SAFLII Note: Certain personal/privat e 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
Case Number: 14498/23
In the matter between:
BERNIDINE NICOLINE SEPTEMBER Applicant
(In her capacity as Executrix of the estate of the late
Marthinus Nicolaas Cloete, Estate Number 0[...])
and
ALLETA CLOETE First Respondent
MARIAANE CLOETE Second Respondent
MARIUS CLOETE Third Respondent
ALL OTHER OCCUPANTS HOLDING TITLE Fourth Respondent
THROUGH/UNDER THE FIRST, SECOND AND THIRD
RESPONDENTS AT 1[...] P[...] STREET, ROBINVALE
ATLANTIS, CAPE TOWN
THE CITY OF CAPE TOWN MUNICIPALITY Fifth Respondent
Coram: MAGARDIE AJ
Heard: 24 May 2024
Further reports: 26 September 2025
JUDGMENT
Magardie AJ;
Introduction
1. The late Mr. Floors Cloete and his wife, the late Mrs. Maria Cloete
(“Mr. and Mrs. Clo ete”), were in their lifetime , the recipients of a
residential dwelling allocated to them by the former Cape Divisional
Council.
2. On 16 May 1986 , Mr. and Mrs. Cloete, then residing at Grootboom
Plaas, Durbanville, concluded a deed of sa le with the Cape Divisional
Council. The property sold in terms of the sale agreement was a
residential dwelling situated at 1[...] P[...] Circle, Atlantis, Cape Town.
The sale agreement provided that the property was to be occupied by
Mr. Floors Cloete, Mrs. Maria Cloete and their children. The property
formed part of the new Atlantis Housing Scheme, a housing scheme
established by the Cape Divisional Council in terms of the Housing Act
32 of 1966. The selling price of the property was R23 272.
3. Little could Mr . and Mrs. Cloete have imagined, when they signed the
deed of sale for their new home, that t he same home would years later
be the subject of litigation pitting family member against family
member in a bitter dispute over the family home . So, unfortunately, it
has come to pass.
4. In the present application, the applicant, a granddaughter of the late Mr.
and Mrs. Cloete, seeks the eviction of her paternal aunts and uncles,
and all persons occupying through them, from the property at 1 [...]
P[...] Circle, Atlantis. The eviction application is brought by the
applicant in terms of the provisions of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”).
The parties
5. The applicant for the eviction order is Ms. Bernidine Nicol ine
September. She is the daughter of the late Mr. Marthinus Nicolaas
Cloete, the eldest son of Mr. and Mrs . Cloete. Mr. Marthinus Cloete
passed away at the age of 58 on 1 December 2014.
6. The applicant sues in her capacity as executrix of the deceased estate of
her late father Mr. Marthinus Cloete.
7. The first respondent is Ms. Aletta Cloete. She is the eldest daughter of
Mr. and Mrs. Cloete and the sister of the late Mr. Marthinus Cloete.
8. The second respondent is Ms. Marianne Cloete. She is the daughter of
Mr. and Mrs. Cloete and younger sister of the late Mr. Marthinus
Cloete.
9. The third respondent is Mr. Marius Cloete, son of Mr. and Mrs. Cloete
and brother of the late Mr. Marthinus Cloete.
10. The fourth respondents are cited as all other occupants holding title on
the property through or under the first to third respondents. The
occupants of the property include other adult siblings of the late Mr.
Marthinus Cloete, as well as their children.
11. According to personal circumstances questionnaires completed by the
first to fourth respondents, the property is occupied by nine adults
(seven women and two men) and three minor children aged 11 and 10
years old. Six of these individuals are the adult children of the late Mr.
Floors Cloete and Mrs. Maria Cloete. The ages of the adult respondents
range from 19 to 64 years of age, with the el dest respondent, aged 64,
being the first respondent. Four of the respondents are recorded in the
questionnaires as suffering from chronic medical conditions. All the
respondents who completed the questionnaires indicated that they had
been living on the property for periods ranging from 27 to 37 years and
stated that they would be rendered homeless if evicted from the
property.
12. The fifth respondent is the City of Cape Town, a metropolitan
municipality in the local sphere of government (“the City”). The
applicant states in her founding affidavit that she does not seek
substantive relief against the City, which has been cited inter alia in
terms of section 4(2) of the PIE Act.
Factual and litigation background
13. The historical background relating to the allocation and sale of the
property to Mr. and Mrs. Cloete were explained in a report by the
City’s Mr. Thandikhaya Tsa gane dated 27 September 2025. Mr.
Tsagane is a Senior Professional Officer employed by the City.
14. According to Mr. Tsagane’s affidavit, the property was sold to Mr. and
Mrs. Cloete by way of a deed of sale concluded with the former Cape
Divisional Council on 16 May 1986. Clause 9 of the sale agreement
provided that transfer of title would be given by the Council's
conveyancers as soon as the purchaser had paid a sum sufficient to
reduce the capital balance of the purchase price by not less than 10% of
the amount thereof . The purchase price of the property was in effect a
loan by the Cape Divisional Council to Mr. and Mrs. C loete. The deed
of sale provided for a purchase price of R23 572, to be payable by a
deposit of R300 and the balance of R23 272, plus interest thereon at the
rate of 9% per annum, would be payable in monthly instalments over a
period of 360 months.
15. It appears from the papers that Mrs. Maria Cloete died on 25 May 1996
followed by her husband , Mr. Floors Cloete on 31 May 2005 . On 15
February 2007, almost two years after the death of Mr. Floors Cloete,
the Master of the High Court issued Mr. Marthinus C loete with Letters
of Authority in terms of Section 18(3) of the Administration of Estates
Act 66 of 1965. The Letters of Authority recorded that Mr. Marthinus
Cloete was authorized to take control of the assets in the estate of the
late Mr. Floors Cloete, to pay the debts and to transfer the residue of the
estate to the heirs entitled thereto by law.
16. The Letters of Authority issued to Mr. Marthinus Cloete recorded that
the assets in the deceased estate of Mr. Floors Cloete were the property
at erf 4[...] Atlantis. The total value of this asset was recorded in the
Letters of Authority as being the amount of R83 000. This is a matter of
some importance, which will be returned to later.
17. On 25 May 2007, the City substituted Mr. Marthinus Cloete as the
purchaser of the property in terms of a substitution agreement. The City
thereafter instructed attorneys Lindsay and Water s, to transfer the
property in the name of Mr. Marthinus Cloete , in accordance with the
substitution agreement. The substitution agreem ent provided that the
first purchaser of the property, Mr. Floors Cloete, had passed away and
that his son, Mr. Marthinus Cloete, had been authorized in terms of
section 18(3) of the Administration of Estates Act, ‘…to take over the
assets of the deceased estate’.
18. Clause 1 of the substitution agreement provided that the deed of sale
entered into between Mr. Floors Cloete and the City (the successor in
title to the Cape Divisional Council) , was cancelled. Clause 2 recorded
that the property was resold by the City to Mr. Marthinus Cloete with
effect from 1 May 2007. The clause recorded that the balance of
months for payment of the purchase price (in terms of the 1986 original
deed of sale) to date of final payment, was 10.72 years and that the
balance outstanding on the loa n as of 12 April 2007, was an amount of
R9 433.50.
19. Ownership of the property was transferred from the City to Mr.
Marthinus Cloete on 16 July 2014 by way of deed of transfer no. T[...].
A few months later and on 1 December 2014 , Mr. Marthinus Cloete
passed away from natural causes. He died intestate.
20. On 8 March 2023, just short of 9 years after the death of Mr. Marthinus
Cloete, the Master approved the issuing of Letters of Executorship to
the applicant, appointing her as executrix of his deceased estate.
21. Two days later and, on 10 March 2023, the applicant in her capacity as
executrix of the deceased estate of Mr. Marthinus Cloete , and a certain
Mr. and Mrs. Fredericks, concluded an offer to p urchase in respect of
the property. The purchase price in terms of the offer to purchase was
an amount of R320 000. The offer to purchase is subject to various
conditions.
22. These conditions included the buyers obtaining a bond, vacant
possession of the property and consent being obtained from the Master
of the High Court in terms of section 42(3) of the Administration of
Estates Act. 1 The offer to purchase stated that it would expire at
midnight on 10 March 2023.
23. The Letters of Executorship issued to the applicant were date -stamped
by the Master’s office on 29 May 2023. By letters dated that same day,
attorneys acting on behalf of the applicant directed notices to vacate to
the first to third respondents. The notices to vacate stated that the first
to third respondents were unlawfully occupying the property without a
valid lease agreement and were neither paying rental nor contributing to
the utilities. The notices recorded that the first to third respondents were
required to vaca te the property by 30 June 2023 , failing which legal
action would follow.
Litigation history
24. The applicant’s eviction application in terms of section 4(1) of the PIE
Act was issued on 24 August 2023.
25. In her founding affidavit, the applicant set out the background to the
application. She stated that her late father , Mr. Marthinus Cloete, was
the registered owner of the property and that while he was alive, he had
given consent for the first respondent to temporarily stay with him on
the property. According to the applicant, she had stayed with her father
and the first respondent for approximately a year around 2008/2009.
During this time, she had overhead a conversation between Mr.
Marthinus Cloete and the first respondent, in which he had informed
1 Section 42 of the Administration of Estates Act provides that ‘…An executor who desires to effect
transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in
addition to any such other deed or document, a certificate by the Master that no objection to such transfer
exists.’
the first respondent that she must vacate the property as she was not
paying rent or contributing to any of the expenses. According to the
applicant, t he first respondent nonetheless remained in occupation of
the property.
26. The applicant went on to allege that after his death, her late father’s
siblings, the second and third respondents, had moved into the property
without her knowledge or consent . She stated that they were not
contributing anything towards the household expenses. According to
the applicant, any and all rights pertaining to the respondent ’s
occupation of the property were terminated upon the death of Mr.
Marthinus Cloete and that the respondents were consequently unlawful
occupiers.
27. The applicant alleged that the continued unlawful occupation by the
respondents was causing the deceased estate great financial loss , as the
respondents were unlawful occupiers who were not paying rent nor
contributing to the expenses of the premises. Their unlawful occupation
was preventing the finalization of the winding up of the estate.
According to the applicant, the unlawful occupa tion was also
preventing the transfer of the property to prospective buyers and the
entire transaction was being held up due to the respondent’s unlawful
occupation of the property. The applicant referred in this regard , to the
offer to purchase concluded on 10 March 2023 with Mr. and Mrs.
Fredericks. The applicant stated that the eviction of the respondents was
just and equitable in the circumstances.
28. On 19 September 2023 , Samela J, granted an order authorizing service
of the notice contemplated in section 4(2) of the PIE Act , in terms of
which the respondents were inter alia informed that an eviction order
would be sought against them on 27 October 2023.
29. The City filed a housing re port dated 24 October 2023 . The report
stated that the City had not been provided with sufficient information to
determine whether the respondents would be able to secure alternative
accommodation in the event of an eviction order being granted. The
report enclosed a personal circumstances questionnaire to be completed
by the respondents. It recorded that upon receipt thereof, the City would
be in a position to file a comprehensive housing report including details
of whether the respondents qualify for emer gency shelter, the nature of
the emergency shelter and when such shelter may be available for
occupation.
30. The application came before Fortuin J, on 27 October 2023. The matter
was postponed to 30 November 2023 to allow the first and second
respondents to obtain legal representation. A further postponement was
granted by Nziweni J , on 30 November 2023, in terms of which the
matter was postponed for hearing on 28 May 2024 , together with
timelines for the filing of answering and replying affidavits.
31. The first respondent filed an answering affidavit dated 28 March 2024 .
In her affidavit, which does not appear to have been prepared with the
benefit of legal assistance, she set out the background to her late
father’s purchase of the property . She stated that her family, which
comprised of her parents and 10 children, were the first people to move
to the Robinvale area.
32. She stated that she was working at the time and that she had taken it
upon herself to ask her employers , Dr Steyn and Mrs . Steyn, for a loan
in order to purchase the house and pay the deposit of R300 . She stated
that her father, Mr. Floors Cloete, later wo rked for Dr. Steyn and Mrs .
Steyn in order to pay off the loan.
33. According to the first respondent, all her parents ’ grandchildren grew
up in the household together, including her daughter Chantel , who was
born in 1988. The first respondent stated that her parents later learnt of
another grandchild, being the applicant and daughter of Marthinus
Cloete. Marthinus requested her parents to allow the applicant to live
with them for a while, which she did for a few years. She then moved
back to her mother af ter about 5 years. The first respondent stated that
they did not hear much about her after that except that she later married
and had 3 children.
34. The first respondent stated that after her father's death, the City Council
required one of her siblings to t ake responsibility for the accounts for
the house. Her affidavit in relevant parts stated the following:
‘we as brothers and sisters agreed for Marthinus to be the person in
charge. However, he took advantage of the situation by braiding us and
putting the house on his name, which we only found out later.
We didn't know about this scheming and the fact that he stole the house
and the fact that he stole the house from us and putting his daughter as an
executor. We only now know gave permission as the person who will
temporary be in charge not as someon e who must take ownership of the
house.
My brother had really took advantage of us and putting us in the situation
that we currently in. We went as far as going to the Masters Office and
they refuse to help us with this regard. My parents never had a will to say
that the house needs to go on a certain child's name. I still don't understand
how my brother can purchase a house, which he never bought in the first
place. He was too sick to work and was on medication most of his life. So
therefore he was not in a position to buy a house. We can provide proof
that my father bought the house and evidence of how our children grew up
in the house.’
35. The first respondent attached to her affidavit a letter from the then Cape
Divisional Council recording the allocation of the property to Mr.
Floors Cloete and setting out the details of the purchase price, deposit
and monthly instalment.
36. The applicant in her replying affidavit stated that she had no prior
knowledge or insight into the financial position of the respondents'
parents nor any loans that they might have concluded in relation to the
property. She stated that while the late Mr . Floors Cloete might have
been the first purchaser of the prop erty, her father Mr. Marthinus
Cloete, had purchased the property from the City and was its registered
owner. The applicant denied the allegations that her father stole the
property or became the owner by some or other untoward, dishonest or
fraudulent manner.
37. She stated that the property was never owned by Mr. Floors Cloete and
did not form part of his estate when he passed away, therefore the
respondents have no claim to the property as heirs of their father's
estate. She denied that the respondents had raised any legal defence to
the eviction application.
The City’s Housing Reports
38. The City filed a housing report dated 2 7 May 2024 (“the first housing
report”) on the day before the hearing of the eviction application on 28
May 2024. The report was made by Ms . Riana Pretorius, the City’s
Director: Informal Settlements . Her report summarized the personal
circumstances of the respondents as disclosed in the personal
circumstances questionnaires which they had completed at that stage.
39. The first housing report also set out the City’s position with regard to
the provision of emergency accommodation. The report stated that the
City was facing tremendous challenges with respect to the shortage of
land to create or establish more emergency accommodation sites. These
included the loss of land through land invasions. The establishment of
temporary relocation areas was s aid to be a process which would take
18 months.
40. The report recorded that the respondents ’ personal circumstances had
been noted and that the City had determined that the respondents and
their dependents could be provided with an emergency housing kit if
they were not able to obtain accommodation through their own means.
The City would , in this regard, be able to provide two emergency
housing kits , which allow for a structure of 6m x 3m (18m 2) to be
constructed.
41. The provision of the se emergency housing kits by the City w as
however subject to a condition. The report stated that the emergency
housing kits could only be made available to the respondents after they
had secured a site for its construction and the landowner had consented
thereto in writing by means of a sworn affidavit, in a form attached to
the report. The report stated that the landowner w ould also have to
provide proof of ownership and a copy of their identification document.
The respondents were required to accept or reject the City’s offer of an
emergency housing kit with in 30 days of the date of the first housing
report. The report concluded by stating that the City , would only
furnish the respondents with the emergency housing kits and that it was
the duty of the respondents to assemble the material themselves.
42. The appl ication proceeded on 28 May 2024. The first and second
respondents were permitted to address the court on the matters raised in
their answering affidavit and their opposition to the eviction
application. The matter thereafter stood down for settlement discussions
between the parties, which a few months later reached an impasse and
were ultimately unsuccessful.
43. Following the failure of the settlement discussions, I handed down a
reporting order on 3 March 2025 requiring the City to inter alia, file a
report, within 10 days of service of the order, dealing with the
circumstances which resulted in the transfer of the property to the late
Mr. Marthinus Cloete. The reporting order also required the City to
report on the current availability of any other altern ative or emergency
housing which may be provided to the first to third respondents, other
than the emergency housing kits referred to in the City’s first housing
report. The applicant and the respondents were afforded an opportunity
to respond to any such reports filed by the City.
44. The reporting order was served on the City on 24 April 2025. The
report required by the order (“the second housing report”) was filed on
or about 26 September 2025 . The delay was attributed by the City to
unspecified ‘unforeseen circumstances ’. The City’s second housing
report set out in some detail the information at its disposal regarding the
transfer of the property , including the deed of sale and substitution
agreement referred to earlier.
45. With regard to emergency housing, the City referred to provisions of
the Emergency Housing Programme (“EHP”), noting that the EHP
stated that it was the responsibility of a municipality to consider
whether specific circumstances in its area of jurisdiction merit the
submission of an application for assistance under the said Programme
and if so, to initiate, plan and formulate applications to the provincial
sphere of government for projects relating to emergency housing
situations. The report stated that alt hough the emphasis in the
Emergency Programme is on temporary relief, the City aimed to
develop temporary emergency areas established in terms of the
Programme into Incremental Development Areas ("IDAs") where
possible. IDAs are areas which are capable of being upgraded
incrementally to provide for permanent housing. The report stated that
the City had established a number of TRAs and IDAs, all of which are
fully subscribed and unable to accommodate any further households.
46. According to the City’s second ho using report, there was currently no
emergency accommodation available at any of the City's emergency
housing sites. Where vacancies do become available, they would
quickly be filled due to huge demand. The report stated that the process
of obtaining the n ecessary approvals for the establishment of an
emergency housing area , TRA or IDA generally takes at least two
years, but it could take as long as four or five years from the date of the
application to final approval. All the City’s TRAs were at capacity, the
report stated, and the City was not in a position to accommodate any of
the respondents through any of its existing TRAs. The report set s out
other forms of housing assistance which the respondents could access
through the state-subsidized housing programme and the social housing
programme. In respect of the latter, the report noted that the process for
social housing applications was however, entirely independent of the
City and its outcome depended on the social housing institutions
concerned.
47. The second housing report reiterated the position expressed in the
City’s first housing report regarding the provision of emergency
housing kits. It repeated the condition that such kits could only be made
available to the respondents by the City after they have secured a site
for its construction and the landowner ha d consented thereto in writing
by means of a sworn affidavit. The City’s second housing report does
not state that although emergency accommodation is not immediately
available for the respondents, it would be available at a particular point
in future. No timelines are provided as to when such emergency
accommodation might become available. Had this been the case, the
possible future availability of emergency accommodation may well
have been a factor relevant to the just and equitable enquiry , and in
particular, the date of implementation of an eviction order.
48. The City’s second housing report concluded by stating that the
respondents’ defence that the property had been unlawfully transferred
had not been properly raised and ‘…did not necessarily prohibit an
eviction order being made. ’ The report concluded by stating that the
issue of homelessness and the need for emergency shelter, ‘does not
arise in this matter ’ and that the relevant information placed before
court ‘…does not lead to a finding of homelessness’.
Relevant circumstances in eviction proceedings
49. The applicant’s eviction application relies on the provisions of section
4(6) of the PIE Act. Section 4(6) of PIE applies where an unlawful
occupier has occupied the land in question for less than six months at
the time when the proceedings are initiated.2 Section 4(7) applies where
an unlawful occupier has occupied the land in question for more than
six months at the time the proceedings are initiated.3
50. Counsel for the applicant submitted that the respondents had been in
unlawful occupation of the property for less than six months and that
accordingly, section 4(6) applied . Given that the respondents were
called upon to vacate by 30 June 2023 and the application was issued
on 24 August 2023, the court, so counsel’s argument went, was not
required to consider the circumstances in section 4(7) of PIE.
2 Section 4(6): ‘If an unlawful occupier has occupied the land in question for Jess than six months at the
time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all the relevant circumstances, including the rights and
needs of the elderly, children, disabled persons and households headed by women.’
3 Section 4(7): ‘If an unlawful occupier has occupied the land in question for more than six months at the
time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all the relevant circumstances, including, except where the
land is sold in sale of execution pursuant to a mortgage, whether land has been made a vailable or can
reasonably be made available by a municipality or other organ of state or another land owner for the
relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled
persons and households headed by women.’
51. Reliance in this regard was placed on the judgment of the Supreme
Court of Appeal in Ndlovu v Ngcobo; Bekker and Another v Jika 4.
Harms JA held in Ndlovu that the period of the occupation [for the
purposes of section 4(6) and section 4(7) of PIE] is calculated from the
date the occupation becomes unlawful.5
52. The applicant’s submissions regarding the limited circumstances which
are relevant in section 4(6) eviction proceedings, are inconsistent with
developments in our eviction jurisprudence in the two decades which
have passed since the judgment of the SCA in Ndlovu.
53. In Occupiers Shulana Court, 11 Hendon Road, Yeoville, Johannesburg
v Steele 6, the SCA rejected an interpretation of PIE that courts do not
have to consider the availability of alternative accommodation or land
in cases where occupiers had occupied property for less than six
months. Theron AJA put it thus:
‘In terms of s 4(7) a court is obliged, in addition to the circumstances
listed in s 4(6), namely, the rights and needs of the elderly, children,
disabled persons and households headed by women, to give due weight to
the availability of alternati ve land. There is nothing to suggest that in an
enquiry in terms of s 4(6), a court is restricted to the circumstances listed
in that section. The court must have regard to all relevant circumstances.
The circumstances identified are peremptory but not exhaustive. The court
may, in appropriate cases, have regard to the availability of alternative
4 Ndlovu v Ngcobo; Bekker & Another v Jika 2003 (1) SA 113 (SCA) at [17] (“Ndlovu”).
5 Ndlovu at para 17.
6 The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele ( 102/09) [2010]
ZASCA 28; 2010 (9) BCLR 911 (SCA); [2010] 4 All SA 54 (SCA) (25 March 2010) (“Shulana Court”).
land. However, where the availability of alternative land is relevant, then it
is obligatory for the court to have regard to it.’7
54. The Constitutional Court has emphasized the importance of courts
considering the possibility of evictions resulting in homelessness and
the availability of emergency accommodation . This applies even in
section 4(6) eviction applications, where the occupiers had been
occupying properties for relatively short periods.8
55. In Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden
Thread Ltd and Others 9, Moseneke DCJ, referring to the distinction
between section 4(6) and section 4(7) of the PIE Act, said the
following:
‘While this distinction is important, I do not think it is decisive to the
justice and equity enquiry. This is because, if a court has before it a case in
which the land occupation falls short of six months, it is obliged to
consider all the relevant circum stances. In an enquiry of this kind, a court
should determine what the relevant circumstances are.
Close to 200 families would have been evicted and in all probability
rendered homeless consequent upon the order of the High Court. In the
face of this consequence the question whether the City was reasonably
capable of providing alternative land or housing was of crucial
importance.’10
7 Shulana Court at para 13.
8 Occupiers of Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd and Others (CCT 26/11) [2011]
ZACC 36; 2012 (4) BCLR 382 (CC) (7 December 2011) at para 13.
9 Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Ltd and Others (CCT 25/11)
[2011] ZACC 35; 2012 (2) SA 337 (CC); 2012 (4) BCLR 372 (CC) (7 December 2011) (“Mooiplaats”).
10 Mooiplaats at para 16.
56. The length of time that an occupier has occupied property unlawfully is
a relevant factor to be considered when determi ning whether an
eviction would be just and equitable. It is not decisive. The proper
starting point when a court exercises its duties in eviction proceedings
is section 26(3) of the Constitution.
57. Section 26(3) of the Constitution states that ‘no one may be evicted
from their home, or have their home demolished, without an order of
court made after considering all the relevant circumstances’.
58. The constitutional obligation on courts is to consider ‘all relevant
circumstances’ in an eviction proceeding, means just that. ‘All’ does not
mean ‘only some ’. Section 26(3) of the Constitution embodies an
obligation expressed in language as wide as constitutional language
could achieve. This is by deliberate design, not omission. 11
59. The applicant’s argument that this court need not have regard to the
circumstances in section 4(7) of the PIE Act in cases of unlawful
occupation for less than six months, is for these reasons, unsustainable
and without merit.
11 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC);
2004 (12) BCLR 1268 (CC) (1 October 2004) (“PE Municipality”) at para 22.
60. I consider th ere to be three key and inter-linked circumstances which
are relevant to the question of whether the granting of an eviction order
against the respondents would be just and equitable. The first is the
possibility of homelessness. The second is the availability of
emergency accommodation. The third is the allegedly unlawful
acquisition of the property by the late Mr. Marthinus Cleote.
61. These factors must be balanced against the considerations identified by
the applicant as justifying the granting of an eviction order.
The possibility of eviction resulting in homelessness
62. Evictions which result in people being left homeless with no roof over
their heads are an affront to constitutional values and a serious violation
of the right to human dignity. Enforced homelessness implicates a
number of constitutional rights including t he right to life and the right
not to be subjected to cruel and inhuman treatment. The basic human
need for shelter from the elements cannot be separated from the need
for security of tenure for such shelter. All human beings require shelter,
and all human beings require a place where they can live in such
shelter.
63. It is for these reasons that it is by now an uncontroversial and generally
accepted legal principle that an eviction which results in homelessness,
will generally not be just and equitable. The Constitutional Court has
thus held that an eviction order that will give rise to homelessness
cannot be said to be just and equitable, unless provision has been made
to provide for alternative or temporary accommodation.12
64. In the present case, each of the respondents have indicated in their
personal circumstances questionnaires that they will be rendered
homeless if evicted from the property. I am unable to find any basis in
the evidence to gainsay what they have stated in t his regard. The
applicant has not provided any factual basis to suggest that alternative
accommodation is available to the respondents other than the family
home in which they have lived for decades.
65. The possibility of the respondents, their dependents a nd their minor
children being rendered homeless by an eviction order , triggers the
constitutional obligations of the City to provide alternative temporary
emergency accommodation. It is to that obligation that I now turn.
The availability of emergency accommodation for the respondents
66. A short response to the issue of the availability of emergency
accommodation for the respondents, is that there is none, according to
the City’s housing reports. Except that is, the provision of emergency
housing kits, which are to be erected by the respondents themselves, on
12 Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC 18; 2017
(8) BCLR 1015 (CC); 2017 (5) SA 346 (CC) (8 June 2017) at para 57 (“Occupiers of Erven 87 and 88
Berea”).
land which they must find themselves and subject furthermore, to the
written consent of th e owner of such land provided on oath in an
affidavit.
67. The immediate and obvious question which arises is this: what is to
happen to those respondents who are evicted and unable to obtain
consent from a landowner for the erection of emergency housing kits
provided by the City? The answer appears to be that th ose people
would not be provided with emergency housing kits by the City
because the landowners’ written consent is an express condition for the
kits to be provided in the first place. Evicted from their home, left
homeless and searching up and down for land on which they could
erect emergency shelters, the desperate situation that these respondents
may find themselves in , if evicted without the provision of alternative
accommodation, brings to mind Sachs J’s vivid description of the
dehumanizing effects of enforced homelessness:
‘It is not only the dignity of the poor that is assailed when homeless people
are driven from pillar to post in a desperate quest for a place where they
and their families can rest their heads. Our society as a whol e is demeaned
when state action intensifies rather than mitigates their marginalisation.
The integrity of the rights -based vision of the Constitution is punctured
when governmental action augments rather than reduces denial of the
claims of the desperately poor to the basic elements of a decent
existence.’13
13 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC);
2004 (12) BCLR 1268 (CC) (1 October 2004) at para 18 (“PE Municipality”).
68. The City’s approach to the provision of emergency housing for the
respondents, i.e. providing emergency housing kits but no land on
which to erect them, does not appear to be consistent with national and
international standards for the provision of adequate housing in general
and emergency housing in particular.
69. The Emergency Housing Programme (“EHP”) published in terms of the
National Housing Code and referred to in the City’s second housing
report, clearly contemplates the provision of land as a component of
emergency housing. The EHP states that assistance in terms of the
programme takes the form of grants to municipalities to enable them to
respond rapidly to emergencies by means of the pro vision of land,
municipal engineering services and shelter. 14 It envisages inter alia the
development of land access processes appropriate to the situation with
due regard to municipal integrated development planning. 15
Municipalities may be assisted with funding for land acquisition 16 and
where land suitable for housing development in emergency housing
situations is required, it must first be sought from land identified in
Spatial Development Frameworks that supplement Integrated
Development Plans, with pr eference to be given to the acquisition of
State-owned land.17
14 Emergency Housing Programme: p 9.
15 Emergency Housing Programme: p 14.
16 Emergency Housing Programme: p 18.
17 Emergency Housing Programme: p 44.
70. With respect to international standards for the adequacy of housing,
South Africa is a party to and has ratified the International Convention
on Economic, Social and Cultural Rights (“ICESCR”). In terms of
section 39 of the Constitution, a court must consider international law
when interpreting the Bill of Rights.
71. Article 11 of the ICESCR protects the right to housing as a component
of the fundamental right of everyone to an adequat e standard of living
for themselves and their family.18 State parties are obliged under Article
2(1) of the ICESCR to take steps to the maximum of their available
resources, to progressively realise the rights recognized by the
ICESCR, by all appropriate means including the adoption of legislative
measures.19
72. The statements and general comments of the Committee on Economic,
Social and Cultural Rights (“CESCR”) are sources of non-binding but
persuasive international law, which have been regularly referred to in
South Africa’s leading cases on socio-economic rights.20
18 ICESCR Article 11: ‘The States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food, clothing and housing, and
to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure
the realization of this right, recognizing to this effect the essential importance of international co-operation
based on free consent.’
19 Article 2(1) of the ICESCR : ‘Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co -operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively t he full realization of the
rights recognized in the present Covenant by all appropriate means, including particularly the adoption of
legislative measures.’
legislative measures.’
20 For example in, Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA
46 (CC) at para 29.
73. General Comment 4 of the CESCR on the right to adequate housing
confirms that adequate housing is more than just shelter . Rather, it is a
right to live somewhere and to do so in accordance with human dignity:
‘In the Committee’s view, the right to housing should not be interpreted in
a narrow or restrictive sense which equates it with, for example, the shelter
provided by merely having a roof over one’s head or views shelter
exclusively as a commodity. Rather it should be seen as the right to live
somewhere in security, peace and dignity. This is appropriate for at least
two reasons. In the first place, the right to housing is integrally linked to
other human rights and to the fundamental principles upon which th e
Covenant is premised.
This “inherent dignity of the human person” from which the rights in the
Covenant are said to derive , requires that the term “housing” be
interpreted so as to take account of a variety of other considerations, most
importantly tha t the right to housing should be ensured to all persons
irrespective of income or access to economic resources. Secondly, the
reference in article 11 (1) must be read as referring not just to housing but
to adequate housing. As both the Commission on Human Settlements and
the Global Strategy for Shelter to the Year 2000 have stated: “Adequate
shelter means ... adequate privacy, adequate space, adequate security,
adequate lighting and ventilation, adequate basic infrastructure and
adequate location with rega rd to work and basic facilities - all at a
reasonable cost.’21
21 CESCR General Comment 4: para 7.
74. CESCR General Comment 4 states that a number of factors must be
taken into account in determining whether particular forms of shelter
can be considered to constitute ‘adequate housing’ for the purposes of
the ICESCR. These factors include legal security of tenure, availability
of services, materials, facilities and infrastructure, affordability,
habitability, accessibility, location and cultural adequacy.22
75. General Comment 7 of the CE SCR deals with evictions in the context
of the right to adequate housing. It confirms the obligation of states to
provide adequate housing to persons who would be rendered homeless
by evictions:
‘Evictions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights. Where those affected are
unable to provide for themselves, the State party must take all appropriate
measures, to the maximum of its available resources, to ensure that
adequate alternative housing, resettlement or access to productive land, as
the case may be, is available.’23
76. For the purposes of this application, i t is not necessary for this court to
make an order declaring whether or not the City has complied with its
constitutional obligations to provide emergency housing to persons
being evicted and facing homelessness. It is sufficient to conclude that
the evidence establishes that there is no emergency housing or land
available to the respondents, other than the provision by the City of
emergency housing kits which are conditional on the respondents
22 CESCR General Comment 4: para 8.
23 CESCR General Comment 7: para 16.
securing land on which to erect these rudimentary shelters.
77. There is no evidence that the respondents have access to land on which
they could erect emergency housing kits with the consent of the owner
of such land. This is an important and relevant consideration in
deciding whether the eviction of the respondents would be just and
equitable.
The allegedly unlawful transfer of the pro perty to the late Mr . Marthinus
Cloete
78. The main thrust of the first respondent’s answering affidavit is that the
property concerned is a family home which was transferred to the late
Mr. Marthinus Cloete without the knowledge and consent of his
siblings. The concept of a family home and the legal protections
attaching to it in the context of customary law, has been described as
follows by Du Plessis AJ in Shomang v Motsose N.O. and Others:24
‘The concept of "family homes" and the property rights that they confer
on the people living in them is thus a common occurrence and yet is
invisible to the "formal laws" of South Africa. Formally , the registered
owner is conferred rights that bestow on them the normal entitlements of
ownership in terms of the common law, including alienating the property
24 Shomang v Motsose N.O. and Others (6990/2022) [2022] ZAGPPHC 441; 2022 (5) SA 602 (GP) (24
May 2022) at para 46 to 48.
at will. This sometimes leads to great conflicts as this goes against the
norms that underlie the idea of a "family home", as is visible in this case.
Family homes govern a family's relation to immovable property. It is
based on the principle that the person in control of the property
("custodian" or "caretaker") has a collective kin -based obligation to
preserve the property. By implication, then, kin me mbers ability to
alienate the property is limited by their obligations. Moreover, it is not
always possible for people on the outside to determine who the custodian
of the property is. It is undoubtedly more complicated than fixating on the
individual titleholder whose name is written on the title deed.
The custodian’s duty rests on the relationship of the family to the property,
not just the present -day family but also the ancestors. This, however,
usually happens outside the realm of the law, leading to a disjoint between
registration, tenure and succession rights. The family house is held and
"informally” transmitted through the family (as opposed to individuals).’
79. Peterson v Van Wieling and Others 25 is a case which has some
similarities to the present. The appellant in that matter appealed against
the dismissal of her eviction application in the Magistrates Court. She
was the registered owner of the property from which she sought the
eviction of the respondents, three of whom were her siblings. The
appellant’s late father had concluded a deed of sale for the property in
1988 with the former Plettenberg Bay Municipality. The purchase price
was payable by way of a deposit and instalments over a period of 30
years. Following the death of the appellant’s fat her in 1992, two years
25 Peterson v Van Wieling and Others (A94/2019) 2019 ZAWHC 70 (“Peterson”).
after the conclusion of the deed of sale, two of the appellant’s siblings
continued residing in the property.
80. The appellant obtained registered title to the erf in 2004. During 2016
she gave the respondents notice to vacate the property and subsequently
sought their eviction in terms of PIE. The respondents opposed their
eviction, contending that the appellant had acquired the property in a
fraudulent manner, when it should have devolved upon their late
father’s estate, thus entitl ing each of his intestate heirs to a
proportionate undivided share thereof.
81. Binns-Ward J and Cloete JJ upheld the appeal in part and remitted the
matter to the Magistrates Court. The remittal order required further
information to be obtained regarding, inter alia the liquidation and
distribution of the appellant’s late father’s estate and what became of
the executory rights flowing from the 1988 deed of sale of the property.
Binns-Ward J held that the question of what had become of the
executory rights and obligations under the prior deed of sale and
questions regarding how it came about that the property was eventually
transferred to the appellant, were plainly circumstances which were
relevant in the application for the eviction of the respondents in terms
of the PIE Act.26
82. In the present case, the evidence is unclear as to whether the Mr. Floors
Cloete died testate or intestate on 31 May 2005 , how his estate
26 Peterson at para 20.
devolved and whether his deceased estate was finalized by his executor,
the late Mr. Marthinus Cloete . In my view , what is clear is that at the
time of Mr. Floors Cloete’s demise, the deed of sale which he had
concluded with the Cape Divisional Council was a contract which was
executory in nature, as was the deed of sale which had been concluded
in Peterson’s case. This is because it was an existing contract subject to
future unfulfilled or uncompleted obligations . Th ose obligations were
the continued payment of instalments in terms of the deed of sale
before the purchaser was entitled to transfer.27
83. In these circumstances, and had he died intestate , which the
probabilities in my view indicate was the case, the late Mr. Floors
Cloete’s heirs may well have been vested upon his death with personal
rights (jus in personam ad rem acquirendam) against the executor for
their proportionate share of assets in his deceased estate . This would
include the subject property.
84. Notably, the property was an asset specifically listed and valued in the
Letters of Authority issued to Mr. Marthinus Cloete on 15 February
2007.
85. It is not possible on the current evidence to make a defini tive finding of
illegality of the transfer of the property, absent further investigation and
appropriate relief being sought by the respondents in a competen t
27 The City’s second housing report confirms that it in fact receive d payments on the loan account after the
death of Mr. Floors Cloete on 31 May 2005. According to the City , payments on the loan account in the
amount of R 2 850.00 were received between 6 May 2011 and 4 November 2013.
forum. That such a finding cannot be made on the present facts , is
however not a basis to conclude that the respondents have raised no
cognizable legal defence to the eviction application. Sufficient grounds
have in my view been established on the undisp uted facts, to raise
serious questions regarding the legality of the transfer of the Cloete
family home to the exclusive ownership of the late Mr . Marthinus
Cloete. The property was transferred to him without the knowledge of
and to the complete exclusion of his other siblings who hav e occupied
the property for decades as their family home.
86. The undisputed evidence of the first respondent is that she contributed
financially towards the payment of the deposit and purchase price of the
property and that she and her siblings had agreed that her eldest brother
Mr. Marthinus Cloete would be the person in charge of the property ,
only for the purposes of payment of the municipal accounts, not to take
ownership of the property. It was also undisputed in th e applicant’s
replying affidavit, that the late Mr. Floors Cloete and Mrs. Maria Cloete
did not leave a will leaving the house to a specific child.
There are disquieting features of the process which resulted in the
transfer of the property to the late M r. Marthinus Cloete by the City.
There is no evidence of enquiries regarding the exist ence of other
interested heirs and their consent in the process of the conclusion of the
substitution agreement on 25 May 2007. The documents relating to the
transfer of the property in 2014 are bereft of any indication that the
consent of the surviving children of Mr. Floors Cloete to transfer of the
property was investigated or enquired into by the City.
87. The applicant contends the first respondent’s answering affidavit raises
no defence to an eviction order. It was submitted that the respondents
were clearly unlawful occupiers . The first respondent’s allegations
regarding the transfer of ownership of the property to Mr. Marthinus
Cloete, so, it was argued, did not raise a real dispute that would
constitute a valid defence to the eviction proceedings.
88. The question of a ‘valid defence’ for the purposes of section 4(8) of the
PIE Act, is however an expansive enquiry. It is not merely a question of
whether the occupation is lawful or not. Where it would be unjust and
inequitable to grant an eviction order, having regard to all the relevant
circumstances, the unlawful occupiers have a valid defence and no
eviction can be ordered.28
89. The protection of inheritance rights is fundamental to security of tenure,
which is an important component of the right of access to adequate
housing. The facts of th is illustrate how existing security of tenure and
access to housing can be undermined in circumstances where one
family member is able, through the letters of authority mechanism of
the Administration of Estates Act, to ultimately obtain rights of
exclusive ownership of a family home to the exclusion of other family
28 Occupiers of Erven 87 and 88 Berea at para 65.
members who contributed to its purchase, did not consent to its tran sfer
and live in it as their family home.
90. The vast majority of the respondents in this case against whom an
eviction order is sought, are women and young girls . These include
three of the five surviving adult children of the late Mr. and Mrs. Cloete
and sisters of Mr. Mathinus Cloete . The United Nations Special
Rapporteur on Housing has observed in h er 2013 report to the 25 th
Session of the Human Rights Council, t hat women and children are
particularly vulnerable to tenure insecurity and homelessness. States are
required prioritize safe emergency shelter to women and children until
durable housing solutions are established. The report further
recommended that:
‘States should take measures to protect the tenure security and promote
inheritance rights of women and girls in the case of the death of a spouse,
father, brother, son or other male household member so that they are able
to continue residing in the family home.’29
91. Inheritance rights to family property are also subject to protection
under international law. South Africa is in this regard a party to the
Protocol to the African Charter on Human and People’s Rights in the
Rights of Women in Africa ( “the Maputo Protocol”), having ratified it
on 17 December 2004. Article 21 of the Maputo Protocol protects the
29 Report of the Special Rapporteur on adequate housing as a component of the right to an adequate
standard of living, and on the right to non -discrimination in this context, 30 De cember 2013, UNGA,
A/HRC/25/54
right to inheritance . It states that “ …Women and men shall have the
right to inherit, in equitable shares, their parents’ properties.”
Delayed finalization of the deceased estate of Mr. Marthinus Cloete
92. Against the factors and considerations militating against the granting of
an eviction order, it is necessary to consider those circumstances relied
on by the applicant as justifying the granting of an eviction order. The
first of these is the contention th at the respondent’s unlawful
occupation has had the deleterious effect of preventing the applicant
from winding up the deceased estate of the late Mr. Marthinus Cloete.
The applicant alleges in her founding affidavit that the transaction with
Mr. and Mrs. Fredericks for the sale of the property and its subsequent
transfer, was being held up due to the respondent’s unlawful occupation
of the property.
93. The issue of delay in the finalization of Mr. Marthinus Cloete’s
deceased estate must be considered in context. Mr . Marthinus Cloete
died on 1 December 2014. Approximately nine years passed before the
applicant was appointed as executrix of his deceased estate on 8 March
2023. This lengthy hiatus is unexplained in the applicant’s founding
affidavit.
94. The applicant’s founding affidavit is vague on the actual steps which
she has taken to wind up the deceased estate and does not explain why,
for example, the filing of a liquidation and distribution account would
be entirely dependent on the evic tion of the respondents. The
applicant’s real complaint seems to be that the respondent’s occupation
is preventing her from selling the property for the amount of R320 000
stipulated in the offer to purchase . The offer to purchase signed on 10
March 2023 w as however concluded by the applicant with the full
knowledge that the respondents were residing in the property, which
was their family home.
95. Hence the inclusion of a clause in the offer to purchase requiring vacant
occupation to be given by the applica nt. The applicant was already
aware from 2008/2009, fifteen years before she proceeded with steps to
sell the property, that the first respondent was living in the property and
had not vacated despite the alleged request from Mr. Marthinus Cloete
for her to do so.
96. It is difficult to see how the purchasers of the property could
themselves not have been aware of the possibility of delays in transfer
and that the eviction of the respondents from their family home would
most likely be contested in drawn out eviction proceedings . In the
circumstances of this case, the risk of vacant occupation of the property
being delayed was in my view a risk which was willingly assumed by
both the applicant and the prospective purchasers of the property.
Liability for municipal services, rates and taxes
97. The applicant in her founding affidavit maintained that the deceased
estate remains liable to the local Municipality for the property's rates
and taxes and the deceased estate is essentially sponsoring the
respondents' and all other occupants' occupation at the property. This
was asserted to be a factor justifying the eviction of the respondents as
being just and equitable.
98. The applicant’s assertion that the continued occupation of the property
by the respondents is causing ‘great financial loss ’ to the deceased
estate due to their non -payment of municipal services and rates, is
overstated. Firstly, no details are provided of these financial losses and
the quantum of municipal services consumed or the property rates
applicable to the property. Secondly, the City’s second housing report
indicates that these costs are in any event relatively low.
99. For the remaining months in 2023, following the appointment of the
applicant as executrix on 8 March 2023, the City’s second housing
report records that the property rates were R36.50 in April 2023,
R28.15 in May, R31.28 in June, R23.79 in July, R5.14 in A ugust,
R5.48 in September, R4.97 in October, R 5.14 in November and R5.48
in December 2023. These amounts did not substantially increase in
2024 and 2025.
100. In the same period of March to December 2023 , the highest amount
recorded on the City’s municipal se rvices account statement in respect
of the monthly consumption bill is an amount of R128.60. As of August
2025, the municipal services account was not in arrears and had a
closing balance of R110.14, with the highest monthly amount recorded
as a payment on the account, being R102.00.
101. It is unclear whether these monthly payments of an average of R100 .00
per month, have been made by the applicant or the respondents.
Nonetheless, and in the particular circumstances of this case, I consider
it appropriate, just and equitable , for the respondents to bear some
responsibility for the financial costs in respect of the municipal services
consumed on the property, which they themselves regard as their family
home.
Whether the eviction of the respondents would be just and equitable
102. Having regard to all the relevant circumstances and factors disclosed by
the evidence, I am of the view that the eviction of the respondents , in
the absence of the availability of suitable emergency accommodation or
adequate alternative accommodation , will place them at grave risk of
being rendered literally homeless. No adequate alternative or
emergency accommodation has been offered by the City except the
provision of 18m 2 emergency housing kits, that offer being subject to
the respondents themselves finding land on which the y may lawfully
erect these rudimentary structures.
103. This court is in the dark as to where the respondents, who include
elderly and sickly persons, households headed by women and young
children, are expected to live if they are evicted from their family
home. The granting of an eviction order in such circumstances and at
the present time, would in my judgment be neither just nor equitable.
The appropriate order
104. A court determining an eviction application is called upon to ‘…go
beyond its normal functions, and to engage in active judicial
management according to equitable principles of an ongoing, stressful
and law -governed social process. ’30 The court is not determining
conventional adversarial proceedings and the orders that it may craft
must thus be appropriate to the exigencies of the particular case before
it. Each situation, after all, “…has its own history, its own dynamics, its
own intractable elements that have to be lived with (at least for the time
being), and its own creative possibilities that have to be explored as far
as reasonably possible.”31
105. I have earlier concluded that the eviction of the respondents would not
be just and equitable. The eviction relief sought in the applicant’s
notice of motion therefore fails and the application for that relief must
be dismissed.
106. The respondents are entitled to a remedy to investigate and address
breaches of their inheritance rights to their late father’s deceased estate
if such breaches are established in law. In this regard, Article 25 of the
Maputo Protocol obliges state parties to ensure that remedies for
30 PE Municipality at para 36.
31 PE Municipality at para 31.
violations of rights recognized in the Protocol, which include the right
to inheritance, are determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by law.
107. The Legal Aid South Africa Act 39 of 2014 in its pre-amble affirms
that its purpose is to ensure access to justice and the realisation of the
right of a person to have legal representation as envisaged in the
Constitution and to render or make legal aid and legal advice available.
108. Section 13(3) of the South African Human Rights Commission Act 40
of 2013 provides that the South African Human Rights Commission is
competent to investigate, on its own initiative or on receipt of a
complaint, any alleged violation of human rights and may, insofar as it
is able to so, assist the complainant to secure redress and may where
necessary, arrange for financial assistance to enable proceedings to be
taken to a competent court for the necessary relief.
109. I consider i t appropriate for a copy of this judgment and order to be
provided to Legal Aid South Africa and the South African Human
Rights Commission in order for those bodies to consider the provision
of legal assistance to the respondents in respect of the allegedl y
unlawful transfer of their family home to the late Mr. Marthinus Cloete.
110. It is necessary to deal with the issue of costs.
111. The applicant in her notice of motion sought a costs order against any
party that unreasonably delayed the finalization of this application , on
the attorney and client scale, either taxed or agreed.
112. In its first housing report by Ms. Pretorius, the City recorded that all of
the respondents had indicated that they would be rendered homeless if
evicted from the premises. An entirely different position was taken in
the City’s second housing report, filed without a proper explanation
some four months after the deadline provided for by th is this court’s 3
March 2025 reporting order had elapsed . In that report, the City’s Mr.
Tsagane, contrary to what had been stated in the first housing report,
concluded that the issue of homelessness and t he need for emergency
shelter, ‘does not arise in this matter ’ and that the relevant information
placed before court ‘…does not lead to a finding of homelessness.’ It is
difficult to see how this statement could rationally have been made in
the light of the first housing report and the information contained in the
respondents’ personal circumstances questionnaires.
113. The respondents are entitled to reasonable action by organs of state in
response to their emergency housing needs.32 The City’s response to the
emergency housing needs of the respondents, facing eviction and
homelessness and its offer of emergency housing kits conditional on the
respondents finding land to lawfully erect the emergency kits
themselves, cannot be said to be reasonable.
32 Grootboom at para 83.
114. In Ruiters and Another v Arendse and Others 33, Andrews AJ said the
following regarding a similar offer of emergency housing kits to
vulnerable occupiers facing eviction:
‘To my mind, it is untenable to expect the First Respondent being a 72-
year-old pensioner, not only to secure a site for its construction, but to find
a willing landowner who is prepared to consent thereto by means of a
sworn affidavit and provide proof of registration; and as if this is not
enough, she is expected to assemble the structure as well. Whilst it may be
argued that she has able bodied adults holding occupation under her to
assist her with the construction of the emergency housing kit, regard must
be had to the undisputed fact that Rekadou receives a SASSA di sability
grant.
The Respondents have placed on record that they do not know anyone
who is willing to allow them to erect these structures on their property.
Therefore, on this basis alone, the conditions proposed by the Third
Respondent appears unattainable and particularly onerous, more especially
if the Respondents are expected to indicate acceptance within 30 days.’
115. The judgment in Ruiters in which the City was the third respondent,
was delivered on 10 February 2025. This was well before the City filed
its second housing report in this case repeating the offer of emergency
housing kits without the provision of land on which to erect them.
33 Ruiters and Another v Arendse (19927/2023) [2025] ZAWCHC 36 (10 February 2025) at paras 30 to 32.
116. In Allie v Ras 34, an appeal against the dismissal of an eviction order,
Saldanha J stated:
‘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.’
117. More recently and in Transet SOC Ltd v Unlawful Occupiers of the
Portion of Erf 1[...], Belville that is under the Tienie Meyer Bypass
Bridge and Another35, Thulare J had the following to say regarding the
reasonableness of the City’s offer of emergency housing kits absent the
provision of land:
‘The law anticipates a reasonable City, which identifies land for
emergency accommodation and engages in the complex process involving
safety, land-use and operational considerations not when a court order is
sought against them, but in anticipation of answe ring to its constitutional
obligations when the need arise. The idea that indigent South Africans, if
any, will simply be provided emergency housing kits which permitted
construction of a structure measuring approximately 6m X 3m, and be left
to go and loo k for land, demonstrates how the City has no feeling of
concern to the issue of land.
34 Allie v Ras and Another (Appeal) (A50/2025) [2025] ZAWCHC 529 (14 November 2025) at para 86.
35 Transet SOC Ltd v Unlawful Occupiers of the Portion of Erf 1[...], Belville that is under the Tienie Meyer
Bypass Bridge and Another (012427/26) [2026] ZAWCHC 27 (4 February 2026) at para 17.
The Concise Oxford Dictionary, 10thedition, Edited by Judy Pearsall,
2002, Oxford University Press defines a home as a place where one lives
permanently. Most of the th ings can be absent, including a structure, but
there can be no ‘home’ without a place. Place is land. It is location. How
the City can elevate and equate movable material to land, which by its
very nature is immovable, escapes my logic.’
118. I a gree with thes e observations. I n my view, it is in the interests of
justice for the City to pay a portion of the applicant’s costs.
Order
119. I make the following order:
(a) It is declared that the granting of an eviction order against the first to
fourth respondents, as at the date of this order, is not just and
equitable.
(b) The eviction application issued by the applicant on 24 August 2023
under case no. 14498/23, is dismissed.
(c) It is declared that the first and second respondents and any other
surviving children of the late Mr. Floors Cloete, who died on 31
May 2005, are entitled to the provision of legal aid by the state and
appropriate legal redress, in order to investigate and determine:
(i) the nature and extent of their executory and inheritan ce rights in
terms of the deed of sale concluded between the former Cape
Divisional Council and the late Mr. Floors Cloete in respect of
erf 4[...] Wesfleur, in the City of Cape Town, Cape Division,
Western Cape Province (“the property); and
(ii) the nature and extent of their rights in respect of the transfer of
the property to the late Mr. Marthinus Cloete, who died on 1
December 2014, following his substitution as purchaser of the
property by the City of Cape Town on, 25 May 2007.
(d) The applicant is directed t o procure and provide to the first and
second respondent’s, within 60 days of the date of this order, a
report from the Master of the High Court regarding the estate of the
late Mr. Floors Cloete (Estate Number 3[...]) together with the final
liquidation and distribution account, if any, in respect of that estate.
(e) The Registrar of this Court is directed to provide a copy of this order
and judgment to the Provincial Executive (Western Cape) of the
Legal Aid Board and the Provincial Manager (Wester n Cape) of the
South African Human Rights Commission, for their consideration of
the provision of legal aid to the first and second respondents, for the
purposes of paragraph 3 of this order.
(f) The first and second respondents are directed to make payment to
the City of Cape Town, on a monthly basis, of all amounts due to
the City of Cape Town in respect of municipal services consumed
by the first and second respondents and their dependents occupying
the property.
(g) The fifth respondent is ordered to pay 50% of the costs of this
application, either taxed or agreed, on the attorney and client scale.
---------------------------
S G MAGARDIE
Acting Judge of the High Court
Appearances
For the applicants: Adv P Gabriel
First and second respondents: In person