SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025-056036
In the matter between:
COMMUNICARE NPC Applicant
and
E[...] A[...] K[...] First Respondent
ALL OCCUPANTS OF THE PROPERTY Second Respondent
SITUATED AT 2[...] G[...] FLATS,
8[...]-9[...] J[...] STREET, BROOKLYN,
WESTERN CAPE PROVINCE
CITY OF CAPE TOWN MUNICIPALITY Third Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 18 May 2026
Delivered: Electronically on 19 May 2026
Summary: Eviction – lease agreement validly cancelled – willingness to settle
arrears does not justify continued occupation – possibility of homelessness
considered – City of Cape Town did not meet obligation imposed by court order –
eviction nevertheless just and equitable
ORDER
1. The first and second Respondents shall vacate the property situated at
2[...] G[...] Flats, 8[...]-9[...] J[...] Street, Brooklyn, Western Cape Province
(“the property”) on or before 24h00 on 30 November 2026.
2. The applicant shall, as soon as possible, but in any event not later than
sixty [60] days before the date referred to in paragraph 1 above, cause a
copy of this order to be served as follows by the sheriff:
2.1 by serving a copy thereof on the first and second respondents; or
2.2 by leaving a copy thereof with the person apparently in charge of
the property at the time, being a person not less than sixteen (16)
years of age; or
2.3 if service in the manners described above is not reasonably
possible, by affixing a copy of the order to the front door of the
property; and
2.4 by serving a copy thereof on the Third Respondent at its offices;
and
2.5 by serving a copy thereof on Nolwandle Gqiba and Carl Joshua
Pophaim in a manner provided for in Uniform Rule 4.
3. Should either of the first and/or second respondents fail to vacate the
property on the date referred to in paragraph 1 above, the sheriff or their
deputy is directed and authorised to:
3.1 evict all those persons on the property;
3.2 remove from the property the personal effects and possessions of
all persons so evicted and/or, if necessary, to store the said
personal effects and belongings;
3.3 enlist the assistance of members of the South African Police
Services in the execution of the steps described in paragraphs 3.1
and 3.2 above, insofar as it may be necessary;
3.4 place a written notice on the principal door of the property
specifying that the said personal effects and belongings are being
stored by them and that same may be reclaimed if so stored; and
3.5 release the personal effects and belongings of all persons, if so
stored by them, upon and against payment of the costs of such
storage.
4. It is declared that , should the first and second respondents fail to secure
alternative accommodation, the third respondent is obliged to provide the
first and second respondents with temporary emergency accommodation
by no later than two weeks prior to the date referred to in paragraph 1
above.
5. The third respondent is directed, by no later than 30 September 2026 , to
deliver a report to this Court, confirmed on affidavit by an appropriate
official employed by the third respondent, detailing:
5.1 the accommodation it will make available to the first and second
respondents and when such accommodation will be made
available; alternatively
5.2 the reasons why it cannot make such accommodation available,
in which case it will inform the Court of the steps it will take to
render assistance to the first and second respondents in order to
prevent them from becoming homeless.
6. Should the third respondent fail to comply with the provisions of
paragraphs 4 and 5 above, the first and second respondents are granted
leave to approach this Court on the same papers, supplemented as
necessary, for an order in the following terms:
6.1 That the Executive Director of Human Settlements, Ms.
Nolwandle Gqiba, be joined to these proceedings in her personal
capacity as the Fourth Respondent.
6.2 That the Mayoral Committee Member for Human Settlement, Mr.
Carl Joshua Pophaim, be joined to these proceedings in his
personal capacity as the Fifth Respondent.
6.3 That the fourth and fifth respondents be declared to be in
contempt of this Order, and consequent upon such declaration:
6.3.1 that a fine, such as is deemed appropriate by the Court,
be imposed on the fourth and fifth respondents; and/or
6.3.2 that a period of imprisonment, such as is deemed
appropriate by the Court, be imposed on the fourth and
fifth respondents, suspended on conditions deemed
appropriate by the Court; and
6.3.3 that the fourth and fifth respondents shall pay the costs
of the application in their personal capacities on the
scale as between attorney and client; alternatively that
the third, fourth and fifth Respondents shall pay the
costs of the application on the scale as between
attorney and client, jointly and severally, the one paying
the other to be absolved.
7. The first and second respondents shall pay the costs of this application,
jointly and severally, the one paying the other to be absolved (Scale A
shall apply).
JUDGMENT
Anderssen AJ:
Introduction
[1] The applicant (“Communicare”) seeks the eviction from premises owned
by them of the first and second respondents. The first respondent (“ Mr
K[...]”) deposed to an affidavit in which he explains that he resides at the
premises with his wife, their child and his nephew. He admitted to being in
arrears due to an in ability to pay his rent as a result of events in the film
industry, in which he is employed, during 2023. He recorded that he does
not want to move and wants to pay the arrears. Communicare is a non -
profit company and the owner of the building in which is situated the
apartment that Mr K[...] and his family are currently occupying. The
application for eviction is brought in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act (“PIE”).1
The facts
[2] Mr K[...] entered into a written lease agreement with Communicare on 27
September 2022. The monthly rental was R3 ,500 and he would , in
addition, be liable for water, electricity and other utility charges. Any failure
to pay the amounts due timeously or at all , would constitute a material
breach of the terms of the lease and would entitle Communicare to cancel
the lease. In the event of a breach and subsequent legal action, Mr K[...]
will be liable for the costs on an attorney and own client basis. The lease
was for an initial period of 24 months commencing on 30 September 2022
and terminating on 29 September 2024. Mr K[...] paid the deposit due and
took occupation of the property on 30 September 2022.
[3] Mr K[...] did not pay the rental and utilities timeously, or even monthly, for
the period of the lease. The tenant/debtor transaction record shows
intermittent payments with arrears steadily accumulating so that by end
February 2025 the arrears amounted to R31,558.73. Communicare did not
renew the lease after its expiry on 29 September 2024. On 16 January
2025 Communicare informed Mr K[...] that the lease has been cancelled
due to his non -compliance with the terms of the lease. As he continued to
fail to pay the arrears in full and failed to vacate the premises, the
1 Act 19 of 1998.
application for eviction was launched. Communicare complied with the
provisions of PIE in respect of notification.
[4] The third respondent, being the City of Cape Town (“ the City ”),
investigated Mr K[...]’s personal circumstances and filed an affidavit. Mr
K[...] completed the Personal Circumstances Questionnaire. According to
the city official’s affidavit Mr K[...] does not qualify for emergency
accommodation as he receives a monthly income of approximately
R14,000.00. He indicated that his monthly household expenses amount to
R9,750.00 and he thus has R4,250.00 available each month to pay rental.
He does, however, qualify for the Social Housing Programme. There are
two minors living at the apartment.
The legal principles
[5] In terms of section 4(7) of PIE an eviction order may only be granted if it is
just and equitable to do so, after the court has had regard to all the
relevant circumstances, including the availability of land for the relocation
of the occupiers and the rights and needs of the elderly, children, disabled
persons and households headed by women. If the requirements of s ection
4 are satisfied and no valid defence to an eviction order has been raised
the court ‘must’, in terms of s ection 4(8), grant an eviction order. When
granting such an order the court must, in terms of s ection 4(8)(a) of PIE,
determine a just and equitable date on which the unlawful occupier or
occupiers must vacate the premises. The court is empowered in terms of
section 4(12) to attach reasonable conditions to an eviction order.2
[6] The Changing Tides -case3 emphasises that the outcome of an eviction
application must be just and equitable to all parties, which includes the
rights of the occupier(s) of the property in question as well as the rights of
property owners:
[12] … The first enquiry is that under s 4(7), the court must determine whether it
is just and equitable to order eviction having considered all relevant
circumstances. Among those circumstances the availability of alternative land and
the rights and needs of people falling in specific vulnerable groups are singled out
for consideration. Under s 4(8) it is obliged to order an eviction ‘if the …
requirements of the section have been complied with’ and no valid defence is
advanced to an eviction order. The provision that no valid defence has been
raised refers to a defence that would entitle the occupier to remain in occupation
as against the owner of the property, such as the existence of a valid lease.
Compliance with the requirements of s 4 refers to both the service formalities and
the conclusion under s 4(7) that an eviction order would be just and equitable.
[13] Two factors that have loomed large in our case law on evictions, both under
PIE and otherwise, are the risk of homelessness and the availability of alternative
land or accommodation.
[16] The issue of the availability of alternative accommodation is more difficult in
the context of an eviction at the instance of an owner of property that is not an
organ of state. There another constitutionally protected right, the right to
property, comes into play. As pointed out in this court in Ndlovu v Ngcobo: Bekker
& another v Jika the effect of PIE is not to expropriate private property. What it
does is delay or suspend the exercise of the owner’s rights until a determination
has been made whether an eviction would be just and equitable and under what
has been made whether an eviction would be just and equitable and under what
conditions. The Constitutional Court endorsed that approach in Blue Moonlight.
[18] The position is otherwise when the party seeking the eviction is a private
person or entity bearing no constitutional obligation to provide housing. The
Constitutional Court has said that private entities are not obliged to provide free
housing for other members of the community indefinitely, but their rights of
occupation may be restricted, and they can be expected to submit to some delay
in exercising, or some suspension of, their right to possession of their property in
order to accommodate the immediate needs of the occupiers. That approach
makes it difficult to see on what basis the availability of alternative land or
accommodation bears on the question whether an eviction order should be
granted, as opposed to the date of eviction and the conditions attaching to such
an order. One can readily appreciate that the date of eviction may be more
immediate if alternative accommodation is available, either because the
circumstances of the occupiers are such that they can arrange such
accommodation themselves, or because the local authority has in place
2 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116;
2012 (6) SA 294 (SCA); 2012 (11) BCLR 1206 (SCA); [2013] 1 All SA 8 (SCA) (14 September
2012).
3 Supra at [12], [13], [16] and [18].
appropriate emergency or alternative accommodation. Conversely, justice and
equity may require the date of implementation of an eviction order to be delayed if
alternative accommodation is not immediately available…
[7] In Ndlovu v Ngcobo ,4 Harms JA made the point that ownership and the
lack of any lawful reason to be in occupation are principal factors in the
exercise of the court’s discretion:
[19] Another material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is entitled to approach the
court on the basis of ownership and the respondent’s unlawful occupation. Unless
the occupier opposes and discloses circumstances relevant to the eviction order,
the owner, in principle, will be entitled to an order for eviction. Relevant
circumstances are nearly without fail facts within the exclusive knowledge of the
occupier and it cannot be expected of an owner to negative in advance facts not
known to him and not in issue between the parties. Whether the ultimate onus will
be on the owner or the occupier we need not now decide.
[8] The Supreme Court of Appeal 5 has pointed out that, where a private
landowner seeks the eviction , the availability of alternative land or
accommodation assumes greater importance in the second enquiry,
namely, determining what is a just and equitable date for eviction. It is here
that the constitutional obligations of the appropriate arm of government – in
our cities this is inevitably the municipality – come into focus and assume
their greatest importance. The reason is that, even if it is just and equitable
to grant an eviction order , this is not the end of the enquiry, because any
eviction order must operate from a date fixed by the court and that date
must be one that is just and equitable.
[9] In Grootboom,6 the Constitutional Court rul ed that the state has a
constitutional obligation to provide access to adequate housing:
constitutional obligation to provide access to adequate housing:
4 Ndlovu v Ngcobo, Bekker & another v Jika (1) (240/2001, 136/2002) [2002] ZASCA 87;
[2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA) (30 August 2002) at para [17] and further as
quoted above.
5 Changing Tides supra at para [20].
6 Government of the Republic of South Africa and Others v Grootboom 2001 (1) SA 46 (CC).
All levels of government must ensure that the housing program is reasonably and
appropriately implemented in the light of all the provisions in the Constitution. All
implementation mechanisms and all State action in relation to housing falls to be
assessed against the requirements of s 26 of the Constitution. Every step at
every level of government must be consistent with the constitutional obligation to
take reasonable measures to provide adequate housing.
Section 26, read in the context of the Bill of Rights as a whole, must mean
that the occupiers of land has a right to reasonable action by the State in
all circumstances and with particular regard to human dignity. This is the
backdrop against which the conduct of the State must be seen.7
[10] Although the Constitutional Court in the Olivia Road -case8 dealt with
illegal occupation of land owned by the State, the following dictum is
nevertheless relevant (particularly in light of th at court’s recognition that
every step taken by the State in relation to a potentially homeless person
must also be reasonable if it is to comply with section 26(2)9):
[14] Engagement is a two -way process in which the City and those about to
become homeless would talk to each other meaningfully in order to achieve
certain objectives. There is no closed list of the objectives of engagement. Some
of the objectives of engagement in the context of a city wishing to evict people
who might be rendered homeless consequent upon the eviction would be to
determine—
(a) what the consequences of the eviction might be;
(b) whether the city could help in alleviating those dire consequences;
(c) whether it was possible to render the buildings concerned relatively safe and
conducive to health for an interim period;
(d) whether the city had any obligations to the occupiers in the prevailing
circumstances; and
(e) when and how the city could or would fulfil these obligations.
[15] Engagement has the potential to contribute towards the resolution of
[15] Engagement has the potential to contribute towards the resolution of
disputes and to increased understanding and sympathetic care if both sides are
7 At paras 82-83.
8 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475
(CC) (19 February 2008).
9 At para [17].
willing to participate in the process. People about to be evicted may be so
vulnerable that they may not be able to understand the importance of
engagement and may refuse to take part in the process. If this happens, a
municipality cannot walk away without more. It must make reasonable efforts to
engage and it is only if these reasonable efforts fail that a municipality may
proceed without appropriate engagement. It is precisely to ensure that a city is
able to engage meaningfully with poor, vulnerable or illiterate people that the
engagement process should preferably be managed by careful and sensitive
people on its side.
[11] The importance of engagement between the City and Mr K[...] is
underscored in the Olivia Road matter. The Constitutional Court set the
eviction order aside in Olivia Road , on the grounds of the lack of
engagement between the municipality and the occupiers, not its
appropriateness.
The order made in third division
[12] This application was postponed from the third to the fourth division on 24
July 2025. When postponing the matter, the court directed that:
8. The third respondent is ordered to assist this Court in reaching a just and
equitable decision by delivering a report, which report shall be made available
to the applicant and the first to respondents on or before 13 October 2025
dealing with:
5.1 the individual personal circumstances of the first and second
respondents, including but not limited to:
5.1.1 the demographic composition of the respondents’ household;
5.1.2 whether there are elderly or disabled persons living at the property;
5.1.3 whether there are children at the property and their current age(s);
5.1.4 whether any of the above persons have special needs, whether it be
physical, psychological or otherwise, which the court may find relevant;
and
5.1.5 whether there are woman headed households amongst the occupiers;
5.2 information regarding the property situated at 2[...] G[...] Flats, 8 [...]–
5.2 information regarding the property situated at 2[...] G[...] Flats, 8 [...]–
9[...] J[...] Street, Brooklyn, Western Cape Province including whether
it is considered a slum, posing health and/or safety risks;
5.3 whether the eviction of the respondents will likely result in
homelessness;
5.4 the implications of the provision of alternative land or accommodation on
the property owner;
5.5 details of all engagement with the applicant, the respondents and
whether there exists any scope for mediation;
5.6 the infrastructure in the proposed settlement area, including but not
limited to, the availability and location of the public transport, medical
facilities, adequate schools and further social services; and
5.7 the impact relocation to the proposed settlement will have on the first
and second respondents’ disposable income and transport costs
[13] The Third Respondent’s Report deposed to by an employee of the City
(“the City’s report ”) does not comply with the clear directive given by this
court. It simply records that Mr K[...] does not qualify for emergency
accommodation due to his income, that the City faces a challenge to
provide more emergency accommodation as there is a shortage of land . It
mentions in passing that two of the occupants are minors. It records Mr
K[...]’s income and household expenses and his contention that an eviction
will leave him homeless. The report simply references social housing
options (with telephone numbers and email addresses).
[14] The City’s report is silent on the ages of the children, whether Mr K[...]’s
wife is earning an income, whether the family qualifies for social grants,
whether they previously received a government housing subsidy or
benefited from an assistance programme (which, according to the City’s
report would disqualify them from the social housing program). The City’s
report is silent on the demographic composition of the respondents’
household, does not mention that Mr K[...] is a contract worker who spends
months away from the household – thereby making his wife the head of
the household in absentia – or whether anyone has special needs. The
instructions at paragraphs 5.2 to 5.7 of the order were similarly ignored.
[15] The City’s failure to comply with the court’s directive , when the stated aim
was to assist the court in “ reaching a just and equitable decision ”, is of
particular concern. Section 26 of the Constitution guarantees Mr K[...] and
the other occupants under him the right to access adequate housing, and
obliges the State (and all levels of government) to act progressively within
available resources to achieve this goal. Furthermore, it strictly prohibits
unlawful, arbitrary evictions, requiring proper judicial oversight before any
home is demolished or a person is removed . The Grootboom judgment
established that t he government must have comprehensive housing
programs and that e victions that lead to homelessness are generally
unconstitutional. The Olivia Road -case established the importance of
engagement between the City and Mr K[...]. The City’s report clearly does
not do justice to this obligation of engagement. This is of particular
relevance in a matter such as this one where the current occupants are
unrepresented and have limited financial means.
Discussion
[16] Communicare is a private non -profit organisation under no obligation to
provide housing to members of the public . Although Mr K[...] made
intermittent payments in respect of his occupation of the property, these
payments were not made timeously and were not sufficient to bring the
arrears up -to-date. His non -compliance with the terms of the lease
agreement justified its cancellation by Communicare. In any event, the
term of the lease expired on 29 September 2024 and the lease was not
renewed. It is common cause on the papers that Mr K[...] did not comply
with his obligations in terms of the lease agreement. He admitted that he
was unable to pay his rent and that arrears had accumulated. His defence
to the eviction application is that he does not “want to move. I want to finish
my balance. I am willing to stay at house if we can find an arrangement of
me paying the money.”
[17] The explanation for Mr K[...]’s non -compliance – being events that took
place in 2023 in the film industry – does not address why the tenant/debtor
transaction record showed one payment of R7,660 .00 (the admin fee,
deposit and first month’s rental) on 19 October 2022 and only one payment
of R3,500.00 on 6 December 2022 . Mr K[...] thus fell into arrears very
shortly after he entered into the lease agreement . The tenant/debtor
transaction record shows intermittent payments in 2023 totalling
R25,500.00, with the arrears having accumulated to R21,542.15 by the
end of the calendar year. Although Mr K[...] clearly made efforts at times to
pay the arrears, by paying more than the monthly rental owed, his
payments in 2024 remained intermittent and insufficient, which meant that
the arrears increased from R21,542.15 on 31 December 2023 to
R30,306.96 a year later. The tenant/debtor transaction record thus
indicates a continued increase in the arrears . I was provided with an
updated transaction record at the hearing that indicates that Mr K[...] was
able to make more regular payments during 2025. He was unable,
however, to catch up on the arrears and, as at 8 May 2026, his arrears
were R34,216.51 (the increase in arrears seems to be attributable to an
increase in rental from R3,500 to R3,675 per month whilst the debit order
was fixed at R3,500).
[18] As it is common cause between the parties that Mr K[...] is in arrears and
has not met his obligations in terms of the lease agreement, Communicare
has established that a material term of the lease agreement has been
breached. Even if this was not so, the period of the lease agreement has
expired. Mr K[...] has not disputed that he remains in arrears or that the
lease agreement has been cancelled validly. A willingness to settle the
arrears does not assist him:
[18.1] The terms of the lease agreement has expired and has not been
renewed.
[18.2] Although the events that caused Mr K[...] not to be able to secure
regular income in 2023 are now behind us, he has not or has not
been able to reduce the arrears.
[18.3] The Personal Circumstances Questionnaire indicates that he only
has about R4,250 available per month to pay for accommodation
(rental and utilities).
[18.4] Mr K[...] informed me at the hearing that he has no fixed
employment but secures contracts from time to time. These
contracts often take him away from home – such as the
forthcoming one, commencing in July 2026. He will be spending
two months in Durban and another month in Polekwane.
[19] Under s ection 4(8) of PIE the court is obliged to order an eviction if the
requirements of the section have been complied with and no valid defence
is advanced to an eviction order. Mr K[...] has not advanced a defence that
would entitle him to remain in occupation as against the owner of the
property, such as the existence of a valid lease . Communicare is not
obliged to provide free housing for Mr K[...] and his family indefinitely. PIE
has already restricted their rights as property owners because they have
been expected to submit to some delay in exercising their right to
possession of their property. I am thus obliged to order an eviction.
[20] The only question that remains is the date for the eviction . The date must
be ‘just and equitable’ in all the circumstances. Ms Oosthuizen has
conceded that the date of the eviction is partly dependent on whether
alternative accommodation is available. The date of eviction may be more
immediate if alternative accommodation is available, either because the
circumstances of the occupiers are such that they can arrange such
accommodation themselves, or because the local authority has in place
appropriate emergency or alternative accommodation. This is why the
report requested from the City in the postponement order is of such
importance to a court in determining what is just and equitable in the
circumstances.
[21] In the absence of a report from the City containing relevant information, I
am obliged to follow a more conservative approach in respect of the
eviction date. I need to be sure that the date is ‘just and equitable’ and that
the City will be able to provide alternate housing. I have considered the
following factors in this regard:
[21.1] Communicare initially sought an eviction by 31 August 2026 but I
was informed that they would agree to an eviction by end
September 2026.
[21.2] Mr K[...] is departing to Durban, whereafter he will go to
Polekwane, in mid-July 2026 and will be away for three months in
terms of a new contract, returning on 22 November 2026.
[21.3] Communicare is collecting rental from Mr K[...]’s account each
month in terms of a debit order signed by him – if the debit order is
dishonoured, Mr K[...] has been making bank deposits within a few
days to secure the rental.
[21.4] Although the City has, in the City’s report, listed alternate
accommodation available under the social housing scheme, they
have not indicated whether any housing is actually available under
these programs. They have also not provided any indication of
where these social housing institutions are situated or what the
criteria may be for assessing whether Mr K[...] will qualify for a unit
within the respective complexes.
[21.5] Mr K[...] informed me at the hearing that his nephew is in high
school and that his own child with his wife is at a cr èche. Both the
school and the crèche are situated in close proximity to their
current accommodation.
[21.6] The City’s report has not given any indication of what public
transportation options are available for residents at the different
complexes.
[21.7] According to the City’s report Mr K[...] does not qualify for
emergency accommodation.
[21.8] It is likely that Mr K[...] and his family will have to transport
household goods along with their personal belongings. I have not
been told how old the nephew in high school may be. Certainly it
will be difficult for Mr K[...]’s wife to be solely responsible for the
actual move from one residence to another when she has a young
child (still in crèche) to care for. Mr K[...]’s personal involvement
will clearly be necessary.
[22] I am satisfied that , in all the circumstances, an appropriate date for the
eviction would be 30 November 2026.
[23] Costs must follow the cause . Communicare has not sought a cost award
on an attorney client scale despite their entitlement to do so in t erms of the
lease agreement.
[24] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv A Oosthuizen
Instructed by: BBM Attorneys
For the first and second respondents: Mr K[...] (in person)