City of Cape Town v Those Persons Identified in Annexure A and Another (14732/2024) [2025] ZAWCHC 490 (24 October 2025)

Case Note

City of Cape Town v Those Persons Identified in Annexure “A” to the Notice of Motion and Others (High Court of South Africa, Western Cape Division, Cape Town) Case No: 14732/2024; unreported judgment delivered 24 October 2025

Reportability

The judgment is expressly marked “Not Reportable.” Nonetheless, it is of practical and doctrinal significance for the ongoing jurisprudence under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. It illustrates how courts must balance the constitutional rights of persons living without shelter with the municipality’s duties to manage public spaces, and it provides a worked example of the “just and equitable” enquiry required by section 4(6) and (7) of PIE in a public open space context.

The case is notable for the court’s intervention in conducting, mero motu, an inspection in loco of both the occupied precinct and the alternative accommodation identified by the City (the Safe Space facility). That procedural step served an evidentiary and supervisory function, deepening the factual matrix against which the proportionality and dignity analysis under PIE and section 26 of the Constitution was undertaken.

It is also significant for its structured approach to post-eviction relapse prevention. The court granted interdictory relief to restrain re‑occupation, supported by a factual history of re‑settlement in the same vicinity. The judgment therefore offers guidance on fashioning preventive, proportionate interdicts that preserve the efficacy of eviction orders while safeguarding the constitutional imperatives of dignity and shelter.

Cases Cited

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (Constitutional Court)

City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (Supreme Court of Appeal)

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (Constitutional Court)

Occupiers of Erven 87 & 88 Berea v De Wet N.O. and Another 2017 (5) SA 346 (Constitutional Court)

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, especially sections 1, 4(6) and 4(7)

Constitution of the Republic of South Africa, 1996, especially sections 25 and 26(2)

Rules of Court Cited

Uniform Rules of Court, Rule 6(5)(e) (admission of further affidavits)

HEADNOTE

Summary

The City of Cape Town applied under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 for the eviction of unlawful occupiers from Tuin Plein Park and adjoining streets within the central-city precinct, and for an interdict restraining re‑occupation. The application followed mediation and a partial settlement with some occupiers represented by Ndifuna Ukwazi, who accepted alternative accommodation at the City’s Safe Space shelters. The remaining respondents were unrepresented.

Acting in its supervisory role under PIE, the court ordered and conducted an inspection in loco of both the occupied area and the Safe Space facility identified as alternative accommodation. The inspection revealed hazardous, unsanitary, and unsafe conditions at the site, juxtaposed with structured, dignified shelter at Safe Space, including ablutions, two meals daily, social-worker support, and reintegration pathways. Although some occupiers expressed concerns about shelter rules, curfews, privacy, and meal adequacy, the court found on the evidence that the accommodation was adequate and that no one would be rendered homeless.

Applying the two-stage enquiry under PIE, the court held that occupation was unlawful and that eviction was just and equitable in light of meaningful engagement, the availability of suitable alternative accommodation, and the public interest in maintaining safe and accessible public spaces. An interdict restraining re‑occupation was granted as a preventive and proportionate measure, with no order as to costs.

Key Issues

The court had to determine whether, on the totality of the evidence, eviction of the remaining unlawful occupiers was just and equitable under section 4(6) and (7) of PIE, having regard to the occupiers’ circumstances, the nature of the land as public open space and road reserve, and the availability and adequacy of alternative accommodation.

A further issue was whether the City’s Safe Space accommodation met constitutional standards of dignity and reasonableness under section 26(2) of the Constitution, especially in light of concerns raised by some occupiers regarding rules, curfews, privacy, access to medication and healthcare, and the adequacy of meals. The inspection in loco was central to resolving these factual contentions.

The court also considered whether interdictory relief restraining re‑occupation was warranted in the circumstances. The question was whether such relief was preventive and proportionate rather than punitive, and whether it was necessary to preserve the utility of the eviction order given a history of returns to the same precinct. Costs had to be determined against the background of constitutional litigation and constructive engagement.

Held

The court held that the occupation was unlawful and that eviction was just and equitable within the meaning of PIE. The City had meaningfully engaged, facilitated mediation, offered reasonable alternative accommodation at Safe Space, and demonstrated that no person would be rendered homeless as a consequence of the order. The inspection in loco confirmed severe health and safety risks at the site and the adequacy of the alternative accommodation offered.

The court set a humane and orderly timeframe of thirty days for vacating the property, coupled with a mechanism for occupiers to indicate acceptance of alternative accommodation within three weeks. This timeframe balanced the occupiers’ dignity and practical needs with the City’s duty to restore public spaces for communal use.

The court granted the interdict restraining re‑occupation as a preventive, proportionate measure to protect the efficacy of the eviction order and the rule of law. In line with constitutional litigation principles and the constructive engagement that had occurred, the court made no order as to costs.

THE FACTS

The City sought to evict unlawful occupiers from Tuin Plein Park and a network of adjacent streets—Hope Street, Wandel Street, Vrede Street, Roodehek Street, Wesley Street, Glynn Street, and Buitenkant Street—in the central-city precinct. The respondents comprised seventy-two identified individuals and further unknown persons living in makeshift structures fashioned from cardboard, plastic, and scrap materials, stabilised with bricks and stones. The area sits in proximity to schools, a crèche, a facility for the aged, a church, a dental clinic, residences, professional offices, and retail shops.

Following the launch of proceedings in 2024, the court referred the matter to mediation by consent on 5 September 2024. Subsequent engagement culminated in a settlement with a cohort of occupiers represented by the non-profit organisation Ndifuna Ukwazi. That settlement, made an order of court, provided for relocation to Safe Space 2 or equivalent City shelters, identified a small group with companion animals for ongoing engagement, and recorded the withdrawal of Ndifuna Ukwazi as attorneys of record for forty-six respondents who declined further representation. A counter-application previously filed by Ndifuna Ukwazi was withdrawn.

For the hearing of the remaining relief, the City served notices on all residual occupiers by hand delivery and by affixing notices to structures on 1 October 2025. At the hearing on 14 October 2025, the respondents were unrepresented. A community member, Mr Hennie Botha, addressed the court on the occupiers’ perspectives, including concerns about shelter rules, curfews, privacy, meals, and access to medical care. The court then stood the matter down and, acting mero motu, conducted an inspection in loco of both the occupied precinct and the City’s Safe Space facility identified as alternative accommodation.

THE ISSUES

The primary question was whether granting an eviction order would be just and equitable as required by section 4(6) and (7) of PIE. This required a careful assessment of the occupiers’ personal circumstances and vulnerabilities, the character of the land as public open space and roadway reserve, the surrounding community’s rights to health, safety and the use of public amenities, and the availability of suitable alternative accommodation to avoid homelessness.

A related question was whether the City’s Safe Space accommodation satisfied the constitutional standard of reasonableness and dignity under section 26(2), given the concerns raised by occupiers about curfews, shelter regulations, the temporary nature of the accommodation, access to medical services and chronic medication, the adequacy of meals, and privacy. The court had to decide whether these concerns rendered the alternative accommodation inadequate or whether the City’s programme provided a constitutionally compliant, humane interim solution.

Finally, the court had to determine whether an interdict restraining re‑occupation post-eviction was appropriate. The inquiry focused on whether such relief was necessary and proportionate to prevent cyclical re‑settlement, preserve the efficacy of the eviction order, and support the City’s lawful management of public spaces. Costs had to be determined in light of the constitutional character of the dispute and the constructive engagement that had taken place.

ANALYSIS

The court adopted the two-stage enquiry laid down in City of Johannesburg v Changing Tides 74 (Pty) Ltd. It first confirmed that the occupation was unlawful; the respondents had no consent from the City to occupy public open space and road reserves, and the makeshift structures contravened applicable regulatory frameworks. This finding was uncontroversial on the papers and consistent with PIE’s definition of unlawful occupation.

Turning to the “just and equitable” enquiry under section 4(6) and (7) of PIE, the court applied the compassionate, context-sensitive approach articulated in Port Elizabeth Municipality v Various Occupiers and the reasonableness framework in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties. It found that the City had acted with restraint and engaged meaningfully: mediation was undertaken under judicial supervision; settlement was reached with a group of occupiers; and ongoing offers of alternative accommodation were made. These steps substantively aligned with the Constitutional Court’s preference for dialogue and the Berea judgment’s insistence on participatory processes in eviction matters.

Central to the court’s reasoning was the inspection in loco, undertaken in the exercise of the court’s supervisory function under section 4(7) of PIE. The inspection disclosed hazardous and unsanitary conditions at the site, including refuse accumulation, open fires, and the absence of ablution facilities, all in a dense mixed-use precinct frequented by vulnerable groups. By contrast, the Safe Space facility provided structured, dignified accommodation: separate dormitories for males, females, couples and LGBTQIA+ residents, separate ablutions, social-worker support, two full daily meals, secure storage, and access to development, rehabilitation, and employment programmes, together with a grievance mechanism. While occupiers voiced concerns about curfews and rules, the court found that these operational protocols were reasonable and designed to promote stability and reintegration rather than to diminish dignity.

The court held that the totality of the evidence showed that no one would be rendered homeless by the eviction. The Safe Space programme was available and adequate in the constitutional sense for interim accommodation, and there was sufficient capacity to receive the occupiers. On proportionality, the court weighed the occupiers’ rights and circumstances against the municipality’s duties to manage public land for the benefit of the broader community, including the safety and health interests of nearby schools, a crèche, an old-age facility, a place of worship, residences and businesses. In that balance, and informed by the court’s first‑hand assessment, eviction coupled with available alternative accommodation was just and equitable.

Regarding interdictory relief, the court accepted that the risk of re‑occupation was real and not speculative, noting evidence that some individuals who had previously accepted Safe Space accommodation had returned to the area. The interdict was framed as preventive and proportionate, safeguarding the implementation of the eviction order and upholding the rule of law without imposing a punitive sanction. Lastly, consistent with constitutional litigation principles and the constructive engagement that occurred, the court made no order as to costs.

REMEDY

The court granted an eviction order and interdictory relief, as set out in the order annexed to the judgment. The principal relief directed the unlawful occupiers to vacate Tuin Plein Park and the identified adjoining streets. The court exercised its discretion under PIE to fashion a humane and orderly process, emphasising a balance between dignity and public interest.

A thirty-day period from the date of the order was allowed for the occupiers to vacate. This timeframe was selected to permit dignified relocation, the practical implementation of the City’s alternative accommodation offers, and the restoration of public spaces for communal use. The court considered the current inhumane site conditions and the availability of Safe Space accommodation in setting the period. The respondents were directed to inform the City within three weeks whether they would take up the Safe Space offer, a mechanism the court found fair and accessible.

The court granted a preventive interdict restraining re‑occupation of the property following eviction. The relief was designed to be proportionate, directed at preserving the efficacy of the eviction, and mindful of the precinct’s history of repeated settlement. The court admitted the City’s further affidavit under Rule 6(5)(e) and, appreciating the constitutional nature of the proceedings and the meaningful engagement that had occurred, directed that there be no order as to costs.

LEGAL PRINCIPLES

The decision restates and applies the two-stage test under PIE. First, the court must determine whether occupation is unlawful. Second, even if unlawful, the court may only grant eviction if it is “just and equitable” after considering all relevant circumstances, including the rights and needs of occupiers and the availability of alternative land or accommodation. This approach reflects the Constitutional Court’s insistence on grace, compassion, and proportionality in eviction matters, as set out in Port Elizabeth Municipality v Various Occupiers.

The judgment reinforces that municipalities have a constitutional obligation under section 26(2) to take reasonable measures, within available resources, to provide access to adequate housing, including interim or emergency accommodation. Temporary accommodation that is adequately managed and dignified—such as the Safe Space model with shelter, ablutions, meals, social-worker support, and reintegration pathways—can satisfy constitutional standards provided it does not degrade dignity or result in homelessness. The court’s use of an inspection in loco underscores that the just and equitable enquiry is fact-intensive and may warrant direct judicial oversight.

Finally, the judgment affirms that interdictory relief restraining re‑occupation may be granted where necessary to prevent cyclical settlement and to preserve the effectiveness of an eviction order. Such relief must be preventive and proportionate rather than punitive, aligned with the broader public interest in safe, accessible public spaces. Costs in constitutional eviction litigation should not mechanically follow the result; where constructive engagement has occurred and rights and duties of public significance are at stake, no order as to costs may be appropriate.