SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO:048748/2022
In the matter between:
CECILIA VUYISWA NDLOVU APPLICANT
And
GOMETSEGANG DEPHNIE JOEL FIRST RESPONDENT
THE CITY OF JOHANNESBURG SECOND RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on Caselines. The
date for hand down is deemed to be on 13 May 2026
JUDGMENT
Mali J
Introduction
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..…………..... ---------------------------
SIGNATURE DATE
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[1] This is an application for eviction in terms of section 4 (2) of the
Prevention of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE). The applicant seeks an order
evicting the first respondent from Erf 8 […] Dobsonville Extension 2
Gauteng (the property).
[2] The applicant is an adult female who claims title to the Property. The first
respondent is an adult female person who is in occupation of the
property. The second respondent is cited as the municipality responsible
for providing alternative accommodation where the property is situated.
Brief Background
[3] The applicant filed an application for eviction in terms of PIE. Despite
filing a notice of intention to oppose, the first respondent did not file an
answering affidavit in the matter, which fell due on 15 December 2022.
[4] On 30 January 2023, the first respondent filed a notice in terms of Rule
6(5)(d)(iii) which she alleges that the eviction application lacks averments
to sustain a cause of action, namely that the applicant has not alleged
that the first respondent is in unlawful occupation of the Property.
[5] The applicant applied for and, on 26 July 2023, was duly granted an ex
parte order authorising the form and content of a notice in terms of section
4(2) of the PIE Act (“the section 4(2) notice”) and directing the applicant to
serve the notice on the first and second respondents in accordance with
the provisions of section 4(2).
[6] On 5 September 2023, the first respondent filed a notice in terms of Rule
30(2) in which she contends that the matter has been set down
prematurely as the Rule 6(5)(d)(iii) notice has not yet been adjudicated.
Nonetheless the first respondent did not pursue Rule 30(2) application.
[7] On 15 September 2023 the first r espondent filed an amended application
in terms of Rule 6(5)(d)(iii) of the Uniform Rules. On 4 October 2024 the
applicant filed condonation for the filing of supplementary a ffidavit and
applicant filed condonation for the filing of supplementary a ffidavit and
that condonation be heard with main application. The applicant’s
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supplementary affidavit addressed all the averments alleged by the first
respondent to have been lacking in the founding affidavit. The first
respondent, however, opposes the applicant’s application for condonation
for the filing of the supplementary affidavit. I first deal with the application
in terms of Rule 6 (5) (d) (iii) of the Uniform Rules (Rule 6 (5) (d) (iii).
Application in terms of Rule 6(5) (d)(iii) of the Uniform Rules and
Opposition
of the late filing of Supplementary affidavit
[8] The issue raised through Rule 6 (5) (d) (iii) is that the eviction application
lacks averments to sustain a cause of action because the applicant
purportedly failed to allege and prove that (i) the respondent's occupation
of the Property is unlawful; (ii) it would be just and equitable to grant the
eviction order; and (iii) the applicant has complied with the provisions of
the PIE.
[9] Rule 6(5)(d)(iii) of the Uniform Rules of Court states:
“(d) Any person opposing the grant of an order sought in the notice of
motion must-
(iii) If such person intends to raise any question of law only, such person
must deliver a notice of intention to do so, within the time stated in the
preceding sub-paragraph, setting forth such question.
[10] The application is brought and argued as point in limine. Nevertheless,
the first respondent submits that the Rule 6(5)(d)(iii) notice has not yet
been adjudicated upon and that, accordingly, the eviction application is
premature. The application is not a stand- alone application; it was filed
solely for the purpose of raising a point in limine.
[11] There is no provision under Rule 6 (5) (d) (iii) and/ or procedurally for the
contention that the applicant was required to set the matter down
separately in the Interlocutory Court, as submitted by the first respondent.
Instead, the applicant addressed the issues raised by filing a
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supplementary affidavit together with an accompanying application for
condonation which is opposed by the first respondent.
[12] The first respondent opposes the applicant’s application for condonation
for the filing of a supplementary affidavit. Although the application is
opposed, the first respondent has made no submissions regarding any
prejudice that may be suffered because of the filing of the supplementary
affidavit. Prejudice against the opposing party is one of the primary
considerations when a Court is called upon to grant an indulgence. In the
supplementary affidavit, the applicant addresses the allegations
previously lack ing and sets out the necessary averments to sustain a
case for eviction.
[13] It is trite that a respondent cannot rely solely on preliminary points where
all the relevant allegations have been placed before the Court, unless
exceptional circumstances are shown. In the present matter, the first
respondent has failed to establish any exceptional circumstances
warranting opposition to the applicant’s application for condonation for
the filing of the supplementary affidavit. The purpose of the
supplementary affidavit is to place all the necessary allegations before
both the Court and the first respondent. By opposing its admission, the
first respondent undermines that very purpose.
[14] For the foregoing reasons, I find that it is in the interests of justice to grant
condonation for the filing of the supplementary affidavit. Consequently,
the first respondent’s point in limine, raised in terms of Rule 6(5)(d)(iii),
namely that the applicant failed to make the necessary averments, is
dismissed.
Application for eviction
[15] The only submissions before Court in relation to the application for
eviction are those of the applicant. The applicant’s ownership of the
property has been proven through the title deed. What is left is to
determine whether the first respondent is in unlawful occupation and
whether if evicted she will be homeless.
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[16] As gleaned from the supplementary affidavit, amongst other averments
made are that the first respondent is 66 years old. She had an extra
marital relationship with the deceased, shortly after the death of the
deceased moved to the property on permanent basis.
[17] The deceased had two additional properties, namely Erf [...] Westonaria
Township and Erf 1 […] Meadowlands Township. According to the
liquidation and distribution account, the f irst respondent is characterised
as the deceased's widow. Thus, she is entitled to one half of the estate
by reason of the marriage in community of property plus one seventh of
the estate.
[18] Furthermore, the liquidation and distribution account erroneously list the
Property as an asset of the deceased, but it was not. Accordingly, the
applicant objected to th e liquidation and distribution account which she
believes it was never finalised.
Applicable legal principles
[19] PIE was promulgated to give effect to s 26(3) of the Constitution. Section
26(3) provides that ‘[n]o one may be evicted from their home . . . without
an order of court made after considering all the relevant circumstances’.
[20] PIE’s Preamble, in relevant part, provides:
“‘WHEREAS no one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property;
AND WHEREAS no one may be evicted from their home, or have their home
demolished without an order of court made after considering all the relevant
circumstances;
AND WHEREAS it is desirable that the law should regulate the eviction of
unlawful occupiers from land in a fair manner, while recognising the right of land
owners to apply to a court for an eviction order in appropriate circumstances.’
(My emphasis.)
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[21] Section 4(1) of PIE provides that “[n]otwithstanding anything to the contrary
contained in any law or the common law, the provisions of this section apply to
proceedings by an owner or person in charge of land for the eviction of an
unlawful occupier”. “Owner”, insofar as is relevant, is defined in PIE as “the
registered owner of land”. “Person in charge”, in turn, means “a person who has
or at the relevant time had legal authority to give permission to a person to enter
or reside upon the land in question.”
[22] Section 4 (7) and (8) of PIE provides as follows:
(7) “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.
(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine— (a) a just and equitable date on which the unlawful occupier must
vacate the land under the circumstances; and (b) the date on which an eviction
order may be carried out if the unlawful occupier has not vacated the land on
the date contemplated in paragraph (a).
[23] Section 4 (9) of PIE provides that in determining a just and equitable date
contemplated in subsection (8), the Court must have regard to all relevant
factors, including the period the unlawful occupier and his or her family
factors, including the period the unlawful occupier and his or her family
have resided on the land in question.
[24] In Van der Valk N.O. and Others vs Johnson and Others
1 the Court
emphasised the peremptory requirement that it be alleged that the party
occupies the Property unlawfully.
1 [2023] ZAWCHC20 (30 January 2023)
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[25] In Cape Killarney Property Investments (Pty) Ltd v Mahamba and
others2… at 1229E ...), 'no one may be evicted from their home without
an order of court made after consideration of all the relevant
circumstances'. PIE therefore requires a party seeking to evict another
from land to prove not only that he or she owns such land and that the
other party occupies it unlawfully, but also that he or she has complied
with the procedural provisions and that on a consideration of all the
relevant circumstances (and, according to the Brisley case, to qualify as
relevant the circumstances must be legally relevant), an eviction order is
'just and equitable'.
[26] Section 1(xi) of the PIE Act defines an unlawful occupier as a person who
occupies land without the express or tacit consent of the owner or person in
charge, or without any other right in law to occupy such land, excluding a
person who is an occupier in terms of the Extension of Security of Tenure
Act, 1997, and excluding a person whose informal right to land, but for the
provisions of this Act, would be protected by the provisions of the Interim
Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996).
Discussion
[27] It is not in dispute that the first respondent was served with the Notice of
Eviction in terms of section 4 (2) of PIE. The only submissions before
Court in relation to the application for eviction are those of the applicant.
The first respondent did not prove any exceptional circumstance for
relying only on preliminary points. Secondly the first respondent did not
file her answering affidavit opting to rely only on the point in limine.
[28] It is clear from the provisions and preamble of ( PIE) that, even where
occupiers are in unlawful occupation, they may not be evicted unless the
prescribed procedures have been followed. The Court must be placed in
possession of all the information contemplated in paragraphs 7 and 8
above to properly adjudicate the matter in terms of paragraph 9 and the
above to properly adjudicate the matter in terms of paragraph 9 and the
provisions of PIE.
2 (495/99) [2001] ZASCA 87; [2001] 4 All SA 479 (A) par 21
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[29] By requiring an enquiry, PIE envisages a just system in which an unlawful
occupier may not be evicted without first placing their personal
circumstances before the C ourt and the Court duly considering those
circumstances. The first respondent elected not to place her
circumstances before the C ourt. According to the applicant’s
submissions, the first respondent is entitled to inherit one of the
deceased’s Properties and therefore has alternative accommodation
available to her.
[30] In the circumstances, it cannot be unjust to evict her from the property
she unlawfully occupies. Despite being afforded an opportunity to present
her case, she chose instead to raise a point of law.
[31] Furthermore, in the first respondent’s heads of argument, it is submitted
that, should the Court find that the founding affidavit establishes a case
for the relief sought and complies with the requirements of PIE, the first
respondent ought to be afforded an opportunity to deliver an answering
affidavit. A party raising a legal point in terms of Rule 6 (5) (d) (iii) does
not have any automatic right to later file an answering affidavit if it
chooses only to raise a point of law in terms of Rule 6 (5) (d) (iii).
[32] As indicated earlier, the founding affidavit, read together with the
supplementary affidavit, establishes a proper case for the applicant. The
first respondent’s request cannot be entertained. It constitutes a delaying
tactic, and the first respondent must bear the consequences thereof.
[33] In conclusion the applicant has proven ownership of the P roperty by way
of the title deed. The first respondent is in unlawful occupation of the
property. It is just and equitable that the first respondent be evicted from
the property. The applicant ’s application for eviction in terms of PIE
succeeds.
Order:
1. The first respondent’s point in limine is dismissed.
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2. The applicant’s application for condonation for the late filing of t he
supplementary affidavit is granted.
3. The first respondent and all persons occupying with and through the first
respondent are hereby evicted from the immovable P roperty situated at
Erf 8[…] Dobsonville Extension 2 Gauteng hereinafter referred to as “the
property”.
4. The first and any all persons occupying with and through the first
respondent are ordered to vacate the Property on or before Monday 15th
June 2026 and not to return thereafter.
5. It is further ordered that in the event that the first and any all persons
occupying with and through the first respondent do not vacate the
Property on or before 15th June 2026, the sheriff alternatively his duly
appointed deputy together with such assistance as he deems appropriate
is authorised and directed to evict the first and second respondents from
the Property.
6. The first respondent is ordered to pay the costs of this application
including the costs of the application in terms of s 4(2) of the PIE Act.
_______________
N.P MALI
REPRESANTATIVES
Counsel for the applicant: GJA Cross
Attorney for the applicant: Gordon Holtmann Attorneys
Counsel for the Respondent: BJ Shull (attorney with right of appearance)
Attorneys for the Respondent: Stabin Gross & Shull
Hearing date: 13 October 2025
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Delivery date: 13 May 2026