City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116; 2012 (6) SA 294 (SCA); 2012 (11) BCLR 1206 (SCA); [2013] 1 All SA 8 (SCA) (14 September 2012)

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[2012] ZASCA 116
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City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116; 2012 (6) SA 294 (SCA); 2012 (11) BCLR 1206 (SCA); [2013] 1 All SA 8 (SCA) (14 September 2012)

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REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 735/2011
In the matter between:
THE CITY OF JOHANNESBURG
...................................................
Appellant
and
CHANGING TIDES 74 (PTY) LTD
......................................
First
Respondent
THE UNLAWFUL OCCUPIERS OF TIKWELO
HOUSE, NO 48 AND 50 DAVIES STREET,
DOORNFONTEIN, JOHANNESBURG)
...................
2
nd
to 98
th
Respondents
THE SOCIO-ECONOMIC RIGHTS INSTITUTE
OF SOUTH AFRICA
................................................................
Amicus
Curiae
Neutral citation:
City of Johannesburg
v
Changing Tides 74 (Pty) Ltd and 97 others (The Socio-Economic Rights
Institute of South Africa intervening as amicus
curiae)
(735/2011)[2012] ZASCA 116 (14 September 2012)
Coram:
MTHIYANE DP, LEWIS, TSHIQI, WALLIS and
PETSE JJA.
Heard
: 21 August 2012
Delivered
: 14 September 2012
Summary:
Eviction in terms of Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE) – relationship
between ss 4(6) and (7) –
joinder of local authority – whether required or permissible –
power of court
to make an order that is just and equitable –
enquiry to be undertaken by court – obligations of applicant,
local authority
and respondents discussed.
ORDER
On appeal from:
South Gauteng High Court (Wepener
J sitting as court of first instance) it is ordered that:
1. The appeal is upheld and each party is ordered to pay
its or their own costs of appeal.
2. Paragraph 2 of the order of the high court is
declared to be legally ineffective.
3. Paragraphs 3 and 4 of the high court’s order
are set aside.
4. The application for eviction is remitted to the high
court in order for it to determine the date upon which all of the
occupiers
of Tikwelo House are to be evicted from that building, the
terms upon which the City is to provide temporary emergency
accommodation
to the persons referred to in paragraph 5(b) below of
this order, any other conditions attaching to that eviction order and
the
costs of the application.
5. The remittal is subject to the following further
orders:
(a) The attorneys for the occupiers, the Legal Resources
Centre (the LRC), are directed on or before 30 September 2012 to
furnish
the attorneys for the City of Johannesburg with a list of
those of its clients who, as a result of their eviction from Tikwelo
House, will require temporary emergency accommodation, together with
their names, ages, family circumstances, sources of income
and
appropriate proof of identity. The list and those details shall be
confirmed by an affidavit of information and belief from
a
representative of the LRC and where possible by affidavits from the
occupiers referred to therein.
(b) It is declared that the City of Johannesburg is
obliged to provide all of the persons whose names appear on that list
with temporary
emergency accommodation by no later than two weeks
prior to the date of the eviction order to be determined by the high
court.
(c) The City of Johannesburg is directed, by no later
than 31 October 2012, to deliver a report to the high court,
confirmed
on affidavit by an appropriate official of the City,
detailing the accommodation that it will make available to the
occupiers and
when such accommodation will be available and
containing an undertaking to make that accommodation available. That
accommodation
must be in a location as near as feasibly possible to
the area where Tikwelo House is situated and the report must
specifically
deal with the issue of proximity and explain why the
particular location and form of accommodation has been selected. It
must also
set out the steps taken during the two months before the
report is filed to engage with the occupiers through the LRC or any
other
means that may appear appropriate.
(d) The occupiers are entitled by no later than 30
November 2012 to deliver affidavits dealing with the contents of the
City’s
report and specifying any objections thereto and the
City is entitled within two weeks thereafter to deliver such further
affidavits
as it deems appropriate.
(e) The application must then be set down on the opposed
roll for hearing. If at any stage there is non-compliance with the
provisions
of this order, Changing Tides (Pty) Ltd is authorised to
set the matter down for hearing for appropriate relief.
JUDGMENT
WALLIS JA (MTHIYANE DP, LEWIS, TSHIQI and PETSE JJA
concurring)
Introduction
[1] This case illustrates the difficulties that confront
a court of first instance faced with an application for an eviction
order
and seeking to give effect to constitutional prescripts. As
will emerge, the judge in the high court sought to address the issue

by granting an order, at the instance of the applicant, that adapted
an order made by this court in a similar case. By the conclusion
of
argument all counsel who appeared before us agreed that in doing so
he erred. That is a view we share and results in the appeal
being
upheld to some extent and a remittal of the case to the high court on
terms set out in the order. But first it is necessary
to set out the
facts giving rise to the appeal.
[2] The first respondent, Changing Tides 74 (Pty) Ltd
(Changing Tides), owns Tikwelo House. The building was formerly a
factory
or warehouse. Some years ago, when under different ownership
and in circumstances that Changing Tides is unable to explain, people

started to live there. The interior was divided into flats using
rudimentary partitioning. Whether the original owners were party
to
this or whether its occupation occurred through people desperate for
a roof over their heads simply taking possession of the
building is
not known. Whilst the building was in the hands of its previous
owners, third parties took control of access to it
and let rooms and
collected rentals from the occupiers. They now maintain that control
as against Changing Tides by force or the
threat of force. This
phenomenon is appropriately described as the hijacking of the
building. Tikwelo House is unsuited to human
habitation and in a
state of disrepair, with no toilet or ablution facilities, no water
supply or sewage disposal, illegal electricity
connections,
inadequate ventilation and refuse, including human waste, strewn in
open spaces. Counsel who appeared for the occupiers
said that they
accept that it is a death trap and that it is in no-one’s
interests that they continue to live there. It is
a health and fire
hazard and the local police claim that it is a focus for illegal
activities. The appellant, the City of Johannesburg
(the City), has
given Changing Tides notice to comply with the public health and
emergency service by-laws as well as the provisions
of the National
Building Regulations and Building Standards Act 103 of 1977 and has
commenced proceedings against Changing Tides
to compel compliance
with its demands.
[3] Changing Tides has no responsibility for this
situation. In late 2007 it acquired this property and three others in
settlement
of debts owed to associated entities by the previous owner
and their shareholders. Its intention was to redevelop the four
properties.
Whilst it has tried to obtain control over the property
the hijackers have prevented it from doing so. Its only presence on
the
property takes the form of a single security guard whose
principal function is to observe what is happening there. A previous
attempt
in 2008 to obtain an eviction order was unsuccessful. On 6
April 2011 it commenced the present proceedings to obtain possession

of the building. It cited as respondents all the occupiers of the
building and furnished the names (often in truncated form) of
97
individuals in a list attached to the notice of motion, stating that,
apart from those names, particulars of the respondents
were not known
to it. It also cited the City, contending that the latter had a
direct and substantial interest and that in eviction
proceedings of
this nature the joinder of the City was inevitable.
[4] The application was not opposed. It came before
Wepener J in the South Gauteng High Court on 14 June 2011. Both
Changing
Tides and the City were represented, the former by counsel
and the latter by its attorney. Counsel for Changing Tides sought an

amended order the principal purpose of which was to take account of
the judgment of this court in
Blue Moonlight.
1
The City opposed this on the grounds that the
Blue Moonlight
judgment was under appeal to the Constitutional Court,
2
but the judge held himself bound by the judgment of this court. He
accordingly granted, in addition to an eviction order, a further

order that the sheriff prepare a ‘matrix’ (more
accurately a schedule) of information concerning ‘each occupier

and their household members’ as specified in the order and an
order that the City provide the occupiers whose names appeared
in
that schedule with temporary emergency accommodation. The City was
ordered to pay the costs of the sheriff in preparing the
schedule of
information.
[5] On 12 October 2011, shortly before the
Constitutional Court delivered its judgment in
Blue Moonlight
,
3
the judge granted leave to appeal against the order for the provision
of temporary emergency accommodation and the costs order
against the
City. Although the occupiers of the building had thus far played no
part in the proceedings, counsel appeared on their
behalf to oppose
the grant of leave to appeal. They did not, however, seek leave to
appeal against the eviction order nor did they
signify an intention
to seek the rescission of the eviction order. The matter before us is
therefore an appeal against only those
parts of the high court’s
order already mentioned. Prior to the appeal we received an
application by the Socio-Economic Rights
Institute of South Africa to
intervene as amicus curiae and that was granted on the basis that
they would make written submissions
and address brief oral argument.
The order
[6] The limited ambit of this appeal occasioned
considerable difficulties. It is therefore necessary to consider the
full terms
of the court’s order. It reads:
'1. The First to Ninety Seventh Respondents and all persons occupying
through them (collectively 'the occupiers') are evicted from
the
immovable property situated at numbers 48 and 50 Davies Street,
Doornfontein, Johannesburg and described as Erfs 150 and 151

Doornfontein Township, Registration Division I.R., Gauteng more
commonly known as Tikwelo House.
2. The Sheriff
alternatively
his duly appointed Deputy
together with such assistance as he deems appropriate including the
South African Police Services is
ordered and authorised to enter into
Tikwelo House at no 48 and 50 Davies Street Doornfontein Johannesburg
in order to compile
a 'matrix' of information in respect of each
occupier and their household members including children ('the
occupiers') consisting
of the information listed below and to furnish
a copy of such matrix to the Applicant and the 98
th
respondent as well as file a copy thereof in the Court file, within
in 15 days of this order:
1.1 Full names;
1.2 Nationality and language preference;
1.3 Date on which they allege to have taken occupation in the
building;
1.4 Occupation;
1.5 Identity number supported by copy of identity document or
document which positively identify the occupier;
1.6 Income supported by payslip if possible;
1.7 Number and name of dependent occupiers;
1.8 Age
1.9 Whether the occupier has applied for State-assisted relief in
terms of the RDP Programme or any other State sponsored programme,

and proof of such application.
3. The 98
th
Respondent is ordered to provide those
occupiers whose names appear in the matrix to be compiled by the
Sheriff of the Court aforementioned
with temporary emergency
accommodation as decant in a location as near as feasibly possible to
the area where the property is situated,
provided that they are still
resident at the property and have not voluntarily vacated it as of
14
th
August 2011, by which date the occupiers are to
vacate, failing which the Sheriff of the court is ordered to evict
them.
4. The 98
th
Respondent is to pay the costs of the Sheriff
in respect of compiling, delivering and filing the matrix
aforementioned.'
[7] The first difficulty is that as a result of a
drafting error the eviction order in paragraph 1 appears to relate
only to the
persons named in the list annexed to the notice of motion
and not to all the occupiers of the building, although the
application
had been directed at all the occupiers. Counsel for
Changing Tides informed us that the notices in terms of ss 4(2)
and (5)
of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) were directed at and served,
in
accordance with an order in terms of s 4(4) of PIE, on all
the occupiers. Paragraphs 2 and 3 of the order are clearly directed

at an eviction of all the occupiers, notwithstanding the apparently
restricted ambit of paragraph 1. No-one appears to have noticed
this
and the heads of argument in the appeal were delivered on the basis
that the order granted related to all occupiers and not
simply those
referred to as the first to ninety seventh respondents. There was
accordingly an internal contradiction in the order
itself.
[8] The next difficulty is that in terms of paragraph 2
of the order the sheriff was directed, with the assistance of the
South
African Police if required, to enter Tikwelo House and compile
the schedule of information regarding the occupiers and their
personal
circumstances. This is not the proper function of the
sheriff. Those functions are prescribed by statute.
4
In the high court it is to execute all sentences, decrees, judgments,
writs, summonses, rules, orders, warrants, commands and processes
of
the court and make return of the manner of execution thereof to the
court and any party at whose instance the sheriff was acting.
5
Paragraph 2 of the order of the high court requires the sheriff to
procure and assemble information to enable the City to discharge
its
constitutional obligations to persons evicted from Tikwelo House and
rendered homeless by their eviction. That is not a function
of the
sheriff and it cannot be made the function of the sheriff by
incorporating the obligation in a court order.
[9] There is the further difficulty that, apart from any
tacit coercion that may arise from the sheriff being accompanied by
the
police, there is no obligation on the occupiers to furnish the
information required to draw up the proposed schedule. If this
building
is a centre for criminal activities and, as suggested by the
City, houses a number of illegal immigrants, I fail to see on what

basis it can be thought that, other than a few, the occupiers will
meekly provide the sheriff with the information set out in paragraph

2 of the order. In addition those who have hijacked the building and
have an interest in obstructing the eviction of the occupiers
may
threaten the occupiers or worse if they co-operate with the sheriff.
That part of the order was accordingly improvidently sought
and
erroneously granted. It is therefore a nullity.
6
[10] That conclusion on its own inevitably means that
paragraphs 3 and 4 of the high court order cannot stand, as they are
dependent
on the fulfilment by the sheriff of the obligations set out
in paragraph 2 of the order. There are, however, other reasons why
that must be the outcome of this appeal. Whilst the judge was correct
to accept that he was bound by and needed to apply the decision
of
this court in
Blue Moonlight
, he overlooked the fact that
there were differences between that case and the one before him.
There the occupiers were identified
and represented and had placed
undisputed information before the court regarding their personal
circumstances that demonstrated
that, if evicted, they would be
rendered homeless. That type of information was not available to
Wepener J in this matter. No doubt
he relied on the knowledge that
any reasonably perceptive person would have that, in a situation such
as prevailed at Tikwelo House,
it was overwhelmingly probable that
the occupiers would be extremely poor and might well be rendered
homeless by eviction. However,
without greater detail as to their
circumstances and their needs if evicted – the needs of a
family with three children being
different from those of three young
men sharing living quarters – he could not be satisfied that
the order he was making
was just and equitable, that the timing of
the eviction order was just and equitable or that the conditions he
was attaching to
it were appropriate. Whilst he knew from the
affidavits that there were children living in the building, and it
was reasonable
for him to assume that there might well be households
headed by women, he lacked information relevant to the assessment of
the
factors specified in s 4(7) of PIE. The absence of that
information precluded a proper exercise of his discretion.
7
For those reasons these two paragraphs of his order must be set
aside. The debate before us centred on what should take their place.

In order to determine that it is necessary to examine the current
state of our law in regard to evictions.
The legal framework
[11] In terms of s 4(7) of PIE an eviction order
may only be granted if it is just and equitable to do so, after the
court
has had regard to all the relevant circumstances, including the
availability of land for the relocation of the occupiers and the

rights and needs of the elderly, children, disabled persons and
households headed by women. If the requirements of s 4 are satisfied

and no valid defence to an eviction order has been raised the court
‘must’, in terms of s 4(8), grant an eviction
order.
When granting such an order the court must, in terms of s 4(8)(a)
of PIE, determine a just and equitable date on which
the unlawful
occupier or occupiers must vacate the premises. The court is
empowered in terms of s 4(12) to attach reasonable
conditions to
an eviction order.
[12] There does not appear to have been a consideration
of the precise relationship between the requirements of s 4(7),
(or
s 4(6) if the occupiers have been in occupation for less than six
months), and s 4(8) in the context of an application for

eviction at the instance of a private landowner. In some judgments
there is a tendency to blur the two enquiries mandated by these

sections into one. The first enquiry is that under s 4(7), the
court must determine whether it is just and equitable to order

eviction having considered all relevant circumstances. Among those
circumstances the availability of alternative land and the rights
and
needs of people falling in specific vulnerable groups are singled out
for consideration. Under s 4(8) it is obliged to
order an
eviction ‘if the … requirements of the section have been
complied with’ and no valid defence is advanced
to an eviction
order. The provision that no valid defence has been raised refers to
a defence that would entitle the occupier to
remain in occupation as
against the owner of the property, such as the existence of a valid
lease. Compliance with the requirements
of section 4 refers to
both the service formalities and the conclusion under s 4(7)
that an eviction order would be just
and equitable.
8
In considering whether eviction is just and equitable the court must
come to a decision that is just and equitable to all parties.
9
Once the conclusion has been reached that eviction would be just and
equitable the court enters upon the second enquiry. It must
then
consider what conditions should attach to the eviction order and what
date would be just and equitable upon which the eviction
order should
take effect. Once again the date that it determines must be one that
is just and equitable to all parties.
[13] Two factors that have loomed large in our case law
on evictions, both under PIE and otherwise, are the risk of
homelessness
and the availability of alternative land or
accommodation. In the case of occupations of public land
10
and evictions at the instance of public bodies,
11
the emphasis has fallen on the constitutional obligations of the arms
of government mandated to address the housing needs of the
people
affected by the eviction, and in particular to address the plight of
those who face an emergency situation of homelessness.
The starting
point is the judgment in
Grootboom
where a declaratory order
was made that the State was obliged to develop a programme, including
the provision of relief for people
who had no access to land, no roof
over their heads and were living in intolerable circumstances. In
Port Elizabeth Municipality
the Constitutional Court upheld an
order of this court that an eviction order from privately owned land,
at the instance of the
local authority, should not have been made
when it was unclear whether the alternative accommodation being
offered by the municipality
would afford a reasonable measure of
security of tenure. In
Olivia Road
it endorsed a settlement
agreement concluded between the municipality and the occupiers of the
building, after a process of mediation,
that provided for the
occupiers to vacate the building, and in
Joe Slovo
it crafted
an elaborate eviction order under which the evictees were to be
relocated elsewhere; there was to be engagement between
the
municipality and the residents and the entire process was subject to
supervision by the court. The difficulties facing courts
in this
regard are illustrated by the fact that some 21 months later the
Constitutional Court discharged the order in its entirety.
12
[14] The disparate situations in each of these cases
means that care must be taken in simply transposing either what was
said in
the judgments, or the orders that were made, to other
different situations, where those statements may have less
application and
those solutions may be inappropriate. What is clear
and relevant for present purposes is that the State, at all levels of
government,
owes constitutional obligations to those in need of
housing and in particular to those whose needs are of an emergency
character,
such as those faced with homelessness in consequence of an
eviction. Those obligations arise under s 26 of the Constitution

and exist separately from any question of whether it is just and
equitable for a court to grant an eviction order. As Harms DP
said in
City of Johannesburg v Rand Properties (Pty) Ltd & others
,
13
in relation to persons in crisis with no access to land, no roof over
their heads and living in intolerable conditions:
‘
Eviction, at the very least,
triggers an obligation resting on the city to provide emergency and
basic shelter to any affected respondent.’
[15] Where the eviction takes place at the instance of
an organ of state in circumstances to which PIE is applicable the
court can
only order eviction if it is satisfied that it is just and
equitable to do so after having regard to all relevant factors
including
those set out in s 6(3) of PIE, namely the
circumstances in which the occupiers came to occupy the land and
erect structures
thereon; the period they have resided on the land
and the availability of suitable alternative accommodation or land.
The last
of these has been held to be vital to the justice and equity
evaluation and a crucial factor in the enquiry.
14
It cannot, however, be the sole enquiry nor, notwithstanding its
importance, is it absolutely decisive. The Constitutional Court
has
on several occasions stressed that, in the present situation in South
Africa, where housing needs are so great and resources
so limited,
there cannot be an absolute right to be given accommodation.
15
Specifically in regard to s 6(3)(c) of PIE, which requires the
court to have regard to the availability of alternative accommodation

or land, it has said that there is no unqualified constitutional duty
on local authorities to ensure that there cannot be an eviction

unless alternative accommodation has been made available.
16
The correct position appears to be, as explained by O’Regan J
in
Joe Slovo
,
17
that an eviction order in circumstances where no alternative
accommodation is provided is far less likely to be just and equitable

than one that makes careful provision for alternative housing.
Neither PIE nor s 26 of the Constitution provides an absolute

entitlement to be provided with accommodation. In some circumstances
a reasonable response to potentially homeless people may be
to make
permanent housing available and in others it may be reasonable to
make no housing at all available.
18
In all of this the court will have to be mindful of all other
relevant factors including the resources available to provide
accommodation.
19
[16] The issue of the availability of alternative
accommodation is more difficult in the context of an eviction at the
instance
of an owner of property that is not an organ of state. There
another constitutionally protected right, the right to property,
20
comes into play. As pointed out in this court in
Ndlovu v Ngcobo:
Bekker & another v Jika
21
the effect of PIE is not to expropriate private property. What it
does is delay or suspend the exercise of the owner’s rights

until a determination has been made whether an eviction would be just
and equitable and under what conditions. The Constitutional
Court
endorsed that approach in
Blue Moonlight
.
22
[17] That situation differs from the case where an organ
of state seeks the eviction. In such a case it is almost always also
the
body responsible for providing alternative accommodation. The
majority of cases where an organ of state asks for an eviction order

will involve departments at various levels of government, that are
either themselves responsible for the provision of housing or,
if
not, are nonetheless closely linked to departments that do bear that
responsibility. In those circumstances to link the availability
of
alternative land or accommodation to the ability to obtain an
eviction order is relatively straightforward. It will generally
only
be just and equitable to grant an eviction order at the instance of
one arm of the state, if the related arm of the state
bearing the
obligation to attend to the housing needs of the population is able
and willing to address the consequences of that
eviction by ensuring
that alternative land or accommodation is available to those evicted.
Conversely eviction will ordinarily
not be just and equitable in that
situation if alternative land or accommodation is not made available.
[18] The position is otherwise when the party seeking
the eviction is a private person or entity bearing no constitutional
obligation
to provide housing. The Constitutional Court has said that
private entities are not obliged to provide free housing for other
members
of the community indefinitely, but their rights of occupation
may be restricted, and they can be expected to submit to some delay

in exercising, or some suspension of, their right to possession of
their property in order to accommodate the immediate needs of
the
occupiers. That approach makes it difficult to see on what basis the
availability of alternative land or accommodation bears
on the
question whether an eviction order
should
be granted, as
opposed to the date of eviction and the conditions attaching to such
an order. One can readily appreciate that the
date of eviction may be
more immediate if alternative accommodation is available, either
because the circumstances of the occupiers
are such that they can
arrange such accommodation themselves, or because the local authority
has in place appropriate emergency
or alternative accommodation.
Conversely, justice and equity may require the date of implementation
of an eviction order to be
delayed if alternative accommodation is
not immediately available. It is, however, difficult to see on what
basis it affects the
question whether it is just and equitable to
make such an order. Perhaps in a case, where the occupiers would be
entitled to a
lengthy period of notice before being required to
vacate, the unavailability of alternative land or accommodation might
operate
as a factor to persuade the court that the issue of an
eviction order, at the stage that the application came before it,
would
not be just and equitable, but such cases are likely to be
rare.
23
This does not mean that courts may disregard the question of the
availability of alternative land or accommodation – that
would
ignore the express requirements of s 4(7) – but the weight
this factor will carry in making the initial decision
whether an
eviction order is just and equitable may not be great.
[19] In most instances where the owner of property seeks
the eviction of unlawful occupiers, whether from land or the
buildings
situated on the land, and demonstrates a need for
possession and that there is no valid defence to that claim, it will
be just
and equitable to grant an eviction order. That is consistent
with the jurisprudence that has developed around this topic. In
Ndlovu v Ngcobo
,
24
Harms JA made the point that ownership and the lack of any lawful
reason to be in occupation are important factors in the exercise
of
the court’s discretion. In the
Modderklip Boerdery
case
25
Marais J carefully weighed the different factors and granted an
eviction order. His order was upheld by this court
26
and not questioned in the Constitutional Court.
27
The eviction order granted by this court in
Rand Properties
28
(not
a PIE case, but one in which the circumstances relating to the
building were similar) was set aside by the Constitutional Court
in
Olivia Road
,
29
but on the grounds of the lack of engagement between the municipality
and the occupiers, not its appropriateness. In
Blue Moonlight
an
eviction order was granted at first instance and confirmed subject to
different conditions in this court and the Constitutional
Court.
30
[20] Where the eviction is sought by a private landowner
the availability of alternative land or accommodation assumes greater
importance
in the second enquiry, namely, what is a just and
equitable date for eviction? It is here that the constitutional
obligations of
the appropriate arm of government – in our
cities this is inevitably the municipality – come into focus
and assume
their greatest importance. The reason is that, even if it
is just and equitable to grant an eviction order that is not the end
of the enquiry, because any eviction order must operate from a date
fixed by the court and that date must be one that is just and

equitable.
[21] Accordingly the availability of alternative land or
accommodation is relevant to both enquiries into what is just and
equitable.
That link between the first and second stages of the
enquiry underpins the numerous decisions in which our courts have
held that,
before determining whether an eviction order should be
granted, the relevant authorities must be engaged in order to ensure
that
they will discharge their obligations to the evictees. I need
mention only four of the leading decisions in that regard. The first

in point of time is the
Port Elizabeth Municipality
case in
the Constitutional Court. That stressed the need for courts to ensure
that as far as possible they are fully informed of
the relevant facts
in order properly to discharge their function of determining whether
an eviction order should be issued and
if so on what terms.
31
It mandated a more active role of case management for courts hearing
applications for eviction
32
including the need to consider whether mediation in terms of s 7 of
PIE might be appropriate.
33
[22] This court adopted the same approach in
The
Occupiers of Erf 101, 102, 104 and 112, Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd & others.
34
There an eviction order was sought in relation to a well-established
community of some 2000 people, who had indicated their willingness
to
move from the land and even identified a potential site to which they
could possibly move. The local authority had demanded
that the owner
evict the occupiers, but was not joined and simply filed a report
saying that it could not accommodate the potential
evictees or
identify other land to which they could move. This court, at the
request of the parties, made an order setting aside
the eviction
order that had been granted; joining the municipality as a party and
ordering the municipality to file a report, confirmed
on oath,
dealing with the availability of alternative land and emergency
accommodation; the consequences of an eviction order if
no
alternative land or emergency accommodation could be made available
and setting out the steps that could be taken to alleviate
the
effects of the occupation of the property if the occupiers were not
immediately evicted. The court held that the absence of
information
in regard to these matters meant that relevant information was not
taken into account in determining whether the eviction
was just and
equitable and accordingly ‘the eviction order was premature’.
35
Clearly the court was concerned with both of the just and equitable
enquiries required by s 4 of PIE in reaching that conclusion.
[23] The next case is that involving the occupiers of
Shulana Court.
36
Here an application for eviction from a building similar to Tikwelo
House was granted by default. An application for rescission
of the
default judgment was refused. The appeal against that refusal was
upheld because the court dealing with the eviction application
did
not possess the information referred to in s 4(7) of PIE, nor
did it know what alternative accommodation was available
for evictees
who might find themselves in an emergency situation in consequence of
their eviction. The circumstances in which the
occupiers were living
indicated the likelihood that at least some of them might be rendered
homeless as a result of their eviction.
Accordingly the municipality
should have been engaged in the process before granting an eviction
order. For those reasons the court
that granted the eviction order
had not done what was required of it in terms of s 4(7) of PIE
and, by failing to investigate
matters further, in particular the
issue of possible homelessness, it had failed to discharge its
constitutional obligations.
37
[24] Lastly there is the recent decision of the
Constitutional Court in
Occupiers of Mooiplaats v Golden Thread
Ltd & others
38
handed down shortly after its judgment in
Blue Moonlight
.
Again that was a case where the court had granted an eviction order
without investigating the possibility of it resulting in
homelessness, or whether mediation involving the owner, the occupiers
and the municipality might have led to a resolution of the
dispute or
ameliorated the plight of the occupiers. The eviction order was set
aside on the basis that it could not be said that
an eviction order
was just and equitable. The case was remitted to the high court to
obtain a report from the municipality about
the housing situation of
the occupiers; the possibility of homelessness if they were evicted;
the provision of alternative land
or accommodation; the consequences
of an eviction if no alternative land or accommodation was provided
and the measures that could
be taken to alleviate the situation of
the owner if an eviction was delayed while alternatives were
arranged. Whilst the court
referred only to s 4(6) and not
s 4(8) it is plain that it was concerned not only with the
justice and equity of an eviction
order, but also with the justice
and equity of the timing of such an order. That emerges from its
citation
39
of the passage from its judgment in
Blue Moonlight
where it
had said that an owner’s right to possession could be
temporarily restricted whilst the justice and equity enquiry
was
undertaken; its comment that the owner had no immediate plans to use
the property and from the requirement in the order that
the
municipality report on the impact on the owner of delay in granting
an eviction order.
[25] Reverting then to the relationship between ss 4(7)
and (8), the position can be summarised as follows. A court hearing

an application for eviction at the instance of a private person or
body, owing no obligations to provide housing or achieve the
gradual
realisation of the right of access to housing in terms of s 26(1)
of the Constitution, is faced with two separate
enquiries. First it
must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors.
Under s 4(7) those
factors include the availability of alternative land or
accommodation. The weight to be attached to that
factor must be
assessed in the light of the property owner’s protected rights
under s 25 of the Constitution, and on the
footing that a limitation
of those rights in favour of the occupiers will ordinarily be limited
in duration. Once the court decides
that there is no defence to the
claim for eviction and that it would be just and equitable to grant
an eviction order it is obliged
to grant that order. Before doing so,
however, it must consider what justice and equity demands in relation
to the date of implementation
of that order and it must consider what
conditions must be attached to that order. In that second enquiry it
must consider the
impact of an eviction order on the occupiers and
whether they may be rendered homeless thereby or need emergency
assistance to
relocate elsewhere. The order that it grants as a
result of these two discrete enquiries is a single order. Accordingly
it cannot
be granted until both enquiries have been undertaken and
the conclusion reached that the grant of an eviction order, effective
from a specified date, is just and equitable. Nor can the enquiry be
concluded until the court is satisfied that it is in possession
of
all the information necessary to make both findings based on justice
and equity.
Procedural issues in eviction applications under PIE
[26] In order to discharge its function the court must
be possessed of information regarding all relevant factors that bear
upon
its decision. Judges have been told
40
that they are:
‘…
called upon to go
beyond [their] normal functions and to engage in active judicial
management according to equitable principles
of an ongoing, stressful
and law-governed social process. This has major implications for the
manner in which [the court] must
deal with the issues before it, how
it should approach questions of evidence, the procedures it may
adopt, the way in which it
exercises its powers and the orders it
might make.’
That injunction must, however, be seen in the context
that our courts are neither vested with powers of investigation nor
equipped
with the staff and resources to engage in broad-ranging
enquiries into socio-economic issues. Nor, as already pointed out,
can
the courts circumvent that by delegating those tasks to the
sheriff, who is likewise ill-equipped for that task. How then is the

court to ensure that it is adequately informed in regard to the
relevant factors that must be taken into account in making its

decision?
[27] There is nothing novel about a court taking a
proactive approach to litigation in order to ensure that it is
sufficiently informed
to enable it to take a just decision in the
context of cases where its task differs from that ordinarily
encountered in adversarial
litigation and the orders sought from it
are discretionary. For example in
Clarke v Hurst NO & others
,
41
a case involving the removal of life support from a patient in a
persistent vegetative state, Thirion J requested and secured that

additional specialist medical investigations be undertaken before
reaching a decision. In my view courts can, and must, properly

address the issues arising in eviction cases within the framework of
our existing law governing evidence and civil procedure, provided

they are not overwhelmed by practical problems
42
and make use, where appropriate, of court ordered mediation or
engagement, or structured interdicts. However, in exercising these

powers judges must take care to ensure that they do not go beyond the
proper bounds of judicial conduct.
43
A more active role in managing the litigation does not permit the
judge to enter the arena or take over the running of the litigation.

By way of illustration of the boundaries within which they must
operate, it is permissible in an appropriate case to conduct an

inspection in loco,
44
but it is impermissible to engage in private investigation. What they
are obliged to do in eviction cases is ensure that all the
relevant
parties are before them, that proper investigations have been
undertaken to place the relevant facts before them and that
the
orders they craft are appropriate to the particular circumstances of
the case. If, despite appropriate judicial guidance as
to the
information required, the judges are not satisfied that they are in
possession of all relevant facts, no order can be granted.
In what
follows I address some of the more important aspects of eviction
applications in the light of the contentions advanced
before us.
Onus
[28] The City submitted that it is the duty of the
occupiers to place any necessary relevant information before the
court. It contended
that the common law position that an owner can
rely simply on its ownership of the property and the occupation of
the occupiers
against its will is applicable to applications governed
by s 4(7) of PIE. It relied on the cases where it has been held
that
the landowner may allege only its ownership of the property and
the fact of occupation in order to make out a case, to which the

occupiers must respond and establish a right of occupation if they
wish to prevent an order form being made.
45
It argued that the only effect of PIE was to overlay the common law
position with certain procedural requirements.
[29] This is not an issue that has been resolved in the
cases and to some extent it has been obscured by cases in which a
less conventional
approach to the function of the court has been
espoused. The enquiry into what is just and equitable requires the
court to make
a value judgment on the basis of all relevant facts. It
can cause further evidence to be submitted where ‘the evidence
submitted
by the parties leaves important questions of fact obscure,
contested or uncertain’.
46
That may mean that ‘technical questions relating to onus of
proof should not play an unduly significant role’.
47
However, I do not think that means that the onus of proof can be
disregarded. After all what is being sought from the court is
an
order that can be granted only if the court is satisfied that it is
just and equitable that such an order be made. If, at the
end of the
day, it is left in doubt on that issue it must refuse an order. There
is nothing in PIE that warrants the court maintaining
litigation on
foot until it feels itself able to resolve the conflicting interests
of the landowner and the unlawful occupiers
in a just and equitable
manner.
[30] The implication of this is that, in the first
instance, it is for the applicant to secure that the information
placed before
the court is sufficient, if unchallenged, to satisfy it
that it would be just and equitable to grant an eviction order. Both
the
Constitution and PIE require that the court must take into
account all relevant facts before granting an eviction order. Whilst

in some cases it may suffice for an applicant to say that it is the
owner and the respondent is in occupation, because those are
the only
relevant facts, in others it will not. One cannot simply transpose
the former rules governing onus to a situation that
is no longer
governed only by the common law but has statutory expression. In a
situation governed by s 4(7) of PIE, the applicant
must show
that it has complied with the notice requirements under s 4 and
that the occupiers of the property are in unlawful
occupation. On
ordinary principles governing onus it would also have to demonstrate
that the circumstances render it just and equitable
to grant the
order it seeks. I see no reason to depart from this. There is nothing
unusual in such an onus having to be discharged.
One of the grounds
upon which it was permissible to seek a winding-up order in respect
of a company under the Companies Act 61
of 1973 was that it would be
just and equitable for the court to grant such an order. The law
reports are replete with cases in
which courts dealt with
applications for winding-up on that basis. In cases where the
applicant failed to discharge the onus of
satisfying the court that
it would be just and equitable to grant a winding-up order it was
refused.
[31] The response to this may be to say that the
applicant for relief will be unaware of the circumstances of the
occupiers and
therefore unable to place the relevant facts before the
court. As a general proposition that cannot be sustained. Most
applicants
for eviction orders governed by PIE will have at least
some knowledge of the identity of the persons they wish to have
evicted
and their personal circumstances. They are obviously not
required to go beyond what they know or what is reasonably
ascertainable.
The facts of this case belie the proposition that an
applicant, even in a case where a building has been hijacked, is
unable to
place information before the court in regard to the
identity and circumstances of the occupiers. Changing Tides was able
to describe
in considerable detail the circumstances in which the
occupiers were living. It had served notices to vacate on a number of
them
and managed to assemble a list, albeit incomplete and defective,
of the names of 97 occupiers. It made it clear that the occupiers

were people of extremely limited means, some at least of whom
gathered rubbish from the streets for personal use or resale and
left
rotting garbage inside and outside the building. It specifically
alleged that the occupiers were people who would, on eviction,

qualify for emergency housing. It referred to earlier proceedings in
which it had previously obtained an eviction order that had

subsequently been set aside at the instance of occupiers. For some
reason it did not provide the court with information about the

occupiers’ circumstances gleaned from the affidavits in those
proceedings. That information might also have disclosed something
of
the circumstances in which the building came to be occupied
originally. In that regard they could also presumably have made

enquiries of the previous owners.
[32] In addition, there were a number of other potential
sources of information that were not exploited. Security guards had
been
on site to observe the comings and goings of the occupiers. They
could have provided affidavits from their observations. The owner’s

representatives had been in communication with the police and could
have procured more detailed information about the alleged criminal

activities in the building from that source. In addition, in seeking
to demonstrate that it was just and equitable that they be
granted an
eviction order, they could have explained why they had done nothing
for some three years to pursue the eviction of the
occupiers after
the first order was set aside. They could also have given more detail
regarding their redevelopment plans for the
building, both as to the
character of the proposed development and as to the proposed
timeframe. All that was important information,
both in regard to the
grant of an order and in determining a just and equitable date for
the eviction order they were seeking.
It would have provided a
substantial body of information to assist the court in reaching a
decision on whether it was just and
equitable to evict the occupiers.
[33] It is appropriate to mention one further issue that
arises generally in these cases. Very often it seems that once an
eviction
is ordered the sheriff effects it, making use of assistance
from security firms and the police. That may be necessary in a small

number of cases where the occupiers actively resist their eviction
and questions of the personal safety of the sheriff and his
or her
deputies may arise. However, in many instances all that happens is
that the sheriff and his staff remove people and their
belongings and
dump them unceremoniously on pavements outside the building they have
been occupying in scenes reminiscent of forced
removals in the days
of apartheid. The Constitutional Court has rightly said that the loss
of a home, even ones as exiguous as
these appear to be, is a painful
and often degrading experience. It has charged courts with
responsibility for infusing ‘grace
and compassion’ into
this situation. One way in which that could be done would be if the
property owner indicated a willingness
to assist those displaced to
move themselves and their meagre belongings to whatever new location
they may have found or whatever
emergency accommodation may be
provided. That would ameliorate the situation of the evictees to some
degree at some additional
cost to the property owner. A tender to
provide such assistance would help the court in determining whether
the eviction and the
date and conditions on which it is to be
effected are just and equitable. I do not intend to lay down as a
legal obligation that
property owners must do this in order to obtain
eviction orders. I mention it to illustrate one of the ways in which
an applicant
for an eviction order could seek to show that the grant
of that order, its timing and the conditions to which it is subject
are
just and equitable.
[34] In my view, therefore, there are no good reasons
for saying that an applicant for an eviction order under s 4(7)
of PIE
does not bear the onus of satisfying the court that it is just
and equitable to make such an order. Cases where that onus affects

the outcome are likely to be few and far between because the court
will ordinarily be able to make the value judgment involved
on the
material before it. However, the fact that an applicant bears the
onus of satisfying the court on this question means that
it has a
duty to place evidence before the court in its founding affidavits
that will be sufficient to discharge that onus in the
light of the
court’s obligation to have regard to all relevant factors. The
City’s contention, that the common law
position continues to
prevail and that it is for the occupiers to place the relevant facts
before the court, is incorrect. Once
that is recognised it should
mean that applicants go to greater lengths to place evidence of
relevant facts before the court from
the outset and this will
expedite the process of disposing of these applications, particularly
in cases that are unopposed as the
need for the court to direct that
further information be obtained will diminish.
Joinder
[35] Even if an applicant places reasonably
comprehensive information before the court, there will nonetheless
often be information
not within its knowledge, especially in relation
to the ability and willingness of the relevant local authority to
address issues
arising from the possibility of an eviction order
giving rise to homelessness and a need for the provision of emergency
accommodation.
It is here that the issue of joinder arises. One of
the fundamental arguments raised by the City was that its joinder in
these
proceedings was inappropriate. It contended that it was not
appropriate for the property owner to join it with a view to ensuring

that the constitutional rights of the occupiers were protected.
[36] An appeal is not the time to raise an argument of
misjoinder. The City did not object to its joinder nor did it file
affidavits
in which it challenged the allegation by Changing Tides
that it had a direct and substantial interest in the outcome of the
proceedings
and that its joinder was both necessary and inevitable.
It also appeared before Wepener J at the time that the order under
appeal
was made to make submissions and protect its interests. One
can ask rhetorically what it thought it was doing there if indeed it

had no interest in the outcome of the application and had been
improperly joined. Be that as it may, as the argument raises an

important issue of principle on which the guidance of this court is
desirable I shall deal with it.
[37] Joinder is called for whenever a party has a direct
and substantial interest in the outcome of litigation.
48
On the facts of this case, as contained in the founding affidavit,
there was an overwhelming probability that the grant of an eviction

order would result in at least some of the occupiers being rendered
homeless. That allegation was specifically made and not challenged.

Once that was the case the grant of an order would necessarily result
in the City’s constitutional obligations to such persons
being
engaged. Accordingly the availability of alternative accommodation
provided by the City was an important issue in the proceedings.
An
eviction order could only be made on appropriate conditions, which
would necessarily include conditions relating to the provision
of
temporary emergency accommodation. In those circumstances the City
manifestly had a direct and substantial interest in the outcome
of
the litigation and had to be joined as a necessary party. The City’s
argument in regard to joinder was misconceived. It
was not joined in
order to protect the interests of the occupiers but in order to
enable the court to discharge its functions in
accordance with the
requirements of PIE.
[38] Whenever the circumstances alleged by an applicant
for an eviction order raise the possibility that the grant of that
order
may trigger constitutional obligations on the part of a local
authority to provide emergency accommodation, the local authority

will be a necessary party to the litigation and must be joined.
49
Where the applicant is doubtful about the position it would be a wise
precaution for it to join the local authority.
50
That does not mean that the local authority will need to become
embroiled in every case in which an eviction order under PIE is

sought. The question in the first instance is always whether the
circumstances of the particular case are such as may (not must)

trigger the local authority’s constitutional obligations in
regard to the provision of housing or emergency accommodation.
If
they are, the need for the local authority’s direct involvement
as a litigant will depend upon its response to those obligations.
If,
by way of example, it filed a report stating that it had adequate
emergency accommodation available for all and any persons
evicted
from the premises and that the court could make an order that it
provide such accommodation to all evictees that might
suffice without
more, subject to furnishing some details about the nature and
locality of the accommodation and the means by which
the occupiers
could obtain access to it.
The local authority’s procedural obligations
[39] Much of the litigation around evictions has dealt
with contentions by various local authorities that they do not owe
constitutional
obligations to provide emergency accommodation to
persons evicted from their existing homes and facing homelessness as
a result.
Contentions that they were not obliged to provide emergency
housing (
Grootboom
); alternative land on a secure basis (
Port
Elizabeth Municipality
); use their own funds to provide emergency
accommodation (
Rand Properties
); and provide emergency
accommodation to persons evicted at the instance of private property
owners (
Blue Moonlight
) have all been advanced and rejected by
this court and the Constitutional Court. Now that it is clearly
established that local
authorities do owe constitutional obligations
to persons evicted from their homes who face homelessness as a
result, it is appropriate
to set out their obligations to the court
in proceedings of this type. I deal only with cases where, on the
principles set out
above, they are joined in the litigation and the
applicant alleges that the circumstances of the eviction are such
that it may
result in homelessness and engage their constitutional
obligations in regard to the provision of temporary emergency
accommodation.
[40] The general approach of local authorities, so far
as it can be discerned from the reported cases, has been to file with
the
court a general report detailing its current housing policy
without addressing the facts of that particular case. That is
inadequate.
In addition to such a report it must deal directly with
the facts of the particular case. That report must specify:
the information available to the local authority in
regard to the building or property in respect of which an eviction
order is
sought, for example, whether it is known to be a ‘bad
building’, or is derelict, or has been the subject of
inspection
by municipal officials and, if so, the result of their
inspections. (It appears from some of the reported cases, like the
present
one, that the local authority has known of the condition of
the building and precipitated the application for eviction by
demanding
that owners evict people or upgrade buildings for
residential purposes.) The municipality should indicate whether the
continued
occupation of the building gives rise to health or safety
concerns and express an opinion on whether it is desirable in the
interests
of the health and safety of the occupiers that they should
be living in such circumstances;
such information as the municipality has in regard to
the occupiers of the building or property, their approximate number
and
personal circumstances (even if described in general terms, as,
for example, by saying that the majority appear to be unemployed
or
make a living in informal trades), whether there are children,
elderly or disabled people living there and whether there appear
to
be households headed by women;
whether in the considered view of the local authority
an eviction order is likely to result in all or any of the occupiers
becoming
homeless;
if so what steps the local authority proposes to put in
place to address and alleviate such homelessness by way of the
provision
of alternative land or emergency accommodation;
the implications for the owners of delay in evicting
the occupiers;
details of all engagement it has had with the occupiers
in regard to their continued occupation of or removal from the
property
or building;
whether it believes there is scope for a mediated
process, whether under s 7 of PIE or otherwise, to secure
the departure
of the occupiers from the building and their
relocation elsewhere and if so on what terms and, if not, why not.
[41] Those requirements have been distilled from the
various orders made by the courts in cases of this type. Provided
that this
information is furnished to the court at the outset it
should enable the court to deal with the application without much, if
any,
need for further investigation and possibly without the further
involvement of the local authority. I have no wish to add to the

burden of local authorities in these cases. However, the additional
burden should not be undue as they are in any event enjoined
by
s 4(2) of PIE to file a report in all eviction proceedings. All
that this requires of them is, in certain cases, to amplify
that
report in order to provide the court with the information it needs to
decide whether to grant an eviction order. The more
comprehensive the
report furnished by the local authority at the outset the less likely
that it will become embroiled in lengthy
and costly litigation, so
that the additional effort at the outset should diminish costs in the
long run and enable eviction cases
to be dealt with expeditiously in
the interests of all concerned.
51
Where, in response to that report, the applicant indicates that it
intends to seek an order that imposes duties upon the local
authority
it goes without saying that the local authority must be furnished
with the proposed order in sufficient time to enable
it to consider
its terms, suggest amendments and if no agreement is reached, to
appear and make appropriate submissions to the
court on its terms.
The present case
[42] It remains to apply these principles in the present
case, adapting them appropriately to remedy the problems with the
existing
order. In that regard it must be borne in mind that the
court has already decided that the grant of an eviction order against
the
occupiers is just and equitable and, most importantly, the
occupiers do not appeal against that decision. The formulation of an

appropriate order in the present case must therefore be undertaken on
the basis that the first enquiry is over and the court is
only
concerned with the second enquiry into a just and equitable date for
that order to take effect and the conditions to be attached
to that
order. This departs from the usual position outlined above where the
court deals with both enquiries in one hearing and
issues a single
order covering all the issues in the case. We are, however, assisted
in formulating the order by the fact that
the City now accepts –
as it did not before Wepener J – that it is under a ‘duty
to assist people who face homelessness
upon eviction, through no
fault of their own and which they can do nothing about’.
52
That means that we are principally concerned to formulate the relief
in the most effective way in which to ensure that the City
fulfils
its constitutional obligations. The focus must thus fall on the best
way of identifying the persons to whom the City owes
those
obligations and ensuring that their needs are catered for.
[43] Counsel for the City furnished us in the course of
argument with a suggested order. That order was not acceptable to
counsel
for the occupiers or to counsel for the amicus. After the
hearing the latter provided us with its proposed order adapting that
suggested by the City. Counsel for the occupiers submitted a further
draft order, accepting the proposals of the amicus, but adding
orders
in regard to costs and the application to lead further evidence on
appeal that will be dealt with at the end of this judgment.
We
received submissions from the parties on these proposed orders. As
the occupiers adopted the suggestions by the amicus as their
own,
subject to the additions I have mentioned, in what follows I need
only compare the proposals of the City and the amicus.
[44] Both orders proceeded on the footing that the
sheriff should prepare a schedule of information as contemplated in
paragraph
2 of the order, although the amicus expressed reservations
about this and said that it should be for the City to do this. The
City’s
proposal would have required the sheriff, whilst
preparing the schedule of information, to serve a notice on the
occupiers informing
them that if they required emergency
accommodation as a result of their eviction they should apply to one
of the City’s ESP
Centres, which deal with emergency
accommodation, together with certain documents and that the City
should be obliged to provide
such accommodation to those whom it
determined qualified for it. In the City’s submissions it asked
that this notice be amplified
by a requirement that anyone seeking
such accommodation should telephone the ESP centre in question ‘to
arrange a date and
time when they are to report and apply’. It
was said that this would ensure that such applications would be dealt
with in
an orderly manner and expeditiously.
[45] The occupiers and the amicus submitted that it is
for the court to determine the obligations of the City to potential
evictees
and not the City itself. The draft order of the amicus
accordingly provided for the City to consider, evaluate and assess
all applications
for temporary emergency accommodation made to it by
potential evictees and to submit a report to the court giving details
of who
was to be provided with accommodation, the nature and location
of that accommodation and the date by which it would be provided.
In
addition the report had to deal with all applications for
accommodation refused by the City and the reasons for that refusal.

The amicus altered the terms of the notice that the City suggested
should be served on the occupiers, most importantly by making
it
clear that applications for accommodation could be made even if a
person lacked the documents required by the City; inserting
contact
details of people at the ESP centres and recording that the city
would be obliged to report to the court on the outcome
of
applications for accommodation and details of the accommodation
tendered by it. In line with its suggested order the suggested

amended notice referred to the City lodging a report with the court.
Procuring information regarding the occupiers
[46] I agree with all parties that the court needs to
have information about the needs of the occupiers in relation to
temporary
emergency accommodation. For the reasons set out in
paragraph 8 of this judgment, the order that the sheriff prepare a
‘matrix’
of information in regard to the occupiers was
not proper and is ineffective. It cannot be used to provide a
foundation for the
order that must issue in place of that granted by
the high court. Counsel for the amicus expressed reservations about
the sheriff
fulfilling this role and I understood him to suggest that
it is desirable for the City to be required to obtain and place that
information before the court. I disagree. The City is in no better
position than the sheriff to obtain the suggested information
from
the occupiers and faces precisely the same difficulties in
endeavouring to do so as would the sheriff. It has no right in
law to
demand that information from the occupiers and the court cannot
confer that right upon it by requiring it to provide the
information
to the court. An order that it do so is ineffective or, to use the
traditional expression, a
brutum fulmen
. I note that the court
of first instance in
Blue Moonlight
made such an order and the
City was unable to comply with it.
53
[47] In considering the grant of an eviction order the
court is concerned with the plight of those who, as a result of
poverty and
disadvantage, are unable to make alternative
accommodation arrangements themselves and require assistance from the
local authority
to do so. It is particularly concerned to ensure, so
far as possible, that those who face homelessness are provided at
least with
temporary emergency accommodation. The ancillary orders
attaching to an eviction order will not affect those who are able to
find
a roof for their heads and a place of shelter without
assistance, nor those who for reasons of their own, such as an
unwillingness
to have any involvement with a public authority, will
not seek assistance, even if it means nights spent on the streets.
The central
task is therefore to identify those who require
assistance from the local authority. What the City needs to know is
who requires
temporary emergency accommodation and the nature of
their needs, for example, whether dormitory accommodation would
suffice or
whether a flat of some sort is required for a family with
children or whether an aged or disabled person has some special
needs.
The question is how this information can most quickly and
efficiently be communicated to the City so that it can formulate an
appropriate
plan to address the needs of these people.
[48] In the present case the answer, at this stage of
the proceedings, is relatively straightforward. The Legal Resources
Centre
(the LRC), a public interest law firm with a lengthy and
honourable record in cases of this type is now on record as
representing
all of the occupiers, not merely the 97 who were
identified as respondents in the list annexed to the notice of
motion. Its director
has deposed to an affidavit saying that it
represents the occupiers generally and counsel appeared at the
application for leave
to appeal and before this court on the basis
that they represented all of the occupiers. Accordingly, the easiest
way to obtain
the necessary information and furnish it to the City is
by the LRC preparing a list of those of its clients who require
temporary
emergency accommodation, with details of their names, ages,
family circumstances, sources of income and having annexed to it
appropriate
proof of identity. The list and its details must be
verified by an affidavit of information and belief and if possible by
affidavits
by the individuals concerned. There seems to be no reason
why that list should not be furnished within one month of the date of

this court’s order. In cases where the occupiers have legal
representation this will ordinarily be the most effective way
in
which to proceed. Where they are not represented, courts may consider
issuing a rule nisi and causing it to be served on the
occupiers (and
if it is not present, the local authority), together with a suitably
worded notice explaining the right to temporary
emergency
accommodation; how they can access such accommodation and inviting
them to come to court to express their views on that
issue at least.
The City’s obligations
[49] The next issue relates to the City’s
obligations in respect of the occupiers identified by the LRC. The
argument before
us claimed an entitlement on the part of the City to
determine whether the persons seeking temporary emergency
accommodation were
entitled thereto before providing such
accommodation. It was for this reason submitted that persons
requiring that assistance should
apply to one of the City’s ESP
centres, for their situation to be assessed and the City to decide
whether to afford them
the accommodation they seek.
[50] I do not think that the approach of the City, that
the affected people must approach one of its ESP Centres for
assistance
and follow conventional procedures thereafter, is either
correct or desirable. Its immediate disadvantage is that it sets in
train
a bureaucratic process that will inevitably involve delay and
probably spawn further disputes and litigation. An example of that

arose when the City advanced the contention in its heads of argument
that it owed no obligation to provide temporary emergency
housing to
non-citizens. That provoked a response from both the representative
of the occupiers and the amicus. In argument the
City retreated
somewhat from this stance and instead contended that it was not
obliged to provide such accommodation to illegal
immigrants. This
contention was repeated in its submissions on the draft order. One
can at once foresee, therefore, that disputes
are likely to arise on
this issue, bearing in mind that a large proportion of the occupiers
appear to be foreign citizens and may
well be in this country
illegally. The procedure the City proposed was clearly directed at
weeding out those who in its view would
not qualify for such
assistance on grounds of income, need, ability to find accommodation
elsewhere and the like. All of this is
conducive to delay in a case
where there is no challenge to the proposition that an eviction order
is just and equitable, subject
to determining a just and equitable
date and suitable conditions concerning alternative accommodation.
[51] The City’s stance is what prompted the
amicus, in its draft order, to submit that the City should ‘consider,
evaluate
and assess’ each occupier who applied for assistance
and report to the court on, inter alia, its reason for rejecting
those
to whom it did not propose to provide accommodation. There was
then provision for the rejected occupiers to approach the court to

secure their inclusion and for the occupiers generally to challenge
the suitability of the accommodation being tendered by the
City. The
picture is one of move and counter-move with fresh fronts being
opened constantly in a war of attrition between the City
and the
occupiers.
[52] Both approaches overlook the fact that the court is
dealing with a situation in which people are living in a ‘death
trap’.
Their situation is one of dire need. They should not be
required to continue living in such circumstances, which pose a
health
and personal safety danger, any longer than is strictly
necessary to enable the City to discharge its constitutional
obligations
to them. The question then is how to achieve this as a
matter of some urgency. Unfortunately, none of the orders submitted
by the
parties addressed the matter from that perspective. The City
wishes to follow its established procedures and exclude those whom
it
believes are not entitled to temporary emergency accommodation. The
response is one that foreshadows disputes in some cases
over a
variety of issues leading to further litigation and inevitable delay.
In the meantime the occupiers will continue to live
in squalid and
unsafe conditions and Changing Tides will be prevented from obtaining
access to its property. Resolution of the
former situation is
extremely urgent and Changing Tides should not be unnecessarily
compelled to endure further delays over which
it has no control.
[53] I accept that the City is entitled to review the
claim of any person seeking temporary emergency accommodation as a
result
of an eviction. However, the relevant question, in cases of
eviction creating an emergency, is whether the appropriate time to do

that is before that person obtains such accommodation or afterwards.
Where the facts point to the desirability of the eviction
being
effected as rapidly as possible, because the circumstances in which
the occupiers are living pose a risk to life and health,
the only
answer must be that the review process should defer to the need for
eviction and accordingly take place after the City
has provided the
evictees with temporary emergency accommodation. This gives rise to
the possibility – not likely to be great
– that some
people not entitled thereto may obtain temporary access to temporary
emergency accommodation, until their disqualification
is discovered.
However, that is preferable to a large number of people who
undoubtedly are entitled to such accommodation being
kept out of it
and forced to live in unhealthy and potentially life threatening
surroundings for longer than necessary, while the
City weeds out the
few who are not entitled to this benefit. That is especially so as it
seems probable that any adverse decision
by the City on an
individual’s right to temporary emergency accommodation may be
subject to legal challenge.
[54] Infusing grace and compassion into the process of
eviction does not mean that an eviction should be postponed for as
long as
possible, but may mean that it should take place
expeditiously. If delayed the property owner bears the burden of not
having access
to its property whilst the authority responsible for
attending to the housing needs of the persons in unlawful occupation
of the
premises postpones the discharge of its obligations. Where, as
here, the occupiers are living in conditions of the utmost squalor
at
the risk of their lives and health, the court should be concerned
that the process is expedited so that they are moved away
from that
situation as soon as possible. It is noteworthy that local
authorities are vested with statutory powers under other legislation

to address situations such as these.
54
However, the City’s report to the high court says that, since
the judgment of this court in
Rand Properties
, the City no
longer makes use of this provision to remove occupiers from unsafe
and squalid buildings. That suggests that the City
is no longer
engaged directly in addressing this problem. What it does, as this
case and
Blue Moonlight
demonstrate, is give notice to
building owners under the relevant by-laws to remedy conditions in
the buildings concerned, thereby
prompting applications for eviction
brought by the building owner. That is less than satisfactory. The
City needs to be actively
engaged in addressing the situation where
people are living in squalid conditions such as these and should be
as concerned as the
owner and the occupiers to resolve that situation
as soon as possible. The legal representatives of the parties must
also be mindful
that what is being sought is a solution to a social
problem and conduct the litigation with that in mind.
[55] Not every eviction case will generate the same
concerns regarding the disposal of the case and judges in the high
court will
need to assess whether the case before them is one which
demands urgent disposal in the interests of the health and safety of
the
occupiers. In the present case the position is clear. The
eviction should be effected with the minimum delay compatible with
the
rights and human dignity of the occupiers and the need to provide
many of them with temporary emergency accommodation.
[56] Accordingly it is appropriate to require the City
on receipt of the list of occupiers requiring temporary emergency
accommodation
from the LRC, to report to the court, within one month
of receipt of the list, setting out the accommodation that it will
make
available to all of those occupiers and when such accommodation
will be available. That accommodation must be in a location as near

as feasibly possible to the area where Tikwelo House is situated. The
report must be supported by an affidavit from an appropriate
official
in the employ of the City verifying its contents and contain an
undertaking that the City will provide the occupiers with

accommodation in accordance therewith. It must deal specifically with
the issue of proximity and explain why the particular location
or
locations of the accommodation have been selected. It must also set
out the steps taken during the two months before it needs
to be filed
to engage with the occupiers through the LRC or any other means that
may appear appropriate.
The response by the occupiers
[57] Once the City has delivered its report the
occupiers should be given a period of one month to consider its
contents. If in
any respect they are not satisfied with the
accommodation tendered, or any other aspect of the proposed provision
of temporary
emergency accommodation, they must deliver affidavits
within that period setting out their difficulties, the reasons
therefor and
what they contend is necessary in order to resolve those
difficulties. The City can deliver such affidavits in response as it
may
be advised to file. A time of two weeks for that purpose should
be adequate.
The remittal to the high court
[58] After the elapse of these time periods the
application must be set down for hearing on the opposed roll. At the
resumed hearing
the court will consider the adequacy of the temporary
emergency accommodation to be provided by the City and any objections
from
the occupiers. It will also determine the date upon which the
eviction order is to take effect, the terms upon which the City is
to
provide temporary emergency accommodation to all those occupiers
identified by the LRC as requiring it, and any other conditions
that
will attach to the eviction order. Obviously it is impossible for us
to foresee and make provision for every eventuality that
may arise in
the process set in train by this court’s order. It will be for
the high court to deal with these as it deems
appropriate having
regard to the need for an urgent resolution of this case in the
interests of all concerned.
Further evidence on appeal
[59] Before formulating the order to be made in this
appeal it is necessary to resolve the issues arising from an
application lodged
on 9 March 2012 by the LRC, on behalf of the
second to 98
th
respondents and the occupiers generally, to
lead further evidence on appeal by way of the introduction of what
were said to be
‘their individual affidavits detailing their
personal circumstances’ as well as certain expert evidence. An
order was
also sought:
‘
Remitting the application to
the High Court for a fresh determination of the question whether the
eviction of the Second to Ninety
Eighth respondents would be just and
equitable.’
Although that does not appear from the notice of motion,
the Director of the LRC said in her affidavit that this was only
sought
in the alternative to the admission of the affidavits.
[60] Both the City and Changing Tides opposed this
application. However, they did so under a misapprehension as to its
purpose.
The deponent to the City’s affidavit said that by
seeking the admission of this evidence the deponents were trying to
place
reliance on their personal circumstances as a defence to the
eviction order. That was also the thrust of the heads of argument
filed by the City in respect of this issue. However, that was not the
purpose of the application. The proposed evidence was directed
at
supporting the order made by the court below in regard to the
provision of emergency housing for those who were subject to eviction

in terms of the unchallenged eviction order granted by the high
court. It was only in the event of it not being admitted that it
was
submitted that the application should be remitted to the high court
to reconsider the eviction order.
[61] Fresh evidence on appeal is only admitted
sparingly. The applicant must give a reasonable explanation for the
failure to tender
the evidence at first instance; the evidence must
be credible and materially relevant to or decisive of the outcome of
the proceedings.
55
The explanation for the occupiers not having been represented before
the high court is unsatisfactory. In addition, of the 57 affidavits

tendered only ten are identifiable as being deposed to by the 97
named respondents and one is by the partner of a named respondent.

One or two of the remainder are possibly by respondents – for
example there is one respondent who is identified solely as

‘Moeketsi’ and four of the deponents bear that name –
but that is of little assistance. It does not appear to
have been
appreciated that what was being tendered might only be a partial
picture and there was accordingly no endeavour to inform
the court of
how many people would be involved in any eviction and how many of
them would indeed need temporary emergency accommodation.
[62] The affidavits were unsatisfactory in other
respects. For example two of the deponents stated that they had
alternative accommodation
if evicted. In addition, the affidavits are
standard in form, scanty in detail and say little more than any court
– including
the high court in this case – would already
know, namely that almost all people living in the circumstances
described at
the outset of this judgment are desperately poor and
live in a building such as Tikwelo House only because the
alternatives are
worse and almost certainly involve homelessness for
many of them. Hence the affidavits will not be conclusive of the
issues in
this case. The application for their admission should be
refused.
[63] The City sought an order that the costs of the
application be paid
de bonis propriis
by the LRC. Whilst I
agree that the application was misconceived and sloppily prepared,
without any clear view of its purpose, one
must bear in mind the
difficulties facing public interest law firms that on a daily basis
face demands for legal representation
as a matter of urgency from
unsophisticated people facing great personal hardship. In addition
costs should only be ordered against
legal practitioners in cases of
flagrant disregard of their duties, causing undue and unnecessary
expense to the other party. In
the present case I do not think that
the failings on the part of the LRC justify an order against it.
Costs and the order
[64] It was submitted on behalf of the City that it had
been compelled to come to this court to set aside the order sought by
Changing
Tides over its opposition. In those circumstances it was
contended that Changing Tides should pay the City’s costs on
appeal.
I do not agree. In many respects Changing Tides is a
reluctant participant in these proceedings. Clearly it brought the
eviction
proceedings when it did as a result of the City serving
notice on it to remedy the condition of the building and effectively
make
it habitable for the occupiers. The amended order was sought in
the light of this court’s decision in
Blue Moonlight
. It
was opposed by the City on the basis of the untenable proposition
that the judge should disregard this court’s order
because of
the pending appeal to the Constitutional Court. It is true that it
added that there was no evidence before the court,
but in part that
was due to its own failure to provide any information germane to the
particular circumstances of this case. No
doubt that was because of
its stance in the
Blue Moonlight
litigation, but that stance
was incorrect. The challenge to the order to provide temporary
emergency accommodation is likely, if
one examines the facts, to
result in little effective change to the order that Wepener J
granted. In those circumstances it is
appropriate to order each party
to pay its or their own costs in the appeal. The costs of the
application will be dealt with by
the high court on the remittal.
[65] The following order is made:
The appeal is upheld and each party is ordered to pay
its or their own costs of appeal.
Paragraph 2 of the order of the high court is declared
to be legally ineffective.
Paragraphs 3 and 4 of the high court’s order are
set aside.
The application for eviction is remitted to the high
court in order for it to determine the date upon which all of the
occupiers
of Tikwelo House are to be evicted from that building, the
terms upon which the City is to provide temporary emergency
accommodation
to the persons referred to in paragraph 5(b) below of
this order, any other conditions attaching to that eviction order
and the
costs of the application.
The remittal is subject to the following further
orders:
(a) The attorneys for the occupiers, the Legal Resources
Centre (the LRC), are directed on or before 30 September 2012 to
furnish
the attorneys for the City of Johannesburg with a list of
those of its clients who, as a result of their eviction from Tikwelo
House, will require temporary emergency accommodation, together with
their names, ages, family circumstances, sources of income
and
appropriate proof of identity. The list and those details shall be
confirmed by an affidavit of information and belief from
a
representative of the LRC and where possible by affidavits from the
occupiers referred to therein.
(b) It is declared that the City of Johannesburg is
obliged to provide all of the persons whose names appear on that list
with temporary
emergency accommodation by no later than two weeks
prior to the date of the eviction order to be determined by the high
court.
(c) The City of Johannesburg is directed, by no later
than 31 October 2012, to deliver a report to the high court,
confirmed
on affidavit by an appropriate official of the City,
detailing the accommodation that it will make available to the
occupiers and
when such accommodation will be available and
containing an undertaking to make that accommodation available. That
accommodation
must be in a location as near as feasibly possible to
the area where Tikwelo House is situated and the report must
specifically
deal with the issue of proximity and explain why the
particular location and form of accommodation has been selected. It
must also
set out the steps taken during the two months before the
report is filed to engage with the occupiers through the LRC or any
other
means that may appear appropriate.
(d) The occupiers are entitled by no later than 30
November 2012 to deliver affidavits dealing with the contents of the
City’s
report and specifying any objections thereto and the
City is entitled within two weeks thereafter to deliver such further
affidavits
as it deems appropriate.
(e) The application must then be set down on the opposed
roll for hearing. If at any stage there is non-compliance with the
provisions
of this order, Changing Tides (Pty) Ltd is authorised to
set the matter down for hearing for appropriate relief.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: J Both SC (with him A W Pullinger)
Instructed by:
Kunene Ramapala Botha Law Firm, Johannesburg
Claude Reid Inc, Bloemfontein
For first respondent: Reg Willis (with him N A Mohonane)
Instructed by: Esthe Muller Attorneys
Johannesburg
Kramer Weihmann & Joubert Inc.
Bloemfontein.
For 2
nd
to 97
th
respondents: T
Ngcukakaitobi (with him Z Gumede)
Instructed by: Legal Resources Centre
Johannesburg.
Webbers, Bloemfontein.
For Amicus Curiae S Wilson (with him I de Vos)
SERI Law Clinic, Johannesburg.
Naudes, Bloemfontein.
1
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & another
2011 (4) SA 337
(SCA).
2
The
appeal was due to be heard on 11 August 2011.
3
The
judgment was delivered on 1 December 2011 and is reported as
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & another
2012 (2) SA 104
(CC)
(hereafter
Blue Moonlight CC
).
4
Section
3(1) of the Sheriffs Act 90 of 1986 as read with other statutes
defining those functions.
5
Section
36(1) of the Supreme Court Act 59 of 1959.
6
Motala
v The Master
2012 (3) SA 325
(SCA) paras 11-14.
7
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC)
para 32;
Occupiers,
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
[2010] 4 All SA 54
(SCA) paras 11 and
14.
8
ABSA
Bank Ltd v Murray & another
2004
(2) SA 15
(C) para 19.
9
Ibid
,
para 21;
Port Elizabeth Municipality v
Various Occupiers
, supra, para 13.
10
Government
of the Republic of South Africa & others v Grootboom
2001
(1) SA 46
(CC).
11
Baartman
& others v
Port Elizabeth Municipality
2004 (1) SA 560
(SCA) and on appeal from it
Port Elizabeth Municipality v Various
Occupiers
, supra;
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg
v City of Johannesburg & others
[2008] ZACC 1
;
2008
(3) SA 208
(CC);
Residents of Joe Slovo
Community, Western Cape v Thubelisha Homes & others (Centre on
Housing Rights and Evictions & another,
amici curiae)
2010
(3) SA 454
(CC) (hereafter
Joe Slovo
).
12
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & others
(Centre on Housing Rights and Evictions & another,
amici curiae)
2011 (7) BCLR 723
(CC).
13
City
of Johannesburg v Rand Properties (Pty) Ltd & others
2007
(6) SA 417
(SCA) para 47. The
Olivia Road
judgment (fn 10
ante) is the appeal from this decision.
14
Joe
Slovo
para 105
(c)
per Yacoob J and para 161 per Moseneke
DCJ.
15
Grootboom
para 95
16
Port
Elizabeth Municipality
para 28.
17
Joe
Slovo
, para 313.
18
Olivia
Road
para 18.
19
Grootboom
para 46.
20
Section
25 of the Constitution.
21
Ndlovu
v Ngcobo: Bekker & another v Jika
2003 (1) SA 113
(SCA) para
17;
Wormald NO & others v Kambule
2006 (3) SA 562
(SCA)
para 15.
22
Blue
Moonlight CC
para 40. The right of
property owners is not absolute. One can imagine cases where it
would not be just and equitable to grant
an eviction order at the
instance of a private landowner, as in the case of a small portion
of undeveloped land that the owner
had allowed to be occupied for
many years
by former employees, who were
now aged, in circumstances where the owner was not inconvenienced by
their presence. But that situation
has nothing to do with the
availability of alternative land or accommodation.
23
If
the landowner had no immediate or even medium term need to use the
property and it would simply be sterilised by an eviction
order, the
court could legitimately hold the view that it was not just and
equitable at that time to grant an eviction order.
That would be
reinforced by a lack of availability of alternative land.
24
Para
17.
25
Modderklip
Boerdery (Pty) Ltd v
Modder East Squatters
& another
2001 (4) SA 385
(W).
26
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae): President of
the Republic of South Africa & others v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources
Centre, Amici Curiae)
2004 (6) SA 40
(SCA)
para
48.
27
President
of the Republic of South Africa & another v Modderklip Boerdery
(Pty) Ltd (Agri SA & others, Amici Curiae)
2005
(5) SA 1
(CC).
28
Footnote
12, ante.
29
Footnote
10, ante.
30
See
also
Occupiers of Skurweplaas 353 JR v PPC Aggregate Quarries
(Pty) Ltd & others
2012 (4) BCLR 382
(CC).
At
first instance there are the judgments in
ABSA
Bank Ltd v Murray & another
,
supra;
Davids & others v Van
Straaten & others
[2005] ZAWCHC 16
;
2005 (4) SA 468
(C) and
Jackpersad NO & others v
Mitha & others
2008 (4) SA 522
(D).
31
Para
32.
32
Paras
36-37.
33
See
the discussion in paras 39-47. Mediation was not ordered in that
case but a court mandated process of engagement led to a
settlement
in
Olivia Road.
34
Occupiers
of Erf 101, 102, 104 and 112, Shorts Retreat, Pietermaritzburg v
Daisy Dear Investments (Pty) Ltd & others
[2009] 4 All SA 410
(SCA).
35
Para
10.
36
Occupiers,
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
[2010] 4 All SA 54
(SCA).
37
Paras
14 and 15.
The obiter remark in the first sentence of para 16
is not supported by the authorities cited and cannot be accepted
without qualification.
The failure by the court of first instance to
do what was required by PIE was the true reason for the appeal being
upheld.
38
Occupiers
of Mooiplaats v Golden Thread Ltd & others
2012 (2) SA 337
(CC).
39
Para
17.
40
Port
Elizabeth Municipality
, supra, para 36.
41
Clarke
v Hurst NO & others
1992 (4) SA 630
(D).
42
Per
Harms JA in
Modderfontein Squatters
supra, fn 24, para 42.
43
See
City of Johannesburg Metropolitan Council v Ngobeni
[2012]
ZASCA 55
paras 29 to 33.
44
As
was done at first instance in
Grootboom
.
45
Chetty
v Naidoo
1974 (3) SA 13
(A) approving the approach in
Graham
v Ridley
1931 TPD 476
at 479.
46
Port
Elizabeth Municipality
, supra, para 32.
47
Ibid.
48
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at
659;
Standard Bank of South Africa Ltd v Swartland Municipality &
others
2011 (5) SA 257
(SCA) para 9;
Blue Moonlight CC
para 44.
49
Occupiers
of Erf 101, 102, 104 and 112, Shorts Retreat, Pietermaritzburg v
Daisy Dear Investments (Pty) Ltd & others
, supra, para 11.
50
Such
a joinder is a joinder of convenience that does not give rise to a
misjoinder.
Rosebank Mall (Pty) Ltd & another v Cradock
Heights (Pty) Ltd
2004 (2) SA 353
(W) para 11.
51
Blue
Moonlight
took some six years of litigation to resolve.
Olivia
Road
took five years,
Skurweplaas
over three years and
Mooiplaats
was referred back to the high court after three
years of litigation.
52
The
concession is taken from counsel’s supplementary submissions
on the terms of the order.
53
Blue
Moonlight CC
, para 6, fn 9.
54
Section
12(4)(b) of the National Building Regulations and Building Standards
Act 103 of 1977.
55
De
Aguiar v Real People Housing (Pty) Ltd
2011 (1) SA 16
(SCA)
paras 9 to 12.