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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 032666 -2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 12/03/2025
LENYAI J
In the matter of:
PRINCE SURPRISE MOFAMADI First Applicant
MASEU MASHABELA Second Applicant
And
ELLA MOKHUANE First Responde nt
OCCUPIERS OF ERF 4[...] UNIT [...] M[...] Second Respondent
CITY OF TSHWANE METROPOLITAN MUNUCIPALITY Third Respondent
Delivered: This judgment is handed down electronically by circulation to the Par-
ties/their legal representatives by email and by uploading to Caselines. The date and
time of hand -down is deemed to be 14:00 on 12 March 2025.
_________________________________ _________________________________ _
JUDGMENT
___________________________________ _______________________________ _
LENYAI J
[1] This is an eviction application in terms of the provisions of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE
ACT).
[2] The applicants aver that on the 27th March 2019 they jointly purchased Erf
4[...] M[…] Unit […] Township (the property) from the executrix in the estate of
the late Mr. N T Matseke, the registered owner of the property. The property
was registered and transferred into their names on the 28th October 2021.
[3] The applicants aver that they are the registered owners of the property, and
the respondents are unlawfully occupying the property. The applicants submit
that after the property was transferred into their names, they personally tried
to advise the respondents that they had bought the property, and they must
vacate the property. The applicants further aver that they have not leased the
property to the respondents and despite repeated requests to vacate the
property, the respondents refuse and allege that they bought the property
from the late Mr. N.T Matseke.
[4] The applicants further aver that the respondents have been staying in the
property without their consent, and they are not paying for the rates and tax-
es. The applicants submit that in December 2022 the City of Tshwane Metro-
politan Municipality presented them with an invoice indicating that they owed
an amount of R6 575.00 which they had to pay as they are the registered
owners of the property. The respondents continue to stay at the property, not
paying rent and not even paying for the rates and taxes .
[5] The applicants submit that on the 31st January 2023, through their attorney of
record a letter dated the 30th January 2023 was sent to the first respondent . In
the said letter the first respondent was requested to vacate the property on or
before the 13th March 2023 and she has failed to do so and she together with
others continue to unlawfully occupy the property.
[6] The applicants submit that they have granted the respondents ample oppor-
tunity to make alternate arrangements and vacate their property. The re-
spondents’ continued stay in their premises is unlawful within the meaning of
the PIE Act.
[7] The applicants contend that the respondents’ unlawful occupancy of their
property since March 2019 is prejudicing them in the following way:
(a) they are unable to take control and occupancy of their own property ;
and
(b) they are now forced to pay for the rates and taxes to the City of
Tshwane Metropolitan Municipality despite not utelising the premises.
[8] The applicants further aver that respondents did not raise the defense that
there are elderly and or disabled persons residing at the property nor did they
raise the defense of acquisitive prescription. The applicants submit that it is
clear from the respondents’ answering affidavit that by the 6th November 2019
they were notified by Sedile PT Attorneys that they were in illegal occupation
of the property.
[9] The applicants submit that at all material times the first respondent knew that
the occupation of the property was not permanent, and neither was it lawful
and she should have sought alternative accommodation to avoid any incon-
venience.
[10] The first and second respondents (the respondents) aver that the applicants
brought this eviction application knowing full well that there was a pending
eviction application against them in the Magistrate Court brought by the exec-
utrix in the estate of the late Thabang Noto Matseke under case number
307/2020 , on the same cause of action and in respect of the same subject
matter. The respondent s further submitted that the magistrate court eviction
application was withdrawn on the 16th May 2024, however in that Magistrate
Court eviction application they had raised the defense of acquisitive prescrip-
tion.
[11] The respondents further aver that the third respondent (City of Tshwane) has
not provided a report to the Court regarding the provision of alternate land or
accommodation.
[12] The applicants and the respondents in their joint practice note dated 27th June
2024 agreed that:
12.1 The common cause issues are as follows:
12.1.1 The applicants acquired the ownership of the property occupied
by the respondents by sale in March 2019 and transfer of the
property into the names of the applicants has already taken
place;
12.1.2 No lease agreement was concluded between the applicants and
the respondents;
12.1.3 A demand was made by the applicants for the respondents to
vacate the property.
12.2 Issues to be determined by the Court:
12.2.1 Whether the respondents’ occupation of the applicants’ property
is lawful.
[13] Section 4(7) of the PIE Act provides that:
‘If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings were 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 relevant circumstances, including, except where the land is
sold on execution pursuant to a mortgage, whether the land has been made
available or can reasonably be made available by a municipality or other or-
gan of state or another land owner for the relocation of the unlawful occupier,
and including the rights and needs of the elderly, children, disabled person
and household headed by women.”
[14] Section 4(8) of the PIE Act provides that:
“If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raise d by the unlawful oc-
cupier, it must grant an order for the eviction of the unlawful occupier, and de-
termine –
(a) a just and equitable date on which the unlawful occupier must va-
cate the land under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlaw-
ful occupier has not vacated the land on the date contemplated in
paragraph (a).”
[15] In the matter of Ndlovu v Ngcobo, Bakker and Another v Jika (1)
(240/2001, 136/2002) [2002] ZASCA 87; [2002] 4 All SA 384 (SCA) (30 Au-
gust 2002) at paragraph 11, the court held that
“… PIE Act applies to all unlawful occupiers, irrespective of whether their pos-
session was at an earlier stage lawful.”
[16] Turning to the matter before me the parties have agreed in the practice note
that the applicants are the registered owners of the property there is no lease
agreement that was concluded between the parties. The respondents have
not raised any valid defense except to state that they have raised the defense
of acquisitive prescription in another matter in the magistrate court. The re-
spondents have also advised the court that the matter in the magistrate court
has been withdrawn.
[17] Upon careful consideration of the papers filed and the submissions of the le-
gal representatives in court, I am of the view that there is no defence raised in
these proceedings before me by the respondents . The respondents simply
mentioned that there is a defence raised in the magistrate matter which was
eventually withdrawn.
[18] I am satisfied that the applicants are the lawful and registered owners of the
property. The respondents are unlawful occupiers of the property as they are
in occupation without the express or tacit permission of the registered owners
and continue to refuse to vacate the property despite repeated requests .
[19] Section 26(3) of the Constitution of the Republic of South Africa, 1996 pro-
vides that:
“No one may be evicted from their home , or have their home demol-
ished, without an order of court made after considering all relevant cir-
cumstances. No legislation may permit arbitrary evictions.”
[20] In the matter of Pheko and Others v Ekurhuleni Metropolitan Municipality
(CCT19/11A) [2015 ] ZACC 10; 2015 (6) BLCR 711 (CC); 2015 (5) SA 600
(CC) (7 May 2015), the Constitutional Court affirmed that section 26(3) does
not permit legislation authorizing evictions without a court order. The PIE Act
reinforced this by providing that a court may not grant an eviction order unless
the eviction would be just and equitable in the circumstances. The court has
to have regard to a number of factors including but not limited to the following:
(a) whether the occupants include vulnerable categories of persons, that is
the elderly, children and female -headed households;
(b) the duration of the occupation; and
(c) the availability of alternate accommodation in instances where occupi-
ers are unable to obtain alternate accommodation for themselves.
[21] In the matter of ABSA Bank v Murray and Another 2004 (2) SA 14 C at pa-
ra 41 and 42, the court held that :
“in (its) view, the failure by municipalities to discharge the role implicitly en-
visaged for them by statute, that is, to report to Court in respect of any of the
factors affecting land and accommodation availability and the basic health and
amenities consequences of an eviction, especially on the most vulnerable
such as children, the disabled and the elderly, not only renders the service of
the (s 4(2)) notice superfluous and unnecessarily costly exercise for the appli-
cants, but more importantly, it frustrates an important objective of the legisla-
tion. It will often hamper the Court’s ability to make decisions which are truly
just and equitable . If the PIE is to be properly implemented and administered,
reports by municipalities in the context of eviction proceedings instituted in
terms of the old statute should be the norm and not the exception.”
[22] Turning to the matter before me, there is no report placed before Court from
the municipality to assist the Court to consider all relevant factors regarding
the respondents , to determine whether it is just and equitable to evict, and al-
so to advise on the availability of alternate accommodation. It is the responsi-
bility of the applicants in eviction proceedings in terms of PIE to ensure that a
report from the municipality is placed before Court.
[23] Under the circumstances I make the following order:
1. The first and second respondents are declared unlawful occupiers of
ERF 4[...] Unit [...] M[...] .
2. The application for eviction is dismissed.
3. Each party to bear their costs.
LENYAI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
Counsel for Applicant : Adv M.C Mavunda
Instructed by : Maimele DJ Incorpo-
rated
Counsel for the Respondents : Adv M.S Man-
ganye
Instructed by : KLM Maja Attorneys
Date of hearing : 29 August 2024
Date of Judgement : 12 March
2025