IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A262 /2024
(I) REPORTAB LE:
(2) OF INTERES T TO OTHER JUDGE S:
(3) REVISED.
DATE
In the matter between:
SUZAN NTUSENI
and
ADRIANA CORSA N .O.
PETRUS ZEELIE N .O .
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
JUDGMENT
MBONGWEJ:
Appellant
First Respondent
Second Respondent
Th ird Respondent
2
INTRODUCTION
[1] This is an appeal against the judgment and eviction order issued by the
Magistrate Court, Pretoria Central, purportedly in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the 'PIE
Act'). The appellant is an erstwhile employee of and lived on the property owned
by her employers since 2012. The appellant was found to be in unlawful
occupation of that property, notwithstanding the failure by the administrator of
the estate of the deceased registered owner to prove, at the least, that she had
terminated a belatedly admitted verbal agreement she had concluded with the
appellant in terms of which the latter was given the right to remain in occupation
of the house subsequent to the death of the owner.
THE PARTIES
[2] The appellant is an adult female Zimbabwean citizen who had for a number of
years been employed by an elderly couple, Mr and Mrs Orsingher. Owing to the
ill-health of Mr Orsingher, the registered owner of the residential property, it was
agreed that the appellant would live on the property so as to look after Mr
Orsingher - a situation that obtained from 2012.
[3] Mrs Orsingher herself did not enjoy a healthy life and had a mental infirmity of
age resulting in her being committed to live in a special facility/ home to receive
specialised treatment.
[4] Mr Orsingher passed on during 2018. He had appointed his wife as the executrix
of his estate.
3
[5] The first respondent was appointed the Administrator to manage the affairs of
Mrs Orsingher. Her appointment intrinsically involved her in the administration
and winding up of the estate of the deceased Mr Orsingher. As she does not live
in South Africa, the first respondent appointed the second respondent as a
trustee of the estate of Mr Orsingher to assist in its winding up.
[6] The first respondent had been aware that the appellant had been residing on the
property before and after the passing of Mr Orsingher. According to the appellant,
she has continued to reside on and ostensibly looked after the deceased's
property consequent to the conclusion of a verbal agreement between her and
the first respondent. The oral agreement was never mentioned in the first
respondent's founding affidavit. In fact, the first respondent denied not only that
she had ever concluded the alleged oral agreement with the appellant, but also
that Mr Orsingher had an agreement with the appellant for her to reside on the
property.
[7] The first respondent, however, subsequently admitted the oral agreement with
the appellant in her replying affidavit.
[8] It further appeared in the first respondent's papers that the appellant had at some
stage made an offer to purchase the property for R300 000,00 (three hundred
thousand Rand), - an allegation the appellant denied. The first respondent also
averred that the reason for the eviction of the appellant was for the property to
be sold for the proceeds of the sale to be used to cater for the needs and
wellbeing of Mrs Orsingher at the special home .
GROUNDS FOR THE APPEAL
IRREGULAR PROCEEDINGS
4
[9] The eviction order of the appellant was made on 16 July 2024 by the District
Court Magistrate amid controversies in the procedure followed leading to the
eventual granting of the order. The procedural irregularities concerned form one
of the grounds for this appeal against the judgment and eviction order.
[1 O] In short, the irregularities occurred after the initial trial Magistrate had found at
the hearing that there had been no comp liance with the provisions of the PIE Act
with regard to the service of the notice in terms of section 4(2) of the Act on the
appellant. In an attempt to cure the defect, the parties were improperly and
directed to enter into an agreement in terms of which service of the section 4(2)
notice wou ld be 'normalised' and that parties could file a new answering and
replying affidavits and such agreement was purportedly made an order of the
court.
NON-COMPLIANCE WITH RULE 51
[11] When granting the. eviction order on 16 July 2024, the court a quo
simultaneously mero motu undertook to hand down a full judgment with reasons
for the order on 12 August 2024. The court's undertaking, according to the
Appellant, rendered it unnecessary to request written reasons for the order as
provided for in section 51 of the Magistrate's Court Act 32 of 1944.
[12] The magistrate failed to deliver the written judgment on the promised date of
12 August 2024. The judgment dated 13 September 2024 was only made
5
available to the appellant on 16 September 2024 - the date from which the
appellant calculated the period of 20 days within which to file a notice of appeal
in terms of section 51. The respondents rely on this confusion to challenge the
validity of this appeal and arguing that the appeal had lapsed and that there has
been no application for condonation. In my view, the fact that the magistrate did
provide the written reasons, albeit late, confirms her undertaking to do so. It is
the prescript of the Magistrate's Court Act and the rules that a notice to appeal
be filed thereafter within twenty days of receipt of written reasons from the
magistrate who presided over the matter. The respondents' contention is
accordingly rejected.
[13] The main ground raised by the appellant for the appeal is that she is not in
unlawful occupation of the property. She relies poignantly on an agreement she
alleges was concluded when she was requested to reside on the property so
as to look after Mr Orsingher when he became sick in 2012. The appellant also
relies on the similar oral agreement entered into by and between her and the
first respondent subsequent the death of Mr Orsingher. The latter agreement
being for the appellant to look after the property. Neither agreement has ever
been terminated according to the appellant.
NOTICE TO VACATE/ COMPLIANCE WITH THE PIE ACT
[14] The first respondent has annexed and referred the court to correspondence her
attorneys had, on her instructions, addressed to the appellant demanding that
she vacates the property, failing which an eviction order will be sought against
her.
6
[15] The demands and accompanying threats of eviction referred to above do not. in
terms of the PIE Act, constitute a valid termination of the agreement for the
appellant to be in occupation of the deceased's property. A valid termination of
an agreement to vacate a property is one that affords the appellant not only a
reasonable time to vacate of the property, but also provides sound reasons for
the termination of the agreement. The applicable principle was aptly laid down in
Davidan v Polovin N. 0. and others1 in the following words:
"[12) The starting point is to establish whether the appellant is an unlawful
occupier under PIE. The key question is whether the appellant enjoyed
a right of occupation? PIE applies 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."
The court continued at para [23] to say the following;
"[23) The entitlement of the appellant to reside on the property stems from
agreement. Once that agreement is terminated her contractual right
to reside terminates ..... There is no suggestion that this oral
agreement was terminated or pleaded. An owner must legally
terminate a lease agreement or, as in this case, terminate the oral
agreement between the parties. The underlying basis for the
termination must be for example the expiration of lease or a material
breach of the terms of the agreement."
1 (167 /2020) (2021] ZASCA 109 (5 August 2021)
7
[16] There is no proof that the agreement the appellant had with the deceased and
subsequently with the first respondent, respectively, was ever terminated in line
with the principle in the judgment cited above. The sought eviction of the
appellant on the nature of the notices to vacate addressed to her falls foul of the
provisions of the PIE Act on which the respondents purportedly rely.
[17] It is apparent from the papers that the appellant is a single mother of two children
who live with her. In this regard the appellant has alleged that despite this fact
having been brought to the attention of the magistrate, the latter wrote in the
judgment that there was no information provided regarding the circumstances of
the appellant. The appellant submits that the magistrate failed to comply with the
provisions of the PIE Act and laid down principles of the law in this regard.
FURTHER DISPUTED FACTS
[18] Furthermore, the first respondent has alleged to have made an offer for payment
of R100 ,000.00 in full and final settlement of the appellant's claim in exchange
for the latter's vacation of the property. The offer was rejected by the appellant
as being insufficient. This suggest that th~re may be a claim the appellant is
entitled to and is acknowledged by the first respondent. The only issue in that
regard would have been in respect of quantum. The situation points to a dispute
that requires evidence to be adduced in a trial for the determination of the
quantum . Furthermore, in this regard, in her judgment, the magistrate appears to
have accepted the averments by the first respondent that the appellant had made
an offer to purchase the property for R300 000,00, notwithstanding the denial by
the appellant and the absence of proof by the first respondent. These
8
determinations wo uld not be possible to make in motion proceedings. This matter
w as plainly not capable of finalisation in light of all the issues pointed out.
ANAL YSIS AND CONCLUSION
[19] W ith the irregularities and other shortcomings pointed out in this judgment, this
m atter was incapable of finalisation, let alone in motion proceedings. The court
a quo, appears to have been unduly hasty to dispose of the matter at any cost. I
propose in these circumstances that the appeal be upheld with costs.
ORDER
[20] In line with the above conclusion, the follow ing order is made:
1. The appeal is upheld.
2. The orders of the court a quo are set aside.
3. The first respondent in this appeal, is ordered to pay the costs.
I agree
JU DGE OF THE H IGH C OURT
GAUTENG D IVISION , PRETORIA
JUDGE OF THE HIGH COURT
GAUTEN G D IVISION, PRETORIA
APPEARANCES
For the Appellant:
Instructed by:
For the 1st and 2nd Respondent:
Instructed by:
9
Adv E. Seleka
Mahlakoane Attorneys
Adv A. Kotze
Wynand du Plessis and Partners Inc.