Philani-Ma-Afrika and Others v Mailula and Others

• Jurisdiction: South Africa
• Judge: Farlam JA, Navsa JA, Mlambo JA, Snyders JA and Tshiqi AJA
• Judgment Date: 25 September 2009
• Citation: 2010 (2) SA 573 (SCA)
• Docket Number: 674/08
• Hearing Date: 26 May 2009
• Counsel: WH Trengove SC (with C Steinberg) for the appellants. DA Kuny SC (with RG Cohen) for the first respondent. JG Smit for the second respondent. No appearances for the third to fifth respondents.
• Court: Supreme Court of Appeal

Farlam JA:

[1] This is an appeal against a judgment delivered by Willis J on 5 November 2008 in the Johannesburg High Court. In his judgment the learned judge dealt with two applications which were argued together I before him. One was an application brought by the present first appellant, a company registered in terms of s 21 of the Companies Act 61 of 1973, Philani-Ma-Afrika, which I shall call in what follows 'Philani', in which it sought orders (a) setting aside the purported sale of a property known as Angus Mansions, situated at Erf No 4562, Johannesburg, the street address of which is 268 Jeppe Street, Johannesburg, J to the first respondent, Mr William Marofane Mailula; (b)

Farlam JA

ordering the Registrar of Deeds, Johannesburg, the fourth respondent, to A cancel deed of transfer No T033425/07 (in terms of which the property was transferred from Philani to Mr Mailula); and (c) declaring the property to be owned by Philani. As additional respondents were cited the Trust for Urban Housing Finance, the second respondent, which is the mortgagee of the property under a mortgage bond registered over the property to secure a debt owed by Mr Mailula, and as third respondent B JN Bhana and Associates, the firm of conveyancers responsible for bringing about the transfer of the property to Mr Mailula. The City of Johannesburg was cited as fifth respondent.

[2] The other application was one brought by Mr Mailula, as owner of the C property, for an order evicting 67 named occupiers of the property. They feature in this case as the second to 68th appellants. The 68th respondent in the eviction application was described as 'the remaining unlawful occupiers of Angus Mansions'. They are not represented before this court.

[3] Willis J dismissed the application brought by Philani and granted the D eviction application brought by Mr Mailula against the first to 68th respondents before him. He granted them and Philani leave to appeal to this court against his judgment and the orders he made. Subsequently he granted Mr Mailula leave to execute against the respondents whose eviction he had ordered (except for the 9th, 16th, 18th, 32nd and 65th respondents, who are, respectively, the 10th, 17th, 19th, 33rd and 66th E appellants before us and who are all members of Philani): in what follows I shall call this order 'the execution order'. The respondents whose eviction had been ordered, including those against whom leave to execute was not given, applied to the Constitutional Court for an order replacing Willis J's execution order with an order dismissing the execution application. F

[4] On 4 December 2008 the Constitutional Court granted an order in the following terms:

'1.

The order of Willis J in the Johannesburg High Court on 13 November 2008, granting the First Respondent leave to execute an G eviction order against 62 of the applicants on 15 December 2008, is suspended pending the final determination of the appeal in the Supreme Court of Appeal, pursuant to leave granted to the applicants by the High Court on 5 November 2008.

2.

The application for leave to appeal against the High Court's order of 13 November 2008 is referred to the Supreme Court of Appeal H to be adjudicated, to the extent it may be so adjudicated given the provisions of section 20 of the Supreme Court Act 59 of 1959, simultaneously with the appeal referred to in sub-paragraph 1 hereof.

3.

Costs are to be costs in the appeal.' [*]

[5] It was common cause at the hearing of the appeal that if the Philani I appeal succeeded the appeal against the order in the eviction case would also have to succeed.

Farlam JA

A [6] Philani was incorporated in 1996 to serve as a corporate vehicle through which the National Housing Board, through the Gauteng Provincial Housing Board, subsidised and assisted underprivileged people collectively to acquire Angus Mansions for their own occupation.

[7] Its memorandum of association states that its main business is -

B 'to acquire, hold, develop or improve [Angus Mansions] with a view to enabling the community of residents, of which at least 75% . . . of the adult members are persons who earn less than R1500 per month . . . to acquire such land, and/or right thereto so as to occupy the land and buildings wholly or mainly for residential purposes . . . '.

C Its powers...