enforcement application - application for leave to appeal – just and equitable eviction - Gauteng Local Division of the High Court – Supreme Court of Appeal

SERI acts for the residents on 8 O’Reilly Street, Hillbrow, application to enforce an order granted by the Johannesburg High Court, directing the City of Johannesburg to provide the residents with alternative accommodation. SERI previously acted for the residents in an application for leave to appeal against an eviction order granted in the Gauteng Local Division of the High Court on 28 May 2014. There are 21 households on the property, comprising about 90 people, including 37 children.  Many of the families have been living on the property for over eight years. 

An eviction order was granted against all of these long-standing residents in favour of the new owner, Ingelosi House (Pty) Ltd, despite the City of Johannesburg not having been joined to proceedings and regardless of the fact that the residents are poor and will be rendered homeless by an eviction.  The eviction order was granted in opposed court with about eight of the residents present, but unrepresented. 

Judge Victor questioned five of the residents, who all confirmed that they required time to raise money for a lawyer and to put together a defence.  They explained that the affidavit, filed purportedly on their behalf, was filed without their knowledge.  The Judge did not consider the personal circumstances of the residents or whether an eviction order would be just and equitable in the circumstances. 

An application for leave to appeal against the order and judgment of the High Court was brought on a number of grounds.  The main grounds of appeal are as follows:

• The Judge failed to carry out her statutory duty to satisfy herself that an order for the residents’ eviction would be just and equitable in terms of the PIE Act.  There was sufficient information before the court on the papers and in oral evidence submitted by the unrepresented residents at the hearing of the matter that they were poor.

• The Judge failed to satisfy herself that the answering papers correctly indicated the position of all of the residents whose eviction she was ordering.  The oral evidence of the residents at the hearing clearly showed that they had no knowledge of the answering papers filed purportedly on their behalf.  Despite this, the Judge refused to postpone the matter and grant an opportunity for them to submit their own defences.

• The Judge did not ensure that there had been compliance with the peremptory requirements under section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”).  At the hearing, there was no evidence before the Judge of proper service of the section 4(2) notices.

On 27 October 2015, that court dismissed the application for leave to appeal, rejecting the argument under section 4(2) of the PIE Act and finding that the residents’ plea at the hearing of the matter for more time to raise money for an attorney was dilatory. The Judge found that “[u]ltimately the respondents (residents) came to listen rather than seek a postponement” and when they appeared, failed to address the legal issues before the court.

SERI petitioned the Supreme Court of Appeal (SCA). The owner filed an answering affidavit arguing that court’s do not have a duty in PIE applications to read beyond the papers filed in court. The residents disputed this in a replying affidavit, and the SCA granted leave to appeal on 19 February 2016.

Their appeal was heard before a full court in the Gauteng Local Division, Johannesburg, and on 19 May 2017 the court set aside the eviction. The High Court judgment held that Judge Victor erred in failing to join the City to the proceedings. Judge Victor should have joined the City and ordered it to submit a report setting out the steps it would take to stop the residents from becoming homeless on eviction. The High Court upheld the residents’ appeal, set aside the eviction order, joined the City to the proceedings and directed it to file a report on the occupiers and their circumstances within 30 days. 

The matter was remitted to the High Court and was heard together with Occupiers of Erven 87 & 88 Berea v De Wet ('Kiribilly') on 16 April 2018. On 9 February, SERI filed heads of argument asking the court for a structured order directing the City to make alternative accommodation available to the occupiers within six months (and at least one month before any eviction order takes effect). 

On 16 April 2018, the High Court granted the eviction of the residents by 30 November 2018 on condition that the residents are provided with alternative accommodation by the City at least one month before the eviction. The court thus ordered the municipality to provide alternative accommodation to the residents by 31 October 2018. Furthermore, the court ordered the City to provide the residents, in writing, the nature and location of the alternative accommodation that will be provided by 31 August 2018.

The City failed to comply with the order and on 20 December 2018, SERI filed an application to enforce the order directing the City of Johannesburg to provide our clients at Ingelosi House with alternative accommodation.

 

Application to enforce High Court order

• Residents' founding affidavit (20 December 2018) here.
• Residents' notice of motion (20 December 2018) here. 

Proceedings in the South Gauteng High Court 

• High Court order (16 April 2018) here.
• Owner's heads of argument (2 November 2017) here.
• City of Johannesburg heads of argument (6 April 2018) here. 
• Residents' heads of argument in the High Court (9 February 2018) here.
• SERI press statement (19 May 2017) here.
• High Court judgment (19 May 2017) here.
• Owner's heads of argument (27 April 2017) here.
• Residents' heads of argument and practice note in the High Court (12 April 2017) here and here.

Proceedings in the Supreme Court of Appeal (SCA) 

• SCA order granting leave to appeal (29 February 2016) here.
• Residents' replying affidavit (5 February 2016) here.
• Owner's answering affidavit (25 January 2016) here.
• SERI's application to the SCA for leave to appeal here (part 1) and here (part 2)

Proceedings in the South Gauteng High Court

• High Court judgment (27 October 2015) here.
• Supplementary grounds of leave to appeal here.
• SERI's application for leave to appeal here.
• High Court judgment here.
• Transcript of proceedings in the High Court (28 May 2014) here.