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[2014] ZAFSHC 34
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Radebe v Hobbsand Others, In Re; Radebe v Hobbs and Others (4398/2013) [2014] ZAFSHC 34 (21 February 2014)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
Number : 4398/2013
In
the application between:-
RASELE
JOHANNES
RADEBE
..............................................................................
Applicant
and
GRAHAM
KARL
HOBBS
...............................................................................
1
st
Respondent
GRAHAM
KARL HOBBS
N.O
.....................................................................
2
nd
Respondent
MARGARET
LOUISE HOBBS
N.O
............................................................
3
rd
Respondent
WILLIAM
ANTHONY CHRISTOPHER N.O
..............................................
4
th
Respondent
[In their capacities
as trustees of the Tandjiesberg
Trust, IT8780/92]
HIGH
COURT SHERIFF,
HARRISMITH
..................................................
5
th
Respondent
and
Application Number:
845/2013
In the application
between:
RASELE
JOHANNES
RADEBE
......................................................................
Applicant
and
GRAHAM
KARL
HOBBS
.........................................................................
1
st
Respondent
GRAHAM
KARL
HOBBS
.........................................................................
2
nd
Respondent
MARGARET
LOUISE HOBBS
N.O
.......................................................
3
rd
Respondent
WILLIAM
ANTHONY CHRISTOPHER N.O
.........................................
4
th
Respondent
[In their capacities
as trustees of the Tandjiesberg
Trust, IT8780/92]
MALUTI-A-PHOFUNG
MUNICIPALITY
.............................................
5
th
Respondent
CORAM:
VAN
ZYL, J
DELIVERED
ON:
21 FEBRUARY 2014
[1]
As is evident from the heading of this judgment, it entails the
adjudication of two applications.  Due to the interwoven
facts
and relief sought in the applications, whilst involving the same
parties, I deem it apposite to give one combined judgment
in the two
applications. I will refer to the applicant in both applications as
“the applicant” and to first to fourth
respondents in
both applications as “the respondents”.
[2]
In application number 4398/2013 (“the spoliation application”)
the applicant is seeking a rule
nisi
with immediate effect in the following terms:
“
2.1
Restoration of possession of the dwelling at Rooikraal Farm 1090,
District Harrismith, Free State and erection thereof if demolished.
2.2
That Respondents remove all fences on the dwelling and grant
applicant access to the property.”
The
applicant is also seeking that the respondents be ordered to pay the
costs of the application.
[3]
In application number 845/2013 (“the rescission application”)
the applicant is seeking the following relief:
“
1.
That the decision of the Honourable Court made by Honourable Acting
Judge President Hancke in this matter on the 25
th
April 2013 be rescinded.
2.
That any party who opposes his application pays the costs thereof.
3.
Further and/or alternative relief.”
The
founding papers filed in the rescission application were attached to
the founding papers filed in the spoliation application
and hence
they form part and parcel of the spoliation application.
THE
PROCEDURAL COURSE OF EVENTS:
[4]
A concise exposition of the relevant events concerning one or the
other or both the applications, are the following.
[5]
An eviction application was issued by the respondents on 4 March 2013
under application number 845/2013 (“the eviction

application”).  On 14 March 2013 the usual order
authorising service in terms of the Prevention of Illegal Eviction

from and Unlawful Occupation of Land Act, Act 19 of 1998 (“PIE”)
was issued on an
ex parte
basis.  The application and
Court order were then served on the applicant personally on 4 April
2013.  There was no timeous
and proper opposition to the
application, although I will return to this very important aspect.
An order for eviction was
consequently granted on an unopposed basis
on 25 April 2013 (“the eviction order”), being the order
which the applicant
now seeks to be rescinded, and which order reads
as follows:
“
1.
The First Respondent and all others occupying through him is to
vacate the farm Rooikraal 1090, district Harrismith, Free State

Province (‘the property’) within 14 days from the date of
this order;
2.
The First Respondent and all others occupying through him is to
remove any and all movable assets from the property within 14
days
from the date of this order;
3.
The First Respondent is to remove any and all livestock, including 12
cattle, 6 calves and a horse from the property within 14
days of this
order;
4.
Failing compliance with the order in paragraphs 1 to 3 above, that
the Sheriff of the Court or his/her lawful appointed Deputy
for the
district in which the property is situated, is hereby authorised and
directed to evict the First Respondent and all others
occupying
through him from the property, together with their possessions and
livestock, and to hand vacant possession to the Applicants;
5. The First
Respondent is directed to pay the costs of the application, being the
procedures under Part A and B hereof.”
The
eviction order was served on the applicant personally on 14 August
2013.  The Sheriff simultaneously served a writ of execution

with regard to the taxed costs of the eviction application on the
applicant. In pursuance of this writ of execution the Sheriff
at the
same time attached six cattle and six calves, being the property of
the applicant.
[6]
The applicant did not comply with the eviction order.  The
Sheriff subsequently executed the order on 21 October 2013,
in the
absence of the applicant, and evicted the applicant from the property
by removing all his possessions from the property
and by handing
vacant possession of the property to the respondents.  An
inventory of the said possessions of the applicant
so removed by the
Sheriff on 21 October 2013, is attached to the answering affidavit
filed in the spoliation application.
The respondents thereafter
demolished the mud house on the property.
[7]
The applicant then launched the spoliation application. The
spoliation application was issued simultaneously, but was enrolled

for a date after the hearing of the spoliation application.
THE
FACTUAL BACKGROUND:
[8]
It is evident from the papers filed in all three the relevant
applications that the applicant has been living on the farm Rooikraal

(“the property”) since 1990 when he was employed as a
farm labourer by the previous owner of the said property.
In
1992 the first respondent, in his personal capacity, started renting
the property from the previous owner and he then employed
the
applicant as farm worker in 1992.  The Tandjiesberg Trust
subsequently bought the property during 2002 and the applicant

remained as an employee on the property and he was also residing on
the property.  In this regard it appears from the papers
that
the applicant previously erected an informal structure on the
property for housing purposes and he also occupied a mud house
which
was in existence on the property. I will refer to these respective
structures as such and when I intent to refer to the two
structures
as a unit, I will refer to it as “the dwelling”.
According to the respondents’ version the applicant
resigned at
the end of August 2011, he moved to Van Reenen and he did not
permanently return to the property.  Although the
applicant
visited the property a number of times since August 2011, it is the
respondents’ contention that that was only
to inspect his
cattle, but he never stayed on the property again.  It is
therefore also the respondents’ case that because
the applicant
voluntarily resigned and voluntarily vacated the property, he has
since August 2011 not been an occupier as contemplated
in the
Extension of Tenure Act, 62 of 1997 (“ESTA”).
[9]
The applicant denies that he resigned from his employer and/or that
he vacated the property.  It is his case that he had
a quarrel
with his employer during 2011 over non-payment of overtime.  He
then refused to do further work until he was paid,
which continued to
be the situation for about two months.  Considering that he was
not receiving any income, he was forced
to seek employment in order
to upkeep his family.  He was eventually employed by a local
grocer about thirty kilometres away
from the property.  Even
during that time his children were still resident on the property and
he returned to the property
at the end of every month to provide his
children with money.  It is therefore his case that he never
left the property for
a period more than a month at any given time
and that all his possessions, except his clothes, remained at the
property.
As property labourers  they were also allowed to
keep livestock on the property and his livestock, consisting of
cattle, throughout
remained on the property which he contends is
indicative of the fact that he never vacated the property
THE
SPOLIATION APPLICATION:
[10]
For the sake of clarity I record that although this is a combined
judgment, I obviously adjudicate the respective applications
based on
the facts as they prevailed at the respective dates of the hearing of
the applications.
[11]
It appears to be common cause between the parties that on 21 October
2013, before the Sheriff executed the eviction order,
he phoned the
applicant to again advise him about the said order and that he should
move his possessions from the property.
At that stage the
applicant was not at the property.  Whilst the applicant and the
Sheriff were still in conversation, the
connection broke up due to
poor network reception. According to the first respondent he also
tried to contact the applicant on
his cell phone, but although the
applicant answered the call, he alleged that he could not hear the
first respondent. The Sheriff
thereafter proceeded with the eviction
and the removal of the applicant’s possessions from the
property.
[12]
Mr Motloung, on behalf of the applicant, contented that before
paragraph 4 of the eviction order could have been executed by
the
Sheriff, the court order should again have been personally served
upon the applicant. He submitted that the telephone call
from the
Sheriff did not constitute proper service of the order on the
applicant.
[13]
I cannot agree with this contention. It appears to be common cause
that the court order was originally served personally upon
the
applicant on 14 August 2013. It is also common cause that the
applicant did not comply with paragraphs 1, 2 and 3 of the court

order. Paragraph 4 of the court order specifically authorises the
Sheriff to execute the order should the applicant fail to comply
with
the order. This authorisation forms part of the court order which had
already been served upon the applicant on 14 August
2013. There was
thus no legal obligation upon the Sheriff to again serve the court
order on the applicant before he executed the
order in terms of
paragraph 4 of the said order.  The telephone call the Sheriff
(and the first respondent) made to the applicant,
was probably more
of a courtesy call than anything else.
[14]
Mr Motloung furthermore submitted that because the Sheriff was,
according to his submission, assisted by the respondents in
the
person of the first respondent in carrying out the Sheriff’s
duties, the execution of the eviction should be considered
to have
been performed by the first respondent, which is illegal. Therefore,
according to Mr Motloung’s contention, the applicant,
who was
in peaceful, though contested possession of the dwelling, was then
dispossessed of the dwelling without his consent when
the first
respondent demolished the dwelling.
[15]
I cannot agree with this contention on behalf of the applicant
either.  It is evident from paragraphs 11.4 and 12 of the

answering affidavit filed in the spoliation application, that the
eviction and the removal of the applicant`s possessions, including

the removal of the informal structure, were effected by the Sheriff
himself.  This is confirmed by the list of items removed
by the
Sheriff, Annexure “F” to the said answering affidavit,
which document reflects,
inter alia
,
“
plus minus 200 sinkplate, 30
houtbalke, 18 vensterrame, 15 deure”, all items that probably
constituted the building material
of the informal structure.
It was only thereafter, as is evident from
paragraph 13.1 of the answering affidavit, that the first respondent
demolished the mud
house, which he did not do in terms of the court
order, but on behalf of the registered owner of the property (the
trust), who
in turn was entitled to do so in its capacity as owner of
the property. His conduct was therefore not illegal nor unlawful.
[16]
It is trite law that in order to obtain a spoliation order two
allegations must be made and proved by an applicant, being:
16.1
That the applicant was in possession of the property; and
16.2
That the respondent deprived him of the possession forcibly or
wrongfully against his consent.
See
ERASMUS, SUPERIOR COURT PRACTICE
,
Van Loggerenberg
et al
,
at E9-5 – E9-6
[17]
Mr Pienaar, on behalf of the respondents, submitted that to comply
with the second requirement the deprivation must be wrongful,
being
deprivation against the will of the applicant and without resort to
legal process. In this regard he referred to the judgment
in
NTAI
AND OTHERS v VEREENIGING TOWN COUNCIL AND ANOTHER
1953 (4) SA 579
(AD) at 589 H – 590 A:
“
Before
considering the nature of proceedings for ejectment I must point out
that in this case the Council did not resort to self-help.
The
ejectment of Plaintiff’s property was effected by the messenger
under a warrant which covered the action he took, for
he was
authorised and required by process of Court
‘
to
put the said Plaintiff into possession of the same (i.e. the
premises) by removing therefrom the said defendant or any person

claiming through or under him’.
I
cannot understand how an action can be brought against the messenger
for executing that warrant while the writ stands”.
Mr
Pienaar consequently submitted that the applicant had not been
deprived unlawfully of his possession, as the Sheriff was authorised

by the court order to evict the applicant from the property.
The respondents did not resort to self-help.
[18]
I have to agree with this contention.  Even if it is assumed
just for argument`s sake that the applicant was in fact in
peaceful
and undisturbed possession of the dwelling, the applicant was evicted
as a result of the court order, in terms of which
the applicant was
no longer allowed to have any further possession of the property or
of any structures on the property.
It was therefore not the
demolishing of the mud house that deprived the applicant of his
possession of the property and the dwelling;
it was as a result of
the eviction order which was obtained after resorting to legal
process.  In this regard it should also
be borne in mind that at
the time when the eviction was executed and at the time when the
spoliation application was issued, the
eviction order was effective
and
in esse.
Until a court order has not been set aside by a
competent Court, it stands and must be obeyed even if it may be
wrong. See
ERASMUS, SUPERIOR COURT PRACTICE
, supra, at
B1-306F.
[19]
The applicant therefore did not proof the essential requirement of
having been wrongfully deprived of possession.  Having
made this
finding, it is not necessary to make a finding on the dispute as to
whether the applicant was in fact in possession of
the dwelling, or
not. For the same reason it is not necessary to deal with the further
defence raised by the respondents that because
the mud house had been
demolished, they are not in a position to restore possession, which
is a valid defence in a spoliation application.
The issue
pertaining to the restoration or substitution of possession which may
be ordered in certain circumstances in terms of
constitutional relief
under Section 38 of the Constitution, does not come into play either
considering that the applicant did not
make out a proper case for a
spoliation order.
THE
RESCISSION APPLICATION:
[20]
As previously indicated, the applicant maintains in his founding
affidavit in support of the rescission application, that he
did not
resign and that he had not left the dwelling on the property.
The respondents attached a notice of intention to defend
and an
answering affidavit of the applicant to their answering affidavit in
opposition of the rescission application.  I will
return to the
significance, in my opinion, of this notice and affidavit.  For
current purposes it should be mentioned that
the detailed averments
in that affidavit  pertaining to the circumstances which led to
the applicant seeking other employment
which resulted in him not
sleeping on the property every night, differ in certain respects with
the allegations in the applicant’s
founding affidavit. The
essence of the applicant’s version however remained to be to
the effect that he did not resign and
that he did not leave the
property and the dwelling as alleged by the respondents.  The
respondents, on the other hand, persisted
with their version that the
applicant voluntarily resigned and although he visited the property
from time to time, he moved from
the property and the dwelling at the
end of August 2011.
[21]
It is alleged by the applicant in the founding affidavit that the
application for rescission is made in terms of Rule 42 of
the Uniform
Rules of Court.  In this regard it is the applicant’s case
that the eviction order was erroneously sought
and granted in the
absence of any party affected thereby (in this case the applicant) in
terms of rule 42(1)(a).  It is the
applicant’s main
contention that the order was erroneously granted in that the
application was based on the provisions of
PIE in circumstances where
ESTA is applicable to the exclusion of the provisions of PIE.
It is therefore the contention of
the applicant that it was not
legally competent for the Court to have issued the eviction order.
[22]
It is the respondents’ case that because the applicant resigned
during August 2011and thereafter left the property and
did not reside
on the property anymore, the applicant was no longer an occupier as
contemplated in ESTA.  The applicant was
therefore, according to
the respondents, an unlawful occupier as defined in PIE.
[23]
Mr Motloung, again appearing on behalf of the applicant, in his
argument referred to the definition of an unlawful occupier
as
defined in PIE and the definition of an occupier as defined in ESTA.
He submitted that it is evident from the totality
of the papers that
the applicant in fact still resided on the property. In this regard
he referred to the list of personal and
household items of the
applicant, as well as the livestock, which were removed by the
Sheriff when the eviction order was executed
and submitted that it is
indicative of the fact that the applicant was still resident on the
property and hence an occupier in
terms of ESTA. He also pointed out
that the personal service of proceedings in the three respective
applications was effected upon
the applicant at the property as such.
[24]
Mr Motloung furthermore submitted that once it has been established
that ESTA is in fact applicable, the provisions of Section
8 of ESTA
is peremptory, which provides for the circumstances in which an
occupier`s right of residence can be terminated. Section
8(2) and
(3),
inter alia
,
are applicable in the circumstances of this matter:
“
(2)
The right of residence of an occupier who is an employee and whose
right of residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the Labour Relations
Act.
(3)
Any dispute over whether an occupier's employment has terminated as
contemplated in subsection (2), shall be dealt with in
accordance
with the provisions of the Labour Relations Act, and the termination
shall take effect when any dispute over the termination
has been
determined in accordance with that Act.
In
this regard he also referred to the judgment in
LANDBOUNAVORSINGSRAAD
v KLAASEN
,
2005 (3) SA 410
(LCC) at
para 14 where the following was stated:
“
It
would seem that the specific cancellation of an occupier’s
‘right of residence’ is required under S 9(2)(a),
even
where the agreement from which the right is derived was cancelled, or
has expired by the effluxion of its time.  Consent
to an
occupier to reside on land may only be terminated in accordance with
the provisions of S 8(1) or (2) of the Tenure Act.
If the
underlying contract containing the consent expired or was cancelled
but its termination does not comply with any of the
norms of S 8(1)
or (2) (for example, where the clause allowing the cancellation is
unfair), the consent to reside will continue
by operation of law,
even though the contract containing the consent came to an end.”
[25]
Mr Motloung also submitted that an eviction of the applicant could
only have been done under ESTA. He referred to section 9(1)
of ESTA
which determines as follows:
“
9(1)
Notwithstanding the provisions of any other law, an occupier may be
evicted in terms of an order of court and issued under
this
Act
.” (own emphasis
Mr
Motloung also referred to the pre-requisite of two calendar months’
written notice of an applicant’s intention to
obtain an order
for eviction as provided for in Section 9(2)(d) of ESTA.  He
submitted that this is a further compelling condition
which had to be
complied with before an application in terms of ESTA can in any event
be entertained. In the absence of such a
notice, the applicant was
entitled to remain in possession of the dwelling.
[26]
Mr Motloung consequently submitted that it was incompetent for the
Court to have granted an eviction order in terms of PIE
and that it
was consequently erroneously sought and granted.
[27]
Mr Els, appearing in this application on behalf of the respondents,
submitted that the facts in the matter of
LANDBOUNAVORSINGSRAAD
v KLAASEN
,
supra
,
are distinguishable from the facts in the current application.
He submitted that in that matter the occupants failed to
move out and
consequently throughout remained occupiers for purposes of ESTA.
He contended that in the current application
the situation is
different in that the applicant moved out of the dwelling and left
the property and when he returned after that,
he became an unlawful
occupier in terms of PIE.  He based his argument on the judgment
in
AGRICO MASJINERIE (EDMS) BPK v SWIERS
2007 (5) SA 305
(SCA) at para 30.
[28]
Mr Els furthermore submitted that all the relevant facts were put
before Court in the application for eviction, so even if
it was to be
accepted that the applicant in fact resided on the property, that
would only have the result that the order was then
wrongly granted,
which does not mean that it was erroneously granted as required by
Rule 42.  He therefore submitted and requested
that the
application be dismissed.
[29]
The following is stated in
ERASMUS,
SUPERIOR COURT PRACTICE
,
supra
at B1-308 A pertaining to Rule 42(1)(a):
“
In
general terms a judgment is erroneously granted if there existed at
the time of its issue a fact of which a Judge was unaware,
which
would have precluded the granting of the judgment and which would
have induced the Judge, if aware of it, not to grant the
judgment.
It follows that if material facts are not disclosed in an ex parte
application or if a fraud is committed the order
will be erroneously
granted.   It has been held that an order granted in an
application brought ex parte without notice
to a party who has a
direct and substantial interest in the matter is an order erroneously
granted.  An order or judgment
is also erroneously granted if
there was an irregularity in the proceedings or if it was not legally
competent for the court to
have made such an order.  The rule
does not cover orders wrongly granted.  Though in most cases
such an error would be
apparent on the record of the proceedings, it
has been held that in deciding whether a judgment was erroneously
granted a Court
is not confined to the record of the proceedings.
….Judgments have been rescinded under this sub-rule...where
counsel
for the Applicant in an ex parte application had  led
the Court mistakenly to believe that the Respondent had deliberately

decided not to consult his or her attorney or to appear at the
hearing.  …”
[30]
The fact that the application for rescission was brought under Rule
42 does not mean that it cannot be entertained under any
other
relevant rule such as Rule 31(2)(b) or the common law, provided the
requirements thereof are met.  This principle was
restated in
MUTEBWA v MUTEBWA AND ANOTHER
2001 (2) SA 193
(Tk HC) at 198 C – G:
“
[11]
…The applicant's notice of motion does not state a specific
Rule or procedure in terms of which the application was
instituted.
In Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E), Erasmus J
found that there are two more ways in which a judgment can be
rescinded. At 468H the learned Judge expressed himself
as follows:
'There
are three ways in which a judgment taken in the absence of one of the
parties may be set aside, viz in terms of (i) Rule
31(2)(b) or (ii)
Rule 42(1) of the Uniform Rules of Court, or (iii) at common law. . .
.
In
the notice of motion, applicant approached the Court for relief in
terms of Rule 31(2)(b). But as the judgment which is the subject
of
the application was granted on trial, in terms of Rule 39(1), Rule 31
is of no application. In my view, however, the application
was
sufficiently widely presented and argued so as to encompass also Rule
42(1) and rescission at common law.'
See
also Nyingwa v Moolman NO
1993 (2) SA 508
(Tk) at 509I - 510D.
[12]
On the basis of these two authorities the fact that an application
is specifically brought in terms of one Rule does not mean
it cannot
be entertained in terms of another Rule or under common law provided
the requirements thereof are met.”
[31]
Although I am of the view that the current rescission application can
in fact be dealt with in terms of Rule 42(1)(a), I do
however
consider it more efficacious to deal with it in terms of the common
law.
[32]
In order to succeed with such an application for rescission of a
judgment granted against him by default, the applicant must
show good
cause and the Court’s discretion must be exercised after a
proper consideration of all the relevant circumstances.
Good
cause entails three elements:
1.
The applicant must give a reasonable explanation for his default;
2.
The applicant must show that the application is made
bona
fide
;
3.
The applicant must show that on the merits he has a
bona
fide
defence which
prima
facie
carries some prospect of success.
See
COLYN v TIGER
FOOD INDUSTRIES LIMITED t/a
MEADOW
FEED MILLS (CAPE)
2003 (6) SA 1
(SCA)
at 9
C
– F.
Applicant`s
defence:
[34]
It appears that there may be a
bona fide
factual dispute between the parties pertaining to the underlying
facts on the question of whether the applicant is an illegal occupier

in terms of PIE or an occupier in terms of ESTA.  This issue has
throughout been raised by the applicant, even in his answering

affidavit drafted with the intention that it should serve as
opposition to the eviction application (Annexure “B” to

the respondents’ answering affidavit), but which was not
timeously filed. Should the application for rescission be granted
and
the eviction application eventually serves on an opposed basis before
Court, it might very well happen that the matter be referred
for the
hearing of oral evidence or to trial.  In the absence of such a
request and subsequent order, the Court will have
to consider the
matter on the basis of the uncontested facts in the respondents’
founding affidavit and the applicant’s
version regarding those
facts which are the subject of the factual dispute, in the
applicant’s answering affidavit. See
ROOM
HIRE COMPANY (PTY) LTD v JEPPE STREET MANSIONS (PTY) LTD
1949 (3) SA 1155
(T).  That may lead to a finding by the Court
that the applicant is indeed an occupier in terms of ESTA.  If
this is
to be found, the application for eviction can obviously not
be successful and the matter will have to be dealt with in terms of

ESTA.
[35]
Even if the Court is to find that the applicant was indeed an illegal
occupier in terms of PIE at the time when the application
for
eviction was issued, it does not necessarily mean that the
application will be successful.  In the very same judgment
of
AGRICO MASJINERIE (EDMS) BPK v SWIERS
,
supra,
on
which the respondents rely for their argument that it should be found
that the applicant is in fact an unlawful occupier in
terms of PIE,
the application for eviction in terms of PIE in that judgment was in
fact not granted despite such a finding.
I find the facts in
that matter to be very similar to those in the current instance.
I deem it apposite to quote at length
from the said judgment as from
paragraph 27 at 317 E and further:
“
[27]
Failing our outright rejection of the respondent's denial,
appellant's counsel relied on an alternative submission that was

first raised with clarity in the course of argument before us and
which he developed on the following lines:
[27.1] When the
respondent left the farm in 1998 she did so of her own volition,
whether in response to the appellant's offer to
pay R25 000 to each
resident who departed voluntarily or for other reasons of her own.
[27.2] The
respondent decided to return after she was satisfied that the
appellant had no intention of keeping its side of the contractual

bargain or simply because it suited her to do so. In either event she
did not rely on any delictual wrongdoing by the appellant.
[27.3] In leaving
the farm, the respondent ceased to occupy the premises as
contemplated in ESTA. By the time that she changed her
mind she knew
that she had no consent from the owner to take up residence again on
the farm.
[27.4] If the
respondent's initial departure from the farm arose simply from a
decision by her to change her place of residence,
no question of
waiver of her rights under ESTA arose. Such a move was simply a
termination of her occupation of her own accord
and brought her ESTA
rights to an end. If her acceptance of the offer amounted to a waiver
then such a waiver was by reason of
the terms of s 25(1) of ESTA void
unless permitted by the Act.
[27.5] The
conditions for a permitted waiver are to be found in s 25(3), ie a
free and willing vacation of the land by an occupier
who is aware of
his or her rights in terms of ESTA at the time that he or she leaves.
[27.6] A former
occupier who claims not to have vacated the land freely, willingly
and with knowledge of his or her rights (and,
therefore, to have
preserved such rights) is entitled to institute proceedings for
restoration under s14.   Although
the express terms of that
section only apply to cases of eviction, ie deprivation against the
will of the evictee, in order to
make sense of s 25(3), s 14 has to
be given an extended application which recognises that the
remedy of restoration is also
open to the occupier who vacates
voluntarily while unaware of his or her rights.
[27.7] The
respondent was not shown to have been aware of her rights when she
left the property. ESTA therefore conferred upon her
a right to claim
restoration in terms of s 14.
[27.8] Until that
right has been adjudicated upon as provided for in ESTA and an order
made for restoration, any occupation of the
property by her without
the consent of the owner would be a resort to self-help and hence
unlawful. That, submitted counsel, was
the legal consequence of an
acceptance of the facts set up by the respondent. On any other
interpretation, an ESTA occupier who
voluntarily leaves would have
more than the s 14 right of restoration that an occupier who is
unlawfully evicted has. In the result
the respondent ceased being an
ESTA occupier and was indeed an unlawful occupier as defined in PIE.
[28] …
[29] I think that
the logic of the reasoning of counsel for the appellant is, save for
one reservation the correctness of which
it is unnecessary to decide,
inescapable. The Legislature, in enacting ESTA, recognised the
existence of a large population bound
by history and circumstance to
the land on which they live. It intended to provide ample protection
to such occupiers who would
in all probability be disadvantaged by
lack of means and inadequacy of education and thus constitute an easy
prey to a landowner
seeking to take advantage of them. In these
circumstances,  and having regard to the broad content of the
rights of such occupiers
arising from ss 25(1),  25(6) and 26 of
the Constitution, it may well be that 'waiver' should be given a
broad interpretation
which includes unilateral abandonment even
though the intention of the ESTA occupier is to take up permanent
occupation elsewhere,
provided that the occupier is aware of his or
her rights under ESTA at the time of his or her departure from the
land. However,
even allowing the respondent the benefit of that
interpretation she faces the problem that the Legislature so
constructed ESTA
as to institutionalise and canalise all disputes
between owners and occupiers (or former occupiers) and thereby to
limit the scope
for conflict between them. This it sought to achieve
through inter alia the restoration proceedings provided for in s 14.
In particular
s 14(3) affords a wide discretion to a court to make
orders which are equitable and appropriate in the particular
circumstances
of the proceedings before it. That discretion is not
one which considers only the interest of the claimant. It recognises
that
restoration may be impracticable or unfair to the owner. As
counsel for the applicant submitted, the assertion by an evictee of

an apparently unassailable right to occupy does not mean that
restoration of occupation will automatically follow. That
determination
lies solely in the discretion of the competent court
after a consideration of all the relevant circumstances.
[30] But I think
appellant's counsel was also correct in submitting that it is not
only evictees whom the Legislature intended
to bring within the
remedies of s 14. The only way to give meaningful content to s 25(3)
is to place the occupier who vacates property,
otherwise than freely
and willingly and with awareness of his or her rights, on a par with
an evictee. It would seem that the Legislature
intended that such a
person should be regarded as one who was deprived 'against his or her
will of residence or use of land or
access to water which is linked
to a right of residence in terms of' ESTA. That equation is by no
means unduly strained and it
is consistent with the overall purpose
of the legislation to which I have earlier referred because it has
the effect of bringing
the parties together in a controlled judicial
environment in order to resolve the dispute. It also follows that
resort to self-help
is at odds with the means provided. The argument
for the respondent is flawed in so far as it equates her claim to a
right to occupy
with actual occupation.
The reality is that,
instead of resorting to her remedies under the statute, the
respondent simply moved on to the property without
the owner's
consent or the authority of an order granted in terms of s 14. In
doing so she was not an ESTA occupier and did not
become one, but
rather occupied the land without any right in law to do so. She was,
therefore, an 'unlawful occupier' within the
terms of PIE when the
application was launched.
[31]
It
follows that the applicant has established what it set  out to
prove. That however does not mean that eviction is the appropriate

relief.
The respondent's present occupation, although unlawful,
is not a crime. While it is no doubt an inconvenience to the
appellant,
there is no evidence of greater immediate prejudice to it.
The respondent is a single mother of minor children, one of whom has

special needs. She appears to be indigent. The availability of
suitable alternative accommodation is at least doubtful. Her
continuous
residence on the property extends, save for one absence of
nearly two years, for about thirty-five years. Under s 4 of PIE an
application
for her eviction would be subject to the exercise of an
equitable discretion because she had unlawfully occupied the land
for
a period of more than six months by the time
proceedings were initiated in the Court a quo.
On the facts which
the application procedure requires us to accept she has a claim to
restoration of occupation under ESTA which
may result in her once
again obtaining legal residence and use of a portion of the farm.
The equities of the situation thus justify a flexible approach which
will offer her the opportunity of regularising her occupation.
The
order I propose recognises that the continuance of the uncertainty is
undesirable for both parties and should be brought to
an end as soon
as possible.
[32] ….
[33] The following
order is made:
1.
The appeal succeeds. Each party is to pay its or her own costs.
2.
The order of the Court a quo is set aside and replaced with the
following order:
'1.
The appeal succeeds. Each party is to pay its or her own costs of
appeal. The order of Allie J is set aside. The following
order is
made in substitution of that order:
(a)
The respondent is placed on terms to institute proceedings in terms
of
s 14(1)
of the
Extension of Security of Tenure Act 62 of 1997
for
restoration of her residence and use of land on the farm Dassenberg
No 15, Malmesbury within four months from the date of this
order. The
appellant may, if so advised, bring counter-proceedings in terms of
ss 9
,
10
and
12
of that Act.
(b)
Should the respondent fail to institute such proceedings timeously or
fail to prosecute such proceedings to their conclusion
with due
expedition, the appellant is given leave to apply on the same papers
duly supplemented for an order of eviction under
the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
(c)
Each party is to pay its or her
own
costs.' (own emphasis)
[36]
In the circumstances I find that the applicant has a
bona
fide
defence on the merits which
prima
facie
carries prospect of success.
Applicant`s
default:
[37]
The applicant alleges in his founding affidavit that he received a
letter which instructed him that he should vacate the property.

The respondents indeed attached the said letter to the eviction
application as Annexure “E”.  He furthermore alleges

that the exchange of letters continued, which is again evident from
the letters which the respondents attached to the eviction

application as Annexures “G” and “H”.
The applicant then further alleges in his founding affidavit
in the
rescission application as follows:
“
10.
10.1
The exchange of letters continued until I received an application
for eviction by the first respondent.
10.2
I then took it to a Community Legal Assistant in Harrismith, called
Jabulani Nhlanhla to assist with the application. He promised
to
assist with the challenge of this application.
10.3
I never heard from Nhlanhla again until I received a warrant of
execution in August 2013. I was informed that the final order
was
granted against to vacate the property as the employer had
successfully applied for my eviction…..
10.4
I have since heard that Nhlanhla is a para-legal and he failed to
represent my interest adequately. He never challenged
the eviction
as has been agreed.
10.5
The decision was therefore obtained by default. I never renounced my
right to challenge this eviction.”
[38]
In response to the aforementioned allegations, the respondents
referred to a notice of intention to defend and an answering

affidavit deposed to by the applicant, both dated 13 April 2013,
attached to the answering affidavit of the respondents as Annexures

“A” and “B” respectively, and which documents
were received by the respondents’ attorney of record
on 7 May
2013.  With reference to these documents, the respondents aver
that it is evident that someone must have assisted
the applicant with
the drafting thereof. The respondents then allege that the applicant
is therefore untruthful when he avers that
after he instructed the
Community Legal Assistant in Harrismith to assist him with the
application he did not hear from him again.
The respondents
then furthermore contend that the applicant`s failure to disclose the
filing of the said documents to the Court
and the absence of an
explanation why the said documents had not been filed timeously, are
indicative of the applicant`s
mala
fides.
[39]
In my view, however, contrary to the stance of the respondents, the
very existence of the said documents in fact serves as
confirmation
of the applicant’s version that he intended to oppose the
application and that he in fact sought assistance
from a para-legal
to do so.  It is clear, also read in conjunction with the
allegations in the replying affidavit regarding
this aspect, that the
applicant had no knowledge that the said documents had in fact been
forwarded to the respondents’ attorney
of record.  It is
obvious that because the applicant received information that the
order had been granted by default, he made
the (reasonable) inference
that the said para-legal had failed to assist him in the opposition
of the application for eviction.
[40]
Further confirmation for the applicant’s version that he had
the intention to oppose the eviction application, is also
found in
the notice from the applicant to the respondents’ attorney of
record, dated 5 April 2013 and attached to the respondents`
answering
affidavit as Annexure “C”, in which he confirmed that he
had received the application for eviction and specifically
recorded
that it was his intention to oppose it.  Unfortunately the
applicant apparently did not file this letter at Court,
but I will
return to this issue when I deal with costs.
[41]
The applicant further alleges that he went to the “Department
of Land Affairs” in Bethlehem for assistance.
The truth
of his allegation is again confirmed by the response of the
respondents where they confirm in paragraph 10.1.2 of their
answering
affidavit that their attorney of record received a phone call from
one Dineo from the Department of Rural Development,
Bethlehem on 28
August 2013.  She enquired about the order that had been granted
against the applicant and also requested
that the execution of the
order be stayed.  On 2 September 2013 the respondents’
attorney of record however informed
the said Dineo that he had
received instructions to proceed with the execution of the order.
[42]
It further appears from the applicant’s founding affidavit that
an attorney and counsel were then briefed to assist him
and after
consultation with counsel on 23 September 2013, he was informed that
this application will be served after he signed
the necessary
papers.  These averments are again confirmed by the allegations
in the respondents’ answering affidavit
where they in fact
refer to a letter from Sesele Attorneys, dated 2 September 2013, in
which the respondents’ attorney of
record was advised that
Sesele Attorneys are acting on behalf of the Department of Rural
Development and Land Reform in the current
matter.  In this
letter the following was stated:
“
We
are in the process of obtaining copies of the application and
founding affidavit in order to advise client whether the provisions

of ESTA were followed.
Kindly
advise whether your client will agree to hold over the sale in
execution until 14 September 2013 to enable us to obtain proper

instructions.”
Further
letters were then exchanged between the respective attorneys, one of
which was dated 11 September 2013 from Sesele Attorneys,
stating,
inter alia
,
the following:
“
We
now have instructions to rescind the order granted in your client’s
favour.”
In
a subsequent letter Sesele Attorneys indicated that they have
arranged a consultation with counsel on 23 September 2013 to apply

for rescission of the eviction order.  In the same letter they
requested the following:
“
Kindly
confirm that you will at least hold over the sale in execution until
you hear from us on 23 September 2013.”
Respondents’
attorneys of first instance agreed to this request and indicated in a
further letter that they will hold the
“matter over”
until 25 September 2013.
The
following is then stated in the respondents’ answering
affidavit:
“
By
the 25
th
of September 2013 we did not receive any further correspondence or
reply from the applicant’s attorney, whereafter the Sheriff

proceeded with the sale of the livestock as well as the execution of
the eviction order.”
[43]
Although there was a further delay before the application for
rescission was eventually issued on 31 October 2013, it is in
my view
clear that the applicant had the intention to oppose the application
for eviction right from the onset of the proceedings
and he, being a
layman, did his ultimate best to make it materialise. The failure to
have filed the initial notice of intention
to oppose and the
answering affidavit timeously at Court, was clearly not the
applicant’s mistake. After having been served
with the eviction
order as such and having realised that for some or other reason his
intended opposition of the application did
not materialise, he again
took further steps to obtain assistance in this regard.
[44]
In these circumstances I am satisfied that the applicant has a
reasonable explanation for his default and that his application
is
being made
bona fide
.
[45]
In view of the aforesaid findings and taking all the circumstances
into consideration, I am convinced, in the exercise of my
discretion,
that the eviction order should be rescinded.
CONSEQUENCES
OF THE RESCISSION OF THE EVICTION ORDER:
[46]
Once a judgment or an order has been rescinded, the consequences
thereof fall to be set aside.  In
NAIDOO
v SOMAI AND OTHERS
2011 (1) SA 219
(KZP) it was stated as follows in paragraph 15 of the judgment:
“
Once
it is conceded, as it has been in this case, that the default
judgment falls to be set aside, then the consequences of the
default
judgment also fall to be set aside. Those consequences include the
issue of the writ of execution, the writ of ejectment
and the
attachment of the applicant’s property, and his ejectment from
the premises.”
In
that matter the Court consequently set aside the default judgment,
the writ of execution and the writ of ejectment. The sale
in
execution which was scheduled for a future date, was also cancelled.
Furthermore the relevant respondents were directed to restore

immediate occupation of the premises to the applicant. It was also
ordered that all goods which were attached pursuant to the grant
of a
writ of execution were to be returned to the applicant. Also see
VOSAL INVESTMENTS (PTY) LTD v CITY OF
JOHANNESBURG AND OTHERS
2010 (1) SA 595
(GSJ).
[47]
The aforesaid principle was also dealt with in the judgment of
JASMAT
AND ANOTHER v BHANA
1951 (2) SA 496
(T). The following
dicta
appear
at 499 – 500 of the judgment
“
A
default judgment was granted in favour of respondent against second
petitioner and, as a result of a writ of execution issued
to enforce
such judgment, respondent obtained occupation of the premises.
That judgment has been rescinded.  Petitioners’
claim for
relief is not based on spoliation but on the contention that they are
entitled to a restoration of the
status
quo
prior to the grant of the default
judgment. Respondent is presently in occupation of the premises
solely by reason of the judgment
which has been rescinded. That
judgment is a nullity and respondent can clearly derive no advantage
therefrom nor can petitioners
labour under any disadvantage as a
result of that judgment.
In my opinion
petitioners are entitled to claim that any benefit or advantage
respondent has derived from the judgment or any disadvantage
caused
thereby to themselves should be set aside and that the
status
quo
prior to the judgment be restored.…
If
a judgment by default was given against a defendant for a sum of
money on which execution was levied and the sum of money was
after
execution paid by the messenger to the plaintiff and such judgment
was thereafter rescinded, Mr Eloff conceded that the plaintiff
would
have no defence whatsoever to a claim by the defendant for a payment
of such money. …Petitioners are clearly entitled
to an order
restoring the
status quo
and ejecting respondent from the premises until such time as
respondent has established a right to occupy the premises.  It

is true that petitioners’ prayer does not seek an order of
ejectment pending the determination of respondent’s action,
but
it was in my opinion implicit in the petition that such was the
relief sought.”
[48]
In the premises, I am of the view that the consequences of the
eviction order should
mutatis mutandis
be set aside in this application.
[49]
Concerning the sale in execution of the cattle and calves of the
applicant which took place on 31 October 2013, I accept that,
on
probabilities, those livestock have already been handed over to the
buyer(s) thereof. I do not know the identity(ies) of the
said
buyer(s) and have no information as to whether the livestock are in
fact still alive.  In the circumstances I consider
the
appropriate order to be that the gross proceeds of the execution sale
be paid over to the applicant.
[50]
As far as the dwelling is concerned, I have already remarked earlier
in this judgment that it appears to have consisted of
an informal
structure previously erected by the applicant and the mud house
itself.  Quite a lot of different building materials
appear on
the inventory of the Sheriff reflecting the goods of the applicant
which he removed from the property, which inventory
is attached as
Annexure “F” to the answering affidavit in the spoliation
application.  On probabilities those
materials or at least some
of those materials previously formed part of the informal structure.
There seems to be no reason
why the said material cannot again be
re-used in re-erecting an informal structure.
[51]
It is common cause that the mud house has been demolished by the
respondents on the same day that the eviction order was executed
by
the Sheriff.  I have earlier indicated that as the owner of the
property, the respondents were legally entitled to demolish
the mud
house.  From the photo of the demolished mud house, Annexure “G”
to the answering affidavit in the spoliation
application, the
thatched roof of the mud house is clearly visible.  Judged by
the size of the roof, it appears that the said
mud house must
probably have been quite a big, spacious structure.  The
extensive number of the goods reflected on Annexure
“F”,
as well as the nature of those goods, also necessitates the inference
that the mud house and the informal dwelling
together must have
provided quite a spacious area to have accommodated all of those
goods.
[52]
I am now going to record certain events which are not only applicable
to the order I intend making pertaining to the re-erection
of a
dwelling for the applicant to stay in, but they are
mutatis
mutandis
relevant to the issue of
costs.  At the time when the eviction application served before
Court, the respondents, on their
own version, were very well aware of
applicant’s intention to oppose the application (Annexure “C’
to the answering
affidavit in the rescission application).
Despite this knowledge and apparently without bringing this fact to
the attention
of the Court, the respondents still moved for the
eviction order.  Only a few days after the eviction order was
granted, they
received the applicant’s notice of intention to
defend and his answering affidavit (Annexures “A” and “B”

to the answering affidavit in the rescission application).  The
respondents then continued with the legal process by obtaining
the
writ of execution and by serving the said writ, as well as the
eviction order, on the applicant on 14 August 2013.  The

exchange of letters between the parties’ attorneys then
followed.  Applicant’s attorneys specifically indicated

that the applicant intends bringing an application for the rescission
of the eviction order.  I do keep in mind that the date
of 25
September 2013 as agreed upon between the parties’ attorneys
passed without the applicant’s attorney giving any
feedback to
the respondents’ attorneys.  But then, despite
respondents’ knowledge of the applicant’s intention
to
bring the rescission application, the eviction order and the writ of
execution were executed in the absence of the applicant
and in the
absence of any form of prior notification to his attorneys.
[53]
It took the respondents almost four months from the date of the
eviction order to have it served upon the applicant.
A further
two weeks then lapsed before the respondents` attorneys received the
first letter from the applicant`s attorneys.
From the date
agreed upon between the parties’ attorneys, 25 September 2013,
it again took almost a month before the eviction
order and the writ
of execution were in fact executed.  But then all of a sudden,
immediately after the aforesaid execution
of the eviction order and
the writ, the respondents were in the biggest haste to demolish the
mud house, knowing full well that
the applicant may still bring the
rescission application.  The respondents gave the following
explanation for this conduct
in their answering affidavit deposed to
by Mr Hobbs filed in opposition of the spoliation application:
“
13.1
The applicant also makes use, and for some time, occupied a mud house
on the property, adjacent to the informal structure.
After the
applicant was evicted and his possessions removed from the property,
I demolished the mud house due to the fact that
the Trust, as
registered owner of the property, did not have any need for the
house. There was also no other employees who had
to occupy the mud
house. In any event, the mud house was dilapidated and was a risk for
any further occupation.”
[54]
As previously indicated, the respondents were legally entitled to
demolish the mud house. The question however arises with
what motive
this action was performed. Their explanation for their conduct, when
seen against the background of the totality of
relevant facts and
events, does not make sense.  Many months have passed since the
eviction order had been granted, during
which time the respondents
apparently did not deem it urgent for the order to be served and
executed so that the mud house can
urgently be demolished.
However, all of a sudden on 21 October 2013 the respondents
considered it so urgent that the mud
house be demolished that they
performed the demolition immediately after the Sheriff executed the
eviction order.  The aforesaid
reasons advanced by the
respondents for their conduct do not explain why the demolishing had
to be done on such an urgent basis.
Surely the mud house could have
remained intact without anybody occupying it should it be accepted
that it presented a risk for
further occupation.  It was not
necessary to demolish the mud house; moreover so in circumstances
where the respondents knew
that an application for rescission of the
eviction order was probably still forthcoming.
[55]
In the circumstances I deem it their responsibility to assist the
applicant and ensure that the applicant be provided with
a dwelling
similar to what he had prior to the execution of the eviction order
so that the
status quo ante
is
restored.
COSTS:
[56]
I will first deal with the spoliation application.  As I have
previously stated in this judgment, the respondents did
in fact
resort to legal process by means of the eviction application on the
basis of which they deprived the applicant of his alleged
possession
of the dwelling.  But, on the other hand, the respondents moved
for the eviction order at a time when they already
knew that the
applicant intended to oppose the application. Nowhere in any of the
papers is there an allegation that the respondents’
revealed
this to the Court before they moved for the eviction order.
Knowledge of this fact could have had a crucial effect
on the Court’s
decision whether to grant the order or not.  Because it was the
obtaining of this order which eventually
resulted in the deprivation
of the applicant’s alleged possession, albeit a legal form of
deprivation, I am of the view,
in the exercise of my discretion,
that the respondents should be penalised for their conduct. I am
consequently of the view
that costs should not follow the success of
the application, but rather that each party should be ordered to pay
his/her own costs.
[57]
I now turn to the costs of the rescission-application.  I have
already detailed the background events which are in my
view very
relevant to the issue of costs in this application. Based on those
events, I cannot but find that the conduct of the
respondents
reflects a lack of
bona fides.
In the circumstances and in the exercise of my discretion I intend
penalising the respondents with costs.
[58]
I consequently make the following orders:
1.
In application number 4398/2013:
1.1
The application is dismissed.
1.2
Each party is to pay his/her own costs.
2.
In application number 845/2013:
2.1
The Court order authorising the eviction of the applicant from the
property Rooikraal 1090, district Harrismith, Free State
Province
(“
the property
”)
together with further relief, granted on 25 April 2013 under
application  number 845/2013, is set aside.
2.2
The taxation of costs under application number 845/2013 dated 24 July
2013, as well as the writ of execution issued under application

number 845/2013 on 24 July 2013, are set aside.
2.3
The first to fourth respondents are ordered to forthwith pay the
gross proceeds of the sale in execution of applicant’s
goods,
consisting of but not restricted to six cattle and six calves, to the
applicant; alternatively, and in the event of such
proceeds still
being in the possession of the Sheriff, the Sheriff is ordered to pay
the said proceeds to the applicant.
2.4
The Sheriff is ordered to forthwith return the goods of the applicant
which were removed from the property on 21 October 2013,
as reflected
in the Sheriff’s return of service and invoice dated 30 October
2013, to the applicant.
2.5
The first to fourth respondents are ordered to immediately allow the
applicant back onto the property with the same rights and
obligations
pertaining to residence, grazing of animals and all other rights
which existed before the issuing and execution of
the court order
dated 25 April 2013 to the extent that the
status
quo
ante
is restored subject to the following:
2.5.1
The first to fourth respondents are ordered to allow and assist the
applicant to re-erect an informal structure in the same
vicinity as
where the previous structure was situated, using his own building
material; and
2.5.2
The first to fourth respondents are further ordered to assist the
applicant and furthermore, if need be, to provide the applicant
with
building material and labour in order to enable him to re-erect a
dwelling of similar size, comfort and amenities as the demolished
mud
house.
2.6
The applicant is ordered to file his notice to oppose the eviction
application within ten days calculated from 21 February 2014
and to
thereafter file his answering affidavit within fifteen days of the
filing of the notice to oppose.  Thereafter the
rules of Court
will govern the further proceedings.
2.7
The first to fourth respondents are ordered to pay the costs of the
application for rescission.
C.
VAN ZYL, J
On
behalf of the Applicant: Adv S.E. Motloung
On
Instructions Of:
Qwelane
Theron & van Niekerk Attorneys
BLOEMFONTEIN
On
behalf of the First to Fourth
Respondents:
Adv C.D.Pienaar
On
Instructions Of:
Phatshoane
Henney Inc.
BLOEMFONTEIN