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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 LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023-124043
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED :NO
DATE: 29 APRIL 2026
In the matter between:
MATSIMELA DOUGLAS MPHAHLELE First Applicant
MARIA MPHAHLELE Second Applicant
and
SINAH MAPULE DIKGALE First Respondent
CITY OF JOHANNESBURG MUNICIPALITY Second Respondent
JUDGMENT
MAUNATLALA AJ:
[1] This is an application for the eviction of the First Respondent, Ms Sinah Mapule
Dikgale, and all persons claiming any right to occupation under her, from the property
situated at No: 8[…] /Erf 8[…] , P[…] G[…] Extension 11, Soweto (“the property”). The
Applicants are the registered owners of the property. The Second Respondent is the
City of Johannesburg Metropolitan Municipality (“the Municipality”), which has filed a
report on the availability of temporary emergency accommodation.
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[2] The First Respondent opposes the eviction. The matter turns on the proper
interpretation and application of section 4(7) of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), read with section 26(3) of the
Constitution of the Republic of South Africa, 1996. The central question is whether it is
just and equitable to evict the First Respondent, considering all relevant
circumstances.
Background facts
[3] The facts are largely common cause or are clearly established on the papers.
[4] The First Respondent and her late husband purchased the property in 1998 by way
of a mortgage bond from NBS Boland Bank. She defaulted on repayments, and on 18
January 1999 the Bank obtained default judgment against her.
[5] The property was subsequently purchased by Ms Letty Maleti Mashaba in 2012.
On 6 September 2016, this Court granted a warrant of eviction against the First
Respondent. Her application to rescind the default judgment was dismissed on 8
December 2017, and the Court ordered her eviction.
[6] On 12 February 2018, the Sheriff evicted the First Respondent. However, with the
assistance of community members, she unlawfully re-occupied the property.
[7] On 18 May 2018, the property was transferred into the names of the Applicants, as
reflected in the Deed of Transfer. The Applicants have since been liable for municipal
rates, taxes, water, and sewerage charges – which the First Respondent has not paid.
[8] The Applicants commenced these eviction proceedings in November 2023, having
been advised by the prosecutor in a related criminal case to obtain an eviction order in
their own name as the new owners.
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Is the First Respondent an “unlawful occupier”?
[9] The First Respondent contends that she is not an “unlawful occupier” under PIE
because her occupation derived from a lawful purchase and she never voluntarily
relinquished her rights.
[10] That argument cannot succeed. Section 1 of PIE defines an “unlawful occupier” as
a person who occupies land without the express or tacit consent of the owner or
without any other right in law. The First Respondent lost her right to occupy when
default judgment was granted against her in 1999, which was never rescinded. The
bank lawfully sold the property. The subsequent owners – first Ms Mashaba, now the
Applicants – never consented to her occupation. To the contrary, they have
consistently sought her eviction.
[11] As the Supreme Court of Appeal held in Davidan v Polovin N O and Others , at
paragraph 12, PIE applies not only to those who occupied without initial consent but
also to those whose consent was subsequently terminated. The First Respondent is
therefore an unlawful occupier within the meaning of PIE. The fact that she once
owned the property does not entitle her to remain indefinitely after ownership has
lawfully passed to others.
The just and equitable enquiry
[12] Section 4(7) of PIE provides that where an unlawful occupier has occupied the
land for more than six months, a court may grant an eviction order only if it is just and
equitable to do so, after considering all relevant circumstances, including: –
[12.1] whether land can reasonably be made available by a municipality or
other organ of state for the relocation of the unlawful occupier; and
[12.2] the rights and needs of the elderly, children, disabled persons, and
female-headed households.
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[13] This requires a careful balancing of the competing rights: the First Respondent’s
right of access to adequate housing and the Applicants’ right to property under section
25(1) of the Constitution, as well as their right to control and use their own property. As
held in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) , courts
must adopt a context -sensitive approach that reconciles these rights in a manner that
is just and equitable.
[14] The Municipality has conducted an assessment and filed a Temporary Emergency
Accommodation (“TEA”) report dated 2 November 2024. The report finds:
[14.1] The First Respondent earns approximately R11,000 per month. Her
household includes an employed adult daughter (Mpho) whose income
was not disclosed.
[14.2] Her income exceeds the Municipality’s threshold of R3,500 for
qualification for emergency accommodation.
[14.3] She is able to afford alternative rental accommodation within her means.
[14.4] Eviction will not render the household homeless, provided it is not abrupt
and immediate.
[14.5] She does not qualify for TEA.
[14.6] The Municipality recommends that the eviction be granted, but with
sufficient time to source alternative accommodation.
[15] The First Respondent attacks the TEA report as flawed. She says her income of
R11,000 must support six people, including a disabled sibling, a university student, a
minor grandchild, and two unemployed adult children. She argues that the Municipality
applied its policy rigidly and failed to account for actual rental prices in P[…] G[…].
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[16] I have considered these criticisms carefully. However, the First Respondent bears
an evidentiary burden to place sufficient information before the court to show that she
and her household would genuinely be rendered homeless and that it would be unjust
and inequitable to evict them. (See Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113
(SCA) at para 19.)
[17] The First Respondent has failed to discharge that burden. She did not provide a
breakdown of her monthly expenses, did not disclose the income of her employed
daughter, and did not provide any proof of the alleged disability of her sister or the
costs associated therewith. Without such information, the court cannot properly assess
her claim that she cannot afford alternative accommodation.
[18] Moreover, the First Respondent has been in contempt of a previous eviction order
granted on 8 December 2017. She was lawfully evicted by the Sheriff in February
2018 and then unlawfully re- occupied the property. Her conduct demonstrates a
disregard for court orders and the rights of successive owners.
[19] The Applicants have been the registered owners since May 2018 – nearly seven
years at the time of this judgment. They have been unable to use or enjoy their
property. They have paid municipal charges for a property occupied by another person
without any contribution from that person. The right to property, while not absolute,
cannot be hollowed out by indefinite delay. Further, the court in City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC)
[2011] ZACC 33 at paragraph 40 provided that “…Of course a property owner cannot
be expected to provide free housing for the homeless on its property for an indefinite
period. But in certain circumstances an owner may have to be somewhat patient and
accept that the right to occupation may be temporarily restricted, as Blue Moonlight ‘s
situation in this case has already illustrated.
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I submit that this is not one of those circumstances warranting the continued protection
of the unlawful occupiers. The Applicants have been deprived of the use and
enjoyment of their property for a period approaching seven (7) years. This is so
despite the fact that the unlawful occupiers have been assessed and found to be
capable of securing alternative accommodation.
[20] In City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at
para 11, the Supreme Court of Appeal confirmed that if the requirements of section 4
are satisfied and no valid defence is raised to the eviction, the court must grant an
eviction order, albeit with a just and equitable date for vacating.
[21] I am satisfied that it is just and equitable to grant the eviction. The First
Respondent has the means to secure alternative accommodation. The Municipality
has confirmed that eviction will not render her homeless if a reasonable period is
allowed. Her personal circumstances – her age, the female- headed household, and
the presence of a minor child – have been taken into account. They do not, on the
facts presented, outweigh the Applicants’ rights or justify denying the eviction
altogether.
Costs
[22] The Applicants seek costs of both Part A and Part B. There is no reason to depart
from the ordinary principle that costs follow the result. The First Respondent has
opposed the application without success.
Order
[23] In the premises, I make the following order:
1. T he first respondent and all other unlawful occupants vacate within 90 days of
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service of this order from the property known as no: 8[…] /Erf 8[…] , P[…] G[…]
extension 11, Township, Soweto.
2. In the event the first respondent and all other unlawful occupants fails to vacate the
property mentioned herein, the Sheriff is directed and authorized to evict the first
respondent and all other unlawful occupants from the aforesaid property and place
the applicants in vacant and undisturbed occupation of the property and in so
doing to elicit the services of the South African Police Services or any other law
enforcement security company in order to give effect to the order.
3. The first respondent and all other unlawful occupants be interdicted and restrained
from entering the property at any time after they have been evicted there from by
the Sheriff.
4. The order granted herein be executed on the date mentioned herein despite any
notice in terms of Rule 49(11) by any party who might have an interest in the
matter and without furnishing any tender of security in terms of Rule 49(12).
5. The first respondent to pay the costs to the extent of payment of Part A (1st Notice
of Motion and the Ex-Parte Application) and Part B (Section 4(2) of the Prevention
of Illegal Evictions from and Unlawful Occupation of land Act 19 of 1998) on a
party and party scale.
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MI MAUNATLALA
ACTING JUDGE OF THE HIGH COURT,
JOHANNESBURG, GAUTENG DIVISION
DATE OF HEARING: 5 February 2026
DATE OF ORDER: 5 February 2026
DATE OF REASONS FOR JUDGMENT: 29 April 2026