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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2024-121331
In the matter between:
SELLO MKHONDO N.O FIRST APPLICANT
WARREN CASTLE N.O SECOND APPLICANT
And
BEN NTENTE MASHILO AND THOSE LISTED
IN ANNEXURE ‘A’ TO THE NOTICE OF MOTION FIRST RESPONDENT
SHANE NGOBENI AND THOSE LISTED
IN ANNEXURE ‘B’ TO THE NOTICE OF MOTION SECOND RESPONDENT
PROMISE RAMASELA LANGA AND THOSE LISTED
IN ANNEXURE ‘C’ TO THE NOTICE OF MOTION THIRD RESPONDENT
CITY OF TSHWANE METROPOLITAN MUNICIPALITY FOURTH RESPONDENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
30 January 2026 __________________________
DATE SIGNATURE
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Heard: 4 November 2025
Delivered: 30 January 2025
Headnote: Eviction – the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act– lis pendens – withdrawal of prior proceedings – case management
Summary: An eviction application under Part “B” of PIE served before the urgent court
but was struck for lack of urgency. The court exercised case -management powers to
determine preliminary issues only. Earlier eviction proceedings under a separate case
number had been referred to trial and later withdrawn, at least insofar as they concerned
the occupiers cited as third respondents in the present application. Held that lis pendens
is a dilatory plea requiring pending litigation between the same parties in r espect of the
same relief. Where the prior proceedings had been withdrawn against the third
respondents, no pending litigation existed capable of barring Part “B”. The court declined
to pronounce on the status of an interim s 5 eviction order granted again st other
respondents and not prosecuted on appeal, holding that such issues fell outside the
scope of the preliminary enquiry. Preliminary objections dismissed. Matter case-managed
and referred for allocation of the main eviction application.
JUDGMENT
WINDELL J:
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Introduction
[1] The “B” part of this application in which the applicants seek the eviction of the third
respondents from Thembelihle Village, 83 Struben Street, Pretoria (“the property”) ,
served before me in the urgent court on 15 August 2025. Urgency was not established
and the matter was accordingly struck from the urgent roll. However, in light of the
historical complexity of the dispute, the multiplicity of related proceedings, and the evident
need for judicial intervention to ensure orderly progression towards final determination, I
issued case management directives and directed that the preliminary issues be dealt with
first.
[2] It was undisputed that the property from which the eviction is sought is situated
less than one kilometre from the Pretoria High Court. Although the matter was launched
in Johannesburg, both courts exercise concurrent jurisdiction. In the interests of access
to justice, a constitutional imperative particularly relevant where a large gr oup of
vulnerable occupiers is involved, I exercised my inherent powers to mero motu transfer
the matter to the Gauteng Division, Pretoria. I further directed that the National and
Provincial heads of the Department of Human Settlements, including the Social Housing
Regulatory Authority be joined to ensure that all persons with a direct and substantial
interest are before court when the section 4 eviction application proceeds to final
argument. A date was accordingly arranged for 15 September 2025.
[3] The matter could not proceed on that date for reasons unrelated to the conduct of
any of the parties, and was postponed to 4 November 2025, when the preliminary issues
were argued before me at Pretoria High Court. Those preliminary issues are the subject
of this judgment.
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Background
[4] The historical context is important. The application concerns the eviction of three
distinct groups of occupiers residing in the property. The property is operated by a
company, Yeast City Housing NPC ( Yeast City’), as a social housing project. The
application is brought by Yeast City’s duly appointed business rescue practitioners and is
structured in two parts, Part “A” and Part “B”, directed at different groups of occupiers and
seeking different forms of relief.
[5] Part “A” of the application served before the urgent court and was heard by Adams
J on 27 November 2024. On 5 December 2024 the court granted interim relief in terms of
section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
(“PIE”) against two distinct groups of occupiers:
(a) The first respondents, being the occupiers listed in annexure “A”, were described by
Adams J as a group of persons who, according to the applicants, were in unlawful
occupation of several units at the property, and whom the applicants believed to be
responsible for the rental boycott at the property and for intimidating the applicant’s staff
and agents.
(b) The second respondents, being the occupiers listed in annexure “B”, were described
by Adams J as a further group of persons who, according to the applicants, were likewise
in unlawful occupation of several units at the property and withholding rental. Adams J
recorded that eviction proceedings under section 4 of PIE had already been instituted
against this group.
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[6] Crucially, the order against the first and second respondents was expressly
granted pending the finalization of eviction proceedings under case number 2022-
060823, instituted in terms of section 4 of PIE. The relief was thus temporary and
conditional and did not determine the applicants’ entitlement to final eviction against the
first and second respondents.
[7] In respect of the third respondents, the applicants in Part “A” sought eviction from
the units they occupied, coupled with relocation to alternative units within the property,
pending the outcome of Part “B”, in which a final order of eviction is sought against them.
Adams J granted an order against the third respondents on an urgent basis , directing
them to relocate from the units they then occupied to designated units within blocks 1, 2,
3 and 4 on the property . The court also o rdered the fourth responden t, the City of
Tshwane, to conduct occupancy audits and assessments to determine their personal
circumstances and eligibility for temporary emergency accommodation. Leave was
granted to supplement the founding papers in Part “B”, and the costs of the urgent
application were expr essly reserved for determination in the proceedings dealing with
final eviction.
[8] Leave to appeal this order was granted by Adams J on 13 March 2025. The appeal
was not prosecuted and has since lapsed.
The occupiers
[9] The distinctions between the occupiers and the relief sought against them in the
different stages of the application are material. The respondents before court do not
constitute a single class, and the relief sought and granted against each group has
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differed at various stages of the litigation. The first and second respondents were the
subject of urgent interim eviction relief under section 5 of PIE, granted pending the
finalisation of eviction proceedings under a separate case number. By contrast, th e third
respondents were not evicted on an urgent basis, but were permitted to remain in
occupation subject to relocation and assessment by the City of Tshwane. The procedure
followed in respect of each group, the factual allegations relied upon, and the i nterim
protections afforded to them have therefore not been identical.
[10] Before me is only Part “B” of the application, which concerns the third respondents.
They raised a series of in limine objections, the principal ground being lis pendens ,
premised mainly on the eviction proceedings instituted under case number 2022/060823,
as well as objections grounded in procedural fairness. The respondents further invited the
court to determine whether the interim order granted under Part “A” remains operative
following the grant of leave to appeal, which appeal was never prosecuted. Those
contentions must be addressed in the assessment of the preliminary issues.
The status of the litigation under case number 2022/060823.
[11] In January 2023 an earlier eviction application under case number 2022/060823
served before Dlamini J. The dispute at that stage concerned the same property, a
substantially overlapping class of occupiers, and final eviction relief was sought in terms
of section 4 of PIE. Owing to disputes of fact, Dlamini J referred the matter to trial.
[12] The papers before me indicate that the applicants did not pursue the matter to
trial. Instead, after the plea of lis pendens was raised by the respondents in these
proceedings, the applicants withdrew the proceedings under case number 2022/060823
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at least insofar as they concerned the occupiers who are cited as the third respondents
in the present application. Whether the withdrawal extended beyond those occupiers to
include the first and second respondents is not necessary to determine for present
purposes.
[13] What is material is that, at the time the preliminary issues in this matter were
argued, the third respondents were no longer parties to the proceedings under case
number 2022/060823. The respondents nevertheless rely on the earlier referral to trial in
that matter to contend that the present application is barred by lis pendens. The validity
of that contention must be assessed on the basis of the current status of the litigation as
it relates to the third respondents.
The lis pendens objection
[14] Lis pendens is a dilatory plea. Its purpose is to prevent the duplication of litigation
and the possibility of conflicting judgments where there is pending litigation between the
same parties, based on the same cause of action, in respect of the same subject matter.
The requirements for the successful invocation of the plea are well established: there
must be pending litigation; between the same parties; based on the same cause; and in
respect of the same relief. 1
[15] Even where these requirements are prima facie present, the plea is not absolute.
The court retains a discretion whether to stay or dismiss later proceedings, having regard
to considerations of fairness, convenience and the interests of justice. The doctrin e is
1 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others (741/12) [2013]
ZASCA 129 paras [1] to [3]; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA).
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designed to promote the efficient administration of justice, not to create procedural
obstacles that delay the final resolution of disputes.2
[16] In the present matter, the lis pendens objection is advanced primarily on the basis
of the eviction proceedings instituted under case number 2022/060823. As already
explained, those proceedings were withdrawn at least insofar as they concerned the third
respondents, who are the only respondents affected by Part “B” of the present application.
At the time the preliminary issues were argued, the third respondents were no longer
parties to the earlier proceedings.
[17] In these circumstances, one of the essential requirements for lis pendens is
absent. There is no pending litigation under case number 2022/060823 involving the
same parties as those against whom eviction relief is sought in Part “B”. Whatever the
position may be in relation to the first and second respondents, that litigation d oes not
concern the third respondents and cannot bar the adjudication of the relief sought against
them in these proceedings.
[18] The respondents contend that the earlier referral to trial under case number
2022/060823 is, in itself, sufficient to found the plea. That contention cannot be sustained.
Lis pendens operates with reference to pending litigation as it exists at the time the plea
is determined. A referral to trial in proceedings that have subsequently been withdrawn
as against the relevant parties cannot, without more, constitute pending litigation for
purposes of the doctrine.
2 Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T).
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[19] The fact that the withdrawal occurred after the lis pendens point was raised does
not alter the analysis. The court is required to consider the legal position as it stands when
the objection is adjudicated. Once the earlier proceedings were withdrawn in relation to
the third respondents, there was no longer any parallel litigation capable of supporting the
plea against them.
[20] In any event, even if it were assumed in favour of the respondents that there was
sufficient overlap between the proceedings to trigger consideration of lis pendens, this
would be an appropriate case in which to exercise the court’s discretion against upholding
the plea. The present application seeks final eviction relief against the third respondents
under Part “B”, following a complex and protracted procedural hist ory. To stay these
proceedings would serve only to prolong uncertainty and delay the determi nation of
issues that must, in any event, be resolved.
[21] This is particularly so in eviction matters under PIE, where courts are enjoined to
deal with disputes in a manner that is just, equitable and expeditious, and where
prolonged procedural skirmishing may itself have adverse consequences for both
property owners and occupiers.
[22] It is in this context that the respondents’ further reliance on other proceedings must
be considered . In addition to the proceedings under case number 2022/060823 , the
respondents sought to involve proceedings that served before Potteril J as part of their lis
pendens argument (Case number 2022-011320).
[23] That reliance is misplaced. The matter before Potterill J did not constitute an
eviction application under section 4 of PIE and did not seek, nor result in, final eviction
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relief. The order made in that matter was procedural in nature and directed the parties to
engage in mediation.
[24] A referral to mediation does not amount to pending litigation for purposes of lis
pendens. It is not a determination of rights and cannot result in executable relief. The
Potterill J proceedings therefore do not involve the same cause of action or the same
relief as that sought in Part “B” of the present application and cannot operate as a bar to
its adjudication.
[25] For these reasons, the plea of lis pendens cannot succeed.
The procedural fairness objection
[26] The respondents also contend that the present proceedings are procedurally unfair
and should not be permitted to proceed. This objection is advanced with reference to the
overall conduct of the litigation, including the institution and withdrawal of earlie r
proceedings, the sequencing of applications, and the filing of supplementary affidavits at
various stages.
[27] It is correct that the procedural history of this matter is complex and that the
litigation has not followed a linear course. Multiple applications have been launched over
time, interim relief has been sought and granted, proceedings have been withdrawn in
part, and additional affidavits have been filed as the factual landscape has evolved. That
history, however, must be assessed in context. It reflects not only the conduct of the
applicants, but also the differentiated treatment of distinct groups of occup iers, the
involvement of the City of Tshwane, and the need to address urgent risks pending the
final determination of eviction.
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[28] Procedural fairness in motion proceedings does not require procedural neatness
or an absence of complication. It requires that parties be afforded a fair opportunity to
know the case they are required to meet and to place their version before court. In the
present matter, the third respondents have been afforded that opportunity. They are
legally represented, have delivered answering affidavits, and have raised comprehensive
preliminary objections, including lis pendens and objections relating to the status of earlier
proceedings and interim orders.
[29] To the extent that the respondents rely on the withdrawal of the proceedings under
case number 2022/060823 as a basis for procedural unfairness, that contention cannot
be sustained. The withdrawal did not deprive the third respondents of any accrued
procedural entitlement in those proceedings. On the contrary, it resulted in those
proceedings no longer being pursued against them. The present application under Part
“B” was thereafter instituted, and the respondents have been afforded the full procedural
protections attendant upon eviction proceedings under section 4 of PIE.
[30] I have already recorded concerns regarding aspects of the manner in which the
litigation has been conducted, including the fragmented filing of affidavits and the late
delivery of material. Those concerns are properly addressed through the exercise of case-
management powers and the issuing of clear directives going forward. They do not,
however, justify the striking down or staying of the present proceedings on grounds of
procedural unfairness.
[31] The procedural fairness objection therefore cannot succeed.
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The status of the Part “A” order
[32] The interim relief granted under Part “A” by Adams J was expressly framed as
temporary relief, granted pending the finalisation of eviction proceedings instituted under
a different case number. The order did not purport to determine finally the rights of th e
parties, nor did it regulate the position of the third respondents by way of final eviction.
[33] The respondents contend that, because the eviction proceedings to which the Part
“A” order was tethered have since been withdrawn, this court is now required to determine
whether the interim order remains operative. That submission cannot be accepted.
[34] The withdrawal of the earlier proceedings may well have implications for the
continued operation or practical effect of the interim order granted under Part “A”.
However, that question does not arise for determination in the present proceedings.
Before me is only Part “B” of the application, which concerns the third respondents, and I
am seized solely with the determination of preliminary issues and the exercise of case -
management powers. It would therefore be neither necessary nor appropriate to
pronounce on the status or consequences of the Part “A” order in this judgment.
[35] Any dispute regarding the effect of the withdrawal of the earlier proceedings on the
interim relief granted under Part “A” must be addressed, if at all, in proceedings directly
concerned with the enforcement or variation of that order, or by the court seized with the
determination of the substantive eviction relief.
Conclusion on the preliminary issues
[36] The preliminary objections raised by the respondents, including the plea of lis
pendens and the objections grounded in procedural fairness, have not been sustained.
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The withdrawal of the proceedings under case number 2022/060823 insofar as they
concerned the third respondents means that there is no pending litigation capable of
barring the adjudication of Part “B” of the present application. Nor has procedural
unfairness been established.
[37] It bears emphasising that this judgment is confined to the determination of
preliminary issues and the exercise of case -management powers. I express no view on
the merits of the eviction application under Part “B”, which will fall to be determined by
another court on a full consideration of the evidence and the just and equitable enquiry
mandated by PIE.
[38] It is now necessary to issue directions to ensure that the matter is properly case -
managed and made ready for the hearing of the main eviction application.
Case management directions
[39] In order to ensure that the Part “B” eviction application proceeds in an orderly,
efficient and procedurally fair manner, and to avoid further interlocutory skirmishes, the
following case management directions are issued:
[40] The applicants are directed, within 15 days of this judgment, to file an updated
consolidated index and record comprising all affidavits, annexures and court orders filed
to date that are relevant to Part “B” of the application.
[41] The applicants are further directed, within the same period, to file a schedule
identifying the third respondents, indicating for each:
(a) the unit presently occupied;
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(b) whether relocation has occurred pursuant to the interim order;
(c) the status of any assessment conducted by the City of Tshwane;
(d) and whether the household has been identified as qualifying for temporary
emergency accommodation.
[42] The City of Tshwane is directed, within 30 days of this judgment, to file an updated
affidavit confirming:
(a) the steps taken to comply with the order of Adams J;
(b) the current status of occupancy audits and assessments relating to the third
respondents;
(c) the availability, nature and location of any temporary emergency accommodation
identified; and
(d) any further steps required to place the matter in a position where the court seized
with Part “B” can conduct the just and equitable enquiry required by section 4 of
PIE.
[43] No further affidavits may be filed by any party without the prior leave of the court.
Any application for leave must be brought on notice and must provide a full explanation
for the necessity of the further affidavit and the reasons why the material could not have
been placed before court earlier.
[44] In transferring the matter to the Gauteng Division, Pretoria, I directed that the
National and Provincial Heads of the Department of Human Settlements, as well as the
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Social Housing Regulatory Authority, be joined as parties to the proceedings. That
direction was issued to ensure that all organs of state and entities with a direct and
substantial interest in the relief sought are before court when the section 4 eviction
application is finally adjudicated.
[45] It is apparent that, to date, those parties have not been formally joined.
Compliance with the joinder direction is not optional. Their participation is integral to the
court’s ability to conduct the just and equitable enquiry required by PIE, particularl y in
relation to housing obligations, regulatory oversight and the availability of alternative
accommodation.
[46] The applicants are accordingly directed to effect joinder of the National and
Provincial Heads of the Department of Human Settlements and the Social Housing
Regulatory Authority within 20 days of this judgment, and to file proof of service and
amended papers reflecting such joinder.
[47] No further steps may be taken to enrol Part “B” of the application for hearing unless
and until such joinder has been effected. Any failure to comply with this direction may
result in the postponement of the matter, an adverse costs order, or such further case-
management measures as the court hearing the eviction application may deem
appropriate.
[48] Once the above steps have been completed, the parties are directed to jointly
approach the Acting Deputy Judge President, Davis J, for the allocation of a hearing date
for the determination of Part “B” of the application. The Registrar is directed to rende r all
necessary assistance in that regard.
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Costs
[49] Although the preliminary objections raised by the respondents have not
succeeded, the litigation history reflects a fragmented and procedurally complex path, to
which more than one party has contributed. In the exercise of my discretion, and mindful
that this judgment is concerned only with preliminary issues and case management, I
consider it appropriate that each party bears its own costs in respect of the in limine
proceedings.
[44] In the result the following order is made:
1. The preliminary objections raised by the respondents, including the plea of lis
pendens and objections based on procedural fairness, are dismissed.
2. The matter is case -managed in accordance with the directions set out in
paragraphs [40] to [48] above.
3. Each party is to bear its own costs in respect of the preliminary issues.
4. The Registrar is directed to place the matter before the Acting Deputy Judge
President, Davis J, for the allocation of a hearing date for the determination of
Part “B” of the application.
_______________________________
L WINDELL
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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Delivered: This judgement was prepared and authored by the 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 for hand down is deemed to be 30 January 2026.
Appearances
For the applicants: A Laher
Instructed by: VMW Inc.
For the first to third respondents: T Pillay
Instructed by: Pillay Thesigan Inc
M Kufa
M Tshivhase
Instructed by: Mabaso C.L Attorneys
For the fourth respondent: O Peter
Instructed by: Majang Attorneys
Date of Hearing: 4 November 2025
Date of Judgment: 30 January 2026