Eviction of unlawful occupiers
19/10/2010

Owners of rental properties will be pleased to take note of the hard-hitting comments made by a judge of the South Gauteng High Court in a recent matter involving an application for the eviction of illegal tenants from a building in Johannesburg.

In his judgment, Willis J mentioned obiter that there is effectively only one legal remedy for the unlawful occupation of immovable property, namely an eviction order.

In this matter cited as Emfuleni Local Municipality versus Builders Advancement Services CC and Others, the judge, however, carefully balanced the rights of the respective parties by stating that in the making of any eviction order, the court must exercise compassion, grace and an awareness of the right of every human being to be treated with dignity.

The judge held that clarity was needed as well as much wisdom when dealing with applications for eviction. Practical but nevertheless fair and just answers were needed to some highly vexed issues in connection with such applications and the judge called on the Deputy Judge President of the South Gauteng High Court to appoint a full court consisting of 3 judges to hear the present matter.

In concluding his bewilderment at the reasoning by both the Constitutional Court and the Supreme Court of Appeal in leaning toward the rights of unlawful occupants, the judge made the following remark: “if the courts above the High Court consider that “all property is theft”, the High Court and the people of South Africa need to know this. On the other hand, if these higher courts consider that property rights are deserving of protection but, nevertheless, the common law is not to be applied in doing so, we also need to know how the High Court is to go about doing its duty”.

We will carefully monitor the outcome of this application and notify clients once judgment is handed down.

Leander Opperman
Partner
leander-o@adamsadams.co.za