SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: A268/2024
In the matter between:
CITY OF CAPE TOWN Appellant
and
YUNUS HUSSAIN First Respondent
SHAAKIRAH PETERSEN Second Respondent
MUNADIYA HAFFAJEE Third Respondent
AZRAA HAFFAJEE Fourth Respondent
ALL OTHER UNLAWFUL OCCUPIERS HOLDING Fifth Respondent
OCCUPATION AGAINST THE FIRST RESPONDENT
Coram: Lekhuleni, J et Ralarala, J
Heard on: 7 February 2025
Delivered Electronically on: 17 April 2025
JUDGMENT
LEKHULENI J et RALARALA J
INTRODUCTION
[1] This is an appeal against the whole order of the Cape Town Magistrate s’ Court
dated 19 August 2024. In that order , instead of delivering a judgment, the magistrate
postponed the matter for six months to allow for meaningful engagement regarding the
intended eviction of the second respondent and her son from the leased premises
owned by the appellant, the City of Cape Town (“the City”) . The second respondent's
occupation of the property stems from a written lease agreement concluded in 2004,
which lasted for an initial period of five years. Clause 4 of the written lease agreement
afforded either party with the option t o terminate the lease on two months' notice to the
other.
[2] Throughout the duration of the lease agreement, the monthly rental amount was
minimal. It commenced at R3500 per month and was subject to annual escalation,
eventually reaching approximately R5892.60. In November 2019, the City obtained a
revised valuation of the leased property. The evaluation suggested a market -related
monthly rental of R24,900. The City extended invitation s to the second respondent to
comment and engage with it on two separate occasions, namely on 22 November 2019
and 11 December 2019, r espectively. On 17 December 2019, through her legal
representative, the second respondent offered a 10% increase to the existing rental of
R5892. On 13 January 2020, and after careful consideration, the City rejected that
proposal.
[3] When no further proposals for increased rental were received, the City formally
cancelled the lease in writing, affording the second respondent until 6 April 2020, to
vacate the property. The City brought an application on 2 December 2022, in terms of
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(“the PIE Act”) seeking an order to evict the second respondent from the leased
premises. However, the magistrate in Cape Town dismissed the application because, in
her view , the lease agreement had not been properly cancelled.
[4] On appeal to the full bench of this court, on 22 May 2023, the court upheld the
appeal and confirmed that the lease agreement between the parties had been validly
cancelled . The appeal court remitted the matter to the magistrate Cape Town to
determine whether an eviction order is just and equitable. After the case was re mitted to
the lower court, the presiding magistrate directed that oral evidence be presented. This
measure wa s taken to ensure that the decision -making process is well -informed,
reflective of the findings provided by the appe al court.
[5] Evidence was presented on 8 December 2023, and 21 November 2023. On 21
November 2023, after concluding the evidence, the par ties agreed to have the matter
decided based solely on written submissions, without any oral arguments. Following this
agreement, the magistrate postponed the case and scheduled the judgment to be
delivered on 14 December 2023. Notwithstanding, the anticip ated judgment was not
delivered on 14 December 2023, as promised. Rather, the presiding magistrate
postponed the matter for six months to allow for further engagement and the submission
of additional affidavits. ("the first judgment") .
[6] The parties conducted discussions in accordance with the court's order and
subsequently submitted affidavits that outlined their respective positions. According to
the City, the second respondent was obligated to vacate the property, as it had been
designa ted for the use of the law enforcement, traffic, and coordination departments.
Additionally, the City proposed ten alternative accommodations which the second
respondent could apply for. However, the second respondent failed to pursue this
option.
[7] On the other hand, the second respondent maintained that the City must either
let her remain on the property with her son or be ordered to assist her to relocate to
3[...] R[...] Road Observatory, which the second respondent alleged was available to
her. Des pite the palpable impasse between the two parties, on 19 August 2024, the
magistrate granted the second order on the same terms as the previous order and
postponed the matter for another six months for further engagement between the
parties ("the second ju dgment") . It is this order that the appellant seeks to assail in
this appeal.
THE FACTS
[8] The first and the second respondents were married on 4 July 2004 and divorced
on 8 November 2014. During their marriage, on 30 June 2004, the City and the first
respondent concluded a written lease agreement for both residential and commercial
purposes. The lease agreement would commence on 1 July 2004 and terminate on 30
June 2009 unless renewed for a further period as agreed upon by and between the
appellant and the first respondent. Rental per month in terms of the initial rental
agreement was an amount of R3 500 and escalated annually by 10 per cent. The initial
period commenced on 1 July 2004 and continued for five years until it ended on 30
June 2009. During the initial period, there was, for the most part, a due and proper
performance by the first respondent of his obligations under the lease agreement.
[9] On the d ate of termination of the initial period, the parties elected to renew the
lease agreement for a further and indefinite period, but otherwise on the same terms
and conditions as applicable to the initial period. The first and second respondent
operated a modest food kitchen from the property and resided on the upper floor of the
property. After the first and second respondent divorced, the first respondent relocated
to Durban, where he has remained to date. After their divorce and the first respondent's
move to Durban, the second respondent acquired all rights, title, and interest in the
lease and the property from the first respondent. The first respondent severed all ties
with both the property and the lease. Meanwhile, the second respondent responsibly
continued to manage the lease, taking care of the property and ensuring that all monthly
rent payments and utility bills were paid on time. The terms and conditions of the lease
agreement have not been changed, and the rental amount has only been increased t o
R5892.60. No additional charges, other than for water and electricity, have ever been
invoiced.
[10] According to the second respondent, the leased premises provides her with the
necessary income to sustain herself and her son. According to her affidav it, should she
be evicted, it would not only result in homelessness, but also leave her without any
source of income, as her entire livelihood is dependent on the operation of the shop and
restaurant. In addition, the second respondent asserted that she ha s been on the
property for over two decades and has built goodwill in the community and a reputation
for good wholesome food, which she would need to re -establish if required to move.
The second respondent further averred that her business is well establis hed and well
known in that neighbourhood. She currently resides with her 13 -year-old son. The first,
third, fourth and fifth respondents are not occupying the premises.
[11] The rental amount per month in terms of the initial lease agreement was R3
500,0 0 and escalated annually by 10%. In 2019, it increased to R5 892,00. The
appellant arranged for the property to be evaluated on 20 September 2019, and the
valuation proposed a market -related rental of R24 900,00 per month. The outcome of
the property valua tion prompted the appellant to initiate discussions with the second
respondent on 22 November 2019 and 11 December 2019. The City rejected the
proposal in January 2020. Subsequent correspondence from the attorneys representing
the second respondent propose d a 10% rental increase to R6481.20 per month.
However, the City rejected this proposal in January 2020.
[12] As there were no further proposals, the appellant terminated the lease
agreement on 6 February 2020, allowing the second respondent until 6 April 2020 to
vacate the property. Subsequent thereto, on 23 March 2022, the appellant instituted an
application in terms of s 4 of the PIE Act to evict the Responden ts, which application
was dismissed by the lower court on 7 July 2022, on the basis that the lease agreement
was deemed not to have been validly cancelled.
[13] Thereafter, the appellant launched appeal proceedings against the lower court's
judgment. The second respondent opposed the appeal. In its judgment of 22 May 2023,
the appeal court uphe ld the appeal and determined that the lease agreement between
the parties was validly cancelled. Furthermore, the court noted a lack of information
about reasonable engagement between the appellant and the second respondent. The
appeal court held that the appellant had to fulfil its constitutional obligations in terms of s
26(2) of the Constitution and to take reasonable measures, within its available
resources , to achieve the progressive realisation of the right of access to adequate
housing. To ensure tha t the second respondent's voice was heard in the matter, the
appeal court remitted the matter to the magistrate's court for a determination on whether
an eviction is just and equitable in the circumstances and, if so, a suitable date for
eviction.
[14] On 8 August 2023, the matter resumed in the lower court. The presiding
magistrate seized with the matter subsequently postponed the matter to 09 October
2023 for filing of supplementary affidavits and for heads of argument. On 09 October
2023, the matter w as postponed to 08 November 2023 for the City to provide a housing
report and for viva voce evidence to be led in respect of the City’s housing report and
the second respondent’s personal circumstances before an eviction order could be
considered.
[15] Pursuant thereto, viva voce evidence was led over the course of two full days.
The Appellant adduced evidence of Mr Gregory Exford, who at the time was serving as
the Acting Manager for Informal Settlements associated with the Department of the
Directorate of Human Settlements. Mr Exford compiled a housing report on behalf of the
Municipality. In court, Mr Exford testified that the City can only accommodate the
second respondent in a temporary relocation area. In those circumstances, the City
furnishes the material necessary to erect an informal structure of 18 square meters,
which he likened to the conventional Wendy house. In addition, he stated that the City
offers communal services in respect of water and ablution facilities.
[16] Mr Isaa c Martin who had deposed to an affidavit in support of the eviction
application also gave evidence at the insistence of the presiding magistrate. Mr Martin is
employed by the appellant as Head: Improved Properties and Lease -Ins within the
Property Manageme nt Department. He testified that the City sought to review the lease
to bring the rental on par with market -related rental. He confirmed that the proposal to
the second respondent for rental of R24,000 was subject to approval. He testified
further that the second respondent never raised any objections to the proposed
increased rental of R24,000. He asserted that the City has no other comparable
properties available to lease to the second respondent within the precinct.
[17] The second respondent also testified. In short, her testimony was that she and
her former husband had bought the shop in question from the previous owner and
moved into the property in 2004. She currently employs 3 people. Only she and her son
occupied the property. She averred that her sole source of income is what she earns
from her business. Her average monthly gross income from the shop is approximately
R28,000, while her take -home income is roughly R19,000. Her average monthly
expenses total was approx imately R18,000. She mentioned that she accepted the City’s
proposed rent increase to R19,000; however, this adjustment was not implemented
because the City did not send her a new lease agreement or invoice for that amount.
[18] Having heard evidence, th e presiding magistrate postponed the matter to 14
December 2023 for judgment on the matter. On 14 December 2023, the magistrate did
not deliver judgment as expected. Instead, on 4 January 2024, the magistrate
postponed the matter to 31 July 2024 (for six m onths) and directed the parties to
engage meaningfully and file affidavits in that regard.
[19] The appellant filed further affidavits as directed by the court, indicating that the
property occupied by the second respondent was no longer earmarked for rental
purposes but for use by their Law Enforcement, Traffic and Coordination Department.
The City also provided alternative accommodation for which the second respondent had
to apply but had shown no interest. The appellant stated that the second respondent
preferred that the appellant allow her to remain in the leased property or relocate her to
a property situated at 3 [...] R[...] Road Observatory.
[20] Between February 202 4 and May 2024, the legal representatives of both parties
engaged in meaningful discussions as directed by the court, however, these efforts did
not yield any productive outcomes. On 20 June 2024, a meeting was held at the offices
of the appellant's legal representative on a "without prejudice" basis, but this also did
not yield any results. Resultantly, on 22 July 2024, the City delivered an affidavit
deposed to by Mr Isaac Martin detailing the efforts the parties made to engage
meaningfully. In the said a ffidavit, Mr Martin stated that the City had suggested two
possibilities for accommodating the second respondent. First, a structured exit from the
property. Second, an emergency housing kit based on the second respondent's
disclosure that she would be ren dered homeless if evicted from the property. According
to the appellant, neither of these options were taken up by the second respondent.
[21] Annexed to Mr Martin's affidavit was a list of properties that the City had available
to let and for which the second respondent could make application to occupy. On 30
July 2024, the second respondent delivered an affidavit in answer to Mr Martin's
affidavit. The second respondent said nothing about the alternative proper ties, or the list
of properties proposed by the appellant. Instead, the second respondent disputed the
notion that the City had attempted to engage meaningfully with her.
[22] On 31 July 2024, the presiding magistrate required further clarity regarding t he
parties' attempt at engagement, the circumstances pertaining to the second
respondent's son, and the availability of alternative accommodation within a 10 -
kilometer radius of the leased property. The magistrate postponed the matter for the
parties to fi le further affidavits.
[23] On 7 August 2024, the second respondent delivered a further supplementary
affidavit in which she identified two properties that she could use namely, 1 [...] M[...]
Road and 3 [...] R[...] Road. On 14 August 2024 the City delivered its further
supplementary affidavit by Mr Martin as directed by the magistrate. In the affidavit, Mr.
Martin stated that the applicants' attorneys have not yet received any feedback from the
second respondent or her attorney regarding the properties that the appellant proposed
to lease to her. Mr Martin further stated that to the extent that the appellant was required
to identify a property within proximity to the leased property, to his knowledge, the only
availa ble property for the second respondent to make a rental offer was situated at 2 [...]
P[...] Street Woodstock which is 120 meters from the current property.
[24] To his knowledge, there were no other properties available near the property
occupied by the second respondent, which is why the appellant extended its list of
properties to a radius of 10 kilometres from the location.
[25] On 19 August 2024 after considering the evidence and the supplementary
affidavit, the magistrate delivered the second judgm ent, granting the second order and
postponed the matter to 18 February 2025 for the parties to meaningful engage
regarding the matter. The second judgment was virtually identical to the first written
judgment. In that judgment, the magistrate indicated tha t he was not satisfied that
meaningful engagement between the parties had occurred. According to him, the
engagement process that followed involved a series of proposals and counterproposals,
all of which were rejected by the other party. The magistrate co ncluded that there was
no concrete evidence regarding the appellant's law enforcement agency taking over the
leased premises occupied by the second respondent.
Preliminary point – Appealability of the postponement order
[26] The appellant appeals the magistrate's decision to postpone the matter from 19
August 2024 to 18 February 2025. The question that arises is whether such an order is
appealable or not. Mr Mackenzie, counsel for the appellant, submitted that the
postponement order disposes of the relief claimed to the effect that the respondents are
unlawful occupiers, and that eviction is just and equitable. Mr McKenzie stated that the
second order was clearly meant to address the date by which the second respondent
must vacate the property. For the reasons that follow, we do not agree with this
proposition. We propose to deal with this preliminary point as it is dispositive of this
appeal.
[27] Rule 31 of the Magistr ates’ Court Rules governs the postponement of cases in
the magistrates' court. Rule 31 provides as follows:
“Adjournment and postponement
(1) The trial of an action or the hearing of an application or matter may be
adjourned or postponed by consent of the parties or by the court, either on
application or request or of its own motion.
(2) Where an adjournment or postponement is made sine die, any p arty may by
delivery of notice of reinstatement set down the action, application or matter
for further trial or hearing on a day generally or specially fixed by the
registrar or clerk of the court, not earlier than 10 days after delivery of such
notice.
(3) Any adjournment or postponement shall be on such terms as to costs and
otherwise as the parties may agree to or as the court may order. ”
[28] Section 83 of the Magistrates ’ Court Act regulates the appealability of orders
from the magistrate’s court. The section provides as follows:
“Subject to the provisions of section 82, a party to any civil suit or proceeding in a
court may appeal to the provincial or local division of the Supreme Court having
jurisdiction to hear the appeal against —
(a) any judgment of the nature described in section 48;
(b) any rule or order made in such suit or proceeding and having the effect of a
final judgment, including any order under Chapter IX and any or der as to costs;
(c) any decision overruling an exception, when the parties concerned consent to
such an appeal before proceeding further in an action or when it is appealed from
in conjunction with the principal case, or when it includes an order as to co sts.”
[Section 82 of the Magistrates’ Court Act provides: N o appeal shall lie from the
decision of a court if, before the hearings is commence d, the parties lodge with
the court an agreement in writing that the decision of the court shall be final.] This
section is not relevant for present purposes.
[29] Section 83 of the Magistrates’ Court Act deals with appeals from a magistrates’
court and s pecifies which judgments are appealable. The question of the appealability
of a judgment or order has been the subject of many judgments over many years.1 The
test enacted in this section to determine the appealability of orders made in a
magistrate's court is whether they have 'the effect of a final judgment. A judgment or
order is a decision which, as a general principle, has three key attributes, first, the
decision must be final in effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights of the parties; and, third, it must have
the effect of disposing of at least a substantial portion of the relief claimed in the main
proceedings.2 To qualify as a judgment or order, it must grant definite and dist inct
relief.3
1 FirstRand Bank Limited t/a First National Bank v Makaleng (034/16) [2016] ZASCA 169 (24 November
2016) para 11.
2 Zweni v Minister of Law and Order of the Republic of South Africa 1993 (1) SA 523 (A) at 536B.
3 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A) at 214D -G.
[30] The judgment of the court a quo to postpone the matter for six months does not
fall w ithin the ambit of a judgment of the nature described in s ection 83 of the
Magistrates' Court Act. Section 83(a) described judgments envisaged in s ection 48 of
the Magistrates’ Court Act. Section 48 deals with the granting of judgment by the court
as a res ult of a trial of an action. In this case, the postponement related to an eviction
application. The postponement of the eviction application was intended to allow the
court to decide on the eviction request. The hearing was rescheduled to 18 February
2025. The remand was intended to facilitate meaningful engagement. The matter is still
pending in the Cape Town Magistrates ’ Court. Section 83(c) of the Magistrates' Court
Act does not apply in this matter as it deals with exceptions. The postponement order
does not meet the requirements of s ection 83(b) either.
[31] The order is purely interlocutory and remains susceptible to be varied by the
court upon the resumption of the matter. The order does not h ave the effect of a final
judgment as required by s ection 83(b) of the Magistrates’ Court Act. It lacks all of the
attributes of an appealable order set out in Zweni. The postponement order amounted
to no more than a directive from the magistrate, before he could decide on the eviction
application as to the way the matter should proceed.
[32] The effect of the order is to e nable the parties to engage with each other to find a
mutually suita ble solution to resolve the impasse between them. In Jacobs v Baumann
NO,4 the Supreme Court of Appeal (“the SCA ”) stated that in determining whether or not
an order is final, one must have regard not only to its form but predominantly its effect . If
an order irreparably anticipates or precludes some of the relief which would or might be
given at the hearing it will be appealable . Similarly, in NDPP v King,5 Harms DP, as he
then was, stated that the test was whether the order made was in substance, and not in
form, finally in effect .
4 2009 (5) SA 432 (SCA) para 9.
5 2010 (2) SACR 146 (SCA) para 42.
[33] When the court a quo postponed the application , it determined a return date for
the finali sation of the matter. The relevant part of the order stated:
“The matter is postponed to 18 February 2025 for a further 6 months for
meaningful engagement to take place. Costs to stand over for later
determination. ”
[34] Clearly, there appear to be strong indicators in the ruling of the magistrate that
the order granted was neither definitive of the rights of the parties nor intended to have
the effect of disposing of any portion of the relief claimed in the eviction application. T he
reading of the order indicates that the matter must still be determined on the return date
by the court of first instance once the parties have engaged with each other
meaningfully. The court below issued a directive of meaningful engagement which had
to be complied with before a final determination could be made. That directive is not
determinative of the rights of the parties but instead it amounts to no more than a
direction in the way the matter should proceed.6
[35] In our view, the postponement order issued by the magistrate is not appealable.
We are fortified in this conclusion by the decision of the S CA in FirstRand Bank Limited
t/a First National Bank v Makaleng ,7 in which the court held that an order by the high
court postponing, sine die , an application for default judgment, and directing the
appellant to fi le, at the next hearing within not less than six months of the said order, an
affidavit detailing attempts to prevent foreclosure, is not appealable. The S CA struck the
matter from the roll for lack of jurisdiction.
[36] Furthermore, in Grobler v MFC,8 the court, relying on the dictum in Priday t/a
Pride Paving v Rubin ,9 denied an application for leave to appeal a decision refusing a
postponement. The court reasoned that the decision did ‘not dispose of any substantial
6 Absa Bank Limited v Mkhize and two si milar matters 2014 (5) SA 16 (SCA) para 59.
7 (034/16) [2016] ZASCA 169 (24 November 2016).
8 (1548 of 2019) [2021] ZAGPJHC 469 (08 December 2021) paras 10 and 11.
9 1992 (3) SA 452 (C).
portion of the merits, determine their rights of the parties, or bear any of the other
commonly apprehended hall marks of finality that interlocutory orders are ordinarily
required to possess in order to qualify for appealability’.
[37] In summary , the order of the cour t a quo is not final in effect. It is an interlocutory
order which can be altered by the court a quo on the postponement date as soon as al l
the information is placed before it. Secondly, the order is clearly not definitive of the
rights of either the appellant or the respondents. Thirdly , the order does not have the
effect of disposing of at least a substantial portion of the relief claimed in the main
application . It does not deal with or dispose of any of the reliefs sough t by the appellant
in the eviction application. The parties are at large to prosecute their case s and to direct
the court to any evidence or advance any argument that they wish to raise before the
court can make a final decision .
[38] We are mindful that the appealability requirements set out in the Zweni matter
discussed above, do not constitute a close list.10 Where a dec ision does not dispose of
all the issues in the case, s 17(1)(c) of the Superior Courts Act 10 of 2013 provides that
leave to appeal may be granted if this would lead to a just and prompt resolution of the
real issues between the parties.11 In recent years, the role of the interests of justice in
determining whether an order is appealable has received attention.12
[39] In United Democratic Movement and Another v Lebashe Investment Group (Pty)
Ltd and Others ,13 the Constitutional Court dealt with the application of the interests of
justice in an appeal relating to interim interdicts. Th e SCA had struck a matter from its
roll on the basis that the order, which was an interim interdict, was not appealable under
the Zweni test. The Constitutional Court upheld an appeal against that judgment. It
found that what is to be considered and is decisive in deciding whether a judgment is
appealable, even if the Zweni requirements are not fully met, is the interests of justice of
10 Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2018 (4) SA 440 (SCA) para 36.
11 DRDGold Limited and Another v Nkala and Others 2023 (3) SA 461(SCA) paras 22 -26.
12 Nedbank Limited and Another v Surve and Others [2024] 1 All SA 615 (SCA) para 16.
13 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (C C).
a particular case and whether or not an order lacking one or more of the factors set out
in Zweni constitutes a “decision” for the purposes of s 16(1)(a) of the Superior Courts
Act.
[40] The court noted that over and above the common law test, it is well established
that an interim order may be appealed against if the interests of justice so dictate .’14 It
found further that, in deciding whether an order is appealable, th e court does not
exercise a discretion but rather ma kes a finding of law.15 The Constitutional Court
concluded that the interim interdict in question was appealable because it had resulted
in the infringement of the right to freedom of expression.16
[41] In the present matter , there are simply no interests of justice considerations
which w ould justify this court allowing a piecemeal litigation by entertaining an appeal
against a purely interlocutory postponement order pending the determination of the
merits of the application before the Magistrates ’ Court. The Constitutional Court and the
SCA have repeatedly emphasi sed that piece meal adjudication of litigation is in fact not
in the interest of justice .17 The judgment of the court a quo does not have the effect of a
final judgment. It is not appealable. This court consequently has no jurisdiction to
determine the appeal.
[42] We have noted that in the alternative, the appellant has implored this court to
invoke its review powers framed in section 22 of the Superior Courts Act 10 of 2013. We
are of the view that this argument is mistaken and unsustainable. This argument does
not adequately recognise that the magistrate who presided over this matter was not
cited and has not had the opport unity to respond to the review proceedings. It appears
that the invitation for this court to exercise its review powers was an afterthought or a
subsequent consideration by the appellant, rather than part of the appellant's original
intentions. This conclu sion is supported by the observation that the argument is
14 At para 45.
15 At para 40.
16 At para 45 .
17 Minmetals Logistic Zhejiang Co Ltd v The Owners and underwriters of the MV Smart and Another 2025
(1) SA 392 (SCA) paras 32 to 33.
articulated solely within the appellant's heads of argument and is absent from the
founding documents.
[43] Finally, there is an issue that requires the consideration of this court. We have
noted that relevant evidential material was placed before the magistrate. After the
matter was remitted from the High Court for the determination of the question whether it
was just and equitable to grant an eviction order, the magistrate called for viva voce
evidence and the filing of supplementary affidavits. Extensive evidence was led for two
days from officials of the City and from the second respondent.
[44] Upon the co nclusion of the evidence, the magistrate noted on record that he
would be ready to deliver judgment on 14 December 2023. He directed the parties to file
their heads of argument, and they obliged. Notwithstanding, he did not give the
anticipated judgment. I nstead, on 4 January 2024, without any forewarning, the
magistrate postponed the matter for six months for further engagements and for filing of
further affidavits. The parties engaged in meaningful discussions and held meetings on
a without prejudice basi s as directed by the court. The relevant affidavits requested by
the magistrate were filed by the respective parties. Nonetheless, the magistrate
postponed the matter for another six months.
[45] It is important to emphasise that the process of meaningfu l engagement should
not be equated to compel the parties to reach a settlement. Meaningful engagement is
not merely about process but about finding sustainable solutions.18 Engagement is a
two-way process in which the City and those about to become homeless would talk to
each other mean ingfully to achieve certain objectives.
[46] There is no closed list of the objectives of engagement. In Occupiers of 51 Olivia
Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and
Others Occupiers of 51 Olivia Road, Berea To wnship and 197 Main Street
18 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others 2008 (3) SA 208 (CC) para 14.
Johannesburg v City of Johannesburg and Others ,19 the Constitutional Court observed
that some of the objectives of engagement in the context of a City wishing to evict
people who might be rendered homeless consequent upon the eviction would be to
determine —
(a) What the consequences of the eviction m ight be;
(b) Whether the city could help in alleviating those dire consequences;
(c) Whether it was possible to render the buildings concerned relatively safe and
conducive to health for an interim period;
(d) Whether the city had any obligations to the occupiers in the prevailing
circumstances; and
(e) When and how the city could or would fulfil these obligations.
[47] The court stated that e ngagement has the potential to contribute towards the
resolution of disputes and to increased understanding and sympathetic care if both
sides are willing to participate in the process. The court asserted that people about to be
evicted may be so vulnerabl e that they may not be able to understand the importance of
engagement and may refuse to take part in the process. If this happens, a municipality
cannot walk away without more. It must make reasonable efforts to engage, and it is
only if these reasonable efforts fail that a municipality may proceed without appropriate
engagement.
[48] In the present matter, the parties engaged in meaningful discussions for an
extended period without success. Cumulatively, the magistrate postponed the matter for
a year f or meaningful engagement. The decision to postpone the application for an
additional six months, following a prior six -month delay, is quite concerning.
Accordingly, the court below had a duty in applying the requirements of the PIE Act to
balance the oppo sing interests of the appellant and the respondent and to bring its
unbiased mind to bear and decide as to what was just and equitable.
19 Note 1 8, paras 14 and 15 .
[49] Notwithstanding, the outcome of this appeal, we impress upon the magistrate t o
apply his mind in this matter and decide the matter on its merits on the material before
him.
ORDER
[50] In the result , the following order is granted:
50.1 The appeal is hereby struck off the roll.
50.2 The appellant is ordered to pay the costs of this application.
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LEKHULENI JD
JUDGE OF THE HIGH COURT
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RALAR ALA N E
JUDGE OF THE HIGH COURT
APPEARANCES
For the Appelcant : Adv MacKenzie
Instructed by: Van der Spuy Attorneys
For the Respondent: T J C Dunn
Instructed by: T J C Dunn Attorneys