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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2024-099415
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED: NO.
In the matter between:
CLAUDETTE ESTEL PETERSEN Appellant
and
JACOBS LARRY NICHOLAS First Respondent
CITY OF JOHANNESBURG Second Respondent
JUDGMENT
DREYER, J
[1] This is an appeal against the order of the Magistrate Court, Johannesburg, of
June 2024, evicting the appellant from Flat 3017 Edward Flats, Westbury,
Johannesburg (“the property”), where she has resided for 18 years. The respondent
has leased the property from the City of Johannesburg since November 2004. The
2
respondent is the lawful leaseholder and occupant of the property. This is common
cause.
[2] The appellant and the r espondent were previously involved in a romantic
relationship. The r espondent and her children moved into the property with the
appellant. Following the breakdown of the relationship between the parties, the
respondent made multiple requests for the appellant to vacate the property, the
appellant failed to do so. The appellant does not have the respondent's express or
implied consent to occupy the property. This is not disputed.
[3] The appellant contends the r espondent does not and has not lived at the
property continuously since at least 2014. The r espondent’s counterargument is that
he was compelled to move out of the property as the appellant obtained a restraining
order for domestic violence and laid an assault charge against him. The assault
charges were dismissed and the temporary restraining order discharged. The
appellant remained in occupation at the property. The r espondent has continued to
meet his rental obligations to the owner, the City of Johannesburg, despite not
residing at the property.
[4] In this appeal, the a ppellant seeks to discharge the eviction order granted
against her. The relief the a ppellant seeks is final in nature. Such relief is contrary to
the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act
1 (“PIE Act ”) which recognises that the lawful owner or occupant may be
temporarily displaced.2
[5] The Constitutional Court in the City of Johannesburg Metropolitan Municipality
v Blue Moonlight Properties 39 (Pty) and Another
3 stated the position as:
“[40] It could reasonably be expected that when land is purchased for
commercial purposes the owner, who is aware of the presence of occupiers
over a long time, must consider the possibility of having to endure the
occupation for some time. Of course, a property owner cannot be expected to
1 19 of 1998.
occupation for some time. Of course, a property owner cannot be expected to
1 19 of 1998.
2 Msibi v Occupiers of Unit 67 Cedar Creek Trefnant Road Ormonde Ext 28 and Another 2025
JDR 0640 (GP) at para 8.
3 2012 (2) SA 104 (CC).
3
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, as Blue
Moonlight’s situation in this case has already illustrated. An owner’s right to
use and enjoy property at common law can be limited in the process of the
justice and equity enquiry mandated by PIE.”
[6] The rights articulated by the Constitutional Court apply similarly to the
respondent, the lawful leaseholder.
[7] There is no basis in law for the a ppellant to remain indefinitely in unlawful
occupation at the property.
[8] In the proceedings before the Magistrate Court, the City of Johannesburg
compiled a temporary emergency accommodation (“TEA”) report and concluded that
the Appellant does not qualify for temporary emergency accommodation. This
conclusion was based on facts and information the a ppellant provided to the report
compiler, an official of the City of Johannesburg. The appellant stated that her two
daughters and grandchild lived with her; she earned income from doing laundry and
cleaning; her daughter, Valente, is employed and receives a salary of R7 000.00;
while her other daughter Chandre, is a NSFAS -funded student who stays in student
accommodation and only returns to live with the a ppellant during her university
holidays; her grandchild, Cody, receives a foster grant. The a ppellant stated that in
the event of her eviction from the property, she had two alternative places of
accommodation, either to reside with her parents or her daughter, both of whom live
in Westbury.
[9] The appellant did not dispute the findings of the TEA report , nor did she
challenge its recommendation. The TEA report disposes of the appellant’s defence
that the first respondent failed to provide evidence that there is alternative
accommodation available for her.
accommodation available for her.
[10] The appellant argued that it would be difficult for her to find housing similar to
the property, low-cost housing subsidised by the City. The appellant is not entitled to
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housing of her choice, at the expense of the state. As the Court in Grobler v Phillips
and Others 4 stated:
“An unlawful occupier such as Mrs Phillips does not have a right to refuse to
be evicted on the basis that she prefers or wishes to remain in the property
that she is occupying unlawfully. In terms of s 26 of the Constitution, everyone
has the right to have access to adequate housing. The Constitution does not
give Mrs Phillips the right to choose exactly where in Somerset West she
wants to live.”
[11] Additionally, the Appellant has no right to choose to continue to occupy the
property.
[12] The facts elicited by the City of Johannesburg are in stark contrast to those
that the a ppellant put up in her answering affidavit, opposing her eviction from the
property. In those proceedings the a ppellant stated that she was unemployed and
had no prospect of acquiring alternative employment or accommodation. In the face
of the TEA report, the a ppellant persisted in this appeal with these grounds of
defence, arguing that it would not be just and equitable for her to be evicted from the
property.
[13] Whether it is just and equitable to grant the eviction of an unlawful occupant is
a two-pronged enquiry.
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[14] The first leg of the enquiry is whether it is just and equitable to grant eviction
having regard to all the relevant factors under PIE. These factors include rights of the
elderly, the disabled, children and women-headed households. The latter two factors
are relevant in this instance. The a ppellant is the head of her household. She has
one minor chi ld, Cody who resides with her at the property. The TEA report took
these factors into consideration. The weight to be given to these factors must be
balanced against the protection afforded to property owners under section 25 of the
Constitution. Such protection is also available to a lawful leaseholder, such as the
4 2023 (1) SA 321 (CC) at para 36.
4 2023 (1) SA 321 (CC) at para 36.
5 Occupiers, Berea v De Wet NO And Another 2017 (5) SA 346 (CC) accepted the two-pronged
enquiry, relied on the matter of City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294 (SCA), at paras 44-45.
5
Respondent, as he is “the person in charge” of the property.6 There is no dispute that
the respondent is the lawful leaseholder of the property. It is only once a court
decides that there is no defence to the claim for eviction that a court can find it would
be just and equitable to grant the order. If the court does so, it is obliged to grant the
order.
[15] The appellant has no defence as to why she should remain indefinitely in
unlawful occupation of the property. The a ppellant fails the first leg of the two-
pronged test. In these circumstances I find it is just and equitable for the a ppellant to
be evicted.
[16] The second leg of the enquiry is to consider what is just and equitable in
relation to the date of the implementation of the order and the conditions to be
attached to that order.
[17] While the appellant has resided at the property for 18 years, any consent she
had from the r espondent to continue to reside there has long been withdrawn. The
appellant has remained in unlawful occupation of the property for over a year, since
the court a quo granted the order evicting her from the property in June 2024. The
Appellant did not dispute the TEA report findings or recommendations. In these
circumstances, a fair and equitable time to require the a ppellant to vacate the
property is a period of one month.
[18] The appellant instituted the appeal proceedings in circumstances where she
recognised the respondent as the lawful occupant of the property, failed to be candid
and honest with the court regarding her true circumstances and proffered no defence
as to why she should remain in occupation of the property, indefinitely to the
detriment of the respondent. In these circumstances, the a ppellant should bear the
costs associated with the appeal, as well as the costs as ordered by the court a quo.
6 A “person in charge” is defined in the Pie Act as: a person who has or at the relevant time had
legal authority to give permission to a person to enter or reside upon the land in question. See
also Hohenfelde Dohne Merinos (Pty) Ltd v Louw and Others 2023 JDR 4205 (WCC) at paras
20-23.
6
[19] Counsel for the respondent informed the court that she acts pro bono. Section
92(1) of the Legal Practice Act 7 recognises that when legal services have been
rendered for free, and a court awards the litigant costs, the costs are deemed to be
ceded to the legal practitioners who provided the free legal services. 8 This provision
finds application in this matter, as far as it relates to the costs of counsel.9
ORDER
[20] In the result, the following order is proposed:
1. The appeal is dismissed.
2. The order of the court a quo is amended by substituting the date of 26 July
2024 with the date of 12 October 2025, the order to read that:
2.1 The appellant and all those who occupy through her are ordered to
vacate the property at 3017 Edward Flats, Westbury Extension 2,
Johannesburg, on or before 12 October 2025.
2.2 In the event that the appellant and all those who occupy through her
do not vacate the property mentioned above by 12 October 2025, the sheriff
of the court is ordered to effect eviction on 12 October 2025.
2.3 The appellant is ordered to pay the respondent’s costs incurred both in
the Magistrate’s Court and the costs of this appeal on a party and party scale,
costs of counsel to be paid on scale B.
C DREYER AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
I AGREE AND IT IS SO ORDERED.
MMP MDALANA-MAYISELA J
7 28 of 2014.
8 The section reads: Whenever in any legal proceedings or any dispute in respect of which
legal services are rendered for free to a litigant or other person by a legal practitioner or law
clinic, and costs become payable to that litigant or other person in terms of a judgment of the
court or a settlement, or otherwise, that litigant or other person must be deemed to have ceded
his or her rights to the costs to that legal practitioner, law clinic or practice.
9 Mudau v Municipal Employees’ Pension Fund and others [2023] 11 BLLR 1109 (CC); [2023]
JOL 60371 (CC); [2023] ZACC 26 (CC) at 78.
7
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
For the Applicant: Advocate BZ Bobison-Opoku
Instructed by: A J Venter & Associates Inc
For the Respondent: Advocate EM Mogolane
Instructed by: Pro Bono Office
Hearing date: 5 August 2025
Judgment handed down: 12 September 2025