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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

ECJ:

PARTIES: PAUL KEMP

And

CYNTHIA PHUMELA KHOHLILE

• Registrar: 1778/08

• Magistrate:

• High Court: SOUTH EASTERN CAPE LOCAL DIVISION

DATE HEARD: 19/02/09

DATE DELIVERED: 26/02/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Applicant(s): ADV: M.F. Horn

2. for the Respondent(s): ADV: E. Theron

Instructing attorneys:

• Applicant (s): O’BRIEN INCORPORATED

• Respondent(s): PORT ELIZABETH JUSTICE CENTRE

CASE INFORMATION -

1. Nature of proceedings : EVICTION

Not reportable

In the High Court of South Africa

(South Eastern Cape Local Division, Port Elizabeth) Case No 1778/2008

In the matter between

PAUL KEMP Applicant

and

CYNTHIA PHUMELA KOHLILE Respondent

SUMMARY: Eviction – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 – application to evict an unlawful occupier and those occupying with her or through her – respondent not proved to be in occupation – application dismissed.

JUDGMENT

JONES J:

[1] This is an application in terms of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 for the eviction of the unlawful occupier of a house at 41 Hlobo Street, Motherwell, Port Elizabeth (Erf 7293 Motherwell), which is part of the Nelson Mandela Metropolitan Municipality, Port Elizabeth. The respondent is a Mrs Kohlile, who is alleged to reside at the property. The applicant’s founding papers allege that the applicant does not know whether other persons occupy the property with her, but it is now common cause that her father and mother, aged 81 and 78 years, her two children aged 24 and 20 years, and her infant grandchild aged 2 years live at the property.

[2] The respondent opposes the application. Her sole defence is that she is not in occupation. She lived there with her parents, two children and her grandchild from 2004 until 2006, when she moved out and took up residence with her boyfriend at 2 Mpetha Street, NU 10 Motherwell, Port Elizabeth. That is where she now resides. Her parents, children and grandchild still live at 41Hlobo Street, and she goes there on a daily basis to cook and clean for them. She also on occasion sleeps over there when her parents are ill or need assistance. But she denies that she is the occupier.

[3] The applicant has established that he is the registered owner of the property. It was formerly registered in the name of the respondent’s brother and sister in law, a Mr and Mrs Oliphant, but was apparently repossessed in 1993 and was registered as the property of a number of financial institutions before it was purchased by the applicant in 2007. The applicant has also established that those presently in occupation are unlawful occupiers within the meaning of the Act, that they have been given proper notice to vacate, and they have failed to do so. Assuming for the moment that the respondent is the occupier, I can accept that the formal requirements of section 4 of the Act in respect of notice of these proceedings have been satisfied. The respondent was given notice in terms of section 4(2), although there is ambiguity, to say the least, in the return of service of the court order and rule 4(2) notice on her.¹ Nothing has been made of this lack of clarity in argument on behalf of the respondent, and I accept for present purposes that she and the persons presently living there have all been made aware of this application and its effect upon them. If the respondent is proved to be the occupier, the applicant is entitled to an eviction order against her and those occupying with her.

[4] The applicant argued that on the facts disclosed in the papers he has established on a balance of probabilities that the respondent is indeed the de facto occupier, and that her denial is easily manufactured and should be disregarded. I do not agree. The respondent’s allegations are on record, on oath, and are not challenged or contradicted by other allegations. There is nothing inherently improbable about the respondent giving up her occupation of the property in order to take up residence with a life partner. The fact that she took up the cudgels on behalf of her aged parents, children and grandchildren in an attempt to avoid their eviction from their home does not make her an occupier. Nor does the fact that she spends considerable time at the premises. I do not accept the argument by the applicant’s counsel that the respondent’s failure to file a supporting affidavit by her partner makes her evidence unacceptable. An occupier is ‘one holding possession of property, especially a dwelling or land, and specifically a person living in a dwelling as its owner or tenant’ (SOED). Section 4 gives a remedy under the Act against a person who is an unlawful occupier of land, i.e. a person who occupies land without the express or tacit consent of the owner or without any other right to occupy the land. There can be no remedy if the person is not an occupier. Even if the applicant’s argument can be thought to go so far as to raise a dispute about her occupation, these are proceedings on notice of motion, not designed for the resolution of a dispute of fact. This is not one of those exceptional cases where the court may reject the defence merely on the papers because of its inherent lack of credibility (Plascon-Evans Paints Limited v Van Riebeeck Paints (Proprietary) Limited [1984] ZASCA 51; 1984 (3) SA 623 (AD) at 634E-635C) or because, in the circumstances, it is proper and possible to take a robust, common sense approach to a particular dispute of fact (Soffiantini v Mould 1956 (4) SA 150 (E)). It is also not a case for a referral to oral evidence, and I was, in any event, not asked to take that course.

[5] The applicant argued in the alternative that he has in any event made out a case of eviction against the respondent’s parents, children and grandchild. That is not so. They have not been sued and cited. They have not been given the requisite statutory notice. They have not been heard on whether or not they should be evicted. The court is not in a position to consider whether their eviction is just and equitable by reason of the factors enumerated in section 4(7). That they could have been evicted as persons occupying with or through the respondent, if she had been an occupier, does not in the circumstances take the matter any further.

[6] In the circumstances the application is dismissed with costs.

RJW JONES

Judge of the High Court

24 February 2009

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