Application rejection: The judge’s view on Donovan McDonald

Johannesburg High Court Judge Wilson dealt a severe blow to the efforts of the City of Johannesburg to regain control of the Donovan McDonald Retirement Centre on September 2, when he rejected an urgent application for the granting of evictions of illegal occupiers.

The City brought their application in terms of the Protection of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998, with the judge stating the City ‘did not come close’ to fulfilling the requirements of the Act that would allow for such an application to be successful.

Wilson states in his judgment that the City all but admits in its application that it has lost control of the facility, and can no longer confirm who resides there.

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The judge also makes mention of the City’s admission that some units as well as common areas at the centre are poorly maintained or have been vandalised, that some units are alleged to be used to peddle drugs, and that one unit is alleged to ‘accommodate’ sex work.

“The City’s papers do not adequately explain how this happened. The City itself has taken no responsibility for allowing the conditions at the centre to deteriorate to the extent that they have,” reads the judgment.

According to Wilson, the ruling the City is seeking would allow them to evict all persons residing at the centre save for those that appear on their list of vetted occupants.

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“The City cannot say how many individuals it wishes to evict. Nor can it identify those individuals with any precision. It 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.”

Wilson goes on to say that the City has failed in its application to show a real and imminent danger of substantial injury to persons or property unless an unlawful occupier is immediately evicted, as is required by Section 5 of the Act.

“It is 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 also makes mention of two of the illegal occupants who testified that they live at the centre to care for an elderly family member, who has Alzheimer’s Disease.

Wilson said that ordinarily the elderly resident would be moved to another facility with the capacity to provide more intensive support, but that this has not happened, and as the City did not undertake to provide such care, he had to accept that these persons are the only source of care and support for the elderly resident.

He adds that the City’s own investigations suggest that a large number of people reside at the centre with family members.
“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.

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“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.”

Wilson concludes his judgment by saying that the City appears to have both caused and exacerbated the problems that the application is meant to address and that the City ‘must take its share of the responsibility for failing to prevent that deterioration’.

When contacted for comment, the Department of Human Settlements communication officer Neo Goba said the City is still studying the judgment and will respond accordingly.