Occupiers of Erven 87 & 88 Berea v Frederick N.O and Another (2013/24254) [2016] ZAGPJHC 211 (5 February 2016)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION. JOHANNESBURG

CASE NO: 2013/24254

DATE: 5 February 2016

In the matter between:

THE OCCUPIERS OF ERVEN 87 & 88 BEREA.................................................................Applicant

And

DE WET. CHRISTIAAN FREDERICK N.O............................................................First Respondent

PARBHOO. ROYNATH N.O..................................................................................Second Respondent

JUDGMENT

[APPLICATION FOR LEAVE TO APPEAL]

ADAMS AJ:

[1] This is an application for leave to appeal against the whole order which I granted on the 12th of November 2015, in terms of which order I had dismissed the applicant’s application for a rescission of the eviction order

granted by Khumalo AJ on the 10th September 2013. In my order I reiterated the eviction order granted by Khumalo AJ, but had, for obvious reasons, amended the date by which the applicants were required to vacate the property to the 31st of January 2016. The applicants were also ordered jointly and severally to pay the costs of the respondents.

[2] In essence the application for Leave to Appeal is based on the grounds that the court a quo erred in finding that the applicants had consented to the eviction order, after notice of the application for eviction had been brought to their attention. The applicants, so it was argued on their behalf, could not have validly waived their constitutional and statutory rights as they were not aware of those rights.

[3] A further ground on which the application for Leave to Appeal is premised, is the fact that, according to the applicants, their right vis-a-vis the City of Johannesburg to be provided with emergency accommodation had not been taken into consideration. The court a quo, so the arguments go on behalf of the applicants, erred in not rescinding the Order of Khumalo AJ, which would have enabled the applicants to enforce their right to emergency accommodation against the City of Johannesburg.

[4j. It Is trite that the traditional test in deciding whether leave to appeal should be granted is whether there is a reasonable prospect that another court may come to a different conclusion to that reached by me in my judgment.

[5] The applicants have raised nothing new in this application for leave to appeal. This court has dealt with all the issues raised in this application for leave to appeal in its judgment and it is unnecessary to repeat those in full.

[6] Suffice to restate what I said in my judgment, that is that during September 2013 the applicants consulted their present attorneys of record, the Seri - SA Law Clinic, who have represented them in these and other legal proceedings since then. This means that since during September 2013, the applicants would have been made aware of their rights in relation to the eviction proceedings.

[7] They would have been advised of their constitutional and statutory right to emergency housing in the event of them being rendered

homeless as a result of being evicted from the property. Notwithstanding the aforegoing, there was no approach made by the applicants and / or their legal representatives to the City of Johannesburg with a view to placing the Council on terms to provide them with alternative accommodation in the event of them being evicted.

[8] I concluded that, having regard to all the circumstance in this matter, including the personal circumstances of the occupiers and in particular the possibility that their

eviction could lead to homelessness, they have not established a bona fide defence that carries some prospect of success.

[9] For reasons mentioned in the Judgment of the Court a quo, I was not persuaded that the applicants had demonstrated the existence of a bona fide defence to of the Respondents5 claim.

[10] I am still not persuaded that the applicants had bona fide defence.

[11] Moreover, I do not believe that there is a reasonable prospect that another court may come to a different conclusion to that reached by me. The application for leave to appeal therefore stands to be dismissed.

ORDER

[12]. In the circumstances the following order is made:

The application for leave to appeal is dismissed with costs.

L ADAMS

Acting Judge of the High Court Gauteng Locai Division, Johannesburg

HEARD ON: 5 February 2016

JUDGMENT DATE: 5th February 2016

FOR THE PLAINTIFF: Adv Wilson, with Adv. Hobden

INSTRUCTED BY: Seri - SA Law Clinic

FOR THE DEFENDANT: Adv Van der Merwe

INSTRUCTED BY: Vermaak & Partners Incorporated

GAUTENG LOCAL DIVISION\ JOHANNESBURG

CASE NO: 2013/24254 PH NO:

JOHANNESBURG, 05 February 2016

BEFORE THE HONOURABLE ACTING JUDGE ADAMS

In the matter between:-

THE UNLAWFUL OCCUPIERS OF

ER VEN 8 7 AND 88 BEREA Applicants

DE WET CHRISTIAN FREDERICK N.O....................................................................1st Respondent

PARBHOO ROYNATH N.O.........................................................................................2nd Respondent

THE SHERIFF OF JOHANNESBURG

CENTRAL MARKSMANGABA N.O............................................................................3rdRespondent

HAVING read the documents filed of record and having considered the matter IT IS ORDERED THAT:-

1. Application for leave to appeal is dismissed with costs.

BY THE COURT