Constitutional Court orders Western Cape woman, 85, to vacate the home she has occupied since 1947

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The ConCourt has ordered an 85-year-old woman to vacate her lifelong home.
The ConCourt has ordered an 85-year-old woman to vacate her lifelong home.
PHOTO: Alon Skuy, Gallo Images, Sowetan
  • A Western Cape woman and her son are forced to vacate their home following a ruling by the Constitutional Court. 
  • The 85-year-old woman had lived on the farm since 1947, when she was 11 years old. 
  • The property was purchased at a public auction.

An 85-year-old woman who lives on a farm in Somerset West in the Western Cape is now forced to vacate the only home she has known since she was a child, following a Constitutional Court ruling on Tuesday. 

Clara Phillips has been living in the house since 1947, when she was just 11 years old.

Willem Grobler, who brought the Constitutional Court 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 the elderly woman 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, 19 of 1998 (PIE).

Furthermore, the High Court said Phillips was also entitled to rely on the Extension of Security of Tenure Act 62 of 1997 (ESTA), which was raised for the first time on appeal to that court.

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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. 

It took into account her advanced age, the period for which she had lived on the property, and the fact that her household was occupied by a disabled person.

Aggrieved by this decision, Grobler launched an application for leave to appeal in the Supreme Court of Appeal, 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.  

Grobler then approached the Constitutional Court, which found in his favour on Tuesday. 

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 Supreme Court of Appeal, 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.

"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.

Tshiqi then set aside the order of the SCA.

However, the Constitutional Court has not left the elderly woman and her disabled son in the cold and instead ordered Grobler to purchase a two-bedroom dwelling in good condition that is situated within a radius of 5km from where Phillips lived.

Tshiqi said once the two-bedroom house was registered in Grobler's name, Phillips and her son "shall have the right to reside in the dwelling for the rest of Mrs Clara Phillips' life, and Mr Willem Grobler is directed to register the aforementioned right against the title deed of the dwelling".

Grobler is also directed to arrange and pay for all the relocation costs of Phillips and her son, including the removal and transportation costs of their furniture, personal goods and effects on the dwelling.

However, Phillips and her son will be liable for the costs of municipal services that are rendered by the municipality to them in respect of the dwelling and will be liable for the reasonable maintenance costs of the interior of the dwelling.

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