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[2022] ZAWCHC 249
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CJW Belegings (Pty) Ltd v Arendse and Others (1755/2021; 11835/22) [2022] ZAWCHC 249 (1 December 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: 1755/2021 and
Case No: 11835/22
In
the matter between:
CJW
BELEGINGS (PTY)
LTD

Applicant
(Registration
Number: 2013/028187/07)
And
COLLEEN
ANITA CATHLEEN ARENDSE

First Respondent
CONNIE
ARENDSE

Second Respondent
THE
UNLAWFUL OCCUPIERS OF DEO GLORIA
FARM,
WAARBURGH ROAD,

Third Respondent
JOOSTENBURG
VLAKTE
CITY
OF CAPE TOWN

Fourth Respondent
Heard:
04 November 2022
Delivered:
01 December 2022
This
judgment was handed down electronically by circulation to the
parties' representatives via email and released to SAFLII. The
date
and time for hand-down is deemed to be 01 December 2022 at 10h00.
JUDGMENT
LEKHULENI
J,
INTRODUCTION
[1]
These two applications are quintessential examples of how the
Prevention of Illegal
Eviction from an Unlawful Occupation of Land
Act 19 of 1998 (“the PIE Act”) and the Extension of
Security of Tenure
Act 62 of 1997 (“ESTA”) cross paths.
The applicant seeks an order evicting the first to the third
respondents (“the
respondents”) and all occupying under
or through them from the immovable property known as De Gloria Farm,
more fully described
as Portion 23, Farm 727, Joostenberg Vlakte,
Division Paarl, Western Cape Province (“the farm”). The
court is also
requested to determine a just and equitable date on
which the respondents and all persons occupying under and through
them should
vacate the property.
[2]
In addition, an order is sought that in the event that the
respondents and all persons
occupying under or through them fail to
vacate the property on the determined date, the Sheriff of this court
must be authorised
and directed to eject them from the farm and to
take all steps as may be necessary to give effect to the eviction
order. The applicant
relies on the fact that the respondents are all
occupiers in terms of the provision of the PIE Act to seek the
respondents’
eviction.
[3]
The applicant also brought a conditional application under case
11835/22 for the relocation
of the respondents from the main house
marked A on the farm to the second house marked B, in the event, the
eviction application
is postponed and cannot be determined urgently
or in the event an eviction order is granted, but the effective date
for execution
of the order is postponed to a future date. In that
conditional application, the applicant also sought an order
interdicting the
respondents from denying the applicant or any of its
representatives’ access to the farm.
THE
FACTUAL BACKGROUND
[4]
The facts giving rise to this case can be summarised briefly as
follows: The applicant
is the owner of the farm. The applicant
purchased the farm on 28 October 2020, at a public auction. The farm
was registered in
the applicant’s name on 4 February 2021. The
first respondent and her late husband, Mr Trevor Daniels, previously
owned the
farm. At the time of the auction, the first respondent’s
estate was sequestrated, whilst her husband’s deceased estate

was also insolvent. On 16 February 2021, the applicant’s
attorney of record, Ms Yolandi Dippenaar (“Ms Dippenaar”),

made telephonic contact with the first respondent to plan for the
respondent to vacate the farm. The first respondent was not
interested in discussing the matter with Ms Dippenaar. The first
respondent advised Ms Dippenaar that her attorney would contact
the
applicant’s attorneys regarding the farm. The applicant’s
attorneys received no correspondence from the respondents’

attorneys, and thereafter, they could not get hold of the first
respondent.
[5]
On 3 March 2021, the applicant’s attorneys dispatched a notice
to the respondents
notifying them that they were in unlawful
occupation of the farm and requested them to vacate the farm on 12
April 2021. The notice
inter alia, informed the respondents that the
applicant bought the farm through a public auction and that the farm
was registered
in the applicant’s name on 04 February 2021. The
notice also drew the respondents’ attention to the fact that
considering
the registration of the property in the applicant’s
name, the respondents ceased to have a legal claim to the property
and
had no permission to occupy any dwelling on the property. The
notice further informed the respondents to vacate the farm by Monday,

12 April 2021, at 17h00, and to deliver the keys in their possession
to the applicant.
[6]
On 8 April 2021, Ms Dippenaar attempted to telephonically contact the
first respondent
to arrange for the handover of the farm keys. Her
efforts drew a blank. Subsequently, the applicant's attorneys
forwarded an email
to the respondents requesting the respondents to
correspond with the applicant's attorneys before Friday, 09 April
2021, to conclude
arrangements for handing over all keys. No response
was received to that correspondence.
[7]
On 15 October 2021, the applicant instituted eviction proceedings
against the respondents.
After a few postponements of the matter and
at the instance of the respondents, Legal Aid came on record for the
respondents. The
second respondent did not file any opposing papers.
In her answering affidavit, the first respondent averred that she had
occupied
the farm for many years before it was sold and had continued
to occupy it after it was sold. She further states that the applicant

did not give her reasonable notice to vacate the premises as
prescribed by law. The first respondent further averred that she was

advised that she was entitled to the notice period subject to the
provisions of the Rental Housing Act. In terms of the Act, the
first
respondent averred that she was entitled to a period equal to a
calendar month’s notice to vacate the farm.
[8]
The first respondent asserted in her affidavit that they have no
means of survival
and depend on other people's assistance. They have
no relatives who own sufficient space to accommodate them. She
further stated
that her mom and dad reside in a four-bedroom house
with six other individuals. If they are evicted, it would be
difficult for
her to find accommodation, as many rental places are
expensive and require a deposit and bank statements. The first
respondent
stated that she lives with two minor children on the farm
and that her eviction would lead to homelessness as they have no
other
available accommodation.
[9]
On 25 August 2022, shortly before the matter could be heard on 08
September 2022,
Legal Aid withdrew as attorneys of record for the
respondents. Subsequent thereto, T Swartz attorneys came on record
for the respondents.
Mr Swartz opposed both applications and assisted
the respondents in filing a supplementary opposing affidavit. In her
supplementary
affidavit, the first respondent raised two points in
limine. The first point in limine was that of
locus standi in
judicio
. The first respondent asserted that Mr Carel Jacobus
Wolfaardt ("Mr Wolfaardt") who deposed to the affidavit on
behalf
of the applicant, did not provide this court with proof that
the applicant company authorised him to institute legal proceedings

on behalf of the applicant. The first respondent further stated that
Mr Wolfaardt claimed that he was a director of the applicant
but
failed to provide proof to this court. The first respondent averred
further that the fact that the applicant only produced
evidence of
directorship in reply, is fatal to the applicant’s case.
[10]
The second point in limine that the respondents raised was that the
applicant used the wrong
forum to vindicate its rights. The
respondents contended that the property in these proceedings is a
farm and therefore, not located
within an approved township. The
respondents asserted that the applicant had to use ESTA as it
provides farm occupiers with tenure
rights over farm property they
occupy but do not own. The respondents averred that the applicant
failed to comply with the procedural
requirements set out in ESTA.
PRINCIPAL
SUBMISSIONS BY THE PARTIES
[11]
At the hearing of this matter, Ms Du Toit, who appeared on behalf of
the applicant, argued that
the respondents are mistakenly conflating
the issue of authorisation to institute proceedings with the issue of
locus standi
. Ms Du Toit argued that the owner of the land,
the applicant herein, has a direct interest in the relief sought and
therefore,
has standing to bring the applications. Counsel contended
that the question to determine if the applications are properly
before
court and brought by the applicant is not whether the deponent
to the founding affidavit is properly authorised, but whether the

attorneys claiming to act on behalf of the applicant are so
authorised. She submitted that Mr Wolfaardt was duly authorised to

bring these applications. Regarding the applicability of ESTA, Ms Du
Toit submitted that the nature of the land occupied by the
respondent
is not dispositive of the fact that ESTA applies. The applicant’s
counsel contended that the respondent could
only avail themselves of
the protection of ESTA if they are
occupiers
as defined in
ESTA. If they are not, so the argument went, in that case, they are
unlawful occupiers as defined by PIE, and therefore,
the PIE Act is
applicable.
[12]
Mr Swartz, on the other hand, argued on behalf of the opposing
respondents that the general rule
in our law is that the onus rests
upon the party instituting the proceedings to allege and prove that
he or she has locus standi.
Mr Swartz submitted that the applicant is
cited as a company, and Mr Wolfaardt did not provide this court with
proof that he has
written authority to institute legal proceedings on
behalf of the company. He submitted that the applicant failed to
provide this
court with proof of his directorship in the applicant.
He only did so in reply after the respondents challenged his
authority.
As far as the application of ESTA is concerned, Mr Swartz
argued that the land the respondents occupy is a farm. As such, the
respondents
are protected by ESTA, and that the PIE Act does not find
any application in this matter. To this end, Mr Swartz contended that

the applicant should have used ESTA, not the PIE Act. Thus, it was
submitted that the applicant used the incorrect forum to launch
the
application. Regarding the relocation application, Mr Swartz
contended that such an order amounts to eviction. He implored
the
court to dismiss the application.
APPLICABLE
LEGAL PRINCIPLES AND DISCUSSION
[13]
At the hearing of this application, the respondent abandoned their
earlier defence that they
were not given reasonable notice as
prescribed by the Rental Housing Act. The respondents relied on the
two points
in limine
raised in the supplementary affidavit.
Both parties agreed that the issue to be decided are the two points
in limine
. Both parties agree that if both preliminary points
are dismissed, the court must grant the eviction order and determine
the just
and equitable date for the eviction of the respondents from
the farm. For completeness, I deal hereunder with the two points
sequentially.
Did
the Applicant – Mr Wolfaardt have locus standi?
[14]
As discussed above, the respondents challenged the authority of Mr
Wolfaardt to act on behalf
of the applicant. It was contended that
there was no resolution attached to the affidavit authorising him to
depose this affidavit.
To this end, it was submitted that Mr
Wolfaardt had no authority to bring this application. In my view,
this argument is misplaced
and misses the point. In the founding
affidavit filed on behalf of the applicant, Mr Wolfaardt stated that
he is an adult male
businessman and director of the applicant. Mr
Wolfaardt further said that the applicant has resolved to institute
eviction proceedings
against the respondents, and to that end, he is
duly authorised to depose to the founding affidavit as well as all
future affidavits
in any court proceedings involving the applicant
and the respondents. The respondents did not challenge Mr Wolfaardt
on this point
in their answering and supplementary affidavits.
[15]
In any event, whether Mr Wolfaardt had been authorised to depose to
the founding affidavit is
irrelevant. The deponent to an affidavit in
motion proceedings need not be authorised by the party concerned to
depose to the affidavit.
It is the institution of proceedings and the
prosecution thereof that must be authorised. See
Ganes v Telkom
Namibia Ltd
2004 (3) SA
615
(SCA) at para 19. If the respondents
had reservations about whether the applicant authorised the eviction
and the relocation applications,
that authority had to be challenged
on whether the applicant's attorneys were empowered to institute and
prosecute the two applications.
Unlawful Occupiers School Site v
City of Johannesburg
2005 (4) SA 199
(SCA) para 14.
[16]
Rule 7 of the Uniform Rule provides the procedure to be followed by a
respondent who wishes to
challenge the authority of an attorney who
instituted motion proceedings on behalf of an applicant. The view,
reflected in Rule
7(1) of the Uniform Rules of Court, is that if the
attorney concerned is authorised to bring an application on behalf of
the applicant,
the application necessarily is that of the applicant.
There is no need for any other person, whether he is a witness or
someone
who becomes involved, especially in the context of authority,
to be additionally authorised. It is thus sufficient to know whether

the attorney acts with authority. See
Eskom v Soweto City Council
1992 (2) SA 703
(W). If the attorney had the authority to act on
behalf of the applicant, then the attorney was entitled to use any
witness who
would, in his opinion, advance the applicant’s
case.
[17]
Crucially in this matter, after Mr Wolfaardt’s authority was
challenged, the applicant
filed a power of attorney in terms of
Uniform Rule 7, indicating that the applicant’s legal
representative was duly appointed
to represent the applicant. The
respondents did not challenge these allegations. It must, therefore,
be accepted that the institution
of these proceedings was duly
authorised. It follows, therefore, that the respondents’
preliminary point must fail. This
leads me to the second preliminary
point.
Does
ESTA or the PIE Act applies? Or, was the eviction application
instituted in the correct forum?
[18]
The respondents contend that ESTA is applicable because the land from
which their eviction is
sought is a farmland. The respondents further
argue that the PIE Act does not find application as the respondents
are occupiers
of a farm as envisaged in ESTA. On the other hand, the
applicant relies on the fact that the respondents are all occupiers
in terms
of the provisions of the PIE Act and not in terms of ESTA.
According to the applicant, ESTA is not applicable in this case. For

the sake of completeness, section 1 of ESTA defines “
occupier
”
as follows:
“
occupier” means a person
residing on land which belongs to another person, and who has or on 4
February 1997 or thereafter
had consent or another right in law to do
so, but excluding—
(a) …. Deleted
by
s 6
(a)
of
the Land Affairs General Amendment Act 51 of 2001.)
(b) a person using or intending to use
the land in question mainly for industrial, mining, commercial, or
commercial farming purposes,
but including a person who works the
land himself or herself and does not employ any person who is not a
member of his or her family;
and
(c) a person who has an income in
excess of the prescribed amount.
2. Subject to the provisions of
section 4, this Act shall apply to all Iand other than land in a
township established approved,
proclaimed or otherwise recognised as
such in terms of any law or encircled by such a township or townships
but including—
(a) any land within such a township
which has been designated for agricultural purposes in terms of any
law; and
(b) any land within such a township
which has been established, approved, proclaimed or otherwise
recognised after 4 February 1997,
in respect only of a person who was
an occupier immediately prior to such establishment approval
proclamation or recognition.
(2) Land in issue in any civil
proceedings in terms of this Act shall be presumed to fall within the
scope of the Act unless the
contrary is proved.”
[19]
It is common cause that the land that forms the subject matter of
these proceedings is a farm
as defined in section 2 of ESTA. However,
this is not enough to trigger the applicability of the Act. More is
required. The definition
of occupier in section 1 of ESTA makes it
abundantly clear that the nature of the land is not dispositive of
whether ESTA applies.
The respondents can only avail themselves of
the protection of ESTA if they are occupiers as defined in ESTA. If
they are not,
then they are unlawful occupiers as defined in the PIE
Act, and the PIE Act would apply. In
Ntuli and Others v Smit and
Another
1999 (2) SA 540
(LCC) para 21, the court found that a
party who wishes to prevent ejectment proceedings on the basis that
he or she is an occupier
as defined in ESTA and entitled to the
protection given to occupiers under that Act must set out
specifically the facts upon which
he relies on. His or her
ipse
dixit
is not sufficient.
[20]
In considering the meaning of the term
'occupier' under ESTA, the starting point must be when
the circumstances of the
person sought to be evicted ought
to be considered to ascertain whether or not he or she is such an
'occupier. See
Lebowa Platinum Mines
Ltd v Viljeon
2009 (3) SA 511
(SCA)
para 14.
Simply, a person who claims to be an occupier in
terms of ESTA must prove that he complies with all the components of
the definition
of occupier in section 1 of ESTA. It is evident from
the definition of ‘occupier’ that for one to qualify as
an occupier
within the meaning of ESTA, one must show that he is
residing on the land of another person to which the Act pertains,
with consent
(in place as at 4 February 1997 or obtained thereafter)
or by virtue of another right in law to do so, and must not be in
receipt
of an income in excess of the prescribed amount of R13 625.
See GN R1632 in GG 19587 of 18 December 1998);
Droomer No v
Snyders and Others
2020 JDR 1555 at para 11.
[21]
In
casu,
the respondent claimed that ESTA is applicable
because the land from which their eviction is sought is a farm. The
respondent thus
bore the onus to prove that they are occupiers within
the definition of ESTA and that they have complied with all the
components
of the definition. The respondents also had to prove that
they earned less than the threshold amount.
[22]
It is common cause that the applicant did not give consent to the
respondents to occupy the property.
Instead, after the farm was sold
on auction and registered in the applicant’s name, the
applicant made several attempts to
have the respondents amicably
vacate the farm. The applicant gave the respondents a month’s
notice to leave the farm, and
the respondent did not oblige. The
respondents occupied and are currently occupying the farm without the
consent of the applicant.
Instead, the respondents are occupying the
farm because the first respondent and her late husband previously
owned it. The respondents
were in occupation of the farm when it was
auctioned.
[23]
Furthermore, the respondents have yet to show that their income is
below the prescribed amount.
The respondents have not demonstrated
any right whatsoever that authorises them to occupy the farm. Save
for the fact that the
respondents live on the farm, the respondents
have not availed themselves of the protection of ESTA. The fact that
the respondents
occupy a farm is not the overriding consideration for
triggering ESTA protection. Not all persons residing on land or farms
are
entitled to protection against eviction under ESTA. The
protection is restricted to occupiers as specifically defined in the
Act.
See
Droomer v Snyders
2020 JDR 1555 (WCC) at 11. This
conclusion, in my view, is fortified by section 9(1) of ESTA, which
provides that ‘notwithstanding
the provision of any other law,
an occupier may be evicted only in terms of an order of court issued
under this Act.’ This
section, in my opinion, makes it
abundantly clear that the protection against eviction is directed
towards occupiers as defined
in the Act and not towards every person
residing on land whom the owner chose to evict.
[24]
The respondent made no attempt to bring themselves within the
definition of occupier as envisaged
in section 1 of ESTA. The
respondents did not allege that they earned less than the threshold
amount. The respondents did not satisfy
the three requirements
envisaged in section 1 of the Act. On a conspectus of all the facts
placed before court, I am of the view
that the claim for eviction had
been competently brought under the PIE Act. I am also of the view
that the respondents are unlawful
occupiers as defined in section 1
of the PIE Act. It follows, therefore, that the second preliminary
point must also fail.
[25]
As far as the relocation application is concerned, I am confident
that Mr Swartz's argument that
it amounts to eviction is mistaken and
cannot be correct. In
Chagi and Others v Singisi Forest Products
(Pty) Ltd
2007 (5) SA 513
(SCA) paras 19, and 20, the Supreme
Court of Appeal held that the word ‘land’ as used ESTA in
section 6 and in the
definition of evictions, means the registered
unit as a whole and not the actual piece of land used by the
occupier. The court
found further that relocation of employees from
one set of house to another on the same piece of land does not
constitute an eviction
as contemplated in ESTA. In this regard, the
law is well-established and does not need further exposition. I will
now turn to consider
whether it is just and equitable to grant the
eviction order.
JUST
AND EQUITABLE TO GRANT AN EVICTION ORDER
[26]
Section 4(7) of the PIE Act provides that:
“
If an unlawful occupier has
occupied the land in question for more than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all the
relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a
mortgage, whether land has
been made available or can reasonably be
made available by a municipality or other organ of state or another
land owner for the
relocation of the unlawful occupier, and including
the rights and needs of the elderly, children, disabled persons and
households
headed by women.”
[27]
It is common cause that the respondents have been in occupation of
the farm for a period exceeding
six months. Section 4(7) of the PIE
Act sets out several considerations in determining whether it will be
just and equitable for
the court to grant an eviction order. Among
others, the rights and needs of the elderly, children, disabled
persons, and household
headed by women, must be considered as factors
for the just and equitable enquiry. Meanwhile, section 4(8) of the
PIE Act provides
that if a court is satisfied that all the
requirements of section 4 have been complied with and that the
unlawful occupier has
raised no valid defence, it must grant an order
for the eviction.
[28]
The first respondent occupies the property with her two minor
children and her brother. In her
opposing affidavit, the first
respondent averred that her mother (second respondent) is not living
on the property. The first respondent
averred that they would be
rendered homeless should an eviction order be granted. The first
respondent submitted a request for
an emergency or other forms of
alternative accommodation to the City of Cape Town (fourth
respondent) so that a report could be
obtained from the latter in
connection with alternative accommodation. The City of Cape Town
delivered a report in which it reported
that it can make available
emergency accommodation. The City requested the respondents to
complete the acceptance form in order
to be provided with an
emergency housing kit. The City also asked for a period of eight
months to provide an emergency housing
kit and a site to construct
the structure for the respondent.
[29]
The applicant’s legal representatives however, indicate that
they have been in contact
with the City of Cape Town and were advised
that the respondents did not accept the offer for alternative
accommodation made available
to them by the City. This was not
challenged at all by the respondents. In my view, the respondents
have been in occupation of
the farm for quite a long time. The
respondents were informed in March 2021 that the property was sold at
an auction. The applicant
requested the respondents to vacate the
farm on 12 April 2021. Most importantly, the respondents have known
for a considerable
period that the farm was sold on auction. And
throughout that time, the respondents have known of the necessity to
seek alternative
accommodation. The respondents have been
beneficiaries of more than one indulgence in this court. This
application was postponed
on several occasions at the instance of the
respondents. It is unfortunate that notwithstanding the efforts made
by the City of
Cape Town to provide alternative accommodation to the
respondents, same seem not to be appreciated.
[30]
Section 26 of the Constitution does not afford a right to unlawful
occupiers to resist eviction,
even though this may result in
homelessness. See
Ives v Rajah
2012 (2) SA 167
(WCC) at para
34. Section 26(3) of the Constitution affords a right against
arbitrary eviction. If eviction is to occur, it must
happen with
regard to the evictees’ human rights to dignity. See
Omar NO
v Omar and Others
(WCC Case No 9643/07, 11 May 2010) para 8.
[31]
This court cannot defer the applicant’s right to vacant
possession of its farm in perpetuity.
As discussed above, the
respondents’ interests have already been considered.
Importantly, it took a long time for the matter
to be heard since the
applicant advised the respondents to vacate the premises amicably. I
am aware that minor children are involved
in this matter and that
their best interests must be considered. However, their rights are
not absolute. In my view, as with many
other evictees in similar
circumstances, the respondents would have to depend on family and
friends to assist them.
ORDER
[32]
Having read the documents filed and having heard from the legal
representatives for the applicant
and
the
respondents the following order is granted:
32.1    The first,
second, and third respondents or all person occupying through them,
in occupation of the farm
described above, are ordered to vacate the
farm on or before 31 January 2023. Should they fail to do so, the
Sheriff of this court
(or his / her deputy) is authorised to evict
the respondents from the farm with all their belongings on 03
February 2023.
32.2
Any and all of the first, second and third respondents who still
reside in the main house (marked A) on the
farm described above, are
ordered to relocate from the main house to the second house (Marked
B) within 7 (seven) days of the date
of this order.
32.3    In the event of
the respondents failing to relocate as specified in paragraph 32.2
above, the Sheriff (or
his / her deputy) is authorised and directed
to relocate them to the second house (marked B) pending their
eviction from the farm.
32.4    The respondents
are interdicted from denying the applicant or any of its
representatives’ access to
the farm. The respondents are
ordered within seven days from date hereof to provide the applicant
or any of its representatives
with a key or the locks that are
currently on the access gates.
32.5    The respondents
are ordered to pay the costs of the two applications jointly and
severally the one to pay
the other to be absolved.
LEKHULENI JD
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Applicant:
Adv. Arina Du Toit
Instructed
by:

Basson Blackburn Inc.
Counsel for Respondent:
Mr. T Swartz