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
GAUTENG DIVISION, JOHANNESBURG

CASE Number: 2022 – 047372
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
8 August 2025

In the matter between:-

CITY OF EKURHULENI Applicant

and

PRECIOUS SHUENYANE SAKO First Respondent

UNLAWFUL OCCUPIERS OF THE REMAINDER
OF ERF 4[…], EDENVALE TOWNSHIP Second Respondent

Summary: Eviction – section 4(7) of PIE Act considered – overall requirements of
section satisfied – respondent in unlawful occupation of property – applicant entitled
to eviction – personal circumstances of respondent considered – delayed eviction
just and equitable in the circumstances
Eviction – municipal report with regard to temporary emergency accommodation –
requirements of report considered – report inadequate – deficient report however
does not prevent eviction – any deficiency mitigated by order of investigation by
applicant and participation by respondent – date of eviction delayed allowing for such
process

2

Eviction – just and equitable considered – requires balance of interest of both
parties – rights of property owner must be respected – occupant must establish a
proper case of personal considerations to establish homelessness as defence to
eviction
Eviction – eviction order with delayed date granted – order subject to further report
by applicant on temporary emergency accommodation – order further subject to
participation in process by respondent

JUDGMENT


SNYMAN, AJ
Introduction

[1] The current matter concerns an application brought by the applicant for the
eviction of the first respondent from the property of the applicant situate at the
Remainder of E rf 4 [...], E denvale Township, Unit [...] V[...] Court, 1[...] V[...] Avenue,
E[...] (the property). The application has been brought in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
1 (PIE Act).

[2] As seems to be the norm in these kinds of applications, what was sought to
be presented by both parties went beyond the normal sets of affidavits in terms of
the Uniform Rules of this Court. Further, the applicant complained that the first
respondent sought to introduce new facts and issues for the first time in her heads of
argument, which is not a permissible manner in which to place such evidence before
Court. It is obviously true that heads of argument do not constitute affidavits, and
new evidence cannot be placed before Court by way of heads of argument.
2 But
what fortunately ameliorated the problem was that the applicant filed a
supplementary affidavit to answer all the contentions in the heads of argument of the
first respondent it complained of. In the interest of justice, and considering that the

1 Act 19 of 1998.
2 See Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 17; Jaftha v
Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC) at para 28; President of the Republic of South
Africa v Modderklip Boerdery 2005 (5) SA 3 (CC) at para 36.

3

applicant was afforded an opportunity to answer what is contained in the heads of
argument, I will take all these issues into consideration. After all, eviction
proceedings have a constitutional imperative,3 and in order to ensure that a complete
picture is obtained before such relief is granted, some relaxation in the strict rules of
presenting evidence may be justified, provided one party is not unduly prejudiced.

[3] Another preliminary issue that must be dealt with, but fortunately in this
instance being a positive development, is the issue about whether the first
respondent was in unlawful occupation of the property. The first respondent had
specifically contended in her first answering affidavit that the applicant’s case that
she was in unlawful occupation of the property was not true, and that she was in fact
in lawful occupation thereof. However, t he first respondent’s counsel, at the
commencement of the matter, indicated that this issue was not being persisted with
by the first respondent, and that the point was abandoned. The first respondent
conceded she was in unlawful occupation of the property. This issue will accordingly
be decided on the basis of this concession , which in the end, when considering the
facts, was properly made.

[4] The application came before me on 30 July 2025 for determination. After
hearing argument by both parties and having considered all the pleadings and
documents, I indicated to the parties that I would reserve judgment, and that
judgment will be handed down on 8 August 2025. I now proceed to hand down
written judgment, starting with setting out the background facts.

The relevant background facts

[5] The Applicant is the lawful and registered owner of the property .4 Although
the applicant is a Municipality, and thus part of the State, the property in question is
normal commercial residential property, rented out by the applicant to tenants, and

normal commercial residential property, rented out by the applicant to tenants, and
from which it earns a revenue. As stated above, it is now undisputed that the first

3 See KSL v AL 2024 (6) SA 410 (SCA) at para 25; Leshabane v Minister of Human Settlements and
Others (2024) 45 ILJ 833 (LC) at para 51; Araujo v Krige and Others 2022 JDR 2349 (GP) at para 94.
4 Therefore, applicant is the person in charge of the property, as defined in section 1 of the PIE Act.

4

respondent is currently in the unlawful occupation of the property. As such, section 4
of the PIE Act would find application in this instance.

[6] Prior to the institution of these proceedings, the first respondent had been
residing at the property with her now estranged husband, Walter Sako (Sako). Sako
was an employee of the applicant, and he was permitted to occupy the property
pursuant to such employment. In this context, and on 1 November 2019, the
Applicant and Sako entered into a written lease agreement in respect of the property.
It was a lease agreement in the ordinary course, in terms of which Sako paid rental
to the applicant. Sako also paid for services in respect of the property . He was all
intents and purposes an ordinary tenant.

[7] In 2020, Sako retired from the employment of the applicant. Pursuant to such
retirement, Sako of his own accord terminated the lease agreement, in writing, with
effect from 10 December 2020. It further appears that he vacated the property , but
left the first respondent behind in occupation thereof. Having remained behind in the
property, so to speak, the first respondent however did not pay any rental for the
property, and she never sought to conclude a new lease agreement with the
applicant.

[8] The applicant then required the first respondent to vacate the property. She
failed to do so. She was given written notice to vacate the property on 28 May 2021,
within 30 days, failing which legal proceedings to evict her would be instituted. The
first respondent still did not vacate the property. A further identical notice followed on
22 February 2022, again giving the first respondent 30 days to vacate the property.
Yet a gain, the first respondent paid no heed to this notice. In fact, there is no
evidence of the first respondent even seeking to engage with the applicant to
regularize her position. And throughout, she paid no rental.

[9] Finally, and in a notice dated 22 September 2022 , the applicant, through its

[9] Finally, and in a notice dated 22 September 2022 , the applicant, through its
attorneys, gave the first respondent final notice that her occupation of the property
was unlawful, and she was required to vacate the property by 31 October 2022. This
notice was served on the first respondent by way of the Sheriff on 3 October 2022 .
The first respondent did not vacate the property by the stipulated deadline. The

5

current application then followed on 16 November 2022, and has been pending
since.

[10] As stated, the first respondent no longer disputes that she is in unlawful
occupation of the property . What the first respondent has instead done is to focus
her opposition to being evicted on basis that it would not be just and equitable to do
so in her case, as contemplated by the PIE Act. The first respondent further
contends that the matter is not ripe for hearing because of non- compliance with
section 4(7) of the PIE Act. In this regard, the first respondent has set out a number
of personal circumstances, elaborated on below.

[11] The first respondent states that the property has been her home since the
conclusion of the lease agreement with Sako, that she is fifty years old, unemployed,
and unable to find alternative accommodation. She further states that she is still
married to Sako, in community of property, but the relationship has soured, the
marriage is over , and there are currently divorce proceedings pending. She also
provided a protection order being obtained against Sako on 29 March 2021, and
contends it is impossible for her to live with him. But what she unfortunately did not
do is to set out what efforts she took to find alternative accommodation.

[12] The first respondent further complained that the applicant had disconnected
electricity supply to the property, despite there being a pre- paid meter at the
property, and this constituted harassment and unlawful conduct. The first respondent
states that her attorneys did complain to the applicant about this in writing, but
nothing was done by the applicant in response.

[13] As to her further socio-economic circumstances, the first respondent added in
her supplementary answering affidavit that she has been unemployed since 2017.
However, she does do occasional temporary work assisting her aunt with her aunt’s
company’s stalls at expos and worked for the IEC as election officer. This work was

company’s stalls at expos and worked for the IEC as election officer. This work was
sporadic and not well-paid, and she only managed to pay her day to day living costs
out of these earnings . As to her qualifications, she has a matric and diploma in
beauty technology. She states has been looking for employment, has not been
successful, but provided no particularity as to the efforts she took in this regard.

6


[14] According to the first respondent, she has no income and no savings, and
depends on her two sisters for money. These sisters have their own families and live
in Midvaal and Edenvale respectively. It is not possible for the first respondent to live
with them, as there is no space for her in their homes. As to other family members,
the first respondent’s father lives with the first respondent’s brother in a two-bedroom
low cost house in Alexandra. There is also insufficient space to accommodate her in
this house. The first respondent concedes that she does stay over at this house from
time to time, when visiting , but when she does so, she sleeps on the floor in the
living room area.

[15] The first respondent explained that due to the disconnection of electricity, it
has become intolerable to stay at the property at certain times. On such occasions,
she would visit at her father’s house and stay there for a short period. However,
there is actually no space for her there and sleeping on the floor is far from suitable.
In a nutshell, she says that based on the above facts, she will be rendered homeless
if eviction is granted.

[16] In reply to the aforesaid contentions by the first respondent, the applicant
argued that the first respondent is still married to Sako, in community of property,
and as such he is obliged to maintain her, yet she took steps to enforce this
obligation. The applicant further suggests that the first respondent could impress it
upon Sako that he has a duty to prov ide her with alternative accommodation. The
applicant also said that although not ideal, it was possible for the first respondent to
live with her father. As to all the personal circumstances set out by the first
respondent, articulated above, the applicant basically contends those are not
sufficiently substantiated by bank statements, proof of actual income received, or
other supporting documents relating to applications for employment. The applicant is

other supporting documents relating to applications for employment. The applicant is
also critical of the first respondent‘s failure to supply supporting documents
concerning her divorce proceedings.

[17] The applicant also refers to an affidavit by a neighbour that the first
respondent has not been seen at the property for some time, which suggests she
was not living there. This contention is supported by a further statement by the

7

applicant that when officials of the applicant visit the property , as they did on
numerous occasions, there is never anyone there and the premises is locked, which
equally suggest that the first respondent was mostly not living there, and simply
refuses to return the property to the applicant. Added to this, the applicant finally
contends that the first respondent is being deliberately obstructive where it comes to
making herself available to the applicant to be interviewed and to participate in an
investigation as to temporary emergency accommodation as contemplated by the
PIE Act, in an attempt to scupper her eviction.

[18] As to the disconnection of the electricity, the applicant has stated that a valid
consumer agreement must be in place, and therefore it disconnected the electricity
supply until a new tenant takes occupation and concludes a consumer agreement.
The first respondent made no attempt to conclude such a consumer agreement.

[19] It should also be considered that in this case, the first respondent had been
residing at the property since the beginning of 2021, without paying any rental, and
without making any effort to at least negotiate with the applicant concerning a
possible lease agreement and / or the payment of rental.

[20] Ultimately, the applicant provided two reports as contemplated by section 4(7)
of the PIE Act with regard to temporary emergency accommodation in respect of the
first respondent. The first report is dated 8 July 2025, and the second report is dated
11 July 2025. These reports will be dealt with later in this judgment.

[21] And finally, notice as contemplated by section 4 (2) if the PIE Act w as served
on the first respondent on 14 April 2025, by affixing the same to the door of the
premises, as an authorised method of service, as she could not be found despite
several attempts, advising of the hearing date of 28 July 2025. As stated, the first
respondent did appear at Court on the hearing date, duly represented by two

respondent did appear at Court on the hearing date, duly represented by two
counsel.

Analysis

8

[22] Before dealing with the merits of the application, the first respondent , in her
first answering affidavit, raised a point concerning the non-joinder of Sako. Then, and
in her heads of argument, she raised a further technical point, never raised in any of
her answering affidavits. This point related to disputing the veracity of the founding
and replying affidavits, by challenging the personal knowledge of the deponents
where it came to the facts deposed to. However, and when the matter was argued
before me, these points were wisely not persisted with. There can be no doubt that,
on the facts, considering what the first respondent herself said about her relationship
with Sako, and that he had long ago vacated the property, Sako would not have any
interest in the outcome of this matter. And as to the issue of the irregularities relating
to deponents to the founding and replying affidavits , this was effectively disposed of
by the applicant’s supplementary affidavit, which I have already said should be
allowed in the circumstances. These points consequently do not stand in the way of
the determination of this case on the merits.

[23] Turning then to the merits of this case, there are two Constitutional rights that
come into play in this matter. First, and in terms of section 25 of the Constitution: 'No
one may be deprived of property except in terms of law of general application, and
no law may permit arbitrary deprivation of property. ' Nonetheless, section 26 of the
Constitution guarantees the right to access adequate housing and provides:

‘(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.’

circumstances. No legislation may permit arbitrary evictions.’

[24] The PIE Act strikes at th e tension that obviously arises when giving effect to
the two rights as set out above. In a nutshell, it provides that the rights of the
property owner must still be respected, and that where an occupier is in unlawful
occupation of the property without a valid defence, eviction in the ordinary course
would be competent. The balance struck then comes in where the eviction is
however made subject to it being required to be just and equitable, in all the

9

circumstances.5 ‘Just and equitable’ is not an ad infinitum obstacle to eviction, as this
would permanently deprive a property owner of its rights, which is not the intention of
the PIE Act . What is at stake is by its very nature a temporary measure to mitigate
excessive harm to occupants , and the required measures would ordinarily serve to
delay eviction until it is just and equitable to do so. The position was succinctly
summarized in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 6 as
thus:

‘… A court hearing an application for eviction at the instance of a private
person or body, owing no obligations to provide housing or achieve the
gradual realisation of the right of access to housing in terms of s 26(1) of the
Constitution, is faced with two separate enquiries. First it must decide whether
it is just and equitable to grant an eviction order having regard to all relevant
factors. Under s 4(7) those factors include the availability of alternative land or
accommodation. The weight to be attached to that factor must be assessed in
the light of the property owner's protected rights under s 25 of the
Constitution, and on the footing that a limitation of those rights in favour of the
occupiers will ordinarily be limited in duration. Once the court decides that
there is no defence to the claim for eviction and that it would be just and
equitable to grant an eviction order, it is obliged to grant that order. Before
doing so, however, it must consider what justice and equity demand in relation
to the date of implementation of that order and it must consider what
conditions must be attached to that order. In that second enquiry it must
consider the impact of an eviction order on the occupiers and whether they
may be rendered homeless thereby or need emergency assistance to relocate
elsewhere. The order that it grants as a result of these two discrete enquiries

5 In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and

Another 2012 (2) SA 104 (CC) at para s 36 – 37, the following pertinent statements were made: ‘PIE
was adopted with the manifest objective of overcoming past abuses like the displacement and
relocation of people. It acknowledges their quest for homes, while recognising that no one may be
deprived arbitrarily of property. The preamble quotes ss 25(1) and 26(3) of the Constitution. In PE
Municipality it was stated that the court is required 'to balance out and reconcile the opposed claims in
as just a manner as possible, taking account of all of the interests involved and the specific factors
relevant in each particular case. … Unlawful occupation results in a deprivation of property under s
25(1). Deprivation might, however, pass constitutional muster by virtue of being mandated by law of
general application and if not arbitrary. Therefore PIE allows for eviction of unlawful occupiers only
when it is just and equitable.’
6 2012 (6) SA 294 (SCA) at para 25.

10

is a single order. Accordingly it cannot be granted until both enquiries have
been undertaken and the conclusion reached that the grant of an
eviction order, effective from a specified date, is just and equitable. Nor can
the enquiry be concluded until the court is satisfied that it is in possession of
all the information necessary to make both findings based on justice and
equity. …’

[25] Turning now to the specific provisions of section 4 of the PIE Act, the relevant
parts thereof provide as follows:

‘(7) If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated, a court 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 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 households headed by women.

(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine-
(a) a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b) 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).

(9) 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.’

11

[26] The provisions of section 4, considered in the context of sections 25 and 26 of
the Constitution, have been the subject matter of many judgments of the
Constitutional Court. I do not intend to repeat all that has be en said in this regard. I
will suffice by the following reference to the recent judgment of the Constitutional
Court in Commando and Others v City of Cape Town and Another 7, which in my
view in essence summarizes it all:

‘Several defining features of the right of access to adequate housing have
emerged from the jurisprudence of the courts:

(a) Section 26(2) of the Constitution requires a comprehensive and workable
national housing programme for which each sphere of government must
accept responsibility. It also provides access to adequate housing for people
at all economic levels of society.

(b) Measures aimed at giving effect to the right must be reasonable, both in
conception and implementation. They must be balanced and flexible; must
make appropriate provision for attention to housing crises and to short -,
medium- and long-term needs; and must be continuously reviewed.

(c) The right of access to adequate housing must be realised progressively, by
which is meant that the right cannot be realised immediately, but the state
must take steps to make housing more accessible to a larger number and
wider range of people as time progresses.

(d) The state's obligation does not require it to do more than its available
resources permit. This means that both the content of the obligation in relation
to the rate at which it is achieved as well as the reasonableness of the
measures employed to achieve the result are governed by the availability of
resources.


7 2025 (3) SA 1 (CC) at para 71.

12

(e) The measures must be calculated to attain the goal expeditiously and
effectively, but the availability of resources is an important factor in
determining what is reasonable.

(f) The state's obligation to provide access to adequate housing depends on
context, and may differ from province to province, from city to city, from rural
to urban areas, and from person to person.

(g) Access to land for the purpose of housing is included in the right of access
to adequate housing.

(h) The ultimate goal is access by all people to permanent residential
structures, with secure tenure, and convenient access to economic
opportunities and health, educational and social amenities, but because this
will take time, provision must also be made for those in desperate need.

(i) In any proposed eviction which may render persons homeless, a process of
meaningful engagement by the responsible authority is constitutionally
mandated in terms of s 26(3).

(j) The Constitution does not give a person the right to housing at the state's
expense, at a locality of that person's choice (in this case the inner city). Thus,
temporary emergency accommodation is not ordinarily required to be in the
inner city. However, the state would be failing in its duty if it were to ignore or
fail to give due regard to the relationship between location of residence and
place where persons earn or try to earn their living.

(k) In Thubelisha Homes this court did not require alternative accommodation
to be located in a specific area. Indeed, it said that 'the Constitution does not
guarantee a person a right to housing at the government's expense, at the
locality of his or her choice'.

(l) In Blue Moonlight this court held that alternative accommodation needed to
be 'as near as possible' to the property from where the occupiers were

13

evicted. Thus, location is a relevant consideration in determining the
reasonableness of temporary emergency accommodation. This is typically
given effect to through orders that state that the emergency accommodation
be 'as near as possible' to the property from which persons are evicted.

(m) Although regard must be had to the distance of the location from people's
places of employment, locality is determined by several factors, including the
availability of land.

(n) The right to dignity obliges the local authority to respect the family unit
when it is obliged to supply homeless persons with temporary emergency
accommodation.

(o) Majiedt J, persuasively writing for the minority in Thubakgale, stated that
—
'the permanent accommodation to be provided by the Municipality must . . .
include ensuring continued access to schools, jobs, social networks and other
resources which the applicants in this case enjoy where they currently stay,
and which they will lose if displaced. This interpretation is in line with spatial
justice and the right to the city, and therefore also in line with the remedial and
transformative purposes of socioeconomic rights and the Constitution more
broadly. … In the context of South Africa's highly segregated urban areas and
scarce access to resources, it should also mean that spatial justice must be
considered in determining what constitutes adequate housing.'

(p) The right to adequate housing (permanent accommodation in the context
of Thubakgale) is not a stand-alone right that should be interpreted in isolation
of other rights enshrined in the Constitution. The rights in the Constitution are
interdependent, interlinked and interconnected. This is exactly what this
minority judgment highlights. The right to adequate housing in the current
case implicates other rights, such as the right to dignity, the right to basic
education and the right to freedom of trade, occupation and profession.

(q) This court in Grootboom held as follows:

14

'Socio-economic rights must all be read together in the setting of the
Constitution as a whole. The state is obliged to take positive action to meet
the needs of those living in extreme conditions of poverty, homelessness or
intolerable housing. Their interconnectedness needs to be taken into account
in interpreting the socioeconomic rights, and, in particular, in determining
whether the state has met its obligations in terms of them.'

[27] A few things must be disposed of first in this matter. The first respondent has
contended in her answering affidavits that the mere contention of homelessness
automatically triggers the obligation of the applicant to provide her with temporary
emergency accommodation. However, this contention cannot be correct. As held in
Occupiers, Berea v De Wet NO and Another
8:

‘As is apparent from the nature of the enquiry, the court will need to be
informed of all the relevant circumstances in each case in order to satisfy itself
that it is just and equitable to evict and, if so, when and under what conditions.
.....

In order to perform its duty properly the court needs to have all the necessary
information. The obligation to provide the relevant information is first and
foremost on the parties to the proceedings. As officers of the court, attorneys
and advocates must furnish the court with all relevant information that is in
their possession in order for the court to properly interrogate the justice and
equity of ordering an eviction.’

[28] It follows that even though an applicant for eviction must satisfy a Court that it
is just and equitable to do so, it cannot be expected of such an applicant to also be
required to prove the negative so to speak, in the sense that it must prove that
considering all the personal circumstances of the occupier, the occupier will not be
left homeless. The reason why this would be the case is logical, in that much of that
information would be in the personal knowledge of the occupier. Accordingly, it must

information would be in the personal knowledge of the occupier. Accordingly, it must
be accepted that there is an evidentiary burden on the occupier to provide and then

8 2017 (5) SA 346 (CC) at paras 46 – 47.

15

establish (by way of proper proof) such personal circumstances sufficient to convince
the Court of homelessness , in order for the protections under the C onstitution and
the PIE Act to apply.9 As held in Stay at South Point Properties (Pty) Ltd v Mqulwana
and Others:10

‘It has been found that where one cannot demonstrate that one would be
without alternative accommodation, and thus be rendered homeless, the
protection of s 26(3) does not find application.’

[29] So, and conducting a determination of what is just and equitable in casu, what
has been placed before this Court? Or, differently said, has the first respondent done
enough where it comes to the duty that rests on her in this respect. In my view, I do
not believe the first respondent has simply provided bald assertions or made out no
case as to her particular circumstances, being the kind of failures on the part of
occupiers many judgments are critical of. She has offered, considering the facts as
set out above, a comprehensive explanation as to her personal circumstances, and if
true, these are the kind of circumstances that could likely lead to her being
homeless, if evicted.

[30] Insofar as there exists a factual dispute concerning what the first respondent
has put forward to substantiate why she would be left homeless, it must be
remembered that these are motion proceedings in which the applicant seeks final
relief. As such, the well -established principles in Plascon Evans Paints v Van
Riebeeck Paints
11 find applciation, where the Court held:

‘... These principles are, in sum, that the facts as stated by the respondent
party together with the admitted or facts that are not denied in the applicant
party’s founding affidavit constitute the factual basis for making a
determination, unless the dispute of fact is not real or genuine or the denials

9 Compare Mayekiso and Another v Patel NO and Others 2019 (2) SA 522 (WCC) at para 68;

9 Compare Mayekiso and Another v Patel NO and Others 2019 (2) SA 522 (WCC) at para 68;
Shanike Investments NO 85 (Pty) Ltd and Another v Ndima and Others 2015 (2) SA 610 (GJ) at para
42; Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC) at paras 44 – 45.
10 2024 (2) SA 640 (SCA) at para 9.
11 1984 (3) SA 623 (A) at 634E-635C.

16

in the respondent's version are bald or not creditworthy, or the respondent's
version raises such obviously fictitious disputes of fact, or is palpably
implausible, or far-fetched or so clearly untenable, that the court is justified in
rejecting that version on the basis that it obviously stands to be rejected ...’

[31] As to when a factual dispute raised by the respondent party may not be
considered to be real or genuine, the Court in Thebe Ya Bophelo Healthcare
Administrators (Pty) Ltd and Others v National Bargaining Council for the Road
Freight Industry and Another
12 provided the following guidance:

‘… the dispute is not real or genuine or the denials in the respondent's version
are bald or uncreditworthy, or the respondent's version raises such obviously
fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly
untenable that the court is justified in rejecting that version on the basis that it
obviously stands to be rejected …’

[32] Considering the version of the first respondent in her answering affidavits, it
simply cannot be said that it obviously fictitious, far- fetched, implausible or
untenable. It would be wrong to say that what the first respondent described as her
personal considerations could not resort in the realm of what would be plausible and
real, considering the undisputed facts of what happened between her and Sako, her
age, her level of qualifications, and the unemployment rate in the Country. It also
cannot be ignored that the applicant could not put up actual contradictory facts in
reply. The applicant’s opposition on the facts is more akin to making submissions off
the facts proffered by the first respondent . I am satisfied that all considered, there is
no reason why the version offered by the first respondent as to her personal
circumstances should be rejected. As held in in TIBMS (Pty) Ltd t/a Halo
Underground Lighting Systems v Knight and Another
13:

Underground Lighting Systems v Knight and Another
13:


12 2009 (3) SA 187 (W) para 19. See also Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another 2008 (3) SA 371 (SCA) at para 13; Minister of Home Affairs and Others v Jose and Another
2021 (6) SA 369 (SCA) at para 20.
13 (2017) 38 ILJ 2721 (LAC) at para 29.

17

‘… Credibility is only capable of being addressed on paper when the
assertions are palpably absurd or demonstrably false. The threshold that had
to be cleared is ‘wholly fanciful and untenable’. Moreover, the appetite to
resolve paper contests by reference to the probabilities, though ever present,
is not appropriate. …’

[33] Yes, the applicant’s criticism of the first respondent needing to do more to
substantiate what she is saying about her personal circumstances has some
justification, but certainly enough has been said by her to at least trigger the
obligation of the applicant to conduct an investigation as to temporary emergency
accommodation as contemplated by section 4(7) of the PIE Act.
14 As held in City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and
Another
15, in the context of what is just and equitable under section 4(7):

‘In order to conclude whether eviction by a particular date would in the
circumstances of this case be just and equitable, it is mandatory to consider
'whether land has been made available or can reasonably be made
available'. The City's obligations are material to this determination.’

[34] It is now more or less trite that part and parcel of the section 4(7)
determination is the issue of temporary emergency housing. In this respect the
applicant, who is also the Municipality, must enter the equation and investigate
whether the first respondent would indeed qualify for temporary emergency housing
and / or whet her it is available . This investigation must then culminate in the
providing of a report to indicate if the first respondent objectively qualifies for it, and if
so, what is the availability thereof. Ironically, the complaint of the applicant about the
lack of substantiating information is something that could be properly addressed in
the compilation and providing of this report.

[35] What did the applicant then provide in the form of such a report , considering it

[35] What did the applicant then provide in the form of such a report , considering it
had the obligation to do so? As touched on above it provided two reports. The first

14 I may add that in the replying affidavits filed by the applicant, it had undertaken to provide such a
report. On this basis alone, it must be held to this bargain, and a proper report must thus be done.
15 2012 (2) SA 104 (CC) at para 41

18

report, provided on 8 July 2025, appears to be a generic report in general terms. It
explained all the challenges associated with the applicant having to obtain the
necessary information from occupiers to compile reports, especially considering the
large number of occupiers that have come to the fore needing assistance. The report
then sets out the general position of the applicant where it comes to available
housing, indicating that the housing database of people awaiting housing reflects
366 148 such people. It is further indicated that there are no vacant units available
within the applicant’s rental stock, and it has an estimated waiting list of 3 622
occupants, with an average waiting period of 3 to 5 years . The report concludes by
stating that the applicant is currently not in a position to offer alternative
accommodation due to a lack of readily available resources , and contends that the
exercise of obtaining personal circumstances of occupiers would thus be futile.

[36] I must confess that I have difficulties with this kind of generic report. Whilst the
information concerning the general status of available housing is useful in making a
determination, the fact that the applicant believes it would not have anything
available does not detract from its obligation to nonetheless investigate the personal
circumstances of each individual occupier. That is what the law expects it to do, even
if it is difficult or may likely not have a positive outcome. To describe it simply, a
particular situation may be so bad that a plan must be made, at least for temporary
accommodation of some kind, even if there is no t an immediately ‘vacant unit’
available. To hide behind a general contention of non- availability and operational
challenges is a cop-out, and constitutes a failure to discharge the constitutional duty
that rests on the applicant in this regard.
16

[37] I can only presume that the applicant must have appreciated that it was

16

[37] I can only presume that the applicant must have appreciated that it was
skating on thin ice in seeking to rely on such a general report. I believe that is why
there was the second report of 14 July 2025. In this report, it is indicated that one of
the applicant’s officials conducted a site visit at the property on 11 July 2025, but
found it locked with no occupants. According to the report, a neighbour witnessing
this came out and informed the official that the first respondent has not been staying
at the property for some time and that they do not know her whereabouts . This led

16 See Changing Tides (supra) at para 40.

19

the applicant to conclude that the first respondent will not be rendered homeless
should the eviction be granted, and it then deferred to the first generic report.

[38] As correctly suggested by the first respondent, what the report from the
applicant actually needed to contain was summarized in Changing Tides supra as
follows:17

‘(a) The information available to the local authority in regard to the building or
property in respect of which an eviction order is sought, for example, whether
it is known to be a 'bad building', or is derelict, or has been the subject of
inspection by municipal officials and, if so, the result of their inspections. (It
appears from some of the reported cases, like the present one, that the local
authority has known of the condition of the building and precipitated the
application for eviction by demanding that owners evict people or upgrade
buildings for residential purposes.) The municipality should indicate whether
the continued occupation of the building gives rise to health or safety
concerns and express an opinion on whether it is desirable in the interests of
the health and safety of the occupiers that they should be living in such
circumstances;

(b) such information as the municipality has in regard to the occupiers of the
building or property, their approximate number and personal circumstances
(even if described in general terms, as, for example, by saying that the
majority appear to be unemployed or make a living in informal trades),
whether there are children, elderly or disabled people living there, and
whether there appear to be households headed by women;

(c) whether in the considered view of the local authority an eviction order is
likely to result in all or any of the occupiers becoming homeless;


17 Id at para 40.

20

(d) if so, what steps the local authority proposes to put in place to address and
alleviate such homelessness by way of the provision of alternative land or
emergency accommodation;

(e) the implications for the owners of delay in evicting the occupiers;

(f) details of all engagement it has had with the occupiers in regard to their
continued occupation of or removal from the property or building;

(g) whether it believes there is scope for a mediated process, whether under s
7 of PIE or otherwise, to secure the departure of the occupiers from the
building and their relocation elsewhere and, if so, on what terms and, if not,
why not.’

[39] Obviously, in my view, not all the above requirements for a report , as
articulated in Changing Tides, would always be relevant. Particular circumstances
would dictate which of these considerations need to be addressed i n a report. For
example, an individual eviction of a single non- paying tenant from a housing unit
(such as a flat) in an ordinary and maintained residential building would not require
the report to deal with the state of the building, or health and safety considerations.
But certainly, dealing with the personal circumstances of the occupant and whethe r
that occupant would be left homeless are issues that must always be dealt with.

[40] The above being said, I have little hesitation in concluding that the two reports
by the applicants are non-compliant. But that is not the end of it for the applicant and
does not mean it must now be non-suited where it comes to the eviction sought by it.
The purpose of the report is not to stop eviction. The purpose of the report is to
determine whether eviction should be delayed and / or whethe r temporary
emergency accommodation should or could be provided. As said in Grobler v Phillips
and Others
18:


18 2023 (1) SA 321 (CC) at para 38. See also Blue Moonlight (supra) at para 96.

21

‘In Port Elizabeth Municipality this court stated that an offer of alternative
accommodation is not a precondition for the granting of an eviction order but
rather one of the factors to be considered by a court ...’

[41] And recently, the Full Court on appeal in Msibi v Occupiers of Unit 67 Cedar
Creek Trefnant Road Ormonde Ext 28 and Another
19 held that:

‘The fact whether land has been made available or can reasonably be made
available for the relocation of the unlawful occupier and the rights and needs
of the mentioned persons, is not a requirement but a circumstance that may
be brought for the consideration of a Court minded to grant the order of
eviction. In my judgment, subsection (7) cannot be read to mean that if an
applicant is unable to show that a land has been made available or is capable
of being made available, such an applicant must be non- suited as if he or she
failed to satisfy a Court that all the requirements of the section have not been
complied with. Subsections (7) and (8) shares an inextricable relationship.’

The Court in Msibi concluded:
20

‘Turning to second reason of the lack of report, this Court categorically states
that the availability of a report by a municipality is not a legal requirement to
obtain an eviction order. In Drakenstein Municipality v Hendricks and
Others the Court confirmed that there is no general duty on a municipality to
report in all cases before an eviction order may issue. In Absa Bank Limited v
Murray and Another an order was issued in the absence of a municipality
report. When regard is had to the provisions of subsection (7), the issue of the
availability of land, it being made available, or reasonably being made
available falls squarely on the shoulders of three bodies; namely; (a) the
municipality; (b) organ of state; or (c) another land owner. That being so, why
is it not a requirement that a report must be obtained from the organ of state

19 2025 JDR 0640 (GP) at para 22.
20 Id at para 31

22

or another land owner before it could be considered just and equitable to
order eviction.’ (emphasis added)

[42] A further factor to consider is that the first respondent has been in occupation
of the property for close on five years (a point harped on by the applicant’s counsel)
without paying one cent in rental , or even attempting to do so , or at least try and
make arrangements with the applicant with regard to settle what is due. The Court in
Nyathi v Tenitor Properties (Pty) Ltd21 dealt with this as follows:

‘... the occupants are not paying for their occupation, nor is anyone else
paying for it; while the respondent is availing the building for their occupation.
This fact represents an economical aberration for which there is, objectively,
no justification.’

[43] The first respondent was given more than ample prior warning to at least
attempt to make arrangements for alternative accommodation, of her accord, prior to
being faced with an eviction application. She was given t hree sets of eviction notices
in 2021 and in 2022. She thus had years to make such arrangements . She did
nothing.
22 However, and when faced with an actual eviction application, her first
approach was to say that she is entitled to stay there and she is in lawful occupation,
when that was clearly not the case, especially considering that she was relying on
the former lease agreement between the applicant and Sako which required the
payment of rental which she knew she was not paying. This conduct and what is
nothing else but an undue benefit she enjoyed for years must be thrown into the mix
when conducting the balance evaluation at this stage.

[44] However, the five years odd delay that has occurred in this case may also be
a double-edged sword, especially where it comes to the absence of a proper report
on temporary emergency accommodation by the applicant, in respect of the first

21 2015 JDR 1296 (GJ) at para 32. See also Citiq Residentials (Pty) Ltd v Mulumba 2018 JDR 2188

(GJ) at para 13.
22 There was no explanation in the answering affidavits of what the first respondent did when she
received the eviction notices. Other than a bald statement that she could not find alternative
accommodation, no particulars of efforts taken in this regard was provided by the first respondent.

23

respondent. To state it simply, the applicant has been waiting for five years . It waited
for two years before even bringing an eviction application. So, what can be wrong in
exercising a final bit of patience and wait a few months more, just to ensure that a
proper report comes to hand before the first respondent is finally ejected from the
property. As succinctly said in Blue Moonlight supra:23

‘Of course a property owner cannot be expected to provide free housing for
the homeless on its property for an indefinite period. But in certain
circumstances an owner may have to be somewhat patient, and accept that
the right to occupation may be temporarily restricted …’

The Court ultimately concluded
24

‘Although Blue Moonlight cannot be expected to be burdened with providing
accommodation to the Occupiers indefinitely, a degree of patience should be
reasonably expected of it …’.

[45] This then brings me to another cause of complaint of the applicant. It
contends that the first respondent has been deliberately avoiding its officials for the
purpose of frustrating the eviction. In this respect, there is also evidence of not only
the officials of the applicant, but also the Sheriff, attending at the property on a
significant number of occasions, however the first respondent is never found there.
The first respondent has not disputed that evidence. She has however explained that
because the electricity has been disconnected, she would from time to time go to her
father’s house if things become too intolerable. This explanation is thin, but not
implausible. But at least the facts raise a reasonable suspicion that the first
respondent does not live at the property all the time, and only sometimes. This also
deserves consideration.

[46] The applicant has also sought to rely on a letter it wrote to the first
respondent’s attorneys on 5 March 2025, inter alia stating that despite repeated

23 Id at para 40.
24 Id para 100.

24

attempts by the a pplicant’s officials to contact the first respondent on the telephone
number given to them by the first respondent ’s attorneys, the applicant’s officials
have been able to contact the first respondent at such number provided. It was
requested by the applicant’s attorneys that they be provided with an alternative
contact number for the first respondent, or that three different dates / times, and a
suitable venue be provided for her to meet with the first respondent. An answer from
the first respondent’s attorneys was forthcoming on 12 March 2025. In this answer,
the first respondent’s attorneys indicated that the first respondent had answered the
call when they called at the number given, and that the matter could be resolved if
the applicant tendered alternative accommodation. The letter however does contain
an admission that the first respondent does not reside at the property all the time,
because the electricity was cut off. There was no response to the request for
suggested dates and times for a meeting between the applicant and the first
respondent. According to the applicant, this all indicated that the first respondent was
deliberately avoiding the applicant’s officials and obstructing the process.

[47] There may be some substance in these co mplaints by the applicant. The fact
that the first respondent immediately answers a call from her attorneys made to the
same number is not an explanation, but an indictment. It likely shows that the first
respondent chooses not to answer calls from the applicant’s officials, knowing she is
facing eviction and that she does not reside at the property all the time. And the
contention by the first respondent’s attorneys that the matter could be settled if the
applicant tendered ‘ alternative accommodation’ is telling , and suggests she wants
the applicant to put her up indefinitely at its cost . The same thing can be said about

the applicant to put her up indefinitely at its cost . The same thing can be said about
failing to engage with the applicant’s attorneys to arrange for a meeting with the first
respondent. In my view, and with an eviction looming , to which there was no lawful
defence, other than the just and equitable considerations under section 4(7) of the
PIE Act, the first respondent’s attorneys were obliged to do a lot more. I believe they
should have, once the applicant had made its concerns clear to them, proactively
engaged with the applicant to ensure that proper information concerning the
personal circumstances of the first respondent was provided to the applicant . It
should have taken it upon themselves to set up a consultation between the first
respondent and the applicant’s officials. The failure to do so, considered in the
context of the applicant’s legitimate complaints as aforesaid, is a factor that weighs

25

against the first respondent in the balance. For example, and as said in Changing
Tides supra:25

‘Accordingly, the easiest way to obtain the necessary information and furnish
it to the City is by the LRC preparing a list of those of its clients who require
temporary emergency accommodation, with details of their names, ages,
family circumstances, sources of income and having annexed to it appropriate
proof of identity. The list and its details must be verified by an affidavit of
information and belief and if possible by affidavits by the individuals
concerned. There seems to be no reason why that list should not be furnished
within one month of the date of this court's order. In cases where the
occupiers have legal representation this will ordinarily be the most effective
way in which to proceed.’

[48] In order to short-circuit any blame possibly attributed by one party to the other
about what must be done going forward in this matter, what is needed is a definitive
order obliging the applicant to conduct the investigation, and then providing a
compliant report, by a stipulated deadline. Conversely , the first respondent must be
obliged by way of the same order to co- operate in the process, and provide the
applicant with all the information necessary, as properly substantiated, to enable the
applicant to properly and effectively fulfil its tasks.

[49] In the end, w hen I consider all the above factors as a whole, I arrive at a
number of conclusions. First, there can be no doubt that as a matter of general
principle, the applicant is entitled to an eviction order, as the first respondent is in
unlawful occupation of the property with no defence for it , and the applicant is
entitled to regain possession of t he property so it can earn a revenue from it .
26 The
first respondent has been in unlawful occupation for some five years , without any

25 Id at para 48.
26 In Changing Tides (supra) at para 19, it was held: ‘In most instances where the owner of property

seeks the eviction of unlawful occupiers, whether from land or the buildings situated on the land, and
demonstrates a need for possession and that there is no valid defence to that claim, it will be just and
equitable to grant an eviction order. That is consistent with the jurisprudence that has developed
around this topic. In Ndlovu v Ngcobo Harms JA made the point that ownership and the lack of any
lawful reason to be in occupation are important factors in the exercise of the court's discretion …’.

26

attempt to pay rental or regularise the situation, or even to find alternative
accommodation herself. Nonetheless, the prima facie indication is, as matters now
stand, that she could be left homeless if evicted. But I do accept that she does not
reside at the property all the time, which mitigates her prejudice, as she is at least,
partly, living somewhere else. Although the applicant did not provide a compli ant
report, this should not non- suit it where it comes to eviction. Instead, fairness and
equity dictate that the applicant be required to conduct an investigation into and then
provide a report as to whether the first respondent qualifies for temporary emergency
accommodation and / or whethe r it is available, once she is required to vacate the
property. Therefore, and whilst eviction is justified, it would be just and equitable to
delay it for a period of time, so as to allow the applicant to fulfil the aforesaid tasks.27
As made clear in Msibi supra:28

‘On the strength of Changing Tides , which was a binding authority to the
Court below, the enquiry related to possible homelessness is directed to the
question of the implementation date of the eviction as opposed to the granting
of the eviction order. ...’

[50] In conclusion, I am satisfied that the applicant has made out a proper case for
an eviction order to be granted, and for the first respondent to be evicted from the
property. However, I consider it just an equitable that the date of eviction be delayed
for three months. In this period of three months, the applicant shall engage with the
first respondent, and the first respondent shall reciprocate, on the basis as set out in
the order crafted at the conclusion of this judgment. This will allow the issue of
temporary emergency accommodation for the first respondent to be explored, which
can then apply, if applicable, immediately upon her having to vacate the property . I
believe this would be a just and equitable solution, balancing the interests of all

believe this would be a just and equitable solution, balancing the interests of all
parties.

Costs


27 See Msibi (supra) at para 32.
28 Id at para 27.

27

[51] Where i t comes to the issue of awarding costs, I enjoy a wide discretion. 29
Whilst it is true that the applicant was successful in securing an eviction, I must take
into account that it was not an unqualified victory. I further consider the applicant’s
own failures where it comes to the providing of the report discussed above. But I also
consider the first respondent ’s conduct in avoiding her own obligations in this
respect. On the evidence, the first respondent is not a person of means, and
considering that she will be evicted by virtue of the order granted, I simply do not
believe it would be fair to compound her difficulties with a costs order. Another
consideration against making a costs order is the fact that first respondent,
responsibly, did not persist in seeking to challenge her eviction on the basis that she
was in lawful occupation of the property, which was obviously an untenable
proposition. In the balance, I therefor e exercise my discretion as to costs by making
no order as to costs.

[52] In all the circumstances as set out above, the following order is
made:

Order

1. The first respondent , Precious Shuenyane Sako, is evicted from the
immovable property situate at Remainder of Erf 4[ …], E […] Township, Unit
[…] V[…] Court, 1[….] V[…] Avenue, E[…] (the property).

2. The first respondent is ordered to vacate the property by no later than 8
November 2025, failing which the eviction order may forthwith be carried out
and executed.

3. The applicant, being the City of Ekurh uleni, is ordered to engage with
the first respondent and conduct an investigation into whethe r the first
respondent qualifies for temporary emergency accommodation and whethe r

29 As recently said by the Full Court in Mineral-Loy (Pty) Ltd v Highveld Steel & Vanadium Corporation
Limited and Another 2025 JDR 0442 (GP) at para 56: ‘ … It is trite that a court has a wide and
unfettered discretion in awarding costs …’.

28

such accommodation is available to be provided to the first respondent, which
process of engagement shall include convening and conducting an interview
with the first respondent in person, before 1 September 2025.

4. The first respondent is ordered to co- operate and engage with the
applicant and its officials in providing a date and time for the interview , when
requested to do so by the applicant. The applicant may direct this request to
the first respondent’s attor neys, which attorneys shall be obliged to assist the
applicant in this regard.

5. The first respondent shall provide the applicant with all information and
/ or documents requested by the applicant in the interview convened with her,
either in the interview itself or within 14(fourteen) days of the date of the
interview.

6. The applicant shall prepare a report whethe r the first respondent
qualifies for temporary emergency accommodation and whethe r such
accommodation is available to be provided to the first respondent , and shall
provide such report to the first respondent’s attorneys and file the same in
Court, on or before 8 October 2025.

7. Should the report as contemplated by paragraph 6 of this order reflect
that the first respondent qualifies for temporary emergency accommodation
and that such accommodation is available, the applicant shall provide the first
respondent with such accommodation upon her vacating of the property on 8
November 2025.

8. There is no order as to costs.

SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg

Appearances:

29

Heard on: 30 July 2025

For the Applicant: Advocate K Potgieter

Instructed by: DDV & Chiba Attorneys

For the First Respondent: Advocate E Webber together with
Advocate L Mokwena

Instructed by: Chen & Lin Inc Attorneys

Judgment: 8 August 2025