The Constitutional Court has ruled that Clara Phillips (85), who lives on a farm in Somerset West, must vacate the only home she has known since 1947.

A News24 report says Willem Grobler, who brought the application, purchased the property at a public auction. It was registered in his name in September 2008.

Grobler requested that Phillips vacate the property by the end of January 2009, but she refused to leave, claiming that she ‘enjoyed a right of life-long (occupancy) granted to her by a previous owner,’ which she wanted to enforce against Grobler.

According to court papers, Grobler made various offers to Phillips to reach a compromise, including paying for relocation costs and offering alternative accommodation. However, all these offers were declined.

This resulted in Grobler approaching the Magistrate's Court and launching an eviction application, which was granted.

However, this was later overturned by the High Court, which found that Grobler had not established that Phillips was an unlawful occupier as defined in the Prevention of Illegal Evictions and Unlawful Occupation of Land Act (PIE). Furthermore, the High Court said Phillips was also entitled to rely on the Extension of Security of Tenure Act (ESTA), which was raised for the first time on appeal to that court. It also found that Grobler had not discharged the onus of establishing that the provisions of ESTA did not apply.

The court said even if Phillips were an unlawful occupier, and even if ESTA did not apply, it would not be just and equitable to grant an eviction order.

Grobler launched an application for leave to appeal in the SCA, which ruled against him.

The SCA held that the High Court was entitled to ‘exercise a discretion not to grant an eviction order in spite of the unlawful occupation and that there was no misapplication or misdirection of the law, or any misdirection on the facts’, according to court papers.

The News24 report notes Grobler then approached the Constitutional Court, which has now found in his favour.

In a unanimous judgment written by Justice Zukisa Tshiqi, the court said: ‘The wish of a party to remain on someone else’s property, unlawfully, and not to be moved to alternative accommodation is not one of the factors that has previously been taken into account in determining what is just and equitable. This raises the question whether the SCA, in taking into account Mrs Phillips’ wish or preference to continue to occupy the property unlawfully, misconceived the test to be applied when considering what is just and equitable in eviction proceedings. That question requires the attention of this court.’

Tshiqi said the question of whether the constitutional rights of the unlawful occupier were affected by the eviction was one of the relevant considerations – but added that the wishes or personal preferences of the unlawful occupier were not relevant.

‘An unlawful occupier such as Mrs Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain in the property that she is occupying unlawfully. 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.’

According to News24, Tshiqi continued: ‘Who then bears the obligation to provide alternative accommodation? Section 4(7) of PIE clearly states that such obligation lies with a “municipality or other organ of state or another landowner”.’

She added: ‘Of course when dealing with considerations of justice and equity, the capacity of a landowner to provide alternative accommodation and the peculiar circumstances of an evictee are relevant. But the fact that Mr Grobler has repeatedly made offers of alternative accommodation to Mrs Phillips should not be taken as creating any obligation on him to offer alternative accommodation.’

Full News24 report

Judgment