Imalenia and Another v Khwela and Others (48512/2021) [2022] ZAGPJHC 835 (26 October 2022)

Imalenia and Another v Khwela and Others (48512/2021) [2022] ZAGPJHC 835 (26 October 2022)

The court found that the applicants are the lawful owners of the property, having acquired title through sale in execution and transfer by the sheriff. The respondents failed to establish any lawful right to remain on the property, did not provide sufficient evidence of indigence or risk of homelessness, and did not approach the municipality for alternate accommodation. The respondents’ repeated litigation, including multiple rescission and stay applications, was found to be obstructive and abusive of the court process. The court held that all procedural requirements under the PIE Act were satisfied, and that the matter was res judicata due to prior judgments. The respondents’ arguments...

Citation
[2022] ZAGPJHC 835
Parties
Applicant: Julius Imalenia; Applicant: Theresa Ojierakhi Eghonghon; Respondent: Stanley Khutha Khwela; Respondent: Maria Khwela; Respondent: Maureen Buyisile Masuku; Respondent: Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2022
Case Number
48512/2021
Procedural Posture
Eviction Application / Final Judgment
Outcome
Eviction order granted against the 1st, 2nd, and 3rd respondents and all persons occupying through them; respondents to vacate the property within 14 days; sheriff authorised to enforce eviction if necessary; costs awarded against respondents on attorney and client scale.
Judges
Mahomed
Legal Topics
Eviction, Unlawful Occupation, Prevention of Illegal Eviction Act, Res Judicata, Costs Award
Land and Property Civil Procedure Eviction Unlawful Occupation Prevention of Illegal Eviction Act Res Judicata Costs Award

Case Brief

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Parties

Julius Imalenia

Applicant

Theresa Ojierakhi Eghonghon

Applicant

Stanley Khutha Khwela

Respondent

Maria Khwela

Respondent

Maureen Buyisile Masuku

Respondent

Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Eviction Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to an eviction order against the respondents.
  2. 2 Whether the respondents have established any lawful right to remain on the property.
  3. 3 Whether there are material disputes of fact requiring referral to oral evidence or trial.

Ratio Decidendi

The court found that the applicants are the lawful owners of the property, having acquired title through sale in execution and transfer by the sheriff. The respondents failed to establish any lawful right to remain on the property, did not provide sufficient evidence of indigence or risk of homelessness, and did not approach the municipality for alternate accommodation. The respondents’ repeated litigation, including multiple rescission and stay applications, was found to be obstructive and abusive of the court process. The court held that all procedural requirements under the PIE Act were satisfied, and that the matter was res judicata due to prior judgments. The respondents’ arguments...

Court Disposition

Eviction order granted against the 1st, 2nd, and 3rd respondents and all persons occupying through them; respondents to vacate the property within 14 days; sheriff authorised to enforce eviction if necessary; costs awarded against respondents on attorney and client scale.

Orders

  • The application for eviction is granted.
  • Stanley Khutha Khwela, Maria Khwela, Maureen Sibuyisile Masuku, and all those living through them are to vacate the property known as ERF [....] situated at [....] D [....] Street Primrose Township Germiston Gauteng Province, within 14 days of service of this order.