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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No.: 3462/2013
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 22/08/2025
MNGQIBISA-THUSI J
In the matter between:
DAVID MNISI 1st Applicant
CITY OF JOHANNESBURG METRO MUNICIPALITY 2nd Applicant
and
RICHARD KEAY POLLOCK N.O 1st Respondent
MICHAEL MMATHOMO MASILO N.O 2nd Respondent
In re:
RICHARD KEAY POLLOCK N.O 1st Applicant
MICHAEL MMATHOMO MASILO N.O 2nd Applicant
and
DAVID MNISI 1st Respondent
CITY OF JOHANNESBURG METRO MUNICIPALITY 2nd Respondent
JUDGMENT
MNGQIBISA-THUSI J
[1] In its notice of motion the first applicant seeks the following relief:
1.1 the stay of a sale in execution, pending a determination of whether the
writ for the ejectment of the first applicant has been superannuated.
1.2 whether the liquidators have complied with the procedural requirements of
section 4(2) of the Prevention of IIlegal Evictions Act (the PIE) in so far as
the liquidators have failed to serve the first applicant with a section 4 (2)
notice;
1.3 that the order of ejectment be set aside; and
1.4 costs.
[2] The City of Johannesburg Metropolitan Munici pality (the Municipality), cited as
second applicant, has filed an affidavit in which it disavows giving the first
applicant consent to be part of these proceedings. At the hearing of this matter,
the second applicant, represented by Mr Matera, addressed the court briefly
with regard to the Municipality’s status in these proceedings . Mr Matera
submitted that the Municipality was not party to these proceedings . He urged
the court, when applying its mind with respect to costs, to take into account this
issue.
[3] As a result, hereinafter the first applicant will be referred to as ‘the applicant’.
[4] Further at the start of the proceedings, counsel for the applicant drew the
court’s attention to a draft court order uploaded and file d as ‘T00’. Counsel for
the applicant conceded that the proposed draft order was filed the day
preceding the start of these proceedings. Counsel further conceded that the
uploading of the proposed draft order was not brought to the attention of
respondents’ and the Municipality’s legal representatives. More perplexing was
the fact that the contents of the proposed draft order1 were significantly different
from the relief sought as set out in the applicant’s notice of motion.
[5] After counsel made submissions on this misnomer, a ruling was made in terms
of which the proceedings would proceed on the basis of the relief sought in the
notice of motion.
[6] The first and second respondents are the appointed liquidators of Clockwork
Trading 1002 CC (the CC), which is under liquidation and which was the owner
of the property situated at Erf 2[...] D[...] Extension 1, Roodepoort, Gauteng (the
property) and currently occupied by the applicant and from which it is sought to
evict him.
[7] During2013 the applicant made an offer to purchase the property. According to
the respondents, the sale agreement did not come to fruition. Shortly thereafter
the respondents sought the eviction of the applicant from the property and an
eviction order was granted on 25 February 2015. In terms of the eviction order,
the applicant was ordered to vacate the property within 14 days from the date
of the order. Subsequent thereto the applicant sought an order for the
rescission of the eviction order o f 25 June 2015. On 14 November 2016 the
1 The proposed draft order provides that : “1. That pursuant to the provi sion of uniform rule 45A, and
pending the filing and reconsideration by this court of the factors referred to in section 4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, the first and
second respondents be interdicted and restrained from evicting the first applicant from the premises
ERF 2[...] D[...] EXT1, Roodepoort, Gauteng. 2. That the City of Johannesburg Metropolitan
ERF 2[...] D[...] EXT1, Roodepoort, Gauteng. 2. That the City of Johannesburg Metropolitan
Municipality be and is here by ordered and directed, within 30 days of this order, to investigate,
prepare a report and file same with the court and the parties, in which report they shall address the
question of whether homelessness is likely to result from the eviction of the applicant herein and if so,
what measures they will take to prevent such homelessness. 3. That upon presentation of the said
report by the municipality, and within 10 days of filing thereof, the respondents, if they so wish, be and
are hereby granted leave to file any such further submissions as to them are mete addressing the
question of whether and if so, under what conditions, the eviction of the applicant may be ordered. 4.
that within 10 days of the respondents having filed their supplementary submissions, the applicant be
and is hereby granted leave to file any such further submissions as to him are mete addressing the
question of whether and if so, and what condition the eviction of the applicant may be ordered. 5. That
the costs of these proceedings be postponed for determination at the hearing of the main matter.”
application to rescind t he eviction order was dismissed and the date of the
eviction of the applicant was revised to 30 November 2016. On 29 November
2016 the applicant ’s application for lea ve to appeal the dismissal of his
rescission application was also dismissed.
[8] Initially the applicant had relied on the fact that the writ the respondents sought
to execute, was old, having been issued in 2016 and that the writ issued has
been superannuated. This point was abandoned during argument.
[9] The respondents have raised three points in limine, namely:
9.1 that uniform rule 45A does not apply;
9.2 that since the application to re scind the eviction order and the appeal of
that order were dismissed, the court order is final and binding; and
9.3 that even though the applicant is seeking for an interim interdict, his notice
of motion does not have a return day and consequently, the order would
have final effect.
[10] I will deal with the three points in limine raised by the respondents in seritiam.
[11] With regard to the first point in limine , it was submitted on behalf of the
respondents that uniform rule 45A 2 does not apply in that the eviction of the
applicant was based not as a result of the eviction order granted on 25
February 2015, but on a public auction which was not based on the eviction
order. Counsel further submitted that even if uniform rule 45A is applicable, the
applicant can obtain a stay in execution is if he satisfies the requirements of an
interim interdict, taking into account that the applicant is not the owner of the
property but a mere unlawful occupier. Furthermore, counsel for the
respondents submitted that the only way that the eviction order is not the
subject of an ongoing dispute as the applicant’s attempt to have the order
rescinded was dismissed, together with the dismissal of the applicant’s
2 Rule 45A provides that: “The court may, on application, suspend the operation and execution of any
order for such period as it may deem fit: provided that in the case of appeal, such suspension is in
compliance with section 18 of the Act.”
application for leave to appeal against the order dismissing the first applicant’s
rescission application.
[12] The second point in limine raised by the respondent s is that since the
applicant’s application to rescind the eviction order and the application for leave
to appeal that order were dismissed, the court is functus officio . Further,
counsel submitted that the applicant did nothing further about the eviction order
and that order stands unchallenged and is binding and as a result the court
orders are final and binding. Furthermore, c ounsel for the respondents
submitted that the application dismissing the app licant’s application for leave to
appeal which was dismissed, is not reviewable.
[13] The third point in limine raised by the respondents is that even though the
applicant is seeking an interim interdict, his application does not have a return
date and as it stands it is for an ind efinite period and it is final in its effect.
Counsel further submitted that from the evidence before court the applicant has
not satisfied the requirements of a final interdict and the relief sought by the
applicant is incompetent. It was further submitted that the application does not
meet the requirements of an interim interdict as the applicant has not shown
that he has a prima facie right to remain on the property and that the issues
raised in this application do not address any ongoing court cases.
[14] As alluded to above (in paragraph 11, 12 and 13), the applicant’s application for
the rescission of the eviction order granted in 2015 was dismissed and the
appeal against the dismissal of his re scission application was also dismissed,
thereby making the eviction order final and bi nding. Under the circumstances,
and in the absence of the applicant taking any further steps, rule 45A has no
application as the eviction order has become final and binding. Further, the
application has not met the requirements of an interim interdict in that the
application has not met the requirements of an interim interdict in that the
applicant has failed to prov e th at he is the owner of the property or was in
lawful occupation, that the balance of convenience favour the granting of the
interdict or that he will suffer irreparable harm if the writ of execution is not
stayed. Applicant has been staying on the property for more than ten years
without paying any rent and is semi-employed. Based on the above, the
respondents’ points in limine are upheld and on that basis only this application
ought to be refused.
[15] In the event that I am wrong with regard to the finding in relation to the points in
limine, I deal with the merits of the application.
[16] Counsel for the applicant submitted that in relation to evictions, a two pronged
approach is adopted by the courts. Counsel submitted that as an eviction order
has already been granted, the question this court needs to deal with is whether
it would be just and equitable to evict the applicant, taking into account the
changed personal circumstances of the applicant. Counsel for the applicant
argued that this court has to determine the appropriate date on which the
eviction of the applicant should take place and under what conditions. Counsel
submitted that in order for the court to determine the date and conditions to be
attached to the eviction, the eviction order granted has to be suspended in light
of the applicant’s changed circumstances and the fact that the respondents
failed to comply with the provisions of section 4(2) of the P IE read with the
provisions of section 4(7) and (8) of the PIE.
[17] The court was referred to various cases, including decisions made by the
Constitutional Court which dealt with the processes to be followed where an
eviction order is sought. Counsel conceded that an eviction has been granted.
Counsel submitted that submitted that the applicant was elderly, has no income
and that the property is the applicant. This submission is in contradiction to
what the applicant alleged in his founding affidavit where the applicant alleges
that he is semi -employed.
[18] At the same time counsel for th e applicant conceded that it is possible that,
before the eviction order in this m atter was granted, it is possible that the
applicant’s circumstances, including the participation of the City of
Johannesburg were considered. In this regard the applicant relies on his
Johannesburg were considered. In this regard the applicant relies on his
changed personal circumstances that occurred after the e viction order was
granted. It is the applicant’s contention that the eviction of the applicant would
be offensive to the provisions of the PIE as it affect s the socio-economic rights
of accommodation, decency and dignity of the applicant. Counsel submitted
that the applicant had reached the age of 65 and as a result was deserving of
extra protection in terms of the Elderly Persons Act 13 of 2006.
[19] On behalf of the applicant it was further argued that given the inordinate delay
in executing the eviction order and the applicant’s changed personal
circumstances, this warrants a reconsideration of whether it is just an equitable
for the applicant to be evicted.
[20] With regard to the Municipality, counsel for the applicant submitted that should
the execution of the writ be stayed, this will give the Municipality the opportunity
of preparing a report in which it would deal with whether or not the applicant
would be rendered homeless if evicted and a report as to how it will deal with
the applicant’s homelessness.
[21] It is the respondents’ submission that the applicant has been occupying the
property since 2012 and has not paid rent. Counsel for the respondents argued
that changes to the applicant’s personal circumstances that occurred after the
granting of the eviction order in 2015 has no bearing on the relief sought by the
applicant.
[22] Furthermore counsel for the respondents submitted that it is trite that before a
court can grant an eviction order the applicant needs to comply with the
provisions of section 4 of the PIE. Counsel argued that it is inconce ivable that
the court would have granted the 2015 eviction order if there was non -
compliance with the provisions of section 4(2) of the PIE. Further counsel
argued that before the court granted the order, it must have considered the
requirements of section 4(7) with regard to whether it would be j ust and
equitable to grant an eviction order.
[23] It is common cause that the applicant has been staying at the property since
around 2013 without paying rent. There was an attempt on his side to buy the
property without success. Nowhere in his pleadings does the applicant allege
property without success. Nowhere in his pleadings does the applicant allege
that he had paid the full purchase price for the property. It is it is also common
cause that the respondents obtained an order for the eviction of the applicant.
An application to rescind the eviction order was dismissed and his application
for leave to appeal that order was also dismissed. The dismissal of the
application for leave to appeal the rescission application effectively rendered
and as a result the eviction he came final and binding in view that the applicant
did nothing about the eviction.
[24] In the notice of motion the applicant sought an order to stay the execution of
the sale however this is not clear or no case has been made in the applicants
founding affidavit about a sale in execution. Further, the applicants attempt to
propose a different draft order with prayers inconsistent with the relief south in
the notice of motion or the funding affidavit, is ill conceived particularly in light of
the fact that no case has been made out in the applicant funding affidavit for
the prayers sought in the proposed draft order . Further no warning was given
to the respondent to enable them the opportunity to consider the proposed draft
order.
[25] Counsel for the applicant, in as much as he is correct that a two -pronged
approach which should be adopted by the courts none of the authority quoted
by the applicant is applicable in a case where an eviction order had been
granted and is final and binding . I am of the view that the applicant has not
made out a case for the stay of the writ of execution or for this court to re -
consider the eviction of the applicant.
[26] With regard to the manner in which the applicant and/or his legal
representatives conducted themselves, particularly with regard to non -
compliance with the Practice Directive, counsel for the respondent submitted
that this application could have been struck off the roll with costs de bonis
propiis. However. counsel sought a costs order on an attorney and client scale
in the event the respondents are successful.
[27] In the result the following order is made:
[27] In the result the following order is made:
1. The application is dismissed.
2. The first applicant is liable for the costs of th e application on an at torney
and client scale.
NP MNGQIBISA-THUSI
Judge of the High Court
Date of hearing : 28 October 2024
Date of judgment : 22 August 2025
Appearances
For First Applicant: Adv I Mureriwa (instructed by Gary Segal Attorneys)
For the Second Applicant: Mr Mutera
For the First & Second Respondents: Adv P.I Oosthuizen (instructed by Velile Tinto &
Associates)