Badenhorst and Others v City Of Ekurhuleni Metropolitan Municipality and Others (00052/2023) [2023] ZAGPJHC 190 (8 March 2023)
The court held that the execution of the eviction order by the first, third, and fourth respondents in the absence of the Sheriff was unlawful and amounted to spoliation. The same reasoning applied to the order for restoration of possession to the applicants. The court confirmed that the applicants were entitled to...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 190
- Parties
- Applicant: Jerome Badenhorst; Applicant: The Unlawful Occupiers of the Immovable Properties at Portion 102, Holgatfontein 36 IR Nigel, also known as Mackenzieville Extension; Respondent: City Of Ekurhuleni Metropolitan Municipality; Respondent: The Sheriff of the High Court, Nigel; Respondent: The South African Police Services, Nigel; Respondent: City Of Ekurhuleni Metropolitan Police Department
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 00052/2023
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal and Provision of Reasons for Order
- Outcome
- Leave to appeal was considered and reasons for the restoration order were provided. The court confirmed its previous orders.
- Judges
- S D J Wilson
- Legal Topics
- Eviction, Spoliation, Restoration of Possession, Execution of Court Orders
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jerome Badenhorst
Applicant
The Unlawful Occupiers of the Immovable Properties at Portion 102, Holgatfontein 36 IR Nigel, also known as Mackenzieville Extension
Applicant
City Of Ekurhuleni Metropolitan Municipality
Respondent
The Sheriff of the High Court, Nigel
Respondent
The South African Police Services, Nigel
Respondent
City Of Ekurhuleni Metropolitan Police Department
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Provision of Reasons for Order
Legal Issues
- 1 Whether the execution of the eviction order in the absence of the Sheriff was lawful.
- 2 Whether the applicants are entitled to restoration of possession of the properties from which they were evicted.
Ratio Decidendi
The court held that the execution of the eviction order by the first, third, and fourth respondents in the absence of the Sheriff was unlawful and amounted to spoliation. The same reasoning applied to the order for restoration of possession to the applicants. The court confirmed that the applicants were entitled to be restored to the properties from which they were evicted, as the eviction was not lawfully executed.
Court Disposition
Leave to appeal was considered and reasons for the restoration order were provided. The court confirmed its previous orders.
Orders
- The applicants evicted are to be restored to possession of the properties from which they were removed.
- The execution of the eviction order in the absence of the Sheriff is declared unlawful.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case No. 00052/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 8 March 2023
In the matter between:
JEROME BADENHORST First Applicant
THE UNLAWFUL OCCUPIERS OF THE IMMOVABLE
PROPERTIES AT PORTION 102, HOLGATFONTEIN 36 Second &
IR NIGEL, also known as MACKENZIEVILLE EXTENSION Further Applicants
and
CITY OF EKURHULENI METROPOLITAN MUNICIPALITY First Respondent
THE SHERIFF OF THE HIGH COURT, NIGEL Second Respondent
THE SOUTH AFRICAN POLICE SERVICES, NIGEL Third Respondent
CITY OF EKURHULENI METROPOLITAN POLICE
DEPARTMENT Fourth Respondent
JUDGMENT
WILSON J:
1 Earlier today, I handed down a judgment explaining my reasons for making an order declaring that the first, third and fourth respondents’ execution of an eviction order in the absence of the second respondent, the Sheriff, on 28 February 2023, was unlawful. The judgment was handed down in response to an application for leave to appeal brought by the first respondent, Ekurhuleni Municipality, against that declaratory order, and a request that I provide my reasons for making it.
2 During the course of that judgment, I pointed out, as an aside, that Ekurhuleni Municipality had not applied for leave to appeal against a further order I made, ancillary to the declaratory order, that those of the applicants evicted be restored to possession
of the properties from which they were removed.
3 The observation appears to have provoked a further application for leave to appeal against that aspect of the order, for which I
have now been asked to provide a second set of reasons.
4 To the extent that Ekurhuleni Municipality’s legal representatives could have been in any doubt, I confirm that my reasons for ordering that the applicants be restored to the properties from which they were evicted are the same as my reasons for declaring the eviction to have been unlawful. As I said in my main judgment, the purported execution of the eviction order was “no more than a spoliation. I treated it as such”.
S D J WILSON
Judge of the High Court
HEARD ON: 3 March 2023
DECIDED ON: 8 March 2023
For the Applicants:
D Brown
Instructed by:
Chris Billings Attorneys
For the First Respondent:
E Sithole
Instructed by:
Lebea Inc Attorneys