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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 100207/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE 30/01/25
SIGNATURE
In the matter between:
FINBOND MUTUAL BANK Applicant
and
FANAH KGOSANA First Respondent
ALL OCCUPIERS OF 2[...] H[...] STREET Second Respondent
CITY OF TSWANE METROPOLITAN MUNICIPALITY Third Responden t
JUDGMENT
Joyini J
INTRODUCTION
[1] This is an application launched by the applicant for the eviction of the first and
second respondents (“the respondents”) from the property known as Portion 1
of Erf 6[...], and the remaining Extent of Erf 6[...], H[...] Township: Registration
Division JR: Gauteng Province. The applicant seeks an order that is as
follows :
[1.1] The first and second respondents and all those occupying under or through
them, including their family, servants and/or employees (“the occupiers”), are
evicted from the property being: Portion 1 of Erf 6[...], and the remaining
Extent of Erf 6[...], H[...] Township: Registration Division JR: Gauteng
Province (“the property”);
[1.2] The occupiers are to vacate the property within 14 days from date of service
of this order, failing which, the eviction may be carried out by the sheriff and
his/her duly authorised deputy (“sheriff”), on the first day following thereafter,
and in persuance of executing this order, the sheriff is authorised to enlist the
services of the South African Police Service and/or locksmith to give effect to
this order, should it be necessary;
[1.3] Should the occupiers succeed or attempt to regain access or possession to/of
the property after the eviction order has been executed, the sheriff is
authorised to carry same out in accordance with paragraph 1.2 above, without
the applicant having to approach the court, for further relief;
[1.4] The occupiers are to pay the costs of this application, jointly and severally, the
one paying, the other to be absolved.
[2] The application is opposed by the respondent s.
[3] The court appreciates the insightful and engaging submissions from both
parties' legal representatives, which greatly assisted in adjudicating this
matter .
APPLICATION FOR CONDONATION FOR LATE FILING OF THE FIRST
RESPONDENT’S ANSWERING AFFIDAVIT
[4] With regard to the application for condonation, counsel for the respondents
argues that the first respondent has a bona fide defence which is triable in
nature and sufficient to guarantee prospects of success. It is further argued
that the applicant’s eviction application is in retaliation to the first
respondent’s demand for remuneration which is good enough to oppose the
application.1
[5] Counsel for the applicant did not argue against granting the condonation
application for late filing of the first respondent’s answering affidavit.
[6] In weighing up the prejudice of condoning the late filing of the first
respondent’s answering affidavit on the applicant versus the prejudice on the
first respondent, the balance tips in favour of the first respondent.
[7] It is my considered view that condoning the late filing of the first respondent’s
answering affidavit does not significantly prejudice the applicant in any way
and it will in fact assist the court in reaching a decision. It should thus be
allowed.
BACKGROUND FACTS
[8] On or about December 2018, a verbal agreement was concluded between the
previous owner of the property and the first respondent (“agreement”). The
relevant material terms of the agreement were that the first respondent would
reside at the property on a rent -free arrangement in exchange for him keeping
the premises neat, clean and secure.
[9] The first respondent failed and refused to comply with the obligations in terms
of the agreement in that inter alia he has permitted persons who are not
permitted to reside at the property to reside at the property and has failed to
vacate them from the property. Counsel for the applicant alleges that the said
people are subletting and as such, paying rent to the first respondent.
[10] On or about 22 August 2023, a Termination and Eviction Notice was
dispatched to the first respondent, in respect of which the first and second
1 Caselines 00 -50.
respondents were given 1 month to vacate the property before or on 22
September 2023. It is important to note that, according to the counsel for the
applicant, the said Termination and Eviction Notice gave notice of termination
of any and all agreements that may have given the occupiers the right to
occupy the property.
[11] The first respondent, on 25 August 2023, responded as follows: “The other
points we will dispute them in court, this is just a formal letter to oppose your
termination and notice and to further advise that we will not evacuate the
premises until Christian compensates me the Caretaker salary from
September 2016 to date. The average salary of a caretaker in Pretoria is
R6000, which means I need to be compensated an amount of R505 000 and
this amount doesn’t include other costs such as all the expenses incurred in
fixing the place and other costs. Also not including all other duties done in the
house.”2 He is claiming to be an employee since September 2016 and the
question is why he did not declare a dispute against the applicant for non -
payment of his remuneration for all these years?
[12] The first and second respondents failed and refused to vacate the property.
Consequently, they became unlawful occupiers, as contemplated in the PIE.
In the said Termination and Eviction Notice, they were also advised to secure
alternative accommodation ,3 including approaching the City of Tshwane
Municipality for assistance with the provision of temporary emergency
accommodation. Moreover , it is also indicated in the founding affidavit that
there is an alternative accommodation within the area of the property.4
[13] Counsel for the applicant made reference to the report that is uploaded on
Caselines,5 dated 25 January 2024, on the provisioning of alternative
accommodation by the City of Tshwane Metropolitan Municipality which reads
as follows:
2Caselines 00 -63 to 00 -64.
3 Caselines 00 -18.
4 Caselines 00 -19.
5 Caselines 08 -1 to 08 -3.
“The City of Tshwane officials visited the property Portion 1 of Erf 6[...] Hatfield
Township situated at 2[...] H[...] Street, Hatfield Pretoria on 17th of January
2024. The first respondent Mr Fanah Kgosana was found in the property. He
indicated that he was employed by Finbond Mutual Bank as a caretaker of the
said property. Mr Fanah Kgosana further stated that Finbond couldn’t pay his
salary since the employment in 2016 to date.
Mr Kgosana’s family consists of his wife, and five children. There are no elderly
nor disabled person in his family household. He also mentioned that he is
subletting tenants in the property. The City officials conducted affordability
assessments to see how they can assist Mr Kgosana and his family with
temporary alternative accommodation. He managed to complete the forms.
The outcome of the assessments is as follows:
1. Mr Kgosana is self -employed and his wife is employed by Standard Bank.
2. Both combined household income is R50, 000.00.
Further searches were done on Housing Subsidy Systems (HSS), Deeds
Register and National Needs register and the results are as follows:
There is no record found on HSS, with the deed search done no results was
found on Mr Fanah Kgosana, this shows that he is not registered on the
national needs register.
Conclusion
Based on the findings, Mr Fanah Kgosana does not need temporary alternative
accommodation and he also mentioned that he will vacate the premises as
soon as Finbond Mutual Bank pays what is due to him. Therefore, it is
recommended that Mr Kgosana to apply for private rental accommodation
within the City as he qualifies according to combined household income.
I trust you find the above in order.”
[14] Counsel for the applicant submits that the applicant is losing a substancial
amount of money every day as the applicant is unable to lease the property or
develop it. This is thus causing a severe financial strain on the applicant.
LEGAL FRAMEWORK
[15] The application is brought in accordance with the provisions of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(“PIE”). The notice required in terms of section 4(2) of PIE was duly served.
At this stage, it is opportune to restate the provisions of PIE which are relevant
in this case which are as follows:
“Section 1 (ix)
Unlawful occupier means 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 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 No.31 of 1996).
Section 4
Eviction of unlawful Occupiers
4(1) Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings by an owner
or person in charge of land for the eviction of an unlawful occupier.
(2) At least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective notice of the
proceedings on the unlawful occupier and the municipality having
jurisdiction ….
(7) If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or
other organ or another land owner for the relocation of the unlawful occupier,
and including the rights and needs of the elderly, children, disabled persons
and households headed by women.”
[16] “Owner”, insofar as is relevant, is defined in PIE as “ the registered owner of
land”. “Person in charge”, in turn, means “ a person who has or at the relevant
time had legal authority to give permission to a person to enter or reside upon
the land in question ”.
APPLICANT’S LOCUS STANDI
[17] The onus to prove locus standi for the institution of these proceedings is on
the applicant (see Kommissaris van Binnelandse Inkomste v Van der
Heeve .6)
[18] It is common cause between the parties that the applicant is the registered
owner of the property as contemplated in section 1 (the definition ’s section) of
PIE. The applicant ’s locus standi is therefore beyond question.
ARE THE RESPONDENTS UNLAWFUL OCCUPIERS?
[19] The question (as is clear from section 4(1)) is whether the respondents are in
fact “unlawful occupiers” in terms of PIE . In other words, persons “ who
occup[y] 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, …”
[20] In Davidan v Polovin N O and Others,7 the Supreme Court of Appeal
held: “[12] The starting point is whether the appellant is an unlawful occupier
under PIE. The key question is whether the appellant enjoyed a right of
occupation? PIE applies not only to occupants who occupied land without the
initial consent of the owner or person in charge, it also applies to occupants
who had consent to occupy but such consent was subsequently terminated. In
both instances the occupants would be unlawful occupiers within the meaning
of PIE. Consent in eviction applications is a valid defence.”
6 1999 (3) SA 1051 (SCA) at para [10].
7 (167/2020) [2021] ZASCA 109 (5 August 2021).
[21] In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA),8
the Supreme Court of Appeal held: “ [11] In terms of s 4(7) of PIE an eviction
order may only be granted if it is just and equitable to do so, after the court
has had regard to all the relevant circumstances, including the availability of
land for the relocation of the occupiers and the rights and needs of the elderly,
children, disabled persons and households headed by women. If the
requirements of s 4 are satisfied and no valid defence to an eviction order has
been raised the court ‘must’, in terms of s 4(8), grant an eviction order. When
granting such an order the court must, in terms of s 4(8)(a) of PIE, determine
a just and equitable date on which the unlawful occupier or occupiers must
vacate the premises. The court is empowered in terms of s 4(12) to attach
reasonable conditions to an eviction order.”
[22] In Ndlovu v Ngcobo, Bekker and Another v Jika,9 the Appeal Court held: “ [19]
Another material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is entitled to approach the
court on the basis of ownership and the respondent’s unlawful occupation.
Unless the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled to an order for eviction.
Relevant circumstances are nearly without fail facts within the exclusive
knowledge of the occupier and it cannot be expected of an owner to negative
in advance facts not known to him and not in issue between the parties.
Whether the ultimate onus will be on the owner or the occupier we need not
now decide.”
[23] In Wormald NO and others v Kambule ,10 the Supreme Court of Appeal held at
para [11] that an “owner is in law entitled to possession of his or her property
and to an ejectment order against a person who unlawfully occupies the
property except if that right is limited by the Constitution, another statute, a
contract or on some or other legal basis . In terms of s 26(3) of the
Constitution, from which PIE partly derives (Cape Killarney Property
8 [2012] ZASCA 116 ; 2012 (6) SA 294 (SCA) (14 September 2012).
9 (1) (240/2001. 136/2002) [2002] ZASCA] 87 ; 4 All SA 384 (SCA) (30 August 2002).
10 2006 (3) SA 563 (SCA) .
Investments (Pty) Ltd v Mahamba and Others ,11 'no one may be evicted from
their home without an order of court made after consideration of all the
relevant circumstances'. PIE therefore requires a party seeking to evict
another from land to prove not only that he or she owns such land and that
the other party occupies it unlawfully, but also that he or she has complied
with the procedural provisions and that on a consideration of all the relevant
circumstances (and, according to Brisley v Drotsky,12 to qualify as relevant the
circumstances must be legally relevant), an eviction order is 'just and
equitable' .”
IS IT JUST AND EQUITABLE THAT THE RESPONDENTS BE EVICTED?
[24] The pertinent question that the court must consider in the circumstances of
this case is whether it is just and equitable for the respondents to be evicted
from the property of the applicant. It has been decided in a number of cases
that the effect of PIE is not to expropriate private landowners of their land, but
that it delays or suspends the owner’s rights to exercise control over their
property until a determination has been made as to whether an eviction will be
just and equitable and if so under what circumstances.
[25] Arguing against eviction , counsel for the respondents referred the court to
Lauren Chelsea Van Der Valk N.O and Others v Johnson and Others13 where
it was held: “The grant or refusal of an application for eviction in terms of PIE
(once the applicant’s locus standi has been determined) is predicated on a
threefold enquiry: First, it is determined whether the occupier has any extant
right in law to occupy the property, that is, is the occupier an unlawful occupier
or not. If he or she has such a right, then the matter is finalised and the
application must be refused. Second, it is determined whether it is just and
equitable that the occupier be evicted. Third, and if it is held that it is just and
equitable that the occupier be evicted, the terms and conditions of such
11 2001 (4) SA 1222 (SCA) at 1229E.
12 2002 (4) SA 1 (SCA) .
13 (20449/2021) [2023] ZAWCHC 20 (30 January 2023).
eviction fall to be determined (Transcend Residential Property Fund Ltd v Mati
and Others .”14
[26] PIE enjoins the Court to order an eviction only if it is of the opinion that it is
just and equitable to do so, after considering all the relevant circumstances as
contemplated in section 4(6) and (7), and section 6(1).
[27] In terms of section 4(7) of PIE (which applies because the respondents have
been in unlawful occupation for a long time ) the Court has to have regard to a
number of factors including, but not limited to, whether the occupants include
vulnerable categories of persons such as the elderly, children and female -
headed households, the duration of occupation; and the availability of
alternative accommodation by a municipality or other organ of State instances
where occupiers on able to obtain accommodation for themselves.
[28] Section 4(8) of PIE provides further that 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 and 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)”.
[29] Although the Courts, in determining whether to grant an eviction order, must
exercise a discretion based on what is just and equitable, and although
special consideration must be given to the rights and needs of vulnerable
occupants, this cannot operate to deprive a private owner of its property
arbitrarily or indefinitely. If it did, it would mean that occupants are recognised
as having stronger title to the property, despite the unlawfulness of their
conduct. An owner would in effect be deprived of his property by a disguised
form of expropriation. As was highlighted in the case of Mainik CC v Ntuli and
14 2018 (4) SA 515 (WCC) at para [3]).
others :15 “If the rental is not being paid, such ‘expropriation’ will also be
without compensation. The result would be not a balance of the rights of the
respective parties, but an annihilation of the owner’s rights” .
[30] The fact, therefore, that the occupants are vulnerable cannot prevent the
eviction indefinitely. At best, it can delay or postpone it.
[31] The respondents have placed scant information in relation to their personal
circumstances before the Court to justify their ongoing unlawful occupation of
the property. Counsel for the first respondent had stated in Court that the first
respondent has 4 minor children and he would be rendered homeless if
evicted from the property. Counsel for the applicant argued that the issue of
“homelessness” is not before court as it has been raised for the first time from
the bar.
[32] It cannot be expected of private persons indefinitely to accommodate unlawful
occupiers. The Supreme Court of Appeal held as follows in Modderfontein
Squatters, Greater Benoni CC v Modderklip Boerdery (Pty) Ltd (Agri SA &
Legal Resources Centre, Amici Curiae); President of the RSA v Modderklip
Boerdery (Pty) Ltd :16 “Section 9(1) provides that everyone is equal before the
law and has the right to equal protection and benefit of the law, while s 9(2)
states that equality includes the full and equal enjoyment of all rights and
freedoms. As appears from para 1.6.4 of the order, De Villiers J found that
Modderklip was not treated equally because, as an individual, it has to bear
the heavy burden, which rests on the State, to provide land to some 40 000
people. That this finding is correct cannot be doubted. Marais J, in the eviction
case, said that the 'right' of access to adequate housing is not one
enforceable at common law or in terms of the Constitution against an
individual land owner and in no legislation has the State transferred this
obligation to such owner. ”
15 [2005] ZAKZHC 10 (25 August 2005).
16 2004 (6) SA 40 (SCA) at 57C -E.
[33] The rule is subject to minor qualifications depending on the circumstances.
In City of Johannesburg v Changing Tides 74 (Pty) Ltd :17 “[18] The position is
otherwise when the party seeking the eviction is a private person or entity
bearing no constitutional obligation to provide housing. The Constitutional
Court has said that private entities are not obliged to provide free housing for
other members of the community indefinitely, but their rights of occupation
may be restricted, and they can be expected to submit to some delay in
exercising, or some suspension of, their right to possession of their property in
order to accommodate the immediate needs of the occupiers .”
[34] The Supreme Court of Appeal in Changing Tides supra specified, at
paragraph [16], that only in what could be deemed exceptional circumstances
would a court interfere with a party’s proprietary rights.
[35] Counsel for the applicant argues that, as the respondents to date remain in
unlawful occupation of the property as defined in PIE, and as there are no
factors justifying their ongoing occupation, it is just an equitable for the Court
to order the eviction from the property. No circumstances have been alleged
that would render an eviction order inequitable, and none appear from the
affidavits filed of record or from what was stated in the respondents’ oral
submissions in Court. Having considered all the evidence before court, I am
persuaded by the argument.
CONCLUSION
[36] It has long been established that the jurisdictional requirement which trigger
an eviction under PIE is that the person sought to be evicted must be in
unlawful occupation of the property within the meaning of PIE at the time
when the eviction proceedings are launched.
[37] Therefore, for an applicant to be successful in evicting a person from its
property it should be able to prove that it is the owner to the land or the
17 2012 (6) SA 294 (SCA).
property; that the occupier is in unlawful occupation of the property and that it
is just and equitable that the occupier be evicted from the property.
[38] In casu , the applicant has proven that it is the owner to the property; that the
respondents are in unlawful occupation of the property and that it is just and
equitable that the respondents be evicted from the property.
[39] Counsel for the first respondent argues that it will not be just and equitable for
first respondent’s family and their minor children to be evicted from the
property.
[40] I hold the view that the first respondent has failed to take the Court into his
confidence in that he has not proffered any or sufficient facts as to why it will
not be just and equitable to grant the eviction order. There is no evidentiary
burden on the applicant to state the facts that are unknown to him about the
respondents but it is for the respondents to show to the satisfaction of this
Court that his personal circumstances and that of his household are of such a
nature that warrants the eviction orde r not to be granted.
[41] He has not provided any defence to the claim of the applicant. It is my
respectful view therefore that the eviction proceedings are within the
parameters of PIE and that it is just and equitable to grant the order evicting
the first and the second respondents from the property of the applicant.
[42] There is evidence to the effect that the first respondent and/or his household
has the means to procure and secure alternative accommodation.
[43] In all of these circumstances, the procedural and substantive provisions of
section 4 of PIE have been complied with, and there is no reason why the
eviction of the respondents should not be ordered.
[44] The conclusion is therefore that the applicant has succeeded in making out a
case for eviction and is therefore entitled to the order as prayed for in the
notice of motion.
COSTS
[45] It is clear from what is set out above that the respondents have not made out
any case that would justify the refusal of the relief sought or that should delay
the applicant ’s vindication of its property. In my view costs should follow the
event.
[46] The applicant and the respondents in casu have both asked for costs. One of
the fundamental principles of costs is to indemnify a successful litigant for the
expense put through in unjustly having to initiate or defend litigation. The
successful party should be awarded costs.18 The last thing that our already
congested court rolls require is further congestion by an unwarranted
proliferation of litigation.19
[47] It is so that when awarding costs, a court has a discretion, which it must
exercise after a due consideration of the salient facts of each case at that
moment. The court is expected to take into consideration the peculiar
circumstances of each case, carefully weighing the issues in each case, the
conduct of the parties as well as any other circumstances which may have a
bearing on the issue of costs and then make such order as to costs as would
be fair in the discretion of the court.
[48] In light of these considerations and both parties’ argument relating to the costs
of this application, I am accordingly inclined to grant costs in favour of the
applicant. The first and second respondents shall pay the costs of the
application jointly and severally, the one paying, the other to be absolved, on
the scale as between party and party.
ORDER
[49] In the circumstances, I make the following order:
[49.1] The first respondent’s application for condonation for the late filing of his
answering affidavit is hereby granted.
18 Union Government v Gass 1959 4 SA 401 (A) 413.
19 Socratous v Grindstone Investments (149/10) [2011] ZASCA 8 (10 March 2011) at [16].
[49.2] The first and second respondents and all those occupying under or through
them, including their family, servants and/or employees (“the occupiers”), are
evicted from the property being: Portion 1 of Erf 6[...], and the remaining
Extent of Erf 6[...], H[...] Township: Registration Division JR: Gauteng
Province (“ the property”);
[49.3] The occupiers shall vacate the property within 14 days from date of service of
this order, failing which, the eviction may be carried out by the sheriff and
his/her duly authorised deputy (“sheriff”), on the first day following thereafter,
and in persuance of executing this order, the sheriff is authorised to enlist the
services of the South African Police Service and/or locksmith to give effect to
this order, should it be necessary;
[49.4] Should the occupiers succeed or attempt to regain access or possession to/of
the property after the eviction order has been executed, the sheriff is
authorised to carry same out in accordance with paragraph 1.2 above, without
the applicant having to approach the court, for further relief;
[49.5] The first and second respondents shall pay the costs of the application jointly
and severally, the one paying, the other to be absolved, on the scale as
between party and party.
T E JOYINI
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the applicant : Adv Christo van der Merwe
Instructed by : Bruno Simao Attorneys
Email : litigation3@brunosimaolaw.co.za / bruce@brunosimaolaw.co.za /
dominus.cvdm@gmail.com
For the respondent s: Adv Matemba Mashaba
Instructed by : Khoza C Attorneys
Email: khozaattorneysinc@gmail.com / advmmashaba@gmail.com
Date of Hearing: 21 January 2025
Date of Judgment: 30 January 2025
This Judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of the
parties. The deemed date and time for the delivery is 30 January 2025 at 10h00.