Brief Summary

Eviction — Unlawful occupation — Application for eviction order against unlawful occupiers — Applicants seeking to evict 127 occupiers from property acquired in 2019 — Occupiers living on property for over seven years without consent — Common cause that eviction would likely render many occupiers homeless — Court required to balance rights of property owner against right to adequate housing — City of Johannesburg cited for failure to provide alternative accommodation — Court emphasizes need for patience from property owners and highlights City's obligations to address homelessness — Eviction order refused pending provision of alternative accommodation by the City.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an application for an eviction order brought in the Gauteng Local Division, Johannesburg, under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The applicants sought the eviction of a group of occupiers residing on a privately owned property, together with all persons occupying through them.

The applicants were the Sethunya Family Trust and a trustee cited in his representative capacity. The first respondent was described collectively as the occupiers of Erven 139 Berea, being a group of people living on the property. The second respondent was the City of Johannesburg Metropolitan Municipality, joined because the eviction was likely to result in homelessness and thus engaged the City’s constitutional and statutory obligations relating to emergency housing assistance.

Procedurally, the eviction application was launched in October 2020 and was heard substantially later, during August 2023, with judgment delivered on 23 October 2023. A key procedural feature was the filing of a report by the City (dated 6 April 2023) addressing the occupiers’ circumstances and the City’s position regarding the availability of temporary emergency accommodation.

The general subject-matter of the dispute was the reconciliation of competing constitutional and statutory interests: the applicants’ entitlement to vindicate ownership and regain possession of their property, and the occupiers’ vulnerability to homelessness, requiring the court to decide whether eviction would be just and equitable and, if so, on what conditions and timelines, including what obligations should be placed on the City.

2. Material Facts

It was common cause that the applicants acquired the relevant immovable property in August 2019. The property was described in the proceedings as Erf 139 Jeppestown Township, situated in Johannesburg, Gauteng. The applicants’ stated intention was to lease the occupied units to other tenants to supplement their income.

It was also common cause that the occupiers consisted of 127 people living in 43 family units, including women and children, many of whom had lived at the property for upwards of seven years. The parties did not dispute that the occupiers were in occupation without the express or tacit consent of the owner or person in charge and without any other legal right to occupy. On that basis, the occupiers met the definition of an “unlawful occupier” in section 1 of PIE.

A further fact treated as common cause was that many occupiers would or were likely to be rendered homeless if eviction occurred without the provision of alternative accommodation. This prospect of homelessness was central to the joinder of the City and to the structure of the eventual relief.

The City’s report recorded that the City conducted an occupancy audit at the property on 15 November 2022, and audited 43 households comprising 127 occupants. The report summarised, in general terms, household characteristics and income levels. The City concluded that 19 households had declared income below R3 500 per month and that they would be rendered homeless absent alternative accommodation; 6 households did not disclose income; 7 households declared income above R3 500 per month; and 10 households comprised foreign nationals. The City indicated that it applies an income threshold of R3 500 per month for eligibility for temporary emergency accommodation, and adopted differentiated positions regarding (a) households above that threshold, (b) households who did not disclose income, and (c) foreign nationals, whom the City suggested should prove they are in the country legally.

The City further stated that demand for temporary emergency accommodation was very high, that its inner-city facilities were full, that it had utilised certain other sites for relocation over time, and that (according to the City) the establishment or procurement of additional temporary emergency accommodation would require compliance with procurement processes taking two to three years. On this basis, the City proposed that any eviction order linked to the provision of accommodation should be deferred for three years.

3. Legal Issues

The central legal questions were whether, in light of PIE and the relevant constitutional rights, it would be just and equitable to grant an eviction order, and if so, how the order should be structured to address the risk of homelessness.

A significant aspect of the dispute concerned the application of law to fact: given that unlawful occupation was undisputed, the decisive inquiry was the fairness and equity of eviction in the particular circumstances, including the timing of eviction and whether, when, and for whom temporary emergency accommodation should be provided by the City.

The matter also raised questions about the adequacy and specificity of the City’s report and the extent to which the City could rely on general assertions about resource constraints and procurement timelines to justify delayed compliance. In addition, the court had to determine whether the City’s approach of differentiating eligibility based on (a) nationality/immigration status and (b) treating Child Support Grants as “income” for purposes of the City’s threshold could stand in the context of the City’s emergency accommodation obligations.

4. Court’s Reasoning

The court located the dispute within the constitutional framework in which ownership rights and housing-related rights intersect. It accepted that the applicants legitimately sought to exercise incidents of ownership and noted that indefinite delay in vindicating ownership, where unlawfulness of occupation is undisputed, could amount to a deprivation inconsistent with section 25(1) of the Constitution. At the same time, the court recognised the occupiers’ right to access to adequate housing in section 26(1) and the State’s obligation to take reasonable measures within available resources to achieve progressive realisation under section 26(2). The court emphasised that eviction proceedings under PIE require a balancing exercise infused with constitutional values, including the spirit of ubuntu, as articulated in the Constitutional Court’s interpretation of PIE.

In addressing the role of the City, the court relied on the established principle that where eviction may lead to homelessness, a municipality is generally required to furnish a report enabling the court to determine what is just and equitable. The court referred to the guidance in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA) on the minimum content expected in such a report, including information on the property, the occupiers’ circumstances, the likelihood of homelessness, the steps proposed to address it, engagement with occupiers, and the implications of delay for the owners.

The court accepted that the City’s report contained some relevant information, including an audit and a broad depiction of occupiers’ income categories, but found merit in the criticism that the report was insufficiently specific and lacked adequate detail about policies, inventory, responsibilities, and meaningful engagement. The key question for the court became whether the deficiencies should prevent the granting of an eviction order and thereby prolong the applicants’ loss of possession while awaiting an improved report. The court approached this by emphasising that once it is apparent that eviction is likely to result in homelessness, the City bears an obligation to provide temporary alternative accommodation within available resources, and if it seeks to justify non-compliance or significant delay, it must disclose facts to support that limitation. The court indicated that unsubstantiated generalities—such as a bare statement that procurement would take two to three years with an opaque reference to supply chain processes—were inadequate to justify the proposed three-year period.

In dealing with the timing and structure of relief, the court applied the principle that an eviction that would result in homelessness cannot be just and equitable unless provision is made for alternative or temporary accommodation. However, the court stated it need not be satisfied that such accommodation is already ready at the date of judgment. It was sufficient, in its view, for an eviction order to be structured so that the date of eviction is linked to the date on which accommodation is to be provided, thereby ensuring that eviction does not precede the City’s compliance.

The court rejected the City’s submission that three years should be allowed, and held that in the absence of a proper explanation for an extended period, a shorter period was appropriate. It reasoned that the City had been a party to the proceedings for more than three years and could anticipate an order requiring emergency accommodation. The court considered City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) as an indicator of what was appropriate, and concluded that four months was sufficient for the City to procure temporary emergency accommodation.

The court then turned to the contested eligibility criteria applied by the City. It accepted that the City applies an income threshold of R3 500 per month derived from a municipal policy. Although the occupiers questioned the appropriateness of the threshold, the court held that no formal challenge to the policy was before it and that it would therefore accept the threshold for present purposes, leaving any direct attack on the policy to a different court properly seized with that dispute.

The court treated the City’s nationality-based differentiation differently. It held that the City’s position that foreign national occupiers must prove they are legally in the country before being considered for temporary emergency accommodation was untenable, referring to the National Housing Code as providing for emergency alternative accommodation for illegal immigrants on conditions prescribed by the Department of Home Affairs on a case-by-case basis. On this basis, the court concluded that the City was not entitled to make emergency accommodation conditional on proof of lawful presence as a prerequisite imposed by the City itself.

The court further held that the City’s practice of counting Child Support Grants as “income” for purposes of the eligibility threshold was inconsistent with constitutional protections for children. Referring to section 28 of the Constitution and its guarantees of children’s rights including shelter and social services, the court reasoned that caregivers’ receipt of child support assistance should not disqualify or disadvantage them when considered for emergency accommodation. It therefore directed that Child Support Grants should not be treated as income for purposes of assessing the R3 500 threshold.

In crafting an order, the court sought to ensure that eviction would proceed but only in a way that remained just and equitable, particularly by synchronising eviction with the City’s provision of temporary emergency accommodation to qualifying households, and by requiring written notification of the accommodation arrangements.

5. Outcome and Relief

The court granted an eviction order against the first respondent occupiers and those occupying through or under them in respect of the described property. The occupiers were ordered to vacate the property by 8 March 2024, failing which the eviction could be carried out.

The City was directed to provide Temporary Emergency Accommodation, in a location as near as possible to the area where the property is situated, on or before 23 February 2024, to those occupiers who were still resident and had not voluntarily vacated, consisting of (a) those listed in Annexure X to the judgment and (b) those forming part of households earning less than R3 500 per month, excluding any income derived from Child Support Grants and regardless of nationality or immigration status.

The City was also directed to notify the occupiers in writing of the nature and location of the accommodation by 25 February 2024.

On costs, the court ordered that each party pay their own costs, on the basis that each party achieved an element of success.

Cases Cited

Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC).

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

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 25(1), section 26(1), section 26(2), section 28).

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (section 1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the occupiers were unlawful occupiers for purposes of PIE and that an eviction order should be granted, but only in a manner that was just and equitable given the likelihood of homelessness.

The court held that eviction in the circumstances could be just and equitable if the eviction date was linked to the provision of temporary emergency accommodation. It further held that the City could not rely on vague assertions of procurement constraints to justify a three-year delay and that a period of approximately four months was appropriate in the circumstances.

The court held that, while the City’s income threshold policy was not directly challenged and would be applied, Child Support Grants were not to be treated as income for purposes of applying the threshold. The court also held that the City could not make the provision of temporary emergency accommodation conditional on foreign national occupiers proving that they were legally in South Africa, and that eligibility (within the threshold framework) had to be assessed regardless of nationality or immigration status.

LEGAL PRINCIPLES

Eviction under PIE, even where unlawful occupation is undisputed, requires a court to determine whether eviction is just and equitable in the light of all relevant circumstances, including the risk of homelessness and the constitutional context in which property rights and housing rights intersect.

Where eviction is likely to result in homelessness, a municipality is generally required to place before the court a report containing sufficient, case-specific information to enable a fair and equitable order, consistent with the guidance in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA).

An eviction order that would precipitate homelessness is not just and equitable unless provision is made for alternative or temporary accommodation, and a court may structure an eviction order so that the date of eviction is linked to the date when the municipality must provide temporary emergency accommodation, consistent with City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC).

A municipality that contends it cannot provide temporary emergency accommodation within a reasonable timeframe must place before the court adequate factual material to justify the limitation, and cannot rely only on broad, unsubstantiated statements about resource and procurement constraints. Where no accommodation is presently available, constitutional authority recognises that the municipality may be required to procure accommodation rather than avoid responsibility on the basis of present unavailability.

In assessing eligibility for emergency accommodation where children are involved, social assistance in the form of Child Support Grants should not be treated in a manner that disadvantages caregivers and children, having regard to section 28 of the Constitution.

The provision of temporary emergency accommodation by a municipality cannot be made contingent on a municipality-imposed requirement that foreign national occupiers prove lawful immigration status where the applicable housing framework contemplates emergency accommodation to persons such as illegal immigrants subject to conditions determined by the appropriate national authority on a case-by-case basis.

Sethunya Family Trust and Another v Occupiers of Erven 139 Berea and Another (20/31579) [2023] ZAGPJHC 1208 (23 October 2023)