Trustees for the Time Being of the P G W Family Trust and Others v N.W and Others

The first applicant, the PG W Family Trust, is the registered owner of a residential property in Athlone, Cape Town. The first applicant's sole trustee, A W (A[...]a), is the widow of the late P W, who was a beneficiary of the Trust and the son of the second respondent and brother of the first respondent. Following P W's death, A[...]a decided to sell the property to the second and third applicants for R900,000 to fund her children's education and settle debts. The first respondent (N W, 60 years old, unemployed, alleged alcoholic) and the second respondent (G W, 87 years old, frail, wheelchair-bound, SASSA pensioner) have occupied the property since 2014. The respondents claim they were granted an oral, unregistered lifelong right of occupation (habitatio) by the late P W. The applicants served several notices to vacate between August and December 2022 and sought eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The respondents refused to vacate, asserting their right to lifetime occupation. The fourth respondent, the City of Cape Town, was joined and undertook to provide alternative accommodation in an Integrated Development Area.

• Whether the respondents had a legal right to occupy the property or were unlawful occupiers under PIE
• Whether an unregistered oral lifelong right of occupation (habitatio) can be legally binding and enforceable against a registered owner
• Whether the trustees could validly grant a lifelong right of occupation over trust property to non-beneficiaries
• Whether it is just and equitable to grant an eviction order considering the personal circumstances of the parties
• If eviction is just and equitable, what terms, conditions, and date should attach to the eviction order

The court ordered: (a) the first and second respondents and all those occupying through them to vacate the property by 30 May 2024; (b) the fourth respondent to ensure wheelchair-accessible, suitable accommodation; (c) the Sheriff to evict by 15 June 2024 if the respondents failed to vacate; (d) the first applicant to employ a carer for the second respondent for eight hours a day; (e) the first applicant to bear transport costs for the second respondent's daughter to visit twice a week; (f) the first applicant to bear transport costs for the second respondent to visit her clinic once a month; (g) no order as to costs.

1. An oral agreement granting a lifelong right of occupation (habitatio) over land is not legally competent unless it complies with the statutory formalities for the alienation of land (Alienation of Land Act 68 of 1981 and General Law Amendment Act 50 of 1956); an unregistered personal right of occupation is not binding on successive owners. 2. Trustees of a family trust cannot validly grant lifelong rights over trust property to non-beneficiaries where this conflicts with the trust's purpose of providing for the welfare of its beneficiaries. 3. Under PIE, where a private landowner demonstrates a need for possession and there is no valid defence, it will ordinarily be just and equitable to grant an eviction order, as the obligation to provide alternative accommodation rests on the State and not on private landowners. 4. An unlawful occupier's personal preference to remain in unlawfully occupied property is irrelevant; the right to adequate housing under s 26 of the Constitution does not confer a right to choose where to live.

The court expressed that a notice to vacate by implication includes the termination of the right to occupy, describing the respondents' argument that the notices were to vacate and not to terminate the right of occupation as 'legalistic' and unhelpful. The court also noted the significant emotional hardship and devastating impact that eviction would have on an 88-year-old woman. The court acknowledged that the accommodation offered by the City was 'far from ideal' but accepted it as the best the City could offer at that time based on its available resources.

This case reinforces important principles established by the Constitutional Court in *Grobler v Phillips* regarding the unenforceability of unregistered oral rights of habitatio and the limits of personal preferences of unlawful occupiers in eviction proceedings. It confirms that PIE was not designed to expropriate land from private landowners, and that the State bears the primary obligation to provide housing under s 26 of the Constitution. The judgment illustrates the court's active balancing of competing rights under PIE, especially where vulnerable elderly and disabled occupiers are involved, and demonstrates the procedural requirement of involving the municipality to provide alternative accommodation. It also provides a useful example of the two-stage enquiry under PIE, distinguishing between the decision to grant an eviction order and the determination of a just and equitable date and conditions.