eviction attorneys South Africa Archives | Eviction Lawyers South Africa

Rights and Wrongs

Top court finds eviction of woman who has been in house since 1947 is lawful

By | Appeal of an eviction order, ESTA, Eviction news, PIE

Reprinted from Times Live, by Ernest Mabuza – 2022-09-21

The Constitutional Court has ruled the eviction of an 85-year-old woman from a property given to her by a Somerset West businessman is not unlawful.

Clara Phillips has been living in the house since she was 11. She started living on the property in 1947, when the property formed part of a larger farm. She lives in the house with her disabled son.

The property is situated about 500m from Willem Grobler’s home in Somerset West. Grobler bought the property at a public auction because he wanted his elderly parents to reside in it.

The property was registered in Grobler’s name in September 2008 but his wishes to accommodate his parents in it have not yet been realised.

After purchasing the house, Grobler met Phillips on three occasions and told her he required her to vacate the property.

Grobler was prepared to pay towards her relocation or, at his cost, provide alternative accommodation for her. Phillips did not accept Grobler’s proposals, stating she was not prepared to move from the property.

The magistrate’s court said the alleged lifelong right of occupation was invalid and unenforceable against Grobler as it was not registered against the title deed. The court granted an order of eviction against Phillips.

Phillips appealed to the full court of the Western Cape High Court.

In that court, not only did Phillips invoke the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act but also relied on a new and alternative ground of appeal, namely that she was an occupier in terms of the provisions of the Extension of Security of Tenure Act.

The high court upheld her appeal and this led to Grobler appealing to the Supreme Court of Appeal (SCA).

In its judgment last year, the SCA rejected the defence raised by Phillips that she had a right of lifelong habitation and was a lawful occupier. However, it said it was not just and equitable to order an eviction in the matter and dismissed Grobler’s appeal.

In its judgment on Tuesday, the Constitutional Court said an unlawful occupier such as Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain on the property she is occupying unlawfully.

Tshiqi said the fact that Grobler had repeatedly made offers of alternative accommodation to Phillips should not be taken as creating any obligation to offer alternative accommodation.

Tshiqi said it was an important consideration that an eviction order in these circumstances will not render Phillips homeless.

“The offer advanced by Mr Grobler stands. If it is made an order of court, it will essentially mean Mrs Phillips will only be required to relocate from one home to another in the same immediate community within Somerset West.”

In the order, the court said Grobler is directed to purchase a two-bedroom home in good condition, and it must be within a radius of 5km from where Phillips currently resides. The order said Phillips will have a right to live in that house for the rest of her life.

The court said if Phillips and her son do not take occupation of the dwelling within six months from the date of registration of the dwelling in the name of Grobler, they are directed to vacate the premises. Failing this, the sheriff of the court is directed to evict them from the premises.

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you have questions about your right of occupation or if you need advice on the eviction process.

Further reading:

Expropriation Bill unconstitutional in the absence of a constitutional amendment

By | constitutional law, Expropriation Bill

Reprinted from BizCommunity, by Gary Moore – 2022-02-24

The 1975 Expropriation Act authorises the Minister of Public Works to expropriate property for public purposes, and provides for the payment of compensation to the dispossessed owner, not exceeding the property’s market price, determined either by agreement between government and the owner, or by a court.

The Constitution says property may be expropriated in terms of “law of general application” for a public purpose, or in the public interest (including for land reform), and subject to compensation in an amount either agreed by those affected or decided by a court.

The amount of compensation, says the Constitution, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including certain listed ones.

In 2020, the Minister tabled an Expropriation Bill intended to replace the 1975 Act with one which replicates the 1975 statute by and large, but which includes clauses that take into account provisions of the Constitution.

The 2020 Bill repeats in broadly similar terms the 1975 Act’s provisions which say that, if the Minister is considering expropriating property, she may authorise an inspector to enter a particular property to ascertain if it is suitable and to determine its value.

But while the 1975 Act says, if the occupier doesn’t consent to the inspector’s entering any building on the land, the inspector can nevertheless do so on 24 hours’ notice, the Bill in contrast says (in deference to the fundamental rights to dignity and privacy), if the occupier doesn’t consent to the entry and inspection, the government must get a court order authorising access.

Like the 1975 Act, the Bill (with minor adjustments) says that, in determining the amount of compensation to be paid, account must not be taken of the fact that the property has been taken without consent, or of any enhancement or depreciation in its value which is attributable to the purpose for which it was expropriated.

The Bill then repeats the Constitution’s property clause wording, that the amount of compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.

But the 2020 Bill then takes a step too far and ceases to be “law of general application” envisaged in the Constitution. The Bill contains a clause which seeks to stipulate when it may be just and equitable for “nil” compensation to be “paid”. The word nil is the contracted form of the Latin word nihil, which means “nothing”.

The clause states that it may be just and equitable for nil compensation to be “paid”, “where land is expropriated in the public interest”.

The Bill’s clause then lists precise circumstances which it deems to be relevant, and to which it requires that regard be had in determining when it may be just and equitable for nil compensation to be “paid” where land is expropriated in the public interest.

These listed circumstances are (slightly abbreviated):
* where the land is not being used and the owner’s main purpose is not to develop it or use it to generate income, but to benefit from appreciation of its market value;
* where an organ of state holds land that it acquired for no consideration and is not using for its core functions and is not reasonably likely to require for those functions;
* where the owner has abandoned the land by failing to exercise control over it;
* where the land’s market value is equalled or exceeded by the present value of direct state investment or subsidy in the acquisition and capital improvement of the land; and
* when the nature or condition of the property poses a health, safety or physical risk to persons or other property.

But it is not for this clause of the 2020 Expropriation Bill or for any Act of Parliament to specify circumstances when it may be just and equitable for nil compensation to be “paid”.

It is not for the legislature to lay down how the courts should interpret the Constitution’s property clause in particular cases, and the Constitution does not envisage that the legislature may do so.

This clause in the Expropriation Bill infringes the separation of powers which is implicit in the Constitution.

The separation of powers does not imply rigidly demarcated functional roles between the judicial and legislative branches. But, says the Constitutional Court, there is need for caution on the part of each such branch of government against intruding into the constitutionally-assigned operational space of the other one.

The Constitution envisages that the superior courts decide constitutional matters. Whether an amount of compensation offered for an expropriation is a just and equitable amount is just such a constitutional matter.

It is not in the compass of the legislature to encroach on the domain of the courts by prescribing circumstances when nil compensation would be just and equitable, unless an amendment of the Constitution is adopted which alters the property clause in the Constitution to allow for such legislation.

Indeed, there was a very recent attempt to bring about just such an amendment to the property clause in the Constitution, but the attempt failed. A Constitution Amendment Bill of 2021 sought to amend the property clause so as to provide that where land and its improvements are expropriated for land-reform purposes the amount of compensation may be nil, and that legislation must set out circumstances where the amount of compensation is nil. That Constitution Amendment Bill failed to achieve the required affirmative vote of two thirds of the members of the National Assembly and has accordingly lapsed.

In the circumstances, the 2020 Expropriation Bill’s clause that seeks to stipulate when it may be just and equitable for nil compensation to be paid is unconstitutional and invalid, and the National Assembly’s Portfolio Committee on Public Works should accordingly remove the clause from the Bill.

SD Law can help

If you have concerns about the Expropriation Bill 2020 or your property and want to talk to an expert, contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za

Simon Dippenaar & Associates Inc. is a law firm in Cape Town and Gauteng with eviction lawyers and attorneys specialising in eviction law.

Further reading:

How to oppose eviction South Africa

Opposed eviction

By | Evictions, Lease Agreement, PIE, Tenants

What is the difference between an unopposed and opposed eviction?


We’ve written a lot about the eviction process. In describing the procedure, we say, “If there is a valid defence, then a trial date is set. If there is no valid defence, a ‘warrant of eviction’ is issued to the sheriff giving authorisation for the sheriff to remove the tenant’s possessions from the premises.” If the tenant offers a valid defence, the matter is considered an “opposed eviction”. If there is no defence, the eviction is “unopposed” and proceeds straight to the court order and the removal of the tenant’s belongings from the property. But what constitutes a valid defence and why might a tenant oppose an eviction?

The right to housing vs. the right to ownership

In South Africa the right to housing is a constitutional right of every individual as per section 26 of the Constitution. But sometimes this right of the tenant comes into conflict with the landlord’s constitutional right to ownership, which is entrenched in section 25.

With a residential property lease, once there is a breach of contract, the landlord is entitled to give notice, cancel the lease and evict the defaulting tenant. If the landlord has given written notice of the intention to cancel the lease and the notice period has expired (minimum one calendar month) with no payment from the tenant, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period, but non-payment of rent is the most common.

Due process to oppose an eviction

The landlord then applies to court in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE). The landlord and the tenant have several rights and responsibilities when it comes to eviction applications and the process can be technical. The application is made up of a notice (S4(1) notice) supported by an affidavit. 

Once a notice of cancellation/eviction has been sent and the notice period has expired, the court process may begin, through the service of an eviction application by the Sheriff. The respondent will then have 10 days to oppose by filing and serve his Notice of Intention to Oppose. Regardless, an ex-parte application is brought before the court to request permission to continue to the final hearing. The court will then grant the eviction and the Sheriff can evict the unlawful occupier in terms of the order.

Going to trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances and be in a position to rule that the eviction is just and equitable. The court hears the arguments of both landlord and tenant. This is done through affidavits. The owner of the property approaches the court on the basis of ownership and the unlawful occupation. It is the tenant’s responsibility to then raise special circumstances to defend their case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction. 

Term of occupancy

The tenant’s length of occupation is a key factor in the court’s decision. In terms of section 4 of PIE, if the tenant has occupied the property for less than six months, the court must appraise “all relevant circumstances…” before making an order. However, if the term of occupancy has been longer than six months, there is an additional requirement on the court. It must determine “whether land (or alternative accommodation) has been or can reasonably be made available … for the relocation”. If the eviction is lawful and the tenancy has been in place for more than six months, the lack of alternative accommodation constitutes a reasonable defence. The government has a duty to provide all citizens with housing and the tenant must have access to alternative housing. If not, the eviction cannot be granted. The eviction will have been successfully opposed.

Need help with an opposed eviction?

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need advice on lease agreements, need to oppose an eviction or deal with a tenant’s defence, or any other aspects of landlord-tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading: