number 17906/2022) was issued on 19 May 2022 and was to be heard on 10 October 2022. The judgment recorded that eviction proceedings had followed in April 2022 and, after postponements, were ultimately set down for hearing on the October date.

The applicant’s position was that she had been residing on the property since 2017, and that the review of the Dangalazana order affected her right of occupation and implicated her constitutional right to housing. The applicant alleged, as part of the issues she sought to advance in the review, that the arrears position reflected in the settlement was incorrect, contending that only R8,271.46 was owed in February 2022 and that the outstanding amount was settled thereafter. The applicant also contended that Mr Potgieter had entered into the settlement under duress and that she had not been consulted in the settlement negotiations.

The court noted, as part of the chronology, that Mr Potgieter later negotiated again with the PCC shortly before an earlier eviction hearing date and undertook to vacate on 9 September 2022. The court proceeded on the basis that Mr Potgieter had eventually vacated, leaving the applicant in occupation. Only around 21 September 2022 did the applicant directly approach the PCC asserting her residence since 2017, offering to pay a reduced rental of R500.00 (on the basis that repairs were needed), and requesting that the settlement agreement be abandoned because she had not been consulted and Mr Potgieter allegedly lacked mandate to settle on her behalf. The PCC rejected the proposal and informed her that she was illegally occupying the premises and should vacate.

In relation to the requested investigation, the court recorded that the SAHRC had directed the applicant to ventilate the matter before the Gauteng Rental Housing Tribunal, and the judgment also noted that a complaint (instituted by Mr Potgieter in August 2022) concerning the conditions of the cottage had been dismissed by the Tribunal.

Legal Issues

The urgent application raised two primary legal questions.

The first was whether the matter met the requirements for urgency under Uniform Rule 6(12), given the PCC’s contention that urgency was self-created because the applicant had known about the Dangalazana order and the eviction proceedings for months but only instituted the review and stay application shortly before the eviction hearing.

The second, and central, issue on the merits was whether the review proceedings concerning the Dangalazana order had to be determined first because their outcome would have a bearing on the pending eviction application, thereby justifying a stay of the eviction proceedings. This was primarily a question involving the application of legal principles (concerning stays, the relationship between separate proceedings, and the nature of PIE eviction enquiries) to the procedural and factual setting before the court.

Additional issues arose concerning the applicant’s further relief, namely whether the court should direct an investigation by the SAHRC (or an ombudsman) into the premises and whether the court could impose a fixed interim rental, but these were ancillary to the stay and were disposed of on the basis explained in the judgment.

Court’s Reasoning

On urgency, the PCC argued that the applicant had been aware since at least April 2022 of the Dangalazana order and had long known of the eviction proceedings, and that bringing the application at the last hour prejudiced the PCC by leaving it less than 48 hours to file opposing papers. The PCC relied on authority emphasising that urgent-court procedures are frequently abused and that self-created urgency should not ordinarily ground urgent enrolment.

The court nevertheless held that, despite the delay, the matter warranted urgent attention because the eviction hearing was imminent. In reaching this conclusion, the court took account of the applicant’s explanation and the broader sequence of litigation steps that had occurred since mid-2022. The court relied on authority indicating that delay is not, by itself, decisive against urgency; rather, a court must consider the full circumstances and the explanation given.

On the merits, the court identified the narrow question it was required to decide as whether the outcome of the review application would have a bearing on the eviction proceedings such that a stay was justified. The PCC contended that the eviction application was brought under section 4(1) and section 6(1) of PIE and was not premised on the Dangalazana order, and that the eviction application rested on the expiry of the lease and the alleged unlawful occupation of the premises. The PCC further raised that the applicant had not been a party to the Dangalazana proceedings and that the settlement order was not enforced against her, which it said impacted her standing.

The court examined the Dangalazana order and emphasised that the underlying action and settlement concerned the lease relationship between the PCC and Mr Potgieter and the failure to pay outstanding rentals, with Mr Potgieter being the party responsible for rental payments. Against that background, the court concluded that the issues the applicant wished to raise on review—such as whether the settlement was bona fide, questions of maintenance, consultation, and whether rentals were paid—could be ventilated in the review, but did not determine the question whether eviction proceedings under PIE should proceed.

The court reasoned that the eviction application, initiated after the settlement order, could be dealt with independently in terms of PIE. It stated that the court hearing the eviction would, on the facts before it, be required to determine whether the applicant was a lawful occupier and whether she had made out a case to remain in occupation. It further noted that to the extent the applicant sought to rely on her constitutional right to housing or to challenge the termination of occupation, those were issues she remained free to raise in the eviction proceedings themselves.

In evaluating the applicant’s position in context, the court placed weight on the fact that the negotiations with the PCC were conducted by Mr Potgieter, who was the contracting party under the lease and who negotiated occupation on their behalf while both resided there. The court observed that only once Mr Potgieter vacated in September 2022 did the applicant approach the PCC directly concerning her independent continued occupation. Against this factual and procedural background, the court held that the review of the Dangalazana order had no bearing on whether the eviction proceedings should be stayed.

As to the additional relief involving the SAHRC, the court held that the issue was already resolved because the SAHRC had directed the applicant to pursue the matter before the Rental Housing Tribunal. Regarding the request that the High Court impose a fixed monthly rental, the court held that it was not the appropriate forum to determine the rental amount in the manner sought.

On costs, the court applied the general principle that costs follow the result and held that, because the applicant was unsuccessful, she was liable for the costs of the application.

Outcome and Relief

The court dismissed the urgent application in its entirety. The requested stay of the eviction proceedings pending the determination of the review was refused, and the court did not grant the investigation-related relief or the request to impose an interim fixed rental.

The applicant was ordered to pay the costs of the application, with such costs to be taxed.

Cases Cited

In several matters on the urgent roll, [2012] ZAGPJHC 165; 2013 (1) SA 549 (GSJ).

Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W).

East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others 11/33767 [2011] ZAGPJHC 196 (23 September 2011).

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (sections 4(1) and 6(1)).

Rules of Court Cited

Uniform Rule 6(12).

Held

The High Court held that, although the applicant delayed in instituting the review and urgent proceedings, the imminent hearing of the eviction application justified urgent enrolment on the facts and explanation presented.

On the merits, the court held that the applicant failed to establish that the review of the Dangalazana order would have a bearing on, or justify staying, the eviction proceedings brought under PIE. The eviction application was capable of being determined independently under PIE, including the question whether the applicant was a lawful occupier and whether she could remain in occupation.

The court further held that the SAHRC-related relief had effectively been overtaken because the SAHRC had directed the applicant to the Rental Housing Tribunal, and that the High Court was not the appropriate forum to fix an interim rental amount in the manner sought.

LEGAL PRINCIPLES

Urgency under Uniform Rule 6(12) is assessed contextually; delay in instituting proceedings is not in itself decisive against urgency, and a court must consider the circumstances and the explanation advanced, particularly where imminent proceedings may materially affect a party.

A party seeking a stay of proceedings must demonstrate that the pending proceedings sought to be stayed are sufficiently connected to, and materially affected by, the outcome of the other proceedings relied upon. Where eviction proceedings are brought under PIE, they may be adjudicated on their own footing, including determinations concerning lawful occupation and whether continued occupation should be permitted on the facts placed before the eviction court.

Where a statutory or institutional process has been identified as the appropriate forum for a complaint (as where the SAHRC directs a complainant to the Rental Housing Tribunal), a court may treat the request for direct court-ordered intervention as not warranting the relief sought in the urgent application.

Mutale v P and Others (028197/2022) [2022] ZAGPPHC 748 (7 October 2022)