SUPREME COURT OF APPEAL CONFIRMS SECURITY OF TENURE OF ELDERLY FEMALE AND HER MENTALLY DISABLED SON

On 14 July 2021, the Supreme Court of Appeal, following a twelve-year legal battle, delivered judgment in favour of the Stellenbosch University Law Clinic’s 84-year-old client, Ms Clara Phillips, and her mentally disabled son. The SCA dismissed the landowner’s appeal against the judgment of the Western Cape High Court in which it was ruled that the eviction order granted against Ms Phillips and her son in the Somerset West Magistrate’s Court during 2016 should be set aside.

At the time of the lodging of the eviction application, Ms Phillips was 73 years old and had been residing on the property for 62 years – since 1947 – when she was 11 years old. The Somerset West Magistrate’s Court granted an eviction order against Ms Phillips and her son in August 2016, and they were ordered to vacate the property by August 2017. The Law Clinic successfully assisted Ms Phillips with lodging an appeal against the Magistrate Court’s judgment and order at the High Court. The High Court set aside the eviction order. Ms Phillips was 81 years old at that time. An application for special leave to appeal to the SCA was lodged by the property owner in 2019. The application was granted by the High Court in June 2020.

On appeal, the SCA found that Ms Phillips had lived on the property for the greater part of her life, with the express consent of successive property owners. Although the “life-right” which was verbally conferred upon Ms Phillips, was not enforceable against a subsequent owner, it remained a hefty consideration in determining what was just and equitable in the circumstances. The SCA also held that, although the protection that Ms Phillips and her son would have enjoyed under the Extension of Security of Tenure Act, 62 of 1997 fell away, it did not change the fact that they were vulnerable persons who deserve appropriate protection. The conversion of the property from a farm into an urban residential property, occurred at a time that Ms Phillips believed that she and her son were protected by the verbal life-long right of occupation to the property. The SCA took these circumstances, coupled with Ms Phillips’ advanced age and the fact that she occupies the property with her disabled son, into account and concluded that the circumstances of the case were such that an eviction order would not be just and equitable. This conclusion was made irrespective of an offer made by the landowner during the hearing of the appeal in the SCA, to provide alternative accommodation to Ms Phillips and her son. The appeal was accordingly dismissed.

The judgment is important from the legal point of view that the SCA found that, although a verbal life-long right to occupy the property cannot be enforced against a new property owner, it is an important consideration when a court has to decide, in the context of an eviction, on what is just and equitable.

 


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