About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 100
|
|
Grobler v Phillips and Others (446/2020) [2021] ZASCA 100 (14 July 2021)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 446/2020
In the matter between:
WILLEM
GROBLER
APPELLANT
and
CLARA
PHILLIPS
FIRST RESPONDENT
JOHAN VENTER
NO
SECOND RESPONDENT
HELDERBERG
MUNICIPALITY
THIRD
RESPONDENT
Neutral
citation:
Grobler v Phillips
and Others
(446/20)
[2021] ZASCA 100
(14 July 2021)
Coram:
PETSE DP, DLODLO and MOCUMIE JJA and PHATSHOANE
and GOOSEN AJJA
Heard
:
6 MAY 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 14 July 2021.
Summary:
Prevention of Illegal Eviction
and Unlawful Occupation of Land Act 19 of 1998 – relationship
with Extension of Security of
Tenure of Land Act 62 of 1997 –
onus to establish that evictee is an unlawful occupier – oral
right to reside on property
for life conferred by previous owner not
constituting
habitatio
– right of occupation terminated – occupier aged widow
living with disabled
son
–
not
just and equitable to grant an eviction order – appeal
dismissed.
ORDER
On
appeal from:
The
Western
Cape Division of the
High Court, Cape
Town
(Le Grange and Wille JJ sitting as court of
appeal
):
1.
The appeal is dismissed.
2.
The appellant is directed to pay such disbursements as may have been
incurred
by the first respondent’s attorneys in preparing for
the appeal.
JUDGMENT
Goosen
AJA (Petse DP and Dlodlo and Mocumie JJA and Phatshoane AJA
concurring)
:
Introduction
[1]
No
case in which an order of eviction from a residence is sought can
ignore the visceral reality of what is sought, namely the ejectment
of a person from their home in vindication of a superior right to
property. Nor can the legal process by which the order is obtained
be
divorced from our fraught history of eviction and ejectment of
vulnerable persons from their homes. It is to this visceral reality
that our Constitution addresses itself in s 26
[1]
,
and in this context that relevant legislation is to be interpreted
and applied.
[2]
This matter is no different. At issue is
the question whether an 84 year old widow and her disabled son ought
to be evicted from
a home she has lived in since she was 11 years
old. Also at issue is whether the appellant’s rights of
ownership of the property
in question ought to be vindicated by such
an eviction order.
[3]
The appellant
, Mr
Willem Grobler,
brought an application for
eviction against Ms Clara Phillips and Mr Johan Venter, the
first
and second
respondent
s
(the latter in his representative capacity)
in
the Magistrates’ Court at Somerset West. The application was
referred to trial. The magistrate, at the conclusion of the
trial,
granted an order of eviction. On appeal to the Western Cape Division
of the High Court (the high court), the order of eviction
was set
aside and replaced with an order dismissing the action. The appeal to
this
Court
is
with
its special
leave.
The President of this Court requested the appointment of counsel as
amicus curiae
to address the legal issues raised in the appeal
on
behalf of the respondents, who were at that stage unrepresented
.
We are grateful to
all
counsel
for their submissions
which were of
assistance to the Court.
[4]
The appeal raised several issues. The first
concerned the interrelation between the Prevention of Illegal
Evictions and Unlawful
Occupation of Land Act, 19 of 1998 (PIE) and
the Extension of Security of Tenure Act, 62 of 1997 (ESTA) and the
application of
the latter Act to the matter. The second concerned 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
ESTA or PIE. The third issue concerned the determination of
whether,
notwithstanding the unlawful occupation, it would be just and
equitable to grant an order of eviction.
Background
[5]
The appellant is the registered owner of
e
rf 14611,
Somerset West (the property). He purchased the property at a public
auction and it was registered in his name on 15 September
2008. It is
common cause that the first respondent
(Mrs
Clara Phillips)
, who is now an 84-year-old
widower, occupies a residential house on the property together with
her son, Adam
living with disabilities
.
The second respondent is the duly appointed curator representing
the
son. It is also common cause that the first
respondent has resided in the house on the property since 1947 when
she was 11 years
old, when
she
lived
on the property with her parents. The property formed part of a much
larger farm at the time. When she married her late husband,
who was
employed on the farm, she continued to occupy the house. I shall
return to the narrative of her occupation of the property
hereunder
when dealing with the history of the property. Following the
appellant’s purchase of the property, the appellant
met with
the first respondent to arrange that she vacate the property.
[6]
The appellant admitted that he was informed
that a previous owner of the property had granted to the first
respondent a lifelong
right of occupation of the property. The
appellant requested a copy of the agreement. When this was not
furnished, the appellant
then gave the first respondent notice to
vacate the property on or before 31 January 2009. When the first
respondent did not vacate
the property, the appellant launched an
application in the Magistrates
'
Court, Somerset West, for eviction of the first
respondent in terms of PIE. The application was referred for the
hearing of oral
evidence. At the conclusion of the trial on the
issues the magistrate granted an order evicting the first respondent.
[7]
On appeal to the high court the respondents
raised a new issue as an alternative ground of appeal, namely that
the first respondent
was an occupier as defined by ESTA; that the
provisions of ESTA accordingly applied and that the appellant could
not obtain an
order other than in terms of ESTA.
[8]
The high court upheld the appeal and set
aside the order of eviction. The high court came to this conclusion
upon three bases. The
primary basis was that the appellant had not
established that the first respondent was an unlawful occupier as
defined by the PIE
Act. The appellant was accordingly not entitled to
an order of eviction as obtained from the Magistrates’ Court.
The second
basis was founded upon the first respondent’s
contention that the provisions of ESTA applied. In this regard
,
the high court took the view that the first
respondent was entitled, on appeal, to raise that as a new issue. It
held that the appellant
had not, on the evidence before it,
discharged the onus to establish that ESTA did not apply.
Accordingly, no order of eviction
or ejectment could be issued except
in terms of ESTA. The eviction order obtained was accordingly not
properly issued. The third
basis upon which the high court relied was
an overarching one upon the assumption that ESTA did not apply and
that the first respondent
was indeed an unlawful occupier. It held
that, taking into account the advanced age of the first respondent;
the period for which
she had been resident on the property; and that
her household was also occupied by a disabled dependent, it would not
be just and
equitable to grant an eviction order.
[9]
Before this Court, the appellant argued
that the high court was wrong to allow the first respondent to
advance a new case on appeal.
By doing so significant prejudice was
occasioned to the appellant, since the appellant could not adduce
evidence to meet the argument
relying upon ESTA at such late stage in
the proceedings. The appellant argued that, in any event, reliance
upon the application
of ESTA ought not to have been countenanced. The
parties had entered into a pre-trial agreement in which they had
agreed that the
case was to be adjudicated on the basis that PIE
applied. For this reason, so it was submitted, the first respondent
was precluded
from asserting that ESTA applied.
[10]
In regard to whether the requirements of
PIE had been met, it was submitted that the appellant had given the
first respondent due
notice terminating her right of occupation and
rendering her continued occupation unlawful. The appellant had, in
addition, offered
the first respondent alternative accommodation. On
this basis, no impediment existed to preclude an eviction order. At
the hearing
of the appeal the appellant re-iterated the offer to
provide suitable alternative accommodation to the first respondent.
The facts
[11]
As already mentioned, t
he
appellant is the registered owner of
the
property.
He purchased the property at a
public auction and it was registered in his name on 15 September
2008. The previous owner was Quickcon
Development (Pty) Ltd
(Quickcon) which had been placed in liquidation.
[12]
The history of the property is as follows.
On 22 March 1939 Portion 36, Lot F of the farm Parel Vallei was
transferred from its
then-owner Mr Purdan, to Mr John Ince. He was
the registered owner of the farm upon which the first respondent came
to reside with
her parents when she was 11 years old in 1947. Mr John
Ince transferred the farm to a Mr Rex Ince in 1969. At some stage
prior
to 1991
Portion 36, Lot F of the farm Parel Vallei came to be designated as
e
rf 7124. Whether
this was a portion of the farm or the whole of it, is not apparent
from the record. During this period the transfer
of
e
rf
7124 was effected to a Mr Daniels.
[13]
In 1991, a Mr Rack purchased erf 7124 from
Boland Bank. It is unknown why this occurred but it may be surmised
that Boland Bank
held a mortgage bond over the property. Mr Rack
confirms, by way of affidavit, that the first respondent and her
husband were renting
the property at the time having been given
a
life right to occupy the property by the
previous owners. He was aware of this right and considered himself
bound thereby.
[14]
On 13 February 2001, Mr Rack sold and
transferred a portion of
e
rf
7124 to Quickcon. This portion was registered as
e
rf
14421 and was held under title deed 797747/2001. It appears that
Quickcon subdivided
e
rf
14421 into several erven for development purposes. This is reflected
in a subdivision diagram issued by the Surveyor-General,
SG
4613/2002. One of the subdivided erven – erf 14611 – is
the property on which the first respondent resides. It is
this
property which was acquired by the appellant by public auction in
2008.
[15]
This outline of the history of the property
illustrates a process of subdivision of the original farmland into
erven over time.
The first respondent resided on the farm throughout
this process.
The issues
[16]
The first key issue raised on appeal
concerns the propriety of the
high
court
allowing the respondent to raise a new issue on appeal. This
concerned the contention by the
first
respondent that she is an occupier as
defined by ESTA. The second issue concerns the question whether the
appellant had established
that the
first
respondent was an unlawful occupier within
the meaning of the term as envisaged by PIE. This issue turns on the
notice of termination
of occupation given to the
first
respondent. It also concerns the broader
question of compliance with the requirements for eviction as set out
in PIE.
[17]
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;
this
Court’s
entitlement to interfere with the exercise of that
discretion and, to the extent it may, whether grounds for
interference had been
established.
The new issue on
appeal
[18]
The
first
respondent raised the question regarding
the application of ESTA on the eve of the appeal hearing before the
high
court. In essence,
she
contended as
a further ground of appeal, that the appellant had not established
that ESTA does not apply.
[19]
The
high
court
allowed the
first
respondent
to rely upon the point. In doing so, it characterized it as,
essentially, a point of law. The
high
court, however, allowed the appellant to
file a set of affidavits to present such evidence as it wished to
address the issue. No
affidavits were filed on behalf of the
first
respondent.
[20]
It was common cause that the action before
the magistrate was prosecuted on the basis that the provisions of PIE
applied. The
appellant's
cause
of action was formulated on that basis. It was also common cause that
the parties had, at a pre-trial meeting
,
agreed that the matter be adjudicated on the basis
that PIE was applicable.
[21]
Based on this, the
appellant
took the view before the
high
court and this
C
ourt
that
both
court
s
w
ere
bound
by such agreement. The
appellant
further
argued that the
high
court
ought not to have allowed the issue
because
the appellant
would
be
severely prejudiced. Had the issue been
raised before the trial court
,
the
appellant would have presented evidence, including that of an expert
conveyancer to establish from the history of the property
that ESTA
did not apply.
[22]
Section 1 of PIE defines an unlawful
occupier as:
‘
.
. . a person who occupies land without the express or tacit
consent of the owner or person in charge, or without any other
right
in law to occupy such land,
excluding a
person who is an occupier in terms of the
Extension of Security of
Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act 31 of 1996).’ (My
emphasis
.
)
[23]
In terms of s 2 of PIE, the Act applies to
all land throughout the Republic. In terms of s 4(1) of PIE the
provisions of that section
apply to proceedings by an owner or person
in charge of land for the eviction of an unlawful occupier.
[24]
Section 1 of ESTA defines an occupier
as
:
‘
a
person residing on land which belongs to another person, and who has
on 4 February 1997 or thereafter had consent or another right
in law
to do so, but excluding .
.
.’
.
[25]
The exclusions provided for in the
definition are not relevant in the present matter. The relevant
portions of s 2 of ESTA provide
as follows:
‘
(1)
Subject to the provisions of section 4, this Act shall apply to all
land other than land in a township established, approved,
proclaimed
or otherwise recognised as such in terms of any law, or encircled by
such a township or townships, but including—
(a) any land within such
a township which has been designated for agricultural purposes in
terms of any law; and
(b) any land within such
a township which has been established, approved, proclaimed or
otherwise recognised after 4 February 1997,
in respect only of a
person who was an occupier immediately prior to such establishment,
approval, proclamation or recognition.
(2)
Land in issue in any civil proceedings in terms of this Act shall be
presumed to fall within the scope of the Act unless the
contrary is
proved.’
[26]
It is trite that an owner or person in
charge of land who wishes to evict another person who resides on that
land must comply with
s 26(3) of the Constitution. That section
requires that a court order first be obtained. It also provides that
legislation may
not permit arbitrary evictions. The principal
legislation regulating eviction from land is PIE.
[27]
PIE serves to regulate evictions from ‘all
land’ in the Republic. It does so by prescribing its
application only to
‘unlawful occupiers’ as defined and
sets out both procedural and substantive safeguards to avoid
arbitrary eviction.
Finally, it provides that the court dealing with
an eviction must be satisfied that the eviction is just and
equitable.
[28]
A
party relying on PIE must bring its case for eviction within the
ambit of its provisions. It bears an onus to establish, as an
essential jurisdictional requirement, that the person sought to be
evicted is an
unlawful
occupier
.
This means that it must be established that the occupier is not an
occupier as defined by ESTA.
[2]
This much is clear from a reading of the plain language of PIE read
with ESTA. In the light of this, the ‘new issue’
on
appeal was, properly considered, a point of law which could be raised
on appeal, notwithstanding that it was not raised before
the
magistrates’ court. The high court was accordingly not in error
to allow the issue to be raised on appeal. Insofar as
the raising of
the new point constituted a defence not fully canvassed by the
evidence, the high court permitted the appellant
to file further
affidavits to present such evidence as was considered germane to the
new issue. I will return to this aspect
hereunder.
Was the high court
precluded from adjudicating the new issue on the basis of the
pre-trial agreement?
[29]
As indicated earlier in this judgment, the
appellant proceeded on the basis that PIE applied. An oral pre-trial
agreement, which
was brought to the magistrate’s attention at
the commencement of the trial, was concluded between the parties.
According
to the appellant, it was agreed that the matter would be
adjudicated on the basis that the provisions of PIE were of
application.
[30]
Before this Court it was argued that the
terms of the agreement precluded the respondents from relying on the
provisions of ESTA.
They were bound by the agreement, as
were
the
high court
and the
magistrates’ court.
[31]
The answer to this contention is twofold.
In the first instance, the terms of the agreement, as presented on
the record, are by
no means clear. It is not apparent that it amounts
to anything more than that the parties agree that the formal
requirements of
PIE have been met and that the court is to deal with
the substantive questions on the basis of PIE. It is certainly not
clear that
there was an express agreement that the provisions of ESTA
do not apply. In any event, it certainly was the case that a
principal
dispute between the parties throughout the trial remained
the question whether the first respondent was an unlawful occupier.
Accordingly,
it remained for the appellant to prove that the first
respondent was an unlawful occupier as provided by PIE. It appears
from the
magistrate’s judgment that he did not understand the
pre-trial agreement to mean that ESTA was irrelevant. Had he done so,
there would have been no cause to refer to ESTA in his judgment in
the following terms:
‘
We
can also at this stage exclude and accept the extension – that
the extension of security of 10 year Act of 1997 (sic) does
not apply
in the circumstances, due to the subdivision of the farm in 2001,
although at this stage in the proceedings, I must note
that I have
special regard and specific regard to the spirit of the extension of
security of 10 year Act of 1997, given the history
of the matter and
it is against this background, that the matter was then argued not
only on the papers, but also with the leading
of oral evidence.’
[3]
[32]
The second answer is determinative. Section
25(3) of ESTA provides that no waiver of rights conferred by ESTA
shall be of any force
or effect unless reduced to writing. There are
obvious reasons for such a requirement. ESTA seeks to protect
identified vulnerable
groups of persons from eviction. Such
vulnerable groups include: persons who, for historical reasons, are
illiterate or undereducated;
and, marginalised persons who do not
enjoy access to the resources to protect their rights. The only basis
upon which it could
be found that the pre-trial agreement precluded
consideration of the provisions of ESTA, is if that agreement
constituted a valid
waiver of rights in terms of ESTA. The pre-trial
agreement, such as it is, does not meet this threshold.
Does ESTA apply?
[33]
The high court, having considered the
evidence presented by the appellant in its additional affidavits,
came to the conclusion that
the evidence does not discharge the onus
which rests upon a party seeking an eviction in terms of PIE, to
establish that ESTA does
not apply. This finding was one made in
conjunction with a further finding, namely that the appellant had
failed to establish that
the first respondent was an unlawful
occupier by reason of the termination of her right to occupation of
the property.
[34]
It was argued before this Court that the
high court was incorrect to find that the appellant had failed to
discharge the onus. The
evidence which was presented by the appellant
was not challenged by the first respondent who
,
it was submitted,
had elected to file no
answer thereto. Since it was not disputed, the facts alleged by the
appellant ought to have been accepted.
[35]
The undisputed facts established that the
property in question, as its history indicates, came to be
incorporated into a township
by no later than 1991, when its status
as a erf was registered in the land register. This, coupled with the
assertion by the appellant
that the land ceased to be farm land
progressively over time as urban development extended around it,
ought to have persuaded the
high court that the land was urban in
character and that the exception in s 2(1)(
b
)
of ESTA does not apply, since the cut-off date provided for therein
is 4 February 1997. The high court considered that the assertion,
contained in the appellant’s founding affidavit, to the effect
that the farm had, decades earlier, developed into a highly
developed
residential area was insufficient to discharge the onus.
[36]
Even taking into account the presumption
provided for in s 2(2) of ESTA, I am not persuaded that the high
court was correct to conclude
that the onus was not discharged. I
accept that the evidence presented by the appellant may be lacking in
cogency. It is certainly
open to criticism, inasmuch as it is not
apparent upon what basis the appellant is able to assert an
interpretation of the objective
evidence. Quite possibly that might
only fall within the province of an expert in conveyancing or in town
planning. There is, however,
the evidence that urban development had
occurred over a protracted period and that the land in question in
this application had
been encircled by such urban development since
1991. These are factual averments with which the first respondent did
not join issue,
notwithstanding that she sought to rely upon the
interrelationship between ESTA and PIE. In the absence of challenge
they ought
to have been accepted. These averments, read together with
the objective evidence, establish a balance of probability in favour
of finding that s 2(1)(
b
)
of ESTA does not apply. In the circumstances the high court erred in
finding that the appellant did not discharge the onus of
establishing
that ESTA does not apply.
Unlawful occupier
[37]
The high court found that the first
respondent was not an unlawful occupier, as required for an order of
eviction in terms of PIE.
It made this finding on the basis that the
period of notice given to the first respondent to vacate the property
was not a reasonable
period.
[38]
The high court’s reasoning on this
aspect is difficult to follow. It accepts that prior to notice being
given the appellant
entered into discussions with the first
respondent regarding her continued occupation of the property. It
accepted that in these
discussions the appellant signified that he
was prepared to arrange alternative accommodation for the first
respondent. Yet, these
interactions, the time that elapsed from then
to when formal written notice to vacate was given, and the period
that elapsed from
the end of the period of notice to the issuing of
legal proceedings were not taken into consideration.
[39]
In my view, the high court approached the
issue upon an incorrect basis. The appellant signalled, clearly
and unequivocally,
his intention to terminate the first respondent’s
right to occupy the property. He withdrew his consent for first
respondent’s
continued occupation. Accepting, for the sake of
argument, that he was entitled to do so, the time period within which
to vacate
is relevant only to the granting of an eviction order in
those circumstances. If the period is a reasonable one, then the
owner
may approach a court for an eviction order. The occupation is
rendered unlawful by the termination of the right of occupation,
since it is such notice which withdraws the express or tacit consent
to occupy.
The oral life-right
[40]
In resisting the eviction order the first
respondent asserted ‘[an]other right in law to occupy the
land’, namely an
oral right of occupation of the property for
life, conferred upon her and her late husband by a previous owner of
the property.
She explained that her husband had worked for a
previous owner, Mr Ince. Mr Rack, a subsequent owner, had expressly
agreed that
she and her husband would be entitled to live in the
house upon the property for the rest of their lives.
[41]
The appellant did not dispute that such a
‘right’ had been conferred upon the first respondent. He
denied however, that
it was enforceable against successive owners,
more particularly himself, since it was not reduced to writing and
registered against
the title deeds of the property. The ‘right’
was accordingly not one of
habitatio
which would preclude a termination of the right of occupation.
[42]
The
magistrates’ court found in favour of the appellant. The high
court did not, in terms address this aspect. Before this
Court
counsel for the first respondent did not pursue reliance upon the
existence of a right of
habitatio
.
It was accepted that the right, conferred by Mr Rack and in respect
of which there was objective evidence to be found in a subsequent
deed of sale of the property, had not been reduced to writing and had
not been registered against the title deed. To qualify as
a right of
habitatio
enforceable against successors in title this was required.
[4]
[43]
In
the light of this it is unnecessary to deal with this aspect. The
assertion of a life-right, did not preclude the termination
of the
first respondent’s right of occupation. Nevertheless, the fact
that she and her husband were granted an oral right
of occupation of
the property for life remains a relevant consideration in relation to
whether it would be just and equitable to
grant an eviction order or
within what period such eviction order ought to be carried into
effect.
[5]
[44]
There
are two reasons. The first, and perhaps obvious reason, is that all
facts must be taken into account when deciding what is
just and
equitable. The second is that considerations of what is just and
equitable may persuade a court not to evict a person
who is found to
be in unlawful occupation.
[6]
As
I have said, it was not disputed that the first respondent and her
husband were given the right to occupy the property for the
rest of
their lives. It was also not in dispute that some, if not all, of the
previous owners were aware of this right and were
prepared to honour
it. The first respondent believed, albeit incorrectly, that the right
protected her from eviction and she continued
to occupy the property
in this belie
f
.
She can hardly be expected to have known that her right was
precarious inasmuch as it had not been reduced to writing and
registered
against the title deeds of the property. The fact is
that she lost the absolute protection against eviction precisely
because
she was unaware that she needed to take further legal steps
to ensure that her rights were enforceable against successors in
title.
A just and
equitable order
[45]
This brings me to the essential basis of
the high court’s judgment, namely its finding that it would not
be just and equitable
to grant and order of eviction. It considered
this aspect on the assumption that the first respondent was an
unlawful occupier
in term
s
of
PIE. Since I have found that the high court was wrong to conclude
that the first respondent was not an unlawful occupier, it
is
necessary to deal with this finding.
[46]
In coming to the conclusion that it would
not be just and equitable to grant an eviction order, the high court
took into consideration
several factors. Among these was the length
of time
(over seven decades)
that
the first respondent had been in occupation of the property; the
first respondent’s advanced age; and the fact that she
occupied
the property with her disabled son, Adam. The high court also
considered the purpose for which the appellant had acquired
the
property and what he intended to do with it.
[47]
Before this Court it was argued, on behalf
of the respondents, that when a court exercises its discretion as to
what is just and
equitable, it exercises a true discretion.
Accordingly, a court on appeal will not readily interfere. It will
only do so if it
is satisfied that the discretion was wrongly
exercised or exercised upon a wrong principle.
[48]
Whether,
in the context of an eviction order, the discretion to determine what
is just and equitable consists of a ‘true’
discretion or
not, need not be decided. That is so because even if the discretion
is of the more limited kind, there is, in my
view, no basis to
interfere. The high court was entitled to exercise a discretion even
though the occupation was unlawful.
[7]
There was therefore no misapplication or misdirection. There is also
no discernible misdirection in relation to the facts relevant
to the
exercise of that discretion.
[49]
It
bears emphasis that the first respondent has been in occupation of
the property since she was 11 years old. She is now (at the
time of
this appeal), 84 years old. Until 2009 her continued occupation was
entirely secured, by reason of the consent of successive
owners some
of whom accepted that she had been given a lifelong right of
occupation and were prepared to honour it. During
the greater
part of her occupation the property formed part of a farm. Gradually,
and in circumstances beyond her control, the
farm became absorbed by
the growth of urban developments. Until 1991, when the
remaining portion of what was previously farmland,
was encircled by
urban development, the first respondent would undoubtedly have
enjoyed the protection of ESTA. While she
may have lost the
absolute protection conferred by s 2(1)(
b
)
read with s 8(4) of ESTA
[8]
as a
vulnerable person, her status as a vulnerable person
,
even in the context of PIE,
has
essentially
remained
unchanged.
[50]
These are very weighty considerations. In
my view, they outweigh the protection of the exercise of the right to
property that an
entitlement to an order of ejectment provides. PIE
recognises that in appropriate circumstances the right to full
exercise of ownership
must give way, in the interest of justice and
equity, to the right of vulnerable persons to a home.
[51]
This is such a case. Indeed, it is
difficult to conceive that the circumstances of this case would not
justify a refusal of an order
of eviction in the interests of justice
and equity. In my view, the high court was correct to find that an
order of eviction ought
not to have been granted by the magistrates’
court.
Alternative
accommodation
[52]
It is necessary to deal briefly with a
tender, made by the appellant at the hearing of the appeal, to
provide the respondents with
suitable alternative accommodation. The
tender was made from the bar by way of a ‘renewal’ of an
earlier tender to
similar effect.
[53]
It was pointed out by counsel for the first
respondent that, at the time of the appeal hearing before the high
court, there was
no extant tender to provide suitable alternative
accommodation to the respondents. At a much earlier stage of the
litigation such
a tender was made but since it was not accepted by
the first respondent it had fallen by the wayside.
[54]
In order to facilitate consideration of the
tender, the appellant was allowed an opportunity to formulate a
tender based upon an
investigation of the availability of
accommodation and to present same to the respondents for their
consideration. The appellant
was given an opportunity to file an
affidavit detailing his offer and the respondents’ response
thereto.
[55]
Subsequent to the hearing an affidavit was
filed, to which were annexed documents detailing properties that were
considered and
correspondence between the parties. It is not
necessary to set out the nature of the offer. It suffices to note
that the appellant
offered to purchase a unit in a secure complex in
the area of Somerset West which would be transferred into the name of
the first
respondent. The first respondent indicated that she
did not accept the offered accommodation as a suitable alternative.
She
was accustomed to life in the house she presently occupied and
enjoyed
not only
the
freedom and space it afforded her
but also
the environment around it
.
[56]
Whilst I accept that the appellant’s
offer, now made, was made in good faith and in recognition of the
obviously adverse effects
that ejectment of the first respondent
would bring about, I do not consider that it
tilts
the scales in favour of granting an order
of ejectment subject to the first respondent being accommodated as
proposed. Such an order
would clearly be one made contrary to the
first respondent’s wishes and would amount to no less than
compelled ejectment
notwithstanding the overriding considerations of
justice and equity referred to above.
[57]
This was not a case in which the
reasonableness or otherwise of an unlawful occupier’s refusal
to vacate was a central issue.
The question arose tangentially and
belatedly. The true issue concerned the dignity of an elderly and
vulnerable woman and a person
with
disabilities
in the circumstances of the
first
respondent
and her son
. To hold
that these weighty considerations are to give way merely because an
alternative abode is offered would negate the first
respondent’s
dignity rather than protect it.
[58]
It follows that the order of the high court
was
correctly made. The appeal must
therefore fail. We were advised that counsel for the first respondent
appeared
pro bono
.
The second respondent filed a notice to abide. Accordingly no costs
were sought other than an order allowing recovery of such
disbursements as may have been incurred by the first respondent’s
attorneys in preparing
for
the
appeal. In the circumstances that would be an appropriate order.
[59]
I therefore make the following order
:
1
The appeal is dismissed.
2
The appellant is directed to pay such disbursements as may have been
incurred
by the first respondent’s attorneys in preparing for
the appeal.
G
G
GOOSEN
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: W
Vos
Instructed by: Miller,
Bosman, Le Roux Attorneys,
Somerset West
Phatshoane
Henney, Bloemfontein
For
first respondent: E Fagan SC
(with him
A Morrisey
)
Instructed by:
Stellenbosch University Law Clinic, Stellenbosch
UFS
Law Clinic, Bloemfontein
For
Amicus Curiae
:
M
C Louw
[1]
Constitution
of the Republic of South Africa, 1996.
[2]
See
Isaacs
and Others v City of Cape Town and Another
[2018]
1 All SA 135
(WCC) at para 32.
[3]
I have reproduced the passage as it appears in the record without
correcting obvious errors that arose in the transcription of
the
orally presented judgment.
[4]
See
Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd
1918
AD 1
at 16;
Janse
van Rensburg and Another v Koekemoer and Others
2011 (1) SA 118
(GSJ) para 19.
[5]
City of
Johannesburg v Changing Tides 74 (Pty) Ltd and Others
[2012] ZASCA 116
;
[2013] 1 All SA 8
(SCA);
2012 (6) SA 294
(SCA)
para 12.
[6]
Ibid at 302 fn 22.
[7]
See fn 4 above. See also
Baron
and Others v Claytile (Pty) Ltd and Another
2017(4) SA 108 (LCC) para 14;
Occupiers
of erven 87 & 88 Berea v De Wet N O and Another
[2017] ZACC 18
;
2017 (8) BCLR 1015
(CC);
2017 (5) SA 346
(CC) paras
44-47.
[8]
The section provides,
inter
alia
,
that the right of residence of an occupier who has resided on the
land for 10 years and has reached the age of 60 years may
not be
terminated, save in specified circumstances set out in s 10 of ESTA.