South Africa: Is A Landowner Obliged To Provide Alternative Accommodation To An Unlawful Occupier?

In this article, we follow the case through the whole process, from its inception in the Magistrates' Court, through the appeal process at both the High Court and then the Supreme Court of Appeal, and finally the conclusion at the Constitutional Court.

When deciding whether a party should be evicted, a Court must take into consideration all relevant circumstances and factors, and then determine whether the eviction would be just and equitable. For an order to be just and equitable, both parties' rights must be balanced, and compromises must be made by both parties.

An offer of alternative accommodation is not a prerequisite for the granting of an eviction order but can be seen as a mitigating factor taken by the owner. There is no obligation on a landowner to provide alternative accommodation to an unlawful occupier.

BACKGROUND

Eviction from one's home will always raise a constitutional issue. In the recent matter between Willem Grobler, as property owner, and Clara Phillips who occupied Mr. Grobler's property, the Court had to make a decision whether the eviction of an elderly person, 85 years of age, and her physically disabled son was just and equitable as required by Section 4(7) of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 ("PIE"). A court dealing with an eviction is duty bound by law to take an active role in adjudicating the matter and must consider all relevant circumstances (being that of the unlawful occupier and that of the owner of the premises) associated with the eviction application.

Mrs. Phillips has been residing in the property in question since the age of 11. Mr. Grobler, owner of the property, bought the property through an auction during September 2008, with the intention that his elderly parents will move into the premises. Since Mr. Grobler bought the property, he met with Mrs. Phillips on several occasions requesting her to vacate - Mr. Grobler even offered to pay Mrs. Phillips a certain amount towards her relocation, alternatively, he was prepared to provide alternative accommodation to Mrs. Phillips at his own costs. All of Mr. Grobler's offers were however declined by Mrs. Phillips and she was not interested in vacating the property.

Only after Mr. Grobler appointed attorneys, Mrs. Phillips alleged that she enjoyed an oral right to life-long habitatio given to her by the previous owner, meaning that she had a lifelong right to live in the property. On two occasions during May 2009, Mr. Grobler, through his attorney, made an offer that Mr. Grobler would buy a two-bedroom flat for Mrs. Phillips, where she could reside for the rest of her life, on the condition that she vacates the property. This offer was also rejected by Mrs. Phillips.

MAGISTRATES' COURT

Mr. Grobler had no other option but to approach the Magistrates' Court for appropriate relief by lodging an application for Mrs. Phillips' eviction. On 2 August 2016, the Court rejected Mrs. Phillips' defense of habitatio and said that such right was void and unenforceable against Mr. Grobler as it was not registered against the title deed. The Court agreed that Mrs. Phillips was an unlawful occupier as defined in PIE and granted the eviction order accordingly. After the eviction order was granted (but before the Court adjourned), and as another attempt to resolve this matter amicably, Mr. Grobler informed the Court that he was willing to allow Mrs. Phillips to reside on the property for a further two months and that once she has relocated, he would pay the reasonable costs of accommodation in a retirement centre for a period of 12 months.

This offer by Mr. Grobler was however also not accepted. On the next Court appearance, Mrs. Phillips' socio-economic circumstances were addressed, including the fact that Mrs. Phillips' physically disabled son was also resident on the property. The Court further heard evidence on whether alternative accommodation was available to Mrs. Phillips and her disabled son. The Court on a further occasion considered reports from the local social services department and heard evidence from a social worker relating to state-funded accommodation. The Court ordered Mrs. Phillips to vacate the property no later than 30 August 2017.

APPEAL TO THE HIGH COURT

A little while after the eviction order was granted by the Magistrates' Court, Mrs. Phillips appealed the judgment and relied on the provisions of PIE. Secondly, she also now stated that she was an occupier in terms of the Extension of Security of Tenure Act ("ESTA"), which regulates the right of occupiers in rural areas, and the eviction of persons from rural areas.

The Court overturned the Magistrates' Court decision and ordered in favour of Mrs. Phillips, declaring that Mr. Grobler, in his initial letter of termination, only afforded Mrs. Phillips 66 days to vacate the premises and that this period was too short and therefore unreasonable. The High Court further held that Mr. Grobler failed to prove that Mrs. Phillips was an unlawful occupier in terms of PIE, and that Mrs. Phillips was protected under ESTA as the property only ceased to be a farm in 2001. The High Court ignored the fact that the parties, during a pre-trial conference, agreed that the matter would be determined solely in accordance with the provisions of PIE.

SUPREME COURT OF APPEAL ("SCA")

Not willing to throw in the towel, Mr. Grobler approached the Supreme Court of Appeal ("the SCA") to overturn the decision of the High Court. On its turn, the SCA found that the High Court erred in its finding that ESTA was applicable and found that Mrs. Phillips was an unlawful occupier of the property. The SCA accepted that Mrs. Phillips was granted an oral right of habitatio by the previous owners, however the fact that such a right was not reduced to writing and registered against the title deed of the property, meant that Mrs. Phillips was not protected against an eviction from the property by subsequent owners.

The SCA however emphasised that Mrs. Phillips believed that she had a valid right of habitatio, has been in occupation of the property since the age of 11, that she is an elderly person, that she occupied the property with her disabled son, and the fact that she would have been protected by ESTA, had the farm not become absorbed by the growth of urban developments. The SCA also took into account the fact that it was Mrs Phillips "wish" to remain in the property and not to be moved to alternative accommodation. The SCA found that the aforesaid factors outweighed those factors that entitled Mr. Grobler as a property owner. The Court held that the right of ownership must give way to the right of a vulnerable person as an occupier, whether lawful or unlawful. The SCA concluded that it was not just and equitable to grant the eviction order and dismissed Mr. Groblers' appeal.

CONSTITUTIONAL COURT ("ConCourt")

Mr. Grobler, as a last resort, approached the Constitutional Court ("the ConCourt") and argued that the effect of the SCA judgment is that he now has to provide free housing indefinitely to Mrs. Phillips.

The ConCourt held that one's "wish" to remain on someone else's property, unlawfully, and not to be moved to alternative accommodation, is not one of the factors to be taken into account when determining a just and equitable order. In terms of section 26 of the Constitution, everyone has the right to have access to adequate housing. The Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live.

The ConCourt had a long look at Section 4(7) of PIE, which sets out the factors to be taken into consideration by the Court before an eviction order is granted. One of the factors to be considered by the Court is the period that the unlawful occupier has occupied the premises at the time the eviction proceedings is initiated. Where the occupation has been less than 6 months, the Court has to take into consideration all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. Where no information regarding the relevant circumstances is available, or where the information at hand is inadequate, a Court must refuse the eviction order. If the occupation has been longer than 6 months, the Court must in addition consider whether land (as alternative accommodation) had been made available or can reasonably be made available by a Municipality for the relocation of the unlawful occupier.

The ConCourt held that The Magistrates' Court was correct in finding that Mrs. Phillips was an unlawful occupier in terms of PIE, however that it omitted to consider whether an eviction order, taking into consideration the relevant circumstances and factors, would be just and equitable. A Court must come to a decision that is just and equitable to all parties. For an order to be just and equitable, both parties' rights must be balanced, and compromises must be made by both parties. In this case, Mrs. Phillips failed to consider the generous offers by Mr. Grobler to provide alternative accommodation. Mrs. Phillips was not putting in any effort to meet Mr. Grobler halfway. The ConCourt therefore held that The SCA failed to balance the rights of both parties.

The ConCourt held that should the eviction order be upheld, it would not render Mrs. Phillips homeless, seeing that the offer by Mr. Grobler to provide alternative accommodation similar to the one currently being occupied, and to pay the relocation and transport costs, still stands. The Court ordered, and as tendered by Mr. Grobler, that Mr. Grobler is directed to purchase a two-bedroom dwelling, that Mrs. Phillips shall have the right to reside in such dwelling for the rest of her life, and that a such right should be registered against the title deed of the dwelling. Mr. Grobler was directed to arrange and pay for Mrs. Phillips' relocation costs. Mrs. Phillips will be liable for the costs of the municipal services and maintenance of the interior of the dwelling. Should Mrs. Phillips fail to take occupation of the new dwelling within 6 months after it was registered into Mr. Grobler's name, she will be evicted from the current property in question.

The Court further expressly noted that it is important to note that the fact that Mr. Grobler offered alternative accommodation to Mrs. Phillips should not be seen as creating an obligation on him to provide alternative accommodation. An offer of alternative accommodation is not a prerequisite for the granting of an eviction order but can be seen as a mitigating factor taken by the owner. As stated, there is no obligation on a landowner to provide alternative accommodation to an unlawful occupier.

CONCLUSION

From the judgment discussed above, it's important for both parties to take cognisance of the fact that every party involved in eviction proceeds must compromise on their right on the one hand as an owner of the property, and on the other hand the right of adequate accommodation of the unlawful occupier.

It is advisable to approach an attorney for advice on eviction proceedings before action is taken against a tenant, as it is clear that there are numerous factors that must be taken into consideration during an eviction process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.