JUST AND EQUITABLE EVICTIONS: WHERE CONTEXT OVERRIDES ABSOLUTE OWNERSHIP

AN OVERVIEW OF THE JUDGMENT IN GROBLER V PHILLIPS AND OTHERS

This matter concerns an appeal dismissed by the Supreme Court of Appeal (SCA) against an order of the Western Cape Division of the High Court which upheld an appeal seeking to set aside an eviction granted by the Somerset West Magistrates’ Court. The Appellant in this matter is Mr Willem Grobler, the landowner, and the Respondent is Clara Phillips, an 84-year-old widow who had been residing on a property on the land since the age of 11. Ms Phillips and her late husband had an oral agreement with the previous owner of the farm that granted them a life-long right of occupation on the property. She had been living with her disabled son at the time the eviction was initiated. 

Mr Grobler brought the application for eviction in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998 (PIE) in the Somerset West Magistrates’ Court. The order was granted and Ms Phillips then took it on appeal to the High Court, where she raised three main issues. Firstly, Ms Phillips raised a new legal issue that the provisions of the Extension of Security of Tenure Act, 62 of 1997 (ESTA) were applicable to the matter. Secondly, she contended that she could rely on the existence of a life-long right of occupation on the property to defeat the eviction in terms of either PIE or ESTA. Lastly, if her occupation was found to be unlawful, it would not be just and equitable to grant an eviction order. The High Court found in favour of Ms Phillips on the grounds that she was not an unlawful occupier as defined in PIE; that the provisions of ESTA applied to her; and that, regardless of whether ESTA applied, it would not be just and equitable for the eviction order to be granted. 

On appeal to the SCA, Mr Grobler raised the following issues: 

• the correlation between the PIE and ESTA;
• the legitimacy of an oral right to life-long occupation on the property; and 
• whether an order of eviction would be just and equitable. 

Mr Grobler’s submission that Ms Phillips should not be allowed to raise a new legal issue on appeal by relying on ESTA was dismissed on the grounds that Section 1 of the PIE states that for a person to be defined as an unlawful occupier, ESTA must not apply, and therefore it was a point that could be raised on appeal. Furthermore, Section 2 of ESTA excludes land within a township established prior to 1997 from its application and it was shown that Mr Grobler’s property was incorporated into a township by no later than 1991, thus ESTA was not applicable. The SCA diverged from the High Court’s decision that Ms Phillips was not an unlawful occupier on the basis that her occupation had become unlawful once Mr Grobler refused to allow her to continue to live on the property, thus withdrawing his consent. His reasoning was that although Ms Phillips’s life-long right of occupation was valid, it did not bind successive owners as it was not reduced to a written agreement. 

These points were not, however, decisive, as the SCA still had to determine– regardless of whether the ESTA applied and Ms Phillips was an unlawful occupier – whether it would be just and equitable to grant an eviction order. 

When determining whether an eviction order would be just and equitable, the SCA considered the following factors: 

• Ms Phillips had an oral life-long right to occupation of the property and could not have been expected to know that it had to be reduced to a written agreement; 
• the length of time that she had been living on the property; 
• she was an elder; 
• she lived with her disabled son; and 
• the purpose for which Mr Grobler obtained the property and his intended use of it. 

The SCA agreed with the High Court in finding that, despite Ms Phillips’ unlawful occupation, it would not be just and equitable to evict her and thus refused the eviction order. The court found that Mr Grobler’s offer to provide Ms Phillips and her son with alternative accommodation did not outweigh the adverse effects of going against Ms Phillips’s wishes and ordering a forced eviction, which would not be just or equitable.