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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOYANDOU
CASE NO. 483/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 30 March 2026
SIGNATURE:
In the matter between:
A[...] A[...] R[...] APPLICANT
and
N[...] P[...] R[...] FIRST RESPONDENT
N[...] C[...] R[...] SECOND RESPONDENT
JUDGMENT
Heard on: 06 November 2025
Delivered: this judgment was handed down electronically by circulation to the
parties' legal representatives by email and release on SAFLII. The date and time for
hand-down is deemed to be at 10:00 on 30 March 2026.
SEMENYA DJP
[1] This is an application for the eviction of the two respondents from the
immovable property known as Erf 3[...] Thohoyandou Block J (the property) within
ten days of the granting of the order. The property is currently registered with the
Deeds Office in the names of the applicant. The application is opposed by the first
respondent only.
The background facts:
[2] The applicant is the biological mother of the second respondent. The first and
second respondents were married to each other in community of property. The
marriage was dissolved by an order of this Court dated 29 January 2019. The decree
of divorce incorporated a settlement agreement entered into by the respondents. The
respondents had agr eed in the settlement agreement that they do not own
immovable property.
[3] The respondents and their children occupied the property with the applicant's
consent during the subsistence of their marriage. The second respondents vacated
the property in 201 6, before their divorce, leaving the first respondent and their
children behind. The first respondent and the children are still in occupation of the
property.
[4] There is a dispute with regard to the condition of the property when the
respondents took occupation. The applicant contends that two rooms, a garage and
a bathroom were already built on the property. The first respondent, on the other
hand, contends that it was a vacant stand with no fixed structures on it.
[5] It is common cause that the resp ondents effected improvements on the
property by erecting an eleven-room house. According to Mbofho Valuation Services
the improvements on the property comprises of the front and rear covered verandas
supported by piers, attached double garage fitted 2x re mote-controlled wooden
doors, sitting room, dinning room, passage, semi -fitted kitchen, common bathroom,
laundry room, as well as three unfitted bedrooms, whereas the main bedroom has
ensuite bathroom plus a private external side door. The sitting room and the eastern
side bedroom have ceiling fitted fans. The value of the property was R686 000 as of
3 June 2023.
Points of law:
[6] The first respondent raised three points of law. The first point of law raised is
the non-joinder of the municipality and the mis-joinder of the second respondent. The
first respondent contends that the municipality is a necessary party in these
proceedings and that failure to cite and join the municipality is fatal to the applicant's
case.
[7] Concerning the second respondent, the first respondent contends that the
applicant joined the second respondent for 'nefarious intentions aimed at creating a
stage for the son to support his mother's application .' The first respondent states that
the application is an abuse of power.
[8] The second point of law is of abuse of court processes by the applicant. The
first respondent contends that the applicant withdrew two other previous applications
where she sought their eviction in the magistrate Court. The first respondent
contends that the applicant came up with different versions in each of the
applications.
[9] The third point of law is that the order sought by the applicant is not
competent in that she has an enrichment lien over the property, in view of
improvements she and the seco nd respondent made on the property. The first
respondent contends that she has the right to retain the property until payment of the
value of the improvements is made by the applicant.
[10] The first respondent contends that the applicant in enjoined to c ite and serve
the notice of the proceedings to both the municipality and the unlawful occupier. The
applicant opposes this point of law on the basis that the municipality has no direct
and substantial interest in the outcome of this litigation. Service of the application on
the municipality is imperative in this case, not because the municipality has a direct
and substantial interest in outcome of the case. It is because the respondents have
been in occupation of the property for a period of longer than six months. In such a
case, the Court must determine whether the municipality will be able to avail land for
the relocation of the unlawful occupier, as contemplated in section 4(7).
[11] Section 4(2) of the PIE Act enjoins the Court to serve the notice of t he
intended eviction applications on the unlawful occupier and the municipality having
jurisdiction 14 days before the hearing of the application. The first respondent
contends that the application is irregular in that the applicant put the horse before the
cart by first serving the applicant with the eviction application and by applying for a
section 4(2) order thereafter.
[12] The applicant complied with the requirements of section 4(2) in that the Court
order contemplated in the section was served on th e municipality 14 days before the
hearing of the application. I am of the view that the purpose of the section has been
met. Nothing prevents the Court from requiring a report from the municipality even in
cases where it has not been cited as a party, before an eviction order is granted. The
point of law of non-joinder of the Thulamela Municipality is dismissed.
[13] The first respondent contends that the second respondent cannot be evicted
from the property that he vacated in 2019. The applicant argues that the property
was made available to both respondents and that second respondent is no longer
staying in it because of the protection order granted in terms of the Domestic
Violence Act1. The second respondent is a necessary party to the proceed ings and
should be joined, in any case, the case concerns the eviction of his minor children as
well.
[14] The second point of law of abuse of Court process is misplaced. The first
respondent states that the previous applications were withdrawn. That bein g the
case, there are no longer pending applications, on the same facts and between the
case, there are no longer pending applications, on the same facts and between the
same parties. The applicant has the right to institute these proceedings. This point of
law is dismissed on this basis.
1 116 of 1998
[15] The third point of law is basically a subs tantive defence available to the
occupier against eviction suit. The applicant argues that the first respondent's
reliance on enrichment lien is misplaced on the basis that there is no existing
contract between her, as the owner of the property, and the fi rst respondent. The
applicant contends that the agreement between her and the respondents was for
them to occupy the property whilst they were still in the process of acquiring their
own erf. She contends that the improvements on the property were made without her
consent.
[16] The applicant's argument loses sight of the difference between a
debtor/creditor lien and an enrichment lien. In Pheiffer v Van Wyk and Others 2 the
court said:
"[17] It is apposite at this stage to consider the cases relevant to t his issue. In
Bombay Properties (Pty) Ltd v Ferrox Construction 1996 (2) SA 853 (W)
Coetzee J had distinguished between a debtor/creditor lien, in which the
person relying on a jus retentionis had an enforceable claim in contract
against the owner of the p roperty, and an enrichment / improvement lien,
where there was no such contractual claim available to the possessor, and
where the court accordingly did not have a discretion to deprive the lien holder
of its possession and to substitute for that a meaningless form of security..."
[17] The applicant states that she did not consent to the improvement effected by
the respondents to the property. She, however, did not have issue with it, the reason
being that the second respondent was her son who had the capa city to inherit it from
her. She further states that she is no longer obligated to provide the first respondent
with accommodation since the divorce.
[18] The court in Phiffer stated that a real lien is afforded to a person who has
expended money or labou r on another's property without any prior contractual
relationship between them. Further that the lien holder is entitled to retain
relationship between them. Further that the lien holder is entitled to retain
possession until his enrichment claim has been met. To defeat the lien, the applicant
2 2015 (5) SA 464 (SCA) at [17].
in this matter, as the owner of the pr operty, may furnish security for the payment of
the value of the improvement.
[19] The first respondent has a real right over the property by virtue of
improvements. She has the right of retention of the property. She is entitled to
protection from evicti on by the applicant until her claim is met, subject to that claim
been lodged. The value of the improvement is not in dispute. Same has been
quantified in the valuation report attached to the answering affidavit. The application
for eviction of the first respondent is to be dismissed on this basis alone.
[20] The applicant did not specifically rely of the PIE Act in his notice of motion and
founding affidavit. However, as stated in Machele and Others v Mailula and
Others3, the application of this Act is n ot discretionary, and Courts must consider it
in eviction application. The Constitutional Court stated in that case that Parliament
enacted PIE to ensure fairness in and legitimacy of eviction proceedings and to set
out factors to be taken into account whe n considering the grant of eviction orders,
which entail conflicting interests.
[21] Section 26 of the Constitution of the Republic of South Africa, 1996,
guarantees everyone the right to adequate housing. Subsection (3) of that section
prohibits the eviction of anyone from their home without an order of Court made after
considering all relevant circumstances. The interests of the applicant, as the owner
of the property, must be weighed against those of the respondents, as the occupier.
[22] It is my view that this application stands to be dismissed under the PIE Act as
well. In terms of section 4(7) of PIE Act, if an unlawful occupier has occupied the
land in question for a period longer than six months, at the time when the eviction
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.
that it is just and equitable to do so, after considering all the relevant circumstances.
Factors which the court may consider are the rights and needs of the elderly,
children, disabled persons, and households headed by women.
3 (CCT 99/08) [2009] ZACC 7
[23] The applicant acknowledges in her own founding affidavits that she allowed
the respondents to stay in the property because they did not have their own place.
That they stayed on the property from 2005 until the date of the issue of the
proceedings. That the second respondent left their marital home before the divorce.
Primary care and residence of the respondents' children is with the first respondent
as it appears from the settlement agreement attached to the applicant's papers. In
the replying affidavit, she states that the second respondent, who has a primary
responsibility to maintain his children, lost his job and caused the maintenance order
issued against him by the magistrate court to be discharged.
[24] Counsel for the applicant contends that it is not the responsibility of the
applicant to provide shelter for the first respondent. He argues that the responsibility
lies with the municipality. Counsel lose sight of the fact that, first, the first respondent
has the responsibility to take care of the children. Applicant failed to state what
should happen to the children after the eviction. Secondly, the applicant is not a
stranger to the children. She is their grandmother. She has a legal responsib ility to
maintain her grandchildren, since their father, on her own admission, is incapable of
doing so. That will include providing shelter. The municipality's responsibility is, in my
view, secondary to hers.
[25] In view of the above factors, it is my view that it will not be just and equitable
to evict the first respondent and the applicant's grandchildren from a place they
called home and that they have shared with her son for a period of twenty years.
Counsel for the applicant's argument that it is t he responsibility of the municipality to
provide shelter to the first respondent and her children is legally correct. However, in
the facts of this case, I consider it to be secondary to the responsibility of the first
the facts of this case, I consider it to be secondary to the responsibility of the first
and second respondents, and, if for o ne reason or another, the two cannot provide
for the children, that of the applicant, who has a moral duty to do so, in a case where
her son is unable to do so. This so in that equity plays a role in an application of this
nature.
[26] The applicant fails to state why she intends to evict the respondents. She
merely states that she intends to do so because she is the owner of the property. It
appears from the papers that she is not using the property as her place of residence.
It appears that there is no p ressing reason why the first respondent should be
evicted. The first respondent and her children's need to have accommodation
outweighs the applicant's right to ownership, at least until the first respondent is paid
what is due to her in terms of the lien. The first respondent and the children must be
allowed to occupy the property until the first respondent is compensated for the
money she expended to improve the property, more so in that the improvements
were not meant to enhance the property but to provide a home.
[27] In conclusion, I find that the applicant's claim should fail for two reasons. First,
due to the first respondent's real right over the property in the form of a lien.
Secondly, it would not be just and equitable to evict the first respond ent and her
children from the property as contemplated in section 4(7).
[28] On the issue of costs, the applicant first respondent has succeeded in
resisting eviction from the property by the applicant. The applicant is therefore liable
to pay the first respondent's costs on a party and party scale B.
[29] In the result the following order is made:
i. The application for eviction on the respondents is dismissed.
ii. The applicant is ordered to pay the first respondent's costs on party
and party scale B.
MV SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION
APPEARANCES:
For the Applicant: VR Mathivha
Instructed by Mathivha Attorneys
For the Respondents: Adv NJ Themeli
Instructed by: Tshitangano Attorneys