SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG.
Case Number: 2026/40484
Application for Variation
UNLAWFUL OCCUPIERS OF ERF 7[…] E[ …] TOWNSHIP Applicant
And
K2012150042 (SA) (PTY) LTD First Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Second Respondent
Application for Contempt of Court.
K2012150042 (SA) (PTY) LTD Applicant
And
UNLAWFUL OCCUPIERS OF ERF 7[…] E[…] TOWNSHIP First Respondent
THE CITY OF JOHANNESBURG Second Respondent
SETTLEMENTS, JOHANNEBURG: PATRICK PHOPHI Third Respondent
EXECUTIVE MAYOR: DADA MORERO Fourth Respondent
MUNICIPAL MANAGER: FLOYD WARREN BRINK Fifth Respondent
In re:
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
March 2026
DATE SIGNATURE
2
K2012150042 (SA) (PTY) LTD Applicant
and
UNKNOWN OCCUPIERS OF ERF 7[…] E[…]
TOWNSHIP First Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Second Respondent
____________________________________________________________________
JUDGMENT
____________________________________________________________________
NOKO J
[1] On 17 March 2026, I granted an order for the variation of an eviction order,
without reasons, in the following terms:
1. The forms, time, periods, and service required by the rules are dispensed, and this matter is
heard as one of urgency in terms of Uniform Rule 6 (12).
2. The Second Respondent, particularly the Mayor and Municipal Manager are directed to present
themselves before this court in person on 14 April 2026 at 10h00 to answer the following:
2.1. What steps have been or are being taken to provide TEA to the Occupiers as per the order
of Mdalana-Mayisela J dated 26 November 2025?
2.2. Where is the TEA allocated, and what steps are being taken to make that TEA available to
the Occupiers?
2.3. A specific address where the Occupiers are to be relocated that TEA and the logistics of
such relocation by the Second Respondent.
3. In the event that the Occupiers are not relocated by 31 March 2026, a variation of the eviction
dates of the Justice Mdalana-Mayisela J order dated 26 November 2025, would be 1 May 2026.
4. The Second Respondent is directed to provide Temporary Emergency
Accommodation to the qualifying unlawful Occupiers by not later than 30 April 2026.
5. The first Respondent is directed to maintain security personnel at the property until 30 April
2026.
6. Paragraphs 1 to 8 of the order of Mdalana-Mayisela J dated 26 November
2025 are suspended pending the implementation of prayer 2 of this order.
7. The Second Respondent is liable to pay costs of this Application on an attorney and own client
scale.
8. The First Respondent's application for Contempt of Court is struck off the roll for lack of
8. The First Respondent's application for Contempt of Court is struck off the roll for lack of
urgency.
[2] These are the reasons.
[3] As background, the first respondent obtained an eviction order of the applicants
(“Occupiers”) from the first respondent's (“Owner”) property, to wit, Erf 7 […] , E[…]
3
Township (“the Property”). The second respondent (“the City”) was ordered to provide
the Occupiers with Temporary Emergency Accommodation (“TEA or the
Accommodation”). The eviction order was varied several times to give the City
additional time to arrange the TEA. The latest variation extended the deadline to provide
the accommodation until 31 March 2026, with eviction scheduled for 1 April 2026. The
City was also required to notify the Occupiers on or before 10 March 2026 of the
premises where the relevant Occupiers will be relocated.
[4] The City failed to provide the update on 11 March 2026 as ordered, and the
Occupiers then instituted these proceedings on an urgent basis seeking an order directing
the officials of the City to appear before the C ourt and explain the steps taken to provide
the accommodation for the Occupiers as ordered by the court in April 2025. The
application is predicated on section 4(12)1 of the Prevention of Unlawful Occupation and
Illegal Eviction Act 2 (“the PIE Act”). The Occupiers have, in addition, sought an order
varying the date of eviction to a later date whilst the officials of the City, inter alia, attend
court and explains the steps taken to comply with the court order.
[5] The first and second respondents oppose the application.
[6] At the same time, the Owner launched an urgent application for contempt against
the Mayor, Mr Dada Morero (“Mr Morero”) and the Municipal Manager, Mr Floyd Brink
(“Mr Brink”) for an order committing the m to prison for contempt . The Owner launched
the proceedings after the Occupiers ’ application and made a request to the senior Judge
that the two applications serve before the same judge. As such there are two applications
before me.
[7] The applicants contend that the second respondent has failed to comply with an
order of court to provide accommodation as directed by the Court and, to this end, the
officials should attend court to proffer an explanation for their failure to comply. To this
1 Section 4(12) of the PIE Act provides that , "any order for the eviction of an unlawful occupier or for the
demolition or removal of buildings or structures in terms of this section is subject to the conditions
deemed reasonable by the court, and the court may, on good cause shown, vary any condition for an
eviction order.”
2 19 of 1998.
4
end, the Occupiers specifically sought an order directing the Municipal Manager and the
Mayor to appear in person before the court.
[8] The Owner opposes the relief sought by the Occupiers on the basis that the Owner
is prejudiced by the prolonged unlawful occupation of the property, and that its end is not
on the horizon. In addition, t he City has failed to m eet the date of 10 March 2026, and
soon thereafter , its attorneys withdrew as attorneys of record. The said attorneys were
subsequently reinstated, and a supplementary affidavit was then filed. Moreover, the
Owner is prejudiced as it was ordered to provide security at the property during the
occupation. The City has not demonstrated any intention to comply with the order, and, in
its affidavit, it has explicitly stated that they are unable to give effect to it due to
insufficient funds, the Owner averred.
[9] In any case, the Owner's argument continued, the eviction order is not conditional
on the TEA being provided, and therefore the variation of order is not necessary.
However, it should also be noted that the TEA would only be given to eligible Occupiers ,
and it was previously mentioned by the City that some Occupiers would not qualify for
the accommodation. Accordingly, the court is inclined to dismiss the request to change
the order with costs, especially since the City has stated it would not provide the TEA
because it cannot afford to do so. Additionally, the application by the said Occupiers is
incompetent, as the City should have the party that requested the court for the variation.
[10] In support of its application for contempt of court against Executive Mayor, Dada
Morero, Municipal Manager, Floyd Brink, and Director of Human Settleme nt,
Johannesburg Development Agency, Oupa Nkoane , functionaries of the City, the Owner
contended that the issue of eviction and the refusal of the C ity to comply with order
became urgent and was launched on the backdrop of the Occupiers' urgent application for
became urgent and was launched on the backdrop of the Occupiers' urgent application for
the variation of the order of eviction.
[11] The City’s counsel submitted that the City is unable to provide the TEA due to a
lack of funding, and in the premises, they are not opposing the application for variation of
the eviction order instituted by the Occupiers. Due to its financial predicament, the City
5
intends to launch an application for rescission or variation of the portion of the order
directing it to provide the TEA.
[12] Regarding the urgent application for contempt, counsel for the City argued that
the application was extremely urgent and did not follow court rules or practice directives.
The Owner was aware that the City is a large organization and that its attorneys had
withdrawn as lawyers of record. The Owner’s claim that contempt of court applications is
always inherently urgent is unsubstantiated, and there is authority3 in this division, which
clearly states there is no such thing as an inherently urgent application. The argument that
the application was also set down on the urgent roll simply because the Occupiers filed
theirs is entirely untenable and unfounded according to South African jurisprudence.
[13] The counsel for the Occupiers argued in reply that it is not correct to say that the
City is suffering damages from being ordered to keep security personnel on the property,
as the court has explicitly directed that the City should bear the associated costs . In any
event, the Owner still has the option to institute a damages claim against the City if no
payment is effected in respect of the costs for security services on the propert y. When
asked about the reasons for not initiating contempt of court proceedings against the
officials of the City , the counsel replied that such proceedings have been instituted and
are pending, although they have been instituted in the normal roll . The Occupiers’
counsel found it difficult to dispel the impression created that their decision to pursue
contempt proceedings against the City in a normal court, despite the City 's continued
unfulfilled promised timelines, and the fact that the order has been altered multiple times
to accommodate and justify non- compliance, appears to condone the misconduct of the
City. This is reinforced by the submission on behalf of the City, which stated that it
City. This is reinforced by the submission on behalf of the City, which stated that it
supports the Occupiers’ application for a variation of the order.
[14] Counsel for the Occupiers further submitted that the City’s history of failing to
comply within the prescribed time allowed previously suggests that the court may need to
grant a longer extension to accommodate the City’s situation. When pressed to specify
3 Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (2023/067290) [2023]
ZAGPJHC 846 (1 August 2023).
6
what he considered a reasonable time, the counsel stated that, given the track record, six
months would be a reasonable period.
Issues for determination
[15] The issues for determination are whether the Occupiers ’ application for variation
and other relief is urgent and whether a case has been made for variation. Secondly , to
determine whether the application by the Owner met the requirements both for urgency
and the requirements for contempt of court.
Legal principles and discussion
[16] It is well established that an application for urgent relief must be underpinned by a
compelling argument explaining the reason for the urgency, and a litigant must
successfully demonstrate that no substantial redress could be obtained if the case
proceeds on the normal process. Furthermore, the urgency should not be self-created.
4
[17] Concerning the application for variation, the Occupiers instituted urgent
proceedings after realising that the City had failed to comply with the order requiring
them to notify the Occupiers of the TEA on 10 March 2026.
5 In the premises, there is no
evidence that the urgency was self -created. Also, I find that the application is indeed
urgent, having regard to the possibility of rampant homelessness if the eviction is carried
out without the City having provided TEA as ordered.
[18] Despite the previous points, it is troubling that the Occupiers continue to
repeatedly seek a variation of the order to extend the deadline for the City to provide
TEA; therefore, their contempt of court application should have been filed on an urgent
basis. In response, the City has taken a passive stance and, despite commitments to
comply with the court order, has not taken any steps to seek an extension for its failure to
comply, apart from its counsel stating that efforts are underway to file an application for
the rescission or variation of the order.
4 See East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite ( Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011)..
5 The order provides that “the second respondent shall notify applicants and the first responde nt on or
before 10 March 2026 of the premises to where the relevant applicant will be relocated”.
7
[19] The Occupiers' request for a six -month extension for the City to comply with a
court order, as the previous shorter extension did not yield any results6 is not warranted in
the face of the City having stated that they would not comply with the order due to
paucity of funds. The said request by the Occupiers unsettlingly appears to advance the
City’s course. The argument relating to the paucity of funding was found to be
unsustainable by the Constitutional Court in Charnell ,7 where the court , inter alia, held
that “The right to access to adequate housing, especially in emergency situations, is a
fundamental human right that demands immediate attention . This court cannot ignore t he
City’s failure to progressively realise its constitutional obligatio n in terms of section 26
relative to emergency housing.”
[20] The indeterminate extension of the date for the City to provide TEA and the
possible homelessness and its implications on the right to housing as envisaged in section
26 of the Constitution should not create an impression that the rights of property Owner s
contemplated in terms of s ection 25 of the Constitution are bound to recede into the
background.8 Nonetheless, it is my view that a proper case had been made for the
variation of the order , granting the City more time to comply with the court order , or
alternatively to explain to the court their inability to comply . Even though some
explanation was made in the City’s affidavit, the deponent to the affidavit suggested that
further clarity needs to be offered.9
[21] Regarding the application for contempt filed by the Owner , the City’s counsel
correctly argued that there are no applications that should be considered inherently
urgent. The claim that the contempt of court was initiated simply because the Occupiers
requested a variation is un sustainable. It appears to have been triggered by the City's
requested a variation is un sustainable. It appears to have been triggered by the City's
6 The court should not find itself indirectly providing reinforcement to litigants for failure to respect court
orders.
7 Charnell Commando and Others v City of Cape Town and Another (CCT 49/23) [2024] ZACC 27; 2025
(3) BCLR 243(CC); 2025 (3) SA 1 (CC) (20 December 2024) at para 84 ; City of Johannesburg
Metropolitan Municipality and Other v Occupiers [of portion 9 […] of the farm Randjesfontein No 4
[… ]] and Others (636/23) [2025] ZASCA 47; [2025] 3 All SA 1 (SCA).
8 See ABSA Bank Bpk v Murray and Another (8946/02) [2003] ZAWCHC 48; 2004 (1) BCLR 10 (C); 2004
(2) SA 15 (C) (18 September 2003).
9 The City requested an opportunity to provide further explanation if so required. See para 8.1. of the
answering affidavit at 036 -11 and para 8.2 and 9.1 of the City’s supplementary affidavit at 037- 9. The
City further stated that “I would have loved to provide to the honourable court a full and a comprehensive
report, one which will give a full and a clear picture of the problem that we are seating with. Time did not
allow”.
8
failure to comply with an order requiring compliance by 10 March 2026. The Owner
served the papers on 13 March 2026 for the matter scheduled for 17 March 2026. There is
no explanation why the City were given those extremely shortened dies , and as a result,
the urgency is construed as self-created. The directives require a litigant to set the matter
for Tuesday, with all pleadings filed on a Thursday before. When necessary, a party may
deviate from this requirement with persuasive reasons and give the other party two hours'
notice. The Owner has not provided a convincing reason for non -compliance with the
directives.10
[22] In support of the application, contending that no substantial redress would be
obtained in due course , the Owner stated that the court directed that security services
should be maintained at the property. This was found to be incorrect as the order to retain
security services was coupled with a proviso that the costs should be covered by the City.
Conclusion.
[23] I therefore find that the City officials should have the opportunity to appear before
the court and explain their failure to comply with the order to provide accommodation to
the Occupiers. At the same time, the eviction order should be varied and extended for one
month. It is shortened because the City has indicated it would not comply with the order
anyway, and the legal representatives stated that their intention is to seek rescission or
variation of the order requiring the City to provide accommodation.
[24] I also find that the application for contempt of court, while it could have merit,
was issued with extremely short deadlines without valid reasons, and therefore the
urgency as set out is unwarranted and the application should be struck off the urgent roll.
Costs
[25] The costs will follow the results.
Order
[26] As a result, I made an order as set in paragraph 1 above.
10 See South African Airways SOC v BDFM Publishers (Pty) Ltd and Others (2015/33205) [2015]
10 See South African Airways SOC v BDFM Publishers (Pty) Ltd and Others (2015/33205) [2015]
ZAGPJHC 293; [2016] 1 All SA 860 (GJ); 2016 (2) SA 561 (GJ) (17 December 2015) .
9
__________________
M V Noko
Judge of the High Court
Date of hearing: 17 February 2026
Date of judgment: 9 April 2026.
Appearances:
Application for Variation
For the Applicants: Nkosi, instructed by SERI.
For the first Respondent: S Redman SC with A Saldulker,
instructed by Le Roux Vivier
Attorneys.
For the second respondent: Ralikhuvana N, instructed by Prince
Mudau and Associates.
Application for contempt of court
For the applicant: S Redman SC with A Saldulker,
instructed by Le Roux Vivier
Attorneys.
For the second to the fifth Respondent: Ralikhuvana N, instructed by Prince
Mudau and Associates.