IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A144/2024
In the matter between
MARY ANN SWARTZ
AND ALL THOSE HOLDING TITLE UNDER HER APPELLANT
and
TIMOTHY BUTCHER N.O.
MARK ANTHONY WEBB N.O.
BARBARA SANDBERG N.O.
As Trustees for the time being, of the
Tri-Action Investments Trust (IT424/2005)
Trading as
WESTERN CAPE ACCOMMODATION AND RENTALS 1st RESPONDENT
MORNE BOTES 2nd RESPONDENT
ALOMA WENDY BOTES 3rd RESPONDENT
THE MUNICIPALITY OF CAPE TOWN 4th RESPONDENT
Date of hearing: 29 November 2024
Date of judgment: 29 November 2024
Coram: Nuku J, Bhoopchand AJ
JUDGMENT
BHOOPCHAND AJ:
1. This is an appeal against the order of the Magistrate’s Court, Cape Town ,
delivered on 12 March 2024. The Magistrate ordered the eviction of the
Appellant under the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act (“PIE”). The Appellant, with her two daughters, aged 6
and 12, unlawfully occupied a fully furnished holiday apartment in
Bloubergstrand (“the apartment”) over a protracted period. The Appellant was
the Respondent in the Magistrates Court, and the Respondents were the
Applicants. She paid the rent for the first week on a seven -day short -term
lease, then the rent for the second week, and secured a longer -term lease
from the First Respondent. The Appellant did not pay any further rent. For
ease of reference, this judgment shall ref er to the parties as they are cited in
this appeal.
2. Butcher N O (“Butcher”), one of the three Trustees of the First Respondent ,
attempted to persuade the Appellant to vacate the apartment. On 5 December
2022, the Appellant served Butcher with a notice under s ection 3 of the
Protection from Harassment Act 17 of 2011. First Respondent gave the
Appellant notice to vacate the apartment on 20 December 2022. Butcher was
summoned to appear in court on 30 January 2023 and was temporarily
interdicted f rom communicating with the Appellant. The harassment
application was dismissed on 31 January 2023. The First Respondent was
directed to institute eviction proceedings.
3. The Appellant allegedly failed or refused to attend to the application for the
City of Cape Town’s (“the City”) housing obligations under PIE. The
application was forwarded to her on 30 May 2023 and 20 June 2023. The first
application for the Appellant’s eviction was postponed four times before the
judgment was delivered on 24 October 2023. The Appellant had disputed that
the First Respondent owned the property. The parties involved at that stage
were the First Res pondent and the Appellant. The Appellant also raised the
issue that the lease agreement was not cancelled , and she required one
month's notice to move out. The application for the Appellant’s eviction was
dismissed as the Magistrate’s Court found that the First Respondent did not
have the locus standii to raise the application.
4. On 11 December 2023, t he Respondents instituted the second application to
evict the Appellant. The hearing commenced on 15 February 2024. The
Appellant had legal representation. Her attorney informed the Court that he
had advised the Appellant to seek emergency or alternative accommodation
from the City if she could not secure one within her means . The Appellant
waived any assistance from the City . Still, her attorney appreciated the
necessity for its report as it would enable the Magistrate to make a just and
equitable order to either dismiss or uphold the Appellant’s eviction.
5. The Court indicated that it had wide powers and could call the City to testify,
but if the Appellant waived her right to assistance by the City , then the Court
could proceed with the inquiry. The Appellant’s attorney indicated that he
sought the Respondents ’ agreement to postpone the matter to enable the
parties to agree to a timetable for filing affidavits and written arguments. The
Court agreed to postpone the matter for a s hort period on just and equitable
grounds as the Appellant had children. The Court undertook to contact the
City about providing alternative emergency accommodation for the Appellant
and suggested that the Appellant complete the housing questionnaire. The
Court sought to assist the Appellant with a questionnaire. The Magistrate
postponed the matter for three weeks to enable the City to provide a report
and to appear before the Court to testify if required and for the parties to
exchange further affidavits. The exchange of affidavits would occur once the
parties had received the City’s report. The Magistrate set a timetable reflecting
that the Ci ty’s report would be available by 26 February and the Appellant's
answering would be filed by 28 February 2024. The Appellant’s attorney
agreed to the timetable. The Respondent's attorney undertook to file the ir
replying affidavit on 1 March 2024. The Cour t permitted the Appellant's
attorney to file written argument on the day of the rescheduled hearing. The
matter was postponed to noon on 4 March 2024 to accommodate the
Appellant, who had scheduled an appointment to look for alternative
accommodation that morning.
6. On 4 March 2024, the Appellant appeared without representation. She asked
for the matter to be postponed to 11 April 2024 to enable her to secure a
lawyer. She explained that her r elationship with her previous attorney was
‘bad’; hence, he had withdrawn. The Respondent's attorney informed the
Court that it was the third time an attorney had removed himself from the
Appellant’s case. She feared the matter would be inordinately delaye d if a
postponement were granted. The Appellant failed to complete the housing
questionnaire. The parties could not adhere to the timetable to file further
papers. The questionnaire was handed to the Appellant’s attorney, who
withdrew as the Appellant did not complete it. The Respondent’s attorney
indicated that she would oppose any further postponements.
7. The Appellant refused to answer questions without an attorney. She could not
procure one to represent her on that day. The Respondent's attorney referred
to the previous hearing where the Appellant’s attorney had raised the
necessity for a report from the City . The Appellant’s attorney had submitted
that the City’s report was essential to formulating the Court’s decision on
eviction. The absence of a report could become contentious if the matter
proceeded to an appeal. Respondent’s attorney received the terse report
indicating that the Appellant could not be assisted as the City did not know her
personal circumstances, which they would have gleaned from the completed
questionnaire. The report was handed to the Magistrate. He informed the
Appellant that he had to proceed without considering what the City could have
offered her as she had refused to complete the questionnaire. The Magistrate
refused the postponement, and the hearing proceeded.
8. The Appellant testified that she approached Whitney Butcher for the
accommodation. The initial arrangement was for her to rent the premises
every week . The rental was R4000 . There was confusion as to when the
Appellant had last paid her rental. The Court established that the Appellant
had never paid any rent since the beginning of 2023. The Court asked the
Appellant if she was in lawful occupation of the premises. The Appellant once
again protested that she required the assistance of an attorney to answer the
question. The Magistrate informed the Appellant that she could remain silent,
but he would make an adverse finding against her. She could take the Court
into her confidence and answer the question. The Court repeated ly informed
the Appellant that she could remain silent. The Appellant indicated that she
would answer. The Court asked her when she required to vacate the
apartment. The Appellant required six months to secure work and alternate
accommodation.
9. The Court reminded the Appellant that she had been asked to vacate the
apartment a year before that hearing. The first application had been instituted
on 1 June 2023. The Appellant was asked as to what she had done since. The
Appellant testified that she had searched for a job and accommodation. She
spoke to three persons who in formed her that holiday accommodation in
Blouberg would not be available from March 2023 to February 2024. She did
not search for accommodation in the suburbs. The monthly rental for the
apartment she occupied was R16 000. The Appellant was unable to pay that
amount. The accommodation she had viewed on the morning of the hearing
was in Bayside for R13 000 per month. The Court asked the Appellant if she
had not considered cheaper accommodation. The Appellant wanted a two-
bedroom apartment. The cheaper ones had just one room. The Appellant
could not provide any reason for requiring two bedrooms , given that her
children were still young.
10. The Court enquired whether the Appellant could prove that she secured
employment and accommodation for the next six months. The Appellant was
unable to confirm any. The Magistrate reminded the Appellant that she had
been assuring the Court of obtaining employment and accommodation since
June 2023. The Magistrate asked about her employment enquiries , cognisant
of her inability to secure it without money or a job.
11. In response to questioning from the Respondent’s attorney, the Appellant
insisted that she was not in unlawful occupation of the apartm ent. She
confirmed receipt of the letter cancelling her lease. She confirmed that she
had not paid rent since at least January 2023. The Appellant could not
understand how the cancelled lease and unpaid rent equated to unlawful
occupation. The Appellant was probed about why s he sought expensive
accommodation on the Blouberg beachfront when she could not afford it.
After indicating that she had proof of an upcoming job interview on 25 March
2024 on her WhatsApp messages, the Appellant could not find it. She then
alleged that the message was on her tablet, and she would obtain a
screenshot. The Appellant then indicated that the person who could take the
screenshot of her tablet would not be available as the latter had to fetch her
children from school. The Respondent’s attorney protested that the whole
issue was descending into a farce. The Appellant indicated she would call her
brother to testify about her attempts t o obtain work and other accommodation.
He would testify that she looked for work daily and would confirm the
upcoming job interview for the 25th.
12. On 5 March 2024, the Appellant called the witness, who was purportedly her
brother. It transpired that he was distantly related to the Appellant, knew little
about her, and could shed little light on the Appellant’s search for work or
alternative accommodation. The Appellant returned to the witness box fo r
further questioning. She confirmed that her children were healthy and did not
need special schooling. The Appellant then proceeded to provide proof of her
search for work and accommodation. The proof turned out to be on the
cellphone of the person who had testified earlier. The Appellant referred to
enquiries she had made about alternative accommodation. One was for a
twelve-bedroom home in Blouberg. The Appellant could not explain why she
required a twelve-bedroomed home. She was then referred to a further
message on the phone. The message emanated from the Appellant to a
letting agent. The Appellant indic ated the accommodation available was too
‘outskirt for her. She wanted a ccommodation in the Bigbay or Blouberg area
and on the beachfront. The matter was postponed to 12 March 2024 for
judgment.
THE MAGISTRATE’S JUDGMENT
13. The Magistrate was asked to determine whether the Appellant was an
unlawful occupier and , consequent upon a positive finding, whether it would
be just and equitable to evict her and when she should vacate the apartment.
The Magistrate referred to the Appellant’s legal representation, noting that she
was represented on the first day . He refused the application to postpone the
hearing to enable the Appellant to appoint another attorney.
14. The Magistrate summarised the evidence already traversed in this judgment
and included the Appellant’s search for work and accommodation, her waiver
of assistance from the City, and her two children. The Magistrate appraised
himself of the Constitutional Court’s directive for judicial officers to assume a
proactive role when adjudicating PIE matters.1 The imperative induced him to
call for comprehensive evidence , including that of the Appellant’s witness.
The Magistrate had no hesitation in finding the Appellant to be in unlawful
occupation of the apartment . He considered that this application was the
second attempt to evict the Appellant. The Appellant’s children had no special
needs and were in good health. He considered that there was suitable
accommodation about five to ten kilometres away from where the children
were schooled. The Appellant had failed to pay rent and was aware of a
possible eviction since 20 December 2023.
1 Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC
18; 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC) (8 June 2017) (“Berea De Wet”)
15. The Magistrate noted that the apartment occupied by the Appellant was
managed as a holiday let , and the owners had suffered financial harm due to
the ongoing unlawful occupation . After carefully considering all the facts,
circumstances, oral evidence adduced and submissions made in the matter,
the Magistrate ordered the Appellant to vacate the premises by 30 April 2024.
The Sheriff was authorised to evict the Appellant and those living with her
from the property on 8 May 2024. The Appellant was ordered to pay the
Respondent’s costs.
THE APPEAL
16. The Appellant raised eleven grounds of appeal . They can be conveniently
grouped under four themes: the City’s report, the risk of rendering the
Appellant homeless, the criteria for the choice of emergency or alternate
accommodation, and the time to achieve the latter. The submissions made on
behalf of the Appellant lament the paucity of personal information available to
and elicited by the Magistrate. The Respondents deplore the lack of clarity of
the appeal grounds and consider them misplaced. The Appellant cited the
cases encapsulating the dicta that follows.
17. A court hearing an application for eviction at the instance of a private person
or body ow ing no obligation to provide housing or achieve the gradual
realisation of the right of access to housing is faced with two separate
enquiries. First , it must decide whether it is just and equitable to grant the
eviction order after considering all relevant factors. Those factors include the
availability of alter native land and accommodation. The latter has to be
weighed against the property owner's protected right under section 25 of the
Constitution, and any limitation of that right in favour of the occupiers will
ordinarily be for a limited duration. If there is no defence to the claim for
eviction, the Court is obliged to grant the order. Before doing so , it must
consider what justice and equity demand concerning the date of
implementation of that order and what c onditions must be attached to that
order.2
18. The second enquiry must consider the impact of an eviction order on the
occupiers and whether they may be rendered homeless or need emergency
assistance to relocate elsewhere . The order granted through the two
enquiries is a single order. 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 has all the necessary information
to make both findings based on justice and equity.
19. The court will grant an eviction order only where (a) it has all the information
about the occupiers to enable it to decide whether the eviction is just and
equitable and (b) the court is satisfied that the eviction is just and equitable
having regard to the information in (a). The two requirements are inextricable,
interlinked and essential. An eviction order granted in the absence of either
one of these two requirements will be arbitrary. The enquiry has nothing to do
with the unlawfulness of occupation. It assumes and is only due when the
occupation is unlawful.3
20. Where no information or inadequate information is available, the court must
decline to make an eviction order. The absence of information is an
irrefutable confirmation that the court is no t in a position to exercise this
important jurisdiction.4
21. The City has a constitutional obligation to persons evicted from
accommodation who face homelessness. The City must provide information
relating to the building occupied, the occupiers of the building, whether the
eviction order would render the occupier homeless, the implications for
owners if the eviction is delayed, details of all engagements it has had with the
2 City of Johannesburg v Changing Tides 2012 (6) SA 294 (SCA) at para 25
3 Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC
18; 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC) (8 June 2017) at para 48
4 Berea De Wet at para 51
occupier, and whether there is scope for a mediated process ; under section 7
of PIE or otherwise.5
22. The City must provide the occupiers with suitable temporary emergency
accommodation. It is appropriate that an order be made that such
accommodation be at a location as near as possible to the area where the
property is situated. The City has to ensure that the occupiers are treated with
dignity and care when choosing an appropriate location. The City should
consider the occupier's places of employment , children’s schooling, hospitals,
transportation, and other important amenities that their relocation may require.
The vulnerabilities of the occupiers must be considered.
23. The Appellant submits that despite the real threat of homelessness , the
Magistrate found it just and equitable for the Appellant to vacate the
apartment. The order was given with no or inadequate information available.
The Appellant relied upon sections 4(7) and 4(8) of PIE and concluded that
the Magistrates Court failed to come to a just and equitable decision to evict
the Appellant and her two minor daughters despite knowing that such an
eviction order would leave the Appellant and her two minor daughters
homeless.
24. The Respondents submit that the prolonged period of the Appellant’s
occupation of the apartment is an ongoing violation of their rights and places
an extended burden upon them. The Appellant’s pattern of non-compliance
and delay has contributed to a protracted legal process and unfairly
prejudiced the Respondents. The Appellant's failure to complete th e
questionnaire appears to have been a strategic manoeuvre to delay the
process further. The Magistrate acted within his discretion and correctly
refused to grant a further postponement as the Appellant demonstrated a
consistent disregard for court orders, failed to act in good faith and exhibited a
pattern of attempting to delay the proceedings. The Court’s refusal aligns with
the interests of justice, upholding the principle that while procedural fairness is
5 Changing Tides at paras 39-40
essential, it should not be exploited to the detriment of the Respondent’s
rights. The Appellant had not alleged that she would be left homeless should
the eviction be granted. She testified with certainty that she would obtain
employment as of 1 April 2024.
EVALUATION
25. The Appellant has occupied the apartment with her two minor daughters since
17 August 2022 and in unlawful occupation since December 2022. The
Appellant has, by deduction , not paid any rent for the whole period of
occupation except for the first two weeks. The longer-term lease has since
been cancelled. There were two applications for eviction, the second being
the subject of this appeal. The Appellant , in addition, charged one of the
Respondents for harassment.
26. An attorney represented the Appellant on the first day of the hearing . When
the matter resumed on 4 March 2024, the Appellant was unrepresented. The
Magistrate asked about the absence of the attorney representing her on the
first day. The Appellant answered that she had a ‘bad relationship’ with him.
The Appellant sought a postponement of the hearing for five weeks to obtain a
suitable attorney. The Respondents objected. This Court shall briefly deal
with this aspect as it arises from reading the transcript. The Appellant has not
raised the refusal of a postponement as a ground of appeal . The section 4(2)
notice to inform the occupier requires t he owner or person in charge of the
occupied accommodation to inform the occupier of their rights to legal
representation. The Appellant did not waive that right for the rest of the
hearing, protesting intermittently that she required legal representation when
asked certain questions.
27. This Court considered the circumstances wh ich led to the Appellant being
unrepresented. Sh e had received Legal Aid-funded representation in her
previous appearances and then engaged the services of private attorneys; the
Appellant had sought a postponement on two previous occasions when her
attorney had withdrawn. The Appellant testified that she approached other
attorneys who could only take her matter in two to three months as they were
busy. She had asked for a postponement of five weeks. The Respondent
opposed postponing the matter primarily because it would delay the relief they
sought to evict the Appellant from the apartment. The Magistrate was
informed that the Appellant’s previous attorney had withdrawn as the
Appellant would not cooperate in complying with the Court’s orders , including
completing the housin g questionnaire. The Applicant’s disinclination to
complete the questionnaire featured largely in the questioning that led to the
Magistrate denying her a postponement for want of legal representation. An
assessment of the circumstances leading to the Appe llant being
unrepresented, the conduct of the hearings where the Appellant was
unrepresented, the interests of the Respondents and ultimately that this was
not raised as a ground of appeal or a review leads this Court to conclude that
absence of legal representation did not amount to a miscarriage of justice.
28. Onto the grounds of appeal formulated by the Appellant . The City issued a
housing report dated 5 February 2024 , which protested the lack of personal
information relating to the Appellant . The final paragraph of the report invited
the Appellant to provide the completed housing questionnaire or affidavit
containing her personal circumstances before the City would have been able
to issue and file a comprehensive report. The Appellant repeatedly waived her
right to emergency or alternative accommodation the City could offer. The
Appellant repeatedly declined to complete the questionnaire. The
Respondent’s attorney informed the Court that the questionnaire h ad been
provided to the Appellant’s attorney and that the Appellant’s attorney had
withdrawn from the case as the Appellant was, among others, unwilling to
complete the questionnaire. On the first day of the hearings, the Appellant’s
attorney reminded the Magistrate that he was obliged to have the housing
report from the City even though the Appellant had waived her right to
emergency or alternative housing by the City. The motivation for obtaining the
report was to prevent it from becoming an issue on appeal, as the report
formed part of the considerations involved in determining whether it was just
and equitable to order the Appellant’s eviction.
29. The Appellant contends that the Magistrate erred in denying the Appellant
time to accept or reject the report. The Appellant asserts that the Respondents
obtained the report on 28 February 2024, whereas the Appellant received it on
the 4th or 5th March 2024. The Magistrate had set a timetable that allowed the
parties to consider the City’s report and included their responses to it in the
affidavits they were yet to file. The Appellant had not complied with the order.
The Magistrate indicated that he could not force the City to compile a report if
the Appellant declined to complete the questionnaire.
30. The Appellant then contended that by denying the Appellant the right to
respond to the report, he would have rendered the Appellant homeless once
the eviction order was granted. The Appellant contended further that the
Magistrate had erred by failing to appreciate that it was unconstitutional to
render the Appellant homeless by granting the eviction order. The Appellant’s
testimony was to the contrary. She had declined the City’s assistance and was
actively searching for alternative accommodation. There is, thus, no merit in
these grounds of appeal.
31. The following grounds of appeal relate to the provision of temporary housing ;
the Appellant contended that the Magistrate had erred in failing to order
temporary housing for the Appellant that was located close to the apartment in
Blouberg, and the choice of which did not infringe her dignity. The Appellant
asserted that the Magistrate had failed to direct the City to provide appropriate
accommodation to cater for prospective places of employment, the children’s
schooling, hospitals, transportation , other important amenities , and the
Appellant’s vulnerabilities. These nuanced grounds of appeal attack every
conceivable angle relating to the provision of e mergency or alternative
accommodation. These grounds of appeal are raised without any appreciation
of the Appellant’s evidence, the inquiry conducted by the Magistrate , and his
efforts to address these issues . The response has to be that the Appellant
repeatedly waived the assistance of the City to provide emergency or
alternative accommodation , failed to complete the personal housing
questionnaire and was actively searching for accommodation confined to the
beachfront area. These grounds of appeal have to fail as well.
32. The remaining grounds of appeal concern the City’s alleged obligation to
provide the Appellant with emergency or alternative accommodation in
circumstances where she declined assistance. The Appellant contended that
the Magistrate erred by failing to provide the City with reasonable time to find
temporary emergency accommodation for the Appellant. The Appellant further
contends that the Magistrate erred by not extending the eviction date to
enable the City to provide accommodation. These grounds suffer a similar fate
to the preceding ones. They are raised in the abstract, devoid of association,
reliance, or relevance to the inquiry and the evidence elicited. They have no
merit.
33. The transcript of the hearings indicates that the Appellant was questioned
about the duration of her occupation of the apartment, the period over which
she did not pay any rent, the termination of the lease, and the notice of
eviction. All of the aforegoing pr oved that the Appellant was in unlawful
occupation of the apartment over a protracted period.
34. The Magistrate assumed a proactive role in the inquiry. He ensured
compliance with the requirements of section 4( 7) of PIE before he concluded
that it was just and equitable to order the Appellant’s eviction. He facilitated
the provision of a report from the City. The Magistrate did everything that was
required of him to enable the Appellant to seek the assistance of the City. The
Appellant had repeatedly declined to provide the requisite information and
waived any assistance from the City. The Magistrate, assisted by the
Respondent’s attorney, conducted a detailed inquiry into the Appellant’s
search for alternative accommodation. The Magistrate enquired about the
minor children. They were healthy and had no special needs. The Magistrate
enquired about the Appellant’s employment prospects and was assured by the
Appellant that there was a job interview in the offing. He considered th at the
Appellant headed her household. He also considered the Respondents'
interests before finding that it was just and equitable to order the eviction of
the Appellant.
35. The Magistrate complied with section 4(8) of PIE . The Appellant did not raise
any valid defence against the application for her eviction. She could not , as
the procedural requirements were satisfied , th e lease was terminated , she
had not paid rent over a prolonged period , she received notice to vacate t he
apartment, and there were no defects in the procedure followed to evict her
legally. This was the second application for an eviction, the first ending in a
technicality that may have been decided incorrectly against the First
Respondent as it had from being in charge of the apartment, the necessary
locus standi under PE to seek the eviction of the Appellant. The Magistrate
gave the Appellant eight weeks to vacate the apartment , failing which, she
would have been evicted by the Sheriff a week later. These periods are
eminently reasonable.
36. Almost nine months have elapsed since the eviction order was granted. The
2024 school year is about to end. The Appellant has had ample time to secure
employment and can attend to her children's schooling if they need to be
relocated to another school. This Court does not have to pronounce on
extraneous matters , like whether the Appellant had abused the Courts in
delaying her eviction, to decide this appeal.
37. This appeal has no merit , and it falls to be dis missed with costs. The
appropriate order follows.
ORDER
1. The appeal is dismissed with costs.
________________________
Bhoopchand AJ
I agree, and it is so ordered.
________________________
Nuku J
Judgment was handed down and delivered to the parties by e -mail on 29 November
2024.
APPEARANCES
For Plaintiff : Mr Bonakele Dlova
Instructed by : Messrs Dlova Attorneys
For Defendant : Adv. Celeste Tait
Instructed by : Messrs Lindsay & Waters Attorneys