Mtshali and Another v Masawi and Others (02312/2013) [2013] ZAGPJHC 92 (28 March 2013)

Mtshali and Another v Masawi and Others (02312/2013) [2013] ZAGPJHC 92 (28 March 2013)

The court found that the applicants failed to satisfy the requirements for rescission of the eviction order. They did not provide a reasonable explanation for their default nor demonstrate a bona fide defence with prospects of success. The applicants admitted to paying rent to a third party who had hijacked the building and did not dispute the lack of any agreement with the actual owners. Their arguments focused on procedural aspects rather than substantive rights to remain in the property. The court held that the applicants had no legal right to remain and that the owners were entitled to evict them. Regarding alternative accommodation, the court acknowledged the City of Johannesburg's...

Citation
[2013] ZAGPJHC 92
Parties
Applicant: Thokozani Mtshali; Applicant: The occupiers of 238 Main and Berea Street; Respondent: Tayengwa Masawi; Respondent: Trene Rumbinzai Maswai; Respondent: Phumangelakhe Makhaya; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: National Commissioner of South African Police
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2013
Case Number
02312/2013
Procedural Posture
Urgent Application / Application for Rescission of Eviction Order
Outcome
Application for rescission dismissed. Costs awarded against applicants and third respondent. City ordered to provide temporary accommodation.
Judges
E Molahlehi
Legal Topics
Eviction Proceedings, Rescission of Judgment, Alternative Accommodation, Prevention of Illegal Eviction Act, Constitutional Right to Housing
Land and Property Civil Procedure Constitutional Law Eviction Proceedings Rescission of Judgment Alternative Accommodation Prevention of Illegal Eviction Act Constitutional Right to Housing

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Parties

Thokozani Mtshali

Applicant

The occupiers of 238 Main and Berea Street

Applicant

Tayengwa Masawi

Respondent

Trene Rumbinzai Maswai

Respondent

Phumangelakhe Makhaya

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

National Commissioner of South African Police

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Eviction Order

Legal Issues

  1. 1 Whether the applicants have satisfied the requirements for rescission of the eviction order.
  2. 2 Whether the applicants have a bona fide defence with prospects of success.
  3. 3 Whether the City of Johannesburg is constitutionally obliged to provide alternative accommodation to the applicants rendered homeless by the eviction.

Ratio Decidendi

The court found that the applicants failed to satisfy the requirements for rescission of the eviction order. They did not provide a reasonable explanation for their default nor demonstrate a bona fide defence with prospects of success. The applicants admitted to paying rent to a third party who had hijacked the building and did not dispute the lack of any agreement with the actual owners. Their arguments focused on procedural aspects rather than substantive rights to remain in the property. The court held that the applicants had no legal right to remain and that the owners were entitled to evict them. Regarding alternative accommodation, the court acknowledged the City of Johannesburg's...

Court Disposition

Application for rescission dismissed. Costs awarded against applicants and third respondent. City ordered to provide temporary accommodation.

Orders

  • The applicants' rescission application is dismissed.
  • The applicants and the third respondent are to pay the costs of this application, jointly and severally, the one paying the other to be absolved.