The Gauteng High Court has stopped the City of Joburg from evicting business owners from a property in the central business district.
Image: Paballo Thekiso / Independent Newspapers
THE City of Johannesburg has been ordered to restore business premises it had shut down and evicted tenants in the central business district (CBD) for allegedly violating by-laws.
Lewray Investments, the owners of the building on De Villiers Street, hauled the municipality, mayor Dada Morero and acting city manager Tshepo Makola to the Gauteng High Court, Johannesburg to force it to be reopened and to restore peaceful and undisturbed possession of the property.
Judge Stuart Wilson handed down the order on Monday but gave his reasons later in the week. According to the ruling, the property is a commercially tenanted building in the Johannesburg CBD that was targeted by the city last Friday through the Joburg Metropolitan Police Department (JMPD).
The JMPD evicted all the commercial tenants operating at the property and sealed the property off and welded the entrances to the property.
The city also started to brick the entrances to the property. Judge Wilson was not impressed by the municipality’s action when it argued that the property was deemed a fire hazard and that it was necessary to act under the by-laws to prevent it from being used until the fire safety hazards it had identified were addressed.
"I am far from convinced that the city adequately explained its motives during the course of the eviction, but the city ultimately justified its conduct by reference to its emergency services by-laws,” Judge Wilson said.
The municipality provided four notices to the court alleging contraventions of the by-laws, which were first issued on February 21 but which were not related to the property as a whole but merely to one of the units within it.
In the high court, the city accepted that none of the notices provided a basis to prevent Lewray Investments from accessing its property but maintained that the company’s access to the property ought to be conditional upon it undertaking to address the fire safety hazards identified in the one of the notices.
The court found that the by-laws that the city relied on to evict Lewray Investments did not entitle the municipality to completely exclude an owner from their property.
The by-law provides for a member of the city’s fire brigade service to issue instructions as may be necessary to procure compliance with the statute.
In terms of the by-law, the instructions may include the immediate evacuation of the relevant premises, closure of the premises until the by-law violation has been rectified and the cessation of any defined activity.
The by-law allows the removal of any immediate threat to any person or property, the taking of specified steps to comply with the bylaws, either immediately or within a specified period or the issuing of a timetable for the taking of steps necessary to comply with the by-law.
However, the penalty in case of non-compliance with an instruction issued under the by-law is a criminal sanction rather than an extrajudicial eviction, according to Judge Wilson.
"The city acted substantially beyond any lawful power it could reasonably claim to have. It ought to have appreciated this from the outset, and to have restored the property to Lewray Investments at the first opportunity. Instead, the city insisted on pushing an application to which it must have known it had no defence to a hearing,” said Judge Wilson.
loyiso.sidimba@inl.co.za