Case No.: CCT243/2021 (SCA Case No.: 446/2020) (WCHC Case No.: A291/2017) In the matter between:
WILLEM GROBLER Applicant
and
CLARA PHILLIPS First Respondent
JOHAN VENTER N.O. Second Respondent
HELDERBERG MUNICIPALITY Third Respondent ____________________________________________________________
FIRST RESPONDENT’S PRACTICE NOTE
____________________________________________________________
a) Names of parties and case number:
i. Applicant – Willem Grobler.
ii. First Respondent – Clara Phillips.
iii. Second Respondent – Johan Venter N.O. (not participating in the application).
iv. Third Respondent – Helderberg Municipality (not participating in the application).
v. Case Number: CCT243/21
b) Nature of the proceedings:
An application for leave to appeal an Order of the Supreme Court of Appeal (“the SCA”) dismissing an appeal from the Western Cape High Court, the High Court having allowed an appeal by the first respondent against an Order of the Somerset West Magistrates’ Court to evict her under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
c) Main issues to be argued:
i. Whether there are grounds for interfering with the exercise by the SCA (and before that the High Court) of the judicial discretion against eviction vested in the courts by section 4(7) of PIE.
ii. Whether it is just and equitable to evict the first respondent.
iii. Whether the applicant’s offer of alternative accommodation, made during the hearing of the appeal before the SCA, should be considered and should result in an order of eviction.
d) Portions of the record necessary for the determination of the matter:
i. We concur with the applicant regarding the portions of the record that need not be read (per the applicant’s practice note of 8 February 2022), except that we consider that page 531 of vol 6 should be read because it records confirmation of the applicant’s attitude to alternative accommodation of the first respondent at that time (we understand that the references to pages 457-469 in the applicant’s practice note are intended to be references to pages 530-542).
ii. We consider that the following portions of the record are particularly pertinent to the appeal (it is convenient to read them in the chronology that follows):
Vol. Pgs. Description
1. 1 – 89 Original Eviction Application.
2. 121 – 124 Affidavit of John Richard Inglis Ince.
6. 505 Letter regarding missing court proceedings.
7. 629 – 633 Evidence in chief of Clara Phillips (reconstructed).
2. 137 – 193 Cross-examination of Clara Phillips.
5. 462 – 503 Evidence of Willem Jacobus Grobler.
7. 640 – 646 Evidence in chief of John Richard Inglis Ince (reconstructed).
6. 507 – 522 Judgment of Somerset West Magistrates’ Court (merits).
6. 527 – 528 Record of Mr Grobler’s instructions and response thereto.
6. 581 Judgment of Somerset West Magistrates’ Court (setting date for eviction)
7. 670 – 695 Judgment of High Court.
8. 775 – 798 Judgment of SCA.
9. 818 – 872 Applicant’s affidavit dated 18 May 2021.
9. 873 – 886 First respondent’s answering affidavit in the Constitutional Court.
e) Estimation of duration of oral argument:
Half a day.
f) Summary of argument:
i. The unique facts of this case entirely justify the exercise in favour of the first respondent, first by the High Court and then by the SCA, of the just and equitable discretion vested in the courts by section 4(7) of PIE.
ii. The applicant’s central argument now is that he has offered alternative accommodation and has made the first respondent’s eviction conditional on it. That offer was not made in the Magistrates’ Court or in the High Court, and was only made from the bar during argument in the SCA.
iii. The belated tender of alternative accommodation meant that it was not part of the appeal before the SCA and could not be considered by that Court. It is submitted that this Honourable Court, too, should not countenance an offer described by the SCA as belated and tangential.
iv. Even if the tender were to be treated as part of the appeal, the SCA was correct in its decision to uphold the decision of the High Court. That decision should moreover only be disturbed if this Court considers that the SCA failed properly to exercise its judicial discretion, given the “strict” discretion afforded to Courts under section 4(7) of PIE.
v. Alternative accommodation only ameliorates the harm homelessness causes to an evictee. In this case there is no
doubt that homelessness would have extreme consequences for the first respondent and her disabled son.
vi. Homelessness is however not the only factor to be considered in the enquiry as to whether an eviction is just and equitable.
A critical issue in this case is that the first respondent was granted a personal right of habitatio by predecessors in title to the applicant.
g) List of authorities on which particular reliance will be placed:
i. City of Johannesburg v Changing Tides 74 (Pty) Ltd and others 2012 (6) SA 294 (SCA).
ii. Occupiers, Berea v De Wet NO and another 2017 (5) SA 346 (CC)
iii. City of Johannesburg Municipality v Blue Moonlight Properties 39 (Pty) Ltd and another 2012 (2) SA 104 (CC)
iv. Malan and another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA)
v. Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC)
Eduard Fagan SC Andrew Morrissey
First respondent’s counsel Chambers, Cape Town 15 February 2022
