The Gauteng High Court in Pretoria has dismissed an urgent application to stay the eviction of unlawful occupiers from a property owned by Thonts Properties (Pty) Ltd in Ekurhuleni.
The first applicant, Nomathemba Adolphina Somo, sought to challenge an eviction order that had been in effect since 7 October 2024. Somo contended that she and her siblings had been lifelong residents of the property, claiming a historical right to its occupation stemming from their family ties. However, the court found that their claims lacked the necessary legal basis, particularly as the property was not part of the estates they sought to protect.
With regard to the occupation of the property, Somo alleged that since her birth she together with her siblings occupied the property living with their parents. The property was bonded to Nedbank and also insured by it. Both their parents are deceased. Their father, the late James Steven Phakathi predeceased their mother, the late Komane Evelyn Phakathi, who only died on 11 November 2005. The deceased were married to each other in community of property. It was only after the passing of the mother that Somo was issued with a letter of authority by the Master of the High Court.
Of significance, the letter was issued on or about 02 February 2006 and in respect of the estate of the mother. It is apparent that at some stage the bond repayments to Nedbank fell into arrears. On 12 February 2004, Nedbank obtained a judgment against the estate of the late couple. Pursuant to that judgment, the property was sold on public auction to Nedbank, and the estate of the Phakathis lost title over the property effective 29 April 2004. At the time Thonts acquired ownership of the property, in 2021, the estate was divested of the ownership of the property for almost 17 years.
The court examined the circumstances under which Thonts Properties acquired the property and the validity of the order it obtained. It was established that Thonts Properties had faced unlawful occupation of the property since its acquisition in 2021 and had endured a lengthy legal process to reclaim its rights as the rightful owner. Meanwhile, the applicants argued against the execution of the eviction order, alleging their right to remain based on their claim to familial ownership.
However, in a clear evaluation, Judge GN Moshoana ruled that the applicants had not demonstrated sufficient legal standing to block the eviction, emphasising the need for clear evidence of apprehended harm. The reasoning behind this decision underlined the principle that fear of eviction alone does not warrant a stay of execution in instances where the legal ownership is uncontested.
As the court noted, “the first applicant does not have the necessary legal standing to launch the present application… The legality of the owner must be upheld, particularly when significant delays have already impacted the owner’s rights.” Consequently, the application for a stay was dismissed, with Somo ordered to pay the costs associated with the application.
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