Abduraouf NO and another v Wanga and Others (149043/2024) [2025] ZAWCHC 413 (28 August 2025)

Case Note

Qaasim Abduraouf N.O and Another v Dede Arthur Wanga and Three Others
Case number 149043/2024 – High Court of South Africa, Western Cape Division, Cape Town
[2025] ZAWCHC (28 August 2025) – per Njokweni AJ

Reportability

Although the judgment itself is marked “Not Reportable”, it is in fact of considerable precedential value. First, it clarifies the interaction between section 13 of the Administration of Estates Act 66 of 1965 and section 2(1) read with section 28 of the Alienation of Land Act 68 of 1981 in circumstances where a surviving spouse purports to sell immovable property that still vests in a deceased estate.

Secondly, the judgment offers a focused analysis of the requirements for an enrichment (improvement) lien when raised as a defence to eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). The court’s treatment of the bona fide possessor requirement, and its insistence that such a lien be directed at the true enrichment debtor, provides important guidance to practitioners.

Finally, the case underscores the constitutional necessity to weigh owners’ property interests against the housing rights of unlawful occupiers. In doing so, it synthesises Constitutional Court and Supreme Court of Appeal jurisprudence, making it a useful reference for future eviction litigation in the Western Cape and beyond.

Cases Cited

United Building Society v Smookler’s Trustees and Galoombick’s Trustees 1906 TS 623

Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A)

Ndlovu v Ngcobo; Bekker and Bosch v Jika 2003 (1) SA 113 (SCA)

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)

Resnick v Government of the Republic of South Africa (A536/2011) [2012] ZAWCHC 395; 2014 (2) SA 337 (WCC)

Steenkamp v Bradbury’s Commercial Auto Body CC (2882/2019) [2020] ZALMPPHC 9 (23 January 2020)

D Glaser & Sons (Pty) Ltd v Hall 1979 (4) SA 780 (A)

Legislation Cited

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”)

Alienation of Land Act 68 of 1981

Administration of Estates Act 66 of 1965

Rules of Court Cited

Uniform Rules of Court, rule 4 (service of process) and rule 6 (motion proceedings) – referenced implicitly in relation to service requirements under PIE.

HEADNOTE

Summary

The applicants, acting as trustees of the Qaasim Abduraouf Trust, sought an order evicting the first and second respondents and all persons holding under them from residential property in Ottery, Cape Town. The respondents had taken occupation in 2014 pursuant to a deed of sale concluded with the then-surviving joint owner. At the time, no executor had been appointed to the deceased spouse’s estate. In 2024 the property was sold to the trust after proper appointment of an executor and subsequent transfer. When the respondents refused to vacate, eviction proceedings were launched under PIE.

Opposing the application, the respondents relied on two principal defences: the 2014 deed of sale (said to vest them with lawful possession) and an alleged improvement lien arising from renovations worth R550 503. They contended that eviction would render their household of six, including minor grandchildren, homeless, and thus would not be just and equitable.

The court held that the 2014 deed of sale was void ab initio for want of compliance with both the Administration of Estates Act and the Alienation of Land Act. Because the respondents were never bona fide possessors, they could not establish an enrichment lien enforceable against the trust. Having considered all relevant personal circumstances and municipal obligations, the court granted eviction, fixing a vacation date and authorising the sheriff to evict if the order was not honoured.

Key Issues

Whether the respondents’ occupation, originally obtained under a void deed of sale, rendered them unlawful occupiers for purposes of PIE.

Whether an improvement (enrichment) lien could be raised against the trust notwithstanding the respondents’ lack of bona fide possession and the absence of enrichment of the trust.

Whether, on the facts, it was just and equitable to grant an eviction order and what conditions should govern the respondents’ departure.

Held

1. The deed of sale concluded on 7 November 2014 contravened section 13 of the Administration of Estates Act and section 2(1) of the Alienation of Land Act; it was consequently void from inception.

2. The respondents’ continued occupation after transfer to the trust was therefore without consent or any lawful basis, rendering them unlawful occupiers as defined in PIE.

3. The requirements for an enrichment lien were not satisfied: the respondents were not bona fide possessors; the alleged improvements were effected without the owner’s consent; any enrichment accrued, if at all, to the deceased estate or the surviving spouse, not to the trust.

4. Compliance with sections 4(2)–(5) of PIE was established, and the respondents failed to raise a valid defence. Balancing all relevant circumstances, eviction was just and equitable. The court fixed 26 September 2025 as the date for vacating and authorised the sheriff to evict on 29 September 2025, with costs on the attorney-and-client scale.

THE FACTS

The property in question was formerly held jointly by the late Jamal Abdul Nasir and his wife, Ms Labieba Nasir. Following Mr Nasir’s death in August 2013, Ms Nasir purported to sell the whole property to the respondents in November 2014 for R1.3 million. No executor had yet been appointed, and the Master had not issued letters of executorship. The respondents, however, took occupation immediately, anticipating transfer.

Only in March 2017 was an executor appointed to the deceased estate. Acting through an attorney, both the executor and Ms Nasir later sold the property in July 2024. It passed first to Skyscore Investments (Pty) Ltd and, within days, to the applicants’ trust for R900 000. Transfer to the trust was registered in December 2024. The respondents remained in situ, prompting the trustees to deliver a 48-hour notice to vacate in October 2024 and to institute eviction proceedings in December 2024.

The respondents acknowledged receiving notice but refused to leave, asserting improvements totalling R550 503 and claiming that eviction would leave their family, including two minor grandchildren, without shelter. They tendered to repurchase the property for R1 million in an effort to stave off eviction.

THE ISSUES

The court was required to decide, first, whether the respondents’ occupation was lawful or unlawful under PIE, given the void deed of sale and subsequent transfer to the trust. Secondly, it had to determine whether the respondents were entitled to retain possession by virtue of an alleged improvement lien, and, if so, against whom that lien could be enforced. Finally, it had to resolve whether, considering all personal and constitutional factors, an eviction order would nonetheless be just and equitable, and if so on what terms.

ANALYSIS

Njokweni AJ began by emphasising that section 13(1) of the Administration of Estates Act prohibits any person from liquidating or distributing a deceased estate’s assets without letters of executorship. Because Ms Nasir had lacked such authority in 2014, the deed of sale was null. Consequently, the respondents’ initial occupation was never under a valid title, and any consent that might have existed terminated once the deed was revealed to be void.

Turning to the respondents’ reliance on an improvement lien, the court reviewed classic authorities, including United Building Society v Smookler’s Trustees and Brooklyn House Furnishers v Knoetze & Sons, which distinguish enrichment liens from debtor-and-creditor liens. A crucial requirement is that the possessor be bona fide, believing in good faith that he or she is the owner or entitled to possess. Here, the respondents knew, or ought to have known, that transfer had never been effected and that the executor’s consent was required. Their reliance on a contractual clause barring alterations without written consent further undermined their bona fides.

Even assuming the improvements enhanced the property, the court held that any enrichment accrued to Ms Nasir and the deceased estate at the time the work was done, not to the trust which only acquired ownership years later. The enrichment element (and hence the lien) therefore failed.

Under PIE, once unlawfulness was established, the pivotal enquiry became whether eviction would be just and equitable. The court carefully assessed the household composition, employment status, and alleged vulnerability of the occupiers. Notably, the first respondent was employed by the United Nations; the adult children’s circumstances were unexplained; and despite repeated invitations, the respondents declined to complete a personal-circumstances questionnaire. The municipality was alerted and filed no report indicating a scarcity of emergency accommodation.

Balancing the competing rights, the court concluded that the trust had been deprived of possession for almost a year, was paying a mortgage, and faced ongoing losses. Granting a reasonable grace period of one month, combined with sheriff-assisted eviction thereafter, struck an appropriate balance between compassion and the vindication of ownership.

REMEDY

The court granted an eviction order in terms of section 4(8) of PIE. It required the respondents to vacate by 13h00 on 26 September 2025 and authorised the sheriff, with SAPS assistance if necessary, to effect eviction on 29 September 2025 should they fail to comply. Costs were awarded against the respondents jointly and severally on the punitive attorney-and-client scale, reflecting the court’s disapproval of their continued occupation and unmeritorious defences.

LEGAL PRINCIPLES

This judgment restates that any purported alienation of estate property by an unauthorised person is void, reaffirming the supremacy of section 13 of the Administration of Estates Act and the formalities imposed by section 2 of the Alienation of Land Act.

It confirms that an enrichment lien is available only to a bona fide possessor and only against the party actually enriched. Where the property has since changed hands, the lien-holder must show that the current owner is indeed the enrichment debtor—a hurdle the respondents could not surmount.

Finally, the decision underscores the constitutional dimension of PIE: while unlawful occupiers enjoy procedural and substantive protections, those protections do not translate into an indefinite right to remain. Courts must grant eviction once procedural compliance is proved and no valid defence exists, but must tailor the order so that it is “just and equitable”, typically by fixing a humane timeframe and engaging the relevant municipality regarding alternative accommodation.