Mofiko v Mthophe and Others (2024/044182) [2025] ZAGPJHC 772 (7 August 2025)

Case Note

Dikeledi Edith Mofiko (in her capacity as executrix of the Estate Late Matsela Gladys Mfikwe) v Pearl Mthophe & Others
High Court of South Africa, Gauteng Local Division, Johannesburg
Case No. 2024-044182 – Judgment delivered 7 August 2025 (unreported)

Reportability

This judgment is marked reportable because it engages the constitutional and statutory framework that governs residential evictions under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. It reiterates the obligation of courts to balance the common-law rights of ownership with the occupier’s constitutional right to housing and dignity. The judgment also emphasises procedural rigor in motion proceedings, spotlighting the dangers that flow from poorly drafted founding papers and the absence of a replying affidavit. Given the ongoing jurisprudential development around evictions, the decision provides useful guidance to other judges and practitioners confronting similar factual matrices.

Cases Cited

A.P. and Another v Cohen and Others (Appeal) (A216/2024; 21188/2023) [2025] ZAWCHC 66
Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v Gore N.O. and Others [2015] ZASCA 37; [2015] JOL 33031 (SCA)
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
Administration of Estates Act 66 of 1965

Rules of Court Cited

Uniform Rule 41A of the Uniform Rules of Court

HEADNOTE

Summary

The applicant, Dikeledi Edith Mofiko, acting as executrix of her late mother’s estate, applied for the eviction of Pearl Mthophe and all those occupying through her from a dwelling in Jabavu Extension 2, Soweto. Although the estate remains the registered owner, the respondent contended that her occupation stemmed from consent and that eviction would not be just and equitable. The court was therefore required to decide, first, whether the occupation was unlawful under PIE and, secondly, whether, if unlawful, it would nevertheless be just and equitable to grant an eviction order.

Key Issues

Whether the respondent’s occupation was unlawful for the purposes of section 4 of PIE.
Whether, assuming unlawfulness, an eviction order would meet the constitutional standard of justice and equity.
Whether deficiencies in the applicant’s founding affidavit—particularly the absence of detailed facts and the failure to file a replying affidavit—were fatal to the application.

Held

The court held that the applicant had not discharged the onus of proving that the respondent’s occupation was unlawful. Without such proof, the statutory gateway to the “just and equitable” enquiry under sections 4(6)–(7) of PIE was not crossed. Accordingly, the application for eviction was dismissed, with each party ordered to bear her own costs.

THE FACTS

The late Matsela Gladys Mfikwe died in January 2012, leaving an estate that included the residential property at Erf 7[…] Jabavu Extension 2. Her daughter, the applicant, was appointed executrix.

Pearl Mthophe has been in occupation of the property for a number of years. She asserts that she entered with the knowledge and blessing of the deceased, initially to care for the elderly owner and subsequently on the understanding that she could remain. The applicant disputes any such agreement and insists that the occupation turned unlawful upon the death of the owner.

When negotiations failed, the applicant instituted motion proceedings for eviction. The founding affidavit, however, supplied scant information regarding the terms of occupation, the respondent’s personal circumstances, or the availability of alternative accommodation. No replying affidavit was filed, leaving the respondent’s version largely uncontested.

THE ISSUES

The first question was whether the respondent’s occupation fell within the definition of “unlawful occupier” in section 1 of PIE, taking into account any consent allegedly granted by the deceased.

The second question, contingent on a finding of unlawfulness, was whether it would be just and equitable to evict the respondent, bearing in mind factors such as length of occupation, potential homelessness, and the conduct of the parties.

A subsidiary procedural issue concerned the adequacy of the applicant’s evidence in motion proceedings, specifically the impact of the absent replying affidavit on the discharge of the overall onus.

ANALYSIS

The court began by reaffirming that PIE mandates a two-stage enquiry: an applicant must first establish unlawful occupation; only thereafter may the court weigh considerations of justice and equity. Citing Sachs J in Port Elizabeth Municipality v Various Occupiers, the judge underscored that “the existence of unlawfulness is the foundation for the enquiry and not a subject matter.”

Turning to the evidence, Kahn AJ found that the founding papers were “woefully short” of the facts necessary to demonstrate the lack of consent. The respondent’s version—that she was invited to live on the property and had remained there openly with the owner’s blessing—stood unchallenged. The absence of a replying affidavit meant that the respondent’s factual averments had to be accepted unless palpably implausible, which they were not.

Because the applicant failed at the first hurdle, the court considered it unnecessary to traverse the justice-and-equity factors in detail. Even if it had done so, the limited information about the respondent’s personal circumstances and the unavailability of alternative accommodation would have weighed heavily against granting an immediate eviction.

REMEDY

The application for eviction was dismissed. In view of the parties’ modest means and the role of litigation shortcomings on both sides, the court ordered each party to pay her own costs, thereby mitigating further financial hardship.

LEGAL PRINCIPLES

Ownership confers the prima facie right to exclusive possession, but that right is curtailed by constitutional and statutory imperatives once an eviction is sought.

Under PIE, an eviction order can be granted only after the applicant has proved that the occupier is unlawful; the “just and equitable” balancing act is triggered solely thereafter.

In motion proceedings, the affidavits constitute both pleadings and evidence. A failure to set out material facts—or to reply to contradictory allegations—may be fatal, particularly where the applicant bears the onus.

Courts must temper private-law claims with constitutional values of dignity, housing, and ubuntu, ensuring that eviction remains a measure of last resort rather than the default remedy.