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10am in urgent court are only justified where the urgency
arises on the day in which the application is heard . All
other matters ought to be s et down to be heard by the
urgent judge at 10am .
The night before, on 29 January , I had given
directions that the matter be called at 10 am and I directed
that the applicants inform the respondents that the matter
will be heard at 10 am and not at noon. I am satisfied that
the notice setting the application down at 10am was
transmitted electronically to the respondents that evening. 10
However, in the reconsideration application the
respondent’s attorney avers that he did not receive the
notice of set -down until 09:50 on 30 January – that is, ten
minutes before the matter was called.
On the papers before me there is no reason to
doubt that version and I am accordingly constrained to
accept that the respondents only received notice that the
matter would be heard at 10 am and not at noon, ten minutes
before the matter was called. In those circumstances it
seems to me to be in the interest s of justice to reconsider
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the order that I granted, in light of the answering affidavit
that the respondents have now filed .
Accordingly, I will reconsider the matter in terms of
Uniform Rule 6 (12) (c). The authorities on my function in
reconsidering one of my own orders are clear. I must give
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the order I would have given had I had the benefit of
evidence and argument from the respondents.
There were two components to my order . T he first
was the spoliation relief, which effectively restored the
applicants to the property. The second was an order
directing the applicants to ensure the reconnection of the
electricity to the property.
The order directing the reconnection of electricity
to the property appears at paragraph 4. 3 of my order. The
remainder of the order deals with an interdict against
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eviction and the restoration of the applicants to the
property.
I deal with the electricity relief first. At paragraphs
43 and 48 of their answering affidavit , the respondents
make it clear that the electricity supply to the property was,
at least on their version, disconnected by Eskom . Eskom
had apparently contacted the respondents to inform them of
a problem with the property’s account , and had sent its own
employees to the property to disconnect the applicants’
electricity supply.
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There is nothing on the papers before me that
would lead me to reject that version. On the ordinary rules
applicable to deciding applications for final relief on
affidavit, I am required to accept an allegation that is
reasonably substantiated, and that is clear and creditworthy
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on its face.
For those reasons I do not think my order directing
the reconnection of the electricity to the property can
survive reconsideration. The version is that the respondents
did not disconnect the electricity, Eskom did, and there is
nothing inherently improbable or uncreditworthy or vague
about that version.
The defence in the spoliation application is
somewhat different. The applicants say that they were
violently evicted. The respondents’ version on the papers is
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that the first applicant was not present at the time the
second and third applicants vacated. It is in fact alleged
that the first applicant is not resident on the property at all .
It is alleged that the second and third applicants vacated
the property of their own volition, taking their belongings
with them.
The history of this matter is a long and winding
road of litigation in the Magistrate’s Court and in this court,
in which the applicants have fought tooth and nail to hang
on to occupation of the property. Mr. Cassim, who
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appeared for the respondents, said that the applicants have
conducted themselves in bad faith with the sole intent of
living at the property rent free for as long as possible.
There was an application for back -rent in the
Magistrates ’ Court, which was granted by default. A
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rescission application directed at that judgment was
refused . A n appeal against the refusal of that rescission
was then launched, w hich, as I understand it, has not been
finally resolved. There is also an eviction application
pending against the applicants in this court.
A gainst those background facts, all of which are
common cause, I am asked to accept that on the date that
the applicants say the eviction took place, the second and
third applicants spontaneously decided, without coercion, to
leave the property, because they were fed -up with the
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situation.
The allegations in the answering affidavit do not
come close to substantiating such a case. This is in the first
place because the version the respondents put up is far-
fetched and untenable in all the circumstances. On the
ordinary principles applicable to fact -finding in applications
for final relief, the version falls to be rejected.
Moreover, and in any event, the applicants’
vacation of the property in the circumstances of this case
would have amounted to a waiver of their right to eviction
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only after a court order made after considering all the
relevant circumstances. That right arises both from section
26 (3) of the Constitution, 1996, and from the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998. The onus was accordingly on the respondents t o
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show that the vacation of the property was free, voluntary
and informed.
That this is the test for valid waiver of rights has
been accepted by our courts since at least the 192 0s. The
test for waiver was formulated authoritatively in Laws v
Rutherford 1924 AD 261, and was applied in the context of
eviction in Occupiers Berea v De Wet 2017 (5) SA 346 (CC) .
There, a unanimous Constitutional Court held , at paragraph
32, that, to be legally effective, consent to removal from
one’s home must be free and voluntar y “ with the full 10
awareness of the rights being waived ” in consequence.
Even if the respondents’ version is taken at face
value, this has not been established. The respondents do
not say in their papers that , fully aware of the
consequences of doing so, the second and third applicants
freely and voluntarily decided to vacate their home, their
occupation of which had been the subject of a protracted
dispute for at least several months . Accordingly, I cannot
find that the requirements for waver or consent have been
met.
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I need not draw any conclusions about the
applicants ’ good or bad faith, and it may well be that the
applicants are the disreputable individuals that Mr. Cassim
suggest s. It may well be that their occupation is in bad
faith, and it may well be that they have no intention of
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paying what is owed flowing from that occupation.
None of that is relevant. What is relevant is that
the applicants are entitled to insist on removal from the
property only after an order of court has been obtained , the
court having considered all the relevant circumstances.
There is no dispute in this case that there was no order of
court. In fact, it is accepted that there is an application for
one pending. In the absence of such an order the
requirements for wa iver had to be met, and for the reasons I
have given they were not met.
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I turn to the position of the first applicant. It was
suggested that the first applicant does not really live on the
property. That proposition is advanced on two bas es. The
first is that the applicant is not there when the respondents
come to visit, and the second is that in a credit bureau
report annexed to the answering affidavit the applicant
allegedly gave an address that was different from the
address at the property.
Given the surrounding circumstances of this case, I
cannot conclude from either of those allegations that the
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first applicant does not live at the property. There is
currently an eviction application pending against the first
applicant which entails the acceptance on the respondents’
part that he lives there . The records of the credit bureau
and his absence on various occasions on which the
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applicants have attended the property do not lead to the
inference that he no longer lives on the property in th ose
circumstances.
For all those reasons, upon reconsideration, I make
the following order –
1. The forms, service and time periods prescribed in
the Uniform Rules of the Court are dispensed with
and the matter is heard as one of urgency in terms
of Rule 6 (12) (c) of the Uniform Rules of Court.
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2. The order of Wilson J made in this matter on 30
January 2026 is reconsidered, varied and replaced
with this order.
3. The applicants’ eviction on 24 January 2026, from
the residential property known as 5 Silverfern
Close, Fernbrook Estate 959 Inchang Road,
Maroeladal, RANDBURG (“the Property”) is
declared unlawful in terms of section 26(3) of the
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Constitution, read together with section 8(1) of the
Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (“PIE”).
4. The first and second respondents are directed to:
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4.1. restore possession of the property to the
applicants with immediate effect; and
4.2. ensure that the applicants are granted full
and unimpeded access to the property and
their possessions, with immediate effect.
5. The first to fourth respondents whether themselves,
or through the agency of any other person, are,
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pending the finalisation of the eviction application
brought by the first to fourth respondents before
this court, interdicted and restrained from:
5.1. evicting, or attempting to evict the
applicants from the property without a valid
order of the court, executed by the Sheriff;
5.2 instructing, authorising, permitting, or
facilitating any person to evict, or attempt to
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evict the applicants from the property; and
5.3. interfering with the applicants’ peaceful and
undisturbed possession of the property,
including but not limited to: changing the
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