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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024-026737
In the matter between:
NG KERK BRACKENHURST AFTREEBEHUISING NWO APPLICANT
And
HEYNIKE JURIE BADENHORST FIRST RESPONDENT
CITY OF EKURHULENI METROPOLITAN MUNICIPALITY SECOND RESPONDENT
Headnote: Contract — interpretation — contextual approach — retirement housing
scheme — spouse occupying unit — eviction — PIE — just and equitable enquiry.
Summary: Eviction –retirement housing scheme – life-right agreement under Housing
Development Schemes for Retired Persons Act 65 of 1988 – clause providing that
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
13 March 2026 __________________________
DATE SIGNATURE
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occupation endures for lifetime of purchaser and spouse whose particulars appear in
agreement – purchaser later marrying respondent who resided in unit with knowledge
and acquiescence of scheme operator – contextual interpretation – formal recording of
spouse not decisive of continued right of occupation – respondent not an unlawful
occupier – eviction under PIE dismissed.
JUDGMENT
WINDELL J:
Introduction
[1] The applicant is a n on- profit company 1 that administers a retirement housing
development under the Housing Development Schemes for Retired Persons Act 65 of
1988 (‘the Housing Act’), in Brackenhurst, Alberton.
[2] This is an application for the eviction of the first respondent, Mr Badenhorst, from
Unit 7 Andante, situated within the scheme. The application is brought in terms of section
4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (‘PIE’). The first respondent is presently 78 years old.
[3] The application arises following the death of the first respondent’s wife, Ms Adriana
Catharina Botha (‘the deceased’) , who concluded an agreement with the applicant in
August 2010 in terms of which she acquired a housing interest in the unit. The housing
interest took the form of a contractual life right entitling the purchaser to occupy the unit
1 Incorporated in terms of section 21 of the Companies Act 61 of 1973.
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for the duration of her life and, where applicable, for the lifetime of her spouse as
contemplated in the agreement, subject to its terms and the rules of the scheme.
[4] At the time the agreement was concluded the deceased was divorced and no
spouse was recorded in the agreement. In March 2019 she married the first respondent.
Following the marriage the first respondent moved into the unit and resided there with the
deceased until her death on 4 September 2023.
[5] The first respondent has remained in occupation of the unit since the deceased’s
death. The applicant subsequently requested him to vacate the unit on the basis that he
had no right of continued occupation. When he refused to do so, the present eviction
proceedings were instituted.
[6] The applicant contends that the first respondent is in unlawful occupation of the
unit because his particulars do not appear in the agreement as the spouse of the
purchaser. On the applicant’s interpretation, the agreement permits continued occupation
after the purchaser’s death only by a spouse whose particulars appear in the agreement,
with the result that the right of occupation terminated upon the deceased’s death.
[7] The first respondent disputes that his occupation is unlawful. He contends that he
resided in the unit openly as the deceased’s spouse for several years prior to her death
with the knowledge and acceptance of the applicant. In these circumstances, he submits,
the applicant cannot rely on the absence of a formal amendment to the agreement
recording his particulars in order to deny him continued occupation.
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[8] The deceased also executed a will in August 2023 in which she purported to
bequeath her interest in the unit to the first respondent and thereafter to her son upon the
first respondent’s death. It is common cause that a housing interest in such a scheme is
a personal right and is not capable of transfer or inheritance. The provisions of the will
therefore do not determine the legal entitlement to occupy the unit but are relevant insofar
as they reflect the deceased’s intention regarding the first respondent ’s continued
occupation.
[9] Two principal issues arise for determination. The first concerns the proper
interpretation of the agreement and whether it excludes the first respondent from any right
of continued occupation. The second concerns whether, even if the first respondent does
not enjoy a contractual right of occupation, it would be just and equitable to grant an
eviction order in terms of PIE.
The contractual and statutory framework
[10] Housing interests created under the Housing Act arise and operate within a
statutory framework regulating occupation within retirement housing developments. The
Act recognises that such interests typically confer contractual rights of occupation for the
duration of the purchaser’s life.
[11] Section 7(1) of the Act provides that, once a housing interest has been transferred,
“no person other than a retired person or the spouse of a retired person may occupy the
land” to which the housing interest relates, unless the consent of the holders of housing
interests in the scheme is obtained. The provision reflects a legislative recognition that
occupation within such schemes ordinarily extends to the purchaser’s spouse.
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[12] Agreements concluded in respect of housing interests must therefore be
interpreted in the light of this statutory context. The rights and obligations arising under
such agreements do not exist in a purely private contractual sphere but are shaped by
the statutory regime governing retirement housing developments.
Interpretation of the agreement
[13] The agreement records that the purchaser acquires a right to live in and occupy
the unit for the duration of her life and, where applicable, for the lifetime of her spouse
whose particulars appear in the agreement. The applicant contends that this provisio n
must be applied strictly and that, because the first respondent’s particulars were never
formally inserted following the marriage, the right of occupation terminated upon the
deceased’s death.
[14] Interpretation is a unitary exercise in which the language used must be considered
in the light of its context and purpose. The clause requiring the spouse’s particulars to be
recorded cannot be construed in isolation from the circumstances in which the agreement
was implemented. 2
[15] It is common cause that the deceased married the first respondent during 2019
and that he thereafter resided with her in the unit as her spouse until her death. His
occupation was open, continuous and known to the applicant and the management of the
2 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18; University
of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC) paras 64 –69;
Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd 2022 (1) SA 100 (SCA) paras 46–50.
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scheme. No steps were taken during the deceased’s lifetime to object to his residence or
to insist upon formal amendment of the agreement.
[16] The clause relied upon by the applicant serves to define who is to be regarded as
the purchaser’s spouse for purposes of the agreement. It provides that, where the
purchaser was unmarried at the time of conclusion of the agreement, any reference to a
“spouse” shall mean a person as contemplated in section 1 of the Act whose particulars
are set out in the agreement. In context, the provision is directed at the identification of
the relevant spouse for purposes of administrative certainty within the scheme.
[17] The agreement further provides that the purchaser may cancel, but not amend, the
particulars recorded in respect of his or her spouse after commencement of the
agreement. This provision regulates the alteration of particulars where a spouse has
already been identified in the agreement. It does not expressly address the position where
the purchaser was unmarried at the time of contracting and subsequently marries, nor
does it stipulate that the benefit of occupation will be forfeited if the particulars of a later
spouse are not formally recorded.
[18] The applicant suggested that, upon the deceased’s remarriage, the existing
agreement was required to be terminated and replaced with a new agreement coupled
with payment of a further percentage in respect of the unit. No such requirement appears
from the terms of the agreement, nor was any provision in the governing documentation
of the scheme identified that supports this contention.
[19] To construe these provisions as imposing an absolute formal prerequisite for
continued occupation would attribute to them a rigidity not supported by their language or
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purpose. In circumstances where the existence and identity of the spouse were known to
and accepted by the applicant, the absence of a formal amendment recording those
particulars cannot, without more, be regarded as extinguishing the contractual benefit o f
continued occupation contemplated by the agreement.
[20] Even if the requirement that the spouse’s particulars be recorded were to be
regarded as giving rise to uncertainty where the purchaser subsequently marries, the
surrounding context supports the objective inference of a tacit term that the benefit of
occupation was not intended to depend solely on formal amendment of the agreement.
Retirement housing schemes are ordinarily structured on the premise that occupation
includes the purchaser’s spouse. Nothing in the language of the agreement, the statutory
framework, or the manner in which the agreement was implemented suggests that the
parties contemplated that the right of occupation would terminate automatically upon the
purchaser’s remarriage merely because the later spouse’s particulars were not formally
inserted.
[21] This inference accords with the objective approach to tacit terms in South African
law, which requires the court to determine, on the proved facts, whether the conduct of
the parties and the commercial context demonstrate a shared contractual premise
forming part of their agreement. 3
3 Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) 526D-F and
532C-D; an Aardt v Galway [2012] 2 All SA 78 (SCA).
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[22] On a contextual interpretation of the agreement, the absence of formal recording
of the first respondent’s particulars is therefore not decisive. The agreement cannot
properly be construed as rendering his continued occupation unlawful solely on that basis.
Evaluation under PIE
[23] In any event, even on a more restrictive interpretation of the agreement that would
render the first respondent’s continued occupation unlawful, the enquiry does not end
there. Section 4(7) of PIE requires a court to determine whether an eviction order wou ld
be just and equitable after considering all the relevant circumstances.
[24] Section 4 of PIE makes clear that eviction is not a mechanical consequence of
unlawful occupation. A court may grant an eviction order only if it is satisfied that such an
order would be just and equitable after considering all the relevant circumstances. The
enquiry requires a careful balancing of the interests of the property holder with those of
the occupier, bearing in mind the constitutional values of dignity and the need to prevent
unjustified loss of a home.4
[25] The personal circumstances of the first respondent are therefore an important
consideration. The first respondent is 78 years old and in poor health. He resides on a
limited income and has little capacity to secure alternative accommodation within the
retirement housing market. He lived in the unit as the deceased’s spouse for several years
prior to her death and the unit has become his home. His residence within the retirement
4 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 37.
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development arose not through opportunistic occupation but through his marital
relationship with the deceased and the life they shared within the scheme.
[26] On the other hand, the c ourt must also consider the prejudice alleged by the
applicant. The applicant contends that the continued occupation prevents the resale of
the housing interest and consequently delays the winding-up of the deceased estate. The
heirs of the deceased therefore have a financial interest in the expeditious resale of the
housing interest.
[27] That consideration is relevant. Continued occupation may delay the liquidation and
distribution of the estate and the payment of any amount that may ultimately become due
to the heirs.
[28] It is, however, notable that the present eviction proceedings were not instituted by
the executor of the deceased estate but by the applicant itself, which administers the
retirement housing scheme. The executor has not approached the court seeking the
eviction of the first respondent in order to facilitate the finalisation of the estate.
[29] The prejudice relied upon by the applicant is therefore largely financial and
administrative in nature. It must be weighed against the potential hardship that eviction
would impose on an elderly occupier whose residence arose directly from his marriage to
the deceased purchaser.
[30] The broader statutory context within which the occupation arose is also relevant.
The housing development forms part of a retirement housing scheme regulated by the
Housing Act. The Constitutional Court recently emphasised in Harris N.O. and Others v
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Herold Gie and Broadhead Inc 5 that the statutory framework governing such schemes
serves an important protective purpose directed at safeguarding elderly persons who
invest their resources in retirement housing developments and securing residential
stability in old age.
[31] Although that case concerned the protection of funds entrusted in the course of
such transactions, the Court’s articulation of the protective purpose of the statutory
scheme forms part of the context within which disputes concerning occupation within
retirement housing developments must be assessed.
[32] In circumstances where the first respondent lived in the unit openly as the
deceased’s spouse with the knowledge of the scheme, and where the deceased herself
clearly intended that he continue living there, eviction based solely on the absence of a
formal amendment to the agreement would, in my view, be a disproportionate response.
[33] In the circumstances, the applicant has not established that it would be just and
equitable to evict the first respondent from the unit. The continued occupation of the first
respondent arises from a long -standing marital residence within the retirement ho using
scheme and occurred with the knowledge of the applicant. Eviction would impose
significant hardship on an elderly and unwell occupier with limited means to secure
alternative accommodation. In these circumstances the drastic remedy of eviction is not
warranted.
5 Harris N.O. and Others v Herold Gie and Broadhead Inc and Others [2026] ZACC ___ (13 February
2026).
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Costs
[34] As to costs, the general rule is that costs follow the result. However, courts retain
a discretion to depart from that rule where the circumstances justify doing so. The
applicant cannot be faulted for having approached the court. The issues raised
concerning the proper interpretation of the agreement, the effect of the deceased’s death
on the first respondent’s continued occupation, and the interaction between the
contractual framework and the just -and-equitable enquiry under PIE were legitimate
issues requiring determination.
[35] In addition, the applicant acts in the administration of a retirement housing scheme
and was entitled to seek judicial guidance in circumstances where the continued
occupation of the unit affected the operation of the scheme and the resale of the housing
interest. In these circumstances and having regard to the age and personal
circumstances of the first respondent, I am satisfied that the fairest order is that each
party should pay its own costs.
[36] The following order is made:
1. The application for the eviction of the First Respondent from Unit 7 Andante is
dismissed.
2. There is no order as to costs.
________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
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Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 13 March 2026.
APPEARANCES
For the Applicant: S Kelly
Instructed by: Dreyer Engelbrecht Attorneys INC.
For the First Respondent: WR Ewart
Instructed by: Ewart Attorneys
Date of hearing: 14 October 2025
Additional Heads of Argument filed: 27 February 2026
Date of judgment: 13 March 2026