IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-071181
DATE: 28 July 2026
In the matter between:
ABR INVESTMENTS (PTY) LIMITED Applicant
and
ZELDA SYLVIA MITCHELSON First Respondent
THE UNLAWFUL OCCUPIERS OF
UNIT 215 CASINO ROYALE, 10 HATHAWAY STREET,
GRESSWOLD, JOHANNESBURG Second Respondent
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Third Respondent
Neutral Citation: ABR Investments v Mitchelson and Other s (2025-071181)
[2026] ZAGPJHC --- (28 July 2026)
Coram: Adams J
Heard: 7 May 2026
Delivered: 28 July 2025 – This judgment was handed down electronically by
circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 10:30 on 28 July 2026.
Summary: Civil procedure – eviction application – section 4 of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) –
unlawful occupation – eviction – statutory eviction – meaning of ‘valid defence’
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in PIE Act, s 4(8) – when unjust or inequitable to evict, unlawful occupiers not
having valid defence – lease agreement lawfully cancelled as a result of breach
– unlawful occupation established – onus on unlawful occupier to demonstrate
circumstances meriting limitation of owner’s rights – no valid defence raised –
just and equitable to grant eviction – application for eviction granted. –
Eviction application granted.
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ORDER
(1). The first respondent and all those occupying by, though and under her
(‘the respondents’) shall vacate the leased premises , being Unit 215
Casino Royale, 10 Hathaway Street, Gresswold, Johannesburg ( ‘the
property’) within three months from date of this order.
(2). In the event of the respondents and/or all those persons occupying
through or under them failing to vacate the property within three months
from date of this order , the Sheriff of this Court or her/his duly appointed
Deputy, is authorised and directed to forthwith enter the property and to
evict from the property the respondents.
(3). The first and second respondents, jointly and severally, the one paying the
other to be absolved , shall pay the applicant ’s costs of this opposed PIE
Act Eviction application, which costs shall include Counsel’s charges on
scale ‘B’ of the tariff referred to in Uniform Rule of Court 67A(3), read with
rule 69.
JUDGMENT
Adams J:
[1]. This is an application by the applicant in terms of s 4 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 1 (PIE Act). The
applicant applies for orders evicting the first and the second respondents
(‘respondents’) from the residential property, being Unit 215 Casino Royale, 10
Hathaway Street, Gresswold, Johannesburg . The property is owned by the
applicant and the respondents are presently in unlawful occupation of same in
1 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
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that they are not paying rental for which they are liable in terms of the lease
agreement in relation to the property, nor do they lawfully occupy the property in
terms of any other rights entitling them to occupy the property to the exclusion
of the lawful owner, being the applicant. The applicant ’s ownership of the
property is not in dispute.
[2]. From 1 May 2010, the first respondent occupied the property pursuant to
a written lease agreement. It is the case of the applicant that the lease
agreement was lawfully cancelled on 16 March 2023 because the first
respondent was in breach of a material term in that she failed to pay the
monthly rental due. The first respondent denies that the lease was lawfully
cancelled and raises a defence based on the applicant's alleged failure to
comply with its obligations in terms of the Rental Housing Act, in particular
regarding the interest on her deposit . The first respondent alleges that she has
been ‘entrapped’ in the property.
[3]. The other defence raised by the respondents is that it would not be just
and equitable for this court to order their eviction as they would be rendered
homeless by an eviction order. They have therefore placed before court certain
personal circumstances, which, according to them, demonstrate the inequity
and injustice that would result from their eviction.
[4]. The main question s to be considered by me is therefore whether the
respondents are in unlawful occupation of the property and whether it would be
just and equitable to evict the res pondents from the property. Closely related to
this issue is the question whether any person is likely to be rendered homeless
as a result of being evicted from the property.
[5]. These issues are to be decided against the factual backdrop and the
circumstances in the matter as set out in the paragraphs which follow.
[6]. The applicant’s case is that t he lease agreement between the parties
was lawfully cancelled, and the first respondent, who has not paid any rental
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since February 2023 whilst remaining in occupation of the property since then,
was given notice to vacate the property by 30 April 2023. Her continued
occupation is without the consent of the applicant.
[7]. Despite such demand and notice of cancellation having been given by
the applicant to her, the first respondent failed to pay the arrear rental and failed
to vacate the property. As the applicant was entitled to do i n terms of the lease
agreement, it cancelled the lease due to the first respondent’s failure to pay
rental. The breach has, in my view, been established – the first respondent has
not paid rent since February 2023. The cancellation is therefore valid. What is
more is that the applicant obtained a monetary judgment against the first
respondent for arrear rentals in the Alexandra Magistrate's Court , which
judgment to date remains outstanding . The first respondent’s persistent failure
to pay rent, even after judgment, is ample evidence in support of her breach of
the lease agreement and its valid cancellation.
[8]. The defence raised by the first respondent based on the supposed
invalidity of the cancellation is therefore without merit and should be rejected.
The lease agreement was validly cancelled, and the first respondent's right of
occupation has ceased.
[9]. The next question is whether the first respondent is entitled to remain in
the property on any other basis. She alleges that the applicant failed to comp ly
with its obligations in terms of the Rental Housing Act, specifically the failure to
pay interest on her deposit, and that this amounts to an unfair practice. She also
claims that her son is unemployed and she is a pensioner. None of these
allegations, even if true, entitle her to remain in occupation of the property
indefinitely without paying rent.
[10]. The simple point is this: The deposit and any interest that may have
accrued have been allocated to the unpaid rentals, which are significant. In any
accrued have been allocated to the unpaid rentals, which are significant. In any
event, the first respondent was not entitled, in terms of the lease, to appropriate
the deposit towards rental or to withhold rental. Her contention that she was
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entitled to a refund of her deposit before vacating is without merit, as the
deposit is intended to cover unpaid amounts owed by the tenant. The applicant
even tendered to pay the first respondent the amount of R35 223.41 to facilitate
her vacating the property, but this tender was not accepted. This indicates bona
fides on the part of the applicant and that the first respondent’s purported
grounds of opposition to the eviction application are without merit.
[11]. The first respondent’s reliance on the Rental Housing Tribunal ruling is
equally misplaced. The Tribunal found that the first respondent was in breach of
the lease agreement. It is also notable that the first respondent did not dispute
the cancellation of the lease before the Tribunal. The proceedings before the
Tribunal were for different arrear rental amounts and do not affect the validity of
the cancellation or the applicant’s right to seek eviction.
[12]. The point is simply that the ‘legal’ defences raised by the first respondent
to the eviction application is without merit. Her allegations of an unfair practice
do not constitute a defence to the eviction, as the remedies for such practices
are to be pursued through the Rental Housing Tribunal, not by withholding rent
or refusing to vacate the property. To allow a tenant to remain in occupation
based on a dispute about interest on a deposit would be an abuse of process,
especially where the tenant has not paid rent for about three years.
[13]. I am therefore of the view that the first respondent does not have a valid
defence to the eviction application.
[14]. The last issue which I need to address relates to whether or not it would
be just and equitable to evict the first respondent and all those occupying
through or under her from the applicant's property. In that regard, the first
respondent has pointed out that she is a 67 -year-old pensioner, w ho is
financially depended on a monthly state pension. She lives with her
financially depended on a monthly state pension. She lives with her
unemployed adult son, whose business, so the first respondent avers, collapsed
during Covid and he has since then been unemployed.
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[15]. Section 4(7), (8) and (9) of the PIE Act reads as follows:
‘(7) If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated, a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been made
available or can reasonably be made available by a municipality or other organ of
state or another land owner for the relocation of the unlawful occupier, and
including the rights and needs of the elderly, children, disabled persons and
households headed by women.
(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine –
(a) a just and equitable date on which the unlawful occupier must vacate the land
under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlawful occupier
has not vacated the land on the date contemplated in paragraph (a).
(9) In determining a just and equitable date contemplated in subsection (8), the court
must have regard to all relevant factors, including the period the unlawful
occupier and his or her family have resided on the land in question.’
[16]. In deciding whether eviction would be just and equitable, the court is
required to consider 'all the relevant circumstances', to include the factors
specified in these sections. The weight to be afforded to those circumstances,
the determination of such further circumstances as might be relevant and the
weight to be afforded to them, as also the balance ultimately struck, are matters
left entirely to the judgment and discretion of the court.
[17]. The onus of demonstrating the existence of circumstances meriting the
[17]. The onus of demonstrating the existence of circumstances meriting the
limitation of the owner's right to possession is on the unlawful occupier. In
Ndlovu v Ngcobo; Bekker and Another v Jika 2, t he Supreme Court of Appeal
held at para 19 as follows: -
2 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA).
8
‘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.’
[18]. On the basis of these general principles , I conclude that the first
respondent has not provided sufficient evidence to show that it would be unjust
and inequitable to grant the eviction order. While she is a pensioner, her adult
son is an able -bodied adult who was previously employed and can seek
alternative accommodation. The first respondent’s financial hardship, while a
relevant consideration, must be balanced against the significant prejudice
suffered by the applicant, who has been denied rental income for about three
years.
[19]. Moreover, the first respondent conveniently does not deal with the fact
that she is clearly in a position to afford alternative accommodation, She was,
after all, until 2023 able to pay rental in respect of the property and only stopped
payment when she, in her mind, conceived of a dispute which, according to her,
entitled her to stop payment of the monthly rental. This means that she would
probably be able to pay rental at alternative accommodation, which she should
arrange for her and her son. By all accounts, it does not appear that she or her
son would be rendered homeless if an eviction order is granted against them.
[20]. Speaking of alternative accommodation, the first respondent has
submitted an application for accommodation with the City of Johannesburg. The
City of Johannesburg, as the third respondent, has not been called upon to
provide a report on the availability of alternative land for the relocation of the
unlawful occupiers. In City of Johannesburg Met ropolitan Municipality v Blue
unlawful occupiers. In City of Johannesburg Met ropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd and Another 3, the Constitutional Court
emphasized the interplay between the PIE Act and the duties of the
3 Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2)
SA 104 (CC).
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municipality. In this matter, the first respondent did make application to the City
for temporary emergency accommodation, but she herself did not follow through
on such application. Moreover, as I have already found, the first respondent and
her son are not facing homelessness as a result of the eviction.
[21]. In all of these circumstances, I am of the view that the eviction of the first
respondent and all those occupying through or under her will be just and
equitable. I am also of the view that affording the respondents a period of three
months to vacate the property would be eminently just and equitable. The first
respondent has been in occupation of the applicant’s property for a long time,
and she and her son may need some time to find alternative accommodation.
And it is mainly for this reason that I intend granting them an additional period of
three months within which to vacate the property . Should they fail to vacate
within the prescribed period, the Sheriff will be authorised to evict them.
[22]. Accordingly, the relief sought by the applicant should be granted. As for
the costs of this opposed Eviction Application, same should follow the suit.
Order
[23]. Accordingly, I make the following order:
(1). The first respondent and all those occupying by, though and under her
(‘the respondents’) shall vacate the leased premises, being Unit 215
Casino Royale, 10 Hathaway Street, Gresswold, Johannesburg (‘the
property’) within three months from date of this order.
(2). In the event of the respondents and/or all those persons occupying
through or under them failing to vacate the property within three months
from date of this order, the Sheriff of this Court o r her/his duly appointed
Deputy, is authorised and directed to forthwith enter the property and to
evict from the property the respondents.
(3). The first and second respondents, jointly and severally, the one paying the
other to be absolved, shall pay the applicant’s costs of this opposed PIE
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HEARD ON: 7 May 2026
JUDGMENT DATE: 28 July 2026 – Judgment handed
down electronically
FOR THE APPLICANT: (Ms) S Kabelo
INSTRUCTED BY: KWA Attorneys,
Victoria, Johannesburg
FOR THE FIRST and THE
SECOND RESPONDENTS: T L Mabilo
INSTRUCTED BY: T L Mabilo Incorporated Attorneys,
Johannesburg
FOR THE THIRD RESPONDENT: No appearance
INSTRUCTED BY: No appearance