THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 446/2020

In the matter between:
WILLEM GROBLER

APPELLANT
and
CLARA PHILLIPS

FIRST RESPONDENT
JOHAN VENTER NO

SECOND RESPONDENT
HELDERBERG MUNICIPALITY
THIRD RESPONDENT

Neutral citation: Grobler v Phillips and Others (446/20) [2021] ZASCA
100 (14 July 2021)
Coram:
PETSE DP, DLODLO and MOCUMIE JJA and
PHATSHOANE and GOOSEN AJJA
Heard:

6 MAY 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 10h00 on 14 July 2021.

Summary:
Prevention of Illegal Eviction and Unlawful Occupation of
Land Act 19 of 1998 – relationship with Extension of Security of Tenure of
Land Act 62 of 1997 – onus to establish that evictee is an unlawful occupier
– oral right to reside on property for life conferred by previous owner not
constituting habitatio – right of occupation terminated – occupier aged widow
living with disabled son – not just and equitable to grant an eviction order –
appeal dismissed.

ORDER

On appeal from:  The Western Cape Division of the High Court, Cape Town
(Le Grange and Wille JJ sitting as court of appeal):
1.
The appeal is dismissed.
2.
The appellant is directed to pay such disbursements as may have been
incurred by the first respondent’s attorneys in preparing for the appeal.

JUDGMENT

Goosen AJA (Petse DP and Dlodlo and Mocumie JJA and Phatshoane
AJA concurring):
Introduction
[1] No case in which an order of eviction from a residence is sought can
ignore the visceral reality of what is sought, namely the ejectment of a person
from their home in vindication of a superior right to property. Nor can the
legal process by which the order is obtained be divorced from our fraught
history of eviction and ejectment of vulnerable persons from their homes. It
is to this visceral reality that our Constitution addresses itself in s 261, and in
this context that relevant legislation is to be interpreted and applied.

1 Constitution of the Republic of South Africa, 1996.

[2] This matter is no different. At issue is the question whether an 84 year
old widow and her disabled son ought to be evicted from a home she has lived
in since she was 11 years old. Also at issue is whether the appellant’s rights
of ownership of the property in question ought to be vindicated by such an
eviction order.

[3] The appellant, Mr Willem Grobler, brought an application for eviction
against Ms Clara Phillips and Mr Johan Venter, the first and second
respondents (the latter in his representative capacity) in the Magistrates’ Court
at Somerset West. The application was referred to trial. The magistrate, at the
conclusion of the trial, granted an order of eviction. On appeal to the Western
Cape Division of the High Court (the high court), the order of eviction was
set aside and replaced with an order dismissing the action. The appeal to this
Court is with its special leave. The President of this Court requested the
appointment of counsel as amicus curiae to address the legal issues raised in
the appeal on behalf of the respondents, who were at that stage unrepresented.
We are grateful to all counsel for their submissions which were of assistance
to the Court.

[4] The appeal raised several issues. The first concerned the interrelation
between the Prevention of Illegal Evictions and Unlawful Occupation of Land
Act, 19 of 1998 (PIE) and the Extension of Security of Tenure Act, 62 of 1997
(ESTA) and the application of the latter Act to the matter. The second
concerned the effect, if any, of reliance upon an oral right of habitatio or usus
upon the entitlement of an owner to an order of eviction in terms of ESTA or
PIE. The third issue concerned the determination of whether, notwithstanding

the unlawful occupation, it would be just and equitable to grant an order of
eviction.

Background
[5] The appellant is the registered owner of erf 14611, Somerset West (the
property). He purchased the property at a public auction and it was registered
in his name on 15 September 2008. It is common cause that the first
respondent (Mrs Clara Phillips), who is now an 84-year-old widower,
occupies a residential house on the property together with her son, Adam
living with disabilities. The second respondent is the duly appointed curator
representing the son. It is also common cause that the first respondent has
resided in the house on the property since 1947 when she was 11 years old,
when she lived on the property with her parents. The property formed part of
a much larger farm at the time. When she married her late husband, who was
employed on the farm, she continued to occupy the house. I shall return to the
narrative of her occupation of the property hereunder when dealing with the
history of the property. Following the appellant’s purchase of the property,
the appellant met with the first respondent to arrange that she vacate the
property.

[6] The appellant admitted that he was informed that a previous owner of
the property had granted to the first respondent a lifelong right of occupation
of the property. The appellant requested a copy of the agreement. When this
was not furnished, the appellant then gave the first respondent notice to vacate
the property on or before 31 January 2009. When the first respondent did not
vacate the property, the appellant launched an application in the Magistrates'
Court, Somerset West, for eviction of the first respondent in terms of PIE. The

application was referred for the hearing of oral evidence. At the conclusion of
the trial on the issues the magistrate granted an order evicting the first
respondent.

[7] On appeal to the high court the respondents raised a new issue as an
alternative ground of appeal, namely that the first respondent was an occupier
as defined by ESTA; that the provisions of ESTA accordingly applied and that
the appellant could not obtain an order other than in terms of ESTA.

[8] The high court upheld the appeal and set aside the order of eviction.
The high court came to this conclusion upon three bases. The primary basis
was that the appellant had not established that the first respondent was an
unlawful occupier as defined by the PIE Act. The appellant was accordingly
not entitled to an order of eviction as obtained from the Magistrates’ Court.
The second basis was founded upon the first respondent’s contention that the
provisions of ESTA applied. In this regard, the high court took the view that
the first respondent was entitled, on appeal, to raise that as a new issue. It held
that the appellant had not, on the evidence before it, discharged the onus to
establish that ESTA did not apply. Accordingly, no order of eviction or
ejectment could be issued except in terms of ESTA. The eviction order
obtained was accordingly not properly issued. The third basis upon which the
high court relied was an overarching one upon the assumption that ESTA did
not apply and that the first respondent was indeed an unlawful occupier. It
held that, taking into account the advanced age of the first respondent; the
period for which she had been resident on the property; and that her household
was also occupied by a disabled dependent, it would not be just and equitable
to grant an eviction order.

[9] Before this Court, the appellant argued that the high court was wrong
to allow the first respondent to advance a new case on appeal. By doing so
significant prejudice was occasioned to the appellant, since the appellant
could not adduce evidence to meet the argument relying upon ESTA at such
late stage in the proceedings. The appellant argued that, in any event, reliance
upon the application of ESTA ought not to have been countenanced. The
parties had entered into a pre-trial agreement in which they had agreed that
the case was to be adjudicated on the basis that PIE applied. For this reason,
so it was submitted, the first respondent was precluded from asserting that
ESTA applied.

[10] In regard to whether the requirements of PIE had been met, it was
submitted that the appellant had given the first respondent due notice
terminating her right of occupation and rendering her continued occupation
unlawful. The appellant had, in addition, offered the first respondent
alternative accommodation. On this basis, no impediment existed to preclude
an eviction order. At the hearing of the appeal the appellant re-iterated the
offer to provide suitable alternative accommodation to the first respondent.

The facts
[11] As already mentioned, the appellant is the registered owner of the
property. He purchased the property at a public auction and it was registered
in his name on 15 September 2008. The previous owner was Quickcon
Development (Pty) Ltd (Quickcon) which had been placed in liquidation.

[12] The history of the property is as follows. On 22 March 1939 Portion 36,
Lot F of the farm Parel Vallei was transferred from its then-owner Mr Purdan,

to Mr John Ince. He was the registered owner of the farm upon which the first
respondent came to reside with her parents when she was 11 years old in 1947.
Mr John Ince transferred the farm to a Mr Rex Ince in 1969. At some stage
prior to 1991 Portion 36, Lot F of the farm Parel Vallei came to be designated
as erf 7124. Whether this was a portion of the farm or the whole of it, is not
apparent from the record. During this period the transfer of erf 7124 was
effected to a Mr Daniels.

[13] In 1991, a Mr Rack purchased erf 7124 from Boland Bank. It is
unknown why this occurred but it may be surmised that Boland Bank held a
mortgage bond over the property. Mr Rack confirms, by way of affidavit, that
the first respondent and her husband were renting the property at the time
having been given a life right to occupy the property by the previous owners.
He was aware of this right and considered himself bound thereby.

[14] On 13 February 2001, Mr Rack sold and transferred a portion of erf
7124 to Quickcon. This portion was registered as erf 14421 and was held
under title deed 797747/2001. It appears that Quickcon subdivided erf 14421
into several erven for development purposes. This is reflected in a subdivision
diagram issued by the Surveyor-General, SG 4613/2002. One of the
subdivided erven – erf 14611 – is the property on which the first respondent
resides. It is this property which was acquired by the appellant by public
auction in 2008.

[15] This outline of the history of the property illustrates a process of
subdivision of the original farmland into erven over time. The first respondent
resided on the farm throughout this process.

The issues
[16] The first key issue raised on appeal concerns the propriety of the high
court allowing the respondent to raise a new issue on appeal. This concerned
the contention by the first respondent that she is an occupier as defined by
ESTA. The second issue concerns the question whether the appellant had
established that the first respondent was an unlawful occupier within the
meaning of the term as envisaged by PIE. This issue turns on the notice of
termination of occupation given to the first respondent. It also concerns the
broader question of compliance with the requirements for eviction as set out
in PIE.

[17] The third issue related to the exercise of the high court’s discretion not
to order the eviction of the first respondent on the basis that such an order was
not just and equitable. At issue in this regard was the nature of the discretion;
this Court’s entitlement to interfere with the exercise of that discretion and, to
the extent it may, whether grounds for interference had been established.

The new issue on appeal
[18] The first respondent raised the question regarding the application of
ESTA on the eve of the appeal hearing before the high court. In essence, she
contended as a further ground of appeal, that the appellant had not established
that ESTA does not apply.

[19] The high court allowed the first respondent to rely upon the point. In
doing so, it characterized it as, essentially, a point of law. The high court,
however, allowed the appellant to file a set of affidavits to present such

evidence as it wished to address the issue. No affidavits were filed on behalf
of the first respondent.

[20] It was common cause that the action before the magistrate was
prosecuted on the basis that the provisions of PIE applied. The appellant's
cause of action was formulated on that basis. It was also common cause that
the parties had, at a pre-trial meeting, agreed that the matter be adjudicated on
the basis that PIE was applicable.

[21] Based on this, the appellant took the view before the high court and this
Court that both courts were bound by such agreement. The appellant further
argued that the high court ought not to have allowed the issue because the
appellant would be severely prejudiced. Had the issue been raised before the
trial court, the appellant would have presented evidence, including that of an
expert conveyancer to establish from the history of the property that ESTA
did not apply.

[22] Section 1 of 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, 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 31 of
1996).’ (My emphasis.)

[23] In terms of s 2 of PIE, the Act applies to all land throughout the
Republic. In terms of s 4(1) of PIE the provisions of that section apply to
proceedings by an owner or person in charge of land for the eviction of an
unlawful occupier.

[24]  Section 1 of ESTA defines an occupier as:
‘a person residing on land which belongs to another person, and who has on 4 February
1997 or thereafter had consent or another right in law to do so, but excluding . . .’.

[25] The exclusions provided for in the definition are not relevant in the
present matter. The relevant portions of s 2 of ESTA provide as follows:
‘(1) Subject to the provisions of section 4, this Act shall apply to all land other than land in
a township established, approved, proclaimed or otherwise recognised as such in terms of
any law, or encircled by such a township or townships, but including—
(a) any land within such a township which has been designated for agricultural purposes in
terms of any law; and
(b) any land within such a township which has been established, approved, proclaimed or
otherwise recognised after 4 February 1997, in respect only of a person who was an
occupier immediately prior to such establishment, approval, proclamation or recognition.
(2) Land in issue in any civil proceedings in terms of this Act shall be presumed to fall
within the scope of the Act unless the contrary is proved.’

[26] It is trite that an owner or person in charge of land who wishes to evict
another person who resides on that land must comply with s 26(3) of the
Constitution. That section requires that a court order first be obtained. It also
provides that legislation may not permit arbitrary evictions. The principal
legislation regulating eviction from land is PIE.

[27] PIE serves to regulate evictions from ‘all land’ in the Republic. It does
so by prescribing its application only to ‘unlawful occupiers’ as defined and
sets out both procedural and substantive safeguards to avoid arbitrary eviction.
Finally, it provides that the court dealing with an eviction must be satisfied
that the eviction is just and equitable.

[28] A party relying on PIE must bring its case for eviction within the ambit
of its provisions. It bears an onus to establish, as an essential jurisdictional
requirement, that the person sought to be evicted is an unlawful occupier. This
means that it must be established that the occupier is not an occupier as
defined by ESTA.2 This much is clear from a reading of the plain language of
PIE read with ESTA.  In the light of this, the ‘new issue’ on appeal was,
properly considered, a point of law which could be raised on appeal,
notwithstanding that it was not raised before the magistrates’ court. The high
court was accordingly not in error to allow the issue to be raised on appeal.
Insofar as the raising of the new point constituted a defence not fully
canvassed by the evidence, the high court permitted the appellant to file
further affidavits to present such evidence as was considered germane to the
new issue.  I will return to this aspect hereunder.

Was the high court precluded from adjudicating the new issue on the basis of
the pre-trial agreement?
[29] As indicated earlier in this judgment, the appellant proceeded on the
basis that PIE applied. An oral pre-trial agreement, which was brought to the
magistrate’s attention at the commencement of the trial, was concluded
between the parties. According to the appellant, it was agreed that the matter
would be adjudicated on the basis that the provisions of PIE were of
application.

2 See Isaacs and Others v City of Cape Town and Another [2018] 1 All SA 135 (WCC) at para 32.

[30] Before this Court it was argued that the terms of the agreement
precluded the respondents from relying on the provisions of ESTA. They were
bound by the agreement, as were the high court and the magistrates’ court.

[31] The answer to this contention is twofold. In the first instance, the terms
of the agreement, as presented on the record, are by no means clear. It is not
apparent that it amounts to anything more than that the parties agree that the
formal requirements of PIE have been met and that the court is to deal with
the substantive questions on the basis of PIE. It is certainly not clear that there
was an express agreement that the provisions of ESTA do not apply. In any
event, it certainly was the case that a principal dispute between the parties
throughout the trial remained the question whether the first respondent was an
unlawful occupier. Accordingly, it remained for the appellant to prove that the
first respondent was an unlawful occupier as provided by PIE. It appears from
the magistrate’s judgment that he did not understand the pre-trial agreement
to mean that ESTA was irrelevant. Had he done so, there would have been no
cause to refer to ESTA in his judgment in the following terms:
‘We can also at this stage exclude and accept the extension – that the extension of security
of 10 year Act of 1997 (sic) does not apply in the circumstances, due to the subdivision of
the farm in 2001, although at this stage in the proceedings, I must note that I have special
regard and specific regard to the spirit of the extension of security of 10 year Act of 1997,
given the history of the matter and it is against this background, that the matter was then
argued not only on the papers, but also with the leading of oral evidence.’3

[32] The second answer is determinative. Section 25(3) of ESTA provides
that no waiver of rights conferred by ESTA shall be of any force or effect

3 I have reproduced the passage as it appears in the record without correcting obvious errors that arose in
the transcription of the orally presented judgment.

unless reduced to writing. There are obvious reasons for such a requirement.
ESTA seeks to protect identified vulnerable groups of persons from eviction.
Such vulnerable groups include: persons who, for historical reasons, are
illiterate or undereducated; and, marginalised persons who do not enjoy access
to the resources to protect their rights. The only basis upon which it could be
found that the pre-trial agreement precluded consideration of the provisions
of ESTA, is if that agreement constituted a valid waiver of rights in terms of
ESTA. The pre-trial agreement, such as it is, does not meet this threshold.

Does ESTA apply?
[33] The high court, having considered the evidence presented by the
appellant in its additional affidavits, came to the conclusion that the evidence
does not discharge the onus which rests upon a party seeking an eviction in
terms of PIE, to establish that ESTA does not apply. This finding was one
made in conjunction with a further finding, namely that the appellant had
failed to establish that the first respondent was an unlawful occupier by reason
of the termination of her right to occupation of the property.

[34] It was argued before this Court that the high court was incorrect to find
that the appellant had failed to discharge the onus. The evidence which was
presented by the appellant was not challenged by the first respondent who, it
was submitted, had elected to file no answer thereto. Since it was not disputed,
the facts alleged by the appellant ought to have been accepted.

[35] The undisputed facts established that the property in question, as its
history indicates, came to be incorporated into a township by no later than
1991, when its status as a erf was registered in the land register. This, coupled

with the assertion by the appellant that the land ceased to be farm land
progressively over time as urban development extended around it, ought to
have persuaded the high court that the land was urban in character and that
the exception in s 2(1)(b) of ESTA does not apply, since the cut-off date
provided for therein is 4 February 1997. The high court considered that the
assertion, contained in the appellant’s founding affidavit, to the effect that the
farm had, decades earlier, developed into a highly developed residential area
was insufficient to discharge the onus.

[36] Even taking into account the presumption provided for in s 2(2) of
ESTA, I am not persuaded that the high court was correct to conclude that the
onus was not discharged. I accept that the evidence presented by the appellant
may be lacking in cogency. It is certainly open to criticism, inasmuch as it is
not apparent upon what basis the appellant is able to assert an interpretation
of the objective evidence. Quite possibly that might only fall within the
province of an expert in conveyancing or in town planning. There is, however,
the evidence that urban development had occurred over a protracted period
and that the land in question in this application had been encircled by such
urban development since 1991. These are factual averments with which the
first respondent did not join issue, notwithstanding that she sought to rely
upon the interrelationship between ESTA and PIE. In the absence of challenge
they ought to have been accepted. These averments, read together with the
objective evidence, establish a balance of probability in favour of finding that
s 2(1)(b) of ESTA does not apply. In the circumstances the high court erred
in finding that the appellant did not discharge the onus of establishing that
ESTA does not apply.

Unlawful occupier
[37] The high court found that the first respondent was not an unlawful
occupier, as required for an order of eviction in terms of PIE. It made this
finding on the basis that the period of notice given to the first respondent to
vacate the property was not a reasonable period.

[38] The high court’s reasoning on this aspect is difficult to follow. It accepts
that prior to notice being given the appellant entered into discussions with the
first respondent regarding her continued occupation of the property. It
accepted that in these discussions the appellant signified that he was prepared
to arrange alternative accommodation for the first respondent. Yet, these
interactions, the time that elapsed from then to when formal written notice to
vacate was given, and the period that elapsed from the end of the period of
notice to the issuing of legal proceedings were not taken into consideration.

[39] In my view, the high court approached the issue upon an incorrect basis.
The appellant signalled, clearly and unequivocally, his intention to terminate
the first respondent’s right to occupy the property. He withdrew his consent
for first respondent’s continued occupation. Accepting, for the sake of
argument, that he was entitled to do so, the time period within which to vacate
is relevant only to the granting of an eviction order in those circumstances. If
the period is a reasonable one, then the owner may approach a court for an
eviction order. The occupation is rendered unlawful by the termination of the
right of occupation, since it is such notice which withdraws the express or tacit
consent to occupy.

The oral life-right

[40] In resisting the eviction order the first respondent asserted ‘[an]other
right in law to occupy the land’, namely an oral right of occupation of the
property for life, conferred upon her and her late husband by a previous owner
of the property. She explained that her husband had worked for a previous
owner, Mr Ince. Mr Rack, a subsequent owner, had expressly agreed that she
and her husband would be entitled to live in the house upon the property for
the rest of their lives.

[41] The appellant did not dispute that such a ‘right’ had been conferred
upon the first respondent. He denied however, that it was enforceable against
successive owners, more particularly himself, since it was not reduced to
writing and registered against the title deeds of the property. The ‘right’ was
accordingly not one of habitatio which would preclude a termination of the
right of occupation.

[42] The magistrates’ court found in favour of the appellant. The high court
did not, in terms address this aspect. Before this Court counsel for the first
respondent did not pursue reliance upon the existence of a right of habitatio.
It was accepted that the right, conferred by Mr Rack and in respect of which
there was objective evidence to be found in a subsequent deed of sale of the
property, had not been reduced to writing and had not been registered against
the title deed. To qualify as a right of habitatio enforceable against successors
in title this was required.4

4 See Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16; Janse van Rensburg and
Another v Koekemoer and Others 2011 (1) SA 118 (GSJ) para 19.

[43] In the light of this it is unnecessary to deal with this aspect. The
assertion of a life-right, did not preclude the termination of the first
respondent’s right of occupation. Nevertheless, the fact that she and her
husband were granted an oral right of occupation of the property for life
remains a relevant consideration in relation to whether it would be just and
equitable to grant an eviction order or within what period such eviction order
ought to be carried into effect.5

[44] There are two reasons. The first, and perhaps obvious reason, is that all
facts must be taken into account when deciding what is just and equitable. The
second is that considerations of what is just and equitable may persuade a
court not to evict a person who is found to be in unlawful occupation.6 As I
have said, it was not disputed that the first respondent and her husband were
given the right to occupy the property for the rest of their lives. It was also not
in dispute that some, if not all, of the previous owners were aware of this right
and were prepared to honour it. The first respondent believed, albeit
incorrectly, that the right protected her from eviction and she continued to
occupy the property in this belief. She can hardly be expected to have known
that her right was precarious inasmuch as it had not been reduced to writing
and registered against the title deeds of the property.  The fact is that she lost
the absolute protection against eviction precisely because she was unaware
that she needed to take further legal steps to ensure that her rights were
enforceable against successors in title.

5 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others [2012] ZASCA 116; [2013] 1 All SA 8
(SCA); 2012 (6) SA 294 (SCA) para 12.
6 Ibid at 302 fn 22.

A just and equitable order
[45] This brings me to the essential basis of the high court’s judgment,
namely its finding that it would not be just and equitable to grant and order of
eviction. It considered this aspect on the assumption that the first respondent
was an unlawful occupier in terms of PIE. Since I have found that the high
court was wrong to conclude that the first respondent was not an unlawful
occupier, it is necessary to deal with this finding.

[46] In coming to the conclusion that it would not be just and equitable to
grant an eviction order, the high court took into consideration several factors.
Among these was the length of time (over seven decades) that the first
respondent had been in occupation of the property; the first respondent’s
advanced age; and the fact that she occupied the property with her disabled
son, Adam. The high court also considered the purpose for which the appellant
had acquired the property and what he intended to do with it.

[47] Before this Court it was argued, on behalf of the respondents, that when
a court exercises its discretion as to what is just and equitable, it exercises a
true discretion. Accordingly, a court on appeal will not readily interfere. It
will only do so if it is satisfied that the discretion was wrongly exercised or
exercised upon a wrong principle.

[48] Whether, in the context of an eviction order, the discretion to determine
what is just and equitable consists of a ‘true’ discretion or not, need not be
decided. That is so because even if the discretion is of the more limited kind,
there is, in my view, no basis to interfere. The high court was entitled to

exercise a discretion even though the occupation was unlawful.7 There was
therefore no misapplication or misdirection. There is also no discernible
misdirection in relation to the facts relevant to the exercise of that discretion.

[49] It bears emphasis that the first respondent has been in occupation of the
property since she was 11 years old. She is now (at the time of this appeal),
84 years old. Until 2009 her continued occupation was entirely secured, by
reason of the consent of successive owners some of whom accepted that she
had been given a lifelong right of occupation and were prepared to honour it.
During the greater part of her occupation the property formed part of a farm.
Gradually, and in circumstances beyond her control, the farm became
absorbed by the growth of urban developments.  Until 1991, when the
remaining portion of what was previously farmland, was encircled by urban
development, the first respondent would undoubtedly have enjoyed the
protection of ESTA.  While she may have lost the absolute protection
conferred by s 2(1)(b) read with s 8(4) of ESTA8 as a vulnerable person, her
status as a vulnerable person, even in the context of PIE, has essentially
remained unchanged.

[50] These are very weighty considerations. In my view, they outweigh the
protection of the exercise of the right to property that an entitlement to an
order of ejectment provides. PIE recognises that in appropriate circumstances

7 See fn 4 above. See also Baron and Others v Claytile (Pty) Ltd and Another 2017(4) SA 108 (LCC) para
14; Occupiers of erven 87 & 88 Berea v De Wet N O and Another [2017] ZACC 18; 2017 (8) BCLR 1015
(CC); 2017 (5) SA 346 (CC) paras 44-47.
8 The section provides, inter alia, that the right of residence of an occupier who has resided on the land for
10 years and has reached the age of 60 years may not be terminated, save in specified circumstances set out
in s 10 of ESTA.

the right to full exercise of ownership must give way, in the interest of justice
and equity, to the right of vulnerable persons to a home.

[51] This is such a case. Indeed, it is difficult to conceive that the
circumstances of this case would not justify a refusal of an order of eviction
in the interests of justice and equity. In my view, the high court was correct to
find that an order of eviction ought not to have been granted by the
magistrates’ court.

Alternative accommodation
[52] It is necessary to deal briefly with a tender, made by the appellant at the
hearing of the appeal, to provide the respondents with suitable alternative
accommodation. The tender was made from the bar by way of a ‘renewal’ of
an earlier tender to similar effect.

[53] It was pointed out by counsel for the first respondent that, at the time
of the appeal hearing before the high court, there was no extant tender to
provide suitable alternative accommodation to the respondents. At a much
earlier stage of the litigation such a tender was made but since it was not
accepted by the first respondent it had fallen by the wayside.

[54] In order to facilitate consideration of the tender, the appellant was
allowed an opportunity to formulate a tender based upon an investigation of
the availability of accommodation and to present same to the respondents for
their consideration. The appellant was given an opportunity to file an affidavit
detailing his offer and the respondents’ response thereto.

[55] Subsequent to the hearing an affidavit was filed, to which were annexed
documents detailing properties that were considered and correspondence
between the parties. It is not necessary to set out the nature of the offer. It
suffices to note that the appellant offered to purchase a unit in a secure
complex in the area of Somerset West which would be transferred into the
name of the first respondent.  The first respondent indicated that she did not
accept the offered accommodation as a suitable alternative. She was
accustomed to life in the house she presently occupied and enjoyed not only
the freedom and space it afforded her but also the environment around it.

[56] Whilst I accept that the appellant’s offer, now made, was made in good
faith and in recognition of the obviously adverse effects that ejectment of the
first respondent would bring about, I do not consider that it tilts the scales in
favour of granting an order of ejectment subject to the first respondent being
accommodated as proposed. Such an order would clearly be one made
contrary to the first respondent’s wishes and would amount to no less than
compelled ejectment notwithstanding the overriding considerations of justice
and equity referred to above.

[57] This was not a case in which the reasonableness or otherwise of an
unlawful occupier’s refusal to vacate was a central issue. The question arose
tangentially and belatedly. The true issue concerned the dignity of an elderly
and vulnerable woman and a person with disabilities in the circumstances of
the first respondent and her son. To hold that these weighty considerations are
to give way merely because an alternative abode is offered would negate the
first respondent’s dignity rather than protect it.

[58] It follows that the order of the high court was correctly made. The
appeal must therefore fail. We were advised that counsel for the first
respondent appeared pro bono. The second respondent filed a notice to abide.
Accordingly no costs were sought other than an order allowing recovery of
such disbursements as may have been incurred by the first respondent’s
attorneys in preparing for the appeal. In the circumstances that would be an
appropriate order.

[59] I therefore make the following order:
The appeal is dismissed.
The appellant is directed to pay such disbursements as may have been
incurred by the first respondent’s attorneys in preparing for the appeal.

_____________________________
G G GOOSEN
ACTING JUDGE OF APPEAL

Appearances

For appellant:

W Vos
Instructed by:

Miller, Bosman, Le Roux Attorneys,
Somerset West
Phatshoane Henney, Bloemfontein

For first respondent:
E Fagan SC (with him A Morrisey)

Instructed by:

Stellenbosch University Law Clinic, Stellenbosch
UFS Law Clinic, Bloemfontein

For Amicus Curiae:
M C Louw

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal
DATE:
14 July 2021
STATUS:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Grobler v Phillips and Others (Case No 446/2020) [2021] ZASCA 100 (14 July 2021)

The Supreme Court of Appeal (the SCA) today dismissed an appeal against an order of the
Western Cape Division of the High Court, (Le Grange and Wille JJ) (the high court)
upholding an appeal against an eviction order granted by the magistrates’ court at Somerset
West.

The legal proceedings for an eviction order commenced in 2009 after the appellant, Mr
Grobler, had purchased a property in Somerset West at a public auction. Mr Grobler
launched an application to evict the respondents, Mrs Phillips and her disabled son. Mrs
Phillips had commenced living on the property, which was then part of a large farm, in
1947 when she was 11 years old. She later lived on the property with her husband, since
deceased, who worked on the farm. A previous owner of the farm entered into an oral
agreement with Mrs Phillips and her husband granting them a life-long right of occupation
of the property.

The eviction application, which was brought in terms of the Prevention of Illegal Eviction
and Unlawful Occupation of Land Act, 19 of 1998 (PIE), was referred for the hearing of
oral evidence. The magistrate granted an order for eviction. On appeal to it, the high court
upheld the appeal and set aside the eviction order. The high court allowed Mrs Phillips to
raise a new legal issue on appeal, namely that the provisions of the Extension of Security
of Tenure Act, 62 of 1997 (ESTA) applied to the matter. The high court found that Mr
Grobler did not establish that the provisions of ESTA did not apply. The magistrate was
accordingly wrong to grant an eviction order in terms of PIE. The high court also found
that the notice terminating Mrs Phillips’ right of occupation did not amount to reasonable
notice. Her occupation was accordingly not unlawful in terms of PIE. The high court

additionally found that it would not be just and equitable to grant an eviction order in the
circumstances.

Leave to appeal to the SCA was granted on petition. The SCA found that the high court
had correctly allowed Mrs Phillips to rely upon the new legal issue. It found, however, that
the high court was wrong to conclude that Mr Grobler had not proved that ESTA did not
apply. The SCA further found that the high court had erred in concluding that Mrs Phillips
was not an unlawful occupier within the meaning of PIE. However, in dealing with whether
an eviction order would be just and equitable, the SCA found that high court’s reasoning
on this aspect was correct. It found that Mrs Phillips, now 84 years old, had for the greater
part of her life lived on the property with the express consent of successive owners.
Although the orally conferred ‘life-right’ was not enforceable against a subsequent owner,
it remained a weighty consideration in determining what was just and equitable. The SCA
also found that the circumstances in which the protection afforded by ESTA fell away, did
not alter the fact that Mrs Phillips and her son were vulnerable persons deserving of
appropriate protection. The steady encroachment of urban development upon the farm and
its conversion into urban residential property occurred at a time when Mrs Phillips believed
she was protected by the oral right of occupation for life. These factors, coupled with Mrs
Phillips’ advanced age and that she was residing on the property with her disabled son
militated against the assertion of Mr Grobler’s rights of ownership.

The SCA concluded that the circumstances of the case were such that to grant an eviction
order would not be just and equitable. It came to this conclusion notwithstanding an offer
made by Mr Grobler to provide alternative accommodation. It accordingly dismissed the
appeal.

-- Ends --