After four years of lengthy delays, the Northern Cape High Court in Kimberley has ruled in favour of shopping centre developers, ordering the immediate eviction of “commercial squatters” occupying their property.
Zinvomax, the Ga-Segonyana local municipality and three other applicants may now take back ownership of the property and evict Wim Jacobs, Gao Xia Qiang, Huang Feng and Mike Bester, who have been occupying the premises and running their businesses from it, despite not having a lease agreement in place.
Judge Lawrence Lever was ruling on both an application by respondents Jacobs and others to have an eviction order against them overturned and an application by Zinvomax to have the eviction order granted in January executed immediately.
“It is convenient to deal with both applications in one judgment,” he said.
The case centres on a commercial property owned by the Ga-Segonyana local municipality, which bought it from Transnet in 2011. The respondents have been occupying the premises and running various businesses from it for several years.
“Historically, various occupants had leases of one form or another. However, it is clear from the papers that at the time that the eviction application was launched none of the respondents could claim any form of lease,” judge Lever said.
The municipality issued a tender for the property to be developed, and the developer given the tender was awarded a long-term lease registered against the title deed of the property. This lease was ceded on to property developer Zinvomax.
Because the tenants on the property did not have a lease, but declined to move, Zinvomax applied for an eviction order in June 2021. A year later, one of the respondents applied for a review and was granted a stay of any eviction proceedings pending the review application's outcome. The review application was dismissed on March 10 2023.
Ruling on the eviction application, Lever found that the respondents had failed to show why they should be allowed to remain on the property, and that Zinvomax and the municipality were entitled to lodge an application for an eviction order.
The opposing respondents filed a “supplementary notice of application for leave to appeal” against the eviction ordered against them in January.
In their application for leave to appeal, the respondents argued that they had a reasonable prospect of success in terms of law and that Zinvomax did not have the authority to launch the eviction application on behalf of the Ga-Segonyana municipality.
“Here we are really dealing with the authority of the municipality’s agent to bind the municipality to be a party to the launching of the application for eviction,” Lever said, commenting that as the owner of the property, the authority of the municipality to launch eviction proceedings “against occupiers of its property ought not to be an issue”.
Zinvomax asked that the eviction order handed down on January 19 be declared immediately executable and not be suspended pending the respondents’ application for leave to appeal.
Lever said the requirements for declaring an order immediately executable despite appeal proceedings were that “exceptional circumstances” existed, harm would be suffered by the applicant because of delays; and the guaranteed safety or “absence of harm” to the evictees.
Zinvomax told the court that the respondents had delayed its occupation of the property for four years, preventing it from developing the land. In this time building costs had escalated, the cost of structural steel had risen by 60%, and the contemplated shopping centre planned to be built on the site would have been operational already. Zinvomax would have been deriving rental income from the property and was now unable to recover the increased building costs or the loss of rental income.
Zinvomax told the court that a competing shopping centre was being planned, and so they needed to secure tenants with rental leases to ensure a viable tenant mix that would make their shopping centre development a success.
Zinvomax needed to deliver occupation of the premises to the secured tenants by a fixed date in 2025 or suffer penalties, lose the secured tenants and suffer reputational damage.
The respondents argued that Zinvomax was itself to blame for its trouble because it had participated in the “unlawful cession of the long-term lease”.
Judge Lever disagreed: “Zinvomax is not seeking an order to enforce the unlawful contract. It is seeking an order to evict the opposing respondents in circumstances where they clearly have no right of tenure to occupy the premises concerned.”
“Describing the opposing respondents as ‘commercial squatters’, on the facts of this case, is fully justified,” he said, finding that the respondents had no prospects of success in their appeal.
The court held that Zinvomax had established that there were exceptional circumstances, that it had suffered irreparable harm, while the opposing respondents could not claim irreparable harm if the execution of the eviction order was not suspended.
“Success on appeal won’t conjure up for the opposing respondents a lease or some other right to occupy the relevant premises.”
The respondents’ application for leave to appeal was dismissed and they were ordered to pay Zinvomax’s costs on “scale C of Rule 69”, which is the maximum recoverable amount set at R4,500 per hour.
“The judgment handed down in the eviction application on the 19th January 2024 is declared immediately executable and is not suspended by any application or petition for leave to appeal the said eviction judgment and order, or any subsequent appeal,” Lever said.
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