City of Cape Town v Hearne and Others

The City of Cape Town initiated eviction proceedings against several respondents who unlawfully occupied nine housing units in the Pentech-Belhar Housing Project, a low-income housing initiative. The units were part of a government housing subsidy program commenced in 2007. On 16 May 2021, a crowd gathered demanding that nine families be allowed to occupy the units. Despite being removed by law enforcement, the respondents moved back into the units on the same day. The respondents were not the approved beneficiaries of the units, some of whom had been on the housing waiting list since 1988. The respondents admitted to unlawful occupation but claimed they had consent from a City official, Mr Gumede. The City denied granting consent and argued that the respondents 'jumped the queue', undermining the housing allocation policy.

• Whether the respondents are unlawful occupiers as defined in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act)
• Whether a public official (Mr Gumede) had the authority to grant consent for occupation, and whether such consent constituted a valid defence
• Whether it is just and equitable to grant an eviction order considering the circumstances of the unlawful occupiers
• Whether the City is obliged to provide alternative emergency accommodation to the respondents upon eviction

1. The second to eighth respondents, Leonie Toll (tenth respondent), and all those holding title under them were ordered to vacate the specified units at the Pentech-Belhar Housing Project on or before 6 January 2025. 2. The Sheriff was authorised to evict them on or after 7 January 2025 if they fail to vacate. 3. The eviction process must be carried out in a dignified and respectful manner. 4. The City was directed to make suitable emergency housing available at Leonsdale or provide emergency housing kits to respondents who request access within 30 days. 5. Respondents requiring larger emergency units were required to apply to the City. 6. No order as to costs.

1. A public official cannot lawfully act beyond the scope of their powers as laid down in law, and any consent granted ultra vires is invalid. 2. In eviction proceedings under the PIE Act, a court must conduct a 'just and equitable' analysis considering all relevant circumstances, including the circumstances of occupation, the period of occupation, and the availability of suitable alternative accommodation. 3. Allowing unlawful occupiers to remain in housing units intended for beneficiaries who have lawfully applied through a housing allocation policy would render the policy unworkable and undermine the rule of law.

The court remarked that to hold otherwise than granting the eviction 'would be tantamount to giving the respondents and others who are like-minded, the sanction to jump the housing allocation queue above beneficiaries who went through a proper process and are longer on the waiting list for low cost housing. It would furthermore be a sign of approval of unlawful conduct and unlawful occupation, which is not what the Act allows.'

This case reaffirms the principle that public officials cannot grant consent beyond their statutory powers, even in the context of housing. It underscores the balance courts must strike between preventing homelessness and upholding the integrity of lawful housing allocation policies. The judgment is a key application of the 'just and equitable' eviction test under the PIE Act where organs of state seek to evict unlawful occupiers from state-subsidised housing, and confirms that right-holders on housing waiting lists are prejudiced by queue-jumping.