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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2025-028573
In the matter between:
JIM HLONGWANE Appellant/Applicant
and
RAHAB MESO N. O First Respondent
CITY OF EKURHULENI METROPOLITAN MUNICIPALITY Second Respondent
JUDGMENT
Coram: Mia, J, Mahomed, J
THE COURT
Introduction
[1] This matter comes before this court as a composite application for
condonation, reinstatement of a lapsed appeal, a stay of execution, and the
determination of the appeal on the merits. which was granted by Magistrate
JMP Josephs, of the District of Ekurhuleni North, held at Them bisa,
Magistrates Court , on 27 November 2024. The appeal lies against the
(1) REPORTABLE: YE S
(2) OF INTEREST TO OTHER JUDGES: YE S
(3) REVIS ED: YE S
12 MA Y 2026 ___
DATE SIGNA TURE
judgment of Additional Magistrate Josephs, sitting in the Ekurhuleni North
Magistrates’ Court, Tembisa, delivered on 20 November 2024, in terms of
which the appellant and his family were ordered to vacate the immovable
property situated at 1 […] Q[…] Street, M[…] S[…] , Tembisa (“the property”).
The appeal is directed against the whole of that judgment.
Background
[2] The appellant is a 43 -year-old man who has resided on the property since
birth. He resides there with his partner and their three minor children. The first
respondent is the executrix of the estates of the deceased registered owners
of the property. Eviction proceedings were instituted in May 2024 in terms of
section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (“PIE”). On 20 November 2024 the court a quo granted
an eviction order.
[3] The appellant noted an appeal on 3 January 2025 but failed to comply with
the applicable procedural requirements, resulting in the appeal lapsing.
[4] The present application seeks to revive that appeal and to determine its
merits. The matter is opposed, the respondent is of the view the reinstatement
ought to be refused, it was submitted that there was a long delay of over 9
months and the appellant is opportunistic given that he was warned by the
applicant’s attorney, a quo, of the lapsing of the appeal in terms of the Rules.
1
It was further submitted that the court a quo judgment is correct, and
judgment is well- reasoned, that the Magistrate fully considered all the
evidence before him, the respondent (applicant a quo) discharged its onus for
the order.
[5] The following issues arise:
a. whether condonation for non-compliance with the rules should be granted;
b. whether the appeal should be reinstated;
1 Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local
Divisions of the High Court of South Africa GNR 48, G. 999 of 12 January 1965.
c. whether execution of the eviction order should be stayed; and
d. whether the court a quo erred in granting the eviction order.
Condonation and reinstatement
[6] The principles governing condonation are trite. In Melane v Santam Insurance
Co Ltd,2 the Appellate Division held that the court exercises a discretion upon
consideration of, inter alia, the degree of lateness, the explanation therefor,
the prospects of success, and the importance of the case.
[7] The appellant’s non-compliance includes failure to furnish security timeously,
failure to prosecute the appeal within the prescribed period, and failure to
properly perfect the record. The explanation advanced is essentially one of
financial incapacity and subsequent steps taken to regularise the position
once funds were secured.
[8] The explanation tendered was that he could not pursue the appeal timeously
because he could not raise the security of R1 000. 00, within the times
permitted in the Rules, as he is indigent. It was contended that he managed to
obtain a loan only two months after the appeal notice was filed. The
prosecution of the appeal was delayed further, when his instructing attorney
encountered several problems with the filing of the papers on the court online
platform. To support this contention, he referred this court to various
correspondences between his attorney and the registrar’s office related to the
technical problem. Counsel submitted that by his calculation the delay was a
period of only two months and was negligible given that the order impinges on
the constitutional rights of the appellant and his family. Counsel proffered that
to deny the appellant a reinstatement, would effectively close the door on his
appeal against the judgment, which has grave consequences for this
appellant. He submitted his client has good prospects of success on appeal,
the matter involved his and his family’s constitutional rights to housing, he has
three minor children, one of whom suffers with epilepsy. He argued the
three minor children, one of whom suffers with epilepsy. He argued the
prejudice his client suffers outweighs that to the respondent.
2 1962 (4) SA 531 (A).
[9] While the delay is not insignificant, it is not of such magnitude as to be
incapable of condonation, particularly where there is no indication of wilful
disregard of the rules. In the context of the app ellant’s lack of financial
resources, the challenges with the C aselines platform it is appropriate to
condone the lack of compliance with the R ules when regard is had to the
issues to be determined, namely the prejudice to the app ellant if the eviction
order is upheld.
[10] Crucially, the enquiry does not end there. Prospects of success remain the
decisive factor. For reasons that follow, the appellant has demonstrated
reasonable prospects of success on appeal. In the circumstances,
condonation ought to be granted, and the appeal reinstated.
Stay of execution
[11] The requirements for a stay of execution are well established: a
demonstration of real and substantial justice, irreparable harm, and a balance
of convenience favouring the grant of the order.
[12] The appellant faces imminent eviction together with his minor children. If
execution were to proceed, the appeal would be rendered academic. The
harm is manifestly irreparable. The balance of convenience favours the
preservation of the status quo pending the determination of the appeal. A stay
of execution must accordingly be granted.
The legal framework: PIE
[13] Section 26(3) of the Constitution provides that no person may be evicted from
their home without an order of court made after considering all the relevant
circumstances. PIE gives effect to this constitutional protection. It is now well
established that an eviction may be granted only if it is just and equitable to do
so, after consideration of all relevant circumstances. In Port Elizabeth
Municipality v Various Occupiers ,3 the Constitutional Court emphasised that
eviction proceedings require a “grace and compassion” infused approach
balancing competing rights.
[14] The Supreme Court of Appeal in City of Johannesburg v Changing Tides 74
(Pty) Ltd4 made it clear that the onus rests on the applicant to place before the
court facts from which it can conclude that eviction is just and equitable.
[15] More recently, in Madulammoho Housing Association NPC v Nephawe and
Another5, the High Court reaffirmed that the applicant bears the duty to place
sufficient information before the court to enable the formulation of a just and
equitable order.
Error in the court a quo: onus
[16] The court a quo held, in effect, that the appellant bore the evidential burden to
demonstrate why eviction would not be just and equitable. In doing so, the
court relied on earlier authority such as ABSA Bank Ltd v Murray 6. That
approach is inconsistent with the binding authority of Changing Tides , which
clarified that the primary onus remains with the applicant throughout. The
court a quo therefore misdirected itself on a material point of law. Such a
misdirection vitiates the exercise of the court’s discretion and justifies
appellate interference.
Dispute of fact and ownership
[17] The appellant contended that his late mother purchased the property in terms
of a written agreement concluded in 2009, supported by a confirmatory
affidavit. The court a quo declined to engage with this contention on the basis
that it lacked jurisdiction to determine ownership. While it is correct that a
magistrates’ court may not finally determine complex questions of ownership,
3 2004 (12) BCLR 1268 (CC);2005 (1) SA 217 (CC) para 23.
4 2012 (6) SA 294 (SCA) para 34.
5 [2023] ZAGPJHC 7.
62004 (2) SA 15 (C).
it is nonetheless required to consider whether a bona fide dispute of fact
arises which impacts the lawfulness of occupation. The proper approach to
disputes of fact in motion proceedings is articulated in Plascon- Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd 7. The court a quo failed to apply this
principle. The existence of a written sale agreement, together with supporting
evidence, cannot be dismissed as far-fetched or untenable on the papers. The
failure to properly engage with this dispute constitutes a further misdirection.
The alleged verbal lease
[18] The court a quo found that the appellant occupied the property in terms of a
verbal lease agreement concluded with the deceased owners. However, the
first respondent failed to plead the primary facts necessary to establish such
an agreement, including when and where it was concluded. Moreover, on the
respondent’s own version, the alleged agreement was concluded at a time
when the appellant was a minor. It is trite that a minor lacks contractual
capacity unless duly assisted. No such assistance was alleged. The inference
of a valid lease agreement was therefore not supported by the pleaded facts.
The court a quo’s conclusion in this regard cannot be sustained.
Homelessness and just and equitable enquiry
[19] The appellant averred that eviction would render him and his family homeless.
The respondent’s response was limited to a bald assertion that alternative
accommodation was available.
Application of the “just and equitable” standard
[20] The central question on appeal is whether the eviction order granted by the
court a quo satisfies the constitutional and statutory requirement that eviction
be “just and equitable” within the meaning of section 26(3) of the Constitution
and sections 4(6) and 4(7) of PIE. It is trite that the “just and equitable”
enquiry is not a mechanical or checklist exercise, but a value- laden, context-
7 [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 at 634E–635C.
sensitive determination requiring the court to balance competing rights and
interests in light of all relevant circumstances. In Port Elizabeth Municipality v
Various Occupiers ,8 the Constitutional Court emphasised that courts are
required to make “difficult decisions, mindful of the values underlying the
Constitution”. This approach has consistently been affirmed in subsequent
jurisprudence, including City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd.
9
Procedural and Evidential Adequacy
[21] A foundational requirement of the enquiry is that the court be placed in
possession of sufficient, reliable and relevant information to enable it to
determine whether eviction would be just and equitable. Courts are not
passive arbiters in this context. As Sachs J made clear in Port Elizabeth
Municipality,10 courts must engage in active judicial management to ensure
that eviction proceedings are conducted in accordance with constitutional
imperatives.
[22] In the present matter, the municipality was cited but failed to place a
substantive report before the court. There is no evidence addressing the
availability of alternative accommodation; when such accommodation might
be provided; or the consequences of eviction in the absence thereof. This
omission is material. In Occupiers of Erf 101, 102, 104 and 112, Shorts
Retreat v Daisy Dear Investments (Pty) Ltd ,
11 the Supreme Court of Appeal
held that municipalities bear a constitutional obligation to assist the court by
providing detailed information relevant to the just and equitable enquiry. A
perfunctory or absent report undermines the court’s ability to discharge its
constitutional function.
[23] The court a quo nevertheless proceeded to grant an eviction order on an
incomplete evidential record. In doing so, it failed to heed the principle that
8 Port Elizabeth op cit note 3 para 33.
9 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC); [2011] ZACC 33.
10 Port Elizabeth op cit note 3 para 36.
10 Port Elizabeth op cit note 3 para 36.
11 2009 (4) All SA 410 (SCA); 2010 (4) BCLR 354 (SCA) paras 14–16.
where critical information is lacking, the appropriate course is to postpone the
matter and call for further evidence, rather than to determine the matter on
inadequate foundations.
Nature and Duration of Occupation
[24] The appellant has resided on the property since birth, together with his
partner and three minor children. The occupation is thus long- standing and
settled. The duration and stability of occupation are highly relevant
considerations. Section 4(9) of PIE requires courts to have regard to the
period of occupation, and in Port Elizabeth Municipality ,12 the Constitutional
Court cautioned that courts should be slow to grant eviction against relatively
settled occupiers in the absence of a reasonable alternative. Long-term
occupation indicates a deep level of social, familial and economic integration,
and eviction in such circumstances is inherently disruptive. This factor weighs
strongly against eviction.
Risk of Homelessness and Alternative Accommodation
[25] A central enquiry in determining whether eviction is just and equitable is
whether it would result in homelessness. In Blue Moonlight ,
13 the
Constitutional Court held that where eviction would render occupiers
homeless, this is a highly relevant, and often decisive, consideration.
[26] The appellant asserts that he lacks the financial means to secure alternative
accommodation. This assertion is not meaningfully rebutted. The respondent
relies on generalised statements that rental accommodation is available but
provides no evidence as to affordability; accessibility; or suitability for the
appellant and his family.
[27] There is, moreover, no evidence from the municipality addressing emergency
housing or relocation options. In Pillay v Ramzan (unreported, GLD),
14 it was
12 Blue Moonlight op cit note 9 para 28.
13Id paras 39–40.
14 Pillay and Another v Ramzan and Others (unreported, Gauteng Local Division, Johannesburg).
emphasised that it is incumbent upon the eviction applicant to place sufficient
information before the court to demonstrate that eviction would be just and
equitable, including the position regarding alternative accommodation. The
record does not reflect that this onus was satisfactorily met and the court a
quo misplaced its deliberation on this aspect.
[28] On the evidence before this court, there is a real and unrefuted risk that
eviction will result in homelessness. The absence of evidence regarding
alternative accommodation is, in these circumstances, fatal to the grant of an
eviction order.
Vulnerable Occupiers and the Best Interests of Children
[29] The presence of three minor children in the household engages section 28(2)
of the Constitution, which provides that a child’s best interests are of
paramount importance in every matter concerning the child. Courts are
required to conduct a specific, individualised enquiry into the circumstances of
affected children. In S v M ,
15 the Constitutional Court stressed that a proper
child-centred approach requires a “ close and individualised examination” of
each child’s circumstances.
[30] In the present matter, the court a quo made no substantive findings regarding
the ages of the children; their schooling; the likely impact of eviction on their
wellbeing. This constitutes a material misdirection. As held in Occupiers of
Erven 87 and 88 Berea v De Wet NO ,16 courts are obliged to undertake a PIE
enquiry even where eviction appears otherwise justified, precisely because of
the risk of homelessness and harm to vulnerable persons. In this instance
minor children.
Meaningful Engagement
15 (Centre for Child Law as Amicus Curiae) 2007 (12) BCLR 1312 (CC); 2008 (3) SA 232 (CC); [2007] ZACC 18
para 24.
16 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC); [2017] ZACC 18 para 48.
[31] The jurisprudence of the Constitutional Court has established that meaningful
engagement between the parties is an important component of the just and
equitable enquiry. In Occupiers of 51 Olivia Road, Berea Township v City of
Johannesburg 17at paras 18 –21, the Court held that engagement is required
to explore alternatives and mitigate the impact of eviction.
[32] There is no evidence in the present matter of any meaningful engagement
between the parties prior to the institution of proceedings, nor of any attempt
at mediation as contemplated in PIE . The absence of engagement is a
weighty consideration against eviction, particularly where vulnerable
occupiers are affected.
Dispute of Fact and the Context of Occupation
[33] The appellant raises a defence based on an alleged sale agreement,
supported by confirmatory evidence. Whether ultimately valid or not, this
raises a bona fide dispute of fact relevant to the context of occupation. While
ownership disputes are not determinative in PIE proceedings, they form part
of the broader factual matrix relevant to whether eviction is just and equitable.
The court a quo’s failure to properly engage with this dispute reinforces the
conclusion that the enquiry was incomplete.
Balancing of Competing Rights
[34] The court is required to balance the respondent’s property rights under
section 25 of the Constitution against the appellant’s rights to housing (section
26), dignity (section 10), and the best interests of the children (section 28).
This balancing exercise is one of proportionality. As stated in Port Elizabeth
Municipality,
18 the enquiry is not whether occupation is unlawful, but whether it
is appropriate, in light of constitutional values, to order eviction.
17 2008 (3) SA 208 (CC); CCT 24/07 [2008] ZACC 1.
18 Port Elizabeth op cit note 3 para 25.
[35] In the present matter, the prejudice to the appellant and his family includes the
risk of homelessness, disruption of family life, and harm to minor children. The
prejudice to the respondent consists primarily of delay in the vindication of
property rights. In these circumstances, the balance of convenience and
justice weighs decisively in favour of the appellant.
Conclusion on the Just and Equitable Enquiry
[36] The cumulative effect of the above considerations is decisive. The eviction
order was granted, in the absence of a municipal report; without adequate
evidence regarding alternative accommodation; without a proper enquiry into
the circumstances of vulnerable occupiers; without meaningful engagement;
and on an incomplete factual record. These deficiencies constitute material
misdirections in the application of the “just and equitable” standard, warranting
interference on appeal.
[37] On a proper application of the constitutional and statutory framework, eviction
in the present circumstances cannot be said to be just and equitable.
Order
[38] In the result, the appeal succeeds.
[39] It is ordered as follows:
1. Condonation for the appellant’s non- compliance with the rules is
granted.
2. The appeal is reinstated.
3. The appeal is upheld.
4. The order of the Magistrate is set aside and replaced with the following
order:
4.1 The application is dismissed.
4.2 Costs to be costs in the cause.
_______________________
MIA J
_________________________
MAHOMED J
Appearances
Attorneys for the applicant: Tabacks Attorneys
Inc
sibusiso.mlangeni@tabackslegal.com
Counsel for the applicant: Adv Mbulelo
Nguta
Adv Bonga Zungu
Attorneys for the first respondent: Rousseau & Rousseau
Attorneys
micaela@rousseeaulaw.co.za
Counsel for the first respondent: Adv WH
Engelbrecht
Date heard : 27 January 2026
Date judgement delivered: 12 May 2026