City pushes on with plans for eviction of Salt River Market traders

By | Eviction news, Evictions

Reprinted from iol.co.za, by Zolani Sinxo – 2024-05-12

Cape Town – The City of Cape Town is continuing with its plans to evict historic Salt River Market traders who, for decades, have used the venue to not only sell their goods but also to share cultural experiences with customers and residents.

The City recently filed an urgent court application to evict the last remaining tenants who refuse to leave the market.

The once popular market, which was filled with colour, now tells the tale of its decline, with only about four stalls left.

The dispute comes after the City told the traders that the site was earmarked for social housing.

Igshaan Higgins, an activist lawyer who has been vocal on the matter, said the eviction process could have been avoided if the City followed through on its commitment to explore relocating the traders to a suitable trading location.

“Unfortunately, the City opted for an urgent High Court application against financially disadvantaged traders who are unable to adequately defend themselves.

“These traders now face the burden of covering the City’s legal costs, regardless of their decision to contest the matter.

“Many of these individuals have operated businesses at the Salt River Market for over half a century, with their staff now facing unemployment,” said Higgins.

“It is my hope that the City will keep its expensive and overzealous lawyers at bay while trying to find an amicable solution through negotiation and/or mediation.”

Human settlements Mayco member Carl Pophaim said the City was releasing inner city land for affordable housing on an accelerated basis, and Salt River Market was one of various municipal-owned properties in central Cape Town — with a yield of over 3 500 units — that had already been released to social housing developers, including Pine Road, Dillon Lane, and Pickwick in Woodstock, and the Maitland Mews development.

“In line with our agenda to build a City of Hope by enabling much more social housing in well-located areas, the Salt River Market development will include 300 social housing units,” Popham said.

“It will also include a public square, alongside a community hall, anchor retail shops, and convenience retail (such as a hairdresser, laundry, etc) that will create many opportunities for small businesses. The development proposal pays special attention to the historical context of this site,” said Pophaim.

He said development was planned to accommodate the remaining four historical fresh produce sellers.

“The City has held extensive engagements with all the traders on the site, resulting in most of the remaining commercial traders agreeing to relocate on a voluntary basis,” said Popham.

“The land was released by the City council to the successful developer in July 2022, with construction set to start soon in July 2024.

“This is, however, being delayed by only four remaining traders who have, since 2019, been earning an income by trading illegally on the site without a lease agreement at Salt River Market and who do not trade in fresh produce or associated goods.

“Despite ample notice of the City’s intention to release the site for social housing development, these four traders have continued to make commercial gains without even paying for the water and electricity they consume on site.”


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 tenants’ rights or landlords’ responsibilities.

Further reading:

A brazen case of a hijacked building

By | hijacking, PIE, Student evictions

Students protected as illegal “landlord” evicted

Eviction is never pleasant, regardless of just cause. It usually means someone losing their home, even if their occupation of that home is technically unlawful. People who erect shacks on land that is not their own can be forgiven…or at least understood…when they genuinely have nowhere else to go. But sometimes an eviction is not only justified but entirely deserved. A recent case that came before the Gauteng High Court reveals just how brazen a building hijacker can be. The case is astonishing for the sheer audacity of the respondent. Fortunately, the law prevailed. Furthermore, it protected a large number of innocent students who were offered tenancies under false pretences.

Caretaker turned landlord

A property-owning company owns a property in Tshwane. They are the applicant – the party bringing the case to court. The respondent, or defendant, is an individual who was formerly employed by the applicant as a caretaker of the property. He was permitted to occupy the property to carry out his duties, but his employment has now been terminated. With absolutely no mandate from the property owner, this former caretaker concluded an accreditation agreement with a third party so the property could be accredited as private student accommodation. When the applicant learned of this, they obtained an order stopping the respondent from leasing out units and from collecting rent or permitting people who are not in occupation of the property to enter the property and take up occupation. The respondent was specifically forbidden from acting on behalf of the applicant for any purpose. Nonetheless, the respondent continued to rent rooms to students. Occupant numbers rose from 17 to 50, and by early March 2024 there were approximately 200 students in residence!

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)

When PIE is mentioned, it is usually in the context of stopping an eviction. However, the Act also exists to stop unlawful occupation, and the applicant in this case believed (with good reason) that the respondent’s occupation of the property was unlawful. Furthermore, the respondent, acting as landlord, was collecting rental income to which he had no entitlement. The applicant went to court seeking an eviction order under PIE and an urgent interim eviction order under section 5(1) of the Act. Because eviction proceedings can take some time, the applicant was concerned to rectify a chaotic and potentially dangerous situation quickly. Section 5(1)  states:

(1) …the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that- (a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; (b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and (c) there is no other effective remedy available.

In the application for the urgent eviction order, the applicant argued that unless the respondent was evicted on an urgent basis the hijacking of the property would continue. Given that unlawful landlords rarely have the best interests of the property or the tenants in mind, and are not known for maintaining properties in good order, the likelihood of injury or damage to person or property was high. 

Fate of the students in the hijacked building

However, the tenants had occupied the building in good faith and were living there while pursuing their studies. There have been many stories in the press of hijacked buildings being cleared by relocation and eviction services such as the Red Ants, who may restore the building to the rightful owner but also make tenants homeless in the process. Fortunately, in this case the applicant informed the students of the pending dispute and confirmed that the application to court would not affect their occupation of the property. The university has been furnished with a copy of the court order and the applicant intends to seek accreditation with the university once the fraudulent accreditation granted to the first respondent has been cancelled. At that point leases will be normalised. Students were advised not to make any further payments to the respondent and to alert the applicant to any attempt to extort money from them by threats. In yet further confirmation of his brashness, the respondent physically prevented delivery of these letters to the property.

A happy ending

The court found that the requirements in section 5(1) of the Act were met. There is a real and imminent danger of damage to the property and harm to the bona fide students who are at the property to pursue their studies, and the hardship to the applicant and the occupiers far exceeds the potential harm to the respondent, who has no right to occupation. The respondent has invaded the applicant’s property and the applicant is in danger of losing the use of his own property to the detriment of their lawful business and to the detriment of the university students. The property is also undergoing maintenance that is incomplete and construction work may pose a danger to students. The right to occupation initially granted to the respondent was limited and linked to his employment as a caretaker. He did not have permission to rent out rooms or to use the property for business purposes on his own behalf of on behalf of anybody else. The applicant has a right to the use and enjoyment of the building. The property company is entitled to protect its property from damage and to regularise its relationship with the university, using the property to earn income by providing legitimate accommodation to genuine students.

The respondent was ordered to vacate the property within 48 hours of service of the eviction  order.

For further information

Landlords sometimes need legal help with troublesome tenants. Tenants may also have mitigating circumstances that make an eviction case complex. But this particular case was cut and dried. The respondent blatantly abused his initial right of occupancy as caretaker and disregarded the law in offering accommodation to students with accreditation gained under false pretences. The urgent eviction order was granted without dispute. If you have issues with property hijacking, we can help. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

Further reading:

Commercial lease

Misrepresentation in commercial contracts (including your lease)

By | Lease Agreement

What to do if you’ve been led up the garden path

Before any contract is signed, there are usually discussions about the arrangement or agreement being made between two parties. The purpose of the contract is to capture the details and formalise them, so everyone understands their responsibilities and expectations. Signing the contract is often seen as a formality, especially if the negotiations have been amicable and the two parties seem to have a good rapport. For that reason, it may not be scrutinised as carefully as it should be. What happens if you have an understanding about the conditions of a contract, for example a lease, and you later discover the terms you thought applied are not actually included in the contract?

For example, perhaps you enter into a lease agreement believing the furniture is included in the rental amount. After six months, the landlord demands the furniture back. You assume you are covered by the lease agreement but, when you review it, you realise there is no explicit clause confirming the inclusion of the furniture. What can you do?

False or misleading statements

The lease is not the watertight “get out of jail card” the landlord may think it is. A landlord may not rely on a lease clause limiting their liability for representations if they have made false or misleading statements to a prospective tenant before entering into a lease. This is known as misrepresentation. Whether fraudulent, negligent or innocent, misrepresentation arises when a party has been tempted or lured into entering into a contract by the other party’s misrepresentation of facts. If your initial discussions led you to believe the furniture was included in the rental, the landlord is guilty of misrepresenting the reality. However, it’s equally possible that you misunderstood the landlord, who was in fact acting in good faith.

The primary issue is the disparity between the written lease agreement and the actual intentions of the parties. Determining the true intentions can be murky and requires looking beyond the written agreement to the actions of the parties. 

Material misrepresentation

To pursue a claim for damages, you must establish that misrepresentations were made when you entered into the lease agreement. In contract law, honesty and transparency are critical principles. A key concept in contractual agreements is “material misrepresentation”. Misrepresentation is defined in law as “an untrue statement of representation concerning an existing fact or state of affairs which is made by one party to the contract with the aim, and result, of inducing the other party into concluding the contract.” The misrepresentation may be about the qualities or characteristics of the subject of the contract.

Misrepresentation may render a contract voidable if: 

  • A misrepresentation has been made
  • The misrepresentation was made by one contracting party to another
  • The misrepresentation was unlawful
  • The misrepresentation induced the parties to enter into the contract

Types of misrepresentation

There are three types of misrepresentation: 

  • Intentional misrepresentation – a person makes a statement, which is known to be false and without regard for whether it is true or not, with the intent to deceive. The deceived party may claim damages and decide whether or not to uphold or rescind the contract
  • Negligent misrepresentation – a person makes a statement they believe to be true but they fail to exercise reasonable care or competence to communicate information that is true or correct. The party aggrieved party may have a claim for damages or may choose to rescind the contract
  • Innocent misrepresentation – a person makes a statement neither fraudulently or negligently. In these circumstances the aggrieved party will not have a claim for damages but may have the choice to uphold or rescind the contract

Remedial action 

Someone who has been misled into contracting by the misrepresentation of the other party, as in the example of the lease and the furniture, has a number of options to remedy the situation: 

  • They may seek to have the contract rescinded or set aside, essentially undoing the agreement and returning the parties to the position they were in before the contract was entered into. In the case of a lease agreement where the tenant has taken occupancy of the property and it is their home, this could be tricky.
  • Where the innocent party suffered financial loss due to the misrepresentation, they may seek monetary compensation from the party responsible for the misrepresentation. In our example, there may not be a literal financial loss, but it could be argued that returning the furniture would place the tenant in the position of having to make a financial outlay to replace it, and monetary compensation may be helpful.
  • In cases where damages are inadequate, the court may order specific actions, compelling the party responsible for the misrepresentation to fulfill their contractual obligations as originally agreed upon. In our example, this would mean leaving the furniture in the property for use by the tenant (which would probably be the simplest and most effective solution).

Burden of proof

For a misrepresentation claim to succeed, the following elements must be proven: 

  • The statement or conduct of the one party was false and was made either intentionally or negligently
  • The misrepresentation induced the other party into entering into the agreement
  • The misrepresented fact was significant enough that it influenced the innocent party’s decision to enter the contract
  • The innocent party reasonably relied on the misrepresentation when entering into the contract

In our example, it would be necessary to establish the true intentions of the parties upon entering into the lease agreement. If it could be established that the true intention was to provide the furniture and the landlord is now refusing to do so, there could be a possible claim of misrepresentation. 

For further information

We’ve used this simple example to illustrate the concept of misrepresentation and what to do about it. In our experience, misrepresentation can happen by either landlord or tenant. It is also a salient reminder to scrutinise a lease agreement or any contract before signing it! 

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. If you think you are a victim of misrepresentation and you are disadvantaged or distressed by it, contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za for a confidential discussion today. We’ll help you put things right.

Further reading: