A recent judgment by the Constitutional Court in William Grobler V Clara Philips and Others CCT243/21 provides clarity into the application of the court’s discretion to make an order which is just and equitable to the parties concerned, considering their particular circumstances. This case involved an 85 year old woman (“Phillips”) who had lived on a property since 1947. This property was sold to Mr Grobler (“Grobler”) who sought Mrs Phillips’ eviction after numerous attempts to amicably resolve the dispute. The case passed through the Magistrates Court (which ordered Mrs Phillips’ eviction), to the High Court (which reversed the decision of the Magistrates Court), to the Supreme Court of Appeal (“SCA”) (which upheld the order of the High Court) and finally to the Constitutional Court. The Constitutional Court upheld the eviction order granted by the Magistrates Court on the basis that it was just and equitable to do so, considering both parties’ rights and the offer by Mr Grobler to provide Mrs Phillips with a similar dwelling.
A full summary of the case can be found here. The Constitutional Court held that in applying its discretion to make an award, the ‘wishes’ or preferences of the unlawful occupier should not be factored in. In this case, the Constitutional Court held that the SCA had erred in exercising its discretion in considering Mrs Phillips’ wish to remain in the property despite the promise of suitable alternative accommodation and despite her status as an unlawful occupier. The Court further held that the owner should not be burdened with the obligation to provide free accommodation to an occupier in perpetuity, and that Mr Grobler’s offer to provide accommodation should not be construed as such. However, given that Mr Grobler’s offer still stood by the time the matter reached the Constitutional Court and that he consented to it being made an order of court, the Court ordered, inter alia, that Mr Grobler purchase a suitable dwelling to accommodate Mrs Phillips. In terms of this order, Mr Grobler would own this dwelling and Mrs Phillips would only be responsible for reasonable upkeep and municipal charges. Mrs Phillips was ordered to move out of the property she was unlawfully occupying within six months of registration of the alternative dwelling in Mr Grobler’s name, with Mr Grobler assisting her with costs of moving.
Contact us today if you require advice relating to eviction issues.
About the author
Megan started her articles with Dunsters in 2020 and is a graduate of the University of Cape Town (B.COM PPE, LLB). Megan is in the commercial team at Dunsters and enjoys working on drafting all kinds of contracts as may suit our clients’ needs. Her areas of interest lie broadly in the commercial sphere, with a more specialised focus on technology and the law. Megan also writes and oversees the editing of our insights and articles.
In her spare time Megan is Chairperson of the Cape Town Candidate Attorneys’ Association, loves to paint and prefers to spend her weekends outdoors. Cold-water swimming, running and hiking, she is keen on all the outdoor activities Cape Town has to offer.