SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 13785/2024
In the matter between
PURPLE BLOK PROJECTS (PTY) LTD APPLICANT
REGISTRATION NUMBER: 2022/658905/07
And
BRIAN LUFEFE VUMAZONKE FIRST RESPONDENT
IDENTITY NUMBER: 8[…]
GCOBISA LAVINIA LOUW SECOND RESPONDENT
IDENTITY NUMBER: 8[…]
CITY OF CAPE TOWN THIRD RESPONDENT
ALL OTHER OCCUPANTS OF THE PROPERTY FOURTH RESPONDENT/S
HOLDING TITLE UNDER THE FIRST AND
SECOND RESPONDENTS
Date of hearing: 22 November 2024
3 December 2024
11 December 2024
Date of judgment: Judgment was handed down electronically by
circulation to the parties’ representatives by email
and released to SAFLII. The date for hand down is
deemed to be 13 December 2024
JUDGMENT
[1] The applicant applies for the eviction of the first, second, and fourth
respondents from the property located at Erf 4[…], more commonly referred to
as […] H[…] Street, Ruyterwacht, Cape Town, Western Cape (“the
premises”). The first and second respondents along with their teenage
daughter, reside at the premises and oppose the application.
HEARING ON 22 NOVEMBER 2024
[2] The application came before me for the first time on 22 November 2024 on an
opposed basis . Adv Lawrence represented the applicant , while the first
respondent appeared in person. At the commencement of the proceedings,
the first respondent produced a hand -written note ostensibly written by his life
partner, the second respondent, which reads:
“I Gcobisa Lavinia Louw with identity number ... would like to inform the
court as the second res pondent that was never served in case number
13785/24; due to work commitments I will not be able to appear in front
of an honourable judge today 22-11-2024.”
[3] The first and second respondents are not legally represented. However, the
first and second respondents filed answering affidavits setting out their
grounds of opposition and answering ad seriatum to the allegations in the
founding affidavit. The first and second respondents also filed heads of
argument referencing inter alia authorities and legal argument.
[4] Prior to the hearing, there was no indication that the first and second
respondents were unprepared to proceed. Despite this, I enquired from the
first respondent at the commencement of the hearing whether he was
prepared to proceed. I explained the importance of obtaining legal advice and
representation, emphasising why it would be nefit the respondents’ best
interest to have such assistance.
[5] The first respondent, hereafter, and for the first time, indicated that he was not
prepared to represent himself or make submissions to the Court. He stated
that he had approached “Probono” for legal assistance. He proceeded to
apply for a postponement.
[6] The applicant's counsel o bjected to the request for a postponement to obtain
legal representation. I was informed that the first respondent appeared before
the Honourable Lady Justice Fortuin on 10 September 2024 , when the matter
was postponed for argument to 22 November 2022 . Fortuin J ordered the
parties to exchange affidavits and file the ir heads of argument by specified
dates. The applicant’s counsel submitted that Justice Fortuin strongly advised
the first respondent to seek legal advice in light of the serious allegations that
he similarly made before her regarding water supply to his property, spoliation
and related matters.
[7] It further became evident that the fir st respondent was by no means a
layperson. He obtained an LLB degree from the University of South Africa
(UNISA) in 2022 and is currently employed as an organiser for a labour
organisation. In light of the afore mentioned, but with regard to the nature of
the disputes, as they appeared from the affidavits before the Court, I refused
the application for postponement.
[8] I proceeded to hear argument from the applicant regarding the eviction
application. However, it became evident that t he first respondent failed to
bring any of the affidavits or the paginated bundle to court . He expressed his
inability to follow the proceedings. The applicant’s counsel accordingly
requested th e matter to stand down so that the applicant’s attorney coul d
prepare a copy of the indexed and paginated bundle containing the papers for
use by the first respondent.
[9] When the Court resumed at 14h00 on 22 November 2024, the first respondent
submitted a second application for postponement relying upon an email which
he produced purportedly indicating his communications with “Pro Bono ”. I
allowed the first respondent to address me at length. He was displeased with
the earlier decision of the Court to r efuse his application for postponement.
The first respondent made several allegations against the applicant’s counsel
and the Court. During his address , it became increasingly apparent that
additional correspondence had been exchanged between the first r espondent
and “Pro Bono ” that he had not disclosed earlier. He once more requested
the matter to stand down to enable him to obtain copies of the aforementioned
correspondence.
[10] I allowed the matter to stand down so that the first respondent could print t he
email correspondence that he wished the Court to consider regarding his
attempts to obtain legal representation. Once the matter was ready to
proceed, it was already late in the afternoon, and I exercised my discretion to
ensure that the application could proceed in an orderly manner . I granted an
order in the following terms:
1. The eviction application in terms of the Prevention of Illegal Eviction
and Occupation of Land Act, 19 of 1998 is postponed to Tuesday, 3
December 2024 at 11:30 before the same Court.
2. The first and second respondents are ordered to appear in person
or to obtain the services of a legal practitioner of their choice, who
must appear on their behalf at the hearing on 3 December 2024.
3. The first and second respondents shall deliver and file an affidavit(s)
by no later than 13:00 on Friday, 29 November 2024 w herein they
shall address the following matters:
3.1. Details of the first and second respondents’ attempts to
obtain legal representation, including supporting
documentation;
3.2. Whether there is indeed a risk of homelessness for them
should the court find that they are in unlawful occupation and
grant an eviction order;
3.3. Details regarding the employment status and income of adult
members of the household;
3.4. Details regarding any claimed disability by either of the first
and second respondents, including medical reports;
3.5. Details of the attempts the first and second respondents
have made to find alternative accommodation, including
supporting documentation;
3.6. Details of the first and second respondents’ interactions with
the third respondent (the City) as it relates to the provision of
alternative and/or emergency housing;
3.7. And if there is good reason for why the information cannot be
furnished, that shall be disclosed in the affidavit.
4. The first and second respondents shall complete the housing
questionnaire (the first respondent is authorised to do so on behalf
of the second respondent if necessary) in accordance with the order
by Justice Fortuin, granted on 10 September 2024, if they have not
done so yet. The applicant shall then request the third respondent to
provide to the Court a housing report in respect of, and applicable
to, the first and second respondents, which housing report shall be
filed by 29 November 2024 and which shall address the availability
of alternative and/or emergency housing.
5. It is ordered that the parties may exchange documents and
affidavits via email, and the delivery of an email by one party to the
other shall constitute effective delivery and service.
6. Costs of the postponement is to be costs in the application.”
[11] On Friday, 29 November 2024, the first respondent filed an affidavit ostensibly
in compliance with the aforesaid order. In the affidavit , he inter alia refers to
attempts made by him and the second respondent to search on the internet
(“online”) for attorneys close to where they reside, but they were unable to find
any. The second respondent reached out to Adv Ngcukaitobi SC (one of our
Country’s best-known counsels) but was advised that advocates work only on
a referral basis , and that the respondents would first need to secure the
services of an attorney. The respondents also reached out to Webber
Wentzel, another prominent and large firm of attorneys, but without success.
The respondents also approached the Legal Resources Centre and the
Stellenbosch University Law Clinic. The challenge faced by the respondents
is that both of them are employed , and they may, therefore, not qualify
according to the means test utilised by the Legal Aid Board or other
institutions providing legal services to the public on a pro bono basis.
[12] On Tuesday, 3 December 2024 , the hearing in the matter proceeded. The
first respondent was absent, while the second respondent appeared in
person. The second respondent submitted two documents to the Court: a
medical certificate and a supplementary affidavit. The medical certificat e
issued by Dr AWS Pietersen certified that the doctor examined the first
respondent on 2 December 2024 and that he was granted sick leave for 3
December 2024 due to food poisoning. The certificate indicates that the first
respondent will be fit for work on 4 December 2024 . The supplementary
affidavit deposed to by the second respondent indicates that the first and
second respondents consulted with an attorney and counsel on 29 November
2024. I enquired from the second respondent whether this is indeed so, which
she confirmed, but she informed me that the applicant’s counsel indicated to
their advocate that the application had been settled. This is obviously not the
position, and I indicated to the second respondent that I will not entertain any
side issue concerning what may or may not have been said by any of the legal
representatives.
[13] Upon further enquiry, the second respondent indicated that they consulted
with an attorney, Mr Ashley Leeuw and Adv Nthembeka , but that they would
require additional time to raise sufficient funds to pay towards their legal
representation. The second respondent therefore requested that the matter be
postponed to a date in January 2025. I enquired about the employment status
of the second respondent and the financial resources of the first respondent .
From the questions put to her it appeared that both the first and the second
respondent are gainfully employed. The second respondents earn
R23,000.00 per month and owns a motor vehi cle. She alleges that she does
not know how much the first respondent earns, but he contributes to the
monthly expenses. The second respondent is responsible for paying the
previous owner of the premises a monthly rental of R7,800.00 . The second
respondent proclaimed that she does not know whether the first respondent
earns more or less than her, though they have been in a permanent life
partner relationship for more than ten years.
[14] I explained to the s econd respondent that the first respondent had appeared
in pers on before the High Court on at least three previous occasions. I
impressed upon the second respondent t he significance of the respondents'
attorney and counsel being present during the argument. Nevertheless, I
exercised my discretion in granting a postponement until the first week of
recess. It was ordered that the application be postponed to Wednesday, 11
December 2024, at 10h00 and that both the first and second respondents
were required to appear in person , or alternatively be represented by a legal
representative of their cho osing. I reserved the question of costs for later
determination.
[15] On Wednesday, 11 December 2024, the first respondent was not present, and
the second respondent appeared in person. She presented a handwritten
letter from the first respondent. The letter is dated 11 December 2024 and
reads as follows:
“Dear honourable judge
I Brian Lufefe Vumazonke ... hereby confirm that I will not be able to
attend court today due to work commitment. During my previous court
appearance on 22 November 2024 I had asked that the court give us
time to sort out our work commitments and legal representation which
you refused.
On 3 December 2024 I fell ill and could not attend court. Last week I
applied for leave to be in court and was rejected by my employer due to
me being out of work the last week. Due to operations reasons we are
extremely busy as most businesses are prepa ring to go on break for the
festive season.
I hope you take this into consideration because I had informed you in
advance that postponing this matter to the next court roll next year would
give us enough time to apply for leave at work and for us to find legal
representation. I am unable to attend today due to commitments out of
my control as we have a service level agreement signed with the
business I work with and failure to commit to these commitments will
place me in breach of contract which will resu lt in a financial loss for my
employer and a possible dismissal for me.
Please consider my apology for unable to be present today.
Yours sincerely.”
[16] I enquired from the second respondent why the first respondent and her
attorney and counsel were not pre sent. She informed me that no counsel was
available, and their attorney had other matters to attend to. The applicant
opposed the application for postponement for obvious reasons.
[17] I adjourned the proceedings to consider the application for postponement an d
submissions made. The application for postponement was refused , and I
ruled that the matter should proceed. However, the applicant’s counsel, Adv
Lawrence, requested that I allow the matter to stand down again since the
second respondent did not bring copies of the papers or the respondents’
heads of argument to court. The matter stood down to allow the applica nt’s
attorney to make copies of the affidavits, heads of arguments and other
documents so that the second respondent would be able to follow the
argument.
[18] The Court was eventually able to hear argument on behalf of the applicant at
12h00 on Thursday, 11 D ecember 2024. Adv Lawrence made submissions
on behalf of the applicant regarding the unlawful occupancy of the
respondents as reasoned in the applicant’s heads of argument. The second
respondent discussed with me the merits of the respondents’ opposition
during the application for postponement. I asked her during the postponement
application regarding the respondents ’ alleged right of pre -emption and she
answered me on point. However, she declined to make any submissions
during the arguing of the application in main. She stated that she has no legal
representation and does not know what a just and equitable date would be for
the respondents’ eviction. She stated that she cannot argue the matter
herself.
CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION
[19] Each person is constitutionally entitled to legal representation. This right ,
however, is not absolute and cannot be used to frustrate proceedings before a
Court of law. In the matter of Nkuzi Development Association v Government of
South Africa the Land Claims Court determined that section 34 of the
Constitution confers a right to legal representation at the expense of the s tate
in civil proceedings, at least in respect of land tenants in the circumstances of
that case.1 The learned authors of the Standard Work: Constitutional Law of
South Africa 2 states that the right to legal representation in civil suits is not
absolute. In the civil context, the concept of equity necessitates the
consideration of factors that are distinct from those that are relevant when
determining whether substantial injustice will occur if an individual is not
legally represented in the criminal context. The Legal Aid Board currently
provides significantly less assistance in civil matters and prioritises criminal
legal aid. In terms of the Legal Aid Board Act, legal aid is only rendered to
“indigent” persons. The Court in Smith v Mutual and Federal Insurance
Company Limited 3 distinguished be tween " indigent" and " poor." The judge
clarified that "indigent" refers to being in dire need or want, while "poor" refers
to having few possessions or nothing."
[20] In B v S 4, the court held , regarding a magistrate’s refusal during criminal
proceedings of a further remand of the case for legal representation , that the
question was whether the trial was fair when the right to legal representation
was not given effect. The Court followed a three -pronged test by considering,
first, the case's complexity, second, if the unrepresented person could
conduct their own case, and third, the severity of the consequences flowing
from a conviction. This is not a criminal trial, but the same principles are
relevant herein.
[21] The Supreme Court of Appeal similarly considered in Navy Two CC v
Industrial Zone Ltd 5 a request for a postponement by an unrepresented
litigant. The majority held, per Mthlyane, JA, that the application for a
postponement (that was refus ed by the court a quo ) had to satisfy two
1 Nkuzi Development Association v Government of the Republic of South Africa
and Another (LCC10/01) [2001] ZALCC 31; 2002 (2) SA 733 (LCC) (6 July 2001)
2 Juta, second edition, volume 4, original service 11-07 at 59 - 71
3 1999 JDR 0671 (C)
4 [2003] 3 ALL SA 274 (E)
5 [2005] JOL 15585 (SCA)
requirements: first, that the delay or failure was not wilful and second, that it
has a bona fide defence. The court reaffirmed that litigants cannot divest
themselves of their responsibilities in relation to the a ction (or application) and
then complain vis-à-vis the other party that their legal representative to whom
they have apparently vested sole responsibility have failed them 6. The court
held that the postponement was correctly refused because there was no frank
and honest disclosure or explanation for the delay and no bona fide defence.
The minority judgment agreed with the conclusion of the court upon different
considerations. Ponnan, JA, in the minority judgment, held:
‘…In my view, the real issue is whether the appellant suffered any
prejudice as a result of Brassey AJ’s failure to afford Mr Nannen the
opportunity to address the court on the issue of a postponement. In
other words, it is unnecessary to consider the circumst ances in which
the so-called rule barring a non -legal person from representing a
corporate entity may be relaxed. Even if it is accepted in the appellant’s
favour that Brassey AJ misdirected himself in this regard it does not
follow that the appellant woul d have been entitled to the postponement
it now seeks on appeal.’
….
[28] In short, the appellant has failed miserably to explain its tardiness.
A postponement was not there for the asking. The appellant had to
make out a proper case in support of its appl ication for postponement.
That it failed to do. Not only did it fail to explain with sufficient candour
why no further steps had been taken by it in the matter but the affidavit
ultimately filed on its behalf fails far short of establishing that it has a
bona fide defence to the respondent’s claim.7
[22] The respondents are n either indigent nor poor. Whilst t heir living standard
may be mode st, they certainly do not represent the epitome of the extreme
end of poverty by any stretch of the imagination . The Constitutional right and
6 At [15] and De Wet and others v Western Bank Ltd 1979 (2) SA 1031 (AD) at
1044C
7 Navy Two CC Ebit [25] and [28]
conceptual obligation that rests upon the State to provide legal assistance in
civil litigation should be distinguished from a party’s right to be legally
represented. There exists a di stinction between being provided with an
opportunity to obtain legal representation and indefinitely delaying
proceedings before a Court of law so that a litigant’s wishes to obtain funds
can be fulfilled to instruct a legal representative of their choice or for such a
legal representative to be available at his convenience.
[23] Considering the aforementioned, the respondents have been adequately
informed to set aside funds and approach a legal representative of their
preference. They have failed to do so desp ite being provided with a fair
opportunity. They were served with the s 4(2) notice in terms of PIE during
August 2024 , which informed them of their right to legal representation and
provided them with contact details of, inter alia, the Legal Practice Cou ncil,
Legal Aid Board and UTC Legal Clinic . On 10 September 2024, Lady Justice
Fortuin again advised the first respondent to obtain legal representation.
Three months have passed, since the last appearance without even attorneys
placing themselves on recor d. There is no plausible basis upon which it can
be found that an injustice will incur if the matter proceeds and is finalised
without affording the respondents an additional postponement.
CHRONOLOGY
[24] The first and second respondents executed a written lease agreement with
Goodfind Properties (Pty) Ltd, the property's prior owner, on 1 December
2020. The lease would commence on 1 December 2020 and terminate on 1
December 2021 Thereafter, the agreement would be renewed on a month-to-
month basis upon the conclusion of the initial period. The property was sold
on 22 November 2023 and registered in the Deeds Office in the applicant’s
name on 28 February 2024 . A copy of the electronic Deeds Off ice search
reflecting the applicant as the registered owner together with the Deed of
Transfer are annexed to the applicant’s founding affidavit. The applicant
contends that upon transfer of the property, the lease agreement between the
previous owner and the respondents were ceded to the applicant. In March
2024, the applicant extended and invitation to the first and second respondent
to enter into a new written lease agreement . The first and second
respondents, however, declined to accept or discuss th e offer with the
applicant even though the terms offered to the respondents were identical to
the previous terms of the lease agreement with Goodfind Properties (Pty) Ltd.
[25] On or about 10 April 2024, the applicant served a notice on the respondents
by Sheriff, informing them that they failed to make payment of the rental in lieu
of their continued occupation, that they failed to conclude a lease agreement ,
and that any and all lease agreements are accordingly revoked. T he
respondents were afforded one calendar month to vacate the property. On 19
April 2024, the applicant’s attorney received an email from the first respondent
confirming the cancellation notice. On 22 April 2024, the applicant’s legal
representative again emailed the first respondent confirming the notice of
cancellation and that they are required to vacate the premises by 31 May
2024. The applicant contends in its founding affidavit that there exist no legal
obligation or duty to provide the respondents with free accommodation. The
applicant is the registered owner of the property and possess the authority to
deal with it. The respondents are in arrears in an amount of R74,628.05 and
the lease agreement was therefore duly cancelled.
RESPONDENTS’ OPPOSITION
[26] The first and second respondents oppose the relief on the basis that there is a
valid lease agreement in place with the previous owner, Goodfind Properties
(Pty) Ltd. The first respondent further alleges that he accepted an offer to
purchase from Goodfind Properties (Pty) Ltd during 2021 , to purchase the
property at R795,000.00. It is common cause that no valid Deed of Alienation
or sale agreement, in any form was concluded between the first respondent
and Goodfind Properties (Pty) Ltd. On the respondent s’ own version, the
property was offered for purchase, but there is no clear evidence that the first
respondent accepted the offer, or that any valid sale agreement in compliance
with the statutory provisions prescribed by the Alienation of Land Act 68 of
1981 was ever concluded.
[27] The respondents further rely upon the following terms contained in the written
lease agreement concluded with Goodfind Properties (Pty) Ltd:
“If the Landlord receives from a third party a bona fide offer to purchase
the Premises in writing (“the Trigger Offer”), before the Landlord may
accept the Trigger Offer, the Landlord must first provide written notice to
the Tenant of said offer which notice must be provided in writing with 5
(five) days of receipt of the Trigge r Offer. The Tenant shall within 15
(fifteen) days from the date of receipt of the Trigger Offer, provide to the
Landlord a written offer to purchase, upon the same terms and
conditions as recorded in the Trigger Offer (“First Refusal Offer”). If the
Tenant fails to provide the First Refusal Offer within the 15 (fifteen) days
as provided herein, the Landlord may accept the Trigger Offer.”
[28] The erstwhile owner of the property did not offer the property to the
respondents for purchase before selling it to the applicant. However, there is
no allegation in the respondents’ answering affidavit to the effect that the
applicant was aware of the aforementioned special condition in the lease
agreement. The applicant purchased multiple properties in a single
commercial transaction from Goodfind Properties (Pty) Ltd and took
simultaneous cession of the corresponding lease agreements in respect
thereof. The applicant alleges in its replying affidavit that the special condition
regarding the Trigger Offer was only contained in the respondents’ lease
agreement and that they were unaware of its existence.
[29] The respondents further contend that they agreed in 2021 to purchase the
property. As proof thereof that the first respondent, t he respondents rely upon
email correspondence, copies of which are annexed to the first and second
respondents’ answering affidavits. In these emails dated respectively 25
August 2021, 5 and 15 October 2021, the first respondent enquires not only
about the possibility and value of the pr operty that forms the subject matter of
this application, but also other properties. It is evident from the email
correspondence that no sale was concluded during 2021 , irrespective of
whether such an agreement would be legally enforceable in the absence of a
deed of sale . In this regard , I note that more than three years have passed
and that any claim that the respondents may have regarding the alleged
purchase of the property in 2021 may have be come prescribed, but I make no
finding.
[30] The applicant relies upo n the judgment by the then Appellate Division in
Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backerein
(Pty) Ltd en ‘n Ander8 in which it was held that if a seller concludes a contract
of sale with a third party contrary to a pre-emptive right the purchaser can step
into the shoes of the third party by a unilateral declaration of interest. If
delivery or registration took place, the holder of the right would not be able to
pursue the merx in the hands of the third party with his person al right unless
the latter was aware of the existence of the pre -emptive right. Ironically the
first and second respondents in their heads of argument rely upon the
judgment by the Constitutional Court in Mokone v Tassos Property CC and
another9 in which the Court referred with approval to the Oryx judgment.
However, the facts in this application are distinguishable from those that
served before the Constitutional Court. There is no allegation by the
respondents that the applicant was not an innocent purchaser who was
unaware of the pre -emptive right. The respondents have not instituted any
proceedings based upon the alleged breach against the previous owner of the
property or to enforce whatever personal rights they may have against any
other party. There is no allegation that the respondents intend to institute any
civil proceedings , and unlike in Mokone, there is no reques t that these
proceedings be held in abeyance pending the finalisation of other
proceedings.
[31] I must reiterate that the respondents relied in their heads of argument on the
judgment of the Constitutional Court in Mokone and other related authorities
dealing with the right of pre -emption. The respondents, especially the first
respondent, have recognised the law regarding pre -emptive rights and have
8 1982 (3) SA 893 (AD) at 907D to 909E
9 [2017] ZACC 25
put forth an argument addressing it. I have thoroughly examined the
respondents' affidavits and legal arguments. Although the respondents are
aware of the law and their rights, they have failed to take any action to enforce
their claims. I am obligated to make a decision based on the facts presented
before the court, and I will do so.
[32] The respondents have to date not taken any action against the erstwhile
owner of the premises. If the respondents intended to enforce their purported
right of first refusal, they could and should have done so. This again
emphasises the importance of the fact that the first respondent, despite being
advised on numerous occasions to obtain legal advice, decided to represent
his family in person. The belated attempt to obtain legal advice and the first
respondent’s absence during the proceedings leave me in doubt regarding the
respondents’ bona fides . This is a case of when the proverbial shoe pinches,
the excuse of lacking legal representation is used in an attempt to force the
court to grant a postponement10.
[33] There are numerous other disputes on the affidavits regarding inter alia the
water supply to the premises, unauthorised access to the property, etc.
However, none of these disputes are relevant to the legal question of whether
the respondents are in unlawful occupation.
[34] I am unable to arrive at any other conclusion than that the applicant and the
respondents do not have a valid lease agreement. The respondents defaulted
in paying rent to the applicant , but apparently persisted in paying rent to the
previous owner. The respondents refused to negotiate with the applicant
regarding the conclusion of a new lease agreement , or regularising their
arrear rental and continued occupancy
[35] The first respondent is obstructive, uncooperative, and refuses to listen to any
reason. In an attempt to avoid the ongoing dispute, the applicant proposed
the respondents purchase the property at the amount at which the property
10 Take & Safe Trading CC & Others v Standard Bank of SA Ltd [2004] JOL
12516 (SCA)
was offered to the first respondent in 2021. Th e respondents declined the
offer to purchase the property or to negotiate a lease agreement and,
therefore, now find themselves facing eviction from their residence as unlawful
occupiers.
EVICTION AS CAUSE OF ACTION
[36] The eviction of an unlawful occupier of premises can be obtained by means of
the rei vindicatio, which is based upon the plaintiff’s ownership , or through a
possessory claim. The last mentioned claim relies upon allegations asserting
that the right of a defendant to possess the property is founded upon an
agreement between the parties, that such contractual right was valid ly
terminated, and that the occupier continues to occupy the property.
[37] In Serné NO. and others v Mzamomhle Educare and others 11 the Supreme
Court of Appeal per Ponnan JA dealt with a claim for eviction based upon the
rei vindicatio. The Court referred with approval to the judgment by Jansen JA
in Chetty v Naidoo in which it was held that:
“It is inherent in the nature of ownership that possession of the res
should normally be with the owner, and it follows that no other person
may withhold it from the owner unless he is vested with some right
enforceable against the owner (e.g., a right of retention or a contractual
right). The own er, in instituting a rei vindicatio, need, therefore, do no
more than allege and prove that he is the owner and that the defendant
is holding the res - the onus being on the defendant to allege and
establish any right to continue to hold against the owner.”12
[38] Furthermore, Ponnan JA , with reference to Chetty , held that an occupier
cannot simply deny the existence of a lease agreement and continue to
occupy the property indefinitely without any legal basis, even if the right of
ownership is conceded. In the absence of a successful challenge to the
11 2024 JDR 4879 (SCA)
12 1974 (3) SA 13 (A) at 20B to D
manner in whic h the plaintiff obtained ownership of the property, the
registration of the property by the Registrar of Deeds remains valid until set
aside by an order of Court. The Constitutional Court held in Mighty Solutions
CC trading as Orlando Service Station v En gen Petroleum Limited and
another13 that a challenge to the title of a lessor by the lessee is no defence to
an eviction application. This is so because the right to hold a property against
an owner derives from an agreement such as a lease agreement. In the
absence of a valid lease agreement or where a lease agreement had run its
course by effluxion of time and had not been renewed, there is no lawful basis
for the continued withholding of possession from the owner.14
UNLAWFUL OCCUPANCY
[39] After careful consideration of the aforesaid, I have determined that the first
and second respondents are in unlawful occupation of the premises. The
respondents argue that the previous owner should have offered the property
to them for purchase, which is the sole premise for their dispute that the
applicant is the registered owner of the property. As stated previously, the
respondents did not execute a valid Deed of Alienation in 2021 , with the
previous owner and whatever contractual right s they may have in terms of the
so-called “trigger clause ” are directed against the previous owner. The
respondents cannot dispute that the applicant is the registered title holder , as
evidenced by the deed of registration attached to the applicant’s founding
affidavit. The lease agreement was duly terminated.
[40] The respondents were in arrears at the time of the cancellation of the lease
agreement and continue to remain in arrears. They stubbornly persist in
denying the applicant’s rights and attempts to conclude a new lease
agreement. It is ironic that the lease agreement offered is essentially identical
to the previous lease agreement, similar to the offer that was made by the
applicant to the respondents to purchase the property, which they declined. .
13 2016 (1) SA 621 (CC)
14 Serné ibid at para [28] to [30].
IS IT JUST AND EQUITABLE TO GRANT AN EVICTION ORDER
[41] In considering whether it is just and equitable to grant an eviction order , the
history and background of the matter becomes pertinent and relevant.
Regardless of the serious allegations made by the first respondent against the
applicant, its employees, legal representatives , as well as the previous owner
regarding the disconnection of water supply to the property, the respondents
have not taken any steps to enforce their rights. Claims based upon the right
of first refusal is not unknown to our Courts, however, the respondents failed
to take any action to assert their purported claim against the previous owner.
[42] In Port Elizabeth Municipality v Various Occupiers 15 Justice Sachs stated as
follows:
“[35] ... The phrase ‘just and equitable’ makes it plain that the criteria
to be applied are not purely of the technic al kind that flow ordinarily from
the provisions of land law. The emphasis on justice and equity
underlines the central philosophical and strategic objective of PIE.
Rather than envisage the foundational values of the rule of law and the
achievement of e quality as being distinct from and in tension with each
other, PIE treats these values as interactive, complementary and
mutually reinforcing. The necessary reconciliation can only be
attempted by a close analysis of the actual specifics of each case.
[36] The court is thus called upon to go beyond its normal functions,
and to engage in active judicial management according to equitable
principles of an ongoing, stressful and law -governed social process.
This has major implications for the manner in which it must deal with the
issues before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it exercises its powers and
the orders it might make. The Constitution and PIE require that in
addition to considering th e lawfulness of the occupation the court must
15 2005 (1) SA 217 (CC) para 35.
have regard to the interests and circumstances of the occupier and pay
due regard to broader considerations of fairness and other constitutional
values, so as to produce a just and equitable result.”
[43] However, in Hattingh and others v Juta16 the Constitutional Court held:
“[32] 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 rights of the occupier, on the one side, and those of the
owner of the land, on the other. This part enjoins that a just and
equitable balance be struck between the rights of the occupier and those
of the owner. The effect of this is to infuse justice and equity in the
inquiry ... ”.
[44] Therefore, a just and equitable order is one that considers not only the rights
of the unlawful occupier, but also acknowledges the rights of the landowner.
Section 4(6) of PIE provides that if an unlawful occupier has occupied the land
in question for less than six months at the time when the proceedings are
initiated, the Court may issue an eviction order if it is of the opinion that it is
just and equitable to do so, taking into account all the relevant circumstances,
including the rights and needs of the elderly, children, disabled persons and
households headed by women. The provisions of s 4(7) do not apply to the
input of the City of Cape Town , even though the Court afforded the
respondents the possibility of explo ring this opportunity. Both t he first and
second respondents are gainfully employed and have one teenage daughter
aged 14 who will be in Grade 10 in 2025 . The respondents’ daughter suffers
from asthma and eczema but she receives medication for this. N o evidence
was presented that her health would be adversely affected should the family
be required to relocate. The respondents were allowed to place evidence
before me per my order of 3 December 2024 regarding the circumstances the
court should consider, including their financial position, personal
circumstances and alternative accommodation. They subsequently filed two
16 2013 (3) SA 275 (CC)
affidavits but did not disclose any other relevant facts. There is sufficient
evidence before the Court of alternative accommodation being available in the
same area. The respondents view this as a matter of principle, as they refuse
to consider any alternative accommodation but insist upon remaining on the
property.
[45] Considering the aforesaid, I am satisfied that it is just and equitable to grant
an eviction order. I will allow the respondents until Friday, 28 February 2025,
to vacate the property, failing which, the Sheriff or his deputy may execute the
eviction order. In deciding upon the date of eviction I have considered that the
respondents have occupied the property for an extended period and the fast
approaching festive season.
COSTS
[46] The first respondent did everything within his power to oppose, delay and
obstruct the finalisation of this application. He abused the leniency shown by
Courts in assisting lay litigants who appear in person.
[47] I intend to grant a cost order that aims to strike a balance between the rights
and interests of both the applicant , the first and second respondents. The
applicant was successful and is entitled to the relief claimed. The first and
second respondents should be held liable for the costs associated with this
application, including all of the postponements that occurred on the dates that
this matter was heard before the Court. The applicant did not apply for any
punitive cost order and Adv Lawrence submitted that cost on scale A would be
appropriate.
RELIEF AND ORDER GRANTED
[48] Considering the aforesaid an order is granted as follows:
1) That the first, second and fourth respondents be evicted from the
premises situated at Erf 4 […] more commonly known as […] H[…]
Street, Ruyterwacht, Cape Town, Western Cape (“the premises”).
2) An order directing the first, second and fourth respondents to vacate
the premises on or before Friday, 28 February 2025.
3) In the event of the first, second and fourth respondents failing to vacate
the premises as set out in paragraph 2 above, the Sheriff of the above
Honourable Court be authorised and directed to evi ct the first, second
and fourth respondents from the premises together with their
possessions and place the applicant in possession thereof on Monday
3 March 2025.
4) The first and second respondents are ordered to pay the costs of the
application including any and/or all wasted costs occasioned by the
standing down or postponement of the application on 22 November
2024, 3 December 2024 and 11 December 2024 on scale A.
5) The applicant’s attorney is directed to serve a copy of this order
forthwith on the first and second respondents and at the premises by
affixing a copy thereof to the front door and handing copies thereof to
any and or all occupiers present
VAN DEN BERG AJ
Appearance for applicant: Adv A Lawrence
Instructed by: Toefy Attorneys
Appearance for first and second respondent: In person