Brief Summary

Eviction — Unlawful occupation — Applications for eviction of respondents from apartments — Applicants claiming lawful ownership and rental arrears exceeding R1.6 million — Respondents contesting eviction on technical grounds without substantiating personal circumstances — Court finding that ownership established through title deed and supporting documents — Respondents failing to demonstrate valid legal basis for continued occupancy — Eviction orders granted.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter consisted of several opposed eviction applications brought in the Western Cape High Court, Cape Town, under section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The applications concerned different respondents occupying different apartments within the same apartment complex.

The applicant in each application was Goodfind Properties (Pty) Ltd. The principal respondents were Doroha Adriaanse, Nawaal Adriaanse, Moegamat Faizel Roman, and Moegamat Tariq Roman, together with “all the occupants holding through the respondents” at the relevant apartments. The City of Cape Town Municipality was cited as the fifth respondent in the PIE proceedings.

By direction of the Judge President, the multiple applications (under several case numbers listed in the heading) were heard together because the factual issues were similar and the legal issues were identical. The hearing took place on 16 November 2022, and judgment was delivered on 28 November 2022.

The general subject matter was the eviction of residential occupiers from apartments in the complex known as “Sakabula” in Ruyterwacht, following the applicant’s asserted cancellation of leases for alleged non-payment of rent and the respondents’ continued occupation thereafter. The court was required to determine whether eviction was competent under PIE and, if so, what eviction date would be just and equitable, taking into account relevant circumstances.

2. Material Facts

It was common cause on the papers, and accepted by the court, that the applicant alleged it had purchased the property some years previously from another entity (identified in the footnotes as its holding company, Communicare) and that it claimed to be the lawful and registered owner. In support, the applicant placed before the court a copy of the title deed, a conveyancer’s certificate, and an electronic property print-out report. The respondents disputed the adequacy of this proof but produced no credible countervailing evidence establishing an alternative ownership position, and the court treated the applicant’s ownership as established for purposes of the proceedings.

The respondents in the various matters had previously entered into written lease agreements for apartments on the property with the previous owner. The leases were said to be in roughly similar terms. The applicant’s case was that the respondents had breached their leases by failing to pay monthly rental for a prolonged period, with total arrears alleged to exceed R1.6 million, and an average alleged arrear per respondent of approximately R178 000.

On the applicant’s version, it had placed respondents on terms to remedy the arrears via demand letters. When the arrears were not brought up to date and the demand letters were not met with payment, the applicant cancelled the leases in writing by delivering cancellation notices. The notices called for vacation by no later than the end of the previous year. Despite this, the respondents remained in occupation.

The applicant characterised the respondents as unlawful occupiers under PIE, contending that the respondents’ unlawful occupation (after cancellation and demand to vacate) had endured for less than six months, which was relevant to categorisation under PIE (as referenced by the court to section 1 read with section 4(6)).

A significant factual feature was the absence of personal circumstances placed before the court by the respondents. The respondents were invited on several occasions to detail their personal circumstances and to complete prescribed questionnaires for processing by the municipality, but they declined. The City’s report confirmed that it required further information and that it had not been provided with sufficient detail about the occupiers’ circumstances. The court therefore decided the matter with scant information about the respondents’ personal positions.

3. Legal Issues

The central legal questions were whether the applicant, as asserted owner, had made out a case for eviction of the respondents as unlawful occupiers under PIE, and whether the procedural and substantive requirements for eviction had been met.

A further central question was the just and equitable enquiry mandated by PIE and section 26(3) of the Constitution: if eviction was otherwise competent, what eviction date and terms would be just and equitable in the light of all relevant circumstances, including (in principle) the occupiers’ personal circumstances and the municipality’s role.

The dispute was largely one of the application of law to facts and the assessment of whether the respondents’ opposition raised any legally cognisable basis to refuse eviction. The respondents primarily advanced technical and legal objections rather than factual material directed at justification for continued occupation. The court also had to exercise a value judgment/discretion in fixing a fair eviction date and determining an appropriate costs order, including whether punitive costs should be granted against the respondents’ legal representative.

4. Court’s Reasoning

The court approached the matter on the basis that an owner or person in charge of land may apply for eviction under PIE if the statutory requirements are met, and that ownership coupled with unlawful occupation ordinarily founds the right to seek eviction. The court endorsed the principle that, unless an occupier opposes and discloses circumstances relevant to the eviction order, the owner will in principle be entitled to an eviction order, subject to the court’s statutory and constitutional oversight.

The court addressed the respondents’ preliminary point that the eviction applications should not be entertained because of a pending matter elsewhere. The court held that the alleged pending litigation was unrelated to the property in issue and that the requirements for a plea (or reliance) of lis pendens were not met, including the need for litigation between the same parties or privies, on the same cause of action, and regarding the same subject matter. The respondents’ assertions were treated as insufficient to justify a stay.

The respondents’ contention that the applicant (or its holding company) was an organ of state was rejected. The court referred to the constitutional definition of “organ of state” in section 239 of the Constitution, and concluded that the applicant did not fall within that definition on the facts advanced. The respondents’ attempted reliance on unspecified provisions of the Social Housing Act 16 of 2008 was similarly unsuccessful. The court reasoned that the property did not meet the statutory definition of “social housing” because it was not shown to be an approved project or in a designated restructuring area, and there was no demonstration of public funding or regulatory control over this property as contemplated by the Act. Even if the holding company was involved in regulated social housing elsewhere, the respondents had not established that this particular property fell under that regime.

In relation to ownership, the respondents sought to challenge the applicant’s title by suggesting irregularities in prior transfers and by reference to company law compliance. The court held that the applicant’s documentary material (title deed, conveyancer’s certificate, and print-out) constituted sufficient proof of ownership absent credible contrary evidence. The court also accepted the applicant’s explanation that the property was not sectionalised, thereby disposing of the respondents’ contention about discrepancies between an erf description and apartment square meterage.

The respondents argued that because the leases were concluded with the previous owner, they were void or could not be enforced by the applicant. The court rejected this, reasoning that if the leases were void ab initio, it would undermine any lawful basis for the respondents’ occupation, making them unlawful occupiers even on their own version. The court held that when the applicant became owner, the respondents were protected by operation of law, and the change of ownership did not negate the respondents’ obligations under the lease arrangements.

The respondents also raised authority and locus standi objections, alleging that the applicant was not properly authorised to institute proceedings. The court answered this by applying the principle that a deponent need not be authorised to sign an affidavit, and in any event the delegation of authority relied upon by the applicant was referenced in the papers (albeit in reply), which the court accepted as sufficient in the circumstances.

On meaningful engagement, the court accepted that the applicant had engaged by sending letters that afforded the respondents an opportunity to bring arrears up to date before cancellation and litigation. The court also stated there was no basis to impose on the applicant a duty to provide housing to the respondents, emphasising that an individual’s right to housing is not to be shouldered by private parties.

Turning to the constitutionally inflected equity enquiry, the court emphasised that it was required to exercise a discretion based on what is just and equitable in deciding whether to grant eviction and, if so, on what date. The court explicitly considered the interests of both sides. It accepted the applicant’s position that it provides low-income housing and depends on tenants paying rent to continue operating, and it found that the respondents’ prolonged non-payment and continued occupation prejudiced the applicant by preventing it from securing paying tenants and generating income.

At the same time, the court noted that the respondents had failed to place personal circumstances before it despite repeated invitations and the municipality’s need for information. The court stated that it could not be expected to speculate about facts within the respondents’ exclusive knowledge. Nevertheless, even with limited information, the court took a “liberal equity” approach in fixing the eviction date, concluding that it would be just and equitable to afford the respondents a further two months to vacate.

On costs, the applicant sought a punitive costs order against the respondents’ attorney personally. The court rehearsed general principles: costs are discretionary; the usual rule is that costs follow the result; and personal costs orders against fiduciaries or representatives require a basis such as mala fides, negligence, or unreasonableness (as discussed with reference to the cited authority). The court accepted the explanation offered by respondents’ counsel about resource constraints and representation of indigent persons, and held that a punitive personal costs order was not warranted on the evidence.

However, the court also considered that ordering costs against the respondents, given their socio-economic position, might serve limited practical purpose. It crafted a “hybrid” costs order: the respondents were ordered to pay the applicant’s costs jointly and severally, but the applicant could only tax its costs in the event that a respondent in future obtained a costs order against the applicant, and execution was constrained by a set-off mechanism. The court explained that this approach provided the applicant with some safeguard against potential future adverse costs without immediately burdening indigent respondents.

5. Outcome and Relief

The court granted eviction orders in favour of the applicant in the consolidated applications. The respondents were ordered to vacate by no later than 31 January 2023, failing which the sheriff was authorised to proceed with eviction in accordance with the attached orders.

The court recorded that it had been advised of an agreement in two matters (case numbers 6633/2022 and 6700/2022) for vacation by the end of December 2022, but the court’s equitable assessment favoured allowing at least two months, and the orders ultimately reflected the January 2023 vacation date.

The request for a punitive costs order against the respondents’ attorney personally was refused. The court made a conditional/hybrid costs order against the respondents (jointly and severally), limiting taxation and execution as described to provide a safeguard to the applicant in relation to potential future cost orders.

Cases Cited

Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA).

Van der Westhuizen v Nxiweni and Others (21145/17) [2018] ZAGPJHC 97 (8 May 2018).

Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA).

Theewaterskloof Holdings (Edms) Bpk, Glaser Afdeling v Jacobs en Andere 2002 (3) SA 401 (LCC).

Johannnesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers Newton Urban Village 2013 (1) SA 583 (GSJ).

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC).

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA).

Union Government v Gass 1959 4 SA 401 (A).

Socratous v Grindstone Investments (149/10) [2011] ZASCA 8 (10 March 2011).

Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA).

Fripp v Gibbon & Co 1913 AD 354.

Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 3 SA 692 (C).

In re Potgieter’s Estate 1908 TS 982.

Vermaak’s Estate v Vermaak’s Heirs 1909 TS 679.

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Constitution of the Republic of South Africa, 1996 (section 239; section 26(3)).

Social Housing Act 16 of 2008.

Companies Act 46 of 1926.

Companies Act 71 of 2008.

Rules of Court Cited

No specific rules of court were cited in the judgment text provided.

Held

The court held that the applicant established its ownership and the respondents’ unlawful occupation for purposes of PIE, and that the respondents’ opposition—largely technical—did not disclose facts or circumstances sufficient to defeat eviction or to justify a stay or dismissal.

The court held that the alleged pending litigation did not meet the requirements for lis pendens, that the applicant was not shown to be an organ of state, and that the Social Housing Act was not shown to apply to the property. The respondents’ challenges to ownership, property description, and authority to litigate were rejected on the material before the court.

Applying the just and equitable standard under PIE and section 26(3) of the Constitution, the court held that eviction was justified and equitable, but that the respondents should be afforded a further period to vacate, ultimately ordering vacation by 31 January 2023.

On costs, the court held that a punitive personal costs order against the respondents’ attorney was not justified, but made a conditional/hybrid costs order against the respondents to protect the applicant against potential future adverse costs consequences.

LEGAL PRINCIPLES

PIE eviction proceedings require proof of ownership (or lawful control) and unlawful occupation, together with compliance with statutory procedure; however, eviction ultimately depends on whether it is just and equitable in light of all relevant circumstances, consistent with section 26(3) of the Constitution.

Where an occupier opposes an eviction, the occupier must place before the court circumstances relevant to the just and equitable enquiry; absent such disclosure, an owner will in principle be entitled to eviction, subject to the court’s constitutional and statutory oversight.

A party relying on a pending proceeding to resist litigation must allege and prove the recognised elements of lis pendens, including the same parties (or privies), the same cause, and the same subject matter; unsupported assertions of unrelated pending litigation do not justify staying eviction proceedings.

The constitutional definition of “organ of state” in section 239 requires factual demonstration that the entity is a department of state or exercises public power or performs a public function in terms of the Constitution or legislation; a private company does not become an organ of state on bare allegation.

In determining an eviction date, courts exercise a discretionary, value-laden judgment aimed at fairness to both owner and occupier. Even where occupiers provide scant personal information, the court may still make an equity-based determination that allows a reasonable period to vacate, without being required to speculate about undisclosed circumstances.

Costs are a matter of judicial discretion. While the general rule is that costs follow the result, a personal costs order against a legal representative or fiduciary-type litigant requires a proper evidentiary foundation for serious impropriety (such as mala fides, negligence, or unreasonableness). Courts may craft costs orders tailored to the parties’ socio-economic realities while safeguarding against future adverse costs exposure.

Goodfind Properties (Pty) Ltd v Adriaanse and Others (6635 / 2022; 6633 / 2022; 6699 / 2022; 6700 / 2022; 6701 / 2022; 6766 / 2022; 6768 / 2022; 6810 / 2022;6811 / 2022) [2022] ZAWCHC 245 (28 November 2022)