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[2026] ZAGPPHC 505
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JR 209 Investments (Pty) Ltd v Homeless People Housing Cooperative Ltd and Others (058392/2026) [2026] ZAGPPHC 505 (14 May 2026)
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FLYNOTES:
CIVIL
PROCEDURE
–
Contempt
–
Disregard
of court orders
–
Property
owner sought contempt relief against housing cooperative
repeatedly interdicted from permitting unlawful occupation
and
development – Evidence showed demarcation, sale of plots and
influx of occupants despite prior clear orders –
Court
applied
Fakie
NO v CCII Systems
principles,
presumption of wilfulness and mala fides unrebutted – Bare
denials rejected under Wightman test, conduct
found flagrant
disregard of judicial authority – Cooperative declared in
contempt, fines imposed, directors interdicted,
punitive costs
awarded.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 058392/2026
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE14
May 2026
SIGNATURE
In
the matter between:
JR
209 INVESTMENTS (PTY)
LTD
Applicant
and
HOMELESS
PEOPLE HOUSING COOPERATIVE LTD
REG
NO:
2014/013419/24
First Respondent
SAMUEL
MANDHLA
SONGO
Second Respondent
KOLOBE
VIRGINIA
KGOMO
Third Respondent
SELO
SHARON
LEHONG
Fourth Respondent
MADUMETSA
THOMAS
MOJELA
Fifth Respondent
KEDIBONE
JOHANNES
SIBANYONI
Sixth Respondent
ABRAM
ABBEY KHWINANA SELOLO
Seventh Respondent
UNLAWFUL
INVADERS OF PORTIONS 8, 10 AND 38
OF
THE FARM WITKOPPIES 393,
EKURHULENI
Eighth Respondent
This
judgment 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
handing down is deemed to be 14 May 2026.
JUDGMENT
POTTERILL J
Introduction
[1]
In
a nutshell, JR 209 Investments (Pty) Ltd [JR 209] on an urgent basis
sought against the First Respondent, Homeless People Housing
Cooperative Ltd [HPH] a contempt of court order. JR 209 sought
against the Second to Seventh Respondents, the Directors of HPH
[the
Directors], an order seeking directory relief ordering the directors
to restrain from taking any steps, until legally entitled
to do so,
to
demarcate portions
of certain properties, sell any portions of land, demarcated or not,
to third parties,
and
cause any dwellings,
shacks, or similar structures to be constructed or erected on the
subject properties. The eighth respondent
is the unlawful
invaders of Portions 8,10 and 38 of the of the farm Witkoppies 393,
Ekurhuleni [the property]. No relief is sought
against them.
The common cause facts as
background
[2]
HPH is the owner of Portions 8,10 ad 38 of the Farm Witkoppies 393
JR, Ekurhuleni Local Municipality
collectively referred to as “the
Property.” JR 209 is the owner of the adjacent property. It is
not denied that HPH
is attempting to provide housing to people on its
property. Only the amount the people are paying for the land and
which “they
hope to achieve” is denied. It is also not
denied that these people are indigent people, just that JR 209 did
not address
the humanitarian and constitutional issues that their
ingenus can engage, without specifying what these issues are.
[3]
It is also not denied that this conduct of HPH has a protracted
history that has resulted in four
court orders granted against HPH.
The essence of the orders seeks to prevent the unlawful occupation
of, and establishment of informal
settlements on the property. It is
common cause that the property is zoned as agricultural land and not
residential land. The Subdivision
of Agricultural Land Act 70 of 1970
as well as the consent use and the zoning of the property allows for
only agriculture use of
the land. A township has not been proclaimed
and there is no permission for a township establishment. I interlude
in noting that,
HPH attached to its answering affidavit township
development applications and documents totaling 785 pages. Counsel
conceded that
these documents had no relevance to the orders sought
as they related to applications before 2018, long before the orders
were
granted against HPH and not in compliance with any orders. I
will return to this wasteful exercise later in the judgment.
[4]
The content of the orders is common cause, but as much of HPH’s
argument revolved around the
nature of the orders and against whom
the orders were granted I find it necessary to summarize and
reproduce the relevant content
thereof herein.
The Tuchten order
[5]
The Tuchten order was granted on 19 April 2019. JR 209 was the
first applicant, HPH the
first respondent and the unlawful occupiers
the third respondent. The relevant orders read as follows:
“
3.
The following order is granted as an interim order to operate with
immediate effect, pending the final determination
of the relief
sought in part [B] of this application:
3.1 The
Third Respondents are interdicted and restrained from invading,
taking occupation, demarcating and/or performing
any unlawful
building/construction on
Portion
10 of the Farm Witkoppies 393, Pretoria, Ekurhuleni;
Portion
8 of the Farm Witkoppies 393, Pretoria, Ekurhuleni;
Portion 38 of the Farm
Witkoppies 393, Pretoria, Ekurhuleni
(“the invaded
properties”);
3.2 The
Third Respondents are interdicted and restrained from conducting any
unlawful building and/or construction
on the invaded properties and
particularly dwellings/shacks and/or from delivering or causing to be
delivered any building materials
to the invaded properties;
3.3 The
First Respondent is ordered and directed to take any and all steps
necessary to enforce compliance with
this order on and in respect of
the invaded properties, to desist from any further unlawful use of
the invaded properties or granting
consent to do so, to prevent any
further invasion of the invaded properties by the third respondents,
unlawful use, unlawful conduct
on or in respect of, unlawful
occupation, unlawful erection of dwellings and particularly shacks at
the invaded properties.”
The
Millar order
[6]
The Millar order was granted on 26 April 2019 with JR 209 being the
first applicant and HPH the
first respondent.
“
3.
The first respondent is declared to be in contempt of the court order
granted by Tuchten [J] on
19 April 2019 under the above case number.
4.
A fine is imposed on the first respondent in the amount of R100,00,00
[ONE HUNDRED THOUSAND
RAND] and the payment thereof is suspended:
4.1
on condition that the first respondent forthwith complies with the
aforesaid order and continues to
do so in future;
4.2
until the establishment of townships on the subject properties and/or
the first respondent ceases to
be the owner of any one of the
properties, in which case that property is released from the
operation of this order but that the
remainder of the order will be
continue to the effective.
5.
The sheriff is hereby instructed to forthwith attend on the subject
properties and:
5.1
establish the precise number of dwellings and structures erected on
the subject properties since 19
April 2019 and allocate a number to
each such constructed structure/dwelling;
5.2
demolish each structure/dwelling erected since 19 April 2019 on the
subject properties;
5.3
report to each of the parties and the court on the amount of
structures/dwellings that were constructed
on the subject properties
as at 19 April 2019 and confirm the precise details of the occupants,
which must include the full names
and identity numbers of such
individuals, if any, of such dwellings;
5.4
to the extent that the structures/dwellings constructed on the
subject properties prior to 19 April
2019 are unoccupied, the sheriff
is instructed to demolish those structures/dwellings and the
respondents reserve their rights
in relation to each decision so
taken;
5.5
each party undertakes to co-operate with the sheriff in each and
every respect required for the enforcement
of this order.
The Fourie order
The
Fourie order was granted on 7 May 2020 and granted a provisional
liquidation order against HPH. The counterapplication for contempt
was postponed sine die with the costs reserved.
The Kollapen order
[7]
The Kollapen order was granted by agreement on 17 July 2020. The
provisional liquidation
order granted against HPH on 7 May 2020 was
revoked with HPH to pay JR 209’s legal costs in respect of the
previous legal
proceedings between JR209 and HPH in the total amount
R490,930.56, within 48 hours from the granting of this order, through
direct
deposit thereof into the trust account of the applicants’
attorneys of record.”
“
4.
The respondent shall ensure that it and its members comply with all
the orders granted in all the
previous legal proceedings between the
applicants and respondent and in the particular that;
4.1
until such time as legally entitled to do so no more than 52 persons
shall at any time be present, and no
further dwellings, shacks, or
similar structures, other than currently on the properties owned and
controlled by the respondent
as on the date of this order, shall be
constructed and/or erected thereon;
4.2 no
person shall illegally and unlawfully occupy the properties owned and
controlled by the respondent;
4.3 no
structures of any nature shall illegally an unlawfully be erected on
the properties owned and controlled
by the respondent; and
4.4
there shall be strict compliance with any applicable legislation
relating to the properties owned and controlled
by the respondent,
specifically with regard to the occupation thereof.”
[8]
The Fourie and Millar orders were successfully petitioned to the
Supreme Court of Appeal but were
not further prosecuted.
Points in limine raised
and arguments not proceeded with.
Urgency
[9]
It must be highlighted that this matter was not heard on the date set
down for the urgent application
because the pages exceeded the limit
of 500 pages and the answering affidavit was delivered the night
preceding the hearing leaving
JR 209 no time to file a replying
affidavit. The bulk of the papers were the annexures to the answering
affidavit, referred to
above which, as conceded, did not prove the
lawfulness of people settling on the property or were executed as
compliance after
the previous orders were granted.
[10]
The DJP referred the matter to a special court on a specific date.
Yet, the urgency was attacked in the papers
and for many pages in the
Heads of Arguments. This argument was, however, correctly abandoned
at the hearing excepting for the
costs thereof. However, HPH cannot
escape the only conclusion that the answering affidavit was bulked up
with irrelevant documents
so as not to be heard on the allocated
date.
Non-joinder of the
necessary parties
[11]
Much was made of the Municipality and “possible other relevant
competent public bodies”
not being joined as parties. The
outcome sought in this matter is a contempt of court order against
HPH and directory relief against
HPH’s directors. What
substantive interest in the outcome of this matter the Municipality
would have is inexplicable and
simply bad in law. Who the other
public bodies may be is not set out and is an example of the
non-evidential and misdirected nature
of the answer to JR 209’s
application. This argument was persisted with in HPH’s Heads of
Argument, but was abandoned
at the hearing.
Failure to comply with
the PIE Act
[12] It
was raised that the application was effectively an eviction order and
there was non-compliance with the
PIE Act. The order being sought is
clearly prospective, as were the previous orders granted and nobody
is to be evicted. This point
was also abandoned.
Defective commissioning
of the founding affidavit
[13] Of
all the spurious points raised, this was the most simulated. The
argument went that the stamp of the Commissioner
of Oaths on the
founding affidavit was not placed on the document at the same time as
the confirmatory affidavit. Notice
was given of a forensic
expert report. The report concluded as follows: “…
and that no handwriting characteristics
were identified in the
questioned signature indicating signature forgery in the ordinary
sense. Notwithstanding the aforesaid,
the expert expresses the
opinion that, on the probabilities, the questioned signature and the
comparison signature were written
at two separate instances and do
not share a common signature pool.”
[14]
Attached to the replying affidavit, in answer to this point raised in
the answering affidavit, the Commissioner
of Oaths made an affidavit
setting out that she commissioned the affidavit in terms of the Act.
But, in any event, the two stamps
can practically not be applied at
the same time, neither can the two signatures be appended at the same
time.
[15]
HPH then, 1 court day before the hearing, filed a notice in terms of
Rule 35(14) seeking the original stamps
and affidavits. This
application could not and would not be entertained and was also not
proceeded with. This served notice is
a prime example of the conduct
with which HPH approached this matter by abusing the Rules of Court.
I find it necessary to remark
that many of the points raised by HPH
reflect little credit on the legal practitioners responsible for
their preparation.
[16] I
do not address all the points raised, but that does not imply that I
did not consider all the points.
The application against
HPH for contempt
[17] JR
209 set out that despite the Court orders interdicting and
prohibiting HPH from unlawfully erecting structures
or allowing
structures to be erected on the property and from permitting its
property to be unlawfully invaded there is a flagrant
disregard of
the orders.
[18] In
the last week of February 2026 Mr. Boshoff, the owner of Formel
Security, providing security services
to JR209 and other properties
by means of a message on a WhatsApp group informed JR 209 that there
was a large group of people
gathering on portion 10 of the Property.
Mr. Boshoff sent two security guards to ascertain what was happening
on the Property.
The two security guards approached the Property from
different areas and spoke to different people on the Property. They
were informed
that one could buy a Property from HPH for R10 000.
The statements of the security guards are attached to the papers but
are
not under oath.
[19]
Mr. Ben van Wyk on 22 February 2026 from a hilltop inspected the
Property. He saw individuals demarcating
land and setting out
portions with white and red tape. There was a large group of people
as well as a white tent on portion 10
of the Property. Hlases survey
was the company busy with demarcation. He confirms this in an
affidavit and attached photographs
depicting demarcation, the vehicle
of the survey company, the tent and a board with HPH reflected
thereon on the Property.
[20] On
28 February 2026 there was a large gathering of people on the
Property. The station commander of Olifantsfontein,
Lieutenant
Colonel Magazi confirmed that he was present at the meeting. The
spokesman at the meeting informed the attendees that
the land was
being sold.
[21] On
the same day, a farmer, Mr. Dolf van der Westhuizen from a hilltop
observed portion 10. He took photographs
of what he saw. He observed
500 to 600 people standing in a queue, a large tent and 200 cars
parked in a dirt road. He saw people
demarcating land with poles and
plastic tape. He drove to the other side of the portion and saw an
individual plotting land with
what seemed to be a GPS device while
instructing another person to put a pole on the spot he indicated.
The photographs are before
Court.
[22]
The only engagement with these facts set up by HPH is “the
presence of persons, tents, motor vehicles,
or surveying activity
does not, without more, establish the sale of land, unlawful invasion
or contempt of court.” It was
argued that JR 209 was relying on
assumptions and hearsay. HPH never denied any of the facts put up by
JR 209 under oath, neither
was it prepared to, under oath, explain
what the tents, people and surveying activity in fact represented. It
remarks on a letter
written by the attorney for HPH attached to the
affidavit of JR209 wherein there is one sentence that expresses that
there is no
court order preventing HPH from holding its monthly
meeting. This is not repeated under oath and does not positively
state that
the vehicles, people and surveying activity had another
purpose, that of a monthly meeting. One can confidently assume that
explaining
surveying activity at a monthly meeting, under oath, would
be a stretch too far. There are simply no facts set up by HPH.
[23]
With no contrary facts set up under oath by HPH there is no dispute
of fact, let alone a real, genuine bona
fide dispute of fact. A real,
genuine and bona fide dispute of fact exists where the “party
who purports to raise the dispute
has in his affidavit seriously and
unambiguously addressed the fact set to be disputed.” And “When
the facts averred
are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing
evidence) if they be not true and correct, but instead
of doing so, rest his case on a bare or ambiguous denial the court
will
generally have difficulty in finding that the test is
satisfied.
[1]
[24]
Even with the Court disregarding the evidence of the two security
guards and the videos, the evidence is
overwhelming that surveying
and demarcation was taking place for plots to be sold. On the facts
put up by JR 209 there was demarcation
of parcels of land and selling
of these parcels of land to members of the eighth respondent in
February 2026. Putting up a tent,
demarcating plots of land, long
queues of people and many vehicles on the property under the control
of HPH is not adhering to
this order or the previous orders. It is
not evidence of HPH having no control over unidentified people, but
HPH inviting these
people.
The next question is
whether this conduct of HPH is in contempt of a court order or
orders.
Are the orders defective
for being broad and indeterminate?
[25]
On behalf of HPH the complaint was that the obligations imposed on it
was “to ensure compliance, to
“prevent unlawful
occupation” and to “take the necessary steps”. It
was argued that these formulations
were inherently open-ended,
ambiguous and undefined and therefore could not establish a basis for
contempt of court. HPH could
not be found to be in contempt of Court
where it had no control over unidentified people. Reliance was placed
on
Eke
v Parsons
[2]
that
the order must be sufficiently certain to be enforceable.
[26]
Millar J had found HPH to be in contempt of the Tuchten order. I must
accept that the orders by Tuchten were
sufficiently certain for a
contempt order to have been granted. JR 209 is also in this
application seeking a contempt order against
HPH for non-compliance
with the Tuchten order. I too find that the order of Tuchten
against HPH is sufficiently certain to
establish a basis for contempt
of court. HPH was ordered to desist from any further unlawful use of
the invaded properties or granting
consent for further unlawful use,
invasion and unlawful erection of any kind of dwelling on the
properties. HPH has no lawful right
to demarcate and sell plots on
portion 10. It in February was acting in direct contravention of the
unambiguous order of Tuchten.
[27]
JR 209 also seeks this Court to find that HPH is in contempt of the
Millar order. HPH was declared
to be in contempt of court of the
Tuchten order and a fine of R100 000 was imposed but suspended
on condition
HPH “forthwith complies with the aforesaid
order and continues to do so in future.” This order was made
operative until
the establishment of townships on the subject
properties and/or if HPH ceases to be the owner of any one of the
properties. This
order is not vague; HPH must comply with the order
of Tuchten and must continue to do so in the future. There is no
establishment
of a township on the property and HPH demarcating plots
is unlawful. This is contrary to the Tuchten order.
[28]
By agreement between the parties the Kollapen
order was made an order of Court. The Kollapen order could not be
more detailed. No
more than 52 persons were allowed on the property.
No further dwellings or shacks or similar structures may be erected
or
constructed on the property controlled by HPH. HPH is ordered to
ensure that its members comply with the orders granted. Only when
HPH
is legally entitled to do so may it allow more than 52 people on the
property. No structures or people are to illegally and
unlawfully
occupy the properties owned by HPH.
[29]
The orders are not broad and indeterminate, but sufficiently clear to
be enforced.
Did JR209 comply with the
requirements for a contempt of court order
[30]
An applicant for contempt must establish that an order was granted
against the alleged contemnor and that
the alleged contemnor was
served with the order or had knowledge thereof but failed to comply
with the order. “Once these
elements are established,
wilfulness and mala fides are presumed and the respondent bears an
evidentiary burden to establish a
reasonable doubt. Should the
respondent fail to discharge this burden, contempt will have been
established.”
[3]
[31]
JR 209 has established all three of the requirements. HPH has not put
any evidence before this Court to discharge
its evidential burden in
relation to willfulness and mala fides. The argument on behalf of HPH
that JR209 must prove beyond reasonable
doubt the willfulness and
mala fides is simply bad in law.
In
Fakie NO v CCII Systems (Pty) Ltd
[4]
the
Court found that “once the applicant has proved the order,
service or notice, and non-compliance, the respondent bears
an
evidential burden in relation to wilfulness and
mala
fides
:
should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt.”
JR 209 has proved all the requirements of the contempt of
court.
The relief sought against
the directors
[32]
There is no answer to the relief sought against the directors. The
relief sought against the directors is
a directive to enforce the
court orders in civil contempt proceedings.
[5]
The relief sought against the directors is compliance with the court
orders, functioning as the board of HPH. This relief
too must be
granted.
[33]
The disobedience of these Court orders constituted a violation of the
Constitution. HPH is not upholding
the rule of law and ignoring
the authority of the Judiciary. Contempt of court proceedings
exist to protect the rule of law
and the authority of the Judiciary.
In granting contempt of court orders the Court is acting “as
guardians of the Constitution,
asserting their authority in the
public interest.”
[6]
The suspension of the fine of R100 000 must be uplifted and the
fine must be paid. A further fine is necessary
for HPH to
experience a financial loss for the first time.
Costs
[34]
I see no reason why the general rule that the costs should follow the
result would not be applicable. JR
209 is seeking the costs on a
punitive scale. This was based on the abuse of the process to delay
the hearing of the urgent matter
by attaching the irrelevant
attachments of over 700 pages to the answering affidavit. This
conduct is to be frowned upon.
The many points raised in the
answering affidavit and persisted with in the heads but then
abandoned at the hearing was ill considered
and deliberate. This
resulted in the matter being set down for two days due to all the
issues raised, while it finished long before
lunch of the first day.
This is unbecoming behaviour of a litigant and constitutes an abuse
of the litigation process. The non-evidentiary
attack of JR 209’s
case and the points raised, plainly bad in law, is frowned upon can
be categorised as “cavalier
litigation”
[7]
justifying a punitive award of costs.
Order
[35] The
following order is made:
1.
The second to seventh respondents are interdicted and restrained from
taking any steps to, until such
time as the first respondent is
legally entitled to do so:
1.1.
demarcate portions of the subject properties,
1.2.
sell any portions of land, demarcated or not, to third parties, and
1.3.
cause any dwellings, shacks, or similar structures to be constructed
or
erected
on the subject properties.
2.
The first respondent is found to be in
contempt of Court of the Court Orders
granted
by:
2.1.
Tuchten J on 19 April 2019, under case number 24505/2019,
2.2.
Millar AJ on 26 April 2019, under case number
24505/2019, and
2.3.
Kollapen J on 17 July 2020, under case number
21712/2020.
3.
The suspension of the fine imposed by
Millar AJ against the first respondent, in
the
amount of R100,000.00, as a result of its (previous) contempt of
court, be
uplifted.
4.
A further fine of R500,000.00 be
imposed on the first respondent as a result of
its
persistent contempt of Court.
5.
The costs of this application be paid
by the respondents jointly and severally,
on
a scale as between attorney and client, the one paying the other to
be
absolved.
The costs to include the costs of two counsel, one on scale C and one
on scale B.
S. POTTERILL
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
CASE
NO: 058392/2026
HEARD
ON: 28 April 2026
FOR
THE APPLICANT: ADV. P.W.T. LOURENS
ADV.
R. VAN SCHALKWYK
INSTRUCTED
BY: Strydom Rabie Incorporated
FOR
THE 1
ST
AND 2
ND
RESPONDENTS:
ADV. S. AUCAMP
ADV.
J.H. MALAN
ADV.
S.G. WEBSTER
INSTRUCTED
BY: Jacques Classen Inc Attorneys
DATE
OF JUDGMENT: 14 May 2026
[1]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at par
[13]
[2]
Eke
v Parsons
2016
(3) SA 37
(CC) at par [29]
[3]
Secretary,
Judicial Commission of Inquiry into allegations of State Capture v
Zuma and Others
2021
(5) SA 327
(CC) par [37]
[4]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) par [42]
[5]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018
(1) SA 1
(CC) par [54]
[6]
Secretary,
Judicial Commission of Inquiry into allegations of State Capture v
Zuma and Others supra
par
[27]
[7]
Desert
Fruit v Smith
(20947/2018)
[2023] ZAWCHC 338
(13 December 2023)