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[2026] ZAWCHC 272
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N.C.M.W v P.S.K and Others (2025/218300) [2026] ZAWCHC 272 (29 May 2026)
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THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
2025-218300
In
the matter between:
NC.M.
W[...]
Applicant
And
P.S.
K[...]
1
ST
Respondent
ALL
OTHER OCCUPANTS
2
ND
Respondent
CITY
OF CAPE TOWN MUNICIPALITY
3
R
D
Respondent
Heard
: 13 April 2026
Delivered
: Electronically on 29 May 2026
Summary:
Eviction
Application - dispute
of facts exists which could not be resolved on paper – matter
referred for oral hearing in
terms of Rule 6(5)(g) of the Uniform
Rules of the Court
JUDGMENT
YAKE AJ
Introduction
[1]
This is an
application brought in terms of section 4(1) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998
(‘PIE’) for the eviction of the first respondent and all
other occupiers from the immovable property
situated at Unit 4[...].
S[...], S[...] Avenue, Kuilsriver, Cape Town (‘the property’).
[2]
The application is opposed by
the first respondent (‘respondent’). The respondent
contends that her occupation is lawful,
alternatively that the
eviction sought would not be just and equitable within the meaning of
section 4(6) and 4(7) of PIE. In addition,
the respondent raised two
points in limine, namely (a) the nonjoinder of Ms. Unathi M[...]
(‘Ms. M[...]’) who is alleged
to be the wife of the
applicant and (b) and an alleged conflict of interest arising from
Ms. M[...] representing the applicant.
Factual background
[3]
It is common
cause that the app
licant is the registered owner of the
property in question.
The applicant and the respondent were engaged in a
romantic relationship. During the subsistence of their relationship,
the respondent
took occupation of the property. The circumstances
under which the respondent assumed occupation are, however, in
dispute. The
applicant avers that the respondent’s occupation
was pursuant to a verbal tenancy agreement (‘tenancy
agreement’)
concluded between the parties. The respondent, on
the other hand, disputes the existence of such an agreement. She
contends that
her occupation is founded upon her alleged co-ownership
of the property, which she claims arises by virtue of a universal
partnership
said to have existed between herself and the applicant.
[4]
Furthermore, the precise date of occupation is contested. The
applicant maintains that the respondent
took occupation during the
course of 2023, whereas the respondent asserts that she moved into
the property on 8 July 2022. These
divergences in the parties’
versions form part of the factual matrix to be considered in
determining the nature of the occupation
and the rights, if any,
arising therefrom.
[5]
The applicant contends that none of the respondents has a legal right
to remain in occupation,
as the alleged tenancy agreement has since
been cancelled. He submits that the requirements of section 4(2) of
PIE have been complied
with, including proper service of notices on
the respondent(s) and the municipality. In the result, he asserts
that he is entitled
to the relief sought.
The applicant’s
case
[6]
The applicant contends that
the terms of the tenancy agreement concluded between himself and the
respondent were that the respondent
would occupy the property for a
period of three months. During such occupation, the respondent would
be responsible for the payment
of body corporate levies and municipal
accounts.
[7]
Upon the expiry of the initial three-month period, the respondent
sought an extension of the tenancy,
which the applicant reluctantly
granted. The applicant states that such extension was granted, albeit
reluctantly, and was expressly
conditional upon the respondent’s
continued fulfilment of her obligations under the tenancy agreement;
namely the payment
of body corporate levies and municipal accounts.
The applicant contends that the respondent failed to honour her
obligations, in
that she did not pay the levies and municipal
accounts as undertaken, thereby falling into arrears.
[8]
As a result of the respondent’s alleged breach, the applicant
submits, he cancelled the
agreement and requested the respondent to
vacate the property. Following such cancellation, the applicant
contends that the respondent
no longer had any lawful right to occupy
the property and that her continued presence constitutes unlawful
occupation. On this
basis, the applicant asserts that he is entitled
to bring the present eviction application.
The respondent’s
case
[9]
The respondent disputes that
she entered into any agreement with the applicant. She contends that,
notwithstanding the property
being registered in the applicant’s
name, it was in fact acquired by the applicant for her benefit as her
home. She asserts
further that the parties were engaged to be married
and that a universal partnership existed between them. By virtue of
such partnership,
she maintains, she was entitled to occupy the
property. On this basis, the respondent denies that her occupation is
unlawful. The
respondent argues that these contentions raise a
material dispute of fact. She submits that the application
accordingly stands
to be dismissed, alternatively that the matter
should be referred for the hearing of oral evidence.
Issues in dispute
[10]
The court is enjoined to determine, firstly; whether the respondent
is unlawfully occupying the applicant’s
property. Secondly,
whether the respondent has raised a dispute of fact that would
preclude the granting of the relief sought on
the papers. In
addition,
the
court is required to determine whether the respondent has established
a proper basis for the points raised in limine.
Points in limine
[11] It
suffices to note that when the respondent filed her answering papers,
no points in limine were raised.
These points were introduced for the
first time in the respondents’ heads of argument. Counsel for
the respondent submitted
that they only arose after receipt of the
applicant’s replying affidavit. Accordingly, before engaging
with the substantive
merits of the eviction application, the court is
required to determine the preliminary points raised by the
respondent, namely:
(a)
whether
the
non-joinder
of Ms. M[...], who according to the respondent
has
a direct and substantial interest, constitutes a defect in this
application; and
(b)
whether Ms.
M[...]’s
legal representation
of the applicant contravened clause 3.9 of the
Code
of Conduct
for All Legal Practitioners, Candidate Legal
Practitioners
and Juristic Entities
[1]
as
amended (the ‘LPC code of conduct’).
[12]
The court will accordingly consider each of these objections in turn,
mindful that if either is upheld, it
may affect the applicant’s
entitlement to proceed with the eviction application.
Non-joinder
[13]
Uniform
rule 10 regulates joinder proceedings. The purpose of joinder is to
ensure that all parties whose rights or interests may
be affected by
the court’s order are before the court, thereby preventing
multiple or inconsistent judgments. Our law recognises
two categories
of joinder. The first is necessary joinder, which arises where a
party has a direct and substantial interest in
the subject matter of
the litigation that may be prejudicially affected by the court’s
order.
[2]
In
such
circumstances, failure to join amounts to non joinder, and the
court may decline to hear the application until such joinder
has been
effected. Alternatively, the matter may proceed only if the absent
party has expressly consented to be bound by the judgment
or has
waived their right to be joined.
[3]
[14]
The second category is a
joinder
of convenience
.
[4]
This occurs where the joinder of a party is permissible but not
essential. Such joinder does not arise from a direct and substantial
interest but rather from considerations of practicality, efficiency,
or the avoidance of multiple proceedings. The absence of joinder
in
these circumstances does not render the proceedings defective, nor
does it amount to misjoinder.
The
court retains a discretion to allow or refuse it, depending on the
circumstances of the case.
[15]
For
the respondent to succeed in her point in limine, she must establish
that Ms. M[...] has a direct and substantial interest in
the subject
matter of the litigation. Such interest must be of such a nature that
the judgment in the main application cannot be
sustained or carried
into effect without necessarily prejudicing her
interest.
[5]
It
is only where this threshold is met that non joinder arises, and
the court may decline to entertain the application until
joinder has
been effected, or until the absent party has consented to be bound by
the judgment.
The
Supreme Court of Appeal
in
Absa
Bank Ltd v Naude NO,
[6]
formulated
the test for non-joinder as follows:
‘
The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject matter of the
litigation which may prejudice the party that has not been joined.’
[16]
In
Gordon
v Department of Health, Kwa Zulu Natal,
[7]
the
Supreme Court of Appeal held that a person must be joined when they
have a direct and substantial interest in the subject matter
of the
litigation that may be prejudicially affected by the court’s
judgment and order. It further held that a court must
raise
non-joinder
mero
motu
if
it appears that a necessary party has not been joined. Failure to
join such a party renders the proceedings fatally defective,
as the
court cannot make a binding or enforceable order in the absence of
such party. This was confirmed by the Constitutional
Court
in
Matjhabeng
Local Municipality v Eskom Holdings Limited.
[8]
[17]
In light of the foregoing
principles, the question to be asked is whether Ms. M[...] has a
direct and substantial interest in the
eviction application that may
be prejudicially affected by any order of this Court. This enquiry is
two phased. The first
leg requires a determination of whether
Ms. M[...] possesses a direct and substantial interest in the
eviction application. If
the answer to this leg is in the
affirmative, the court must then proceed to the second leg, namely
whether her interest may be
prejudicially affected by the court’s
order. If the answer to both legs is in the affirmative, Ms. M[...]
must be joined,
as her absence renders the proceedings defective. The
court cannot make an order that binds or prejudices a party without
affording
such party the right to be heard. In such circumstances,
failure to join may result in the matter not being heard at all.
[18]
Conversely, if the answer to the above is in the negative; meaning
that the party’s interest is indirect
or insubstantial, or that
notwithstanding a direct and substantial interest, her non joinder
will not be prejudicial; the
court retains a discretion. In such
circumstances, the absence of joinder does not vitiate the
proceedings, and the court may proceed
to adjudicate the matter,
since the outcome will not have a
dire
impact on third parties
who are not accordingly joined to the proceedings.
Submission
by the respondent
[19]
Mr. Tait, counsel for the
first respondent, argued that at paragraph 8 of the replying
affidavit, the applicant alleges that he
is traditionally married to
Ms. M[...] and has paid lobola in accordance with her customs as far
back as 2018. Counsel submits
that the applicant has averred that he
and Ms. M[...] concluded a formal universal partnership agreement on
14 February 2018. In
terms of paragraph 6 of that agreement, the
parties recorded their intention to marry in accordance with
customary law, with the
marital regime of in community of property,
on or about December 2018.
[20]
Counsel submitted that the property in question was purchased on 5
July 2022 and registered in the applicant’s
name on 19 August
2022. It was argued that, in light of the universal partnership and
customary marriage between the applicant
and Ms. M[...], the latter
is the co-owner of the property. In support of this contention,
counsel referred to paragraph 36 of
the applicant’s replying
affidavit wherein the applicant expressly admitted this position.
Paragraph 36 records that:
‘
the
first respondent- despite the knowledge and circumstance that I
submitted herein above, still clutches to the belief that there
is a
universal partnership- and now appears to claim joint ownership over
my property,
which, in any event, by
virtue of my marriage belongs to me and my wife in equal shares
.’
(My
emphasis)
[21]
Counsel submits that by virtue of Ms. M[...]’s co-ownership of
the property, she has a direct and substantial
legal interest in the
relief sought. It was argued that such interest may be prejudicially
affected by the judgment and order of
this Court, and accordingly
that Ms. M[...] ought to be joined as the second applicant. On this
basis, counsel contended that the
application should be postponed
pending the formal joinder of Ms. M[...] to the proceedings.
Submission
by applicant
[22]
I
n reply, Mr Smit, counsel
for the applicant submitted that
section 15(2)
of the
Matrimonial
Property Act 88 of 1984
requires a written consent of both spouses
only in respect of the alienation, mortgage, or pledge of immovable
property forming
part of the joint estate. He contends that an
eviction application does not constitute an alienation or encumbrance
of property.
Rather, it is the exercise of a possessory right, which
falls entirely within the applicant’s unilateral legal
capacity.
[23]
Counsel contends that, in terms of
section 1
of PIE, the applicant
qualifies to bring this application as the “person in charge”
of the property. He submits that
Ms. M[...] played no role in the
acquisition, management or administration of the property.
Accordingly, the applicant argues that
his standing to institute this
application is not dependent upon, nor affected by Ms. M[...]’s
co-ownership interest.
[24]
Counsel further argues that the relief sought is equally in Ms.
M[...]’s interest as a co-owner, in
that it will restore the
property to the registered owner. He submits that the respondent has
failed to demonstrate in what manner
the granting of an eviction
order in the applicant’s favour would be prejudicial to Ms.
M[...].
[25]
It was further submitted that Ms. M[...] has filed a confirmatory
affidavit and is accordingly before court
by virtue of such
affidavit. Counsel contends that Ms. M[...] is aware of these
proceedings and, as such, there is no adverse interest
that would
necessitate her formal joinder. On this basis, the applicant argues
that the point of non-joinder is without merit and
should be
dismissed.
Discussion
[26]
It
is common cause that the applicant and Ms. M[...] are married in
community of property, as confirmed in the replying affidavit
filed
by the applicant.
[9]
Section
17(1) of the Matrimonial Property Act 88 of 1984 (‘MPA’)
stipulates that a
spouse
married in community of property
shall
not without the written consent of the other spouse institute legal
proceedings
against
another person or defend legal proceedings instituted by another
person. Although the
property
in question, is registered solely in the name of the applicant, it
nonetheless forms part of the joint estate and therefore
belongs to
both the applicant and Ms M[...] by virtue of the matrimonial regime.
This
is underscored by the applicant’s own admission wherein he
expressly conceded that the property is jointly owned
.
[10]
Accordingly, it cannot be argued that Ms M[...] has a direct and
substantial interest in the present eviction application.
[27]
Notwithstanding Ms M[...] direct and
substantial interest in these proceedings, the applicant is not
thereby precluded from instituting
this application. These
proceedings are governed by “PIE”, and section 4(1)
thereof expressly confers standing on the
owner of property, or a
person in charge, to institute eviction proceedings. The applicant is
not only the registered owner of
the property in question but also
the person in charge thereof, as the responsibility for paying levies
and municipal accounts
rests solely upon him. This underscores his
right and authority to bring this application.
[28]
Moreover, section 17(2) of the MPA provides in clear terms that no
party to legal proceedings instituted
or defended by a spouse may
challenge the validity of such proceedings on the ground of the
absence of the consent required in
subsection (1). The legislature
has thus insulated proceedings from being vitiated merely by the lack
of spousal consent. In the
present matter, although Ms. M[...] has
not been formally joined as a second applicant, her awareness of the
proceedings is beyond
dispute. This is evidenced by her confirmatory
affidavit, which demonstrates her knowledge of and alignment with the
relief sought.
Accordingly,
while Ms M[...]’s interest is acknowledged, the applicant
retains the statutory authority to bring this eviction
application.
The respondent’s suggestion that he cannot proceed until M[...]
is joined is untenable. It is my considered
view that, the absence of
M[...]’s explicit authorisation as a co-owner does not vitiate
the validity of the proceedings.
[29]
What remains is for the court to determine whether Ms. M[...] is
likely to be prejudicially affected by the
outcome in the proceedings
as a result of her failure to be joined. If so, joinder must take
place as a matter of necessity, otherwise
prejudice will manifest if
a joinder did not occur and a judgment and order adverse to the
applicant has been issued.
[30]
In
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others
,
[11]
the
Constitutional Court states as follows:
‘
The
law on joinder is well settled. No court can make findings
adverse to any person’s interests, without that person
first
being a party to the proceedings before it. The purpose of this
requirement is to ensure that the person in question knows
of the
complaint so that they can enlist counsel, gather evidence in support
of their position, and prepare themselves adequately
in the knowledge
that there are personal consequences – including a penalty of
committal – for their non-compliance. All
of these
entitlements are fundamental to ensuring that potential contemnors’
rights to freedom and security of the person
are, in the end, not
arbitrarily deprived.’
[31]
The relief sought in the
present matter is the eviction of the respondent from the property
jointly owned by the applicant and Ms.
M[...] in accordance with
their marital regime. Granting the eviction order will not, in my
view, prejudice Ms. M[...]. Her proprietary
rights will remain
intact, and the order will operate only to evict the respondent.
Similarly, a refusal of the application will
retain the status quo,
leaving Ms. M[...]’s interests unaffected. The only conceivable
prejudice would arise from an adverse
costs order against the
applicant. However, section 17(3) of the MPA provides a safeguard:
such costs may be recovered from the
applicant’s portion of the
joint estate, thereby insulating Ms. M[...] from liability.
Accordingly, the respondent has failed
to demonstrate prejudice
sufficient to render joinder necessary. The point in limine based on
non-joinder is without merit and
must be dismissed.
Conflict
of interest
[32]
Mr. Smit,
raises a serious
contention: that Ms. M[...]’s direct and substantial interest
in the proceedings, coupled with her firm’s
representation of
the applicant, creates a potential conflict of interest. The
suggestion is that the application may not be genuinely
brought on
the applicant’s instruction, but rather motivated by personal
considerations, specifically the alleged discovery
of an
extra marital affair. The respondent relies on clause 3.9 of the
LPC code of conduct, which prohibits legal practitioners
from acting
where their personal interests’ conflict with those of their
client. The principle is clear; the integrity of
representation must
be safeguarded, and practitioners must avoid situations where
personal entanglements compromise professional
judgment.
[33]
Counsel for the applicant
on
the other hand correctly maintains that the application is brought
solely on the applicant’s instruction and that Ms. M[...]’s
representation is proper and professional. He submits that the
allegation of a conflict of interests, premised on speculation about
personal motives is unsupported by evidence. Importantly, it is
irrelevant to the central issue of determination under PIE of whether
the respondent’s occupation is unlawful
.
Moreover, the respondent’s contention does not provide a lawful
ground to dismiss, postpone or set aside the eviction application.
[34]
Counsel contends that the LPC code of conduct governs the
disciplinary relationship between practitioner
and the Council. It
does not confer procedural rights on opposing litigants in civil
proceedings. The respondent is not M[...]’s
client and has no
standing to invoke the code’ s protection. Furthermore, it was
pointed out that the issue is entirely moot.
Ms. M[...]’s firm
has since withdrawn as attorneys of record and the law firm
Brasington Macris Inc. have taken over as attorneys
of record. The
latter firm has no personal interest in the outcome of these
proceedings. Counsel submits, therefore, that this
point in limine
also stands to be dismissed.
Discussion
[35]
The court notes that clause 3.9 of the LPC code of conduct
requires
a legal practitioner to "retain the independence necessary to
enable them to give their clients or employers unbiased
advice".
This independence is a professional duty that ensures the integrity
of the practitioners. When read alongside clauses
3.5 and 3.6, the
framework becomes even clearer: legal practitioners are strictly
prohibited from acting where they hold a direct
and substantial
personal or financial interest that conflicts with their client’s
interests. The language of these provisions
is unequivocal. Where
such conflict arises, the practitioner is not permitted to exercise
discretion; withdrawal is mandatory.
The duty to withdraw in cases of
conflict is not discretionary but mandatory, underscoring the
seriousness with which the profession
regards impartiality.
[36]
The contention by the respondent that Ms. M[...] had a substantial
interest in the matter, and that her representation
thereby creates a
conflict of interest, prima facie appears to be persuasive. However,
upon careful scrutiny of the facts, no such
conflict arises. The LPC
code of conduct prohibits legal practitioners from acting in
circumstances where their personal or financial
interests conflict
with those of their clients. In the present matter, the interests of
Ms. M[...] and the applicant were aligned,
both seeking the eviction
of the respondent. In my view, there was no conflict of interest that
could compromise her professional
independence.
[37]
While it may have been ideal that Ms. M[...] ought not to have
represented her spouse, as such representation
may risk clouding her
judgment, the court notes that this concern was ultimately addressed.
Ms. M[...] has subsequently withdrew
from the matter and this
demonstrates an appreciation of the ethical obligations imposed by
the LPC code of conduct. With her withdrawal,
the potential for
conflict was extinguished. The new attorneys engaged in the matter
hold no personal interest therein. In light
of the withdrawal of Ms.
M[...] and the appointment of new attorneys, the point in limine
alleging conflict of interest is without
merit and stands to be
dismissed. Having dismissed both points in limine, I pause to deal
with the merits of the main application.
The
applicant’s locus standi
[38]
Section 4(1) of PIE provides:
‘
(1)
Notwithstanding
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.’
[39]
“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
”. (
My
emphasis
)
[40]
The onus to prove
locus
standi
for
the institution of these proceedings is on the applicant
(see
Kommissaris
van Binnelandse Inkomste v Van der Heever).
[12]
It
is common cause that the applicant is the registered owner of the
property in question as contemplated in section 1 (the definitions
section) of PIE. This was not placed in dispute by the
respondents. Accordingly, the applicant’s
locus
standi
to
institute these proceedings is established and beyond question.
[41]
Once the applicant’s
locus standi
has been established,
the court is enjoined to undertake a threefold enquiry in determining
whether an eviction order should be
granted
in
terms of PIE:
(a)
First
,
the court must determine whether the respondents possess any extant
legal right to occupy the property. Put differently, the enquiry
is
whether they are lawful occupiers. Should such a right exist, the
application cannot succeed and must be dismissed.
(b)
Second, if no lawful right of
occupation is found, the court must consider whether it is just
and equitable, in all the circumstances, to order
the eviction of the respondents. This enquiry requires a balancing of
the rights
of the registered owner against the personal circumstances
of the occupiers, with due regard to constitutional values.
(c)
Third, if it is held that eviction is just and equitable, the court
must then determine the terms
and conditions upon which such eviction
is to be carried out. This includes consideration of the period
within which the respondents
must vacate and any measures necessary
to ensure fairness in execution of the order. This was reaffirmed in
Transcend
Residential Property Fund Ltd v Mati and Others
.
[13]
Are
the respondents unlawful occupiers?
[42]
Section 1(xi) of the PIE 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
…’
[43]
I
t is trite
that application proceedings are not designed to resolve factual
disputes
but
rather serve to determine legal issues on the basis of common cause
facts.
Whilst
it
is generally undesirable to attempt to decide an application on
affidavit where there are material facts in dispute, it is equally
undesirable for a court to accept all disputes of fact at face value
which would enable a respondent to raise fictitious issues
of fact in
avoidance. It is therefore necessary to scrutinise the alleged
disputes and determine whether they are bona fide or
can be
satisfactorily resolved without the aid of oral evidence.
[44]
From
the outset, it is apparent that in this matter a dispute of facts
exists whether the respondent is in unlawful occupation or
not.
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another,
[14]
Heher JA said the following:
‘
A
real, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports
to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course
be instances where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more
can therefore be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the
averring party and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts alleged are such that
the disputing party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if
they be not true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will genuinely have
difficulty in finding that the
test is satisfied. I say ‘generally’ because factual
averments seldom stand apart from
a broader matrix of circumstances
all of which needs to be borne in mind when arriving at a decision. A
litigant may not necessarily
recognise or understand the nuances of a
bare or general denial as against a real attempt to grapple with all
relevant factual
allegations made by the other party.’
[45]
In
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd,
[15]
it
was held that a real dispute of fact will arise in one of three ways.
Firstly, the respondent may deny one or more of the material
allegations made by the applicant and produce evidence to the
contrary or may apply for the leading of oral witnesses who are not
presently available or who though averse to making an affidavit,
would give evidence if subpoenaed. Secondly, the respondent may
admit
the applicant’s affidavit evidence but allege other facts which
the applicant disputes. Thirdly, the respondent, while
conceding that
he has no knowledge of one or more material facts stated by the
applicant, may deny them and put the applicant to
the proof, and
himself give or propose to give evidence to show that the applicant
and his deponents are untruthful or their evidence
unreliable.
[46]
The general rule is that final relief in motion proceedings may only
be granted if those facts as stated
by the respondent, together with
those facts stated by the appellant that are admitted by the
respondent, justify the granting
of the application, unless it can be
said that the denial by the respondent of the facts alleged by the
appellant is not such as
to raise a real, genuine or
bona
fide
dispute
of fact.
[16]
[47]
In
determining whether a dispute of fact has genuinely been raised on
the papers, the court does not enquire into the merits of
a
respondent’s defence. The enquiry is confined to whether
the respondent’s averments, if established at trial,
would
constitute a defence to the applicant’s claim.
The
court must also consider whether such averments are made bona fide.
This is demonstrated where the deponent seriously and unambiguously
engages with the issues sought to be placed in dispute. Where such
engagement is absent, the court may conclude that the alleged
dispute
is not genuine
.
[17]
[48]
In the present matter, there
is a
serious dispute which has been raised regarding the respondent’s
occupation of the applicants’ property.
The
applicant contends that the respondent breached the tenancy agreement
in that she failed to pay levies and municipal accounts.
Due to the
breach, he cancelled the agreement making the respondent’s
occupation of the property to be without lawful right
or consent,
thereby rendering her presence unlawful. Conversely, the respondent
denies that there was ever an agreement between
the parties and
contends that a universal partnership exists between herself and the
applicant, which, in her view, confers co-ownership
rights in respect
of the property. This universal partnership is of course denied by
the applicant.
[49]
Notably, the reasons advanced by the applicant for the respondent’s
occupation of the property materially
differs from those advanced by
the respondent. The applicant anchors his case on a tenancy
agreement, yet he is unable to specify
the date on which such
agreement was concluded. No explanation was tendered for this
omission.
Furthermore, the applicant does
not dispute the respondent’s allegation that she took
occupation on 8 July 2022. He also fails
to address the lapse of time
between the respondent’s occupation in 2022 and his first
demand that she vacates the property
in June 2024. The intervening
period, extending well over a year, remains unexplained. This silence
is significant, for it undermines
the applicant’s assertion
that the respondent’s occupation is unlawful.
[50]
The respondent, by contrast, maintains that her occupation was
pursuant to a universal partnership, which
she alleges confers
co-ownership rights. While the existence of such partnership is
denied by the applicant, the evidentiary shortcomings
in his version,
particularly the absence of a specified agreement date, the failure
to contest the respondent’s occupation
date, and the
unexplained delay in requiring her to vacate, cast doubt on the
reliability of his account.
[51]
It is my considered view that the applicant
has not been candid in his founding affidavit regarding the true
nature of his relationship
with the respondent, which led to her
occupation of the property. The facts surrounding their relationship
only emerged upon the
filing of the respondent’s answering
affidavit. It was only then that the applicant disclosed aspects of
their relationship,
raising new issues to which the respondent was
unable to reply. This lack of candour, coupled with the applicant’s
failure
to specify the date of the alleged agreement, his omission to
dispute the respondent’s occupation date of 8 July 2022, and
his unexplained delay in requiring her to vacate until June 2024,
undermines the reliability of his version. In my view, the issue
of
whether the respondent is an illegal occupant of the property is
squarely in dispute.
[52]
Regrettably, despite the applicant having been alerted to the
respondent’s contention that
a
dispute of fact exists, he elected to proceed by way of motion.
Upon
consideration of the applicant’s founding affidavit together
with the respondent’s answering affidavit, it is evident
that a
genuine dispute of fact has arisen. Such dispute cannot be resolved
on the papers alone.
[53]
In light of
these findings, the further question of whether eviction
would
be just and equitable in terms of PIE does not arise.
The
prerequisite of unlawful occupation has not been met, and the court
can therefore not engage with the equitable considerations
envisaged
under PIE.
Conclusion
[54]
Having found that a material dispute of facts has been established
which cannot be resolved on papers, the
question
arises as to the proper course that ought to have been adopted in
circumstances.
The
well established principle is that where such a dispute is
reasonably foreseeable, the matter should not be pursued by
way of
motion proceedings. Instead, the applicant ought to have refer the
matter for oral hearing of proceeded by way of action,
thereby
allowing for the resolution of factual disputes through oral evidence
and cross examination.
The
situation was regulated by Uniform Rule 6(5)(g).
Rule
6(5)(g) provides as follows:
‘
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems
meet with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing,
it
may direct that oral evidence be heard on specified issues
with
a view to resolving any dispute of fact and to that end may order any
deponent to appear personally or grant leave for
him or any other
person to be subpoenaed to appear and be examined and cross-examined
as a witness or it may refer the matter to
trial with appropriate
directions as to pleadings or definition of issues, or otherwise.’
(Own emphasis)
[55]
This rule extends a wide discretion to the court.
Where
a material dispute of fact arises on the affidavits and cannot be
resolved without the hearing of oral evidence, the court
is vested
with a discretion as to the future course of the proceedings. In
exercising this discretion, the court may adopt one
of three
alternatives: it may dismiss the application; it may direct that oral
evidence be heard on specified issues in terms of
the rule; or it may
refer the matter to trial. Importantly, the court is not confined to
these remedies alone. It retains the power
to make any order it deems
fit, provided such order is directed at securing a just and
expeditious resolution of the dispute.
[56]
The respondent has requested the matter to be dismissed,
alternatively that it be referred for hearing of
oral evidence. While
it is noted that the applicant ought to have anticipated the material
dispute of fact upon receipt of the
answering paper and not persisted
with motion proceedings, it remains imperative that both parties be
afforded a fair opportunity
to ventilate their respective cases.
Dismissal of the
matter at this stage would have serious repercussions and would not
serve the interest of justice. In the circumstances,
a referral of
this matter to oral evidence would best serve the interests of
justice and ensure an expeditious resolution. The
hearing of oral
testimony will enable the court to properly assess the credibility of
the witnesses and to resolve the factual
disputes that have arisen on
the papers. Once such evidence has been heard, the court will be in a
more informed position to determine
whether the respondent is in
unlawful occupation.
[57]
For the reasons set out above and in
the exercise of the
court’s discretion under Rule 6(5)(g), the matter is
accordingly referred for the hearing of oral evidence.
Order
[58]
In the result, I make the following order:
a)
The respondent’s points in limine are dismissed.
b)
The main application is referred for
the hearing of oral evidence in terms of
Rule
6(5)(g)
,
on the date agreed by the parties or determined by the Registrar,
limited to the determination of whether the respondent is in
unlawful
occupation of the applicant’s property.
c)
Uniform Rule 35 shall apply to
discovery for the purpose of the hearing.
d)
The costs of this application is reserved for determination by the
court hearing the oral
evidence.
YAKE S.
ACTING JUDGE OF THE
HIGH COURT
Appearances
For the Applicant:
Adv. C. Tait
Instructed by:
Brasington Macris Inc.
For the Respondents:
Adv. PS Smit
Instructed
by:
Smit & Hugo Attorneys
[1]
Published
under GenN 168 in GG 42337 of 29 March 2019
[2]
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637
(A);
Absa
Bank
Ltd v Naude NO and Others
[2015] ZASCA 97; 2016 (6) SA 540 (SCA).
[3]
Section
17
of the
Matrimonial Property Act 88 of 1984
.
[4]
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
1972
(4) SA 409
C.
[5]
Ibid
fn 2.
[6]
Ibid
fn 2
para
10.
[7]
Gordon
v Department of Health, KwaZulu-Natal
2008
(6) SA 522 (SCA).
[8]
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
[2017]
ZACC 35;
2018
(1) SA 1 (CC).
[9]
Replying
affidavit para 8 (record page 190).
[10]
Replying
affidavit para 36 (record page 199).
[11]
Ibid
fn 8
paras
[92]-[93].
[12]
1999
(3) SA 1051
(SCA)
para [10].
[13]
2018
(4) SA 515
(WCC)
para [3]
[14]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
para [13].
[15]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T).
[16]
Plascon-Evans
Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 ALL SA 366
(A);
1984 (3) SA 623
(A).
[17]
Ibis
16