Reprinted from TimesLIVE, by Rorisang Kgosana – 2024-10-17
The City of Johannesburg’s leave to appeal a high court judgment that denied an urgent eviction order to remove unlawful occupants from a retirement village was refused by the Johannesburg High Court as the law it was challenging was “unappealable”.
The 183-unit complex, aimed at SASSA beneficiaries older than 63 who entered into a lease agreement with the city, was now home to younger people and their children as over the years people would move in with their elderly relatives while some would remain in the unit even after the relative passed on, a resident told TimesLIVE.
The centre is now exposed to petty crime while facilities and units are dilapidated and remain unmaintained by the city.
In his judgment, judge Stuart Wilson, who had presided over the initial urgent matter, said the application was unappealable as it challenged section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act. The provision permits only urgent eviction when there is a “real and imminent danger of substantial injury to people or property” by an unlawful occupier.
“Orders under section 5 of PIE are interim in nature. They are granted or refused ‘pending the outcome of proceedings for a final eviction order’. Their interlocutory nature naturally raises the question of whether and to what extent decisions under section 5 are appealable,” said Wilson.
He said the decision to refuse a section 5 eviction order does not prevent the application from seeking relief under section 4 of the act, and the unlawful occupier will remain at the property until the proceedings are finalised.
“Accordingly, it seems to me that the refusal of relief under section 5 is not appealable. To hold otherwise would open the door to undesirable piecemeal litigation. Every refusal of relief under section 5 could, in principle, spawn an appeal, which would have to be addressed in parallel with, or before, the applicant’s entitlement to final relief under section 4 is considered.
“To permit the fractional disposal of eviction applications under PIE in this way would lengthen and complicate PIE proceedings, which are often already factually and legally complex matters, especially where poor and vulnerable people allege that they would face homelessness on eviction.”
He said the city had no reasonable prospect of convincing a court of an appeal that he was wrong in his judgment when he decided that section 5 requires it to link those it seeks to evict with “real and imminent danger of substantial injury to people or property”.
“Mr Nhutsve, who appeared for the city, advanced no alternative reading of section 5, which would permit the city to evict individuals or groups of people who had not been linked to a ‘real and imminent danger of substantial injury to people or property’. In the absence of such a reading, there can be no success on appeal,” said Wilson.
He said the city admits it wants to evict people who provide care to lawful residents of the complex, which those residents cannot do without.
It was on that basis that Wilson found that the relief sought would “endanger the safety and wellbeing of the very people the city says it wishes to protect”.
The city also raised issues of the hearing, arguing that it did not get a fair hearing as its counsel, Nhutsve, was not allowed to present his prepared speech to the court but was instead required to answer the court’s questions about whether the facts on the papers justified the relief sought.
“The city did not produce a transcript in support of its claims. Mr Nhutsve was accordingly constrained to advance his complaints about the fairness of the hearing from memory … I do not recognise Mr Nhutsve’s recollection of the hearing. The hearing lasted for about an hour, about 45 of which consisted of an exchange between me and Mr Nhutsve about the papers and the relief sought. The exchange was robust but respectful. I listened carefully to Mr Nhutsve’s submission, and had due regard to them in my judgment.”
Wilson said the city’s complaints about the way he conducted the hearing do not have a bearing on the correctness of his decision. In addition, Mr Nhutsve could not point out any submissions that he failed to make due to being interrupted.
“It was for these reasons that I refused the city’s application for leave to appeal.”
For further information
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an urgent eviction matter.
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