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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 243/21
In the matter between:
WILLEM GROBLER Applicant
and
CLARA PHILLIPS First Respondent
JOHAN VENTER N.O. Second Respondent
HELDERBERG MUNICIPALITY Third Respondent
Neutral citation: Grobler v Phillips and Others [2022] ZACC 32
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgment: Tshiqi J (unanimous)
Heard on: 10 May 2022
Decided on: 20 September 2022
Summary: Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 — section 4(7) — factors to be taken into
account — eviction not unlawful
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the
High Court of South Africa, Western Cape Division, Cape Town) the following order
is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of A ppeal is set aside and substituted
with the following:
“3.1. The applicant, Mr Willem Grobler, is directed to purchase a
two-bedroom dwelling in a good condition (the dwelling).
3.2. The dwelling shall comply with the following requirements:
3.2.1. It shall have at least two bedrooms.
3.2.2. It shall have a lounge, kitchen and a bathroom.
3.2.3. The dwelling must be situated within a radius of
5 kilometres from [....] D [....] Street, Somerset West.
3.2.4. Regard being h ad to the first respondent,
Mrs Clara Phillips’ age and Mr Adam Phillips’ disability, the
dwelling shall be easily accessible.
3.3. It is declared that once the dwelling is registered in the name of
Mr Willem Grobler, Mrs Clara Phillips, and her son, Mr Adam Phillips,
shall have the right to reside in the dwelling for the rest of Mrs Clara
Phillips’ life, and Mr Willem Grobler is directed to register the
aforementioned right against the title deed of the dwelling.
3.4. Mr Willem Grobler is directed to arrange and pay for all the
relocation costs of Mrs Clara Phillips and Mr Adam Phillips, including
the removal and transportation costs of their furniture, person al goods
and effects to the dwelling.
3.5. Mrs Clara Phillips and Mr Adam Phillips will be liable for the
costs of municipal services that are rendered by the municipalit y to
them in respect of the dwelling and will be liable for the reasonable
maintenance costs of the interior of the dwelling.
3.6. Mrs Clara Phillips and Mr Adam Phillips are directed to comply
with all municipal re gulations in respect of the dwelling and if
applicable, the body corporate house rules.
3.7. If Mrs Clara Phillips and Mr Adam Phillips do not take
occupation of the dwelling within six months from the date of
registration of the dwelling in the name of Mr Willem Grobler, Mrs
Clara Phillips and Mr Adam Phillips and all other occupants are
directed to vacate the premises known as [....] D [....] Street, Somerset
West, failing which , the Sheriff of the Court is directed to evict them
from the premises.
3.8. There shall be no order as to costs.”
JUDGMENT
TSHIQI J (Kollapen J, Madlanga J, Majiedt J , Mathopo J, Mhlantla J, Mlambo AJ,
Theron J, and Unterhalter AJ concurring):
Introduction
[1] The question that arises in this application is whether it is just and equitable ,
as envisaged by section 4(7) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 1 (PIE), to grant an order directing the first respondent,
Mrs Clara Phillips and her son, Mr A dam Phillips, who has a physical disabi lity, to
vacate their current home.
1 19 of 1998.
Background
[2] The applicant is Mr Willem Grobler, a businessman who resides at
21 Aberdeen Street, Somerset West, Western Cape Province. Mrs Clara Phillips,
who is currently 85 years old, has been residing at [....] D [....] Street, Somerset
West, Western Cape Province (the property), that is the subject of the dispute , since
she was 11 years old. She began living on the property in 1947 when the property
had formed part of a larger farm at the time . The property is situated approximately
500 metres from Mr Grobler’s own home in Somerset West, and is thus within
walking distance from his home. Mr Grobler bought the property at a public auction
because he wants his elderly parents to reside in it. The property was registered in
Mr Grobler’s name on 15 September 2008 and, as is apparent from the facts below,
his wishes to accommodate his parents in it have not yet been realised.
[3] The second re spondent is Mr Johan Venter N.O., an adult attorney who acts
in his representative capacity as the curator bonis of Mr A dam Phillips. Mr Venter did
not oppose any of the proceedings leading up to this application and abides the
outcome of this application. For the sake of convenience, and where appropriate, the
reference to “Mrs Phillips” should be read to refer to both Mrs Clara Phillips and Mr
Adam Phillips.
[4] After Mr Grobler had purchased the property, he met with Mrs Phillips on
three separate occasions and informed her that he required her to vacate the
property. During the meetings, Mr Grobler advised Mrs Phillips that he was prepared
to pay a certain amount towards her relocation, alternatively, he was prepared , at his
cost, to provide alternative accommodation for her. Mrs Phillips did not accept any of
Mr Grobler’s proposals. She stated that she was not prepared to move out of the
property.
[5] On 27 November 2008, Mr Grobler’s attorneys requested Mrs Phillips, in
writing, to vacate the property by 31 January 2009. She refused and alleged that she
enjoyed an oral right of life -long habitatio,2 granted by a previous owner, which was
2 A right to habitatio, alternatively, habitation is a lifelong right to live in a house owned by another.
See Hendricks v Hendricks [2015] ZASCA 165; 2016 (1) SA 511 (SCA) at para 6 where it states that
enforceable against Mr Grobler. On 5 May 2009, Mr Grobler’s attorneys again made
an offer to Mrs Phil lips in writing, that Mr Grobler would make available to her, at his
cost, a two-bedroom flat where she could reside for the rest of her life. That offer was
also rejected. On 18 May 2009, the offer was repeated in writing by Mr Grobler’s
attorneys but was once again rejected.
Litigation history
Magistrates’ Court
[6] After it became apparent that the offers were not acceptable to Mrs Phillips,
Mr Grobler commenced proceedings in the Somerset West Magistrates’ Court .
Relying on the relevant provisions of PIE , he applied for Mrs Phillips’ eviction and
alleged that she was an unlawful occupier of his property. Both the letters of
5 May 2009 and 18 May 2009 were attached to Mr Grobler’s founding affidavit.
Mrs Phillips opposed the application. In her answering affidavit, she relied on the oral
right of habitatio which she alleged had been given to her by previous owners. She
also alleged that she was a protected occupier in terms of PIE, and that an eviction
order should not be granted. The application was referred to trial.
[7] The Magistrates ’ Court rejected Mrs Phillips ’ defence based on the alleged
right of habitatio and held that Mr Grobler had proved his right of ownership over the
property. The Magistrates’ Court accepted the undisputed evidence that the alleged
right of life-long habitatio was invalid and unenforceable against Mr Grobler as it was
not registered a gainst the title deed. The Court held that the only right Mrs Phillips
had in respect of the property was the right of occupancy which , according to the
Court, could not be equated to a right of habitatio or a usufruct. The Court also held
that at the time of the proceedings, Mrs Phillips no longer had Mr Grobler’s consent
to occupy the property and had no right in law to occupy it. The Court granted an
order of eviction against Mrs Phillips. The date of eviction was not immediately
considered by the Court and the matter was postponed in order to consider an
appropriate eviction date.
“the right to habitation as a servitude is a limited real right which conf ers on the holder the right to
dwell in the house of another, without detriment to the substance of the property”.
[8] Before the matter was postponed, Mr Grobler’s counsel informed the Court
that although Mrs Phillips’ counsel had expressed an intention to apply for leave to
appeal against the eviction order, Mr Grobler was willing to assist Mrs Phillips with
her relocation costs. He further informed the Court that Mr Grobler was willing to
allow Mrs Phillips to continu e to reside on the property for another two months and
that when she had relocated, he would bear the reasonable costs of accommodation
in a retirement centre for a period of 12 months. Mr Grobler’s counsel informed the
Court further that those costs would be limited to R 4000 per month.
[9] When the matter next came before Court , it became apparent that this offer
was also not accepted. On this date, and in order to decide on the suitable eviction
date, the Court heard evidence on whether alternative acco mmodation for Mrs
Phillips was available. It also invited counsel to address it on the fact that Mrs Phillips
is residing on the property with her disabled son. It further referred the parties to the
offer that was made during the previous Court proceeding s. The Court was
addressed on Mrs Phillips personal circumstances, including her age and the
duration of her residence on the property. It became necessary for the Court to
postpone the matter again in order to hear evidence of the local social services
department and the local municipality regarding the availability of alternative
accommodation. When the proceedings resumed, the Court was presented with two
reports from the local social services depa rtment and heard evidence from a social
worker who was the author of one of the reports. The reports and the oral evi dence
dealt with suitable state-funded accommodation in the area. After considering all the
relevant factors, the Court ordered that Mrs Ph illips should vacate the premises on
30 August 2017. In making the decision on the eviction date, the Court took into
account the fact that its eviction order had been granted a year earlier , on 2 August
2016.
High Court
[10] Mrs Phillips appealed to the Full Court of the Western Cape Division of the
High Court, Cape Town ( High Court). In that Court, not only did Mrs Phillips invoke
the provisions of PIE but also relied on a new and alternative ground of appeal,
namely that she was an occupier in terms of the provisions of the Extension of
Security of Tenure Act3 (ESTA).
[11] The High Court upheld the appeal. The Court held that a change of
Mrs Phillips status from that of a “lawful occupier” to an “unlawful occupier” could not
be achieved without giving her reasonable notice to terminate the right to occupy the
property. The High Court found that the notice of termination that was given on
27 November 2008 for her to vacate the property b y 31 January 2009 was too short
and, accordingly, unreasonable. It also held that Mr Grobler had no right in law to
launch the proceedings before dealing in a meaningful and precise manner with what
it considered to be Mrs Phillips rights, and thereby placing her in a position of being
an unlawful occupier. The High Court see med to have in mind proceedings such as
an application for a declaratory order. 4 The High Court further held that Mr Grobler
had failed to show that Mrs Phillips was an unlawful occupier in terms of PIE.
Regarding the reliance on ESTA, the High Court held that the property only ceased
to be a farm in 2001 and that , accordingly, ESTA was applicable. It also held that
Mrs Phillips was protected under ESTA. The High Court invoked the provisions of
ESTA despite the contents of the pre-trial agreement in which the parties had agreed
that the matter would be determined solely in accordance with the provisions of PIE.
The High Court deviated from the terms of the pre-trial agreement on the basis that it
was not persuaded on the affidavits filed by the parties that the provisions of ESTA
were not applicable to the matter. What also seems to have influenced the High
Court’s reasoning was that Mrs Phillips had not been able to assert her rights to the
property in terms of ESTA before the area where the property is located became an
urban area.
Supreme Court of Appeal
[12] Mr Grobler appealed to the Supreme Court of Appeal w ith the special leave of
that Court. The Supreme Court of Appeal identified three issues for determination .
3 62 of 1997.
4 When a party applies for a declaratory order, a court is required to declare that a litigant has certain
rights. This matter focused on whether Mrs Phillips was an unlawful occupier and , if so, a
consideration of whether alternative accommodation was available for her. This is not akin to an
application for a declaratory order.
First, whether it was appropriate for the High Court to allow Mrs Phillips to raise a
new defence on appeal that she was also protected by ESTA. Second, whether
Mr Grobler had established that Mrs Phillips was an unlawful occupier in terms of the
provisions of PIE. According to the Court , this issue turned on the notice of
termination of occupation given to Mrs Phillips. It also concerned the broader
question of compliance with the requirements for eviction . The third issue pertai ned
to the exercise of the High Court’s discretion not to order the eviction on the basis
that such an order w ould not be just and equitable. The Court said that a related
issue was the nature of the discretion, the Supreme Court of Appeal’s entitlement to
interfere with the exercise of the discretion, the extent to which it may so interfere
and whether grounds for interference had been established.
[13] The Supreme Court of Appeal highlighted that the action before the
Magistrates’ Court was initiated on the basis that the provisions of PIE were
applicable. It was , however, not convinced that there was an express agreement
between the parties that the provisions of ESTA did not apply. It reasoned that in any
event the principal dispute between the parties was whether Mrs Phillips was an
unlawful occupier.
[14] Regarding the reliance on ESTA, the Supreme Court of Appeal held that the
undisputed facts established that the property was incorporated into a township by
no later than 1991, when its status as an erf was registered in the land register ,
thereby converting it from agricultural land . It concluded that section 2(1)(b) of ESTA
did not apply and that the High Court erred in finding that Mr Grobler did not
discharge the onus of establishing that ESTA did not apply.
[15] The Supreme Court of Appeal next considered the conclusion by the
High Court that Mrs Phillips was not an unlawful occupier. It stated that the High
Court’s reasoning on this aspect was difficult to follow , because, although the High
Court accepted the fact that , before the notice to vacate was given , Mr Grobler
engaged Mrs Phillips regarding her continued occupation of the property , it did not
take this factor into consideration when deciding whether or not she was an unlawful
occupier. According to the Supreme Court of Appeal, the High Court did not consider
the lengthy per iod of these interactions, the fact that a written notice to vacate the
premises was given, and the period that elapsed from the end of the notice period to
the institution of legal proceedings.
[16] The Supreme Court of Appeal held that the evidence show ed that Mr Grobler
had signalled, clearly and unequivocally, his intention to terminate Mrs Phillips right
to occupy the property, thereby withdrawing his consent for her continued
occupation. It found that it had been proven that she was an unlawful occupier.
[17] The Supreme Court of Appeal then considered the alleged oral lifetime right of
habitation. In this regard it highlighted that Mrs Phillip s’ counsel did not pursue
reliance upon the existence of that right in that Court. It also accepted that the
alleged right had not been reduced to writing , had not been registered against the
title deed and therefore, it could not be enforceable against successive owners.
[18] The Court considered whether it was just and equitable to grant an eviction
order. It accepted that Mrs Phillips was granted an oral right of occupation of the
property for life. It also accepted that it was not in dispute that some, i f not all, of the
previous owners were aware of this right and were prepared to honour it. The Court
observed that Mrs Phillips believed, albeit incorrectly, that the right protected her
from eviction and she continued to occupy the property based on this belief.
According to the Supreme Court of Appeal, Mrs Phillips could hardly be expected to
know that her right was precarious as a result of the right not having been reduced to
writing and registered against the title deed of the property. It reasoned that it was as
a result of this ignorance that Mrs Phillips lost absolute protection against eviction.
[19] The Supreme Court of Appeal also emphasi sed certain factors which, it held,
were taken into account by the High Court in exercising what it regarded as its
discretion: (a) the fact that Mrs Phillips has b een in occupation of the property since
she was 11 years old; (b) the fact that she was, at the time the matter was argued at
the Supreme Court of Appeal, 84 years old; and (c) the fact that during the greater
part of her occupation of the property, it for med part of a farm and gradually, as a
result of circumstances beyond her control, became part of an urban development.
According to the Supreme Court of Appeal , had it not been for the urban
development, Mrs Phillips would undoubtedly have enjoyed the pro tection of ESTA.
The Court formed the view that while she may have lost the absolute protection
conferred by section 2(1)(b) read with section 8(4) of ESTA as a vulnerable person,
her status as a vulnerable person, even in the context of PIE, has essential ly
remained unchanged.
[20] It held that all these factors outweighed those that entitled Mr Grobler, as a
property owner, to obtain an order of ejectment. It reasoned that PIE recognises that
in appropriate circumstances the right to full exercise of ownership must give way, in
the interests of justice and equity, to the right of vulnerable persons to a home. The
Supreme Court of Appeal then concluded that there was no basis to interfere with
the discretion exercised by the High Court and agreed that it was not just and
equitable to order an eviction in the matter. It thus dismissed Mr Grobler’s appeal.
This Court
Jurisdiction and leave to appeal
[21] This Court, in Machele,5 held that eviction from one’s home will always raise a
constitutional issue. Initially, Mrs Phillips objected to this Court’s jurisdiction but later
conceded, correctly so, that in light of this Court’s findings in Machele, our
jurisdiction is engaged as the issues are centred around eviction from one’s primary
residence.
[22] Another ground advanced for this Court ’s jurisdiction is that the
Supreme Court of Appeal interpreted the “some time ” principle, laid down by this
Court in Blue Moonlight 6 to mean an “indefinite period ”, whereas this Court in
Blue Moonlight had stated that a property owner can not be expected to provide free
housing for the homeless for an indefinite period. Reference was also made to
Claytile,7 where the fact that Claytile had accommodated the applicants in that matter
for several years, weighed heavily against imposing a further obligation on it. I
accept that the “some time” principle concerns the interpretati on of the provisions of
5 Machele v Mailula [2009] ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC).
6 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011]
ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC).
7 Baron v Claytile (Pty) Ltd [2017] ZACC 24; 2017 (5) SA 329 (CC); 2017 (10) BCLR 1225 (CC).
section 4(7) of PIE. The interpretation of the provisions of PIE engages this Court’s
jurisdiction because PIE was enacted to ensure that “evictions in future took place in
a manner consistent with the values of the new constitutional dispensation. Its
provisions have to be interpreted against this background”.8
[23] The Supreme Court of Appeal also took into account the fact that it was
Mrs Phillips “wish” to remain in the property and not to be moved to alternative
accommodation. The wish of a party to remain on someone else’s property ,
unlawfully, and not to be moved to alternative accommodation is not one of the
factors that have previously been taken into account in determining what is just and
equitable. This raises the question whether the Supreme Court of Appeal, in taking
into account Mrs Phillips’ wish or preference to continue to occupy the property
unlawfully, misconceived the test to be applied when considering what is just and
equitable in eviction proceedings. That question requires the attention of this Court.
[24] Another important con sideration concerns the misapprehension by the
Supreme Court of Appeal that it was the High Court and not the Magistrates ’ Court,
as the court of first instance, that had the discretion to determine whether it was just
and equitable to grant an eviction order. This matter commenced in the
Magistrates’ Court and it was that Court that had the discretion. When it was heard
on appeal by the High Court, that Court had to determine whether the Magistrates ’
Court had exercised its discretion properly. The Supreme Court of Appeal dealt with
the matter as if the High Court was the court that had the discretion to determine
whether it was just and equitable to grant an eviction order and it erred in this regard.
[25] However, the manner in which the Magistrates’ Court exercised it discretion is
not beyond reproach. That Court seems to have missed an important step. As shall
be illustrated below, the Magistrates’ Court did not consider whether it was just and
equitable to make an order of eviction in the circumstances.
8 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12)
BCLR 1268 (CC) at para 11.
[26] In the consideration of whether it is in the interests of justice to grant leave to
appeal, it needs to be consider ed that, although these errors may be regarded as a
mere misapplication of establi shed legal principles, the fact that the application has
reasonable prospects of success is an important consideration. In University of
Johannesburg,9 this Court held that where a court departs from settled law, such a
departure would establish the arguability of the point of law , provided that there is
merit to the argument and it has prospects of success.10
Merits
The exercise of the Magistrates’ Court discretion
[27] Before I deal with whether the High Court and Supreme Court of Appeal were
correct in holding that it was not just and equitable to grant an eviction order, it is
helpful to fi rst clarify why I hold the view that the Magistrates ’ Court overlooked an
important step and therefore did not adopt the proper approach when exercising its
discretion to determine whether to grant an eviction order.
[28] Section 4(7) of PIE provides guidance on what considerations have t o be
taken into account when a c ourt exercises its discretion to determine whether it is
just and equitable to grant an eviction order. It reads:
“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, e xcept 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.”
9 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1
(CC); 2021 (8) BCLR 807 (CC).
10 Id at para 50.
[29] Before the Magistrate s’ Court listed the relevan t factors prescribed in
section 4(7) of PIE, it clarified the legal principle s pertaining to PIE evictions and
reminded itself that , in the event that it found that the occupation was unlawful, the
application in terms of PIE could succeed. It did not say that it had to succeed. This
shows that the Magistrates ’ Court was alive to the fact that a finding that an
occupation is unlawful in matters regarding PIE does not necessarily lead to an order
of eviction without a consideration of the other relevant factors. Another indication
that the Magistrates’ Court was alive to its discretionary powers is the fact that after
concluding that Mrs Phillips was in unlawful occupation, the Court emphasi sed that
the use of the word “may” in PIE gave it a discretion on whether the application in
terms of PIE should succeed. Then the Court said that the last step in its
determination was whether it would be just and equitable to grant an eviction, given
the facts of the matter, and if so determine a just and equitable period within which
an eviction should take place. However, ha ving outlined the steps that had to be
considered in the enquiry, the Magistrate s’ Court proceeded to omit what it referred
to as the last step of the enquiry. It did not ask whether it was just and e quitable to
make an order of eviction. After it found that Mrs Phillips was in unlawful occupation,
it granted the eviction order. But, as will become apparent below, t he fact that the
Magistrates’ Court skipped this step is not of such a nature that the e viction order
granted by the Magistrates’ Court should have been set aside.
[30] When the matter went on appeal to the High Court, that Court disagreed that
Mrs Phillips was an unlawful occupier, based on its conclusion that she was not
given reasonable notice of termination. It took into account considerations relating to
equity and justice , against the backdrop of a finding that Mrs Phillip s occupation of
the property was lawful.
[31] On further appeal to the Supreme Court of Appeal, that Court dealt with the
matter on the basis that it was the High Court that had a discretion to determine
whether it was just and equitable to order eviction. It is not clear, as will be illustrated
below, on what basis the Supreme Court of Appeal concl uded that “the High Court
was entitled to exercise its discretion even though the occupation was unlawful ”. I
say so because , if the occupation was lawful, as the High Court concluded, then
there was no basis to order eviction. Then there was no need to exercise any
discretion on whether eviction was a just and equitable remedy. In any event, that
discretion was that of the trial c ourt, not that of the High Court as a court of appeal .
The Hig h Court would have been entitled to, itself, exercise a discretion if it had
justifiably interfered with the exercise of discretion by the Magistrates’ Court.
[32] The specific defences raised by Mrs Phillips that she had a right of habitatio
and that she was a lawful occupier were rejected by the Supreme Court of Appeal.
The Court however concluded that it was not just and equitable to order the eviction
in the circumstances. It is this reasoning by the Supreme Court of Appeal that is at
the centre of the application in this Court. I now turn to considerations of justice and
equity as envisaged in section 4(7) of PIE.
Was it just and equitable to grant an order of eviction?
[33] In deciding whether it is just and equitable to grant an order of eviction, a
court must consider all relevant circumstances . This includes, except where the land
is sold in a sale in 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 . This also
entails taking into account the rights and needs of the elderly, children, disabled
persons and households headed by women.
[34] In holding that it was not just and equitable to evict Mrs Phillips, the
Supreme Court of Appeal took into account Mrs Phillips’ age, the fact that she
occupied the property with her disabled son and the fact that she would have been
protected by ESTA, had the farm not become absorbed by the growth of urban
developments. All of these are relevant factors in terms of section 4(7) of PIE. Apart
from these factors, the Supreme Co urt of Appeal also took into account Mrs Phillips’
wishes, specifically when considering the offers of alternative accommodation and
concluded that she was justified in refusing to accept them. Further, the Supreme
Court of Appeal considered the fact that Mrs Phillips was accustomed to life in the
house which she presently occupies and the fact that she enjoyed not only the
freedom and space, but also the environment around it.
[35] This Court, in Snyders,11 dealt with the position of Mr Willem Breda who was
employed at Stassen Farm and occupied a house on the farm that was previously
occupied by Mr Snyders and his family. This Court held that the right of residence
that Mr Breda and his family were enjoying was not necessarily tied to the specific
house they occupied. 12 In Oranje13 the Supreme Court of Appeal held that ESTA
was not enacted to provide security of tenure to an occupier in the house of his or
her choice.14
[36] Although ESTA is aimed at the protection of a different category of occupiers
and its provisions are as a result different from those of PIE, to the extent that both
statutes were enacted to prevent unfair evictions, there is no basis to find that the
principle laid down in Snyders is not applicable to PIE matters. The question whether
the constitutional rights of the unlawful occupier are affected by the eviction is one of
the relevant considerations, but the wishes or personal preferences of the unlawful
occupier are not relevant. An unlawful occupier such as Mrs Phillips does not have a
right to refuse to be evicted on the basis that she prefers or wishes to remain in the
property that she is occupying unlawfully. In terms of section 2 6 of the Constitution,
everyone has the right to have access to adequate housing. The Constitution does
not give Mrs Phillips the right to choose exactly where in Somerset West she wants
to live.
[37] Who then bears the obligation to provide alternative accommodation?
Section 4(7) of PIE clearly states that such obligation lies with a “municipality, or
other organ of state or another land owner”. PIE was enacted to prevent the arbitrary
deprivation of property and is not designed to allow for the expropriation of land from
a private landowner from whose property the eviction is being sought. In Ndlovu,15
the Supreme Court of Appeal held that “[t]he effect of PIE is not to expropriate the
landowner and cannot be used to expropriate someone indirectly and the landowner
11 Snyders v De Jager [2016] ZACC 55; 2017 (3) SA 545 (CC); 2017 (5) BCLR 614 (CC).
12 Id at para 78.
13 Oranje v Rouxlandia Investments (Pty) Ltd [2018] ZASCA 183; 2019 (3) SA 108 (SCA).
14 Id at para 21.
15 Ndlovu v Ngcobo, Bekker v Jika [2002] ZASCA 87; 2003 (1) SA 113 (SCA).
retains the protection of [section] 25 of the Bill of Rights ”.16 This Cour t, in
Blue Moonlight, held that “a private owner has no obligation to provide free
housing”17 and that “ [u]nlawful occupation results in a deprivation of property under
[section] 25(1)”18 of the Constitution. Section 26(2) of the Constitution guarantees the
right to access to adequate housing and places a positive obligation on the state to
realise that right.
[38] Of course when dealing with considerations of justice and equity, the capacity
of a landowner to provide alternative accommodation and the peculiar circumstances
of an evictee are relevant. But the fact that Mr Grobler has repeatedly made offers of
alternative accommodation to Mrs Phillips should not be taken as creating any
obligation on him to offer alternative accommodation. In Port Elizabeth Municipality19
this Court stated that an offer of alternative accommodation is not a pre -condition for
the granting of an eviction order but rather one of the factors to be considere d by a
court.20 In City of Johannesburg21 the Supreme Court of Appeal held that “an eviction
order in circumstances where no alternative accommodation is provided is far less
likely to be just and equitable than one that makes careful provision for alternative
housing”.22
[39] In determining the competing interests of both parties to eviction proceedings,
due regard must be had to the considerations of “justice” and “equity” as required by
PIE. In Hattingh23 this Court said:
“In my view the part of [section] 6(2) that says: ‘balanced with the rights of
the owner or person in charge’ calls for the striking of a balance between the
16 Id at para 17.
17 Blue Moonlight above n 6 at para 31.
18 Id at para 37.
19 Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter 2001 (4) SA 759 (E).
20 Id at 769C-E.
21 City of Johannesburg v Changing Tides 74 (Pty) Ltd [2012] ZASCA 116; 2012 (6) SA 294 (SCA).
22 Id at para 15.
23 Hattingh v Juta [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5) BCLR 509 (CC).
rights of the occupier, on the one side, and those of the owner of the land, on
the other. This par t enjoins that a just and equitable balance be st ruck
between the rights of the occupier and those of the owner. The effect of this
is to infuse justice and equity in the inquiry.”24
[40] Claytile, as well, reminds us that there has to be “some give by both parties ”.
In essence, when balancing the interests, compromises have to be made by both
parties, in order to reach a just and equitable outcome. A disturbing feature in this
matter is that very little effort was made by Mrs Phillips to seriously consider the
several offers of alternative accommodation made by Mr Grobler. She also did not
make any counter - offers in response to the generous offers o f alternative
accommodation made by Mr Grobler.
[41] Mrs Phillips was approached by Mr Grobler, personally and through his
attorneys, on several occasions before the commencement of the eviction
proceedings and offered alternative accommodation in a bid to reach a compromise.
None of these offers were accepted. During the Magistrates ’ Court proceedings,
after the order of eviction was granted in Mr Grobler’s favour by the Court, he made
an offer to bear Mrs Phillips’ reasonable costs of accommodation in a retirement
centre for a period of 12 months provided that those costs were limited to R 4000 per
month. He also offered to assist Mrs Phillips with her relocation costs and agreed
that she could continue to occupy the property for two months after the date of the
order. This offer was also rejected. Her counsel made much of the fact that this offer
was made during the section 4(8) stage of the proceedings and was not an offer for
alternative accommodation. However, one cannot overlook that Mr Grobler, even
after having been granted an eviction order, attempted to assist Mrs Phillips. All of
this is relevant for the purposes of determining what is just and equitable.
[42] During proceedings in the Supreme Court of Appeal, Mr Grobler was afforded
an opportunity to make an additional offer of alternative accommodation to
Mrs Phillips. We know that Mr Grobler offered to purchase an upmarket apartment in
24 Id at para 32.
a secure complex in the Somerset West area, where Mrs Phillips could live for the
rest of her life . According to the Supreme Court of Appeal, this offer was rejected
because Mrs Phillips was accustomed to life in the house she presently occupies
and enjoys not only the freedom and space it affords, but also the environment
around it.
[43] Before the Supreme Court of Appeal judgment was handed down, Mr Grobler
sent a list of several properties to Mrs Phillips and invited her to view them. It is not
in dispute that only three of these properties were viewed by Mrs Phillips and none of
them were deemed acceptable to her. Apart from the tenders for alternative
accommodation, Mr Grobler consented to a draft order of court that would direct him
to purchase a two -bedroom dwelling in a good condition in Somerset West within a
period of 30 days from the date of order . He further undertook to arrange for the
removal and transportation costs of Mrs Phillips’ furniture and personal goods to the
new premises. She would h ave a lifetime right of residence in the property.
Mrs Phillips’ counsel argued before us that she has not taken advantage of the offers
made to her because of her belief that she has a lifetime right to occupy the property.
Whilst she could initially have laboured under this wrong impression, she
subsequently managed to obtain legal representation. The Magistrates ’ Court had
already rejected her reliance on an oral lifetime right of habitatio. If her continued
rejection of the offers was due to poor legal advice, this should not disadvantage Mr
Grobler. The efforts made by Mr Grobler from the time the property was registered in
his name until the present application show that Mr Grobler has consistently been at
pains to resolve the matter amicably, and no effort was made by Mrs Phillips to meet
him halfway.
[44] The Supreme Court of Appeal failed to balance the rights of both parties.
Mr Grobler is the owner of the property and has been enforcing his rights of
ownership for the past 14 years. He has offered alternative accommodation on
numerous occasions. If this offer were to be accepted, Mrs Phillips will continue to
enjoy having a decen t home. Furthermore, the Supreme Court of Appeal placed too
much emphasis on Mrs Phillips’ peculiar circumstances. A just and equitable order
should not be translated to mean that only the rights of the unlawful occupier are
given consideration and that th ose of the property owner should be ignored. And it
does not mean that the wishes or personal preferences of an unlawful occupier are
of any relevance in this enquiry.
[45] Mr Grobler argued that the effect of the Supreme Court of Appeal judgment is
that he now has to provide free housing indefinitely to Mrs Phillips. The order of the
Supreme Court of Appeal effectively sets aside the eviction order of the
Magistrates’ Court, allowing Mrs Phillips to continue to live in Mr Grobler’s property
indefinitely. This is in conflict with Blue Moonlight where this Court held:
“It could reasonably be expected that when land is purchased for commercial
purposes the owner, who is aware of the presence of occupie rs over a long
time, must consider the possibility of having to endure the occupation for
some time. Of course a property owner cannot be expected to provide free
housing for the homeless on its property for an indefinite period. But in
certain circumstances an owner may have to be somewhat patient.”25
Mr Grobler has had to endure Mrs Phillips ’ unlawful occupation on his property for
14 years. This cannot be said to conform to the prescripts of what would constitute
“some time”.
[46] It is an important consideration that an eviction order in these circumstances
will not render Mrs Phillips homeless. The offer advanced by Mr Grobler still stands.
If it is made an order of c ourt, it will essentially mean that Mrs Phillips will only be
required to relocate from one home to another in the same immediate community
within Somerset West. In essence, the order will not have the effect of uprooting her
from the community she has known for decades. In my view, such an order would be
just and equitable.
[47] The dwelling being offered will be similar to the one currently being occupied.
Mr Grobler has un dertaken to pay for the relocation costs. He is also willing to wait
for a period of six months from the date of registration to afford Mrs Phillips an
25 Blue Moonlight above n 6 at para 40.
opportunity to vacate the present property and take occupation of the dwelling. This
is a reasonable period.
[48] The offer is generous and should not be construed as setting a precedent on
what other private landowners are obliged to do in similar circumstances. As already
stated, there is no obligation on a private landowner to provide alternative
accommodation to an unlawful occupier.
Order
[49] I make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“3.1. The applicant, Mr Willem Grobler, is directed to purchase a
two-bedroom dwelling in a good condition (the dwelling).
3.2. The dwelling shall comply with the following requirements:
3.2.1. It shall have at least two bedrooms.
3.2.2. It shall have a lounge, kitchen and a bathroom.
3.2.3. The dwelling must be situated within a radius of
5 kilometres from [....] D [....] Street, Somerset West.
3.2.4. Regard being had to the first respondent,
Mrs Clara Phillips’ age and Mr Adam Phillips’ disability, the
dwelling shall be easily accessible.
3.3. It is declared that once the dwelling is registered in the name of
Mr Willem Grobler, Mrs Clara Phillips, and her son, Mr Adam Phillips,
shall have the right to reside in the dwelling for the rest of Mrs Clara
Phillips’ life, and Mr Willem Grobler is directed to register the
aforementioned right against the title deed of the dwelling.
3.4. Mr Willem Grobler is directed to arrange and pay for all the
relocation costs of Mrs Clara Phillips and Mr Adam Phillips, including
the removal and transportation costs of their furniture, person al goods
and effects to the dwelling.
3.5. Mrs Clara Phillips and Mr Adam Phillips will be liable for the
costs of municipal services that are rendered by the municipalit y to
them in respect of the dwelling and will be liable for the reasonable
maintenance costs of the interior of the dwelling.
3.6. Mrs Clara Phillips and Mr Adam Phillips are directed to comply
with all municipal re gulations in respect of the dwelling and if
applicable, the body corporate house rules.
3.7. If Mrs Clara Phillips and Mr Adam Phillips do not take
occupation of the dwelling within six months from the date of
registration of th e dwelling in the name of Mr Willem Grobler, Mrs
Clara Phillips and Mr Adam Phillips and all other occupants are
directed to vacate the premises known as [....] D [....] Street, Somerset
West, failing which, the Sheriff of the Court is directed to evict th em
from the premises.
3.8. There shall be no order as to costs.”
For the Applicant: W Vos instructed by Miller Bosman le Roux
Incorporated
For the First to Third Respondents: E Fagan SC and A Morrissey instructed by
Stellenbosch Law Clinic