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)
REPORTA BLE
Appeal case number: A216/2024
Case Number : 21188/2023
In the matter between
A[...] P[...] FIRST APPELLANT
ALL OTHER OCCUPIERS SECOND APPELLANT
and
GERALD COHEN FIRST RESPONDENT
LESLIE COHEN SECOND RESPONDENT
CITY OF CAPE TOWN THIRD RESPONDENT
JUDGMENT
Date of hearing: 22 and 24 January 2025
Date of judgment: 24 February 2025 – Electronically delivered
Coram: Erasmus J, Lekhuleni J , Bhoopchand AJ
THE COURT:
1. Tread not the tenuous tightrope of evictions unless a ll is known of the rope, its
strength at the centre where balance is required without falling to either side .
For it’s the perch in that distraught divide that determines justice and equity to
either side . A task requiring wisdom and skill , ensuring dignity in the exit of
one and nurturing patience in the other till justice be seen to be done.
2. This appeal concerns the Court's obligations generally and under sections
4(7) and (8) of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (“PIE”) before it grants an eviction order . The
application of these sections of PIE is not discretionary1, even in evictions
from privately owned residential properties2. The Appellants were the First and
Second Respondents in the Court a quo , but the parties shall be referred to as
cited in th is appeal .3 The First Appellant, Ms A[...] P[...], and two children4
occu py the First Respondent ’s sectional title scheme unit, Flat […] B[…]
W[…], 3[…] B[…] Road, Sea Point (“the apartment”) . The City of Cape Town
(“the City”), a metropolitan municipality, is cited as the Third Respondent .5
3. On 15 March 2024, t he Court a quo , sitting as the motion court hearing
unopposed matters in this division , ordered the Appellants' eviction from the
apartment . The Appellants were granted leave to appeal that order to this Full
Bench on 31 July 2024.
BACKGROUND FACTS
1 Machele v Mailula [2009] ZACC 7 ; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC) at para 15
(“Machele ”)
2 Ndlovu v Ngcobo; Bekker v Jika 2002 4 All SA 384 (SCA) (“ Ndlovu ”), and many cases that
have followed over twenty -two years.
3 Submissions made on behalf of the parties shall be attributed to them.
4 The two minor children were cited as the Second Respondent . There were no other unlawful
occupants .
5 The City did not participate in either the eviction application or this appeal. The collective
references to the Respondents in this judgment do not include the City.
4. On 30 August 202 2, the Second Respondent, the wife of the First
Respondent, who manages the apartment on his behalf, agreed to lease it to
the First Appellant for one year. The rent payable was R9200 per month. After
the lease lapsed o n 30 August 202 3, the First Appellant continued to reside in
the apartment . The parties agreed that the rental would increase to R10 000
per month from 1 October 2023. The First Appellant failed to pay rent for
October and November 2023. The Second Respondent alleged that she was
entitled to cancel the lease agreement upon breach and failure to rectify the
breach upon notice. The Second Respondent issued a letter of demand for
the outstanding rental on 1 November 2023. The First Appellant failed to pay
the outstanding rent . The Second Respondent cancelled the lease on 14
November 2023. The Appellant s did not vacate the apartment.
5. The Respondents are pensioners. The Second Respondent alleged they
relied on rental income to cover their living expenses. The First Respondent’s
ill health, which included three major strokes, increased their expenses. They
have had to cover the municipal accounts and costs relating to the apartment .
6. The Second Respondent provided a brief statement about the Appellants in
her affidavit . She stated that the First Appellant was an employed engineer .
Two minors lived in the apartment , and there were no sick or elderly persons
present . There was no additional information about the First Appellant or the
two minor children. Without further supporting details, the Second Respondent
asserted that the Appellant s would not be left destitute if the eviction
application were granted.
7. The Respondents commenced the section 4 PIE proceedings to evict the
Appellants on 30 November 2023. They served their Section 4(1) and
Uniform Rule 6 notices and papers . The notice included the notice of motion
and the founding affidavit of the Second Respondent , supported by various
documents. The attached documents comprised the title deed of the
apartment, the lease agreement , a note of outstanding rental from 1 June
2023 to 1 November 2023 totalling R31 600 , a letter of demand dated 1
November 2023, the Sheriff’s notice of service of the letter dated 1 November
2023 , the letter of lease cancellation dated 14 November 2023 , a confirmatory
affidavit of the First Respondent a nd the Sheriff’s service of the notice of
motion on the Appellant s and the City .
8. The notice further informed the Appellants that the proceedings were instituted
in terms of section 4(1) of PIE, that they were in unlawful occupation and
possession of the apartment without the Appellant’s consent or any right in
law thereto, that the First Appellant failed to make mont hly rental payments ,
the lease was cancelled, and that the First Appellant failed to vacate the
premises when requested to do so . The Appellants were informed of the ir
Section 26 constitutional rights to housing , their right to be legally
represented , and to apply for legal aid if they could not afford legal
representation. The street address and telephone number of Legal Aid, South
Africa's local offices , were provided. The Appellants were als o informed of
their right to be present at the hearing and to communicate their
circumstances relevant to the envisaged application for eviction .
9. On 17 January 2024 , a section 4(2) notice was issued , informing the
Appellants of a Court hearing on 28 February 2024 at 10h00. The
Respondents sought orders for the Appellants' eviction, a just and equitable
date for them to vacate, and a date to effect the eviction if the Appellants had
failed to leave. The Respondents sought the costs of the applicatio n from the
Appellants. They summarised the grounds for the proposed eviction, namely
the cancellation of the lease agreement due to non -payment of rental and the
Appellants' unlawful occupation of the apartment . The Appellants were
informed that they were entitle d to defend the application. The order
emanating from the ex parte application seeking directions from the Court was
granted on 23 January 2024 and served on the First Appellant on 5 February
2024.
THE EVICTION ORDER
10. The Appellants did not file a notice of opposition. The matter was first heard
on the unopposed motion roll on 28 February 2024. The First Appellant
appeared , indicating that she could not speak due to ill health. She
communicated in a note to the Respondent’s Counsel that “she wishes to
speak and obtain legal representation”. The matter was postponed by
agreement between the parties to the unopposed motion Court of 15 March
2024 (“the Cou rt a quo” ) to allow the First Appellant to secure legal
representation. The matter proceeded on 15 March 2024 , with the First
Appellant appearing once more without legal representation.
11. The Court a quo asked the Respondents ’ Counsel whether the parties had
reached any agreement. He conveyed that the Respondents were amenable ,
but there was no agreement . The Court then addressed the First Appellant ,
enquiring what she wanted to convey. The First Appellant offered an
incoherent explanation for her previous inability to speak and briefly explained
the note she handed to the Respondents’ Counsel on 28 February 2024 about
why she appeared unrepresented. She said she h ad come to speak and
would consult her lawyer if anything transpired. When asked about her
defence against the application for her eviction , the First Appellant spoke of
her conversation with the Second Respondent. The Second Respondent
mentione d her advancing age and that an agent was managing the
apartment. The First Appellant said she paid over monies twice and had to
borrow from others. The transcript does not clearly capture the Appellant’s
meaning.
12. The Court had difficulty understanding the First Appellant’s submissions on
the double payment. The Court reminded the First Appellant that she had
been informed of the pending eviction application and had not defended the
matter . The Court asked the First Appellant to explain the basis upon which
she believed she could remain in the apartment. The First Appellant referred
to the agent mentioned in the preceding paragraph , who had informed her she
could pay him (presumably the outstanding ren t) as she saw fit. The Court
then suggested that the First Appellant could not stay in a property for which
she did not pay. The First Appellant protested that she had paid a certain
amount , but the Second Respondent had cancelled her Wi-Fi and DSTV since
the Appellants were using data.
13. The Court further reminded the First Appellant that she was allowed to obtain
legal representation during the hearing on 28 February 2024 , which she failed
to do. The First Appellant could not compel the owner to retain her in a
property, especially as they had adhered to the correct procedure for her
eviction. The First Appellant re sponded that she had intended to present
herself at the hearing and would subsequen tly consult with her lawyers. She
alleged that the Second Respondent was aware she would not attend the
hearing with a lawyer. The Court then decided to proceed with the
application.6
14. The Court a quo ordered the Appellants to vacate the apartment by 30 April
2024, failing which the Sheriff would evict them on or after 2 Ma y 2024. In
effect, t he Court a quo gave the Appellants six weeks to vacate the property.
15. This Court considers it app ropriate to make certain observations from the
transcript of the two proceedings before the unopposed motion Courts .
Neither Court enquired about the language preferences of the unrepresented
First Appellant before addressing the application. The Court of 28 February
2024 did not explain the First Appellant’s right to legal representation when it
granted the order by agreement. The Court of 15 March 2024 assumed that
the earlier Court had clarified the right to legal representation when it stated :
“…the Judge would have explained that to you , and I am going ahead ”. The
second Court proceeded with the application on th at basis.7 The Second
Court did not enquire about the First Appellant ’s personal circumstances
beyond the limited interaction on her finances , nor did it ask any questions
about the minor children or whether the eviction would render the Appellants
homeless .
6 The First Appellant’ s interaction with the Court was by no means clear. It took effort to make
sense of what she was saying .
7 Record at page 91a
THE REASONS FOR THE JUDGMENT AND THE APPLICATION FOR LEAVE TO
APPEAL
16. The First Appellant consulted her attorney on 29 April 2024 , one day before
the Appellants were required to vacate the apartment . On 30 April 2024, the
Appellants filed their late application requesting reasons for the eviction order
and seeking leave to appeal. They also requested condonation for the late
filing of their applications. The grounds of appeal were threefold : firstly, that
the Court a quo had failed to allow the First Appellant to respond to the
Respondents’ eviction application ; secondly, that the Court did not consider
whether the eviction would be just and equitable, whether it would render
them homeless , and whether they qualified for emergency or alternative
accommodation from the City; and thirdly, that the Court overlooked the
interests of the minor children .
17. The Court a quo supplied written reasons on 13 May 2024. The reasons
aligned with the transcript of the proceedings summarised earlier and the
content of the Respondent's papers. The Court refer enced , among others,
that the First Appellant is an engineer and is employed and that there were no
elderly or infirm persons living in the apartment . The Court mentioned the
Second Respondent ’s allegation that the First Appellant could obtain suitable
alternative accommodation and would not be left destitute if an order for
eviction were granted. The First Appellant did not dispute the allegations
concerning her rent and appeared to suggest that her payments were not in
arrears. Neither did the First Appellant dispute the Second Respondent’s
allegations about the First Appellant's personal circumstances . The Court held
that it was just and equitable for the eviction order to be granted.
18. The Appellants filed their amended notice of application for leave to appeal on
24 July 2024. They substituted the first ground of appeal, i.e., the Court’s
failure to allow the F irst Appellant to respond to the application, with the
ground that the Court failed to recognise the need to appoint an interpreter to
enable the First Appellant to participate effectively and meaningfully in the
proceedings. The Appellan ts retained the two remaining grounds of appeal.
19. The Court delivered its judgment on leave to appeal on 31 July 2024 . It
reviewed the proceedings in Court , and aspects already addressed shall not
be repeated. The Court noted that it adjudicated an unopposed eviction
application under PIE in a busy motion roll . The earlier motion Court had
postponed t he application t o allow the First Appellant to obtain legal
representation. The First Appellant had been informed of her rights and where
to access legal assistance , but she did not avail herself of th at opportunity .
20. The Court a quo referred to the challenges of accommodating unlawful
occupants like the First Appellant. The City invariably offered a ffordable
housing that did not meet the standard the First Appellant was accustomed to.
The First Appellant did not dispute that she was an engineer residing in an
apartment with two minor children under her care. The Court acknowledged
that the First Appellant could have been permitted to complete the City’s
housing questionnaire. The Court had not considered the City’s housing
report. Furthermore, the Court was not informed whether the Appellants had
approached the City for a questionnaire or whether one was provided to her.
21. The Court recognised its duty to investigate the occupier's circumstances to
determine whether an eviction is just and equitable. H owever, the personal
circumstances of the Appellants p resented to the Court (by the Respondents)
were not challenged either in writing or orally by the First Appellant. The Court
accepted the Respondent’s allegations regarding her employment as an
engineer. The First Appellant had the opportunity to inform the Court about her
minor children but chose not to do so. Additionally, the First Appellant did not
address the duration for which she believed she could remain in the
apartm ent. Furthermore, t he First Appellant could engage with t he Court in
English .
22. The Court a quo summarised the First Appellant’s submissions. She had
experienced financial difficulties ; the agent of the Respondent had given her
an extension of time to pay , and she sa id that she would like to remain in the
apartment and pay until her financial situation improves . The Court indicated
that th is was not a valid basis for allowing an unlawful occupier to remain on
the premises in a PIE application . It acknowledged that it had not directly
address ed any specific questions to the First Appellant aside from her
financial circumstances. The Court did not enquire about her personal
circumstances, which it may not have been unaware of, and there was no
report from the City. There was no indication that the Respondents’ legal
representative provided the First Appellant with a questionnaire to complete
nor that she failed to complete one if it was provided . The Court referenced
other unlawful occupiers, often given questionnaires by the party initiating an
eviction application, as the City cannot provide a report without a completed
questionnaire. The Court accepted that there had not been complian ce with
the requirement regarding alternative accommodation.
23. The Court a quo concluded that there was a reasonable prospect of another
Court reaching a different conclusion, granted the Appellants leave to appeal
and ordered that costs would be the costs in the appeal.
THE LEGAL PRINCIPLES APPLICABLE TO THIS APPEAL
24. After establishing that the occupier is in unlawful occupation , the Court
hearing an eviction application exercises a wide discretion in two respects:
first, whether or not to grant an eviction order, and second, the date by which
the occupied property has to be vacated .8 The Court of Appeal is not
constrained by the traditional grounds of whether the court exercised its
discretion capriciously or based on a wrong principle, did not apply its
unbiased judgment to bear on the question, or acted without substantial
reasons .9
25. The Appellants initially occupied the apartment under a fixed -term lease ,
which subsequently became periodic after its expiration . The lease was
terminated due to non -payment of rent , making the Appellants' possession of
8 Ndlovu , supra at para 13
9 Ex parte Neethling and Others 1951 (4) SA 331 (A) 335E, Administrators, Estate Richards v
Nichol and Another [1998] ZASCA 82 ; 1999 (1) SA 551 (SCA) 561C -F, Ndlovu id.
the apartment unlawful. This holding over would have constituted a crime and
entitled the Respondents to an ejectment order under the common law .10 The
Respondent's common law right must now yield to t he PIE eviction
procedure.11 The Constitution mandates that evictions be just and equitable to
ensure social justice.12
26. The “just and equitable” principle ensures fairness and justice in adjudicating
constitutional rights. Courts weigh the owner’s interests against those of the
unlawful occupier, taking into account each party's circumstances .13 This
requires a broad perspective, much wider than a purely legalistic approach .
The Court factors morality, fairness, social values, and other relevant aspects
to reach an equitable judgment.14
27. Section s 4(6), (7), and (8) of PIE outline circumstances relevant to the
unlawful occupier . They are not exhaustive and should be considered on a
case -by-case basis. The Court is obliged to consider the rights and needs of
vulnerable groups such as the elderly, children, disabled persons, and female -
headed households . It should evaluate whether an eviction would lead to
homeless ness and whether alternative accommodation is available. Additional
factors include the validity of defences raised, the length of occupation and
appropriate eviction date s.
10 A comprehensive analysis of the origins, remedies, and constitutional impa ct of the claim for
holding over is contained in two papers, namely: The Nature of the claim for holding over: a historical
analysis, L Hawthorne, Fundamina 16 (1) 2010 ISSN: Print 1021 -545x, Unisa Press pp 153 –163, The
nature of the claim for holding over : South African Law, L Hawthorne, Fundamina 16 (2) 2010 ISSN:
Print 1021 -545X, Unisa Press pp 52 –63. See also: London and South African Exploration Company,
Ltd v Moodoodoodam, 1886 HCG 305 and Nicholson v Myburgh (1897) 14 SC 384., the earliest
cases on t he subject. Sapro v Schlinkman 1948 (2) SA 637 (AD)) concerns a case of holding over
where a lessee breaches the agreement.
11 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7 ; 2005 (1) SA 217 (CC); 2004
(12) BCLR 1268 (CC) at para 12 (“ Port Elizabeth Municipality ”)
12 Port Elizabeth Municipality supra
13 Malan v City of Cape Town [2014] ZACC 25 (“ Malan ”)at para 83
14 Port Elizabeth Municipality at para 33 citing Port Elizabeth Municipality v Peoples Dialogue on
Land and Shelter and Others
28. Section 4(1) of PIE st ipulates that section 4 applies to proceedings by an
owner or person in charge of land for the eviction of an unlawful occupier.15
The section 4 procedure can be systematically divided into three stages. The
first stage is the notification stage. Th e second stage involves the Court
considering the eviction application to assess its validity . The third stage
encompasses the execution of the actual eviction if the order is granted.
29. Section 25 of the Constitution guarantees the owner’ s right to property .
Section 28 of the Bill of Rights and the Children ’s Act protect children’s rights
to shelter, education, and legal representation . Section 30 of the Constitution
guarantees the ri ght to use the language of one’s choice.
30. The pervasive theme underlying a Court’s duty to issue a just and equitable
eviction order is the need for comprehensive information. The information
gathered informs two balancing acts that a Court must perform, one in the
second stage and the other in the third stage of the procedure.16 The
enquiries cannot be concluded until the Court is satisfied that it has all the
necessary information to make both findings and produce one order based on
justice and equity.”17 The requirements are inextricable, interlinked and
essential. If the Court does not possess all the relevant information , it must
not grant the order as an order thus granted would be arbitrary. 18 This
situation is unrelated to the unlawfulness of the occupation, as it occurs only
when the occupation is unlawful.19 The eviction procedure ensures that the
unlawful occupant exits with d ignity .
THE APPEAL
15 Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others (495/99) [2001]
ZASCA 87; [2001] 4 All SA 479 (A) (10 September 2001)
16 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116;
2012 (6) SA 294 (SCA); 2012 (11) BCLR 1206 (SCA); [2013] 1 All SA 8 (SCA) (14 Sept ember 2012)
at para 12 (“ Changing Tides ”) at para 25
17 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 ”) at para 45
18 Port Elizabeth Municipality supra at paras 32 and 58 -60; and Changing Tides supra at paras
26-7
19 Port Elizabeth Municipality supra at para 32, Berea at para 48
31. The Appellants appeal the Court a quo’s order on three grounds : its failure to
appoint an interpreter, its failure to inquire whether an eviction order would be
just and equitable and whether the eviction would render the Appellants
homeless , and its failure to consider the interests of the minor children
occupying the apartment.
32. The Appellant’s first gro und of appeal applies to all cases involving litigants
who cannot speak or understand the language used in Court , not solely to
unrepresented parties appearing in busy motion Courts to defend eviction
matters . They have the right to use a language that they understand, which
may necessarily require the services of an interpreter. This Division must raise
the standard to accommodate the language needs of multi -lingu al parties
using its courts. The absence of an interpreter in the unopposed motion Court
does not bode well for an institution that upholds constitutional rights , as there
are daily infringements of litigants’ rights to communicate in the language they
understand.
33. Much of the written submissions on behalf of the Appellants focussed on the
first ground of appeal concerning the Court a quo’s failure to appoint an
interpreter. The Appellants did not assert that the First Appellant could not
speak or understand English. This ground of appeal was not raised in the
Appellant’s initial notice for leave to appeal, where the primary complaint
pertained to the Court a quo’s failure to permit the A ppellants to answe r the
Respondents’ application. This Court acknowledges the Appellants' extensive
submissions couched in general terms regarding a litigant’s right to
communicate and be heard in their chosen language.
34. The proceedings before the Court a quo and the earlier motion Court hearing
the application did not commence with the customary enquiry about whether
the First Appellant understood or spoke English. The Appellants rely upon two
instances in the transcript to support the first ground of appeal . The Court a
quo comment ed that the First Appellant was not making sense. The transcript
also indicates that the Court had difficulty understanding the First Appellant’s
submissions.
35. The Respondents arg ued that if the Court is required to appoint an interpreter
for every unrepresented litigant to enable them to speak in their mother
tongue, i t would create a basis for appeal whenever the Court fails to appoint
one. They assert that this Court should refrain from micromanaging future
Courts. A Court of appeal should determine whether there is any perceived
language difficulty from the record. Did the person understand and converse,
and did they express themselves adequately and formulate a coherent
argument? They suggest further that the enquiry about language preferences
may be perceived as an insult to a litigant. The Respondents ’ argument
detracts from choosing a Court language in a context with multiple official
languages . The right to speak the language of one’s choice in a specialised
court environment may have significant repercussions for the litigant unversed
in English.
36. The Respondents contend that the record does not support the First
Appellant ’s assertion that an interpreter should have been provided or that the
First Appellant did not understand the Court proceedings or the content of
their papers, which outlined her rights. The Respondents submitted that the
First Appellant was an employed engineer, suggesting that she possessed a
tertiary level of education.20 The First Appellant entered into a lease
agreement drafted in En glish. She signed the affidavit supporting the
application for condonation of the late filing of her application for leave to
appeal. She swore under oath that she understood the contents written in
English. The Respondents sought to differentiate the Firs t Appellant’s
command of English from the unlawful occupiers in the renowned case
concerning the procedural aspects of PIE . The unlawful occupiers, in that
matter, spoke X hosa alone and were illiterate.21
37. This Court unequivocally accepts the submissions made on behalf of the First
Appellant regarding language sensitivities. It also accepts that parties not
20 This Court confirmed that the First Appellant was indeed an employed engineer.
21 Cape Killarney Property Investments (Pty) Ltd v Mahamba & Others 2000 (2) SA 67 (C ).
conversant in English have the right to be served with court processes in a
language they speak and to be assisted by an interpreter during Court
proceedings. The accepted practice in this Court is for the judicial officer to
ask, at the outset, whether the unrepresent ed litigant understands and speaks
English . The Court a quo , and the earlier Court erred by failing to ask this
question . However, that does not imply that this Court agrees that an
interpreter should have been appointed in this case . It would be ideal , if not
necessary, to have an interpreter present in a busy motion Court .
38. It is incumbent upon a Court to probe a party’ s ability to understand a
language if the Court has difficulties understanding a party’s submissions. It is,
however, incumbent upon the party to inform the Court at the outset that they
do not understand the language used by the Court or do not comprehend the
questions put to them and would prefer an interpreter to translate or interpret
for them. An examination of the transcript does not suggest that the First
Appellant could not converse in English or understand the questions asked of
her during her limited interaction with the Court a quo . The evidence available
to this Court is insufficient to either confirm or contradict the inferences drawn
by the parties . This Court need not decide on the first ground of appeal , as
there is considerable merit in the other grounds.
39. This Court does stress though, that where a person’s constitutional right is at
stake, it becomes impe rative for Courts to ensure that the unrepresented
litigant understands the proceedings and can meaningfully and effectively
participate in the proceedings. The Court may not simply assume that those
who appear before it can easily express themselves in English. A Court
environment is somewhat intimidating, especially a packed motion Court with
various robed practitioners from different backgrounds.
THE SECOND GROUND OF APPEAL
40. The Appellants' second ground of appeal concerns the failure of the Court a
quo to determine whether its eviction order would be just and equitable and
whether the eviction would render the Appellants homeless. This ground of
appeal includes two enquiries : first , whether the Court had all the relevant
circumstances at its disposal to make a just and equitable eviction order under
section s 4(7) and (8) and whether the eviction itself under section 4 (8) would
have left the Appellants homeless . Section 4(7) applies to the first enquiry as
the Appellants occupied the apartment for over six months on the day the
eviction application commenced.22 The lease agreement commenced on 30
August 2022 , and the eviction application was filed on 20 November 2023. 23
41. Section 4(7) of PIE needs to be repeated to assess the Court a quo’s
obligations under PIE.
“If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated, a c ourt 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 of execution pursuant to a mortgage, whether the 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 house holds headed by women.”
22 The majority judgment of the Supreme Court of Appeal (SCA) in Ndlovu states, "The period of
the occupation is calculated from the date the occupation becomes unlawful.’ (paragraph 17). All of
sections 4(6), 4(7), and 4(9) of PIE refer to the period the unlawful occupier has occupied the land.
The textual interpretation indi cates that unlawfulness qualifies the occupier and not the period of
occupation. The context and purpose suggest that the period of occupation relates to the extent of
upheaval an order of eviction would entail for the unlawful occupiers, e.g., transferrin g of children from
one school to another, access to medical facilities, the extent to which the unlawful occupier has
settled in the community and the time it would take to uproot and resettle elsewhere.
23 The lease reflects the commencement and termination dates in the incorrect order. In Port
Elizabeth Municipality , the Constitutiona l Court stated that justice and equity require the Court to be
considerate of settled communities or individuals facing displacement. The longer a person occupies
a property, the more established they are in the neighbourhood, the more well -settled their h omes and
the more integrated they are in employment, schooling and enjoyment of social amenities, the greater
their claim to the protection of the Courts. A Court will be far more cautious in evicting well -settled
families with strong local ties than perso ns who have recently moved onto land and erected their
shelters there. Should it be decided that eviction is called for in the former case, it will be especially
important to ensure that equitable arrangements are made to diminish the negative impact of ev iction
(para 27) .
42. The s ection 4(8) enquiry follows only if the Court has considered all the
relevant circumstances and is satisfied that an eviction is just and equitable:
“If the court is satisfied that all the requirements of this section have been
complied with and that the unlawful occupier has raised no valid defence, it
must grant an order for the eviction of the unlawful occupier and determine a
just and equitable date on which the unlawful occupier must vacate the land
under the circumstances; and the date on which an eviction order may be
carried out if the unlawful occupier has not vacated the land on the date
contemplated in paragraph (a). In determining a just and equitable date
contemplated in subsection (8), the court must have regard to all relevant
factors, including the period the unlawful occupier and his or her family have
resided on the land in question.”
43. The Appellants relied on the reasons given by th e Court a quo and the
transcript of the motion Court proceedings to support this ground of appeal .
Section 4(7) obliged the Court to consider the rights and needs of the elderly,
children, disabled persons and households headed by women , as well as
whether the eviction order would leave the Appellants homeless . The Court a
quo had access to the circumstances of the Respondents. All it knew of the
Appellants was the limited information gathered during its interaction with the
First Appellant and the terse statement about them in the Second
Respondent’s founding affidavit. The Second Respondent alleged that the
First Appellant was an employed engineer, and there were two minors but no
sick or elderly persons in the apartment.
44. The Court a quo did not confirm whether this was a household headed by the
First Appellant, nor did it clarify details regarding her employment, access to
her workplace, and access to essential conveniences, among other things .
The Court also failed to enquire whether the First Appellant or her children
needed emergency or alternative accommodation should it grant the eviction
order. Our Courts have faced criticism for not adopting a gender -sensitive
approach to housing and evictions.24 Finding alternative accommodation,
accessing transport to work, the risk of losing employment, and the sole
responsibility to attend to household duties, provide for dependents, care for
their needs, and ensure their safety are some of the challenges that a female -
headed household would encounter when relocating to a new home.
45. The Appellants' argument encompassed the legal principles enunciated earlier
in this judgment . They additionally submitted that t he Respondents were
obliged to satisfy the Court that the eviction order sought would be just and
equitable. They must do this by placing all the relevant information before the
court . It is the Court that must determine whether it is just and equitable to
grant the order after considering all the relevant circumstances and the
specific factors that arise in each case .25 The principles concerning evictions
that have evolved over a quarter of a century apply even if a m atter is heard in
a busy motion Court.
46. The Applicant initiating an eviction application is responsible for satisfyin g the
requirements of the first stage of the eviction procedure. The Respondent or
Defendant is responsible for providing the information about the unlawful
occupier as it would fall within their peculiar knowledge. That would accord
with the usual obligations on onus but not entirely with the flexible approach
advocated in dealing with eviction matters. Owners generally gather
information about the occupiers of their properties. It would be to the ir
advantage to do their best and present the required information to the Court to
enable it to determine whether it is just and equitable to grant the order.26 This
would be especially helpful in an unopposed application , bearing in min d that
an Applicant cannot predict with any certainty that the ir application would not
be opposed when it commences .
24 Sujee Z "The Need for Feminist Approaches for Housing Cases in South Africa” PER / PELJ
2021(24) - DOI http://dx.doi.org/10.17159/1727 -3781/2021/v24i0a9590
25 Port Elizabeth Municipality supra at paras 22 -23, Berea, supra at paras 40-41
26 Changing Tides supra, paragraphs 28 -34,
47. The Respondents sought to defend the Court a quo’s order. None of the
cases cited on behalf of the Respondents detracts from the Court’s obligation
to consider all relevant information , including case -specific factors, in eviction
matters, including those unopposed or when an unrepresented occupier
appears in a n unopposed matter .27 Relying on R v Dhlumayo , the
Respondents argue d that facts not mentioned in the Court a quo’s reasons do
not mean they were not considered.28 The Court’s reasons for the order were
eclipsed by its acceptance that it did not direct specific questions to the First
Appellant concerning her personal circumstances . It had insufficient
information concerning alternative accommodation and did not permit the First
Appellant to complete the City’s questionnaire . The Court concluded by
saying there was a reasonable prospect of another Court coming to a different
conclusion. The Respondents sought to minimise the latter concession,
arguin g that it did not mean the Court was wrong. This Court finds no merit in
these submissions.
48. The Respondents argue that there was no indication that an eviction order
would render the Appellants homeless. The question was never asked of the
First Appellant, neither by the Court nor by the Respondents. The
Respondents alleged in the founding affida vit that the eviction would not leave
the Appellants destitute. They expressed no opinion on whether the eviction
would render the Appellants homeless.
49. The Respondents joined the City in their application for the Appellants'
eviction. In their submis sions, they rely upon two cases relating to the
necessity of joining the local municipality. In Drakenstein Municipality29, a full
bench of this Court held that a municipality's joinder and the provision of a
report are not required as a rule in a PIE eviction. The Respondents submit
that Premier Eastern Cape v Mtshelakana ,30 distinguished between the poor
27 Malan v City of Cape Town 2014 (6) SA 315 (CC), Brobler v Philips and Others 2023 (1) SA
321 (CC), Port Elizabeth Municipality supra
28 R v Dhlumayo and Another 1948 (2) SA 677 (A)
29 Drakenstein Municipality v Hendricks 2010 (3) SA 248 (WCC)
30 Premier Eastern Cape v Mtshelakana 2011 (5) SA 640 (ECM)
and homeless from those who could afford to rent homes. In the second case,
the Court held that the Municipality should be joined only when persons are
poor and would be rendered homeless by the eviction. These arguments can
be easily disposed of. This is not an appeal against whether the City should
be joined. The Respondents joined the City . The Respondents conflate the
procedural requirem ent of placing information before the Court with the
substantive requirement that an eviction order must be just and equitable after
considering all information , including whether the order would render the
occupants homeless. This Court does not condone any differentiation
between the means of the occupants. In Ndlovu , the majority judgment
recognised that in interpreting social or remedial legislation, unintended
benefits may accrue to persons other than the intended beneficiaries.31
50. As the Court a quo has indicated, the City , cited as the Third Respondent in
the eviction application, does not assist until the unlawful occupier has
completed its questionnaire. The City did not provide a report, even a general
report, on its capacity to provide emergency or alternative accommod ation to
evictees. Section 4(2) of PIE, read together with section 4(7) in the case of
occupiers occupying a property for longer than six months, envisages that a
municipality will provide a report on whether it can provide alternative
accommodation.
51. Whilst the onus lies with the unlawful occupier to source and complete the
questionnaire, a practice has developed in this division where the Applicant
seeking an eviction order provides the unlawful occupier with the
questionnaire. Some Applicants utilise this gesture to their advantage, raising
it as a militating factor against the unlawful occupier if the latter declines to
complete and submit it. The Court cannot fulfil its obligation to consider all
relevant circumstances unless it has a report on alternative accommodation32
31 Ndlovu , supra at para 16
32 The Occupiers of Erf 101, 102, 104 and 112, Shorts Retreat, Pietermaritzburg v Daisy Dear
Investments (Pty) Ltd & others [2009] 4 All SA 410 (SCA) at para 10, occupiers of Shulana Court 11
Hendon Road, Yeoville, Johannesburg v Steele [2010] 4 All SA 54 (SCA) at paras 14 and `15,
Occupiers of Mooiplaats v Golden Thread Ltd & other s 2012 (2) SA 337 (CC) at para 17.
or unless there is proof that the unlawful occupier has declined the assistance
of the Municipality or other organ of state.33 The relevant authorities, like the
Municipality, must be engaged before a Court can discharge its obligations to
the evictees.34
52. The City is required to include in its report information relating to the unlawful
occupiers, the building housing them, whether an eviction order would render
them homeless, the steps it can take to provide alternative accommodation,
the implications for the owners if an eviction order is delayed, details of
engagements with the occupiers, and the scope for a mediated process.35
53. The City’s “Personal Circumstances Questionnaire” requires each adult
occupier to compl ete it fully. The information required by the City includes
biographical information, nationality, contact details, income and proof thereof,
expenditure and proof if required, whether the premises is an occupant's
primary residence, information about prev ious residences, whether the
occupier has owned property previously or currently, the details of all
occupants including children and adults over 60 years, the medical details of
the infirm, contact details of relatives of the occupiers, whether the occupi er
has benefitted from state -funded housing, other relevant information and
compulsory proof of efforts to secure alternative accommodation.
54. Although the City is required to report on issues within the peculiar knowledge
of the owner or their authori sed agent, namely the condition of the building
occupied, implications for the owners if an eviction order is delayed, and the ir
propensity for mediation, it is inexplicable as to why the City imposes an entry
requirement on the occupiers alone and does no t seek the required
information from the owners or their authorised agents. It is also unclear why
these aspects are not sought in their questionnaire and why the City cannot
set the process in motion once it has received the section 4( 1) and 4(2)
33 Swartz v Butcher N.O and Others (A144/2024) [2024] ZAWCHC 405 (29 November 2024) at
paras 29,30, 32, and 34
34 Changing Tides supra at para 21.
35 Changing Tides supra at para 40
application s in instances where it is joined in eviction proceedings or why it
has to await the completion of the questionnaire before it embarks upon
fulfilling a constitutional duty. All involved must source the information the
Court requires t o deal with eviction cases justly, equitably, and expeditiously.
The City’s disinclination to engage from the outset often imposes a speed
bump to the eviction process.
55. The most logical solution would be for Applicants to include the City’s
questionn aire as an attachment in the section 4 (1) and 4(2) papers they serve
upon the City. The owner or their authorised agent of an occupied property
should provide an informed and truthful opinion in their founding papers on
whether the eviction sought would render the occupiers homeless.
56. The Respondents endeavoured to dissuade this Court from recommending
any change s to the procedure. They argue that there is no statutory or
common law requirement that a questionnaire be provided , nor should it serve
as a precondition to granting an eviction order. They argue that the
questionnaire is a bureaucratic reaction of the City to fulfilling its constitutional
duties. They suggest that any referral to a municipality or the provision of a
questionnaire should be reserved for cases where there is a risk of
homelessness. This Court does not agree.
57. Section 4(2) of PIE is peremptory. The eviction application must be served on
the local municipality that has jurisdiction. In City of Cape Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and
Another36, the Constitutional Court stressed that the joinder of the
Municipality as the main point of contact with the community is essential.
Thus, the involvement of the Municipality is critical in determining whether it is
just and equitable to grant an eviction order. Adding the questionnaire to the
original application would eliminate excuses from the occupier , and the City
would have some or all of the information it needs when the Court exercises
36 City of Cape Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another 2012 (2) SA 104 (CC) at para 45
its discre tion to order the City , in the appropriate case s, to compile and
provide a report.
58. This Court accepts that the Appellants had ample opportunity to respond to
the eviction application. The application was initially served on the First
Appellant in November 2023 and served before the Court a quo in March
2024 . The Respondents failed to correlate the need for information with the
order sought. The Court must consider all information relevant to the
proposed eviction to determine whether its order would be just and equitable.
The terse statement they provided about the Appellants did not suffice. Faced
with that information alone, the Court would have had to decline the
application. The First Appellant was present in Court and could have remedied
the situation by providing the information the Court required. The Court did not
exploit that opportuni ty.
59. The Court a quo’s acknowledgement that it did not direct specific questions to
the First Appellant other than those concerning her financial circumstances,
that it did not have a report from the City and that the First Appellant was not
allowed to complete the City’s quest ionnaire, effectively disposes of this
ground of appeal. The Court had to ensure that it was fully informed of the
relevant facts to properly discharge its function of determining whether an
eviction order should be issued and, if so, on what terms.37 This Court accepts
that the Court a quo erred in failing to obtain the relevant information and
misdirected itself in granting the eviction order.
THE THIRD GROUND OF APPEAL
60. The third ground of appeal relates to the Court a quo’ s failure to consider the
interests of the minor children. The Appellants submit that this ground of
appeal is linked to the second ground of appeal. Still, because of the unique
legal position of children, it was necessary to deal with it separately as th e
third ground of appeal. It is apparent from the transcript and the reasons given
37 Port Elizabeth Municipality supra , at paras 32 -37
for the judgment by the Court a quo that it had not considered the interests of
the two minor children occupying the apartment
61. The Appellants rel ied exclusively o n the case of Arendse38, a review of an
eviction of a disabled wife and her children. The Court upheld the review
application as the Magistrate failed to investigate the children’s personal
circumstances, well -being, and schooling and that the order would render
them homeless. Apart from restating the law relating to the children’s rights,
Arendse finds no further application to the eviction of families with children .
62. The Seco nd Respondent stated that ‘to her knowledge ’, two minors were
residing at the property. That was the total information regarding the children.
There was no indication as to whose children they were, w hether the First
Appellant was the ir parent or guardian , their ages, whether they were
schooling, or whether they were afflicted with any disabilities. The Court a quo
had that minimal information about the children. It did not refer to the children
in its reasons for granting the eviction order. I n its judgment on leave to
appeal , it assumed that the two minor children ‘were clearly under the First
Appellant’s control and care”. The evidence does not bear out the latter
assumption.
63. In argument, the Respondents reiterated t heir reliance on R v Dhlumayo on
the Court a quo’s failure to consider the rights and needs of the children . They
relied on the Court quo’s assertion that the First Appellant did not state that
the children were at risk of be coming homeless due to an eviction order. They
contended that it would have ‘been impossible for the City to fulfil any
meaningful function while Ms P[...] rested on her laurels. ’ The Respondents
urged this Court to follow Mayekiso ,39 where the majority held that the
presence of minors did not necessarily outweigh the right s of an owner. The
facts of Mayekiso are distinguishable in two significant respects : the occupiers
38 Arendse v Arendse and 3 Others (12659/2009) [2012] ZAWCHC 156; [2012] 4 All SA 305
(WCC); 2013 (3) SA 347 (WCC) (20 August 2012)
39 Mayekiso and Another v Patel NO and Others 2019 ( 2) SA 522 (WCC)
were always legally represented, and the Court had access to information
about the children.40
64. The Respondents cited the two minor children as ‘all other occupiers’ in their
citation of the parties. There were no ‘other’ occupiers apart from the two
minor children . The Res pondents were obliged but failed to define these
children's standing and legal representation in their founding papers. The
rights of the two minors are protected by sections 28(1)(h) and 28(2) of the
Constitution , which requires the State to assign a legal practitioner to the
children in civil proceedings affecting them if substantial injustice would
otherwise result and in every matter concerning the child, t he latter’s best
interests are of paramount importance. A civil process that puts them at risk of
homelessness is one such example. The Court must consider the children's
best interests, which include their schooling, access to health services,
nutrition, social servi ces and, importantly, their shelter. Section 6 (2) of the
Children ’s Act 38 of 2005 emphasises respect for the child’s inherent dignity
and requires them to be treated fairly and equitably.
65. The Court a quo was obliged to enquire about the children before it made an
eviction order. It did not ; it simply did not have the relevant information to
make the order it d id. The Court erred by failing to enquire about the children
living in the apartment and misdirec ted itself in granting the eviction order . The
Appellants must prevail on this ground of appeal as well.
40 In attempting to gauge the Respondents’ nonchalant stance on the dearth of information
available to the Court a quo, this Court asked the Respondents ’ Counsel whether the Respondents
expected the Court to scrutinise the papers to establish that the First Appellant was 44 years old and
then assume that at least one of the two children would be of a school going age? Did the Court have
to independently enquire about the children’s schooling and whether the Appellants' eviction in May
would compromise them? This proposition elicited a frantic response from the Second Respondent
seated at the back of the Court. She waved repeatedly to attract the Court's attention, wanting to
convey that neither child was attending school. The Respondents knew, at least, in this respect, more
about the unlawful occupants than they declared in the founding affidavit. It is not solely the
Respondents ’ fault that the Court had insufficient info rmation about the occupiers. It is the Court's
responsibility that these enquiries were not raised. Was it necessary for a Court to fish for information
that may have been known to the Respondent? The Respondent's response was directed at the
Appellants, a sking why they did not ask for leave to present further evidence.
66. This Court feels obliged to raise a further issue, unrelated to the appeal , that
became evident from examining the transcript.
LEGAL REPRESENTATION
67. The unrepresented litigant appearing for the first time in a busy motion Court
faces a sea of robed practitioners who conduct their business at a seemingly
choreographed pace. Anxiety , unease, and intimidation barely begin to
describe the unrepresented litigant’s reaction. Surrounded by the formalities
and complexities of the legal process , they must navigate a world where the
rules and procedures are often second nature to those experienced in the
field. They may well believe that their presence hinders the smooth operation
of the Court. The transcript suggests that the First Appellant may have reacted
to this Court as anticipated.
68. The motion Court of 28 February 2024 referenced the First Appellant’s
transient speech impediment and her written agreement to postpone the
matter to 15 March 2024. The Court confirmed with the Respondents’ C ounsel
that the agreement ‘simply’ meant that the postponement was intended for the
First Appellant to secure legal representation . Neither the Court nor the parties
could have contemplated that the rescheduled hearing would address a final
eviction order. Even if the First Appellant had secured legal representation,
she would have been entitled to time for submitting an a nswering affidavit ,
and the Respondent would have had the opportunity to reply. Consequently,
the matter would have been transferred to the opposed roll for hearing.
69. On 15 March 2024 , the matter proceeded to final determination. The Court a
quo would not have had the transcript to guide it in handling the application. It
assumed that the earlier Court had informed the First Appellant of her right to
legal representation . The earlier Court had not. The Respondents argued that
this was not a ground of appeal and that this Court should not introduce a
perceived prejudice emanating from the First Appellant’s failure to secure
legal representation . The y submit that the First Appellant was adequately
informed of th e right in the section 4(2) papers . The postponement was
agreed between the parties. A postponement was not a right but an
indulgence granted by the Court. They argued further that if the First Appellant
was notionally prejudiced , she should have said this under oath, meaning she
should have filed an affidavit to this Court.
70. The Respondents argued that the sectio n 4(2) notice sufficiently informed the
Appellants of their right to legal representation and even provided the contact
details of the local offices of Legal Aid. That is insufficient in the context of this
case. The duty to assist the unrepresented Appellant in securing legal
representation extends beyond the prescribed section 4(2) requirements.41
The Court had to establish whether the First Appellant could afford a lawyer . A
Court’ s failure to inform litigants of their rights, how to exercise them and
where they could obtain assistance could result in a miscarriage of justice.
Civil matters are complex , and the laws and procedures are difficult to
understand .42 In addition to the recognised sources of legal aid, a Court could
call upon an ever -increasing pool of legal practitioners offering their ser vices
gratuitously or as part of their professional practice obligations to assist needy
litigants. There are Judges in this division who, during the course of
adjudicating a particular matter , invite practitioners present in motion Court
proceedings to assist needy litigants. The Cape Bar has a pro bono
programme , and its members are required to perform a minimum number of
pro bono hours per year. The Legal Practice Council is finalising their
community service requirement for continuing registration.
EVICTION APPLICATIONS IN BUSY MOTION COURTS
71. This division enrols numerous eviction applications on its unopposed rolls.
This practice is invaluable for disposing of the large number of unopposed
eviction matters in the prescribed manner, and there is no suggestion that it
should be changed. This Court questioned whether this application should
have proceeded to a final eviction order on 15 March 2024 , considering that
41 Changing Tides at para 48
42 Nkuzi Development Association v Government of the Republic of South Africa [2001] ZALCC
31; 2002 (2) SA 733 (LCC)
the earlier Court of 28 February 2024 had postponed the matter to enable the
First App ellant to secure legal representation in circumstances where she was
afflicted with a transient speech impedimen t.
72. The question was whether the application should have remained on the
unopposed roll or transferred to the opposed roll by agreement with defined
timelines for filing and responding to further affidavits , given that the order
allowed the First Appellant to secure legal representation . Instead, t he parties
agreed to postpone the matter to a date that did not allow time for the
Appellants to oppose it under the URC . The earlier Court should have
scrutinised the agreement's effect and either supervised the terms of the
agreement or issued the appropriate directive for its further conduct. The
presiding officers in the motion Court need to be cognisant of a situation of
this type without perceiving this as any interference in their prerogative to
decide whether to entertain a matter, as the Respondent s suggest . This would
also temper the Respondents ’ concern about unscrupulous litigants abusing
the process .
73. Neither the earlier nor the later Court had sufficient information about the
Appellants to make a final eviction order that was just and equitable. That
would have been evident from the Respondent's founding papers.
COSTS
74. The hearing of this appeal had to be adjourned to enable Counsel for the
Respondents to obtain and acquaint himself with the appeal bundle of
documents. The Respondents could have been prejudiced if this Court did not
intervene. The Appellant’s attorney could not explain his failure to comply with
his obligations under Rule 49(7) of the URC. This Court warned the
Appellants' attorney that their failure to comply with the rules may have cost
implications for the Appellants. Th ose are reflected in the order that follows.
75. The Court elicited certain information about the First Appellant from the
Appellant's attorney . He confirmed that the First Appellant was employed as
an engineer and maintained her employment while she held over the
apartment. During this period, she paid no rent . The Appellants seek an order
dismissing the Respondent's eviction application with costs. The Respondents
seek an order dismissing the appeal with costs.
76. The Appellants have prevailed, and the usual or der is for the costs to follow
the outcome of the appeal. The question arises whether the First Appellant
should benefit further from the delay between the eviction order and the
finalisation of this appeal. Ten months have elapsed, and the First Appellant
has availed herself of fourteen months of living rent-free at a coveted address ,
at the expense of the Respondents.
77. The Respondents have steadfastly defended the Court a quo’s eviction order
despite that Court acknowledging it had not complied with the obligations
imposed by PIE. The Respondents could have assisted the eviction process
by determining whether the order they sought would have rendered the
Appellants homeless . They could have provided the Court with further
information about the First Appellant and the children. The Respondents cited
the minors as a party to the litigation without appreciating their legal standing
or right to representation. The Court has cons idered these factors in the order
that follows.
CONCLUSIONS
78. The Appellants appealed the orders granted by the Court a quo , sitting as the
motion Court hearing unopposed applications. The Appellants raised three
grounds of appeal against the judgement and orders of the Court . The Court
granted the Appellants leave to appeal. It also unequivocally identified the
difficulties that this matter presented and effectively acknow ledged that the
order did not comply with the procedure required in a PIE application. The
Appellants must prevail in two of the three grounds of appeal raised against
the eviction order granted by the Court a quo.
79. This Court considered it unnecessar y to decide the appeal against the Court a
quo’s alleged failure to appoint an interpreter. The interaction between the
Court and the First Appellant was insufficient to make a finding either way. The
eviction order was granted without the Court having acc ess to all the relevant
information about Appellants , including any risk the order had of rendering
them homeless. The remaining grounds of appeal had to succeed , especially
as the Court a quo acknowledged that the order did not comply with the PIE
requirements.
80. This Court has identified two issues that deserve attention . They do not relate
directly to adjudicating this appeal but may facilitate and refine the
determination of eviction matters. Communi cation between motion Courts in
postponed matters is essential to avoid the later Court handling the matter in a
manner that was not intended. There is no reason why the City’s housing
questionnaire cannot be enhanced. There is a need to explain legal
representation to unrepresented litigants.
81. This Court holds the view that the motion Court hearing the matter on 28
February 2023 should have ordered the application to be transferred to the
opposed roll with clear directions for its further conduct and case
management, including orders for the Appellants to file their answering
affidavit, the Respondents to file their replying papers, and the City to provide
a report on aspects requiring its attention .
82. This Court is not persuaded that the eviction application should be dismissed.
This Court has considered the interests of both parties . It is of the view that
the correct order would be to reinstate the application on the opposed roll of
this division with orders to expedite the hearing thereof. Th is will be reflected
in the order made below.
ORDER
1. The appeal is upheld with costs ,
2. The First Appellant shall bear the wasted costs of the hearing of this appeal
on 22 January 2025 ; Counsel’s costs are to be taxed or agreed to on the B
scale
3. The Court a quo’s orders are set aside and replaced with the following:
3.1 The eviction application is transferred to the opposed motion roll.
3.2 The First and Second Applicants shall amend or supplement their
papers , if necessary , within five days of this order,
3.3 The Respondents shall file their answering affidavit within fifteen days
of receipt of the First and Second Applicants amended papers, if any,
3.4 The Respondents shall complete the City of Cape Town’s Housing
questionnaire within five days of this judgme nt, failing which the Court
hearing the application shall be entitled to assume that the
Respondents do not require emergency or alternative accommodation,
3.5 The First and Second Applicants shall file their replying affidavits within
ten days of receiving the Respondents answering affidavit,
3.6 The City of Cape Town is to conduct the necessary investigations and
report to the Court within t wenty days of receiving the Respondents
completed q uestionnaire, in the absence of which it is absolved of the
responsibility to provide a report,
3.7 The First and Second Applicants shall file their heads of argument
within five days of filing their replying affidavit ,
3.8 The Respondents shall file their heads of argument within five days of
receiving the First and Second Applicants' heads of argument.
3.9 The parties, jointly or s ingularly, if the other does not cooperate or fails
to comply with this order , shall approach the Judge President of this
division for an expedited hearing date .
3.10 If the Respondents do not strictly comply with this order without good
cause shown, the First and Second Applicants may assume they do not
intend to oppose the eviction application and proceed to obtain the
necessary order.
________________________
Bhoopchand AJ
I agree,
________________________
Lekhu leni J
I agree, and it is so ordered .
________________________
Erasmus J
Judgment was handed down and delivered to the parties by e -mail on 24 February
2025 .
Appellants Representative: Mr K Lingani
Instructed by Lingani & Partners Attorneys Inc
Respondents Counsel: J P Steenkamp
Instructed by Gideon Engelbrecht Incorporated