SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-183319
In the matter between: -
ZAYA'NIH DAVIDS Applicant
and
LYDIA LIDDEMAN First Respondent
NORMAN JACOBS Second Respondent
JEROME BENJAMIN SWARTZ Third Respondent
LUCILE SWARTZ Fourth Respondent
REECE SWARTZ Fifth Respondent
ALL OTHER OCCUPANTS OF THE PROPERTY
SITUATED AT 6[...] S[...] LANE,
BELLE CONSTANTIA, CAPE TOWN Sixth Respondent
THE CITY OF CAPE TOWN
METROPOLITAN MUNICIPALITY Seventh Respondent
Coram: Van Zyl, AJ
Heard on: 29 April 2026
Judgment: : 13 May 2026
Summary: Eviction – applicant made out case for eviction – answering affidavit
bare of facts in support of any defence - respondents seeking stay of eviction
application pending hearing of rescission application in unrelated proceedings – no
reason to stay eviction application given uncertainties facing rescission application –
respondents’ reliance on huur gaat voor koop rule misplaced – no defence to
eviction application – eviction ordered
___________________________________________________________________
ORDER
1. Condonation is granted in respect of the late delivery of the first to fifth
respondents’ answering affidavit, with no order as to costs.
2. The first to fifth respondents and all those who reside on the property through
and under them, including the sixth respondent (“the respondents”) , at the
property situated at Erf 8[...], B elle Constantia, W estern Cape , more
commonly known as 6[...] S[...] Lane, B elle Constantia, C ape Town, are
evicted from the property in terms of section 4(1) of Act 19 of 1998.
3. The respondents are ordered to vacate the property by no later than 20:00 on
Friday, 31 July 2026.
4. Should the respondents fail to vacate the property by the date set out in
paragraph 2, the Sheriff of the Court or his lawfully appointed Deputy may
carry out this eviction order on or after Saturday, 1 August 2026.
5. The Sheriff or his Deputy is authorised to utilise the same order to evict the
respondents should the occupants re -enter the property after the Sheriff had
given effect to this order, or after the respondents have vacated, as the case
may be.
6. The first to fifth r espondents are ordered to pay the costs of this application
jointly and severally, the one paying , the other to be absolved. Such costs
shall include counsel’s fees taxed on Scale B.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. The applicant is the registered owner of the immovable property situated at
Erf 8[...], Belle Constantia, Western Cape, more commonly known as 6[...]
S[...] Lane, Belle Constantia, Cape Town.
2. She purchased the property from the trustees of the third and fourth
respondents’ insolvent joint estate on 5 May 2025. The purchase price was
roughly R8,5 million.
3. Transfer was registered in her name on 14 August 2025. Taking occupation
of the property, however, has proved impossible: the first to fifth
respondents1 are still residing there, and they do not wish to move. The
applicant accordingly see ks the respondents’ eviction from the property in
terms of section 4(1) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE). The provisions of PIE apply where
a person occupies property without the tacit or express consent of the owner
or person in charge of the property, irrespective of whether the occupier’s
possession was lawful at an earlier stage.2
1 I shall, for the sake of convenience, simply refer to “the respondents”, except where it is
necessary to distinguish between them.
2 See the discussion in Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA (SCA).
4. In terms of section 4(1) of PIE, only an "owner" of land, 3 or the "person in
charge", may commence eviction proceedings against an unlawful occupier.
It is not in dispute that the applicant has the required locus standi to bring this
application, as she is the registered owner of the property.
5. It is also common cause that the notice requirements under PIE ( in particular
under section 4(2) thereof) have been satisfied. The seventh respondent’s
(“the City’s ”) personal circumstances qu estionnaires in relation to the
respondents’ individual positions were served upon the respondents via the
Sheriff, together with the court-ordered notice under section 4(2) of PIE. This
was on 15 December 2025. By the time that the respondents delivered their
answering affidavit, on 25 March 2025, they had still not completed the
questionnaires. At the time of the hearing of the matter, the questionnaires
were still outstanding, and the City had, for obviously reasons, not delivered a
housing report. I say more about this later in this judgment.
Background
6. It is common cause that o n 15 August 2025 , just after registration of transfer
of the property in her name, the applicant caused the Sheriff to serve a notice
of termination and notice to vacate on the respondents. They were requested
to leave the property by 30 September 2025, which they failed to do. This
application was instituted on 7 October 2025. Notice of intention to oppose
the application was given on 19 November 2025.
7. The respondents only delivered their answering affidavit on 25 March 2026.
They sought condonation in respect of the delay. T he applicant, for the sake
of not stringing this matter out any further, d id not oppose the grant of
condonation. I accordingly indicated, when the matter was argued, that
condonation was granted in the interest of avoiding further delays, even
though the respondents’ case on condonation as framed in the answering
papers was woefully thin.
papers was woefully thin.
3 An "owner" of land is defined in section 1 of PIE as "the registered owner of land."
The applicable legal principles in relation to PIE
8. What the respondents do emphasise in their papers , and which is not in
dispute, is that the provisions of section 4(7) of PIE appl y, because the
respondents have been in occupation of the property for more than 6 months.
The section provides as follows:
“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, except where the land is sold in a sale of
execution pursuant to a mortgage, 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.”
9. The requisite approach to adopt when dealing with applications for of eviction
was summarized in City of Johannesburg v Changing Tides 74 (Pty) Ltd and
others4 as follows:
“A court hearing an application for eviction at the instance of a private person or
body, owing no obligations to provide housing or achieve the gradual realization of
the right of access to housing in terms of s 26(1) of the Constitution, is faced with
two separate inquiries. 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 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
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 that order. Before doing so,
4 2012 (6) SA 294 (SCA) para 25.
however, it must consider what justice and equity demands 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 discreet enquiries is a single order. Accordingly it cannot be granted until
both enquiries have 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 satisfied that it is in possession of all the
information necessary to make both findings based on justice and equity.”
10. A court will therefore grant an eviction order where , first, it has all the
information about the occupiers to enable it to decide whether the eviction is
just and equitable , and, second, the court is satisfied that the eviction is just
and equitable, having regard to the information evident form the first enquiry .
The two requirements are interlinked and essential.5
11. The circumstances that the court must consider in terms of section 4(6) and
4(7) of PIE are , amongst others, whether the property is occupied by any
minor children, elderly, disabled persons and households headed by women ,
as well as whether the City has made alternative accommodation available.
12. Although the rights and needs of vulnerable occupants must be considered, it
cannot, however, be done to such an extent that a private owner is arbitrarily
or indefinitely deprived of their property. To do so would be an annihilation of
the owner ’s rights and would amount to a disguised form of expropriation
notwithstanding the unlawfulness of the occupants’ conduct.6
13. In FHP Management (Pty) Ltd v Theron and another,7 in interpreting the
13. In FHP Management (Pty) Ltd v Theron and another,7 in interpreting the
5 Occupiers of erven 87 and 88, Berea v De Wet NO 2017 (5) SA 346 (CC) at 361F-H.
6 See Mainik CC v Ntuli and others [2005] ZAKZHC 10 (25 August 2005): “ If the rental is not
being paid, such ‘expropriation’ will also be without compensation. The result would be not a
balance of the rights of the respective parties, but an annihilation of the owner’s rights” . (The
paragraphs of the judgment are unfortunately unnumbered.)
7 2004 (3) SA 392 (C) at 401D-I.
judgment of Harms JA in Ndlovu v Ngcobo; Bekker and another v Jika ,8 the
court found that the effect of section 26(3) of the Constitution of the Republic
of South Africa, 1996 , read together with section 4(7) of PIE, is that it is not
necessary for an applicant, in proceedings to evict an unlawful occupier from
such applicant’s property, to place more before the court by way of evidence
other than the fact that such applicant is the owner of the property in
question, and that the occupier is in unlawful occupation of such property. It is
then up to the occupier to disclose to the court relevant circumstances to
show why the owner should not be granted an eviction order. It cannot be
expected of the applicant to do more than to invite the respondents to
disclose their personal circumstances to this court.
14. I consider the respondents’ contentions against this background.
The respondents’ defences to the eviction application
15. The respondents raise five defences in their answering affidavit.
15.1 First, they indicate that they have been occupying the property since
November 2015.
15.2 Second, they allege that the applicant acquired the property “ under
questionable circumstances”.
15.3 Third, they contend that there is a valid lease agreement in place,
and therefore that the principle of huur gaat voor koop applies.
15.4 Fourth, the Supreme Court of Appeal (SCA) found on 22 March
2024 that this Court was bound by an earlier order (dated 23
November 2021) in terms of which a settlement agreement between
the respondents and a creditor, Standard Bank Ltd, had been made
an order of court. At that time (in November 2021) the third and
8 2003 (1) SA 113 (SCA).
fourth respondents’ joint estate was in provisional sequestration.
The joint estate was finally sequestrated as a result of the SCA’s
orders.9
15.5 Fifth, the third and fourth respondents have applied to have the High
Court order of 23 November 2021 rescinded. They say that, if the
rescission application is successful, the final sequestration order in
relation to their joint estate (as well as final liquidation orders
granted in relation to their businesses) would be subject to “review”.
16. I point out, at the outset, that the allegations in the respondents’ answering
affidavit are couched as conclusions, and do not explain nor substantiate the
defences raised. These can be disposed of briefly.
The respondents have been occupying the property since November 2015
17. This is not in dispute, and goes to the test under the relevant provisions of
PIE. It does not assist in the consideration of whether the respondents are,
at this point in time, unlawful occupiers.
The applicant acquired the property “under questionable circumstances”
18. It is unexplained on the papers what the origin of this submission is. It is
common cause that the applicant purchased the property at an auction duly
held by the trustees of the third and fourth respondents’ insolvent joint estate.
When questioned in court on the issue, counsel for the respondents
conceded that there was no indication that anything had been amiss in the
conduct of the auction and the applicant’s purchase of the property.
19. The allegation (apart from being an attempt at creating atmosphere which
backfired at the hearing) accordingly does not assist the respondents.
9 See Standard Bank of South Africa Ltd v Swartz and others [2024] ZASCA 28 (22 March
2024).
There is a valid lease agreement in place, and the principle of huur gaat voor koop
applies
20. This is another allegation that raises questions, and any attempts at
answering them do not assist for the respondents.
21. Huur gaat voor koop, loosely translated, means that an existing lease trumps
a later sale. Thus, in the case of a lease of immovable property, a tenant is
protected against the rights of third parties which vested later in time than
those rights of the tenant under the lease. Where the property in question is
sold to a new party, the purchaser (as new owner) will take over the lease
agreement by stepping into the shoes of the seller, and will have the same
rights and obligations against the tenant as the seller of the property had
before the sale took effect. The seller is substituted by operation of law,
meaning no formal ceding of the rights under the lease agreement is
required, and the purchaser will automatically acquire all the rights and duties
of the landlord under the lease. In other words, both the tenant and the
purchaser will be bound to the lease agreement and neither party can resile
from it without following the provisions contained in the agreement itself.10
22. The respondents say (al beit in as few words as possible in their answering
affidavit) that the third respondent (as lessor) has a lease agreement with a
third-party company called Biz Africa 1983 NPC (as lessee) of which he is (or
was) the sole director. The lease was concluded – so it appears – on 1 July
2022, a few weeks after the provisional sequestration of the third and fourth
respondents’ joint estate.
23. Leaving aside questions relating to the timing of its conclusion, the lease
agreement (a copy of which is attached to the answering affidavit) gives no
indication that the property forms part of a joint estate , and an insolvent one
at that. It provides for a long lease period, effectively until 1 July 2043.
at that. It provides for a long lease period, effectively until 1 July 2043.
24. Rental is payable by the company in the sum of R20 000,00 per month. The
10 See, for example, the discussion in Mignoel Properties (Pty) Ltd v Kneebone 1989 (4) SA
1042 (A).
respondents have not paid this rental ( if they receive it from the company) or
any part thereof, over to the applicant. The company itself has not paid any
rental to the applicant – the latter now being the new owner of the property,
and thus in the position of the company’s landlord. The respondents’
arrangement with the company (as the lessee of the property) is not
explained.
25. The respondents’ invocation of huur gaat voor koop is, therefore, misplaced.
The existence of the lease agreement, even if accepted, provides no defence
to the respondents themselves against the applicant’s claims. Their version
in this respect is in any event so bald and sketchy that it can safely be
rejected on the papers.
The judgment by the SCA, and the respondents’ pending application for rescission
26. The SCA found on 22 March 2024 that this Court was bound by an earlier
order (dated 23 November 2021) in terms of which a settlement agreement
between the respondents and a creditor, Standard Bank Ltd, had been made
an order of court. At that time (in November 2021) the third and fourth
respondents’ joint estate was in provisional sequestration. The joint estate
was finally sequestrated as a result of the SCA’s orders.11
27. There is nothing in the SCA’s judgment that offers the respondents a defence
to the eviction application. That judgment explains, insofar as is relevant to
the present matter:12
“[6] On 23 November [2021], a settlement agreement was concluded. On the
same date Goliath DJP made it an order of court. This provided, in essence:
(a) that the business rescue application in respect of Pygon was
withdrawn;
(b) that the application for the final liquidation of Pygon was postponed
and the rule nisi extended to 10 February 2022;
11 See Standard Bank of South Africa Ltd v Swartz and others [2024] ZASCA 28 (22 March
2024).
12 Standard Bank supra para 6-9.
(c) that by no later than seven calendar days before 10 February 2022,
an amount of R18 million plus VAT would be paid to the
conveyancing attorneys appointed by the liquidators of Pygon in
terms of a sale agreement envisaged to be concluded between the
liquidators and Zylec Investments (Pty) Ltd (Zylec);
(d) for the distributions to creditors to be made from that amount;
(e) that if the payment and distributions were made as indicated, the
provisional liquidation orders in respect of Pygon and JCICC and the
provisional sequestration order in respect of the joint estate [of the
third and fourth respondents in the eviction application] would be
discharged on the return date;
(f) that if the payment and/or distributions were not made as indicated,
final liquidation orders in respect of Pygon and JCICC and a final
sequestration order of the joint estate would be granted on the return
date.
[7] The bank put up a supplementary affidavit deposed to on 24 January 2022 to
inform the court of what had transpired in the interim. …
[8] … It is common ground that no payment of R18 million was made by the due
date or at all.
[9] The bank submitted that, since the R18 million had not been paid, the
consent order of 23 November should be put into effect. As such, final
liquidation orders should be granted in respect of Pygon and JCICC and the
joint estate should be finally sequestrated.”
28. As the High Court had not put the terms of the settlement agreement (or
consent order) into effect upon non -payment of the R18 million, the SCA did
so upon appeal. This resulted in the final sequestration of the third and fourth
respondents’ joint estate.
29. The respondents, however, latch onto what the SCA stated in relation to a
fraud alleged to have been perpetrated:13
“[8] The bank’s affidavit set out allegedly fraudulent behaviour on the part of the
person who had been on record as the attorney for the joint estate and the
13 Standard Bank supra para 8.
two CCs. This person was said to have forwarded supposed proofs of the
payments of both the deposit and the full purchase price into an account of
the conveyancers held with Nedbank Limited (Nedbank). Not only that but he
claimed that the amount for the deposit had been paid by Zylec into his trust
account. Nedbank put up an affidavit showing that both documents
purporting to show that deposits had been made were fraudulent and that the
moneys concerned had not in fact been deposited into any account held w ith
it. A letter was also put up from the relevant Legal Practice Council which
stated that it had ‘no record that [the person who had been on record as
attorney was] a practising/non -practising member of the Legal Practice
Council . . .’. It is common ground that no payment of R18 million was made
by the due date or at all.”
30. The respondents say that they have, on the basis of the alleged fraud,
applied to have the High Court order of 23 November 2021 (making the
settlement agreement an order of court) rescinded. The application is
apparently on the roll for hearing on 21 May 2026. They say that, if the
rescission application is successful, the final sequestration order in relation to
the third and fourth respondents’ joint estate (as well as final liquidation
orders granted in relation to their businesses) would be subject to “review”.
31. Nothing else is revealed about the rescission application . The notice of set -
down attached to the answering affidavit reflects only Pygon Trading CC as
the applicant. The rescission application itself is not attached, and the
alleged fraud as the basis for the application amounted to evidence from the
bar by the respondents’ counsel, because the answering affidavit says
nothing whatsoever about what is contained in the application.
32. Nothing is said, moreover, about the prospects of condonation being granted
in respect of the significant delay in the institution of the rescission
in respect of the significant delay in the institution of the rescission
application. The settlement agreement was made an order of court in
November 2021. The SCA judgment was delivered in March 2024. The
respondents do not say when the rescission application was instituted, and
what the grounds for condonation would be. In fact, they do not say whether
condonation is being sought at all.
33. Counsel for the respondents nevertheless suggested that the eviction
application should be postponed to somewhere in the future to allow the
ventilation of the rescission application , and that the parties should come to
“some sort of compromise” in relation to rental in the meantime.
34. I do not agree.
35. The unlawful status of the respondents’ occupancy has been established
irrespective of whether the applicant’s current ownership of the property
might at some future date be impugned as a result of the application for
rescission. The respondents have given no reason for the court to go behind
the applicant’s registered ownership of the property for the purpose of the
eviction application. The applicant has established her standing to institute
this application, and until and unless her ownership of the property is nullified
(which, on the information currently before this court , is uncertai n in the
extreme) the applicant is entitled to exercise her rights as owner, and for that
purpose to invoke the court’s assistance.
36. A further consideration is the unpredictable course of the re scission
application. Although there is a hearing date, I have mentioned the absence
of any indication as to whether the delay in the institution of the application
might be condoned. In addition, the mere rescission of the court order
making the settlement agreement an order of court will not necessarily have
the effect of setting aside the underlying settlement agreement. The SCA
dealt in detail with the nature and effect of a transactio.14 This court, being
seized of the eviction application, has no idea from the respondents’ papers
as to the extent of the relief that is being sought in the rescission application.
What is clear, however, is that application is facing an uphill battle.
37. In the circumstances, it would be unfair to the applicant in the eviction
14 See Standard Bank supra paras 18-23.
proceedings to make the outcome of her established claim await the result of
the rescission application. I am therefore not persuaded that there is any
reason to exercise whatever inherent discretion the court might have to stay
the eviction proceedings pending the determination of the re scission
application.
The applicant’s position
38. A just and equitable order does not mean that only the rights of the unlawful
occupier are given consideration. Those of the property owner should also
be taken into account. The wishes or personal preferences of the occupiers
are not relevant – they cannot choose to remain in the property that they are
occupying unlawfully, and a private owner has no obligation to provide free
housing.15
39. The prejudice to the applicant is obvious , and was not seriously disputed
either in the papers or in oral argument.
40. She has not had any access to her property despite registration of transfer in
her name in August 2025. She does not receive any rental ( despite the
respondents’ raising of huur gaat voor koop as a defence) whilst the
respondents continue to occupy the property. Although the respondents are
paying for their electricity and water usage, the applicant remains liable to
pay rates and taxes, and she has been doing so since registration of transfer.
The respondents’ personal circumstances
41. The property is currently occupied by the following persons:
41.1 The first respondent, who is an eighty-year old woman;
41.2 The second respondent, who is a seventy-four year old man;
15 Grobler v Phillips and others 2023 (1) SA 321 (CC) paras 36-44.
41.3 The fourth respondent is a forty-seven year old woman;
41.4 The fifth respondent is an eighteen -year old ma n. There is another
sixteen-year old boy living at the property.
42. This information appears from the relevant Sheriff’s returns of service. There
is no further information on record about the respondents , as the third and
fourth respondents have failed to provide any information regarding their
personal circumstances despite service of the City’s personal circumstances
questionnaire on them.
43. In Patel NO and others v Mayekiso and others 16 the court recognised that
where an occupier alleges potential homelessness, they are obligated to
place the necessary information before the court. The respondents in the
present matter have not alleged anywhere that they will be rendered
homeless if the eviction order is granted. One may surmise that that is the
reason why they did not bother with filling out the questionnaires. Nothing is
said about this in their papers.
44. In Vacation Import (Pty) Ltd v Burmina and others; Vacation Import (Pty) Ltd v
Ngaleka and others, 17 the court explained that, even where a court reaches
the conclusion that an order of eviction is appropriate, the court cannot do so
without the necessary report from the municipality, as contemplated in
section 4(7) of PIE. The court m ade this finding in the context of an opposed
eviction application in which the unlawful occupiers had delivered answering
affidavits and in which the applicant had contended that its attempts to gather
information were met with uncooperative responses. The court noted as
follows:
“[36] The deponent to the applicant’s founding affidavits testified that the applicant’s
endeavours to gather pertinent information from the unlawful occupiers were met
16 Unreported judgment of this Division under case number 3680/2016, delivered on 23
September 2016 (per Dolamo J) para 33. An appeal against the orders granted was
September 2016 (per Dolamo J) para 33. An appeal against the orders granted was
dismissed: see Mayekiso and others v Patel NO and others 2019 (2) SA 522 (WCC).
17 [2023] ZAWCHC 44 (3 March 2023). My emphasis.
with an uncooperative response. In my experience, perhaps not unexpectedly, that
is not uncommon in eviction cases. If, however, the unlawful occupiers are also
uncooperative with the City when it undertakes the mandated investigation, then
they will have only themselves to blame if the court does not take their interests
adequately into account in determining what is just and equitable in the
circumstances. But the necessary investigation must first be undertaken by the City
and properly reported on.”
45. The Constitutional Court held in Mathale v Linda and another18 that:
"Although there appears to be no absolute requirement for the provision of
alternative accommodation before a court can order an eviction, the court, in
considering what is just and equitable, has an obligation to determine whether the
parties in question would be homeless. Indeed, a court should hesitate to grant an
eviction where homelessness would result."
46. The requirement of a report from the City is thus only compulsory in the
context of possible homelessness, as the City is the primary organ of state to
address homelessness, should an eviction be ordered.
47. In the present matter there is no suggestion on the papers that the
respondents would not be able to find alternative accommodation. The bald
throw-away line to the contrary in counsel’s heads of argument does not
count, as it is not substantiated by any facts on the papers. The mere
mention of the words “risk of homelessness” does not make a case where
there is none. The respondents have, over the years, had access to
substantial funds and have used various business ventures to fund their
lifestyle - this is clear from the decisions of this court and the SCA in the long-
running litigation against Standard Bank Ltd. As stated in Modderfontein
Squatters,19 an individual landowner does not have an obligation to give
18 2016 (2) SA 46 l (CC) para 50. See also Arendse v Arendse and others 2013 (3) SA 347
18 2016 (2) SA 46 l (CC) para 50. See also Arendse v Arendse and others 2013 (3) SA 347
(WCC) para 45 : “… Then too there is assistance to the Court by way of a report from the
municipality having jurisdiction where it appears that an eviction might lead to homelessness
…”
19 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri
SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa
effect to and protect an occupant’s constitutional right to housing. The
respondents have failed to complete a personal circumstances questionnaire
to enable the City to make emergency shelter available to the m, despite
having been in possession of such questionnaire since December 2025.
Such failure cannot be used as a reason further to delay the grant of an
eviction order and to prevent the applicant from taking occupation of her
property.
Conclusion and costs
48. The applicant has made out a case for the relief she seeks , and the
respondents have failed to demonstrate that they have any right to remain in
the property. The respondents have been in unlawful occupation for several
months, and have refused to find alternative accommodation. Counsel for the
applicant therefore suggests that the respondents be given a month to
vacate.
49. I think it best , however, to afford the respondents two full months to obtain
other accommodation. They have admittedly resided in the property for ten
years, and some organising will be required to orchestrate a move.
50. The applicant is the successful party, and there is no reason to depart from
the general rule that costs should follow the event. Counsel for the applicant
has suggested that counsel’s fees should be taxed on Scale C, but I do not
think that the matter was particularly complex. In the exercise of my
discretion under Rule 67A (3), read with Rule 69, I regard the tariff under
Scale B as the appropriate one.
Order
51. In the premises it is ordered as follows:
and others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici
Curiae) 2004 (6) SA 40 (SCA) para 31.
1. Condonation is granted in respect of the late delivery of the first to fifth
respondents’ answering affidavit, with no order as to costs.
2. The first to fifth respondents and all those who reside on the property
through and under them, including the sixth respondent (“the
respondents”), at the property situated at Erf 8[...], Belle Constantia,
Western Cape, more commonly known as 6[...] S[...] Lane, Belle
Constantia, Cape Town, are evicted from the property in terms of
section 4(1) of Act 19 of 1998.
3. The respondents are ordered to vacate the property by no later than
20:00 on Friday, 31 July 2026.
4. Should the respondents fail to vacate the property by the date set out
in paragraph 2, the Sheriff of the Court or his lawfully appointed
Deputy may carry out this eviction order on or after Saturday, 1
August 2026.
5. The Sheriff or his Deputy is authorised to utilise the same order to evict
the respondents should the occupants re -enter the property after the
Sheriff had given effect to this order, or after the respondents have
vacated, as the case may be.
6. The first to fifth respondents are ordered to pay the costs of this
application jointly and severally, the one paying, the other to be
absolved. Such costs shall include counsel’s fees taxed on Scale B.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Ms M. de Wet
Instructed by: SBL Incorporated
For the first to sixth respondents: Mr M. Roman and Ms Y.
Mohamed
(Trust advocate s under
section 34(2)(a)(ii) of the
Legal Practice Act 28 of 2014)