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IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

 

CASE NO: 2022/11313

 

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

DATE: 25/03/2022

 

 

In the matter between:

 

SAMUEL NGWENYA                                  First Applicant

                                                                          

PHUMULANI MKHWANAZI                        Second Applicant

                                                                          

LINDANI BUTHELEZI                                 Third Applicant

                                                                          

EMMANUEL MKHIZE                                 Fourth Applicant

                                                                          

KHETHUKUTHULA MHLUNGU                 Fifth Applicant

                                                                          

SINETHEMBA MYEZA                               Sixth Applicant

                                                                          

WELILE MYEZA                                         Seventh Applicant

                                                                          

KHULEKANI ZIKALALA                              Eighth Applicant

                                                                          

ZANELE MYEZA                                        Ninth Applicant

                                                                          

NKOSIKHONA NKABINDE                         Tenth Applicant

                                                                          

NONHLE BHENGU                                     Eleventh Applicant

                                                                          

TEBEGO KHUMALO                                  Twelfth Applicant

                                                                          

NONTOBEKO NGCOBO                            Thirteenth Applicant

                                                                          

NKOSINGIPHILE MASUKU                       Fourteenth Applicant

                                                                          

ZINHLE MLAMBO                                      Fifteenth Applicant

                                                                          

SITHEMBILE VILAKAZI                             Sixteenth Applicant

                                                                          

NOKUTHULA LUNGA                                Seventeenth Applicant

                                                                          

THEMBA MTSHALI                                    Eighteenth Applicant

                                                                          

JEFRY MYEZA                                           Nineteenth Applicant

                                                                          

SBUSISO ZULU                                         Twentieth Applicant

                                                                          

LUNGILE KHUMALO                                  Twenty First Applicant

                                                                          

and                                                                    

                                                                          

NGOMANE PROPERTY TRUST                First Respondent

                                                                          

SHERIFF JOHANNESBURG EAST           Second Respondent

                                                                          

CITY OF JOHANNESBURG

METROPOLITAN MUNICIPALITY              Third Respondent

 

 

JUDGMENT

 

 

MOORCROFT AJ:

 

Order:

 

[1]         In this matter I granted the following order after hearing the application as an urgent application on 24 March 2022:

 

“1.    Pending the return day of the application on 29 March 2022 –

 

1.1.  The first respondent is interdicted from evicting the applicants in the premises described as ERF 462 Denver situated at no 8 and 10 Morice Street, Malvern, Gauteng province;

1.2.  The first respondent is ordered to return to all the applicants the keys to the premises insofar as same are in the possession of the first respondent;

1.3.  The first Respondent is ordered to restore occupation of the premises to the applicants;

 

2.     The respondents may file their answering affidavit on or before 12h00 on 28 March 2022;

 

3.     The applicants may file replying affidavits by 18h00 on 28 March 2022;

 

4.     The application is postponed to the urgent court on 29 March 2022;

 

5.     The attention of the respondents are directed to Uniform Rule 6(12) in terms of which the respondents or any of them may set the matter down for reconsideration of the order;

 

6.     The costs are reserved.”

 

[2]         The reasons for the order follow below.

 

[3]         The application was argued in the absence of the respondents and no answering affidavits are to hand. I rely solely on the applicant’s affidavits.

 

The pending appeal:

 

[4]         The first respondent brought an application as applicant in the Johannesburg Magistrates’ Court for the eviction of the present first applicant (then the first respondent) and others.

 

[5]         On 21 October 2021 the Learned Magistrate granted an order that the present first applicant and his immediate family be ordered to vacate premises situated at Erf 462 Denver, Melvern, Johannesburg on or before 5 January 2022, and dismissed the application against the remaining respondents.

 

[6]         The present first respondent was not satisfied with the order and noted an appeal to the Gauteng Division of the High Court in Johannesburg “against the whole of the judgment and order delivered by the Honourable Magistrate Rooy on 21^st October 2021 in the above matter”. This was done on 27 October 2021.

 

[7]         The present first respondent rather surprisingly therefore also appealed against the part of the order in which it was successful.

 

[8]         The present applicants were evicted from the premises on 22 March 2022.

 

[9]         The present applicants then launched the application in the Urgent Court in Johannesburg that the present first respondent be interdicted from evicting the applicants, that the eviction be declared unlawful, that the first respondent be ordered to return the applicants’ keys in respect of the premises, that the respondents be ordered to file answering affidavits on or before noon on 28 March 2022, and that the matter be postponed by way of a rule nisi to 29 March 2022.

 

[10]     The application was set down for the 23^rd at 14h00 and then stood down to the 24^th at 10h00. On the basis of the allegations in the founding affidavit I ruled that the application was urgent.

 

[11]     The application was served on 23 March 2022 by hand delivery to the wife of a trustee of the first respondent and by sending an electronic mail copy to the first respondent on the same day. The application was also served on the same day on the second and third respondents.

 

[12]     In the founding affidavit it is alleged that the applicants were evicted on 22 March 2022 despite the fact that the appeal lodged on 27 October 2021 was never finalised or withdrawn.

 

[13]     A decision by a Court that the subject of an appeal is suspended pending the decision of the appeal, unless the Court orders otherwise and under exceptional circumstances. This principle now entrenched in section 18 of the Superior Courts Act, 10 of 2013, has its origins in the common law.

 

[14]     No order was granted against the second to twenty first applicants. The position as regards the first applicant is more complicated. An eviction order was indeed granted against him but the present first respondent chose to also appeal that part of the order as well and for that reason I find that the notice of appeal also suspended the decision in respect of the first applicant.

 

[15]     The respondents were therefore not entitled to evict the applicants. I therefore granted the order quoted above.

 

 

J MOORCROFT

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

JOHANNESBURG

 

Electronically submitted

 

Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 24 March 2022

 

 

COUNSEL FOR THE APPLICANTS:           A Khoza

 

INSTRUCTED BY:                                       Mafenya Attorneys

 

DATE OF THE HEARING:                           24 March 2022

 

DATE OF ORDER:                                      24 March 2022

 

DATE OF JUDGMENT:                                25 March 2022

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