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
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Not Reportable/Reportable
Case no: A50/2025
In the matter between:

NOOR-BANU ALLIE Appellant

and

WALEED RAS First Respondent
CITY OF CAPE TOWN Second Respondent


Neutral citation: Allie v Ras and Another (Case no A50/2025) [2025] ZAWCHC
Coram: Saldanha J et Mapoma AJ
Heard: 1 August 2025, Finalised 12 August 2025
Delivered: 14 November 2025

ORDER


1. The eviction application is dismissed with costs.
2. The costs are to include the costs of this appeal which are inclusive of the costs
of counsel on scale C, where so employed.


JUDGMENT


SALDANHA, J:
District Six
“Your Aunt Sammy will not go. I don’t know what it is all about but I am not going
to shift an inch.
I belong to District Six and District Six belongs to me.
I was born here, I am perfectly happy here and I have no intention of shifting to
Constantia or Sea Point or any of the lovely places where they live.
Why do they want to come here? Are they unhappy there?...”

‘Too worried to laugh. I won’t get out of District Six.’ By Aunt Sammy (Golden Post,
20 February 1966 – By renowned columnist the late Jackie Heyns)1.


1 DISTRICT SIX REVISITED, Photographs by George Hallet, Clarence Coulson, Jackie Heyns, Wilfred
Paulse, Gavin Jantjes, Edited BY George Hallet and Pete McKenzie, Wits University Press, 1 Jan Smuts
Avenue, Johannesburg, South Africa, http://witspress.wits.ac.za, Text 2007: Individual writers,
Photographs 2007; Individual photographers

[1] This is an extract from a column that appeared in the Golden City Post, written by
the late renowned journalist, Jackie Heyns, writing here under the pseudonym “Aunt
Sammy” 2. Although written in 1968, the defiant words of the proverbial Aunt Sammy,
today find a no less poignant resonance in the appellant in this matter, Ms . Noor-Banu
Allie. Having withstood the dispossession and displacement of over 60 000 black people
from District Six through the Group Areas Act 7 of 1957, Ms. Allie has, despite the
demolition of the home in which she lived, by the bulldozers of apartheid 's henchmen,
through sheer perseverance, remained in District Six. Sadly, where the apartheid
government failed in their attempts to displace Ms. Allie, the first respondent Mr. Waleed
Ras, representing a development company Westminster Properties Developm ents 1
(Pty) (Ltd), succeeded, in a judgment by magistrate, Mr. De Pontes in the Cape Town
Magistrates Court, that ordered her eviction from 7[...] F[...] Street, District Six. The irony
is not lost that the entrance to the well -established District Six Museu m in Buitenkant
Street, Cape Town where the agony and pain of thousands of residents that were
displaced and forcefully removed from District Six are vividly recorded lies directly
across the very Magistrates Court that has relegated the 78 -year-old Ms. Al lie to
homelessness. History in the context of District Six shamefully repeats itself. It is
against that order of eviction that Ms. Allie appeals against. Despite the zealous
prosecution of the eviction proceedings in the court a quo, the appeal was inexp licably,
not opposed by the first respondent, the managing agent of the development company.
In my view, not surprisingly, given the legally untenable nature of the application for the
eviction.

[2] Much has over many decades, been written about the forcef ul dispossession of
black people in South Africa, whether through the Group Areas Act, the Land Act of

black people in South Africa, whether through the Group Areas Act, the Land Act of
1913 or the wholesale expropriation by the apartheid state and its colonial predecessors
of land that belonged to indigenous and black people of Southern Africa for the benefit
of their settler constituency. As counsel of the appellant, Mr. A. Nacerodien so aptly

2 Post, 8 May 1966. Jackie Heyns also penned the weekly newspaper column ‘With Tears in my Eyes’ for
many years in the weekly newspaper the Cape Herald where he so descriptively wrote about the lives of
people and events on the Cape Flats.

remarked, District Six has a painful past and for Ms. Allie, it now continues to have a
painful present. District Six was emblematic of apartheid 's program of forced removals.
Regrettably, like so many other failed restitution and redistribution efforts the democratic
government, has dismally failed to properly and fully implement the Restitution of Land
Rights Act 22 of 1994, which it so enthusias tically enacted to remedy and address the
forced removals and displacement of millions of black people under apartheid South
Africa.

[3] The 11th February 1966 was the fateful day that District Six was declared ‘an
area of occupation and ownership by members of the white group’ in terms of the Group
Areas Act. It covered an area in excess of 150 hectares right in the heart of Cape Town.
The forced removals and dispossession of land in District Six brought about the
destruction of communities and the relocation of its residents to the outskirts of the city.
Inevitable was the immense social, economic, and human devastation that persists
decades later . Mr. Nacerodien, pointed out that the devastating effects and
consequences the forced removals in District Six and other areas all over South Africa
was aptly captured by Madlanga, J in Land Access Movement of South Africa and
others v Chairperson NCOP a nd others 2016 (5) SA 635 (CC) where at para 1 he
stated:
‘the ejection from homes; the forcible loss of properties; severing from kin, friends and
neighbours; the wrenching of those affected from their beloved connection to place and
community; immeasurable emotional and psychological trauma; and the searing bitterness of it
all. Concomitant to this was an untold assault on the dignity of those at the receiving end of this
distressing treatment.’

Much has also been written and recorded as part of the ora l history of the people who
were displaced from District Six. The District Six Museum stands as a testament to that

were displaced from District Six. The District Six Museum stands as a testament to that
and so too in thousands of reams of documents and stories in both oral and written
history and literature. Many residents of District Six at the time, those who have since
passed on and those alive, have recorded the painful memories of their dispossession,
and of the brutal destruction of their homes and lives in District Six. They remembered

District Six, its people, their neighbours, the co mmunity, its varied cultures, its traditions
and buildings which, despite immense overcrowding and social ills, was their home. So
too, was and is District Six home to Ms. Allie. Her life story is yet to be recorded and
shared as that of many others throu ghout the country as theirs are stories of sheer
resilience and survival.
[4] In the answering affidavit to that of the first respondents who sought the eviction
of Ms. Allie in terms of Sections 4(1) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (the PIE Act)3, she declared that she was a
78-year-old pensioner who resided at 7 [...] F[...] Street, District Six 4. She proudly
claimed that she had been living in District Six for most of her life. She was born in
Mahad, India in 1947 and had come to South Africa as a toddler with her siblings. She
and her siblings lived with an aunt and her family at 1[...] Sir Lowry Road, District Six. As
a teenager she worked in her aunt’s shop in Sir Lowry Road and also in her cousin’s
butchery at 2[...] Hanover Street, District Six. At the time she lived between Sir Lowry
Road and Hanover Street as both of the shops had rooms at the back to sleep in. From
the 1960’s onwards she was employed at Groote Schuur Hospital as a nursing aid and
continued so until her retirement. While working at the hospital she stayed with her
siblings at 26 Dorset Street in District Six. At that stage she continued to help in the
family shops and would move between Sir Lowry Road, Hanover Street and Dorset
Street. Sh e painfully recalled the declaration of District Six as a white group area in
1968 and the beginning of the forced removal of over 60 000 people from the area by
1982. She recorded that by the late 1960’s to the early 1970's the forced removals in
District Six had intensified, with bulldozers demolishing homes and buildings, thus
preventing any return.


3 Eviction of unlawful occupiers: -

preventing any return.


3 Eviction of unlawful occupiers: -
(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions
of this section apply to proceedings by an owner or person in charge of land for the eviction of an
unlawful occupier.
4 Ms. Allie proudly referred to the area by its name as District Six despite the repeated references to the
area as “Zonnebloem” by the first respondent in their affidavits. After the forceful removal of the residents
of District Six by the apartheid regime it r enamed it “Zonnebloem,” referencing the 18 th century colonial
farm in the area.

[5] Thousands of residents were displaced. Families were forcibly relocated to
racially segregated areas on the outskirts of Cape Town into what has often been
described as the dry, dusty Cape Flats outside the city, a displacement that brought with
it social upheaval characterized by the desperation, crime and violence, so typical of the
apartheid social and physical infrastructure meant for black people .

[6] Ms. Allie explained that in the 1970’s her cousin’s butcher in Hanover Street,
which had become her home, was demolished to which she was never able to return.
She continued to live in Dorset Street until 2006. By 1982, the apartheid government
had officially and forcibly shut down District Six becoming a vacant barrier with
demolished buildings, empty streets; a bleeding scab of the apartheid state. Amidst the
devastation wreaked on the community of District Six, the iconic mosque and church
remained, yet played little or no conscience to the evil mind of the apartheid regime.

[7] With the dawn of democracy, the Constitution entrenched a restitution and
redistributive process to address the historical injuries suffered by not only the residents
of District Six bu t all black people throughout South Africa that suffered land
dispossession. To that end the Restitution of the Land Rights Act was enacted in 1994.
It provided for individuals and communities dispossessed of their properties after 19
June 1913 as a resul t of racially discriminatory laws and practices , to claim restitution.
The closing date for submissions was 31 December 1998. In terms of the Act, restitution
could be in the form of a return by the claimant to the actual land they previously
possessed or alternative land or the provision of financial compensation.

[8] Ms. Allie claimed that she had lodged a claim for the property at 2[...] Hanover
Street as the site of her cousin’s butchery and her home for many years. Her cousin had

Street as the site of her cousin’s butchery and her home for many years. Her cousin had
decided not to lodge a clai m and had given her permission and the authority to do so
herself. She claimed though that her original claim was lost by the Land Claims
Commission as a result of her having relied on a third party to lodge the claim. She did
not retain a copy of it. She pointed to a published report by the South African Human

Rights Commission in December 2013, which as a result of public hearings reported on
the common problem of the forms of claimants being lost.
‘If forms have been lost, the CRLR does a condonation exe rcise, and goes back to recollect the
documents. The loss of documents and files submitted to the Commission has exacerbated the
challenges of resolving complex claims and opened the door to actual or perceived
manipulation by officials. It also appears that not all claims received have been gazette and this
will create significant confusion about which claims were lodged at which time – especially if the
process of lodging claims is to be reopened.’

[9] Ms. Allie claimed that as a result of the lost claim she had no choice but to wait
for a period of almost 16 years whereupon the process was to reopen. In terms of the
Land Restitution of Land Rights Amendment Act 15 of 2014, she was able to resubmit a
claim. She used that second chance and reapplied on 5 August 2015 and confirmation
of her claim was acknowledged by the Western Cape Land Commission.

[10] Unfortunately, for Ms. Allie and other claimants who submitted in terms of the
Amendment, the Constitutional Court in the matter of Land Access Movement of South
Africa & Others v Chairperson, National Council of Provinces and Others found the
statute to be constitutionally invalid for lack of a reasonable public involvement process.
As a result, the claims sub mitted prior to the judgment were left intact but the
Commission was interdicted from processing any of these claims until the initial claims
were finalized. Ms. Allie lamented that as a result of the decision of the Constitutional
Court ‘her claim may nev er be processed within her lifetime.’ On the other hand,
thousands of claimants who had already submitted their claims in accordance with the
Act and understandably so, were relieved by the decision of the Constitutional Court.

[11] The celebrated author Lebog ang Seale, who so eloquently writes of his family's

[11] The celebrated author Lebog ang Seale, who so eloquently writes of his family's
desperate quest to reclaim their dispossessed land in the book entitled “ One Hundred
Years of Dispossession – My Family’s Quest to Reclaim our Land” 5, forcefully tells of
the inordinate and painful delay in the restitution claim to their family’s ancestral land in

5 Jacana Media (Pty) Ltd in 2024 at 150.

that picturesque part of the country of Ga-Modjadji near the foothills of the Letaba Valley
on the foothills of the mighty Magoebaskloof Mountain in the Limpopo Province. Their
family`s land claim had been delayed, literally for decades and he remarks
‘Unsurprisingly, and much to our relief, the Constitutional Court invalidated the
Amendment in 2016. It went on to issue an order that all old o rder claims needed to be
finalized before new claims could be entertained’. He added that by July 2014, there
were more than 160 000 claims that would have been added to the number of
outstanding restitution cases, further pushing back the land reform proc ess.
Nonetheless, the interdict sadly frustrated Ms. Allie, as it marked the second time in the
post-apartheid era that the land claim restitution process had failed her. She added that
the fact that she was also the subject of the eviction proceedings, and that she could not
afford alternative accommodation and was faced once again with displacement was a
further insult to the many injuries she already suffered. Despite these setbacks, Ms. Allie
pointed out that she had not simply rested on her laurels in the face of her failed
attempts at restitution and in desperation, also applied to the City of Cape Town (the
third respondent, referred to interchangeably) for public housing. She first applied in
January 1983. Ten years later she checked on the applicati on and found that she was
not placed on the waiting list. On 15 August 2003 she again applied and had now been
on the waiting list for more than 20 years. The third respondent confirmed in writing her
application for public housing.

[12] Ms. Allie also set ou t with some detail , her history of living at the property which
is the subject of the eviction application. She had been living at 7 [...] F[...] Street, a
semi-detached house, since April 2006. On 1 March 2006 she had entered into a lease
agreement with the t hen owner of the property, Mr. Fakir Ebrahim Rooknodien. She

agreement with the t hen owner of the property, Mr. Fakir Ebrahim Rooknodien. She
attached a copy of the lease agreement. She also recorded that at the time the owner’s
Managing Agent was Steer & Company and she paid a monthly rental of R750.00 and
her deposit was no more than R750.00. She recalled that she paid her monthly rental to
a shopkeeper across from where she stayed, a Mr. Afzal Jaffer. She continued to renew
her lease annually with Steer & Company and attached to her affidavit proof of the
successive amendments and renewals. If anything, it demonstrated the sheer

meticulousness of her paperwork in respect of her occupation of the subject property
and her consistent payment of the rental. On 23 October 2008 she entered into a lease
agreement with the new managing agen ts of the property, Jaybee Estates and
continued to lease through them until the end of 2017. Once again, she attached
numerous copies of the renewal of the lease and the rental increases over the years.

[13] On 18 January 2018 the property was taken over by Waleed Ras Property
Management CC. She attached a letter of introduction that she received from them
dated 18 December 2017.

[14] Ms. Allie claimed that while the property was managed by Waleed Ras Property
Management that was when she first began to experien ce problems relating to an
exorbitant rental increase and their failure to do maintenance on the property. On 2
August 2018, she lodged a complaint for the exorbitant rental increase with the Rental
Housing Tribunal. The complaint was resolved by 28 Septem ber 2018 following an
investigation. The Rental Housing Tribunal informed her that the owner had agreed to
keep the rental at the then current amount of R1 750 until the lease expired and was up
for renewal.

[15] However, in 2023 she again lodged a complaint with the Rental Housing Tribunal,
this time for the failure by the property owner to do maintenance and in particular the
failure to fix her water meter.

[16] She pointed out that, in response, on 17 March 2023, she received a notice from
Waleed Ras Property Management that her lease would terminate on 31 May 2023. In
the notice, the following was stated:
‘The reason for the termination of the tenancy is that the landlord wishes to renovate the
property.’

[17] On 27 July 2023 the property was sold to the present owner, Westminster
Property Development Pty Ltd. Waleed Ras of Potere Investment Properties continued

to manage it. It appeared that the present owner had purchased the property from the
Rooknodien Esta te. On 17 October 2023, Ms. Allie once again received a notice to
vacate by no later than 31 December 2023. In the notice, the following is stated: ‘the
tenancy of the dwelling at 7 [...] F[...] Street Zonnebloem has been terminated and you
still occupy the pr emises…’. She was also threatened with formal eviction proceedings
and an adverse cost order in the event of her failure to vacate the property.


THE APPLICATION FOR THE EVICTION OF MS ALLIE IN TERMS OF PIE.
[18] In its notice in terms of Section 4(1) of PIE, the respondent stated that the ground
upon which it sought the eviction of Ms. Allie was:
‘2.1 The First and Second Respondents have been in unlawful occupation of the premises
situated at Erf 8[...] Cape Town, commonly known as No. 7 [...] F[...] Street, Zonnebloem, Cape
Town, since 1 June 2023 without any written lease agreement, verbal agreement or any lawful
title, and despite demand, have refused and/or failed and/or neglected to vacate the said
premises.’

[19] In the founding affidavit deposed to by Mr. Waleed Ras on behalf of the owner of
the property he claimed that Ms. Allie had been in occupation of the premises prior to
his appointment as managing agent and had been occupying the premises in terms of
an inf ormal lease agreement on a month to month basis subject to a one month
cancellation as prescribed by law. He claimed that in terms of the informal lease
agreement her rental was R1 750 per month. He claimed to have had full knowledge of
the history of the tenancy of the property by Ms. Allie since 2017. Mr. Ras claimed that
since 2019, he had tried to negotiate with Ms. Allie to vacate the premises as ‘same is
unsafe and the then owners wished to renovate the property.’ He claimed that Ms. Allie
refused to vacate the premises and continued to occupy it which led to ‘the inability of

refused to vacate the premises and continued to occupy it which led to ‘the inability of
the then owners to carry out extensive renovations they intended to do’. In this regard,
Mr. Ras referred to the letter of 17 March 2023 (above) delivered to Ms. Allie in which he
stated that she had been ‘once again requested to vacate the premises by no later than
31 May 2023.’ He claimed that she had failed to vacate the premises despite the notice

period afforded to them (in reference to the second respondent who was cited a s ‘the
other unlawful occupants’). He thereafter referred to the letter of October 2023 in which
he claimed that ‘despite the further notice the respondents occupied the premises
without the registered owners consent and without any right in law to occupy such
premises.’ He contended that Ms. Allie and the second respondents were in unlawful
occupation of the property.

[20] He claimed that the prejudice suffered by the owners of the property was by the
fact that they were ‘not able to renovate the property in order to ensure their investment
is protected and able to yield a proper income’. He added that as a result of the refusal
by Ms. Allie and the second respondents to vacate the premises, the ‘condition of the
property is such that their occupation poses a liability risk to the owner which risk is
growing’. He claimed that the only available remedy to the respondents was for an
application for the eviction of Ms. Allie and any other occupants of the property. He
acknowledged that she was an elderly person an d claimed that the Department of
Social Development and/or the City of Cape Town ‘may very well be able to
accommodate her’ alternatively that she could seek accommodation with her relatives in
the nearby areas. They attached to the application a questionn aire that is required by
the third respondent to assist it in providing a housing report at the hearing of the
application. In respect of the relief sought they claimed that they were entitled to an
order of eviction in as much as Ms. Allie and all other persons living in the property were
in unlawful occupation thereof since 1 June 2023. He further claimed that the property
was situated in a place called ‘Zonnebloem’ where he verily believed that there were
numerous properties capable of being rented by Ms . Allie in the area or nearby areas
and/or that she had family in the nearby area who could accommodate her. He claimed

and/or that she had family in the nearby area who could accommodate her. He claimed
that neither Ms. Allie nor any of the persons holding occupation under her had
protection in terms of the provisions of the PIE Act. He submitted that it was just and
equitable for the court to grant an order of eviction of Ms. Allie and any of the persons
holding under her. He also sought a punitive cost order against Ms. Allie and others on
an attorney and client scale.

THE DEFENCES RAISED BY MS. ALLIE AGAINST HER EVICTION.
[21] Ms. Allie raised that in terms of the notice to vacate (the letter dated 17 March
2023 referred to by Mr. Ras) the owner of the property sought her eviction from the
property to effect renovations. She denied that sh e was an unlawful occupier of the
property in as much as the first respondent had failed to furnish a valid reason for
terminating her lease and had moreover failed to prove that the property was in an
uninhabitable condition as it is required to show. She attached several photographs of
both the inside and outside of the property depicting its condition, which she claimed
and was visibly demonstrative that the property was not in an uninhabitable condition.
She claimed that it was in bad faith for the resp ondents to claim that the property was
unsafe where she had to continuously resort to having to approach the Rental Housing
Tribunal for orders compelling the first respondent to effect maintenance. She claimed
that the failure to effect maintenance and co ntinue to lease out the property was in
breach of the landowner`s obligations and the purported attempt to require her to
permanently vacate the property for mere and unsubstantiated repairs constituted an
unfair practice in terms of Regulations to the Ren tal Housing Act 6. She claimed that
inasmuch as it was an unfair practice the first respondent was not entitled to terminate

6 Reconstruction, refurbishment, conversion or demolition
5. (1) A landlord may only –
(a) request a tenant to vacate the dwellin g if any repairs, conversions or refurbishments are
urgently necessary and cannot be properly made while the tenant remains in occupation or
(b) cancel the lease and repossess the dwelling, without being liable for damages in terms of
the lease, the Act, these regulations or any other law, in circumstances where the dwelling
is in a derelict condition or cannot safely be inhabited and must as a result thereof be
rebuilt, reconstructed or demolished.

rebuilt, reconstructed or demolished.
(2) In the circumstances contemplated by subregulation (1)(a) the landlord must –
(a) allow the tenant remission of rental for the period during which the tenant is not in
occupation;
(b) effect the repairs, conversion or refurbishment within a reasonable time so as to cause the
tenant as little inconvenience as possible; and
(c) ensure as the tenant is able to return to the dwelling as soon as possible after the
completion of the repairs, conversion or refurbishment.
(3) Where the repairs, conversion or refurbishment are necessary only to a part of th e dwelling and
the tenant continues to occupy the remaining part, the tenant must receive a remission in rental,
the amount of which must be proportionate to the extent of the tenant’s deprivation.
(4) When requested by the landlord to vacate the dwelling for the purposes of urgent and necessary
repairs, conversions or refurbishments, the tenant may not cancel the lease unless –
(a) the temporary unfitness of the dwelling would be ruinous to the tenant; or
(b) the repairs, conversions or refurbishment could reasonably have been foreseen by the
landlord at the time when the lease was entered into.

the lease on such grounds. She further claimed that to the extent that the first
respondent was genuine in its intention to effect renovations and required that she
vacate the property to do so, it should have allowed for a remission of the rental for a
period during which renovations were in progress, effect the repairs, and attend to the
refurbishments within a reasonable time so as to cause as little inconvenience to her as
possible and to ensure that she was able to return to the property as soon as the
renovations were complete. She pointed out that the respondents were not entitled to
resort to eviction proceedings as a means to remove her from the premises where less
disruptive avenues were available and could have achieved the same goal.


THE JUST AND EQUITABLE RELIEF.
[22] Ms. Allie pointed out that on 25 April 2024 she completed and submitted the
emergency housing questionnaire t o the third respondent. She annexed a copy thereof
to her answering affidavit.

[23] In summary, she pointed out that her personal circumstances were;
i. That she was a 78-year-old pensioner;
ii. She was the recipient of benefits from the Government Employees Pension Fund
and the SASSA Older Persons Grant. She receives a total of R6 721 per month.
She disclosed her monthly expenditure of approximately R4 900 related to the
following, her rental of R2 200, transport costs of approximately R100 per month
which included bus fares and a monthly cost of water, electricity and her telephone
accounts. Provision for food was no more than R2 000 per month.

[24] Ms. Allie also disclosed that she used chronic medication for high blood pressure
and had a gastroesophageal reflux disease.

[25] Ms. Allie expressed that her desire to remain in District Six, or the surrounding
areas were as a result of her having lived in the area for most of her life. She had a
strong attachment to the community and the place where she lived. She claimed that

moving out of the area would uproot her sense of belonging and the deep ties that she
has to District Six. As an older person, moving out of the only area that she knew at this
stage of her life would cause significant hardship to her. She pointed out tha t at her age
it would be difficult to establish entirely new social networks of support and navigating
an entirely new area. If she had to move out of the area it would cause emotional stress
and isolation. She also pointed out that she only spent around R 100 per month on
transport as living in District Six allowed her to get to places and that by moving out of
the area she would incur significant costs which she could not afford. Her health care
provider was the District Six CDC where she receives care for her chronic conditions
and that she would have to find a new health care provider or travel to District Six to
receive care. She also pointed out that as an older person the Department of Social
Development may offer alternative accommodation but there ha d been no indication at
that stage as to what was on offer.

THE STATES OBLIGATION TO PROVIDE LAND RESTITUTION.
[26] Ms. Allie contended that the South African government ’s land restitution
obligations were firmly rooted in the country's constitutional framework, and in particular
within the property clause. She pointed out that the framework sought to strike a
delicate balance between protecting existing property rights and ensuring the
constitutional guarantees of those displaced by the apartheid regime and dispossessed
of their land and homes. The property clause in particular Sections 25(1) -(4)7 of the

7 8 Property. (1) No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application-
(a) For a public purpose or in the public interest; and
(b) Subject to compensation, the amount of which and the time and manner of payment

(b) Subject to compensation, the amount of which and the time and manner of payment
of which have either been agreed to by those affected or decided or approved by a
court.
(3) The amount of the compensation and the time and manner of paym ent must be just and
equitable, reflecting an equitable balance between the public interest and the interests of
those affected, having regard to all relevant circumstances, including-
(a) the current use of the property;
(b) the history of the acquisition and the use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) the purpose of the expropriation.

Constitution delineated the dual objectives of safeguarding property rights while
facilitating land reform initiatives. Under Section 2 5(5)-(9)8 the state was mandated to
undertake reasonable legislative and other measures. In this regard it applied to
communities whose land tenure was legally insecure due to the past discriminatory law
to secure tenure or comparable redress. The propert y clause, she contended, was
guided by the overarching objectives of addressing apartheid -era injustices, fostering
national reconciliation, a land redistribution program and to provide the poor with land
for both residential and productive purposes to en hance their livelihood. She pointed
out that the program encompassed both urban as well as rural settings and emphasized
the importance of secure access to well -located land for shelter provision in urban
areas. The concept of equitable access to land impl ied a concerted effort to reduce
inequality along racial, gender and other pertinent dimensions. While this matter is not
about the restitution of the land in District Six, the failed restitution process in the case
of Ms. Allie provides the important and essential context to the consideration of one of
the many relevant factors in the determination of just and equitable relief under the PIE
Act.

THE PROVISION OF EMERGENCY ACCOMMODATION

(4) For the purposes of this section-
(a) the public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.

8 (5)The state must take reasonable legislative and other measures, within its available resources,
to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either

to tenure which is legal secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 19 13 as a result of past racially
discriminatory laws or practices is entitled to the extent provided by an Act of Parliament, either to
restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to
achieve land, water and related reform, in order to redress the results of past racial discrimination,
provided that any departure from the provisions of this section is in accordance with the
provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).

[27] Ms. Allie pointed out the constitutional obligations by the third respondent to
provide emergency housing to address the needs of households who find themselves
homeless. She pointed out that all the emergency camps established by the City were
all located at least 25km away from the center of the City. She was also informed that
the third respondent offers building materials (the so -called housing kit) to persons in
need to establish their own structure on private land should they obtain the permission
from the owner on affidavit. She pointed out that by offering emergency accommodation
on the outskirts of the City to evictees, the third respondent was no more than
perpetuating a distressing cycle of racial discrimination which echoed the historical
injustice of the apartheid -era forced removals where marginalized communities were
systematically pushed to the periphery. She submitted that the recurrence of such
practices in contemporary emergency housing highlights a concerning pattern of spatial
discrimination, which disregards the 3 rd respondent’s commitment to redress past
wrongs. That situation she claimed raised questions about the City’s dedication to
inclusive urban development and the protection of vulnerable communities’
constitutional rights. She re served her right to respond to any offer of alternative
accommodation offered by the third respondent.

MS. ALLIE’S REQUEST FOR EXPROPRIATION.
[28] Ms. Allie contended that redistribution is a multifaceted endeavour, expropriation
being a vehicle of viable mean s of land acquisition. She pointed out that the
constitutional mandate for land reform coupled with the imperative of addressing socio -
economic disparities, underscored the government’s obligation by facilitating equitable
access to the land redistribution program. That embodied, the pivotal aspect of South
Africa's broader commitment to transformative change and social justice. Ms. Allie

Africa's broader commitment to transformative change and social justice. Ms. Allie
lamented that the prospect of having to relive displacement by eviction from District Six
would be a grave injustice, es pecially considering that she was an elderly woman with
not many years to live. She decried the post -apartheid restitution process that failed to
secure any form of redress for her and her family’s forceful removal from her home at
2[...] Hanover Street, in District Six.

[29] It was for that reason that on 22 April 2024 her attorneys wrote to the Minister of
Agriculture, Land Reform and Rural Development to request that she expropriate the
property at 7 [...] F[...] Street District Six and transfer it to her name so t hat she may
have some dignity before it is too late. In response, the Minister stated that as a result of
the decision in the matter of Land Access Movement of South Africa and Others by the
Constitutional Court, the state was unable to deal with her claim by way of expropriation
without first resolving what was referred to as the old order claims. So too, as with the
failed restitution process in the circumstances of Ms. Allie, the unsuccessful request for
expropriation is equally a relevant factor in the consideration of just and equitable relief.




THE CLAIM TO RENOVATE THE PROPERTY BY FIRST RESPONDENT.
[30] In response to the claims made by the first respondent with regard to the renovation
of the property as the basis for her eviction, Ms. Allie emp hatically denied that the
property was unsafe to live in. She stated though that there may be a need for some
maintenance, especially the water meter, it was certainly livable and had been her
home for in excess of twenty years. She stated that she was am enable to move to the
property next door to her ’s which remained vacant for some time as a temporary
measure to afford the first respondent the opportunity to embark on any renovations to
the property. That suggestion she stated has continuously been reje cted out of hand by
the first respondent. She also claimed that she had been willing to relocate temporarily
to allow for renovations and to return when those have been done but the first
respondent also refused that suggestion by her. She claimed that suc h refusal reflected
the mala fides on the part of the first respondent which was indicative of their true
intention not to renovate the property but rather to permanently remove her. She

intention not to renovate the property but rather to permanently remove her. She
therefore claimed that her eviction was a wholly and unnecessary action considering the
alternatives suggested by her and available to the first respondent.

THE REPORT BY THE THIRD RESPONDENT.

[30] The third respondent through an employee, Ms. Riana Pretorius, deposed to an
affidavit in which she sought, amongst other things, to advise the court as to whether
the third respondent had any emergency accommodation available to Ms. Allie in the
event that she is rendered homeless if evicted from the premises.

[31] She stated that in order for the third respondent to make the determin ation as to
whether a person qualified for emergency accommodation the third respondent requires
to be informed of the personal circumstances of the individual. To this end the occupier
had to complete the questionnaire in which the personal circumstances are provided.
She confirmed that Ms. Allie had in fact delivered such a report to the third respondent
and attached a copy of it to her affidavit. She claimed Ms. Allie, was an elderly South
African female, who resided at the premises with two dependents. This, of course, was
contrary to the very report filled in by Ms. Allie in which she disclosed that she was
single and had no dependents living with her at the premises. Ms. Pretorius further
stated that Ms. Allie had disclosed that she was a pensioner but claimed that Ms. Allie
had not disclosed her monthly income. That, despite Ms. Allie disclosing in the
questionnaire that she received R4 521 through a Government Employees Pension
(GEPF) and that she also received the amount of R2 200 from SASSA (togethe r with
documentary proof as annexures). Once again, the assertion that Ms. Allie had not
disclosed her monthly income was simply not correct.

[32] Ms. Pretorius then explained that the third respondent was currently faced with
what she referred to as tremendous challenges with respect to a shortage of land to
create or establish more emergency accommodation sites. She claimed that the City
had lost critical portions of land that were earmarked for the provision of formal housing
as well as informal developments during the Covid period when the City experienced

as well as informal developments during the Covid period when the City experienced
unabated invasion of City land. She claimed that the City was engaging with organs of
state at a provincial level to negotiate land acquisition for the establishment of
temporary relocation areas. The City was therefore seeking a period of 18 months to
realize the establishment of new temporary relocation areas. Ms. Pretorius claimed that
upon analysis of the personal circumstances of Ms. Allie, the third respondent had come

to the determination that she ‘will not be assisted with an emergency housing kit’
however the third respondent recommended that Ms. Allie be referred to the state’s
social housing program. She directed that Ms. Allie apply for accommodation through
the program. She explained that the social housing program was aimed at developing
affordable rental in areas where bulk infrastructure (sanitation, water and transport) may
be underutilized, therefore improving urban efficiency. She claimed it was a high-density
subsidized housing that was implemented, managed and owned by independent
accredited social housing institutions. In certain designated restructured zones it was for
rental purposes. The income levels were between R1 501 and R15 000 (depending on
the particular development required) in order to qualify an applicant must not have
previously benefited from a government housing subsidy or assistance. Ms. Pretorius
listed eight i nstitutions that provide social housing to which Ms. Allie was required to
apply to for an assessment as to whether she qualified for a unit in their complexes.
[33] In a supplementary affidavit deposed to by Ms. Allie in response to the report of
the third respondent, she set out in great detail the attempts she made in responding to
each of the social housing institutional options provided by the third respondent.

MADULAMMOHO
[34] Ms. Allie stated that this was the only institution provided for in the report in which
she appeared to qualify for. She explained that in Cape Town there were three
Madulammoho options namely, Belhar Gardens, Maitland Mews and Scottsdene. She
attached copies of the websites of each of the sites, which indicated that there was no
available housing options at any of the sites. Despite the unavailability of units, she
applied to be placed on the Madulammoho’s notify me list to be updated on when there
are available housing options. She annexed to her affidavit screenshots of her
selections and notification request.

COMMUNICARE

selections and notification request.

COMMUNICARE
[35] Ms. Allie attached to her affidavit, the qualification criteria sourced from the
website of Communicare. She underlined in red the age limits for the Communicare
applications and pointed out that she fell outside t he age range to apply for such

housing given that she was 76 years old and the cutoff age was 65. She claimed, that
despite not meeting the qualification criteria for Communicare she made every effort to
enquire with Communicare whether she may be accommod ated. On 27 May 2024 her
attorneys addressed correspondence to Communicare and had not received any
response. Her attorneys had once again enquired via its “contact us “function on its
website. She received no updates to her enquiry.

DCI CHS
[36] Ms. Allie po inted out the qualification criteria from the website of the institution.
Once again, she highlighted in red the age limit for the DCI CHS application. Ms. Allie
fell out of the range. Once again, despite not meeting the criteria she submitted an
application for housing to the institution. On 10 June 2024 her application was declined
due to her age, and she attached a copy of the rejection to her affidavit.
URBAN STATUS (DEVMARK)
[37] Ms. Allie attached a copy of the qualifying criteria from the website of the
institution. The website indicated that Urban Status had exceeded its capacity for
SASSA pensioners and would not be accepting anymore applications from SASSA
pensioners. Clearly, as a SASSA pensioner, Ms. Allie did not qualify for accommodation
with Urban Status (Devmark). Despite not meeting the qualification criteria, she made
an effort to enquire with Urban Status (Devmark) if she may be accommodated. On 3
June 2024 her attorneys likewise addressed correspondence enquiring whether she
could be accommodated. She had not received any response.

OWN HAVEN (CONRADIE PARK)
[38] The Own Haven Housing Association is a housing development in Cape Town
known as Conradie Park. From the web search for Conradie Park it appeared that the
development would not be accepting any new applications from SASSA pensioners for
its present phase. Needless to say, as a SASSA pensioner Ms. Allie did not qualify for
accommodation. Despite not meeting the qualification criteria she made every effort to

accommodation. Despite not meeting the qualification criteria she made every effort to
enquire from Conradie Park if she may be accommodated. On 3 June 2024 her attorney
likewise addressed a letter to Own Haven enquiring as to whether she could be

accommodated. On 4 June 2024 her attorneys received a response from Own Haven
Housing Association that they would no longer be catering for pensioners.

INSTRATIN
[39] Ms. Allie attached a copy of the residential offerings from Instratin, which
indicated that there were none available in Cape Town. Again, despite there being none,
her attorneys attempted to find the contact deta ils for Instratin to enquire whether any
residential offerings might open up in Cape Town. No contact details for Instratin could
be found.

POVICOM
[40] Ms. Allie attached a copy of the qualification criteria sourced from the Povicom
website. It was evident t hat pensioners are not eligible to apply for Povicom housing
and therefore Ms. Allie did not qualify for their housing. Again, despite not meeting the
qualification criteria she made every effort to enquire with Povicom whether she could
be accommodated. H er attorneys enquired from Povicom via its contact function as to
whether there were options available for pensioners. They had not received any
response to their enquiry.


SOCIAL HOUSING COMPANY (SOHCO)
[41] Ms. Allie attached a copy of the qualification criteria sourced from the Sohco’s
website. It was evident therefrom that Sohco did not accept single applicants with no
dependents. Ms. Allie therefor did not qualify for Sohco housing. Again, despite not
meeting the criteria she attempted to apply for housing with Sohco.

[42] Ms. Allie contended that she had explored with the able assistance of her
attorneys each of the options provided in the City’s housing report. The third
respondents, however, did not appear to have properly taken account of her age, her
status as a pensioner, her location in Cape Town and her status as a single applicant
with no dependents. Ms. Allie stated that despite the unsuitability of the options provided

to her in the third respondents report she had in fact made every effort to pursue those
options in an attempt to seek alternative accommodation. Needless to say, it was quite
evident that the report of the City was most unhelpful and literally led Ms. Allie and her
legal representatives on a wild goose chase in desperate search of accommodation for
her.

THE PRIVATE RENTAL MARKET
[43] In a supplementary affidavit, Ms. Allie also set out her attempts together with her
legal representatives to seek out what options were available to her in the private
market in the light of the absence of alternative emergency accommodation offers from
the third respondent. She explained that as an elderly woman without access to a
computer her attorneys assisted her to look for private rental accommodation on
Property24. She pointed out that considering her expenses and the pension she
received, she would not be able to afford any rental in excess of R4 000 per month. She
was paying rental of R2200 towards rent each month and if she was not paying that
rental, she would only have R4000 left of her pension less her expenses. She provided
details of all the search results of rental properties in her price range for the following
areas; District Six, Cape Town City Centre, Vredehoek, Woodstock, Salt River, Gardens,
the Bo-Kaap. She attached a list of the results and pointed out that there was only one
property in her price range, however it required an upfront deposit of R10 455.00 which
she was unable to afford.

[44] Ms. Allie also provided the search results in respe ct of properties in Observatory,
Rondebosch, Park Estate, Rosebank, Mowbray, Rondebosch, Pinelands, Claremont,
Newlands, Claremont Upper, Kenilworth Upper. In those areas, there were only two
properties in her price range, however, one was exclusively for student accommodation,
and the other was exclusively for people between the ages of 50 and 65.

[45] She also attached the search results in respect of properties. In Rondebosch

[45] She also attached the search results in respect of properties. In Rondebosch
East, Crawford, Athlone, Belgravia. There were no properties in her price range.

[46] Ms. Allie explained that as a result of the lack of availability of properties that fell
within her affordability her attorneys looked at the rental housing market on a macro
level to understand whether she would be able to find housing in the private ren tal
sector in light of current market trends. She pointed out, in general, the rental housing
market in the Western Cape was inaccessible to her due to her financial position. In the
fourth quarter of 2023, the average rent in the Western Cape was R10 118, an increase
of R382 from the previous year. She attached a rental index for the fourth quarter for
2023 of Payprop which was illustrative of the average rental price.

[47] She pointed out that at a more local level, she was excluded from the private
rental market in areas across Cape Town. To assess whether entering the private rental
market would be affordable for her, her attorneys obtained TPN Investor Reports 9 for
four groups of areas around Cape Town to examine a sample of rental price trends
across the City.

Salt River, Cape Town CBD, Observatory, Woodstock, District Six.
[48] Ms. Allie attached to her papers the TPN Investor Report which was indicative of
the following:
(i) In the areas listed sectional title rentals had seen a steady increase. The rental
price range in the first quarter of 2024 for sectional title properties was between
R7 000 and R17 000 with an average price of R11 000.
(ii) In the areas listed freehold rental property prices had also increased. The rental
price ranged in the first quarter of 2024 for freehold properties was between R5
000 and R11 000 with an average rental price of around R11 000.
(iii) In the areas listed, the re ntal prices for properties with less than two bedrooms
had increased dramatically since 2022. In 2022, the average rental for a
property with less than two bedrooms was R8 514. In 2023 this grew by R884.
In 2024 there was an increase to R9 496. In 2024 the market low for rental

In 2024 there was an increase to R9 496. In 2024 the market low for rental

9 TPN from MRI Software, Investor Report, claims to be the most comprehensive rental analysis report
available for the South African market. Copyright, 2024 TPN Credit Bureau – Rivonia, Gauteng-/Report
generated 2024-06-03.

property with less than two bedrooms was R6 500 while the market high was
R13 500.

[49] Ms. Allie pointed out that it was clear from the TPN Investor Report for the areas
listed that her affordability precluded her from entering the rental market in those areas.

Claremont, Kenilworth, Mowbray, Newlands, Rondebosch, Rosebank and
Wynberg.
[50] Ms. Allie’s attorneys obtained a TPN Investor Report for the above areas in which
the following were indicated;
(i) In these areas, the sectional title pri ces have also seen a steady increase. The
rental price ranged in the first quarter of 2024 for sectional title properties to
between R6 200 and R17 000 with an average rental price of R11 000.
(ii) In these areas, the freehold rental property prices remained s teady. The rental
price ranged in the first quarter of 2024 for freehold properties as between R6 000
and R21 000 with an average rental price of around R11 000.
(iii) In these areas rental prices for properties with less than two bedrooms had
increased since 2022. In 2022 the average rental for a property with less than two
bedrooms was R8 210. In 2023, that grew to R8 785. In 2024, there was an
increase to R8 997. In 2024, the market low for rental property with less than two
bedrooms was R5 300 while the market high was R13 230.

[51] Ms. Allie pointed out that her affordability precluded her from entering the rental
market in those areas.

Athlone, Crawford, Lansdowne, Romp Vallei and Rondebosch East.
[52] Ms. Allie pointed out that her attorneys obtained a TNP Investo r Report for the
above areas in which the following were indicated:
(i) In these areas, the average sectional title rental prices had also seen an
increase. The rental price ranged in the first quarter of 2024 for sectional title

properties was between R7 000 and R11 000, with an average rental price of
around R8 800.
(ii) In these areas, the average freehold rental property prices had increased. The
rental price range in the first quarter of 2024 for freehold properties was between
R7 000 and R16 000 with an average rental price of around R11 000.
(iii) In these areas, the rental prices for properties with less than two bedrooms had
increased dramatically since 2022. In 2022, the average rental for a property with
less than two bedrooms was R6 949. In 2023, this grew to R7 429. In 2024, there
was an increase to R8 489. In 2024, the market low for rental property with less
than two bedrooms was R6 950. While the market high was R12 500.

[53] Ms. Allie pointed out that it was clear that her affordability precluded her f rom
entering the rental property market in those areas.


Parklands, Goodwood Estate, Bothasig, Brooklyn and Montague Gardens.
[54] Finally, Ms. Allie pointed out that her attorneys had obtained the TNP Investor
Report for the above areas in which the following were indicated:
(i) In these areas, the average sectional title rental prices likewise had increased.
The rental price range for the first quarter of 2024 for sectional title properties
was between R5 900 and R12 000 with an average rental of around R9 000.
(ii) In these areas, the average freehold rental property prices had remained
steady. The rental price range in the first quarter of 2024 for freehold properties
was between R6 000 and R18 000 with an average rental price of R11 000.
(iii) In these ar eas, the rental prices for properties with less than two bedrooms
increased since 2022. In 2022, the average rental for a property with less than
two bedrooms was R6 901. In 2023, this grew to R7 016. In 2024, there was an
increase to R7 104. In 2025, the market low for rental property with less than
two bedrooms was R4 980 while the market high was R10 300.

[55] Ms. Allie once again, pointed out that her limited affordability precluded her from
entering the rental property market in those areas. She further p ointed out that having
analysed the rental price trends across the different areas in Cape Town, the rental
housing market was clearly inaccessible to her as a pensioner. Even with the market
lows for properties with less than two bedrooms remained beyond her reach across
Cape Town. She claimed that she was therefore unable to protect herself from
displacement and homelessness by turning to the private rental market.

[56] Ms. Allie further pointed out that the third respondent was aware of her particular
circumstances as disclosed by her in the questionnaire. Despite having provided such
information the third respondent in providing options that by and large excluded
pensioners from the applications, had simply failed to give proper consideration to her
actual position as an elderly pensioner. Ms. Allie claimed that the City failed to have
demonstrated any care and concern for her situation and consequently had failed to
discharge its duty in relation to a housing report that appropriately responded to the
exigencies of the situation before it.
[57] She further stated that she had made every attempt to exhaust the options
available by the third respondent in its report, however those options were simply not
suitable for her and did not take into account her particula r circumstances. She added
that in all of her attempts to exhaust the social housing options provided by the City, she
was not able to find a social housing program due to her not meeting the qualification
criteria and because of the unavailability of housing units.

[58] In respect of the rental housing market, she contended that as was evidenced
from the research conducted by her legal representatives it was clearly unaffordable for
her.

THE REPORT BY THE DEPARTMENT OF SOCIAL DEVELOPMENT, WESTERN
CAPE GOVERNMENT.

her.

THE REPORT BY THE DEPARTMENT OF SOCIAL DEVELOPMENT, WESTERN
CAPE GOVERNMENT.
[59] Two social workers, Ms. Cyrilene Setoile and her supervisor. Ms. Nomfundo
Ntoyanto, employed by the Department of Social Development, to their credit, provided

a detailed report to the court a quo in terms of the Older Persons Act 13 of 2006 in
assessing the needs of Ms. Allie for alternative accommodation and the interventions
executed by the Department. They pointed out that Ms. Allie fell within the definition of
an older person in terms of the Act as she was above the age of 60 years and a female .
The objective of the Act is to maintain and promote the status, well -being, safety and
security of older persons as well as to maintain and protect the rights of older persons.
Ms. Setoile had conducted a detailed conversation with Ms. Allie at their off ices, where
she was accompanied by her legal representatives. Ms. Allie was informed of the option
that was available to her if she chose to consider alternative accommodation such as a
frail care facility. The process of exploring family preservation as a starting point before
considering alternative means of accommodation was also explained to her..

[60] Ms. Setoile pointed out that her engagement with Ms. Allie was fairly easy,
communication was clear, she understood the process and had a clear exchange of
thought throughout the engagement. She claimed that Ms. Allie was transparent about
her situation and willing t o provide all the needed information with authentication in
relation to what she identified as important. Ms. Allie provided a background to her
coming to Cape Town, at a very young age and that she had lived at the subject
premises in excess of 15 years. She had a sister, who is based in Johannesburg, who
also identified as a senior citizen.

[61] Ms. Allie disclosed her income from both the GEPF and SASSA. She also
disclosed her medical condition of hypertension and that she was compliant with her
medication. She disclosed in detail her financial status and her monthly expenses. Ms.
Setoile had pointed out that the Department had a strong focus on elderly people being
placed in family preservation services but that her sister was based in Johannesburg

placed in family preservation services but that her sister was based in Johannesburg
and it w as therefore not an option. Ms. Setoile pointed out that Ms. Allie had made it
clear that she did not want to apply to be accommodated at a frail care facility as she
was not frail. She had also disclosed to them her attempts at restitution in terms of the
legal processes and the impasse that she was presently at. She also disclosed the
applications for state assisted housing with the third respondent and that she was

presently on their waiting list. In their concluding remarks the social workers recorded
that Ms. Allie had declined the frail care facility. She, however, remained motivated
about reappropriating her current residence and to remain living there. They also
pointed out that Ms. Allie had been proactive about her living situation in seeking
permanent alternative accommodation.

THE FIRST RESPONDENT`S REPLYING AFFIDAVIT
[62] Mr. Ras, on behalf of the developers and owners of the property deposed to the
replying affidavit. He took issue with Ms. Allie’s complaint about rental increases and
claimed that her current rental of R2 022 was less than what it ought to have been with
an annual increase. He also took issue with Ms. Allie’s complaint about the failure on
the part of the first respondent to have maintained the property. He claimed that it was
misleading inasmuch as the water meter had in fact been repaired. He claimed that
inasmuch as the lease agreements which were attached to Ms. Allie’s answering
affidavit had placed an obligation of exterior maintenance on the landowner, the interior
maintenance was that of the tenant, Ms. Allie. He claimed that the photographs attached
to the answering affidavit indicated that the interior had not been maintained despite her
complaint of the first respondent having not done its part. As already indicated, the
images of the interior of the premises appeared, albeit modest, depicted as well -kept
and a clean premises. Mr. Ras’s complaint was in my view hopelessly without merit and
appeared to be no more than opportunistic.

[63] Mr. Ras confirmed that the first respo ndent had sought to evict Ms. Allie to effect
renovations to the property. He, however, contended that inasmuch as Ms. Allie
occupied the property on a monthly basis after the expiry of the previous written lease
agreements Section 5(5) of the Rental Housing Act 50 of 1999 provided:
‘If on the expiration of the lease the tenant remains in the dwelling with the express or tacit

consent of the landlord, the parties are deemed, in the absence of a further written lease, to
have entered into a periodic lease, o n the same terms and conditions as the expired lease,
except that at least one month’s written notice must be given of the intention by either party to
terminate the lease.’

[64] He contended that Section 5(5) indicated that no reason was required for such
cancellation to be given or to be effective nor was there any onus on the first
respondent or him to prove that the property was uninhabitable or to give such notice. I
will revert to the merits of the first respondent`s claims in this regard save at this st age
already, to point out, as submitted by counsel on behalf of Ms. Allie that this was no
more than an opportunistic and disingenuous attempt at changing the basis for seeking
the eviction of Ms. Allie from that given as for renovations to now relying on the
provisions of Sections 5(5) of the Rental Housing Act.

[65] Mr. Ras further contended that the lease had been lawfully cancelled and that
Ms. Allie had consistently refused to vacate the property since June 2023.

[66] In respect of Ms. Allie’s claim to remain within District Six he claimed that there
was no basis for that to supersede the rights of the owner to elect to cancel her tenancy.
He claimed that there were many other areas with clinics in the immediate vicinity, that
would be able to provide for her medical needs. He also repeated the first respondent`s
refusal to allow Ms. Allie to relocate to the next -door premises while renovations were
undertaken and disputed that it was mala fide on their part. He claimed that the owner
was not obliged to accept such a proposal should it wish to renovate both units at the
same time. He reiterated the relief sought under Section 4(1) of PIE.

THE LEGISLATIVE SCHEME AND THE APPLICABLE LAW
[67] Counsel for Ms. Allie contended that the owner of the property had
disingenuously attempted to distort its failure to maintain the property as a ruse for the
cancellation of Ms. Allie’s lease. He contended that because Ms. Allie disputed the
cancellation the first respondent issued out the eviction proceedings against Ms. Allie.
He contended further that in granting the eviction order against Ms. Allie the court a quo

He contended further that in granting the eviction order against Ms. Allie the court a quo
erred on a number of respects. At its most basic level there was, (i) simply, no legal
basis to cancel the lease and (ii) even if there was any basis to cancel the lea se the

court a quo had failed to adequately consider Ms. Allie’s personal circumstances in
exercising its jurisdiction under the PIE Act to determine a just and equitable remedy.

[68] I am mindful that an appeal does not lie against the reasoning of a court a quo
save for the order made (see in this regard Cape Empowerment Trust Ltd v Fisher
Hoffman Sithole 2013 (5) SA 183 (SCA) para. 39). It would appear though that the
magistrate was wholly persuaded by what was clearly a ruse raised by the owner in
cancelling the lease. The magistrate had moreover failed to properly exercise the court’s
jurisdiction under the preemptory provisions of the PIE legislation and to apply the
legion of authority in properly engag ing all relevant circumstances , in particular the
personal circumstances by Ms. Allie and the overall context of her occupation in District
Six in determining whether it would be just and equitable to evict her from the premises.


THE UNLAWFUL CANCELLATION OF THE LEASE.
[69] Section 5 of the Unfair Practice Regulations Schedule enacted in terms of
Sections 15(1)(f)10 of the Rental Housing Act of 1999 provides as follows:
‘Reconstruction, refurbishment, conversion or demolition.
5 (1) A landlord may only –
(a) request a tenant to vacate the dwelling if any repairs, conversions or refurbishments are
urgently necessary and cannot be properly made while the tenant remains in occupation, or
(b) cancel the lease and repossess the dwelling, without being liable for damage s in terms of
the lease, the Act, these regulations or any other law, in circumstances where the dwelling
is in a derelict condition or cannot safely be inhabited and must as a result thereof be
rebuilt, reconstructed or demolished.
(2) In the circumstances contemplated by sub-regulation (1)(a), the landlord must –
(a) allow the tenant remission of rental for the period during which the tenant is not in
occupation;

occupation;

10 15. Regulations – (1) The Minister must, after consultation with the standing or portfolio on housing
and every MEC, by notice in the Gazette, make regulations relating to-
unfair practices, which, amongst other things may relate to- …

(b) effect the repairs, conversion or refurbishment within a reasona ble time as to cause the
tenant as little inconvenience as possible;
(c) ensure that the tenant is able to return to the dwelling as soon as possible after the
completion of the repairs, conversion or refurbishment.
(3) Where the repairs, conversion or ref urbishment are necessary only to a part of the dwelling
and the tenant continues to occupy the remaining part, the tenant must receive a remission in
rental, the amount of which must be proportionate to the extent of the tenant’s deprivation.
(4) When requ ested by the landlord to vacate the dwelling for the purposes of urgent and
necessary repairs, conversions or refurbishments, the tenant may not cancel the lease
unless –
(a) the temporary unfitness of the dwelling would be ruinous to the tenant: or
(b) the repairs, conversion or refurbishment could reasonably have been foreseen by
the landlord at the time when the lease was entered into.’

[70] The Constitutional Court in Maphango and Others v Aengus Lifestyle Properties
(Pty) Ltd 2012 (3) SA 531 (CC), stated per Cameron J as follows:
‘[47]…Whether it was an unfair practice, and what a just and fair ruling would be if it was an
unfair practice, lies within the Tribunal’s power to d ecide. If the determination is capable of
constituting an unfair practice, I must consider what order this Court should make.

[48] In my view, neither the landlord nor the tenant fully appreciated the force of the Act’s
provisions in litigating their dispute. But it would be wrong for this Court to take a narrow view of
the matter that ignores the importance and impact of the statute. That would imply that this
Court could allow litigants to ignore legislation that applies to an agreement between them.
Rule of law considerations militate against this.

[49] The Act abolished rent control legislation, but in its stead it enacted a more complex,

[49] The Act abolished rent control legislation, but in its stead it enacted a more complex,
nuanced and potentially powerful system for managing disputes between landlords and tenants.
That system expre ssly takes account of market forces as well as the need to protect both
tenants and landlords. Even -handedly, it imposes obligations on both. It is in particular
sensitive to the need to afford investors in rental housing a realistic return on their capi tal. The
statutory scheme is therefore acutely sensitive to the need to balance the social cost of
managing and expanding rental housing stock without imposing it solely on landlords. Far from

ignoring the interests of investors like Lowliebenhof’s landl ord, the Act seeks to create a
framework for resolving disputes with tenants that accommodates landlords’ requirements.

[50] At the same time, the Act does not ignore the need to protect tenants. Its most potent
provisions are those at the centre of the dispute in this case, namely termination of a lease and
rental determinations that are just and equitable. The Act expressly provides that a landlord’s
rights against the tenant include the right to “terminate the lease . . . on grounds that do not
constitute an unfair practice and are specified in the lease”. “And” is not disjunctive. It is
conjunctive. It means the Act recognises the landlord’s power to terminate a lease, provided the
ground of termination is specified in it, but, in addition, does not constitute an unfair practice.
Differently put, the Act demands that a ground of termination must always be specified in the
lease, but even where it is specified, the Act requires that the ground of termination must not
constitute an unfair practice.

[51] In this way, the Act superimposes its unfair practice regime on the contractual arrangement
the individual parties negotiate. That the statute considers its unfair practice regime to be
super-ordinate emerges not only from the requirement that a l ease-based termination must not
constitute an unfair practice, but also from what the Act enjoins the Tribunal to take into
consideration when issuing its rulings: these include “the provisions of any lease”, but only “to
the extent that it does not consti tute an unfair practice”. The effect of these provisions is that
contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with
them as unfair practices.

[52] It follows that where a tenant lodges a complaint about a termi nation based on a provision
in a lease, the Tribunal has the power to rule that the landlord’s action constitutes an unfair

practice, even though the termination may be permitted by the lease and the common law.
Whether a termination in these circumstance s could be characterised as “lawful” need not be
decided now. “Unfair practice” is an act or omission in contravention of the Act, or a practice the
MEC prescribes as “unreasonably prejudicing the rights or interests of a tenant or a landlord”.
This formulation is significant. It poses “interests” in contradistinction to “rights”. This embraces
more than legal rights. So used, “interests” includes all factors bearing upon the well -being of
tenants and landlords. It encompasses the benefits, advantages and security accruing to them.

[53] This greatly enlarges the compass of unfairness under the Act. It means that unfair
practices are not determined by taking into account only the common law legal rights of a tenant
or landlord, but by considering also their statutory interests. This makes it even clearer that the
statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on
them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights t o
scrutiny for unfairness in the light of both parties’ rights and interests.’

[71] Notwithstanding the provisions of the regulations the court a quo simply failed to
apply it to the facts of this matter. The court a quo held that –
‘19. The cancellation for renovations is not contrary to any term, express, implied or imputed
to the month-to-month lease between the parties.
20. The applicant’s cancellation is valid and the notice period given accords with section 5(5)
of the Rental Housing Act and the common law.’

[72] In this regard the court a quo simply relied on the provisions of Sections 5(5) of
the Rental Housing Act. Likewise, notwithstanding the provisions of Section 4(9)(c)
which provides:
‘The landlord’s rights against the tenant include his or her right to-
(a) ….
(b) ….
(c) terminate the lease in respect of rental housing property on grounds that do not
constitute an unfair practice and are specified in the lease.’

[73] It is apparent from the pleadings that the only reason provided for the termi nation
of the lease agreement in the notice of termination dated 17 March 2023 where the
owner stated, ‘to renovate the property’. In the termination notice no further explanation
was given as to the nature and the extent of the renovations and why vacant occupation
was necessary. That simply remained unexplained.

[74] In the notice under Section 4(1) of the PIE Act in paragraph 2(1) of the grounds to
be relied upon for the eviction in the founding affidavit, the first respondent relied upon

the absence of a written or oral agreement or any lawful title as the basis for the eviction
(see paragraph 15 above with reference to the Section 4(1) notice).

[75] However, in the founding affidavit the first respondent provided the reason for
which it sought the eviction and which was also unexplained where Mr. Ras alleged that
(i) Ms. Allie was required to vacate the premises because it is unsafe and that the
owners wished to renovate the property’. The first respondent further alleged ‘extensive
renovation’ were required to be done and not merely ‘renovations’ as it previously
claimed. Counsel for Ms. Allie correctly pointed out that the nature and extent of the
renovations was simply not explained and why vacant occupation was necessary. Ms.
Allie in her answering affidav it firmly rejected these allegations in respect of the
renovations and moreover refuted it.

[76] Strangely, in reply and clearly in the light of Ms. Allie’s answering affidavit the first
respondent shifted ground. Mr. Ras then rather opportunistically , sought to rely on
Sections 5(5) of the Rental Housing Act 50 of 1999 and claimed that there was no
reason required for the termination of a month -to-month lease. The first respondent
moreover denied there was any onus ‘on the landlord or myself to prove the property to
be inhabitable to give such notice.’ This somersault by the first respondent in my view
beggared belief.
[77] Counsel for Ms. Allie correctly pointed out that the court a quo erred in simply
accepting this contention by the first respondent whic h it raised for the first time in its
replying affidavit. In doing so, it allowed the respondent to impermissibly raise for the
first time in reply a new ground for the termination of the lease. Moreover, the basis for
the termination was simply at odds wi th the true state of affairs. As the notice of
termination had made clear the reason given for the termination was solely because of

termination had made clear the reason given for the termination was solely because of
‘renovations’. There was clearly no reliance on a month -to-month lease agreement.
Therefore, counsel for Ms. Allie correctl y pointed out that the argument that no reason
was necessary for the termination was simply not available to the first respondent. The
first respondent had specifically elected to give a reason in the notice, relied on that
reason in its founding affidavit and was therefore obliged to substantiate and to defend

that position. Ms. Allie joined issue with the first respondent on such basis for the
termination as pleaded and the principles as set out in the oft cited decision of Plascon-
Evans11 operated in her favour. Her version had to be accepted in the absence of the
first respondent’s blatant failure to have provided any substantive reason as the basis of
termination simply on the grounds of renovation contrary to the provisions of the unfair
practice regulation regime. Needless to say, the court a quo simply failed to deal with
the proper application of the Plascon-Evans principles. Inasmuch as the purported
termination fell outside the provisions of the unfair practice regulations 5 (set out above)
the owner did not have a legal basis to cancel pursuant to Section 4(5)(c) of the Rental
Housing Act which provides:
‘General provisions…
The landlord’s rights against the tenant include his or her right to-
(c) terminate the lease in respect of rental housing property on grounds that do not
constitute an unfair practice and are specified in the lease…’.

[78] The first respondent had failed to establish the lawful basis for the termination of
the lease between itsel f and Ms. Allie. It failed to meet the first jurisdictional fact for the
application of the provisions under the PIE legislation to lawfully evict Ms. Allie.

[79] However, in the event that I am wrong with regard to the above, it is therefore
incumbent on thi s court to consider whether the court a quo erred in exercising its
jurisdiction under the just and equitable considerations for the eviction of Ms. Allie.

WAS THE EVICTION ORDER JUST AND EQUITABLE?
[80] The magistrate made the following order:
‘1. The first respondent and any occupiers holding title under her, are to vacate the property
known as 7 [...] S[...] F[...] Street, Zonnebloem, Cape Town (the property) on or before 17
January 2025.

11 Plascon-Evans Paints (TVL) Ltd v Van Riebeeck Paints Ltd (53/84) [1984] ZASCA 51; [1984] 2 All SA

366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984).

2. The sheriff of the court is authorized to eject the appellant a nd all those holding title
under him in terms of a warrant of ejectment with effect from 20 January 2025.
3. The third respondent shall-
3.1 Make available to the first respondent a list of residential facilities providing for
pensioners immediately.
3.2 Provide her with an emergency housing kit and/or emergency shelter should her eviction
result in homelessness.
4. First respondent must accept the Department of Social Development’s offer to assist her
with placement in a residential care facility within one month of the granting of this order;
5. Cost of this application is to be borne by the first respondent on a party and party scale.’

[81] It appears that at the hearing of the application a representative of the City
addressed the court but such representati ve did not testify under oath. It also appeared
that he submitted and contrary to the written report by the City that a housing kit could
be made available to Ms. Allie should she be able to find vacant land and with the
owner’s permission to construct a d welling for herself. Despite the magistrate himself
expressing the unsuitability of the housing kit relief for Ms. Allie he nonetheless and
inexplicably included such relief in his order. The official from the City who addressed
the court a quo also undertook to provide Ms. Allie with a list of old age homes available
for pensioners which she could consider. That list should have been timeously provided
to Ms. Allie in the report of the City so that she could have had the opportunity to
properly consider it and to have included her responses in the supplementary affidavit.
Further, the court a quo in paragraph 4 of the order, ordered that Ms. Allie ‘must accept’
the offer for assistance, probably by a placement in a frail care facility and despite her
not being frail, within one month of the order (my emphasis). That provision of the order

not being frail, within one month of the order (my emphasis). That provision of the order
was clearly in conflict with paragraphs 1 and 3 of the court a quo`s own order. Needless
to state, parts of the order on its own were ill conceived and contradictory.

[82] Ms. Allie’s background and personal circumstances have been set out
extensively in this judgment. It needs no repetition at this stage. The efforts to which she
and legal representatives went, to assess the private rental market has likewise been
set out in some detail and so too the investigation of the availability of accommodation

in any of the social housing units. Likewise, her engagement with the social workers of
the Department of Social Development with regard to the availability of accommodation
for her as an older person and the position with regard to a frail care facility was
thoroughly explored with her.

[83] A part of the record of the proceedings in the court a quo was also placed before
this court. The extensive debate between the magistrate and the legal representative for
Ms. Allie, Mr. Jonty Cogger acting on behalf of Ndifuna Ukwazi Law Centre was
particularly telling when dealing with the question as to whether it was just and equitable
for Ms. Allie to be evicted. The magistrate appeared to h ave some difficulty in accepting
the market research done by Ms. Allie’s legal team. In the exchange with Mr. Cogger,
the record reflects a rather telling remark by the magistrate;
‘Court : No, Mr Cogger why would the respondent(a reference to Ms. Allie) at the end of the day
present this Court with anything that gave her alternative accommodation because there is a lot
of what is not .Why would I think for one minute that if she found something that she would
disclose it to the Court? It is a fair question.’

[84] The basis for the magistrate`s skepticism of Ms. Allie’s disclosures to the court of
her personal circumstances and her inability to be able to access the private rental
market was simply not explained by the magistrate in his judgment nor was there any
basis for rejecting the evidence that she placed before the court in respect of the market
research conducted by her legal team. The risk of homelessness by Ms. Allie if evicted,
was in my view, not properly appreciated by the court a quo.

[85] Moreover, despite the magistrate stating that Ms. Alllie had placed ‘much
probative material before the court’ in her supplementary affidavit in response to the
housing report by the City which included her personal history and circumstances and

housing report by the City which included her personal history and circumstances and
the efforts she had made to apply to the social housing schemes as recommended in
the housing report and the market research material to show that there was no
affordable rental accommodation, the magistrate remarked in the judgment that he
could not ‘infer from the probative material’ that Ms. Allie would be rendered homeless.

Importantly, none of the material put up by Ms. Allie and the market research reports
was in any manner or form challenged by the owner or Mr. Ras who would have had
some experience with th e housing market in Cape Town given his agency. The
magistrate on the other hand, simply dismissed the market research reports as not
having been presented as expert opinion and therefore did not have much weight as he
stated the ‘biases inevitably therein were unknowable.’ What the magistrate failed to
appreciate was that the reports were open public documents, in the public domain and
sought no more than to reflect the analysis of the market trends in specific areas in the
greater Cape Town area. If it co ntained any bias, Mr Ras and his legal representatives
would have pointed it out. In simply dismissing the reports it was clear that the
magistrate failed to properly engage with its weight in determining the just and equitable
relief, he was in law required to do.

[86] The third respondent set out as it invariably does in eviction proceedings in the
City of Cape Town that it was constrained by budget and resources to provide
emergency accommodation to countless people facing homelessness in the City.
Counsel for Ms. Allie pointed to the reasonableness of the third respondent’s measure
of providing emergency housing kits was the subject of litigation in a different matter
before the courts. In this matter however, for the City to expect of Ms. Allie to find
vacant land somewhere in Cape Town and with the consent of the owner to erect a
shack on it, was demonstrative of how unreasonable such a measure was in the
context of a 78-year-old single woman. Moreover, in its report it simply referred Ms. Allie
to explo re the availability of accommodation from a number of social housing entities
that it listed. As was evident, most of the entities were unsuitable for Ms. Allie. The
deponent to the third respondent’s report had failed to properly consider the availability

deponent to the third respondent’s report had failed to properly consider the availability
of accommodation in the social housing programme.

[87] Ms. Allie and her legal representatives had made extensive enquiries at all of the
surrounding areas including District Six, as to the availability of rental accommodation
within her means. The court on a ppeal can literally take judicial notice that the housing
rental market in all of the surrounding areas of Cape Town is priced beyond that of the

affordability and reach of somebody in the position of Ms. Allie. The court a quo failed to
appreciate such a notorious fact (even with the helpful research provided), which was
no more than indicative of the inexplicable cynicism that the magistrate had with regard
to Ms. Allie’s genuine endeavours at seeking alternative accommodation.

[88] The court a quo also failed to fully appreciate the circumstances of Ms. Allie as a
longstanding resident of District Six and her desperate attempts through the restitution
process of seeking to remain within the are a that she regarded as home in the last
years of her life. The magistrate sought to rely extensively on the decision of Grobler v
Phillips and Others 2023 (1) SA 321 (CC) where the constitutional court held:
‘…Furthermore, the Supreme Court of Appeal place d too much emphasis on Mrs Phillips’
peculiar circumstances. A just and equitable order should not be translated to mean that only
the rights of the unlawful occupier are given consideration and that those of the property owner
should be ignored. And it does not mean that the wishes or personal preferences of an unlawful
occupier are of any relevance in this enquiry.’

[89] Ms. Allie was not simply seeking to exercise a personal preference or a wish to
choose where she may live. The history and desperation of a ll people who were
unlawfully and maliciously dispossessed of their homes under apartheid from District
Six speaks for itself. To ignore her voice in the context of the circumstances of this
particular matter was nothing more than to disregard the longstan ding fight for justice in
its true sense for the people of District Six. Moreover, it is what so many thousands, if
not millions of South Africans suffered at the hands of those who exercised the “Power
of Land” as counsel for Ms. Allie appropriately quot ed from the extract by Michael
Albertus – Land Power, Who Has It, Who Doesn’t, & How That Determines the Fate of
Societies12.

Societies12.

12 ‘Land is power. Our identity, our family pasts, our wealth and well-being, and our relationships are all
rooted in the soil beneath our feet. For millennia, the earliest humans respected and lived on the land but
did not have to think much about who owned it. The human population was small, territories were vast,
and frontiers were plenty. No more. As the population grew over the course of the past several thousand
years of human history, land became a valuable resource. … Who owns the land came to define who
holds the power.’
Published in G. Britain by Basic Book U.K.

[90] The court a quo should amongst others have had regard to the enlightened
remarks and reference made by Kollapen, J in – District Six Committee and Others v
Minister of Rural Development and Land Reform and Others 2019 (5) SA 164 (LCC):
‘[2] District Six was a thriving community where people lived, dreamed, and made a life for
themselves, even in the face of what appeared to be insur mountable obstacles. In an affidavit
filed in these proceedings, Prof Shamiel Jeppie, associate professor in the Department of
Historical Studies, describes it as follows:
“District Six at the turn of the century may have been poor, but it was undoubtedly a
vibrant place. It was, arguably, one of the most cosmopolitan areas in the Cape, if not
the whole of sub -Saharan Africa. Yet there were no examples of wide -scale racial or
ethnic antagonisms. Bickford -Smith states that even if it cannot be said that wor king-
class or community solidarity was ever achieved, the General Strike Workers Union
(GWU) and the District Six Rate Payers Association (which eventually elected a Jew,
Morris Alexander, and a Muslim, Abdulla Abdurahman, to the Town Council) are just two
examples of non -racial organization that united residents across the potential divide of
colours.”
[3] Sadly, such a vibrant and cosmopolitan community was torn apart in more ways than
one by the inhumane policy of forced removals implemented with such gr eat efficiency and
insensitivity by the apartheid state.
[4] Professor Jeppie describes this process and its aftermath in the following terms:
“District Six afforded its occupants a deep sense of place and belonging. As the pace of
removals was accelerated , it was accomplished by [an] outburst of embittered literary
and vocal response. Although the edifices of District Six have literally been crushed, an
inimitable image and identity remain intact – in the words of an ex-resident, you can take
the people out of District Six, ou pellie, but you’ll never take District Six out of the heart

the people out of District Six, ou pellie, but you’ll never take District Six out of the heart
of the people (Cape Town, March 8, 1966).
Whereas some of the economic and social costs of the razing of District Six may be
ascertained, its toll upon individual lives and emotions is immeasurable. The
inconvenience caused by the physical wrenching of people from long -time homes pales
in the face of more prolonged and damaging psychological distress. Oral evidence,
literary accounts and decades of newspaper reporting unite in their testimony to the fear,
humiliation, bitterness and anger that accompanied the displacement. Not least among

the consequences was fragmentation of the identity and heritage of a community, which
had profound implications for its social, political and cultural expression.”
[5] Our courts have also recognized the devastating effects of forced removals and in Land
Access Movement of South Africa v Chairperson National Council of Provinces and Others 2016
(5) SA 635 (CC) (2016 (10) BCLR 1277; [2016] ZACC 22) where the Constitutional Court
described its distressing” effects by Madlanga, J quoted in paragraph 3 above of this judgment.

[91] In my view the earlier dispossession of Ms. Allie of her cousin`s premises in
Hanover Street in District Six by the racist apartheid regime and her vain attempts at
restitution, which she so realistically stated, “in my lifetime”, were in my view relevan t
circumstances which at the very least the court a quo should have considered as a
relevant factor, amongst others, in the circumstances of Ms. Allie.

[92] Moreover, despite Ms. Allie having extensively set out her financial
circumstances with regard to her income and expenses, the magistrate simply
dismissed it in stating ‘from the information supplied it is not possible to infer
impecuniosity of the first respondents (sic)’. Ms. Allie in full disclosure of her financial
circumstances sought to demonstrate as best as she could that she would not be able
to afford rental accommodation in excess of R4 000 per month in any area within the
vicinity of the City of Cape Town. Regrettably, the magistrate failed to appreciate that.
Our courts have repeatedly stated that it is incumbent when exercising its jurisdiction
under the just and equitable considerations to properly consider all relevant
circumstances in its determination as to whether an eviction should be ordered. It does
not help to do so with a measure of unfounded cynism and a lack of appreciation of the
circumstances of dispossessed people in District Six who still find themselves thirty

circumstances of dispossessed people in District Six who still find themselves thirty
years into a constitutional democracy desperately awaiting a restitution process.
Moreover, nothing prevented and preve nts the first respondent and the owner from
properly complying with the law in renovating the premises with due regard to the
protections afforded to Ms. Allie under the Rental Housing Act and its Regulations.
District Six is moreover not only about the pe ople who lived in it but also its buildings
that gave it a particular character and importantly the very few houses that remained, all

of which are part of its rich history. Every house was a home to many and successive
families over decades13.

[93] In conclusion, I have no hesitation in setting aside the order of the court a quo
and as already stated, it was unsurprising that the owner did not oppose the appeal
despite it having sought an incredulous punitive order of costs against Ms. Allie in the
court a quo. Astutely, the magistrate did not fall for it. Mr. Nacerodien disclosed that he
had acted pro bono for Ms. Allie in the appeal. The court is indebted to him and the legal
team of Ndifuna Ukwazi Law Centre for doing so. They are clearly entitled to the cost
orders. The court note d that Ms. Allie attended the appeal hearing. She sat attentively
and with quiet dignity throughout the proceedings.


[94] In the result, the judgment and order of the court a quo is set aside and replaced
with:
1. The eviction application is dismissed with costs.
2. The costs are to include the costs of this appeal which are inclusive of the
costs of counsel on scale C, where so employed.


_____________________
SALDANHA, J
Judge of the High Court, Cape Town

I agree.
_____________________
MAPOMA, AJ
Acting Judge of the High Court, Cape Town

13 The semi-detached structure at No. 7 [...] F[...] Street, now owned by the development company, is in
my respectful view, probably worthy of preservation as it forms part of the rich heritage of a dispossessed
community and the legacy of the Rooknodien family.

APPEARANCES
Counsel for the Appellant: Adv Adiel Nacerodien
nacerodien@capebar.co.za

Instructed by: Ndifuna Ukwazi Law Centre
Dr Jonty Cogger, Attorney

Counsel for the Respondent: No appearance