De Kock v Du Plessis and Others [2024] ZASCA 117 (24 July 2024).

Did the courts err in refusing to admit the supplementary replying affidavit, and if admitted, what impact would it have on the defence of the respondents in the eviction application under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act?

The case involves an eviction dispute between Leon de Kock, the appellant, and Wanda Luus du Plessis and Andre du Plessis, the first and second respondents, respectively. The background facts are as follows:

Leon de Kock, a businessman, purchased a residential property located at erf 4629, 9 Muscadel Street, Wellington, from Wanda du Plessis in 2016 for R4,500,000. The property was previously owned by Wanda, who sold it to de Kock to alleviate her financial burdens, as she and her husband, Andre, were struggling with mortgage payments. De Kock secured a loan of R3,375,000 from ABSA Bank to finance the purchase, which was 75% of the purchase price. The property was transferred to de Kock's name on 5 September 2016.

As part of the sale agreement, Wanda received R3,500,000, which allowed her to pay off the existing mortgage bond of R1,000,000 on the property. Subsequently, Wanda advanced R2,500,000 to de Kock, agreeing that he would repay this amount in monthly installments of R52,085 over 48 months. Additionally, de Kock agreed to pay R25,000 per month, which he claimed was interest on the loan, while Wanda believed it was a contribution to her and Andre's living expenses.

After the sale, Wanda and Andre continued to live in the property with de Kock's consent, under the understanding that they could reside there rent-free until the loan was fully repaid. However, by mid-2019, the relationship between de Kock and his in-laws began to deteriorate, primarily due to disputes over access to their minor children following the death of de Kock's wife, Nicquelette, who was Wanda and Andre's daughter.

In late 2019, de Kock's legal counsel advised him that the loan agreement with Wanda was unlawful under the National Credit Act, as she was not a registered credit provider. Consequently, de Kock ceased making payments on the loan. By October 2019, he had paid approximately R1,927,145 of the R52,085 monthly installments and claimed to have paid R925,000 of the R25,000 monthly payments, while Wanda contended the amount was only R875,000.

On 14 and 23 October 2019, de Kock's attorneys sent letters to Wanda and Andre, notifying them of his intention to sell the property and demanding that they vacate by 31 January 2020. When they refused to leave, de Kock filed an application for eviction in the Western Cape Division of the High Court on 4 June 2020, citing the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act).

In his application, de Kock claimed that there were two distinct oral agreements: one allowing Wanda and Andre to occupy the property rent-free until the loan was repaid, and another regarding the loan itself. Wanda, in her defense, argued that there was a composite agreement that allowed them to remain in the property until the full amount owed was paid.

The eviction application was heard on 9 March 2021, during which de Kock sought to introduce a supplementary replying affidavit to inform the court that Wanda had initiated action against him, claiming to have cancelled the oral agreement. The court, however, refused to admit this affidavit, leading to the dismissal of de Kock's eviction application.

De Kock appealed the decision, and the full court upheld the lower court's ruling, stating that the agreements were inseparable and that the loan agreement was void due to its unlawful nature. De Kock subsequently sought special leave to appeal to the Supreme Court of Appeal, which ultimately led to the reconsideration of the admission of the supplementary affidavit and the merits of the eviction application.

The ratio decidendi of the case revolves around the principles of lawful occupation and the implications of contract cancellation within the context of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act). The core legal principles can be summarized as follows:

Admission of Evidence: The court held that the refusal to admit the supplementary replying affidavit was erroneous. The affidavit contained relevant information that could significantly impact the case, specifically regarding the cancellation of the oral agreement by Wanda du Plessis. The court emphasized that a proper adjudication requires all relevant facts to be considered, and the failure to admit the affidavit deprived the court of critical evidence.

Cancellation of Contract: Once Wanda du Plessis elected to cancel the oral agreement, her right to occupy the property was extinguished. The legal principle established is that a party cannot approbate and reprobate; once a party has chosen to cancel a contract, they cannot simultaneously seek to enforce its terms. This principle underscores the importance of clarity in contractual relationships and the consequences of cancellation.

Just and Equitable Eviction: The court determined that, despite the respondents' previous lawful occupation, it was just and equitable to grant the eviction order under the PIE Act. The court balanced the rights and needs of both parties, considering the financial and health circumstances of the respondents while recognizing the appellant's rights as the property owner. The court concluded that the eviction would not render the respondents homeless, as alternative accommodation was offered.

In essence, the decision underscores the importance of proper evidence admission, the consequences of contract cancellation, and the need for a balanced approach in eviction proceedings, particularly when considering the rights of vulnerable parties.

The court relied on several key cases in its reasoning process. Notably, the following case was referenced:

Thomas v Henry and Another 1985 (3) SA 889 (A), which discusses the principles of election in contract law, particularly regarding the cancellation of contracts and the implications of such cancellation on the rights of the parties involved.

Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC), which emphasizes the need to balance the rights of both parties in determining what is just and equitable in eviction proceedings.