Court blocks eviction

Judge Patrick Gamble said the Bo-Kaap was close to the city and has increasingly become attractive to property investors.

Bo-Kaap’s history and heritage were recognised and highlighted by Western Cape High Court Judge, Patrick Gamble, who dismissed the eviction application by a property company against a Bo-Kaap family on October 31.

The matter was an application by Pure Capital Property, for an eviction against the Hanslo family who have lived in the Bo-Kaap for years.

In his affidavit, the applicant, Alon Philipe Kowen, said he bought a unit at Schotschekloof Flats in Bo-Kaap during a sale in execution in May this year.

According to court documents, the property was originally owned by the City of Cape Town and was transferred to the Hanslo family in 2003. The property was purchased by Mr Kowen for R375 000 and transferred to his name on July 13.

Mr Kowen, however, accused the Hanslo family of unlawful occupation by failing to vacate the property, nor taking any steps to legalise their occupation or tender to pay any expenses for the property. He filed an application to evict the family.

Judge Gamble said the court can only grant an eviction order when it has all the information about the occupiers to enable it to decide whether the eviction is just and equitable.

“The two requirements are inextricable, interlinked and essential. An eviction order granted in the absence of either of these two requirements will be arbitrary,” he said.

Judge Gamble said once a court is satisfied that all of the requirements have been met, and importantly that no valid defence has been raised by the occupiers, it must grant an eviction order on a date which is considered to be just and fair in the circumstances. And, in considering what date is just and fair, the court is required to consider all the relevant factors, including the period the occupiers and their family have resided on the land in question.

Judge Gamble said the area was close to the city and has increasingly become attractive to property investors, speculators and developers and much has been said in the media about the so-called “gentrification” of the area.

“This has raised the ire of many residents who are desperate to preserve the cultural identity of the area and who have, from time to time blocked off streets and even conducted protest action outside specific developments, thereby necessitating the intervention of this court on occasion.”

He said the residents in the area were not wealthy and an eviction of the type sought in this matter, in which a group of related persons appear to occupy a family home that was acquired from the City some time ago, might well make them homeless or at the very least require them to relocate to one of the outlying suburbs that are now home to the many who fell foul of apartheid’s Group Areas Act.

“A court would be required to think long and hard about the justice and equity of ordering people to vacate a dwelling, long occupied, which has been snapped up by a buyer distant to the neighbourhood for investment or development potential.

“Certainly, it is to be expected of such buyers that when they seek to move established families out of their homes, they do their homework properly and place all relevant facts before the court,” he said.

The judgment was welcomed by the Bo-Kaap Civic and Ratepayers’ Association (BKCRA). In a statement issued, the civic association said more of these judgments which deal head-on with the issue of spatial injustice and apartheid land planning, were needed.

“Developers beware our courts are starting to recognise the rich history of Bo-Kaap and the impact of gentrification on the area. A clear message was sent,” the statement read.