SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG )
Case No. 2023/119996
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 16 July 2025
In the matter between:
OBED BASHIMANE MOALUSI First Applicant
THAPELO KHUMALO Second Applicant
and
JUSTIN KONDOWE First Respondent
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Second Respondent
JUDGMENT
D’OLIVEIRA AJ:
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1 The first applicant is the registered owner of Erf 2[ …], P]…] G[…] Extension
22 Township, with street address 2[ …] C[…] Crescent, P […] G[…], Soweto Park,
Roodepoort (the property).
2 The second applicant is the previous registered owner of the property.
3 The first respondent is in occupation of the property. The first respondent will
hereafter be referred to as “the respondent”.
4 The applicants apply for the eviction of the respondent . The application was
served on the respondent personally on 29 January 2024. The application is
opposed.
5 The applicants have complied with the procedural requirements of the
Prevention of Illegal Eviction and Unlawful Occupation Act 19 of 1998. Notice in
terms of section 4(2) of the Act was served on the respondent on 13 May 2024.
6 The respondent originally occupied the property on 17 M arch 2015. He did
so in terms of a verbal instalment sale agreement with the second applicant, who was the registered owner at the time. In terms of that agreement, the respondent was required to pay a deposit of R150 000.00 and the monthly instalments owing on
the second applicant’s bond. Once the bond had been fully paid, the respondent
would receive transfer of ownership from the second applicant.
7 The respondent ceased paying instalments in November 2018. He has not
paid anything towards his occupation of the property since that date. The instalment
sale agreement was cancelled.
8 In December 2021, the second applicant met with the first respondent and
informed him that the second applicant intended to sell the property. The second
applicant afforded the respondent an opportunity to purchase the property and to raise the funds for that purpose by October 2022. When the respondent informed the
second applicant that he could not raise the funds to purchase the property, the
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second applicant informed the respondent that he had no option but to sell the
property and requested that the respondent vacate. The respondent failed to do so.
9 On 7 March 2023, the second applicant informed the respondent in writing
that the property had been placed on the market and would soon be sold. The
respondent was given notice to vacate the property on or before 7 May 2023.
10 On 1 May 2023, the second applicant informed the respondent in writing that
the property had been sold, and reminded him that he should vacate by 7 May 2023.
The respondent failed to do so.
11 Meanwhile, on 5 April 2023, the first applicant purchased the property from
the second applicant. The property was transferred and registered into the name of
the first applicant on 1 September 2023.
12 On 30 June 2023, the respondent was given further written notice to vacate
the property by 11 July 2023. He again failed to do so.
13 On 19 September 2023, a settlement agreement was concluded with
the respondent. In terms of that agreement, the respondent was paid R185 000.00 in
lieu of any and all claims that he had in respect of the property. Also in terms of that
agreement, the respondent agreed that he would not initiate or pursue any legal administrative actions, complaints or proceedings against the second applicant and the second applicant’s sister, Precious Dube, who was the respondent’s estranged wife.
14 On 23 October 2023, the first applicant delivered a letter of demand on the
respondent. In the letter of demand, the respondent was informed that the first applicant was the registered owner of the property. The respondent was told to
vacate the property within seven days from the date of the letter. The respondent
ignored the demand.
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15 The respondent has since continued to reside in the property despite not
making any contribution towards his occupation and use of the property.
16 The respondent is unable to assert any legal right to remain in occupation of
the property. The respondent’s answering affidavit discloses no defence to the
application for his eviction. The high- water mark for the respondent is a vague
allegation that he has made contribution towards the improvement of the property for
which he should be compensated and thus has a lien. But the respondent gives no
particularity about what amount he spent on the property, what improvements were
made, or the value of improvements . The purported defence of a lien is too vague to
be accepted (see Roode v De Kock and Another 2013 (3) SA 123 (SCA) ). It is, in
addition, contradicted by the settlement agreement concluded on 19 September 2023.
17 Apart from this, the respondent only raises that he has two minor children,
ages 16 and 11, who reside with him. He also says that he has two major children,
who are at university in other provinces, who return to the property during vacation.
The fact that the minor children reside with the respondent is disputed by the applicants. An affidavit from the mother of the minor children stating that they reside
with her is attached to the replying affidavit. But e ven if the respondent’s version is
accepted, it still discloses no entitlement to remain in the property.
18 It is common cause that the respondent is gainfully employed. It is also
common cause that there is ample property available for rent in the area. The applicants have attached evidence of the properties available to the founding affidavit. There is nothing that prevents the respondent from residing elsewhere with
the minor children.
19 Finally, at the hearing of the matter, the respondent, who was represented
by his attorney and counsel, requested opportunity to file further papers. When the Court requested what purpose this would serve, the Court was told that the respondent wished to place further background in front of the Court regarding his relationship with Precious Dube, the second applicant’s sister. The Court was also
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told that the respondent wanted opportunity to demonstrate that the first applicant
was not the valid owner of the property. The Court was not told on what basis the
respondent intended to impugn the title of the first applicant , however . Having
considered the request, I have decided to decline it. Further background to the
matter will not alter the absence of a legal right to remain on the property. And even
if the respondent could impugn the title of first applicant , which appears doubtful , the
property would then revert to the second applicant, who is a co- applicant in the
application who also seek s the eviction of the respondent.
20 The eviction of the respondent is just and equitable. The respondent has no
legal right to remain on the property. The respondent is employed and can provide accommodation for himself and any persons that may reside with him elsewhere. His continued occupation of the property since November 2018, without making any payment towards such accommodation, is unacceptable. The Court is satisfied that
the rights of minor children will not be affected by the eviction. The same applies to
the major children. It is not necessary in the circumstances of this matter to delay the
respondent’s eviction.
21 The applicants did not seek costs on a punitive scale in the Notice of Motion.
Had they done so, I would have been inclined to grant it. The respondent has abused the process of the Court by persisting with his opposition in circumstances where clearly has no right to remain in the property, only to lengthen his stay in the property at the applicants’ expense.
22 The following order is made:
22.1 It is just and equitable that the first respondent, and all those who
occupy the property under the title and by virtue of the first respondent’s occupancy of the property, must vacate the property described as Erf 2[ …]
P[…] G[…] Extension 22 Township, with street address 2[ …] C[…] Crescent,
Protea Glen, Soweto, by no later than 15 August 2025.
22.2 Should the first respondent, and all those who occupy the property
under the title and by virtue of the first respondent’s occupancy of the property
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fail to vacate the property by 15 August 2025, the Sheriff of the Court may
carry out the eviction order from 16 August 2025.
22.3 The Sheriff is authorised to utilise this same order to evict the first
respondent, and all those who occupy the property under the title and by
virtue of the first respondent’s occupancy of the property, should the first
respondent or such persons re- enter the property after the Sheriff has given
effect to the order above.
22.4 The first respondent is ordered to pay the costs of this application,
including the costs of the proceedings in terms of section 4(2) of Act 19 of 1998, on party and party scale A.
A J D’OLIVEIRA
Acting Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal representatives by email, by uploading to CaseLines , and by publication of the
judgment to the South African Legal Information Institute. The dat e for hand- down is
deemed to be 1 6 July 2025 .
HEARD ON: 4 June 2025
DECIDED ON: 16 July 2025
For the Applicant s: PS van Niekerk
Instructed by Louw & Heyl Attorneys
For the Respondent S Lila
Instructed by GJ Maluleke Attorneys