SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 6026/2023
In the matter between:
LEON LOCHNER N.O. Applicant
versus
JACQUILINE CHARMAINE GARDNER First Respondent
NADEEM NOOR Second Respondent
ALL PERSONS OCCUPYING […] V[…]
G[…] STREET, BOTHASIG
Third Respondent
THE CITY OF CAPE TOWN Fourth Respondent
Coram: Adhikari AJ
Heard: 30 January 2024
Delivered: 13 February 2024
JUDGMENT DELIVERED ELECTRONICALLY ON 13 FEBRUARY 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date for the hand- down is deemed
to be on 12 February 2024.
2
ADHIKARI, AJ
[1] This is an opposed eviction application brought in terms of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’). The applicant
seeks the eviction of the first to third respondents from a residential property situate at
[…] V[…] G[…] Street, Bothasig, Western Cape, also known as erf 7[…], Milnerton,
Cape Town (‘the property’). The property was previously owned by
Mrs Peggy Antonello (‘Mrs Antonello’) who passed away on 22 December 2020. The
applicant is the duly appointed executor of Mrs Antonello’s deceased estate.
[2] The first respondent (‘Mrs Gardner’) and the second respondent, her husband
(‘Mr Noor’)1 occupy the property with their 15 -year-old son. The respondents have
occupied the property since around or about 2004. The respondents initially occupied
the property in terms of a residential lease agreement concluded with Mrs Antonello
which was renewed from time to time. It is not in dispute that the lease agreement
terminated by the effluxion of time on 31 March 2021 and has not subsequently been
renewed. Further, it is not in dispute that the respondents have failed to pay any rental
in respect of the property since the death of Mrs Antonello.
[3] The applicant had instituted eviction proceedings against the respondents in
the Goodwood Magistrates Court , but those proceedings were withdrawn because
Mrs Gardner instituted proceedings in this Court in which she sought the transfer of
1 For ease of reference in the remainder of this judgment I refer to Mrs Gardener and Mr Noor
collectively as ‘the respondents’.
3
the property into her name pursuant to a document entitled “R esidential Real Estate
Sale Agreement” purportedly concluded between Mrs Gardner and Mrs Antonello on
25 September 2020 (‘the alleged sale agreement’). This Court (per Meer J) dismissed
the application brought by Mrs Gardener on 13 March 2023. Thereafter, the applicant
instituted fresh proceedings in this Court for the eviction of the respondents.
[4] The respondents have delivered an answering affidavit in these proceedings in
which they deny that the applicant is entitled to evict them because they had concluded
an agreement with Mrs Antonello on 25 September 2020 to purchase the property and
that they have paid a deposit of R950 000 for the property in terms of the aforesaid
agreement. The agreement on which the respondents rely in their answering affidavit
is the alleged sale agreement, that is the document entitled “Residential Real Estate
Sale Agreement” purportedly concluded between Mrs Gardner and Mrs Antonello on
25 September 2020.
[5] At t he commencement of the proceedings before me, the respondents
requested a postponement from the bar , in order to obtain legal representation. No
formal postponement application was brought. The applicant opposed the request for
a postponement. It bears emphasis that the proceedings had been postponed on two
previous occasions (that is on 12 October 2023 and 24 October 2023) for the
respondents to obtain legal representation. The respondents confirmed at the hearing
that the defence outlined in their answering affidavit was the sole defence on which
they sought to rely, and that the purpose for which they sought a further postponement
4
was to engage the services of a legal representative to present argument based on
the defence set out in the respondents’ answering affidavit.
[6] After hearing argument from both parties, I dismissed the postponement
application. Reasons for the dismissal of the postponement application were given at
the time. The hearing then proceeded on the merits.
STATUTORY AND CONSTITUTIONAL FRAMEWORK GOVERNING EVICTIONS
[7] PIE provides for the prohibition of unlawful evictions and regulates the
procedures to be followed for the eviction of unlawful occupiers. In Ndlovu v Ngcobo;
Bekker and Another v Jika
2 the Supreme Court of Appeal observed that:
‘PIE has its roots, inter alia, in s 26(3) of the Bill of Rights, which provides
that ''no one may be evicted from their home without an order of court
made after consideration of all the relevant circumstances'' . . . . It invests
in the courts the right and duty to make the order, which, in the
circumstances of the case, would be just and equitable and it prescribes
some circumstances that have to be taken into account in determining
the terms of the eviction.’
2 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) at para [3].
5
[8] Section 4 of PIE regulates the eviction of unlawful occupiers of land, sought by
the owner or person in charge of that land. Section 4(1) of PIE provides that “ the
provisions of this section apply to proceedings by an owner or person in charge of land
for the eviction of an unlawful occupier” and override any other law, including the
common law. Section 4(2) requires that at least 14 days before the hearing of an
application in terms of PIE, “the court must serve written and effective notice of the
proceedings on the unlawful occupier and the municipality having jurisdiction” .
Section 4(5) prescribes what the notice referred to in s 4(2) must contain. Once the
notice has been given and the matter is heard, the court is required to decide whether
it is just and equitable to evict the unlawful occupier.
[9] Whenever faced with an application for eviction in terms of PIE, in which the
occupation has been found to be unlawful, a court must determine whether it would
be just and equitable to grant an order of eviction, regardless of whether a case has
been made out under s 4(6) or s 4(7) of PIE.
3
[10] The constitutional approach to PIE has been outlined by the Constitutional
Court in Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another. 4 The
Constitutional Court pointed out that as a starting point, it is settled law that the
3 Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Limited 2012 (2) SA 337
(CC) at para [15] and [16].
4 Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another 2017 (5) SA 346 (CC).
6
application of PIE is not discretionary. 5 Courts must consider PIE in eviction cases .6
Court are not permitted to passively apply PIE and must probe and investigate the
relevant surrounding circumstances and particularly so where the occupiers are
vulnerable.7
[11] There are two separate enquires that must be undertaken by a court in
proceedings brought in terms of PIE.
[12] First, the court must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors. 8 Those factors include the availability of
alternative land or accommodation. The weight to be attached to that factor must be
assessed in the light of the property owner's protected rights under s 25 of the
Constitution, and on the footing that a limitation of those rights in favour of the unlawful
occupiers will ordinarily be limited in duration.
9 Once the court decides that there is
no defence to the claim for eviction and that it would be just and equitable to grant an
eviction order, it is obliged to grant an eviction order.
10
[13] The second enquiry, that the court must undertake before granting an eviction
order, is to consider what justice and equity demand in relation to the date of
5 Id. at para [43]. See also Machele v Mailula 2010 (2) SA 257 (CC) at para [26].
6 Machele at para [15].
7 Berea at paras [43] – [44].
8 Berea at para [44].
9 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at para [11]-[24].
10 Id.
7
implementation of that order and it must consider what conditions must be attached to
that order.11 In that second enquiry the court must consider the impact of an eviction
order on the unlawful occupiers and whether they may be rendered homeless thereby
or need emergency assistance to relocate elsewhere.
12
[14] The order that the court grants as a result of these two discrete enquiries is a
single order. The two requirements are inextricable, interlinked and essential. The
enquiry has nothing to do with the unlawfulness of occupation. It assumes and is only
due when the occupation is unlawful. One of the factors to consider is whether the
grant of an eviction order would pose the threat of homelessness to the unlawful
occupiers. If so, then the relevant municipality’s emergency housing obligations are
activated, and the municipality in question must respond reasonably.
[15] Consequently, the essential enquiry which this Court must undertake is to
determine whether in all the relevant circumstance it would be just and equitable to
evict the respondents.
[16] As regards the requirement of justice and equity, in Changing Tides the
Supreme Court of Appeal explained:
13
11 Id.
12 Id.
13 Changing Tides at para [11].
8
‘In terms of s 4(7) of PIE an eviction order may only be granted if it is just
and equitable to do so, after the court has had regard to all the relevant
circumstances, including the availability of land for the relocation of the
occupiers and the rights and needs of the elderly, children, disabled
persons and households headed by women. If the requirements of s 4 are
satisfied and no valid defence to an eviction order has been raised the
court ''must'', in terms of s 4(8), grant an eviction order. When granting
such an order the court must, in terms of s 4(8)(a) of PIE, determine a just
and equitable date on which the unlawful occupier or occupiers must
vacate the premises. The court is empowered in terms of s 4(12) to attach
reasonable conditions to an eviction order.’
[17] The Constitutional Court has stated that while a property owner cannot be
expected to provide free housing for the homeless on its property for an indefinite
period, in certain circumstances an owner may have to be somewhat patient and
accept that the right to occupation may be temporarily restricted.
14
14 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another
2012 (2) SA 104 (CC) at para [40].
9
[18] While an applicant seeking an eviction order in terms of PIE bears the onus to
place sufficient information before the court to justify the eviction order that it seeks,15
there is also an obligation on the respondents in such proceedings to place sufficient
information before the court to enable the court to discharge its duty to enquire into all
the relevant circumstances for the purposes of the enquiry required by PIE. The
Supreme Court of Appeal in Changing Tides qualified the onus that rests on an
applicant in PIE proceedings by stating that applicants for evictions are obviously not
required to go beyond what they know or what is reasonably ascertainable.
16
[19] This Court held in FHP Management (Pty) Ltd v Theron NO & Another17
‘As regards the effect of s 26(3) of the Constitution (as quoted above), read
together with s 4(7) of PIE, it would appear from the judgment of Harms JA in
Ndlovu v Ngcobo; Bekker and Another v Jika (supra in paras [17] – [19]) that
it is not necessary for an applicant, in proceedings to evict an unlawful
occupier from such applicant’s property, to place more before the Court by
way of evidence than the facts that such applicant is the owner of the property
in question and that the respondent is in unlawful occupation of such property.
It is then up to the occupier to disclose to the Court ‘relevant circumstances’
to show why the owner should not be granted an order for the eviction of the
occupier (see also Ellis v Viljoen 2001 (4) SA 795 (C) at 805C – D; Ridgway
15 Changing Tides para [30] and [34].
16 Changing Tides at para [31].
17 FHP Management (Pty) Ltd v Theron NO & Another 2004 (3) SA 392 (C).
10
v Janse van Rensburg 2002 (4) SA 186 (C) at 191I – 192A; Brisley v Drotsky
2002 (4) SA 1 (SCA) at paras [41] – [43]).’ [emphasis added]
[20] It is thus not open to respondents in eviction proceedings to fail and/or refuse
to place their personal circumstances before the court. Where the answering affidavits
in PIE proceedings are silent on matters which the respondents should be able to
address with relative ease, a satisfactory explanation should be provided for the
omission, and in the absence thereof a court will be justified in drawing the inference
that a bald assertion of impecuniosity or homelessness is not genuine or credible.
18
THE RESPONDENTS’ DEFENCE
[21] Having considered the respondents’ answering affidavit and having heard
submissions from the respondents at the hearing, it is clear that the respondents do
not dispute that the lease agreement in terms of which they had previously occupied
the property was terminated and has not been renewed. Indeed, the respondents
were at pains during argument to point out that they had wanted to conclude a new
lease agreement with the applicant but that the applicant had refused to do so.
18 Luanga v Perth Park Properties Ltd 2019 (3) SA 214 (WCC) at para [48].
11
[22] The respondents’ sole defence to the eviction application is that they have a
right to remain in occupation of the property because Mrs Antonello had supposedly
sold the property to them and they had paid to her a portion of the purchase price, that
is some R950 000.
[23] The respondents defence, however, raises the precisely the same issues of law
and fact which this Court rejected when it dismissed the application brought by
Mrs Gardner.
[24] In that application Mrs Gardner sought an order that the alleged sale agreement
was valid and binding, as well as an order pursuant to the alleged sale agreement for
the transfer of the property to her. In summary, Meer J made the following pertinent
findings in dismissing the application brought by Mrs Gardner:
[24.1] The first reference to any sale agreement between Mrs Gardner
and Mrs Antonello was made in the respondents’ answering
affidavit delivered in the eviction proceedings in the Goodwood
Magistrates Court;
[24.2] The factual allegations relied on by Mrs Gardner were “untenable
and far-fetched” not only because of the lack of explanation as t o
why, having paid R950 000 in the terms of the alleged sale
12
agreement, no reference was ever made by Mrs Gardner to the
existence of the alleged sale agreement until the eviction
proceedings in the Goodwood Magistrates Court, but also because
of Mrs Gardner’s failure to respond to many of the relevant factual
averments by the respondent (that is, the applicant in these
proceedings);
[24.3] The alleged sale agreement did not give Mrs Gardner a right to take
transfer of the property; and
[24.4] Mrs Gardner’s conduct lent credence to the respondent’s
allegations of dishonesty and fraudulent behaviour on the part of
Mrs Gardner, warranting an order that Mrs Gardner pay the
respondent’s costs on a punitive scale.
[25] I specifically enquired from the respondents, at the hearing, whether they
sought to rely on anything other than the alleged sale agreement in support of their
contention that they have right to remain in occupation of the property. The
respondents were adamant that they had bought the property from Mrs Antonello and
that this was the basis on which they claimed a right to remain in occupation of the
property.
13
[26] The applicant contends that the defence on which the respondents seek to rely,
as pleaded in the answering affidavit, raises the same issues of fact and law which
were finally determined by Meer J in the application brought by Mrs Gardner and that
as a consequence, the essential requirements for a plea of res judicata in the form of
issue estoppel have been met.
[27] As I have stated, Meer J found that the alleged sale agreement did not give rise
to any entitlement on the part of Mrs Gardner to claim transfer of the property. Meer J
found that the wording of the alleged sale agreement “is suggestive that it was not an
agreement of sale, but rather an agreement to enter into an agreement in due course”
and that having regard to the wording of the alleged sale agreement, Mrs Gardner “as
of 8 April 2021 would have lost all entitlement to claim transfer of the property and her
remedy … would probably have been the institution of action proceedings to recover
the refundable deposit”.
[28] It bears emphasis that the alleged sale agreement does not , in any event ,
provide either expressly or tacitly, for any right of occupation on the part of
Mrs Gardner.
[29] The doctrine of res judicata has ancient roots as an implement of justice. Its
purpose was to protect the litigants and the courts from never ending cycles of
14
litigation.19 The doctrine of res judicata applies when a dispute involves the same
party, seeking the same relief, relying on the same cause of action.20 In essence, the
doctrine applies when a matter or question raised by a party in proceedings before a
court has been finally adjudicated upon in proceedings between the parties and can
therefore not be raised again.
[30] With time, the common law requirements of res judicata were relaxed, giving
rise to the expression ‘issue estoppel’, which describes instances where a party can
successfully plead that the matter at issue has already been finally decided even
though the common law requirements of res judicata have not all been met. This
relaxation of the common law requirements was explained as follows in Smith v Porritt
& others:
21
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the
ambit of the exceptio res judicata has over the years been extended by the
relaxation in appropriate cases of the common- law requirements that the
relief claimed and the cause of action be the same (eadem res and eadem
petendi causa) in both the case in question and the earlier judgment. Where
the circumstances justify the relaxation of these requirements those that
remain are that the parties must be the same (idem actor) and that the same
19 Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others 2020 (1) SA 327
(CC) at para [111].
20 Prinsloo NO & Others v Goldex 15 Pty Ltd & another 2014 (5) SA 297 (SCA) para [10].
21 Smith v Porritt and Others 2008 (6) SA 303 (SCA) at para [10]. See also Caesarstone Sdot-Yam Ltd
v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA) at para [22].
15
issue (eadem quastio) must arise. Broadly stated, the latter involves an
enquiry whether an issue of fact or law was an essential element of the
judgment on which reliance is placed. Where the plea of res judicata is
raised in the absence of a commonality of cause of action and relief claimed
it has become commonplace to adopt the terminology of English law and to
speak of issue estoppel. But, as was stressed by Botha JA in Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669D,
670J-671B, this is not to be construed as implying an abandonment of the
principles of the common law in favour of those of English law; the defence
remains one of res judicata. The recognition of the defence in such cases
will however require careful scrutiny. Each case will depend on its own facts
and any extension of the defence will be on a case- by-case basis …
Relevant considerations will include questions of equity and fairness not
only to the parties themselves but also to others.’
[31] The overarching principle underlying the doctrine of res judicata is that ‘ there
should be a limit to the extent to which the same issue is litigated between the same
parties and that it is desirable that there be finality in litigation. The courts are also
concerned to avoid a situation where different courts pronounce on the same issue
with the risk that they may reach differing conclusions. It is a plea that has been
recognised by our courts for over 100 years.’22
22 Caesarstone at para [2], citing Socratous v Grindstone Investments 2011 (6) SA 325 (SCA) at
para [13].
16
[32] Given that the defence pleaded in the answering affidavit, in essence is that the
respondents are entitled to remain in occupation of the property because they had
purchased the property from Mrs Antonello and had paid a portion of the purchase
price, being R950 000, in terms of the alleged sale agreement, it is apparent that the
defence raises the same issues of law and fact that were finally determined by Meer J
in the application brought by Mr s Gardner. Consequently, the respondents are
precluded, by virtue of the application of the doctrine res judicata in the form of issue
estoppel, from contending that the alleged sale agreement gives them a right of
occupation in respect of the property.
[33] In the result, I am satisfied that the respondents have no defence in law to their
eviction from the property. The respondents are thus in unlawful occupation of the
property. I turn now to consider whether the applicant has met the requirements for
an eviction order.
THE APPLICANT’S ENTITLEMENT TO AN EVICTION ORDER
[34] The applicant has the requisite standing in law to seek the eviction of the
respondents in that he is the person in charge of the property by virtue of his
appointment as the executor of Mrs Antonello’s deceased estate.
17
[35] The respondents have no right in law to remain in occupation of the property
and are thus unlawful occupiers for the purposes of PIE.
[36] A notice in terms of s 4(2) was authorised by this Court. The s 4(2) notice
complies with the requirements set out in s 4(5) of PIE in that written and effective
notice of these proceedings, containing the information required in terms of s 4(5), was
served on the respondents as well as on the fourth respondent, the City of Cape Town,
being the municipality in which the property is situated, more than 14 days before the
hearing. There has consequently been compliance with the provisions of s 4(2) of PIE
in that the objects of the statutory provisions have been achieved.
[37] The respondents failed to place any meaningful detail of their personal
circumstances before the Court in their answering affidavit. The only allegations made
in the answering affidavit in this regard are that:
[37.1] The respondents have lived in the property since 2004.
[37.2] The property is their primary residence, and they have no other
property registered in their names.
18
[37.3] Their son was born at the property and has lived in the property his
whole life.
[37.4] Their son attends school in the area, all his friends reside in the
area, and it would be a “travesty of justice” to uproot him.
[37.5] The respondents are not in a position to secure alternative
accommodation.
[37.6] The applicant and the beneficiaries of Mrs Antonello’s deceased
estate do not require the property for residential purposes and only
wish to sell the property.
[37.7] The respondents intended to purchase the property and still intend
to do so.
[38] Given the paucity of information in the answering affidavit, at the hearing, given
that the respondents were unrepresented I requested that the respondents address
me fully on their personal circumstances. Despite being given this opportunity, the
respondents did not raise any new personal circumstances not referred to in the
19
answering affidavit and gave little by way of further detail in respect of their personal
circumstances.
[39] The respondents in their address reiterated that they have lived at the property
since 2004; that they consider the property to be their home; they have one minor
child, who is 15 years of age, who attends school nearby ; they wish to purchase the
property; the applicant and the beneficiaries of the deceased estate do not need the
property for residential purposes. The only new information provided by the
respondents is that Mrs Gardner is employed, although her income was not disclosed,
and that Mr Noor has sold the business that he used to run and is without an income.
[40] The respondents were, however, at pains to point out that they are aggrieved
by the fact that applicant has supposedly refused to enter into a lease agreement with
them. They were adamant that if the applicant was prepared to enter into a lease
agreement with them, they would be in a position to pay the same rental that they had
been paying to Mrs Antonello prior to her death, that is R12 000 per month.
[41] It bears emphasis that the applicant in the replying affidavit pointed out that
properties in the Bothasig area (that is 3 -bedroom houses) are available for rent at
reasonable rates and that an eviction would not result in anyone being uprooted as
alleged by the respondents. The applicant annexed to the replying affidavit a series
of rental advertisements which demonstrate that 3 -bedroom houses in Bothasig are
available for rent at rates ranging from R11 500 per month to R18 000 per month and
20
that 2-bedroom houses in Bothasig are available for rent at rates ranging from R3 500
to R10 500 per month. The respondents were unable to explain why they could not
simply rent another property in the Bothasig area for an equivalent amount to that
which they had been paying to Mrs Antonello and which they contended that they
would be able to pay in the event that the applicant was prepared to lease the property
to them.
[42] Further, the respondents repeatedly stated that they wanted to purchase the
property from the applicant and that they have a friend who had agreed to assist them
to purchase the property for R1.6m , but that the applicant did not want to sell the
property to them. The respondents were unable to explain why their friend could not
assist them to purchase another property from a willing buyer for the same amount.
[43] The respondents further allege that the applicant has been acting in bad faith
in refusing to sell the property to them or to lease the property to them. These
allegations are spurious and without any factual foundation.
[44] Relations between the parties have become strained, in particular as a
consequence of the application brought by Mrs Gardner and as a consequence of her
conduct as explained by Meer J in her judgment in that matter. In light of the
respondents’ previous conduct , and in particular as a consequence of the baseless
allegations of mala fides made against the applicant in the application brought by
Mrs Gardner, it is understandable that the applicant no longer wishes to lease or to
21
sell the property to the respondents . Indeed, Mrs Gardner has demonstrated a
worrying degree of dishonesty as Meer J found her in judgment. In any event, the
applicant is perfectly entitled to elect not to enter into a lease or sale agreement with
the respondents . The respondents’ belated attempts at the hearing to offer to
purchase the property or to enter into a lease agreement are simply too little too late.
Had they acted honestly at the outset instead of pursuing the manifestly false claim
that they had purchased the property from Mrs Antonello, they would likely not have
found themselves in the current situation.
[45] The applicant alleges that the deceased estate has suffered and continues to
suffer prejudice as a consequence of the respondents’ failure to vacate the property.
It is common cause that the respondents have not paid any rental since the death of
Mrs Antonello. The allegation in the founding affidavit that the respondents are
indebted to the deceased estate in the amount of some R216 000 is not meaningfully
disputed.
[46] The respondents’ explanation for why they have failed to pay rent for more than
three years is wholly unsatisfactory. The respondents contend that the applicant and
his attorney have acted in bad faith and have refused to engage with them. Nothing
could be further from the truth. The correspondence filed of record demonstrates that
a number of attempts were made since the death of Mrs Antonello to engage with the
respondents.
22
[46.1] In February 2021 and March 2021 correspondence was addressed to
the respondents by the applicant’s attorneys offering to sell the
property to the respondents.
[46.2] In response, the respondents indicated that they wished to continue
with the then extant lease agreement and that they would be in a
position to make an offer to purchase the property in 2022.
[46.3] On 18 April 2021 the applicant’s attorneys advised the respondents
that the applicant was prepared to sell the property to them for R1.6m.
[46.4] The respondents declined to purchase the property and instead
launched the ill-fated proceedings before Meer J.
[47] The applicant points out that the winding up of the deceased estate has been
stalled for some three years as a consequence of the respondents’ conduct and that
their continued refusal to vacate the property or to pay any rental is prejudicial to the
deceased estate.
[48] In all the circumstances of this matter, I am satisfied that it is just and equitable
for an eviction order to be granted in that the respondents have no right in law to
23
remain on the property and their continued occupation of the property is prejudicing
the deceased estate. Furthermore, the respondents, on their own version, can afford
alternative accommodation from their own resources in that they can afford to pay
rental in the amount of R12 000 per month and will therefore not be rendered homeless
if they are evicted.
[49] In these circumstances the deceased estate, as a private entity cannot
reasonably be expected to continue to provide free housing to the respondents
indefinitely, and in particular in circumstances where all reasonable efforts to avoid
eviction proceedings have simply been rejected by the respondents and met with
dishonest claims. The deceased estate has suffered substantial financial prejudice as
a consequence of the respondents’ refusal to pay rental and their refusal to vacate the
property and continues to suffer financial prejudice due to lost rental income and
having to pay rates and municipal service charges in respect of the property. Further,
the deceased estate has had to expend funds in defending Mrs Gardner’s spurious
application and has had to expend further legal costs to evict the respondents.
[50] Insofar as the respondents’ minor child is concerned, any prejudice that he may
suffer as a consequence of the impact of an eviction on his schooling can be
ameliorated by an order that ensures that the timing of the eviction provides sufficient
time for the respondents to either secure alternative accommodation in the area where
they currently reside or to arrange alternative schooling for the minor child closer to
where they are able to secure alternative accommodation.
24
[51] In all these circumstances I am satisfied that it is just and equitable to grant an
eviction order.
[52] I am mindful that the current school term ends on 20 March 2024, however, I
am of the view that an order directing that the respondents vacate the property around
this date, would not afford the respondents sufficient time within which to arrange
alternative accommodation so as to ensure that their minor child’s schooling is not
adversely affected. Having regard to all relevant factors, I am of the view that an order
directing that the respondents are to vacate the property on or before 14 June 2024,
being the date on which the second school term of 2024 ends and that if they fail to
do so, the Sheriff of the Court be authorised to evict them, is just and equitable.
[53] As regards the issue of costs, there is no reason why costs ought not to follow
the result. The applicant, in the founding affidavit, sought a punitive costs order
against the respondents. I agree with the submission by Mr Wilkin who appeared for
the applicant, that given the history of this matter a punitive costs order is warranted.
The respondents were well aware that they have no right in law to continue occupying
the property. The judgment of Meer J in the application brought by Mrs Gardner would
have dispelled any reasonable notion on their part that they had any such right. Yet,
the respondents persisted with their meritless claims before this Court. Further, the
respondents without any factual basis sought to impugn the integrity of the applicant
despite the fact that the self-same allegations were rejected by Meer J and resulted in
25
a punitive costs order being awarded against Mrs Gardner in those proceedings. I am
satisfied that the respondents have failed to act bona fide in defending these
proceedings. Further, the respondents’ meritless defence is vexatious in that the
deceased estate has been put to unnecessary trouble and expense, which it ought not
to have to bear, in having to bring these proceedings23to evict the respondents.
In the result I make the following order:
1. The first to third respondents are directed to vacate the property situate at
[…] V[…] G[…] Street, Bothasig, Western Cape, also known as erf 7[…],
Milnerton, Cape Town (‘the Property’) on or before 14 June 2024.
2. In the event that the first to third respondents fail to vacate the Property on or
before 14 June 2024 the Sheriff of this Court or his/her deputy is authorised and
directed to evict the first to third respondents from the Property.
3. The first and second respondents shall pay the applicant’s costs of suit on a scale
as between attorney and client, the one paying the other to be absolved.
___________________________
M. ADHIKARI
Acting Judge of the High Court
23 In re Alluvial Creek Ltd 1929 CPD 532.
26
APPEARANCES:
Applicant’s Counsel: Mr LF Wilkin
Instructed by: Rabie & Rabie Attorneys
First and Second Respondents in person