Cape family ordered to leave rental home in which they were squatting after landlady’s death

A Cape Town family who stopped paying rent after their widow landlady died more than three years ago has been given until June to vacate the home or be evicted.

The tenants are indebted to the deceased estate to the tune of R216,000. 

The Western Cape High Court on Tuesday ruled in favour of an executor, Leon Lochner, who had brought an application to evict the family after the owner's death in 2020.

Jacquiline Gardner, her husband Nadeem Noor and their 15-year-old son had rented the Bothasig property since 2004 under a residential lease agreement with Peggy Antonello. 

“It is not in dispute that the lease agreement terminated by the effluxion of time on March 31 2021 and has subsequently not been renewed. Further, it is not in dispute that the [tenants] have failed to pay any rental since the death of Antonello,” acting judge Mushahida Adhikari said in her judgment.

“The deceased estate, as a private entity, cannot reasonably be expected to continue to provide free housing to [them] indefinitely, and in particular in circumstances where all reasonable efforts to avoid eviction proceedings have simply been rejected by the [tenants] and met with dishonest claims.”

The estate, she found, has suffered substantial financial prejudice as a consequence of their refusal to pay rental and to vacate the property and continues to suffer financial prejudice due to lost rental income and having to pay rates and municipal service charges. 

On top of this, the judge noted, the deceased estate has had to incur legal costs to contest a “spurious application” by the tenants and to secure an eviction order.

Lochner brought the application in the Goodwood magistrate's court but this was withdrawn after Gardner approached the high court for an application to have the property transferred to her name after the purported conclusion of an agreement between her and Antonello.

The couple claimed to have paid a deposit of R950,000 as part of an agreement with the widow to buy the property for R1.6m. This was rejected as untrue.

Gardner's application was dismissed with costs in March 2023 after the court questioned why, after allegedly paying that amount, she failed to mention the agreement until Lochner's evidence application was filed.

Adhikari said she was guided by the Prevention of Illegal Eviction (PIE) and Unlawful Occupation of Land Act, which “regulates the eviction of unlawful occupiers of land, sought by the owner or person in charge of that land”.  

“Whenever faced with an application for eviction in terms of PIE, in which the occupation has been found to be unlawful, a court must determine whether it would be just and equitable to grant an order of eviction, regardless of whether a case has been made out.”

Outlining the couple's defence, she noted they did not dispute the termination of their lease agreement and had pointed out their desire to enter a new agreement with the applicant, to no success. 

“The respondents’ sole defence to the eviction application is that they have a right to remain in occupation of the property because Antonello had supposedly sold the property to them and they had paid to her a portion of the purchase price.”

This was the same defence used in Gardner's failed application.

This was again rejected by Adhikari, who found “the respondents have no defence in law to their eviction from the property. The respondents are thus in unlawful occupation of the property”.

Turning to Lochner's application, the court found Gardner and Noor had failed “to place any meaningful detail of their personal circumstances” in their answering affidavit.

The couple argued they had lived in the house since 2004, their son was born and lived there his entire life, he attends school in the area and it would be “a travesty of justice to uproot him”.

They claimed they are not in a position to secure alternative accommodation.

Adhikari asked the couple to explain their circumstances to the court but they “gave little by way of further detail in respect of their personal circumstances”.

The only new information that emerged was that Gardner was employed and her husband had sold his business and had no income.

“The respondents were, however, at pains to point out that they are aggrieved by the fact that the applicant has supposedly refused to enter into a lease agreement with them. They were adamant that if the applicant was prepared to enter into a lease agreement with them, they would be in a position to pay the same rental they had been paying to Antonello before her death, that is R12,000 per month.  

“It bears emphasis that the applicant, in the replying affidavit, pointed out that properties in the Bothasig area are available for rent at reasonable rates and an eviction would not result in anyone being uprooted, as alleged by the respondents.

“The applicant annexed to the replying affidavit rental advertisements which demonstrate three-bedroom houses in Bothasig are available for rent at rates ranging from R11,500 to R18,000 per month and that two-bedroom houses are available [at] R3,500 to R10,500 per month.”

The couple could not explain why they couldn't simply rent another property in the area for a similar amount to what they were paying. They insisted that they wanted to buy the house and had a friend willing to help them buy it for R1.6m but Lochner refused.

The judge noted the parties' relationship had become strained, particularly because of Gardner's application and her conduct in the matter.

“Gardner has demonstrated a worrying degree of dishonesty. In any event, the applicant is entitled to elect not to enter into a lease or sale agreement with the respondents.  

“The respondents’ belated attempts at the hearing to offer to purchase the property or enter into a lease agreement are simply too little too late. Had they acted honestly at the outset instead of pursuing the manifestly false claim they had purchased the property from Antonello, they would likely not have found themselves in the current situation.”

The court also found their explanation for why they failed to pay rent since 2021 “wholly unsatisfactory” and dismissed their claims that Lochner and his attorney had acted in bad faith and refused to engage with them to be untrue.

Instead, the court referenced correspondence submitted by Lochner's attorneys which showed an offer was made to sell the house to them for R1.6m in 2021, and the couple initially indicated their wish to continue with the lease agreement until 2022, which is when they “would be in a position to make an offer to purchase the property”.

“The respondents declined to purchase the property and instead launched the ill-fated proceedings,” the court noted.

Adhikari ruled “it is just and equitable for an eviction order to be granted in that the respondents have no right in law to remain on the property and their continued occupation of the property is prejudicing the deceased estate”.

“Furthermore, the respondents, on their own version, can afford alternative accommodation from their own resources in that they can afford to pay rental in the amount of R12,000 per month and will therefore not be rendered homeless if they are evicted.”

The judge took into account the impact on their child's schooling in delaying the date by which they need to vacate the property.

Although the school term ends on March 20, she said she would allow extra time to ensure his schooling is not “adversely affected”. They were given until June 14 to depart and move into new accommodation, the same time the second school term ends.

If they fail to do so, the sheriff of the court is authorised to evict them.

The family was also ordered to pay the legal costs.

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