Badenhorst and Others v City of Ekurhuleni and Others (52/2023) [2023] ZAGPJHC 289 (4 April 2023)

Badenhorst and Others v City of Ekurhuleni and Others (52/2023) [2023] ZAGPJHC 289 (4 April 2023)

The application for interim relief fails because the applicants have not demonstrated a prima facie right to the relief sought in Part B, namely entitlement to alternative accommodation. This issue was previously determined by Molahlehi J, who granted an unconditional eviction order and declined to direct provision of alternative accommodation. The applicants have not pursued an appeal or a variation under section 4(12) of the PIE Act, nor have they shown good cause for such variation. The principle of res judicata applies, and the court cannot revisit the merits of the original eviction order. However, due to the likelihood of changed circumstances and in the interests of justice, the...

Citation
[2023] ZAGPJHC 289
Parties
Applicant: Jerome Badenhorst; Applicant: The Unlawful Occupiers of 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: South African Police Service, Nigel; Respondent: City of Ekurhuleni Metropolitan Police Dept
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 April 2023
Case Number
52/2023
Procedural Posture
Urgent Application / Application for Interim Relief (part A) and Associated Reporting Orders (part B)
Outcome
Application for interim relief refused; execution of eviction order suspended with conditions.
Judges
S D J Wilson
Legal Topics
Eviction, Prevention of Illegal Eviction Act, Right to Housing, Interim Relief, Variation of Court Orders, Constitutional Rights
Land and Property Constitutional Law Civil Procedure Eviction Prevention of Illegal Eviction Act Right to Housing Interim Relief Variation of Court Orders +1 more

Case Brief

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Parties

Jerome Badenhorst

Applicant

The Unlawful Occupiers of 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

South African Police Service, Nigel

Respondent

City of Ekurhuleni Metropolitan Police Dept

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief (part A) and Associated Reporting Orders (part B)

Legal Issues

  1. 1 Whether the applicants are entitled to interim relief staying execution of the eviction order pending determination of their entitlement to alternative accommodation.
  2. 2 Whether the applicants have a prima facie right to alternative accommodation under section 4(12) of the PIE Act.
  3. 3 Whether the execution of the eviction order should be suspended and conditions imposed to protect constitutional rights.

Ratio Decidendi

The application for interim relief fails because the applicants have not demonstrated a prima facie right to the relief sought in Part B, namely entitlement to alternative accommodation. This issue was previously determined by Molahlehi J, who granted an unconditional eviction order and declined to direct provision of alternative accommodation. The applicants have not pursued an appeal or a variation under section 4(12) of the PIE Act, nor have they shown good cause for such variation. The principle of res judicata applies, and the court cannot revisit the merits of the original eviction order. However, due to the likelihood of changed circumstances and in the interests of justice, the...

Court Disposition

Application for interim relief refused; execution of eviction order suspended with conditions.

Orders

  • The relief sought in Part A of the application is refused.
  • The execution of the eviction order of Molahlehi J, dated 9 June 2021, is suspended until 5 May 2023.