The Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) “was enacted to ensure fairness in and legitimacy of eviction proceedings and to set out factors to be taken into account by a court when considering the grant of an eviction order. Given that evictions naturally entail conflicting constitutional rights, these factors are of great assistance to courts in reaching constitutionally appropriate decisions” - Machele and Others v Mailula and Others [2009] ZACC 7

When determining the validity in respect of an eviction of an individual who is unlawfully occupying land, the courts must, inter alia, ensure that the eviction is just and equitable before such order is granted. Section 4 of PIE sets out the requirements which the court must take into consideration in this regard.

In Pitje v Shibambo and Others (CCT144/15) [2016] ZACC 5 the Constitutional Court was faced with determining whether the High Court had erred in its application of the PIE Act, specifically the “just and equitable” requirement.

The facts before the Gauteng Division of the High Court were as follows: the Applicant, Mr Pitje (the Respondent in the High Court proceedings) a 76 year old man in poor health, was resisting an eviction application. His opposition to the application was on the basis that there was a valid and enforceable deed of sale which had been concluded between him and his brother. The sale of the property came about when his brother, the previous owner of the property, fell on hard times and could no longer afford his mortgage payments. The Applicant rescued the property from being sold in execution, by agreeing to take over his brother’s mortgage payments and in exchange, the property would be transferred into his name.

The agreement concluded between the Applicant and his brother (‘the deed of sale’) contained a suspensive condition which provided that the Applicant was required to secure a loan in order to cover the mortgage payments. The Applicant, although unable to secure the prescribed loan to cover the mortgage payments, continued to make the mortgage payments pursuant to the special condition which had been inserted by hand under clause 20 of the deed of sale. The special condition read as follows –
“[s]hould the said loan not be secured, then the purchaser is irrevocably authorized by the seller to make whatever arrangements with Nedcor Bank Ltd, the current bond holders, to liquidate the outstanding amount on the bond, until the above purchase price is paid in full, whereupon the transfer shall be given to the purchaser as aforesaid.”

Eight years passed from when the deed of sale was concluded between the Applicant and his brother. Notice that the property(his and his brother’s primary residence) had been sold by his brother to the First and Second Respondents, Mr and Mrs Shibambo came as a shock to the Applicant as he was under the impression that the transfer of the property into his name had already taken place.

Seeking to take occupation of their newly purchased property, the First and Second Respondents approached the High Court to have the Applicant evicted. This application was opposed by the Applicant on the basis that he believed that the deed of sale which was concluded between him and his brother was valid. He also believed that the First and Second Respondents were not bona fide purchasers which would therefore have the effect of rendering the transfer of the property voidable. The Applicant alleged in the alternative that Section 4(2) of PIE (which states inter alia that at least 14 days prior to the commencement of eviction proceedings proper notice in terms of section 4(1) of PIE must be effected to the unlawful occupier and relevant municipality) had not been complied with by the First and Second Respondents.

In response to the Applicant’s opposing papers, his brother, in support of the First and Second Respondents, filed an affidavit stating that the Applicant had failed to fulfil the suspensive condition in the deed of sale, therefore rendering the agreement null and void. The transfer of the property had not taken place. Furthermore, the Applicant’s brother averred that the hand written special condition under clause 20 had not formed part of the original deed of sale.

In deciding whether the eviction order should be granted, the High Court relied on the doctrine of notice and the decision in Bowring v Vrededorp Properties CC and Another [2007] ZASCA 80. In this regard the court concluded that the First and Second Respondents were bona fide purchasers, as they were unaware of the previously concluded deed of sale between the Applicant and his brother. The Bowring case assisted the court in its determination that the First and Second Respondents possessed the requisite standing to seek the eviction order as it dealt with, inter alia, the issue of the double sale of property.

The High Court therefore granted the eviction order in favour of the First and Second Respondents. As regards the Applicant’s averment that the First and Second Respondents did not comply with section 4(2) of PIE, the High Court ruled that this averment was not correct and commented that this point had not been pursued by the Applicant’s counsel.

Thereafter the Applicant unsuccessfully applied for leave to appeal to the full bench of the High Court.  On the back of his unsuccessful application to the High Court, the Applicant petitioned the Supreme Court of Appeal for leave to appeal, which was also dismissed.

Undeterred by the dismissals of his previous applications, the Applicant approached the Constitutional Court. 
The issues before the Constitutional Court concerned the question of whether PIE was correctly applied and whether the High Court was correct in disallowing a rejoinder.
The relevant subsections of section 4 of PIE were:-
“(1)      Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.
(2)        At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.
. . .
(7)        If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”
(own emphasis)

The Constitutional Court remarked that no consideration had been given to the issue of suitable alternative accommodation for the Applicant. In fact, the contrary had taken place in that the High Court dismissed the Applicant’s application to strike out the First and Second Respondent’s allegation that he had suitable alternative accommodation. It was therefore clear from reading the High Court’s judgment that the requirements of section 4 of PIE were not properly considered, which it was obliged to do.

In respect of the question of whether the High Court was correct in its decision to disallow a rejoinder, more specifically the further affidavit deposed to by the Applicant, the Court ruled that the High Court erred in this regard. The affidavit was the Applicant’s attempt to inform the Court of his personal circumstances which included the risk of being left destitute due to the absence of suitable alternative accommodation if he was evicted. Disallowing this affidavit resulted in the High Court being unable to consider all of the relevant circumstances, as provided for in section 4(7) of PIE.

The Court commented that “courts cannot necessarily restrict themselves to the passive application of PIE”, therefore a more robust application of the law is required, especially in circumstances were the prospective evictee is vulnerable.  Consequently, the Court ruled that the First and Second Respondents were incorrect in their contention that the Applicant had not disclosed fully his circumstances and more specifically the risk of homelessness. The reason for this is because the High Court, having disallowed a rejoinder, had therefore not properly considered the provisions of section 4 of PIE, which, inter alia ,were: the Applicant’s alternative accommodation options, his health and disability and the situation of the other occupants.

In closing, the Court highlighted the High Court’s misplaced reliance on Bowring, as this case did not concern an eviction from the property in question, but rather to the double sale of property.  Therefore, as discussed above, the Bowring case was only of assistance in respect of determining that the First and Second Respondents had standing as owners to seek the eviction. The case had not impacted on the crucial question of whether the eviction itself was just and equitable.

In accordance with the above the Constitutional Court set aside the order of the High Court, allowed the Applicant’s  application in the High Court to file an additional affidavit by way of rejoinder and remitted the matter back to the High Court for reconsideration, taking into account the Constitutional Court’s judgment.

This judgment highlights one of the issues which courts may encounter when applying section 4 of PIE. Careful consideration to the provisions of this section by the courts is paramount to ensuring that the rights enshrined by the Constitutional are upheld, especially the rights of society’s most vulnerable persons, the elderly and infirm. 

Written by Jacqueline Rai, Candidate Attorney (Litigation), Knowles Husain Lindsay