SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case No. 40262/21
In the matter between
FINAL HOUSING SOLUTIONS (PTY) LTD Applicant
and
LUVALO LUKHANYA First Respondent
FURTHER UNLAWFUL OCCUPIERS OF
ERF 1[…] VOSLOORUS EXT 14, GAUTENG Second Respondents
EKURHULENI MUNICIPALITY Third Respondent
MEC FOR HUMAN SETTLEMENTS (GAUTENG) Fourth Respondent
JUDGMENT
WILSON J:
1 The applicant, FHS, owns Erf 1 […], Vosloorus Extension 14. The first
respondent, Mr. Lukhanya, lives at the property with his family and a number
of tenants.
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED.
SIGNATURE DATE: 11 April 2024
2
2 In 2017, FHS agreed to sell the property to Mr. Lukhanya for R210 573. The
scheme was financed in part by a subsidy guarantee given by the fourth
respondent, the MEC. The guarantee was to the value of R160 573. A
further R50 000 was to be put in by Mr. Lukhanya himself. It was a condition
of the sale agreement concluded between FHS and Mr. Lukhanya that,
before he took transfer, Mr. Lukhanya would pay the outstanding rates and
taxes due to the third respondent, the Municipality. It was a further condition
of the agreement that, pending transfer of the property into his name, Mr.
Lukhanya would pay occupational rent in the sum of R3500 per month.
3 FHS says that Mr. Lukhanya paid neither the R50 000 deposit , nor the
occupational rent due, nor the outstanding rates and taxes due to the
Municipality. By the time this matter was argued before me, the amount due
to the Municipality was in excess of R400 000. Evidently, Mr. Lukhanya had
allowed the amount to accumulate over several years of occupation.
4 The terms of the sale agreement remained unfulfilled for well over two years,
but FHS did not terminate the agreement until 24 February 2020. After the
termination of the agreement, the parties engaged with each other, but the
they were unable to agree on new terms for the sale and purchase of the
property. On 31 July 2021, the subsidy guarantee, which had been extended
in order to finance any new agreement to sell the property, expired.
5 On 10 November 2021, FHS instituted proceedings for Mr. Lukhanya’s
eviction, and for the eviction of all the other occupiers of the property. Mr.
Lukhanya let s backyard rooms on the property to a number of individuals ,
3
but their identities and circumstances were not dealt with in FHS’ founding
papers.
6 When the matter first came before me in my unopposed court on 1
December 2022, it appeared to me that there were a number of indications
on the papers that evicting the occupiers may not be just and equitable , as it
is required to be by section 4 of the Prevention of Illegal Eviction from, and
Unlawful Occupation of Land Act 19 of 1998 . I was given no real information
about Mr. Lukhanya’s circumstances, or those of the other occupiers of the
property. The circumstances surrounding the expiry of the subsidy guarantee
were obscure. I was concerned that an eviction order might render Mr.
Lukhanya, his family and his tenants homeless. There was nothing on the
papers that excluded that result. I was particularly concerned about the
absence of any indication that an eviction could fairly take place in light of
the parties’ original intent: that the property be transferred to Mr. Lukhanya
with the assistance of a state housing subsidy.
7 Accordingly, I postpone d the application and required the parties to provide
further specified information. I directed the Municipality to file a report
dealing with Mr. Lukhanya’s circumstances, and those of the other occupiers
of the property. I joined the MEC, and directed him to file a report dealing
with the circumstances surrounding the expiry of the housing subsidy, and to
say whether Mr. Lukhanya taking transfer of the property with state
assistance remained a realistic possibility. These orders, together with my
reasons for making them, are set out in Madulammoho Housing Association
NPC v Nephawe [2023] ZAGPJHC 7 (10 January 2023).
4
8 Although FHS promptly complied with my orders, the Municipality and the
MEC did not. The MEC eventually provided a report on 9 June 2023, which
he later supplemented with further information. It took over a year for the
Municipality to do what it had been ordered to do: visit the property and
assess the needs and circumstances of those who live there . But this was
not before the Municipality had to be declared in contempt of one of the
orders directing it to do so. A great deal could probably be said and done
about the Municipality’s disregard of its constitutional and statutory
obligations, and particularly of its ongoing failure to comply with my order for
such a long period. But, given the conclusion to which I have come, I record
only my disappointment in the Municipality’s delinquency, and my thanks to
Ms. Mutenga, who appeared for the Municipality before me, for doing her
best to bring that delinquency to an end.
9 The Municipality’s report reveals that there are six backyard rooms on the
property. One is rented out for business purposes. One is vacant. A further
two are not occupied as primary residences. The tenants of those rooms live
there for at most a few days each month, and otherwise live and work
elsewhere. The other two rooms are occupied by a panel beater who earns
R5000 per month, and a nurse, who earns R14500 per month. Neither
suggested that they would struggle to find another room to rent if they had to
leave.
10 That leaves only Mr. Lukhanya and his family. Mr. Lukhanya and his wife are
unemployed, and are dependent upon the rental income from the backyard
rooms and on social grants received in respect of their two children, aged 7
5
and 2. In my view, Mr. Lukhanya and his family would face a real risk of
homelessness if they were evicted without any further assistance.
11 A further factor relevant to the justice and equity of Mr. Lukhanya’s eviction
is the fate of the subsidy guarantee. In his report, the MEC makes clear that
a guarantee, up to the value of R160 573, can still be made available to fund
the purchase of the property. However, FHS is no longer interested in selling
the property for anything like this amount (the current market value of the
property is said to be in the region of R600 000), and in any event, Mr.
Manda, who appeared for FHS, raised the difficulty of the utilities, rates and
taxes outstanding on the property. These presently dwarf the value of the
guarantee. They would either have to be paid or waived, at least in part, in
order for the property to be transferred to Mr. Lukhanya. Mr. Lukhanya is not
realistically in a position to contribute significantly to the purchase of the
property himself, or to meaningfully reduce the utilities, rates and taxes
outstanding on the property.
12 These difficulties notwithstanding, I would still have been reluctant to grant
an eviction order were it not for FHS’ unconditional tender to pay Mr.
Lukhanya R80 000 to leave the property. Mr. Lukhanya has rejected that
tender, but Mr. Manda made clear that the offer still stands, and that FHS is
prepared to have an order to pay the amount incorporated into any eviction
order I make.
13 It seems to me that the payment FHS offers tips the scales of fairness in its
favour. It extinguishes any real possibility that Mr. Lukhanya or his family
would be left homeless on eviction. The Municipality says that the amount is
6
equal to two years’ worth of rental. The Municipality does not set out any
primary facts to support this conclusion, but the size of the tender is such
that I am satisfied that, if they are paid the amount tendered, Mr. Lukhanya
and his family will be under no meaningful threat of homelessness for the
foreseeable future.
14 For all these reasons, I am satisfied that it would be just and equitable to
make an eviction order. On the papers, Mr. Lukhanya’s tenants face no real
risk of homelessness on eviction. There is no realistic prospect of Mr.
Lukhanya being able to take transfer of the property, even with the
assistance the MEC says is still available. FHS’ tender secures Mr.
Lukhanya and his family against homelessness on eviction.
15 It remains to consider the terms on which the eviction order should be
granted. Mr. Manda proposed that Mr. Lukhanya be paid R15 000 upfront,
with the remaining R65 000 to be held in trust by the sheriff, and paid over to
Mr. Lukhanya once the property has been vacated. Th is seems to me to
strike a reasonable balance between the parties’ interests, and to ensure the
effectiveness of the eviction order. Mr. Manda also proposed that the
respondents be placed on terms to vacate the property within two months.
Given the length of time Mr. Lukhanya has lived at the property, it seems to
me that three and a half months is more appropriate.
16 For all these reasons, I make the following order –
16.1 The first and second respondents (“the occupiers”) are evicted from
the property situated at ERF 1[…] VOSLOORUS EXT 14,
GAUTENG.
7
16.2 The occupiers are ordered to vacate the property by no later than 31
July 2024, failing which the sheriff may evict them.
16.3 The applicant is directed to pay the sum of R15 000 to the first
respondent by no later than 30 April 2024.
16.4 The applicant is directed to pay the sum of R65 000 to the sheriff, to
be held in trust for the benefit of the first respondent, by no later than
30 April 2024.
16.5 The sheriff is directed to pay the sum of R65 000 to the first
respondent within seven days of the applicant’s attorney confirming in
writing that the occupiers have vacated the property, or, failing such
confirmation being provided, by no later than 8 August 2024.
16.6 The amount is to be paid into a bank account nominated by the first
respondent, or, failing the first respondent nominating such an
account within seven days of being called upon to do so, in cash.
16.7 The applicant’s attorney is directed to serve a copy of this judgment
on the first respondent, and on each of the second respondents, by
no later than 19 April 2024.
16.8 Each party is to pay their own costs.
S D J WILSON
Judge of the High Court
8
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading to Caselines, and by publication of the
judgment to the South African Legal Information Institute. The dat e for hand-down is
deemed to be 11 April 2024.
HEARD ON: 28 March 2024
DECIDED ON: 11 April 2024
For the Applicant: T Manda
Instructed by M Ngomane Attorneys
For the First Respondent: In person
For the Third Respondent: H Mutenga
Instructed by KM Mmuoe Attorneys
For the Fourth Respondent: M Motimele
Instructed by the State Attorney