SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Appeal c ase number : A209 /2024
Magistrate’s Court case number: 8449/2023
In the matter between :
C[...] D[...] O[...] Appellant
and
AHM ED MU NZOOR SHAIK EMAM First respondent
CITY O F CAPE TOWN Second respondent
JUDGMENT DELIVERED ON 10 FEBR UARY 2025
VAN ZYL AJ :
Introductio n
1. On 26 April 2024 the Cape Town Magistrate’s Court granted an eviction order (at
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
the first respondent’s behest) in terms of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), ordering the appellant
and all persons holding title under her to vacate the premises situated at 2[...]
T[...] Close (Erf 6 [...]), Parklands, Western Cape by 31 July 2024. Written
reasons for the order were furnished on 30 May 2024.
2. The first respondent purchased the property at a sale in execution that was held
on 31 January 2023 , pursuant to an order previously grant ed1 in the High Court
on 22 July 2021 , in an action instituted by Nedbank Limited , as bondholder,
against the appellant’s husband, who was the registered owner of the property at
the time . I shall refer to this order as the Nedbank order. In terms of the
Nedbank order, the property was declared specially executable so as to pay the
amount outstanding under the mortgage bond registered over the property.
3. Transfer of the property was regi stered in the first respondent’s name on 20 April
2023.2 The eviction application was instituted in June 2023.
4. The appellant lodged a notice of appeal against the eviction order on 5 July 2024 ,
just short of a month prior to the date upon which she was to vacate the property .
Condonation
5. At the outset, there was an application for condonation of the late delivery of the
first respondent’s heads of argument , as well as of the delivery, at the last
minute, of the appellant’s heads of argument in relation to the application for
postponement . There was no opposition in either case , and condonation was
duly granted.
The appellant’s application for postponement of the appeal hearing
6. Shortly before the hearing of the appeal the app ellant indicated t hat she would
1 Under case number 4423/2022 in this Court .
2 There was an initial objection to the first respondent’s locus standi , but the issue was duly
dealt with by the magistrate in the context of section 4(1) of PIE , read with the definitions of
“owner” and “person in charge” in section 1 of PIE.
seek a postponement of the appeal hearing. A formal application for
postponement was delivered three days before the hearing .
7. The reason for the postponement was that the appellant wished to app eal
against the Nedbank order , as the appellan t was of the view that that order had
been granted in error . The appellant argued that a successful appeal against
that order would mean that the eviction order granted by the magistrate’s court
could no longer stand . As the appellant ’s attorneys put it, “the ownership of the
immovable property in question is predicated upon the Rule 46A jud gment a nd
the subsequent sale in execution authorized thereby” .
8. There are several difficulties with the appellant’s proposed application for leave to
appeal in respect of the Nedbank order , assuming that an appeal against the
order is competent in the circumstances.
9. The first is that the application for leave to appeal is long out of time – almost
three years late . Although an application has been brought for condonation of
the delay in the institution of the application for leave to appeal, the appel lant’s
justification for seeking leave to appeal only at this juncture rings hollow. It is
clear from the documents filed of record in the eviction application that the
appellant had known in 2021 already that the property would have to be sold
because it was no longer affordable. A private sale be tween the appellant’s
husband and the first respondent at that stage was interdicted, whereafter
Nedbank called up the bond.
10. It appears from the application s for postponement and for condonation that, in
fact, the appellant was in court on the day that the Nedbank order was granted.
The appellant states that she was unrepresented at the time, but it is not in
dispute that she thereafter acquired legal represe ntation for the purposes of
various bouts of litigation between her and her husband , and also that she had
legal representation prior to the date of the Nedbank order for the same purpose .
There is no acceptable reason on record to explain why the possibl e appeal (or
rescission) of the Nedbank order was not debated at an earlier stage , especially
as the property seems to have been a persistent bone of contention between the
appellant and her husband both before and after the grant of the Nedbank order .
To say, as counsel did in argument, that it “ did not occur to her that she had to
deal with it ” is not sufficient.
11. The second problem is that, although the appellant argues that the presiding
judge who granted the Nedbank order on 22 July 2021 “ failed to ap ply the
requisite judicial oversight mandated by the proviso to Rule 46(1)(a) ”, no reasons
had been given for the order at the time, and the appellant has not subsequently
sought reasons. The appellant can therefore not specify which aspects the
presiding judge had failed to consider. The appellant states that she had
delivered an affidavit opposing the grant of the Nedbank order, and had raised
oral objections in open court at the time. Presumably, therefore, the presiding
judge had in fact take n the information contained in the opposing affidavit as well
as the appellant’s oral objections into account in granting the Nedbank order.
There is simply no telling in which (if any) respects the presiding judge had erred.
The order stands. It is the refore not so that, as the appellant argues, the current
appeal is not ripe for hearing because the court erred in 2021 in granting the
Nedbank order .
12. The third problem is that there is as yet no indication as to how or when the
application for leave to a ppeal will be dealt with, and by w hom. The judge who
granted the Nedbank order is no longer serving on the Bench. Counsel did not
indicate that any steps had been taken to resolve the way forward . Any
postponement granted in relation to the present appe al will therefore have to be
sine die . This is not a satisfactory position.
13. A fundamental issue, to which I have alluded, is that the appellant was not a
party to the Nedbank litigation, and she did not apply for leave to intervene in
those proceedings. Counsel for the appellant su bmitt ed with reference to the
matter of Bestbier and others v Nedbank Ltd3 that, because the appellant
3 2024 (4) SA 331 (CC) at para [70]: “ Rule 46A(3)(b) requires that every application to declare
residential immovable property executable shall be on notice to the judgment debtor and “to
any other party who may be affected by the sale in execution”, including the entities referred
to in rule 46(5)(a), provided that the court may order service on any other party it considers
neces sary” .
received notice of the Nedbank application under Rule 46A (3)(b) of the Uniform
Rules of Court , she thereby derived a right to appeal the grant of the Nedbank
order. This is not correct. The reason why notice to occupiers is required where
sales in execution are on the cards is because those occupiers’ rights of access
to housing are worthy of protection , and should be considered together with all of
the other factors that are relevant in determining whether execution is the
appropriate route to follow . R ule 46A(2) provides that a court “shall not ”
authorise execution unless “all relevant factors’ have been co nsidered ”. The
giving of notice did not, however, clothe the appellant, as a non -party to the
underlying application, with the right to appeal the Nedbank order. She may
have had other remedies in relation thereto, but an appeal was, and is, not one of
them.
14. In National Police Service Union and others v Minister of Safety and Security and
others4 the Constitutional Court restated the well -known principles underlying
applications for postponement as follows:
“The postponement of a matter set down for hearing on a particular date
cannot be claimed of right. An applicant for a postponement seeks a n
indulgence from the court. Such postponement will not be granted unless this
Court is satisfied that it is in the interests of justice to do so. In this respect the
applicant must show that there is good cause for the postponement. In order
to satisfy t he Court that good cause does exist, it will be necessary to furnish
a full and satisfactory explanation of the circumstances that give rise to the
application. Whether a postponement will be granted is therefore in the
discretion of the Court and cannot b e secured by mere agreement
between the parties. In exercising that discretion, this Court will take into
account a number of factors, including (but not limited to): whether the
application has been timeously made, whether the explanation given by the
applicant for postponement is full and satisfactory, whether there is prejudice
to any of the parties and whether the application is opposed. All these factors
will be weighed by the Court to determine whether it is in the interests of
4 2001 (8) BCLR 775 (CC) at para [4].
justice to grant the po stponement. ”
15. In the circumstances of the present matter , the prospects of the application for
leave to appeal are slim. I do not regard it is just and equitable that the first
respondent should be compelled to wait for an indefinite period to hear whether
he may take possession of his property. In Snyders (Mputsoe) v Elizabeth
Conradie School5 the Court held as follows in relation to an application for the
indefinite postponement of the hearing of an application for leave to appeal:
“… it would be unduly burdensome on the present respondent and severely
prejudicial to it, if an indefinite postponement is granted to the present applicant.
Litigants, who hold a judgment in their favour are entitled to expect that any
proposed or contempl ated appeal moves forward within a reasonable period.
Even in extra -ordinary cases a litigant could never expect an indefinite delay in
an application for leave to appeal. I believe such an indefinite delay is clearly
unduly prejudicial to the present resp ondent. ”
16. These sentiments are apposite in circumstances of the present matter. In my
view, the application for a postponement should accordingly be refused.
The merits of the appeal
17. When the possibility of a postponement was first raised, the appellant’s legal
representatives were cautioned nevertheless to be ready to make submissions
on the merits of the appeal. This was because the Court, not having considered
the postponement appl ication, could not at that stage tell whether it was to be
granted or refused – should it be refused, then the appeal would proceed. The
other possibility was that the Court would prefer to hear argument both on the
issue of postponement and on the merits of the appeal, and thereafter decide the
fate of the postponement application.
18. At the hearing of the appeal, after addressing the Court on the postponement, the
5 [2025] ZANCHC 3 (23 January 2025) at para [12].
appellant’s counsel indicated that she was not in a position to make submissions
on the merit s. This was unfortunate, given the express warning given by the
Court that the parties should be ready to argue the merits of the appeal. The
appellant’s legal representatives failed, too, to deliver heads of argument on the
merits. Counsel was neverthe less invited to make submissions in relation to the
merits of the appeal.
19. In this regard the Court’s task was eased because of the detailed judgment
written by the magistrate. I deal briefly with the various grounds of appeal raised
in the notice of appeal . None of the grounds has merit. The appellant has,
moreover, sought to resurrect grounds in the notice of appeal in relation to
aspects relating to point s of law that had expressly been abandoned by the
appellant in the magistrate’s court . The appellant can for obvious reasons not
argue that the magistrate’s court erred or misdirected itself on point s abandoned
by the appellant ’s legal representative at the hearing of the eviction applicati on.
The first ground of appeal : The magistrate erred in not calling for the joinder of the
appellant's husband to the proceedings , and holding that he did not have a direct and
substantial interest in the proceedings
20. In the magistrate’s court the appellant initially sought the postponement of the
eviction application to allow for the joinder of her estranged husband . This point
was expressly - and sensibly - abandoned at the hearing of the eviction
application by the first respondent’s attorney . The magistrate’s judgment records
the position as follows: "First respondent abandoned a dilatory plea to join her
estranged husband to the proceedings as he has duty of support owed her and
their minor children. "
21. The appellant is therefore not at liberty to resurrect the issue on appeal.
22. The judgment nevertheless record s the magistrate's view on the issue of joinder .
The magistrate correctly held that "it is not the estranged husband whose rights
are being decided as he is not an occupier of the property ”. This reasoning
cannot be faulted . In Judicial Service Commission and another v Cape Bar
Council and another6 the Supreme Court of Appeal held as follows in relation to
joinder :
“It has by now become settled law that the joinder of a party is only required as a
matter of necessity — as oppos ed to a matter of convenience — if that party has
a direct and substantial interest which may be affected prejudicially by the
judgment of the court in the proceedings concerned …. The mere fact that a
party may have an interest in the outcome of the litig ation does not warrant a
non-joinder plea. The right of a party to validly raise the objection that other
parties should have been joined to the proceedings, has thus been held to be a
limited one … ”
23. The Constitutional Court in Snyders and others v De Jager7 has confirmed what
is considered as a "direct and substantial interest":
“A person has a direct and substantial interest in an order that is sought in
proceedings if the order would directly affect such a person's rights or interest. In
that case the person should be joined in the proceedings. If the person is not
joined in circumstances in wh ich his or her rights or interests will be prejudicially
affected by the ultimate judgment that may result from the proceedings, then that
will mean that a judgment affecting that person's rights or interests has been
given without affording that person an opportunity to be heard. That goes against
one of the most fundamental principles of our legal system. That is that, as a
general rule, no court may make an order against anyone without giving that
person the opportunity to be heard. "
24. Any rights that the appellant may have against her estranged husband are to b e
pursued by her in a different forum. The eviction application related to the
unlawful occupation of the property by the appellant and those holding title under
her. Her husband is not an occupier . It would have been irregular to order the
joinder of the husband when he does not reside at the property , and has no
interest in the outcome of the eviction application .
6 2013 (1) SA 170 (SCA) at para [12].
7 2017 (5) BCLR 604 (CC) at para [9].
The second ground of appeal : The magistrate erred in applying the provisions of section
4 of PIE specifically insofar as it relates to the appellant's husband ’s duty of support
owed to the appellant and the ir minor child
25. This issue is linked to the one discussed above, and was also abandoned by the
appellant in the magistrate’s court . The a ppellant's attorney addressed the
magistrate as follows : "All right. Your Worship, then in terms of section 4(1) and
4(2) we have conceded those points in limine as well as the joinder. I think th e
Cape Killarney makes a provision that sufficient. So we are not going to pursue
that point".
26. The appellant is accordingly not entitled to raise the issue on appeal.
27. This ground of appeal is, in any event, lacking in specificity . Tthe appellant has
failed to identify any particular aspect of section 4 of PIE in which the magistrate
is alleged to have erred. It is therefore not possible to consider it in any detail.
28. Insofar as the appellant’s husband’s common law duty of support had initially
been raised as a defence to the eviction application, the matter of Shezi v L.V.L
and another8 is instructive. This was an application brought by the applicant, the
purchaser a nd registered owner, for the eviction of the first respondent from the
property in question . The first respondent claimed that she was the customary
law wife of the seller and , as such, she had a right to remain reside nt in the
immovable property. The Cou rt held as follows:
"There is no merit in the argument that the respondent is the co -owner of the
property in terms of her marriage to the seller, Mr M., and therefore she is entitled
to remain in occupation of the property because her consent to sell the property
was not soug ht by Mr M.. If she was married to Mr M. as contended, the
proprietary rights of her marriage are to be determined by the divorce court and
once so determined, she may have recourse against her husband. The applicant
8 [2023] ZAGPJHC 373 (24 April 2024) at para [13].
is on record that he is opposing the ap plication to be joined in the divorce
proceedings for he has no interest in those proceedings. It cannot be right that an
innocent and lawful purchaser of the property from its rightful owners in terms of
a title deed and through a deed of sale , the appli cant in this case, should be
burdened with the marital problems of an unlawful occupier of his property - that
would be tantamount t o the expropriation of the land or property of a lawful
private owner .”9
29. This stance is a sensible one . The first respondent cannot be held liable for the
alleged failure by the appellant's husband to support her and the minor child –
the existence and consequences of any such failure are issue s that should be
determined in an appropriate forum upon relevant evidence . The papers in the
eviction application that served before the magistrate did not widen the scope of
the enquiry to the extent where a fully -blown maintenance inquiry was warranted.
The third ground of appeal : The magistrate erred in finding that the appellant's
husband's duty of support owed to the appellant and the minor child was irrelevant to
the exercise of his discretion under section 4 of PIE. In doing so , the magistrate “had no
regard to the scope and content of the appellant's husband parental duties towards the
minor child , which are fundamental to eviction proceedings ”
30. This ground, linked to the previous one, is similarly vague and irrelevant. The
magistrate’s court was not taske d with determining the duties and liabilities of the
appellant's husband. What the appellant is effectively arguing is that a court in
an eviction application should order a husband to pr ovide alternative
accommodation.
31. There is no merit in this argument, which was quite correctly not entertained by
the magistrate.
The fourth ground of appeal : The magistrate failed to have regard to the relationship
betwee n the appellant and her husband , and the probability that an eviction application
9 Emphasis supplied.
would lead to homelessness. In doing so, the magistrate “misconceived the scope of his
discretion and the factfinding powers available to him ”
32. The basis for this ground of appeal is unclear, as is the issue of how the
relationship between the appellant and her husband relates to homelessness. As
indicated, the appellant and her husband are estranged. The latter does not
occupy the property any longer. I ha ve dealt with the fact that the appellant has
remedies to pursue against her husband in respect of his maintenance
obligations towards her and their minor child. She is not entitled to hold the first
respondent’s property hostage, so to speak, in an attem pt to enforce her claims
against her husband.
33. The first respondent purchased the property at a sale in execution held following
the obtaining of the Nedbank order – Nedbank having been the bondholder. The
appellant conceded that she was an unlawful occupier , and it accordingly stands
to reason that the issue of the just and equitability of her eviction from the
property would hav e to be determined.10 This the magistrate duly did.
34. The appellant was an unlawful occupier for less than six months at the time of the
institution of the eviction application. The magistrate’s court therefore dealt wi th
the matter in accordance with sections 4(6) and 4(8), read with section 4(9), of
PIE, which do not expressly refer to alternative accommodation as a factor to be
taken into account in considering whether to grant an eviction order . These
sections provi de as follows:
“(6) If an unlawful occupier has occupied the land in question for less 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 the rights and needs of
the elderly, children, disabled persons and households headed by women.
…
10 If it is held to be just and equitable that the occupier be evicted, then the terms and conditions
of such eviction fall to be determined: Transcend Residential Property Fund Ltd v Mati and
others 2018 (4) SA 515 (WCC) at para [3].
(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid d efence 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).
(9) In determining a just and equitable date contemplated in subsection (8),
the court must have regard to all relevan t factors, including the period the
unlawful occupier and his or her family have resided on the land in question .”
35. Notably, s ection 4(7) of PIE provides (albeit in relation to persons who have been
unlawful occupiers for more than six month s) 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 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 of
state or anothe r 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. ”11
36. Smith Eviction and Rental Claims: A Practical Guide12 state s as follows in this
regard :
11 Emphasis supplied.
12 Lexis Nexis online version ( updated to May 2023 ) para 3.9.
"The availability of alternative land does not have to be considered if the land is
sold in a sale of execution pursuant to a mortgage. The exemption in section
4(7), excluding the consideration of alternative land where the eviction is
subsequent to an e xecution sale, is also not limited to instances where the former
mortgagor is the occupier whose eviction is being sought. All evictions
subsequent to sales in execution are included in the exemption. ”
37. Accordingly, the issue of alternative accommodatio n being available to house the
appellant did not expressly arise. In Port Elizabeth Municipality v Peoples
Dialogue on Land and Shelter and others13 the Court emphasised that to elevate
the factor of alternative accommodation to a precondition for an eviction order
would have far -reaching and chaotic consequences which could never have been
envisaged by the legislature. It is but one of many factors that have to be taken
int account.
38. In the present matter, t he appellant would in any event n ot have been rendered
homeless , as the first respondent had tendered to pay a deposit for her to rent an
alternative residence, as well as to pay for two months ’ rental. This was after the
appellant had stated in her answering affidavit that she would be rendered
homeless if she did not have a deposit and two months’ rental payments.
The fifth ground of appeal : The magistrate failed to adopt the “pro-active approach"
used in the exercise of the equitable discretion conferred by section 4 of PIE, in that the
magistrate failed to consider a reasonable time period within which the appellant was to
vacate the premises having regard to “the personal and financial circumstance s of the
appellant being a woman -headed household and the sensitivity of the minor child who
has resided in the premises all her life”
39. It is unclear what the appellant mean s by the "pro-active approach". It is,
however, trite that an appeal court has a restricted discretion . It can interfere
only if the lower court has not exercised its discretion judicially : "This means that
a court of appeal is not entitled to interfere with the exercise by the lower court of
13 2001 (4) SA 759 (E) at 769C -F.
its disc retion unless it failed to bring an unbiased judgment to bear on the issue;
did not act for substantial reasons; exercised its discretion capriciously, or
exercised its discretion upon a wrong principle or as a result of a material
misdirection ”. 14
40. In Grob ler v Phillips and others15 the Constitutional Court highlighted that the
discretion lies at the magistrate's court that deals with the eviction application:
“This matter commenced in the Magistrates' Court and it was that Court that had
the discretion. When it was heard on appeal by the High Court, that Court had to
determine whether the Magistrates' Court had exercised its discretion properly .
The Supreme Court of Appeal dealt with the matter as if the High Court was the
court that had the discretion t o determine whether it was just and equitable to
grant an eviction order and it erred in this regard. "
41. I agree with the first respondent’s submission that the period granted to the
appellant to vacate the property cannot be faulted. The order was handed d own
on 26 April 2024, with the date to vacate being 31 July 2024. This was a period of
more than three months for the appellant to vacate the immovable property. The
appellant had been residing unlawfully at the property since March 2023.
42. As indicated, t he appellant would not have been homeless on vacating the
immovable property as the first respondent ha d tendered a deposit and two
months’ rental to the appellant for the acqui sition of alternative accommodation.
16
43. It is clear from a conside ration of the magistrate’s judgment that, in determining
the period to vacate, the magistrate had regard to the interests of the minor child,
as well as to the appellant’s income , the fact that the appellant had not paid
towards any rental at the occupied property , and the paucity of relevant
information as to why the appellant was not in a position to find alternative
14 Malan and another v Law Society, Northern Provinces 2009 (1) SA 216 {SCA) at para [13].
15 2023 (1) SA 321 (CC) at para [24] . Emphasis supplied.
16 The appellant having stated in her answering affidavit that she would be rendered homeless
as she would not be able to afford a deposit and two months’ rental.
accommodation.
44. The magistrate’s court pointed out tha t the appellant had failed to provide any
informati on about her ability to rely on friends and family for assistance , as well
as her failure to provide any proof of a maintenance order or recent bank account
to support her averments . The magistrate referred to Mayekiso and another v
Patel and others ,17 which the Court held that the parties had a duty to place all
relevant information before the Court for the purposes of consideration of the
eviction application. Where a party failed to do so, an eviction order was justified
where the evidence indicated th at the occupation was unlawful and that an
eviction would not result in homelessness.
45. The magistrate’s court further expressly considered the fact that , apart from the
appellant’s own income, the appellant's son who reside d with her earn ed
R8 000.00 per month , and that the appellant lived with her adult partner, with no
information as to the latter's income . It appeared to the court that the appellant
wanted to stay at the property until her estranged husband provide d her with
maintenance . In this regard the court stated: "… this underlies her view that
applicant18 must wait to exercise his proprietary rights until her matrimonial rights
to support and maintenance are enforced and alternative accommodation is
provided or arrear maintenance is paid in full."
46. In the circumstances, the magistrate’s court found the appellant's assertion that
she would be rendered homeless to be "unpersuasive and not credible ". On a
consideration of the papers as a whole, I cannot fault this finding.
47. In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39
(Pty) Ltd and another19 the Constitutional C ourt held that: "Of course, a property
owner cannot be expected to provide free housing for the homeless on its
property for an indefinite period."
17 2019 (2) SA 522 (WCC) at para s [65] -[66].
18 I.e., the first respondent in th is appeal.
19 2012 (2) SA 104 (CC) at para [40].
48. In a similar vein, t he Supreme Court of Appeal i n Ndlovu v Ngcobo; Bekker and
another v Jik a20 held that: "The effect of PIE is not to expropriate the landowner
and PIE cannot be used to expropriate someone indirectly and the landowner
retains the protection of s 25 of the Bill of Rights. What PIE does is to delay or
suspend the exercise of the landowner’s full proprietary rights until a
determination has been made whether it is just and equitable to evict the unlawful
occupier and under what conditions. Simply put, that is what the procedural
safeguards provided for in s 4 envisage. "
49. In Grob ler supra the Constitutional Court dealt with the issue as follows:21
"In determining the competing interests of both parties to eviction proceedings,
due regard must be had to the considerations of Justice' and 'equity' as required
by PIE. In Hattingh this court said:
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.'
Claytile, as well, reminds us that there has to be 'some give by both partie s' . In
essence, when balancing the interests, compromises have to be made by both
parties, in order to reach a just and equitable outcome. A disturbing feature in this
matter is that very little effort was made by Mrs Phillips to seriously consider the
several offers of alternative accommodation made by Mr Grob ler. She also did
not make any counter -offers in response to the generous offers of alternative
accommodation made by Mr Grobler. "22
50. Grob ler rejected the notion that the respondent's personal notion of where she
20 2003 (1) SA 113 (SCA) at para [1 7].
21 At paras [39] -[40].
22 At paras [39] -[40].
want ed to stay was a relevant criterion for consideration:
"A just and equitable order should not be translated to mean that only the rights
of the unlawful occupier are given consideration and that those of the property
owner should be ignored. And it does not mean that the wishes or personal
preferences of an unlawful occupier are of any relevance in this enquiry. "23
51. In the present matter the magistrate’s court duly h ad regard to the personal
circumstance s of the minor child too, and correctly remarked that the child's
condition was due to the ongoing disputes between her parents. Allowance was
made for the fact that the child was being home -schooled, and that the move to
other accommodation should not unreasonably disr upt her. Sufficient time was
therefore allowed in the setting of the date to vacate for the minor child to be
emotionally prepared for a move to a new home environment.
52. The appellant stated that a housing kit and communal units in Delft were not
suitable option s for her and her children. Smith Eviction and Rental Claims: A
Practical Guide summarises the law in respect of homelessness as follows:
"In the matter of Johannesburg Housing Corporation (Pty) Ltd v Unlawful
Occupiers of the Newtown Urban Village Willis J dealt with the interpretation of
the word ‘homeless ’ and remarked that neither the Constitutional Court nor the
SCA has ever defined ‘homeless ’ nor does PIE define the word. Willis J defined
‘homeless ’ as:
‘Without any reasonable prospect, between the date of the court order
which it is proposed be made that the occupier is to vacate the property to
the date upon which the eviction order is to be effected (in the event that
the occupier does not vacate the property), of the occupier being able to
find alternative accommodation that is (a) of a comparable or better
standard to and (b) at a similar rental to and (c) within reasonable
proximity to that of the property from which the eviction is sought. ’
23 At para [44].
A person is therefore not automatically rendered ‘homeless ’ by an eviction order
or as a result of execution against immovable property, nor is the right to
adequate housing necessarily compromised in every such instance. The mere
fact that a debtor loses his home as a result of a sale in execution and/or an
eviction, does not necessarily mean that he or she is thereby deprived of their
right of access to adequate housing. Questions of employment and earning
capacity are relevant - debtors may be able to afford other adequate housing,
even if they have to rent other property. "24
53. In the circumstances of the present matter there was no reason to accept that the
appellant would be rendered homeless, given inter alia her income and the
income of those living with her. The magistrate’s court dealt fully with the
relevant facts.
The sixth ground of appeal : The magistrate “mistook his powers available to him and
deprived himself of the information and techniques necessary to fashion a just and
equitable outcome ”
54. It is, again, not clear what the basis of this ground of appeal is. The magistrate’s
judgment clearly sets out the facts taken into consideration together with the law
that informs the reasons for the order ultimately granted.
The seventh and eighth ground s of appeal : The magistrate erred in the exercise of his
discretion in finding that the appellant should be liable for the costs of the proceedings,
by ignoring the appellant's personal circumstances and the fact that she was
represented by Legal Aid , and
The magistrate erred in finding that it was just and equitable for the appellant to pay the
costs of the proceedings as a result of her refusal to vacate without th e first respondent
having to resort to formal eviction proceedings , and ignored the appellant's r ights as
envisaged in PIE and the Constitution of the Republic of South Africa , 1996
24 Op cit at pp 194 -196.
55. These two grounds of appeal relate to the costs order that was granted in favour
of the first respondent . The appellant was ordered to pay the costs of the
application on the party -and-party scale.
56. The magistrate had regard to various facts which informed the exercise of his
discretion on costs . These considerations were , amongst others, the the
appellant's refusal to move despite being offered financial ass istance to vacate ,
and th e various opportunities provided to the appellant to vacate the immovable
property without the need for the institution of an eviction application. The
appellant had simply refused to consider these options. It is clear from the
affidavits filed of record that t he appellant had been present at the sale in
execution of the property, and had approached the first respondent after the sale
to introduce herself and to tell him that she was aware of the fact that she would
have to vacate the property.25
57. The first respondent reminded the appellant on several occasions thereafter
about the need to vacate the house, and to make arrangements for her to start
paying rental given the extended period she remained in the property. He also
required access to the property for maintenance and renovations. There was no
response to these communications. During March 2023 and April 2023 the first
respondent caused formal notices to vacate to be served on the appellant, which
also went unanswered. By the time that the first respondent deposed to the
founding affidavit in the eviction application, in June 2023, the appellant had still
not communicated with him.
58. The matter was thereafter postponed on several occasions to enable the
appellant to obtain legal representation, and for the City of Cape Town to furnish
a housing report. The eviction application was finally determined only in April
2024. D uring all of that time the appellant had the use of the first respondent’s
property. She did not pay anything towards the rental or upkeep thereof .
25 It was common cause on the papers that the appellant was an unlawful occupier.
59. It is trite that the purpose of an award for costs is "to a successful litigant is to
indemnify him for th e expense to which he has been put through having been
unjustly compelled to initiate or defend litigation as the case may be ”.26 In the
absence of any statutory provision or other just and sufficient reason to the
contrary, a successful party is in law entitled as of right to costs.
60. The first respondent has not had the benefit of his immovable property since
January 2023. He is prejudiced by having had to pay more than R21 000.00 per
month in respect of th e property since transfer, without having had the use and
enjoyment thereof.
61. It appears, further, that the belated attempt at postpo ning the hearing of the
appeal was aimed at delaying the inevitable. Given the time lapse between the
grant of the Nedbank order and the hearing of this appeal, as well as the
circumstances in which the Nedbank order had been granted and the appellant’s
own acknowledgement of her position as unlawful occupier over many years, she
could not have been under any illusion as to the prospects of success of her
case.
Conclusion
62. The appellant has not raised any substantive point that would justify the setting
aside of the magistrate’s court’s the order .
63. In the premises, the appeal falls to be dismissed.
64. In light of the lapse of time since the grant of the eviction order in the ma gistrate’s
court, it is necessary to provide for a new timetable for the vacation of the
property by the appellant or, should she fail to vacate, for her eviction therefrom.
In my view a pe riod of two and a half months would be reasonable in the
circumstances.
26 Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa p. 951.
Costs
65. There is no reason why costs should not follow the result . Given the
circumstances of the matter, and i n the exercise of my discretion under Rule 67 A
I am of the view that the app ellant should pay the first respondent ’s costs of the
appeal on a party and party scale , with c ounsel’s fees taxed on Scale A.
Order
66. In the circumstances, I would recommend that the following order be granted:
66.1. The application for postponement of the appeal is dismissed, with costs,
including counsel’s fees taxed on Scale A.
66.2. The appeal is dismissed, with costs, including counsel’s fees taxed on
Scale A.
66.3. The appellant and all those occupying through he r (“the occupiers”) are
ordered to vacate the immovable property situated 2[...] T[...] Close (Erf
6[...]), Parklands, Western Cape , by no later than Monday, 28 April
2025.
66.4. Should the occupiers fail to vacate the property by the date set out in
parag raph 66.3, the Sheriff of this Court or the Sheriff of the
Magistrate’s Court or their deputies are authorized and directed to evict
the occupiers by Wednes day, 30 April 2025.
_______________ _______
VAN ZYL AJ
I agree , and it is so ordered.
_______ _________ ________
NUKU J
Appearances:
For the appellan t: Ms Seria , instructed by Daryn Thomas &
Associates
For the first responden t: Mr Abass , instructed by Parker Attorneys
No appearance for the second respondent