Case   CCT243/21 
[2022] ZACC 32

Hearing Date: 10 May 2022

Judgement Date: 20 September 2022

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 20 September 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order and judgment of the Supreme Court of Appeal, wherein that Court dismissed the appeal brought by the applicant for an eviction order against the first and second respondents. The appeal before this Court concerned whether it would be just and equitable to relocate the first and second respondents from their current dwelling to alternative accommodation which is within a 5 km radius of their current residence.

In the proceedings before this Court, the applicant is Mr Willem Grobler (Mr Grobler), the registered owner of the property currently occupied by the first and second respondents. The first respondent is Mrs Clara Phillips (Mrs Phillips), an 84-year-old widow who occupies a residential house on the property together with her son, Mr Adam Phillips (Mr Phillips), who suffers from a disability. Mr Johan Venter N.O., is the curator bonis of Mr Phillips. The second respondent filed a notice to abide the outcome of the proceedings before this Court and had not opposed any of the proceedings in the Somerset West Magistrates’ Court (Magistrates’ Court), the Western Cape Division of the High Court, Cape Town (High Court) and the Supreme Court of Appeal. The third respondent, the Helderberg Municipality of Somerset West also filed a notice to abide the outcome of these proceedings.

Mr Grobler purchased a residential property situated in Somerset West at an auction. The property was registered in his name on 15 September 2008. Mrs Phillips has been residing on the property since 1947. Mr Grobler requested Mrs Phillips to vacate the property. Mrs Phillips refused to vacate the property, allegedly, on the ground that she enjoyed a right of life-long habitatio granted to her by a previous owner which she sought to enforce against Mr Grobler. Mr Grobler made various offers to Mrs Phillips in an attempt to reach a compromise, including paying for relocation costs and offering alternative accommodation. These offers were declined. Mr Grobler then approached the Magistrates’ Court and launched an eviction application which was later referred to trial.

Before the trial commenced, the parties concluded an oral pre-trial agreement to the effect that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) were applicable to the proceedings and that the only issue for determination was whether Mrs Phillips held some title of occupancy and whether her occupancy was lawful or not in terms of PIE. The Magistrates’ Court held that Mrs Phillips had no registered interest in the property, whether in the form of habitation or a usufruct. Furthermore, the Court held that Mrs Phillips is an unlawful occupier as she had no tacit and/or express consent from Mr Grobler to occupy the property. It granted the eviction order and determined that the eviction date would be 30 August 2017.

Mrs Phillips appealed to the High Court. The High Court set aside the eviction order issued by the Magistrates’ Court and upheld the appeal with costs. The High Court held that Mr Grobler had not established that Mrs Phillips was an unlawful occupier as defined in PIE. The High Court took the view that Mrs Phillips was also entitled to rely on the Extension of Security of Tenure Act 62 of 1997 (ESTA), which was raised for the first time on appeal to that Court.

The High Court held that Mr Grobler had not discharged the onus of establishing that the provisions of ESTA did not apply. The Court further held that even if Mrs Phillips were an unlawful occupier, and even if ESTA did not apply, it would not be just and equitable to grant an eviction order having regard to her advanced age, the period for which she had resided on the property, and the fact that her household was occupied by a disabled person.

Mr Grobler subsequently launched an application for leave to appeal against the order and judgment of the High Court to the Supreme Court of Appeal. The Supreme Court of Appeal dismissed the appeal holding that the High Court was entitled to exercise a discretion not to grant an eviction order in spite of the unlawful occupation, and that there was no misapplication or misdirection of the law, or any misdirection on the facts. The Court further held that this was a situation in which the full exercise of ownership had to give way to the right of vulnerable persons to a home.

Mr Grobler appealed to this Court. He submitted that this Court’s jurisdiction is engaged as the matter concerns the Supreme Court of Appeal’s incorrect application of the provisions of section 4(7) of PIE. Mr Grobler further submitted that the matter raised an arguable point of law of general public importance as there is no jurisprudence which supportted the Supreme Court of Appeal’s decision that an unlawful occupier may not be evicted even in circumstances where alternative accommodation has been offered.

Mr Grobler further submitted that the decision of the Supreme Court of Appeal was in conflict with this Court’s judgment in Blue Moonlight1 because he is now expected to provide free housing to the Mrs Phillips for an indefinite period. Moreover, Mr Grobler submitted that the Supreme Court of Appeal overlooked the fact that Mrs Phillips would not have been rendered homeless as alternative accommodation had been made available to her.

Mrs Phillips submitted that this matter did not raise an arguable point of law of general public importance because the Supreme Court of Appeal’s judgment does not establish the general principle that an unlawful occupier of a residential property who has resided in a property for a lengthy period cannot be evicted. According to Mrs Phillips, the circumstances of the case were exceptional.

In a unanimous judgment penned by Tshiqi J, the Court held that its jurisdiction is engaged because as held by it in Machele,2 eviction from one’s home will always raise a constitutional issue. Additionally, the Court held that another ground which strengthened its jurisdiction was that the issues raised concerned the interpretation of the provisions of section 4(7) of PIE.

The Court held that apart from relevant factors that have to be taken into account in eviction proceedings, the Supreme Court of Appeal also took into account Mrs Phillips wishes that she preferred to remain in occupation of the property and did not place sufficient weight on the offers of alternative accommodation. An unlawful occupier’s wishes, the Court held, is not a relevant consideration as an unlawful occupier such as Mrs Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain in the property which she is occupying unlawfully.

The Court went on to highlight that when dealing with considerations of justice and equity, the capacity of a landowner to provide alternative accommodation and the peculiar circumstances of an evictee are relevant. But, in these circumstances, the fact that Mr Grobler had repeatedly made offers of alternative accommodation to Mrs Phillips should not be construed as creating any obligation on him as a private landowner to offer alternative accommodation. Having regard to the competing interests of both parties, the Court held that it would be just and equitable to grant the eviction order. In granting the eviction order, the Court stated that an eviction order in these circumstances would not render Mrs Phillips homeless. Mrs Phillips would essentially only be required to relocate from one home to another in the same immediate community within Somerset West.

Accordingly, the Court granted leave to appeal, upheld the appeal on its merits and set aside the Supreme Court of Appeal’s order and substituted it with an order of its own..


The Full judgment  here