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2026
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[2026] ZAGPJHC 381
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Da Costa N.O. and Others v Collins Arhin Darko Trading as First Choice Hair Salon and Others (2024/116243) [2026] ZAGPJHC 381 (8 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2024-116243
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
DA
COSTA N.O., AUGOSTINHO NUNES
First Applicant
DA
COSTA N.O., ANTONIO NUNES
Second Applicant
DA
COSTA N.O., JOAO PEDRO NUNES
Third Applicant
DA
COSTA N.O., MARY-ANNE
Fourth Applicant
DA
COSTA N.O., MARIA FIOMENA
Fifth Applicant
FERRAZ
N.O., VERONICA
Sixth Applicant
THE
BEST TRUST COMPANY JHB (PTY) LTD N.O.
Seventh Applicant
and
COLLINS
ARHIN DARKO TRADING AS
FIRST
CHOICE HAIR SALON
First Respondent
JULIET
ASIEDUA OFORI TRADING AS
FIRST
CHOICE HAIR SALON
Second Respondent
EKURHULENI
METROPOLITAN MUNICIPALITY
Third Respondent
JUDGMENT
DJ Smit, AJ
Introduction
[1]
This is an application for leave to appeal
against an eviction order granted on 9 March 2026.
[2]
Despite receiving notice, Mr Collins Arhin
Darko and Ms Juliet Asiedua Ofori (
tenants)
did not appear at the hearing of this
application. They were notified of the date and time of the hearing,
and the link for the
virtual platform, by email and by the post of a
widely shared note on CaseLines. The email used to notify them of the
hearing was
the same email as the tenants used to file their notice
of application for leave to appeal on 12 March 2026. My secretary
also
attempted to contact them on a cell number they had furnished in
their previous practice note.
[3]
The court accordingly proceeded to deal
with the application for leave to appeal in their absence.
Discussion of the grounds for leave to
appeal
[4]
The tenants filed a notice of application
for leave to appeal in which they raised their grounds of appeal. At
the hearing, counsel
for the landlord addressed each of these
grounds.
[5]
The tenants alleged that their occupation
of the premises was not unlawful, as they had signed a lease
agreement in 2024. They are
mistaken in that: the last lease was
signed on 24 June 2022, by both tenants (who also both furnished
copies of their passports
to the landlord when they signed the
agreement).
[6]
As I noted in the main judgment, this lease
agreement was lawfully terminated, at the latest when the eviction
application was instituted
in December 2024. If further authority is
needed for the proposition that the institution of an eviction
application itself constitutes
a valid termination of a lease,
counsel for the landlord referred me to
Magic
Vending (Pty) Ltd v Tambwe
2021 (2) SA
512
(WCC) para 12 (and the authorities referred to there).
[7]
In addition, the damages claim instituted
by the tenants against the landlord for allegedly unlawfully
terminating their access
to water and electricity has no bearing on
whether they are occupying lawfully or not. That case must be
disposed of on its own
merits.
[8]
I therefore conclude that there is no
prospect that another court would conclude that the tenants are
currently (and at least since
December 2024) in lawful occupation of
the premises.
[9]
In relation to whether an eviction is just
and equitable, the tenants alleged that the Ekurhuleni Metropolitan
Municipality erred
in taking into account the salary of Mr Darko (the
first respondent in the main application) in forming the view that
the tenants’
income exceed the threshold where emergency
accommodation would be offered as a matter of course.
[10]
The difficulty with this argument is that
Mr Darko lives on the property and co-signed the lease agreement as
tenant with Ms Ofori,
his wife. Their joint income and personal
circumstances must therefore be considered in the analysis whether
the eviction would
be just and equitable. Their joint income appears
to justify the conclusion that they would be able to find alternative
accommodation
with relative ease.
[11]
For this reason, there is no prospect that
another court would conclude that an eviction would not be just and
equitable.
Order
[12]
I make the following order:
a.
The application for leave to appeal is
dismissed.
b.
The first and second respondents are
ordered to pay the costs of the application for leave to appeal, on
Scale A.
DJ SMIT
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of hearing: 8 April 2026
Date of judgment: 8 April 2026
For
the Applicants (respondents in the application for leave to appeal):
For
the First and Second Respondents (applicants in the application for
leave to appeal):
KM
Boshomane instructed by Harris Incorporated
No
appearance