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The City of Johannesburg faced a setback in its attempt to take control of a retirement home and evict its current residents.
The metropolitan municipality filed an urgent application with the Gauteng High Court in Johannesburg on 20 August.
The application sought to evict the occupants of the 183-unit Donovan MacDonald Retirement Centre in Florida, in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act).
However, the eviction would exclude those registered on the city’s list of “vetted” occupants.
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The city, in court papers, admitted that it has lost control over the retirement home it owns and can no longer account for its residents.
The metro alleged that several parts of the centre were either poorly maintained or have been vandalised.
There were also claims that some units have been illegally occupied and others are being used for drug trafficking.
Additionally, one unit was allegedly being used for sex work.
In a judgment delivered on Monday, Judge Stuart Wilson criticised the City of Joburg for failing to explain how it lost control of the retirement home.
Wilson noted that the city’s application did not acknowledge its responsibility for the severe deterioration of conditions at the centre.
The judge also highlighted that the city did not specify how many people it seeks to evict or provide precise identification of those individuals.
“[The city] nonetheless undertakes, before executing the eviction order, to consider their eligibility for alternative accommodation in terms of its temporary emergency accommodation policy, and to provide such accommodation to any of the unidentified occupants who are found to qualify for it,” the judgment reads.
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Wilson stated that the city “did not come close” to meeting one of the three requirements for eviction under Section 5 of the PIE Act.
This section allows for the urgent eviction of unlawful occupiers in cases where waiting for a standard court decision was impractical.
Specifically, the city was required to demonstrate that there was a “real and imminent danger of substantial injury to persons or property” if an unlawful occupier was not immediately evicted.
“It is in fact clear on the papers that the relief the city seeks would result in the eviction of entirely innocent occupants who, while not on the city’s list of ‘vetted’ residents, have nothing to do with the conduct the city seeks to eliminate,” the judge said.
Two occupants informed the court that they care for their 82-year-old mother, who suffers from Alzheimer’s disease.
The Adonis siblings explained that they reside at the centre to assist their mother with feeding, bathing, and dressing, as well as to protect her from the “obvious dangers” of living alone.
According to the judgment, Advocate Eddmond Nhutsve, the city’s legal representative, acknowledged that the retirement home was not equipped to provide adequate care for the 82-year-old woman.
The plan was for her to be transferred to a more suitable facility, but this has yet to occur.
Wilson noted that the city failed to explain why the relocation has not taken place.
Additionally, Nhutsve did not address whether the siblings and their mother posed any risk of threat to people or property.
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“[Nhutsve] nonetheless persisted in an order ejecting Mr and Mrs Adonis from the centre, solely on the basis that they are not ‘vetted’ residents.
“He could give no undertakings that Mary-Ann would receive the care she needs from some other source. He did not undertake that the city would provide such care.
“Because the city’s papers do nothing to isolate and identify the individual occupants of the centre who are the source of the unlawful conduct of which it complains, I cannot say how many other ‘vetted’ residents of the centre are similarly dependent on ‘unvetted’ members of their family or other carers who are present at the centre technically unlawfully.”
The judge further pointed out that the city’s own investigations indicated a significant number of people living at the centre with their family members.
“Without any sense of who these people are, and whether or not they are the source of the conduct of which the city complains, it is impossible to identify to whom any eviction order should apply.”
The city’s application was, therefore, dismissed as a result.
“It would be wrong to dispose of this case without pointing out that the city appears to have both caused and exacerbated the problems it says this application is meant to address.”
Wilson stated that the municipality must also bear responsibility for not preventing the worsening conditions at the retirement home.
“It is, after all, the city that owns the centre, and the city which ought to have put in place the controls necessary to ensure that its use is properly regulated.
“Having failed to do that over what seems like an extended period, the city now seeks relief which would, on its face, endanger the safety and well-being of the very people the city says it wishes to protect.”
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