- The High Court sets aside the eviction, orders costs against the owner, and finds lease termination unlawful.
- Judge J Saldanha finds the City’s housing report did not adequately address Allie's needs and included inaccuracies.
- The ruling highlights the historical context of District Six and protections for vulnerable occupiers.
The Western Cape High Court has overturned the eviction order against 78-year-old Noor-Banu Allie, finding that the owner’s attempt to end her lease and remove her from District Six was unlawful.
It also found that the alternatives suggested by the City of Cape Town did not fit her situation. In delivering the judgment, Judge J Saldanha placed the case within the context of District Six’s painful history. He evaluated whether the eviction would be fair, considering Allie's age, finances, and connections to the area.
City report and its shortcomings
Judge Saldanha reviewed the City of Cape Town’s emergency-housing questionnaire and the affidavit from the City’s representative. The judgment notes that Riana Pretorius, the City’s deponent, claimed that Allie was an elderly South African female who resided at the premises with two dependants.
However, Judge Saldanha contrasted that with Allie's questionnaire, which indicated she was single and had no dependants living with her at the premises. Additionally, Pretorius stated that Allie had claimed to be a pensioner but alleged that Allie had not disclosed her monthly income.
In reality, Allie did provide evidence of her income from the Government Employees Pension Fund (GEPF) and South African Social Security Agency (SASSA). The judgment concluded that the claim that Allie had not disclosed her income was simply not correct.
The court also noted Allie's testimony that, with help from her lawyers, she had applied to the social housing institutions listed by the City. She found that many options were not suitable for her due to age limits, closed intakes, or lack of availability. The judgment summarised her situation. Despite exploring the City’s listed options, those options were simply not suitable for her and did not take into account her particular circumstances.
Importantly, the judgment pointed out that the City’s report simply referred Allie to explore the availability of accommodation from a number of social-housing entities that it listed. The City’s recommendations effectively led Allie and her legal representatives on a wild goose chase in desperate search of accommodation for her. The judge criticised the City for failing to adequately consider availability in the social-housing programme. He found it unreasonable to suggest that she obtain building materials and construct a shack on land, especially given her status as a seventy-eight-year-old single woman.
Lease termination and the owner's conduct
Regarding the owner’s claim that renovations required Allie to vacate, the judgment states that Allie denied that the property was unsafe. She offered less disruptive alternatives, such as temporarily moving to a neighbouring vacant house. Judge Saldanha concluded that the owner did not establish a legal reason to cancel the lease. He added that if renovations were truly needed, nothing prevented the first respondent and the owner from properly complying with the law in renovating the premises with due regard to the protections afforded to Allie under the Rental Housing Act and its Regulations. The judge characterised the owner’s justification for eviction as no more than a ruse.
Judge Saldanha emphasised District Six’s history, opening the judgment with a well-known quote, "Your Aunt Sammy will not go. I don’t know what it is all about, but I am not going to shift an inch. I belong to District Six and District Six belongs to me."
He applied that history to Allie’s situation and remarked that her efforts towards restitution and the slow administrative processes were relevant to whether eviction would be fair. The judge noted that Allie had provided details of her total monthly income from GEPF and SASSA and her expenses. He accepted market research that showed rental prices across Cape Town exceeded her affordability. The court held that the magistrate had failed to adequately consider the risk of homelessness and the significance of that evidence.
Order and significance
After considering the legal protections, Allie’s vulnerability, the City’s inadequate housing response, and the owner's failure to justify eviction, Judge Saldanha set aside the magistrate’s order.
He replaced it with an order that dismissed the eviction application and awarded costs, including those of the appeal and counsel on scale C. The judge concluded, “I have no hesitation in setting aside the order of the court...”
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