Arendse and Another v Communicare NPC and Others

On 28 May 2014, the first and second appellants concluded a written lease agreement with the first respondent (Communicare NPC) for residential premises in Wynberg, Cape Town, administered by the first respondent. The lease commenced on 1 June 2014, continuing indefinitely subject to one month's written notice. The initial rental was R4,285 per month with a deposit of R8,570. The appellants fell into arrears with rental payments from October 2020. On 25 June 2021, the first respondent's attorneys dispatched a formal notice demanding payment of arrear rental within twenty business days, failing which the lease would be cancelled and the appellants required to vacate by 31 August 2020. The appellants did not respond or pay the arrears. The first respondent sought an eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The appellants opposed the application, challenging the first respondent's locus standi, asserting that Goodfind Properties (Pty) Ltd was the registered owner of the property, not the first respondent. The appellants also raised issues about affordability of rental, claiming the first respondent had assured them of annual reviews. The appellants resided with their nine-year-old daughter and the first appellant's 67-year-old mother-in-law, who suffered from multiple chronic health conditions including diabetes, hypertension, hypothyroidism, asthma, depression and generalised anxiety disorder.

• Whether the first respondent had locus standi to institute the eviction proceedings.
• Whether the new preliminary point raised in the heads of argument — that Faieda Jacobs lacked authority to authorise the institution of eviction proceedings — should be disallowed as a new matter on appeal.
• Whether the court a quo was correct in finding it just and equitable to order the eviction of the appellants without a report from the Municipality.

1. The appeal is upheld with costs. 2. The order granted on 26 October 2022 under case number 2471/22B in the Wynberg Magistrates Court is set aside and replaced with an order dismissing the eviction application with costs.

1. A party challenging locus standi places a duty on the applicant to perfect its application and file all necessary documents to prove standing; if the applicant's own delegation of authority framework shows that the person authorising proceedings lacked final authority and no evidence of proper approval by the authorised person is provided, the applicant fails to demonstrate locus standi. 2. Under section 4(7) of the PIE Act, where occupiers have been in occupation for more than six months, a court must consider whether land has been made available or can reasonably be made available by a municipality for relocation, and must consider the rights and needs of the elderly, children, disabled persons and households headed by women; failure to engage the municipality and obtain relevant information renders an eviction order not just and equitable.

Under normal circumstances, the finding on locus standi would have disposed of the matter; however, the court deemed it prudent to consider the third issue to ensure all disputed issues were ventilated, following the Constitutional Court's guidance in S v Jordan & Others 2002 (6) SA 652 (CC) and Minister of Justice v SA Restructuring and Insolvency Practitioners Association 2017 (3) SA 95 (SCA).

The case reinforces the strict requirements for proving locus standi in eviction proceedings and emphasises the mandatory nature of the municipality's involvement under section 4(7) of the PIE Act where vulnerable occupants (children, elderly, sick persons) are involved. It confirms that courts must engage in an inquisitorial exercise and be in possession of all relevant information, including municipal reports on alternative accommodation, before granting eviction orders. The judgment also affirms that a new argument on appeal may be considered if it relates to a point already raised in the papers (locus standi was challenged, and the specific ground was a refinement of that challenge).