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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 DIVISION, JOHANNESBURG
CASE NO: 2023-042317
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
In the application by
MOMSEN, ALICE AGNES JOYCE APPLICANT
And
DAVIES, MICHELLE LOUISE FIRST RESPONDENT
THE REMAINING FURTHER UNLAWFUL
OCCUPIERS OF UNIT 2[…], J[...] L[...], B[...]
ROAD, E[…], E[…]
SECOND RESPONDENT
EKURHULENI METROPOLITAN
MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
MOORCROFT AJ:
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Summary
Eviction – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 – section 4
Lease – relocation at expiry of term – monthly tenancy – section 5 (5) of the Rental
Housing Act 50 of 1999
Order
[1] In this matter I made the following order on 16 October 2025:
IT IS ORDERED THAT:
1. The First and Second Respondents and any person claiming occupation through
or under them, are forthwith evicted from the immovable property known as:
A Unit consisting of:
(a) Section No. 26 as shown and more fully described on Sectional Plan No SS
17/1981 in the scheme known as SS J[...] L[...] in respect of the land and
building or buildings situated at J[...] L[...] , 4[…] B[...] ROAD, E[…], E[…],
1[…], of which section the floor area, according to the said sectional plan is
154 (One Hundred and Fifty-Four) square metres in extent; and
(b) An undivided share in the common property in the scheme apportioned GLD-
JHB-006 to the said section in accordance with the participation quota as
endorsed on the said sectional plan.
HELD BY Deed of Transfer S[…]. (Hereinafter referred to as "the Property").
and the First and Second Respondents are ordered to restore vacant
possession thereof to the Applicant;
2. The First and Second Respondents, and any person claiming occupation through
or under them, are ordered to vacate the property on or before 30 November
2025.
3. In the event that the First and/or Second Respondents, and any person claiming
occupation through or under them, do not vacate the property on the aforesaid
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date, the Sheriff of the Court or his lawfully appointed Deputy is hereby
authorized and directed to evict the First and/or Second Respondents and any
person claiming occupation through or under them from the property.
4. The First and Second Respondents, and any person claiming occupation through
or under them, are interdicted and restrained from entering the property at any
time after they have vacated the property, or been evicted there from by the
Sheriff of the Court or his lawfully appointed deputy;
5. In the event that the First and/or Second Respondents, and any person claiming
occupation through or under them contravenes the order contained in paragraph
5 above, the Sheriff of the Court or his lawfully appointed deputy is hereby
authorized and directed to remove the First and/or Second Respondents, and
any person claiming occupation through or under them, from the property as
soon as possible after reoccupation thereof;
6. That the Sheriff of the Court or his lawfully appointed Deputy be authorized to
instruct the South African Police Service ("SAPS"), and for the SAPS to
accompany and assist the Sheriff or his Deputy in the performance of their
duties as set out above;
7. The Registrar is requested to furnish a copy of the application together with this
order and the judgment to the Legal Practice Council (LPC), and the National
Prosecuting Authority (NPA).
8. That the First and Second Respondents be ordered to pay the cost of this
application, including the costs of the Application in terms of Section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998,
as well as the costs of the perusal of the First Respondent's Second Answering
affidavit, styled "Respondent's Answering Affidavit", dated 10 October 2023, on
the scale as between attorney and client;
[2] The reasons for the order follow below.
[3] This is an application for the eviction of the 1 st respondent and all occupy through
[3] This is an application for the eviction of the 1 st respondent and all occupy through
her from residential property. The Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 finds application.
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[4] Both parties filed further affidavits after the replying affidavit. The 1 st respondent
filed a second answering affidavit and the applicant filed a supplementary affidavit to
record events that took place after the filing of the replying affidavit. The 1 st respondent
replied to the applicant’s supplementary affidavit. I have decided to allow these
affidavits as their admission did not prejudice any party and did not delay the finalisation
of the application.
[5] It is common cause 1 that the applicant is the owner of the property at Section 26,
4[…] B[...] Rd, E[…], E[…]. The 1 st respondent’s rights to occupation were created in
terms of a lease entered into between the 1 st respondent and A T Russell, the
applicant’s representative.2 The lease commenced on 1 September 2016 and was to
terminate on 31 August 2017 but it was relocated as a monthly tenancy terminable by
either party upon delivery to the other of one calendar month’s notice, in writing. 3 It is
common cause that a monthly tenancy was indeed established.
[6] Disputes arose between the parties and the applicant purportedly cancelled the
lease on 10 July 2020. 4 The applicant however does not rely on this purported
cancellation and I do not deal with it.
[7] On 13 October 2022 the applicant’s attorneys wrote to the 1 st respondent and
summarised the terms of the lease. The attorneys then wrote:5
“Resulting from the above, please be advised that this letter is to
serve as our Client’ s one month’s written notice for you to vacate the
Property by no later than 30 November 2022.”
[8] The 1 st respondent refused to vacate the property. She relied on a number of
defences:
1 See affidavit by the first respondent at paginated page 01-82 in the Caselines bundle.
2 Page 01-28.
3 Clause 2 of lease at page 01-28. See also s 5 (5) of the Rental Housing Act 50 of 1999.
4 Page 01-39.
5 Page 01-40.
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8.1 The 1 st respondent alleges that the written lease agreement had been
cancelled and a new lease agreement entered into that was made an
order of court on 7 February 2018. As will be shown below this purported
court order is a forgery.
8.2 The 1st respondent states that she had complied with a demand on 10
February 2020 by paying the rental in arrears at that point in time. This is
not a defence to the cancellation of 13 October 2022.
8.3 She obtained a court order against the applicant on 16 November 2022
for payment of an amount of R345,000 and therefore had a lien over the
property. The court order is a forgery.
8.4 An order for the eviction would affect a finding by the community services
ombud in terms of which the applicant had been ordered to pay arrear
levies, failing which the 1
st respondent was ordered and compelled to pay
the rental in respect of the property to the body corporate until all the
arrears had been paid. This ruling by the ombud does not entitle the 1 st
respondent to occupation – it merely provided for the garnishing of rental
paid by the 1 st respondent in respect of the property in order to pay
amounts due to the body corporate.
[9] The first defence relied upon is a court order purportedly granted by Tsoka J
under case number 2017 – 41882 on 16 November 2020. 6 The ‘order’ is described by
the Chief Registrar of the Court as a forgery and it has the appearance of a forgery. The
document should be investigated by the National Prosecuting Authority and by the
Legal Practice Council. The applicant no longer relies on this purported order and
agrees that it should be admitted to the authorities for investigation.
[10] The attorney acting for the applicant referred me to an affidavit by the Chief
6 Page 05-23 and 05-24.
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Registrar of the High Court in Johannesburg.7
10.1 Tsoka J was not sitting in the motion court on 16 November 2020.
10.2 There was also no CaseLines file for the case number reflected on the
purported order.
10.3 There were two versions of a document purporting to be a court order
under the case number 2017 – 41882 but neither reflected the signature
of a Judge.
10.4 The signature of the registrar on the two orders are the same but is not
the signature of any registrar employed at the Johannesburg High Court.
10.5 The stamp on the one purported order is not a stamp used for court
orders but resembles an old stamp used until May 2020. The stamp on
the second order is different in size and appearance from an actual court
stamp.
10.6 The Chief Registrar concluded that the documentation placed before her
was not an authentic order and she required investigation by the
authorities.
[11] The second ‘ order’ referred to and relied upon by the 1 st respondent was
purportedly also issued by Tsoka J. The date reflected is 7 February 2018 and it
purports to make a settlement agreement an order of court. The ‘settlement agreement’
is comprised of 4 seemingly unrelated pages 8 and can at best be described as
gibberish.
[12] The applicant informed me that she did not know the orders were forgeries and
she agreed that the purported orders be referred to the authorities for investigation. She
7 Page 09-13.
8 Page 04-25 to 04-28.
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told me that the orders were obtained from an attorney known to her as a Mr F itchett”
from a firm by the name of Wolfe Attorneys. She was under the impression that the
person she was dealing with was an attorney and he furnished her with the two court
orders referred to above. She accepted them in good faith as court orders.
[13] One does not know at this point in time whether the person she was dealing with
was an attorney, and whether the person was perhaps impersonating someone else. It
is also for this reason that a full investigation is merited in order to clear the name of
people who may have been falsely implicated. If Fitchett and Wolfe were real people
whose names were used by an impersonator. An investigation by the authorities is
called for.
[14] The 1
st respondent also rejects the letter of cancellation referred to above on the
basis that she believes that the rental payable by her had been changed to R8,500 in
terms of a new lease entered into and the letter of cancellation referred to above9 stated
that the rental was R10,500. Therefore, the argument goes, the applicant had not
cancelled the correct lease agreement. There is no merit in this argument as there was
only ever one lease agreement and any dispute about amounts owing by the 1 st
respondent to the applicant are not to be determined in this eviction application.
[15] The 1st respondent also relies on an application brought against the applicant by
the J[...] L[...] Body Corporate before the community service ombud for the right to
terminate or restrict the supply of electricity and water to the property and for a
monetary judgement in respect of arrear levies. The 1 st respondent attempted to
intervene in that application and she relies on the fact that the amount that she had
been directed to pay to the body corporate had in fact been duly paid. 10 She was of the
9 Page 01-40.
10 See s 39 (1) (f) of the Community Schemes Ombud Service Act 9 of 2011. The legislation
10 See s 39 (1) (f) of the Community Schemes Ombud Service Act 9 of 2011. The legislation
provides for an order requiring a specified tenant in a community scheme to pay to the
association (the body corporate) and not to his or her landlord, all or part of the rentals
payable under a lease agreement, from a specified date and until a specified amount due by
the landlord to the association has been paid
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view that payment exonerated her and she did not have to vacate the property. There is
no merit in this defence.
[16] The 1 st respondent’s rights to occupy the property were terminated as from the
end of November 2022. The application was served 12 May 2023 and therefore within
the period of six months referred to in section 4 (6) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act.
[17] The court is enjoined to determine whether it would be just and equitable to grant
an eviction order having regard to all relevant circumstances including the rights and
needs of the elderly, children, disabled persons and households headed by women.
The order must be just and equitable in respect of the 1
st respondent and those who
occupy through her and also in respect of the applicant.
[18] The 1st respondent resides at the applicant’s property with her fiancé 11 and her
two children the youngest of whom would be about 7 years of age. The 1 st respondent
is approximately 45 years old and is employed.
[19] The applicant is a private person of advanced years who suffers from serious
disease. She does not bear any constitutional obligation to provide housing. 12 She has
been attempting to regain control of her property for three years and is entitled to the
protection of her property rights.
[20] I find that the applicant is entitled to an eviction order and that the 1 st respondent
and those occupying through her must vacate the property by the end of November
2025.
[21] The lease agreement in terms of which the 1 st respondent occupied the
applicant’s property provided in clause 18.2 that the lessee (first respondent) -
11 The 1st respondent’s fiancé attended court.
12 Compare City of Johannesburg v Changing Tides 74 (Pty) Ltd and others 2012 (6) SA 294
(SCA) paras 18 and 25 and Grobler v Phillips and others 2023 (1) SA 321 (CC) paras 39
and 44.
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“shall be liable for, and shall pay to the LESSOR all legal costs and
disbursements incurred by the LESSOR on the scale as between
Attorney and Client in the event of it being necessary for the LESSOR
to instruct legal representatives or to institute proceedings in order to
recover any amounts due and payable by the LESSEE in terms
hereof or to enforce compliance by the LESSEE with any of the
LESSEE’s obligations in terms hereof.”
[22] The applicant is contractually entitled to attorney and client costs and there is no
reason to not enforce the contract.
[23] For these reasons I make the order set out above.
_____________
MOORCROFT AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the Parties / their
legal representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date of the judgment is deemed to be 22 OCTOBER 2025
APPEARANCE FOR THE APPLICANT: J E MANNERING
INSTRUCTED BY: BMV ATTORNEYS
APPEARANCE FOR THE FIRST AND SECOND
RESPONDENTS
FIRST RESPONDENT IN
PERSON
INSTRUCTED BY: -
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DATE OF ARGUMENT: 15 OCTOBER 2025
DATE OF ORDER: 16 OCTOBER 2025
DATE OF JUDGMENT: 22 OCTOBER 2025
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