Judge Gamble comes down hard on illegal occupiers

EIGHT people living illegally in a relative's property in Kensington for almost five years have been given three months to vacate the home and pay costs in the matter.

Western Cape High Court Judge Patrick Gamble said while the cost order may ultimately prove to be ineffectual, given their limited means as many of the illegal occupiers are unemployed, the order should be made nevertheless.

This, he added, was to dissuade others who might consider adopting a similar stratagem of obstinate resistance, putting the property owners to considerable expense.

On March 29, the high court found that the illegal occupiers were liable to be evicted from Nazeem and Nadia Nelson's Kensington property.

The matter was postponed to July 26, 2021 and the date for eviction held in abeyance as the Court directed the City to file a supplementary report regarding the availability of suitable alternative accommodation. The City was also directed to appoint a mediator to attempt to mediate the dispute, which was unsuccessful.

The Nelsons had purchased the premises in November 2016, taking transfer thereof in August 2017, and said they were assured by the occupants at the time that they were willing to move.

The couple submitted that with their children they had been living on the property of Nadia's ex-husband due to the refusal of the respondents to move, incurring expenses, along with the bond instalment rates, and taxes payable on the Kensington premises.

Three of the illegal occupiers were found to have registered on the City's housing needs database.

“The respondents were urged to register for Temporary Relocation

Areas (TRA) accommodation. To date none of the respondents applied for TRA accommodation,” court documents read.

The mediator's report also pointed out that the respondents had belatedly made an offer to rent the premises from the Nelson's for R4 500 per month and to pay the associated municipal charges.

This offer was rejected. In argument, the defence accepted that two of the respondents earned sufficiently to qualify for affordable housing and that the current lockdown level had made it possible for a court to consider eviction.

“(The Nelson's) have effectively been subsidising the respondents' accommodation needs ... and would have paid in excess of R90 000 per annum in that regard.

“This amounts to a staggering aggregate of between R350 000 and R400 000 which will be irrecoverable from the respondents,” Judge Gamble said.

“The applicants are family of the respondents and the applicants knew when they purchased the house to ‘keep it in the family', as it were, that the respondents had lived there for a considerable period of time. The applicants say they were assured by the occupants that they were willing to move. The respondents deny this.

“Whatever, the truth of the matter, the applicants ... have truly demonstrated the spirit of ubuntu. However, rather than accept their generosity ... the respondents have entrapped the owners in myriad legal proceedings in a futile effort to establish a right under Islamic law which they must have known could never succeed.

“The fact that they have taken no meaningful steps to seek alternative accommodation is entirely of their own making. The applicants ... are entitled to move into their home now.”