Buttner v van Wyk and Others

The applicant, Mr Peter Buttner, was the lessor and the first respondent, Ms Charlene van Wyk, was the lessee of a unit in a sectional title scheme in Durbanville, Cape Town, from May 2016. The lease agreement was terminated by the landlord effective 30 June 2023 following a notice dated 25 May 2023, due to Ms Van Wyk's repeated failure to pay monthly rental of R7,700. As of 25 May 2023, she was R30,800 in arrears, increasing to R38,500 by 2 June 2023. Ms Van Wyk was contractually obliged to vacate by 1 July 2023 but refused to do so. She had been in unlawful occupation since the lease ended. The property is also occupied by her 11-year-old son. Ms Van Wyk is a 47-year-old woman who alleged unemployment and medical issues, but provided vague and unsubstantiated evidence regarding her financial position, family circumstances, and medical condition. By the time of judgment, she had occupied the property rent-free for approximately 19 months, with the unlawful occupation lasting over a year.

• Whether it is just and equitable to grant an eviction order under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) where the unlawful occupier is a woman heading a household with a minor child.
• Whether ss 4(6) or ss 4(7) of PIE applies when the total period of occupation exceeds six months but the period of unlawful occupation is less than six months at the time proceedings are initiated.
• What constitutes a just and equitable date for the vacation of the property, taking into account the best interests of a minor child residing with the unlawful occupier.

The court granted an eviction order against the first respondent and all persons occupying the property through her. The occupiers must vacate by 17 December 2024. If they fail to do so, the Sheriff is authorised to evict them on 19 December 2024 or as soon as possible thereafter, with SAPS assistance if necessary. The first respondent was ordered to pay party-and-party costs, including costs of the chamber-book application and the wasted costs of the postponement on 29 April 2024, on Scale A.

Under section 4 of PIE, it is the length of unlawful occupation, not total occupation, that determines whether the less onerous ss 4(6) or the more onerous ss 4(7) applies. When determining a just and equitable eviction date, the court as upper guardian of minor children must centrally consider the best interests of any child residing with the unlawful occupier, even where no specific allegations of prejudice to the child have been advanced by the parties. PIE was not intended to expropriate the rights of landowners for the benefit of unlawful occupiers; a balance must be struck between the rights of the property owner and the unlawful occupier.

The court observed that the tuition fees for a Grade 6 scholar at the school attended by Ms Van Wyk's son were over R60,000 in 2023, which appeared incompatible with her claims of inability to pay rent. The court also noted that the applicant could potentially pursue a claim for unpaid rental and damages against Ms Van Wyk. Additionally, the court remarked that there may have been a basis under common law for the applicant to seek costs on a punitive attorney-and-client scale, particularly given vexatious conduct, but it was unnecessary to consider this as the applicant only sought party-and-party costs.

This case clarifies the application of section 4(6) versus section 4(7) of PIE by confirming that the relevant period is the duration of unlawful occupation, not total occupation, following Ndlovu v Ngcobo. It also affirms the High Court's role as upper guardian of minor children in eviction proceedings, requiring proactive consideration of a child's best interests even when the parties themselves do not raise such issues. The judgment illustrates how courts balance property owners' rights against the circumstances of unlawful occupiers, particularly where children are involved, and demonstrates that unsubstantiated claims of vulnerability will not suffice to defeat an eviction.