Summary of Judgment

1. Introduction

The proceedings were an application for an eviction order brought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). The applicant sought the eviction of the first respondent and all persons occupying the premises through her from a residential immovable property in Protea North, Johannesburg.

The parties were Susan Miriam Msomi (the applicant), who alleged that she was the registered owner of the property, Faith Mbali Mabuza (the first respondent), who occupied the property, and the City of Johannesburg Metropolitan Municipality (joined in the proceedings). The first respondent opposed the application and delivered an answering affidavit through her attorneys at the time.

As to procedural history, the application was instituted on 14 April 2021. The first respondent’s attorneys withdrew on the eve of the hearing, but had already filed heads of argument. The first respondent then appeared in person. The dispute concerned the applicant’s entitlement, as owner, to obtain an eviction order under PIE, and the first respondent’s asserted basis for continued occupation, including an alleged rescission application said to challenge ownership.

2. Material Facts

It was common cause on the papers that the property was situated in Protea North within the jurisdiction of the Gauteng Local Division, Johannesburg, and that the first respondent was in occupation of it at the time the application was brought.

The court accepted as established on the applicant’s papers that the applicant was the registered owner of the property. The applicant’s version was that she purchased the property in cash through an estate agent, and was informed at the time that a tenant occupied the property but would vacate within three months. The applicant later discovered that the occupier was the first respondent.

The applicant further alleged that the property had been sold by a bank after the first respondent had defaulted on loan repayments. On the applicant’s case, the first respondent’s continued occupation was without the applicant’s consent and without any lawful basis.

The first respondent’s principal stated basis for remaining in occupation was that she had filed a rescission application challenging ownership of the property. The applicant denied having received such a rescission application and maintained that she purchased the property from previous owners, who themselves had acquired it at auction.

On the first respondent’s personal circumstances, the court recorded that there was no meaningful information placed before it. It appeared from the papers that the first respondent was unemployed, and during her personal appearance she stated that she wished to leave the property to her children as an inheritance. The court recorded that she did not claim she would be destitute if evicted.

3. Legal Issues

The central questions for determination were whether the first respondent fell within PIE’s definition of an “unlawful occupier”, whether she had raised a valid defence to eviction, and—if PIE’s requirements were satisfied and no valid defence existed—what would be just and equitable dates for vacation and for execution of an eviction order in terms of section 4(8) of PIE.

The dispute primarily concerned the application of law to fact on motion proceedings: whether the applicant had established ownership and lack of consent, whether the first respondent had raised a genuine dispute of fact or a legally cognisable defence, and whether the court’s discretion (framed by PIE’s “just and equitable” standard) supported the grant of eviction and the structuring of the order.

4. Court’s Reasoning

The court approached the matter on the basis of established principles governing motion proceedings, emphasising that affidavits serve as both pleadings and evidence, and that an applicant must make out a case in the founding affidavit and generally stands or falls by it. The court also recognised that it retained a discretion regarding the reception of new matter in reply, but the operative approach remained that the applicant’s case had to be established in the founding papers.

Turning to PIE, the court set out the statutory definition of an unlawful occupier in section 1, namely a person who occupies land without the express or tacit consent of the owner (or person in charge) or without any other right in law, subject to the stated statutory exclusions. The court further referred to section 4(8), which directs that if the court is satisfied that the procedural requirements of section 4 have been met and that no valid defence has been raised, it must grant an eviction order and determine just and equitable dates for vacation and for execution.

In assessing the first respondent’s opposition, the court applied the motion-proceedings jurisprudence on disputes of fact. It relied on authority permitting the rejection on the papers of versions consisting of bald denials, fictitious disputes, or allegations that are palpably implausible or untenable. The court also invoked the requirement that a genuine dispute of fact arises only where the disputing party has seriously and unambiguously engaged the fact said to be in dispute.

Applying these principles, the court held that the matter presented no material difficulty in resolving disputes on the papers. The applicant had demonstrated registered ownership and articulated a basis for wanting possession, including that she was a retired nurse who intended to retire in her home. By contrast, the court found that the first respondent had provided no evidence to substantiate the claimed rescission proceedings and offered no reasonable explanation as to why she should not be evicted. The court treated the desire to keep the property for the respondent’s children as inheritance as not constituting a valid defence to an owner’s eviction claim under PIE.

The court noted an attempted defence relating to robbery introduced in the first respondent’s heads of argument filed by her erstwhile attorneys, but concluded that nothing turned on that belated defence. In the court’s view, absent a valid defence, section 4(8) obliged the granting of an eviction order.

On the “just and equitable” component, the court acknowledged that it must exercise a discretion informed by all relevant circumstances, including the availability of alternative land and the rights and needs of vulnerable groups. However, it recorded that it had not been presented with relevant personal circumstances beyond the indication that the first respondent was unemployed and had not asserted that eviction would render her destitute. On that basis, the court proceeded to set dates for vacation and for execution.

5. Outcome and Relief

The court granted an eviction order against the first respondent and all those occupying through her in respect of the Protea North property.

The first respondent and all unlawful occupiers were directed to vacate the property on or before 30 June 2023. If they failed to do so, the Sheriff (or deputy), with appropriate assistance, was authorised and directed to carry out the eviction.

The first respondent was ordered to pay the costs of the application.

Cases Cited

National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA)

Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA)

Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD)

Shepherd v Tuckers Land and Development Corporation (Pty) Ltd 1978 (1) SA 173 (W)

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (sections 1 and 4(8))

Extension of Security of Tenure Act 62 of 1997

Interim Protection of Informal Land Rights Act 31 of 1996

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant had established that she was the registered owner of the property and that the first respondent occupied without consent or lawful basis, bringing the first respondent within PIE’s definition of an unlawful occupier. The court further held that the first respondent failed to raise a genuine dispute of fact or a valid defence, including failing to provide evidence substantiating the alleged rescission application and relying only on assertions (including a desire to preserve the property as inheritance for her children) that did not constitute a legal defence to eviction.

Having found the statutory requirements met and no valid defence advanced, the court held that section 4(8) of PIE required the granting of an eviction order, together with just and equitable dates for vacation and execution. An eviction order was therefore granted with a set vacation date, authorisation for the sheriff to evict upon non-compliance, and a costs order against the first respondent.

LEGAL PRINCIPLES

The judgment applied the principle that in motion proceedings, affidavits constitute both pleadings and evidence, and an applicant must generally make out the case in the founding affidavit and stand or fall by it. While the court acknowledged discretion regarding new matter raised in reply, it evaluated the application on the basis of what was properly established in the applicant’s papers and whether the respondent’s answering papers raised a sustainable defence.

In relation to disputes of fact on affidavit, the judgment applied the rule that a court may reject on the papers a version comprising bald or uncreditworthy denials, fictitious disputes of fact, or allegations that are palpably implausible, far-fetched, or clearly untenable. A genuine dispute of fact requires that the party disputing must have seriously and unambiguously engaged the relevant factual allegation in the affidavit.

Under PIE, the judgment applied the statutory concept of an unlawful occupier (occupation without the owner’s consent or other right in law, subject to statutory exclusions). It further applied section 4(8) of PIE to the effect that, where statutory requirements are met and no valid defence has been raised, the court must grant an eviction order and must determine just and equitable dates for the occupier to vacate and for the eviction order to be executed. The “just and equitable” inquiry is context-sensitive and requires attention to relevant circumstances, including the needs of potentially vulnerable occupiers, but remains dependent on the material placed before the court.