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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN

Case No: 19927 /2023

In the matter between:

FRANCOIS PETRUS RUITERS First Applicant
(Id No.: 6 […])

TRUDINE INGRID RUITERS Second Applicant
(Id No.: 7 […])

and

ELSIE ARENDSE First Respondent

ALL OTHER UNKNOWN OCCUPIERS Second Respondent
OF 5 […] I[…] STREET, BELLVILLE

CITY OF CAPE TOWN METROPOLITAN Third Respondent
MUNICIPALITY

JUDGMENT
___________________________________________________________________
ANDREWS AJ

Introduction

[1] This is opposed application launched by the Applicant s in terms of Section
4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 (“PIE Act”) for the eviction of the First and Second Respondents (“The
Respondents”) . The proceedings were previously adjourned for a housin g report to
be obtained from the Third Respondent, pursuant to the court having found that the
Respondents were in unlawful occupation of the property known as Erf 1 […] Bellville,
situated at 5 […] I[…] Street, Bellville, Western Cape (“the property”).

[2] The factual background requires restating for the purposes of setting the
contextual narrative to these proceedings. The previous owners of the pr operty were
the estates of several deceased, who became the registered owners in terms of Title
Deed T 11682/1 069. Mr Chris Solomon Florence (“Mr Florence”) was appointed by
the Master as the Master’s Representative in all of these deceased estates between
24 July 2006 and 24 August 2022.1 It is unrefuted that property in question has been
sold, seemingly under d ubious circumstances and is currently registered in the
names of the First and Second Applicants.

[3] In this regard, Mr Florence appointed Mr Sybrand Smit from Smit & Co
Attorneys as his agent to wind up all the estates and to sell and transfer the property.
Mr Smit rendered various professional services during the period 26 July 2022 and
19 July 2023 in respect of the reporting of and winding up of all the relevant estates ,
for which Mr Florence was issued with an invoice in the amount of R200 000 for
professional services rendered. Summons was issued pursuant to the account not
being paid. This culminate d in Mr Smit and Mr Florence entering into a settlement

1 Master’s representative under Letters of Authority for the following estates:
(a) Estate Late Jan Andries Petrus Arendse;
(b) Estate Late David Frederick Christian Arendse;
(c) Estate Late Elena Katrina Arendse;
(d) Estate Late Johannes Fred Florence and
(e) Estate Late Getrude Rebecca Florence.
agreement. In terms of the settlement agreement, Mr Florence would transfer the
immovable property of the late estates in the name of Mr Smit. The parties agreed to
make the settlement agreement an or der of Court in terms of Rule 27(6) , which was
done on 3 August 2023.

[4] By virtue of the court order dated 3 August 2023 under case number
6689/2023, transfer was passed to Mr Smit in terms of a power of attorney dated 15
August 2023. The property was ther eafter sold by Mr Smit to the First and Second
Applicants for the agreed amount of R500 000. An amount of R300 000 was
thereafter paid to Mr Florence.

[5] The Respondents accepted for the purposes of these proceedings that they
are de facto in unlawful occup ation, as they have not challenged the sale of the
property because the entire contents of the five (5) deceased estates files were not
supplied to the Respondents by the Master of the Hight Court, despite same having
been requested.

[6] It is also uncontrov erted that the Applicants have not consented to the
Respondents remaining in occupation of the property. Moreover, it is not disputed
that all the procedural requirements have been complied with by the Applicants as
envisaged in the PIE Act.

[7] The crisp issue which remain s to be decided upon is whether it would be just
and equitable for the court to grant the eviction.

The Applicable Legal Principles

[8] Section 4(7) of the PIE Act states as follows:

‘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 wh ere the land is sold in 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 o f state 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.’

Is it “just and equitable ” to grant the eviction?

[9] It is settled law that the provisions of the PIE Act permit the eviction of an
unlawful occupier only where it is ‘just and equitable to do so, after considering al l
the relevant circumstances ’. It is manifest that section 4(7) of PIE provides guidelines
on what considerations must be taken into account when a court exercises its
discretion in this regard.

[10] Section 4(8) of the PIE Act 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 unlawfu l 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 carr ied out if the unlawful occupier has
not vacated the land on the date contemplated in paragraph (a) ’.

[11] It is trite that there is a structured approach which is rooted in established
legal principles and jurisprudence. The court in Madulammoho Housing
Assoc iation NPC v Nephawe and another2(“Madulammoho”) methodically distilled
the considerations of justice and equity as follows:

‘The principles of justice and equity are, first, that the applicant for an eviction
order bears the onus to establish that it is just and equitable to grant one;
second, that evictions that lead to homelessness are not generally just and
equitable; third, that a court has wide powers to require applicants for eviction
orders, organs of state and unlawful occupiers to produce the information

2 2023 JDR 0049 (GJ) at para 8
necessary to enable the formulation of a just and equitable order; and fourth,
that where an eviction would lead to homelessness, the duty to provide the
alternative accommodation necessary to prevent an unlawful occupier from
becoming homeless generally falls on the local authority with jurisdiction over
the property.’

[12] This court, being alive to its wide powers deemed it prudent for the Third
Respondent to produce a housing report in order to assist the court in making the
determination on whether it would be just and equitable to evict the Respondents.
This, notwithstanding that the onus of demonstrating the justice and equity of an
eviction rested on the Applicants for an eviction order. Therefore, i t is the Applicants
who are duty bound to place facts before a court from which an inference can be
draw n that an eviction would be just and equitable.3

[13] In this regard, the Applicants submitted that it would be just and equitable to
evict the Respondents because they are unlawful occupiers as they are occupying
the property without the consent of the Appli cant and without any other right in law
permitting such occupation. The Applicants contended that the applicable legislative
requirements and considerations as set out in the matter of City of Johannesburg v
Changing Tides 74 (Pty) Ltd and Others4.

[14] The court in Madulammoho , in considering the onus and the developing
jurisprudence remarked that:

‘…it is no longer sufficient to approach a court for an eviction order merely on
the basis of the applicant’s ownership or control of the property and the
respondent’s unlawful occupation. Before an eviction order can be granted, the

3 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at para 34
4 Supra at para 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 ection 4 are
satisfied an d no valid defence to an eviction has been raised the court “must”, in terms of s4(8),
grant an eviction order. When granting such an order the court must, in terms of s4(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 s4(12) to attach reasonable conditions to an eviction
order’.
facts must demon strate that it would be just and equitable to make one. There
is accordingly no presumption in favour of granting an eviction order
simply because the applicant h as alleged and proven ownership and
unlawful occupation . Satisfying these requirements does no more than trigger
a further enquiry into whether it would be just and equitable to evict an unlawful
occupier. The fact that an owner is, at common law, entitled to exclusive use
and occupation of their property where there are no other countervailing
common -law rights held over it is a factor that counts in favour of granting an
eviction order, but it is by no means dispositive of the issue.’5 [my emphasis]

[15] This court is al so mindful of what was stated by Van Zyl AJ in Van der Valk
N.O. and Others v Johnson and Others6:

‘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 t o 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 p roperty by a disguised form of expropriation. As was
highlighted in the case of Mainik CC v Ntuli and others [2005] ZAKZHC
10 (25 August 2005): “ 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”.’

[16] To make the determination on whether it is just and equitable to evict the
Respondents, the court is also enjoined to consider the entrenched provisions of
Sections 25 and 26 of the Constitution7, which deals with the rights to housing and
property.

5 Supra, at para 10-11
6 (20449/2021) [2023] ZAWCHC 20 (30 January 2023) at para 26.
7 The Constitution of the Republic of South Africa, 1996 :

The Third Respondent’s Report

[17] It therefo re behoves this court to consider the Third Respondent’s report . In
its report, t he Third Respondent considered the personal circumstances of the
occupiers as disclosed in the respective questionnaires which was ostensibly
completed by each of the occupiers of the property .

First Respondent

[18] The First Respondent is an elderly female who resides on the property with
five dependents. She is a pensioner who receives a monthly income of R2200. She
indicated that she has resided at the premises for a period of 45 years and alleges
that she will be rendered homeless if evicted from the premises.

[19] Tyron Johnny Arendse (“Tyrone”) , who is an occupier residing under the
First Respondent, disclosed that he has no dependents. He did not disclose his
occupation status, nor did he reveal his monthly househo ld expenditure. Tyrone
stated that he has been residing on the premises for a period of 20 years and
alleged that he will be rendered homeless if evicted from the premises.

[20] Ethan Craig Arendse (“Ethan”) , who is also an occupier residing under the
First Respondent, disclosed that he has no dependents. He did not disclose his
occupation status, nor did he stipulate his monthly income or his monthly household
expenditure. Ethan indicated that the has been re siding on the premises for a period
of 19 years and alleged that he will be rendered homeless if evicted from the
premises.

[21] Rekadou John Arendse (“Rekadou”) , disclosed that he is a n adult male
with no dependents. He is unemployed and receives a disability of grant of R2200

‘25. Property
1. No one may be deprived of property except in terms of law of general application, and no law
may permit arbitrary deprivation of property…
26. Housing
1. Everyone has the right to have access to adequate housing…’

per month as a n income. He did not reveal his monthly household expenditure.
Rikadou indicated that he has been residing on the premises for a period of 41 years
and alleged that he will be rendered homeless if evicted from the premises.

[22] Elmarie Ronella Van Wyk (“Elmarie”) disclosed that she is an adult female
with four dependents. She is unemployed but does ‘odd jobs ’ and receives a monthly
income of approximately R2500. She did not disclose her monthly household
expenditure amount . Elmarie disclosed that she had been residing on the premises
for a period of 43 years and if evicted from the premises, she will be rendered
homeless.

Emergency Accommodation

[23] The Third Respondent explained that it is currently faced with a tremendous
challenge as there is a shortage of land to create or establish more emergency
accommodation sites. This , they say is because the City of Cape Town has lost
critical portions of land that were earmarked for the provision of formal housing , as
well as informal developments during the Covid period where they had experienced
the unabated invasion of City land. In order to circumvent the City’s land availability
challenge, the City is currently engaging with organs of state ( Provincial
Government), to negotiate land acquisition for the establishment of temporary
relocation areas.

[24] After considering the First Respondent and her occupiers’ circumstances,
the Third Respondent decided that the First Respondent and her occupiers would be
provided with two emergency housing kits if they are not able to obtain
accommodation through their own means. These emergency housing kits allows for
a structur e of 6 x 3m (18m²) to be constructed.

[25] The supply of the emergency housing kit will only be made available to the
First Respondent and all those holding occupation under the following conditions:

(a) after they have secured a site for its construction ; and

(b) the landowner has consented thereto in writing by means of a sworn affidavit ;

(c) the landowner will be required to provide proof of ownership together with a
copy of their identity.

[26] Additionally, t he First Respondent and her occupiers are required to advise
the Third Respondent on whether they accept or reject the offer for an emergency kit
within 30 days. It is furthermore apparent that the First Respondent and her
occupiers are obliged to assemble the material themselves.

[27] It is however , manifest from t he Third Respondent’s report that all the
questionnaires appear to bear the date of 10 February 2024, which pre -dates the
court’s November 2024 order. The Third Respondent was clearly alive to the
outdated information and mention ed that the Respondents’ Legal Representative
disclosed further socio -economic information to the court which they say will be read
into the questionnaires.

[28] The information placed before this court and which was previously contained
in the judgment of this court, delivered in November 2024 requires restating. Ms
Prinsloo , on behalf of the Respondents placed on record that:

(a) The First Respondent is a 72-year-old pensioner who has been residing on
the property since 1975;

(b) The Second Respondents, E lmarie and Rekadou Arendse, who are the
biological children of the First Respondent are also residing in the property
since birth;

(c) Rekadou receives a disability grant;

(d) Elmarie does “peace jobs ” with minimal incom e; and

(e) The occupiers cannot afford alternative accommodation .

[29] No detail is provided regarding the 4 dependents listed by the occupier,
Elmarie in the questionnaire . Same was however expounded on by Ms Prinsloo in
her address to the court . The information reveals that the ages of the children are 8
years, 14 years, 19 years and 20 years old respectively. Three of the children are
still school -going and the 20 -year-old matriculated in 2023.

[30] To my mind, it is untenable to expect the First Respondent being a 72-year-
old pensioner, not only to secure a site for its construction, but to find a willing
landowner who is prepared to consent thereto by means of a sworn affidavit and
provide proof of registration ; and a s if this is not enough, she is expect ed to
assemble the structure as well. Whilst it may be argued that she has able bodied
adults holding occupation under her to assist her with the construction of the
emergency housing kit , regard must be had to the undisputed fact that Rekadou
receives a SASSA disability grant .

[31] The information contained in the Third Respondent’s report conflicts with the
information contained in the reports of Elmarie and Rekadou respectively . In this
regard, t he report pertinently stated that there are no minors when there are in fact
minor children residing on the premises. They further report that the re are no
disabled occupiers , when Rekadou receives a disability grant. The Third Respondent
acknowledges that ‘[a]lthou gh the questionnaire indicates that there might be
occupant(s) who are either disabled or suffering from chronic medical condition, the
City is advised that none of the occupants suffer from any medical conditions
alternatively that there is nothing wrong with their health ’. This submission is
repeated under the summary of each occupant’s personal circumstances and is
evidently a cut and p aste transposition, with no support to reach its conclusion on the
respective occupiers’ health.

[32] The Respondents have placed on record that they do not know anyone who
is willing to allow them to erect these structures on their property. Therefore, on this
basis alone, the conditions proposed by the Third Respondent appears unattainable
and particularly onerous , more especially if the Respondents are expected to
indicat e acceptance within 30 days. I pause to further menti on that even though the
projected joint income of the household indicates that they are able to find alternative
rental accommodation, this factor in isolation, in my view , does not render the
eviction o f Respondents just and equitable. On the facts before me , on a balance of
probabilities, it appears that an eviction would ultimately lead to homelessness.

Homelessness

[33] The court in Madulammoho aptly stated that ‘[a]lthough there are potentially
a wide variety of reasons why an eviction may not be just and equitable, the case
law developed under PIE has tendered to focus on the injustice of homelessness.
The appellate courts have consistently held that it will not be just an d equitable to
order an eviction where the execution of the eviction order would leave an unlawful
occupier homeless.’8

[34] It is trite that section 4(7) of PIE does not oblige the Applicant to secure
alternative housing for the Respondents. In City of Johannesburg v Changing
Tides 74 (Pty) Ltd and Others9 the court held:

‘The position is otherwise when the party seeking the eviction is a
priva te 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. That approach
makes it difficult to see what ba sis the availability of alternative land or
accommodation bears on the question whether an eviction order
should be granted, as opposed to the date of eviction and the
conditions attaching to such an order.’


8 Supra , at para 12. See also: Occupiers , Berea v De Wet 2017 (5) SA 346 (CC) at para 57 ;
Occupiers , Shulana Court , 11 Hendon Road , Yeoville , Johannesburg v Steele [2010] 4 All SA 54
(SCA) at para 16
9 2012 (6) SA 294 (SCA) at para 18.
[35] The Applicant referred this court to the Consti tutional Court judgment of
Grobler v Phillips and Others10 (“Grobler”) where reference was made to section
4(7) of PIE regarding the considerations of just and equitable eviction orders . In this
regard the relevan t circumstances to be considered included:

‘…whether land has been made available or can reasonably be made available
by a municipality or other organ of state or another land owner for the relocation
of the unlawful occupier, and including the rights and n eeds of the elderly,
children, disabled persons and households headed by women.’

Discussion

[36] In my view , as previously stated, t he proposal by the Third Respondent will
render the First Respondent and those holding occupation under her, homeless. It is
insufficient solace to suggest that a 72 -year-old should move into a zinc structure
after living in the property for 45 years , as verified by the Third Respondent’s report.
The First Respondent’s late husband died intestate which triggered the application of
section 1(c)(i) and (ii) of the Intestate Succession Act 81 of 198711. In this regard, the
First Respondent and the biological children of the deceased held a real right to
inherit in the deceased estates of Johannes and Getrude Florence. In the absence of
a challenge to the executor’s fiduciary duties, this court cannot slavishly follow a tick -
box approach given the unique circumstances of this matter. The body of law and
legal precedent provide helpful guidance and insights on the general approach to
eviction applications. However, justice and equity demand that the court considers
the unique circumstances of this matter through the lens of the now unlawful
occupiers in circumstances where the executor has possibly breached his fiduciary
duty. Furthermo re, the alternatives offered to them are clearly unsuitable and
possible even unjust.

10 [2022] ZACC 32 at para 28.
11 Section 1(c) (i) and (ii) state the following:
‘1. Intestate succession — If after the commencement of this Act a person (hereinafter referred to as
the “deceased”) dies intestate, either wholly or in part, and —
(c) is survived by a spouse as well as a descendant —
(i) such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate
as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice
in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate; ’

[37] The Applicants offered to pay the Respondents an amount of R30 000 on
vacating the property as an ex-gratia payment towards relocation. The Respondents
placed reliance on the matter of Grobler 12 where the appeal was upheld and the
order of the SCA set aside and substituted with a n ew order directing applicant to
purchase a dwelling; to register against the title deed a right on first respondent’s
part to reside in the property for the rest of her life, and for applicant to pay the
relocation costs of the first respondent and second respondent . This offer was
rejected by the First and Second Respondents. T he proposal by the Applicant to pay
an amount towards the relocation of the Respondents, in kee ping with the Grobler13
order appears to be a good faith gesture . This gesture however , in my opinion, does
not detract from the fact that the hurdle of justice and equity has not been overcome.

[38] This court is mindful that the Respondents are currently not paying rental or
any of the municipal accounts . Nevertheless , in weighing up all the factors, it is
further manifest that the report provided by the Third Respondent is wholly
insufficient and does not assist the court in making a determination on whether it will
be just and equitable to evict the First and Second Respondents. In any event, this is
not a typical eviction in terms of which there has been a breach of a lease
agreement. In casu there is no agreement in place between the Applicant s and the
Respondents. These circumstances are unique and cannot be viewed in the same
way as, to use the idiomatic expression, a run of the mill -type-eviction where there
has been a cancellation of a written or oral lease agreement. All indications are that
an eviction order wi ll effectively render the First and Second Respondents homeless ,
which is not what is envisaged in section 4(7) of PIE.

[39] The Applicants ’ reliance on the fact that the joint household income indicates
that the Respondents would be in a position to rent els ewhere and as such , they will
not be rendered homeless, is by no means not the only factor that this court is
required to consider ; bearing in mind that the extent of the Respondents current
financial commitments have not been placed before this court to be able to make a
determination on whether they could afford to rent a property elsewhere. I echo the

12 Supra at pg 32
13 At para 49
findings of the court in Madulammoho that there is no presumption in favour of
granting an eviction order simply because the Applicant s have alleged and p roven
ownership and unlawful occupation.

[40] Consequently, I conclude that granting an eviction order would infringe upon
the rights of the elderly, children, and disabled occupiers based on the information
presented to this court. Even if the eviction date i s deferred to a future date, the
concerns relating to the vulnerable persons identified have not been overcome. This
court cannot ignore the plight of the First and Second Respondents in the milieu of
the unique factual matrix of this matter.

Costs

[41] The matter of costs remains in the unfettered discretion of the court. Given
the nature of these proceedings, I deem it in the interest of justice that each party
bear his or her own legal costs.

Order

[42] In the result, the Court, after having heard counsel for the respective parties
and having read the papers on record make the following orders:

1. The application is dismissed.

2. Each party is to pay his/or her own costs.


____________________________________
P D ANDREWS
Acting Judge of the High Court, Western Cape Division


APPEARANCES

For the Applicant : Advocate Lourens van Zyl
Instructed by : Sybrand Smit & Co Attorneys

For the First and Second Respondent s: Attorney , Ms T Prinsloo
Instructed by : Legal -Aid South Africa

Date of Hearing : 24 January 2025
Date of Judgment : 10 February 2025

NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.