EVICTION

Facts and issue: The applicants own land which is immediately adjacent to a farm owned by the respondent, Mount Carmel. There is a substantial informal settlement on Mount Carmel’s property. It is not presently known exactly how many people live in the informal settlement, but the applicants say that there were at least 162 structures present on the property in 2015. That number had grown to 269 structures by February 2020. Aggrieved, the applicants ask for a declaration that the structures erected on the Mount Carmel property contravene the National Building Regulations and Building Standards Act 103 of 1997.

Discussion: None of the residents of the informal settlement on Mount Carmel’s land has been joined to these proceedings. This is despite the fact that the applicants seek final relief which clearly affects the residents’ interests. Far-reaching final declaratory orders are sought in relation to which the residents must be given a reasonable opportunity to be heard. The court is also asked to authorise a highly invasive form of census, which will see the residents being asked to disclose a wide range of personal information. None of this relief can be granted without the residents being joined to the proceedings and heard in relation to the relief, should they wish to be so heard. Mr. Roberts, who appeared together with Ms. Roberts for the applicants, was unable to submit that the residents of the informal settlement did not have a direct and substantial interest in the “first order prayed”. He instead submitted that the residents could not be joined to the proceedings because nobody can say who they were. He followed that submission up with the proposition that the relief sought in the “first order prayed” is so obviously meritorious as to be incapable of dispute.

Findings: Mr. Roberts was wrong to submit that there was no way of joining the residents of the informal settlement to these proceedings. The applicants know that they seek relief in respect of all of the occupiers of Mount Carmel’s property. They need only have identified and joined the residents in that capacity. The applicants were plainly in a position to identify the residents of the informal settlement with sufficient particularity to make them parties to these proceedings. There is no cause of action in law for an order directing a neighbour to evict an occupier of their property.

Order: The application for the “first order prayed” is dismissed.

Facts and issue: The applicant (Umhlaba) instituted an application in which it seeks an order confirming the termination, alternatively cancellation, of the short-term lease between the applicant and the respondent (Shell) in respect of commercially leased premises; and an order ejecting the respondent and all other persons occupying the leased premises. The applicant also brings a monetary claim against the respondent. The primary issues are whether Shell's occupation was lawful, given its claim to a prior right to the property's transfer; and whether Umhlaba was entitled to evict Shell and claim monetary compensation for the occupation.

Discussion: Umhlaba argued that, as the registered owner of Portion 6, Shell's continued occupation was unlawful, warranting eviction and compensation. Shell contended it had a pre-existing right to the property's transfer from the Municipality, predating Umhlaba's ownership, and sought to have the transfer to Umhlaba reversed in its counter-application. Shell's claim to ownership had been previously adjudicated and dismissed in earlier proceedings, rendering the matter res judicata (a matter already judged). Additionally, Shell's claim for an improvement lien (a right to retain possession of property until compensated for improvements made) had prescribed (expired) due to the lapse of time. Even if one were to try to construe the counter-application as an implicit rescission application, it would not be in the interests of justice to grant it. The bigger issue is that, on these facts, it could never make out a case to rescind the 2012 order. If its claim underpinning the counter-application has prescribed, as it has, then what possible purpose would be served by rescinding the 2012 order? If Shell’s claim to the contested property has prescribed, then it has no further legal interest in overturning the 2012 order. This is clear from Shell’s own papers, in which the claim for the cancellation of the registration of the property in Umhlaba’s name is inextricably linked to Shell’s insistence that it is the true owner.

Findings: The counter-application cannot be granted. Umhlaba’s eviction application rests on the simple proposition that it has taken transfer of the contested property, and holds a title deed as proof of this, pursuant to the 2012 order. That proposition entitles it to assert its ownership of the property and precludes Shell from raising any arguments attacking the underlying basis of the sale of the contested property by the Municipality to Umhlaba. Umhlaba must be treated, on a final basis, as the owner of the contested property. This is so, even if Shell is correct that the underlying agreement in terms of which Umhlaba acquired that ownership was invalid and even if Shell is correct that, when that agreement was concluded, Umhlaba knew that Shell had already acquired a right to obtain transfer of the property. Shell cannot invoke an improvement lien to resist eviction, Umhlaba should succeed in its application and, Shell’s counter-application cannot be granted.

Order: The first respondent and all persons occupying the property through the first respondent, including the second respondent, are ordered to vacate the property within two calendar months from the date of the order.

Facts and issue: The applicants seek an order declaring the conduct of the respondent of evicting the applicants from their homes and demolishing the dwellings or structures they erected on the vacant land without a valid or lawful court order to be unlawful, invalid and inconsistent with the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The occupiers do not dispute that the Municipality may institute proceedings for purposes of evicting illegal occupiers and demolishing their structures, but contend that the Municipality in casu, failed to do so, which consequently renders its conduct unlawful. They contend that the attempt by the Municipality to rely on the 2019 order does not justify the alleged unlawful eviction of the occupiers of the property and the demolition of their dwellings and/or structures.

Discussion: The occupiers of the property contend that the 2019 court order did not apply to the occupiers of the property in 2022, as they were not part of that group; and makes no reference to potential occupiers and/or future occupation. The structures erected on the property were demolished by the Municipality on 22 August 2022. The occupiers of the property maintain that the structures which they called home were occupied (resided in) at the time. The Municipality, however, contends that the structures were unoccupied. Photographic evidence adduced by the occupiers of the property purport to portray structures that they maintain were demolished, with signs of habitation. The structures were demolished by the Municipality, relying on the 2019 order. There are several patent problems with the reliance of the Municipality on the 2019 order. The 2019 order specifically cited “Unlawful Invaders of Remaining Portion 1 of the Farm Town and Townlands of Rustenburg 272JQ”. On the version of the Municipality, the remaining portion covers several pieces of municipal land in the Rustenburg and not only the land the occupiers of the property claim to have occupied.

Findings: There is no evidence with accompanying proof that any of the occupiers of the property were part of the unlawful invaders as envisaged in the 2019 order; and even if they were how service of the 2019 order reasonably would have come to their attention. The Municipality very broadly alleges that the 2019 order included all other members of the community (society). The tenet of the 2019 order is clear. It addressed conduct which was extant at that time. The unlawful invaders (not occupiers) were interdicted from taking possession of the unoccupied structures or to reside in same. The Municipality adduced no evidence that the 2019 order was enforced at the time it was granted. The occupiers of the property have established a case for the relief sought.

Order: The conduct of the respondent in evicting the applicants from their homes and demolishing the dwellings and/or structures they erected on the vacant without a valid or lawful court order is declared unlawful, invalid and inconsistent with section 26(3) of the Constitution of the Republic of South Africa, 1996; and the PIE Act 19 of 1998. The respondents are directed to restore the applicants’ possession of the property and to construct suitable dwellings for the applicants on the property within 30 days of the order of court.

Facts: This case concerns the City of Cape Town’s implementation of an emergency housing program in relation to persons who may be rendered homeless pursuant to their eviction in Woodstock and Salt River, in the context of the gentrification of these areas which is encouraged by the City and supported with tax breaks. The B residents initially occupied the property by virtue of lease agreements with the previous owners and, in some cases, in terms of inter-generational leases going back to the era of their grandparents. The B residents, who form part of the Woodstock and Salt River communities, are one of the very few communities that managed to resist forced removals from “white” cities under apartheid. The premises constituting their homes are five adjoining cottage units situated on a single erf. The erf was then purchased for proposed development by Woodstock Hub for R3,15 million. This was all done with a view of building residential units for letting at rentals that were significantly higher than what the B residents were paying. This purchase and proposed development were part of a broader wave of gentrification in the inner city. The key issue is whether the constitutional duty of a municipality to provide temporary emergency housing extends to making temporary emergency housing available at a specific location. In this regard, the issue is whether the City has acted reasonably in not delivering emergency housing in the inner city, in circumstances where residents in these areas face eviction as a result of gentrification arising from a development policy implemented by the municipality.

Appeal: In respect of the applicants, the central question is whether the City acted reasonably in its determination of the locality of the emergency housing offered to them, which was some 15 km away from their current residences, and, importantly, outside the inner city and its surrounds. The issues surface in the application for leave to appeal by the applicants against the judgment and order of the Supreme Court of Appeal, which upheld an appeal by the City, against the judgment of the High Court. The High Court granted the applicants an order declaring the City’s emergency housing program and its implementation unconstitutional. That court also directed the City to provide the applicants with temporary emergency housing in the inner city or its surrounds. The Supreme Court of Appeal disagreed with the High Court and held that the City only bore an obligation to provide emergency housing to the applicants in a location as near as possible to the area from where they were evicted.

Discussion: The link between sections 26 and 25(5) of the Constitution recognizes that access to land is paramount in progressively realizing the right to housing. Access to land must be construed in the context of gentrification and spatial inequality. The B residents are private tenants who were in lawful occupation of the property for generations and whose loss of lawful occupation is directly linked to the policy that caused gentrification. This matter presents the court with the opportunity to develop the law such that a court can go beyond requiring merely that temporary emergency accommodation must be provided as “near as possible” to the property from which persons are evicted. It may be necessary and appropriate for a court to scrutinise the implementation of the emergency housing program to the extent that it lacks temporary emergency accommodation in a specific locality, where that locality is significant in addressing spatial inequality and past redress, and important to respect other rights of individuals. The provision of adequate housing, which is inclusive of temporary or emergency housing, is a constitutional imperative that places obligations on the State to realize this right. The realization of this right, which is closely interlinked with other socio-economic rights, is crucial in the Constitution’s attempt to address the longstanding issues of social inequality deeply embedded in our society. Section 26(2) of the Constitution provides that the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

Findings: The City’s failure to strike a balance between its housing development goals and situations which require urgent solutions reflects a misplaced set of priorities and a lack of responsiveness to the needs of its residents. The inconsistency in providing temporary emergency accommodation for people in informal settlements in the inner city and the B residents is palpable. There is no rational differentiation. The B residents did not settle on the land unlawfully. They were lawful rent-paying tenants who were affected by gentrification and are now expected to move 15 km out of the City. Reasonableness is the established test to assess the progressive realization of socio-economic rights, in this context, the right of access to adequate housing. The lack of an official temporary emergency accommodation policy indicates that the City has failed that leg of the test. It has a duty to have a policy in place. The City’s implementation of the National Emergency Housing Programme based on what is before court cannot be said to have been adopted according to the correct measures prescribed by legislation. It goes further to exclude a significant section of the population as it does not cater for the people in most need of it, rather the resources are directed to social housing. The decision to prioritise one housing program cannot absolve the City of its obligation in terms of another. The Supreme Court of Appeal failed to correctly assess and review the City’s implementation of the National Housing Programme and its implementation in relation to the B residents according to the constitutional standard of reasonableness. The City’s conduct is unconstitutional as its implementation of the temporary emergency accommodation policy is unreasonable and arbitrary.

Order: The appeal is upheld. The orders of the Supreme Court of Appeal and the High Court are set aside and substituted. The City of Cape Town’s implementation of the National Housing Programme is declared to be unconstitutional. The City of Cape Town is directed to develop a reasonable Temporary Emergency Accommodation Policy to be implemented together with the National Emergency Housing Programme, in a reasonable manner.

MATHOPO J (majority) at paras [1]-[116]

BILCHITZ AJ (dissenting in part) at paras [117]-[205]

Facts and issue: The first respondent, Mr Khumalo, as well as several other people, are currently occupying the property which is registered in the name of the applicant. The applicant, the local authority in whose area the property concerned is situated, seeks an order in terms whereof the respondent is to be declared in unlawful occupation of the property; the respondents be ordered to vacate the said property; and demolish and remove all structures, improvements and infrastructure erected on, brought onto or installed on the said property.

Discussion: According to the first respondent, he together with the second respondent, came into occupation of the land through a councillor of the applicant. Most of the documentation relied upon by the respondents, do not support the version of the respondents in a satisfactory manner. In the first instance, the applicant contests the authenticity of the ‘Verification Report’ and suggests that such document had been forged. Plainly considering the document on the face thereof, it does not contain the correct corresponding property description. Such documents cannot be accepted to show that the respondents have the right to occupy such property. Furthermore, the building plans also relied upon by the respondents which were purportedly compiled for the first respondent in regard to the property concerned, contains a property description namely ‘83/2, Bakenpark’. According to the applicant, there is no subdivision 2 to Erf 383, Bakenpark. Neither the late councillor Michaels nor the late Mr Mohlakoana were authorised nor mandated to sell property on behalf of the municipality. It cannot be held that the respondents are occupying the property with the express nor the tacit authority of the applicant. For that reason, the respondents are to be declared unlawful occupiers.

Findings: Taking into account all the relevant factors and circumstances under “just and equitable” together with the fact that the first respondent has already spent R400,000 on the erection of the brick structure, it cannot be held that it is just and equitable that the respondents be evicted from the property, subject to what is further stated. In view of the circumstances of the case, and in particular applicant’s failure to timeously prevent first respondent from proceeding with the construction of the dwelling, first respondent should be granted a reasonable opportunity to try and resolve the issues pertaining to the non-compliance of the provisions of the Buildings Act. If he is not successful in such attempts, the brick structure dwelling is to be demolished.

Order: The respondents are declared to be in unlawful occupation of Portion 0 of Erf 383, Bakenpark, Extension 3, Bethlehem. The respondents are ordered to vacate Portion 0 of Erf 383, Bakenpark, Extension 3, Bethlehem. The order above is suspended pending the approval of building plans by the applicant in respect of the brick structure on the property erected by first respondent, within 120 days of this order. (See para 3-(v) of order).

Facts and issue: The applicant seeks the eviction of the respondents from a residential property. The application is brought pursuant to the provisions of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 and is predicated on the basis that the applicant is the lawful owner of the property, and the respondents are in unlawful occupation thereof. The first respondent sublet the property to the second to twenty-ninth respondents.  Despite service of the notice of termination, the respondents did not vacate or surrender the property to the applicant. Neither did they on expiry of the lease agreement.

Discussion: In 2019, the High Court in Pretoria granted an order confirming the cancellation of the lease agreement with the respondent and interdicting the respondent from enforcing the sub-leases or claiming any rental from the sub-tenants. It is not in dispute that the lease agreements concluded between the first respondent and the second to twenty-eighth respondents came to an end in March 2018. What the respondents contend is that their occupation of the property is not unlawful because they had concluded these lease agreements with the first respondent. It is irrelevant whether at the commencement of their occupation, the respondents had consent to do so from the applicant or the first respondent. They have in any case failed to provide any evidence or details of the tacit is authorized, either by the applicant or a person in charge of the property. The question is whether their continued occupation of the property is authorized by the owner or a person in charge of the premises. The answer is simply that they have not been so authorized. If at any stage there was ever a doubt in the minds of the respondents whether at the applicant does not require their presence at the property, the 2019 court order should have erased that doubt. Likewise, the notices of termination issued by the applicant subsequent thereto serve to reinforce the applicant’s election that it did had no intention of continuing with the lease agreements between the first respondent and the second to twenty eighth respondents.

Findings: The respondents’ contentions overlook that an owner of a private property is at liberty to deal with their property in any manner they consider appropriate, provided they stay within the parameters of the law. It is not up to occupiers, whether lawful or unlawful, to persist in their occupation on the basis that they are willing to pay rent. The fact of the matter is that the respondents have occupied the property without paying any rental for a period of approximately 5 years. This, they have conceded. It is therefore difficult to fathom on what basis the respondents contend that the applicant has not suffered any damages. In the circumstances, it is just and equitable for the respondents to be evicted from the property.

Order: The respondents, and all persons occupying the property through them and all on their behalf are evicted from the property. The respondents are ordered to vacate the property within two months from the date of service of the order.

Facts and issue: The plaintiff is a non-governmental organisation and a registered non-profit organisation. The first defendant trading as “CMES” is a non-government and non-profit organisation that conducts business as an independent school. The plaintiff seeks the eviction of CMES from the property, together with further ancillary relief concerning arrear rentals and damages resulting from the first defendant allegedly remaining in unlawful occupation of the property.

Discussion: Mr van Reenen testified and argued that while the plaintiff is the registered property owner, it may only exercise its right of ownership subject to certain specific conditions. He could, however, not advance clear evidence regarding the nature of the said conditions or provide proof of their existence. The simple fact that the plaintiff describes the lease agreement concluded between it and the school as a “commercial lease” is unimportant. The alternative argument presented by Mr. van Reenen, asserting that the lease agreement is void because of the alleged conflict of interest, allegations of nepotism, and contravention of the zoning conditions, would mean that the lease agreement is voidable, but this would not miraculously change the reality.  If there was no lease agreement concluded, it would mean that there is no legal basis upon which the school could have occupied the premises. The court is confronted with the predicament that failing to grant an eviction order and permitting the school to continue occupying the premises at the start of the new academic year could result in the children facing the school's eviction later in the academic year. This would not serve the children's best interests by disrupting their education during the academic term. This means that while the plaintiff has the right to evict an unlawful occupier from their property, an eviction order may take effect only one year later if it is not granted promptly.

Findings: Given the evidence and undertaking of Ms Govender on behalf of the MEC that the children will be accommodated in public schools in the same geographic area should they choose to do so, it is in the best interest of the children that certainty be attained. Both the plaintiff and the school are non-profit organisations. It is unfortunate that the plaintiff did not inform the court of its intention with the property. The court was left uninformed by both the plaintiff and the school to a large extent regarding their day-to-day operations with specific reference to basic education. The children were voiceless and the victims of what transpired to be a commercial dispute at best and, at worst, a personal crusade by Mr van Reenen. Confronted with a choice between two undesirable options, it is just and equitable that the school be evicted.

Order: An eviction order is granted in terms of the court order dated 9 December 2024 subject to the conditions stipulated therein.

Facts and issue: The applicant applies for the eviction of the respondents from the premises owned by the applicant. The respondents along with their teenage daughter, reside at the premises and oppose the application. The respondents have been adequately informed to set aside funds and approach a legal representative of their preference. They have failed to do so despite being provided with a fair opportunity. They were served with the s 4(2) notice in terms of PIE during, which informed them of their right to legal representation. Three months have passed, since the last appearance without even attorneys placing themselves on record. There is no plausible basis upon which it can be found that an injustice will incur if the matter proceeds and is finalised without affording the respondents an additional postponement.

Discussion: The respondents executed a written lease agreement with the property's prior owner. The property was sold and registered in the Deeds Office in the applicant’s name. The applicant contends that upon transfer of the property, the lease agreement between the previous owner and the respondents were ceded to the applicant. The applicant extended an invitation to the respondent to enter into a new written lease agreement. The respondents, however, declined to accept or discuss the offer with the applicant even though the terms offered to the respondents were identical to the previous terms of the lease agreement. The applicant served a notice on the respondents by Sheriff, informing them that they failed to make payment of the rental in lieu of their continued occupation, that they failed to conclude a lease agreement, and that any and all lease agreements are accordingly revoked. The respondents were afforded one calendar month to vacate the property. The applicant contends that there exist no legal obligation or duty to provide the respondents with free accommodation. The applicant is the registered owner of the property and possess the authority to deal with it.

Findings: The applicant and the respondents do not have a valid lease agreement. The respondents defaulted in paying rent to the applicant, but apparently persisted in paying rent to the previous owner. The respondents refused to negotiate with the applicant regarding the conclusion of a new lease agreement or regularising their arrear rental and continued occupancy. The respondents declined the offer to purchase the property or to negotiate a lease agreement and, therefore, now find themselves facing eviction from their residence as unlawful occupiers. In the absence of a valid lease agreement or where a lease agreement had run its course by effluxion of time and had not been renewed, there is no lawful basis for the continued withholding of possession from the owner. The respondents were in arrears at the time of the cancellation of the lease agreement and continue to remain in arrears. It is just and equitable to grant an eviction order.

Order: The respondents be evicted from the premises. The respondents directed to vacate the premises on or before Friday, 28 February 2025.

Facts and issue: This is an application for the eviction of the respondents from a certain farm in terms of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The applicant (trust) is the registered owner of the farm. The respondent averred that she is not an unlawful occupier of the farm as envisaged in section 1 of the PIE Act. The central question in this application is whether an eviction order should be granted against the respondent, who has occupied the farm since 1998.

Discussion: The respondent argued that there is a pending matter between them in this court under case 21620/2014, which involved ownership of the property from which the applicant seeks to evict her. The respondent stated that in that case she challenged the trust’s ownership of the property. The respondent's preliminary point on lis pendens is predicated on the grounds that the ownership of the farm and other assets held by the applicant are issues that are pending before this court. At the hearing of this matter, this court was informed that the matter has been declared trial-ready and that a trial date is to be allocated soon. Mr Van Zyl submitted that this matter should be dismissed alternatively, be postponed and that the eviction application should be heard together with that case. The court agrees with Mr Van Zyl's argument that the matter should be postponed and be dealt with together with case number 21620/2014. The respondent questioned the trust’s ownership of the property. The respondent averred that the trust operated as Mr Warwick Bayer’s alter ego. Mr Bayer was her husband until they divorced in March 2020. In eviction applications, previous relationships between parties remain relevant.

Findings: The respondent explained that the acquisition of the property was funded entirely through Shadowlands, a Close Corporation, in which both spouses (first respondent and Mr Warwick Bayer) held equal membership interests. The respondent asserted that while the legal title vested in the trust, the trust made no financial contribution towards the purchase of the property. The respondent contended that she acquired a right of habitatio, which is a personal right and not a real burden on the land. The said agreement has never been cancelled or terminated. Evidently, in terms of section 4(7) of the PIE Act, the respondent’s long-term occupation of the property requires heightened protection. In the circumstances of this case, it will not be just and equitable to grant an eviction order against the respondent. The eviction application must be held over pending the finalisation of case number 21620/2014.

Order: The applicant’s application is postponed sine die pending the finalisation of case 21620/2014. It is ordered that the first respondent will remain in occupation of the impugned property pending the outcome of case number 21620/2014.

Facts and issue: The appellants are the unlawful occupiers of an immovable property. The property houses approximately 45 people, comprising 17 independent family units. One such unit is housed in a room of a residential dwelling erected on the property. The remaining units are housed on separately constructed makeshift shacks. The respondent is the registered owner of the property. It sought and obtained an order evicting the appellants from it. This order was granted in the absence of the appellants who, when it came to their knowledge, took a number of steps to redress the situation in which they then found themselves. One such step was an application for the rescission of the judgment for their eviction. This was opposed by the respondent and ultimately dismissed. However, and with its leave, the appellants now appeal against the whole of that judgment and order.

Discussion: The deputy sheriff chose to effect service of the notice of motion and founding affidavit in the eviction application and the notice in terms of section 4(2) of PIE pursuant to Rule 4(1)(a)(ii). Such recourse was ill- conceived. The property was the home of approximately 45 persons comprising 17 independent family units. One such unit occupied a room in the dwelling situate on the property. The remaining 16 units occupied makeshift shacks which had been erected on it. The persons upon whom service was effected in each instance were not in charge of the separate dwellings located on the property. On this ground alone reliance on Rule 4(1)(a)(ii) must fail. The suggestion that the persons upon whom service was effected had been authorised to accept service on behalf of the appellants is no substitute for what the rule in express terms enjoins. The suggested authority of those persons has been placed in sharp dispute by the appellants. They have on oath stated that the persons in question are not known to them and certainly did not have their authority to accept service on their behalf. This has not been gainsaid by the respondent and there is no basis upon which that body of evidence falls to be rejected.

Findings: Service of the three documents in question did not accord with the requirements of Rule 4(1)(a)(ii) or for that matter any of the other Rules regulating the manner in which service is to be effected. The appellants have been consistent in their contention that they were unaware of the issue of process in the eviction proceedings, the notice in terms of section 4(2) of PIE and the date on which those proceedings had been enrolled for hearing. Equally, they were unaware that an order for their eviction was granted. There is on the papers no reason to doubt their word on the matter.

Order: The appeal is upheld. The order of the court a quo is set aside and is to be substituted. The judgment evicting the applicants from the immovable property is rescinded.

Facts and issue: Application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE), in which the applicant seeks the eviction of the respondents and all persons occupying under or through them, from the immovable properties. The applicant is the registered owner of the properties. The applicant alleges that the properties are currently or from time to time being occupied by the respondents. The provisions of PIE have been complied with.

Discussion: Where a respondent relies on a right of possession, for instance a lease, the respondent has to allege the right and bears the onus of proving same. Under section 1(2) of the Leases of Land Act, a long lease is not valid against a creditor or a successor under onerous title of the lessor for more than ten years unless the lease is registered, or the creditor or successor-in-title knew of the lease. The onus of proving knowledge is on the lessee. The Head Lease and RAPS lease are long leases within the meaning of section 1(2) of the Leases of Land Act, which were not registered against the title deeds of the properties. Knowledge in the context of the Leases of Land Act evidently implies actual knowledge.

Findings: The respondent was not empowered to represent the Trust when the Head Lease was entered into, as she was not a trustee at the time, and the Head Lease, falls to be regarded as invalid on that basis alone. Consequently, the RAPS lease would also be invalid. The respondents have failed to discharge the onus of proving or of adducing evidence justifying the conclusion that the applicant was aware of either the Head Lease or the RAPS lease when acquiring the properties. The respondents, as well as any persons occupying under or through them, are unlawful occupiers as envisaged in PIE.

Order: The respondents and any persons claiming right and/or all those that occupy the properties, are ordered to vacate the immoveable properties by no later than 31 January 2025, failing which they are to be evicted forthwith.

Facts and issue: This is an appeal against the order of the Magistrate’s Court. The magistrate ordered the eviction of the appellant under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The appellant, with her two daughters, aged 6 and 12, unlawfully occupied a fully furnished holiday apartment over a protracted period. She paid the rent for the first week on a seven-day short-term lease, then the rent for the second week, and secured a longer-term lease from the respondent. The appellant did not pay any further rent.

Discussion: The appellant has occupied the apartment with her two minor daughters since 17 August 2022 and in unlawful occupation since December 2022. The appellant has, by deduction, not paid any rent for the whole period of occupation except for the first two weeks. The longer-term lease has since been cancelled. There were two applications for eviction, the second being the subject of this appeal. The appellant, in addition, charged one of the respondents for harassment. The magistrate was informed that the appellant’s previous attorney had withdrawn as the appellant would not cooperate in complying with the court’s orders, including completing the housing questionnaire. The applicant’s disinclination to complete the questionnaire featured largely in the questioning that led to the magistrate denying her a postponement for want of legal representation. An assessment of the circumstances leading to the appellant being unrepresented, the conduct of the hearings where the appellant was unrepresented, the interests of the respondents and ultimately that this was not raised as a ground of appeal, or a review leads the court to conclude that absence of legal representation did not amount to a miscarriage of justice.

Findings: The magistrate complied with section 4(8) of PIE. The appellant did not raise any valid defence against the application for her eviction. She could not, as the procedural requirements were satisfied, the lease was terminated, she had not paid rent over a prolonged period, she received notice to vacate the apartment, and there were no defects in the procedure followed to evict her legally. This was the second application for an eviction, the first ending in a technicality that may have been decided incorrectly against the respondent as it had from being in charge of the apartment, the necessary locus standi under PIE to seek the eviction of the appellant. The magistrate gave the appellant eight weeks to vacate the apartment, failing which, she would have been evicted by the Sheriff a week later. These periods are eminently reasonable. Almost nine months have elapsed since the eviction order was granted. The appellant has had ample time to secure employment and can attend to her children's schooling if they need to be relocated to another school.

Order: The appeal is dismissed with costs.