You can’t squat in home you’ve sold or bring in ‘backup’ against new owners, judge rules

31 January 2025 - 12:17 By TimesLIVE
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The Northcliff water tower with the Sandton skyline in the distance. A woman who sold a Northcliff home refused to move out, and brought in another family to squat in the property. File photo.
The Northcliff water tower with the Sandton skyline in the distance. A woman who sold a Northcliff home refused to move out, and brought in another family to squat in the property. File photo.
Image: Sarah De Pina/Sunday Times

A Johannesburg family is finally set to have the last laugh on April Fool's Day this year after battling to gain access to a property they bought in 2021.

The woman who sold them the Northcliff home refused to move out and brought in another family to squat on the property.

The Johannesburg high court took a dim view of this, ordering Kholeka Nkombi and the Ellies family to move out by March 31 at the latest or face eviction by the sheriff, assisted if necessary by police officials or private security guards.

Homeowners Kooshen and Vanessa Naidoo “have been put through an ordeal they did nothing to incite”, judge Stuart Wilson said in Thursday's judgment.

Nkombi had owned the property with Nomalanga Nkombi but they fell behind on their mortgage payments to Standard Bank.

The bank had taken judgment on the bond in 2015, but stayed execution for long enough to allow the Nkombis to sell the property. The advantage of doing so was that the purchase price provided for in terms of the sale agreement, R1.2m, was much more than Standard Bank or the Nkombis could reasonably expect to obtain at a forced sale held in execution of the judgment.

The property was sold to the Naidoos in July 2021 and they became the registered owners in November that year. However, while the one co-owner moved out, the other refused.

“The source of her [Kholeka's] dissatisfaction appears to have been that the purchase price was insufficient to extinguish her indebtedness under the loan agreement, and left her without the surplus she thought necessary to relocate from the property,” Wilson said.

Standard Bank offered to pay up to R100,000 to assist Nkombi to relocate and the Naidoos offered to pay R48,000. She refused to move and the new owners began legal proceedings for her legal eviction in February 2022.

The consequent delays left the Naidoos in an unsustainable situation, Wilson said. They were paying rent to live at a townhouse in Roodepoort while at the same time servicing the bond they had taken out to purchase the Northcliff property. The Naidoos fell behind with both their lease and bond payments. In April 2023 the Naidoos quit the Roodepoort property and moved into the Northcliff house with Nkombi, who still refused to vacate.

“The situation at present is that the Naidoos occupy the living rooms in the main house on the property with their infant son. The Naidoos’ other son, a 10-year-old, was sent to live with a relative.

“Ms Nkombi lives in one of the bedrooms. On April 13 2023 two further individuals: Warren and Chantal Ellie, moved onto the property with their newborn baby. They were invited to do so by Ms Nkombi. The Naidoos say that they introduced themselves as Ms Nkombi’s ‘backup’.”

In their house purchase agreement, the judge said the Naidoos had “contracted with her on terms which strike me as perfectly fair — they did not seek a quick bargain against an unsuspecting homeowner at a forced sale.

“They were fully entitled to expect Ms Nkombi to vacate the property, as her erstwhile co-owner did. There was no excuse in law or in equity for Ms Nkombi to have remained behind. The fact that she has remained entrenched at the property for years since the sale agreement was executed compounds the injury.

“Since April 2023 I do not know how any of the parties has been able to put up with living in the same dwelling in the circumstances of this case — especially since, on the face of it, Ms Nkombi could have moved out at any time.”

There is no serious dispute that Nkombi is an unlawful occupier of the property under the Prevention of Illegal Eviction from and Unlawful Occupation of Land (Pie) Act, the judge said.

Regarding the Ellies, he said it was clear they had no rights of occupation, save through Nkombi, and they did not respond to the offer to approach the court. They are subject to the same eviction order.

TimesLIVE


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