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2026
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[2026] ZAGPJHC 192
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Lukhele and Others v Humayl Prop Limited and Others (2026-018528) [2026] ZAGPJHC 192 (3 March 2026)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 2026-018528
1.
Reportable: No
2.
Of interest to other judges: No
3.
Revised
WRIGHT J
In
the matter between:
SIFISO
FRED LUKHELE
FIRST
APPLICANT
ETHEL
PLAATJIES
SECOND APPLICANT
VUYO
PLAATJIES
THIRD APPLICANT
and
HUMAYL
PROP LIMITED
FIRST
RESPONDENT
JUNAID
EBRAHIM
SECOND RESPONDENT
MARTHINUS
JOHANNES KAPP
THIRD RESPONDENT
KAPP
INCORPORATED ATTORNEYS
FOURTH RESPONDENT
THE
STATION COMMANDER, DOUGLASDALE
POLICE
STATION
FIFTH
RESPONDENT
JUDGMENT – WRIGHT J
– Section 18 - EXTREMELY URGENT APPEAL
1.
What is before us is purportedly an appeal heard
as a matter of extreme urgency under
section 18(4)(a)(ii)
and (iii)
of the
Superior Courts Act 10 of 2013
. It follows that not only is
the hearing on an extremely urgent basis but that judgment must be
delivered on the same basis.
2.
Section 18
is headed “
Suspension
of decision pending appeal
“ and reads:
“
(1)
Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which
is
the subject of an application for leave to appeal or of an appeal
,
is suspended pending the decision of the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders
otherwise, the operation and execution of a
decision that is an
interlocutory
order not having the effect of a final judgment
,
which is the
subject of an application for leave to appeal or of an appeal
,
is not suspended pending the decision of the application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the
party who applied to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer
irreparable harm if the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
(a)
If a court orders otherwise
, as contemplated in subsection (1)—
(i)
the
court
must
immediately record its reasons for doing so;
(ii)
the
aggrieved
party
has an automatic right of appeal to the next highest court;
(iii)
the
court
hearing
such an appeal must deal with it as a matter of extreme urgency; and
(iv)
such
order
will
be automatically suspended, pending the outcome of such appeal.
(b) “Next
highest court”, for purposes of paragraph (a)(ii), means—
(i)
a full court of that Division, if the appeal is against a
decision of a
single judge of the Division; or
(ii)
the Supreme Court of Appeal, if the appeal is against a decision of
two judges or
the full court of the Division.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject
of an application for leave to appeal or of an appeal
,
as soon as an application for leave to appeal or a notice of appeal
is lodged with the registrar in terms of the rules
.”
(My emphasis). In
section 1
, “
rules
“ is defined to mean the “
applicable
rules of court
”.
3.
Mr
Lukhele, Ms Plaatjies and Mr Plaatjies, through their attorneys,
launched an urgent application on Wednesday 28 January
2026 for
hearing on Friday 30 January 2026. They sought to be restored to
possession of certain residential property. Their claim
was one based
in spoliation. They sought too, an order that the first and second
respondents, Humayl and Mr Ebrahim restore the
supply of disconnected
electricity.
4.
The
application, apparently unopposed by Humayl and Mr Ebrahim at that
stage, came before Wilson J on 30 January 2026. Wilson J
granted
restoration of Mr Lukhele, Ms Plaatjies and Mr Plaatjies to the
property and ordered reconnection of the electricity.
5.
Humayl
and Mr Ebrahim then sought reconsideration of the order of 30 January
2026. They filed an affidavit in support of the reconsideration
request.
6.
On
4 February 2026, Wilson J reconsidered his original order and varied
it to delete reference to the restoration of electricity
by Humayl
and Mr Ebrahim.
7.
The
relevant parts of the order of 4 February 2026 read:
“
3.
The
applicants’ eviction on 24 January 2026, from the residential
property known as [...] S[...] C[...], F[...] Estate 9[...]
I[...]
Road, M[...], RANDBURG (“the Property”) is declared
unlawful in terms of section 26(3) of the 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:
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,
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 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 locks, disconnecting utilities, removing belongings, and/or
intimidating the occupants
.”
(My emphasis)
8.
In my view, this
order is interim. The words “
pending
the finalisation of the eviction application
“
in paragraph 5 of the order make this clear.
9.
On
11 February 2026, two applications were before Wilson J. Firstly, an
application by Humayl and Mr Ebrahim for leave to appeal.
Secondly,
an application by Mr Lukhele, Ms Plaatjies and Mr Plaatjies, under
section 18 (3) for leave to execute the order made
by Wilson J in
their favour pending possible further appeal or attempts thereat by
Humayl and Mr Ebrahim. Mr Lukhele, Ms Plaatjies
and Mr Plaatjies also
sought an order that electricity be restored and that Humayl and Mr
Ebrahim be found in contempt of court.
10.
On
12 February 2026, Wilson J dismissed the application by Humayl
and Mr Ebrahim for leave to appeal and made an order under
section 18
that - “
The
application for
interim
execution
succeeds, to the extent that, notwithstanding the noting of any
further applications for leave to appeal or appeals against my
order
of 4 February 2026, the applicants are forthwith to be restored to
occupation of the property at [...] S[...] C[...], F[...]
Estate
9[...] I[...] Road, M[...], Randburg.
“
Wilson
J further ordered that “
The
application for
interim
execution
is otherwise dismissed
.
“ (My emphasis)
11.
The
wording of this order does not, in my view change the order of 4
February 2026 from an interim one to a final one. The words
“
interim
execution
“ make this clear.
12.
Given
that the order of Wilson J, made under section 18 on 12 February 2026
was an interim order under section 18(2) and (3), there
is no room
for the application of section 18(4)(a) and its automatic right to an
appeal as a matter of extreme urgency. The words
“
as
contemplated in subsection 1-
“ in section 18(4)(a) clearly limit the operation of the
automatic right to an extremely urgent appeal to cases relating
to
final orders under section 18(1).
13.
It
would appear, from a document filed on behalf of Humayl and Mr
Ebrahim on 26 February 2026, that they had launched, on 25 February
2026, an application to the Supreme Court of Appeal, under section
17(2)(b), for leave to appeal the “
judgment
and orders
“
of Wilson J of 4 February 2026. There is apparently no application to
the SCA in which leave is sought to appeal the order
of 12 February
2026 or any part of the order. Section 17(2)(b) allows one month for
an application to be lodged with the SCA.
14.
Wilson
J was not seized with any application under section 18 on either 30
January 2026 or on 4 February 2026. He, for the first
time, dealt
with a section 18 application, brought by Mr Lukhele, Ms Plaatjies
and Mr Plaatjies on 11 February 2026. Judgement
was delivered on 12
February 2026 and in their favour.
15.
It
is difficult to see how the order of Wilson J of 12 February 2026
could be “
the
subject of an application for leave to appeal or of an appeal
“
absent an application to the SCA for leave to appeal, under section
17(2)(b). It would appear that we do not have jurisdiction
to hear
the present appeal. I need not dwell on this as I find that the order
of Wilson J of 12 February 2026 is not appealable
in any event.
16.
I
can find in the online court record, no notice of appeal relating to
the present appeal. One may exist. I say so, because on 24
February
2026 the attorneys for Mr Lukhele, Ms Plaatjies and Mr Plaatjies
filed a “
Notice
to Oppose – Automatic Appeal
”. The point is made in the notice that the present appeal is
bad in law as section 18 does not allow for the present appeal
where
the order sought to be appealed is interim. The point is also made
that the order apparently sought to be appealed is that
of 4 February
2026, rather than that of 12 February 2026.
17.
Mr
Mostert, for Humayl and Mr Ebrahim argued that while there is no
notice of appeal, there need not be. He raised three points.
Firstly,
section 18(4) creates a sui generis procedure. The appeal arises as
of matter of right under statute. Secondly, when the
Acting Deputy
Judge President, who allocated the present hearing date and appointed
the bench, he was not merely doing an administrative
task. He was
performing a judicial task and in so doing he did away with the need
for a notice of appeal. Through his actions,
the jurisdiction of this
bench was engaged. Thirdly, a notice of appeal is merely procedural
and the lack of such notice does not
detract from the right of Humayl
and Mr Ebrahim to an extremely urgent appeal. These submissions are
clearly without merit and
nothing more need be said about them.
18.
The
following paragraphs in the judgment of Wilson J, of 12 February
2026, in refusing leave to appeal and in dealing with section
18(3)
enforcement pending appeal place the matter in fuller context and
capture, correctly in my view, apart from the apparent
assumed
finality of the order of 4 February 2026, the relevant law, the
essential facts proved and the inferences to be drawn from
them:
“
4
.
Humayl’s defence to what
was essentially a spoliation application was that the first applicant
did not live at the property,
and so could not have been evicted from
it, and that the second and third applicants agreed to leave the
property when Humayl’s
representative, a Mr. Munchy, came to
the property with other employees of Humayl and functionaries of
Eskom on 24 January 2026.
Eskom was there to disconnect the
electricity supplied to the property. The respondents’ version
on the papers was that the
second and third applicants quit the
property of their own volition, the second applicant having expressed
frustration with the
first applicant’s conduct in relation to
the property.
5.
In
my judgment a quo I rejected that version as far-fetched,
in light of the material common cause facts. Those facts
were that
the parties had been locked in a protracted dispute about the
applicants’ occupation of the property for at least
several
months. There was a rental dispute in the Magistrates’ Court
and there is a hotly contested eviction application
pending in this
court. It was plainly unrealistic to suggest that the applicants
would have suddenly quit the property of their
own volition having
fought so hard for so long to remain there.
6.
In
any event, I found that, even if the respondents’ version is
taken at face value, I could not conclude, as the applicable
law
requires, that the second and third applicants’ vacation of the
property was free, voluntary and informed (see, generally,
Occupiers,
Berea v De Wet
2017
(5) SA 346
(CC)).
On the respondents’ version, the second applicant left the
property having had an angry altercation with the first
applicant, in
which she said "I am leaving this premises with my son [the
third applicant]. I had enough of your nonsense
and I will not take
the fall for you." This did not seem to me to be consistent with
a considered, informed decision to waive
the applicants’
constitutional right to stay at the property unless ordered by a
court to leave it.
7.
Mr. Cassim, who
appeared for the respondents, could not really gainsay this. He
emphasised what the respondents regard as the applicants’
bad
faith, repeatedly referred to the first applicant has a “building
hijacker”, and emphasised the rental and other
arrears said to
have been run up on the lease. But none of this bore on the question
of whether the second and third applicants
consented to leave the
property in the required legal sense. Even on the respondents’
version, that inference cannot reasonably
be drawn.
8.
Were
it otherwise, any spontaneous decision to leave one’s home
taken in the heat of the moment in the presence of a landlord’s
representative against the background of a tenancy dispute would
ground an inference of consent. Obviously, that cannot be. There
is
no prospect that a court of appeal would conclude that the decision
allegedly made to quit the property in this case was free,
voluntary
and informed.
9.
It
is the respondents’ version that the first applicant no longer
resides at the property because the records of a credit
reference
agency dug up by the respondents’ attorney specifies a
different address for him. I regarded that version as improbable
in
my judgment a quo, given that there is an eviction application
pending against the first applicant in which his residence
at the
property is acknowledged, and given also that he has fought tooth and
nail to retain possession of the property in those
proceedings. There
mere fact that a different address appears on the records of an
organisation with no direct knowledge of or
involvement in the
dispute is of no moment. Mr. Cassim could not persuade me that there
was any prospect that a court of appeal
would decide otherwise.
10.
For all these
reasons, the application for leave to appeal stands no prospects of
success, and will be dismissed.
Interim
execution
11
Subsections
18 (1) and (3) of the
Superior
Courts Act 10
of 2013
permit
the execution of a final order granted at first instance pending any
appeal against it, provided that three jurisdictional
requirements
have been met. These requirements are that there are exceptional
circumstances justifying such execution; that the
applicant for
interim execution will suffer irreparable harm if interim execution
is not permitted; and that the respondent will
suffer no irreparable
harm if it is.
12.
In
this case there are clearly exceptional circumstances, in that the
respondents’ prospects of success on appeal are very
weak
(see Zero Azania (Pty) Ltd v Caterpillar Financial Services SA
(Pty) Ltd
2024
(2) SA 574
(GJ),
paragraph 13).
13.
It
seems to me that the applicants are suffering irreparable and ongoing
harm in that they have been deprived of possession of a
property they
occupied as their home suddenly and without due process of law. Every
day that this situation is allowed to continue
constitutes
irreparable harm. The very purpose of the spoliation proceedings that
resulted in the order I granted was to promptly
reverse an unlawful
act of dispossession while a background dispute about the applicants’
right to occupy the property is
determined. It would be perverse
indeed if the respondents were permitted to short-circuit that
process by keeping the applicants
out of the property while pursuing
a meritless appeal based on the fanciful suggestion that the
applicants spontaneously abandoned
that dispute.
14.
There
can be no irreparable harm to the respondents in executing my order
pending appeal. If, against all appearances, the proposed
appeal is
pursued further and succeeds, the applicants will have to leave the
property. In any event, if the eviction application
the respondents
are presently pursuing against the applicants has the merit Mr.
Cassim claims, then the respondents’ true
remedy seems to me to
lie in the pursuit of that application. During argument Mr. Cassim
informed me that the documents relevant
to that application have been
exchanged, and that the registrar has been asked to allocate a date
for the hearing of the application.
On the lead times currently
applicable to opposed motions in this court, the respondents can
presently expect to be allocated a
date on or shortly after 1 June
2026 – long before any appeal against my order would be heard.
“
19
.
What is not before us now is the
question of which side is ultimately to succeed in the pending
litigation relating to eviction.
What might have been before us
now is the important principle that no person may be evicted against
his or her will without
due process.
20.
Given that no appeal lies against the
order of Wilson J of 12 February 2026, for the reasons given above,
we may not consider the
appeal and it must be removed from the roll.
21.
Given that the order of Wilson J of 4
February 2026 was interim in nature, any attempt at an appeal by
Humayl and Mr Ebrahim of
that order would not suspend the order of 4
February 2026, for the reasons set out above, unless they
successfully sought, under
section 18(3)
, that Mr Lukhele, Ms
Plaatjies and Mr Plaatjies not be allowed onto the premises pending
appeal. The
section 18(3)
application by Mr Lukhele, Ms
Plaatjies and Mr Plaatjies may have been unnecessary but that is
water under the bridge.
22.
On costs, Mr Magoma for Mr Lukhele, Ms
Plaatjies and Mr Plaatjies sought costs, on a punitive scale, against
Humayl and Mr Ebrahim.
He also sought that these costs be paid also
by Mr Kapp and his firm, the attorneys for Humayl and Mr Ebrahim. I
would not order
either punitive costs or costs to be paid personally
by attorneys. While not all of the arguments raised deserved serious
consideration,
some did.
ORDER
1.
The matter is removed from the roll.
2.
The costs of Mr Lukhele, Ms Plaatjies
and Mr Plaatjies, including those of counsel where so employed, are
to be paid jointly and
severally by Humayl Prop (Pty) Ltd and Mr
Junaid Ebrahim. Scale C applies.
WRIGHT
J
TWALA
J
I
agree
NOKO
J
I
agree
HEARD
:
27 February 2026
DELIVERED
: 3 March
2026
APPEARANCES
:
APPELLANTS
Mr M Mostert
Instructed
by
Kapp Attorneys Inc
tienie@kappas.co.za
litigation@kappas.co.za
Humayl
and Mr Ebrahim
Mr T Magoma
Instructed
by
Q Sato Attorneys Inc
Tshimangadzo@satoattorneys.co.za
Tshimangadzo1@gmail.com