Sehube and Another v City of Johannesburg Metropolitan Municipality and Others (42396/2020) [2021] ZAGPJHC 535 (13 October 2021)

Sehube and Another v City of Johannesburg Metropolitan Municipality and Others (42396/2020) [2021] ZAGPJHC 535 (13 October 2021)

The court found that the eviction order was erroneously granted in the absence of the applicants due to multiple procedural deficiencies, including improper service of the section 4(2) PIE notice and lack of effective notice of the hearing date. These errors were not known to the judge at the time of granting the order, and had they been known, the order would not have been granted. The applicants provided a reasonable explanation for their default, acted bona fide, and demonstrated a bona fide defence by indicating their intention to place personal circumstances before the court, which is essential for a just and equitable eviction under PIE and the Constitution. The court held that...

Citation
[2021] ZAGPJHC 535
Parties
Applicant: Edith Sehube; Applicant: The residence of 72 units at Fleurhof Ext 30, Gauteng; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: Fleurhof Extension 2 (Pty) Limited; Respondent: The remaining 47 occupiers of the units at Fleurhof Ext 30, Gauteng affected by the eviction order granted by the Honourable Justice Makume on 29 July 2021
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2021
Case Number
42396/2020
Procedural Posture
Urgent Application / Application for Rescission of Eviction Order
Outcome
Application for rescission granted in favour of the applicants; eviction order rescinded and set aside as against the applicants only; costs awarded against the first and second respondents.
Judges
Gilbert
Legal Topics
Prevention of Illegal Eviction Act, Right to Housing, Rescission of Judgment, Procedural Irregularity, Just and Equitable Eviction, Urgent Interdict
Land and Property Constitutional Law Civil Procedure Prevention of Illegal Eviction Act Right to Housing Rescission of Judgment Procedural Irregularity Just and Equitable Eviction +1 more

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Parties

Edith Sehube

Applicant

The residence of 72 units at Fleurhof Ext 30, Gauteng

Applicant

City of Johannesburg Metropolitan Municipality

Respondent

Fleurhof Extension 2 (Pty) Limited

Respondent

The remaining 47 occupiers of the units at Fleurhof Ext 30, Gauteng affected by the eviction order granted by the Honourable Justice Makume on 29 July 2021

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Eviction Order

Legal Issues

  1. 1 Whether the eviction order granted on 29 July 2021 should be rescinded in terms of Uniform Rule 42(1)(a) or under the common law.
  2. 2 Whether procedural deficiencies in the eviction proceedings justify rescission of the order.
  3. 3 Whether the applicants provided a reasonable explanation for their default and have a bona fide defence with prospects of success.

Ratio Decidendi

The court found that the eviction order was erroneously granted in the absence of the applicants due to multiple procedural deficiencies, including improper service of the section 4(2) PIE notice and lack of effective notice of the hearing date. These errors were not known to the judge at the time of granting the order, and had they been known, the order would not have been granted. The applicants provided a reasonable explanation for their default, acted bona fide, and demonstrated a bona fide defence by indicating their intention to place personal circumstances before the court, which is essential for a just and equitable eviction under PIE and the Constitution. The court held that...

Court Disposition

Application for rescission granted in favour of the applicants; eviction order rescinded and set aside as against the applicants only; costs awarded against the first and second respondents.

Orders

  • The eviction order granted on 29 July 2021 is rescinded and set aside as against the applicants identified in annexure ES2 to the founding affidavit.
  • The first and second respondents are to pay the costs of the applicants in these rescission proceedings, jointly and severally.