Communicare v Apolisi and Others (2912/21; 3653/21; 4177/21) [2021] ZAWCHC 277; 2023 (6) SA 250 (WCC) (11 August 2021)

Communicare v Apolisi and Others (2912/21; 3653/21; 4177/21) [2021] ZAWCHC 277; 2023 (6) SA 250 (WCC) (11 August 2021)

The court found that the respondents were unlawful occupiers as defined by PIE and that the applicant was not entitled to rely on the mandament van spolie for eviction. The urgency required for spoliation had dissipated due to the lapse of time between occupation and hearing. Section 5 of PIE was the appropriate remedy, as it aligns with constitutional protections and provides urgent relief for landowners while safeguarding the dignity of occupiers. The court emphasized the necessity of considering alternative accommodation for evictees and ordered the City of Cape Town to investigate and facilitate relocation. The eviction was granted but subject to measures ensuring respondents would...

Citation
[2021] ZAWCHC 277
Parties
Applicant: Communicare; Respondent: Zuzeka Apolisi; Respondent: Any and all other occupiers occupying the property situated at 28 Ysterplaat, Brooklyn; Respondent: City of Cape Town; Respondent: Ms Ncumise; Respondent: Any and all other occupiers occupying the property situated at 27 De Mist Str, Brooklyn; Respondent: Sheila Mogojo; Respondent: Any and all other occupiers occupying the property situated at 47 Justin Str, Dennehuis Complex
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 August 2021
Case Number
2912/21; 3653/21; 4177/21
Procedural Posture
Urgent Application / Consolidated Urgent Eviction and Spoliation Applications; Judgment
Outcome
Eviction granted subject to conditions ensuring respondents are not rendered homeless; City of Cape Town ordered to investigate and facilitate relocation.
Judges
Fortuin
Legal Topics
Prevention of Illegal Eviction Act, Mandament Van Spolie, Urgent Eviction, Constitutional Right to Housing, Just and Equitable Eviction, Municipal Obligations
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Mandament Van Spolie Urgent Eviction Constitutional Right to Housing Just and Equitable Eviction +1 more

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Parties

Communicare

Applicant

Zuzeka Apolisi

Respondent

Any and all other occupiers occupying the property situated at 28 Ysterplaat, Brooklyn

Respondent

City of Cape Town

Respondent

Ms Ncumise

Respondent

Any and all other occupiers occupying the property situated at 27 De Mist Str, Brooklyn

Respondent

Sheila Mogojo

Respondent

Any and all other occupiers occupying the property situated at 47 Justin Str, Dennehuis Complex

Respondent

Procedural Posture

Urgent Application / Consolidated Urgent Eviction and Spoliation Applications; Judgment

Legal Issues

  1. 1 Are the respondents in unlawful occupation of the units?
  2. 2 Can the mandament van spolie and PIE exist at the same time?
  3. 3 Is section 5 of PIE applicable in situations like this?

Ratio Decidendi

The court found that the respondents were unlawful occupiers as defined by PIE and that the applicant was not entitled to rely on the mandament van spolie for eviction. The urgency required for spoliation had dissipated due to the lapse of time between occupation and hearing. Section 5 of PIE was the appropriate remedy, as it aligns with constitutional protections and provides urgent relief for landowners while safeguarding the dignity of occupiers. The court emphasized the necessity of considering alternative accommodation for evictees and ordered the City of Cape Town to investigate and facilitate relocation. The eviction was granted but subject to measures ensuring respondents would...

Court Disposition

Eviction granted subject to conditions ensuring respondents are not rendered homeless; City of Cape Town ordered to investigate and facilitate relocation.

Orders

  • The application for eviction of the respondents is granted to be effected on Friday, 17 September 2021.
  • The City of Cape Town is ordered to undertake a full investigation and compile a report listing the addresses where the respondents resided prior to occupation, by 3 September 2021.