Brief Summary

Eviction — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 — Application for eviction of unlawful occupiers — Applicants, as trustees of the registered owner, sought eviction of respondents who had not paid rent since 2019 and whose lease agreements had been lawfully terminated — Court found respondents to be unlawful occupiers without any extant right to occupy the property — It was just and equitable to grant the eviction order as all procedural requirements of PIE were met and no valid defence was raised by the respondents.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an application for eviction brought in the High Court under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The applicants acted in their capacities as the duly appointed trustees of the Falcon Trust, the registered owner of the immovable property concerned.

The first to third respondents were the occupiers of different portions of the property. The fourth respondent was the City (joined for purposes relevant to PIE, including potential engagement regarding alternative accommodation). The respondents appeared in person at the hearing; the second and third respondents delivered answering affidavits, while the first respondent opposed but did not deliver an affidavit, despite a prior postponement granted to enable him to do so.

The dispute arose from the termination of lease arrangements and the respondents’ continued occupation thereafter. The general subject matter was whether the respondents were unlawful occupiers under PIE and, if so, whether eviction would be just and equitable, including the determination of appropriate dates and conditions for vacating and enforcement.

2. Material Facts

It was common cause that the Falcon Trust, represented by the applicants as trustees, was the registered owner of the property situated at 1[...] V[...] Road, Southfield, Cape Town (Erf 7[...]) (“the property”). The property had previously been informally divided into three portions, each occupied by one of the first to third respondents under lease arrangements concluded with the Trust.

Each respondent had concluded a written lease with the Trust (the first respondent in June 2007; the second in March 2011; and the third in July 2010). The leases contained provisions regarding rental and annual escalation, restrictions on subletting without written consent, obligations of upkeep, and cancellation rights in the event of non-payment. After termination by effluxion of time, the leases continued on a month-to-month basis.

The Trust alleged (and relied upon) that the respondents had not paid rental since about 2019, and that the respondents had accumulated substantial arrears. The Trust stated that the respondents had used a dispute concerning the availability of water on the premises as a reason for paying no rental. The Trust also indicated an intention to redevelop the property through formal subdivision and construction, including substantial demolition of an existing dwelling said to be in significant disrepair and a health hazard. The Trust relied on the redevelopment intention as part of the background to termination and the need to recover possession.

On 14 September 2021, the Trust’s attorneys addressed correspondence to the respondents terminating the month-to-month leases on notice and calling upon them to vacate. The court treated this as constituting formal termination and as clearly alerting the respondents that they had no right of continued occupation beyond the termination date. A further factual component was that the second and third respondents attended a meeting with the Trust’s attorneys on the same date and, following that meeting, agreed to vacate; the third respondent in particular confirmed in writing an intention to vacate by April 2022.

The respondents’ opposition centred on a contention that they had suffered harm arising from the water situation and that they considered this to justify their refusal to pay rent, in substance advancing what the court characterised as a damages dispute with the Trust. The court recorded that a damages claim in respect of rental owing was being prosecuted in the magistrates’ court, and treated that forum as the appropriate place for ventilation of the water dispute and any counterclaim.

On the “just and equitable” enquiry, the court had limited information about the respondents’ personal circumstances. The first respondent, without affidavit evidence, stated in court that he had minor school-going children and was concerned about obtaining accommodation near their school. The court noted that the first respondent had erected a Wendy house and a caravan on his portion from which he derived rental income. The second respondent disclosed that he lived with his spouse and four dependents, had been on the property for 11 years, and indicated in court that he was employed; his City form was incomplete and did not disclose income. The third respondent disclosed that he lived with his spouse and three dependents, had lived there for 12 years, had two minor children, and described himself as self-employed without disclosing earnings; he did not indicate on the City form that eviction would render him homeless.

The City delivered an affidavit indicating that to assess eligibility for assistance or emergency accommodation, the personal circumstances of occupiers had to be properly disclosed. The first respondent did not complete the requisite form, and the second and third respondents provided incomplete information, leaving the City unable to provide a comprehensive report. The court further recorded that the respondents did not set out what steps they had taken to source alternative accommodation, and that none had approached the City to request emergency accommodation.

3. Legal Issues

The court was required to determine, first, whether the applicants had established locus standi to bring eviction proceedings under PIE as “owners” or “persons in charge” of the land. This was principally a legal question, turning on statutory definitions and proof of ownership.

Second, the court had to decide whether the respondents were unlawful occupiers as defined in PIE, which required determining whether they occupied without the express or tacit consent of the owner or without any other right in law. This involved the application of law to fact, particularly whether the lease agreements had been lawfully terminated and whether any defence maintained a right of occupation.

Third, assuming unlawful occupation, the court had to decide whether eviction would be just and equitable under PIE after considering all relevant circumstances, including vulnerability, duration of occupation, and the availability of alternative accommodation. This inquiry required a structured value judgment guided by statutory factors and constitutional considerations, including the balancing of occupiers’ housing-related interests with the owner’s proprietary rights.

Finally, if eviction was justified, the court had to determine a just and equitable date for vacating and the date on which the eviction order could be executed, together with any ancillary directions (such as authorising the sheriff and SAPS assistance) and costs.

4. Court’s Reasoning

On locus standi, the court emphasised that the onus rested on the applicants to prove standing, and that PIE authorises eviction proceedings by an “owner” or “person in charge”. Because it was common cause that the Falcon Trust was the registered owner of the property and the applicants were its trustees acting in that capacity, the court held that the applicants’ standing was established and not reasonably in dispute.

On whether the respondents were unlawful occupiers, the court approached the matter in light of PIE’s definition and the general principle that an owner is entitled to possession and to an ejectment order against unlawful occupiers, subject to constitutional and statutory limitations. The court then considered the contractual footing for occupation. It accepted the Trust’s account that the fixed-term leases had continued on a month-to-month basis and that the Trust had, through correspondence (particularly the letter of 14 September 2021), terminated the month-to-month leases on notice. In the court’s assessment, the respondents therefore lacked any contractual right to remain in occupation after termination.

The court treated the respondents’ reliance on the water dispute as not constituting a defence to the eviction claim. It reasoned that the eviction application did not require an investigation into damages claims between landlord and tenant, and that the water dispute could be ventilated in the appropriate forum, particularly where related rental/damages litigation was already being pursued in the magistrates’ court and where the respondents could institute a counterclaim if so advised. On that basis, the court concluded that there was no legally cognisable defence maintaining the respondents’ right to occupy.

On the “just and equitable” enquiry, the court applied the structure under PIE, noting that where occupation has persisted for more than six months, section 4(7) requires regard to factors including vulnerability (children, elderly persons, disabled persons, and female-headed households), the duration of occupation, and the availability of alternative accommodation from the municipality or other organs of state where occupiers cannot provide accommodation for themselves. The court also referenced section 4(8), which requires the granting of eviction where statutory requirements are met and no valid defence is raised, coupled with the setting of just and equitable dates.

The court underscored that while vulnerability and hardship must receive careful attention, the balancing exercise cannot operate so as to deprive a private owner of property arbitrarily or indefinitely, and that private owners are not generally burdened with the constitutional obligation to provide housing to others. It relied on appellate authority indicating that private owners may be required to tolerate some delay or suspension of possession to accommodate immediate needs, but that interference with proprietary rights is confined to exceptional circumstances.

Turning to the facts, the court found that the respondents placed scant information before it to justify continued occupation. The first respondent failed to provide affidavit evidence and did not complete the City’s form; the second and third respondents furnished incomplete disclosure to the City. The court treated the lack of detail about income, health, support networks, and efforts to secure alternative accommodation as significant, particularly where the essential concern raised by the respondents (including schooling) required a factual basis to evaluate the risk of homelessness or disproportionate hardship.

The court placed weight on the respondents’ failure to explain what steps they had taken to find alternative accommodation within their means, and it accepted that the City had identified possible emergency accommodation options, but that the respondents had not informed the City that such accommodation was required. It also considered that the respondents had been aware for an extended period of the Trust’s intention to redevelop and had had months to make alternative arrangements, including after indicating willingness to vacate.

In balancing the parties’ interests, the court accepted the Trust’s position that it had not received rental for a prolonged period, that the Trust could not continue subsidising the occupation, that the trustees owed duties to act in the interests of beneficiaries, and that redevelopment would be frustrated indefinitely if occupation persisted. The court concluded that no circumstances had been established that would render eviction inequitable.

On the appropriate timing, the court exercised its discretion to afford the respondents more time than sought by the Trust, expressly because of the respondents’ concerns about children’s schooling and the period of unlawful occupation. The court’s approach was to mitigate hardship through the choice of dates, rather than to refuse eviction.

On costs, the court applied the ordinary principle that costs follow the event, holding that the respondents had not made out a case to justify refusal of relief or delay of the Trust’s vindication.

5. Outcome and Relief

The court granted an eviction order directing the first, second and third respondents, and all those holding under them, to vacate the premises by 31 March 2023. It further ordered that, failing vacatur by that date, the Sheriff was authorised and directed to evict the respondents and other persons from the premises, and that the Sheriff was authorised to employ the services of the South African Police Service if necessary to effect removal.

The court ordered the respondents to pay the costs of the application jointly and severally, on the party-and-party scale.

Cases Cited

Transcend Residential Property Fund Ltd v Mati and Others 2018 (4) SA 515 (WCC)

Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA)

Wormald NO and Others v Kambule 2006 (3) SA 563 (SCA)

Brisley v Drotsky 2002 (4) SA 1 (SCA)

Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA)

Mainik CC v Ntuli and Others [2005] ZAKZHC 10 (25 August 2005)

Modderfontein Squatters, Greater Benoni CC v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources Centre, Amici Curiae); President of the RSA v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA)

City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA)

Patel N.O. and Others v Mayekiso and Others (WCC 3680/16, delivered on 23 September 2016)

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Constitution of the Republic of South Africa, 1996 (section 26(3); section 9)

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The applicants, as trustees representing the registered owner of the property, had established locus standi under PIE to seek eviction.

The lease agreements had been lawfully terminated, with the result that the first to third respondents had no extant right in law to occupy the property and were unlawful occupiers for purposes of PIE.

The respondents’ reliance on a dispute concerning water supply and a purported damages claim did not constitute a defence to eviction proceedings under PIE, particularly where such disputes could be pursued in other proceedings.

After considering the limited information provided regarding personal circumstances, the duration of occupation, the lack of demonstrated efforts to secure alternative accommodation, and the proprietary interests of the Trust, eviction was found to be just and equitable, subject to a date allowing additional time to vacate.

LEGAL PRINCIPLES

PIE eviction proceedings involve a structured enquiry in which the court determines whether the applicant has standing, whether the occupier is an unlawful occupier, whether eviction is just and equitable, and, if so, the terms and dates of eviction.

An owner is generally entitled to possession and to an eviction order against unlawful occupiers, subject to constitutional and statutory limitations, including PIE’s requirement that eviction occur only by court order after consideration of all relevant circumstances.

A dispute framed as a damages claim or grievance arising from the landlord–tenant relationship (such as alleged deficiencies in services) does not, without more, constitute a defence establishing a continuing right of occupation in an eviction application under PIE.

In assessing whether eviction is just and equitable, the court must consider statutory factors such as vulnerability and the availability of alternative accommodation, while also recognising that private owners are not ordinarily required to provide housing indefinitely and may be required only to tolerate limited delay in exceptional circumstances.

Occupiers who assert that eviction would render them homeless bear an evidentiary responsibility to place sufficient facts before the court, including information relevant to their circumstances and efforts to obtain alternative accommodation within available resources.

Van Der Valk N.O and Others v Johnson and Others (20449/2021) [2023] ZAWCHC 20 (30 January 2023)