Brief Summary

Eviction — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act — Application for eviction based on ownership — Applicants, registered owners of property, sought eviction of first respondent, claiming unlawful occupation — First respondent countered with claim of valid sale agreement for property — Court to determine validity of sale agreement, entitlement to transfer, and issues of unlawful occupation and enrichment. The applicants, Mpolokeng Rosina Serame and the late Molefi Solomon Serame, sought to evict the first respondent, Makwaba Motshabi, from their property in Bloemfontein, asserting ownership and unlawful occupation by the first respondent. The first respondent claimed a valid sale agreement for the property, alleging she had paid R70,000 for it and made substantial renovations. The court held that the applicants were entitled to the relief sought, as the first respondent's claims regarding the sale agreement were not substantiated, and she was in unlawful occupation of the property.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned motion proceedings in the Free State Division of the High Court, Bloemfontein, in which the applicants sought an eviction order against the first respondent and all persons occupying through or under her from a residential immovable property, namely Erf [....], B[....], Bloemfontein, Free State Province, held under Title Deed T[....] (“the property”). The application was brought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

The applicants were Mpolokeng Rosina Serame (first applicant) and Molefi Solomon Serame (second applicant). The first respondent was Motshabi Makwaba, the occupier of the property, and the Mangaung Metropolitan Municipality was cited as second respondent due to its potential interest, although no substantive relief was sought against it. The second applicant died after the institution of proceedings and shortly before the hearing.

The procedural history reflected that the application was issued on 6 August 2021. On 30 September 2021, Loubser J granted an order regulating the PIE process, including notice to the first respondent in terms of section 4(4) and section 4(5) of PIE and setting the matter down for hearing. The eviction application became opposed after the first respondent delivered an opposing affidavit together with a counter-application seeking, principally, an order declaring an agreement of sale and compelling transfer, alternatively repayment and enrichment-based relief. The opposed matter was argued on 21 July 2022 and judgment was delivered on 5 September 2022.

The general subject-matter of the dispute was whether the first respondent’s long-term occupation was grounded in a lawful right (including an alleged sale) or constituted unlawful occupation, and whether eviction would be just and equitable under PIE. The counter-application raised additional disputes relating to an alleged oral sale of land, restitution of a R70 000 payment, and alleged improvements/enrichment.

2. Material Facts

It was common cause that the applicants were the registered owners of the property and that the first respondent was in occupation of it. It was also not in dispute that a payment of R70 000 was made into the first applicant’s bank account during July 2007 (the parties disagreed as to the basis for that payment). It was further common cause that no written deed of sale for the property was produced or relied upon, and that the property was not registered in the first respondent’s name.

The applicants’ version was that they purchased the property in August 2001 for R145 000, and that the property was registered in their names. They alleged that in 2008 the first respondent, then in a difficult personal situation, requested accommodation. According to the applicants, the parties concluded an oral arrangement under which the first respondent could occupy the property without rent, in return for installing doors and windows and for paying the monthly municipal account, and that the occupation was to endure pending finalisation of her divorce. The applicants contended that in 2018 they discovered that the first respondent had not kept municipal payments up to date, whereupon they decided to terminate the arrangement and demanded that she vacate.

The first respondent’s version was materially different. She alleged that she had identified the property as dilapidated and for sale at an earlier stage and that, after discussions with the first applicant (and confirmation that the second applicant accepted the offer), an oral agreement of sale was concluded. On her account, she paid R70 000 as the purchase price on 11 July 2007, took possession, and treated the property as her own. She alleged that she undertook renovations and repairs and incurred substantial expenses in doing so, and that she opened a separate municipal services account in her name (while the municipal valuation certificate reflected a valuation of R450 000 as at February 2021). The applicants denied that a sale occurred and denied the allegations concerning transfer undertakings.

The applicants relied on written demand that the first respondent vacate (via attorneys) and alleged that she refused, asserting ownership based on the alleged purchase. The applicants also alleged that access to the property was being refused and that intended sale of the property was being frustrated. The first respondent did not place detailed evidence before the court regarding her present financial position or personal circumstances relevant to the “just and equitable” enquiry, beyond what appeared from the papers.

3. Legal Issues

The court was required to determine, first, whether the first respondent had any extant lawful right to occupy the property. This required the court to address the central legal question whether an alleged oral agreement of sale of immovable property could found a right to transfer and continued occupation, in light of the statutory requirement that such agreements be in writing.

A second cluster of issues arose from the counter-application. The first respondent sought relief declaring a sale agreement and compelling transfer, alternatively restitution of the R70 000 with interest, and an enrichment claim (expressed as enrichment to the applicants of R270 000, tied to alleged renovations). These issues involved a combination of legal validity (formal requirements for alienation of land), factual proof (whether improvements were made and their value), and the application of legal principles to the facts (whether the asserted claims were established on motion).

The main application further required the court to apply the PIE framework, including whether, if occupation was unlawful, eviction would nevertheless be refused because it would not be just and equitable. This part of the enquiry entailed an evaluative judgment mandated by PIE and informed by section 26(3) of the Constitution, rather than a purely factual finding.

Although prescription was raised in argument as a potential bar to parts of the counter-application, the court’s determinative reasoning focused primarily on the lack of a valid written sale agreement and the insufficiency of proof for enrichment/improvement relief on the papers.

4. Court’s Reasoning

The court approached the eviction under PIE as requiring a staged enquiry. It adopted the framework that the court must first determine whether the occupier has any existing right to occupy; if not, the court must decide whether eviction would be just and equitable; and if eviction is just and equitable, the court must determine the appropriate terms and timing of eviction.

On the alleged sale, the court applied section 2(1) of the Alienation of Land Act 68 of 1981, which renders an alienation of land “of no force or effect” unless contained in a deed of alienation signed by the parties (or their authorised agents). The court referred to Wilken v Kohler 1913 AD 135, which explained that the legislative purpose of requiring writing is to avoid uncertainty and reduce disputes and potential fraud, and that non-compliance cannot be waived where the statute declares such agreements to be of no force or effect.

The court further noted the general principles governing transfer of ownership of immovable property: the parties must intend to transfer ownership through a real agreement and effect conveyance by registration. Since it was common cause that the applicants remained registered owners and there was no written deed of alienation, the statutory requirement was not met. On that basis, the court held that the first respondent failed to discharge the onus of proving a valid sale agreement, and in the absence of a valid written agreement she had no claim for transfer and thus no extant right to occupy derived from ownership or sale.

Turning to the counter-application, the court treated the first respondent’s reliance on alleged improvements and enrichment as insufficiently established on the evidence. It emphasised that the relevant question was not merely the cost of expenditures but the extent to which any improvements increased the market value of the property. The court held that the material placed before it consisted essentially of a bald assertion of renovation expenditure and enrichment, supported by invoices that were largely illegible, undated, or unclear as to what they related to, and without proof of the value attributable to any improvements. On that basis the enrichment-related relief was not made out on motion and was dismissed. The court recorded that, in argument, counsel for the first respondent accepted that these monetary claims would be better addressed at trial, but the court nevertheless determined the counter-application before it on the record as presented.

Having concluded that no lawful right to occupy had been shown, the court considered whether eviction would be just and equitable as required by PIE and in light of section 26(3) of the Constitution. It reiterated that, while ownership ordinarily entitles an owner to exclude unlawful occupiers, PIE requires a further enquiry into justice and equity, and that procedural compliance with PIE was not in dispute.

In assessing justice and equity, the court considered that the first respondent had occupied the property for many years without paying rent and had been aware, at least since around 2010, that the applicants denied any sale and were not prepared to transfer the property. The court also took into account that the first respondent provided no meaningful information about her income or financial position, and that it appeared she had familial support available (a daughter), leading the court to conclude she would not be rendered homeless by eviction on the facts presented.

The court further applied the principle articulated in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA), namely that private owners are not constitutionally obliged to provide free housing indefinitely, although their property rights may be temporarily limited to accommodate immediate needs in appropriate circumstances. On the record, the court found no sufficient countervailing circumstances to justify continued occupation and concluded that justice and equity favoured vindicating the applicants’ ownership rights rather than allowing prolonged unlawful residential occupation.

Finally, the court determined that the applicants had complied with all procedural requirements for eviction under PIE, leaving only the timing of the order to be set. Costs were treated in accordance with the general principle that costs follow the result.

5. Outcome and Relief

The court granted an eviction order directing the first respondent and all persons occupying through or under her to vacate the property by 1 March 2023. It authorised the Sheriff of the High Court to evict the first respondent and those holding under her should they fail to vacate by that date.

The court dismissed the first respondent’s counter-application with costs. It also ordered the first respondent to pay the applicants’ costs in the main eviction application.

Cases Cited

Wilken v Kohler 1913 AD 135.

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

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 26(3).

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

Alienation of Land Act 68 of 1981, sections 2(1) and 28.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the first respondent failed to establish any lawful right to occupy the property because an alleged sale of immovable property could not be enforced in the absence of a written deed of alienation compliant with section 2(1) of the Alienation of Land Act 68 of 1981. As a result, her occupation was held to be unlawful for purposes of PIE.

The court further held that the first respondent did not prove, on the papers, an entitlement to the relief claimed in the counter-application, including transfer, repayment, or enrichment-based compensation for improvements, particularly because the value and effect of alleged improvements on market value were not properly established.

Applying PIE and section 26(3) of the Constitution, the court held that eviction was just and equitable in the circumstances presented, and granted an eviction order with a future vacate date and authorisation for the Sheriff to evict if necessary, together with costs orders against the first respondent.

LEGAL PRINCIPLES

A contract for the alienation of land is “of no force or effect” unless it is contained in a written deed of alienation signed by the parties (or their properly authorised agents), as required by section 2(1) of the Alienation of Land Act 68 of 1981. The legislative purpose of this formality includes preventing uncertainty, reducing disputes, and limiting the risk of fraud and perjury, and non-compliance cannot be avoided where the statute expressly nullifies non-compliant agreements.

Ownership of immovable property is transferred through the combined requirements of intention to transfer (the real agreement) and registration, and in the absence of registration and a valid deed of alienation an occupier cannot found a right to compel transfer merely on an alleged oral sale.

Eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 requires a staged enquiry: determining whether the occupier has a lawful right to occupy; if not, determining whether eviction is just and equitable; and if eviction is just and equitable, setting appropriate terms and timing. Even where occupation is unlawful, eviction is not automatic; the court must consider relevant circumstances under PIE and the constitutional context of section 26(3).

In eviction disputes involving private owners, courts recognise that private parties bear no general constitutional duty to provide housing indefinitely, though their rights may be subject to reasonable restrictions or delays to accommodate immediate needs in appropriate cases, consistent with the approach in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA).

Claims framed as restitution or enrichment based on improvements to property require adequate proof on the papers, including proof directed to the value added or relevant increase in market value attributable to improvements, rather than mere assertions of expenditure.

Serame and Another v Motshabi and Another (3605/2021) [2022] ZAFSHC 222 (5 September 2022)