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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2022/044249
In the matter between:
In the matter between:
THE CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY APPLICANT
and
JAKOB ABSALOM FIRST RESPONDENT
LEEDUCK YORK SECOND RESPONDENT
COLLIN JOSEPH CAHMEE THIRD RESPONDENT
MAURICK GLAYTON GILMOUR FOURTH RESPONDENT
ABSALOM JAKOF FIFTH RESPONDENT
AURIEL SUE YIN WORRIES SIXTH RESPONDENT
DAVID YORK SEVENTH RESPONDENT
IMALDA LYNETTE McCLAREN EIGHTH
RESPONDENT
PAILMAN BRUCE RAYMOND NINTH RESPONDENT
ASHRAFLOGART TENTH RESPONDENT
RASHILDA LOGART ELEVENTH RESPONDENT
ESSOP LOGART TWELFTH RESPONDENT
JABULANI PETER ROBERT NCUBE THIRTEENTH RESPONDENT
PHILLIP McBRIDE FOURTEENTH RESPONDENT
HESTER PETZER FIFTEENTH RESPONDENT
AZALIA ASHLEY KRUGER SIXTEENTH RESPONDENT
HERMAN EKSTEEN SEVENTEENTH RESPONDENT
PATRICIA MARTINS EIGHTEENTH RESPONDENT
THELMA D'OLIVIERA NINETEENTH RESPONDENT
RICHARD DANIEL McNIEL TWENTIETH RESPONDENT
LAURAINE McNIEL TWENTY-FIRST RESPONDENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ _________________________
DATE SIGNATURE
CHERYL WAGNER TWENTY-SECOND-RESPONDENT
THE FURTHER UNAWFUL OCCUPIERS
OF THE UNITS OCCUPIED BY THE
1st - 23rd RESPONDENTS BY EXTENSION TWENTY -THIRD RESPONDENTS
JUDGMENT
WENTZEL -THOMPSON J
Introduction
[1] The applicant, the City of Johannesburg Metropolitan Municipality (“the City”),
seeks the eviction of the respondents from Donovan McDonald Old Age Centre
(“the Old Age Centre”) situated at 1[…] M[…] and D […] P[…] Streets,
Maraisburg, Roodepoort. The proceedings are brought in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (“PIE”).
[2] Although numerous respondents are cited in the notice of motion, only the 1 3th
respondent, Jabulani Ncube, formally opposed the relief sought and was
represented at the hearing on 4 May 2026. However, I was informed by the 13
th
respondent at the hearing that , although he had engaged attorneys , they were
not available, and thus was in the process of obtaining new attorneys. I
accordingly stood the matter down until 8 May 2026, at which point Saders
Attorneys had come on board and were prepared to represent the 13
th
respondent on a pro bono basis. I commend these attorneys.
[3] The other respondents who appeared before me were not represented.
[4] The 13th respondent occupies Simplex Double Unit 1[…] , that had previously
been allocated to his now deceased parents. He came to occupy the unit in
order to care for them.
[5] The 14
th respondent, Phillip McBride, occupies Simplex Double Unit 2[…] , that
was previously occupied by the 15th respondent, Hester Pester, that he
refurbished after it had been destroyed by fire.
[6] The 16th respondent, Azalia Kruger, occupies Simplex Double Unit 3[…] , the
unit allocated to the 17 th respondent, Herman Eksteen, together with her
husband, allegedly to look after Mr Eksteen.
[7] The 21 st respondent, Laurain McNiel , did not represent herself and instead,
was represented by her r daughter, Glynis Mordaunt, who also resides at the
Old Age Centre together with her husband in their own unit.
[8] I was informed that the City was only proceeding against the aforementioned
four respondents as the other respondents had either vacated the Old Age
Centre or had subsequently died.
[9] As most of the respondents appeared in person, I entertained their
representations without requiring that they depose to affidavits in support of
their submissions. I also afforded them the opportunity to upload documentation
in support of their cases. Only Mrs Mordaunt and Mr McBride (the 14
th
respondent) did so, which I have had regard to in preparing this judgment.
[10] The Applicant approaches the Court both as owner of the property and as an
organ of state constitutionally burdened with obligations relating to housing and
dignity under section 26 of the Constitution. The property forms part of a
municipal housing facility intended to accommodate elderly persons. T he City’
entitlement to regulate and preserve scarce accommodation to house the
elderly must be weighed against the constitutional requirement that evictions
occur only where they are just and equitable.
The stance adopted by the City
[11] In the founding affidavit, deposed to by Patrick Phophi, the Executive Director
within the City’s Department of Human Settlements, it is explained that the Old
Age Centre is one of the facilities administered by the City in fulfilment of its
broader housing and social responsibilities towards senior citizens. However,
he stressed that the facility is intended to provide affordable accommodation to
elderly residents who qualify in terms of the applicable municipal allocation
elderly residents who qualify in terms of the applicable municipal allocation
framework. The policy documents attached to the papers confirm that the City
has adopted a structured housing allocation system directed at ensuring
fairness, transparency and proper utilisation of limited housing resources.
Those policies recognise accommodation for senior citizens as a distinct
category of municipal housing and contemplate that such accommodation
should remain available only for persons who satisfy the relevant criteria.
[12] The City further emphasised that the housing provided is required only to be
occupied by the elderly persons themselves and does not permit occupation by
dependants or extended family members. The rationale underlying the se
restrictions is self -evident; municipal housing resources are finite and
accommodation specifically reserved for elderly persons necessarily serves a
specialised social function. If indefinite occupation by younger family members
or unrelated persons were tolerated irrespective of policy requirements, the
integrity of the allocation system would inevitably be compromised and
qualifying elderly persons awaiting accommodation would be unfairly
prejudiced.
[13] The City contends that the remaining respondents occupy units unlawfully as
they have not concluded lease agreements with the City , nor have they been
allocated the units that they occupy. In relation to the 13
th respondent, the City
alleges that he occupies the relevant unit without a lease agreement and
without authorisation from the municipality. It was also claimed that the 21st and
22nd respondents have minor children residing with them.
The case of the 13th respondent
[14] In his answering affidavit, Mr Ncube does not contend that he enjoys a
presently enforceable contractual right to remain indefinitely in occupation. His
case is instead founded upon the history of his occupation, the City’s alleged
knowledge and acquiescence, his personal circumstances, and the
constitutional implications of his eviction. He explains that his parents were
residents at the Old Age Centre and that he moved into the unit during
approximately 2018/2019 in order to care for them during period of ill health.
approximately 2018/2019 in order to care for them during period of ill health.
According to him, social workers from the Department of Social Welfare
hereafter approached him and requested that he permanently reside with his
parents as his mother was in a wheelchair and his father had broken his leg.
[15] This was suggested to him, so Mr Ncube says, to avoid their having to go to
frail care. Following this recommendation, Mr Ncube admits that he and his two
minor then school-going children moved in to stay with his elderly parents so
that he could look after them. According to Mr Ncube , members of the City
hereafter later cam e to visit his parents and were aware of his presence and
that of the children in his parent’s unit. However, Mr Ncube explains that
subsequently, both of the minor children moved in with their mother and no
longer live in the unit.
[16] Although Mr Ncube’s subsequently parents passed away, he nevertheless
remained in occupation because, so he says, he had nowhere else to live and
lacked sufficient financial resources to secure alternative accommodation. He
claims that he informed municipal officials of his position after his parents’
deaths and sought assistance regarding his circumstances, but the matter was
never properly resolved. He alleges that eviction would render him homeless.
[17] Mr Ncube’s parlous financial circumstances are established on the papers
before me. They reveal that Mr Ncube’s income is irregular and derived largely
from occasional piece work. H e thus contends that eviction, absent meaningful
engagement and proper consideration of his vulnerability, would not be just and
equitable. He concedes, however, that he should only be entitled to occupy a
single unit and is prepared to move out of the double unit that his parents had
occupied.
[18] In its replying affidavit, t he City does not materially dispute the factual basis
upon which Mr Ncube originally came to reside at the property ; nor does it
seriously dispute that his occupation may have been known to municipal
officials for a substantial period. Instead, the City reiterates that Mr Ncube does
not qualify under the applicable housing policy governing accommodation for
senior citizens and that he has not established entitlement to emergency or
senior citizens and that he has not established entitlement to emergency or
alternative accommodation. More importantly, the City contends that his elder
daughter is an attorney who he could live with.
[19] Mr Ncube disputes this and says that both of his minor children live with their
mother and his major daughter is certainly not an attorney, but is in fact
unemployed and is presently living with her grandmother in a backroom in
Soweto.
[20] Apart from stating that Mr Ncube could stay with his daughter, the applicant has
also not provided the Court with any proper assessment of the respondent’s
circumstances and does appear to have carried out any meaningful
investigation into whether homelessness would follow his eviction. There is
similarly no evidence of sustained engagement aimed at identifying practical
alternatives or transitional arrangements.
[21] Mr Ncube informed me that he is now 62 years old and as such, now himself
qualifies for City housing for the aged. The City argues that it would be unfair to
allow Mr Ncube to “jump the queue”, as it were , where there may be more
deserving applicants. This is particularly so as Mr Ncube was yet to make an
application for housing for the aged with the City.
[22] The applicant’s counsel pointed out that Mr Ncube had, had 4 years to
regularise his affairs and that he had not established that, should he be evicted,
he would be rendered homeless.
[23] Subsequent to the hearing, Mr Ncube called me personally, despite being
represented, to say that he had made an application for residence at the Old
Age Facility. I impressed upon him to upload his application. No such
application has yet been uploaded, but I am prepared to accept that he has
indeed made the requisite application.
The case for the 14
th respondent
[24] The 14 th respondent, Phillip McBride , occupies unit 2[ …] . He says that he
applied for occupation at the Old Age Centre during in 2018 as he and his wife
were destitute and were living in his car, but got no response. During COVID ,
he says he found a burnt out unit that had previously been occupied by the 16 th
respondent, Hester Petzer , that he said had been vacant for a year . He
informed me that he refurbished the unit himself whereafter, he and his wife,
then aged 73 years and 69 years respectively, moved into the unit.
[25] In February 2018, Mr McBride was told that his application had been approved.
However, during April 2018, Mr McBride was called and told that he had been
allocated a unit on the 6 th floor that was a single unit. The unit he had been
occupying for approximately nine years , and had refurbished, he stressed,
had been a double unit for a married couple.
[26] Mr McBride uploaded an undated letter to Ms. Mlangeni from BMK Attorne ys,
the attorneys of record of the applicant. In this letter he explained that although
he had made his application in the name of his ex -wife on 3 March 2022, he
had married his then girlfriend, who had moved in with him to the unit that had
been refurbished by him.
[27] In this letter, Mr McBride also refers to a letter sent to M s Petzer dated 24
February 2022 that he, himself had received, accusing Ms Petzer of subletting
to Mr McBride , which he said was not true as he had admittedly illegally
occupied the burnt out unit that had previously been leased to M s Petzer. He
says that he sent emails to the persons referenced in the letter to M s Petzer on
1 March 2022, to which he received no response. He says that he also sent an
email to the applicant’s attorneys on 28 April 2026, but similarly got no
response.
[28] Mr McBride also points out that his handyman skills are valued by Ms Sereme ,
who is the caretaker of the Old Age Centre who on three occasions has asked
him to ass ist in welding empty units closed and then to re- open them when
occupants had been identified.
The case for the 16
th respondent
[29] The 16th respondent is Azalia Kruger , who says that he and his wife look after
the 17th respondent, Herman Eksteen (“Eksteen”), who is 88 years of age and
stays in unit 2[… ], where he has been resident for the past 28 years. Mr Kruger
says that Mr Eksteen has no children to look after him and Mr Kruger and his
wife have been looking after him for the last 5 years. Mr Kruger contends that
wife have been looking after him for the last 5 years. Mr Kruger contends that
should they not be able to care for Mr Eksteen , he will inevitably end up in frail
care, which they say is abominable in government departments , that will
inevitably lead to his untimely death; he insists that this has been the case with
all residents moved to frail care in Soweto, where that facility is located.
The case of the 21st respondent
[30] The 21st respondent, Mrs McNiel, was represented by her daughter , who lives
at unit no 8 […] legally . Her mother, is 82 years old and occupies unit number
2[…] . In the notice of breach sent by the applicant to Mr and Mrs McNiel on 25
February 2022, it was alleged that they had minor children living with them and
were required to ensure that they vacated the unit within 7 days , failing which
she and the unlawful occupiers would be evicted.
[31] This was vehemently denied by Mrs Mordaunt who responded to the eviction
notice by insisting that her parents were then 88 years old and that her parents
had had three children, all over 60 years old who were all happily married. She
stressed that all of her parents grandchildren live with their parents (her
siblings) and did not need to stay with their grandparents. She insisted that
none of her parents’ grandchildren had ever lived with them . Accordingly, Mrs
Mordaunt, demanded that the City explain upon what basis they contended that
her parents had grandchildren living with them and demanded to know who had
told the City this. She stated that three to four weeks prior to receipt of the
eviction notice, someone from the Department had visited her parents with Ms
Sereme to ask if anyone was staying with them, besides them. The answer,
she said, was an emphatic “no”; nor did they find anyone living there. This
notwithstanding, an eviction letter was sent to her parents.
[32] Mrs Mordaunt stressed that her parents had been traumatised on receiving the
eviction notice, quite understandably as they were then 88 years old. Although
not entirely clear from the argument presented by Mrs Mordaunt , I got the
impression that Richard McNiel had since died and it was only Lauran McNiel
impression that Richard McNiel had since died and it was only Lauran McNiel
who remained at the unit. At the time of the hearing before me, she was 92
years old. This caused counsel for the applicant to suggest that she should
probably now be moved to frail care as she is incapable of looking after herself
without the assistance of Mrs and Mr Mordaunt. Mrs Mordaunt, however,
insisted that her mother is self -sufficient, and that she merely assists her with
some of her meals and her shopping as she is unable to drive anymore.
[33] Mrs Mordaunt also uploaded documents indicating that during May 2023, the
residents of the Old Age Centre received notice of an audit to be conducted in
order to determine who occupied the units . This was scheduled to take place
on 23 May 2023 and 25 May 2023. Notwithstanding this audit, during which the
Department must have established that Mrs Mor daunt did not have any one
living with her, the applicant had persisted with the application against her.
[34] What is clear from the arguments presented is that the issue concerning the
alleged unlawful occupation of the relevant units by the remaining respondents
is that their eviction has been long in the making. It is unclear why it has taken
so long for the applicant to proceed with the application.
The applicable legal principles and legislation
[35] PIE fundamentally altered the common- law approach to eviction proceedings.
Prior to the Constitution and the enactment of PIE, ownership ordinarily entitled
a landowner to vindicatory relief against unlawful occupiers. PIE introduced a
different constitutional regime in terms of which eviction may be granted only
where it is just and equitable to do so. Section 4(7) specifically requires the
Court, where occupation has endured for more than six months, to consider all
relevant circumstances including whether land has been or can reasonably be
made available by a municipality or organ of state for relocation.
[36] The Constitutional Court has repeatedly emphasised that the enquiry mandated
by PIE is not mechanical. In Port Elizabeth Municipality v Various Occupiers ,
1
Sachs J explained that courts are required to consider eviction proceedings
with grace, fairness and constitutional compassion rather than approaching
them through the rigid lens of purely private- law ownership principles. The
them through the rigid lens of purely private- law ownership principles. The
Court stressed that unlawful occupation does not automatically justify eviction
and that the judicial task is instead to reconcile competing constitutional values
in a manner consistent with human dignity and social justice.
1 2005 (1) SA 217 (CC)
[37] Equally important is the Constitutional Court’s decision in Occupiers of 51 Olivia
Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg,
2 where meaningful engagement between municipalities and
occupiers facing eviction was recognised as a substantive constitutional
mechanism rather than a mere procedural formality . Meaningful engagement
requires a genuine effort to understand the occupiers’ circumstances, explore
practical alternatives and seek solutions that minimise hardship wherever
reasonably possible. The obligation assumes particular importance where
eviction may result in homelessness or affect vulnerable persons.
[38] In this respect, I can do no more than quote the relevant paragraphs from
Justice Sachs judgment in the Constitutional Court:
“[22] A third aspect of section 26(3) is the emphasis it places on the need
to seek concrete and case- specific solutions to the difficult problems that
arise. Absent the historical background outlined above, the statement in the
Constitution that the courts must do what courts are normally expected to do,
namely, take all relevant factors into account, would appear otiose
(superfluous), even odd. Its use in section 26(3), however, serves a clear
constitutional purpose. It is there precisely to underline how non-prescriptive
the provision is intended to be. The way in which the courts are to manage
the process has accordingly been left as wide open as constitutional
language could achieve, by design and not by accident, by deliberate
purpose and not by omission.
[23] In sum, the Constitution imposes new obligations on the courts
concerning rights relating to property not previously recognised by the
common law. It counterposes to the normal ownership rights of possession,
use and occupation, a new and equally relevant right not arbitrarily to be
deprived of a home. The expectations that ordinarily go with title could clash
head-on with the genuine despair of people in dire need of accommodation.
head-on with the genuine despair of people in dire need of accommodation.
The judicial function in these circumstances is not to establish a hierarchical
arrangement between the different interests involved, privileging in an
abstract and mechanical way the rights of ownership over the right not to be
dispossessed of a home, or vice versa. Rather it is to balance out and
reconcile the opposed claims in as just a manner as possible taking account
of all the interests involved and the specific factors relevant in each particular
case.
2 2008 (3) SA 208 (CC)
[39] The jurisprudence concerning municipal obligations in eviction matters was
further developed by the Constitutional Court in City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, 3 where the it
was held that municipalities cannot remain passive where evictions foreseeably
result in homelessness. Municipalities are constitutionally required to plan and
budget for emergency housing situations and cannot avoid responsibility merely
because the occupier lacks a formal legal entitlement to remain on particular
premises. The Supreme Court of Appeal adopted a similar approach in City of
Johannesburg Metropolitan Municipality v Changing Tides 74 (Pty) ,4
emphasising that municipalities bear active constitutional responsibilities in
eviction proceedings involving vulnerable occupiers.
[40] All the above cases emphasise that eviction may only be ordered if it is just and
equitable having regard to all relevant factors.
Analysis of the facts and the legal position
[41] Against that legal background, the first question is whether the respondent s are
properly characterised as an unlawful occupier for purposes of PIE. In my view,
save for the 15 th and 21st respondents, all are as none have a lease with the
applicant. The papers do not establish that the other respondents enjoy any
presently enforceable contractual right to remain at the Old Age Centre
indefinitely. All, however, have been in occupation of the units in which they
reside for more than 4 years, and at least more than the statutorily required 6
months.
The evaluation of the case of the 13th respondent
[42] In the case of the 13 th respondent, the City’s retirement accommodation policy
does not contemplate s permanent succession by younger relatives following
the deaths of qualifying elderly residents. The 1 3th respondent’s occupation
therefore falls outside the intended framework of the housing scheme and the
therefore falls outside the intended framework of the housing scheme and the
City is entitled to insist that the facility be utilised consistently with its lawful
3 2012 (2) SA 104 (CC) at paras 16-29
4 2012 (6) SA 294 (SCA) esp. para [15]. See also Government of the Republic of South Africa & others v
Grootboom 2001 (1) SA 46 (CC).
allocation policies. That being said, he now qualifies for accommodation in the
Old Age Centre in his own right, and has informed me that he has now made
an application for residence. He has not, as yet, as far as I am aware,
concluded a lease with the applicant and granted residence.
[43] This conclusion, however, is not determinative of the current application. PIE
was enacted precisely because unlawful occupation does not automatically
entitle an owner to eviction. The real enquiry is whether eviction would
presently be just and equitable having regard to all relevant circumstances.
[44] In evaluating that question, the nature of the applicant assumes considerable
significance. The City is a municipality exercising public power and discharging
constitutional obligations in relation to housing. That , however, does not mean
that the City is precluded from evicting unlawful occupiers from specialised
accommodation. On the contrary, the City is under a duty to administer scarce
public housing resources rationally and fairly. Accommodation intended for
elderly qualifying beneficiaries cannot be indefinitely appropriated outside the
policy framework because to permit that would prejudice others awaiting lawful
access to such accommodation.
[45] At the same time, the implementation of municipal housing policy cannot occur
in abstraction from constitutional obligations. Policy must be applied in a
manner consistent with section 26 of the Constitution and the justice and equity
standard mandated by PIE. The 1 3
th respondent is not alleged to have invaded
the premises forcibly or clandestinely. His occupation arose, on his version, in
the context of caring for elderly parents who were lawful occupants of the
facility. That account is not meaningfully rebutted in the replying papers.
Indeed, the overall tenor of the evidence suggests prolonged municipal
acquiescence in his occupation. Such acquiescence does not confer legality
acquiescence in his occupation. Such acquiescence does not confer legality
where none exists, but it is plainly relevant to the fairness enquiry.
[46] The 13
th respondent also alleges that eviction will render him homeless. The
City does not persuasively demonstrate otherwise or suggest reasonable
alternatives, save for stating that he has a daughter who he could live with, that
has been refuted.
[47] The replying affidavit focuses largely upon eligibility criteria and procedural
requirements rather than the practical realities of the respondent’s
circumstances. No meaningful homelessness assessment is placed before the
Court and no alternative accommodation is identified. ; nor is any detailed
engagement process put forward to the Court . The Court is therefore left
without sufficient evidential basis upon which to conclude that eviction can
presently occur without precipitating homelessness or undue hardship.
[48] The constitutional jurisprudence makes clear that municipalities are expected to
do more than merely assert the unlawfulness of occupation; they are required
to engage substantively and responsibly where eviction may implicate
homelessness and dignity.
The evaluation of the case of the 14
th respondent
[49] The 14th respondent has now been granted accommodation; his only gripe is
that it is single accommodation and he has hitherto been l iving in Ms Petzer’s
accommodation with his wife, and it had been vacated by her following a fire.
He had occupied the unit for 9 years.
[50] In my view, he is entitled to remain in the double accommodation that he
presently occupies and until alternative double accommodation is made
available to him.
The evaluation of the case of the 16
th respondent
[51] The case of the 16 th respondent is the weakest , although Mr and Mrs Kruger
have occupied the unit allocated to the 17 respondent, Mr Eksteen, purportedly
to look after him and avoid his having to go to frail care. They do not state that
should they be evicted, they would be rendered homeless; nor do they state
that they are of an age qualifying them to occupy a unit of their own. Mr and
Mrs state that they are friends with Mr Eksteen, but have not explained under
what circumstances they took it upon themselves to look after him , apart from
stating that he has none of his own children.
[52] The Court does not have sufficient facts before it to determine whether their
caring for Mr Eksteen is truly as the result of their altruistic calling to prevent
him being placed in frail care, where he shortly die, or whether their relationship
with Mr Eksteen is in fact symbiotic- where they look after Mr Eksteen but at
the same time secure for themselves free accommodation. This may well be
the case where Mr and Mrs Kruger admit that they have resided with Mr
Eksteen for five years.
[53] Mr Eksteen is currently 82 years old and thus must have moved in to look after
him when he was 77 years old and may not at that stage have been so frail that
he required someone look after him.
[54] Mr Eksteen and Mr and Mrs Kruger’s situations thus need to be fully
investigated. A social worker needs to visit Mr Eksteen and interview him. Such
social worker must also interview the 16
th respondent and her hus band and
determine how they came to look after Mr Eksteen and whether or not they are
indeed looking after him and not exploiting his vulnerability to obtain free
accommodation.
[55] At the same time, the social worker must take into account Mr Eksteen’s
personal circumstances and whether it would be in his best interests to be
transferred to frail care or whether his interests would be best served by
allowing him to remain in the care of Mr and Mrs Kruger who are capable of
looking after him. This, after all, seems to have been permitted in the case of
Mr. McBride who was allowed to care for his elderly parents.
[56] Should it be found that Mr Eksteen’s best interests would be best served by him
being placed in frail care, Mr and Mrs Kruger’s personal circumstances need to
be thoroughly investigated in order to determine whether their eviction would
result in homelessness and whether alternative accommodation could be made
available for them.
[57] This is all said without making any finding, save to state that placing Mr
[57] This is all said without making any finding, save to state that placing Mr
Eksteen in frail care should be considered as a last resort as it must prima facie
be accepted that Mr Eksteen would be far happier remaining in his unit with Mr
and Mrs Eksteen looking after him.
The evaluation of the case of the 21st respondent
[58] I am satisfied that the 21 st respondent does not have any minor children
residing with her. Despite her advanced age (92 years old) , I am satisfied that
whilst Mrs Mo rdaunt is available to look after Mrs McNiel and herself legally
occupies her own unit in the same facility , there is no need for the Mrs McNiel
to be transferred to frail care.
Conclusion
[59] I understand the City’s frustration; it has since 2022 been trying to secure the
eviction of the remaining respondents, but has been impeded from doing so
due to the PIE legislation that prevents the eviction of unlawful occupiers where
the interests of justice, equity and fairness cannot countenance this. I am also
mindful that granting exceptions to the policy adopted by the applicant creates
a dangerous precedent, as it may in the case of the 16th respondent (who could
not rely on the precedent set by the 13 th respondent. I am also keenly aware
that the applicant is faced with a conundrum as it is equally obliged to act fairly
to other, perhaps more deserving applicants.
[60] It does seem unfair that the fact that the remaining respondents have residing
in the units in which they reside for several years provides them with an
advantage as it bring the provisions of PIE strongly to the fore and makes it
only permissible to evict them if this would not be contrary to the interests of
justice, equity and fairness.
[61] I accept that the City has a legitimate and important interest in preserving the
integrity of accommodation intended for elderly qualifying residents. Courts
should not lightly undermine carefully structured municipal housing policies. Yet
constitutional justice equally requires that vulnerable occupiers not be displaced
through rigid formalism without proper investigation of their circumstances and
without meaningful municipal engagement.
[62] The 13
th respondent is economically vulnerable and his eviction may well lead
[62] The 13
th respondent is economically vulnerable and his eviction may well lead
to homelessness. This is notwithstanding that his occupation arose in
circumstances where on his version, he was requested by social worders to
move into the his elderly parents’ unit to look after them. His continued
presence in his parent’s unit appears to have been tolerated for a substantial
period, and the City has not adequately demonstrated that should he be evicted
he will not be left homeless.
[63] The 13 th respondent, however, presently occupies the double unit previously
allocated to his now deceased parent s (Simplex Double Unit 1 […] ), but, being
single, is only entitled to occupy a single unit.
[64] The 14 th respondent’s occupation of the Old Age Centre has now been
regularised and he has been granted a lease and allocated accommodation.
However, despite hitherto occupying the double unit with his wife that he
refurbished (Simplex Double Unit 2[…] ), he has been granted single
accommodation. It would seem practicable and fair that he be permitted to
continue to reside in the double unit he has occupied for several years with his
wife that he, himself, refurbished. This is the unit that has now become a home
to him and his wife that ought to be respected.
[65] The 21
st respondent, who occupies Simplex Unit 2[…] , has established that she
does not have minor children residing with her. Although frail, so long as her
daughter remains resident at the Old Age Facility, there is no need for her to be
removed to frail care, particularly as Mrs M ordaunt is only in her sixties , also
resides at the Old Age Facility with her husband and is thus able and well
placed to look after her. This is an infinitely better sc enario than that proposed
by the applicant’s counsel that she be removed to frail care at a far removed
facility where she will be cared for by strangers.
[66] The situation of the 16
th respondent is regrettably distinguishable from the other
respondents in that they do not, in their own right, qualify to reside at the Old
Age Centre as they are not themselves over 60 years of age. They have also
not established homelessness should they be evicted and prefaced their case
not established homelessness should they be evicted and prefaced their case
before me on the basis that should they be evicted, the 17
th respondent will
have to be moved to frail care where he will be looked after by strangers as
opposed to friends and inevitably be left to die, as is the case with all residents
who have been moved to fail care.
[67] This, however, needs to be fully investigated, having regard to the fact that a
similar situation appears to have been permitted in the case of the 13 th
respondent, although he was a blood relative.
[68] This is not an appropriate matter in which there should be any order as to
costs.
[69] After balancing the competing equities and considering each of the remaining
respondent’s personal circumstances, I am satisfied that the order that I
propose to make will be in the interests of justice, equity and fairness.
Order
[70] Having regard to what is just and equitable and fair in the circumstances , I
make an order in the following terms:
(1). The applications to evict the 13
th, 14th and 22nd respondents from Simplex
Double Unit 1[…] , S[…] D[…] Unit 2[…] and S[…] Unit 2[…] respectively
at the Donovan McDonald Old Age Centre (“the Old Age Centre”)
situated at 1[…] M[…] and D […] P[…] Streets, M[…] , Roodepoort , are
refused.
(3). The 13th respondent is ordered to make an application for a single unit at
the Old Age Centre within 30 days of this Order , in the event that such an
application has not already been made by him.
(2). The applicant is directed to expedite the application of the 13th respondent
at the Old Age Centre and to enter into a lease with the 13th respondent to
entitle him to reside in a single unit as soon as one becomes available.
(3). The applicant is ordered to permit the 14 th respondent and his wife to
continue to reside in Simplex Unit 2[…] , alternatively are directed to
provide them with accommodation suitable for a married couple and to
enter into a lease with him and his wife in respect of such unit.
(3). The applicant is ordered to allow the 22nd respondent to remain in Simplex
Unit 2[…] for so long as she continues to be independent and/or Mr and/or
Mrs Mordaunt occupy the Old Age Centre and are able to assist and care
for her.
(4). The applicant is directed to appoint a suitably qualified social worker to
investigate the circumstances of the 16 th and 17 th respondents. This
investigation must deal with the following issues:
(a) The best interests of the 17th respondent;
(b) The necessity for the 17 th respondent to be assisted and cared
for by the 16 th respondent and her husband in order to avoid
having to be placed in frail care;
(c) The relationship between the 16 th respondent and her husband
and the 17 th respondent and the circumstances under which
they came to reside with the 17 th respondent at the Old Age
Centre;
(d) Whether or not at the time that the 16 th respondent and her
husband moved in with the 17 th respondent, he was indeed in
need of care;
(e) The circumstances under which the 13 th respondent was
permitted to reside with his parents in their unit with his minor
children in order to look after them and avoid their going to frail
care and why the same should not apply to the 16 th respondent
and his wife, who have been looking after the 17th respondent.
(f) The personal circumstances of the 16 th respondent and her
husband and the prospect of homelessness should they be
evicted from Simplex Double Unit 3[… ].
(5). Directing that the aforementioned investigation be carried out within 9 0
calendar days of the granting of this Order and that the applicant report to
this Court on the outcome of the aforementioned investigation, that may
be set down for hearing on the same papers , on notice to the 16 th
respondent and his wife, who shall be entitled to make representations on
the report of the appointed social worker to the Court.
(6). Pending the findings made by the Court hearing the matter referred to in
paragraph (5) above:
(a) the 16th respondent and her husband shall not be evicted from
the Simplex Unit 3[…] at the Old Age Centre; and
(b) the 17th respondent shall not be evicted from Simplex Unit 3 […]
or moved to frail care.
(7). No order is made as to costs.
_________________________
S.M WENTZEL-THOMPSON
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING:
Date of the hearing: 4 May 2026 and 8 May 2026
Date of the judgment: 29 July 2026
APPEARANCES
For the applicant: Adv. Michael Muchopa instructed by BMK Attorneys
For the 13
th respondent: Adv. Emshareed Bothes instructed by Saders Attorneys,
both appearing pro bono.