THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: 23189/2011
In the matter between:	Not Reportable
DAPHNE MARGUERY ROSEMERIEN	FIRST APPLICANT
OCTOBER
DAPHNE MARGUERY ROSEMIRIEN	SECOND APPLICANT
OCTOBER N.O.
And
CARMEL VANIA HENDRICKS	FIRST RESPONDENT
KEVIN HENDRICKS	SECOND RESPONDENT
Coram: ROGERS AJ 
Heard: 29 JANUARY 2013
Delivered: 31 JANUARY 2013
JUDGMENT
Introduction

[2] The applicant’s late husband, to whom she was married in community of property, died on 17 November 1995. His estate is being administered in accordance with a joint will in terms of which the parties massed their estates and appointed the survivor of them as the executor. The applicant has thus been appointed as the executrix. The will bequeaths the property to Carmel and another daughter, Edlyn, subject to a life usufruct in favour of the applicant. The applicant brings this application in her personal capacity and as executrix. The delay in the winding-up of the deceased’s estate is not fully explained in the papers but seems to be attributable to the applicant’s relative lack of sophistication and limited means to get professional help.
[3] In the will the parties stated that their daughters were to vacate the property upon getting married (even though they might by that stage be joint owners of the property). This provision was presumably inserted because of the strained relationship that existed between the applicant and Carmel.
[4] There are factual disputes regarding the events following the applicant’s husband’s death in 1995. Since the applicant seeks final relief the respondents’ version must be accepted. The respondents’ allegations are not so far-fetched or implausible that I could reject them on the papers. I emphasise, though, that much of what follows is disputed by the applicant.

The facts

[6] In March 1999 Carmel married the second respondent with whom she has had three further children.
[7] Carmel only learnt of her late father’s will in 2005 when she was consulted by attorneys who were attending to a purported sale of the property by the applicant. The sale was impermissible in the light of the terms of the will and did not proceed.
[8] In March 2006 the applicant’s brother and sister asked Carmel to move back into the house because the applicant was suffering from diabetes and had collapsed on several occasions. They wanted Carmel to be in the house to assist the applicant. This was with the applicant’s blessing. Carmel, her husband and their children thus took up occupation in the house.
[9] The applicant and the respondents agreed that the latter would pay rent of R400 per month. The respondents paid this rent for about a year. They then stopped paying rent because they were paying for water, electricity and groceries for the household, such payments exceeding R400 per month.

[11] From April 2007 until the present time the applicant has been living with Edlyn. The applicant was not happy about being forced out of the house (this is how she saw it). In May 2008 she brought an eviction application in the Mitchell’s Plain Magistrate’s Court. On 23 July 2008 that court found that on the version asserted by the respondents they ‘may have a valid defence’. The court thus declined to grant an eviction order. (According to the respondents there had been an earlier attempt at eviction, also unsuccessful, but no further particulars have been provided.)

[13] The applicant paid the bond instalments on the property until 2009. The rates are deducted from her monthly pension. The respondents have paid for utilities though arrears have from time to time accumulated.
Unlawful occupation
[14] The first disputed question is whether the respondents are ‘unlawful occupiers’ as defined in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘the Act’). For present purposes the enquiry is whether the respondents are persons who occupy the property ‘without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such [property]’.

[16] The question is thus whether the respondents are occupying the property with the consent of the applicant, whether in her capacity as executrix or as usufructuary. It is common cause that the respondents had such consent when they moved back into the house (on the respondents’ version, this was in March 2006). At least for a time thereafter their occupation was lawful.
[17] The applicants’ version is that the respondents were only invited back into the house for a period of two months. The applicant puts this in 2005, not 2006, and alleges that it was a favour to the respondents. She denies that they moved into the house in order to look after her. The respondents, while advancing a contrary version, do not allege that there was an agreement that they could stay in the house for a specific period (for example, ten years) or for as long as they pleased.

[21] I have assumed that the respondents were (on their version) entitled to reasonable notice. Quite possibly summary termination would have

[22] I thus find that at the time the application was issued the respondents were ‘unlawful occupiers’ and that they are still unlawful occupiers.
Just and equitable
[23] The next question is whether it is just and equitable to order the respondents’ eviction as contemplated in s 4(7) of the Act. In this regard I must take into account, among other things, that Carmel’s eldest daughter, Kaylen, who is now 15, suffers from cerebral palsy and is wheelchair-bound. Section 4(7) requires the court to have regard to the rights and needs of disabled persons.
[24] As against this, the applicant, who wants to move back into the house, is now 73. Though she suffers from diabetes, she says she can look after herself and no longer wants to be an imposition on Edlyn. Section 4(7) requires the court to take into account the rights and needs of the elderly, a category into which the applicant falls.
[25] Although neither the applicant nor the respondents are persons of substantial means, they would not be rendered homeless if the court refused or granted an eviction order as the case may be. The applicant could probably continue living with Edlyn, though whether as a pensioner she could afford to rent a house if Edlyn was no longer willing to have her is by no means clear.

[27] Mr Fisher urged me to take into account that it was at the request of the applicant’s siblings and with the applicant’s blessing that the respondents gave up their previous rented accommodation and moved back into the house in March 2006. While this is a feature which, in assessing what is just and equitable, might have been of some significance in the earlier stages of the respondents’ occupation, it is a consideration which has over time diminished in importance. As I have said, the purpose for which the respondents were invited to stay in the house had altogether failed by April 2007. The respondents have known since then, and at least since May 2008, that the applicant did not want them there. They have, against the applicant’s wishes, continued for some years to have the benefit of rent-free accommodation.

Date for vacation and enforcement of eviction

[32] Although the respondents have been in unlawful occupation against the applicant’s wishes for four to five years and do not themselves have a strong argument for indulgence, the interests of their children dictate that a generous period be afforded for the respondents to find alternative accommodation. In my view three months would suffice. This was the period I put to counsel. Mr Fergus for the applicant initially submitted that six weeks would be appropriate but did not resist the lengthening of the period to three months. Mr Fisher, while submitting that a period of up to five months should be considered, did not contend that three months would be unjust.

[34] In terms of s 4(12) the court can vary the conditions of an eviction order on good cause shown. If the respondents, despite diligent endeavour, are unable to secure suitable accommodation within a period of three months, they will be entitled to approach the court for an extension on good cause shown.
Res Judicata

Costs

[40] I do not intend to decide whether the case cited by Mr Fergus was correctly decided. Given the limited means of the parties and the regrettable rift that already exists between the applicant and Carmel, I do not think I should make matters worse by granting a costs order where the applicant’s legal representatives have, commendably, undertaken to assist her for no charge.
The order
[41] I make the following order:

[b] If the respondents and those holding under them fail to vacate the property by Tuesday 30 April 2013, the eviction order may be carried out on or after Monday 6 May 2013.
[c] There will be no order as to costs
ROGERS AJ
APPEARANCES
For Applicant:		S Fergus

				Cape Town

Instructed by: 
Equilore 
Cape Town