SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
Case No: 87/2023
In the application between:
THE TRUSTEES FOR THE TIME BEING OF THE
P G W[…] FAMILY TRUST First Applicant
ABDUL KHABEER JARDIEN Second Applicant
SAAJIDAH FELTON Third Applicant
and
N[…] W[…] First Respondent
(Together with all other occupiers holding under
First Respondent)
G[…] W[…] Second Respondent
(Together with all other occupiers holding under
Second Respondent)
ALL OTHER UNLAWFUL OCCUPIERS OF Third Respondent
ERF 1[…] CAPE TOWN
(Together with all other occupiers holding under
Third Respondent)
THE CITY OF CAPE TOWN Fourth Respondent
Date of Hearing: 22 November 2023
Further affidavits filed: 1 and 4 December 2023
Date of Judgment: 31 January 2024
Coram: Holderness AJ
JUDGMENT
HOLDERNESS AJ
Introduction
2
[1] The applicants seek an order in terms of section 4(8) of the P revention of Illegal
Eviction from and U nlawful Occupation of L and Act 19 of 1998 (‘PIE’) for the eviction of
the first, second and third respondents (‘the respondents ’) from the immovable property
formally known as Erf 1[…] Cape Town, in the City of Cape Town, Cape Division, Western
Cape Province, more commonly known as 2[…] T[…] R[…], B[…], Athlone, Cape Town,
Western Cape (‘the property’).
[2] The section 4(2) notice was duly served on the first, second and third respondents.
[3] The issues which arise for determination are:
3.1 Do the respondents have a legal right to occupy the property or are they in
unlawful occupation thereof?
3.2 If their occupation of the property is unlawful, is it just and equitable that they
be evicted?
3.3 If it is just and equitable that the respondents be evicted, the terms and
conditions and what would be a just and equitable period within which
eviction is to be effected?
Factual matrix
The parties
[4] The property is owned by and registered in the name of the PG W […] Family Trust
(‘the Trust’).
3
[5] The sole trustee of the first applicant is A […] C[…] W […] (‘A[…]a’). The other
trustee, the late P[…] G[…] W[…] (‘P[…]’), who was also a beneficiary of the Trust, was the
husband of the first applicant, the son of the second respondent and the brother of the first
respondent. P[...] passed away on 15 March 2017.
[6] The surviving beneficiaries of the Trust are the first applicant and her children, K […]
J[…] W[…] (‘K[…]’), M[…] J[…] W[…] (‘M[…]’) and N[…] W[…] (‘N[…]’).
[7] In terms of the joint last will and testament of the first applicant and the late
Mr W[…], the first applicant is the sole beneficiary of his estate.
Personal circumstances of A[...] and the second and third applicants
[8] A[…] ’s evidence regarding her and her children’s personal circumstances, placed
before the Court at its request in a supplementary affidavit filed or about 1 December
2023, is as follows:
8.1 She had to secure employment after P [ …] passed away, in order to support
herself and her children;
8.2 She only managed to secure employment in 2019, and during the two years of
unemployment she incurred various debts , in a total amount of approximately
R857,674, which is one of the reasons she decided to sell the property;
8.3 She is currently employed as a payroll administrator and earns a monthly net
salary of R13 991.25;
8.4 She has suffered several health setbacks since the passing of P[...] , including
anxiety and chronic hypertension, and is on chronic mediation;
4
8.5 She is unable to afford medical aid and is not able to pay for any major
medical procedures for herself or her children, should same become necessary;
8.6 P[...] owned three properties at the time of his death. The first applicant
resides in one of the properties with her two youngest children. She had to sell
one of the other properties in 2019 to settle the debts referred to above, to pay
for her son’s tuition and to pay the balance owing on her motor vehicle;
8.7 The third property is tenanted, however the tenants have not paid rental since
September 2023, and she is accordingly in arrears with the monthly bond
instalments and municipal charges in respect of the property;
8.8 K[...] is studying in the USA. His scholarship was withdrawn, and she has
therefore had to fund his medical expenses, agent fees of R40,000,
accommodation and life insurance. He owes students fees of approximately
R200,000 to Illinois State University;
8.9 M[...] attends UCT where he is majoring in Film and Media Studies. The first
applicant pays for all his expenses; and
8.10 N[...] is in Grade 9 . The first applicant pays for all her educational and other
expenses.
[9] The second and third applicants are the co -purchasers of the property in terms of a
written agreement of sale concluded with the first applicant on 20 September 2022 (‘the
agreement of sale’), in terms of which they purchased the property for R900,000.
[10] The second and third applicants are both employed and have two minor children, aged
two and six years old.
5
Personal circumstances of the respondents
[11] The first respondent is Mr. N[…] W[…]:
11.1 He is 60 years old;
11.2 He is unemployed;
11.3 He is the son of the second respondent and the brother of P[...] ;
11.4 According to the first applicant, he continuously abuses alcohol and / or other
unknown substances; and
11.5 He requires psychological and emotional support, and has been reliant on the
first respondent and V[…] for the past nine years.
[12] The second respondent is Mrs. G […] W[...]:
12.1 She is 87 years old;
12.2 She is the mother of P[...] and the first respondent;
12.2 She receives a SASSA pension;
12.3 She is frail and in need of fulltime care for her personal hygiene needs, meals,
and transportation.
12.4 Her medical condition requires that she visit the local Health facility on a
monthly basis and she receives treatment at Groote Schuur Hospital.
12.5 She is on chronic medication. She uses both a walking stick and a wheelchair
to move around;
6
12.6 She is assisted by her daughter, V[…] W[...] (‘V[…]’), who helps her to move
around and who dispenses the various prescription medications to her on a
daily basis; and
12.7 She acknowledges that she may need frail care soon.
[13] The second respondent has lived at the property since 12 April 2014. On her version
the first time she became aware of the fact that the first applicant wanted her to vacate was on
8 August 2022.
[14] The first and second respondents (hereafter collectively referred to as ‘the
respondents’) receive support from various family members and friends:
14.1 Mr D […] W[...], the son of the second respondent and brother of the first
respondent (‘ D[...]’), is employed at Transnet and resides with his wife and
three children in a three -bedroom house in D […] Street, Parow, Cape Town.
D[...] pays for the respondents’ electricity, telephone bills, groceries and
transport;
14.2 Mrs V[…] B[…] (‘V[…]’) resides in the immovable property next door to the
respondents, together with her husband, Mr C […] B[…]. V[…] attends to the
second respondent’s daily needs
and manages her monthly pension and
disability grant;
14.3 Mr M[…] M[…], the second respondent ’s nephew, who is gainfully
employed;
7
14.4 Ms Aloma Jennifer Matthews, a friend of the second respondent.
Ms Matthews describes herself as a community activist residing in Hanover
Park, Cape Town;
14.5 Ms B[…] W[...], the granddaughter of the second respondent; and
14.6 Gatto (who would not provide his full names), who informed the Court that he
is a ‘customary legal advisor ’ and wished to represent the second respondent
at the first hearing on 9 October 2023 . As he did not have right of appearance ,
he was not permitted to do so.
[15] It appears that the respondents are the sole occupiers of the property.
The property
[16] The Trust is the registered owner of the property.
[17] In terms of the joint last will and testament of P[...] and the first applicant, A[...] is the
sole beneficiary of his estate.
The sale of the property to the second and third applicants
[18] The property was registered in the name of the first applicant on 29 November 2013.
[19] A[...], in her capacity as a trustee of the first applicant, decided to sell the property to
the second and third applicants to ensure that there are sufficient funds in place to pay for her
and her children’s needs, and in particular for her children’s education requirements.
8
[20] In terms of clause 16 of the agreement of sale, vacant occupation is to be given to the
purchasers against registration of transfer.
[21] The first and second respondents (hereafter collectively referred to as ‘the
respondents’) moved into the property in 2014 and remain in occupation thereof.
[22] Prior to 2014, the second respondent held secure tenancy in a house in Kewtown,
Athlone for more than 40 years with the City of Cape Town.
[23] The nature of the respondents’ occupation of the property is contested. The f irst
applicant avers that there is no valid lease or other agreement in terms of which the
respondents are entitled to remain in occupation of the property. The second respondent
contends that P[...] offered her and the first respondent an unregistered right of life -long
tenancy or habitatio in respect of the property. This is denied by the first applicant.
[24] In the supplementary replying affidavit filed on behalf of the Trust , A[...] claims for
what appears to be the first time , that the respondents’ right to occupy, prior to such right
being terminated, was that of precarium , and that the second respondent in particular was
afforded the right to occupy the property until such time as she would need additional or frail
care.
Notice to vacate
9
[25] A[...] ’s evidence is that on 8 August 2022, she engaged with the respondents
regarding a date on which they would vacate the property. The respondents however refused
to commit to vacating the property on any future date.
[26] The applicants contend that to the extent that the respondents had any rights to reside
at the immovable property (which they deny), those were terminated on a number of
occasions, but at least on the following dates:
26.1 8 August 2022 (verbally);
26.2 29 August 2022 ( first written notice);
26.3 30 September 2022 (second written notice); and
26.4 15 December 2022 (third written notice).
[27] The respondents have never paid any rental , nor contributed towards payment of rates
or municipal charges in respect of the property. The first applicant bears the cost of all
maintenance and repairs in respect of the property.
[28] The applicants contend that any right to occupy the property which the respondents
may previously have enjoyed has been terminated in writing, alternatively was again
expressly terminated by the first applicant on behalf of the Trust in the founding papers in this
application, and that the respondents are therefore in unlawful occupation of the property.
The first defence – Lifelong right of occupation
10
[29] The eviction application was postponed on 9 October 2023 for the respondents to
obtain legal representation. Adv Rudolph du Toit of the Cape Bar cam e on brief on a pro
bono basis in November 2023. He filed lengthy heads of argument and argued the matter on
behalf of the respondents. I am grateful to both Adv du Toit and Mr van Rensburg for their
comprehensive submissions, which were of great assistance to the Court.
[30] During argument , it was conceded on behalf of the respondents that their right to
occupy was a personal, and not a real right, and could be cancelled by the applicants.
[31] The respondents accordingly rely not on a real right of habitatio, but rather on an
unregistered personal right of occupation or precarium.
[32] The respondents assert that P[...] granted them an unregistered lifetime right of
occupation in respect of the property. This is disputed by the first applicant.
[33] In her supplementary replying affidavit A[...] states that the respondents were granted
right of occupation by way of precarium which would terminate when the second respondent
was in need of care.
[34] Whilst it is clear that the principal reason for the eviction sought is that the property
has been sold to the second and third respondents, and the Trust wishes to distribute the
proceeds as benefits to the beneficiaries, it also appears from the second respondent’s
evidence that she requires full time care on a daily basis.
[35] Even if the right of occupation was a lifetime right, as asserted by the respondents, it
is not in dispute that such a right may be terminated.
11
[36] On the evidence before me, it appears on the probabilities that such right has been
terminated on reasonable notice on a number of occasions.
[37] The respondents contend that these notices constituted notice to vacate the property,
and not notice to terminate the right to occupy the property . This strikes me as being a
legalistic argument which does not assist the respondents. In my view a notice to vacate by
implication includes the termination of the right to occupy.
[38] What appears to be an insurmountable obstacle with regard to the right asserted by the
respondents to remain in occupation of the property for their lifetime is the provisions of the
trust deed of the Trust, which governs the Trust, and limits the actions of the trustees.
[39] The Trust was established with the express purpose, in terms of clause 3.3 thereof, of
providing for the welfare and maintenance of the beneficiaries of the Trust.
[40] It is trite that the trustees of a trust are duty bound to act jointly, and to act in the
interests of the beneficiaries of the trust , and not to do anything which undermines the
purpose of the trust.
[41] The trustees of the Trust c ould not validly conclude an agreement in terms of which
the respondents, who are not beneficiaries of the Trust, would have lifelong rights or benefits
over the property, a major asset of the Trust.
[42] Such an agreement would prevent the Trust from freely dealing with or realising such
asset for the benefit of the beneficiaries, which conflicts with the stated purpose of the Trust.
12
[43] I am persuaded by the argument on behalf of the Trust, namely that P[...] , as an
experienced attorney, if he intended to create a lifelong right of occupation in favour of the
respondents, he would in all probability not have:
43.1 caused the property to be registered in the name of the Trust, of which the
respondents are not beneficiaries; or
43.2 concluded an oral agreement for the creation of a personal servitude in favour
of the respondents, which he would have known is prohibited by section 2 of
the Alienation of Land Act , 68 of 1981 1, and section 5 of the General Law
Amendment Act, 50 of 1956.2
[44] On the second respondent’s version, the alleged personal servitude entitling her to
occupy the property was in terms of an oral agreement, without any form of payment. This is
not legally competent in terms of the relevant statutory provisions cited above.
[45] I am therefore not satisfied that the respondents have proven that they have an
unregistered lifetime right to remain in occupation of the property. They are accordingly in
unlawful occupation of the property.
The respondents’ second defence – Knowledge of the right of occupation
[46] The second respondent alleges that because the second and third applicants, as
purchasers of the property, were at all material times aware of the respondents ’ occupation of
the property, they must have been aware of the right of habitat io granted to the responde nts,
prior to offering to purchase the property.
1 Which provides that an alienation of land shall not be of any force or effect unless it is contained in a deed of
alienation signed by the parties thereto or by their agents acting on their written authority.
2 Which requires that a donation, which this could only have been, of future entitlement , which includes an
interest in land, must be inwriting and signed by the parties.
13
[47] The second respondent further contends that an unregistered right of habitatio is still
binding on the second and third applicants as purchasers.
[48] To the extent that the trustees are required to act jointly, the second respondent avers
that as A[...] was at all material times aware of the respondents’ being granted the right to
occupy, and never countermanded the granting of these rights , she impliedly authorised P[...]
to act on her behalf in this regard.
[49] The second and third applicants however contend that all they knew at the time of
purchasing the property was that the respondents were in unlawful occupation thereof. In
terms of the sale agreement, they required the Trust to give them vacant occupation against
registration of transfer.
[50] To my mind t he second and third applicants’ knowledge of the respondents’
occupation of the property does not equate to knowledge of the alleged personal servitude of
habitatio. There is no record of the alleged servitude , and there is no factual basis set forth to
support the respondents’ contention that they had actual or effective notice thereof.
[51] According to the second and third applicants, the only knowledge which they had
about the respondents’ occupation is what they were told by the first applicant, who denies
being aware of any lifetime right to occupy the property.
[52] In all the circumstances I am satisfied that any right which the respondents had has
been lawfully terminated on proper notice by the first applicant on behalf of the Trust. The
respondents have been aware of the Trust’s intent ion to evict them for almost eighteen
14
months, and it cannot be argued that they have not had adequate notice of the termination of
any right which they may have had to occupy the property.
Applicable law
[53] In any eviction of an unlawful occupier from residential property the starting point is
section 26(3) of the Constitution which provides that '(n)o one may be evicted from their
home, or have their home demolished, without an order of court made after considering all
the relevant circumstances'. Accordingly, courts seized with eviction matters are enjoined by
the Constitution to consider all relevant circumstances.
3
[54] The prohibition in s 26(3) was effected through the enactment of PIE, which goes
further and enjoins the courts to order an eviction only 'if it is of the opinion that it is just and
equitable to do so, after considering all the relevant circumstances' as contemplated in ss 4(6)
and (7)
4 and s 6(1).
[55] In Port Elizabeth Municipality
5 the Constitutional court emphasised that a court must
take an active role in adjudicating such matters, stating as follows:
3 Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC) at para [40].
4 These subsections provide that:
'(6) If an unlawful occupier has occupied the land in question for less than six months at the time when
the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering all the relevant circumstances, including the rights and needs
of the elderly, children, disabled persons and households headed by women.
(7) If an unlawful occupier has occupied the land in question for more than six months at the time
when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all the relevant circumstances, including, except where
the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available
or can reasonably be made available by a municipality or other organ of state or another land owner
for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children,
disabled persons and households headed by women.'
5 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para [36].
15
'The court is thus called upon to go beyond its normal functions and to engage in active
judicial management according to equitable principles of an ongoing, stressful and law -
governed social process. This has major implications for the manner in which it must deal
with the issues before it, how it should approach questions of evidence, the procedures it may
adopt, the way in which it exercises its powers and the orders it might make. The Constitution
and PIE require that, in addition to considering the lawfulness of the occupation the court
must have regard to the interests and circumstances of the occupier and pay due regard to
broader considerations of fairness and other constitutional values, so as to produce a just and
equitable result.'
[56] Furthermore, the apex court in Pitje v Shibambo 6 held that courts are not allowed to
passively apply PIE and must 'probe and investigate the surrounding circumstances'.
[57] In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
7 the Supreme Court
of Appeal held that there are two separate enquires that must be undertaken by a court:
'First, it must decide whether it is just and equitable to grant an eviction order having regard
to all relevant factors. Under s 4(7) 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 occupiers will ordinarily be limited in duration.
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 that order.'
[58] The second enquiry, which the court must undertake before granting an eviction order,
is to consider —
'what justice and equity demand in relation to the date of implementation of that order and it
must consider what conditions must be attached to that order. In that second enquiry it must
consider the impact of an eviction order on the occupiers and whether they may be rendered
6 2016 (4) BCLR 460 (CC) ([2016] ZACC 5) para [19].
7 2012 (6) SA 294 (SCA) at paras [11] to [25].
16
homeless thereby or need emergency assistance to relocate elsewhere. The order that it grants
as a result of these two discrete enquiries is a single order. Accordingly, it cannot be granted
until both enquiries have been undertaken and the conclusion reached that the grant of an
eviction order, effective from a specified date, is just and equitable. Nor can the enquiry be
concluded until the court is satisfied that it is in possession of all the information necessary
to make both findings based on justice and equity.'8
[59] In Occupiers, Berea v De Wet NO and Another9 the Constitutional Court held that:
‘The court will grant an eviction order only where: (a) it has all the information about the
occupiers to enable it to decide whether the eviction is just and equitable; and (b) the court is
satisfied that the eviction is just and equitable, having regard to the information in (a). The
two requirements are inextricable, interlinked and essential. An eviction order granted in the
absence of either one of these two requirements will be arbitrary. I reiterate that the enquiry
has nothing to do with the unlawfulness of occupation. It assumes and is only due when
the occupation is unlawful.’
10
[60] Should section 4(7) of PIE apply , and where there is a risk that homelessness may
result if an eviction order is granted, the availability of alternative accommodation becomes a
relevant circumstance that must be taken into account.11
[61] A court will not be able to decide the justice and equity of an eviction without hearing
from the local authority upon which a duty to provide temporary emergency accommodation
may rest. In such an instance the local authority is a necessary party to the proceedings.
Accordingly, where there is a risk of homelessness, the local authority must be joined.
12
8 Id
9 2017 (5) SA 346 (CC) at para [48].
10 Id at para [48].
11 Occupiers, Berea supra at para [61], and the authorities as cited at footnote 52.
12 Id.
17
[62] Of particular relevance to the present matter is the position as stated by the
Constitutional Court, namely that ‘ private entities are not obliged to provide free housing for
other members of the community indefinitely, but their rights of occupation may be
restricted, and they can be expected to submit to some delay in exercising, or some
suspension of, their right to possession of their property in order to accommodate the
immediate needs of the occupiers.’13
[63] As observed by Wallis J in Changing Tides, where the party seeking the eviction is a
private entity, as in the present matter, the availability of alternative land bears not on the
question of whether an eviction order should be granted, but rather on the date of eviction and
the conditions attaching to such an order. Should alternative accommodation be available, the
date of eviction may justifiably be sooner than were the converse to apply.
14
[64] The Court further stated that:
‘This does not mean that courts may disregard the question of the availability of alternative
land or accommodation — that would ignore the express requirements of s 4(7) — but the
weight this factor will carry in making the initial decision whether an eviction order is just
and equitable may not be great.’15
[65] Accordingly the availability of alternative land or accommodation is relevant to both
enquiries into what is just and equitable. That link between the first and second stages of the
enquiry underpins the numerous decisions in which our courts have held that, before
13 Changing Tides supra at para [18].
14 Id.
15 Id
18
determining whether an eviction order should be granted, the relevant authorities must be
engaged in order to ensure that they will discharge their obligations to the evictees.16
[66] The recent decision of the Constitutional Court in Grobler v Phillips & Others 17
involved similar facts to the present matter , and the findings of the apex Court are both
apposite and instructive.
[67] In the Grobler matter, the issue which arose for determination was whether an 84 -
year-old widow and her disabled son ought to be evicted from a home in which she had lived
she was 11 years old, and whether the appellant’s rights of ownership of the property in
question ought to be vindicated by such an eviction order.
[68] One of the issues underpinning the eviction application was the effect, if any, of
reliance upon an oral right of habitatio or usus upon the entitlement of an owner to an order
of eviction in terms of the Act. In that matter it was undisputed that the occupiers had been
granted a lifelong right of occupation by the previous owners.
[69] The third issue related to the exercise of the high court’s discretion not to order the
eviction of the first respondent on the basis that such an order was not just and equitable. At
issue in this regard was the nature of the discretion, the Constitutional Court’s entitlement to
interfere with the exercise of that discretion and, to the extent it may, whether grounds for
interference had been established.
16 Id at para [21].
17 2023 (1) SA 321 (CC).
19
[70] The Constitutional Court, after referring to its judgment in Snyders ,18 affirmed its
stance that ESTA was not enacted to provide security of tenure to an occupier in the house of
his or her choice and held that as PIE was also enacted to prevent unfair evictions, this
principle is equally applicable to PIE matters.19
[71] Based on the aforementioned, it is now settled law whilst the question whether the
constitutional rights of the unlawful occupier are affected by the eviction is one of the
relevant considerations, the wishes or personal preferences of the unlawful occupier are not
relevant.
[72] An unlawful occupier therefore does not have the right to refuse to be evicted on the
basis that she pref ers or wishes to remain in the property that she is occupying unlawfully.
An unlawful occupier ’s right to adequate housing in terms of section 26 of the Constitution
does not give her the right to choose exactly where she wants to live.20
[73] Referring to the principles set out by the Supreme Court of Appeal in Ndlovu
21 the
Court in Grobler emphasised that PIE was not designed for the expropriation of land from a
private landowner from whose property the eviction is being sought.
[74] In Ndlovu the Court emphasised that the landowner retains the protection of sect ion
25 of the Bill of Rights.
22
18 Snyders v De Jager 2017 (3) 545 (CC).
19 Grobler supra at paras [35] and [35].
20 Id at para [36].
21 Ndlovu v Ngcobo, Bekker v Jika 2003 (1) SA 113 (SCA).
22 Grobler at para [37].
20
[75] As held by the Constitutional Court in Blue Moonlight,23 the right to adequate housing
guaranteed under section 26(2) of the Constitution places a positive obligation on the State,
and not on private landowners, to realise such right.
[76] In determining whether it is just and equitable to grant an eviction order, the capacity
of the landowner to provide alternative accommodation and the peculiar circumstances of the
occupier are relevant considerations, but do not impose an obligation on the property owner
to provide such accommodation.
24
[77] As held by the Constitutional Court in Hattingh
25, and referred to in Grobler 26 court
in determining whether it is just and equitable that an eviction order should be granted, must
determine the competing interests of both t he property owner and the unlawful occupier to
‘infuse justice and equity in the inquiry.’
The litigation history and the availability of alternative accommodation
[78] The application for eviction first presented before me on 9 October 2023. The
respondents were represented at the time by Ms C Makua of the Legal Aid Board, however
when the mater was to be heard the second respondent informed the Court that she wished to
terminate the services of Ms Makua, and wanted to be represented by a Mr Gatto, who
purported to appear on her behalf. Ms Makua was also present in Court.
23 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104
(CC) at para [31].
24 Grobler at para [38].
25 Hattingh v Juta 2013 (3) SA 275 (CC) at para [32].
26 At para [39].
21
[79] Mr Gatto described himself a s a ‘customary law adviser.’ It became clear after further
questioning that he did not have right of appearance. I the n explained to the second
respondent that the matter should be postponed for her to obtain alternative legal
representation. The first respondent was not present in Court.
[80] An order was granted postponing the matter for hearing on 22 November 2023.
Provision was made in the order for the respondent to approach the Women’s Legal Centre on
or before 13 October 023, and should they not be willing or able to assist the respondents,
directing that a member of the Cape Bar be appointed on a pro bono basis to represent the
respondents (‘the October order’). The respondents were further granted leave to deliver
further or supplementary answering affidavits by 13 November 2023, to which the applicants
could reply by 20 November 2023. A copy of the order was to be served on the fourth
respondent by no later than 10 October 2023.
[81] In terms of paragraphs 7 and 8 of the order, the fourth respondent, in consultation with
the Department of S ocial Development (should such consultation be deemed by the fourth
respondent to be necessary), was directed by no later than November 2023 to deliver a report
to the court, confirmed on affidavit by an appropriate official of the f ourth respondent,
detailing the accommodation that it would make available to the first to third respondents, in
a location as close as feasibly possible to the property currently occupied by them, should an
eviction order be granted.
[82] The fourth respondent was further directed to set out in such report when the
accommodation would be available, and to undertake to make same available. The report was
further required to deal with the issue of proximity and explain why the location and form of
22
accommodation had been selected. Further provision was made for the report to set out the
steps taken from the date of service of the October order until the filing of the report to
engage with the respondents through the ir legal representatives, in person, or through family
members or by any other means that may appear appropriate.
[83] The respondents w ere granted leave to deliver affidavits dealing with the contents of
the fourth respondent’s report, and specifying any objections thereto by 13 November 2023,
to which the respondent was entitled to respond any further affidavit to be delivered by no
later than 21 November 2023.
[84] On 12 October 2023 and after receiving an affidavit deposed to by Ms Makua on 11
October 2023, I issued a written directive in which she stated that certain members of the
public appeared to have interfered with her representation of the second respondent.
[85] In terms of the directive, the family members of the second respondent were directed
not to interfere with the second respondent obtaining legal representation and furnishing her
legal representatives with proper instructions. The applicant’s attorney, Mr van Rensburg,
was requested to take the necessary steps to ensure that the directive was brought to the
attention of the daughters of the second respondent, V[…] and E[…], who are not parties to
these proceedings.
[86] The Court is indebted to Mr van Rensburg who complied fully with all requests , was
at pains to ensure that the relevant parties received service of the Court order and directive ,
addressed correspondence to the fourth respondent with details of the respondents’ family
members and completed the relevant questionnaires for the fourth respondent . Mr van
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Rensburg sought out attorneys who were willing to act for the respondents on a pro bono
basis and to brief counsel pro bono.
[87] The second respondent completed a personal circumstances questionnaire for the
fourth respondent. She stated that she would be rendered homeless if evicted and when asked
what steps she had taken to obtain alternative accommodation she answered as follows:
‘It has been difficult for me to even talk about alternative accommodation. Because I've been
taken out of my home of 40 years by my son and daughter -in-law with promise of me they
allowed to move out by coffin. Now I am care dependent on my daughter and cannot entertain
the idea of another person touching my body. My daughter's house is full and it's not her
property. The property belongs to my husband's family and the property is shared by more
than one household and too many children and won't be able to move with walker or
wheelchair and won't be able to have a private room or space to be washed. If the council can
give my own flat back I will stay in the flat if you carry me up and stay up until I die. Having
to answer this question makes my head spin, my chest tight and give me palpitations. My
daughter had refused many job opportunities because she had promised her brother and
myself that she will take care of me and all she gave me my final wish before I close my eyes.
So if I'm evicted then I need to make sure my daughter gets a job at an old age home to make
sure she is the only one to touch my body. But I pray that the judge will see A […] is lying and
not evict me. The only arrangement I made that I can depend on is the arrangement with my
God to allow to die before the eviction date if the judge cannot see through A[…].’
[88] This response illustrates just how difficult and heart wrenching this matter has been.
[89] On 7 November 2023, the fourth respondent filed a report in terms of which it
undertook to provide the respondents with an emergency housing kit and requested a period
of 18 months to make a structure available at an emergency accommodation site.
24
[90] On 13 November 2023 Ms Ebrahim of M.B Ebrahim Attorneys came on record as the
attorney for the first and second respondents. On the same day a supplementary affidavit
deposed to by the second respondent was filed.
[91] The respondents’ personal circumstances are repeated in such affidavit, and it is
alleged by the second respondent that the first respondent, who has never been diagnosed
with a mental disorder, does not have the requisite capacity to participate in the current
proceedings or provide Ms Ebrahim with instructions. The second respondent avers that she
also deposes to the affidavit on behalf of the first respondent and as his ‘de facto curator.’
[92] In a supplementary replying affidavit the first applicant tendered, if an agreement
could be reached without the matter being determined by the Court, to make some of the
proceeds of the sale of the property available to assist the respondents with accommodation in
a care facility and for the payment of a carer.
[93] In the founding affidavit, A[...] alleges that the respondents have sufficient resources
to find alternative accommodation , and that she has furthermore offered for the second
respondent to move in with her, and to employ a carer to assist her.
[94] A[...] denies that the first respondent lacks mental capacity and further denies that the
second respondent has authority to depose to an affidavit on the first respondent’s behalf.
[95] The first respondent has not deposed to any affidavits in this matter, including any
confirmatory affidavits . There is no independent medical evidence confirming his lack of
mental capacity.
25
[96] In the supplementary affidavit deposed to by A[...] on 15 November 2023, she states
that P[...] never gave the first respondent consent to move into the property with the second
respondent. She avers that the second respondent moved into the property on the basis of a
precarium and at the request of V[…], who wanted the second respondent to live next door to
her to help take care of her children.
[97] Lastly, it is pertinent that in her supplementary answering affidavit the second
respondent admits that the first respondent abuses alcohol. A[...]’s evidence is that the family
members of the first and second respondents would be willing to care for her if she did not
insist on the first respondent, who apparently becomes violent and aggressive when under the
influence, moving with her.
[98] When the matter was argued on 22 November 2023, Mr Exford of the Human
Settlements Directorate – Informal Settlements appeared in person on behalf of the fourth
respondent (‘the City’), and informed the Court as follows:
98.1 The fourth respondent usually offers as alternative accommodation for
unlawful occupiers facing homelessness an emergency shelter with communal
facilities at a TRA (temporary relocation area). The City will erect an 18 m2
structure using metal sheeting and a wooden door and window, with one toilet
per five families, and one water standpipe per 25 families;
98.2 The other scenario is what he described as the ‘Rolls Royce’, the best that the
City can offer, namely a 26-30 m
2 unit with individual toilet, washbasin, and
26
electrification in an IDA (integrated development area) . This unit was
described by Mr Exford as a ‘very high standard home with everything that
one needs for daily life’;
98.3 The City had identified a small pocket of land off the M5 to establish a
settlement after being placed under significant pressure by our Court to
provide accommodation;
98.4 The project has commenced, and the IDA has ‘formal development services in
the ground; and
98.5 If all goes according to plan and there is no political interference , at the end of
May 2024 one of the units would be made available to the first and second
respondents.
Is it just and equitable to grant an order evicting the first and second respondents?
[99] The respondents aver that should the Court find that their rights of occupation were
validly cancelled, an order of eviction would not be just and equitable considering the
following facts and circumstances:
99.1 The only income which the respondents receive is their SASSA grant and
pension, and they are accordingly not able to procure accommodation like the
property;
27
99.2 The second respondent is 88 years old, has failing eyesight and is wheelchair
bound. The first respondent is 60 years old and unemployed. He suffers from
alcoholism and according to the second respondent he is mentally challenged.
99.3 They are therefore vulnerable persons, as contemplated by the provisions of
section 7 of the Act, as they are elderly, disabled and live in a woman -headed
household;
99.4 They need to remain in the property as it is next door to V[…], who acts as the
second respondent’s caregiver. The second respondent is not able to care for
the first respondent on her own; and
99.5 They are not cause of their occupation becoming unlawful. The termination of
their right to occupy is solely because of the Trust selling the property and
being required to give vacant occupation to the purchaser.
[100] The counter argument on behalf of the Trust is that:
100.1 despite the first applicant making several offers to the respondents, which
should not be construed as imposing an obligation on her to provide
accommodation, none of the offers were properly considered by the second
respondent or by her attorney/s;
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100.2 The second and third applicants, who have acquired rights to occupy the
property and who have two minor children, are required to vacate their rental
accommodation, and yet cannot occupy the property which they paid for;
100.3 A just and equitable order should not be translated to mean that only the rights
of the unlawful occupier are given consideration and that those of the property
owner should be ignored;
100.4 An unlawful occupier does not have a right to remain in the property that he or
she is unlawfully occupying, and his or her personal preference in this regard
is irrelevant;
100.5 In terms of section 4(7) of the Act, the obligation to provide alternative
accommodation lies with the ‘municipality, or organ of state or another
landowner.’ Section 26(2) of the Constitution guarantees the right to access to
adequate housing and places a positive obligation on the State to realise such
right; and
100.6 The Act was not enacted to allow for expropriation of land from a private
landowner, who has no obligation to provide free housing.
[101] I am satisfied that t he applicants have shown a clear need for possession of the
property and the Trust, as the registered owner, also has a right to constitutional protection.
29
[102] The respondents do not have a legal right to remain in the property. Any right which
they may have had has been clearly an unequivocally terminated and they are therefore
unlawful occupiers as envisaged in PIE.
[103] In any event, as was the case in Grobler27, the right to occupy, if indeed granted to the
second respondent for the rest of her life by P[...], was never reduced to writing, nor
registered against the title deed and is therefore not binding or enforceable against successive
owners.
[104] Accordingly the second respondent’s belief that this confers on her a right to remain
in occupation of the property indefinitely is mistaken.
[105] Our jurisprudence is now settled that w here the owner of private property
demonstrates a need for possession and that there is no valid defence to that claim, it will be
just and equitable to grant an eviction order. In Ndlovu v Ngcobo
28 Harms JA made the point
that ownership and the lack of any lawful reason to be in occupation are important factors in
the exercise of the court's discretion.
[106] Based on the facts and circumstances placed before me, I am of the view that it is just
and equitable that the first and second respondents be evicted from the property.
[107] It is however clear that both the first and second respondents have the status of
vulnerable persons, as envisaged in PIE. This much was fairly conceded by Mr van Rensburg
in argument.
27 At para [17].
28 Above at note 22.
30
[108] A disquieting feature of this matter, which was also of significant relevance in
Grobler, is that t he first applicant through A[...] has attempted to engage with the second
respondent and has made reasonable offers to accommodate her in her home, with the
assistance of a carer, or in an appropriate care facility, and that these offers have been rejected
out of hand. This is highly relevant and an important factor to be taken into consideration in
determining the justice and equity of granting an eviction order.
[109] I am enjoined by precedent and our constitutional prescripts to balance the rights of
both the Trust (and specifically the beneficiaries thereof) as the owner of the property and the
respondents as occupiers.
[110] In determining a just and equitable date for eviction, and what conditions , if any
should apply to such eviction, I have had due regard to the possibility of other family
members potentially being able to accommodate the respondents, or at the very least the
second respondent, and the undertaking by the City to accommodate the first and second
respondents in a suitable and high standard unit in the newly developed IDA off the M5, from
the end of May 2024.
[111] I am mindful of the significant emotional hardship that the respondents will suffer as a
result of being moved from their family, community and support structure , and the
devastating impact that this eviction will have on an 88 year old woman. No evidence was led
of the distance from the property to the new settlement.
31
[112] However as set forth i n Baron and others v Claytile (Pty) Limited and Another ,29
which involved an eviction in terms of the Extension of Security of Tenure Act 62 0f 1997, it
is incumbent on the City to provide suitable housing to the respondents. It must however be
within the City’s available resources in terms of section 26(2) of the Constitution.
[113] The applicants in Baron urged the Court to make a value judgment as to what is just
and equitable, which includes consideration of the distance from the applicants’ places of
employment and the distance from social amenities, such as schools, clinics and shopping
centres.
[114] As stated by the Constitutional Court in Baron:
‘Cognisant that the duty is one of progressive realisation, I accept that the housing units at
Wolwerivier qualify as suitable alternative accommodation which is provided by the City
within “its available resources”.’
[115] I am cognisant that the accommodation offered by the City is far from ideal, however
based on the submissions made at the hearing by Mr Exford, it would appear that this is the
best accommodation which the City is in a position to offer at this time.
[116] After considering the resource dynamics of the parties and their peculiar personal
circumstances, I have endeavoured to craft the order in such a manner as to mitigate, as far as
possible, the adverse consequences of the evi ction, by including the provision of a carer for
the second re spondent at the cost of the Trust, and by directing that the Trust shall bear the
transport costs of V […], who has acted as the second respondent’s carer, visiting the
29 2017 (5) SA 329 (CC) at para [38].
32
respondents at their new home twice a week, and by bearing the costs of the second
respondent visiting her regular clinic once a month.
[117] The issue of costs was not canvassed at the hearing. Needless to say , in the
emotionally fraught and peculiar circumstances of this case, I am not inclined to grant any
costs order against these vulnerable occupiers, whose lives will already be devastated by the
order I intend to make, whatever mitigatory steps may be put in place.
Order
[118] In the circumstances, the following order shall issue:
(a) The first and second respondents and all those occupying through them (“the
occupiers”) are ordered to vacate the immovable property situated at 2[…]
T[…] R[…], B[…], Athlone, Cape Town, Western Cape (‘the property’) by no
later than 30 May 2024, in order to take occupation of a suitable unit at the
fourth respondent’s IDA referred to above;
(b) The fourth respondent shall ensure that the unit made available for occupation
by the first and second respondent’s has wheelchair access and is suitable for a
disabled individual;
(c) Should the first occupiers fail to vacate the property by the date set out in
paragraph (a), the Sheriff of this Court or the Sheriff of the Magistrate’s Court
or their deputies are authori sed and directed to evict the occupiers by 15 June
2024;
33
(d) The first applicant shall employ a duly qualified and experienced carer to assist
the second respondent at her home for eight hours a day;
(e) The first applicant shall bear the costs of transport for the second respondent’s
daughter, V[…], to visit her at her new home twice a week, if required by the
second respondent;
(f) The first applicant shall bear the costs of transport for the second respondent to
visit her regular clinic once a month, if required by the second respondent; and
(g) There shall be no order as to costs.
HOLDERNESS, AJ
APPEARANCES
For the First, Second and
Third Applicants: Mr van Rensburg
Van Rensburg & Co Attorneys
For the Respondent: Adv Rudolph du Toit
Instructed by: Ms M Ebrahim of MB Ebrahim Attorneys