29 Jan 2024


by Leza Kotze, Partner, Johannesburg,
Practice Area(s): Property & Conveyancing | Litigation |

CASE: Grobler v Phillips and Others 2024 (1) BCLR 115 (CC)

In a recent matter decided by a unanimous judgment of the Constitutional Court, the rights of a long-standing elderly, female occupier of property and her disabled son vis-à-vis the property owner were examined.

During 2008 Mr. Willem Grobler purchased property in Somerset West on which Mrs. Clara Phillips, an 84 year-old woman, had been living for some seventy years. Her disabled son Mr. Adam Phillips also lived on the property. In trying to persuade Mrs. Phillips and her son to vacate the property, Mr. Grobler met with Mrs. Phillips on several occasions and, during the course of their discussions, confirmed that he was prepared to make a financial contribution towards the costs of her relocation, or alternatively, to provide at his cost alternative accommodation for her and her son. In spite of this, however, Mrs. Phillips was not prepared to move from the property and contended that she enjoyed an oral right of lifelong habitatio granted by a previous owner which was enforceable against Mr Grobler as the previous owner’s successor in title.

The question that arose was whether it was just and equitable, as envisaged by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (“PIE”) to evict Mrs Phillips and her son from the property. As the land in question initially constituted a farm prior to being absorbed by the growth of urban development, Mrs Phillips further invoked the provisions of the Extension of Security of Tenure Act, No 62 of 1997 (“ESTA”), which grants occupiers of rural areas, farms and undeveloped land under certain circumstances the right to remain on the land for their lifetime.

On approaching the Magistrates Court for relief, Mr Grobler was granted an order of eviction against Mrs. Phillips. Ultimately after hearing evidence of Mrs. Phillips' personal circumstances, evidence of the availability of alternative accommodation, and reports from the local social services department, the Magistrates Court ordered that Mrs. Phillips should vacate the premises by a certain date. Mrs. Phillips thereafter appealed to the High Court, which held that she was not an unlawful occupier and that it would not be just and equitable to evict her. Mr. Grobler appealed to the Supreme Court of Appeal, which concluded that Mrs. Phillips was an unlawful occupier but that the High Court was correct in finding that it would not be just and equitable to evict her. As a last resort Mr. Grobler then approached the Constitutional Court.

Section 4(7) of PIE reads: “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 illegal occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

It should be noted that Mrs. Phillips was approached by Mr. Grobler, both personally and through his attorneys, on several occasions before the commencement of the eviction proceedings in the Magistrates Court and offered alternative accommodation in a bid to reach a compromise. None of these offers were accepted. During the Magistrates Court proceedings, after the order of eviction was granted in Mr. Grobler's favour by the court, Mr Grobler made an offer to bear Mrs. Phillips' reasonable costs of accommodation in a retirement centre for a period of 12 months provided that those costs were limited to R4 000 per month. He also offered to assist Mrs. Phillips with her relocation costs and agreed that she could continue to occupy the property for two months after the date of the order. This offer was also rejected by Mrs Phillips because she was accustomed to life in the house that she occupied on Mr Grobler’s land and enjoyed not only the freedom and space it afforded her but also the environment around it.

In its judgement the Constitutional Court took into account not only Mrs Phillips’ age, the fact that she is female and that her son is disabled, but also all of Mr Grobler’s previous efforts in providing alternative accommodation to Mrs Phillips and her son, as well as the fact that she did not seriously consider any offer made to her or put forward any counteroffers. All of these factors have bearing on what is just and equitable in a specific case. The Court further took into account the fact that Mrs Phillips would have been protected by ESTA if the farm that she initially occupied had not become absorbed by urban development. It however held that the right of residence that Mrs Phillips enjoyed was not necessarily tied to the specific house that she occupied, thus applying the principle laid down in previous decisions involving ESTA, also to an occupier residing within a proclaimed township. ESTA was not enacted to provide security of tenure to an occupier in the house of his or her choice and the wishes or personal preferences of the unlawful occupier as regards the property are not relevant.

This further aligns with Section 26 of the Constitution, which provides everyone the right to have access to adequate housing; however as stated by the Court: “The Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live.”

In its order the Constitutional Court directed Mr. Grobler to purchase a two-bedroom dwelling in a good condition which was to comply with certain specified requirements, including that it should have at least two bedrooms, that it should be situated within five kilometres from the street where Mr Grobler’s property is located and that regard should be had to Mrs Phillips’ age and her son’s disability. Once the dwelling was registered in her name, Mrs. Phillips and her son would thereafter have the right to reside there for the rest of Mrs. Phillips' life and Mr. Grobler was ordered to register that right against the title deed of the property. Mr Grobler was further directed to arrange and pay for all the relocation costs of Mrs. Phillips and her son, including the costs of removal and transportation of their furniture, personal goods and effects to the dwelling. Mrs. Phillips and her son would be liable for the costs of municipal services rendered to them and for the reasonable maintenance costs of the interior of the dwelling. In the event that Mrs Phillips and her son do not take occupation of the alternative dwelling, they will be evicted from Mr Grobler’s property.