THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: A107/2011
In the matter between:
THE ARK CITY OF REFUGE	Appellant
and
MIKE BAILING	First Respondent
THERESA BAILING	Second Respondent
MAGDELINE SCHIPPERS	Third Respondent
JOHN MENTOOR	Fourth Respondent
MARTHA MENTOOR	Fifth Respondent

JUDGMENT DELIVERED: FRIDAY 10 AUGUST 2012
SALDANHA, J

[5.] Prior to hearing the. appeal on the 27 July 2011 we indicated to the legal representative of the sixth respondent that we wished to receive both written and oral submissions on behalf of the sixth respondent in respect of the appeal,
[6.] Having heard argument on the 12 August 2011 and pending our judgment on the merits of the appeal, we issued an Interim Order on 22 September 2011 to the effect that:

[10.] The second respondent for her part claimed that at the age of 26 she left her mother and stepfather’s house in Ravensmead as she had not got along with her stepfather. She had two children, a seven month old baby and a four year old boy. She had been unemployed and was unable to afford rental accommodation. A social worker referred her to the appellant and in May 1994 she moved into the women’s quarters at the appellant. She was thereafter appointed as a supervisor at the appellant. She met the first respondent at the- appellant’s premises and they had been living together ever since.

 

[15.] All of the respondents claimed that they had been fully rehabilitated and that none of them had any disabilities or suffered .ill health except for the fourth respondent.

choice as it had repeatedly requested the respondents to vacate the premises but was met with outright refusals and that a situation had developed where the respondents had become openly contemptuous of the rules of the appellant and abusive to its employees. The appellant claimed -that there was no longer any meaningful relationship or communication with any of them.

“

[25.] The decision of the Constitutional Court in the Blue Moonlight matter was thereafter handed down and we were of the view that the sixth respondent should be given the opportunity of reconsidering its position in the light of this decision. The sixth respondent did so and in the second report it sought to distinguish its position from that of the Johannesburg City Council in the Blue Moonlight matter. It was however able to report to us that it had in the meantime found limited accommodation which had become available to accommodate each of the respondents, in as much as the two reports of the sixth respondent had not been fully debated before this court and in particular whether the housing policies and programs of the sixth respondent complied with its constitutional obligations we make no finding on its compliance or otherwise. We do however wish to record our appreciation to the legal representative and the officials of the sixth respondent who with appropriate urgency and seriousness engaged with the concerns raised by this court in our Interim Orders.

[27.] In the circumstances I am of the view that having found that the respondents were and continue to be in unlawful occupation of the premises of the appellant, it is both just and equitable that they be evicted. Moreover, the appellant has accommodated each of the families for between fifteen and seventeen years (if not longer) and there remains no reason at all for their continued stay at the appellant’s premises which is required for other persons in far more desperate circumstances than that of the respondents.

[28.] However, in the light of the nature of the matter and the overall financial circumstances of the respondents I am of the view that it is appropriate that they not be saddled with an adverse order of costs.

In the result the following order is made:
(1.) The appeal is upheld.

(2.2) Should the respondents not vacate the premises on or before such date, the sheriff is authorized to remove the respondents, and anyone occupying through them, together with their possessions from the premises forthwith.

(3.) No order is made as to costs.

SALDANHA, J

I agree.

YEKISO, J

I agree and it is so ordered.

DESAI, J