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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 12094/2024
In the matter between:
PETER JOHN BUTTNER
Applicant
and
CHARLENE MEGAN VAN WYK
First Respondent
ALL PERSONS OCCUPYING THE
PROPERTY REGISTERED AS
ERF 1[…], DURBANVILLE, KNOWN AS Z[…],
BUILDING NO. […], UNIT 6[…],
B[…] ROAD, DURBANVILLE, CAPE TOWN,
WESTERN CAPE PROVINCE,
THROUGH THE FIRST RESPONDENT
Second Respondent
DURBANVILLE MUNICIPALITY Third Respondent
Coram: Acting Justice P Farlam
Heard: 5 August 2024
Delivered electronically: 20 August 2024
JUDGMENT
FARLAM AJ:
[1] The applicant , Mr Peter Buttner, and the first respondent , Ms Charlene van
Wyk, were, respectively, the lessor and lessee of a unit in the Z […] sectional
title scheme in Durbanville, Cape Town (the property) from May 2016 to 30
June 2023, when their lease agreement came to an end at the instance of Mr
Buttner (the landlord / lessor). As a result of the landlord’s termination of the
lease (pursuant to a notice dated 25 May 2023), Ms Van Wyk was
contractually obliged to vacate the property before 1 July 2023. She has
however refused to do s o. Mr Buttner has accordingly been required to
approach the court for an order directing Ms Van Wyk and any persons
occupying under her to vacate the property; alternatively authorising the
Sheriff to evict her and any other occupants from the premises.
[2] Ms Van Wyk has not suggested that she has any entitlement to continue to
occupy the property. Nor could she have made any such assertion. Mr Buttner
was lawfully entitled to terminate their agreement of lease; and also anyway
could have cancelled what was then a month -to-month lease in June 2023,
after Ms Van Wyk had failed to remedy her repeated failure to pay the
monthly rental (the n R7,700 per month), which had, as of 25 May 2023,
resulted in her being R30,800 in arrears, and, as at 2 June 2023, caused her
to owe her erstwhile landlord R38,500.
[3] Ms Van Wyk has however contended that it would nevertheless not be “just
and equitable” to evict her and her 11-year-old son from the property, and that
the court should therefore, in the exercise of its discretion under section 4 of
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,
19 of 1998 (PIE), refuse to grant such an order at the instance of Mr Buttner.
[4] The applicant has served the notice required by subsection s 4(2) and 4(5) of
PIE, and also otherwise complied with the service provisions referred to in
subsection 4 of PIE . What therefore falls to be considered is whether an
eviction order should be granted in the light of section 4 of PIE, and if so, what
a just and equitable date for the vacation of the property by Ms Van Wyk and
her son would be.1
Whether the eviction of Ms Van Wyk and her child would be just and equitable
[5] A key factor when considering whether to make an eviction order under
section 4 of PIE is the length of time that the unlawful occupier has occupied
the land in question. It is particularly relevant whether the unlawful occupation
has been for less than six months or more than six months at the time that the
proceedings are initiated , as that determines whether subsection 4(6), or the
more onerous subsection 4(7), is applicable.
[6] In this instance, Ms Van Wyk had resided in the property from 13 May 2016,
and thus for some seven years and two months when the present application
was launched on 24 July 2023. As the applicant’s counsel pointed out with
reference to the Supreme Court of Appeal decision in Ndlovu v Ngcobo,2 what
is however relevant for purposes of subsections 4(6) and 4(7) is the length of
the unlawful occupation, not the total occupation; and, even if one takes the
date of the service of the application (15 August 2023) as the date on which
these proceeding s were initiated, Ms Van Wyk had only been in unlawful
occupation of the property for less than two months when the application was
brought. In the circumstances, ss 4(6), not ss 4(7), is the operative provision. I
am consequently required to assess whethe r an order for eviction would be
just and equitable “after considering all the relevant circumstances, including
the rights and needs of the elderly, children, disabled persons and households
1 As noted by the Supreme Court of Appeal in City of Johannesburg v Changing Tides 74 (Pty) Ltd
and Others 2012 (6) SA 294 (SCA) para 25, a case such as the present involves these two discrete
enquiries, which, when both concluded, should result in single order.
2 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) para 17.
headed by women” (ss 4(6)); but need not consider “whether land has been
made available or can reasonably be made available by a municipality or
other organ or state or another land owner for the relocation of the unlawful
occupier” (as ss 4(7) enjoins the court to take cognisance of when the period
of unlawful occupation has exceeded six months).3
[7] In this case, the household is headed by a woman (Ms Van Wyk) and a child
(Ms Van Wyk’s 11-year-old son) also resides there. Ms Van Wyk also alleged
that she is unemployed and an “elderly sick woman”, whose mother lives in a
small town in the Northern Cape . She has further alleged that “[n]one of my
siblings are in a position to assist me and my son with accommodation”.
[8] Ms Van Wyk has not however indicated how many siblings she has, or where
they live, or what their financial status is. Nor is it correct that she is “elderly”:
as her own affidavit stated, she is currently 47 years old, and was 46 when
the application was brought. Her vague statements regarding her medical
condition are also unsubstantiated and entirely uncorroborated. Furthermore,
as pointed out by the applicant, Ms Van Wyk has been singularly
unforthcoming with regards to whether, for example, she has sought
alternative accommodation; why she could not stay with family or friends even
on a temporary basis; what exactly her financial position is; and whether or
not her son’s father contributes to his maintenance, and if so, how much he
pays. Ms Van Wyk’s explanation a s to why she did not complete the City of
Cape Town’s housing questionnaire was also unsatisfactory, as were her
statements about the causes of Legal Aid South Africa’s withdrawal as her
attorneys of record barely three months after agreeing to be appointe d as
such.
[9] As the Constitutional Court observed in Occupiers, Berea v De Wet,4 PIE was
not intended to have the effect of expropriating the rights of landowners for
3 See Jacobs v Communicare NPC and Another 2017 (4) SA 412 (WCC) para 9.
4 Occupiers, Berea v De Wet N.O. and Another 2017 (5) SA 346 (CC) para 80 , endorsing Ndlovu v
Ngcobo supra fn.2 para 17.
the benefit of unlawful occupiers. That would essentially be the consequence
of refusing to grant Mr Buttner an order evicting Ms Van Wyk. This is all the
more so as Ms Van Wyk has given no indication that she will pay anything for
the property, let alone discharge her overdue indebtedness, which is by now
considerable, and she has at no stage even evinced a willingness to discuss a
payment plan with Mr Buttner . Balancing the rights and interests of the
property owner (Mr Buttner) against the rights and interests of the unlawful
occupier (Ms Van Wyk) , with specific reference to the facts of the p resent
case, there is no doubt in my mind that it would be just and equitable to order
that Ms Van Wyk and her son vacate the property, and in the alternative (and
in the event of Ms Van Wyk not doing so voluntarily) that they be evicted.
A just and equit able date for the vacation of the property, alternatively their
eviction therefrom
[10] In terms of subsections 4(8) and (9) of PIE:
“(8) If the court is satisfied that all the requirements of this section have
been complied with and that no valid defence has been raised by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine –
(a) a just a nd equitable date on which the unlawful occupier must
vacate the land under the circumstances; and
(b) the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date
contemplated in paragraph (a).
(9) In determining a just and equitable date contemplated in
subsection (8), the court must have regard to all relevant factors,
including the period the unlawful occupier and his or her family have
resided on the land in question.”
[11] What consequently remains to be considered is what a just and equitable date
for the vacating of the property would be, as well as what date should be set
for an eviction in the event of Ms Van Wyk not vacating voluntarily by that
date.
[12] The applicant sought an order giv ing Ms Van Wyk and her son a month to
vacate the property, while acknowledging that the time afforded the first
respondent to leave the property was something for the court to decide upon
in the exercise of its discretion. Ms Van Wyk, for her part, did not contend for
any specific period for which she should be permitted to extend her unlawful
occupation of the property (contenting herself with a submission that she
should not be ordered to vacate), though she did seek to make something of a
hospital proced ure which she alleged, without any substantiation or
corroborating documentation, was due to take place in October 2024.
[13] When the application was brought in the second half of July 2023, Ms Van
Wyk had already resided in the property for six months without paying rent. At
this juncture, she has occupied the property rent -free for some nineteen
months, and has remained there unlawfully (i.e., without any legal right) for
over a year. Mr Buttner has thus derived no income from the property for
more than a year -and-a-half, while having to incur costs in relation to the
property (in the forms of levies, rent and utilities). This application has also
already been unduly delayed as a result of the actions and inactions of Ms
Van Wyk.
[14] Had Ms Van Wyk been residing in the property on her own, I would thus have
been inclined to order that she vacate within a month of the date of the court’s
order. I might add that Ms Van Wyk’s allegations about her upcoming medical
procedure – introduced for the first time in a further answering affidavit filed on
1 August 20245 – would not in my view have warranted any different outcome,
given their vagueness and the absence of any supporting documentation.
5 Insofar as it was necessary to do so, this further affidavit was admitted into evidence at the hearing.
[15] I am however mindful of the fact that the High Court is the upper guardian of
minor children and accordingly required to consider what is in the best
interests of a child ;6 and, as mentioned, the property is currently occupied by
both Ms Van Wyk and her 11 -year-old son. The deliberations regarding a just
and equitable date for the vacation of the property must therefore be centrally
informed by considerations of the conseque nces of an eviction order for
Ms Van Wyk’s minor child.
[16] Almost nothing was said by Ms Van Wyk in her two affidavits about her son .
Significantly, she did not allege that his learning or participation at the school
he was attending would be compromise d were they to be evicted from the
property. Indeed, she said nothing about his education or well-being at all. In
line with the Constitutional Court’s holding in Mpofu7 that, when establishing
what is in the best interests of the child, the court is “not bound by … the
limitations of the evidence presented, or contentions advanced or not
advanced, by respective parties” ,8 I nevertheless considered it appropriate to
make a few enquiries in court of Ms Van Wyk (who represented herself) with
regard to her son. Ms Van Wyk informed the court in response that her son
was in Grade 6 at the E […] S[…] School in Durbanville. She also said that he
could probably stay with a classmate during the time she had alleged she
would be in hospital in October 2024.
[17] The property (in B[...] Street, Durbanville) is only a few kilometres, and less
than ten minutes’ drive, away from the E[…] S[…] School . It would thus seem
relatively easy for Ms Van Wyk’s minor child to get to and from school at
present. There is no cogent evidence that Ms Van Wyk – who, as mentioned,
has provided no objective or verifiable information about her financial position
6 H v Fetal Assessment Centre 2015 (2) SA 193 (CC) para 64 ; see, too, Kotze v Kotze 2003 (3) SA
628 (T) at 630G, and Ex parte Kedar and Another 1993 (1) SA 242 (W) at 244E.
7 Mpofu v Minister of Justice and Constitutional Development and Others (Centre for Child Law as
Amicus Curiae) 2013 (9) BCLR 1072 (CC) para 21.
8 As the Supreme Court of Appeal observed in Changing Tides supra fn.1 at para 27, a more
proactive approach may anyway be appropriate in eviction cases.
– would not be able to afford suitable alternative accommodation in
Durbanville for herself and her son if obliged to leave the property in relatively
short order; and that her son could therefore not continue to attend E[…] S[…]
School without difficulty in that eventuality. 9 It is nevertheless unclear on the
available information where Ms Van Wyk could find accommodation if ordered
by court order to vacate the property, and more particularly whether she could
find a new residence sufficiently close to her son’s school before the end of
the current school year. Despite the absence of any allegation s by Ms Van
Wyk of prejudice in this regard, I thus cannot be sure that Ms Van Wyk’s
Grade 6 son ’s education would not be unreasonably disrupted were they to
have to move home so late in the school year. It might even be that her son
would no longer be abl e to remain with his mother and also attend his current
school if I were to direct that both should vacate the property by the end of
September 2024. And an eviction order with a date of, say, 31 October 2024
could well prejudice the learner with his year-end exams.
[18] In the circumstances, I have concluded that a just and equitable date for
Ms Van Wyk and her minor son to vacate the property would be as soon as
reasonably possible after the end of the current school year , which ends on
Wednesday, 11 December 2024 in the case of Western Cape schools
(including E[...] S[...] ). Taking into account public holidays and festivals, as
well as the fact that Mr Buttner should ideally be able to rent out the property
to new tenants from 1 January 2025, I according ly determine that Ms Van
Wyk should vacate the property, together with her son, by Tuesday, 17
December 2024; and that, if they fail to vacate the property on that date, they
may be evicted by the Sheriff or his or her deputy on Thursday, 19 December
2024, or as soon as possible thereafter.
[19] I appreciate that effectively prolonging Ms Van Wyk’s unlawful occupation of
the property for another four months would exacerbate the prejudice
9 I might add that the tuition fees for a Grade 6 scholar at the E […] S[…] School were, according to
publicly available information, over R60,000.00 in 2023, which is on its face incompatible with Ms Van
Wyk’s protestations about her inability to pay rent.
sustained by the applicant. But I am concerned that a n earlier eviction date
would, in all the circumstances, potentially cause even greater harm to Ms
Van Wyk’s minor son, whose interests for the remainder of the school year
would, by contrast, be protected by the order I propose to make. Mr Buttner
could also potentially pursue a claim for unpaid rental and damages against
Ms Van Wyk. The eviction date would therefore seem just and equitable for all
parties (and thus comply with the test laid down in Changing Tides10).
Costs
[20] The applicant asked for the costs occasioned by the application on a party -
and-party scale. There is no reason to deprive the applicant of a costs order ,
and thus to depart from the general rule that a successful party should be
awarded its costs . Indeed, the applicant has not only been constrained to
institute these proceedings in an attempt to bring an end to the unlawful
occupation of his property, but has also had to endure delays and incur further
costs in this application as a result of acts and omiss ions of the first
respondent which were at least in effect vexatious. There may accordingly
have been a basis under the common law for the applicant to have sought
costs on a punitive, attorney and client scale 11 – a costs order to which he
may anyway have been entitled under clause 17.2 of the lease agreement –
but it is unnecessary to consider that, as the applicant has merely asked for
party-and-party costs , which, as indicated, I consider that he should be
allowed to recover. Whether a costs order will be meaningful is unclear given
the first respondent’s failure to substantiate her financial position; but I cannot
conclude on the available information that it would be futile.
[21] The costs order will include the costs which this court has already ordered the
first respondent to pay:
10 Supra fn.1 para 12 (last sentence) [305B of the SALR report].
11 See e.g., the well-known case of In re Alluvial Creek 1929 CPD 532 at 535.
(i) in relation to the chamber -book application which the applicant brought
at the end of January 2024 to compel the first respondent to deliver an
answering affidavit;12 and
(ii) in connection with the postponement of the application on 29 April
2024.13
[22] No submissions were made as to the scale of counsel’s costs; but this matter
in any event appears to be one in which the default provision (Scale A) would
be appropriate.
Order
[23] I accordingly make the following order:
1. The first respondent and all other persons occupying the property
registered as erf 1[…], Durbanville and known as Z[…]l, Building No.
[…], Unit 6 […], B[…] Road, Durbanville, Cape Town (the “property”)
through the first respondent (collectively, the “occupiers”) are hereby
evicted from the property.
2. The occupiers must vacate the property on or before Tuesd ay,
17 December 2024.
3. Should the occupiers fail to vacate the property by 17 December
2024, the Sheriff or his/her deputy are authorised to evict the
occupiers from the property on Thursday, 19 December 2024, or any
day thereafter as close as possible to the aforementioned date.
12 That costs order was contained in paragraph 4 of the order granted by Samela J on 2 February
2024.
13 In paragraph 2 of the order made on that date by Slingers J it was ordered that the “wasted costs of
the postponement will be for the respondents’ account”.
4. The Sheriff or his/her deputy is authorised to engage the services of
the South African Police Services (SAPS) to assist him/her in the
execution of their eviction of the occupiers if the Sheriff or his/her
deputy deems it necessary.
5. The first respondent shall pay the costs of the application on a party
and party basis, with those costs including the costs of the
applicant’s chamber -book application and the wasted costs of the
postponement on 29 April 2024. Counsel’s costs are granted in
accordance with Scale A.
_________________________
ACTING JUDGE P FARLAM
For applicant: Adv Paula Gabriel
Instructed by: Van Zyl Kruger Inc.
For first respondent: in person (Ms Van Wyk)