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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)

Case no.: A285/2024

In the matter between:

COMMUNICARE NPC Appellant
(Registration No 1929/01590/08)

And
HELEN ZANDILE MATUNZI First Respondent
(Identity number: 8[...])

RICO MOTOBISHI Second Respondent
(Passport No: P [...])

SHAUN BENTHAM Third Respondent
(Identity number: 7 [...])

SAMANTHA VALENCIA NAGEL Fourth Respondent
(Identity number: 8 [...])

PUMZA GUZA Fifth Respondent
(Identity number: 7 [...])

SMITH CHINAGOROM HERBET Sixth Respondent
(Date of birth: 1986/06/13)

ZIMKITHA IWUEZI Seventh Respondent
(Identity number: 6 [...])

LUCK VINGOOD IWUEZI Eighth Respondent
(Identity/Registration No. P [...])

YOLANDA BRIDGETTE WILLIAMS Ninth Respondent
(Identity number: 7 [...])

LLEWELLYN JOSEPH PRINS Tenth Respondent
(Identity number: 8 [...])

ALZONA USHAAN JANSEN Eleventh Respondent
(Ident ity number: 8 [...])

CITY OF CAPE TOWN Twelfth Respondent

ALL OTHER OCCUPANTS OF THE PROPERTY
HOLDING TITLE UNDER FIRST TO ELEVENTH
RESPONDENTS Thirteenth Respondent

Coram: Francis J et Pangarker J
Hearing date : 25 April 2025
Judgment delivered electronically : 23 June 2025


JUDGMENT
___________________________________________________________________
PANGARKER J (FRANCIS J concurring)

Introduction

[1] This appeal emanates from a judgment and order granted by the Acting
Magistrate of the Cape Town Magistrates’ Court upholding two points in limine with
costs in an eviction application brought by the appellant in terms of section 4 of the
Prevention Illegal E viction and Unlawful Occupation of Land Act 19 of 1998 (PIE
Act).

The eviction application

[2] In February 2019, the appellant instituted eviction applications out of the Cape
Town Magistrates’ Court against various respondents in six matters under case
numbers 1303/2019, 1960/2023, 8277/2022, 1869/2022, 4033/2023 and 4865/2023 ,
respectively. By agreement between the parties, the applications were consolidated
and heard under case number 1303/2019 , being the matter of Helen Matunzi , which
is the only appeal before us .

[3] The appellant approached the Court a quo on the basis that it is the registered
owner of the immovable property situated at Erf 1[...], known as 1 A[...] Huise, J[...]
Street, Brooklyn (the property) , having concluded a residential lease agreement with
Ms Matunzi , the first respondent , which would commence on 15 February 2015 . In
terms of the agreement, r ental was payable at R1655 per month and a deposit due
of R3310. The appellant alleged that subsequent to the first respondent taking
occupation of the property, she breached the agreement in that she failed to comply
timeously with its payment terms , resulting in arrears.

[4] The appellant’s legal representatives made contact with the first respondent
between October 2018 to January 2019, but despite promises to settle the arrears,
the latter failed to remedy the breach . On 30 October 2018 , the appellant’s legal
representatives dispatched a notice of cancellation which informed the first
respondent that failing settlement of the arrears, the lease would be cancelled on
expiry of the notice period and, in such event, the first respondent and those
occupying the pro perty with her were afforded one calendar months’ notice to vacate
the premises .

The points in limine

[5] The first respondent opposed the eviction application and raised various
points in limine , two of which were dismissed and one of which was withdrawn b y the
respondent. The remaining two points in limine, which fall to be determined on
appeal were, firstly, that the appellant failed to follow due process in accordance with
the Regulations of the Social Housing Act, and secondly, that there was insufficie nt
engagement with the Social Housing Regulatory Authority.

Notice of appeal

[6] The appellant appeals the order upholding of the two points in limine and
substantiated its grounds of appeal in its Notice of Appeal as follows :

“1. In considering the remaining two points and in upholding them, the
Learned Acting Magistrate firstly failed to distinguish between social
housing stock and non -social housing stock.

2. The Learned Acting Magistrate further failed to consider the ambit of
the Social Housing Regulatory Authority’s legislative mandate and
further failed to properly consider the purpose of the Social Housing
Act.

3. The Learned Acting Magistrate further erred by failing to appreciate
and understand that a project which has not received the bene fit of
public funding, and which was not an approved project for the purposes
of the Social Housing Act, would not be subject to the Social Housing
Act and its regulations, nor would it be subject to oversight by the
Social Housing Regulatory Authority.

4. By failing to properly consider and understand the nature of the enquiry
before him, the Learned Acting Magistrate further acted beyond the
scope of his authority, by extending the mandate of the Social Housing
Regulatory Authority beyond what it was leg islatively required and
empowered to do.

5. The Learned Acting Magistrate erred in finding that Social Housing
Regulatory Authority had, or ought to have jurisdiction over properties
which did not fall within their jurisdiction, and over properties which fell
outside of the scope of the Social Housing Act.

6. By granting costs against the Appellant.”1

[7] Before turning to a consideration of the appeal, a matter of clarity is required.
In the concluding paragraph of the judgment, the Acting Magistrate granted an order
dismissing the application with costs. It is evident from the Notice of Appeal that the
appellant is of the view that this constitutes a dismissal of the entire eviction
application in case number 1303/2019.

[8] I disagree with the appellant’s understanding of paragraph 51 . On a closer
reading of the judgment, it seems to relate to case number 3079/2022, and not to
1303/2019 and the points in limine which were argued and form the subject of the
judgment and this appeal. Thus, th is judgment proceeds on the assumption that only
the points in limine and not the substantive merits of the application, were
determined.

Proceedings in the Magistrates’ Court

[9] The parties’ legal representatives agreed with the Acting Magistrate that the
points in limine would be determined first . The appellant’s averment in the
application was that the property did not form part of its social housing scheme and
was thus not social housing stock but its private property.

1 Notice of Appeal

[10] In very lengthy and prot racted proceedings before him , which included several
postponements, the Acting Magistrate required an explanation as to why the
Drommedaris Pilot Project , 8 S[...] Road, Brooklyn2 and the Bothasig Gardens
property3 were the only two properties desig nated as the appellants’ social housing
stock.

[11] Unfortunately, as seen later in this judgment, this question led to a lengthy
enquiry involving the calling of managers of the SHRA, at the behest and instruction
of the Acting Magistrate. In this regard, t he latter ordered the Compliance and
Regulations Manager s of the SHRA to attend Court and present oral testimony,
which they duly did.

[12] Rheena Hansrajh, the SHRA’s Compliance Manager explained in detail the
process whereby a property identified by the appellant, Communicare , would fall
under the SHRA’s oversight. The Acting Magistrate , however , required in an order
which he had granted, a list of accredited instituti ons and properties which fell under
the auspices of the SHRA.

[13] Ms Hansraj h testified that the appellant has three social housing projects:
Bothasig Phases 2 and 3, and Drommedaris. In questions by the first respondent’s
legal representative, she testified that properties which historically received
institutional subsidies were classified as social housing stock in terms of the Act . The
record reflects that the Acting Magistrate then required insight int o the SHRA’s
internal processes, its AGM report and its quarterly report. The first respondent’s
legal representative also put to Ms Hansrajh that the re we re approximately three
thousand properties which are regarded as social housing stock, funded from
institutional subsidies.

[14] From the evidence placed before the Acting Magistrate, it appears that i n
1929 the Housing Utility League Company was established as a non -profit company,
which subsequently changed its name to the Citizens Housing League in 1964. In

2 Excluding Drommedaris Phase 1
3 Excluding Bothasig Gardens Phase 1
1990, the latter became known as Communicare, the appellant. Ms Hansrajh
confirmed that properties belonging to the appellant which were not classified as
social housing, d id not fall under the social housing Regulations , thus the appellant
did not rep ort to the SHRA regarding such properties, but only on the three
aforementioned social housing stock. She also confirmed, to the extent that she
could, that the appellant had private and social housing stock and that the SHRA
was unable to obtain details on the source of the funding of certain stock. Her
explanation, when pressed by the Acting Magistrate , was that if proved that stock
was institutionally subsidised, then it fe ll under social housing stock and w as to be
regulated by SHRA.

[15] In what may only be described as a debate between the legal representative
for the first respondent and the Acting Magistrate during Ms Hansrajh’s testimomy , it
became apparent that Ms Matunzi deduce d that because certain properties in
Brooklyn were accredited as social housing and because of the “say so” of the first to
eleventh and thirteenth respondents , therefore the property in question in case
number 1303/2019 must therefore be social hou sing stock.

[16] Ms Hansraj h testified further that the SHRA had no evidence that the propert y
was funded through public funds , and stood firm that it was not part of the appellant’s
initial application for accreditation to SHRA . The appellant had indicated in its
application for accreditation that such property was unsubsidised.

[17] Ms Hansraj h painstakingly explained to the Court that her task involved
looking at the appellant’s accreditation application , the projects listed on s uch
application, wh ich housing were considered as being institutionally subsidised and
comparing such information against the list of properties mentioned in the six
applications. She also explained that it was not uncommon for institutions such as
the app ellant to own private housing stock as well as government funded stock. The
witness confirmed that the properties mentioned on the list were not government -
funded , however, she testified that she was unable to say whether A[...] Huise was
subsidised by public funds , but according to the appellant’s records, the property
was unsubsidised.

[18] Significantly, Ms Hansraj h testified that private stock meant that there was no
government funding and that often private stock was a vailable to an institution to
supplement its income. An institution, such as the appellant, would invest in private
rental properties .

[19] The second witness required by the Court a quo was Sithengwa Dladla. Mr
Dladla’s portfolio as Regulations Manager of SHRA involved mainly the enforc ement
of the Act. He provided a forensic report into the investigation of Communicare,
authored by an independent auditor, and was required to read the report into the
record. Part of the report dealt with the history of social housing, the Act , and the
establishment of the appellant.

[20] The report recommended that the SHRA w as, inter alia , to perform a
verification to determine which of the appellant’s properties were social housing
stock and which were private housing stock . Mr Dladla also confirmed that after the
previous hearing, the SHRA was able to compare the properties listed in the eviction
application with the list of properties registered on the appellant’s name and found
the property referred to in Ms Matunzi’s application , to be private stock. T here w as
no institutional subsid y received for the propert y.

[21] On being pressed by the Acting Magistrate , Mr Dladla testified that the SHRA
could not confirm or determine whether the appellant received loans linked to
mortgage bonds for the propert y in question. The rest of his evidence dealt with the
Act, ownership of the property and institutional funding. The forensic report was
admitted into evidence by the Acting Magistrate .

The judgment and order

[22] The Acting Magistrate relied on Occupiers, Berea v De Wet NO and Others4
to motivate that a Court hearing on eviction application in terms of the PIE Act, must
play an active role in the adjudication of such mater and should engage in active
judicial management, hence his calling of the SHRA witnesses.

4 2017 (5) SA 346 (CC)

[23] In his judgment, the Acting Magistrate question ed whether the properties in
the six applications should be regarded as social housing stock. He found that it was
common cause from the Title Deeds registered over the properties that it had
benefitted from public funding, which constitutes an institutional subsidy, and hence
the properties in the six applications were regarded as social housing stock. He held
further that the property “under discussion” should have been registered as social
housing and been regulated by the SHRA. Furthermore, in the judgment he stated
that it appeared that there was no indication that the SHRA fulfilled the necessary
controls and administration.

[24] The Acting Magistrate was also of the view that the SHRA should have been
more involved in decisions to evict occupants from social housing stock where they
failed to pay rental. Accordingly, the two remaining points in limine were upheld and
the appellant was ordered to pay the costs. Further findings were made in re spect of
another property forming the subject of case name 3079/2022, which did not form
part of the applications before the Court a quo .

The Social Housing Act and Regulations

[25] In order to address the grounds of appeal it is necessary to first consider the
relevant legislation applicable to social housing. The Preamble to the Act sets out the
aims and purpose of the Act as requiring of all spheres of government to prioritise
the needs of the poor in respect of housing development, the promotion and
establishment of socially and economically viable communities and safe living
conditions5. The Preamble also recognises the need for the regulation of social
housing and the dire need for affordable rental housing for low to medium income
households .

[26] The term “social housing ” is defined in section 1 of the Act as:

“Definitions

5 The reference in the Preamble to safe living conditions which exclude slum conditions
1. In this Act, unless the context indicates otherwise –
“social housing” means a rental or co -operative housing option for
low to medium income households at a level of scale and built form
which requires institutional management, and which is provided by
social housing institutions or other delivery agents in approved project s
in designated restructuring zones with the benefit of public funding as
contemplated in this Act;

[27] Aside from the above, I must emphasise that it is common cause in the
appeal that the appellant is a social housing institution, which is defined as follows:

“social housing institution” means an institution accredited or provisionally
accredited under this Act which carries or intends to carry on the business of
providing rental or co -operative housing options for low to medium income
households (excludi ng immediate individual ownership and a contract as
defined under the Alienation of Land Act, 1981 (Act No 68 of 1981), on an
affordable basis, ensuring quality and maximum benefits for residents, and
managing its housing stock over the long term;6

[28] Section 7 establishes the SHRA which is accountable to the National Minister
of Housing . Furthermore, sections 11 and 12 convey the functions and intervention
powers of the SHRA. From a reading of the Act and its Preamble, it is apparent that,
firstly, the Act applies to social housing only, and secondly, the functions and powers
of the SHRA apply to social housing only. In that case, it must be so, as argued by
the appellant, that the SHRA’s powers and functions are legislated by the Act and
that it cannot act beyond or outside of its legislated mandate. Thus, the SHRA has
no authority, regulatory or otherwise, in respect of properties which are not defined
as social housing stock, such as privately owned property or private vacant land that
did not have the benefit of public funding .

[29] It is also important to note from the Preamble that the SHRA’s core function is
to regulate all social housing institutions which obtain or have obtained public funds.

6 Section 1 of the Act
Having regard to the above initial parameters, the application of the Act and the
ambit of the SH RA’s legislative man date, where an institution such as the appellant
did not obtain public funds for a particular project or property , and/or where the
particular property owned by the relevant institution is not social housing, then the
Act does not apply and the regulatory function of the SHRA also finds no application.
This conclusion is self -evident and logical.

[30] Furthermore, the Act applies to institutions that received accreditation by the
SHRA which allow such social housing institution access to grants under the social
housing programme. Public funding would then be granted for an approved social
housing project in terms of which the social housing institution would acquire,
develop, convert or upgrade buildings for social housing7. Section 11(3)(b) of the Act
prescribes one of the functions of the SHRA to be that of accreditation of social
housing institutions which meet accreditation criteria as a social housing institution,
for purposes of applying for grant funding as allowed in section 11(3)(a) of the Act.

[31] The appellant submits that having regard to the legislative framework, the
SHRA only has jurisdiction over social housing stock when regard is had to the
definitions in section 1, as set out above, read with the provisions of sections 11 and
12. Having reg ard to the text, context and purpose of the legislation , I agree with
these submissions8. The SHRA is the Regulatory Authority, with an important role,
key to the development, awareness and support of social housing development , but
its powers and authori ty are strictly limited to social housing stock.

[32] Regulation 3 of the Social Housing Regulations addresses the qualifying
criteria for accreditation of social housing institutions. Regulation 3(7) which the first
respondent refers to in the answering affi davit , sets out the requirements necessary
for an effective tenant/membership management , such as staffing resources, a
tenant/membership plan, communication strategies, complaints management
systems , surveys, consultation and empowerment programme and the like.

Interference on appeal

7 See meaning of “approved project’ in section 1
8 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 par [18]

[33] In the absence of a demonstrable error, the Court a quo’s factual findings are
presumed to be correct9. In Makate v Vodacom10, the Constitutional Court
emphasised that in the case of a misdirection on the facts, the appellate Court is
entitled to draw its own conclusions from the facts as they appear from the record,
and where it is convinced that the Court a quo was clearly wrong in its conclusion,
the appellate Court will reverse the incorrect decision.

Discussion

[34] With the above in mind, I have regard to the remaining points in limine which
formed the subject of the Acting Magistrate’s judgment . At paragraph 10 of the
judgment , he made a finding that no due process was followed by the appellant yet
also found that the appellant had made concerted efforts to liaise with the
respondents prior to commencing litigation. The Acting Magistrate found that in
certain cases, agreements were reached with the respondents to settle arrear rental
and that such agreements were, however, reneged on as some respondents failed to
respond t hereto . My understanding from the judgment is that the Acting Magistrate
recognised that the se agreements were concluded in terms of private leases with the
appellant .

[35] In addition, the Acting Magistrate had already decided the point in limine that
there was no pre-litigation nor meaningful engagement , yet the judgment later
indicates that the second, fourth and fifth points in limine would be dealt with
collectively. On a close reading of the judgment, particularly from paragraph 34
onward, it then transpires that the fourth point is not discussed further as indicated.
Unfortunately, the confusion in the judgment was foreshadowed by the protracted
and disjointed proceedings in the Court a quo which are addressed later herein .

[36] In view of these aspects, which set the scene for the remaining points in
limine which the Acting Magistrate was required to determine, it was th us required of
him to have appreciated and understood the limitation of the SHRA’s legislative

9 Bee v Road Accident Fund [2018] ZASCA 52 par [46]
10 2016 (4) SA 121 (CC) par [40]
mandate , its authority and the extent thereof within the parameters of the Act.
However , he failed to do so.

[37] In respect of the second point in limine, described in the judgment as “non-
compliance with Social Housing Regulatory Authority” , the Acting Magistrate found
that it was common cause that the properties under discussion benefitted from public
funding, and in this regard, relies on “the title deeds registered over the properties
concerned”11. He refers to the Certificate of Registered Title T [...] in respect of Erf
1[...] Cape Town, 9 [...] J[...] Street, Brooklyn. The Certificate of Registered Title
should be read with the Windeed Search which indicates that the property was
registered in the appellant’s name in July 1975. The evidence of Ms Hansrajh
confirms that 1 A[...] Huise forming the subject of the eviction application in this
appeal , is situated at 9 [...] J[...] Street, Brooklyn. The first respondent’s legal
representative submitted that because the Title Deed refers to the Act, therefore it
must be accepted that public funds were utilised to purchase the property , Erf 1[...].
The submission, in my view, was not correct because the Title Deed is not evidence
that because a bond was passed in favour of the Citizen’s Housing League, the
appellant’s predecessor , therefore it must be so that public funds were used to buy
the particular property .

[39] In my view , the reliance on the Title Deed is based on the incorrect
assumption that it is proof that public funding was used to purchase 1 A[...] Huise in
Brookl yn. The appellant acquired the property in 1975 and the vague suggestion that
the application of the Act’s provisions is retrospective, is unsustainabl e. Given that
the point s in limine were raised by the first respondent, it was incumbent on the latter
to have proved that the property was purchased with public funds and thus
constitutes social housing stock which must therefore be regulated by the SHRA.
The first respondent failed to do so and neither of the SHRA managers summoned to
appear and te stify before the Acting Magistrate, provided evidence which would or
should have cause d the latter to reach a conclusion, as he did, that the property
benefitted from public funding and was thus social housing stock .


11 Judgment, par 36
[40] The Acting Magistrate ’s conclusion th at it was common cause that the
properties benefitted from public funding , was wrong . From the affidavits filed in the
application, the further documents provided and the testimonies of Ms Hansrajh and
Mr Dladla, there was simply no factual basis to conclu de that it was common cause
that the property was purchased from public funds .

[41] The further conclusion at paragraph 37 of the judgment that :

“…the funding received, falls under the definition of “institutional subsidy”. It
should therefore be regarded as social stock housing”,

was thus tainted by an incorrect conclusion which was followed by further errors in
the judgment insofar as the role and ambit of the SHRA’s involvement and regulatory
oversight in respect of the property in question. Ms Hansrajh and Mr Dladla
confirmed the appellant’s version that the said property was not social housing stock
and that private stock was unsubsidised. I n the result, the finding was incorrect
because 1 A[...] Huise, 9 [...] J[...] Street, Brooklyn was not social housing stock, as
the appellant stated in its founding affidavit, and in those circumstances, it did not fall
under the auspices and regulation of the SHRA.

[42] While the Acting Magistrate ’s exposition of the role and purpose of the SHRA
cannot be faulted, his later finding that the property should have been registered as
social housing stock , that the SHRA should have regulated these properties , and
that in the case of social housing stock, there was no indication that the SHRA
“executed the necessary controls and administration” , were all incorrect. These
sweeping statements and findings were simply not supported by the evidence
presented in the proceedings before the Court a quo .

[43] I agree with the appellant’s submission that the Acting Magistrate ,
notwithstanding his acknowledgement that Ms Hansrajh had differentiated that
private stock was unsubsidised and did not receive public finding, erred when he
failed to properly consider the provisions of the S ocial Housing Act . He accordingly,
furthermore, failed to appreciate that private ly-owned property such as 1 A[...] Huise ,
was not subject to the Act and Regulations, nor to the oversight of the SHRA.

[44] I thus agree with the appellant’s submission that by extending the powers of
the SHRA to include private housing stock , the Acting Magistrate impermissibly
extend ed the mandate and aut hority of the SHRA as delineated in the Preamble and
sections 11 and 12 of the Act. As such , the Acting Magistrate acted beyond his
authority and ultra vires the provisions of the Act .

[45] In my view, the Acting Magistrate ’s reliance on the Berea judgment requires
closer scrutiny in this appeal as he sought to rely on the Constitutional Court’s
judgment to motivate and support his approach in the matter and the call for
witnesses and further evidence from the SHRA. It is correct that the Berea judgment
calls for a pro -active approach from Courts in eviction applications in terms of PIE ,
but on a proper reading of the judgment, this pro-active approach must be placed in
context.

[46] In Berea, the Court address ed, inter alia, the approach and duty of Courts
generally in PIE applications but specifically w here the re was a consent to eviction . It
referred to Port Elizabeth Municipality v Various Occupiers12 and other
judgments when discussing the role of Courts in the enquiry int o whether it is just
and equitable to evict a person and the further consideration of relevant
circumstances as contemplated in sections 4(6) , 4(7) and 6(1) of the PIE Act, as
follows:

“[41] The prohibition in section 26(3) is given effect to through the enactment
of PIE. This Act goes further and enjoins the courts to order an
eviction only “if it is of the opinion that it is just and equitable to do so,
after considering all the relevant circumstances” as contemplated in
section 4(6) and (7) and section 6(1).

[42] This Court in Port Elizabeth Municipality emphasised the new approach
that courts must adopt in eviction matters. A court must take an active
role in adjudicating such ma tters. As this Court stated:

12 [2004] ZACC 7 at par [36]

“The court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable principles
of an ongoing, stressful and law -governed social process. This has
major implica tions for the manner in which it must deal with the issues
before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it exercises its powers and
the orders it might make. The Constitution and PIE require that, in
addition to considering the lawfulness of the occupation the court must
have regard to the interests and circumstances of the occupier and pay
due regard to broader considerations of fairness and other
constitutional values, so as to produce a just and equitable result.”
(footnotes omitted)

[47] It is clear from the above authorities, that the active judicial management
referred to in PE Municipality and Berea must be based on equitable principles .
The procedures adopted, the approach to evidence , and the exercise of a Court’s
powers in eviction applications must still be centred in equity , more particularly when
determining whether it is just and equitable to evict, and if so, the Court’s
consideration of relevant circumstances as referred to in the PIE Act.

[48] In my view, neither Berea nor PE Municipality allow for a situation as that
which transpired in the proceedi ngs before the Acting Magistrate, where he
exceeded his authority and sought to extend the powers of the SHRA, as the
regulatory author ity, beyond the ambit of the Social Housing Act , under the auspices
of his “judicial management” of the matter. The findings and conclusions in the
judgment were not equitable , and decisions were based on a misunderstanding of
the facts and misinterpretati on of sections of the Act , namely that the property was
institutionally subsidized and that the Title Deed is proof of public funding.

[49] Clause 6.5.6 of the lease agreement allows the landlord to collect information
from the tenant in order to compile tenant registers, which m ay be used by the
SHRA , provincial or local government authority . This is the only reference to the
SHRA in the lease agreement and in my view, does not alter the conclusion that the
judgment was incorrect to find that the appellant’s private stock fell under the
authority and regulation of the SHRA. The parties could agree to be bound by the
Act, but that does not mean that the SHRA’s powers extend to the appellant’s private
stock13.

[50] In my view, the Acting Magistrate’s f inding that the SHRA had a role to play
and had regulatory powers over the appellant’s private stock was ultra vires the Act.
Thus, I conclude that the Court a quo erred when it upheld the point in limine that
there was non -compliance with the SHRA’s authority.

[51] In respect of the point in limine that no due process was followed, it is telling
that the first respondent does not i dentify in her answering affidavit what the “due
process” was, except to refer to Regulation 3(7) . This Regulation has no applicability
to privately -owned property but even if it were applicable to the parties’ agreement, it
is evident from clause 6 .5 of the lease agreement, that the appellant sought
information from the tenant for reasons including legal and regulatory
requirements14, for compil ing tenant registers15, was required to determine support
structures16 and for compl iance with various management and administrative
functio ns. To this extent, it cannot be said that due process was not followed in
relation to the first respondent and accordingly , the decision to uphold th is point in
limine was wrong. Interference on appeal is thus warranted in the circumstances .

[52] It is evident that the appellant is a social housing institution and that 1 A[...]
Huise, 9 [...] J[...] Street, Brooklyn , is private ly owned by it. Thus, it does not form part
of the appellant’s social housing stock, a fact which the Acting Mag istrate should
have been alive to. Furthermore, as the registered owner of the p roperty , the
appellant elected to exercise its right as owner and lessor to terminate the lease
agreement with the first respondent in view of the alleged m aterial breach of the
provisions of the lease agreement.


13 See section 11(1) of the Act
14 Clause 6.5.13
15 Clause 6.5.6
16 Clause 6.5.10
[53] Whether the first respondent is an unlawful occupier or not is an aspect yet to
be determined by the Court a quo. It is also evident from the application and the
evidence presented during the hearing that t he appellant is not a normal landlord
and if one has regard to some of the provisions of the lease, it is also clear that it
operates in a particular space in respect of low -income housing17. In view of the
above findings, the appeal will be upheld .

Concludi ng observations

[54] I am cognisant that this is an appeal and not a review of the proceedings in
the Cape Town Magistrate s’ Court. However, I am also of the view that it would be
remiss to turn a blind eye to the numerous incorrect decisions and procedural def icits
adopted by the Acting Magistrate which unfortunately are glaring from the very
lengthy and voluminous record. In view of the fact that the parties are agreed that the
eviction applications are still to be determined and that the matters are to be referred
to the Magistrates’ Court for such hearing, the aspects addressed below are thus
necessary.

[55] The comments are not meant to cause the Acting Magistrate any
embarra ssment but are intended to highlight errors which had the result of
unnecessarily protracting and delaying the eviction proceedings. Firstly,
notwithstanding finding that the application regarding property at 2 [...] G[...] Flat, 9 [...]
J[...] Street, Brooklyn , was not before him, meaning that he should not have made
any decisions and findings regarding such matter, the Acting Magistrate
nevertheless dismissed the application. Secondl y, he allowed the first respondent’s
legal re presentative to include a lease a greement related to an unrelated property
not forming part of the matters before him and to attach same to an order which he
had granted .

[56] Thirdly, the Acting Magistrate also insisted that Ms Hansrajh investigate
funding of the appellant’s projects and return to Court to testify about the report.
Despite Ms Bruintjies, the appellant’s legal representative in the Court a quo , having

17 See for example, clauses 5.6, 6.5.2, 6.5.6 and 6.5.13 of lease agreement
informed the Acting Magistrate that the Goedehoop property which he had queried
and wanted investigated, was not part of the applications, he nonetheless persisted
that an investigation be conducted . It is apparent that despite concerted efforts by
the legal representative to inform the presiding officer that 1 A[...] Huise is not the
same property, the significance of the distinction was not appreciated by the Acting
Magistrate .

[57] Fourthly, the Acting Magistrate also insisted upon a forensic report and further
investigation regarding the appellant and its business, which in my view, goes
beyond what he was called upon to decide in the determination of the points in
limine . Furthermore , it is concerning that throughout the proceedings regarding the
points in limine , he consta ntly and regularly defer red to the first respondent’s legal
representative, requesting the latter to write letters to the SHRA for further
information which the Court wanted . These actions are concerning because the
request came from the Court and not from one of the parties to the proceedings , and
he should thus not have abdicated this responsibility to the legal practitioner.

[58] In addition to the above, the Acting Magistrate allowed witnesses to testify
regarding a report related to the appellant, which was compiled by an external
auditor, who was not called to confirm the correctness and veracity of the content
and findings of the report .

[59] Regrettably, the record reflects that the proceedings were conducted in a
haphazard, disorderly fashion , with countless interjections during witnesses’
testimonies, including submission s by legal representatives while witness es testified .

[60] In my view, the c onsequences of these combined circumstances and the
Acting Magistrate’s insistence that he ha d wide powers , led to a situation where
proceedings on points in limine , which should have been brief and concluded within
a few hours at most, became a remarkably and unnecessarily lengthy hearing .

[61] Witnesses from the SHRA were required to fly to Cape Town to testify more
than once , conduct investigations and testify regarding a report by a third party, at
the behest of the presiding officer who misconceived the ambit of authority of the
SHRA and paid no heed to the fact that 1 A[...] Huise was p rivate stock . In light of
these factors, my view is that the eviction proceedings should proceed before a
different Magistrate.

Costs

[62] Insofar as costs are concerned, the order upholding the appeal and setting
aside the Acting Magistrate ’s decision on the two points in limine would have the
effect that the costs order against the appellant would also be set aside. During the
hearing , counsel for the appellant submitted that should the appeal succeed, costs
should not be awarded against the f irst respondent, and I am in agreement with this
view.

Order

[63] In the result, I would make the following order:

a. The appeal is upheld. No order as to costs.

b. Paragraphs 46 and 47 of the Order granted by the Court a quo are
substituted with the following:

“The points in limine are dismissed. No order as to costs.”

c. The matter under case number 1303/2019 is referred to the Cape
Town Magistrates’ Court fo r hearing of the merits of the eviction application
before a different Magistrate.


_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT

I agree and it is so ordered.

_____________________________
M FRANCIS
JUDGE OF THE HIGH COURT


Appearances :

For Appellant: Adv A Lawrence
Instructed by: Toefy Attorneys
Kenilworth

For First to Eleventh, and Thirteenth Respondents : Mr B Dlova
Instructed by: Dlova Attorneys
Cape Town