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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case Number : 025803/25
In the matter between:
In the matter between:
KGOBE MADIMETJA Applicant
and
THE UNLAWFUL OCCUPIERS OF THE First Respondent
REMAINING EXTENT OF ERF 5 […]
CITY AND SUBURBAN
THE CITY OF JOHANNESBURG Second Respondent
MINISTER OF HUMAN SETTLEMENTS Third Respondent
JUDGMENT
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
_________________________
DATE SIGNATURE
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MANOIM J
[1] This matter is brought by Mr Madimetja in his capacity as the only remaining
trustee of the Marshall House Property Trust. The Trust owns a property situated at
2[…] M[…] Street, Erf No 5 […] City and Suburban, Johannesburg. I will refer to this
building as the P roperty.
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[2] The Trust seeks to remove the first respondent s, described as the unlawful
occupiers , from the P roperty by way of an interim interdict to another building owned
by the Trust in Bertrams. The Trust requires that the City pay the costs of the
transport to Bertrams. In Part B of the order , to be heard on the return day , the Trust
seeks to have the order made final. The Trust also seeks an order on the City to
compel to file a report on how it intends to accommodate the occupiers.
[3] The first respondent whom I shall refer to as the occupiers are legally
represented in these proceedings and oppose the relief. The City has n either
opposed or abided.
[4] I have used the word remove advisedly. The Trust claims it is not ‘ evicting ’ the
occupiers but ‘evacuating’ them . Of course, this might seem to be linguistic nicety
since both result in the occupiers being removed from the Property. But this is not so.
The choice of term has juristic implications since different statutes apply depending
on whether the action taken is an evacuation or an eviction.
[5] The Trust is seeking to remove the occupants , not by relying on the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
(PIE), which is what property owners normally have to rely for an eviction, but
instead seeks to rely the National Building Regulations and Building Standards Act,
1977 (Act No. 103 of 1977) ( the Act) and its regulations . That Act regulates
evac uations from a property , not on the basis of u nlawful occupation, but instead on
the safety of occupants be they present lawfully or unlawfully . Nor does it require
1 A challenge was made to the locus standi of Madimetja and the Trust to bring the action, but I
consider this point was of no substance. The were only two trustees of the trust but one has resigned.
The latter gave an affidavit to confirm this but nevertheless indicated his support of the application.
Madimet ja also attached the title deeds for the property indicating it is owned by the Trust.
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determination of whether the removal of the occupiers is just and equitable or a
weighing of hardship to the owner and occupier respectively.
[6] The question in this case is whether the Trust can rely on that section to
remove the occupiers from the property instead of proceeding in terms of PIE.
Background
[7] The Trust explains that th e Property was originally a warehouse but has been
unlawfully converted into residential flats by hijackers without the submission of
plans to the City for evaluation and approval. It now houses approximately 200
people.
[8] It has now fallen into disrepair. This is not just the Trust’s opinion. On 25
November 2024 various departments of the City and officials conducted an
inspection of the building. Following the inspection the City’s Emergency Services
officials compiled a report. They concluded that the building on the Property poses
various health and safety risks to the occupier s and recommended that the Property
be evacuated immediatel y.
[9] It is important to note the status of this report. It describes its objective as
follows:
“OBJECTIVE The objective of this report is to inform the Public Safety Section
79 Committee of the contraventions at bad building Marshall House Building
Stand No.5[ …] situated at 2[ …] M[…] Street City and S uburban
Johannesburg inspected by JMPD, EMS and MMC on the 25th of November 2024 that need im mediate attention or closure. ”
[10] This report forms the basis for the Trust ’s reliance on the enforcement
provisions of the Act . But the report , as the above quotation indicates, is no more
than a recommendation to the relevant Committee of the City. But section 12(4)
which the Trust relies on, requires a notice to the owner , not merely a report from
one of its entities to its officials. I set out the relevant provision:
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(12)(4) If the local authority in question deems it necessary for the safety of
any person, it may by notice in writing, served by post or delivered-
(a) order the owner of any building to remove, within the period specified in such notice, all persons occupying or working or being for any other purpose in such building there from, and to take care that any person not authorized by such local authority does not enter such building;
(b) order any person occupying or working or being for any other purpose in
any building, to vacate such building immediately or within a period specified
in such notice.
[11] The provisions of the Act are echoed in the Regulations which the Trust also
seeks to place reliance on. Regulation A 15(4) states:
"The local authority, may, by notice, in writing to the owner, order the evacuation of such building where the state of such building, equipment, installation, or facility will cause conditions which in the opinion of the local
authority, may be detrimental to the safety or health of the occupiers or users
of such building."
[12] There is no evidence in the record that such a notice has been given to the
Trust either in terms of the Act, or the regulation. Counsel for the application
conceded this but sought to argue that the Report could constitute such a notice.
Unfortunately for the reason I explained it does not constitute a notice. A notice is not
a mere formality. It requires the relevant functionary to have applied his/her mind to the issue and then to issue a notice which inter alia requires the owner to indicate the period in which the relevant persons must be removed.
[13] If that is the case, then the Trust cannot rely on that provision or its mirror
image in the regulations to base this application on. It must either procure such a notice from the City , which regrettably despite being a respondent , and its own
officials ’ alarming report , has remained passive in the litigation . The other choice for
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the Trust is to act in terms of section 5(1 ) of PIE which provides such a situation of
emergency, but which requires the procedures of that Act to be followed. 2
“5. (1) Notwithstanding the provisions of section 4, the owner or person in
charge of land may institute urgent proceedings for the eviction of an unlawful
occupier of that land pending the outcome of proceedings for a final order,
and the court may grant such an order if it is satisfied that —
(a) there is a real and imminent danger of substantial injury or damage to any
person or property if the unlawful occupier is not forthwith evicted from the
land;
(b) the likely hardship to the owner or any other affected person if an order for
eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted;
And
(c) there is no other effective remedy available. ”
[14] Section 5(2) of PIE then sets out the procedure for such an application which
requires a court authorised prior notice to be given to the occupiers . This safeguard
is significant and because PIE has not been followed in this case, this has been
denied to the occupiers.
[15] It is not necessary for me then to consider any of the other issues in this case
raised by the representatives of the occupiers as this is the crisp issue. Of course,
the occupants could leave voluntarily given that they have been offered
accommodation for free in the neighbourhood and in the view of the Trust , is superior
in every respect. It does not appear that anyone representing the Occupiers has ever
looked at the alternative accommodation instead they have quibbled with every
2 I was advised from the Bar that such an application had been brough earlier this year but not
persisted with for reasons that are disputed between the applicant and the first respondent. I need not
take this issue further.
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technical point imaginable except the one I have had to decide this case on. Nor do
they appear to have consulted with anyone other than the deponent to the answering
affidavit . She claims to represent them all, but this is by no means clear. Attached to
her affidavit is a handwritten list of names of 196 people with the place for signatures
next to their names left blank . The list appears to be all in the same handwriting. If
this was meant to show she was authorised by all of them to oppose the application,
it is unconvincing . For this reason, even though I have dismissed the claim I do not
consider that costs of any more than that of a single respondent on scale B are
warranted.
ORDER
1. The application is dismissed.
2. The applicant is liable for the costs of the first respondent , but limited to
the costs occasioned by a single person as a respondent, on a party and
party Scale B.
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: K Maupa instructed by EMG Attorneys
For the First Respondent: L Mhlanga instructed by Muleya Attorneys
Date of hearing: 14 March 2025
Date of Judgement: 19 March 2025