Summary of Judgment

1. Introduction

This matter concerned an application for eviction brought in the High Court of South Africa (Eastern Cape Local Division, Bhisho) under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The relief sought was the eviction of the respondent from a residential property situated in Mdantsane, East London.

The first applicant was Andiswa Goloda, who alleged that she had purchased the property from the deceased estate and sought to assert a right to evict the occupier. The second applicant was cited as the executors of the estate late Pikile Koncoshe, namely Anthenkosi Koncoshe NO and Anelisa Hoho NO. The respondent was Andile Ntozini, the person in occupation of the house. The Buffalo City Metro Municipality was cited as an interested party.

The proceedings were instituted by way of motion proceedings (application). Although the executors were cited as co-applicants, the judgment records that they did not participate in the litigation in any substantive way. The dispute arose against the background of contested claims to occupation and control of the property, including alleged sales of the property and the respondent’s long-term residence there.

The general subject-matter of the dispute was whether the applicants could satisfy the statutory requirements for eviction under PIE, in particular whether the applicant(s) had the necessary standing (locus standi) and whether the respondent was an unlawful occupier.

2. Material Facts

The court treated the following facts as material to its determination, and largely presented them chronologically.

It was common cause that Pikile Koncoshe (the deceased) owned the house during his lifetime and that he died in 1999. It was also not materially disputed that in 2002 the respondent, without accommodation, found the property abandoned and vandalised, with substantial disrepair (including missing doors, windows, roof components, and electrical cabling).

The respondent alleged—and the court recorded that this was not disputed by Goloda—that the respondent traced the deceased’s brother, Vuyiseli Piacini Koncoshe, who was said to have been “responsible for the house” at the time. The respondent contended that Vuyiseli gave him permission to stay in the house in the dilapidated condition in which it was found. The respondent then moved in, effected repairs to render the property habitable, settled municipal arrears, caused the municipal account to be transferred into his name, and continued paying for services.

A later dispute arose around 2014, when the mother of one executor indicated that the house was to be sold. The matter was referred to the Master, who conveyed to the respondent that repairing the house did not confer ownership and that the respondent would need to purchase the property from the executors to prevent sale to a third party.

The record reflected two potentially conflicting purchase narratives, but the court explicitly indicated that nothing turned on the validity of these agreements for purposes of the eviction decision. The respondent contended that his uncle, Mboneleli Livingstone Siyongwani, made a written offer to purchase the house from the executors for R160 573.00, subject to a suspensive condition that financial assistance be obtained from the Department of Housing, and that the condition was not time-bound. The respondent further contended that the Department granted financial assistance on 12 February 2018, with the grant requiring transfer within three months (by May 2018), but transfer did not occur. Siyongwani died in 2021.

Separately, Goloda contended that she purchased the house from the joint executors on 26 September 2016 for R150 000.00, and paid the purchase price. The written offer (as described in the judgment) stated that Goloda would obtain vacant occupation on registration of transfer or upon the respondent’s eviction. However, it was common cause that the property was not transferred into Goloda’s name, and the respondent remained in occupation.

In relation to alleged termination of occupation, Goloda relied on the proposition that the respondent occupied under a precarium which was cancelled by written notice purportedly dated 31 July 2018, alternatively confirmed by a notice dated 1 June 2019. The court noted that the 2018 notice was not included in the papers and it was unclear whether that notice emanated from Goloda or the executors. The respondent acknowledged receipt of a letter in 2019, but denied that he had ever been granted a precarium, and maintained that he occupied with consent initially granted by Vuyiseli.

3. Legal Issues

The central legal questions the court was required to determine were whether the statutory requirements for eviction under PIE were satisfied, and in particular:

Whether Goloda (or the cited applicants) established the necessary locus standi to seek eviction, given that PIE requires an eviction application to be brought by an owner (as defined) or a person in charge.

Whether the respondent was an unlawful occupier as defined in PIE, meaning occupation without the express or tacit consent of the owner or person in charge.

The dispute concerned a combination of legal questions (standing and the statutory definitions within PIE and the consequences of non-transfer under deeds registration principles), as well as the application of law to fact (whether the respondent’s occupation was with consent and whether any consent was revoked in a procedurally and evidentially adequate manner on the papers). The court also addressed the procedural implications of motion proceedings where material disputes of fact arise, including the application of the Plascon-Evans rule.

4. Court’s Reasoning

The court began by identifying the two requirements for a successful eviction under PIE: the applicant must be the owner or person in charge of the land, and the occupier must be in unlawful occupation.

On the first requirement, the court emphasised that PIE defines an “owner” to mean the registered owner of the land. Read together with the Deeds Registry Act framework, this includes an executor of a deceased estate of an owner of immovable property. The court reiterated the principle that ownership of immovable property passes only upon registration of transfer in the Deeds Office, and that proof of ownership is constituted by the title deed.

Applying these principles, the court held that Goloda’s case as pleaded was defective. Although Goloda asserted in the founding and replying papers that she was the owner, she did not rely on registration of title, and no title deed was attached. In argument, Goloda’s counsel conceded she was not the registered owner, and the court accepted that concession as correctly made. The court therefore concluded that Goloda could not establish standing as an owner under PIE.

The court then considered whether Goloda could rely on the executors’ status as persons in charge or owners, given that they were cited as co-applicants. While the court accepted that, in principle, the executors would have standing as persons in charge (and as owners for PIE purposes, in their representative capacity), it found that they were not substantively before court as parties advancing the claim. The judgment stressed that the executors, though cited, “have not participated” and were treated in the founding affidavit essentially as interested parties rather than true litigating applicants.

A substantial part of the court’s reasoning concerned the impermissibility of attempting to cure standing deficiencies in reply. The court applied the principle that a party must make its case in the founding affidavit and may not introduce new matter in reply to remedy foundational defects. It characterised Goloda’s attempt in reply to allege authorisation “for and on behalf of” the executors as inadequate to establish locus standi, and further noted that a confirmatory affidavit by Hoho did not amount to authorisation to institute the proceedings, nor did it reflect an election by Hoho to participate as a litigating party.

In the court’s analysis, there was “no magic” in the phrase “for and on behalf of” used in a deponent’s description, and the confirmatory affidavit served only to confirm certain factual averments rather than to clothe Goloda with standing to litigate in her own name, or to transform the executors into active applicants. The court held that the establishment of locus standi should have been articulated in the founding papers, and it was not. This finding was treated as dispositive of the application.

Notwithstanding that dispositive conclusion, the court proceeded to address the second PIE requirement because it had been fully argued: whether the respondent was in unlawful occupation.

In that context, the court considered the allegation that the respondent occupied under a precarium (a form of gratuitous occupation subject to revocable permission). The court recorded the respondent’s denial that he was ever granted a precarium, and his contention that he had permission from Vuyiseli (said to have been in charge of the property at the time) to occupy the property as found, alongside the undisputed facts that the respondent repaired the property and dealt with municipal arrears and accounts. The court treated Goloda’s failure to dispute the consent narrative as significant.

The court further reasoned that Goloda was aware that lawful occupation was disputed yet chose motion proceedings rather than action, where disputes could be ventilated through oral evidence. Applying the Plascon-Evans principle, the court held that on the version that must be accepted for motion proceedings, Goloda had failed to establish unlawful occupation.

In addition, the court found that the allegations of unlawful occupation in the founding affidavit were, to the extent they existed, hearsay, and that reliance on a confirmatory affidavit supplied only in reply did not cure the deficiency. The court reiterated the principle that necessary allegations must appear in the founding papers and cannot be introduced for the first time in reply.

On these grounds, the court concluded that Goloda failed to establish both key elements required by PIE: she did not establish proper standing, and she did not prove unlawful occupation on the papers.

5. Outcome and Relief

The court dismissed the application. The dismissal was accompanied by an order that the application was dismissed with costs.

Cases Cited

Ganes v Telecom Namibia 2004 (3) SA 615 (SCA).

Scott v Hanekom 1980 (3) SA 1182 (C).

Giant Concerts CC v The Minister of Local Government, Housing and Traditional Affairs KZN 2011 (4) SA 164 (KZP).

Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA).

Musa and Kassim NNO v The Community Development Board 1990 (3) SA 175 (A).

Lechoana v Cloete 1925 AD 536.

Plascon-Evans Paints Ltd van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Eskom Holdings Soc Ltd v Masinda 2019 (5) SA 386 (SCA).

Mauerberger v Mauerberger 1948 (3) SA 731 (C).

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA).

Legislation Cited

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

Deeds Registries Act 47 of 1937 (including section 16).

Rules of Court Cited

No specific rules of court were expressly cited in the judgment.

Held

The court held that the first applicant, Goloda, did not establish locus standi to seek eviction under PIE because she was not the registered owner, and the executors—although cited—did not properly participate as litigating applicants in a manner that could sustain the proceedings.

The court further held that, applying motion-proceedings principles (including Plascon-Evans), the applicant failed to prove that the respondent was in unlawful occupation, particularly in light of the respondent’s version of consent to occupy and the evidential deficiencies in the founding papers.

LEGAL PRINCIPLES

PIE eviction relief requires proof of two jurisdictional facts: the applicant must be the owner (as defined, being the registered owner) or the person in charge, and the respondent must be an unlawful occupier (occupying without express or tacit consent of the owner or person in charge).

Ownership of immovable property is transferred only through registration in the Deeds Office, and proof of ownership lies in the registered title. A purchaser who has not received transfer does not, without more, meet PIE’s definition of owner.

The standing to institute proceedings must be established in the founding affidavit, and an applicant may not remedy a foundational defect by introducing new matter in the replying affidavit. Confirmatory affidavits filed in reply do not ordinarily cure the absence of essential allegations in founding papers.

Where material disputes of fact arise in motion proceedings, the court applies the Plascon-Evans approach, and an applicant who proceeds by application despite foreseeable disputes bears the risk that the respondent’s version (where plausible and properly raised) will prevail for purposes of final relief.

A precarium in Roman-Dutch law refers to gratuitous occupation of another’s land subject to revocable permission; however, the party alleging precarious occupation and its cancellation must properly plead and prove that basis on the papers, including the relevant notices and authority for cancellation.