Davidan v Polovin N O and Others

The respondents, as trustees of the Botany Bay Trust, owned a residential property in Bantry Bay, Cape Town. The appellant, Ms Petra Davidan, lived on the property together with her elderly mother and a housekeeper. She initially occupied the property under a written one-year lease concluded in July 2004 with the Trust. After its expiry, she alleged that an oral agreement was concluded between herself, her partner Mr Paizee (a beneficiary and trustee at the time), and the Trust, in terms of which she and Mr Paizee could continue occupying the property in lieu of rent by paying the bond instalments and municipal charges. Following Mr Paizee’s death in 2017, newly appointed trustees demanded that the appellant conclude a formal lease at a higher rental or vacate the property. When she refused, eviction proceedings were instituted under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The High Court granted an eviction order, finding that the appellant had no independent right of occupation. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The eviction order granted by the Western Cape Division of the High Court was set aside and replaced with an order dismissing the eviction application with costs.

The case clarifies that under PIE, an occupier who originally had consent or a contractual right to occupy land cannot be evicted unless that right has been lawfully terminated. It emphasises that mere demands to vacate or invitations to conclude a new lease do not constitute lawful termination. The judgment reinforces procedural and substantive protections against eviction and the importance of properly pleading termination of consent in eviction proceedings.