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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT )

CASE NO. EL 748/2021
Of Interest

In the matter between:

THE TRUSTEES FOR THE TIME BEING
OF THE EAST LONDON HEBREW
CONGREGATION APPLICANT

and

CHANOCH GALPERIN FIRST RESPONDENT

SARA RAZELLE GALPERIN SECOND RESPONDENT

THE BUFFALO CITY METROPOLITAN
MUNICIPALITY THIRD RESPONDENT


JUDGMENT

Rugunanan J

[1] Sequel to an order in a judgment of this Court delivered on 13 May 2022 (per
Hartle J), the applicant, in vindication of its right of ownership, seeks the eviction of
the first and second respondents (the respondents) from its fixed residential property
situated at […] O[...] Road, Selborne, East London (the property) . The eviction of the
respondents is sought under and in terms of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (the Act).

[2] The respondents oppose the re lief claimed by the applicant, contending that it
would not be just and equitable . Alternatively, in the event that the relief is granted ,
they contend that a just and equitable date on which they be ordered to vacate the
property would be 31 May 2024, it being the date on which the ir employment
contract , concluded o n 1 June 2016 with the applicant, the East London
Hebrew Congregation (the C ongregation) , would have terminated by effluxion of
time1 and by implication over the natural duration of their right to occupy the
property.

[3] It is mentioned at the outset that Hartle J made a factual finding that the first
respondent ’s employment contrac t was terminated on 3 February 2020 and that th e
respondents’ continued occupation of the property was an instance of holding over.
This situation prevailed at the time the matter was argued before this Court on 14
Novemb er 2024 and continues to date . At present , the respondents have no legal or
contractual entitlement to remain in occupation of the property and t hey do so
without payment to the Congregation of rent or any other quid pro quo .

[4] The eviction application was fully argued before Hartle J . She found that the
respondents had no defence to the application, and moreover that they were
unlawful occupiers within the meaning of the Act , and that the applicant was, in
principle, entitled to an eviction order subject to the constraints imposed by section 4

1 For the commencement and termination date of the respondents’ employment contract see
paragraph 3 of the judgment by Hartle J (the judgment) and fn 4 thereto.
of the Act . It was in any event never disputed during argument in the proceedings
before this Court that the respondents are unlawful occupiers.

[5] For present purposes only select aspects of the judgment by Hartle J (the
judgment) will be dealt wit h in the ensuing paragraphs hereof . The historical
narrative of events and factual findings should be read as if assimilated herein .

[6] For reasons dealt with at length by the learned judge she ordered that ‘The
application for eviction is hereby stayed’ pending :2

(a) The final determination of the first respondent’s appeal in the High
Court, in Makhanda, case number 1340/2021; and/or

(b) The early adjudication by the Beth -Din (by agreement between the
parties) of the first respondent’s dismissal dispute; and/or

(c) Mediation between the parties of the said dispute.

[7] The learned judge reserved the costs of the application and further ordered
that the parties would be entitled to apply o n notice to this Court on the same papers,
duly supplemented, for a fresh consideration of the provisions of s ections 4(7) and
4(8) of the Act against the context of the conditions or opportunities aforementioned.

[8] In the period 18 January 2022 to 27 October 2023, the process of seeking
leave to appeal initiated by the first respondent in case number 1340/2021 was
unsuccessfully exhausted all the way through to the Constitutional Court . The other
remaining conditions incorporated in the order by Hartle J do not find application in
the present matter. By virtue of the fact that the conditions upon which the grant of
an eviction order was stayed are no longer applicable, the applicant re -enrolled the
application on supplemented papers for a fresh consideration of the provisions of
sections 4(7) and 4(8) .


2 Judgment paragraph 131.
[9] To the extent that the order made provision for a fresh consideration of the
aforementioned provisions, it excludes reconsideration of the (already concluded)
enquiry into the issue of the respondents’ unlawful occupation of the property.

[10] The matter was argued on 14 November 2024 on a set of papers comprising
of the applicant’s supplementary affidavit, the first respondent’s supplementary
affidavit in answer, and a further supplementary affidavit by the applicant in reply.
No supporting or confirmatory affidavit was filed by the second respondent. The
municipality, as third respo ndent, has not entered the fray in these proceedings.

[11] On the papers t he issue s that require determination are:

11.1 whether it is just and equitable to grant an order evicting the
respondents from the applicant’s property in terms of s ection 4 (7) of
the Act and;

11.2 if so , the determination of a just and equitable date on which the
respondents must vacate the property as well as the date on which the
eviction order shall be carried out if the respondents do not vacate the
property.

[12] Before deal ing with the approach to the ju st and equitable enquiry it is
necessary to accentuate a few aspects of the judgment.

[13] Hartle J found , as a fact – whether wrong or right in the first respondent’s view
– that the termination of his employment by the Congregation as its rabbi on
3 February 2020 upended the contractual entitlement of both respondent s to remain
in occupation of the property (the first respondent’s right to occupy the property was
subsidiary to the employment contract and the second respondent’s right of
occupation was an incident of the first respondent’s employment by the
Congregation). In effect, in the absence of any express or tacit consent in favour of
their continued occupation, the respondents’ sustained occupation of the property
beyond that date was and remains unlawful.

[14] The factual finding by the learned judge stemmed from her difficulty to discern
the real nature of the first respondent’s defence to the eviction claim . This was
occasioned by his failure to appear on 29 January 2020 at an internal disciplinary
enqui ry relating to misconduct (the nature of which the learned judge noted was
never clearly outlined by the parties in their papers before her ).

[15] The precursor to the disciplinary enquiry was an arbitration before the Beth -
Din on eleven counts – of which the first respondent was (initially) exonerated –
involving dishonesty inter alia entailing inheritance benefits that accrued to him under
the will of a deceased person . The arbitration a ward of the Beth -Din sparked a
furore of litigation between the parties , including the Chevra Kadisha (also known as
the East London Helping Hand and Burial Society) whose grievance against the first
respondent concerned the loss of a bequest to themselves . The detail is not
repeated and is extensively set out in the judgment though it is perhaps worth noting
that the Beth -Din subsequently withdrew its original ruling in favour of the first
respondent on the basis that new evidence emerged jus tifying a retrial3.

[16] At the subsequent disciplinary enquiry for misconduct , the chairperson
ostensibly came to a finding in the first respondent’s absence that he rendered
himself guilty of allegations of misconduct and recommended the sanction of
dismissal . The Congregation implemented the recommendation and dismissed the
first respondent on the date aforementioned.

[17] Hartle J concluded that as employer of the first respondent, the Congregation
was the proper entity to have taken that decision and that it would be inequitable to
delay the eviction for what she described as ‘a slim likelihood ’ that he may be
reinstated. Holding the belief that the chairperson and the Congregation had no
authority to dismiss him, and calling the termination of his services a ‘purported
dismissal’ , the first respondent reacted to the imposed sanction by referring a dispute
over his dismissal to the Beth -Din on 1 October 2020 . In similar vein , Hartle J
reasoned that there may be an outc ome that may not entail a reinstatement if the

3 Paragraphs 38 -46 and 53.
Beth-Din were to deal with the impasse between the parties in terms of Jewish law
and custom .

[18] The Beth -Din declined to deal with the dismissal dispute because the
Congregation did not wish to submit to its ecc lesiastical jurisdiction but gave its
blessing and consent for the first respondent to proceed to have the labour dispute
determined by the secular courts . What followed was an application in the Makhanda
High Court (case n umber 1340/2021) in which the first respondent sought an order
to compel the Beth -Din to hear his dismissal dispute. The refusal of such relief
became the subject of the course of abortive attempts to seek leave to appeal all the
way through to the Constitution al Court .

[19] Explicating her difficulty in attempting to fathom the first respondent’s defence
to the eviction , Hartle J commented :

‘The first respondent appears to equivocate between a plea that suggests that
the employment agreement still exists because it was not lawfully cancelled or
that its cancellation was a nullity as it were (giving him and the second
respondent a right still to occupy), and an acceptance on the other hand that
the agreement was indeed cancelled, but that the termination is assailable.
Allied to the latter defence is the claim that the only forum that can decide
finally whether the contract was “lawfully” cancel led is the Beth -Din and that it
is a pre -requisite for that dispute to be determined before the respondents can
be evicted because their right to occupy rides on the coattails as it were of
that dispute determination. Interestingly, and perhaps strategical ly so, the first
respondent does not claim that his dismissal was unfair, whether
substantively or procedurally, as if to avoid any concession that the
termination of the employment agreement due to his claimed misconduct was
to be effected through the pro cedures described in the Labour Relations Act,
more particularly by resort to the CCMA, or the Labour Court as the case may
be, to challenge his dismissal. ’

[20] Hartle J went on to conclude that whereas the Congregation discharged the
onus to prove the termina tion of both the right to occupy and of the first respondent’s
employment agreement (the right to occupy being subsidiary thereto), the
respondents did not discharge the evidentiary burden to allege and prove facts
necessary to justify their plea that they are not in unlawful occupation of the property.

[21] Turning to the issues for determination in the present proceedings, s ection
4(7) of the Act reads:

‘If an unlawful occupier has occupied the land in question for more than six
months at the time when the pro ceedings are initiated, a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or
other organ of state or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, dis abled
persons and households headed by women. ’

[22] Section 4(8) provides further :

‘If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine ( a) a just and equitable date on which the unlawful occupier must
vacate the land under the circumstances; and ( b) the date on which an
eviction order may be carried out if the unlawfu l occupier has not vacated the
land on the date contemplated in paragraph ( a).’

[23] It has been held that the proper approach in the determination of an
application for eviction is that a court is obliged to investigate and address
considerations of justice an d equity. Under the Act the only test for determining
whether an unlawful occupier is to be evicted is whether the eviction would be just
and equitable. In that enquiry a court should be mindful that it has a discretionary
power to impinge on the property owner’s common law right to obtain possession of
the property, to the extent that considerations of justice and equity demand. In
employing the test the court is required to consider ‘all the relevant circumstances’ ,
which include but are not limited to th e factors mentioned in s ection 4(7). In the just
and equitable enquiry t he weight to be accorded to the mentioned circumstances
and the determination of such further circumstances as might be relevant as also the
weight to be accorded to them, are matters left entirely to the judgment and
discretion of the court4.

[24] The abovementioned legal prescripts however cannot operate to deprive a
private owner of its property arbitrarily or indefinitely. If it did, it would simply mean
that unlawful occupants are reco gnised as having stronger title to property that they
do not own. The owner would in effect be deprived of its property by a disguised
form of expropriation. And to a greater degree if no rental is paid, such expropriation
will also be without compensation . The result would not achieve a balancing of rights
of the respective parties but an annihilation of the owner’s rights.5

[25] As for the first respondent’s approach to the just ice and equit y enquiry
envisaged in s ection 4(7) of the Act , this inclined toward illuminating his apparent
dispute s with the Congregation and the Chevra Kadisha concerning his purported
unlawful dismissal and inheritance under the will in an attempt to demonstrate that
the Congregation did not effect a valid termination of his s ervices and that he was
entitled to employment benefits and arrear remunerations from 3 February 2020 until
31 May 2024 . In heads of argument it was submitted for the respondents that this
approach militates against an eviction order , and in the investigation of all the
relevant circumstances as contemplated in the relevant legislation , it constitutes a
valid defence to eviction raising equitable considerations that attach to the finding of
unlawful occupation arising from their holding over upon termination of the
employment contract .

[26] In that regard it is pertinent to refer to the first respondent’s supplementary
answering affidavit for discerning his approach to these proceedings. Drawing
attention to paragraph [28] read with footnote 6 of the judgment by Hartle J, he
states:

4 Absa Bank Ltd v Murray and Another 2004 (2) SA 15 CPD para 21.
5 Van Der Valk N.O and Others v Johnson and Others [2023] ZAWCHC 20 para 26.

‘After noting that my services were terminated and justified by certain alleged
misconduct on my part, which was not disclosed in the applicant’s founding
papers, the court then stated how , in its replying affidavit, applicant “sets the
record straight” by alleging that I “was found guilty on 11 separate charges
involving inter alia dishonesty, which were not limited only to the steps taken
by me to benefit from the w ill of the late Mr Israel Bayer.” ’

[27] Having attached a series of annexures6 to his affidavit, he invites the Court to
approach the matter in the following manner:

‘The court will respectfully be requested to determine from what follows below,
whether the app licant did set the record straight, and/or whether or not the
applicant deliberately and tendentiously withheld the whole truth fro m the
court.
…
The purpose of introducing the attachments above is not to ask this
Honourable Court to make a finding on the fairness of my dismissal, which I
recognise is a right to fair labour practices and is determinable within another
specially established jurisdiction, but rather to establish the reason why the
full extent of the misconduct dispute ventilated in the di sciplinary enquiry was
deliberately covered up by the applicant in these proceedings.’

[28] In heads of argument, the submission is made that th is Court will be
requested to determine whether there was any substance to the Commissioner’s
rejection of a submission made by counsel as regards the observation by Hartle J
that the first respondent was ostensibly exonerated of the claims against him in th e
proceedings before the Beth -Din and that this Court’s perception be fortified and
substantiated in relation to the observation made by the learned judge. It is not
intended to repeat the contents of the annexures to the first respondent’s affidavit or
to unpack the findings or to question the approach adopted by the presiding
Commissioner in the disciplinary proceedings. The first respondent’s labour dispute

6 A, B, C, D, E, and F.
with the Congregation as well as the will dispute between himself and the Chevra
Kadisha are irrel evant to the determination of the issues that fall to be identified in
these proceedings. There is moreover no explanation by the first respondent as to
why the material contained in the attachments now relied upon were not placed
before the Court initially when he filed his main answering affidavit. The first
respondent’s invitation to the Court and the oversubtle reach in his heads of
argument may prompt findings that may either engineer further delays in the eviction ,
or set up points to be taken on appeal and in that way preserve the status quo for the
respondents’ continued holding over leaving the right of the Congregation to reclaim
its property, unresolved indefinitely.

[29] Although Hartle J observed that the congregation set the record straight only
in its replying affidavit when it made disclosure of certain misconduct pertaining to
the labour dispute between itself and the first respondent , my sense is that it was not
necessary for the applicant to detail same in any manner whatsoever in his
supplementary papers , nor to set out fully the basis upon which the first respondent’s
contract of employment was terminated. In this regard Hartle J correctly found inter
alia in paragraphs 76 and 86 of her judgment that the first respondent’s emp loyment
was as a fact terminated and that unlike other statutes there is no provision in the
Act to the effect that the determination of the labour dispute is a precondition for
terminating an employee ’s subsidiary rights to occupy a property arising from an
ordinary employment agreement, where the claim for eviction is based on the rei
vindicatio .

[30] There is another reason why in my view t he determination of the dispute s with
the Chevra Kadisha and particularly the labour dispute with the Congregation are
irrelevant to these proceedings . Straightforwardly, o n his own version , the first
respondent’s employment contract terminated on 31 May 2024. While the
supplementary papers demonstrate at length an explanation purporting to exculpat e
him of the alleged misconduct for which he was dismissed, sight should not be lost of
the fact that it is not open to this Court to second guess the finding s by Hartle J , in
particular, that the respondents are unlawful occupiers consequent to the factual
termination of the first respondent’s employment contract , and furthermore that the
procedural requirements in s ection 4 of the Act have been duly complied with . The
staying of the application for eviction – as is apparent from the order by Hartle J –
does not, in my view, invite a reconsideration of her finding s on these aspects. Nor ,
as was correctly conceded by counsel for the respondents, is it competent for this
Court to make a finding on the lawfulness or fairness of the first respondent’s
dismissal .

[31] Furthermore, some three years and ten months after his dismissal by the
Beth-Din, the first respondent’s attempt to refer his dismissal dispute to the CCMA
on 4 December 2023 has also been unsuccessful for the reason that his application
for condonation fo r the late referral of the dispute was dismissed by the presiding
Commissioner .

[32] The hard reality of the se remarks is that the first respondent can never obtain
an order that he be reinstated in his employment as rabbi . It is not disputed that s uch
an order will not be granted beyond the period or point at which a fixed term contract
has expired7, notwithstanding his intention to review the Commissioner’s ruling .

[33] In argument much emphasis was laid by the respondents on the fact that they
are elderly and that the first respondent did not in the period 3 February 2020 until 31
May 2024 receive monthly emoluments . The contention is that his dismissal dispute
is live (presumably, due to the contemplated review) and until such time that it is
finally determined with an accrued emoluments award in his favour, he does not
have funds to hire alternative premises and it would not be just and equitable to
order an eviction. Implicit in the argument is that the eviction must be delayed until
the lab our dispute is finally determined .

[34] The fact that the first respondent is without financial means and that he and
the second respondent are aged persons in their s ixties cannot delay the eviction
indefinitely. While it is not in dispute that they are unlawful occupiers they have
placed scant information about their personal circumstances before the Court to
justify their ongoing occupation save to contend that their eviction would not be just
and equitable . There are no children residing in the propert y or other identified

7 Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others
[2023] ZALAC 5.
persons who can be said to be dependants . The respondents have provided no
tangible detail of their financial and living circumstances , or of their health and
disability status (if any ), or of their ability to rely on family8, friends and loyal
congregants or benefactors9 for assistance whether financial or in kind . They have
not disclosed the source of the financial means for their payment of the municipal
charges for water and electricity being supplied to the property. Other than the first
respondent stating that he studies and deals with congregants on a daily basis, there
is insufficient detail of the substance of his interaction with them with no detail
proffered of the second respondent’s activities . Furthermore there are no disabled
persons residing in the property and the household cannot be deemed to be headed
by women.

[35] Of note is that t he respondents do not say what steps they have taken to
source the availability of alternative accommodation10 nor do they expressly contend
in their supplementary papers that they would be rendered homeless if evicted. Even
if I am mistaken in having made the latter ob servation , imminent homelessness does
not appear to be a likely consequence of an eviction , notwithstanding the first
respondent’s protestations of being without an income since his dismissal and for
that reason he did not have the funds to secure a lternat ive accommodation. My
sense is that t he issue of homelessness due to lack of financial means does not
come into the picture. This is suggestive by the fact that t he respondents have at all
times been actively litigating with the assistance of attorneys and counsel (including
senior counsel) translating to clear proof of the availability of financial resources
which could be directed towards the payment of rental to avoid homelessness. They
are certainly not poverty stricken.

[36] Given the paucity o f information provided it is necessary to underline that
where an eviction is opposed, legal practitioners representing a respondent are

8 Children re siding in the United States of America.
9 Locally resident in East London.
10 In Van Der Valk N.O and Others fn4 supra, reference is made at para 40 to Patel N.O. and Others v
Mayekiso and Others (citation omitted for present purposes) in which the court re cognised the
obligation of an occupier alleging potential homelessness, and by extension any further prejudice, to
place the necessary information before the court: 'But the Mayekisos have not attempted to show how
their eviction would render them homeless save to say that all the assets were tied up in the insolvent
estate. This is not sufficient. What they had to show us how they have tried and failed to find
alternative accommodation within their available resources.'
under a positive duty, as officers of the court, to ascertain the relevant facts and to
place them before the court so that the justice and equity of ordering an eviction can
properly be interrogate d and evaluate d. The onus is not entirely on the applicant to
do so. Absent full and proper disclosure of tang ible detail as indicated above , bald
and unsubstantiated averments regarding deprivati on of income and may incline a
court to justifiably conclude that the respondent’s dispute is not genuine and
credible.11

[37] In the context of what is said in the preceding paragraphs, the essential
question that must be asked is whether the respondents might be rendered
homeless should they be evicted. On my assessment of the matter, this does not
appear to be the case. On the facts , there can be no suggestion that the Act was
designed to protect persons in the position of the respondents . The Act is intended to
protect vulnerable persons who may be rendered homeless in the event of an
eviction order being granted against them.

[38] The Congregation is a voluntary association . It does not operate within a
certain level of government and it does not have the status of an organ of state . It is
not obliged to provide accommodation12 or to indefinitely endure the respondents’
unlawful holding over. Referring to sections 9(1) and 9(2) of the Bill of Rights , the
Supreme Court of Appeal i n Modderfontein Squatters13 observed that everyone is
equal before the law and has the right to equal protection and benefit of the law and
that equality includes the full and equal enjoyment of all rights and freedoms. This is
nonetheless subject to minor qualifications depending on the circumstances as was
explained by the same court in City of Johannesburg v Changing Tides14:

‘The position is otherwise when the party seeking the eviction is a private
person or entity bearing no constitutional obligation to provide housing. The
Constitutional Court has said that private entities are not obliged to provide

11 Luanga v Perthpark Properties Ltd [2018] ZAWCHC 169 paras 47 and 48.
12 See in this regard City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) para
17.
13 Modderfontein Squatters, Greater Benoni CC v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal
Resources Centre, Amici Curiae): President of the Republic of South Africa v Modderklip Boerdery
(Pty) Ltd 2004 (6) SA 40 (SCA) at 57C.
14 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) para 18.
free housing for other members of the community indefinitely, but their rights
of occupation may be restricted, and they can be expected to submit to some
delay in exercising, or some suspension of, their right to possession of their
property in order to accommodate the immediat e needs of the occupiers.’

[39] The crucial factors in the matter are that Hartle J already determined that the
respondents are unlawful occupiers and that the issue about fairness of the first
respondent’s dismissal does not alter the premise that his employme nt was as a fact
terminated. To the extent that the learned judge found that the respondents are
unlawful occupiers, they should be treated as such until the conclusion of these
proceedings. I hold the view that the findings by the learned judge are founda tional
to the justice and equity enquiry and that this Court cannot go beyond the limited
facts put up by the respondents where there was a positive duty on their legal
representatives to have properly ascertained and presented them. The contentions
of hom elessness due to lack of means are made with the cynical view of preventing
or delaying an eviction order from being granted.

[40] I have considered the interests of the respondents against the Congregation’s
claim of ownership and its need for the return of th e property as the designated
residence for a newly appointed rabbi to fulfil the spiritual needs of its congregants .
Having weighed the factors and circumstances relevant to this matter and finding no
compellable reason not to evict, I find it just and equitable to grant an eviction order.
The final leg of the enquiry into what justice and equity demands is in relation to the
date of implementation of the eviction. I recognise that the r espondents have been in
occupation of the property for a substantial period of time and that the impact of an
eviction order may be a thunderclap . Faced with this reality they may need adequate
time to organise their relocation . I do not believe that three weeks which the
Congregation proposes is adequate.

[41] Before concluding, there is the issue of costs.

[42] There is no reason to depart from the general rule that the successful party be
awarded costs .

[43] The consensus between the parties is that scale C should be a pplicable for
counsel.

[44] I agree. Although t he proceedings did not involve the determination of unusual
or novel aspects of the law or the interpretation of new legislation, this was not a run -
of-the-mill matter.

[45] The Congregation argued for a two-tier costs order on a party and party scale
and on a scale as between attorney and client. In the period 14 June 202 1 until 27
October 2023, the latter being the date upon which the Constitutional Court
dismissed the first respondent’s application for leave to appeal, it was argued for the
Congregation that the respondents should be directed to pay the costs of the eviction
proceedings on a party and party scale with such costs to include the costs of the
application on noti ce in terms of section 4 (2) of the Act. In dealing with matters
procedural , Hartle J dealt with the costs of two such notices. Although having found
that the procedure adopted by the Congregation was unconventional, the learned
judge was of the view that the respondents were afforded sufficient opportunity to
oppose the substantive application with adequate opportunity having been given to
them well in time before the hearing to state why they should not be evicted. Having
made the determination that effec tive notice of the proceedings was given to the
respondents, Hartle J concluded that they were not prejudiced but elsewhere in her
judgment she indicated that it would be unfair to mulct the respondents with the
costs occasioned by two notices. My order at the conclusion of this judgment
accords sufficient recognition to this sentiment.

[46] On the second tier – effectively from 1 November 2023 – costs were sought
on the attorney and client scale for the reason that the respondents had no defence
to the eviction application and the opposition thereto was vexatious and without
merit. Reference was also made to a series of correspondence directed to t he
respondents’ attorneys . Initially the congregation proposed that each party pay their
own legal costs when the Constitutional Court dismissed the first respondent’s
application for leave to appeal . In a subsequent letter the Congregation repeated this
proposal when it react ed to the first respondent ’s supplementary affidavit in which he
submi tted that if eviction is to occur it would be just and equitable for him and the
second resp ondent to vacate by 31 May 2024. While emphasising that there would
be success in obtaining an eviction order , the proposal was made because of the
impracticality of ob taining a court hearing or ruling on the eviction prior to that date . It
appears that the proposals were met with no meaningful response and the
Congregation was obliged to proceed to secure a date for the hearing of the matter
on a contested basis.

[47] On the other hand , since Hartle J was concerned about the lack of information
put before her by the Congregation, the respondent s contended that it was
incumbent on the applicant to come back to court on supplemented papers.

[48] The differing contentions advanced by the parties are not without merit. I am
of the view that costs must follow the result but am of the opinion that a two tier costs
order, in particular a component providing for attorney and client costs is not
warranted.

[49] In the result I make the following order:

1. The first and second respondents and any and all persons occupying with
and through them are hereby evicted from the immovable property
situated at [...] O[...] Road Selborne, East London hereinafter referred to
as ‘the property’.

2. The first a nd second respondents and any and all persons occupying the
property with and through them are ordered to vacate the property no later
than 12h00 on Friday, 4 April 2025 and not to return thereafter.

3. In the event that the first and second respondents and a ny and all persons
occupying the property with and through them do not vacate the property
as directed, the sheriff or the sheriff’s duly appointed deputy together with
such assistance as he /she deems appropriate is authorised and directed
to evict the res pondents from the property.

4. The first and second respondents jointly and/or severally are ordered to
pay the costs of this application as between party and party including
reserved costs, such costs shall include the costs of the first application in
terms of section 4(2) of the Prevention of Illegal Eviction from and Unlawful
Occupation o f Land Act 19 of 1998 (the Act) and shall exclude the costs of
the second application in terms of section 4(2) of the Act.

5. The costs in respect of the fees of counsel shall be taxed on scale C.


____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT


Appearances:

For Applicant: S P Pincus SC , Instructed by Stirk Yazbek Attorneys , East London
(Ref: G J Stirk ; Tel: 043 -726 8310; Email : karen@stirkyazbek.co.za ).

For the First and Second Respondents: N Schultz (heads of argument by M Donen
SC), Instructed by Wheeldon Rushmere & Cole (Ref: B Brody; Tel: 046 -622 7005 ;
Email: lit5@wheeldon.co.za) c/o Lionel Trichardt & Associates , East London.

Date heard: 14 November 2024.
Date delivered: 27 February 2025 .