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in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISON, CAPE TOWN)

Case No.: 22788/2024

In the matter between:

HENDRIK GERT JAN DU TOIT N.O. First Applicant

BRIAN WILLIAM RAFFLES N.O. Second Applicant

MAGARIETA ALETTA RAFFLES N.O. Third Applicant
(in their capacities as the trustees of
THE B R FAMILY TRUST (IT3587/1999))

and

ANDREW GILL First Respondent

CAROLINE GILL Second Respondent

ALL PERSONS CLAIMING OCCUPATION Third Respondent
THROUGH FIRST AND SECOND RESPONDENTS
AND/OR UPON WHOSE BEHALF FIRST
AND SECOND RESPONDENTS CLAIM OCCUPATION

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THE CITY OF CAPE TOWN Fourth Respondent

Coram: Vaughan AJ
Hearing: Wednesday, 28 May 2025
Delivered: 2 June 2025 (electronically)


JUDGMENT IN RESPONDENTS’ LEAVE TO APPEAL APPLICATION


1. This is an application for leave to appeal the judgment and order granted on 9
May 2025, for the eviction of the respondents from the property commonly
known as […] S[...] Crescent, Arora, Durbanville (‘the property’ ) under the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (‘PIE’) by 7 June 2025, failing which by the Sheriff on 14 June 2025.

2. Mr and Mrs Gill again appeared in person. The Court made substantial inquiries
regarding whether they wished to consider the postponement of the matter to
have legal representation, and Mr Gill confirmed that he wished to proceed with
the matter. The application was opposed by the applicants.

3. The leave to appeal application raises four grounds of appeal , which in
summary are the following:

3.1. that the court erred in not inquiring into and misinterpreting the
respondents’ financial and personal position and that the time frame for
eviction was too short;
3.2. that the court erred in granting costs against the respondents;
3.3. that the court disregarded “relevant facts” in determining that their
occupation was unlawful;
3.4. additional ‘considerations’ which reference their lack of legal counsel and
the reasons why they have landed in a ‘desperate financial situation’.

4. Before turning to consider the grounds upon which leave to appeal is sought, I
must deal with Mr Gills’ submissions made to this Court during th e leave to
appeal application.

5. It was explained by the Court at the outset of the hearing to Mr Gill that (i) a
leave to appeal application was not a re-hearing of the matter; (ii) the Court was
bound to what was before it in the eviction application in considering the
application; and (iii) the Court had to apply the test for granting leave to appeal
in deciding the matter, namely whether there are reasonable prospects of
success on appeal.

6. Nevertheless, in addressing the Court , Mr Gill raised matters outside of the
bounds of the papers before the Court in the eviction application , two of which
ultimately have a bearing on the decision I have reached in this matter.

7. The first related to the health of Mr Gill’s mother -in-law, Ms Regina Joss, who
resides on the property. While her ankle disability, need for ready access to
bathroom facilities and assistance from Mrs Gill as a carer was on the evidence
before me and was taken into account when I granted the eviction order, at the
leave to appeal application Mr Gill advised that her condition was far more
severe: She is bed -ridden, unable to feed or dress herself, and entirely
dependent on Mrs Gill for care.

8. The second issue raised the risk of homelessness for the first time. Mr Gill told
the Court that if the eviction was granted he, his wife and mother -in-law would
be “out on the streets”, as they “had nowhere to go”.

9. Whilst it is trite that the Court in a leave to appeal application is bound by the
evidence on which the original order was granted, where litigants in person are
concerned a Court should not adopt an overly formalistic and technical
approach.1


1 Xinwa and Others v Vokswagen of South Africa (Pty) Ltd 2003 (4) SA 390 (CC) para 13

10. Had I had the information to which Mr Gill alluded before me at the time the
order was granted, I may have interrogated the relevant personal
circumstances of the occupiers further. It may also indicate that another court
may reasonably find that I did not make sufficient inquiries at the eviction
hearing in relation to these issues and in particular the question of possible
homelessness, at which hearing a judicial officer i s enjoined to take on a more
inquisitorial and active approach than traditionally required .2 This is because a
Court must be apprised of all relevant information before it can make a just and
equitable order. 3 Another Court could find that this inquiry should have been
made by the Court, even though the respondents did not raise it pertinently on
their papers, or in addressing the court regarding their financial and personal
circumstances at the hearing.

11. As soon as there is a risk of homelessness, the constitutional rights of the
respondents of access to adequate housing under section 26(1) of the
Constitution are implicated. A Court must in those circumstances inquire into
the need for emergency accommodation and the availability of land elsewhere.
As was made clear in Occupiers, Shulana Court, 11 Hendon Road, Yeoville,
Johannesburg v Steele [2010] 4 All SA 54 (SCA) , this is so regardless of
whether one is dealing with an application under section 4(6) or 4(7) of PIE.4

12. In this regard, I am grateful to Mr Robertson , counsel for the applicants, for
brining to my attention a decision of the Full Bench of this Division of 24
February 2025 in the matter of in A.P and Another v Cohen and Others
(Appeal) (A 216/2024 ; 21188/2023) [2025] ZAWCHC 66 (24 February 2025).

13. The above judgment makes it clear that , where a risk of homelessness is
raised, the Court must make the appropriate inquiry into the availability of
alternative accommodation and that , in order to do so, it must have a report

alternative accommodation and that , in order to do so, it must have a report

2 Ritama Investments v Unlawful Occupiers of Erf 62 Wynberg (30782/05) [2006] ZAGPHC 6 (27
January 2006) ; Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 36 ;
Occupiers of Erf 101,102,104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Inv estments
(Pty) Ltd [2009] 4 All SA 410 (SCA) para 14.
3 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 30 – 36.
4 Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele [2010] 4 All SA 54
(SCA) at para 13.

from the City of Cape Town on alternative accommodation , unless there is
proof that the unlawful occupier has declined the assistance of the municipality
or other organ of state. 5 In this regard, the Court does not ‘condone any
differentiation between the means of the occupants’ – the inquiry must be made
in all circumstances.6

14. The fact that the decision of the Full Bench concerned a n application under
section 4(7) of PIE does not al ter the position regarding the inquiries to be
made and the report to be obtained, if homelessness is raised.7

15. Another Court could reasonably find that , although Mr Gill in his answering
papers in the eviction application accepted that they would vacate the premises
if the ‘solution’ presented by them was not accepted by the applicants, I did not
interrogate the question of alternative accommodation or the risk of
homelessness sufficiently in granting the eviction application , alternatively that
it was necessary to obtain a report from the City of Cape Town . It may
reasonably find that this is what was required before the Court could conclude
that it was just and equitable to grant an eviction order. Another Court may thus
find that th is Court did not have all the relevant information before it to have
found that it was just and equitable to grant an eviction order , or that the date
fixed for the eviction was just and equitable in the circumstances.

16. I do not believe that there is any prospect of success on appeal in relation to
this Court’s finding regarding the unlawfulness of the respondents’ occupation.
However, in view of what I have said above regarding whether the Court was
correct in finding that it was just and equitable to grant the eviction order, and in
setting the date for the eviction that it did , I conclude that leave to appeal
should be granted.

17. In the circumstances, I make the following order:


5 Paras 51 – 52.
6 Para 49

17. In the circumstances, I make the following order:


5 Paras 51 – 52.
6 Para 49
7 Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele [2010] 4 All SA 54
(SCA) at para 13.

17.1. The respondents’ leave to appeal application is granted to the Full Bench
of this Court;
17.2. The costs of the application will be costs in the appeal.


____________________
B.J. VAUGHAN
ACTING JUDGE OF THE HIGH COURT

2 June 2025


Appearances:

For Applicants: Adv. D. Robertson
Instructed by: Willian Inglis Inc
For Respondents: In person (Mr A Gill and Mrs C. Gill).