IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG) REPUBLIC OF SOUTH AFRICA

CASE NO: 8433/2020

DELETE WHICHEVER IS NOT APPLICABLE
(1)	REPORTABLE: NO

(2)	OF INTEREST TO OTHER JUDGES: NO

(3)	REVISED: NO

DATE: 18 OCTOBER 2022
SIGNATURE:

In the matter between: -

CITY OF EKURHULENI METROPOLITAN MUNICIPALITY	Applicant

and

CHIEF ALBERT LUTHULI ADHOC COMMITTEE 	4th Respondent

SYLVESTER MNGUNI 	5th Respondent

LUCKY MOKOENA 	6th Respondent 

SHIMA MALAKALAKA 	7th Respondent 

SIPHO MAHLANGU 	8th Respondent 

ZANDILE MAVUSO 	9th Respondent

MABATHO MOYELA 	10th Respondent 

LOYD MATSEI 	11th Respondent 

DOCTOR MOYELA 	12th Respondent 

MPHO PHOKANE	13th Respondent 

SPHIWE TSHABALALA	14th Respondent

SIYABONGA MPONDOMBI 	15th Respondent 

NJABULI NGOBO 	16th Respondent 

SOLOMON MOEKLEDIWA	17th Respondent 

MOSWATHUPA MARRIAM	18th Respondent 

VIVIEAN PHAHLANGE 	19th Respondent

BETHUEL MOLEKE	20th Respondent 

FREDDY STEIN	21st Respondent 

XOLANI ZWEZWE	22nd Respondent 

SIPHAMANDLA MKHONZA	23rd Respondent 

IGNACIA DIBAKOANE	24th Respondent 

MDODA NTIMBA	25th Respondent 

GEORGE NDLOVU 	26th Respondent 

JAMES MZINYANE 	27th Respondent 

BUSISIWE KHANYILE 	28th Respondent

THULISILE MOEKETSI	29th Respondent 

RONNIE MOERE	30th Respondent 

NOBOMI NDABA 	31st Respondent 

LINDA MYATHAZA 	32nd Respondent 

DORAH PHAHLANG	33rd Respondent 

LINDIWE MASANGO 	34th Respondent 

LUCKY NKOSI	35th Respondent

NOMSA MAPHAPHU	36th Respondent 

MORUTI MATLALA	37th Respondent

SIBONGILE MOKOENA	 38th Respondent 

MDEDELENI SITHOLE	39th Respondent 

LILLIAN SIKHOSANA	40th Respondent 

MTHOKOZISI MAVUSO 	41st Respondent 

GILLY ZODWA MAVIS 	42nd Respondent 

LEBOHANG MOKHOLO	43rd Respondent 

NONHLANHLA MAHLANGU	44th Respondent 

GODFRY MAKAFANE	45th Respondent 

RAMAHALA MARAKE 	46th Respondent 

JOKIE MOLAMODI	47th Respondent 

FAITH HLABANGANE 	48th Respondent 

HEMITTON MAHLANGU 	49th Respondent

ELLI PHALA 	50th Respondent 

STHEMBISO KHUMALO 	51st Respondent 

THABO MOHALE	52nd Respondent 

BUYENZENI SHABALALA	53rd Respondent 

MZWANDILE MVALASE	54th Respondent 

SMANGELE LUCRACIA NKOSI 	55th Respondent 

JAMES MHLANGU 	56th Respondent 

FUIGI MASHAO	57th Respondent 

TSHEPISO MASIKE 	58th Respondent 

NZUZO MODAU 	59th Respondent 

LIZZY MOFOKENG 	60th Respondent 

ESTHER MOKOENA	62nd Respondent 

FIKILE MAHLANGU 	63rd Respondent 

LERATO TOLAMO 	64th Respondent 

FLORINA MAMASHILA	65th Respondent 

LINDIWE MASANGO 	66th Respondent 

DEBORAH MASHIKA	67th Respondent 

NTOMBI MALOPE	68th Respondent

WILLIAM SIMELANE	69th Respondent 

KGOPOTSO MTAKANE 	70th Respondent 

EDWIN MBALULA	71st Respondent 

BONGANE MSIZA 	72nd Respondent 

SIBUSISO LUGONGOLO	73rd Respondent 

VERONICA BUTHELEZI 	74th Respondent 

VUSI MAHLANGU 	75th Respondent 

TEBOGO FUNANI	76th Respondent 

XOLANI MVUKELA 	77th Respondent 

SIBUSISO NKOSI 	78th Respondent 

RANGODI TSOTETSI 	79th Respondent 

NOKUTHULA NKOSI 	80th Respondent 

MARTHA MASHABA	81st Respondent 

MXOLISI MTHABELA 	82nd Respondent 

FRANS SEROKA 	83rd Respondent 

SAMUEL SEFATSA	84th Respondent 

LAWRENCE MANGQALAZA 	85th Respondent 

THAMY MBATHA	86th Respondent 

SHADRACK KHOZA 	87th Respondent 

MUMSY ZULU 	88th Respondent 

ANDREW ADAMS 	89th Respondent 

BUSISIWE MALAKA	90th Respondent 

BUYISIWE ZUNGU 	91st Respondent 

QINISO MPONDOMBI 	92nd Respondent 

MASHAMOSE MOKOENA	93rd Respondent 

SIYABONGA MDLALOSE	94th Respondent 

KELVIN MASONDO	95th Respondent 

ZOYISILE MRA	96th Respondent 

LINDELWA TUNZI	97th Respondent 

QUNOOI MABOPE 	 98th Respondent 

THOKOZANI SEGONE	99th Respondent 

ELIZABETH MASOMBUKA 	100th Respondent 

EUGENE DLUDLA 	101st Respondent 

DONALD MOHLALA	102nd Respondent 

INNOCENT BUTHELEZI	103rd Respondent 

SINDISIWE NGCOBO	104th Respondent 

LUNGA MTSHULA	105th Respondent 

THOLAKELE MPONDOMBI 	106th Respondent 

OUPA MOERE	107th Respondent 

SIBUSISO NGUBANE 	108th Respondent 

LAWRENCE NCOWA 	109th Respondent 

NELISIWE NKABINDE	110th Respondent 

THEMBA MALOBOLA	111th Respondent 

SIMPHIWE SIMELANE	112th Respondent 

DESIRE KHUMALO	113th Respondent 

DAVID SITHONGA	114th Respondent 

ELSIE BINASE 	115th Respondent 

AGRINETH MAGUGA	116th Respondent 

JOYCE MHLANGA	117th Respondent 

ROSE MNQAYI	118th Respondent 

NONHLANHLA NDLOVU	119th Respondent 

BELINA MTSWENI	120th Respondent 

DOUGLAS MATHE	121st Respondent 

NOMPILISO MNOYI	122nd Respondent 

LUNGISILE TENZA	123rd Respondent 

CHRISTINA PHIRI	124th Respondent 

ZIZAMELE LENGISI	125th Respondent

MTHOKOZISI BUTHELEZI	126th Respondent

MANDISA GCWABE	127th Respondent 

AARON MPITSO	128th Respondent 

LUCKY SIKHAKHANE	129th Respondent 

SEBENZILE ZIQUBU	130th Respondent 

MJABULISI SITHOLE	131st Respondent 

GUGU NXUMALO	132nd Respondent

NTOBENKOSI MAZWAYI	133rd Respondent 

NOMSHADO MALATE	134th Respondent 

CELANI SILUBANI	135th Respondent 

SAZISO RADEBE	136th Respondent 

CONSTANCE MHLONGO	137th Respondent 

JEANETTE SESOKO	138th Respondent 

BONGINKOSI MBATHA	139th Respondent 

SABELO BOPHELA	140th Respondent 

SEFEELE MADUNA	141st Respondent 

LINDIWE SHABALALA	142nd Respondent 

KHANYISILE GIJANA	143rd Respondent

THEMBELIHLE SIBIYA	144th Respondent 

SINDISIWE MBATHA	145th Respondent 

ZAKITHI MAPHANGA	146th Respondent 

MATLAKALA BANDA	147th Respondent 

THATOGATSI MOROTOLO	148th Respondent 

SHIRLEY MAGADLA	149th Respondent 

REASONS

SENYATSI J:

INTRODUCTION

[1]	On 11 October 2021 I issued an order with the following terms:

1.1.	An order for eviction of the Fourth to One Hundred and Forty Ninth (4th to 149th) Respondents and all those occupying the properties through and under them at the properties described as Modderfontein Farm 76 IR 28 (“the Chief Albert Luthuli Extension 6 Housing Project”) is granted; 
1.2.	The Fourth to One Hundred and Forty Ninth (4th to 149th) Respondents and all those claiming occupation through and under them are ordered to vacate the property on or before 30 October 2021;
1.3.	In the event where the Fourth to One Hundred and Forty Nine Respondents and all those claiming occupation through and under them fail to comply with the order set out above, then and in that event, the City of Ekurhuleni Police Services and or the South African Police Services and or assisted by the Sheriff of the above Honourable Court or his lawful deputy and a Locksmith are ordered and directed to carry out the eviction order on or after 10 November 2021.
1.4.	Should the Fourth to One Hundred and Forty Nine Respondents (4th to 149th) and all those that occupy the property by virtue of, through or under them attempt to regain access or possession to the property after the eviction order has been executed by the Sheriff and/or his/her authorized deputy; the Applicant does not need to approach the Honourable Court for relief and the City of Ekurhuleni Police Services and or the South African Police Services and or assisted by the Sheriff of the above Honourable Court or his lawful deputy and a Locksmith Sheriff and/or his/her authorized deputy are authorised and directed to take all legal steps to enforce this Court order once again, including enlisting the services of the South African Police Services and a Locksmith;
1.5.	No order as to costs

[2]	As a consequence of the order reasons for the order we requested and as set out below.

BACKGROUND

[3]	The applicant, Ekurhuleni Local Municipality, established a low cost housing project in order to alleviate the need for housing and benefit those who applied and qualified for the Reconstruction and Development Program ("RDP") housing subsidy within the City of Ekurhuleni. The RDP housing project was funded Gauteng Government Housing Grant.

[4]	Chief Albert Luthuli Extension 6 is situated in Daveyton and is also known as	Modderfontein Farm 76 IR 28 and is owned by the City of Ekurhuleni (“	Municipality”) under title deed number TI37332/2002.

[5]	The 4th to 149th respondents (“respondents”) in this application were identified following the order of Fisher J granted on 12 March 2020 in terms of which the Sheriff of this Court was authorized to enter each premise in Chief Albert Luthuli Extension 6 in order to obtain the particulars of each occupier.

[6]	It is no doubt that the RDP housing project was intended to benefit the	residents within the Municipality’s jurisdiction, more particularly those who had 	applied and have been approved for the housing subsidy and are residing within its area of jurisdiction.

[7]	It appears from the evidence that the intended beneficiaries of the housing subsidy scheme were assessed in accordance with the processes of the Municipality.

[8]	By December 2019, the Municipality managed to construct hundred and fifty seven (157) RDP houses of which fifty six (56) were completed and ready for occupation, the remainder were partially completed and not ready for occupation.

[9]	It furthermore appears that around 13 December 2019, when the Municipality and the Gauteng Provincial Government intended to allocate the 56 houses to the intended and rightful beneficiaries as approved, they were met with violence allegedly by members of the first respondent who in some instances rioted because according to them, the MMC who had promised to form part of the meeting was not present in order to attend to their grievances.

[10]	The Municipality argued that the intended beneficiaries as identified and approved for allocation of the 56 houses had been assessed and were the rightful beneficiaries. The Municipality contends that it had properly screened and approved the rightful beneficiaries for the housing and amongst them were senior citizens.

[11]	During January 2020 the Municipality became aware of the unlawful occupation of the immovable properties located at Chief Albert Luthuli Extension 6 by members of the first respondent who had unlawfully invaded the unoccupied complete and incomplete houses.

[12]	The Municipality contends that the members of the first respondent have not followed due process and have not complied with the application, screening and approval requirements, and therefore took occupation of the houses without the consent of the applicant.

[13]	It was also the Municipality’s version that attempts were made to engage with the unlawful occupiers and on every occasion, a meeting had been arranged in order to reach an amicable solution, however, the members of the first respondent were uncooperative and would often resort to aggressive and violent conduct and threatening the officials of the Municipality with violence. 

[14]	Since taking occupation of the houses, the members of the first respondent have refused to vacate the houses. As a consequence, the Municipality contends that it is unable to allocate the completed 56 houses to the rightful and approved beneficiaries. The Municipality is also unable to continue construction on the incomplete housing structures.

[15]	The fourth to hundred and forty ninth respondents (4th to 149th respondents) opposed the application. In their answer to the founding affidavit, sworn to by Mr. Sylvester Mnguni and confirmed by all the respondents, Mr. Mnguni confirms that the fourth respondent, is the Chief Albert Luthuli Ad - Hoc Committee, an association of persons without legal personality and that it was duly elected by the occupiers of the Chief Albert Luthuli extension 6 in a mass meeting. He goes on to provide details of each residential address end of each occupier.

[16]	The 4th to 149th respondents contend that the Municipality is acting in bad faith and avers that it has fabricated facts to mislead the court, in that when the applicant sought to evict the 4th to 149th respondents it sought to do so without following a due process, thus they were stopped by a court interdict.

[17]	The occupiers do not deny that they took occupation of the houses as alleged by the applicant. The 4th to 149th respondent raised the following defences in opposing the application; namely: 

(a)	when they were	forcefully removed from the properties without a court order and were restored possession of the properties following a court interdict;
(b)	the respondents further argue that they have a lien over all the houses because of the alleged damage to their personal property when they were evicted without the court order.

[18]	The respondents do not deny that the meeting that took place on 18 December 2019 with the officials of the Municipality did not end well, the members allege that the meeting took place in the absence of the MMC, Mr. Lesiba Mpya 

[19]	They also contend that the illegal eviction allegedly perpetrated by the Municipality during January 2020 together with the alleged unlawful confiscation of their immovable properties and groceries entitled them to return to the houses by way of lien.

[20]	The 4th to 149th respondents content that an application for an interdict was brought by sixty (60) applicants under case number 00004/2020.

[21]	The 4th to 149th respondents also contend that the fact that the Municipality became aware of the occupation as early as December 2019 was a clear indication of tacit consent to their occupation of the houses.

[22]	The 4th to 149th respondents deny that they are in unlawful occupation of the houses. They concede that the Chief Albert Luthuli housing subsidy was indeed approved by the applicant through the funding from Gauteng Provincial Government.

[23]	The 4th to 149th respondents contend that the housing subsidy project was approved in order to provide housing to backyard dwellers in Daveyton. They contend that thescheme was initially approved as a sectional title scheme but was later changed tostand alone housing subsidy due to what the 4th to 149th respondent state was due to alleged corruption and financial embezzlement by the Municipality in cohorts with the contractors.

[24]	The 4th to 149th respondents also contend that the waiting list and allocation of the RDP houses have allegedly been manipulated by the applicant in order to facilitate corruption in terms of the alleged sale of houses to those with money instead of the qualifying poor members of the community. They contend that the applicant has made it a luxury and privilege to benefit from the RDP programme.

[25]	In support of their contention, the respondents further argued that those community members already approved for the RDP houses had allegedly paid the Municipality for those houses but notably they did not produce any evidence of the alleged payment. They further stated that majority of the completed houses remained unoccupied whilst the officials of the Municipality allegedly waited for further potential buyers. It is their version that the completed houses started to be in a state of disrepair and became a breeding ground for vagrants and criminals. 

[26]	The respondents also challenged the Municipality's version that the completed houses were ready for occupation, by calling for the Municipality to provide a certificate of occupation as evidence.

[27]	The Municipality in reply contends that when the unlawful and illegal occupation of the RDP houses occurred, the Chief Luthuli Extension 6 Project was under phase 4 of the implementation stage and the Municipality continues to build the RDP houses in	the area.

[28]	The Municipality further contends that during the period June to October 2020 whilst it managed to construct new RDP houses and whilst waiting for all due processes to be concluded, the respondents intentionally and unlawfully and without consent of the applicant, took occupation of the newly built structures. The Municipality had no other option but to bring another court application under case number 26620/2020 which was also opposed by the respondents. The court in that action ruled in its favor and held that the Municipality, was entitled to evict the new unlawful occupiers. Accordingly, the occupiers were successfully evicted.

[29]	On the defence of lien as raised by the respondents, the Municipality submitted that the defence is baseless as the Municipality owes nothing to the respondents. The Municipality contends that even if a debt was proven to be owed by the Municipality, the 4th to 149th respondents are not entitled to take the law into their own hands by unlawfully occupying the RDP houses without the consent of the Municipality. Any alleged debt would need to be proved in court.

[30]	On the second defence that the 4th to 149th respondents are in fact the intended beneficiaries, this is also denied by the Municipality based on evidence provided that the subsidy application was refused to one of the respondents in this matter, namely Ms. Hlukeng Anna Mokoena.

[31]	The Municipality also denies that there was evidence of corruption as well as the sale of RDP houses as alleged by the respondents. The Municipality furthermore denies that there was a forced removal during January 2020, as averred by the respondents that in any event steps had been taken to serve the eviction application in terms of section 4(2) of the PIE Act.

THE ISSUES FOR DETERMINATION 

[30]	The issues for determination 

(a) 	Whether the applicant has made out a case for its application;
(b) 	Whether the 4th to 149th respondents hold lien over the occupied houses;
(c)	Whether the applicant had given tacit consent for the occupation of the RDP houses.

LEGAL FRAMEWORK

[31]	As a constitutional democracy, one of the core values of our society is the supremacy	of the of the Constitution and the rule of law.

[32]	It therefore follows that no one is entitled to take the law into his or her own hands. In 	Chief Lesapo v North West Agricultural Bank and Another, in restating the supremacy of the Constitution and the rule of law value, the Constitutional Court held as follows: 

“Self-help, in this sense, is inimical to a society in which the rule of law prevails, as envisioned by section 1 1(c) of our Constitution … Taking the law into one’s own hands is thus inconsistent with the fundamental principles of our law.”

[33]	The eviction of illegal occupiers of land is regulated by the Prevention of Illegal Eviction Act, No 19 of 1998 (“the PIE Act”). Section 6 (1) of the PIE Act provides and gives powers to local government to institute proceedings of eviction within its area of jurisdiction where the land or building is not compliant with the by-laws.

[34]	Our courts have also confirmed that the ambit of PIE Act in respect of whether ex-tenants and ex-mortgagers fall within the definition of “unlawful occupier” for the purposes of this PIE Act and whether this class of occupiers warrants its substantive and procedural protection in the context of protection in the context of eviction proceedings has been held to afford protection to those class of occupiers.

[35]	The court, in determining whether or not to grant an order or in determining the date on which the property has to be vacated (Sec 4 (8)), has to exercise a discretion based on what is just and equitable.

[36]	The discretion is one in the wide and not in the narrow sense. The court, consequently, does not have a free hand to do whatever it wishes to do and a court of appeal for instance is not hamstrung by the traditional grounds of whether the court of first instance exercised its discretion capriciously or upon a wrong principle or that it did not bring its unbiased judgment to bear on the question, or that it acted without substantial reasons.

[37]	One of the material considerations in the eviction proceedings is that of the evidential onus. Provided the procedural requirements have been met, the owner is entitled to approach the court on the basis of ownership and the respondents' unlawful occupation. Unless the occupier opposes and discloses circumstances relevant to the eviction order, the owner, in principle, will be entitled to the order for eviction. Relevant circumstances are always facts within the exclusive knowledge of the occupier and it cannot be expected of an owner to negative in advance facts not known to him and not in issue between the parties.

[38]	It should be remembered that the PIE Act has its roots in the Bill of Rights contained in our Constitution, especially section 25(1) which provides that no one may be deprived of the property except in terms of law of general application and no law may permit arbitrary deprivation of property. The selection is aiming at curtailing the State’s powers to pass laws that can arbitrarily deprive citizens of their property rights except in terms of law of general application.

[39]	It is impermissible in our law to take the law into one’s own hands. In President of the Republic of South Africa and Another v Mooderklip Boerdery (Pty) Ltd Agri SA and Others Amicus Curiae , the Constitution Court had the following to say:

“[45] The execution of an eviction order does not ordinarily raise problems which cannot be accommodated through the existing mechanisms. They allow for the execution of court orders so that the citizens have no jurisdiction to take law into their own hands. Consequently, order in society is preserved and inappropriate societal disruptions are prevented.” 

[40]	It is not enough in the eviction proceedings to raise a defence that amounts to bare denial. In Johannesburg Housing Corporation (Pty) Ltd V Unlawful Occupiers of the Newton Urban Village the court held as follows:

“[122] All Counsel who have struggled to resist an application for summary judgment, will be familiar with the case of Breitenbach v Fiat in which Colman J made it plain that it would be difficult indeed to show good cause why such judgments should not be granted where the defence had been set out ‘baldly, vaguely or laconically’. There is no reason why this principle should not apply to occupiers seeking to resist the application for their eviction. Of course, every move from one dwelling to another carrier with its own traumas and disadvantages. That is not enough to resist an eviction order where the occupier has no right, recognized at common law, to remain in occupation of a particular property. The ease for remaining in occupation of the property has been set out by the occupiers laconically.”

[41]	It is apparent from the quote above that only the defence recognized in common law will come to the aid of an occupier of a property in eviction proceedings.

[42]	I now consider whether a defence of lien is recognized in common law under the circumstances similar to the instant case. Lien can be classified into two types, namely contractual lien (that is a debtor and creditor) and enrichment lien where a lien hold has a contract with a non-owner and not with the owner (debtor) himself.

[43]	The expenses for which a lien holder can vest his lien are determined by the origins of the legal claim for which the lien serves as security. In the case of an enrichment lien, the lien can vest only for useful and necessary expenses.

[44]	Our law therefore recognizes those two types of lien and the legal principles pertaining thereto are trite. For instance, in United Building Society v Smookler’s Trustees and Golombick’s Trustees the court in obiter held thata contractual lien applies against the other contracting party for all expenses as determined in the agreement,

[45]	It is not necessary in an enforcement of a lien to be in possession of the property. The law permits, for instance in maritime lien, for the claimant of the lien to bring an action in rem … for the arrest of a ship vessel.

[46]	The law also recognizes that a bona fide possessor claiming a lien can if the facts of the case allow, elect to rely on either of the two species of lien, that is, contractual lien and enrichment lien.

[47]	I now deal with the principles of tacit consent. In order to deal with the principles, it is important to define the meaning of tacit consent and requirements and lastly evaluate whether on the evidence before this court, the alleged consent can be accepted as tacit consent given by the Municipality.

[48] 	The PIE Act defines the unlawful occupier as follows: 

‘‘unlawful occupier’’ means a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996( Act 31 of 1996)” No definition is given to the word “ tacit consent”. 

Our courts have held that consent must be given its ordinary meaning which is express. 

In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others, the court held that :

“[50] …The PIE Act makes it plain that occupiers of property will not be regarded as unlawful occupiers unless the owners express or tacit consent is absent or if they occupy the property in terms of any other right. The question that must be answered in this context concerning the nature of the consent that is required is whether the ordinary meaning of consent to occupy is appropriate. That is consent to occupy that entails the creation of a right to occupy on the part of the occupier. On the assumption that there is a type of consent to occupation that does not entail the grant to the occupier of a right to occupy, we must determine whether the PIE Act speaks of this kind of nebulous consent or consent, as it were, in the air. I think not. The occupation is not unlawful if there is consent or some other right to occupy. It follows ineluctably that the consent referred to in the statute is consent to occupy or permission that creates a defensible right of occupation.”

What this judgment shows is that there is no defensible right called tacit consent for the purposes of the PIE ACT. The consent is a voluntary agreement involving two contracting parties.

[49]	In Klaase and Another v van der Merwe N.O. and Others the court had to define the meaning of the occupier as it relates to the tacit consent in the context ofthe Extension of Security of Tenure Act 62 of 1997( “ESTA”) and heldas follows: 

“The meaning of ‘consent’ in the definition of occupier [108] The relevant part of the definition of “occupier” in section 1 of ESTA is— ‘a person residing on land which belongs to another person and who has or on 4 February 1997 or thereafter had consent or another right in law to do so but excluding . . .’

[109] The ‘consent’ that is an essential element of the definition of an occupier may be express or tacit.This is reflected in the definition of the word consent in section 1.The definition of “occupier” refers to ‘consent to do so’.This refers to consent to reside on land which belongs to another.While the definition of ‘occupier’ does not expressly state who must give the consent contemplated in that definition, it expressly states that the contemplated ‘consent’ is that of the owner or person in charge of the land.”

It is clear from this case that the owner’s consent is an essential element for the defence of the tacit consent to be successfully mounted against the eviction proceedings and absent that consent then the occupation of the property becomes illegal.

[50]	Having considered the principles applicable to evictions, I am of the view that the respondents have indeed taken law into their own hands. Consequently, it follows that the applicant has correctly complied with the procedural requirements as provided for in the PIE Act and entitled to have the respondents evicted as prayed for.

[51]	The respondents have in my considered view, failed to provide sufficient grounds why the eviction order should not be granted. The alleged tacit consent of the Municipality has not been supported by any evidence. This is understandable because no record has been produced showing that the officials of the Municipality have in fact consented to the occupation. The contrary is the position where the Municipality has launched a legal challenge to have the respondents evicted from its houses. I am particularly concerned about the evidence adduced by the Municipality on how the 52 houses that were completed and allocated to the lawfully approved beneficiaries were simply illegal taken over by the respondents. The takeover included also the partly completed houses. If our courts do not intervene and come to the rescue of local authorities in circumstances such as the present, our Constitution will be subverted as the behavior such as in the present case will lead to chaos in our society.

[52] 	The defence of lien as raised by the respondents is not sustainable because there has not been evidence of either contractual relationship between the respondents and the applicant or any necessary expenses incurred on behalf of the applicant over the properties illegally occupied. On the contrary, the respondents seem to suggest that because of their alleged removal from the properties in January 2021 without due process, they claim to have suffered some losses when some of their personal belongings were allegedly damaged during the removal. Thus the claim of lien, under those circumstances, is not permissible and must be rejected.

[53]	The respondents averred that the officials of the applicants were corrupt. The allegation of corruption is irrelevant in the eviction proceedings. In fact, the behavior of the respondent can, if not nipped in the bud, easily lead to our society becoming disorderly where lawlessness reigns supreme. This type of behavior should be discouraged by our courts because local authorities are established in terms of our Constitution to provide services to communities within their jurisdiction.

[54] 	The defence of lien as raised by the respondents is not sustainable because there has not been evidence of either contractual relationship between the respondents and the applicant or any necessary expenses incurred on behalf of the applicant over the properties illegally occupied. On the contrary, the respondents seem to suggest that because of their alleged removal from the properties in January 2021 without due process, they claim to have suffered some losses when some of their personal belongings were allegedly damaged during the removal. Thus the claim of lien, under those circumstances, is not permissible and must be rejected.

[55]	It therefore follows that the order made as stated has been so made for the reasons herein stated.

ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

DATE APPLICATION HEARD: 	05 October 2021

REASONS DELIVERED: 	18 October 2022

APPEARANCES

Counsel for the Municipality: 	Adv. Emmanuel Sithole
Instructed by: 	Lebea Incorporated Attorneys
	
For the (4th to 149th): 	Adv. Lerato Mashilane 
Instructed by: 	Tshepo K Sekobo Attorneys