Robert Paul Serne NO and Others v Mzamomhle Educare and Others [2024] ZASCA 152 ()
N started and in 2006 operated an unregistered day-care centre for small children in Kraaifontein, Western Cape, when RPS (1st appellant) visited South Africa on a “Habitat for Humanity” tour. They started assisting N by repairing a leaking roof and in 2008 purchasing shipping containers to which the centre was relocated. The Mzamomhle Foundation Trust (the trust) was registered in 2010 as a non-profit trust for poverty relief and welfare projects. The City of Cape Town offered in 2011 to sell a vacant stand to N for the centre. As she could not afford the nominal purchase price (R33,000) she approached the trustees (RPS, AR and GvR) for assistance and they agreed to pay the purchase price. The property was transferred to Mzamomhle Educare (1st respondent). In 2012, after N could not obtain other promised funding, the trust agreed to pay for the construction of an Early Childhood Development Centre (ECDC) on the property at a cost of over R2m. In order to facilitate this N agreed to donate the property to the trust, which was then done. In 2016 N passed away. After her death, the property was occupied by the 2nd and 3rd respondents, B and S, respectively N’s daughter and granddaughter, who claimed to have inherited the property from N. Neither of them were qualified to operate an ECDC. After failed negotiations about payment of rent and arrear rentals, the appellants (RPS, AR and GvR) served a notice to vacate on B and S, and after they failed to respond to this, brought an application in the Western Cape High Court for an order to B and S to vacate the property and, if they failed, for their eviction by the sheriff.
The erstwhile judge-president of this court, Hlophe J, referred the matter to a “full court” consisting of Nuku and Mantame JJ with a long directive dealing with questions about alternative accommodation, the alleged misleading of N, the misuse for business purposes of land intended for the poor, and various other matters. Nuku and Mantame JJ refused the application brought by the appellants with costs.
On appeal to the SCA the court (Ponnan, Makgoka and Mokgohloa JJA and Mjali and Naidoo AJJA), in a unanimous judgement, expressed its concern about the process followed by Hlophe J and the questions asked, indicating that none of the matters raised applied to property which was zoned as non-residential. The court held that the application being based on the rei vindicatio, the appellants needed to prove nothing more than ownership and that the respondents were holding the property. The onus then shifted to the respondents to prove that their possession of the property was lawful. The court also held that none of the points raised in the answering affidavit of the respondents raised any credible defence to the rei vindicatio and was almost exclusively based on hearsay. The appeal was allowed with costs and the High Court’s refusal of the application set aside and replaced with an order to the respondents to vacate the property within five days of the order, the sheriff to evict them should they fail to do so, and an interdict preventing the respondents from occupying the property again.