AA - 2021

Author:  Lisa Isaacs
Cape Times
6 August 2021

Bantry Bay tenants win rights to remain

Cape Town – The Supreme Court of Appeal (SCA) has upheld an appeal against a Western Cape High Court decision to evict a Bantry Bay woman, her 83-year-old mother and their housekeeper.

The issue before the SCA was whether any right, that appellant Petra Davidan, her mother Helene Schonees, and housekeeper Elizabeth Gunta may have had to occupy the property, had been lawfully terminated.

Davidan and the late Mercure Paizee met in March 2002 when Paizee was residing at the property and soon began co-habiting.

In March 2004, the Botany Bay Trust was created and Paizee transferred the property to the Trust.

A mortgage bond was registered over the property for the 20 years.

It was not disputed that on July 12, 2004, Davidan and the trustees entered into a one-year lease agreement. Rent was R20 000 per month.

After the expiry of this lease, Davidan alleged that she and Paizee entered into an oral agreement with the trust, represented by one of the trustees, to the effect that they would be entitled to occupy the property and in return pay instalments and the municipal rates for the duration of the bond.

On September 12, 2017, Davidan found Paizee in his study with a fatal gunshot wound.

In 2018, the trustees wrote to Davidan requesting payment of R40 000 per month toward the bond repayments, in return for a monthly tenancy.

The trustees informed Davidan that she would be required to vacate the property by no later than April 30, 2018.

She refused to vacate the property and as a result, the Trust successfully launched an application in the high court for an eviction.

The SCA, however, held that the jurisdictional requirement to trigger an eviction under the the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) is that the person sought to be evicted must be an unlawful occupier within the meaning of PIE at the time when the eviction proceedings were launched.

The SCA accepted Davidan’s version that she was a tenant under an oral lease.

The SCA further found that there was no suggestion that the oral lease agreement was terminated.

“(Davidan) is not an unlawful occupier in terms of PIE. No case has been made out against the appellant, her mother or Ms Gunta therefore, the eviction sought against them must fail.

“It is accordingly unnecessary to consider the second ground on which leave was granted,” the SCA judgement reads.

In a separate dissenting judgment, it was held that the appellant did not have the consent to occupy the property.

It was on this basis that the dissenting judge would have dismissed the appeal and upheld the high court’s eviction order.

The original article can be viewed here:

The SCA Judgment can be viewed here: