EVICTION

Facts and issue: Eviction application to evict the respondents from the property in question. The applicant averred that the land in question is not suitable for human settlement and not even viable for housing and or housing development since there is no infrastructure. There are no basic services relating to water, sewerage, roads and storm water systems. The respondents invaded the land owned by the applicant, erected structures, and inhabited same without the required authorisation to occupy the land.

Discussion: The occupiers on the property in question falls under the definition of unlawful occupiers as defined in section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Furthermore, it is not disputed by the respondents that they have not applied for housing with the Housing Development Agency and no reasons have been advanced why they should be given preference above the qualifying applicants who applied for houses with the Department of Housing Agency. The area where structures have been erected is the subject of a lease agreement, is not conducive for habitation due to the various reasons mentioned in the report of the Department of Human Settlement and is not capable for housing development either. However, the applicant has identified an area for township development which will yield approximately 3000 residential erven to the housing needs in Meqheleng and commenced with the project by advertising for service providers in April 2023 already. The respondents were not homeless or in dire need of accommodation but chose to move from their place of abode that they shared with their families due to over-crowdedness. The respondents moved to an area where there was no water or sewerage facilities, but conveniently expects the applicant to supply them with such services.

Findings: It cannot be said that the respondents are destitute because they chose to pay for a legal representative to assist them whereas the option of applying to Legal Aid South Africa to assist them was refused. The respondents’ various interlocutory applications, their failure to adhere to time frames for filing of their papers, the slandering of the applicant on social media and the radio interview demonstrates the respondents’ unwillingness to work with the applicant to resolve the issue amicably. They implemented various delaying tactics at the expense of the various occupiers, whereas a middle ground could have been reached between themselves and the applicant. The respondents invaded a piece land which they had no permission to occupy. They resided in an area which is not conducive for habitation, wanted the applicant to supply them with services but did not want to apply for housing or wait for applicant to supply them with houses.

Order: The respondents are ordered to demolish and remove any structures it may have erected on the land by 5 December 2024 and to vacate the land by 5 December 2024.

Facts and issue: Application in terms of which the applicant seeks the eviction of the respondents, and any persons occupying the immovable property through the respondents, from the immovable property. The respondents contend that they are entitled to remain in occupation of the property, and in the alternative, if evicted, that there should be restitution to the respondents of monies paid to the applicant. The applicant is the registered owner of the property, and the respondents are in occupation of the property.

Discussion: The applicant contends that despite several attempts by the respondents to purchase the property, this has not occurred, as the respondents have been unable to raise the monies to be paid as a purchase price. The respondents’ argument is that Matsemela occupies a portion of the property and cannot be evicted as it has not been joined by the applicant. There is no allegation that Matsemela is honouring the lease agreement relied on, and that it is making rental payments to the applicant in terms of such lease agreement. The lease agreement incorrectly refers to Permtype as the lessor and to the applicant as the lessee. There is no existing lease agreement in place as between the applicant and Permtype, or between the applicant and Matsemela. There was accordingly no need to join Matsemela. The disputes raised by the respondents are vague and generalised. The disputes of fact raised by the respondents are not real, genuine or bona fide disputes of fact. There are no disputes of fact that would prevent the opposed application being determined on the contents of the affidavits filed in the application.

Findings: The respondents’ occupation of the property arose from the respondents’ intention to purchase the property. The respondents’ attempts to purchase the property have however been fruitless. The respondents have failed to show which payments relate to the purchase of the property, and which payments relate to rental for the occupation of the property. The respondents’ entitlement to occupy the property ceased once the various attempts to purchase were terminated. The applicant has established that the respondents do not have any lawful right to remain in occupation.

Order: The respondents are evicted from the property. The respondents are to vacate the property within 20 days of the granting of the order.

Facts and issue: Application in which the applicant seeks relief in the form of an eviction order together with certain ancillary relief. The applicant purchased the property occupied by the first and second respondents and became the owner thereof. The second respondent, who occupied the property with her children prior to the registration of transfer, remained in occupation of the property and still occupies the property. This seemingly as the result of a dispute between the first and second respondents, married to each other, and their separation or divorce, and dispute relating to maintenance or a failure by the first respondent to provide alternative accommodation to the second respondent and the minor children.

Discussion: The second respondent claims that because of the inability or non-cooperation of the first respondent to contribute towards maintenance, that she and the minor children, would be left destitute and without accommodation, should an eviction order be granted. There is no dispute that the applicant is entitled to occupation and use of the property in question. The second respondent has no right of occupation of the property. There has been considerable delay with great detriment to the applicant’s right to use and utilise his property. This included considerable financial and emotional hardships. There are two sets of competing rights. On the one hand, that of the applicant and his wife, together with their minor children who are not able to live as a functioning family unit because of the continued occupation of the property by the second respondent. This, despite the applicant having to make monthly payments in respect of the mortgage bond that was registered to enable him to pay the purchase price for the property. The situation faced by the applicant is so dire that the applicant’s family unit is broken up and some of the children resides with family members because of the non-availability of space in the temporary accommodation occupied by the applicant. On the other hand, is the rights of the second respondent and her minor children.

Findings: No corroborated evidence of steps taken by the second respondent to seek relief relating to maintenance either in the form of a Rule 43 application of an application for maintenance has been presented. Although the situation faced by the second respondent is unfortunate, the court cannot close its eyes to the plight of the applicant who pays for the property since registration after he purchased it. The applicant is now frustrated in enjoying the fruits of the asset that he paid for, because of the second respondent's inability to vacate the property and the apparent failure by the first respondent to provide sufficient support and maintenance to the second respondent and their children. A date during the school holidays would constitute a fair and just date for the property to be vacated by the second respondent and her family.

Order: The respondents, and all those holding occupation of the property through them are forthwith evicted and ejected from the premises. It is ordered that the respondents and all those who occupy the property through them shall vacate the property on or on or before 24 September.

Facts and issue: The City of Cape Town seeks to evict various respondents and those holding title under them from the Pentech-Belhar Housing Project (the project) which is a low income housing project in Belhar, in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The respondents raise the defence of consent.

Discussion: The respondent allege that Mr Gumede (public official) told them that they could not sleep outside with their children and gave them permission to move into the units but advised that they were not to inform anyone that he had given permission to occupy. The respondents state that they took occupation of the units out of desperation. While they admit that they are unlawful occupants, they nonetheless persist with an argument that they were given consent to occupy. Mr Gumede denies stating that the respondents could enter the units and indicates quite clearly that he has or had no authority to give consent to the respondents to occupy the City’s property. The respondents’ version of consent is problematic because even if, for argument’s sake, Mr Gumede gave permission to occupy the City’s property, he was not authorised to do so because a public official cannot lawfully act beyond the confines of his power as prescribed by law.

Findings: Mr Gumede, as a public official for the City, had no authority to promise or allow the respondents or any other persons to occupy the City’s property. Even if Mr Gumede gave the respondents the green light to occupy the units, or they understood his words to mean that consent was given, he lacked the required authority as a public official to provide consent as it was beyond his power to do so but also because legislation regulates the allocation of housing units to lawful beneficiaries. The defence of consent is unsustainable. The City has fulfilled its Constitutional mandate in its current amended offer to the respondents.

Order: The second to eighth respondents, Leonie Toll (tenth respondent) and all those holding title under them are ordered to vacate the following units at Belhar Pentech Housing Project on or before 6 January 2025.

Facts: The applicant conducts mining activities and a smelter in the Rustenburg and surrounding areas. The applicant employs approximately 1,962 people. As a benefit to its employees, the applicant has sought to procure accommodation for them over the past 20 years. Employees who qualify for the housing benefit apply to the applicant for allocation of housing which, if available, are allocated to the employees. Such employees pay a nominal rental fee to the applicant, as well as the water and electricity consumed. Due to the turn-over of personnel at the applicant, it happens that some properties remain vacant for a period. The properties in question were vacant and became occupied by the 19 respondents.

Application: The applicant seeks an order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) evicting the 19 respondents from the properties. The applicant alleges, and the respondents deny, that the properties were safeguarded to prevent illegal occupants and vandalism. The applicant further alleges that the properties were locked, and security were employed to prevent unlawful occupation. The respondents state that the derelict state of the properties resulted in them becoming drug-nests and that the occupation of the properties by the respondents prevented the illegal activities.

Discussion: The respondents state that they used their own financial means to renovate the properties to a habitable state. The respondents and their families cleaned up the properties, did electrical work, plugs, installed geysers, fixed the ceiling, replaced doors, painted the buildings and did plumbing works to bring the properties up to habitable standards. The respondents describe themselves as households that are headed by women, that include children, a household where a disabled person lives, and households that take care of the elderly. The PIE Act mandates that the court must consider the social and economic circumstances of such vulnerable groups.

Findings: “Just and equitable” encompass consideration of not only the respondents’ positions, but also that of the applicant’s. The applicant is currently losing the financial benefit it would have received, had its employees occupied the properties. In addition, the applicant is also losing the benefit of accommodating its employees in houses. Unfortunately, there is always a cost associated with anything of value. In this instance, it is the price of housing. Fairness would not dictate that one party has all the benefits at the expense of the other. The occupiers have had the benefit of free housing and free water and electricity since December 2021. The fact that the occupiers cleaned up the properties and restored them to habitable properties, might form the basis of a claim of enrichment against the owner. It does not provide any right to occupation of the property. A period of three months would be a sufficient time for the respondents to make alternative arrangements.

Order: The respondents are evicted from the properties. Certain of the respondents are ordered to pay the costs of the application on Scale C on a party and party scale. The others are excluded from any costs order.

REID J

Facts and issue: The applicants launched an application for reconsideration of the interim order granted in favour of the first respondent (Fleurhof). The applicants (occupiers) were interdicted from invading the property. Occupiers are also seeking a mandamus against the sixth respondent (“CoJ”) to provide a temporary emergency accommodation and have brought an application for irregular proceedings against CoJ for having appointed two firms of attorneys who filed notices to oppose reconsideration application.

Discussion: The occupiers contend that ordinarily and in accordance with the principle of audi alteram partem another party to the lis must always be accorded a right of hearing and reply before an order is granted. Fleurhof had all the contacts of the occupiers and occupiers’ attorneys it was therefore disingenuous to depose to an affidavit stating that it was not possible to serve the papers on the occupiers alternatively that Fleurhof did not know how or where to serve the occupiers, so went the argument. The court should frown upon the Fleurhof’s conduct in this regard. Reference was made of a return of service of the court order obtained by one of the occupiers, Olga, against Fleurhof which was served on Fleurhof and as such Fleurhof cannot argue that it was not aware that service could be on the occupiers or their legal representatives. The only reasons advanced by Fleurhof that ex parte application was warranted is that the occupiers refused to cooperate and provide their details and were already removed from the properties hence could not be served at the properties. Proceeding by way of ex parte is not justified.

Findings: The real right which has been demonstrated by Fleurhof has to give way to the exercise of the rights available to occupiers and to this end the relief sought would not have been granted. The efforts of Fleurhof were to obtain an order to sanitise their conduct of evicting occupiers who appear to have taken occupation of the properties. In terms of the doctrine of the unclean hand’s principle, Fleurhof would not be entitled to the relief sought in these papers. The application launched by Fleurhof is bound to fail as it did not satisfy the requirements for an ex parte applications and the requirements for an interdict were also not satisfied. The irregular proceeding instituted by the occupiers has merits but since the cause for the complaint has been removed by the withdrawal PG Matsheka as attorneys of record the occupiers are entitled to cost order against CoJ.

Order: The order granted ex parte against the respondents (Unlawful Invaders) in their absence by is reconsidered. The application is dismissed with costs.

Facts and issue: The plaintiff and the defendant entered various written lease agreements, wherein the plaintiff agreed to lease to the defendant a property. All three lease agreements were due to terminate. However, shortly before termination, the parties negotiated a further lease of the property, which is referred to as the July 2014 lease, to enable the defendant to remain on the property past the termination date. The plaintiff seeks to evict the defendant from the property by way of a rei vindicatio.

Discussion: The defendant further pleads that it occupies the property through a valid lease which was entered into between the parties in two emails which consist of the offer and acceptance (the July 2014 lease or the agreement). The plaintiff admits the July 2014 lease but asserts that it was cancelled on 31 December 2015, at which time a tacit oral month to month lease came into existence, which was also cancelled on 30 April 2016. The plaintiff has clearly pleaded that the July 2014 lease has been cancelled. In its plea, the cornerstone defendant’s case is that the July 2014 lease remains in place and binding on the plaintiff until a public tender process. However, the defendant did not rejoin the replication to plead that a term of the agreement was that the July 2014 lease was incapable of cancellation or not properly cancelled.

Findings: Since defendant pleaded a valid lease agreement, the onus is on plaintiff to prove a valid cancellation of the agreement. The plaintiff has led evidence that the July 2014 agreement is cancelled, but defendant has neither led evidence that the agreement was incapable of cancellation, nor that the notices of cancellation did not cancel the lease. In the premises, the July 2014 lease has been properly cancelled.

Order: The defendant and all other persons holding occupation through or under it, to the property, is directed to, within three months from date of judgment, vacate the property.

Facts and issue: The applicant, Mr Buttner, and the respondent, Ms van Wyk, were, respectively, the lessor and lessee of a property, when their lease agreement came to an end at the instance of Mr Buttner (lessor). As a result of the landlord’s termination of the lease, Ms Van Wyk was contractually obliged to vacate the property. She has however refused to do so. Mr Buttner has accordingly been required to approach the court for an order directing Ms Van Wyk and any persons occupying under her to vacate the property.

Discussion: Ms Van Wyk has not suggested that she has any entitlement to continue to occupy the property. Nor could she have made any such assertion. Mr Buttner was lawfully entitled to terminate their agreement of lease. Ms Van Wyk has however contended that it would nevertheless not be “just and equitable” to evict her and her 11-year-old son from the property, and that the court should therefore, in the exercise of its discretion under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, refuse to grant such an order at the instance of Mr Buttner. Ms Van Wyk has not indicated how many siblings she has, or where they live, or what their financial status is. Nor is it correct that she is “elderly” as her own affidavit stated, she is currently 47 years old, and was 46 when the application was brought. Her vague statements regarding her medical condition are also unsubstantiated and entirely uncorroborated.

Findings: Ms Van Wyk has given no indication that she will pay anything for the property, let alone discharge her overdue indebtedness, which is by now considerable, and she has at no stage even evinced a willingness to discuss a payment plan with Mr Buttner. Balancing the rights and interests of the property owner against the rights and interests of the unlawful occupier, there is no doubt that it would be just and equitable to order that Ms Van Wyk and her son vacate the property, and in the alternative, that they be evicted. A just and equitable date for Ms Van Wyk and her minor son to vacate the property would be as soon as reasonably possible after the end of the current school year.

Order: The first respondent and all other persons occupying the property through the first respondent are evicted from the property. The occupiers must vacate the property on or before Tuesday, 17 December 2024.

Facts: The applicant’s business is a family investment business that has done business for many generations. This family business is respected in the local community and earned the trust of the residents and traders. The property is situated in an upmarket address on the beachfront. The respondent is an incorporated private company and trades as the "Infusion Social Club". The applicant is a private company and its trade consists of managing a portfolio of property investments. The premises from which the respondent conducts its business is a single shop in a portion of the subject property owned by the applicant. The respondent proposed that it would take over the café's business and enter into a new lease agreement with the applicant. At all material times, the applicant understood (and it is alleged that the respondent so represented to it) that the respondent would be conducting the same business as the café had undertaken previously. The respondent concluded a commercial lease agreement (including an addendum) to lease the premises from the applicant. The lease agreement contained a vitally important material term in which the respondent agreed to use the premises to conduct the business ordinarily undertaken by a restaurant, which included cooking and selling food and serving drinks and alcohol.

Application: The applicant was contacted by several tenants in the building and informed that the respondent would be selling cannabis to the public from the premises and that the respondent would be operating a cannabis smoking lounge from the premises. These tenants informed the applicant they would terminate their leases if this continued. The respondent conceded it would be selling cannabis to the public from the premises. The applicant terminated the lease agreement because of an impasse concerning the respondent’s trading activities. The termination followed because of the alleged non-disclosure and because an integral part of the respondent’s intended business model was not a symbiotic fit with the applicant. The applicant brings an urgent application for the eviction of the respondent from the commercial premises.

Discussion: Notwithstanding the allegation that the occupancy of the premises had been settled and that the lease agreement had been validly terminated, the respondent remained in occupation of the premises. Belatedly after that, the respondent alleged (for the first time) that it had not materially breached the lease agreement and that no right to cancel the lease agreement had accrued to the applicant to warrant the termination of the lease agreement. This was then the core issue for determination in the application. The respondent materially misrepresented the true nature of its business by failing to disclose its cannabis business activities to the applicant fully. The lease agreement was conditional on a complete and accurate disclosure. Further, the respondent structured its business in an attempt to exploit a perceived loophole in the law which prohibits the sale of cannabis but permits the growing thereof by individuals for personal consumption.

Findings: Despite the termination of the lease, the respondent remained in unlawful occupation of the premises and refused to vacate the premises. What was of concern was the express statement by the respondent that notwithstanding the valid termination of the lease, it steadfastly refused to vacate the premises. The respondent conducted a business that was not disclosed to the applicant, and the lease agreement was conditional on the nature of the respondent’s trading activities. A condition which the respondent did not meet. What remained was the undertaking by the respondent that it would refrain from conducting cannabis-related business from the premises. This undertaking only surfaced after the breach and valid termination of the lease. The respondent’s entire business model and core business were inconsistent with the type of business the applicant had expected and contractually demanded from its tenants. The respondent materially misrepresented the business to be conducted by it and the business it intended to perform. The respondent’s conduct left the applicant with no alternative but to approach the court for urgent relief. There was no other remedy available to the applicant.

Order: The application succeeds.

WILLE J

Facts: The applicants between them own a portion of land in Germiston. The property in question is zoned for mining. The applicants acquired their ownership of the property in 2016. The property was part of a mine operated at least at some point. The relevant buildings in question comprise mainly a workshop that formed part of the mine. Mining has occurred on this property since the 1920s and operations ceased in the early 2000s. The applicants allege that the respondents, or at least most of them, recently started occupying the property, particularly the workshop compound, in order to conduct illegal mining operations from the property. It seems to have become common cause or accepted for purposes of argument that at least some of the occupiers were former mining employees of Primrose Mine and had formerly worked the mine in that capacity. The applicants allege that the portion of the property occupied by the occupiers is intended to be used for an expansion of the school. In this they are supported by evidence obtained from the principal of the school. The occupiers deny that they are conducting illegal mining activities on the property. They contend that they were employees of Primrose Mine and that one Mr Hart, who they say was the owner and their employer, allowed them to occupy the property while they were working for him, and one day advised them that he was selling the property and would be paying them amounts of pay that were due to them from the proceeds of the sale.

Application: The applicants bring an eviction application brought under the provisions of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (PIE). Coupled with the application for eviction relief, the applicants seek interdictory relief to prevent the respondents from conducting unlawful mining operations on the property.

Discussion: The Extension of Security of Tenure Act 62 of 1997 (ESTA) applies in respect of the eviction of any “occupiers”, as defined in ESTA, from any land to which ESTA applies. The first tier entails the question whether the land at issue is land to which ESTA applies. The second tier, which arises only if the answer to the first tier is in the affirmative, is whether the persons at issue are occupiers as defined in ESTA. The question whether the respondents are using the property for mining lies at the heart of any ability to establish their status as ESTA occupiers. This is because of the exclusion in the definition of occupier where the person in question is using the property for mining. The only evidence before court warrants the finding that the respondents are conducting illegal mining on the property, and that this is the reason they are occupying it. Their bald denial of this proposition and of the evidence cited in support of it is insufficient for them to make out a case for their status as occupiers under ESTA. In the circumstances, ESTA is not applicable to the current intended eviction. PIE requires an evicting applicant to establish ownership, unlawful occupation, and that it an eviction is just and equitable.

Findings: There was no effective dispute relating to the applicants’ ownership. The respondents’ version at best establishes that, as an incident of their employment and during its subsistence, they were allowed to occupy the premises, but this employment relationship came to an end, and with it any suggestion of a continued agreed entitlement to remain. They themselves decided that they would occupy the premises until such time as the money their employer promised them was paid to them. The respondents are unlawfully present on the property. The occupier respondents respond to all these allegations with a single bald denial that they are mining illegally on the property. This is not the kind of response that creates a genuine bona fide dispute of fact. The applicants set out a history of engagement with the occupiers. The impasse occurred when the occupiers insisted on being given some species of permanent title to the property. The applicants made real efforts to engage meaningfully with the occupiers and to integrate them into the community. They have set out a persuasive case, especially when viewed against the occupiers’ bald denial, that the only real purpose of the occupation is illegal mining, and the occupiers have neglected to offer anything at all in relation to their personal circumstances and the interactions alleged by the applicant. It would be just and equitable to order an eviction.

Order: The respondents and all persons holding occupation under or through the occupiers of the property are to vacate the property on or before 13 September 2024. The occupiers are interdicted and restrained from participating in, facilitating, or permitting any mining operations being conducted at the property, and at the workshop premises, on the property.

SNYCKERS AJ

Facts: The City owns the property in question. The property is a plot of open land adjacent to an informal settlement. The City earmarked the property for the development of 1,200 temporary accommodation units to assist those living in overcrowded and unhealthy conditions in the informal settlement and in other informal settlements nearby. The temporary housing project ultimately came to naught. The applicants say that the overcrowded and unsanitary conditions the City identified in the area have been allowed to fester. Apparently frustrated by the City’s failure, over several years, to make good on its promises to alleviate those conditions, the applicants took matters into their own hands. The applicants took occupation of the property and constructed shacks on it. The City, acting through its Metropolitan Police Department, and with the assistance of private security contractors, removed the applicants from the land and demolished their shacks. Undeterred, the applicants moved back on to the property and reconstructed their shacks. This incited a further demolition operation. Once the dust settled on that operation, the applicants re-occupied the property, only for the City to remove them once again. The applicants say that no fewer than seven demolition operations were carried out at the property.

Application: The applicants claim that these demolition operations were unlawful acts of spoliation. They placed an application for an order restoring them to the property and interdicting the City from carrying out further demolitions at the property. The area of dispute was whether the demolition operations carried out on the property constituted unlawful acts of spoliation. The applicants contended that they did. The City characterised its conduct as lawful counter-spoliation.

Discussion: The City does not dispute that it has demolished shacks on the property. It instead contends that the demolitions it carried out were lawful acts of counter-spoliation.The City says that it only demolished incomplete or vacant shacks, and that doing so was perfectly lawful because the incompleteness or vacancy of the shacks signified that the applicants were not “in possession” of the land on which they were constructed. The critical question is at what point “possession” of a thing is established. A person who has commenced construction of a dwelling on land clearly “holds” both the material out of which the dwelling is constructed and the land on which it is being constructed. They do so with the intent to secure for themselves the benefit of occupation of the land and the structure. They possess both the land and the structure. That being so, the remedy of counter-spoliation is not available to demolish completed or even half-built structures. The applicants probably were homeless, or at least in dire housing need, before they moved onto the property, and on each occasion on which they reconstructed their shacks. Whether the applicants could fairly have been described as homeless at any time material to the case is entirely irrelevant to the question of whether they were lawfully counter-spoliated.

Findings: The counter-spoliation remedy the City says it engaged in was only available before construction of the applicants’ shacks commenced. The City would have been entitled to secure the property against the applicants before they set foot on it. The City would also have been entitled to repel the applicants as trespassers if it had found them on the property with building tools and materials. It may also have been entitled to repel them when they were marking out stands or levelling earth for the construction of their dwellings. But what it could not do, at least not without a court order, was demolish the applicants’ structures once they were completed or in the process of construction. On the applicants’ initial occupation of the property, and on each occasion on which they rebuilt their shacks, the applicants established possession of the property before being unlawfully dispossessed of it. The “narrow window period” in which the City would perhaps have been entitled to counter-spoliate had ended by the time each demolition operation was carried out.

Order: The City is ordered to restore the applicants to peaceful and undisturbed possession of the property. The City is interdicted and restrained from evicting the applicants again without a court order.

WILSON J

* See Mabusela v City of Ekurhuleni Municipality [2024] ZAGPJHC 701.

** See also City of Cape Town v Human Rights Commission [2024] ZASCA 110.

Facts and issue: Application for the reconsideration and setting aside, alternatively variation, of an eviction order granted by the High Court. The eviction order was obtained by the respondent municipality against the applicants and other occupiers. The applicants contend that they were not served with the original eviction application. They argue that the order was erroneously granted in their absence and should be reconsidered.

Discussion: The applicants argue that the respondent improperly used section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (for urgent interim evictions) instead of section 6 (for evictions by organs of state) to obtain a final eviction order. That point is valid. As an organ of state, the municipality should have proceeded under section 6. The original application did not adequately address these factors. This procedural defect is significant and warrants the setting aside of the eviction order. The applicants contend that no municipal council resolution or delegation of authority authorising the eviction application was provided. The respondent has not directly addressed this point or provided evidence of proper authorisation. This is a serious omission on the part of the respondent. Under the Municipal Systems Act, a decision to institute legal proceedings should be authorised by the municipal council or properly delegated.

Findings: The failure to provide evidence of authorisation is a further defect in the original proceedings. The municipality must prove that proper authorisation existed for bringing the eviction application. Based on the documents provided, the municipality does not appear to have done so. The municipality has failed to prove that a valid council resolution or delegation of powers properly authorised the eviction application. This failure renders the entire eviction proceedings null and void. The cumulative effect of the procedural defects in obtaining the original eviction order leads to the conclusion that the order should be reconsidered and set aside.

Order: The eviction order is set aside.