1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No: 2024/ 009866
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
22 September 2025 M NAIR
IN THE MATTER BETWEEN:
CALC 9 (PTY) LTD FIRST APPLICANT
(REGISTRATION NUMBER: 2021/934260/07)
AND
HLENGIWE HAPPINESS SHABALALA FIRST RESPONDENT
THE CITY OF JOHANNESBURG SECOND RESPONDENT
JUDGMENT
2
___________________________________________________________________
This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representative and the Respondent’s Legal Representative by email, publication on
Case Lines. The date for the handing down is deemed 21 September 2025 at 10h00.
___________________________________________________________________
NAIR AJ
INTRODUCTION:
[1] This matter concerns an application for eviction in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the “PIE
Act”) of the first respondent, Ms Hlengiwe Happiness Shabalala (Ms
“Shabalala”), from the premises situated at Erf 9[…] T[…] Street, P[…] G[…],
Extension 12, Johannesburg (the “property”). The applicant, i s the registered
owner of the property . The second respondent, the City of Johannesburg
Metropolitan Municipality (“the City”), is cited because of its constitutional
obligations under section 26 of the Constitution of the Republic of South
Africa
1 (the “Constitution”) to prevent homelessness in eviction matters.
[2] At the commencement of the proceedings the parties abandoned their
respective points in limine raised in their papers. Ms Shabalala also filed a
notice of withdrawal of the application to invalidate the bidding of the property
by the applicant and estate agent , Jonathan Marks, under case 2024-084619
of this court with the simultaneous withdrawal of the request that Ms
1 The Constitution of the Republic of South Africa Act 108 of 1996
3
Shabalala be allowed to sell the property privately. Ms Shabalala was
properly served with the application in terms of section 4(1) of the PIE Act as
well as the section 4(2) notice in terms of the PIE Act.
[3] Ms Shabalala’s legal representatives failed to file heads of argument in the
matter on behalf her behalf in compliance with Practice Directive 25.1.2 of the
Consolidated Practice Directives 1/2024 (the “Consolidated Practice
Directives”) and further failed to comply with compiling a joint practice note
with the applicant in compliance with Practice Directive 25.18 of Consolidated
Practice Directives. Adv Kabinde, who argued on behalf of Ms Shabalala
made his submissions from the bar that Ms Shababala conceded that she
was in unlawful occupation of the property, but that given her personal and
socio-economic circumstances that she and her son would be rendered
homeless if an order is granted ordering her eviction from the property.
2
BACKGROUND:
[4] The essential facts of this case are largely common cause. The property was
previously bonded to Nedbank Limited. Ms Shabalala defaulted on her loan
repayments during 2021, which culminated in judgment being taken against
her. Pursuant to that judgment, the property was attached and sold at a sale
in execution conducted by the Sheriff on 3 November 2023. The applicant
purchased the property at the sale for R307,000. Transfer was duly effected
2 First respondent’s answering affidavit 02-72; First respondent’s opposing affidavit 02-84
4
into the name of the applicant on 12 January 2024. 3 The deeds registry
reflects the applicant as the registered owner.4
[5] Ms Shabalala, who is 47 years of age, has resided at the property for
approximately nineteen years. It has been her family home since acquisition.
She currently lives there with her adult son. When the application was lodged
by the applicant , Ms Shabalala was employed as a sales representative at
Momentum.5 At the hearing of the matter counsel for Ms Shabalala submitted
that she has since become unemployed. Ms Shabalala placed no bank
statements, or supporting documentation before court regarding her
unemployment. She denies that she refused to vacate the property and
claimed in her papers that her son is unemployed and dependent upon her
but no confirmatory affidavit was filed by Ms Shabalala’s adult son to
substantiate this assertion.6
[6] Ms Shabalala alleges that prior to the auction, she had secured prospective
private buyers willing to purchase the property for approximately R800,000.
However, those buyers were unable to secure bank finance and the
transactions collapsed. She contends that the auction price of R307,000 was
unreasonably low.
7 She lodged proceedings to invalidate the bidding of the
property by the applicant and estate agent, Jonathan Marks under, case
3 Applicant’s founding affidavit 02-8
4 Applicant’s founding affidavit 01-12 and 02-14
5 Applicant’s founding affidavit 02-9; Respondent’s answering affidavit 02-84
6 Respondent’s answering affidavit 02-87 and 02-88
7 Respondent’s answering affidavit 02-84
5
2024-084619 of this court with the simultaneous request that she be allowed
to sell the property.8 These applications were subsequently withdrawn. Most
significantly, Ms Shabalala avers that should this court grant the eviction
order, she and her son will be rendered homeless, as she has no alternative
accommodation.9
[7] The applicant, for its part, submits that the Ms Shabalala ’s occupation is
unlawful and prejudicial. It contends that her defences are without merit, that
her alleged hardship is unsubstantiated, and that her continued occupation
denies the applicant the benefit and enjoyment of its property while burdening
it with municipal charges.
10
[8] The following is common cause between the parties:
[8.1] The applicant is the registered owner of the property;
[8.2] Ms Shabalala tried to negotiate a private sale of the property prior to
the
sale in execution on 3 November 2023;
[8.3] The first respondent attempted to settle the arrears on the bond with
Nedbank Limited prior to the sale in execution;
[8.4] The sale in execution took place on 3 November 2023;
8 Respondent’s answering affidavit 02-85
9 Respondent’s answering affidavit 02-89
10 Applicant’s answering affidavit 02-186 to 02-187
6
[8.5] The Registrar of Deeds registered the property into the name of the
applicant on 12 January 2024;
[8.6] The first respondent remains in occupation of the property together
with her adult son.
ISSUES:
[9] The following are the key issues in dispute between the parties:
[9.1] Whether the applicant is entitled to eviction under the PIE Act;
[9.2] Whether the first respondents’ circumstances justify delaying eviction
or conditioning it on municipal provision of housing;
[9.3] Whether the eviction, if granted, would be just and equitable.
LEGAL PRINCIPLES:
[10] In the Constitutional Court case of Occupiers of erven 87 & 88 Berea versus
Christiaan Frederick De Wet N.O
11 the court held that the starting point in
eviction matters is section 26(3) of the Constitution which provides that 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.
Accordingly, courts seized with eviction matters are enjoined by the
Constitution to consider all relevant circumstances. The court went on further
to hold that the prohibition in section 26(3) of the Constitution is given effect to
11 Constitutional Court case of Occupiers of erven 87 & 88 Berea versus Christiaan Frederick De Wet
N.O and Others case number 108/2016 at paras 40 to 41
7
through the enactment of PIE. The PIE Act goes further and enjoins the courts
to order an eviction only if it is of the opinion that it is just and equitable to do
so, after considering all the relevant circumstances as contemplated in
sections 4(6) and (7) and section 6(1) of PIE.
[11] Section 6(3) of the PIE Act, stipulates certain aspects that the court must
consider when it is to be decided whether an eviction will be just and
equitable. Section 6(3) of PIE Act reads as follows:
“6(3) In deciding whether it is just and equitable to grant an order for eviction,
the court must have regard to-
(a) the circumstances under which the unlawful occupier occupied the land
and erected the building or structure;
(b) the period the unlawful occupier and his or her family have resided on the
land in question; and
(c) the availability to the unlawful occupier of suitable alternative
accommodation or land.”
[12] The nature of the enquiry under section 4 of PIE was examined in the case of
City of Johannesburg versus Changing Tides
12. The court at paragraph 12 of
the judgment stated the following:
12 City of Johannesburg versus Changing Tides 2012 (6) SA 294 (SCA) at par 12
8
“There does not appear to have been a consideration of the precise
relationship between the requirements of section 4(7) (or section 4(6) if the
occupiers have been in occupation for less than six months) and section 4(8)
in the context of an application for eviction at the instance of a private
landowner. In some judgments there is a tendency to blur the two enquiries
mandated by these sections into one. The first enquiry is that under section
4(7), the court must determine whether it is just and equitable to order
eviction having considered all relevant circumstances. Among those
circumstances the availability of alternative land and the rights and needs of
people falling into specific vulnerable groups are singled out for
consideration. Under section 4(8) it is obliged to order an eviction “if the …
requirements of the section have been complied with” and no valid defence
is advanced to an eviction order. The provision that no valid defence has
been raised refers to a defence that would entitle the occupier to remain in
occupation as against the owner of the property, such as the existence of a
valid lease. Compliance with the requirements of section 4 refers to both the
service formalities and the conclusion under section 4(7) that an eviction
order would be just and equitable. In considering whether eviction is just and
equitable the court must come to a decision that is just and equitable to all
parties. Once the conclusion has been reached that eviction would be just
and equitable the court enters upon the second enquiry. It must then
consider what conditions should attach to the eviction order and what date
would be just and equitable upon which the eviction order should take effect.
Once again, the date that it determines must be one that is just and
equitable to all parties”
9
[13] The second enquiry, which the court must undertake before granting an
eviction order, is to 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 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.”
13
[14] In the Constitutional Court case of the City of Johannesburg versus Blue
Moonlight Properties 39 (Pty) Ltd
14 the Court was called upon to decide
whether it was reasonable for the local authority to provide temporary
emergency accommodation only to those occupants who were evicted from
properties owned by the local authorities and not to occupants evicted from
13 City of Johannesburg versus Changing Tides 2012 (6) SA 294 (SCA) at par 25
14 City of Johannesburg versus Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) at par 96
10
private property. The Court held that it was unreasonable to differentiate
between these two groups. 15 The effect is that the local authority has a duty
to provide temporary emergency accommodation to all persons being evicted
who have no alternative accommodation.16
[15] This duty must be read together with section 4(7) of the PIE Act, which
provides that one of the circumstances which may be relevant to the just and
equitable enquiry is 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.
[16] Where there is a risk that homelessness , the availability of alternative
accommodation becomes a relevant circumstance that must be taken into
account.
17 A court will not be able to decide the justice and equity of an
eviction without hearing from the local authority upon which a duty to provide
temporary emergency accommodation may rest.
18 This duty must be read
together with section 4(7) of the PIE Act, which provides that one of the
circumstances which may be relevant to the just and equitable enquiry is
whether land has been made available or can reasonably be made available
15 Ibid at par 95.
16 Id at para 96-7.
17 See Changing Tides above at para 38.
18 See Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg versus Daisy Dear
Investments (Pty) Ltd [2009] ZASCA 80; 2010 (4) BCLR 354 (SCA) (Shorts Retreat) at paras 11-4;
Changing Tides above at para 38 and Drakenstein Municipality v Hendricks 2010 (3) SA 248
(WCC)
at para
11
by a municipality or other organ of state or another land owner for the
relocation of the unlawful occupier.
[17] In the matter of Port Elizabeth Municipality v Various Occupiers 19 Justice
Sachs of the Constitutional Court stated that following:
“Thus, PIE expressly requires the court to infuse elements of grace and
compassion into the formal structures of the law. It is called upon to balance
competing interests in a principled way and promote the constitutional vision
of a caring society based on good neighbourliness and shared concern. The
Constitution and PIE confirm that we are not islands unto ourselves. The
spirit of ubuntu, part of the deep cultural heritage of the majority of the
population, suffuses the whole constitutional order. It combines individual
rights with a communitarian philosophy. It is a unifying motif of the Bill of
Rights, which is nothing if not a structured, institutionalised and operational
declaration in our evolving new society of the need for human
interdependence, respect and concern”.
MS TSHABALALA’S PERSONAL CIRCUMSTANCES:
[18] In Transnet Ltd versus Zaaiman20 the court held the following:
“The discretion conferred on a court by PIE must be exercised judicially, with
full regard to the personal circumstances of the occupiers, the length of
occupation, and the availability of alternatives.”
19 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 37:
20 Transnet Ltd versus Zaaiman 2014 (1) SA 149 (SCA) at para 29:
12
APPLICATION OF THE LAW TO THE FACTS:
[19] The applicant is entitled to have unlawful occupiers of its’ property evicted, but
the applicant’s rights must be balanced against the first respondent ’s
constitutional rights to housing and dignity under section 26 of the
Constitution.
Ms Shabalala’s household only consists of the her and her adult son and she
has been residing there for 19 years . I am mindful that Ms Tshabalala is a
female who has since the lodgement of these eviction proceedings become
unemployed. No request was made by Ms Shabalala to file any
supplementary papers despite her being represented at the hearing and the
court relied on the papers before it.
[20] Of concern is that there was no proof of the unemployment of Ms Shabalala.
At this stage I am no wiser ass to what the reason was that caused her
unemployment. It was however undisputed that at the time when this eviction
proceedings were lodged, Ms Shabalala was a sales assistant at Momentum
and earned a salary of approximately R6 484,70.
21 Ms Shabalala did not
provide any information to this court regarding whether she received any
retirement benefits or pay -outs from Momentum when she became
unemployed. She blanketly alleged that she will be rendered homelessness if
an eviction order is granted in this matter.
21 Respondent’s answering affidavit 02-89
13
[21] The court in Die Dros (Pty) Ltd versus Telefon Beverages CC 22 held the
following:
“It is trite law that the affidavits in motion proceedings serve to define not only
the issues between the parties, but also to place the essential evidence
before the court (See: Swissborough Diamond Mines (Pty) Ltd & Others v
Government of the Republic of South Africa & Others 1999(2) SA 279 (W) at
323G) for the benefit of not only the court, but also the parties. The affidavits
in motion proceedings must contain factual averments that are sufficient to
support the cause of action on which the relief that is being sought is based.
Facts may either be primary or secondary. Primary facts are those capable of
being used for the drawing of inferences as to the existence or non- existence
of other facts. Such further facts, in relation to primary facts, are called
secondary facts (See: Willcox & Others v Commissioner of Inland Revenue
1960(4) SA 599 (A) at 602A; Reynolds N.O. v Mecklenberg (Pty) Ltd 1996(1)
SA 75 (W) at 78I). Secondary facts, in the absence of the primary facts on
which they are based, are nothing more than a deponent's own conclusions
(See: Radebe v Eastern Transvaal Development Board 1988(2) SA 785 (A) at
793C-E) and accordingly do not constitute evidential material capable of
supporting a cause of action.”
[22] Ms Shabalala did not provide any information regarding her financial position
as a result of her unemployment or her adult sons circumstances and whether
22 2003 (1) All SA 164 (C) at pa 28
14
he has been seeking employment or not or whether he has since the
lodgement of these eviction proceedings gained employment . Her attorneys
came on record in February 2024 and one would expect that if there was any
additional evidence relevant for this court to consider that such evidence
would have been filed through supplementary and confirmatory affidavits but
this was not done.
FINANCIAL HARDSHIP:
[23] There is a dispute of fact between the applicant and Ms Shabalala as to
whether Ms Shabalala is experiencing financial hardship and whether she
would be rendered homeless if evicted from the property. When dealing with
disputes of fact the court in Plascon -Evans Paints Ltd versus Van Riebeeck
Paints (Pty) Ltd
23 had the following to say:
“Ordinarily, the Court will consider those facts alleged by the applicant and
admitted by the respondent together with the facts as stated by the
respondent to consider whether relief should be granted. Where, however, a
denial by a respondent is not real, genuine or in good faith, the respondent
has not sought that the dispute be referred to evidence, and the Court is
persuaded of the inherent credibility of the facts asserted by an applicant, the
Court may adjudicate the matter on the basis of the facts asserted by the
applicant.”
23 Plascon-Evans Paints Ltd versus Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA
623 (A) at 634E-635C, discussed and approved in Rail Commuters Action Group and Others
versus Transnet Ltd t/a Metrorail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4)
BCLR 301 (CC) at para 53
15
[24] Ms Shabalala stated that her financial position deteriorated during the Covid-
19 pandemic, making her unable to service the bond. She acknowledges her
previous employment as a sales representative but has not disclosed her
earnings by means of a salary advice. At the hearing of the eviction
application it was argued on her behalf that she was currently unemployed.
Applying the Plascon-Evans rule, I accept Ms Shabalala’s claim of financial
distress.
RISK OF HOMELESSNESS:
[25] Ms Shabalala asserts that she and her son will be rendered homeless if
evicted. Applying Plascon-Evans, I accept her assertion that she fears
homelessness. Yet her evidence is vague and unsupported. S he has not
demonstrated attempts to secure alternative accommodation since she was
served with the notice of the eviction application. This was whilst she was still
employed. She also provided no financial disclosures, or filed any
confirmatory evidence from her son. In the case of Occupiers of Berea 24
supra, the Constitutional Court made clear that courts must interrogate
allegations of homelessness, but that bald assertions cannot outweigh
established ownership rights.
25 To my mind a legal representative has a duty
to place essential facts before a court where the possibility of homelessness
exists. It is common cause between the parties that Ms Shabalala attempted
24 Occupiers of Berea v De Wet NO 2017 (5) SA 346 (CC)
25 See also Luanga versus Perthpark Properties Ltd 2019 (3) SA 214 (WCC)
16
to make arrangements with Nedbank Limited to pay off the arrears on the
home loan. This to my mind is an indication that Ms Shabalala was not so
destitute that she would not have been in a position to secure alternative
rental accommodation if she offered to pay an amount to reduce the arrears
on the bond.
[26] The City of Johannesburg Temporary Emergency Policy (the “Ci ty’s Policy”)
approved on 25 February 2021
26 sets out the criteria that temporary
emergency accommodation will be provided to households with an income of
less than R3500,00 per month
27 and also that it will not be provided to
affected persons that are capable of addressing their housing need out of
their own financial or other resources.
28
CONCLUSION:
[27] In my view the applicant is entitled to eviction as it was conceded on behalf of
Ms Shabalala at the commencement of the hearing that she and her adult son
are unlawful occupiers. It was further not in dispute that Ms Shabalala is an
unlawful occupier as defined in the PIE Act and entitled to the protection of its
provisions.
26 Applicant’s replying affidavit 02-220
27 Applicant’s replying affidavit 02-227 par 8.1
28 Applicant’s replying affidavit 02-227
17
[28] The authorities are clear that t his eviction can only occur under terms that are
just and equitable. At the hearing of the matter it was not argued on behalf of
Ms Shabalala that it was not just and equitable to be evicted from the property
but merely that Ms Shabalala and her son would be rendered homeless if they
were to be evicted. Ms Shabalala’s son is an adult and it was submitted that
he was unemployed. I have taken into account the submission that Ms
Shabalala is also now unemployed but this in my view does not automatically
justify temporary emergency accommodation to be provided by the City
unless Ms Shabalala will be rendered destitute. Surprisingly there was no
submission made on behalf of Ms Shabalala that the City should be requested
to provide a report and temporary emergency accommodation in respect of
Ms Shabalala’s homelessness. Instead it was argued that it would be just and
equitable if Ms Shabalala was given a minimum of six months to get her
affairs in order so that she may be given sufficient time to obtain alternative
accommodation. This in my view indicated to the court that she wanted to
find her own alternative accommodation but merely required the time to save
up to do this. It is not a sign of someone who is destitute. As indicated
earlier, Ms Shabalala also did not disclose whether she received any benefits
from her previous employer when she became unemployed. A perusal of the
main reason why she initially opposed this eviction application was because
she wanted to sell the property privately instead of the property being sold in a
sale in execution so that she could make some profit off the sale. This to my
mind is not indicative of someone who is destitute but of someone who merely
wished to make a profit from the sale and protect her financial interests.
18
[29] From what is set out above I find that Ms Shabalala will not be destitute and
will not be rendered homeless if an eviction order is granted. I therefore find
that it is just and equitable to order her eviction. It is therefore not necessary
to obtain a report from the City regarding Ms Shabalala’s homeless as I find
that she will not be rendered homeless. The proportionality balance here
favours the applicant. The question that remains is what is a fair, reasonable,
just and equitable date for evicti on. Given the fact that the applicant only
requests time to find alternative accommodation and the fact that she has had
since January 2024 to sort out alternative accommodation, I am of the view
that an appropriate date for eviction would be 30 November 2025.
COSTS:
[30] The applicants seek the costs of the eviction application on scale A. It is a
natural consequence of litigation that costs should be granted in favour of the
successful party.
ORDER:
[31] In the result the following order is made that:
[31.1] The first respondent and all persons occupying the property situated at
Erf 9[….] T[…] Street, P[…] G[…], Extension 12, Johannesburg through
19
and under the first respondent, are declared unlawful occupiers of the
property;
[31.2] The f irst respondent and all those occupying the property through or
under the f irst respondent are evicted and order ed to vacate Erf 9[…]
T[…] Street, P[…] G[…], Extension 12, Johannesburg on or before 3 0
November 2025 which is a just and equitable date for eviction;
[31.3] In the event of the first respondent and all those occupying the property
situated at Erf 9[ …] T[…] Street, P […] G[…], Extension 12,
Johannesburg failing to vacate the said property on or before 30
November 2025, the Sheriff , his duly authorised Deputy Sheriff for the
area within which the property is situated is authorised to evict the first
respondent and all persons residing at the property through and under
her;
[31.4] The Sheriff or his Deputy Sheriff for the area where the property is
situated is authorised to engage the assistance of the South African
Police Service in order to give effect to this eviction order, in the event
that such assistance is required;
[31.5] The first respondent is ordered to pay the costs occasioned by the
eviction application on scale “A”.
20
________________________
M NAIR
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of appearance: 11 June 2025
Date Judgment delivered: 21 September 2025
Appearances:
For the Applicant: Adv C Van Der Linde
Instructed by: A Le Roux Attorneys
Email address: alrattorneys@mweb.co.za
Ref: Calc9/ Shabalala
Tel: 011-485 1990
For the First Respondent: Adv KI Kabinde
Instructed by: Sithi and Thabela Attorneys
Email address: info@sntattorneys.co.za
thabela@sntattorneys.co.za
Ref: S41/PROP/2024
Tel: 011-354 2128