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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No. A2022-048458
In the matter between:
ZAIBONEZA AHMAD First Appellant
OCCUPIERS OF ERF 5[…] , RHODESFIELD Second Appellants
and
AMAR MAZARI First Respondent
EKURHULENI MUNICIPALITY Second Respondent
CORAM: MIA J, WILSON J and SMIT AJ
JUDGMENT
WILSON J (with whom MIA J and SMIT AJ agree):
1 The appellants reside at 7 […] M[…] Street, R [… ] (“the property”). They
appeal to us, with the leave of the Supreme Court of Appeal, against an
order for their eviction granted by the court below on 4 September 2024.
2 On 14 July 2015, the first appellant, Ms. Ahmad, agreed to purchase the
property from the first respondent, Mr. Mazari. The purchase price, some
R950 000, was payable in 51 instalments, the final instalment being due on
or about 7 September 2019. It is not clear on the papers exactly when and
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED.
SIGNATURE DATE: 17 March 2026
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how these instalments were paid, but, in a conveyancer’s letter dated 22
May 2019, it is recorded that just R60 833 of the purchase price remained
outstanding.
3 Mr. Mazari purports to have cancelled the sale agreement on the basis that
Ms. Ahmad had, in November 2018, ceased payment of the occupational
rent due under the agreement. Mr. Mazari’s notice of cancellation is dated 19
March 2019, which is when he says it was served. Ms. Ahmad says that the
notice was not in fact delivered until 2021, after Ms. Ahmad had launched an
application to compel the transfer of the property into her name. That
application failed on the narrow basis that it could not be established, on the
undisputed facts, that Ms. Ahmad had in fact paid the full purchase price
under the agreement (see Ahmad v Mazari [2022] ZAGPJHC 812 (14
October 2022)).
4 It is on the basis of his cancellation of the sale agreement that Mr. Mazari
sought the appellants’ eviction in the court below. Ms. Ahmad now accepts
that she withheld both occupational rental and the balance of the purchase
price, but says that she did so only after Mr. Mazari refused to adhere to her
demand to transfer the property into her name. In paragraph 3.6 of her
answering affidavit filed in the court below, Ms. Ahmad tendered to pay the
balance of the purchase price to Mr. Mazari against transfer of the property.
She adduced evidence that the amount she says is due to Mr. Mazari has
been paid into her attorney’s trust account for onward transmission to Mr.
Mazari in return for transfer of the property to her.
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5 In granting Mr. Mazari his eviction order, the court below reasoned that Mr.
Mazari had validly cancelled the sale agreement, because the full purchase
price had not been paid, and because the agreement did not allow Ms.
Ahmad to withhold occupational rent in the manner that she had. The
agreement in fact required such rent to be paid directly into Mr. Mazari’s
bank account. Having satisfied itself that the sale agreement had been
validly cancelled, the court below issued an eviction order without further
ado.
6 In taking that step, the court below was mistaken. The application for the
appellants’ eviction was instituted, as it had to be, under section 4 of the
Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19
of 1998 (“PIE”). Under that statute, the eviction of unlawful occupiers, which
is what the court below must have accepted the appellants were, is only
permissible if it is “just and equitable”. It follows that, once it had concluded
that the sale agreement had been validly cancelled, the court was under a
further duty to satisfy itself that an order for the appellants’ eviction was just
and equitable in all the circumstances . In other words, the unlawfulness of
the appellants’ occupation of the property was the beginning, rather than the
end, of the statutory inquiry ( Occupiers, Shulana Court, 11 Hendon Road,
Yeoville, Johannesburg v Steele [2010] 4 All SA 54 (SCA) , paragraph 15,
read with Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217
(CC), paragraph 25 and Madulammoho Housing Association NPC v
Nephawe [2023] ZAGPJHC 7 (10 January 2023), paragraph 11).
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7 Although t he case law developed under PIE has tended to focus on the
injustice of homelessness , there are potentially a wide variety of reasons
why an eviction may not be just and equitable. In Sarrahwitz v Martiz N.O.
2015 (4) SA 491 (CC) at paragraphs 95 and 96, a minority of the
Constitutional Court held that it could never be just and equitable to evict a
purchaser of a property in circumstances where the full purchase price had
been paid, notwithstanding the apparent cancellation of the sale agreement.
The majority of the Constitutional Court did not address that conclusion, but
given the facts of that case, it is impossible to read the majority decision as
inconsistent with it.
8 This case is, of course, different, but it is not that different. Although, on the
papers, Ms. Ahmad had not paid the full purchase price at the time the sale
agreement was cancelled, Ms. Ahmad tenders the tiny fraction of the
purchase price that is outstanding, provided that the property is transferred
into her name. Moreover, under section 27 of the Alienation of Land Act 68
of 1981, Ms. Ahmad was perfectly entitled, once she had paid at least half
the purchase price, to demand transfer of the property against the
registration of a mortgage over the property for the outstanding balance due
under the agreement . On the evidence, even if we were to accept that the
agreement was cancelled on the date inscribed on the notice of cancellation,
substantially more than half of the purchase price must have been paid at
the time Mr. Mazari said he cancelled the agreement.
9 In the court below, the onus was on Mr. Mazari to establish that the
appellants’ eviction was just and equitable (City of Johannesburg v Changing
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Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA), paragraph 34) . Mr. Mazari’s
papers f all substantially short of discharging that onus. Moreover, even on
the facts Mr. Mazari accepts, we cannot conclude that Ms. Ahmad’s eviction
would be just and equitable. If the order of the court below is left to stand,
Ms. Ahmad will be left with neither the home she purchased nor the money
she purchased it with. That would be unjust and inequitable.
10 It follows that the order of the court below cannot stand. Although it is not
clear to us what exactly remains due to Mr. Ma zari under the sale
agreement, that question can be addressed in separate proceedings in
which Mr. Ma zari’s right to payment against transfer can be explored. We
were informed during argument that those proceedings are already
underway. The only question before us is whether the court below should
have evicted Ms. Ahmad. Plainly, it should not have done so.
11 Accordingly –
11.1 The appeal is upheld, with costs, including the costs of counsel,
which may be taxed on scale “B”.
11.2 The order of the court below is set aside, and is replaced with an
order dismissing the application with costs, including the costs of
counsel, which may be taxed on scale “B”.
S D J WILSON
Judge of the High Court
This judgment was prepared by Judge Wilson, with whom Judges Mia and Smit
agree. It is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on
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Caselines, and by publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed to be 17 March 2026.
HEARD ON: 16 March 2026
DECIDED ON: 17 March 2026
For the Appellants: D de Kock
Instructed by Joubert Scholtz Inc
For the Respondent: S Silamulela
Instructed by Shumani Silamulela Attorneys