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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case no: D12592/2022
In the matter between:

SAROJANIE GOVINDAN N.O. FIRST APPLICANT
SAROJANIE GOVINDAN SECOND APPLICANT

and

THAMANATHRAN GOVINDAN FIRST RESPONDENT
ROMILA GOVINDAN SECOND RESPONDENT


Coram: MOSSOP J
Heard: 19 January 2026
Delivered: 19 January 2026


ORDER


The following order is granted:
1. The first and second respondents, and all other persons claiming a right of
occupation through the respondents, shall, by 31 July 2026, vacate the immovable
property described as the ground floor unit at 1[...] S[...] P[...] Drive, S[...] P[...] ,
Phoenix.

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2. During the potential period of occupation terminating on 31 July 2026, the
respondents shall continue to pay the costs of all utilities consumed by them arising
out of their occupation of the immovable property during that period of occupation.
3. The second applicant shall pay the costs of relocating the respondents from
the immovable property mentioned in paragraph 1 to their new place of
accommodation, provided that the new place of accommodation is situated within the
greater Durban area.
4. In the event of the first and second respondents failing or refusing to comply
with paragraph 1 of this order, the sheriff of this court be and is hereby authorised
and empowered to forthwith eject them, and any other persons claiming a right of
occupation of the immovable property, from the said immovable property.
5. Each party is directed to pay their own costs.


JUDGMENT


MOSSOP J:

Introduction
[1] This is an ex tempore judgment.

[2] The applicants seek the ejectment of the two respondents from certain
immovable property that they presently occupy located at 1[...] S[...] P[...] Drive,
Ground Floor unit, S[...] P[...] , Phoenix , a suburb of Durban, KwaZulu -Natal (the
immovable property) . The immovable property is registered in the names of the
deceased and the second applicant.

The parties
[3] The parties to this application are related to each other by marriage. The
second applicant was married to the late Mr Thamanthran Govindan (the deceased),
who passed away on 5 August 2021. The first applicant is the second applicant cited
in her representative capacity as the executrix of her late husband’s estate. The first
and second respondents are the parents of the deceased and are no longer in the

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youth of their respective lives: the deceased’s father, the first respondent, is aged 79
and his mother, the second respondent, is aged 72.


The applicants’ version
[4] The second applicant admits that in April 2021 , she and the deceased
agreed that the respondents could occupy the immovable property provided that they
paid the costs of the utilities consumed by them as a consequence of that
occupation. The invitation to occupy the immovable property was taken up by the
respondents. Thus, it is submitted that the respondents are monthly tenants and are
obliged to vacate the immovable property on the giving of one month’s notice. The
respondents, even on the applicants’ own version, have diligently made all payments
for the utilities consumed by them through out their period of occupation of the
immovable property.

[5] However, since the death of the deceased, the second applicant has
allegedly found herself in financial straits due to the loss of the deceased’s salary
since his de ath. To ease the financial pressure that she is allegedly currently
experiencing, the second applicant has resolved that it is necessary for the
immovable property to be sold . She accordingly gave notice to the respondents to
vacate the immovable property twice: first on 21 January 202 2 and the n on 9
October 2022. Neither of the notices were effective and the respondents remain in
occupation of the immovable property against the applicants’ wishes.

[6] Notwithstanding the unwillingness of the respondents to vacate the
immovable property, the second respondent has marketed the immovable property
as being for sale and claims that she previously succeeded in attracting a purchaser
for it but, because the respondents obdurately refuse d to vacate the immovable
property, the sale fell through.

[7] The second applicant states that the respondents have sufficient resources
available to them to obtain alternative accommodation and , if that is not the case ,

available to them to obtain alternative accommodation and , if that is not the case ,
that they have two adult daughters who will be able to assist them with alternative
housing. The second respondent explains that she attempted to have the

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respondents relocated to a retirement centre, but that her efforts in this regard were
in vain because the respondents simply refused to co-operate with her and declined
to complete the prescribed admission form.


The Municipal report
[8] Contained within the court file is a report from the eThekwini Municipality
(the Municipality) prepared in terms of s 4(7) of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). It reveals that the
respondents have a combined monthly income of R5 200 and, significantly, it state s
that the respondents informed the author of the report, a senior manager in the
Municipality’s Human Settlement Department, that:
‘… their daughter is willing to house them, should the court grant the Eviction Order.’

[9] The author of the report goes on to state that whilst the Municipality has a
housing backlog of over 500 000 people waiting for accommodation, the Municipality
has offered to assist the respondents to construct an informal dwelling by giving
them a site upon which to construct the dwelling and the building material with which
to do so. The actual erection of the informal dwelling would, however, have to be
performed by the respondents themselves and the site allocated to them might not
be near where they presently reside. The site and building material would be made
available within six weeks of them accepting the Municipality’s offer.

The marital regime of the deceased and the second applicant
[10] To the extent that it may be relevant, it is necessary to briefly clarify the
marital regime of the second applicant and the deceased. Attached to the founding
affidavit is a copy of the title deed relating to the immovable property. It records that
the deceased and the second applicant were married to each other in community of
property.

[11] That recordal of their marital regime is clearly incorrect . Two further
documents establish unquestionably that the deceased and the second applicant

documents establish unquestionably that the deceased and the second applicant
were married out of community of property . The first document is entirely dispositive
of the issue , because it is a copy of their registered antenuptial contract , dated 7

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November 2002 . The second document , which has less persuasive power but
nonetheless carries some weight, is the last will and testament of the deceased ,
which also describes the marriage between the deceased and the second applicant
as being out of community of property. The entry on the title deed is, therefore,
incorrect.

The deceased’s will
[12] This document is an attachment to the founding affidavit, and it records that
what was referred to by the applicant in the founding affidavit as ‘the deceased’s will’
is, in fact, the joint will of herself and the deceased. It provides that upon either of the
deceased or the second applicant dying, the survivor, provided he or she outlived the
first dying by a period of 10 days, would become the sole heir or heiress, as the case
may be, of the estate of the first dying.

[13] The condition attached to the joint will has clearly been met and the second
applicant is thus her late husband’s sole heir. Upon the winding up of the deceased’s
estate she will therefore become the sole owner of the immovable property. While
she formally holds the position of executrix, the first applicant has full authority to
deal with assets that form part of his estate.1

The respondents’ version
[14] The respondents take the point in limine that the deceased’s last will and
testament ought not to have been accepted by the Master of the High Court (the
Master) because each page of the copy of the document before the court does not
appear to bear the initials of the two witnesses to the execution of the will. Thus,
because of this alleged irregularity in executing the deceased’s will, so the argument
goes, the appointment of the first applicant is both irregular and invalid.

[15] I need not dwell on this point at any great length. Firstly, what is before the
court is a copy and I cannot be sure that it is a true copy. The version presented to
this court may, therefore, be incomplete. Secondly, it is not in dispute that the Master

this court may, therefore, be incomplete. Secondly, it is not in dispute that the Master
has accepted the joint will as the deceased’s valid last instruction as to what is to

1 MCM (obo P, R and N.M) v Pedzisai NO and Others ZAFSHC 355 para 7.

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become of his worldly assets and has formally appointed the second respondent as
the executor of the deceased’s estate.2 Until either, or both, of these decisions of the
Master are set aside, the second respondent retains her position and authority as the
duly appointed executor of the deceased’s estate. No formal application has been
brought, whether as a counter application to this application or as an independent
application, to disturb either of those decisions and I must therefore proceed on the
basis that both decisions remain valid.3

[16] The respondents go on to explain that before moving to the immovable
property they resided at their niece’s premises but were persuaded by their son, the
deceased, to move to the immovable property . They state that at the time that the
invitation to move to the immovable property was extended to them , they were
content with their living arrangements. However, their son insisted that they uproot
themselves and take up residence at the immovable property . They eventually
relented and agreed to the request . The deceased w as, according to the
respondents, a successful architect. It would seem that t he respondents reluctantly
moved their home to the immovable property approximately two years ago but,
unfortunately, approximately four months after doing so, the deceased passed away.

[17] No real defence of any substance is otherwise disclosed by the respondents
save for a point taken by them relating to the bona fides of the second respondent,
which I shall deal with later.

Ownership of property
[18] The o wnership of immovable property brings with it certain rights and is
definitively established with reference to the title deed pertaining to the immovable
property in question.4 The title deed in this instance , which is also before the court,
reveals that the immovable property is, indeed, registered in the name of the
deceased and the second applicant . As executrix of the deceased’s estate , the first

deceased and the second applicant . As executrix of the deceased’s estate , the first

2 A copy of the letters of executorship is also attached to the founding affidavit.
3 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA); MEC for
Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3)
SA 481 (CC).
4 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) page 82; see also Bowley
Steels (Pty) Ltd v 10 Sterling Road (Pty) Ltd and Another [2017] ZAGPJHC 196.

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applicant has the ability and power to deal with the deceased’s half share of the
immovable property.

[19] In Chetty v Naidoo,5 the court, in dealing with the topic of ownership of things
held that:
‘… one of its incidents is the right of exclusive possession of the res, with the necessary
corollary that the owner may claim his property wherever found, from whomsoever holding it.
It is inherent in the nature of ownership that possession of the res should normally be with
the owner, and it follows that no other person may withhold it from the owner unless he is
vested with some right enforceable against the owner (e.g., a right of retention or a
contractual right).’

[20] Thus, the owner of an immovable property may, subject to the terms of any
agreement regulating its occupation, seek an order that occupants who no longer
occupy with the owner’s consent be ejected from the immovable property. Given that
the second respondent is already a half owner of the immovable property and that
she is the executrix of the deceased’s estate and the sole heir of the estate of the
deceased, I must conclude that she has legal standing to seek the eviction of the
respondents.

[21] In determining whether ejectment should be ordered, there are two inquiries
that must be conducted by the court.

The two inquiries
[22] The two inquiries have their origin in the previously mentioned s 4(7) of the
PIE Act. That subsection provides that:
‘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 . . . 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 needs of the elderly, children, disabled persons and
households headed by women.’

5 Chetty v Naidoo 1974 (3) SA 13 (A).

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[23] Keeping the provisions of s 4(7) of the PIE Act in mind, t he correct approach
to determining applications brought in terms of this section of th at Act was set out by
Wallis JA in City of Johannesburg v Changing Tides 74 (Pty) Ltd and others ,6 where
the learned judge held that:
‘A court hearing an application for eviction at the instance of a private person or body, owing
no obligations to provide housing or achieve a gradual realisation of the right of access to
housing in terms of s 26(1) of the Constitution, is faced with two separate enquiries. First it
must decide whether it is just and equitable to grant an eviction order having regard to all
relevant factors. Under s 4(7) those factors include the availability of alternative land or
accommodation. The weight to be attached to that factor must be assessed in the light of the
immovable property owner’s protected rights under s 25 of the Constitution, and on the
footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in
duration. Once the court decides that there is no defence to the claim for eviction and that it
would be just and equitable to grant an eviction order, it is obliged to grant the order. Before
doing so, however, it must consider what justice and equity demand in relation to the date of
implementation of that order, and it must consider what conditions must be attached to that
order. In that second enquiry it must consider the impact of an eviction order on the
occupiers and whether they may be rendered homeless thereby or need emergency
assistance to relocate elsewhere. The order that it grants as a result of these two discrete
enquiries is a single order. Accordingly, it cannot be granted until both enquiries had been
undertaken and the conclusion reached that the grant of an eviction order, effective from a
specified date, is just and equitable. Nor can the enquiry be concluded until the court is

specified date, is just and equitable. Nor can the enquiry be concluded until the court is
satisfied that it is in possession of all the information necessary to make both findings based
on justice and equity.’

[24] In Ndlovu v Ngcobo; Bekker and another v Jika ,7 the Supreme Court of
Appeal, made the following observation:
‘Unless the occupier opposes and discloses circumstances relevant to the eviction order, the
owner, in principle, will be entitled to an order for eviction. Relevant circumstances are nearly
without fail facts within the exclusive knowledge of the occupier and it cannot be expected of
an owner to negative in advance facts not known to him and not in issue between the
parties.’


6 City of Johannesburg v Changing Tides 74 (Pty) Ltd and others 2012 (6) SA 294 (SCA) para 25.
7 Ndlovu v Ngcobo; Bekker and another v Jika 2003 (1) SA 113 (SCA) para 19.

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The first inquiry
[25] This relates to whether an eviction order should issue.

[26] I have already concluded that the applicants are entitled to determine who
occupies the immovable property. The oral invitation in terms of which the
respondents were permitted to take up residence at the immovable property is not
alleged by them to have been an agreement in perpetuity nor were its terms defined
and agreed upon . It therefore seems to me that t he respondents ’ entitlement to
occupy the immovable property was dependent entirely upon the largesse of the
second applicant and the deceased , and, therefore, could be terminated by them at
the moment of their choosing.

[27] Largesse, defined as being the virtue of generosity or liberality or
munificence,8 is a human attribute that cannot be compelled to exist. It either exists
naturally in the character of a human being, or it does not. While the second
applicant may have demonstrated a generosity of spirit that permitted the
respondents to occupy the immovable property while her husband was still alive ,
now that he has passed on, it appears that her liberality of spirit has also left her.

[28] The second respondent therefore cannot be compelled to be kind and
generous towards the respondents . Her change of heart towards the respondents ’
occupation of the immovable property is, however, a change that brings no credit to
her. Indeed, it tends to suggest that she is capable of being construed as being
mean spirited, for the respondents , in losing their son and benefactor, have suffered
a loss as big as, if not greater, than the loss that she has suffered. It is a sad reality
that elderly members of society who have limited means available to them are often
shifted around by those related to them as if they were insignificant pawns in a game
of chess. It is even more unfortunate that such elderly members of a family are often
sacrificed by their clansmen, as pawns in a game of chess may be. Elderly members

sacrificed by their clansmen, as pawns in a game of chess may be. Elderly members
of society are not inanimate objects that can simply be discarded and moved away
out of sight when desired : they are living, breathing persons with feelings and

8 Oxford Online Dictionary: https://www.oed.com/dictionary/largesse_n?tl=true.

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expectations who must be treated compassionately and who must be afforded the
dignity to which they are entitled.

[29] I mentioned earlier a point taken by the respondents relating to the second
applicant’s bona fides in advancing her reasons why she requires the respondents to
vacate the immovable property. It appears to me that the respondents have correctly
pointed out that the second applicant has not been entirely candid about the extent
of her income and her financial standing , for she neglected to inform the court that
she, in fact, owns two other units in the same building in which the immovable
property is located. S he also derives an undisclosed income from the occupa nts of
these two units. While she has indicated that she has met hard times following the
loss of the deceased, she has made no attempt to disclose the extent of her income
in her founding affidavit and makes no attempt to address the respondents’
allegations regarding her income in her replying affidavit.

[30] That having been said, the applicant s are in law entitled to terminate the
respondents’ occupation of the immovable property . The respondents have
established no legal entitlement to remain in occupation against the applicants ’
wishes and I must therefore conclude, not without a great degree of sympathy for
them in their plight, that the respondents must vacate the immovable property as
demanded.

The second inquiry
[31] This relates to whether any conditions should be attached to the order to
vacate the immovable property that must issue . In my view, such conditions should
be imposed.

[32] Given their respective ages, previously mentioned, it is likely that the
respondents may not have the ability to find alternative accommodation as swiftly as
they might have done had they been of younger years. As one gets older, one may
still be capable of doing the same things that were done when younger, but it may

still be capable of doing the same things that were done when younger, but it may
take a little longer to do so. I accordingly intend giving them a generous amount of
time to find another place to stay.

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[33] In doing so, I do not lose sight of the Municipality’s report that indicates that
their daughter will take them in. I am , consequently, satisfied that they will not be
rendered homeless. In the event that their daughter has a change of heart, I am also
hopeful that the accommodation that they previously enjoyed at their niece’s home
may yet be available to them again. The time that I intend giving them will allow them
to consider all their available options in an unhurried and, hopefully, stress reduced
manner. They may, however, choose to move earlier if that suits them. I must ,
however, for the avoidance of any doubt, order that while the respondents reflect on
the best option available to them, they continue to pay the costs of the utilities
consumed by them arising from their occupation of the immovable property.

[34] In addition, the respondents moved to the immovable property at the request
of their late son and the second respondent. They are being made to vacate by a
decision of the applicant s. I have a strong suspicion that their son would not have
approved of the eviction, and I further suspect that he would not have intended them
to pay their own costs of relocating to the new accommodation that they will be
required to take up. I accordingly intend ordering that the second applicant pay those
relocation costs, not confined to the amount of R10 000 offered by Mr Morgan, who
appears for the applicants, provided that the new accommodation found by the
respondents is within the greater Durban area.

Costs
[35] I have a discretion when it comes to the issue of costs. Given the particular
facts of this matter , and the concession by Mr Morgan that he does not seek costs
against the respondents, it would be in the interests of justice if I ordered that each
party paid their own costs.

The order
[36] I accordingly grant the following order:
1. The first and second respondents, and all other persons claiming a right of

1. The first and second respondents, and all other persons claiming a right of
occupation through the respondents, shall, by 31 July 2026 , vacate the immovable
property described as the ground floor unit at 1[...] S[...] P[...] Drive, S[...] P[...] ,
Phoenix.

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2. During the potential period of occupation terminating on 31 July 2026 , the
respondents shall continue to pay the costs of all utilities consumed by them arising
out of their occupation of the immovable property during that period of occupation.
3. The second applicant shall pay the costs of relocating the respondents from
the immovable property mentioned in paragraph 1 to their new place of
accommodation, provided that the new place of accommodation is situated within the
greater Durban area.
4. In the event of the first and second respondents failing or refusing to comply
with paragraph 1 of this order, the sheriff of this court be and is hereby authorised
and empowered to forthwith eject the m, and any other persons claiming a right of
occupation of the immovable property, from the said immovable property.
5. Each party is directed to pay their own costs.




_____________________________

MOSSOP J

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APPEARANCES


Counsel for the applicants: Mr S Morgan

Instructed by: Ronica Naidoo and Associates
31 Parry Road
Durban

Counsel for the respondents: Mr O W Mkhize

Instructed by: Legal Aid South Africa
Durban Local Office
The Marine Building
Ground Floor
22 Dorothy Nyembe Street
Durban