IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025 -198995
DATE: 18.02.2026
In the matter between
SHIVDASANI , ANISH ANIL Applicant
and
MENSAH , THOMAS MATHEW First Respondent
REBRANDING AFRICA (PTY ) LTD Second Respondent
CITY OF JOHANNESBURG Third Respondent
J U D G M E N T
SUMMARY : Land – Unlawful occupation – Eviction – Urgent
application – Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act, 19 of 1998 , s 5(1)(a) –
“Real and imminent danger of substantial injury or damage
to any person or property ” must be physical – Infringement
of incorporeal right insufficient, even if real and imminent ,
and even if consequences potentially substantial.
MOULTRIE J: The applicant applies under section 5 of the
Prevention of Illegal Eviction From and Unlawful Occupation
of Land Act , 19 of 1998 for the urgent interim eviction of the
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES : YES
(3) REVISED
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SIGNATURE
DATE: .............................
first and second respondents from premises located in
Sandton subsequent to the termination of a lease
agreement .
It is common cause that the first respondent occupies
the property together with his family as a home and that , in
order to secure an eviction from the property , the applicant
must do so in terms of this legislation .
An applicant for an urgent interim eviction order
under section 5 must satisfy the Court of three
requirements :
a) Firs t, that there is a real and imminent danger of
substantial injury or damage to any person or
property if the unlawful occupier is not forthwith
evicted from the land ;
b) Second ly, that t he likely hardship to the owner or any
other affected person if an order for eviction is not
granted exceeds the likely hardship to the unlawful
occupier against him if the order is sought if an order
for an eviction is granted ; and
c) Thirdly, t hat t here is no other effective remedy
available .
The Constitutional Court has observed that these
requirements for an urgent interim eviction order are
“stringent” (cf. Residents of Joe Slovo Community, WC v
Thubelisha Homes (Centre on Housing Rights &
Evictions, Amici Curiae) [2009] ZACC 16 ; 2010 (3) SA
454 ; 2009 (9) BCLR 847 (CC) para 90 ) and , it appears to
me, they are imposed over and above any other
requirements that may exist at common law or the Rules of
Court, either for urgency or for an eviction .
In this instance, I am of the view that the applicant
has not established the requirement in section 5 (1)( a),
namely that there is a “real and imminent danger of
substantial injury or damage to any person or property if the
unlawful occupier is not forthwith evicted from the land ”.
The substantial injury or damage that it is alleged will
be suffered is the “damage ” that will be suffered by the
applicant as a result of the loss of the benefits of a lease
agreement that the applicant has concluded with a third
party as a potential le ssee, which lease is subject to the
condition that the premises are available for the third party
to occupy on the 28 th of this month , failing which the lease
will not continue . I assume , it is also impliedly contended
that there is no likelihood that the lease will be replaced by
any other lease .
Now , when one considers section 5 in its proper
context of the PIE Act as a whole , it is apparent that it gives
rise to the possibility of what is sometimes referred to as an
“interim eviction ” which is , it seems to me , a somewhat
strange concept , in the sense that an eviction when granted
usually has a final effect – at least in the sense in which
that concept is mostly employed in our law .
And therefore it seems to me that when reading the
words, “substantial injury or damage to any person or
property” , one must interpret them in a way that is
consistent with the purpose of section 5, which is evidently
different to the purpose of section 4, which is to provide the
procedures for eviction of unlawful occupiers on a
permanent , and not merely “interim” basis .
The provision in the PIE Act for relief which is in
effect “final ” (in the sense commonly understood in the law )
but which is only granted “ pending the outcome of
proceedings for a final order ”, contemplates that any
“interim ” eviction order would have to be granted in
circumstances where the possibility remains that the Court
hearing the final proceedings might reinstate the occupier
to the property , despite such occupation remaining unlawful .
Given that context , it seems to me that the only
meaningful interpretation of section 5 (1)(a) is that the
reference to a “danger of substantial injury or damage ” must
be to the danger of substantial physical injury or damage to
property , or to a person , and not to the danger of ‘damage ’
in the form of the infringement of a legal right, even if that
danger is “real and imminent” and even if the consequences
of the infringement would be “substantial” . Thus, while I
accept that (i) the right of the owner to use the property ,
and especially to lease it, could itself be regarded as
“property” in the broader sense of an incorporeal right; (ii)
that the loss or inability to effectively exercise such a right
might well constitute ‘injury ’ or ‘damag e’ in other legal
context s; and also (iii) that such ‘injury’ or ‘damage’ might
potentially be considered to be “substantial” in those
contexts , it seems to me that such loss or inability could not
itself constitute the kind of “injury ” or “damage ” that is
contemplated in section 5 (1)(a).
This conclusion appears to me to be consonant with
other judgments that have considered the question in detail
(e.g Telkom SA (SOC) Ltd v Moeletsi and Others [2023 ]
ZAGPJHC 590 (GJ) ; Eastern Cape Development
Corporation v Occupiers of Erf 117 and Erf 118 Umtata,
Windsor Hotel, 36 Sutherland Street, Mthatha and Others
[2024] ZAECMKHC 57 para 23ff ; White Wall Trading (CC)
and Another v Biyela and Others [2024] ZAGPJHC 54
paras 12 - 15 and City of Johannesburg v Unknown
Individuals and Others [2025] ZAGPJHC 781 (GJ) paras
14 – 18 ).
Although ongoing or potential non -physical “damage”
has evidently been considered to be of relevan ce in a
number of cases dealing with section 5 of the PIE Act (cf.
Groengras Eiendomme (Pty) Ltd v Elandsfontein
Unlawful Occupants 2002 (1) SA 125 (T); Shanike Inv No
85 (Pty) Ltd v Ndima 2015 (2) SA 610 (GJ) ; Tshwane
North Technical and Vocational Education and Training
College v Madisha 2019 JDR 0065 (GP) ; and Clarendon
Heights Body Corporate and Others v Dumakude and
Others [2025] ZAGPJHC 779 (GJ) ), it seems that in each of
these cases the court concluded that there was also a real
and imminent danger of substantial physical injury or
damage. However, t o the extent that any of these courts
held that section 5 could apply in the absence of a proven
imminent danger of physical injury or damage, I respectfully
consider any such dictum to be clearly wrong , with the
result that I am not bound to follow it .
The applicant in the current case was unable to show
any real and imminent danger of substantial injury or
damage in the sense that that phrase is in my view properly
to be understood under section 5 of the PIE Act . The
application therefore falls to be dismissed .
The question of the specific relief arises : is it only the
prayer seeking urgent enrolment of the matter, or the whole
application , that should be dismissed? It seems to me that
I have no option but to dismiss the entire application . The
reason for that is that the only substantive relief that was
sought in terms of the amended notice of motion delivered
last week (on the 10 th of February) is the relief under
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section 5 , which I find to be unsustainable . Assuming it is
legally possible to obtain an urgent eviction order under
section 4 of the PIE Act (cf. 4Eleven Properties (Pty) Ltd v
Makhosi and Others [2024] ZAGPJHC 721 para 34 but
contra : Telkom v Moeletsi (above) paras 7 - 9), no such
relief was sought in the amended notice of motion . In the
circumstances , the application falls to be dismissed .
As to costs , I do not consider that the matter lacked
complexity . However, I do not believe that a costs order on
an extensive scale would be justified in view of the lack of
assistance given to the Court by the respondent ’s
representative .
In the circumstances I grant the following order .
1. The application is dismissed .
2. The applicant is ordered to pay the first and
second respondent's costs including the costs of
counsel on scale “A”.
… … … … … … … … … … . .
MOULTRIE J
JUDGE OF THE HIGH COURT
Date of hearing: 18 February 2026
Ex tempore judgment: 18 February 2026
Judgment revised: 17 May 2026
For the applicant: A Prinsloo instructed by GMI Attorneys
For the respondent: D Besong of Besong Attorneys