19 January 2022 13:00 by Merilyn Kader
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In Davidan v Polovin NO and Others  4 All SA 37 (SCA) right of occupation and nature of necessary consent in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Property - Eviction order: The respondents in Davidan v Polovin NO and Others  4 All SA 37 (SCA) were trustees in a trust, which owned a house in which the appellant and her partner had resided together. In September 2019, the High Court granted an order in terms of s 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, evicting the appellant and all those who occupied through or under her, from the property. According to the appellant, she and her partner had entered into an oral agreement with the trust, allowing them to occupy the property. After the death of her partner, the appellant was requested to enter into a formal lease agreement with the trust. Her refusal led to the trustees obtaining an eviction order against her.
The jurisdictional requirement to trigger an eviction under the Act is that the person sought to be evicted must be an unlawful occupier within the meaning of the Act at the time when the eviction proceedings were launched. Section 1 of the Act defines an unlawful occupier as ‘a person who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land’. Consent is defined as ‘the express or tacit consent, whether in writing or otherwise, of the owner or person in charge to the occupation by the occupier of the land in question’.
The key question was whether the appellant enjoyed a right of occupation. The first inquiry was whether the appellant had the necessary express or tacit consent to reside on the property owned by the trust. In other words, it had to be established whether the oral agreement had been proved. After establishing that the appellant had the necessary consent, the court considered whether the appellant’s right to occupy was lawfully terminated. The appellant relied on the oral agreement with the previous trustee in support of her allegation of consent having been obtained to occupy the property. The trust would have been obliged to comply with the terms of that agreement before it could terminate the appellant’s right of residence. The underlying basis for the termination had to be legal, for example, the expiration of the lease or a material breach of the terms of the agreement. There was no suggestion that the oral agreement was terminated.
The majority of the court concluded that the appellant was not an unlawful occupier in terms of the Act. The eviction order was not justified, and the appeal was upheld with costs.
In a dissenting judgment, it was stated that the appellant did not have consent or any other right to occupy the property and, therefore, the trustees had no obligation to terminate her right of residence. The eviction order was viewed as just and equitable.
Merilyn Rowena Kader
Legal Editor at LexisNexis