ConCourt Backs Property Owner in 14-Year Eviction Dispute

Grobler v Phillips and Others [2022] ZACC 32

This case is concerned with whether or not an eviction order should be granted. Eviction matters are a contentious issue in South Africa given that the court must balance the right to housing, which is contained in section 26 of the Constitution, with an owner’s rights in respect of immovable property.

This case, in particular, highlights the contrasting views of our courts in relation to this issue.  On the journey through South Africa’s judicial system, the issues faced in this case seem to have divided the opinion of judges and magistrates alike.

Background

Mr. Willem Grobler, a businessman, purchased immovable property located in Somerset West at a public auction.  The property was registered to his name on the 15^th of September 2008. Mrs. Phillips, an elderly woman, had been residing at that property since 1947 with her disabled son.

In 1947, the property formed part of a larger farm, but it currently forms part of an urban residential development. Mr. Grobler had intended for his elderly parents to live on the property and made many attempts to resolve the situation with Mrs. Phillips. On multiple occasions, he offered to purchase alternative housing for Mrs. Phillips but each offer was met with refusal. Mrs. Phillips argued that she has, by way of verbal agreement, acquired the right of life-long habitatio. Furthermore, she did not want to leave the place where she had spent her whole life living. 

Court proceedings

The court of the first instance in this matter was the Somerset West Magistrate’s Court. This court considered the submissions of both parties. Mr. Grobler sought to rely on the relevant provisions of PIE to have Mrs. Phillips declared an unlawful occupier of the property and have an eviction order granted. The Magistrate’s Court rejected Mrs. Phillips’s defense based on the alleged right of habitatio and held that Mr. Grobler had proved his right of ownership to the property. The Magistrate’s Court accepted the undisputed evidence that the alleged right of life-long habitatio was invalid and unenforceable against Mr. Grobler as it was not registered against the title deed. The court, therefore, granted an eviction order against Mrs. Phillips.

In the Western Cape High Court, Mrs. Phillips relied upon the relevant provisions of PIE as well as 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 (ESTA). The High Court upheld the appeal on the grounds that the notice period given by Mr. Grobler to Mrs. Phillips was not sufficient to warrant the change from “lawful occupier” to “unlawful occupier”. In other words, the court held that the time between the production of the notice of termination (27 November 2008) and the required date of vacation (31 January 2009) was unreasonably short and therefore could not be relied upon as a basis for declaring Mrs. Phillips an “unlawful occupier”.

The Supreme Court of Appeal (SCA) clarified three issues in this matter. Firstly, it held that the High Court had erred in allowing Mrs. Phillips to rely on ETSA.  The SCA held that ETSA did not apply in this matter. Secondly, the issue of whether or not Mrs. Phillips was an “unlawful occupier” was considered. The SCA held that the High Court did not consider the lengthy period of the interactions between Mr. Grobler and Mrs. Phillips, the fact that a written notice to vacate the premises was given, and the period that elapsed from the end of the notice period to the institution of legal proceedings. For these reasons, the SCA held that it had been proven that Mrs. Phillips was an “unlawful occupier”. 

The final issue that the SCA dealt with in relation to this matter was the manner in which the High Court’s discretion was utilised. The SCA highlighted certain factors that were taken into account by the High Court, including the fact that Mrs. Phillips had lived on the property her whole life, that she was 84 years old and that, through no fault of her own, the farm that the property once formed part of became an urban development over time. The court formed the view that while she may have lost the absolute protection conferred by section 2(1)(b) read with section 8(4) of ESTA as a vulnerable person, her status as a vulnerable person, even in the context of PIE, has essentially remained unchanged. The SCA concluded that these factors outweighed Mr. Grobler’s right, as a property owner, to retain an eviction order.

Finally, the Constitutional Court (CC) heard the matter on appeal from the SCA. In its judgment, the CC considered what is just and equitable in the current circumstances. The court noted that the SCA gave consideration to the specific wishes of Mrs. Phillips and held that this consideration was not necessarily relevant in light of the eviction order being sought. The court noted the importance of Mr. Grobler’s numerous offers of alternative accommodation to Mrs. Phillips and explained that section 26 of the Constitution confers the right to adequate housing, however this did not entitle Mrs. Phillips to choose exactly where in Somerset West she wanted to live. It was further noted that, even after obtaining an eviction order from the Magistrate’s Court, Mr. Grobler still offered alternative accommodation to Mrs. Phillips and offered to pay for any relocation costs. The court stated that these efforts on the part of Mr. Grobler must be considered when determining what is just and equitable. 

When the matter was examined holistically, the court held that Mrs. Phillips would not be homeless in the event of an eviction order being granted. She would still live in a decent home, in the same area. In light of this, the court ordered that the appeal is upheld, along with other conditions. These conditions are that Mr. Grobler is to purchase a two-bedroom dwelling and have it registered in the property’s title deed that Mrs. Phillips is entitled to live in the house for the rest of her life and that Mr. Grobler will pay any relevant relocation costs.

The court noted that the SCA gave too much consideration to the interests of Mrs. Phillips when considering what was just and equitable in this matter. It also noted that the rights of Mr. Grobler, as the property owner, were not given proper weight.

It is important to note that although Mr. Grobler’s offer to purchase alternative accommodation and pay for relocation costs forms part of the court order, this is not an indication that such an offer is now precedent. It is generous and was a factor that was taken into consideration when deciding what was just and equitable.