Brief Summary

Eviction — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 — Appeal against eviction order — Appellant contending that magistrate erred in applying the PIE Act — Appellant occupied property for more than six months, requiring consideration of just and equitable factors for eviction — Respondents complied with procedural requirements of PIE Act — Court held that the appellant failed to adequately plead and prove a case against eviction, affirming the magistrate's order.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal against an eviction order granted in the Magistrate’s Court for Ekhurhuleni Central, held at Palmridge. The proceedings were brought under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) and related to eviction from residential property situated in Honda Street, Eden Park Extension 4, Alberton.

The appellant was Ismail Boetie Trollip, the person evicted in the court a quo, together with those occupying through him. The respondents were Clarence Desmond Davis and Adelina CC Davis, who relied on their ownership of the property as the basis for eviction.

In the magistrates’ court, an eviction order was granted on 31 May 2018, directing the appellant to vacate by 31 August 2018, with the Sheriff authorised to evict from 7 September 2018. The appellant appealed to the High Court, and the appeal was accompanied by an application for condonation arising from multiple procedural defects in the prosecution of the appeal. The High Court granted condonation, reinstated the appeal, and determined the appeal on the merits.

The general subject-matter of the dispute was whether the eviction order complied with the PIE Act’s requirements, particularly the requirement that eviction may be granted only if it is just and equitable after considering all relevant circumstances, and how the burden of placing relevant information before the court operates in PIE motion proceedings.

2. Material Facts

It was common cause on appeal that the respondents had complied with the procedural notice requirements in sections 4(2) to 4(5) of the PIE Act, including service of the statutory notice on the appellant informing him of the proceedings. It was also common cause that the appellant had occupied the dwelling for more than six months at the time eviction proceedings were initiated, meaning that the enquiry fell under sections 4(7) to 4(9) of the PIE Act.

The respondents’ founding papers in the eviction application were notably brief. They relied primarily on ownership (a title deed was attached) and alleged that after taking transfer they requested the appellant to vacate, but he refused. They alleged that the appellant occupied without consent or any other right at law, and that he had erected structures wrongfully. They further alleged that they were not aware of the appellant’s “present personal legally relevant circumstances, if any”. The founding papers did not set out primary facts explaining how the appellant’s occupation began, the circumstances surrounding demands to vacate, or facts directed to the justice-and-equity enquiry required by the PIE Act.

The appellant’s answering affidavit, also brief, denied unlawful occupation and asserted that he had purchased the property from the respondents. He attached a deed of sale agreement and alleged he had paid the purchase price in full, but transfer was not completed because the respondents allegedly moved to Cape Town and could not be contacted to sign transfer documents. He admitted that a three-bedroom house had been erected on the vacant land, and denied it was erected without consent. The answering affidavit similarly did not properly set out material personal circumstances of the appellant and any household members, nor did it properly address the factors relevant to whether eviction would be just and equitable.

Further affidavits were filed beyond the ordinary motion sequence, and a municipal report was placed before the court. The report contained information indicating, among other things, that the appellant allegedly lived on the property with his wife and four children, that the children were minors at the time of the municipality’s investigation, that the appellant allegedly earned less than R3 500 per month due to a work injury, and that the municipality did not have readily available resources to accommodate the appellant and his family even temporarily. The respondents did not respond to dispute the municipal report’s factual content.

The High Court emphasised that, on the papers as presented, there were material factual uncertainties and disputes that remained unresolved, including whether the appellant ever had consent to occupy and build, whether the property had in fact been sold to him, whether payment had been made, whether demands to vacate were made as alleged, whether eviction would negatively affect minor children, and whether eviction would result in homelessness.

3. Legal Issues

The central legal questions were whether, in PIE eviction motion proceedings where occupation exceeded six months, the applicant had placed sufficient information before the court to enable a finding that eviction would be just and equitable under sections 4(7) to 4(9), and whether the magistrate had misdirected himself regarding the onus (or burden) relevant to that enquiry.

A further legal issue concerned the proper approach to pleading and proof in motion proceedings, including the principle that affidavits constitute both pleadings and evidence, and the impermissibility of seeking to make out a case by relying on annexures not properly canvassed in the affidavits.

The dispute largely concerned the application of law to fact: specifically, how the legal requirements of PIE’s justice-and-equity enquiry and the allocation of responsibility for placing relevant facts before the court applied to the incomplete and poorly pleaded factual material presented. It also involved an evaluative component inherent in PIE matters, because “just and equitable” entails a value judgment based on all relevant circumstances, but the appeal turned on whether the court a quo had adequate material to perform that evaluative function at all.

4. Court’s Reasoning

The High Court located the appeal within two interrelated bodies of principle. The first concerned motion proceedings: affidavits serve as both the pleadings and the evidence, and parties must make out their case in the affidavits themselves rather than by leaving courts to infer or construct material facts from annexures. The court relied on authority emphasising that it is improper for litigants (and impermissible for courts) to decide matters based on points not canvassed in affidavits, including where those points are derived only from annexures. This principle was treated as especially important in eviction litigation, given the constitutional and statutory stakes and the need for the opposing party to know the case they must meet.

The second body of principle concerned the PIE Act’s structure and the role of the court. Because the appellant had occupied for more than six months, the magistrate was required to consider the enquiry mandated by section 4(7), which permits eviction only if it is just and equitable, and to determine dates under sections 4(8) and 4(9). The judgment reiterated that the enquiry has multiple components: whether occupation is unlawful, whether eviction would be just and equitable after considering all relevant circumstances (including specified categories such as the rights and needs of children), and, if eviction is granted, what dates would be just and equitable.

A key point in the appeal was the allocation of the onus and the responsibility to ensure that relevant information is placed before the court. The High Court accepted that earlier authority left aspects of onus open, but held that subsequent authority established that in a PIE application under section 4(7), it is for the applicant to place sufficient information before the court to enable it (if unchallenged) to be satisfied that eviction would be just and equitable. The court treated this as consistent with the proposition that if the court is left in doubt about justice and equity on the available material, it must refuse eviction rather than prolong proceedings until adequate facts emerge.

The court also addressed the “less conventional approach” associated with PIE litigation, in which courts may play a more active role to ensure the relevant facts are before them when determining justice and equity. However, it emphasised that there is a corresponding duty on legal representatives to furnish material information, and that where parties are legally represented, the court’s proactive role may be curtailed. The judgment nevertheless treated the present case as one where the papers were so inadequately prepared that the magistrate faced the difficulty of determining justice and equity without a proper factual foundation.

Applying these principles, the High Court held that the respondents’ founding papers might have been sufficient to raise a bare claim of ownership and occupation, but they were not sufficient to establish a case that eviction would be just and equitable. The founding affidavit lacked material primary facts directed to the justice-and-equity enquiry, including facts about the commencement and duration of occupation, the occupants’ circumstances, and the risks associated with eviction, particularly potential homelessness. The court considered that this was not a case where the mere allegation of unlawful occupation would suffice, especially given indications that the appellant and his family resided in a dwelling that they claimed to have built on the property.

The High Court further held that the magistrate materially misdirected himself by approaching the case on the basis that the defendant/occupier had failed to discharge an onus by not placing sufficient circumstances on record. On the High Court’s reasoning, the proper position was that the applicants for eviction bore the obligation to place sufficient material before the court to justify a just-and-equitable eviction, and the absence of adequate information required refusal of an eviction order. In this connection, the court regarded the magistrate’s attempt to decide factual disputes on probabilities as legally flawed in the context of the incomplete and contested factual picture, and it noted that the magistrate’s approach also bypassed the proper approach to disputes of fact in motion proceedings.

In considering what order should replace the eviction order, the High Court noted that a referral back for supplementation of affidavits is possible in principle, but found that the lapse of time, the improper presentation of the case, and the already excessive and irregular proliferation of affidavits weighed against remittal. The court emphasised that setting aside the eviction order and dismissing the application would not finally determine the parties’ rights; rather, it would leave the respondents free to institute fresh proceedings in which the material facts are properly pleaded and proved, enabling a court to undertake the required justice-and-equity enquiry on an adequate evidential foundation.

On condonation, the court criticised the appellant’s conduct in prosecuting the appeal, including late noting, late security, and a disordered record, coupled with inadequate accountability from the appellant’s attorneys. Nevertheless, it granted condonation because the merits of the appeal justified reinstatement. That procedural delinquency was then reflected in the costs order.

5. Outcome and Relief

The High Court granted condonation, reinstated the appeal, and upheld the appeal. The eviction order granted by the magistrates’ court was set aside and substituted with an order dismissing the eviction application.

As to costs, the court ordered the respondents to pay 40% of the costs of the appeal, reflecting that substantial costs were wasted due to the appellant’s poor prosecution of the appeal and the need for the condonation application. The substituted order dismissing the application in the court a quo was accompanied by no costs order in respect of the proceedings before the magistrate, the court reasoning that both sides contributed to the position by failing to place material facts before the magistrate.

Cases Cited

Genesis Medical Aid Scheme v Registrar, Medical Schemes and Another 2017 (6) SA 1 (CC).

Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA).

Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA).

MEC for Health, Gauteng v 3P Consulting (Pty) Ltd 2012 (2) SA 542 (SCA).

Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T).

Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T).

National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W).

National Director of Public Prosecutions v Phillips and Others 2005 (5) SA 265 (SCA).

Chetty v Naidoo 1974 (3) SA 13 (A).

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

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

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

Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC).

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Petersen v Van Wieling and Others [2019] ZAWCHC 70.

Legislation Cited

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

Constitution of the Republic of South Africa, 1996.

Act 50 of 1999 (as referenced in the papers).

Rules of Court Cited

No specific rule of court was expressly cited in the judgment.

Held

The court held that the magistrate’s eviction order could not stand because the applicants for eviction had failed to plead and prove material facts required for the court to be satisfied that eviction would be just and equitable under the PIE Act, and because the magistrate misdirected himself by treating the occupier as bearing an onus to place sufficient relevant circumstances before the court.

The court further held that where the information before the court is absent or inadequate for the justice-and-equity enquiry, an eviction order should not be granted. The eviction application was dismissed, with the respondents remaining free to institute fresh proceedings properly pleaded and proved.

Condonation was granted for the defective prosecution of the appeal, but the costs order was adjusted to reflect that the appellant caused substantial wasted costs.

LEGAL PRINCIPLES

A litigant in motion proceedings must make out their case in the affidavits, because affidavits constitute both the pleadings and evidence. A party may not properly base an argument on passages in annexed documents where the conclusions to be drawn from those passages have not been canvassed in the affidavits, and a court should not decide a matter on that improper basis.

In eviction proceedings governed by section 4(7) of the PIE Act, the court may grant eviction only if satisfied that it is just and equitable after considering all relevant circumstances. Where occupation has exceeded six months, the statutory enquiry expressly requires consideration of circumstances that may include the availability of alternative land or accommodation, and the rights and needs of vulnerable persons such as children.

On ordinary principles governing onus in PIE matters of this kind, it is for the applicant for eviction to secure that the information placed before the court is sufficient (if unchallenged) to satisfy the court that eviction would be just and equitable. If the court is left in doubt due to insufficient information on justice and equity, the eviction order should be refused rather than granted.

The PIE Act’s justice-and-equity enquiry may require a court to adopt a more proactive role in ensuring that relevant facts are established; however, there is a corresponding obligation on parties and their legal representatives to place all material facts before the court. Where no information or only inadequate information is available to enable the justice-and-equity enquiry, the court must decline to make an eviction order.

Trollip v Davis and Another (A3022/2019) [2021] ZAGPJHC 22 (4 March 2021)