- Eviction was refused after the court found that removing the buyer from the property would be unjust and inequitable in the circumstances.
- The buyer had paid the overwhelming majority of the purchase price over several years and formally tendered the small outstanding balance against transfer.
- The High Court set aside the eviction order on appeal and dismissed the application with costs, including the costs of counsel on Scale B.
Cancelling a property sale agreement does not, in itself, give a seller the right to evict the buyer.
The High Court in Johannesburg has confirmed that eviction can only be granted where it is just and equitable, and that this calls for a separate, substantive inquiry that goes beyond the cancellation itself.
That principle proved decisive in a dispute between Zaiboneza Ahmad and Amar Mazari, where an eviction order had been granted following the cancellation of a sale agreement. The High Court found that the lower court had stopped its analysis too soon by treating cancellation as the end of the matter, without asking whether eviction would actually be fair in the circumstances.
Parties, background and dispute
Ahmad and the other occupiers of Erf 5 in Rhodesfield were the appellants, while Mazari and the Ekurhuleni Municipality were cited as respondents. In July 2015, Ahmad had agreed to purchase the property from Mazari for approximately R950 000, payable in instalments. By May 2019, only a small portion of the purchase price remained outstanding.
Mazari cancelled the agreement on the basis that Ahmad had stopped paying occupational rent. Ahmad disputed this, saying she had withheld payment only after Mazari refused to transfer the property into her name. In her answering affidavit, she offered to pay the outstanding balance against transfer and placed the funds in her attorney’s trust account.
The court a quo accepted that the agreement had been validly cancelled and granted eviction on that basis, without any further inquiry.
Court clarifies the just and equitable requirement
On appeal, the High Court held that the lower court had misdirected itself by treating cancellation as decisive. Writing for the court, Judge SDJ Wilson emphasised that the inquiry under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act does not end once occupation becomes unlawful.
“The unlawfulness of the appellants’ occupation of the property was the beginning, rather than the end, of the statutory inquiry,” Judge Wilson wrote. The court confirmed that eviction is only permissible where it is just and equitable, and that reaching that conclusion requires a full consideration of all relevant circumstances.
Applying the law to the facts
Applying this standard, the court found that eviction would be unjust on the facts. Ahmad had already paid the overwhelming majority of the purchase price and had tendered the remaining balance.
“If the order of the court below is left to stand, Ms Ahmad will be left with neither the home she purchased nor the money she purchased it with,” the court held. “That would be unjust and inequitable.”
Mazari, as the party seeking eviction, bore the burden of proving that eviction would be just and equitable. The court found that his case fell “substantially short of discharging that onus.”
Arguments and the proper forum
The court also made clear that disputes about the outstanding balance or the right to transfer are not the kind of issues to be resolved in eviction proceedings. Those matters, it said, can be dealt with through separate litigation.
“The only question before us is whether the court below should have evicted Ms Ahmad. Plainly, it should not have done so.”
Outcome
The appeal was upheld, and the eviction order was set aside. It was replaced with an order dismissing the application with costs, including the costs of counsel on Scale B.
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