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[2021] ZAGPJHC 672
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Yellow River Property Investments (Pty) Ltd v March and Others (18/44135) [2021] ZAGPJHC 672 (18 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
Case
no: 18/44135
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
18 AUGUST 2021
In
the matter between:
YELLOW
RIVER PROPERTY INVESTMENTS (PTY) LTD
Applicant
and
VUYO
MARCH
1
st
Respondent
PASCALINHA
MAMONARE
2
nd
Respondent
GEORGE
BALOYI
3
rd
Respondent
ISAAC
MAEYANE
4
th
Respondent
PATRICK
RAMASEDI
5
th
Respondent
BUSISIWE
DINGA
6
th
Respondent
TUMISANG
PEME
7
th
Respondent
NTOMBIKAYISE
MASUKU
8
TH
Respondent
NTOKOZO
MASUKU
9
th
Respondent
MARIA
SEGONA
10
th
Respondent
ZODWA
RAMASEDI
11
th
Respondent
KGABOITSILE
THLALATSI
12
th
Respondent
KOKESTSO
MATHIBE
13
th
Respondent
CITY
OF JOHANNESBURG METROPOLITAN
14
th
Respondent
MUNICIPALITY
THE
UNLAWFUL OCCUPIERS OF THE OLD HAMBURG HOTEL
15
th
Respondent
JUDGMENT
SLON AJ
1.
The applicant seeks the eviction of the 1
st
to 13
th
and the 15
th
respondents from a property known as the Old Hamburg Hotel situate at
2625 Albertina Sisulu Road, Hamburg, Florida, Province of
Gauteng
(‘the property’), and ancillary relief.
2.
This matter has been entertained on several
prior occasions before this Court. On two of these occasions,
judgments were handed
down; on the other occasions, as far as I can
make out, the Court’s attention was confined to procedural
matters and various
orders were made within that context. The second
such judgment was handed down on 12 March 2021 by Engelbrecht AJ. She
reviewed
the facts before her and the Court’s obligations under
the applicable legislative requirements and judicial authorities,
more specifically, the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act No 19 of 1998 (‘the PIE Act’),
and granted a detailed order giving directions for the delivery of
documents by the 14
th
respondent (‘the municipality’) and by the respondents
such as to enable this Court to grant an order that would be
just and
equitable.
3.
One of the procedural orders concerned the
joinder of the fifteenth respondent on 22 January 2020 by Senyatsi J.
That respondent,
as its citation suggests, is in fact a group of
occupiers who were joined to this application when I believe it
became apparent
that the 1
st
to 13
th
respondents were not the only persons in occupation of the property.
4.
Since the second judgment was handed down,
some of the respondents delivered their ‘personal
circumstances’ affidavits
dealt with below, and the
municipality, in the person of Mr Lusenga, very shortly before the
hearing, filed a detailed report.
All of these documents were
unfortunately brought to my attention very belatedly on the Caselines
system for various reasons, but
I propose to ignore that fact and to
decide the merits without further delay as best I can on all the
available material before
me. It seems clear, on the whole, that the
respondents have had a sufficient opportunity to state their case,
despite all the obstacles.
All the parties rightly crave finality,
this application having been instituted almost three years ago in
2018.
5.
The crux of the order of Engelbrecht AJ (of
12 March 2021), to which I shall presently return, was to lay down
certain requirements
for the delivery by the respondents of their
‘personal circumstances’ affidavits as follows:
‘
45.2
the Respondents are directed to serve on the applicant’s
attorneys and file with this court, within 15 days of this order,
affidavits deposed to separately by at least one person per unit -
45.2.1. identifying
the unit of the Property in which the person resides;
45.2.2. confirming
whether the persons residing in the unit commenced occupation prior
to or after November 2017;
45.2.3. confirming
whether occupation of the unit was in consequence of a rental
agreement concluded with the erstwhile owner of
the Property and, if
not, what the basis for occupation of the unit is;
45.2.4. setting out
the names and ages of all persons residing in the particular unit on
the Property;
45.2.5. in the case of
any minor children residing in the unit on the Property, providing
details of such children’s enrolment
in school (including the
school/s where the minor children are enrolled and the grades in
which they are enrolled);
45.2.6. in the case of
any occupant of a unit suffering from any disability, setting out in
full the nature of the disability (supported
by documentation);
45.2.7. in the case of
elderly persons occupying a unit, asserting that fact (identifying
the age of the occupant/s that are said
to be elderly);
45.2.8. providing
details of permanent and/or temporary employment, if any, of all
occupants of the unit on the Property that are
not of school-going
age over the past 12 months (including identity of the employer and
income received);
45.2.9. providing
details of any income and/or monies received by any person residing
on the Property other than as a consequence
of temporary or permanent
employment (for example, grants); and
45.2.10. setting out
in full what alternatives to accommodation, if any, are or may be
available to the occupants of the Property
in the event that an order
for eviction is granted, including (i) with family members or (ii)
taking into account properties available
for rental in the vicinity
of the Property at rates similar to the rental rates applicable at
the Property prior to the cancellation,
taking into account
inflationary increases.
45.3. The Respondents
are directed to attach to the affidavit to be filed:
45.3.1. copies of the
birth certificates of all minor children residing on the Property;
45.3.2. copies of the
identity documents of all other persons residing on the Property;
45.3.3. any documents
proving enrolment of the minor children at school, including the date
of enrolment and the period of such
enrolment; and
45.3.4. any documents
that the Respondents may wish to rely on to illustrate the financial
position of those residing on the Property.
45.4.
If any of the documents are not provided, the affidavit must contain
an explanation as to why the documents cannot be so provided.
’
6.
The respondents appear in person, and, but
for a short period in mid-2018, seem not to have had the benefit of
legal representation.
The lack thereof is clear from their papers. Mr
Ramasedi, the fifth respondent, appeared before me at the hearing
and, in answer
to a question from me, advised me that he was
authorized to speak for the respondents in general. Although the
hearing was by way
of video conference, and only three or four other
persons (who were probably from amongst the number of other
respondents) were
visible to me in the background, Mr Ramasedi seemed
to have been assisted in his address to me by another person or
persons sitting
close to him but who were not visible to me on
camera. I have little alternative but to accept his word: at least I
have no good
reason to doubt it. I see from one of the earlier
judgments that he has played this role at least once before.
7.
The applicant was ably represented by Ms
Matome. Mr Lusenga, who is employed by the municipality and appears
to have some considerable
experience in matters of this kind,
represented the municipality. I am grateful to him for his
assistance.
8.
On account of the environment in which this
application is to be determined, I permitted the respondents a
generous latitude in
their submissions, many of which revealed facts
which do not appear on the papers. The applicant, in my view, was not
prejudiced
thereby. I understand that the duty of a Court in these
circumstances, although exercising care not descend too far into the
investigative
arena, entails going beyond the ordinary strictures
under which evidence is placed before it so as to ensure that justice
can properly
be done; and this, it seems to me, is even more so the
case where the respondents are legally unrepresented.
9.
Mr Ramasedi told me that there are some
fifty separate units in the property; he could not specify the number
of persons residing
in the property as a whole, but from what he did
say, I would estimate that the number is between 200 and 250,
possibly even more.
He also advised me that a large proportion of the
occupants are foreign nationals. I did not consider it necessary to
call for
more exact evidence of these matters since the affidavits
delivered by the respondents pursuant to the order of Engelbrecht AJ
were deposed to as recently as March 2021. It would appear that the
foreign nationals comprise the bulk of the persons making up
the 15
th
respondent joined in January 2020 as set out above.
10.
It does not assist me that the applicant’s
papers are, on account of the long delays in the matter, in some
respects out of
date as regards these and others matters. The last
document filed by the applicant was a supplementary affidavit dated
21 July
2021 responding only to the municipality’s report, and
in which none of the facts and circumstances deposed to in the
founding
affidavit, dated 20 November 2018, was sought to be
up-dated. The result is that I am somewhat in the dark as to the
actual current
position prevailing at the property. I considered
calling for further evidence in that regard, but decided against it
so as to
avoid further unnecessary and costly delay. There is almost
always an unavoidable a gap between the circumstances deposed to on
the papers and the reality on the ground, given the delay between the
filing of the papers and the hearing of the matter.
11.
Before dealing with the respondents’
position, a word need be said about the applicant’s approach.
12.
The applicant does not place before the
Court the leases under which it claims that the respondents, who are
(or were) lawful tenants,
are in occupation of the property. It avers
that:
12.1.
written leases were concluded with a former
owner of the property from which the applicant acquired the property
in 2014;
12.2.
the leases could not be found;
12.3.
the leases provided that the tenants would
(by implication in addition to the rental) ‘pay for all
electricity, water and
sanitation charges in regard to services
supplied and/or consumed by them at the Property’.
13.
A schedule of rentals (of round numbers
roughly between R1 500 and R2 200 per month) is annexed to the
founding affidavit showing
alleged rental payments from January to
December 2017. It evidences, on the whole, a rather erratic pattern
of rental payments
by reference not to the names of any tenants but
to some fifty unit numbers. There is no mention of any extra
liability for or
payment of any of the municipal services referred to
above.
14.
I got the clear impression from the
applicant’s papers, and during the hearing, that the
applicant’s rental enterprise
in respect of the property is not
truly based on the collection of specific amounts of rentals (or
service reimbursements) from
specific tenants in terms of actual
lease agreements with them. It seems to me that the applicant
considers its interest in the
rental enterprise to consist of a right
to receive a floating or varying lump sum of monthly rentals, which
it considers on the
whole to be satisfactory every month, regardless
of the identity of the payors or debtors, of any actual leases which
may or may
not exist, and of the actual amount in rands and cents.
The success of the enterprise depends on whether the floating lump
sum
receipt is sufficient to make the enterprise economically viable
for the applicant. To speak, therefore, of the liability of
individual,
specified tenants duly bound by leases to the applicant
for the payment of specifically agreed monthly rentals is something
of
a fiction. So is the notion that the tenants were charged
specifically for any municipal services. Ms Matome was unable to
point
to any facts to contravene this perception.
15.
It is underlined by the fact that the real
trigger for these proceedings appears, on the applicant’s own
version, to have
been not the non-payment of rentals, but
circumstances which otherwise rendered, or threatened to render, the
rental enterprise
unprofitable for the applicant.
16.
It would appear from what I was advised by
Mr Ramasedi (and some of the respondent’s affidavits confirm
this) that the core
of the original tenants cited as the 1
st
to 13
th
respondents have been in occupation of the property since
approximately 2012. The applicant does not give any better detail in
this regard.
17.
The first letter relied upon by the
applicants to the tenants of the property is dated 18 January 2018
(the reference therein to
‘2017’ is clearly an error’)
and was written by the deponent of the applicant’s set of
affidavits, Mr Naeem
Karim, who says that he is the applicant’s
‘manager’, and, from the letterhead employed, appears to
carry on
business as a letting agent known as ‘DMC Property
Letting’ in Klerksdorp (‘the first letter’).
18.
It makes for rather strange reading. It
advises the tenants that the applicant had been engaged in a ‘long
battle’ with
the municipality over municipal charges on the
property and that ‘the current water and electricity charges
exceed the monthly
rent collected’ because of the application
of a commercial (presumably rather than a residential) tariff and the
possibility
of underground leaks. The letter advises the tenants to
find alternative accommodation because of the prospect of such a
battle
‘before [the municipality] will provide us with water
and electricity.’ From this it appears that the water and
electricity
must have been cut off at that stage, or shortly
thereafter.
19.
The respondents did not take up this
invitation.
20.
A second letter then came from the
applicant’s attorneys on 20 February 2018 (‘the second
lettter’). It is addressed
to ‘the tenants and occupiers’
of the property. It refers in one paragraph to the ‘request’
to vacate the
property (in the first letter) and then immediately
states in the next: ‘Despite demand, you have failed, neglected
and/or
refused to vacate the property.’ It continues that such
‘demand’ is annexed to the letter, but there is no such
annexure on the papers, and I can only assume that that ‘demand’
is in fact the first letter. It further informs the
tenants of the
applicant’s ‘intention to cancel the Agreement’
(defined thus in the singular as the lease agreement)
and gives the
tenants notice ‘to find alternative accommodation and vacate
the property by no later than 31 March 2018, failing
which [the
applicant] will have no option but to approach the Roodepoort
Magistrates Court to obtain an order for your eviction.’
21.
One notes from this letter that the
‘request’ has apparently become a ‘demand’,
and that the threat to cancel
the leases and evict the tenants is
contingent on a date for the vacation of the property some five weeks
later. No mention of
the non-payment of rentals was made.
22.
The respondents declined to accede to the
demand, and there is no evidence that the applicant acted on its
threats. A skirmish then
followed in correspondence between the
applicant’s attorneys and the respondents’ then attorney
concerning the applicants’
alleged attempts to remove sinks and
geysers from some of the unoccupied units ‘for fear that they
may be stolen’.
This was stated in a third letter from the
applicants’ attorneys dated 18 May 2018 (‘the third
letter’) in which
the applicant claimed that the respondents
attacked the applicant’s staff, believing it to have been
instructed to evict
the tenants, and stole some of the geysers. The
applicant alleged that this conduct was in breach of the leases and
threatened
to claim damages. It also repeated its intention to
proceed with eviction proceedings which it said, ‘still
stands’.
Once again, no mention of the non-payment of rentals
was made.
23.
Some five months later, on 20 October 2018,
a further letter was addressed by the applicant’s attorneys to
the respondents’
then attorney, accusing the respondents of a
‘rent boycott’, other unlawful conduct, such as the
letting of units to
third parties and collecting rentals therefor,
and ‘hi-jacking’ the property (‘the fourth
letter’). Such
conduct, averred the applicant, amounted to a
repudiation of the leases which it cancelled, and demanded that the
tenants vacate
the property ‘forthwith’ under threat of
eviction proceedings.
24.
This was the first mention by the applicant
of the alleged non-payment of rentals.
25.
Some five weeks later, these proceedings
were launched on 26 November 2018.
26.
The following inferences are, in my view,
clear from the aforegoing correspondence:
26.1.
The applicant’s quarrel with the
municipality over the applicable tariff for municipal services, and
its resultant claim that
the rental enterprise in respect of the
property was unprofitable, was its real motivation for a request to
the tenants to vacate.
It had nothing to do with unpaid rentals. The
legal status of the request was questionable since the leases were
not terminated
but remained
in esse
.
The applicant’s expressed difficulties had nothing to do with
the obligations of the tenants. As a property owner and landlord,
on
the applicant’s own version, it had a duty to supply the
tenants with municipal services, for which the consumption of
which
it states that it was entitled to charge the tenants, whether or not
in fact it did or did not do so. There was no obligation
upon the
tenants to accede to the request to vacate.
26.2.
The more heavy handed second letter wrongly
sought to convert the request to vacate the property into a legally
justified demand,
which it was not. The leases were still in
existence.
26.3.
The approach in the third letter merely
compounded the position. The threat to institute eviction proceedings
in that letter had
nothing to do with either the alleged misconduct
or the non-payment of rentals.
26.4.
Only the fourth letter, purporting to
cancel the leases, sought to justify such cancellation by reference
to the non-payment of
rentals. It then gave the tenants no time at
all to vacate the property, and eviction proceedings followed shortly
thereafter.
26.5.
The notice period permitted in the fourth
letter for the vacation of the property ‘forthwith’ is
certainly unreasonable
under the ordinary common law, taking into
account that the respondents (or at least some of them) had been in
occupation then
of the property for some six years.
27.
The overall conduct of the applicant was,
it seems to me, unfair to and even manipulative of the respondents.
At various levels,
the applicant made a nonsense of the ordinary
legal position. This must have put the respondents in a most insecure
and uncertain
position as regards their continued tenure on the
property without clear boundaries as to how they might have expected
the applicant
to act. Against that is the applicant’s
submission that the first letter was a
bona
fide
attempt to ‘share’ its
problem with the respondents in a manner that did not insist on their
eviction. Even if that
was so, as I have said, it was not the
respondents’ problem that the rental enterprise on the property
may have become unprofitable
to the applicant. The latter’s
obligations were to provide unencumbered occupation and services to
its tenants. There is
simply no basis to make threats of eviction
(which emerged in the second letter and escalated thereafter) against
the tenants for
this reason, especially while the leases were still
in esse
.
That the situation may have deteriorated from then onwards into
something of a chaos at the property, even if there is a grain
of
truth in the applicant’s contentions in this regard, is not
wholly, if at all, as a result of any fault on the part of
the
respondents.
28.
Turning now to the respondents’ case,
the undisputed and most significant aspect thereof is that no rental
was paid by any
of the respondents after December 2017, and none has
been paid to date within the intervening period of some three years
and eight
months.
29.
The original failure to pay rentals seems
to have been motivated by the disconnection of the electricity to the
property which appears
to have occurred at some stage shortly after
the first letter was sent, and possibly even before, since Mr
Ramasedi suggested that
the supply of electricity to the property had
been an ongoing problem for a long time; but the history of that
dispute before me
is simply too vague to be taken into any account.
The disconnection of the electricity, followed by the applicant’s
initial
intimation and its then its demand, as provocative as it was
legally unfounded, that the property should be vacated could only
have been a source of considerable disquiet and frustration to the
respondents, all of which is manifestly understandable on their
part.
30.
Be that as it may, however, there is no
evidence that a single tenant or occupant has sought to approach the
applicant to pay even
a portion of the rental over the intervening
period between the institution of proceedings and the present. Some
efforts were apparently
made by both parties to resolve the matter by
reference to the Rental Housing Tribunal, but these came to nought.
31.
The reasons given for the non-payment of
rentals, both in the answering affidavit and in response to my
enquiries from Mr Ramasedi
at the hearing, were as follows:
31.1.
Funds which would otherwise have been paid
in rental had to be diverted to pay the respondents’ attorney.
These funds, Mr
Ramasedi, said, amounted to some R39 000 in 2018.
That is, on anyone’s version, a drop in the ocean compared to
the annual
rentals leviable on the property, even within the context
of the applicant’s approach thereto, referred to above.
31.2.
The banking account into which the tenants
were required to deposit their rentals kept on changing. When pressed
for detail in this
regard, Mr Ramasedi told me that this had been the
case in 2017-2018. Clearly this problem had no bearing on the period
since then.
31.3.
There was some mention of the installation
of pre-paid electricity meters in individual flats on the property,
which may or not
have contributed to the failure to pay rental, but
this was very vague, and, in any event, pre-dated the commencement of
the dispute
in 2017.
32.
None of these supposed reasons can hold any
sway: the respondents were clearly clutching at straws. The simple
fact is that the
respondents have not paid any rental since the end
of 2017, have been living rent free on the property since then, and
cannot justify
the position. There is nothing in their affidavits to
suggest that something occurred at the end of 2017 which created a
sudden
inability to pay rental, such as a material change in their
financial circumstances. I cannot see that the disconnection of the
supply of electricity or water to the property, as serious as it was,
could have justified such a prolonged failure to pay rental
or even a
portion thereof, given the applicant’s alleged predicament
which was (at least in the first letter) communicated
to the
respondents in an apparently friendly fashion.
33.
In
accordance with several authorities, and notably
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
,
[1]
I
am required first to make a finding as to whether or not it would be
just and equitable in all the circumstances, under the provisions
of
section 4 of the PIE Act, to grant an eviction order. If so, the
question then arises of what provisions should be put in place
to
protect the respondents’ position in relation to that order
under sections 4(7) and following. The judgment of Engelbrecht
AJ
sets out the legislative framework within which these proceedings are
to be decided. I do not propose to repeat the principles
here, and am
in respectful agreement with her analysis.
34.
There is little doubt in my mind, as I have
said, that the applicant has conducted itself in a manner which was
unfair to the respondents.
That approach appears to have permitted
the property to descend into a state of disorder, which was
apparently exacerbated thereafter
while this matter was shuffling
slowly through the Court system. By the same token there is no
evidence before me of what steps
the applicant itself might have
taken to prevent the state of disorder which now prevails, save for
the episode alleged to have
occurred in respect of some of the
geysers and sinks. The applicant has itself to blame for a large
measure of its alleged troubles.
35.
However, even if the reason for the
eviction was, before October 2018 when the leases were cancelled,
apparently unrelated to the
non-payment of rentals, the position
thereafter was clear: there was no payment of rentals, or even an
attempt to pay whatever
rentals the respondents may have considered
themselves obliged to pay. That is, in my view, the overriding
consideration in all
the circumstances. Whether or not the failure to
pay rental comprised in all its essentials a ‘rent boycott’,
as the
applicant would have it, is not necessary to decide; there are
indications that that is the case.
36.
On a conspectus of all of these facts,
therefore, I find that an eviction order is just and equitable.
37.
I now turn to the respondents’
‘personal circumstances’ affidavits. It is clear that
only a very small proportion
of the respondents took it upon
themselves to act in response to the order of Engelbrecht AJ. As to
the fifteenth respondent, there
are very few facts before me: I have
perused the Sheriff’s return of service of the papers on them,
and, terse as it is,
I cannot reasonably go behind that, although one
cannot put one’s head on a block that they all received service
of the papers
and would have been aware of the hearing. Any purpose
which would be served by postponing this application so as to make
certain
of their position is, I believe, outweighed by the need for
finality. In my view, living in close residential contact with the
other respondents in an environment long fraught with the
uncertainties as a result of this application, they would almost
certainly
have heard of the need to deliver ‘personal
circumstances’ affidavits or at least to appear at the hearing;
and had
they not been content with Mr Ramasedi’s position as
spokesman, they would in all probability have appeared to say so.
There
is nothing to suggest that the ‘core’ respondents
might have done anything to prevent them from having their say,
although,
admittedly, truth in litigation has not infrequently been
known to be stranger than fiction.
38.
I have paid careful attention to the
contents of the ‘personal circumstances’ affidavits and
given consideration thereto
against the numerous and detailed
provisions of the PIE Act. They do not give much of the required
detail and are especially but
not only lacking in the information
sought in paragraph 45.2.10 of the order quoted above. None of them
evidences that any of those
who filed papers are so disabled, so
elderly or so destitute that they are likely to be compelled
pitifully to eke out a survival
on the breadline; or that they
required emergency shelter of the type offered to truly deserving
cases by the municipality at the
cost of the public purse. There is
no material inference to be drawn that they would not, given a
reasonable opportunity, be able
to find alternative accommodation.
According to Mr Ramasedi, which is confirmed by some of the
respondents’ affidavits, the
flats on the property are occupied
by families of upwards of two or three members. Most of them are
either employed or receive
state welfare grants. Some are learners or
students.
39.
In his report, Mr Lusenga takes the view
that none of the respondents who took the trouble to comply with the
order is a destitute
person lacking the capacity to find alternative
accommodation on his or her own. He opines that the question of
homelessness does
not therefore arise and that there is thus no need
for this Court to impose any obligations on the municipality in
respect of the
supply of temporary emergency accommodation (or
‘TEA’). Such accommodation is for persons who, in the
face of homelessness,
have a dire need to be thus accommodated. The
respondents do not, in my view, fall into this category of persons.
40.
It
is for the respondents, having been permitted a reasonable
opportunity to do so, to persuade the Court of the necessity for the
local authority to be engaged such as to place a burden upon it under
its Constitutional obligation.
[2]
41.
I find that they have indeed been given
such an opportunity but have not discharged this onus; and that there
are no seriously disturbing
or disquieting features to negative the
inference that they would be able on the whole to find alternative
accommodation similar
to the accommodation, and within the same
rental bracket, as they now occupy. Some of them, according to Mr
Ramasedi, are cognizant
of their capacities to apply for other forms
of housing in terms of the municipality’s RDP and other housing
schemes. I agree
with Mr Lusenga’s views as summarised above.
42.
I find, accordingly, that there is no
proper basis to impose any obligations in this regard on the
municipality by means of any
order/s to that effect.
43.
Finally, the regulations promulgated under
the
Disaster Management Act No 57 of 2002
require consideration. The
crux thereof appears at
section 37
of the regulations promulgated on
25 July 2021 in the Government Gazette of that date (No 44895 R651).
Under
section 37(2)
, a Court is empowered to suspend or stay an order
of eviction until the termination of the national state of disaster
unless it
is of the opinion that it is not just and equitable to do
so, having regard
inter alia
to
nine listed factors.
44.
There is no evidence before me that any of
the respondents are or would be particularly hamstrung by the
national state of disaster
or the Covid-19 crisis as a whole, but it
would, in my view, be fair and equitable to take into account that
these matters may
well affect them in one way or another, even as may
be reasonably unpredictable at this point. Since I propose in any
event to
stay the order of eviction under the broad and equitable
discretion which I am obliged to exercise under the PIE Act, and
since
it is virtually impossible to say when the Covid-19 crisis will
come to an end (even if the current regulations are limited to a
specific currency but subject to renewal), I do not think that any
additional measures are required to be considered or applied
under
these regulations.
45.
The applicant submitted in its
supplementary affidavit in response to Mr Lusenga’s report that
that a period of one year would
be appropriate. In argument, Ms
Matome suggested that a stay of six months would be appropriate. Had
there been any reason to impose
any obligations on the municipality
in this regard, a minimum stay of three years was sought by Mr
Lusenga in order to accommodate
backlogs and delays peculiar to the
municipality. The last question, as I have said, does not arise.
46.
Taking into account the facts that:
46.1.
the core of the original tenants has been
in occupation since 2012;
46.2.
the respondents have to date had the
benefit of rent-free occupation for well over three years;
46.3.
I have found that the respondents largely
have the means and capacity to find suitable alternative
accommodation themselves, and
do not fall into the category of
prospective homelessness which would trigger the municipality’s
engagement in the order;
46.4.
the applicant’s conduct emerging from
the papers before me;
46.5.
the apparent state of the property at
present,
I hold that a just and
equitable date for the vacation of the property would be 30 June 2022
(
viz
some 10½ months hence) and that the date upon
which the eviction order may be executed be stayed to 1 July 2022.
47.
In all the circumstances, furthermore, and
having given the question all due consideration, I do not believe
that a costs order
against the respondents would be appropriate.
48.
I accordingly make the following order:
(1)
The 1
st
to 13
th
and the 15
th
respondents (‘the respondents’), and all persons who
reside on the property, known as the Old Hamburg Hotel situate
at
2625 Albertina Sisulu Road, Hamburg, Florida, Gauteng (‘the
property’), through or under the authority of the respondents,
are evicted from the property, subject to the following:
(a)
the respondents must vacate the property by no later than 30 June
2022;
(b)
the execution of the aforegoing order of
eviction is stayed until 1 July 2022.
(2)
In the event that the respondents (or any
of them, or any other person subject to paragraph (1) of this order)
fail to comply with
paragraph (1)(a) of this order, the Sheriff of
this Court is authorized to evict such respondent or other person
from the property
in terms of paragraph (1)(b) of this order, if
necessary with the lawful assistance of any other person or entity
duly authorized
by the Sheriff or otherwise by law to assist him or
her, provided that the Sheriff must at all times be present during
such eviction;
(3)
Each party shall pay its, his or her own
costs of this application.
B M SLON
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
This
judgment was prepared and authored by Acting Judge Slon. It is handed
down electronically by circulation to the parties or
their legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
HEARD
ON:
5 August 2021
DECIDED
ON:
18 August 2021
HANDED
DOWN ON:
19 August 2021
For
the Applicant:
Ms M Matome
Instructed
by
Schindlers Attorneys
Respondents:
In person
[1]
2012
(6) SA 294 (SCA)
[2]
The
authorities are amply set out in the judgment of Engelbrecht AJ. See
also
Ives
v Rajah
2012 (2) SA 167
(WCC) and
Transnet
(Pty) Ltd v Zaaiman & Others
[2008] ZAECHC 17