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: 2021/11293
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
17 September 2025
IN THE MATTER BETWEEN:
MI PROPERTY HOLDINGS (PTY) LTD FIRST APPLICANT
(REGISTRATION NUMBER: 2014/108415/07)
LANDSEC (PTY) LTD SECOND APPLICANT
(REGISTRATION NUMBER: 2012/020068/07)
AND
WILFRED TSHABALALA FIRST RESPONDENT
TENJIWE NCUBE SECOND RESPONDENT
RICHARD NDLOVU THIRD RESPONDENT
OTSHUDI KAYENDE PAPITHSO FOURTH RESPONDENT
2
SINDISIWE FELICIA MSANI FIFTH RESPONDENT
JOEL MGCINI NGWENYA SIXTH RESPONDENT
WAKHIWE NKOMO SEVENTH RESPONDENT
THE CITY OF JOHANNESBURG EIGHTH RESPONDENT
FLOYD BRINK N.O NINTH RESPONDENT
(In his capacity as Municipal Manager of the
City of Johannesburg)
JUDGMENT
NAIR AJ
INTRODUCTION:
[1] This is an application for the 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 to seventh respondents from the premises at unit 6[...], unit 6 […],
unit 6[…], unit 6[…], unit 6[…], unit 6[…] and unit 6[…] Manhattan Place of Erf
1[…] Berea Township, Registration Division IR Gauteng situated at Corner
J[…] Road and L[…] Avenue, B[…], Johannesburg (the “property”). There are
a total of seven units which form the subject matter of this eviction application
and they are all situated on the same property but occupied by the various
respondents in this application. The second, third, fifth and seventh
3
respondents have since being served with this application vacated the
property. The applicants, as registered owners of Manhattan Place, seek the
eviction of the first, fourth, and sixth respondents who currently still reside in
their units. The eighth 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 there was no appearance by the
first, fourth and sixth r espondents or their legal representative. Counsel for
the applicants, Advocate Leon Peters, commenced to argue the merits of the
application before me. Prior to Adv Peters finalising his argument, counsel for
the first and sixth respondent, Adv M hlanga, arrived at court citing logistical
issues with transportation as the reason for his lateness and requested to
address me in argument on the merits of the matter . This request was made
despite the fact that the first and sixth respondents fail ed to file heads of
argument in the matter in compliance with Practice Directive 25.1.2 of the
Consolidated Practice Directives 1/2024 (the “Consolidated Practice
Directives”) and further fail ed to comply with compiling a joint practice note
with the applicant in compliance with Practice Directive 25.18 of Consolidated
Practice Directives. The fourth r espondent who 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 failed to attend court on the date set down for
1 The Constitution of the Republic of South Africa Act 108 of 1996
4
hearing of the matter. 2 The application proceeded in the absence of the
fourth respondent as I was satisfied that the fourth respondent had knowledge
of the date for the hearing of the matter.
[3] The first and sixth respondents raised various points in limine in their papers,
however, at the hearing of the application, Adv Mahlanga who appeared for
the first and sixth respondents submitted that the first and sixth respondents
conceded that they were in unlawful occupation of the respective units of the
applicants property at Manhattan Place, but that given the personal and socio-
economic circumstances of the first and sixth respondent that they would be
rendered homeless if an order is granted ordering their eviction.
BACKGROUND:
[4] MI Property Holdings (Pty) Ltd (registration number: 2014/108417/07) (the
“first applicant”) is the registered owner of The Manhattan Place which is a
multi-unit residential property situated at Erf 1[ …] Berea Township,
Registration Division IR Gauteng situated at Corner J […] Road and L[ …]
Avenue, Berea, Johannesburg. The second applicant is Land Securities
Management (Pty) Ltd (registration number: 1989/001797/07) who is the
managing agent of the first applicant.
3 The respondents are/ were tenants at
the property. Mr Wilfred Tshabalala (the “first respondent”) occupied unit 6[...],
Mr Otshudi Kayende Papitsho (the “fourth respondent”) occupied unit 6[ …]
2 Fourth respondent’s acknowledgment of receipt of the section 4(2) notice in terms of the PIE Act
029-1 to 029-3
3 Applicants’ founding affidavit 002-8 to 002-9
5
and Mr Joel Ngwenya (the “sixth respondent”) occupied unit 6[ …]. The lease
agreements entered into with the respondents were terminated in February
2021 due to non- payment, but despite demand the first, fourth and sixth
respondents remain in occupation. 4 The second, third and fifth respondents
having vacated their units after the institution of this eviction application.
[5] An earlier order of this court , granted by Opperman J on 25 October 2023,
ordered the City to investigate and report on the first and sixth respondents’
personal circumstances and possible temporary emergency accommodation if
an order for their eviction was granted. 5 Those City’s reports are before this
court and form the evidentiary basis for determining the respondents’
vulnerability and the obligations of the City.6
[6] The following is common cause between the parties:
[6.1] The applicants are registered owners of the Manhattan Place
Property
7;
[6.2] The lease agreements entered into with the respondents were lawfully
cancelled.8
[6.3] The first, fourth and sixth respondents are unlawful occupiers of the
property under the PIE Act;
4 Applicants’ founding affidavit 002- 26 to 002-41; 002-77 to 002-83
5 Court Bundle 011-24 to 011-26
66 Eighth respondent’s municipality report in respect of the first and the sixth respondents at 010-1 to
010-14 and 010-15 to 010 to 010-28
7 Applicants’ founding affidavit 002-25
8 Applicant’s founding affidavit 002-77 to 002-83
6
[6.4] The City conducted personal and socio-economic assessments of the
first and sixth respondents9
ISSUES:
[7] The following are the key issues in dispute between the parties:
[7.1] Whether the applicants are entitled to eviction under the PIE Act;
[7.2] Whether the first, fourth and sixth respondents’ circumstances justify
delaying eviction or conditioning it on municipal provision of housing;
[7.3] Whether the eviction, if granted, would be just and equitable.
POINT IN LIMINE:
[8] In opposing the application the first and sixth respondents initially raised two
points in limine . The first point in limine averred that Eileen Verdoorn, the
deponent to the founding affidavit of the applicants, lacked the necessary
locus standi to depose thereto and/or act on behalf of the applicants. The first
to sixth respondents abandoned this point in limine at the commencement of
the hearing of the application.
[9] A second point in limine raised by the first and sixth respondent was that the
occupiers of the first respondent ’s unit at unit 6[...] of the property as well as
9 Eighth respondent’s municipality report in respect of the first and the sixth respondents at 010-1 to
010-14 and 010-15 to 010 to 010-28
7
occupiers of units 6[ …] and 6[…] have not been cited in this application and
thus there is a material non- joinder of these further occupiers. 10 The first to
sixth respondents further allege that these further occupiers of the property
occupy the property with the consent of the second applicant and were
brought into by the second applicant to assist the respondents with their rental
repayments. The respondents contend that they were not opposed to this
idea as it would have been to their benefit in assisting them to pay their rental
amounts. This is denied by the applicants who allege that these further
occupants were given permission to reside in the units by the first respondent
who sub-let unit 6[...] to other tenants contrary to clauses 8.3.2 and 8.3.3 of
the lease agreement entered into with the first respondent which prohibited
sub-letting.
[10] The test for non- joinder is set out by the Supreme Court of Appeal in Absa
Bank Ltd versus Naude NO and Others ,
11 in the following terms: ‘The test
whether there has been non- joinder is whether a party has a direct and
substantial interest in the subject matter of the litigation which may prejudice
the party that has not been joined.” The Supreme Court of Appeal referred to
the judgment of Gordon versus Department of Health, Kwazulu-Natal12 where
it was held that if an order or judgment cannot be sustained without
necessarily prejudicing the interest of third parties that had not been joined,
then those third parties have a legal interest in the matter and must be joined.
Essentially, the first and sixth respondents must show that: (a) t he other
10 Answering affidavit 006-11 at par 23
11 Absa Bank Ltd v Naude NO and Others [2015] ZASCA 97 (SCA); 2016 (6) SA 540 (SCA) para 10
12 Gordon versus Department of Health, Kwazulu-Natal 2008(6)SA 522 (SCA) at par 9
8
unlawful occupiers have a direct and substantial interest in the subject matter
of the litigation which may prejudice them as they have not been joined; and
(b) such interest is not only a substantial interest but is a legal interest which
justifies that they must be joined.
[11] In Matjhabeng Local Municipality versus Eskom Holdings Limited and Others ,
the Constitutional Court held the following:
“At common law, courts have an inherent power to order joinder of parties
where it is necessary to do so even when there is no substantive application
for joinder. A court could, mero motu, raise a question of joinder to safeguard
the interest of a necessary party and decline to hear a matter until joinder has
been effected. This is consistent with the Constitution.’
13
[12] The Constitutional Court further stated that t he law on joinder is well settled.
No court can make findings adverse to any person’s interests, without that
person first being a party to the proceedings before it. The purpose of this
requirement is to ensure that the person in question knows of the complaint
so that they can enlist counsel, gather evidence in support of their position,
and prepare themselves adequately in the knowledge that there are personal
consequences – including a penalty of committal – for their non- compliance.
All of these entitlements are fundamental to ensuring that potential
13 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others versus
Compensation Solutions (Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1
(CC) par 91
9
contemnors’ rights to freedom and security of the person are, in the end, not
arbitrarily deprived.’14
[13] When dealing with disputes of fact the court in Plascon-Evans Paints Ltd
versus Van Riebeeck Paints (Pty) Ltd 15 had the following to say when dealing
with matters involving a dispute of fact:
“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.”
[14] The second applicant as the managing agent of the first applicant has rules
and procedures to follow before allowing a tenant to reside on the property of
the first applicant. This includes concluding a written agreement between any
further occupier of the property and the second applicant. No such lease
agreement was ever produced by the respondents and in applying the
14 Ibid par 92
15 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
10
Plascon Evans rule the respondents do not deny that there were no lease
agreements entered into between the second applicant and the further
occupiers of unit 6[...] (the first respondents unit ). Units 6 […] and 6[…] are
not units which were relevant to the current eviction application. Paragraph
14.3 of the City’s report indicates at 010-10 of the court bundle that the first
applicant is sub- letting his unit to two tenants from whom he receives an
income of R2700 and R1500 per month respectively. The report further
indicated that 12 people live in the first respondent’s unit under the first
respondent.
[15] Section 3(1) of the PIE Act prohibits any person from directly or indirectly
receiving or soliciting payment of any money or other consideration as a fee
or charge for arranging or organising or permitting a person to occupy land
without the consent of the owner or person in charge of that land. C lauses
8.3.2 and 8.3.3 of the lease agreement of the first respondent
16 strictly
prohibits sub-letting. In my view by the first respondent sub-letting unit 6[...] to
two other tenants, the first respondent contravened section 3(1) of the PIE
Act. Any other occupier of unit 6[...] which resulted from the sub-letting of unit
6[...] by the first respondent is an occupier which would in the ordinary sense
fall through and under the control o f the first respondent and not that of the
applicants. In my view this would result in the point in limine of the non-
joinder of further occupiers of unit 6[...] failing as any order granted against
the first respondent would have the effect of extending to any occupier who
occupies unit 6[...] through and under the first respondent. These would
16 Applicant’s founding affidavit 002-29
11
include the first respondents tenants who entered into a sub- letting
agreements of unit 6[...] with the first respondent and not with the applicant . I
am also mindful that the tenants in all probability are aware of the present
eviction proceedings and non have come forward requesting to be joined to
the proceedings. It is for the aforementioned reasons that the point in limine
in respect of the non-joinder of other occupiers of the property is dismissed.
LEGAL PRINCIPLES:
[16] In the Constitutional Court case of Occupiers of erven 87 & 88 Berea versus
Christiaan Frederick De Wet N.O
17 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
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.
17 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
12
[17] 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.”
[18] The nature of the enquiry under section 4 of PIE was examined in the case of
City of Johannesburg versus Changing Tides
18. The court at paragraph 12 of the
judgment stated the following:
“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
18 City of Johannesburg versus Changing Tides 2012 (6) SA 294 (SCA) at par 12
13
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 formali ties 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”
[19] The second enquiry, which the court must undertake before granting an
eviction order, is to consider:-
14
“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.”
19
[20] In the Constitutional Court case of the City of Johannesburg versus Blue
Moonlight Properties 39 (Pty) Ltd 20 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
private property. The Court held that it was unreasonable to differentiate
between these two groups.
21 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.
22
19 City of Johannesburg versus Changing Tides 2012 (6) SA 294 (SCA) at par 25
20 City of Johannesburg versus Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) at par 96
21 Ibid at par 95.
22 Id at para 96-7.
15
[21] 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.
[22] Where there is a risk that homelessness , the availability of alternative
accommodation becomes a relevant circumstance that must be taken into
account.23 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. 24 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.
[23] In the matter of Ndlovu versus Ngcobo; Bekker versus Jika
25 it was held that a
tenant who remains in occupation after cancellation of a lease is an unlawful
23 See Changing Tides above at para 38.
24 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
25 Ndlovu versus Ngcobo; Bekker versus Jika 2003 (1) SA 113 (SCA) at para 17
16
occupier as defined in the PIE Act and entitled to the protection of its
provisions.
[24] In the matter of Port Elizabeth Municipality v Various Occupiers 26 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”.
FIRST AND SIXTH RESPONDENT’S PERSONAL CIRCUMSTANCES:
[25] In Transnet Ltd versus Zaaiman27 the court held the following:
26 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 37:
27 Transnet Ltd versus Zaaiman 2014 (1) SA 149 (SCA) at para 29:
17
“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.”
[26] The first respondent lives with his wife who is a Zimbabwean citizen and their
three minor children in unit 6[...] . Their lease commenced on 1 November
2015 and expired two months later .
28 H e had two brothers who also resided
with them as well as the two sets of tenants to whom he has sub -let the unit
to. He earns an amount of R2700 per month from one tenant and R1500 per
month from the other tenant. The first respondent and his wife are presently
unemployed. The first respondent used to pay rental in the amount of R6800/
R6900 per month in respect of the unit but was retrenched from his job as a
rigger at Medupi Power Station at Lephalale since 2020 during Covid-19. The
first respondent submitted that he has no other extended family in
Johannesburg; cannot afford rental housing.
29
[27] The fourth respondent is a single male who also fell into arrears with his lease
agreement during COVID-19. His lease commenced 1 May 2020 and expired
one month later.30 The fourth respondent initially opposed this application and
filed his answering affidavit but did not attend the court proceedings after
28 Applicants founding affidavit 002-28
29 See court bundle 010-9 to 010-12
30 Applicants’ founding affidavit 002-29
18
being served with the notice in terms of section 4(2) of the PIE Act providing
him with the date of the hearing.31
[28] The s ixth respondent resided with his wife, two children and at unit 6[…].
Thus there are four occupants at unit 6[ …]. The sixth respondent is currently
unemployed having lost his job at Makro during Covid- 19 in 2021. The sixth
respondent’s lease commenced 15 January 2011 and expired two months
later.32 His wife works two days a week from which she earns R250 per day
totalling R500 per week. The sixth respondent contends that he has no
relatives in Johannesburg and has lived on the property for over 10 years.33
[29] The City’s Temporary Emergency Accommodation (the “TEA”) reports
concluded as follows:
[29.1] That the first respondent’s household is of less means but is not
necessarily destitute owing to the fact that the first respondent has a
brother who works as a security guard and earns R4500 per month
from which income alternative accommodation can be obtained . The
family has no immediate alternative accommodation, but given that the
brother is employed, it may be possible to for the first respondent to
secure some form of rental accommodation in future. The finding was
made that the first respondent ’s household does not qualify for
31 Fourth respondent’s answering affidavit 005-1 to 005-8
32 Applicants founding affidavit 002-29
33 Court bundle 010-24 to 010-25
19
Temporary Emergency Accomodation. as they can afford alternative
accommodation.34
[29.2] That the sixth respondent is not financially resourceful to immediately
afford their own alternative accommodation The TEA report reflects
that the r espondents do not qualify for immediate T emporary
Emergency Accommodation since the sixth respondent and his wife
are healthy and should be able to raise funds to find their own
alternative accommodation The TEA report stressed that the City
currently faces a backlog of approximately 15,000 individuals awaiting
TEA and it was recommended that the sixth r espondent remain in their
current dwelling for a further 6 to 12 months . On this basis, the City
declined to provide TEA.
APPLICATION OF THE LAW TO THE FACTS:
[30] The Applicants are entitled to have unlawful occupiers of their property
evicted, but their rights must be balanced against the first, fourth and sixth
respondents’ constitutional rights to housing and dignity under section 26 of
the Constitution.
The first and sixth respondents households, with children and female
members, fall within the category of vulnerable occupiers contemplated. The
Olivia Road case supra obliges the City to engage meaningfully with the
respondents. In my view the City’s reports, which merely classify families as
34 Court bundle 010-12 to 010-13
20
“not destitute,” reflect a bureaucratic label rather than meaningful
engagement. I am mindful that once the first respondent is evicted from the
property that his only source of income which was the rental income from the
two tenants renting the property from him would fall away. There is no
mention in the report as to whether the first respondents brother who works as
a security guard and earns R4500 per month actually contributes to the
accommodation.
[31] The Blue Moonlight case supra makes it clear that the City cannot evade its
duty by narrowing TEA to “destitute” households only or by citing a backlog.
As set out in the Drakenstein case supra, the City’s joinder is substantive. It
must assist the court in fashioning a just and equitable solution. Its failure to
do so is a dereliction of duty. The court in the Transnet v ersus Zaaiman
35
requires consideration of the respondents length of accommodation and the
availability of alternative accommodation. With over a decade of occupation
by the sixth respondent and several years by the first respondent , eviction
would be inequitable.
[32] I am of the view that the City’s reliance on a “destitute” threshold is
inconsistent with the Blue Moonlight case supra. The duty to provide
emergency accommodation applies whenever eviction would result in
homelessness, not only for those the City deems destitute. The City’s own
35 Transnet Ltd versus Zaaiman 2014 (1) SA 149 (SCA) at para 29
21
reports concede that both the first and sixth respondents’ households cannot
secure immediate alternatives. This in itself invokes its constitutional duty and
I am further of the view that backlog statistics cannot absolve the City. As the
Constitutional Court held in Blue Moonlight, the duty is to take reasonable
steps within available resources, not to disclaim responsibility.
CONCLUSION:
[33] The Applicants are entitled to eviction as the first and second respondents
conceded at the commencement of the hearing that they are unlawful
occupiers. The Supreme Court of Appeal in the matter of Ndlovu v Ngcobo;
Bekker v Jika
36 held that a t enant who remains in occupation after
cancellation of a lease is an unlawful occupier as defined in the PIE Act and
entitled to the protection of its provisions.
[34] The authorities are clear that t his eviction can only occur under terms that are
just and equitable. The same principle applies for the fourth respondent who
failed to attend the hearing of the application and oppose the matter. At the
hearing of the matter the first and sixth applicants did not argue that it was not
just and equitable to be evicted from the property but merely that they would
be rendered homeless if they were to be evicted. The first and sixth
respondents’ households, contain minor children dependent s, who cannot be
left homeless. In my view t he City must discharge its constitutional
36 Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) at para 17
22
obligations irrespective of its borderline administrative classification of the first
and sixth respondents as not fully destitute.
[35] The Constitutional Court in Charnell Commando and Others v ersus City of
Cape Town and Another 37 held that a municipality’s TEA policy and its
implementation may be unconstitutional if it results in unreasonable or
arbitrary locality choices and fails to treat evictees with dignity and due regard
to spatial justice. The Court directed the City of Cape Town to provide
temporary/transitional accommodation in appropriately located sites as close
as reasonably possible to the residents’ existing homes rather than relocating
them to distant peripheral sites, and emphasised meaningful engagement.
This decision strengthens the principle that the location and reasonableness
of TEA arrangements are integral elements of the municipality’s constitutional
duty.
[36] The City’s TEA report clearly indicates that the first respondents household
faces imminent destitution. The City’s report leaves no doubt that eviction
would place the first respondent’s family “on the street.” Applying the
principles of the Olivia Road and Blue Moonlight cases supra, eviction without
securing temporary accommodation would be unjust and unconstitutional. The
fourth respondent’s case differs. The City confirms that while financially
constrained, the fourth respondent has the means to secure private rental
housing. As in the Changing Tides case supra, eviction can be ordered in
respect of the fourth respondent where he will not be rendered homeless. The
37 Charnell Commando and Others v City of Cape Town and Another (CCT 49/23) [2024] ZACC 27;
2025 (3) BCLR
243 (CC); 2025 (3) SA 1 (CC) (20 December 2024)
23
proportionality balance here favours the applicants. The sixth respondent’s
household is acutely vulnerable, with two grandchildren at risk. The City
categorises the family as a “high risk of homelessness.” In my view e viction
without provision for temporary accommodation would be inconsistent with
Port Elizabeth Municipality and Blue Moonlight matters supra.
COSTS:
[37] The applicants seek the costs of the eviction application, however given the
destitute position of the first and sixth respondents and the financial constraint
of the fourth respondent, I am not inclined to grant any costs order against the
first, fourth and sixth respondents who opposed the application.
ORDER:
[38] In the result the following order is made:
[38.1] The first, fourth and sixth respondents, and all those occupying the
property situated at units 6[...], 6[…] and unit 6[…] Manhattan Place of
Erf 1[…] Berea Township, Registration Division IR Gauteng situated at
Corner J […] Road and L[ …] Avenue, Berea, Johannesburg through
and under them, are declared unlawful occupiers of the property.
[38.2] The fourth respondent and all those occupying the property through or
under the fourth respondent are order to vacate unit 6[ …] Manhattan
Place of Erf 1 […] Berea Township, Registration Division IR Gauteng
24
situated at Corner J[…] Road and L[…] Avenue, Berea, Johannesburg,
respectively on or before 31 October 2025.
[38.2] The first and sixth respondents and all those occupying the property
through or under the first and sixth respondents are order to vacate
units 6[...] and 6[ …] Manhattan Place of Erf 1[ …] Berea Township,
Registration Division IR Gauteng situated at Corner J […] Road and
L[…] Avenue, Berea, Johannesburg, respectively on or before 31
December 2025.
[38.3] The eighth respondent, the City of Johannesburg Metropolitan
Municipality, is directed to engage meaningfully with the first and
second respondents within 3 0 days of service of this order; and make
reasonable provision for temporary emergency accommodation for the
first and sixth respondents in a location as near as possible to the area
where the property is situated on or before 31 December 2025,
provided that the first and sixth respondents and all those residing
through and under the first and six th respondents are still resident at
the property and have not voluntarily vacated it.
[38.4] Each party shall bear its own costs.
________________________
M NAIR
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
25
Date of appearance: 22 May 2025
Date Judgment delivered: 17 September 2025
Appearances:
No appearances by Second, Third, Fourth, Fifth and Seventh Respondents
For the Applicant: Adv Leon Peters
Instructed by: Vermaak Marshall Wellbeloved Inc
Email address: Michael@vmw-inc.co.za
Tel: 011-477 3690
For the First and Sixth Respondents: Adv Mahlanga
Instructed by: Precious Muleya Attorneys
Email address: advmahlanga@gmail.com
jhb@preciousmuleya.co.za
Tel: 010 – 534 5821