Court Grants An Eviction Order For Unlawful Occupiers Despite The Local Authority Not Making Alternative Accommodation Available



ENS is an independent law firm with over 200 years of experience. The firm has over 600 practitioners in 14 offices on the continent, in Ghana, Mauritius, Namibia, Rwanda, South Africa, Tanzania and Uganda.
In the case of Smith v Khumalo and All the Unlawful Occupiers of the Property and Another, the court per Duncan AJ deemed it just and equitable to order the eviction of the unlawful occupiers...
South Africa Real Estate and Construction
To print this article, all you need is to be registered or login on

In the case of Smith v Khumalo and All the Unlawful Occupiers of the Property and Another, the court per Duncan AJ deemed it just and equitable to order the eviction of the unlawful occupiers of a residential property despite the City of Johannesburg ("the Municipality") not yet identifying and providing suitable alternative accommodation for them.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 ("the Act"), a cornerstone of the legal framework governing evictions, is underpinned by Constitutional principles. Section 26(3) of the Constitution stipulates that no one may be evicted from their home or have their home demolished without an order of court made after considering all relevant facts. The Act, in turn, enforces this Constitutional obligation by stating that no person may evict an unlawful occupier except on the authority of an order of a competent court.

The Constitutional Court confirmed in Occupiers of Erven 87 & 88 Berea v CF de Wet NO and others that the Act envisages a two-stage enquiry that must be undertaken by a court when considering an application for eviction from residential premises: firstly, whether it would be just and equitable to grant an eviction order having regard to all relevant factors; and secondly, if it decides that an eviction order should be given, the court must apply principles of justice and equality in determining the date of implementation of that order and whether any conditions should be attached to that order.

  • In this case, the retired pensioner, who owns the property in Johannesburg ("the property"), vacated it in 2005 to let it to a tenant. After the previous tenant was forced to leave, the pensioner discovered that unauthorised individuals had taken up residence on the property. These individuals violently confronted the applicant, leading to the applicant seeking court assistance.
  • The applicant recorded that the property was in a good upmarket state when the illegal occupation commenced, with all amenities intact. However, at the time of the court application, the property was dilapidated and vandalised, and the power had been disconnected, resulting in a drop in the property's value. The applicant has since been without a house and forced to stay with friends and family.
  • In July 2020, the applicant received an offer to purchase the property. He saw this offer as his only chance to regain some benefit from the property that had been unlawfully occupied. Given his elderly status and lack of income, the ability to sell the property was a glimmer of hope. It would provide him with funds to sustain his livelihood.
  • In their opposition to the application, the unlawful occupiers relied solely on the argument that they had no alternative accommodation. They contended that they should be allowed to remain in the property until the Municipality provided them with alternative accommodation.

A relevant factor in the first enquiry is whether alternative accommodation is available. When considering this requirement, the court acknowledged, on the one hand, the applicant's right to property under section 25 of the Constitution and found that he had been unlawfully deprived of this right. On the other hand, the court considered whether an eviction order would be just and equitable in circumstances where the respondents had occupied the property without paying rent and failed to look after the property to the extent that it posed a safety and health threat to those who occupied it.

The court noted that although the illegal occupants included young children (who would be worse affected by an eviction), the property was unsafe and unsuitable for them. Additionally, the respondents' only defence to the application was that they did not have accommodation and should be allowed to stay on the property until the Municipality provided them with suitable accommodation.

The Court held that from the launch of the application in September 2022, the respondents knew that the property belonged to the applicant and that they were in unlawful occupation of the property as the applicant wanted them to leave. In the circumstances, justice demanded that unlawful occupiers who were given notice of eviction were obliged to take steps to find alternative accommodation and could not remain in the property and wilfully defeat the property owner's rights. There was no evidence that the respondents took any steps to find alternative accommodation. Thus, despite the Municipality not yet being able to find alternative accommodation for the occupiers who qualified for such accommodation, the Court found it just and equitable after considering the applicant's interests and the occupiers' interests to grant an eviction order.

However, the court allowed the occupants to vacate the property from 13 May 2024 (the date of the order) until 1 September 2024 (i.e. after the worst of the Highveld winter).

As part of the second enquiry, the court made the additional order directing the Municipality to take steps to find accommodation for the qualifying occupiers. Still, it noted that the obligations imposed on the Municipality by the additional order did not in any way undermine (or render conditional) the finality of the eviction order.

The Court explicitly urged the adult occupiers to act responsibly and proactively to find alternative accommodation, including approaching the Department of Human Settlements.

This decision highlights the obligation placed on unlawful occupiers to actively try to find alternative accommodation in circumstances where they have been notified of their unlawful occupation and not to rely on the local authority and wilfully defeat the property owner's right to his property.

Eviction laws are a contentious topic, often viewed from different angles. Property owners may perceive them as oppressive, while occupiers rely on these laws to protect their occupancy. Understanding eviction laws empowers property owners to ensure fair treatment and safeguard fundamental rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More