The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Mark Lewis Steele

The respondent, Mr Mark Steele, owned property at 11 Hendon Road, Yeoville, Johannesburg consisting of four large flats and three separate rooms which had been divided into multiple units occupied by several people. Approximately 70 people, including the appellants, resided on the property, many for a considerable number of years, paying monthly rentals of R1,239 per flat and R266 per room under oral lease agreements. The respondent decided to renovate the run-down, dilapidated and overcrowded property and terminated all leases. On 30 October 2007, he gave the appellants three months' notice to vacate by 31 January 2008. When they failed to vacate, he instituted eviction proceedings in April 2008. The appellants, who were poor and primarily hawkers, sought assistance from the Inner City Resources Centre (ICRC) but failed to appear in court on 18 June 2008 because they genuinely but mistakenly believed the ICRC would represent them. A default eviction order was granted. The appellants subsequently applied for rescission of the order.

• Whether good cause was shown for rescission of the default judgment
• Whether the appellants had a reasonable explanation for their default in not appearing in court
• Whether the appellants had a bona fide defence with some prospect of success
• Whether the high court complied with its obligations under sections 4(6) and 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
• Whether the high court had regard to all relevant circumstances before granting the eviction order, including the rights and needs of the elderly, children, disabled persons and households headed by women
• Whether the high court discharged its constitutional obligations under section 26(1) and (3) of the Constitution
• Whether the municipality should have been joined as a necessary party to the eviction proceedings

The rescission appeal (case no 499/09) was upheld with costs including the costs of two counsel. The order of the high court was replaced with an order that: (a) the default judgment granted on 18 June 2008 was rescinded and the appellants were granted leave to oppose the eviction application; (b) the appellants were directed to file their opposing affidavits within the time period prescribed by the Uniform Rules and the dies would be calculated from the date of this order; (c) the costs of the rescission application were reserved for the trial court. No order as to costs was made in the appeal against the order of eviction (case no 102/09).

A court granting an eviction order under PIE must comply with the mandatory provisions of sections 4(6) and 4(7), which require it to consider all relevant circumstances including the rights and needs of the elderly, children, disabled persons and households headed by women, and (in cases of occupation exceeding six months) the availability of alternative land. Courts have a constitutional and statutory duty to act proactively in eviction proceedings and must ensure they are fully informed of all relevant circumstances before determining whether an eviction is just and equitable. Where information placed before a court suggests that occupiers are poor and face real prospects of homelessness, the court must take steps to obtain additional information and cannot grant an eviction order without being satisfied that it is just and equitable to do so. It will generally not be just and equitable to grant an eviction order where the effect would be to render occupiers homeless. For rescission of a default judgment, good cause is established by providing a reasonable explanation for the default and showing a bona fide defence with some prospect of success. A failure by a court to discharge its statutory and constitutional obligations in granting an eviction order provides grounds for establishing a bona fide defence in a rescission application.

The court observed that PIE imposed a new role on courts which Sachs J in Port Elizabeth Municipality described as 'complex and constitutionally ordained', requiring courts to 'go beyond their normal functions, and to engage in active judicial management'. The court noted that section 4 obliges courts to be 'innovative' and in some instances 'to depart from the conventional approach'. The court commented that municipalities have constitutional obligations which they must discharge in favor of people facing eviction and are best placed to inform courts of the availability of land within their jurisdiction and measures that could be put in place to accommodate evictees. The court noted that technical questions relating to onus of proof should not play an unduly significant role in eviction enquiries. The court observed that safeguards in PIE are designed to ensure evictions take place in a humane manner consistent with the values of the Constitution. Because good cause for rescission was established under common law, the court stated it was unnecessary to consider whether the appellants would be entitled to rescission under Uniform Rule 42(1) or whether the failure to join the municipality as a party was fatal.

This case is significant in South African jurisprudence as it reinforces the constitutional and statutory obligations of courts in eviction proceedings under PIE. It emphasizes that courts must act proactively and engage in active judicial management to ensure they are fully informed of all relevant circumstances before granting eviction orders. The judgment clarifies that courts have a duty to go beyond conventional approaches, investigate, call for further evidence, and make special protective orders where necessary. It affirms the protection of vulnerable groups and the constitutional right to housing under section 26 of the Constitution, establishing that it will generally not be just and equitable to grant eviction orders that would render occupiers homeless. The case demonstrates the intersection between procedural law (rescission applications) and substantive constitutional rights, showing that good cause for rescission can be established where there has been a failure to comply with constitutional and statutory safeguards in eviction proceedings.