The recent case of Smith v Khumalo and All the Unlawful Occupiers of the Property and Another depicts the persistent tension between the rights of an owner of privately owned land and unlawful occupiers who have no alternative accommodation. This is not an infrequent tension in a country where homelessness is a problem that organs of state are battling to address. The City of Johannesburg in this matter acknowledged that it is having difficulty fulfilling its duty to provide alterative accommodation to unlawful occupiers.

The relevant facts are simply that a large number of unlawful occupiers occupied property belonging to an owner of residential property. The owner, who himself wished to occupy the property, sought an eviction order from the Court. There was no dispute that the occupation was unlawful. The City of Johannesburg filed a report indicating that it required 24 months to find alternative accommodation for the unlawful occupiers. There was no indication that even after 24 months, it could make facilities available to the occupiers. Of concern was the fact that the occupiers included children and elderly persons.

The Court expressed sympathy for the unlawful occupiers but confirmed the legal position that it is not a private owner’s obligation to provide alternative accommodation to unlawful occupiers. A summary of the Court’s reasoning can be found in paragraph 23 of the judgement which states as follows:

“The prospect of finding accommodation in Johannesburg must be daunting for indigent people and I do not in any way seek to underestimate the difficulties involved in trying to do so. However, justice demands that an unlawful occupier who is given notice of eviction is obliged to act and take steps to find alternative accommodation. He cannot merely remain in the property and wilfully defeat the constitutionally protected rights of the property owner.”

The Court granted an eviction order and one of the main factors considered in doing so is that the unlawful occupiers knew their occupation was unlawful and evidently took no steps to find alternate accommodation. However, the fact that the City of Johannesburg could not provide immediate alternative accommodation contributed to the vacation date of the eviction order. The occupiers are only required to vacate the property on or before 1 September 2024 (over 4 months after the judgement).

The inability of municipal governments to provide alternative accommodation to homeless persons therefore may affect the rights of private owners of land. While it does not prevent an eviction, it can delay the date of an eviction. Each matter will be determined on its own facts but this judgement brings to the forefront the unavoidable public-private nature of the relationship between government and owners of residential property.

The judgement can be found here: https://www.saflii.org/za/cases/ZAGPJHC/2024/492.html.

This article does not constitute legal advice or replace the need to seek advice. It also does not contain all the information relevant to the subject matter. Each situation is different and must be evaluated on its own merits. For advice on property related disputes, our contact details are below.