The City of Johannesburg is heading to the Supreme Court of Appeal (SCA) to challenge a high court ruling ordering it to pay almost R12.4 million for failing to accommodate occupiers of a hijacked building.

In March, Gauteng High Court, Johannesburg Acting Judge Dephny Mahosi ordered the municipality to pay Changing Tides 74, owners of the 11-storey building known as Chung Hau Mansions on Jeppe Street in the city’s central business district, nearly R12.4m after it failed to provide secure emergency accommodation to 249 men, women and children.

The city did not provide the accommodation despite being ordered by the high court to do so as the property was unlawfully occupied and referred to as a “hijacked building”.

According to Changing Tides 74’s submissions in court, the company stated that had it not been for the municipality’s unlawful and negligent conduct it would have regained possession of the property at the end of January 2013, renovated it for about 10 months and rented it out to students from February the following year.

Changing Tides 74 only managed to take possession of its property in January 2016 and could only start earning a rental income with effect from February 2017.

As a result, it lost income for 30 months between February 2014 and February 2017.

Acting Judge Mahosi found that the quantum of the damages suffered by Changing Tides 74 was about R12.4m including mora interest of 11.75% per annum (the current mora rate) from the date of summons to the date of final payment.

The acting judge also slammed the City of Joburg, stating that its conduct and Stalingrad approach (delaying court processes) to the litigation from the commencement of the dispute justified an order of costs on a punitive scale.

The municipality then filed an application for leave to appeal Acting Judge Mahosi’s ruling, arguing that the case raises complex questions of law.

The City of Joburg told the court that it erred in its approach to wrongfulness as an element of delictual liability and as a result conflated the test for wrongfulness and fault.

In addition, the city also contended that the judgment set a precedent for future delictual (wrongful and blameworthy conduct) claims against municipalities who failed to provide emergency accommodation to evictees.

It insisted that this was a matter of public interest that is likely to affect landowners and local authorities across the country and the judgment raises essential questions of constitutional rights and obligations. Acting Judge Mahosi granted leave to appeal to the SCA.

“Having had regard to both parties’ submissions and arguments, this court is persuaded that its judgment raises important questions of constitutional rights and obligations and is likely to impact local authorities and many landowners,” the acting judge explained.

She also amended her order to indicate that the R12.4m damages together with mora interest of 11.75% per annum (the current mora rate) will be from the date of judgment, which is March 14, to the final payment.

loyiso.sidimba@inl.co.za

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