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)
JUDGMENT
Reportable
Case No: 2026-182915
In the matter between:
CLIFFORD MICHAEL HARRIS N.O. First Applicant
GEOFFREY LEIGHTON ASHMEAD N.O. Second Applicant
BRUCE INGRAM N.O. Third Applicant
CLAUS JÜRGEN HINRICHSEN N.O. Fourth Applicant
(as the trustees for the time being of the
Richard Harris Family Trust)
And
SUBEIGA MATTHEWS First Respondent
MASTOERA COLLOP Second Respondent
COLIN COLLOP Third Respondent
MARLON COLLOP Fourth Respondent
CLEO COLLOP Fifth Respondent
SHANAAZ ADAMS Sixth Respondent
ZUBAIR ADAMS Seventh Respondent
WASEEQAH ADAMS Eighth Respondent
UZAIR ADAMS Ninth Respondent
SHUKRI ROSS Tenth Respondent
QUDACIA ROSS Eleventh Respondent
SHAYDON SALIES Twelfth Respondent
EMERICK FORTUIN Thirteenth Respondent
ALICIA ADAMS Fourteenth Respondent
CARLYLE ADAMS Fifteenth Respondent
AIDEN ADAMS Sixteenth Respondent
KSHMYA ADAMS Seventeenth Respondent
DONALD DANIELS Eighteenth Respondent
SANNA NEL Nineteenth Respondent
MICHEAL MARTIN Twentieth Respondent
DENISE MARTIN Twenty-First Respondent
ETUMELYN YABO Twenty-Second Respondent
SHAMIER KESTOOR Twenty-Third Respondent
AMY-LEE ADAMS Twenty-Fourth Respondent
ALL THOSE UNLAWFULLY OCCUPYING Twenty-Fifth Respondent
THE PROPERTY KNOWN AS REMAINDER
ERF 2[...] CONSTANTIA
(held by the Applicants under Deed of Transfer
T[...])
THE CITY OF CAPE TOWN Twenty-Sixth Respondent
Coram: DA SILVA SALIE, J
Heard on: 21 August 2026
Delivered on: 21 August 2026
Revised: 24 August 2026
Summary:
Urgent application - PIE - final eviction sought under s 4 on urgent basis - applicants
relying on immediate danger to persons and property - s 5 providing specific statutory
remedy for urgent physical removal by way of interim eviction - urgency for final relief
under s 4 read with Rule 6(12) distinguishable from urgency contemplated in s 5 -
availability of s 5 remedy material to Rule 6(12) enquiry - applicants failing to establish
why final s 4 relief could not be obtained in ordinary course - substantial redress
available - urgency not established - application struck from the urgent roll with costs.
ORDER
1. The application is struck from the roll for lack of urgency.
2. The applicants shall pay the respondents’ costs of the application on scale B.
JUDGMENT
DA SILVA SALIE, J:
Introduction:
[1] The applicants are the trustees of the Richard Harris Family Trust, which is the
registered owner of Remainder Erf 2[...], Constantia, situated between Pagasvlei, Groot
Constantia and Constantia Main Roads. The cottage in issue is situated close to
Constantia Main Road. They seek, as a matter of urgency, a final order in terms of
section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 (“PIE”), evicting the first to twenty-sixth respondents from the incomplete and
dilapidated cottage.
[2] The applicants allege that the respondents entered the property on 10 July 2026
and took occupation of the cottage without their consent. The applicants thereafter
called upon the SAPS, who removed the respondents from the property. The
respondents the n approached the Wynberg Magistrates’ Court and obtained ex parte
relief in spoliation proceedings, pursuant to which they were restored to the property.
The applicants allege that the relief was obtained on the strength of a version placed
before that court which was false. When the applicants subsequently sought a
reconsideration of the order, the respondents withdrew their spoliation application.
There are thus no extant spoliation proceedings or order in place, but the practical effect
of events is that the respondents remain in occupation of the property. It is that
continued occupation which has given rise to the present application for their eviction in
terms of PIE.
[3] The applicants contend that the matter cannot await determination in the ordinary
course. They seek a final order of eviction, in terms of Section 4(1) of the PIE Act
however brought on the urgent roll. The applicants rely on the condition of the
incomplete and derelict cottage , which they contend is not fit for human occupation , as
well as the unacceptable circumstances in which it is presently occupied. They allege,
amongst other things: the use of open fires ; unlawful electrical connections; inadequate
amongst other things: the use of open fires ; unlawful electrical connections; inadequate
sanitation; an increase in the number of persons occupying the property ; consequent
danger to the occupiers and surrounding tenants and the property, as well as the close
proximity to the coffee shop, Chadonnay Deli in Constantia , justify a final eviction order,
on an urgent basis. In further support of such urgency, they contend that social media
and mainstream media coverage of the occupation, including a Cape Argus front -page
article of 21 July 202 6, titled “Families win right to ancestral Constantia land ” may
encourage further persons to occupy the property, with the risk of an increasing
occupation. I understand the applicants’ reference to these media articles and posts to
be aimed at supporting their submission that further occupation may occur, particularly if
the publicity creates a belief amongst others that the respondents have established an
entitlement to occupy the property.
[4] The respondents oppose the application and raise several preliminary points. For
present purposes, Mr. Orrie, Counsel for the respondents, indicated at commencement
of the hearing that the respondents only proceeded on two aspects, namely, urgency
and a claim relating to the merits that they had consent from the applicant , c/o Mr
Matthews (now deceased).
[5] The central issue, in my view, is the urgency upon which the application is
brought. The applicants have approached this Court for a final eviction order under
section 4 and seek to have that relief determined urgently in terms of Rule 6(12). As I
see it, the question at this stage is not whether the applicants may ultimately be entitled
to an eviction order, nor is it necessary to determine the disputed claims concerning the
history of occupation of the property and historical rights to the land . The question is
whether the applicants have established that their claim for final relief under section 4
requires determination on the urgent roll. I ventilated these concerns in detail during
argument with Mr. Wilken, Counsel for the applicant.
argument with Mr. Wilken, Counsel for the applicant.
[6] Section 5 of PIE specifically provides a remedy where the continued occupation
of property gives rise to a real and imminent danger of substantial injury or damage to
persons or property. It requires further that the likely hardship to the owner or other
affected persons such as the lawful tenants exceeds the likely hardship to the unlawful
occupiers, and that there is no other effective remedy available. It provides for the
urgent physical removal of unlawful occupiers by way of an interim eviction order,
subject to the requirements prescribed in that section, which operates until the
proceedings for a final eviction order are determined.
[7] In my view, the availability of that remedy is material to the enquiry under Rule
6(12). The very circumstances upon which the applicants rely to establish urgency are
substantially the circumstances contemplated in section 5. If conditions on the property
are such that the respondents must be removed immediately, PIE provides a
mechanism by which that relief may be sought. Section 5 contemplates urgent eviction
by way of an interim order , pending determination of proceedings for a final eviction
order. T he legislature has thus provided for a mechanism in urgent circumstances
where the owner is protected and the occupier’s ultimate rights remain to be considered
by the Court including whether the final eviction is just and equitable . Whether a final
eviction is just and equitable is determined by the Court having regard to all the relevant
circumstances, including the rights and needs of the elderly, children, disable d persons
and households headed by women, and where applicable, the availability of alternative
land or accommodation.
[8] It is trite that a final eviction application under section 4 can be brought and heard
as a matter of urgency. However, the applicants must nevertheless satisfy the
requirements of Rule 6(12) and show why , in the se specific circumstances, final relief
under section 4 requires determination on an urgent basis. Urgency directed merely at
the immediate removal of unlawful occupiers must be distinguished from urgen t
the immediate removal of unlawful occupiers must be distinguished from urgen t
circumstances so dire that they warrant a final eviction order. The needs of the owners
to immediately remove unlawful occupiers do not establish or justify a final eviction
order being determined urgently.
[9] Rule 6(12) requires an applicant who approaches the Court on an urgent basis to
set out explicitly the circumstances which render the matter urgent and the reasons why
substantial redress cannot be obtained at a hearing in due course. It is the latter
requirement which, in my view, presents the difficulty for the applicants in this matter.
[10] The applicants have not satisfied this Court why the final determination of their
section 4 application cannot take place in the ordinary course. This application brought
in terms of section 4 does not persuade me on the facts to be so exceptional. The
principal considerations relied upon for urgency concern the need for the respondents to
be removed immediately because their continued presence on the property is said to
create a danger to persons and property including themselves . Those considerations
may well call for urgent intervention. They do not, however, establish why the applicants
require a final determination of the eviction proceedings on the normal urgent roll.
[11] In circumstances where PIE itself provides in section 5 for urgent interim eviction
where there is a real and imminent danger of substantial injury or damage to persons or
property, the applicants have an alternative statutory remedy directed precisely at the
immediate harm upon which they rely. Whether the applicants are able to satisfy the
requirements of section 5 is not a question before me and I express no view on it.
[12] Put simply, the issue before this Court is not whether the respondents may
ultimately remain on the property. The issue is whether the applicants have shown that
their claim for a final eviction order must be determined now, as a matter of urgency. I
am not satisfied that they have done so. If the circumstances are such that the
respondents must be removed immediately , pending the determination of the parties’
rights, PIE provides the applicants with the remedy contemplated in section 5.
[13] I make no finding on the disputed allegations concerning the respondents’
historical or ancestral connection to the property, the lawfulness of their occupation, or
whether it would ultimately be just and equitable to order their eviction. Those matters
remain open for determination in the appropriate proceedings.
[14] In conclusion, I am not satisfied that the applicants have established that they
cannot obtain substantial redress in due course. The requirements of Rule 6(12) have
therefore not been met and the application falls to be struck from the urgent roll.
[15] As to costs, there is no reason why the costs occasioned by the urgent enrolment
should not follow the result.
Order:
[16] At the conclusion of the hearing, I made the following order:
(i) The application is struck from the roll for lack of urgency.
(ii) The applicants shall pay the respondents’ costs of the application on scale
B.
_____________________________
GAYAAT DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances:
For Applicants: Mr L Wilkin
Instructed by: Harmse Kriel Attorneys
For First to Twenty-Sixth Respondents: Mr M T Orrie
Instructed by: Orrie & Associates Inc.