- High Court rules municipalities cannot compel access to occupiers simply to prepare for possible future eviction proceedings.
- City of Cape Town fails in its effort to identify and interview tenants living at four Milnerton properties.
- Property owner barred from entering new lease agreements while enforcement proceedings are pending.
Municipalities are not allowed to force access to occupiers just to prepare for possible future eviction proceedings.
This was the finding of the High Court in the Western Cape when it dismissed an application by the City of Cape Town to identify and interview tenants living at four Milnerton properties.
The municipality said it needed access to the occupiers because future enforcement proceedings could potentially affect their right to stay.
The court disagreed, holding that no eviction-related relief was currently before it and that existing legal procedures already allow for occupiers to be identified, cited, and notified if such proceedings are brought in the future.
In reaching its decision, the court drew a clear line between municipal enforcement action and future eviction-related litigation. It found that municipalities are not entitled to force access to lawful occupiers just to investigate or prepare for a possible future case.
City wanted access to tenants
The dispute is part of ongoing enforcement proceedings involving property owner Jan Paul Michels and four residential properties in Milnerton.
The dispute began with an order granted in March 2025, which declared building works on the properties unlawful and in breach of national building regulations and the City of Cape Town's municipal planning by-law.
That earlier order gave Michels the choice to either regularise the unlawful works through the City's administrative processes or to remove the structures and bring the properties back in line with approved building plans.
According to the City, the unlawful structures are still in place, and the regularisation process has not been completed. The municipality told the court that the properties are occupied by several tenants and that future enforcement actions could potentially affect their continued occupation.
It argued that officials needed access to the tenants to identify them, talk to them, and prepare for any future proceedings that could result in eviction. The City also argued that constitutional and statutory obligations in eviction matters require meaningful engagement with occupiers who could be affected by enforcement action.
Court finds no basis for pre-emptive access
The court rejected the City's argument, finding that the legal authorities relied on by the municipality only applied where occupiers' rights were already directly affected by a court case. "The continued occupation of the tenants is not currently the subject of any order before this court," the judge said.
The judgment recognised that when proceedings may ultimately result in people losing their homes, constitutional protections require that those affected be notified and given a chance to be heard.
However, the court found that these principles are only relevant when eviction-related relief is actually sought, not before. The judge said the City was trying to get information from occupiers for possible future court cases, not for any current proceedings before the court.
"The law has long accommodated situations where occupiers are not individually known when court proceedings begin," the judgment stated.
The court noted that occupiers can be cited collectively based on the properties they occupy and can be served with court papers at those addresses.
"If eviction-related relief is ultimately pursued in Part B, nothing is stopping the City from citing the occupiers in that way and ensuring they are properly notified and allowed to be heard," the judge said.
Existing procedures are sufficient
A central point in the judgment was the finding that existing procedures already provide enough protection for occupiers and give municipalities sufficient ways to involve them in future proceedings.
The judge held that the City's inability to identify every tenant at this stage does not justify forcing access to occupiers just to investigate.
According to the court, questions about how occupiers are cited, served, and involved can be dealt with if and when future proceedings that affect their rights are started. The judgment emphasised that the current occupiers live at the properties with Michels' consent.
While there may eventually be questions about the legality of the occupation due to unlawful land use, the court found that these issues were not part of Part A of the proceedings. "There is therefore no reason, in my view, to compel access to the tenants now for the purpose put forward by the City," the judge found.
New lease agreements prohibited
Although the City did not succeed in gaining access to the tenants, it did obtain an interdict stopping Michels from entering into any new lease agreements or granting more rights of occupation while Part B of the proceedings is decided.
The court found that the properties were still being used as boarding houses, even though that use had already been declared unlawful.
The judge rejected arguments that the earlier order allowed the continued expansion of occupation while regularisation was still possible.
"The opportunity to regularise does not give the right to keep expanding the unlawful use of the properties while enforcement proceedings are still underway," the judgment said.
The court noted that the interdict does not require current tenants to leave or end any existing lease agreements.
Instead, it prevents the number of occupiers from increasing while the wider enforcement proceedings are still unresolved.
Costs reserved
The court dismissed the City's application for access to occupiers, granted the interdict preventing new lease agreements, and reserved the costs of Part A to be decided with the rest of the issues in the case.
Part B of the proceedings, which may include further enforcement and demolition orders arising from alleged non-compliance with the earlier order, still needs to be determined.
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