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[2016] ZAGPPHC 80
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Tendaupenyu NO and Another v Phetla and Others (77903/2015) [2016] ZAGPPHC 80 (17 February 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 77903/2015
17/2/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
WESLEY
TENDAUPENYU
N.O
First
Applicant
ROBERTO
JORGE MENDONCA VELOSA
N.O
Second
Applicant
and
SIMON
PHETLA
First
Respondent
SOPHIE
MOGOLA
Second
Respondent
THE
UNKNOWN UNLAWFUL OCCUPIERS OF THE
REMAINING
EXTENT OF PORTION 28 OF THE
FARM
WINDHOEK 222 JS,
MPUMALANGA
Third
Respondent
EMAKHAZENI
LOCAL
MUNICIPALITY
Fourth
Respondent
JUDGMENT
(Reasons
for order)
AC
BASSON. J
[1]
On 1 February 2016 this Court on an unopposed basis granted an order
evicting the first to third respondents from the immovable
property
known as the Remaining Extent of Portion 28 of the Farm Windhoek 222,
Mpumalanga. The attorneys representing the respondents
have requested
reasons for my order.
Background
[2]
On 11 November 2015 Phatudi, J granted an order in terms of which the
applicants were directed to serve this order along with
the notice in
terms of section 4(2) read with section 4(5) of the Prevention of
Illegal Eviction and Unlawful Occupation of Land
Act, 19 of 1998 by
Sheriff on the two addresses stipulated in the order, by affixing a
copy of the order and notices on the two
outer doors of the
unlawfully erected structures situated on the property and by serving
the order and the notice on every adult
person found at or near the
unlawfully erected structures on the property in question. The said
notice was thereafter served by
the sheriff on the son of the first
respondent and on the granddaughter of the second respondent. There
was also personal service
on at least one of the third respondents.
[3]
On 10 December 2015 Ledwaba Mazwai Attorneys came on record as the
attorneys of the first, second and third respondents and
filed a
notice of intention to oppose. Notwithstanding the filing of the
notice of intention to oppose, no papers opposing the
eviction
application were filed.
[4]
On 14 December 2015 Thoba, AJ gave a further order ordering the
respondents to file their respective answering affidavits (if
any)
within 30 court days after the date of this order. The court order
further specifically states that -
"In the event that
the First, Second or Third Respondents do not file their respective
answering affidavits within 30 court
days after the date of this
order, the Applicants will be entitled to obtain the relief sought
against the First, Second and Third
Respondents on an opposed basis."
The
court reserved the costs. A copy of the court order granted on 14
December 2015 was sent to the attorneys on behalf of the respondents
(Ledwaba Mazwai Attorneys).
[5]
Despite personal service of the order of Phatudi, J and despite the
fact that the attorneys on record for the respondents were
advised of
the court order ordering the respondents to serve their opposing
papers, no papers were filed on behalf of the respondent
opposing the
relief sought by the applicants.
[6]
In the absence of the respondent having filed any opposing papers the
applicants were therefore entitled to approach this court
on an
unopposed basis. I should also point out that I am in no doubt that
the respondents have been represented by attorneys since
the issuing
of the order by Phatudi, J on 11 November 2015. This is evident from
the fact that it is the very same attorneys (Ledwaba
Mazwai
Attorneys) that are now requesting reasons for the order dated 1
February 2016 evicting the respondents.
[7]
In respect of the order granted on 1 February 2016 this court had
regard to the founding affidavit filed on behalf of the applicants
and the facts set out therein in support of the order sought by the
applicants.
[8]
I am satisfied that the applicants have made out a proper case for
the relief sought in the Notice of Motion and in the absence
of any
papers opposing the application the order was granted.
____________________________
AC
BASSON JUDGE OF THE HIGH COURT