Consumer Information

Author : Maryna Botha – STBB
28 July 2016

RESISTING EVICTION:  ALTERNATIVE ACCOMMODATION SCARCE
COETZEE V PEPET PLACE EIENDOMME CC (AR509/2015) [2016] ZAKZPHC 60 (28 JUNE 2016)

A court will evict someone from a property if it has been shown that the person is there illegally (such as where a tenant refuses to leave after the landlord cancelled the lease). The PIE Act however obliges a court to consider various additional factors, including availability of alternative accommodation, before such an order is made. What will the outcome be if the occupier shows that it will be very difficult, though not impossible, to obtain alternative accommodation?

SUMMARY OF JUDGMENT

FACTS
Coetzee leased a property from Pipet Place Eiendomme CC (PP). In terms of the written lease agreement, the lease would terminate on 31 July 2014. Clause 5.2 of the agreement made provision for the premises to be leased to Coetzee on a monthly basis and on the same conditions as contained in the agreement, but subject to the condition that PP was entitled to give Coetzee a calendar month’s notice of termination. The agreement made no provision for renewal.

On termination of the agreement in July 2014, Coetzee continued to remain in occupation and, in August 2014, PP gave him a calendar month’s notice of termination. In terms of the notice the termination would take effect on 30 September 2014. Notwithstanding the notice, Coetzee refused to vacate.

PP then applied to court for an order evicting Coetzee. This was successful and Coetzee was given six weeks in which to find alternative accommodation. Coetzee appealed the judgment and argued that the magistrates’ court did not adequately take into consideration the fact that he would not be able to, so he alleged, find alternative accommodation.

HELD
• In considering an application for eviction under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (PIE), a court is required to have regard to the relevant circumstances placed before it. This is because, in terms of PIE, an eviction order may only be granted if it is just and equitable to do so after the court considered all the relevant circumstances.

• In any given instance, the ‘relevant circumstances’ will include the availability of land for the relocation of the occupiers and the rights and needs of the elderly, children, disabled persons and households headed by women. Once these have been considered by the court, and there is no valid defence to an eviction order, then a court must grant an eviction order. However, also when granting such an order, the court must take the ‘relevant circumstances’ into account by determining a just and equitable date by which the unlawful occupier must vacate the premises. A court may attach reasonable conditions to an eviction order.

• It was clear from the record of the proceeding in the magistrates’ court, that the magistrate:

(i) before granting the eviction order, considered the circumstances, including the availability of alternative accommodation. The magistrate also specifically enquired about Coetzee’s financial position and it was established, in court, that the rental (in Richards Bay) of R3,000 was very affordable and that if Coetzee was unable to pay that amount, it would be very difficult for him, but not impossible, to find something alternative;

(ii) again considered Coetzee’s personal circumstances and alternative accommodation when determining a just and equitable date by when he should vacate the premises. Having heard the submissions, the magistrate afforded Coetzee a further period of six weeks to remain in occupation until he obtained other suitable accommodation.

• Accordingly, it appeared that the judgment adequately considered all the relevant facts and could not be faulted. If anything, Coetzee could consider himself fortunate to have been able to remain rent-free in occupation of PP’s premises, albeit unlawfully, for almost nine months. He also did not show that he was disadvantaged in any way or poverty-stricken. He was self-employed and capable of generating an income for himself.

CONCLUSION:
The appeal failed. 

The Judgment can be viewed here: