Siblings evicted from their home after late parents fell into arrears with bond payments

Despite holding a letter of authority from the Master of the High Court, the North Gauteng High Court in Pretoria ordered siblings to vacate the Ekurhuleni property which is now owned by Thonts Properties (Pty).

The court dismissed an urgent application brought by one of the siblings, Nomathemba Adolphina Somo, who sought to challenge an eviction order that had been in effect since October 7, 2024.

Somo, along with her siblings, claimed that their longstanding residence on the property granted them a historical right to occupy it, rooted in their family ties.

However, in a ruling recently delivered by Judge Graham Nasious Moshoana, it was found that their claims lacked the necessary legal foundation, particularly since the property fell outside the estate that Somo sought to protect.

Somo and her siblings maintained that they had lived on the property since birth, having been raised there by their parents, James Steven Phakathi and Komane Evelyn Phakathi, who have since passed away.

According to court documents, the property was financed by Nedbank, which also held insurance on it. 

The late couple's marriage was in community of property, but it was only after their mother’s death in November 2005 when Somo received a letter of authority from the Master of the High Court in February 2006.

The court noted that even though Somo had received a letter of authority, her parents were in arrears with Nedbank, which led the bank to get to a judgment against the couple in February 2004.

Consequently, the bank sold the property at public auction, and in April 2004, the ownership of the property was transferred to Nedbank and the house was subsequently sold to Thonts Properties.

When Thonts Propeties acquired ownership in 2021, the property had been without title for nearly 17 years.

Thonts argued that the urgency alleged by Somo was self-created one, as such, the court must strike the matter off the roll for lack of urgency.

Meanwhile, Somo and her siblings argued that the trigger for urgency was the imminent eviction, which first presented to them as unlawful occupiers in January 2025.

Somo's attorney further argued that her siblings financially depend on her, once evicted, they will become her financial burden.

However, judge Moshoana said Somo failed to mention this on her affidavit.

"The Constitutional Court in Pilane and Another vs Pilane and Another clearly expressed that an applicant must stand or fall by its founding affidavit. In Kangra, the SCA interpreted the statement of the Constitutional Court to mean that an applicant must set out its case in the founding affidavit in order not to ambush a respondent,'' said the judge.

In the circumstances, the judge concluded that Somo, due to failure to demonstrate apprehended harm, lacks the necessary legal standing to launch an urgent application.

" As this court concludes, the legal point of lack of legal standing is good in law and it ought to be upheld. Lack of legal standing is fatal to any application launched in a court of law. Thus, the present application falls to be dismissed," said the judge.

Somo's application was dismissed with costs.

sinenhlanhla.masilela@iol.co.za

IOL