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
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 6683/2023
In the matter between
COMMUNICARE NPC APPLICANT
REGISTRATION NO: 1929/001590/08
And
NCUMISA KHONZAPHI FIRST RESPONDENT
IDENTITY NO: 9[…]
AND ALL THOSE HOLDING TITLE UNDER HER
CITY OF CAPE TOWN MUNICIPALITY SECOND RESPONDENT
JUDGEMENT
Van den Berg AJ
NATURE OF RELIEF
1. The applicant applies for an order requiring the first respondent and all those
who hold title under her at the property situated at Erf 2 […] Cape Town more fully
described as 05[…] R[…], Corner of K […] Road, Diep Street, R […] Street and F […]
Street, Brooklyn (“the Property”) be ordered to vacate the property on a date to be
determined. Additionally, the applicant seeks an order that in the event of the first
respondent and all those who hold title under her failing to comply with the eviction
order, be evicted by the Sheriff of this Cour t as well as costs associated with the
application.
2. The first respondent opposes the relief applied for, and the second
respondent, the City of Cape Town Municipality, filed a Housing Report and affidavit
on 6 February 2024.
SYNOPSIS AND CHRONOLOGY
3. The applicant is Communicare NPC, an incorporated association not for gain.
The first respondent, Ms Ncumisa Khonzaphi is a 29-year-old female who shares the
premises with her 2 (two) minor children, aged 4 years and 8 months of age, . and
from which the applicant seeks to evict her.
4. In her answering affidavit, t he first respondent states that she has a self
employed partner who provides maintenance support but he does not share the
residence with her.
5. It is common cause that the applicant and t he first respondent concluded a
written lease agreement on or about 28 February 2021 , in terms of which the first
respondent leased the property for residential purposes. The monthly rental is
R4,000.00, with an annual increase. . The lease agreement was for an initial period
of 8 (eight) months, which commenced on 1 March 2021.
6. In the event the first respondent does not pay rental or other monies due in
terms of the lease agreement, the applicant shall issue a written notice calling upon
the first respondent to remedy such breach. Failing which, the applicant shall be
entitled in its sole discretion and without prejudice to any other rights to either claim
specific performance or cancel the lease agreement forthwith and claim arrear rental.
7. In terms of clause 27.1 of the lease agreement , any letter or notice given in
terms of the lease agreement shall be in writing be posted by pre -paid registered
post. It shall be deemed to have been received by the addressee on the fi fth
business day following the date of such posting or if transmitted by facsimile or e -
mail be deemed to have been received by the addressee one calendar day after
dispatch.
8. The first respondent’s contact details are recorded in terms of paragraph 27.2,
read with paragraph 1.17 of the lease agreement as follows:
“The Tenant’s contact details
Physical K[…] River, D […] and F […] Streets, Brooklyn, Cape
Town, 7405 ...
Cellular 00276[…]
Email k[…]”
9. The applicant applied for and obtained a Court order in terms of section 4(2)
of the Eviction from and Unlawful Occupation of Lands Act 19 of 1998, which order
and notice were duly served upon the first respondent. It is not contested that the
applicant has complied with the provisions of the PIE Act. .
THE FIRST RESPONDENT’S DEFAULT AND TERMINATION OF THE LEASE
AGREEMENT
10. The applicant contends that the first respondent materially breached the terms
of the lease agreement by failing or refusing to make payment of the monthly rental
and other charges due in terms of the lease agreement. As of 1 October 2022, the
first respondent was in arrears in an alleged amount of R40,119.80. The first
respondent disputed this amount of arrear rental . Annexure “RJ4” to the fo unding
affidavit is a “Tenant / Debtor Transactions Schedule” for the period January 2019 to
October 2022.
11. On 6 December 2022 , the applicant’s attorneys emailed a written letter of
demand to the first respondent at “k[…]”.
12. The applicant's attorneys despatched a further final demand and cancellation
notice to the first respondent on 6 March 2023.
13. The applicant further contends that the tenancy was on a month -to-month
basis and that the applicant, in its letters, gave 30 days' notice of the termination of
the lease agreement. The lease agreement provides that either party may terminate
the lease for any reason on 30 days’ notice.
14. The applicant contends that the respondent is in unlawful occupation of the
property.
15. In opposition to the relief sought, the first respondent denied that she received
any of the notices or letters of demand. She states that she was never alerted to any
breach of the agreement and avers that her email address was incorrectly recorded
by the applicant. However, the first respondent admits that she fell into arrears due
to reduced employment hours and her being off on maternity leave. According to the
first respondent , the applicant has not attempted to mediate the dispute regarding
her eviction in good faith. The first respondent states in paragraphs 10 and 11 of her
answering affidavit that she consistently paid the agreed upon rent save for just a
few months. No rent was paid for July, September and November 2022. During
December 2022, March 2023, and April 2023, the first respondent admitted to paying
less than the agreed upon rental amount.
16. The first respondent further contends in paragraph 13 of her answering
affidavit that:
“... despite these short payments, there is clear indication that despite some
past difficulties I have faced financially, I am genuinely and in good faith
committed to ensuring that I continue to occupy the property.”
17. She further contends that the arrear amount could be easily settled.
THE LEGAL POSITION
18. Access to adequate housing remains one of the major challenges in South
Africa. Our urban areas face a desperate shortage of adequate housing,
exacerbated by increasing urbanisation.1
19. It has become settled that the State is constitutionally obliged to provide relief
to individuals who have no access to land, who are facing intolerable living
conditions or crises, and lack access t o land or shelter. Accordingly, the provision of
emergency accommodation by the Government forms part of the right of access to
adequate housing entrenched in section 26 of the Constitution.2
20. The provisions of the PIE Act apply to all persons irrespective of whether they
lawfully occupied the property at an earlier stage. They qualify as” unlawful
occupiers.”3 Section 4( 7) of PIE provides guidance and specifies the factors and
considerations to be taken into account when a Court exercises its discretion to
determine whether it is just and equitable to grant an eviction order. It reads:
“If an unlawful occupier has occu pied the land in question for more than six
months at the time when the proceedings are initiated, a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is
sold in a sale in execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or
1 Cape Town City v Commando 2023 (4) SA 465 (SCA) at par 1
2 Government of the Republic of South Africa and others v Grootb oom and others 2001 (1) SA
46 (CC)
Cape Town City v Commando 2023 (4) SA 465 (SVA) at par 6
3 Dekker and another v Jika 2003 (1) SA 113 (SCA) at par 11 at 122C to D
other organ of State or another landowner for the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, disable
persons and households headed by woman.”
21. Without considering the other pertinent factors, a determination that an
occupant is in unlawful occupation does not automatically result in an eviction order.
Whether granting an eviction would be just and equitable in light of the
circumstances of the case is the final determination of the court. . If eviction is
warranted, the court then determines a period of time that is both r easonable and
equitable.4
22. Our Courts take a pro -active role when considering eviction applications.
The fact that the eviction may result in homelessness places an obligation upon local
authorities’ to provide temporary emergency occupation. This duty must be read in
conjunction with the provisions of section 4(7) of PIE, that one of the circumstances
which may be relevant to the just and equitable enquiry was whether land had been
made available by a municipality or other organ of State or another landowner for the
relocation of the unlawful occupier. A Court would therefore not be able to decide the
fairness and equity of an eviction without hearing from the local authority upon which
a duty is imposed to provide temporary emergency accommodation..5
23. In each case, the court is obligated to conduct an enquiry and r proactively
gather information regarding all pertinent and relevant circumstances . 6 before
rendering a just and equitable decision based on that information.
IS THE FIRST RESPONDENT IN UNLAWFUL OCCUPATION
24. The applicant caused 2 (two) n otices of demand to be delivered to the first
respondent’s email address as recorded in the lease agreement a s well as another
to be delivered by pre -paid registered post. The applicant has complied with the
4 Grobler v Phillips 2023 (1) SA 321 (CC) at 331C to G, par 28 and 29
5 Occupiers Berea v De Wet NO and Another 2017 (5) SA 346 (CC) at par 54 to 58
6 The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele 201 0 (9)
BCLR 911 (SCA)
terms of the lease agreement and in law the first respondent is deemed to have
received such notice.
25. It is further undisputed that the first respondent received the notice of her
arrears and the drastic relief sought against her when she received service of the
main eviction application as well as the section 4(2) PIE Act notice and order.
26. Moreover, the first respondent’s tenancy is month -to-month. The lease
agreement stipulates that any of the parties may terminate the lease with 30 days'
notice, which is precisely what the applicant did.
27. I therefore conclude that the lease agreement was lawfully terminated and
that the first respondent is in unlawful occupation.
SECTION 4(7) OF PIE
28. The first respondent had occupied the property for more than 6 (six) months
when the eviction proceedings were initiated. The Court may grant an order for
eviction if it considers all of the relevant circumstances and finds that it is just and
equitable.
29. The inevitability of r apidly escalating living expenses in comparison to
meagre sources of income is a sombre d but undeniable reality that impacts
everyone. . Considering the evidence, it is uncertain if the first respondent can afford
to pay the arrear rent or commit to the agreed rental with or without an escalation in
the future. The answering affidavit was deposed to on 20 September 2023. The
replying affidavit is dated 7 May 2024. Neither of these affidavits shed light on the
current outstanding rent or what amounts have been paid to the date of the
judgment.
30. In her answering affidavit , the first respondent offered to pay R4000 as rent
per month with an additional R500 for the arrears. During the argument, Mr Nduli,
who appeared on behalf of the first respondent, indicated that her offer was
increased from R500 to R1000 for the arrears.
31. The first respondent attached copies of her bank statements to her answering
affidavit. Mr Randall, who appears for the applicant, pointed to several entries on the
bank statements of payments to the first respondent other than her salary income or
maintenance. Mr Randall submitted that the applicant earns more money than what
she disclosed.
32. Mr Nduli argued that the court should dismiss the eviction application because
the applicant stands to suffer no prejudice. The applicant has a willing and able
tenant who wishes to continue occupying the property.
33. In Beadica 231 CC and Others v Trustees, Oregon Trust and Others7 the
Constitutional Court per Justice Theron held at para 80 that:
“Our law has always, to a greater or lesser extent, recognised the role of
equity (encompassing the notions of good faith, fairness and reasonableness)
as a factor in assessing the terms and the enforcement of contracts. Indeed, it
is clear that these values play a profound role in our law of contract under our
new constitutional dispensation. However, a court may not refuse to enforce
contractual terms on the basis that the enforcement wou ld, in its subjective
view, be unfair, unreasonable or unduly harsh. These abstract values have
not been accorded autonomous, self -standing status as contractual
requirements. Their application is mediated through the rules of contract law
including the ru le that a court may not enforce contractual terms where the
term or its enforcement would be contrary to public policy. It is only where a
contractual term, or its enforcement, is so unfair, unreasonable or unjust that it
is contrary to public policy that a court may refuse to enforce it.”
34. It is further settled that the Court can not make an agreement for parties by
way of an order of court.
7 2020 (5) SA 247 (CC)
35. The first respondent further raised the possibil ity of mediation. None of the
parties filed any notice in terms of Rule 41(A). Mediation is, in any event, a voluntary
process. The Court can not compel parties to mediate. Despite this, I afforded the
parties during the argument the opportunity to stand down to explore the potential for
resolution of the dispute. No settlement could be reached.
36. Therefore, I am of the considered view that an eviction order should be
granted.
JUST AND EQUITABLE PERIOD WITHIN WHICH AN EVICTION SHOULD TAKE
PLACE
37. The second respondent, the City of Cape Town Municipality, filed the housing
report on behalf of the City. The report confirms that the first respondent is an adult
female who has 2 (two) dependent children. She is employed with a monthly
household income of R9,500.00. She has been residing at the property for a period
of 3 (three) years and will be rendered homeless if evicted. Apart from the 2 (two)
minor children there are no disabled or elderly persons residing on the premises.
38. The City conte nds that the respondent can be provided with a so -called
“emergency housing kit” as a last resort if she is not able to obtain accommodation
through her own means. In paragraph 13 the City request the Honourable Court to
grant a period of 18 (eighteen) mo nths from the date of having received a complete
acceptance form the first respondent to make a structure available for occupation at
an emergency accommodation site. This is only applicable should the first
respondent not be able to secure a site with t he landowner's consent in writing for
the construction of the so-called “emergency housing kit”.
39. The first respondent argues that her constitutional right to access adequate
housing can only be achieved if the parties engage each other meaningfully .8 The
first respondent pleads that the Court should allow the parties to find a mutually
beneficial solution through mediation. The first respondent further alleges that the
8 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg and others
v City of Johannesburg 2008 (3) SA 208 (CC)
applicant charges different rental amounts for apartments of similar size . In this
regard, the first respondent argues that the Court should not grant an eviction order
until the City has taken reasonable and concrete steps to assist the first respondent
with alternative accommodation.
40. The first respondent appears to be a hard -working mother who succeeds in
earning a respectful income. She receives financial support and maintenance from
her boyfriend. She has a family and does not appear to be destitute, although she is
by no means prosperous.
41. The applicant presents uncontested evidence regarding the availability of
similar accommodation in the area, although at higher monthly rentals. The first
respondent did not answer to these allegations but merely persisted in contending
that she would suffer prejudice should her children and she be forced to move.
42. What is then a just and equitable period within which an eviction is to take
place? The applicant proposed 4 months. Mr Ndoli proposed 18 months in line with
the City’s housing report. The City’s stance to be that all evictions should be halted
for a period of 18 months is beyond my comprehension. Depriving the applicant, as
owner, o f any remedy for such an expanded period would also not be just and
equitable.
43. I agree with the applica nt that executing the eviction order should be
suspended for four months.
COSTS
44. The applicant is cited as a Nonprofit Corporation (NPC) that provides housing
to lower-income households. I accept that the applicant needs to protect its financial
position just like any other landlord. On the other hand, t he first respondent cannot
afford to bear the costs of an opposed application. I have also mentioned that the
parties could not mediate the matte r despite the first respondent's offers . While I do
not assign blame to any of the parties involved, the Court was left in the dark
regarding the updated arrears owed by the first respondent and why the applicant
was unwilling to accept the first respondent’s offer. The first respondent did not place
any updated information before the court regarding the rental payment as she could
have done in terms of Uniform Rule 6(5). I am inclined to order each party to pay
their own costs, but this may be unfair to th e applicant, who was substantially
successful.
45. I intend to grant a cost order that aims to strike a balance between the
applicant's substantial success and the first respondent's assertion that she wanted
to settle the matter and did not intentionall y breach the terms of the lease
agreement9. It safeguards the applicant should the first respondent fail to vacate the
property and lessens the harshness of the relief should the firs t respondent comply
with the terms of the order.
RELIEF AND ORDER GRANTED
46. Considering the aforesaid an order is granted as follows:
[1] The first respondent and all those who occupy by, to or under them, a t the
property situated at ERF 2[…] CAPE TOWN more fully described as 05[…] R[…],
corner of K […], River Diep and F […] streets, Brooklyn (hereinafter referred to
as “the property”) known as 05[…] R[…], Corner of K[…] Road, D[…] Street, R[…]
Street and F […] Street, Brooklyn shall vacate the property by no later than 30
September 2024.
[2] Failing compliance with paragraph 1 above, the Sheriff and/or Deputy Sheriff
is authorised to evict the first respondent and any other occupants and to remove
their belongings on 1 October 2024, or so soon as is reasonably practically possible
thereafter.
[3] The first respondent is ordered to pay the costs of the applicat ion, including
the costs of counsel on Tarif A in terms of Uniform Rule 69(7),
9 Goodfin Properties (Pty) Ltd v Adriaanse and Others [2022] ZAWCHC 245
[4] The costs order in paragraph 3 is suspended and will only become effective if
the first respondent does not vacate the property on or before 30 September 2024. If
the firs t respondent vacates the property before 30 September 2024, each party
shall pay its own costs.
VAN DEN BERG AJ
ACTING JUDGE OF THE HIGH COURT
HEARD ON 17 May 2024
JUDGMENT 21 May 2024
APPEARANCES:
FOR THE APPLICANT: Adv R Randall
Instructed by JKS Attorneys Inc
FOR THE FIRST RESPONDENT: Adv B Nduli
Instructed by Legal Aid
FOR THE SECOND RESPONDENT: None