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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023-050412
In the matter between:
HIPPACHER, JOHANNES HARALD
Applicant
and
ERASMUS, MELANIE
NTUMBA, BETTY
GUNNET, GIFT
STRAO, BETHEA
THE FURTHER UNLAWFUL OCCUPIERS OF
ERF 7[. .] BOKSBURG NORTH EXT.
EKURHULENI METROPOLITAN MUNICIPALITY
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
JUDGMENT
Page 2 of 10
INTRODUCTION
1. This is an opposed eviction application instituted in terms of section 4 of
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998
("the PIE Act'). It relates to a residential property in Boksburg.
2. The application was opposed by Mr Mila Ntumba Kashala, an occupant of
the property. Mr Kashala initially represented himself and filed a notice of opposition
on behalf of the first to fifth respondents.
3. Some two months later attorneys filed a notice of intention to oppose on
behalf of the first to fifth respondents but subsequently withdrew as the
representatives of the first to fourth respondents and remained on brief only for Mr
Kashala.
4. Mr Kashala stated in his affidavit that the first, third and fifth respondents
were not known to him and had never communicated with him. Nothing was ever
filed on their behalf. The second respondent was known to Mr Kashala, but was said
to have long since vacated the property. Nothing was ever filed on her behalf.
5. Mr Kashala denied in his affidavit being an unlawful occupier, and
therefore denied that he was the fifth respondent or fell within the definition of the
fifth respondent, even though the attorney had, as indicated, gone on record for Mr
Kashala as the fifth respondent. Nothing turned on this, however. As will appear from
what follows, Mr Kashala is an unlawful occupier of the property.
6. Mr Kashala testified that the property was occupied by him, his wife, his
one adult child and his minor child; and three other families about whom no detail
was given. On his version none of the first to fourth respondents were in occupation
of the property.
7. I was satisfied that the application, the section 4(2) notice contemplated
by PIE and the notice of set down had all been properly served on any occupiers of
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the property, and the application was thus opposed only by Mr Kashala, and not any
other occupants.
8. When the matter was called at its allocated time of 14:00 on Thursday 21
August 2025, Mr Kashala was present, but his attorney was not. The applicant’s
legal representatives were present.
9. Mr Kashala advised the court that he and his attorney were present at
court on Monday 18 August 2025 and had been advised, it was not clear to me by
whom, that they should return for the hearing of the matter at 14:00 on Thursday 21
August 2025. Mr Kashala’s attorney had told him that she was engaged elsewhere
on 21 August 2025 but that he should attend court and she would attend as soon as
she became free to do so.
10. Attempts were made by both the applicant’s legal representatives and my
secretary to reach the attorney telephonically. Their calls were not answered. I
accordingly postponed the matter to 10:00 the following day in order to afford Mr
Kashala the opportunity of having his attorney present. The applicant’s attorney
communicated this development to Mr Kashala’s attorney by email.
11. At 10:00 on Friday 22 August 2025, neither Mr Kashala nor his attorney
were present. I accordingly heard submissions from the applicant’s counsel and
granted the order which appears at the end of this judgment. I indicated I would
subsequently give reasons for my order. This judgment sets out those reasons.
THE FACTS PERTAINING TO THE CURRENT OCCUPATION OF THE
PROPERTIES
12. The applicant is the registered owner of the immovable propert y in issue
in Boksburg, which comprises two semi-detached houses on a single stand. He let
the properties in 2019 to the first four respondents and those leases came to an end.
13. Mr Kashala alleges to have taken occupation through the second
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respondent. He stated that he rented the property with her. He says he was given a
lease agreement by her (incidentally in January 2019, which would predate the
conclusion of the lease between the applicant and the second respondent by several
months) for a one year duration in terms of which he was to pay her R2,000/month.
In January 2020 the second respondent introduced Mr Kashala to one Cyril Rubins
who was described as the new owner. Mr Kashala alleged that a new lease was
concluded (he does not say with whom) and that he interchangeably paid the rent in
cash to the second respondent or Rubins. When there was a dispute between
Rubins and the second respondent as to the entitlement to the rent from Mr Kashala,
he apparently offered to purchase the property , collectively with members of his
family.
14. He alleges that he entered into a signed offer to purchase with Rubins and
attached a copy of the agreement to his affidavit. It is dated 29 November 2021 and
provides for a purchase price of R1,2 million payable upon registration of transfer
and subject to Mr Kashala being able to obtain loan finance for this amount within 14
days of signature of the agreement. There is no evidence that he ever obtained loan
finance. Occupation was only to be given to Mr Kashala on registration of transfer.
The residential address for Mr Kashala recorded on the offer to purchase is not the
address of the property in issue.
15. Mr Kashala continues that as he could not afford the amount requested he
arranged to have the other bedrooms occupied and the resultant four families would
collectively contribute to and pay the purchase price. They initially paid Rubins
R400,000 as a deposit and were to then pay him a monthly amount of R20,000 until
the end of 2025 when transfer would take place.
16. Much of this is irreconcilable with the terms of the written document put up
by Mr Kashala. Nor is there an explanation for how to reconcile Mr Kashala’ s
by Mr Kashala. Nor is there an explanation for how to reconcile Mr Kashala’ s
contention that he was already in occupation at the time of concluding the offer to
purchase with the indications in that document that he was not in occupation. The
timing of his alleged conclusion of a lease with the second respondent is also a
factual difficulty.
Page 5 of 10
17. The applicant put up a printout from the deeds office demonstrating his
ownership of the immovable property and produced a certified copy of his title deed.
No proof of Mr Rubins’ alleged ownership was adduced. On the probabilities, the
applicant is the owner of the property.
18. That being so, it follows that none of the present occupiers, Mr Kashala
included, are in occupation with the permission or consent of the owner of the
property.
JOINDER
19. Mr Kashala contended that it was necessary for the applicant to have
joined Mr Rubins to the application. I disagree. Joinder would have been necessary
had Mr Rubins had a direct and substantial interest in the application.
1 As he is not
the owner of the property, he cannot have an interest in the application.
WHETHER EVICTION SHOULD BE ORDERED
20. As the occupiers have no entitlement through the applicant to be in
occupation, they are unlawful occupiers.
2 What remains for determination is thus
whether it would be just and equitable to grant an eviction order taking into account
all relevant circumstances, and, if so, the conditions which should attach to such an
order.
3
21. Mr Kashala stated that he is self -employed. He sells goods at a market at
East Gate Mall. He gave no indication of his income save to state that he had always
paid his share of the R20,000 monthly contribution (an amount of R5,000) but had
sometimes struggled to raise his share. He alleged that his wife was unemployed.
He has a school -going child who attends school ‘ next to this area’. The age of the
child was not provided (but from a birth certificate annexed to his affidavit she
1 ABSA Bank Ltd v Naude NO and Others 2016 (6) SA 540 (SCA) at para 10
2 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) at para 19
3 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at para 12
Page 6 of 10
appears to be 13 years old), nor was I given any information as to the school the
child attends or what school fees are payable. He also has an elder daughter
residing with him who is unemployed and who completed tertiary education at the
University of Johannesburg in 2023.
22. Mr Kashala had the means to provide for food for his family, school fees
and transport. He has occupied the present property since 2019. He used money he
had saved (in an undefined amount) to make unspecified repairs to the property he
occupies.
23. He alleged that he had no alternative accommodation and no means to
obtain alternative accommodation. All four families would be rendered homeless by
an eviction order, according to him. I do not place any weight on the statement he
makes concerning the other families as there was no information before the court
relating to them and he did not act for them.
24. As held in Occupiers Berea v De Wet NO and Another,
4 a court needs 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, under what conditions. Without this
information being before the court the necessary enquiry cannot be conducted and
eviction cannot be ordered. However , the obligation of placing the necessary
information before the court is that of the parties to the proceedings and, more
particularly, it is for the occupiers to put forward the facts and circumstances which
concern them.
25. It cannot be expected of the applicant to negative in advance facts not
known to him and not yet in issue between the parties.
5
26. That there are gaps in the facts pertaining to Mr Kashala’s circumstances
is a consequence of the manner in which he chose to depose to his answering
affidavit and his failure to appear at the hearing of this matter. He was, further,
legally represented throughout the proceedings.
4 2017 (5) SA 346 (CC) at para 46 and 47
legally represented throughout the proceedings.
4 2017 (5) SA 346 (CC) at para 46 and 47
5 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) at para 19
Page 7 of 10
27. The applicant’s counsel argued that Mr Kashala could have, and should
have disclosed to the court, for example, what school his child was at, what school
fees were payable and who paid them, what his expenses were, and what his
income is. It also seems to me that it would have been helpful to explain what
qualification his elder daughter has, whether she is seeking employment, whether his
wife is seeking employment and what steps have been taken, if any, to search for
and secure alternative accommodation given that these proceedings came to Mr
Kashala’s notice in September 2023. Instead I was presented with conclusions, such
as the contention that he and his family will be rendered homeless, without sufficient
underlying supporting facts to enable me to determine whether the conclusion was a
valid one.
28. There are also the unanswered questions of whether the famil ies who
were to assist him in purchasing the property would be able to accommodate him or
support him or his family. No indication is given as to how utilities (which presumably
are still being supplied to the property) are paid for. No information is given regarding
what assets the Kashala family might have.
29. On Mr Kashala’s version, he ceased paying Rubins when the eviction of
the occupiers was sought by the applicant. There thus ought to be accumulated
savings available to Mr Kashala, and the other families, to assist them in securing
alternative accommodation.
30. The inference the applicant urged me to draw seems correct, namely that
were there more which could have been said in Mr Kashala’s favour on these issues,
it would have been.
6
31. There is no explanation for why the other families have chosen not to
place their facts and circumstances before the court, despite notice having been
served on them.
6 Mayekiso and Others v Patel NO and Others 2019 (2) SA 522 (WCC) at para 66
Page 8 of 10
32. Eviction will not be just and equitable if it will result in homelessness. 7
Despite Mr Kashala’s contention that he would be rendered homeless, I am not
prepared to find that an eviction in the present circumstances will result in
homelessness.
33. Homelessness must mean that there is no reasonable prospect between
the date on which the court order is made, and the date that the occupier is to vacate
the property of the occupier being able to find alternative accommodation of a
comparable standard.
8
34. The respondents have failed to take the court into their confidence and
have not proffered sufficient facts to establish that they will be rendered homeless.
9
35. The lack of participation in the application by the sixth respondent meant
that I had no information available to me regarding the availability of either temporary
emergency accommodation or accommodation generally. I was informed from the
bar by the applicant’s counsel that the amount of R5,000 which Mr Kashal a was able
to pay monthly , on his version, to Rubins, exceeds the earnings threshold for
temporary emergency accommodation.
36. Had Mr Kashala considered that the sixth respondent had a duty to or the
capacity to house him and his family, he could have taken the initiative to engage
with it in that regard.
10 There is no evidence that he has done so.
37. The Kashala family has further not given any evidence that they have tried
and failed to find alternative accommodation within their available resources.
11
38. Nevertheless, I accept that there is a minor child who, if possible, ought
not to have her schooling disrupted at this time of year.
7 Arendse v Arendse and Others 2013 (3) SA 347 (WCC)
8 Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown Urban Village
2013 (1) SA 583 (GSJ) at para 85
9 Shezi v LVL and Another [2023] ZAGPJHC 373 at para 18
10 Ives v Rajah 2012 (2) SA 167 (WCC) at para 26
11 Mayekiso supra at para 67
Page 9 of 10
39. The applicant has not indicated to the court what purpose he will put the
property to should eviction be ordered nor has he indicated that he has any particular
urgent need for the vacant occupation of his property. This is thus a case where he
will have to be a little patient and have his rights temporarily restricted for a little
longer.
12
ORDER
40. For the reasons set out in this judgment, I thus granted the following
order:
40.1. The First to Fifth Respondents (“the Respondents”) and all
those occupying the properties by, through or under them, are evicted from
the properties situate at 80 & 80A 6TH STREET BOKSBURG NORTH ,
JOHANNESBURG, more fully described as ERF 7 [..] BOKSBURG NORTH
EXT. TOWNSHIP, REGISTRATION DIVISION I.R. , GAUTENG (hereinafter
referred to as “the properties”);
40.2. The Respondents and all those occupying the properties by,
through or under them are ordered to vacate the properties on or before 31
October 2025;
40.3. In the event that the Respondents and all those occupying the
properties by, through or under them do not vacate the properties on 31
October 2025, the Sheriff of the Court or his lawfully appointed Deputy is
authorised and directed to evict the Respondents and all those occupying the
properties by, through or under them from the properties;
40.4. The Fifth Respondent(s) are directed to pay the costs of this
application, including the costs of the application in terms of Section 4(2) of
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,
jointly and severally, the one paying the other to be absolved.
K D ILES
Acting Judge of the High Court, Johannesburg
12 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and
Another 2012 (2) SA 104 (CC) at para 40
Page 10 of 10
Appearances:
On behalf of the applicant: L Peter
Instructed by: Vermaak Marshall Wellbeloved Inc
On behalf of the 5
th respondents: No appearance
Instructed by: Kagiso Rakhuba Attorneys
Date of hearing: 21 and 22 August 2025
Date of order: 22 August 2025
Date of reasons: 7 September 2025