City of Cape Town v Daniels and Others (5090/2011) [2011] ZAWCHC 340 (25 August 2011)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case number: 5090/2011

In the matter between:

CITY OF CAPE TOWN …...................................................................................................Applicant

and

GABEEBA DANIELS …............................................................................................First respondent

ZAIDA PADUA …...................................................................................................Second respondent

THOSE PERSONS WHO UNLAWFULLY OCCUPY THE PREMISES SITUATE AT 12 ORCHID COURT, OCEAN VIEW, WESTERN CAPE, WHOSE IDENTITIES ARE UNKNOWN TO THE APPLICANT …...................................................................Third respondent

Before Schippers A J Date of hearing: 27 July 2011; 5 August 2011; 12August2011 Date of judgment: 25 August 2011 On behalf of the applicant: Advocate N. Bawa Applicant's attorneys: Fairbridges Attorneys On behalf of the respondents: In person IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) Case number: 5090/2011 In the matter between: CITY OF CAPE TOWN Applicant and GABEEBA DANIELS First respondent ZAIDA PADUA Second respondent THOSE PERSONS WHO UNLAWFULLY OCCUPY THE PREMISES SITUATE AT 12 ORCHID COURT, OCEAN VIEW, WESTERN CAPE, WHOSE IDENTITIES ARE UNKNOWN TO THE APPLICANT Third respondent JUDGMENT: THURSDAY 25 AUGUST 2011 Schippers AJ: [1] The applicant, the City of Cape Town, a metropolitan municipality, seeks an order to evict the respondents from the premises situate at 12 Orchid Court, Ocean View, Western Cape ("the property"), in terms of section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("the Act"), or the common law. The grounds upon which the applicant seeks to evict the respondents are that the first respondent was in arrears with her rental in the sum of R24 501.98 as at January 2011; and that the occupants are dealing in methamphetamine (commonly known as "tik") and dagga from the property.

Before Schippers A J

Date of hearing: 27 July 2011; 5 August 2011; 12August2011

Date of judgment: 25 August 2011

On behalf of the applicant: Advocate N. Bawa

Applicant's attorneys: Fairbridges Attorneys

On behalf of the respondents: In person

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case number: 5090/2011

In the matter between:

CITY OF CAPE TOWN Applicant

GABEEBA DANIELS First respondent

ZAIDA PADUA Second respondent

THOSE PERSONS WHO UNLAWFULLY OCCUPY THE PREMISES SITUATE AT 12 ORCHID COURT, OCEAN VIEW, WESTERN CAPE, WHOSE IDENTITIES ARE UNKNOWN TO THE APPLICANT Third respondent

JUDGMENT: THURSDAY 25 AUGUST 2011

Schippers AJ:

[1] The applicant, the City of Cape Town, a metropolitan municipality, seeks an order to evict the respondents from the premises situate at 12 Orchid Court, Ocean View, Western Cape ("the property"), in terms of section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("the Act"), or the common law. The grounds upon which the applicant seeks to evict the respondents are that the first respondent was in arrears with her rental in the sum of R24 501.98 as at January 2011; and that the occupants are dealing in methamphetamine (commonly known as "tik") and dagga from the property.

[2] The applicant owns the property. It forms part of what is known as the applicant's "rental stock". These are council houses rented to persons who meet the applicant's criteria for subsidised rental housing. In order to meet these

criteria, an applicant for a council house must, inter alia, earn an income of less than R7 000 per month; be a South African citizen; not own immovable property; and use the property for lawful purposes. [3] The application was launched on 4 March 2011. In terms of the notice of motion, the respondents were required to notify the applicant's attorneys of their intention to oppose the application by 1 April 2011 and within 15 days thereafter, to file their answering affidavits. When the respondents failed to deliver a notice of intention to oppose the application, it was enrolled for hearing on 11 April 2011. That day and by agreement between the parties, this Court postponed the application to 3 June 2011 and the respondents were directed to file their answering affidavits by 27 May 2011. The respondents however did not file their answering affidavits. On 3 June 2011 this Court issued an order in terms of section 4(2) read with section 4(5) of the Act, in terms of which the respondents were notified of the application for their eviction from the property; and informed that they were entitled to appear on 28 July 2011 to oppose the eviction. [4] The application came before me on 25 July 2011. The first respondent, Ms. Gabeeba Daniels and her brother, Mr. M. Padua, appeared in person. They asked for an opportunity to file opposing papers. They were directed to do so by 2 August 2011, even if the papers were handwritten. The first respondent delivered a handwritten affidavit but did not deal with all the issues raised in the founding papers. The application was postponed to 5 August 2011 and thereafter to 12 August 2011, to enable the first respondent and Mr. Padua to address the Court as to why they should not be evicted from the property, which they did. [5] The basic facts in this application may be simply summarised. In 2004 the property was let to Mr. G. W. Daniels, the first

respondent's husband, at a rental of R252.12 per month. He died in 2006, according to the first respondent, of a tik addiction. She thereafter lived in the house and was entitled to apply for the tenancy to be transferred to her. Between September 2006 and June 2007, the applicant repeatedly requested the first respondent to call at the Ocean View Housing Office to complete the documents necessary to transfer the tenancy of the property to her. She eventually did so on 22 June 2007, but no lease agreement was concluded because she did not address the issue of illegal activities on the property or finalise the transfer of the tenancy.

Consequently, the tenancy of the property was never transferred into the first respondent's name. [6] On 7 September 2006 the applicant's housing practitioner received a complaint that the first respondent was using tik with friends on the property. On 22 September 2006 she informed the housing practitioner that her late husband's friends and family had forced their way onto the property and caused a disturbance. The first respondent was told to report this to the police. It appears that she did not. On 2 October 2006 she advised the applicant's housing practitioner that the problem of illegal activities at the property had been sorted out. Subsequently, in October and November 2006 the applicant received further complaints that drugs were being brought onto the property and various incidents of illegal activities taking place on the property were reported to the Metropolitan Police. These allegations have not been disputed by the respondents. [7] On 11 September 2008 the applicant's housing practitioner went to the property in order to conduct an interview, but was unable to do so because there were many persons in the house who were under the influence of drugs. When the applicant subsequently called at the Housing Office, she was given a stern verbal warning that if the illegal activities continued on the property, she would be forced to vacate it. [8] In a letter by the applicant's attorneys dated 28 January 2011 the respondents were advised that because the tenancy had not been transferred to the first respondent or any other person, they were occupying the property illegally. They were also informed that illegal activities were being conducted on the property and were given notice to vacate it by no later than 28 February 2011. [9] As regards the illegal activities taking place on the property, the applicant has placed before this Court the evidence of numerous police officers. Warrant Officer E. R. Greeff of the South African Police Service (SAPS), stationed at Ocean View, states that he recruits members of the community in Ocean View to identify and observe criminal activities in the area and to report such activities to him. Where necessary, uniformed police act on the information. Informants have told him that the first respondent is dealing in drugs on the property; and various youngsters in the area are buying drugs there. Warrant Officer Greeff stated that during various operations by the police between 8 July 2009 and 6 August 2010, 207 dagga sticks; 2 dagga parcels; 13 tik lollies; cash and 500 tik packets were found on the property. [10] Constable Barnard states that during a police operation at the property on 8 July 2009 at 23h45, two plastic containers were thrown out of the windows of the property. There were 202 dagga cigarettes and a parcel of dagga found in the containers. During another operation at the property on 28 July 2010 at 22h45, Mr. Siraaj Japhta ("Siraaj") was found in possession of dagga wrapped in paper, as well as an undisclosed amount of money, both of which were confiscated. That day the police also found two dagga cigarettes in a cushion of a couch in a room of the property. During the execution of a search warrant at the property on 6 August 2010 at about 22h30, Mr. Imraan Daniels ("Imraan") was found in possession of a dagga cigarette after he smelt of dagga. In another search of the property on 13 August 2010, 13 abandoned tik lollies wrapped in paper in a bread plastic bag were found. As the tik lollies were abandoned, no docket was opened in the matter. [11] Regarding the applicant's claim that drug dealing is taking place on the property, the answering affidavit states that with all the cases that have been brought against her, the first respondent has been found innocent of all charges. As to the dagga sticks involving Mr. Yusuf Anthony (the first respondent's boyfriend) she says that she was not home and that when she returned, she found Yusuf handling dagga in the bedroom. She says "I was upset seeing what he was doing, seeing the dagga. We had a big fight and he promised it will never happen again". The next moment the police arrived and Mr. Anthony was arrested. He was subsequently found not guilty. As to the dagga found on Siraaj, the first respondent says that he asked to use the toilet. Thereafter he came to the kitchen at the same time that Warrant Officer Greeff knocked on the door and conducted a search of the property. The police found nothing in the house but found two dagga sticks on Siraaj. As regards the dagga found on Imraan, the first respondent says he is a nuisance and thought that he would respect her rules, which are, as she put it, "leave your drugs outside, no drugs in the house ". The police came to the property that night when they saw Imraan running up to the flat. They searched him, found him in possession of one dagga stick and took him away. In her affidavit the first respondent also says, "sorry I got involved with all this (sic) weird people, I thought were friends, but found out they corrupted my life ". [12] In court the first respondent conceded that 207 dagga sticks, 13 tik lollies and 500 tik packets were found at the property during the execution of various search warrants referred to in the affidavit of Warrant Officer Greeff. However, she denied dealing in drugs and said, "the people who brought the stuff in the house know that they had that stuff on them ". She however conceded that 207 dagga sticks were in her bedroom and that the 13 tik lollies were found amongst television parts in the front room. [13] The first respondent's brother, Mr. Padua, said that no drug dealing takes place on the property, but that there were persons dealing in drugs in the yard. He said that the first respondent is over-friendly with people and that for this reason they always run up to the property (whilst in possession of drugs) because they cannot flee to other homes which have safety gates. On numerous

occasions when the police called at night, these people would knock on the door of the property, would not tell them what they have in their pockets, and afterwards are found in possession of dagga by the police. He went on to say that he is not healthy; that he sleeps in the front room; and that when the persons (in possession of dagga) come to the house, they walk straight past him into the room, as do the police. [14] Mr. Padua confirmed that the police found 500 tik packets hidden under cushions on which he sleeps in the front room between 1 and 2 o'clock in the morning. They had first searched him, found nothing and went into the room. Thereafter the tik packets were found under a plank on which the cushions were placed. He said that he did not know how the tik packets got there. The cushions were in the same condition as he had left them the day before. As to the drugs found on the property, Mr. Padua said, "kyk daar is tye wat daar mense kom hulle doen dinge wat ons nie eers vir hulle ... sien nie ... " and "dit is nie haar goed nie, dit is ook nie die huis se goed nie dis mense wat kom met die goed". [15] There is no direct evidence to show that the first respondent is dealing in drugs from the property. The question then arises whether the applicant has proved its case by circumstantial evidence. It is settled law that in finding facts or making inferences in a civil case, one may, by balancing probabilities select a conclusion which is plausible or acceptable from amongst several conceivable ones, even though that conclusion is not the only reasonable one.1 [16] The proved facts are these. In 2006 illegal activities were conducted on the property and the first respondent informed the

applicant that this problem had been sorted out. During various operations conducted by the police between 8 July 2009 and 6 August 2010, 207 dagga sticks; 13 tik lollies; one parcel of dagga; and 500 tik packets were found on the property. These operations were carried out late at night and the early hours of the morning. On virtually every raid by the police there were persons found on the property in possession of dagga. The tik lollies and packets and dagga were found in the rooms of the property. The first respondent saw her boyfriend Mr. Anthony, handling dagga in her bedroom. The property is frequented by persons using dagga. The most plausible and acceptable inference to be drawn from these facts, in my view, is that drug dealing is taking place on the property with the knowledge and acquiescence of the first respondent. [17] The first respondent's claim that other people brought drugs into the house does not bear scrutiny. If this were so, she could simply have reported their conduct to the police. She was told to report the illegal activities on the property to the police as long ago as 2006. Since then she has not done so. Furthermore, she herself says that 207 dagga sticks were found in the bedroom, and that 13 tik lollies were found amongst TV parts in the front room, obviously hidden. There were also 500 tik packets hidden in the house. These illegal items were found on the property late at night and the early hours of the morning in different police operations. The suggestion that these illegal items were brought into the house and hidden by other persons, strains credulity. [18] The explanation by Mr. Padua that drug users flee to the property and on each occasion are found by the police (coincidentally) to be in possession of dagga, is fanciful and far-fetched. The first respondent and Mr. Padua live in the house. They must know the comings and goings as well as the activities of persons on the property. Mr. Padua himself says that if he is not at the hospital, most of the time he is at home lying on his bed in the front room. [19] The respondents plainly are unlawful occupiers as contemplated in section 1 of the Act.2 The applicant contends that this application falls to be determined under section 4(6) of the Act because the respondents have been in unlawful occupation for less than six months when these proceedings were instituted. This is not correct. The applicant's case is that since the death of Mr. Daniels, no tenancy, nor consent has been given to any other person to occupy the property; and to the extent that the respondents seek to rely on consent, it was revoked in the letter of 28 January 2011 by the applicant's attorneys. Section 4(7) of the Act therefore applies and the Court must decide whether it is just and equitable to grant an eviction order, having regard to the relevant circumstances listed in that provision. In deciding this question, the court has to balance the right of ownership and the plight of occupiers in need of occupation.3 [20] There are no elderly or disabled persons or households headed by women living on the property. Mr. Padua informed the Court that only six people live in the house. They are Mr. Padua (aged 52); the first respondent (aged 45); Mr. Yusuf Anthony (aged 30); and Mr. Brendan Atkins (aged 22), his girlfriend one Rishka (about 21 years old) and their four-year old child. The founding affidavit states that the applicant cannot make alternative accommodation available to the respondents because they have used the property for illegal activities; they are already in subsidised housing; and it would not be just and equitable to provide them with further subsidised housing when more than 400 000 families await realisation of their right to housing. [21] In my view, the reasons advanced by the applicant why an eviction order is just and equitable in the circumstances, are sound. It is notorious that drug addiction and in particular, addiction to tik, is a scourge in the Western Cape. It must be rooted out. It destroys its users and wreaks havoc in their families and society at large. The founding papers state that Ocean View is infested with drug peddling; that more and more young people are becoming dependent on drugs; that they are turning to all sorts of crimes to feed their habit; and that the drug lords are getting rich fast. Therefore the message that must be sent to drug dealers who are tenants in council houses must be clear and unequivocal: you will be evicted. [22] In addition, it is a well-known fact that there is a dire shortage of low-cost housing in this country. There are 400 000 families on the applicant's waiting list for council houses, many of whom have been on the list for years. The founding affidavit states that very few houses become available from the applicant's housing stock because of the high demand for council houses. In these circumstances, it is right and proper, in my view, that in a case where a tenant uses a council house to conduct illegal activities, the house be given to the next person on the waiting list. Apart from this, the first respondent has no defence to the claim for arrear rental. In fact, she admits that as at January 2011, the arrears in respect of rental amounted to R24 501.98. In the circumstances, it is unconscionable that the applicant should continue to suffer a loss of revenue, ultimately borne by taxpayers. [23] I accordingly hold that considerations of fairness and equity do not warrant the respondents' continued occupation of the property. [24] The following order is issued: 1. The first to third respondents (including any other tenants who may live there) and all who hold title under them shall vacate 12 Orchid Court, Ocean View, Western Cape, and the house and structures thereon ("the property") by no later than Friday 30 September 2011. 2. In the event that the first to third respondents (including any other tenants who may live there) and all who hold title under them have not vacated the property by 30 September 2011, they shall be evicted from the property 14 days thereafter, in terms of section 4(6) of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998. 3. The respondents, upon their vacation of, or eviction from, the property and the structures thereon, are interdicted and restrained

from being upon the property, for the purposes of unlawfully occupying it, carrying on business at the property or erecting structures on it. 4. The Sheriff or any persons appointed by him, including members of the South African Police Service, are authorised: 4.1. forthwith to demolish and remove any structures erected or occupied by the respondents on the property; and any materials used to erect such structures which shall be kept in safe custody by the applicant, until released to the lawful owner thereof within one month of demolition and removal, whereafter it may be disposed of by the Sheriff or the applicant; 4.2. to remove any possessions found in, at or near the property and/or the structures erected at the property, which the applicant shall keep in safe custody until released to the lawful owner thereof, within one month of the removal, whereafter it may be disposed of by the Sheriff or the applicant. Schippers AJ

[2] The applicant owns the property. It forms part of what is known as the applicant's "rental stock". These are council houses rented to persons who meet the applicant's criteria for subsidised rental housing. In order to meet these

criteria, an applicant for a council house must, inter alia, earn an income of less than R7 000 per month; be a South African citizen; not own immovable property; and use the property for lawful purposes.

[3] The application was launched on 4 March 2011. In terms of the notice of motion, the respondents were required to notify the applicant's attorneys of their intention to oppose the application by 1 April 2011 and within 15 days thereafter, to file their answering affidavits. When the respondents failed to deliver a notice of intention to oppose the application, it was enrolled for hearing on 11 April 2011. That day and by agreement between the parties, this Court postponed the application to 3 June 2011 and the respondents were directed to file their answering affidavits by 27 May 2011. The respondents however did not file their answering affidavits. On 3 June 2011 this Court issued an order in terms of section 4(2) read with section 4(5) of the Act, in terms of which the respondents were notified of the application for their eviction from the property; and informed that they were entitled to appear on 28 July 2011 to oppose the eviction.

[4] The application came before me on 25 July 2011. The first respondent, Ms. Gabeeba Daniels and her brother, Mr. M. Padua, appeared in person. They asked for an opportunity to file opposing papers. They were directed to do so by 2 August 2011, even if the papers were handwritten. The first respondent delivered a handwritten affidavit but did not deal with all the issues raised in the founding papers. The application was postponed to 5 August 2011 and thereafter to 12 August 2011, to enable the first respondent and Mr. Padua to address the Court as to why they should not be evicted from the property, which they did.

[5] The basic facts in this application may be simply summarised. In 2004 the property was let to Mr. G. W. Daniels, the first

respondent's husband, at a rental of R252.12 per month. He died in 2006, according to the first respondent, of a tik addiction. She thereafter lived in the house and was entitled to apply for the tenancy to be transferred to her. Between September 2006 and June 2007, the applicant repeatedly requested the first respondent to call at the Ocean View Housing Office to complete the documents necessary to transfer the tenancy of the property to her. She eventually did so on 22 June 2007, but no lease agreement was concluded because she did not address the issue of illegal activities on the property or finalise the transfer of the tenancy.

Consequently, the tenancy of the property was never transferred into the first respondent's name.

[6] On 7 September 2006 the applicant's housing practitioner received a complaint that the first respondent was using tik with friends on the property. On 22 September 2006 she informed the housing practitioner that her late husband's friends and family had forced their way onto the property and caused a disturbance. The first respondent was told to report this to the police. It appears that she did not. On 2 October 2006 she advised the applicant's housing practitioner that the problem of illegal activities at the property had been sorted out. Subsequently, in October and November 2006 the applicant received further complaints that drugs were being brought onto the property and various incidents of illegal activities taking place on the property were reported to the Metropolitan Police. These allegations have not been disputed by the respondents.

[7] On 11 September 2008 the applicant's housing practitioner went to the property in order to conduct an interview, but was unable to do so because there were many persons in the house who were under the influence of drugs. When the applicant subsequently called at the Housing Office, she was given a stern verbal warning that if the illegal activities continued on the property, she would be forced to vacate it.

[8] In a letter by the applicant's attorneys dated 28 January 2011 the respondents were advised that because the tenancy had not been transferred to the first respondent or any other person, they were occupying the property illegally. They were also informed that illegal activities were being conducted on the property and were given notice to vacate it by no later than 28 February 2011.

[9] As regards the illegal activities taking place on the property, the applicant has placed before this Court the evidence of numerous police officers. Warrant Officer E. R. Greeff of the South African Police Service (SAPS), stationed at Ocean View, states that he recruits members of the community in Ocean View to identify and observe criminal activities in the area and to report such activities to him. Where necessary, uniformed police act on the information. Informants have told him that the first respondent is dealing in drugs on the property; and various youngsters in the area are buying drugs there. Warrant Officer Greeff stated that during various operations by the police between 8 July 2009 and 6 August 2010, 207 dagga sticks; 2 dagga parcels; 13 tik lollies; cash and 500 tik packets were found on the property.

[10] Constable Barnard states that during a police operation at the property on 8 July 2009 at 23h45, two plastic containers were thrown out of the windows of the property. There were 202 dagga cigarettes and a parcel of dagga found in the containers. During another operation at the property on 28 July 2010 at 22h45, Mr. Siraaj Japhta ("Siraaj") was found in possession of dagga wrapped in paper, as well as an undisclosed amount of money, both of which were confiscated. That day the police also found two dagga cigarettes in a cushion of a couch in a room of the property. During the execution of a search warrant at the property on 6 August 2010 at about 22h30, Mr. Imraan Daniels ("Imraan") was found in possession of a dagga cigarette after he smelt of dagga. In another search of the property on 13 August 2010, 13 abandoned tik lollies wrapped in paper in a bread plastic bag were found. As the tik lollies were abandoned, no docket was opened in the matter.

[11] Regarding the applicant's claim that drug dealing is taking place on the property, the answering affidavit states that with all the cases that have been brought against her, the first respondent has been found innocent of all charges. As to the dagga sticks involving Mr. Yusuf Anthony (the first respondent's boyfriend) she says that she was not home and that when she returned, she found Yusuf handling dagga in the bedroom. She says "I was upset seeing what he was doing, seeing the dagga. We had a big fight and he promised it will never happen again". The next moment the police arrived and Mr. Anthony was arrested. He was subsequently found not guilty. As to the dagga found on Siraaj, the first respondent says that he asked to use the toilet. Thereafter he came to the kitchen at the same time that Warrant Officer Greeff knocked on the door and conducted a search of the property. The police found nothing in the house but found two dagga sticks on Siraaj. As regards the dagga found on Imraan, the first respondent says he is a nuisance and thought that he would respect her rules, which are, as she put it, "leave your drugs outside, no drugs in the house ". The police came to the property that night when they saw Imraan running up to the flat. They searched him, found him in possession of one dagga stick and took him away. In her affidavit the first respondent also says, "sorry I got involved with all this (sic) weird people, I thought were friends, but found out they corrupted my life ".

[12] In court the first respondent conceded that 207 dagga sticks, 13 tik lollies and 500 tik packets were found at the property during the execution of various search warrants referred to in the affidavit of Warrant Officer Greeff. However, she denied dealing in drugs and said, "the people who brought the stuff in the house know that they had that stuff on them ". She however conceded that 207 dagga sticks were in her bedroom and that the 13 tik lollies were found amongst television parts in the front room.

[13] The first respondent's brother, Mr. Padua, said that no drug dealing takes place on the property, but that there were persons dealing in drugs in the yard. He said that the first respondent is over-friendly with people and that for this reason they always run up to the property (whilst in possession of drugs) because they cannot flee to other homes which have safety gates. On numerous

occasions when the police called at night, these people would knock on the door of the property, would not tell them what they have in their pockets, and afterwards are found in possession of dagga by the police. He went on to say that he is not healthy; that he sleeps in the front room; and that when the persons (in possession of dagga) come to the house, they walk straight past him into the room, as do the police.

[14] Mr. Padua confirmed that the police found 500 tik packets hidden under cushions on which he sleeps in the front room between 1 and 2 o'clock in the morning. They had first searched him, found nothing and went into the room. Thereafter the tik packets were found under a plank on which the cushions were placed. He said that he did not know how the tik packets got there. The cushions were in the same condition as he had left them the day before. As to the drugs found on the property, Mr. Padua said, "kyk daar is tye wat daar mense kom hulle doen dinge wat ons nie eers vir hulle ... sien nie ... " and "dit is nie haar goed nie, dit is ook nie die huis se goed nie dis mense wat kom met die goed".

[15] There is no direct evidence to show that the first respondent is dealing in drugs from the property. The question then arises whether the applicant has proved its case by circumstantial evidence. It is settled law that in finding facts or making inferences in a civil case, one may, by balancing probabilities select a conclusion which is plausible or acceptable from amongst several conceivable ones, even though that conclusion is not the only reasonable one.1

[16] The proved facts are these. In 2006 illegal activities were conducted on the property and the first respondent informed the

applicant that this problem had been sorted out. During various operations conducted by the police between 8 July 2009 and 6 August 2010, 207 dagga sticks; 13 tik lollies; one parcel of dagga; and 500 tik packets were found on the property. These operations were carried out late at night and the early hours of the morning. On virtually every raid by the police there were persons found on the property in possession of dagga. The tik lollies and packets and dagga were found in the rooms of the property. The first respondent saw her boyfriend Mr. Anthony, handling dagga in her bedroom. The property is frequented by persons using dagga. The most plausible and acceptable inference to be drawn from these facts, in my view, is that drug dealing is taking place on the property with the knowledge and acquiescence of the first respondent.

[17] The first respondent's claim that other people brought drugs into the house does not bear scrutiny. If this were so, she could simply have reported their conduct to the police. She was told to report the illegal activities on the property to the police as long ago as 2006. Since then she has not done so. Furthermore, she herself says that 207 dagga sticks were found in the bedroom, and that 13 tik lollies were found amongst TV parts in the front room, obviously hidden. There were also 500 tik packets hidden in the house. These illegal items were found on the property late at night and the early hours of the morning in different police operations. The suggestion that these illegal items were brought into the house and hidden by other persons, strains credulity.

[18] The explanation by Mr. Padua that drug users flee to the property and on each occasion are found by the police (coincidentally) to be in possession of dagga, is fanciful and far-fetched. The first respondent and Mr. Padua live in the house. They must know the comings and goings as well as the activities of persons on the property. Mr. Padua himself says that if he is not at the hospital, most of the time he is at home lying on his bed in the front room.

[19] The respondents plainly are unlawful occupiers as contemplated in section 1 of the Act.2 The applicant contends that this application falls to be determined under section 4(6) of the Act because the respondents have been in unlawful occupation for less than six months when these proceedings were instituted. This is not correct. The applicant's case is that since the death of Mr. Daniels, no tenancy, nor consent has been given to any other person to occupy the property; and to the extent that the respondents seek to rely on consent, it was revoked in the letter of 28 January 2011 by the applicant's attorneys. Section 4(7) of the Act therefore applies and the Court must decide whether it is just and equitable to grant an eviction order, having regard to the relevant circumstances listed in that provision. In deciding this question, the court has to balance the right of ownership and the plight of occupiers in need of occupation.3

[20] There are no elderly or disabled persons or households headed by women living on the property. Mr. Padua informed the Court that only six people live in the house. They are Mr. Padua (aged 52); the first respondent (aged 45); Mr. Yusuf Anthony (aged 30); and Mr. Brendan Atkins (aged 22), his girlfriend one Rishka (about 21 years old) and their four-year old child. The founding affidavit states that the applicant cannot make alternative accommodation available to the respondents because they have used the property for illegal activities; they are already in subsidised housing; and it would not be just and equitable to provide them with further subsidised housing when more than 400 000 families await realisation of their right to housing.

[21] In my view, the reasons advanced by the applicant why an eviction order is just and equitable in the circumstances, are sound. It is notorious that drug addiction and in particular, addiction to tik, is a scourge in the Western Cape. It must be rooted out. It destroys its users and wreaks havoc in their families and society at large. The founding papers state that Ocean View is infested with drug peddling; that more and more young people are becoming dependent on drugs; that they are turning to all sorts of crimes to feed their habit; and that the drug lords are getting rich fast. Therefore the message that must be sent to drug dealers who are tenants in council houses must be clear and unequivocal: you will be evicted.

[22] In addition, it is a well-known fact that there is a dire shortage of low-cost housing in this country. There are 400 000 families on the applicant's waiting list for council houses, many of whom have been on the list for years. The founding affidavit states that very few houses become available from the applicant's housing stock because of the high demand for council houses. In these circumstances, it is right and proper, in my view, that in a case where a tenant uses a council house to conduct illegal activities, the house be given to the next person on the waiting list. Apart from this, the first respondent has no defence to the claim for arrear rental. In fact, she admits that as at January 2011, the arrears in respect of rental amounted to R24 501.98. In the circumstances, it is unconscionable that the applicant should continue to suffer a loss of revenue, ultimately borne by taxpayers.

[23] I accordingly hold that considerations of fairness and equity do not warrant the respondents' continued occupation of the property.

[24] The following order is issued:

1. The first to third respondents (including any other tenants who may live there) and all who hold title under them shall vacate 12 Orchid Court, Ocean View, Western Cape, and the house and structures thereon ("the property") by no later than Friday 30 September 2011.

2. In the event that the first to third respondents (including any other tenants who may live there) and all who hold title under them have not vacated the property by 30 September 2011, they shall be evicted from the property 14 days thereafter, in terms of section 4(6) of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998.

3. The respondents, upon their vacation of, or eviction from, the property and the structures thereon, are interdicted and restrained

from being upon the property, for the purposes of unlawfully occupying it, carrying on business at the property or erecting structures on it.

4. The Sheriff or any persons appointed by him, including members of the South African Police Service, are authorised:

4.1. forthwith to demolish and remove any structures erected or occupied by the respondents on the property; and any materials used to erect such structures which shall be kept in safe custody by the applicant, until released to the lawful owner thereof within one month of demolition and removal, whereafter it may be disposed of by the Sheriff or the applicant;

4.2. to remove any possessions found in, at or near the property and/or the structures erected at the property, which the applicant shall keep in safe custody until released to the lawful owner thereof, within one month of the removal, whereafter it may be disposed of by the Sheriff or the applicant.

Schippers AJ

1Govan v Skidmore 1952 (1) SA 732 (N) at 734B-C, approved in Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159C-D

2Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) para 55.

3Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC) paras 33, 36 and 37; Wormald NO and Others v Kambule 2006 (3) SA 562 (SCA) para 17.