Unlawful Occupiers of Portion 2 of Erf 813 Rosettenville situated at 18 Haig Street, Rosettenville and Others v Okoye and Others (43051/2016) [2019] ZAGPJHC 40 (4 March 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 43051/2016

In the matter between:

UNLAWFUL OCCUPIERS OF PORTION 2 OF

ERF 813 ROSETTENVILLE SITUATED AT 18

HAIG STREET, ROSETTENVILLE First Applicant

ERF 757 ROSETTENVILLE SITUATED AT 79

MABEL STREET, ROSETTENVILLE Second Applicant

ERF 758 ROSETTENVILLE SITUATED AT 81

MABEL STREET, ROSETTENVILLE Third Applicant

ERF 813 ROSETTENVILLE SITUATED AT 54

GEORGE STREET, ROSETTENVILLE Fourth Applicant

ERF 814 ROSETTENVILLE SITUATED AT 52

GEORGE STREET, ROSETTENVILLE Fifth Applicant

and

OKOYE, SIMON First Respondent

OKOYE, SILINDILE IRENE IMMACULATE Second Respondent

THE CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY Third Respondent

IAN BRUCE LOCKYER Fourth Respondent

J U D G M E N T

LAMONT J:

[1] This is an application brought by the applicants to rescind two ejectment orders. The, parties are referred to herein as they were referred to at the time the orders were made.

[2] The applicants are the registered owners of five immovable properties, which are adjacent to each other “the property”. There are four houses built on the property as also a large number of informal dwellings. A large number of people occupy the houses and dwellings. The applicants sought to eject those people and brought an application for ejectment citing as the respondents in that application the unlawful occupiers of the various portions save for the first respondent, who was a previous owner of the property, and who was cited by name.

[3] The City of Johannesburg Metropolitan Municipality was joined as the seventh respondent.

[4] The applicants became the owners of the property after the first respondent failed to comply with the terms of a mortgage bond registered over the property and the property was sold in execution. Subsequently, the property was re-sold by the then owner to the applicants and was duly registered in their names.

[5] The application was served on all the respondents. The service was effected at each of the premises comprising the property by way of handing the application and its annexures to Ms Bongiwe Guma who was identified on the Sheriff’s return as being the spokesperson for the complex. Each return reflects previous attempts to serve the application, which included failures to do so because the premises were locked and the occupants were violent. On the day of service of the application, the other occupiers refused to accept service. Service was also effected on the municipality.

[6] During, February 2017 service of the application was effected on the first to sixth respondents by way of service on the same person who had previously accepted service as the spokesperson for the property.

[7] During, March 2017 pursuant to an order of this court permitting service of the notice of set down the notice of set down was served on the first, second, third, fourth, fifth and sixth respondents by way of serving it at the premises on Ms Wendy Tildleni a property representative present on the property.

[8] The application was set down to be heard on 17 March 2017. The fifth respondent admits receiving notice of the hearing and a person was sent on behalf of the fifth respondent to oppose the application. The remaining respondents did not appear. The first, second, third, fourth, and sixth respondents alleged that they had no knowledge of the application and set down.

[9] On 17 March 2017 the following order was made:–

“1. ordering the first, alternatively second, alternative third, alternatively fourth, alternatively fifth, alternatively sixth,

respondents and all such persons who occupy through or under the first, alternatively second, alternatively third, alternatively

fourth, alternatively fifth, alternatively sixth, respondents to vacate the premises known as:

[then descriptions of the property are set out] within 30 days from the date upon which this order is served.

2. authorizing and directing the Sheriff of the above Honourable Court to evict and/or cause to be evicted from the premises the first, alternatively second, alternatively third, alternatively fourth, alternatively fifth, alternatively sixth, respondents and all such persons who occupy the premises through or under the first, alternatively second, alternatively third, alternatively fourth,

alternatively fifth, alternatively sixth, respondents after the lapse of 21 days after this eviction order has been served.

3. directing the first, alternatively second, alternatively third, alternatively fourth, alternatively fifth, alternatively sixth, respondents to pay the costs of the application as between attorney and client

……”

[10] It is apparent from the order that it is made as against the six respondents in the alternative and takes no account of the fact that the fifth respondent attended to seek a postponement. There is evidence in a chronology, which I have been given that the order was different [page 420] and provided for a postponement against the sixth respondent. The terms of the court order appear unambiguously from the document appearing at page 131, the terms of which I have cited above.

[11] During September 2017, the notice of set down for hearing, was served upon the six respondents. The service on the fifth respondent was effected by way of serving on his attorneys. The matter did not proceed on the date allocated to it and during October 2017 a notice of set down was served on the first to sixth respondents notifying them that the matter had been set down for hearing on 17 November 2017. There was no service upon the seventh respondent.

[12] The matter came before Mabesele J, who granted an order against the sixth respondent in the following terms: –

“1. ordering the sixth respondent and all such persons who occupy through or under the sixth respondent to vacate the premises known as:-

[there follows a description of the premises] within 14 days from the date upon which this order is served,

2. authorizing and directing the sheriff of the above Honourable Court to reflect and or cause to be evicted from the premises the sixth respondent and all such persons who occupy the premises through or under the sixth respondent after the lapse of 21 days after this eviction order has been served,

3. directing the sixth respondent to pay the costs of the application as between attorney and client”.

[13] At the time this order was made there was already an order made against the sixth respondent is appears more fully from the previous order.

[14] The order of Mabesele J, was procedurally flawed as the municipality did not get notice of the hearing and as there was no proper opportunity to consider the just and equitable issue as required. See: Occupiers of Erven 87 and 88 Berea v De Wet N.O.and Another [2017] ZACC 18 at paragraph 39 – 50. It, was also patently made in error. That order falls to be set aside.

[15] The judge hearing the application for eviction is required to consider, whether or not, it is just and equitable to order and eviction. That process involves a consideration of what alternative accommodation is available to the persons, who it proposed, should be ordered to vacate. This, process was not undertaken by either of the judges hearing the matter. The seventh respondent had notice of the hearing during March 2017 but not of the hearing during November 2017. The seventh respondent attended neither hearing.

[16] No information was provided by the seventh respondent as to the availability or otherwise of alternative accommodation. The submission made by the applicants was that the property had been obtained pursuant to a sale in execution and that accordingly by reason of the provisions of section 4 (7) of PIE there was no need to consider the justness or equitability of the order sought. The facts show that the applicants obtained title to the property pursuant to private treaty and not by way of purchase at a sale in execution. The person who sold the property to them was the person who bought at the sale in execution. In my view, the section does not apply to the present situation and in any event, [something I didn’t need not decide]. It appears to me that the requirement is that in every case there shall be a consideration of whether or not the proposed order is just and equitable. See: Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another [2017] Z ACC 18 at paragraph 39 – 50.

[17] The order made by Victor J against the six respondents is so vague as to be unenforceable. It was, suggested by the applicants that alternatively meant “and” not in the alternative. I do not read the order that way. Upon a proper interpretation of the order, the word alternatively in my view means just that. (See the approach to interpretation of orders of court Gentiruco AG v Firestone SA [PTY] LTD 1972 [1] SA 589 [A]). It is further, unclear whether the alternative is an alternative, which applies, when the previous respondent, has not been found or evicted, or whether it gives a right on the person serving the order to choose any one of the respondents. In my view, the order made is so vague as to be unenforceable is procedurally flawed is erroneously made, and should

be set aside.

[18] The respondents have provided a list (annexure A) of the persons who are the applicants in the rescission application and who are the respondents in the main application so that those persons could be joined to the proceedings.

[19] I make the following order: –

1. the orders made under case number 43051/16 on 17 March 2017 and on 17 November 2017 are set aside,

2. the persons whose names appear on (annexure A) here to are joined as respondents in these proceedings as eighth respondent and

subsequently numbered respondents,

3. the respondents and all presently unknown occupiers are to file their answering affidavits in the main application on or before 30 March 2019,

4. the ordinary rules shall apply to the further conduct of the matter,

5. this order shall be served in terms of the rules at the premises occupied by the respondents forthwith,

6. a post is to forthwith be erected on each property in a prominent position and this order is to be attached to it,

7. the costs of the rescission application are to be costs in the cause of the main application.

_________________________________________

C.G. LAMONT

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR APPLICANT

Adv. Z. Makgalemele

ATTORNEY FOR APPLICANT

Centre for Applied Legal Studies

COUNSEL FOR RESPONDENT

Adv. B. Brammer

ATTORNEY FOR RESPONDENT

NOA Kinstler Attorneys

COUNSEL FOR THIRD RESPONDENT Adv. Mokoena

ATTORNEY FOR THIRD RESPONDENT Mchunu Attorneys

DATE OF HEARING

25 February 2019

DATE OF JUDGMENT

4 March 2019