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)
High Court Case No.: 557/2025
REPORTABLE
In the matter between:
THE KNYSNA MUNICIPALITY Applicant
And
ALL PERSONS IN OCCUPATION OF Respondent
OR ENTERING UPON ERVEN 3[...],
3[...]2, 3[...]3, 3[...]4, AND 5[...], SEDGEFIELD
SITUATED IN SMUTSVILLE. KNYSNA
Coram: Kusevitsky J
Heard: 28 April 2026
Delivered: June 2026
The judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail. The date that the judgment is deemed to be handed down
is 4 June 2026
ORDER
____________________________________________________________________
1. The application is postponed to a date to be arranged before
Kusevitsky J. pending the finalization of the process as described
in paragraphs 3, 4 and 5 below.
2. The order and judgment including the entire application is to be
served on The Western Cape Minister of Local Government,
Environmental Affairs and Development Planning and the Minister
of Human Settlements.
3. The Respondents are to compile a list of all the occupiers on the
aforementioned erven as at 24 October 2025. The list is to include
the name and ages of the occupiers, the date upon which they
took occupation on the aforesaid erven; women headed
households and any disabled persons. Furthermore,
3.1 The list should be a composite joint list (“the joint list’) of all
the occupiers on the erven, to be compiled jointly by the
legal representatives for the Respondents.
3.2 The joint list is to be accompanied by an affidavit which will
provide a summary of the exact number of occupiers,
including the total amount of households located on the
said erven.
3.3 The joint list should be filed by Friday, 12 June 2026.
4. Upon receipt of the joint list, the Applicant is to provide a report
and a list of emergency temporary alternative accommodation to
those occupiers who require same by 31 July 2026.
5. The report on the provision of emergency alternative
accommodation should be done in consultation with the relevant
governmental departments including the Western Cape Minister
of Local Government, the Minister of Human Settlements and/or
--
any other governmental department under whose jurisdiction the
said erven may fall.
6. It is recorded that Legal Aid has come on record for certain of the
occupiers. Those Respondents, should they so wish, are to file
their answering affidavit by 12 June 2026.
7. Paragraphs 2 and 3 of the interim order granted on 24 October
2025 is amended as follows:
7.1 The Respondents, except for those who have been listed
on the joint list, are restrained from entering onto the erven
listed and set out in Annexures A and B of the notice of
motion. For the sake of clarity, the joint list is a compilation
of occupiers who have been on the said erven as at 24
October 2025.
7.2 The Respondents, other than those listed on the joint list
and who already occupy existing structures, are restrained
from entering upon any new unlawfully erected structures.
8. A final order is granted in the following terms:
8.1 The Respondents are restrained from erecting any
structure and/or further structures on the erven as set out
in annexures A and B.
8.2 The Respondents are restrained from damaging and/or
removing any property belonging to the Applicant found
thereon.
8.3 The Respondents are restrained from assaulting and/or
threatening any of the Applicant’s officials in general and
specifically when attending meetings with the Applicant
and/or members of the Smutsville community.
9. Pending the return date to be determined, paragraph 7 and the
sub-paragraphs thereof shall operate as an interim interdict.
10. The Applicant is ordered to provide ablution facilities on the erven
pending the resolution and relocation of the Respondents
pursuant to paragraph 5 above.
JUDGMENT
____________________________________________________________________
KUSEVITSKY J
[1] This was an urgent application issued on 22nd of October 2025 by the Knysna
Municipality (“the Municipality”) against the Respondent. The relief sought is as
follows:
“1. Condoning the Applicant’s non-compliance with the ordinary rules of court relating to time
and service and that the matter be heard as one of urgency;
2. The Respondents are restrained from entering onto the erven listed and set out in
“Annexure A and Annexure B, annexed hereto (the notice of motion), and removing or
damaging any property of the applicant found thereon;
3. The Respondents are restrained from entering the unlawfully erected structures erected
on the erven set out and listed in Annexure A and Annexure B’
4. The Respondents are restrained from erecting any structure(s) on the erven listed and
set out Annexure A and Annexure B annexed hereto;
5. The Applicant or any of its assignees including the Sheriff of the court are hereby
authorised to demolish and remove all structures erected by the Respondents on the
erven set out in Annexure “A” and “B”;
6. The Respondents are restrained from assaulting and/or threatening any of the
Applicant’s officials in general and also specifically when attending meetings with the
Respondents and/or members of the Smutsville community;
7. Service of this Order shall be served on the Respondents by publishing and displaying it
on prominent places of erven 3[...], 3[...]2, 3[...]3, 3861, 3[...]4, and 5[...] Sedgefield,
Smutsville in Knysna, as well as on the main entrance to the Applicant's principal office in
[...] C[...] Road, Knysna;
8. …”
[2] On 24 October 2025, the matter served before Fortuin J, who granted interim
relief in terms of prayers 2, 3 ,4 and 6 of the notice of motion. The court failed to
grant the Applicant or any of its assignees, including the Sheriff of the court, an order
to demolish and remove all structures erected by the Respondents on the said erven
as per paragraph 5 of the relief sought. A rule nisi was issued, calling upon the
Respondents intending to oppose the application to show cause, if any, on Friday 28
November 2025 why the order should not be made final.
[3] On 28 November 2025, the matter served before Slingers J, who extended the
interim order pending finalization of the matter and postponed it for hearing to 28
January 2026 for the Respondents to apply for and show proof of application for
legal assistance.
[4] On 28 January 2026, the matter served before Deputy Judge President Goliath,
who again postponed the matter to 28 April 2026 referring the matter to the opposed
motion roll (“the Goliath order”). The parties were also directed to, inter alia,
approach Legal aid or a private legal practitioner for legal representation by 9
February 2026 and further directed that the parties were to engage in an informal
dispute resolution (“ADR”) process to amicably resolve the dispute. The rule was
accordingly extended to 28 April 2026 and the notice of the informal dispute
resolution process to be published by the Applicant in the terms as provided for in
the court order.
[5] On the return day on 28 April 2026, two legal representatives for the
respondents came on record. The first was Adv D Trietsch, together with Adv
Reinecke, representing six households and the second, Mr L Van Wyk from the
George Legal Aid Board. At the time of the hearing of the matter, the Court had not
yet had sight of the Legal Aid Boards answering affidavit. During submissions made,
Mr Van Wyk indicated that their office had received approximately sixty applications
Mr Van Wyk indicated that their office had received approximately sixty applications
for legal aid pursuant to this matter. Consultations with these community members
(“occupants/respondents”) proved a logistical challenge. He sought condonation for
the late filing of the answering affidavit deposed to by one of the Respondent’s, Ms
Cordell Maarman. In the condonation affidavit, he stated that a consultation had
taken place with about twenty-two of the Respondents on the 16th of April 2026 after a
local gym had kindly made their premises available to them for consultation. They
were provided with a make-shift desk, and the Respondents had to wait in line in
order to provide their instructions. The Respondents contend that the Applicant
would suffer no material prejudice by the delay in contrast to the Respondents who
would face a gross injustice and potential homelessness in a disaster zone if their
version was not placed before court.
[6] Similarly, an application for condonation for the late filing of the answering
affidavit of the six households that Ms Trietsch was representing was sought. She
explained the practical difficulties that was encountered in firstly, trying to arrange
personal consultations with the some of the Respondents. This proved a challenge
because of their socioeconomic hardships and logistical barriers given their indigent
circumstances and the substantial geographical distance between them and their
counsel. This was also exacerbated by the Respondents daily commitments of
commuting to work and school, and mandatory attendances in local clinics via public
transportation. A further aspect which compounded their difficulties were the
torrential rainfall and subsequent flooding which caused extensive damage to the
Respondents' dwelling, and this necessitated emergency repair work and restoring
their homes to basic habitability, which made it impossible for them to consult and
provide legal instructions timeously.
[7] The Applicant, represented by Mr van der Schyff, vehemently opposed any
further postponement, indicting that there had been compliance with the Goliath
order. He submitted that the Respondents had had ample opportunity to obtain legal
representation given the various postponements and crucially, there had been
attempts at mediating the matter as directed in the Goliath order, but that this had
proved unsuccessful.
proved unsuccessful.
[8] In this regard, he referred to the compliance affidavit of the instructing attorney,
Ms Harker wherein she states that two dispute resolution meetings were held on 9
February 2026 and 4 March 2026 respectively. In terms of the minutes of the first
meeting, the Applicant reiterated that the land in question was designated for
housing development for the Smutsville community; that budgetary constraints have
resulted in a scaled -down project; that phase 2 remained viable, and the continued
or renewed occupation of the land would prejudice and increase cost. At the meeting
according to minutes, the Respondents through Adv Trietsch and Adv Reinecke
reiterated the procedural deficiencies in the Applicant’s founding papers; requested
further information regarding the housing development including budget implications
and projected timelines and crucially raised the fact that the affected community was
experiencing severe economic hardship; that they lacked basic services at the
current site and their reluctance to vacate the land without viable alternatives.
[9] The Respondents proposed certain sites as potential relocation sites for
consideration. At the following meeting of the 4th March 2026 ,where the purpose of
the meeting as indicated in the minute was to consider and record the Municipality’s
feedback regarding the availability and sustainability of alternative land for a possible
relocation of the Respondents, the Applicant merely recorded the following: available
municipal land is already allocated to housing projects; certain land is privately
owned; and the remaining land is unsustainable due to regulatory or environmental
constraints.
[10] Instructive to note, it was not the Applicant who proposed alternative sites, but
the Respondents. The Applicant simply recorded inter alia that municipal project
sites could not be repurposed outside existing development frameworks and
considering the Municipality’s position, no consensus was reached regarding
alternative relocation of land. As a result, and in light of this, the Respondents
ostensibly elected to terminate their participation in the meeting, and the ADR
process engagement was terminated.
[11] Mr van der Schyff submitted that it was crucial that the matter be finalised,
given the fact that the Applicant would lose the proposed budget allocation for the
proposed building of low-cost houses on the erven and this budget would be lost
proposed building of low-cost houses on the erven and this budget would be lost
unless an urgent order was granted in the terms sought. I will deal more fully with the
Applicant’s submissions in due course.
--
[12] The Court indicated that it did not have the Applicant’s replying affidavit even
though Mr van der Schyff contended that same had been filed three days prior.1 In
any event, he argued that it simply contained one or two denials and was pauce,
given the lack of defences raised by the Respondents. The Court was also
concerned that no housing report had been filed by the Municipality, given that the
Applicant was essentially seeking the eviction of hundreds of people. Mr van der
Schyff contended that this application was not an eviction since no occupiers were
on the erven and as a consequence, a housing report was not necessary as would
be contemplated in accordance with the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act, 19 of 1998 (“PIE”). The Court non-the-less advised the
parties that it would contemplate postponing the matter in order for the application to
be served on the Western Cape Minister of Local Government in order to obtain their
input with regard to the availability of alternative land, and for the parties to compile a
list of all of the occupiers on the erven as at the date of service of the application.
The Applicant was of the view that this was not necessary since this was not an
eviction and that the Court could adjudicate the matter as it stood, but that it would
have no option but to agree if the Court considered that a housing report on the
availability of alternative emergency housing was necessary.
[13] The Court also indicated that the Applicant’s interim rights would be preserved.
The matter stood down for the Court to craft an appropriate order, given the import of
the matter and the impact of any proposed order on the hundreds of people who
were present in court. The Court reassured the Respondents present that no order
for the demolition of their homes would be made on that day.
[14] I have since had an opportunity to consider the matter and the submissions
[14] I have since had an opportunity to consider the matter and the submissions
raised. I did not consider a mere Order being made to be appropriate in the
circumstances without giving the reasons therefore, given the import of the matter
and the serious implications thereof. I am also mindful that the parties might want to
fully ventilate the matter, especially in light of the Applicant’s contention that it is not
necessary for the Applicant to provide a Housing report to provide temporary
emergency housing to the Respondents. As will be evident hereunder, the case law
1 It was stated that the Reply was filed on caselines, but it is evident that this is not a caselines matter
and so it could not have been. The one page Replying affidavit has in the meantime been obtained
and indeed does not take the matter any further.
and the Applicant’s ultimate concession that this would indeed be required, fortifies
the Order which I propose to make.
The application for Condonation
[15] I have considered the reasons provided by the Respondents and their legal
representatives for the late filing of their answering papers. The Court will also take
judicial notice of the devastating impact of the weather that has impacted the
affected areas of the Southern Cape region and surrounds. The Court is also mindful
of the indigent circumstances that the Respondents finds themselves in. Mr van der
Schyff during his submissions argued that the Respondents had been afforded
ample opportunity to obtain legal representation. What Mr van der Schyff
unfortunately miss is this – a Respondent or Respondents who are classified as
illegal occupiers of land, more so State land, in my view, cannot be expected to be
held to the same strict standards of compliance as an otherwise sophisticated litigant
respondent. Courts, as have rightly been done in this instance, must give such
Respondents the leniency, within reason, to obtain legal representation in order for
their rights to be fully protected and ventilated throughout the litigation process in
order to give full effect to constitutional imperatives of equality before the law. The
Applicant’s criticism is therefore unwarranted and condonation is accordingly
granted.
[16] It is perhaps apposite to note that since the hearing of the matter, a further
devastating storm had encompassed the Southern Cape region with devastating
consequences to the community.
The relief sought
[17] The Applicant seeks confirmation of the interim order including final relief that it
be permitted to demolish the dwelling structures erected by the Respondents on the
aforesaid erven as provided for in paragraph 5 of the notice of motion.
[18] For the sake of completion, I will provide a summary of the background which
precipitated this application.
[19] On 19 August 2025, a Municipal Manager in the employ of the Applicant met
with the local residents of the Smutsville community to address them on the
Provincial Government cuts in respect of the Smutsville low-cost housing project.
Ostensibly, the Western Cape Provincial Government had initially earmarked a
budget of approximately R33 million for a low-cost housing development in the
Smutsville area situated in the Knysna District. They say that due to circumstances
beyond the Applicant's control, this budget was drastically slashed by the Western
Cape Provincial Government, leaving an actual budget of approximately R 8 million
earmarked for the Smutsville project. The Applicant contends that this news was not
well received by the community. The following day, 20 August 2025, violent protests
erupted in the area, which followed because of the meeting. A Smutsville community
member also ostensibly called a municipal officer employed by the Applicant,
advising that certain members of the local community had started invading the erven,
and that they were in the process of clearing the land to erect informal dwelling
structures.
[20] Violent protests continued, which included the burning of tyres and blocking
public access to streets in the immediate vicinity. Law enforcement officials were
accordingly called to protect the Applicant's assets situated on Erf 5[...], Sedgefield,
and to prevent the land invasion which was taking place.
[21] The Municipality contends that at the meeting, the community members were
clearly dissatisfied with the announcement as evidenced by their ‘angry verbal
responses’. Then on 20 August 2025, they had received communication from a
Smutsville resident that Respondents had taken it upon themselves to enter certain
erven to clear the vegetation on the vacant land. This was done ostensibly with a
view to unlawfully erecting informal dwellings. This presented a major problem for
view to unlawfully erecting informal dwellings. This presented a major problem for
the Applicant they say, as it has a housing waiting list comprising of approximately
800 families for the earmarked area, whereas the latter area could currently only
accommodate approximately 207 sites.
[22] They aver that it was therefore crucially important that the sites be protected to
prevent an unlawful invasion where residents ultimately "jump the queue” for
housing. The Applicant contends that each time that officials of the Applicant attempt
to address members of the Smutsville community regarding the status of the housing
projects in the area, that it is followed by an intense community uprising resulting in
public unrest in the area, causing damage to the Applicant’s assets situated on erf
5[...] Sedgefield, and further attempts to invade certain of the aforementioned erf.
[23] The Applicant contends that the situation appears to have calmed down, with
calm restored, but decided nonetheless to proceed with the restraining order,
although conceding that the conduct appeared to have ceased on 22 August 2025.
The Applicant contends that after its law enforcement team revisited the Smutsville
area around 20 October 2025, they had noticed that the Respondents had erected
additional informal structures since they had last left the area on the previous day.
They also mentioned an additional informal structure being erected on erf 5[...],
which is designated as the area behind U-Save Store, as well as an additional three
structures on certain other of the erven, ‘along with a tent’, bringing a total of six
structures in the Langkrug area in Smutsville. They reported that one informal
dwelling structure had already been erected on Erf 5[...] situated behind the U-Save
shop in Oestervanger street, Smutsville,
Interdict
[24] The Applicant contends that in seeking the relief sought, that it has no
alternative remedy other than to approach court since the low-cost housing project is
scheduled to proceed on the cited erven, except on a lower scale, given the
reduction of the budget. They argue however that if the land is unlawfully occupied,
the Applicant would face protracted litigation to have the informal and unlawful
occupiers of the land removed therefrom, therefore to the prejudice of both the
Applicant as well as those members of the community who have been legally
Applicant as well as those members of the community who have been legally
earmarked for housing. Consequently, they say, should the land be invaded and
informal structures erected as alleged, the Applicant would not be ablet to execute its
constitutional mandate to provide housing as planned. This contention is quite extra-
ordinary. In sum, the consequence of the Applicant’s assertion is that rights to
human dignity may be forgone and ignored because the court process takes too
long. At the risk of stating the obvious, it can never be, in a constitutional democracy,
that an applicant and no less an Organ of State can cloak itself with self-serving
powers to trample on and ignore the human rights and dignity of its citizens whom it
is meant to protect and which rights it is meant to uphold.
[25] Furthermore, at the hearing of the matter, counsel for the Applicant was asked
to indicate why the founding affidavit was silent on ostensibly when this low-cost
housing project was meant to start. The application is completely silent in this regard
and so too regarding when this budget was ostensibly allocated, when it was
reduced and when it will ostensibly fall away if the land is not immediately cleared of
the occupiers. These are all important factors to consider, if, the Applicant wishes to
rely on this as a basis for the relief sought. As will be shown, despite the repeated
and vociferous contention argued at the hearing of the matter by Mr Van der Schyff,
this is not the case advanced on the papers.
[26] They further contend that they have a real right to the erven in question and
that they would suffer irreparable harm if the land were unlawfully taken over by the
Respondents. The Applicant would then lack the resources to meet its obligations.
They also contend that they have no other alternative, reasonable and suitable
remedy open to it other than to obtain the relief sought in anticipation of an imminent
land invasion and destruction to the Applicant's assets since ‘any other legal action
would take too long to prevent the land invasion.’
Urgency
[27] On the question of urgency, the Applicant contends that the matter is extremely
urgent in that the Respondents have clearly set about erecting the unlawful dwellings
at a pace, which means that any normal court process would not stop the
Respondents immediate unlawful conduct. It says they do not have an alternative
reasonable, suitable and practical remedy. They aver that there is no prejudice to
the Respondents as they are simply embarking on unlawful self-help and not being
the Respondents as they are simply embarking on unlawful self-help and not being
ordered to do anything other than obey the laws of the land as they are ordinarily
compelled to do.
[28] Finally, the Applicant avers that the Respondents are invading the land and that
no-one has been granted the right to trespass thereon or occupy the land. It states
that they have no alternative other than to approach the court since the low-cost
housing ‘is scheduled to proceed on the cited erven except on a lower scale given
the reduction.’ Again, as I have indicated above, no details are given about this
imminent plan to build the low-cost housing. They further contend that they have no
alternative reasonable and suitable relief other than to obtain the relief in anticipation
of an imminent land invasion.’
The Respondents’ contention
[29] On 13 April 2026, the six households represented by Advocate Trietsch filed
their answering affidavit. In it, they raise, inter alia to their personal circumstances,
what can only be described as points in limine. The first related to the assertion that
annexures to the founding affidavit were not annexed to the application when it was
served on the Respondents. Furthermore, no evidentiary proof of the somewhat 800
people contended to be on the waiting list, was provided, nor was any evidence
provided of the ostensible damage to the Applicant’s assets and/or property on Erf
5[...]. In reply, the Applicant admits that the annexures to the application were not
served on the Respondents but contend that the parties are now legally represented
and have the option to follow the court rules should they require copies thereof or
feel aggrieved by this. Again, this is an astounding assertion. If a court orders that an
application be served on a party, the entire application together with its annexures,
which forms part of the evidentiary body of the application, given these are not action
proceedings, should be served on that party. It is not for an applicant to decide what
part of the pleadings it should serve and what to omit, nor does an applicant have
the discretion to determine what is material and relevant and what is not. It seems to
the discretion to determine what is material and relevant and what is not. It seems to
me as though the serving of the papers on a designated marginalised group of
persons in the manner ordered has seemingly entitled the Applicant to cut-corners.
Whilst one might argue that it was done as a matter of expedience, the tone of the
replying affidavit suggests otherwise and that Applicant was of the view that it was
entitled to do so. Where an application where the relief sought has severe, onerous
and life changing consequences, and especially where the respondents are
potentially unsophisticated and/or marginalised members of society, compliance
should be supreme, lest it is assumed that the designation of a respondent is not
worthy of proper compliance or entitles a party to a relaxation of the rules. As I have
stated, the opposite is imperative.
[30] The next assertion was the contention that the relief sought was not competent.
The Respondent states that there are approximately 70 individuals comprising
women, minor children, elderly, disabled, and women-headed households that
occupy the erven.
[31] The deponent, Ms Catherine Akoledowo set out her personal circumstances as
well as that of five other families. Most of the personal circumstances are similar. I
highlight but two. She stated that she is 41 years of age, the sole breadwinner for her
family and married to a foreign national who does not possess a valid work permit.
Her household includes two minor children aged 10 and 8. She indicated that due to
their financial standing, the family did not qualify for a traditional bank home loan,
and the monthly income was allocated towards essential expenses, which included
groceries, basic household necessities, medicine, clothing, and schooling for the
children.
[32] Another household is that of Mr. Eugene Avery, a 48-year-old disabled male
who was medically boarded and unemployed. He has been on the waiting list since
2009, and his household includes his two children and two minor grandchildren who
reside with them. Another household consists of Ms. Frendolene Baartman, who is
disabled and unemployed. She has been on the waiting list for years without
placement. Her household includes three minor children aged 8, 12, and 17.
[33] She averred that the Respondents represent a deeply established community,
with the majority having occupied the Smutsville property for over a decade, with the
oldest resident aged 75 years. She states that most of the people that had moved to
the location had done so due to the unaffordability of previous rentals or the absolute
the location had done so due to the unaffordability of previous rentals or the absolute
necessity of proximity to employment opportunities and essential urban resources.
[34] Further points raised where the following: The submission was that temporary
residential accommodation must be provided to the Respondents as they would be
rendered homeless should they be evicted from the property. They further contend
that the necessary housing report from the Municipality was not before court to
ascertain whether alternative accommodation would be made available to the
occupiers if they were evicted or whether such alternative accommodation was
adequate and constitutionally compliant.
[35] The Respondent contends that the Applicant is not a private landlord but
exercises public powers and has the executive authority of an organ of state which is
the custodian of nationally owned land. They have constitutional and statutory
obligations on how such land is used and managed to achieve service delivery,
including housing and land reform obligations. The Respondent further contends
inter alia that in January 2026, the Knysna District was declared a disaster area
owing to bad weather conditions that had ravaged the area.
[36] The Respondent also denied the characterization of events as being violent
protests which had emanated because of the meeting. She claims that the
purported aggression is simply exaggerated to justify an eviction without providing
alternative accommodation, violating the PIE Act and the legal prescripts as
contained in City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another 2. She contends that the community’s frustration
arose from years of municipal inertia and unexplained budget cuts, not isolated
incidents. There has also been no meaningful dialogue due to the Applicant’s
refusal to engage substantively with the Respondents over time.
[37] The Respondent states that the Applicant has completely failed to address or
provide any alternative accommodation for the Respondents, many of whom include
children, the elderly, disabled persons. They contend that under the PIE Act and the
children, the elderly, disabled persons. They contend that under the PIE Act and the
Grootboom3 judgment, that no eviction can be granted if it renders individuals
homeless without temporary emergency accommodation. They say that in the
2 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC); [2011] ZACC 33
3 Government of the Republic of South Africa and Others v Grootboom and Others [2000]; 2001 (1)
SA 46 (CC); 2000 (11) BCLR 1169 (CC)
Western Cape, proposed “safe spaces” or transit camps are inadequate, especially
for vulnerable groups, as they often lack basic services and dignity contrary to
Section 26 of the Constitution. They maintain that the budget cut from R33 million to
R8 million is self-inflicted and the Applicant cannot use that to evade providing relief
in what is a humanitarian crisis exacerbated by the January 2026 disaster
declaration. It was finally contended that the court stay any eviction until temporary
emergency accommodation is secured and a just and equitable inquiry is conducted.
[38] At the hearing of the matter, Ms Trietsch submitted that she had done an
inspection-in-loco together with Ms Reinecke of the erven but found that it was
impossible to delineate where the exact properties were located. She confirmed that
the occupiers lived in dire conditions and that they did not have any running water
nor ablution facilities.
[39] The other answering affidavit was deposed to by Ms Cordell Marjorie Maarman.
She was represented by Legal Aid. At the hearing of the matter, Mr Van Wyk stated
that given the late filing of the answering affidavit for the reasons that were advanced
earlier, he could only provide the answering affidavit in respect of Ms Maarman. He
averred that it would in all probability be a timeous and at the end of the day, fruitless
exercise if all sixty to seventy persons were to depose to answering affidavits, since
all their contentions in opposition to the application would essentially be the same,
other than their personal circumstances.
[40] Ms Maarman is an adult female residing at U[...] Pine Valley, Smutsville,
Sedgefield. She opposes the relief on the basis that the structures in question were
already occupied at the time that the application was launched and argues that the
relief sought constitutes an eviction in substance.
[41] The Applicant is therefore required to comply with the provisions of the PIE Act,
[41] The Applicant is therefore required to comply with the provisions of the PIE Act,
which it has failed to do. She furthermore denies that a portion of the land was
vacant at the time, as residential structures were already erected and occupied.
While she admits that the residents were informed of the budget cuts, she disputes
that any meaningful engagement was held between the residents of Smutsville and
the Applicant and that no structures were erected during August 2025 on the erven
as alleged.
[42] She says that to her recollection, no new planned housing sites were built or
developed over the last 20 years. Furthermore, no subsidized housing developments
were made available, with or without a budget. She contends that this has led to the
community erecting their own housing developments over the last few years,
examples of which are areas known as Groenvallei, Corona Valley, and Lankgewag,
which areas she says were ultimately provided with services such as water and
electricity.
[43] She further states that according to an article published in the Knysna-Plett
Herald, a local newspaper outlet, during or about 2021, it indicated that the area and
erven around the U-Save Precinct, where she currently resides, was purchased for
this exact reason. She says that the Applicant had received a grant for the sum of R2
539 860 from the Department of Human Settlements and paid the outstanding
amount of R360 140.00 to purchase the property.
[44] She argues that the budget cut from R33 million to R8 million is self-inflicted
and that it could not be used to evade its constitutional duties. Structures were
erected due to the Applicant’s lack of housing developments. She says on
Applicant’s own version, they do not have the resources to develop a housing
project. Alternatively, for the last 20 years, the Municipality has failed to provide any
sort of housing development in that area. She has twice applied for a housing
subsidy and is hopeful that she is on the waiting list.
[45] She finally contends that there are close to 92 structures on the erven, but that
no further structures were erected after 22 October 2025. She says if the order were
to be granted to demolish the structures on the land, she would lose her home. She
has been in this property for more than six months, and all her earthly possessions
are in her home, which is currently under threat of being demolished. In total, she
says that according to her estimation, more than 90 families would be affected by
any order that would be granted.
Discussion
[46] At the start of these proceedings, counsel for the Applicant maintained that this
was not an eviction since there were no people living on the erven. These were
merely structures that had to be demolished. He averred that the belated legal
representation, which, he contended the Applicant did not intend taking issue with,
was simply ‘kicking the can further down the line’ since the Respondents had no
defence and that the Applicant was entitled to its relief.
[47] In court, it was evident that close to a hundred people were present, all of them
ostensible occupiers of the erven and eager to know whether their homes would be
demolished. The presence of these occupiers at court did not deter the Applicant at
all. In fact, they were more determined to persuade Court that they were entitled to
their relief, despite the presence of the occupiers. Mr Van der Schyff argued that the
Applicant had complied with the Goliath order and had participated in the ADR
process. He argued that just because there was no outcome, did not mean that there
was no process. He argued that to entertain another postponement for the purposes
of filing further papers or reports was fruitless. He averred that the answering
affidavit by certain of the respondents evidenced one thing - that the best defence
that they had was that they had no defence.
[48] Unfortunately for Mr van der Schyff, the matter is not that simple. In fact, the
Court remarked that it seemed that the Applicant wanted to the Court to ‘wish away’
or simply ignore the presence of the occupiers. That they persisted with such gusto
and disregard for the constitutional and human rights of the occupiers indicated a
glaring lack of appreciation of the legislation and the constitution. To my mind,
intentionally and unlawfully so.
[49] The Full Bench in the matter of South African Human Rights Commission and
Others v City of Cape Town and Others4 (“Qolani”) dealt with a similar issue where
the City of Cape Town, under the guise of counter-spoliation sought to demolish
structures without the need of applying the provisions of the PIE act. I am of the view
that this is precisely what the Applicant here, in casu, unlawfully so, seeks to do.
[50] I say this for the following reason. The issue in Qolani dealt with the legality of
the City of Cape Town’s demolition of erected structures within its jurisdiction and
whether the common law on counter spoliation, which it had relied on in defence of
its action, passed constitutional muster. Here though, it is common cause that the
Applicant is seeking a court sanction to, inter alia, demolish the occupiers’ home
without more or judicial investigation or engagement. Mr van der Schyff argued that
the land was unoccupied and that the order that the Applicant seeks is to prevent the
occupiers from invading the land. Whilst this is one of the grounds of relief, it is not
the primary motivation – the Applicant want to secure the property by preventing
occupiers from invading the land and demolishing the existing structures despite
approbating and reprobating the fact that the structures constitute the homes of the
occupiers. On the Applicant’s own version, some six structures are occupied. In the
ADR, it was known that occupiers were present on the erven. Yet on the day of the
hearing, despite this knowledge, it indicated in its address and in its practice note,
that it was persisting with the order of demolition, despite it not forming part of the
interim relief granted by Fortuin J.
[51] On the Respondent’s version, there are in excess of seventy people occupying
the various erven, most notable the area behind U-Save. What does the Applicant do
with this information? It persists. In its service affidavit, it annexed various
with this information? It persists. In its service affidavit, it annexed various
photographs5 depicting compliance with the service of the notice of motion, together
with annexures. We now know that the annexures were not annexed. The service
affidavit deposed to by Lwandile Nkankula attorney of record for the Applicant
indicates that the process was served and affixed to various premises throughout the
Smutsville Community in the Knysna, Sedgefield district. There is no key to each
4 (8631/2020) [2022] ZAWCHC 173; [2022] 4 All SA 475 (WCC); 2022 (6) SA 508 (WCC) (15 July
2022). On 1 July 2020, Mr Qolani was forcefully dragged out of his informal structure in Khayelitsha
by officials of the City of Cape Town and they thereafter proceeded to demolish his structure with
crowbars.
5 Marked as “A1 to A25”
photograph. Photos A3 and A4 depict poles, structures and homes with at least
close to twenty people in the background facing the police officers. Photos A6, A11,
A12, A20, A21 depict the affixing on complete structures. Some photos indicate the
start of erection of structures6.
[52] In the service affidavit7 of the interim court order of Fortuin J, Mr Nkankula
confirmed that he, together with officers of the Applicant’s Law enforcement
department together with the South African Police Services duly addressed the
illegal occupiers; asked the illegal occupiers to take copies of the court order after
explaining the contents thereof to them; explained the contents again to individuals
whom had questions; and confirmed that the court order was affixed on all illegal
structures erected on the site as well as the U-Save building ‘which photographs of
the court order on the said site and illegal structures are attached as set-out in the
attached schedule of service marked Annexure “SA1”. Again, it is evident that
complete structures are depicted in the photographs.8 In fact, in some photographs,
locks on doors are clearly depicted. In sum, it is clear that the occupiers of the erven
were engaged with during the service of the application and interim order. Thus, for
Mr van der Schyff to contend that there are no people that will be affected should a
final order be granted is misguided and misleading, even on its own papers.
[53] At the hearing of the matter, I advised the Applicant that I was of the view that
the application contained some serious deficiencies. Regarding the aspect of
urgency, it did not indicate that building work was imminent or that bulldozers were at
the ready to break ground which necessitated the urgent demolition and removal of
illegal occupiers. Our courts are clear – if people are unlawfully occupying land, an
application in terms of PIE should be sought and the process followed. This the
application in terms of PIE should be sought and the process followed. This the
Applicant failed to do, despite knowledge that many occupiers, and not just the six
that it attempted to show, were present on the erven. To be clear, even if there was
one structure with occupants, the application of PIE should have been employed.
[54] The City of Cape Town in Qolani accepted that where structures have been
erected on the land and have been occupied as homes, then it would have to
6 A3, A8, A13, A18
7 dated 25 November 2025
8 Photos A10 to A20
approach the court in accordance with the provisions of PIE.9 The City there had
also argued that its ability to evict people from land unlawfully occupied is hamstrung
in that when it seeks an eviction order, it must provide emergency accommodation
for the persons in unlawful occupation and who are evicted.10 In casu, here the
Applicant avers that people should not be allowed to jump the proverbial queue as
there is a waiting list and that self-help cannot be condoned. Mr Van der Schyff also
contended, although this was not evident on the papers as to when or how this
would occur, that if the order is not granted, then the Applicant will ostensibly lose
the budget for it to commence with the housing project.
[55] Firstly, the Court in Qolani correctly pointed out that the City’s, (and any
municipality) obligation to provide emergency accommodation does not arise from
the demolition of structures or the eviction of persons, but from section 26(2) of the
Constitution and the Constitutional Court judgment of Grootboom.11
[56] In Qolani, the debate also surrounded when, for purposes of a definition of a
‘home’, a structure would be construed as a place of dwelling; the question of
whether an occupier was in peaceful and undisturbed possession of a structure even
if it was not erected completely; and the progress of the erection of the structure, in
other words was it from the installation of poles or to the completion of a roof. Whilst
this is not a question that has to be answered in this case, it is relevant insofar as the
Municipality’s assertion that it is not required to apply the PIE act.
[57] Why is this necessary? It is the Applicant’s case seemingly that the structures
on the erven do not amount to occupied homes which would require them to apply
the provisions of PIE. The court in Qolani when assessing when one occupied a
place for possession stated that effective physical control must be exercised over the
place for possession stated that effective physical control must be exercised over the
object which is the subject of the possessory claim. Effective physical control is
context sensitive as the nature of the object, as well as its use and objectives would
determine what manner of control is required to constitute physical control. In the
circumstances, the construction of incomplete structures could very well amount to a
9 At para 34
10 At para 35
11 Qolani at para 35; The Government of the Republic of South Africa and Others 2001 (1) SA 46
(CC)
physical manifestation of the possession, as set out by Yeko v Qana, of the land with
an intent to derive some benefit.12 The court went on to state that there, both the City
and the Province accepted that such structures would and could only be demolished
and persons evicted thereform in terms of a court in application of the provisions of
PIE. Here, the Knysna municipality is under the misguided view that this does not
apply to it.
[58] The Applicant approaches this court under a guise of an interdict, but what the
eventual relief would amount to is counter spoliation. The court has stated that it
appeared that the City there (in Qolani), uses the remedy of counter spoliation as a
means of obtaining final relief which do not require judicial intervention. This is
precisely the modus adopted by the applicant. It is of the view that it can circumvent
the provisions of PIE by slipping in a relief for the demolition of homes, without
judicial enquiry or intervention. The court has held that counter spoliation could never
lawfully justify the eviction from occupied informal structures. When informal
structures are occupied, the occupants must be dealt with in terms of PIE.13
[59] The Applicant in argument contends that the matter is urgent because of the
budgetary constraints and that the budget may be lost. Yet it does it explain when
the initial budget allocation of R 33 million was granted and why it failed to then
implement the low-cost housing development. The Applicant fails to take the court
into its confidence on this aspect, proceeds to make sweeping and generalised
statements about a budget about to be lost and leaves the court to speculate.
[60] In fact, most of the reliance on this supposed urgency of a potential budget loss
is not borne out by the papers. Most certainly, that was not the grounds relied upon
for coming to court on an urgent basis. It is evident from the founding affidavit that
for coming to court on an urgent basis. It is evident from the founding affidavit that
the only aspect relating to urgency is contained in paragraphs 31 and 32 of the
founding affidavit which deals only with the Applicant’s assertion that the matter is
urgent because of the Respondents alleged pace of erecting the unlawful dwellings
and needing to stop same.
12 ibid at para 66
13 Ibid at paras 83 to 88
[61] The Applicant finally contends that in reliance for its relief, that there would be
no prejudice to the Respondents as they are simply embarking on unlawful self-help
and not being ordered to do anything other than obey the laws of the land as they
are ordinarily compelled to do. To this end, the court in Qolani reiterated the trite
principle that self-help by way of taking the law into ones own hands is inconsistent
with and undermines the Rule of Law which is one of the founding principles of our
democracy.14 However the court recognised that in limited circumstances, a party
may take the law into her/her own hands by using the defence of counter spoliation
against a wrongful disturbance of his/her peaceful and undisturbed possession. Self-
help, per se, may not always be unconstitutional as the Constitutional Court has
recognised, that if good reason exists, a party may have need to resort to self-help.
[62] With regard to a Municipality’s constitutional obligations, the majority judgment,
following City of Johannesburg v Blue Moonlight Properties15 held:
‘I acknowledge that the City operates within finite resources and must make difficult
decisions about how to allocate those resources most effectively to meet the needs of its
diverse population. However, a lack of resources cannot be accepted as an excuse in the
present circumstances, because that is simply not the reasoning behind its failure to
prioritise emergency housing. The availability of resources is evident. The City cannot
hide behind the argument that it is providing social housing in the inner city by
disregarding its crucial responsibilities in relation to emergency housing. Those whose
needs are most urgent and whose ability to enjoy all rights is most in peril, must not be
ignored. The City’s commitment to long-term social housing plans should not come at the
expense of addressing urgent concerns. This is particularly the case when one considers
expense of addressing urgent concerns. This is particularly the case when one considers
the applicable waiting lists prevalent in the applications for state-subsidized housing and
the policies against queue-jumping. The right of access to adequate housing, especially
in emergency situations, is a fundamental human right that demands immediate
attention. This Court cannot ignore the City’s failure to progressively realize its
constitutional obligation in terms of section 26 as far as emergency housing is
concerned.’ (“Own emphasis”)
14 Ibid at para 25
15 City of Johannesburg v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC) [2011] ZACC
33; 2012 (2) BCLR 150 (CC); 2012 (2) SA (CC) (1 December 2011). In this case, the Court identified
the obligation to plan to provide housing in instances of emergency. Thus, it developed jurisprudence
on the right to alternative accommodation as a shield against homelessness in addition to other
existing housing programs.
[63] In the context of PIE and with reference to Section 26 (3) of the Constitution,
the court referred to the contentions raised by the Minister of Human Settlements,
who pointed to the decision of Port Elizabeth Municipality v Various Occupiers [2004]
ZACC7; 2005 (1) SA 217 (CC) which emphasised the following:
‘[18] It is not only the dignity of the poor that is assailed when homeless people are
driven from pillar to post in a desperate quest for a place where they and their families
can rest their heads. Our society as a whole is demeaned when State action intensifies,
rather than mitigates, their marginalisation. The integrity of the rights-based vision of
the Constitution is punctured when governmental action augments, rather than
reduces, denial of the claims of the desperately poor to the basic elements of a decent
existence. Hence the need for special Judicial control of a process that is both socially
stressful and potentially conflictual.’ (“Own emphasis”)
[64] There is an interim order in place prohibiting the Respondent from intimidation
and violence against employees and assets of the Applicant. Violence can never be
condoned. However, a citizen right to protest is also protected. Whilst it is so that the
Applicant is obligated to secure its property, it should do so in a reasonable fashion
without trampling on the rights of its citizens.
[65] In summary, it is my prima facie view that the Applicant is attempting to
circumvent the Prevention of illegal and Unlawful Occupation of land Act, 19 of 1998
(“PIE”). Section 26(3) of the Constitution16 provides that “No one may be evicted
from their home, or have their home demolished, without an order of court made,
after considering all the relevant circumstances. No legislation may permit arbitrary
evictions.” (Own emphasis).
[66] I am therefore of the view that the matter should be referred back to the
Municipality, for it to provide proposals for alternative emergency accommodation.
Municipality, for it to provide proposals for alternative emergency accommodation.
This must be done in conjunction with the provincial government, lest a repeat of the
so-called ADR process occurs. The responsibility to ascertain and procure such
emergency accommodation lie with the Municipality in such an instance, and not on
the Respondents. This obligation is trite.
[67] I am also of the view that nothing prevents the Applicant from providing ablution
facilities on the said erven pending the Respondent’s relocation to alternative
temporary emergency accommodation.
16 Constitution of the Republic of South Africa, 1996
[68] Given the above findings, the interim order will be amended to reflect and
protect the rights of those occupants whose names will appear on the joint list of
persons until the finalisation of the process of securing temporary alternative
accommodation to those who qualify.
[69] In the circumstances, the following order is made.
ORDER
1. The application is postponed to a date to be arranged before
Kusevitsky J. pending the finalization of the process as described
in paragraphs 3, 4 and 5 below.
2. The order and judgment including the entire application is to be
served on The Western Cape Minister of Local Government,
Environmental Affairs and Development Planning and the Minister
of Human Settlements.
3. The Respondents are to compile a list of all the occupiers on the
aforementioned erven as at 24 October 2025. The list is to include
the name and ages of the occupiers, the date upon which they
took occupation on the aforesaid erven; women headed
households and any disabled persons. Furthermore,
3.1 The list should be a composite joint list (“the joint list’) of all
the occupiers on the erven, to be compiled jointly by the
legal representatives for the Respondents.
3.2 The joint list is to be accompanied by an affidavit which will
provide a summary of the exact number of occupiers,
including the total amount of households located on the
said erven.
3.3 The joint list should be filed by Friday, 12 June 2026.
--
4. Upon receipt of the joint list, the Applicant is to provide a report
and a list of emergency temporary alternative accommodation to
those occupiers who require same by 31 July 2026.
5. The report on the provision of emergency alternative
accommodation should be done in consultation with the relevant
governmental departments including the Western Cape Minister
of Local Government, the Minister of Human Settlements and/or
any other governmental department under whose jurisdiction the
said erven may fall.
6. It is recorded that Legal Aid has come on record for certain of the
occupiers. Those Respondents, should they so wish, are to file
their answering affidavit by 12 June 2026.
7. Paragraphs 2 and 3 of the interim order granted on 24 October
2025 is amended as follows:
7.1 The Respondents, except for those who have been listed
on the joint list, are restrained from entering onto the erven
listed and set out in Annexures A and B of the notice of
motion. For the sake of clarity, the joint list is a compilation
of occupiers who have been on the said erven as at 24
October 2025.
7.2 The Respondents, other than those listed on the joint list
and who already occupy existing structures, are restrained
from entering upon any new unlawfully erected structures.
8. A final order is granted in the following terms:
8.1 The Respondents are restrained from erecting any
structure and/or further structures on the erven as set out
in annexures A and B.
8.2 The Respondents are restrained from damaging and/or
removing any property belonging to the Applicant found
thereon.
8.3 The Respondents are restrained from assaulting and/or
threatening any of the Applicant’s officials in general and
specifically when attending meetings with the Applicant
and/or members of the Smutsville community.
9. Pending the return date to be determined, paragraph 7 and the sub-
paragraphs thereof shall operate as an interim interdict.
10. The Applicant is ordered to provide ablution facilities on the erven pending the
resolution and relocation of the Respondents pursuant to paragraph 5 above.
______________________
D.S KUSEVITSKY
JUDGE OF THE HIGH COURT
APPEARANCES
FOR APPLICANT : ADV. J VAN DER SCHYFF
INSTRUCTING ATTORNEY : HARKER ATTORNEYS INC
: MS L HARKER
FOR RESPONDENTS : ADV. D TRIETSCH
: ADV. REINECKE
: ADV. L VAN WYK – LEGAL AID