inner city Johannesburg - rescission application - South Gauteng High Court
On 3 July 2012 at midday, SERI was approached by the residents of Jeanwell Court, a building on the corner of Nugget and President Street in inner city Johannesburg. They were being evicted by the Red Ants, despite not having received notice of the eviction order granted against them. A default judgment had been granted for the eviction on 21 May 2012. After consulting with the residents, SERI went the property at about 14:00, to find that the Red Ants had already removed all the residents and their belongings from the building. By 18:00, SERI had drafted an urgent application and both this and the founding affidavit were served on the owner. By 19:00, when SERI visited the building to get a sense of what was happening, the owner was in the process of erecting a brick wall to block the entrance to the building, so as to prevent the occupiers from re-entering.
The residents acccompanied SERI to an urgent hearing at the Johannesburg High Court, where Judge Kgomo granted an temporary interdict restoring the residents to their homes, pending a full hearing on 5 July 2012. The interim order was granted at about 21:45. After some difficulty executing the interim order, the residents were eventually able to gain access to the building, and did not have to spend the night in the cold outside.
On 5 July 2012, a full hearing was held and an ex tempore judgment was given by Judge Kgomo in favour of the residents. The order stated that the residents may not be evicted from the building until Part B of the application - the rescission application - was finalised. The residents argued that rescission of the eviction order was necessary because service of the application was inadequate, as the papers in the eviction application never came to their attention. Further, they argued that there was ample evidence on the owner's papers in the eviction proceedings to indicate that, if granted, an order for the residents' eviction would make them homeless. The owner must have known this and was accordingly obliged to join the City of Johannesburg to the eviction proceedings. The residents argued that it is, in any event, incumbent upon a Judge hearing an eviction application – even if it is unopposed – to join the municipality having jurisdiction to the proceedings, and to seek a report from the municipality on what steps it has taken and can in future take to ensure that an eviction would not lead to homelessness. This did not happen, and the residents argued that the eviction order was defective as a result.
The matter was eventually settled and the owner consented to rescission of the eviction order.
On 29 February 2016 the new owner of Jeanwell Court was granted a new eviction order in the South Gauteng High Court. The residents were not aware of these eviction proceedings and therefore the eviction application was left unopposed. SERI made an application to rescind the eviction order. On 25 November 2016 an order rescinding the eviction order was granted. The residents filed their answering affidavit in the eviction application on 22 March 2017.