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Court case on eviction of illegal occupants – Lochner N.O v Gardner and Others

Lochner N.O v Gardner and Others [2024] ZAWCHC 39

The applicant (L) is the executor in the deceased estate of the late Mrs Antonello (A). The first (G) and second (N) respondents were renting a house forming part of A’s deceased estate from A since 2004. A passed away in December 2020 and the lease under which G and N occupied the house with their minor son expired on 31 March 2021. L instituted eviction proceedings against G and N in the Magistrate’s Court in Goodwood, Cape Town, but withdrew the application when G brought an application to the Cape High Court asking for an order to have the property transferred to her on the basis of a purported sale agreement allegedly concluded in September 2020 between A as seller and G and N as purchasers. When the application was dismissed by the court (Meer J), L reinstituted an application for the eviction, this time in the Cape High Court. L asked the court to grant the order on the basis that the continued occupation by G and N was unlawful. G and N’s only substantive averment in opposing L’s application was the same alleged agreement of sale which Meer J rejected.

The court (Adhikari AJ) applied the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, 19 of 1998 (the Act), and referred to the two enquiries the court has to make in coming to a decision on an application for eviction. Firstly, the court has to decide whether it is just and equitable to grant an eviction order having regard to all relevant factors, including the availability of alternative land or accommodation. This must be weighed against the constitutionally enshrined (section 25) right of the land owner on the basis that a limitation of this right will ordinarily be of limited duration. Secondly, once the court concludes that the eviction order must be granted, the date of eviction and conditions attached to the order must be determined on the basis of what would be just and equitable and how the eviction will impact the unlawful occupiers. Rejecting the grounds on which the respondents opposed the application as nothing more than what Meer J already rejected in G’s application, the court then considered the impact on G and N’s minor child and the fact that he is in school near the property in question. The court ordered the eviction and ordered G and N to vacate the property before or on 14 June 2024, when the second school term comes to an end. The court ordered G and N to pay the costs of the application on the punitive attorney and client scale due to the fact that they opposed the application while full knowing that their only ground for opposition had already been rejected by another court.

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