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arranged that a deposit be paid and a bond be procured for
the remainder of the purchase price. It turned out that a bond could not be procured for the difference between the deposit and the full purchase price , and TLR Industrial was
left in some difficulty in meeting its obligations under that agreement .
Nonetheless, Mr Schubac h agreed to continue to
allow M s Seletswana to occupy the property in return for
occupational rent payments, which were funded by drawing down from the deposit paid against the purchase price. In a
10
series of addenda to the sale agreement, this arrangement was extended from time to time until the deposit itself was completely exhausted and neither TLR Industrial nor
M s Se letswana could produce the balance of the purchase
price owing under the agreement .
At that stage, Mr Schubac h decided to terminate
the agreement. He now sues for M s Se letswana 's eviction
and the eviction of all those holding occupation under her .
The application is brought in terms of the Prevention of
Illegal Eviction from an Unlawful Occupation of Land Act 19
20
of 1998. T here are essentially three requirements under
that legislation that matter in this case. The first is that the
respondents be unlawful occupiers – that they are present
on the property without the consent of the owner or person
in charge and without any other right in law to occupy .
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22-01-2025
Secondly, the unlawful occupiers sought to be evicted must
receive written and effective notice of the proceedings for
their eviction , and of any date on which they will be
required to appear in court . Thirdly, an eviction order must
be just and equitable in all the circumstances .
In this case, the first requirement is clearly
satisfied . M s Se letswana is unlawfully in occupation of the
property . The only right s she could have claimed to occupy
the property would have been those afforded to her under
the addenda to the sale agreement. There can be no 10
dispute that the sale agreement and its addenda have been validly cancelled . That leaves M s Se letswana without a
lawful right of occupation . T here can be no serious
suggestion that Mr Schubac h any longer consents to
M s Se letswana 's occupation of the property .
The second requirement is that the unlawful
occupiers sought to be evicted receive written and effective
notice of the application . Ordinarily, the requirement is that
a court provide such notice . In this case, a court did
provide such notice but the date of which it gave notice was
20
ultimately not the date on which the application was determined. The application was postponed sine die and
the question that originally animated me was whether ,
properly construed , section 4 (2) of the Act requires the
court once again to issue an additional notice of the date on
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which the application is ultimately set down .
Whether or not a court is required to do that , I think
that the allocation of today’s hearing date by the Deputy
Judge President of this Court and the notice of that date
given by the Deputy Judge President's office to
M s Se letswana 's erstwhile attorney in November last year
counts as written an d effective notice given by the court
under the statute. I might also add that M s Se letswana was
herself given further notice by email last December and was
physically served a copy of the notice of set down last 10
week .
Furthermore, Mr Hoffman, who appeared for the
applicant, informed me after the matter was called that
M s Se letswana had been telephoned shortly before I walked
into court and had said that she knew that the matter was in court today and was not planning to attend . Mr Hoffman
assured me that he overheard that conversation and can vouch for the account of it that he gave me.
In all those circumstances, M s Se letswana has
plainly been given not just written an d effective notice
20
under the statute, but repeated notice that the matter would be in court today and that she was entitled to come and
place such circumstances as she wished before me . There
is no indication that her election not to do so is anything
other than free and voluntary . For that reason, I must
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22-01-2025
conclude that she is voluntarily in default of appearance .
Nonetheless, eviction orders are not given by
default. The statute requires me to weigh the equity of an
eviction whether or not an eviction application is opposed ,
and whether or not the unlawful occupiers appear before me
to argue their case. The court exercises an equitable
discretion primarily to protect unlawful occupiers from
homelessness . Constitutionally, a court may not grant an
eviction order where there is a real prospect that an
eviction would lead to homelessness . If it does so, the 10
court grants an order which is unjust and inequitable,
contrary to the statute.
In this case, however, I am satisfied that there is
no appreciable prospect that the eviction order I intend to
grant will lead to homelessness . The circumstances of the
case themselves suggest that M s Se letswana is an affluent
tenant w ho benefited from a transaction of some value
apparently through TLR Industrial . The probabilities in all
the circumstances of the case are that M s Se letswana will
not be rendered homeless by an eviction , albeit that she 20
may not be able to find accommodation of a similar
standard to the home she currently possesses,
She may have to downsize , but the fact that her
occupation of the property has, for a very long period, b een
subsidi sed n ot only by Mr Schubach , but by rental payments
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22-01-2025
of some value , suggests to me that it is within her grasp to
find accommodation that costs considerably less than the
home she presently occupies . The answering affidavit
M s Se letswana filed does nothing to disturb those
probabilities . There is a suggestion in the answering
affidavit that M s Se letswana has fallen on hard times , and
that she and TLR Industrial had every intention of honouring
the sale agreement and ultimately taking ownership of the
property , but that, through a series of misfortunes, they
were unable to do so . 10
None of that, in and of itself, however , indicates an
appreciable risk of homelessness – that M s Se letswana will
literally have nowhere to go if she is removed from the
property on adequate notice . Put simply, this is not the sort
of case t hat the anti-homelessness protections embedded in
PIE were meant to apply to . M s Se letswana does not live in
an informal settlement . She does not live in an abandoned
building . She does not live in a part of town or in an area of
the countryside, o r in other circumstances, that would
suggest that she is impecunious and unable to find 20
accommodation for herself . For all those reasons, I
conclude that an eviction order in this case is just and equitable, a nd I intend to make one .
I am finally required by the statute to set a just and
equitable date by which M s Se letswana will have to vacate