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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A181/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE : 29/1/25
SIGNATURE
In the matter between:
SANDILE PERCIVEL MSIBI Appellant
and
THE OCCUPIERS OF UNIT 6[...] C[...] C[...]
T[...] ROAD, ORMONDE, EXT 28 First Respondent
THE CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Second Respondent
Summary : Appeal against part of the order granted by the Court below. The
appellant contends that the C ourt below erred by dismissing the eviction order
sought with an order that each party must pay its own costs. After obtaining
leave to appeal the appellant delayed in serving and filing the notice of appeal .
Condonation for the late filing of the notice of appeal was sought. The
respondent contended that the explanation fur nished by the appellant is poor
and ought to be rejected since excellent prospects of success are immaterial .
The explanation furnished by the appellant is reasonable and acceptable. The
prospects of success are nevertheless excellent . Accordingly , the condonatio n
sought must be granted. The respondent launched an application seeking
condonation for the late filing of a cross- appeal. Leave to launch a cross -
appeal was not sought and obtained. Accordingly, this C ourt, as a Court of
Appeal , lacks the necessar y power to adjudicate the cross- appeal .
With regard to the merits of the appeal , the C ourt below erred by dismissing an
eviction application in the circumstances where the occupation by the
respondent is declared unlawful. The respondent failed to allege and prove
homelessness. The true gripe of the respondent relate s to the alleged
owner ship of the property. The Court below correctly dismissed the allegations
of fraud regarding the sale of the property in question. The issue of the
presence or absence of a m unicipal report is not a legal requirement for the
granting or even refusal of an eviction order within the contemplation of
section 4(7) of the P revention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (PIE) , when properly interpreted.
Held: (1) The late filing of the notice of appeal is condoned. Held: (2) The
application for the condonation of the late filing of the cross- appeal is
dismissed. Held: (3) The appeal is upheld and the impugned order of the Court
below is set aside and replaced with an order , (a) granting an ejectment and
ordering the respondent and other unlawful occupiers to be ejected from the
property within 30 days of this order, failing which the Sheriff of the High Court
or his or her Deputy is authorised to forthwith e nter upon the property and
eject the respondent and the other occupiers, (b) that the respondent
occupiers pay the costs of the eviction application as well as those of this
appeal on party and party scale to be taxed or settled on scale B.
JUDGMENT
MOSHOANA, J (KOOVERJIE J and GCAWU -DAMBUZA A J concurring)
Introduction [1] The Constitution of the Republic of South Africa, 1996 promised in section 2
that it is the supreme law of the Republic; law and conduct inconsistent with it is
invalid; and the obligations imposed by it must be fulfilled. Additionally, the self -same
Constitution promised in section 25(1) that no one may be deprived of property
except in terms of law of general application and no law may permit arbitrary deprivation of property. The promise continued in section 26(1) and (2) to say that
everyone has the right to have access to adequate housing and the State must take
reasonable legislative and other measures, within its available resources, to achieve
the progressive realisation of this right. For proper co ntext purposes , section 165(1)
and (2) of the Constitution provides that the judicial authority of the Republic is
vested in the Courts and that Courts are independent and subject only to the
Constitution and the law. As it shall be demonstrated in due course, t he impugned
order dismissing an eviction appli cation against an unlawful occupier, is with respect,
one that offends the constitutional provisions outlined above.
[2] That said, this is an appeal noted with the leave of the Court below. The
appeal is only against two orders made by the Court below; namely; that (a) the
application for eviction is dismissed; (b) each party to bear own costs. On 22
September 2022, in a written judgment, the Court below , ordered that; (a) application
for leave to appeal succeeds; (b) the applicant [appellant] is granted leave to appeal
to the Full Bench of this Division; and (c) the costs of this application for leave to
appeal shall be costs in the appeal. The present appeal is opposed by one Mr
Makaonyane Lefosa (“Mr Lefosa”), who was referred to as the first respondent in the Court below. In opposing the appeal, Mr Lefosa, raised an objection against Vezi & De Beer Incorporated representing the appellant, Mr Sandile Percivel Msibi.
Additionally, he launched an application seeking condonation for the late filing of a cross- appeal which seeks to impugn the order to the effect that he and those who
occupy the property are declared to be unlawful occupiers.
Pertinent background facts to the present appeal.
[3] It is unnecessary for the purpose of this judgment to narrate all the facts
appertaining the ejectment dispute as between the parties . Those facts were
appropriately and sufficiently outlined in the written judgment of the Court below and
do not require regurgitation. For the purposes of the present appeal, the pertinent
facts are that Mr Lefosa and his family, has since 1 December 2017 occupied Unit
6[...], C[...] C[...], T[...] Road, Ormonde, Extension 28, Johannesburg (“t he property”).
On 15 July 2021, the appellant acquired ownership of the property pursuant to a sale
agreement concluded between the appellant and one Ms Siyasanga Mangisa. Following the sale and transfer of the property into the names of the appellant, the
occupation of Mr Lefosa and his family became unlawful since it was without the
express or tacit consent of the appellant.
[4] Mr Lefosa disputed the validity of the sale agreement and alleged that it was
fraudulent . I pause to comment , in passing, that Mr Lefosa failed to launch a proper
counter -application to challenge the sale agreement. In his answering affidavit,
without a notice of motion, he prayed for the reversal of the so-called “fated
purchase” as being fraudulent and for an instruction, without citing the Deeds Office
as a party , for it to cancel and reverse the sale of the property. That notwithstanding,
on or about 21 January 2022, the appellant launched an application seeking an
eviction order against Mr Lefosa and his family from the property.
[5] On 1 September 2022, the eviction application emerged before the opposed
motion Court beaconed by Mncube AJ. After hearing the parties, her Ladyship
Mncube AJ issued a written judgment containing the impugned order. Disenchanted
by the impugned order, the appellant , on 29 November 2022, launched an
application seeking leave to appeal. I interpose, and comment that Mr Lefosa failed
to launch an application for leave to cross -appeal any unfavourable order issued
against him and his family. As already indicated at the dawn of this judgment the application for leave to appeal met with the favour of Mncube AJ.
Evaluation
[6] This Court is, with respect, unable to reconcile an order declaring a party as
an unlawful occupier with the dismissal of the application for evicting that party who
is declared to be in unlawful occupation. As indicated earlier, this Court takes a firm
view that an order dismissing the eviction application of an unlawful occupier is at
odds with the provisions of section 25 of the Constitution. Section 165(1) enjoined
the Court below to issue an order that is consistent with the Constitution. The legal
effect of the impugned order dismissing the eviction application is that , unless
reversed on appeal, the appellant, contrary to section 25(1) of the Constitution is
deprived of property not in terms of any law of general application. The appellant as
the owner of the property, is entitled to enjoy ownership of his property. On this
singular basis, the appeal ought to be upheld. Mr Lefosa failed to demonstrate any
legal basis for him and his family to remain in occupation. None of the cases cited by
the learned Mncube AJ, support s the proposition that the appellant should through a
Court order be permanently deprived of the enjoyment of ownership of his property.
The Constitutional Court in the City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) and Another1, perspicuously stated the law to be as
follows:
“[40] It could reasonably be expected that when land is purchased for commercial
purposes the owner, who is aware of the presence of occupiers over a long time,
must consider the possibility of having to endure the occupation for some time. Of
course, a property owner cannot be expected to provide free housing for the
homeless on its property for an indefinite period. But in certain circumstances and
owner may have to be somewhat patient and accept that the right to occupation may
be temporarily restricted, as Blue Moonlight situation in this case has already
illustrated. An owner’s right to use and enjoy property at common law can be limited
in the process of the justice and equity inquiry mandated by PIE.”
[7] The Supreme Court of Appeal in Wormald N.O. and Others v Kambule 2, had
already reverberated the following binding statement of law :
“[11] An owner is in law entitled to possession of his or her property and to and
ejectment order against the person who unlawfully occupies the property except if
1 2012 (2) SA 104 (CC).
2 2006 (3) SA 562 (SCA).
that right is limited by the Constitution, another statute, a contract on some other
legal basis .”
[8] The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act3
(PIE) is the only statute that may limit as opposed to permanently deprive an owner
of his or her common law right of ownership. If regard is had to the preamble of the
PIE; it exists to provide for the prohibition of unlawful eviction. It is to the unlawful
eviction that the PIE is purposed to frown upon. The PIE does not define what an
unlawful eviction is, however, it defines the unlawful occupier to mean a person who
occupies land without the express or tacit consent of the owner or person in charge,
or without any other right in law to occupy such land. Axiomatically, an unlawful
eviction must mean depriving a person of occupation of land, in the circumstances
where occupation thereof, is with the express or tacit consent or is justified by some
other legal basis.
[9] Regard being had to the provisions of section 25 of the Constitution, other
than prohibiting unlawful evictions, primarily, the PIE exists to provide for procedures
for the eviction of the unlawful occupiers. In emphasis, an unlawful occupier cannot use the provisions of the PIE to legitimise, as it were, his or her continued unlawful
occupation. Simply put, unlawful occupiers are prone to ejectment, once the procedures legislated in the PIE are complied with.
[10] In due course and for the sake of poster ity, this Court shall deal with the
interpretation of section 4(7) of the PIE, with a particular focus on the aspect of
alternative accommodation. Barring that, this Court , fervently concludes that the
learned Mncube AJ miscued when she dismissed the eviction application.
The condonation application- notice of appeal
[11] It is common cause that the notice of appeal was filed outside the time period
prescribed in Rule 49(2) of the Uniform Rules of the High Court. Howbeit, it is also
common cause that prior to the departure of one Mr Du Plessis, an attorney who was
in the employ of the appellant’s attorneys of record until April 2024, a noti ce of
3 Act 19 of 1998.
appeal was already prepare and dated. It is also common cause that on 16 and 19
February 2024 respectively, the appellant applied for a date of the hearing of the
present appeal and invited the Registrar to the Court online profile as required when
pursuing an appeal in this Court . Based on the above common cause facts, it is
perspicuous to this Court that the appellant was genuinely under a mistaken
impression that he was flogging a living as opposed to a dead horse. Clearly, had it
become apparent to the appellant that as at February 2024, the notice of appeal was
not served and filed as required, the appellant would definitely have corrected the
error. Otherwise, it would have not made any logical sense for the appellant to
prepare an appeal record and apply for the hearing of the appeal, when his att orneys
of record were aware that the prepared and dated notice of appeal had not been
served and filed as required.
[12] Mr Lefosa, other than suggesting that the period of the delay is eight months
as opposed to the five months alleged by the appellant and contending that the
appellant’s attorneys of record should not be representing the appellant, failed to
demonstrate any palpable prejudice suffered by him as a result of the delay. During
oral submissions, Mr Lefosa handed up to this Court a 2004 Labour Appeal Court
(LAC) unreported judgment of NEHAWU obo Mofokeng and Others v Charlotte
Theron Children’s Home wherein Davis AJA, writing for the majority, correctly
concluded that without a reasonable and acceptable explanation for the delay , the
prospects of success are immaterial. This apt statement of law finds no application in
casu since , the appellant in our view, furnished an honest, reasonable and
acceptable explanation for the delay . Nevertheless, recently, the LAC in Government
Printing Works v PSA and Another 4, per Govindjee AJA stated the following, to
which this Court agrees :-
“[40] On balance, the appellant has succeeded in proving that there is good cause to
grant the indulgence sought. The uncontested prospects of success, in
particular, coupled with the importance of the issue, are such that these factors
compensate for the excessiv e delay and complete inadequac y of part of the
4 (JA35/24) [2024] ZALAC 63 (28 November 2024).
explanation. Considering the relevant factors in their totality, the interests of
justice and fairness are best served by granting condonation .
[13] Likewise, even if the explanation furnished by the appellant is inadequate,
which this Court does not find it to be, the interests of justice demands the granting
of condonation5. In this particular instance, Mr Lefosa does not dispute that the
appellant is possessed of reasonable and excellent prospects of success on appeal.
With regard to the contention that the appellant’s attorneys of record are not entitled
to represent the applicant, Mr Lefosa failed to employ the provisions of rule 7 of the
Uniform Rules of the High Court. This Court, in the absence of employing the provisions of the rule, is not empowered to rule on the right to represent a party. Accordingly, this Court concludes that the condonation sought must be granted.
The issue of a cross -appeal and condonation for the late filing of the notice of cross -
appeal
[14] It is common cause that Mr Lefosa did not apply , within the contemplation of
section 17(1)(a) of the Superior Courts Act, 2010 , for leave to appeal an order
declaring him and his family members as unlawful occupiers . In the absence of an
application for leave to appeal, this Court lacks jurisdictional powers to entertain any cross- appeal. In Monyepao v Ledwaba and O thers
6, the SCA felicitously stated the
following:
“[6] An application has also been brought by Ms. Ledwaba for condonation for the
late filing of a notice of cross -appeal. Given the state of the record, it is not clear to
me if this relates to the counter application. It was struck of f the roll by the court of
first instance and, although it was mentioned in the appeal, no order was made in
respect of it. Whatever the subject -matter of the proposed cross -appeal, leave to
cross-appeal is necessary because the rules relating to appeals apply mutatis
mutandis to cross - appeals. Leave has never been granted in respect of the counter
application . The application will therefore be dismissed.
5 See also City of Ekurhuleni Metropolitan Municipality; In re: Unlawful Occupiers: 1 Argyl Street and
Others v Rohlandt Holdings CC and Others 2025 (1) SA 1 (CC) at paras 24 -25
6 (1368/18) [2020] ZASCA 54 (27 May 2020).
[15] A similar approach was adopted by the Full Court of the Local Division of this
Court in B-Sure Africa Insurance Brokers (Pty) Ltd and Others v Dotsure Insurance
Company and Another7 wher e the Court stated the following: -
“[24] Post 23 August 2013 the SCA has, on a number of occasions, confirmed that
a court of appeal will only have jurisdiction to consider substantive relief sought by a
respondent if leave to cross -appeal has been obtained as required by sections 16
and 17 of the A ct.
[36] At the end of the day, the law in this matter is clear. That is:
36.1 in terms of sections 16 and 17 of the Act, an Appeal Court does not
have the requisite jurisdiction to consider issues on appeal without
leave to appeal to that court having been granted;
36.2 there is no distinction between appeals and cross appeals. As held by
the erstwhile Appellate D ivision, a cross -appeal is “simply an appeal
which is conveniently tacked onto another appeal .”
[16] In light of the above binding authorities, this Court reaches a conclusion that
in the absence of a valid cross -appeal, this Court lacks the necessary jurisdiction to
entertain the application for condonation of the late filing of the notice of cross -
appeal. There is nothing to condone for , since no valid cross -appeal serves before
this Court.
The merits of this appeal and the proper interpretation of section 4(7) of PIE
[17] It is apparent to this Court that the Court below interpreted section 4( 7) of the
PIE to mean that absent alternative accommodation being made available, in order
to prevent homelessness, a Court must not order an eviction. If the section was to be
interpreted in that manner, every eviction application must be refused since, the
unlawful occupiers will, as a result , generally be without accommodation once
evicted.
[18] Section 4(7) of the PIE , reads thus: -
7 (A2023/041879) [2024] ZAGPJHC 958 (24 September 2024).
“(7) If an unlawful occupier has occupied 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 other organ of state or another
land owner for the relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and households headed by women.”
[19] Ex facie the provisions of the subsection, a Court seem s to possess a
discretion, once it forms an opinion that it is just and equitable to do so, to grant the
order. The question to consider is whether a Court possesses a wide or narrow
discretion in this regard. In Ndlovu v Ngcobo, Bekker and Another v Jika (Jika)8,
Harms JA stated the following:
“[18] The discretion is one in the wide and not narrow sense. A court of first
instance consequently, does not have a free hand to do whatever it wishes to do and
a court of appeal is not hamstrung by the traditional grounds of whether the court
exercised its discretion capriciously or upon wrong principle, or that it did not bring its
unbiased judgment to bear on the question, or that it acted without substantial
reasons . ”
[20] This Court agrees that the learned Acting Judge did not have a free hand to
do whatever she wished to do. Thus, this Court is not hamstrung to interfere with the
exercise of discretion apparent in subsection (7). Subsection (8) obligates a Court to grant an order for the eviction of an unlaw ful occupier. What will oblige a Court to do
so, is, (a) a satisfaction that all the requirements of the section have been complied
with; and (b) that no valid defence have been raised by the unlawful occupier. There can be no doubt in the mind of this Court that Mr Lefosa has not raised a valid defence in law to justify his continued unlawful occupation. The opaque question is
whether reference to “ all the requirements of the section have been complied with ”
made in subsection (8) , includes the requirements in subsection (7) or not.
8 2003 (1) SA 113 (SCA).
[21] To my mind, subsection (7) does not contain a list or tabulation of
requirements, which require any specific compliance by an applicant for an eviction
order . Grammatically, the word requirement, when used as a noun, means a thing
that is needed or wanted. What one observes from the subsection are factors that
may influence a Court to in its discretion grant an eviction order. Those are (a)
formation of an opinion that it is just and equitable to grant the order; and (b)
consideration of all the relevant ci rcumstances. These factors are, in my view,
conjoined. In order to formulate an opinion, all the relevant circumstances must have
been considered. In my view, circumstances do not mean requirements.
Grammatically, a circumstance means a fact or condition connected with or relevant
to an event or action. It is important to state that the relevant circumstances will be
those to be considered by a Court minded to grant an eviction order as opposed to refusal of an eviction order. Subsection (7) is couched in a permissive as opposed to
opposite manner. It permits , when properly interpreted, the grant as opposed to the
refusal of an eviction order. When regard is had to the text of section 25(1) of the Constitution, the default position must be one of granting as opposed to refusal of an
eviction order. When further regard is had to the preamble of the PIE , it is
incongruent to read into subsection (7) a refusal of an eviction order. A legally
permissible invasion into the common law right as guaranteed in section 25(1) of the
Constitution would be to delay the enjoyment of the right as opposed to a permanent
deprivation of the right.
[22] The fact whether land has been made available or can reasonably be made
available for the relocation of the unlawful occupier and the rights and needs of the
mentioned persons, is not a requirement but a circumstance that may be brought for
the consideration of a Court minded to grant the order of eviction. In my judgment,
subsection (7) cannot be read to mean that if an applicant is unable to show that a
land has been made available or is capable of being made available, such an
applicant must be non- suite d as if he or she failed to satisfy a Court that all the
requirements of the section have not been complied with. Subsections (7) and (8)
shares an inextricable relationship. On the question of onus, the Court in Jika had
the following to say: -
“[19] Another material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is entitled to approach the court
on the basis of ownership and the respondent’s unlawful occupation. Unless the
occupier opposes and discloses circumstances relevant to the eviction order, the
owner, in principle, will be entitled to an order for eviction. Relevant circumstances
are nearly without fail facts within the exclusive knowledge of the occupier and it
cannot be expected of an owner to negative in advance facts not known to him and
not in issue between the parties .”
[23] Clearly, once the owner proves ownership and the unlawful occupation, he or
she need not do more because in principle, he or she will be entitled to an eviction
order. The SCA in the matter of City of Johannesburg v Changing Tides 74 (Pty) Ltd
and Others (Changing Tides )9 acknowledged the relationship between subsections
(7) and (8) and concluded thus: -
“[25] A court hearing an application for eviction at the instance of a private person
or body , owing no obligation 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 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 all occupiers will ordinarily be limited in duration. Once the court decides
that there is no defence to the claim for eviction and 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 demand in relation to the date of implementation of 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.
9 2012 (6) SA 294 (SCA).
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 .”
[24] Discernibly, the Court in Changing Tides chose to name the provisions in
subsections (7) and (8) as enquiries as opposed to legal requirements. The labelling ,
is, in my considered view, apt. There are no legal requirements mentioned in those
subsections . In order to justify the granting and indeed the refusal of an eviction
order, there must be demonstration that an enquiry has been conducted by a Court.
The issue of alternative land and accommodation is a factor that resides in the
subsection (7) enquiry. Even though, the text of both subsection suggests two places
to make an order, there is a single order to be made after both enquiries have been
conducted. According to Changing Tides , the issue of being rendered homeless
arises only in the second enquiry contemplated in subsection (8). This Court is in
agreement that a consideration of any possible pleaded homelessness belongs to
implementation date stage, since it is only after the implementation date that
homelessness may enter the fray. That enquiry is directed to the implementation
date as opposed to the refusal of the eviction order.
[25] The Court below reached the following indefensible conclusion instead. It
concluded thus: -
“[38] However despite the finding of unlawful occupancy, in terms of section 4(8) of
the PIE Act I am not satisfied that all the requirements in section 4 have been
complied with. This conclusion is based on the finding that it is not just and equitable
to order the eviction of the first respondent and those who occupy the said property.
On the facts of this matter an eviction order will render the first respondent’s children
homeless. To order the eviction of the first respondent in the absence of the report
from the second respondent will be contrary to justice and equity”
[26] The conclusion reached by the Court below as exposed above is indefensible
because, it is predicated on two legs; namely (a) homeles sness; and (b) absence of
a report from the municipality, in the circumstances where there was no evidence led
by Mr Lefosa that he and his family will be rendered homeless. Being rendered homeless is different from being faced with the inevitable consequences of an
ejectment from a property. Being rendered homeless involves an inability by the
occupier to obtain alternative accommodation. An employed occupier must have resources to avoid homelessness. Regard being had to the main gripe of Mr Lefosa;
he was not rendered homeless at any given stage. He could avoid homelessness
and he submitted that much before us that he had acquired alternative
accommodation since two years ago. Nevertheless, it was the obligation of Mr
Lefosa to present evidence in support of being rendered homeless if the eviction order was granted. He failed to do so. In motion proceedings, affidavits serve two
purposes; first as pleadings and secondly as evidence. Having scoured the 17 page
answering affidavit of Mr Lefosa, nowhere does he allege that the eviction will render
him homeless. On the contrary, Mr Lefosa is not a man of straw. He managed to pay
an amount of R100 000.00 as a move- in deposit. On his version he afforded
instalments of R10 000 per month to defray the balance of the purchase price of
R800 000.
[27] Accordingly, the Court below erred in concluding that the children of Mr
Lefosa will be rendered homeless in the absence of any evidence to support that conclusion. On the strength of Changing Tides , which was a binding authority to the
Court below, the enquiry related to possible homelessness is directed to the question of the implementation date of the eviction as opposed to the granting of the eviction
order.
[28] It is apparent that the Court below, for reasons that are not altogether clear,
sought to single out the children of Mr Lefosa on the aspect of homeless ness.
Subsection 4(7) of the PIE refers to rights and needs of children. The rights of
children are guaranteed in section 28(1)(b) of the Constitution. The section affords
every child the right to, amongst others, family care or parental care. In my view, this
right implies that a responsible parent must provide a child with a shelter or home. A
child is incapable of providing for himself or herself a shelter or home. To my mind, a
child is rendered homeless only if the responsible parent fails to provide a home or
shelter for that child. Section 18(2)(a) of the Children’s Act
10 provides that one of the
responsibilities of a parent is to care for the child. In terms of section 1 of the
10 Act 38 of 2005 as amended.
Children’s Act, care in relation to a child, includes, where appropriate, within
available means, providing that child with, amongst others, a suitable place to live. As indicated, providing the child with a suitable place to live, is the responsibility of a parent. With respect, a landowner, has no legal obligation to provide a child with a
place to live.
[29] To my mind, it is a wrong interpretation of subsection 4(7) of the PIE to single
out a child from an unlawful occupier parent. Once a parent is in unlawful
occupation, so is the child. A child should not be painted with a different brush, and
say, as the Court below said, his or her homelessness deserve a stronger protection
than that of the unlawful occupying parent. Unless there is cogent evidence to
demonstrate that an unlawful occupier parent is unable to care for the child, it
remains the legal duty of a parent to provide suitable place to live. In casu , there was
no evidence by Mr Lefosa that he is unable to provide his children with a suitable place to live. On the other hand, section 26(1) of the Constitution guarantees
everyone the right to have access to adequate housing. Arguably, everyone,
although doubtful , given the content of the right, may include a child. However, the
right is limited to having access as opposed to being provided a home. The
responsibility to provide that access lies on the state as opposed to a private land owner . The Housing Act
11 is a legislation passed in recognition of the rights in
section 26 of the Constitution. Section 2(1)(a) of the Housing Act, is very specific, it concerns itself with giving priority to the needs of the poor in respect of housing development as defined in section 1 of the Housing Act. There was no evidence provided before the Court below to demonstrate any poverty.
[30] Needs are not rights. A need, is a necessit y, which is the state of being
required. Thus, when taking into account the needs of children, a Court hearing an
eviction application must be appraised of what those needs are. In other words, evidence must be led, firstly indicating what the specific needs are, and secondly
demonstrate that those needs will be jeopardised when recognition is given to the common law rights of a landowner. In casu , there was no iota of evidence
11 Act 107 of 1997 as amended.
demonstrating the needs of those children or demonstrating the manner in which the
exercise of the common law right s would jeopardise those needs.
[31] Turning to second reason of the lack of report, this Court categorically states
that the availability of a report by a municipality is not a legal requirement to obtain
an eviction order. In Drakenstein Municipality v Hendricks and Others 12 the Court
confirmed that there is no general duty on a municipality to report in all cases bef ore
an eviction order may issue. In Absa Bank Limited v Murray and Another 13 an order
was issued in the absence of a municipality report. When regard is had to the
provisions of subsection (7), the issue of the availability of land, it being made
available, or reasonably being made available falls squarely on the shoulders of
three bodies; namely; (a) the municipality; (b) organ of state; or (c) another land
owner. That being so, why is it not a requirement that a report must be obtained from
the organ of state or another land owner before it could be considered just and
equitable to order eviction. To my mind, it just seem s illogical to expect from a private
owner a report from a municipality, in the circumstances where a private individual has no obligation to provide access to housing within the contemplation of section 26
of the Constitution.
[32] In practical terms, if a Court requires a report from a municipality, a Court may
hold back the issuance of an eviction order until the municipality as ordered by it
presents a report. However, there is simply no justification in law to dismiss an
application for eviction on the basis that a municipal report is unavailable. Perhaps in
an eviction at the instance of organ of state, section 6(3)(c) of the PIE may compel a
municipality to provide a Court with a report with regard to the availability to the unlawful occupier of a suitable alternative accommodation. In casu , the appellant
only had a legal obligation to establish (a) ownership and (b) unlawful occupation in
order to obtain an eviction order . It then becomes the duty of the Court hearing an
application from a private individual to conduct the enquiries mentioned in Changing Tides and not to impose, as it were, an additional unl egislated burden on the owner,
whose rights are constitutionally protected, to prove the unknown and negatives.
12 (A254/2009) [2009] ZAWCHC 228 (15 December 2009).
13 2004 (2) SA 15 (C).
Such an imposition of a burden is at odds with the letter and spirit of subsections (7)
and (8) of the PIE when appropriately interpreted.
Conclusions
[33] For all the above reasons, the appeal must be upheld since the Court below
erred in dismissing the eviction application. As commanded by subsection (8), the
Court below was obligated to grant an eviction order since Mr Lefosa had no valid
defence and all the requirements of section 4 were complied with. It is always just,
equitable and fair to set a vacation date within a period which will enable the unlawful
occupier to vacate with dignity and in the interim period obtain alternative
accommodation, if ther e is evidence of available means to do so. For that reason,
this Court is minded to allow Mr Lefosa to vacate the property within a period of 30
days from the date of its order.
Order
[34] For all the above reasons, I propose to make the following order :
1. The late filing of the notice of appeal is hereby condoned.
2. The application to condone the late filing of the notice of cross -appeal
is hereby dismissed.
3. The appeal is upheld and the order s dismissing the eviction application
together with that of each party to bear its own costs are set aside and
are replaced with the following orders: -
3.1 The First Respondent (Mr Lefosa) and all those who occupy the premises known as Unit 6[...], C[...] C[...], T[...] Road,
Ormonde, Extension 28, Johannesburg (“the property” ) by
virtue of the First Respondent’s occupancy thereof, including the
First Respondent’s employees, if any, be and are hereby evicted
from the property within 30 (thirty ) days of service of this order;
3.2 In the event that the First Respondent and all those who occupy the property under or by virtue of the First Respondent’s occupancy thereof, refuse to vacate the property within the period stated above, the Sherriff of this Court and or his Deputy be and is hereby authorised to forthwith enter upon the property
and to evict the First Respondent and all those who occupy the
property under and by virtue of their occupancy thereof;
3.3 The First Respondent to pay the costs of the eviction application as well as the costs of this appeal on a scale of party and party to be taxed or settled on scale B.
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I AGREE AND IT IS SO ORDERED)
H KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I AGREE AND IT IS SO ORDERED)
N GCAWU- DAMBUZA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I AGREE AND IT IS SO ORDERED)
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e- mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand- down is deemed to be 31 January 2025.
APPEARANCES:
For the Appellant : Mr M Jacobs
Instructed by: Vezi & de Beer Inc, Pretoria
For the Respondent: In Person (Mr Lefosa)
Date of the hearing: 20 January 2025
Date of judgment: 31 January 2025