THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 641/2023

In the matter between:
GOEDVERWACHTING FARM (PTY) LTD APPELLANT
and
ADRIAAN JOHANNES ROUX FIRST RESPONDENT
ANY AND ALL UNLAWFUL SECOND RESPONDENT
OCCUPIERS OF THE PROPERTY
THE CITY OF JOHANNESBURG THIRD RESPONDENT
METROPOLITAN MUNICIPALITY
MINISTER OF AGRICULTURE FOURTH RESPONDENT
AND LAND AFFAIRS

Neutral citation: Goedverwachting Farm (Pty) Ltd v Roux and Others (641/2023) [2024]
ZASCA 83 (31 May 2024)
Coram: NICHOLLS, MEYER and MATOJANE JJA and COPPIN and MBHELE
AJJA
Heard: 06 May 2024

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Delivered: 31 May 2024
Summary: Land tenure – Extension of Security of Tenure Act 62 of 1997 – whether the
respondents were occupiers as defined – no evidence of commercial farming on the land
– role of the probation report – impermissible for court to make factual findings on basis of
the probation officer’s report on matters which were not raised in the pleadings.

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ORDER

On appeal from : Land Claims Court , Randburg (Flatela J, si tting as a court of first
instance):
1. The appeal is upheld.
2. The order of the Land Claims Court is set aside and substituted with the following:
‘1. The first and second respondents are to be evicted from portion 17 of the farm
Goedverwachting, number 442, Registration Division IR, Gauteng Province on or
before 31 July 2024.
2. The Sheriff of the Court, together with the assistance of the South African Police
Services, if necessary, is authorised to execute the eviction proceedings against
the first and second respondents should the respondents fail to vacate the
property by 1 August 2024.’
3. There is no order as to costs.


JUDGMENT
Nicholls JA (Meyer and Matojane JJA and Coppin and Mbhele AJJA concurring):

[1] This is an appeal against a decision of the Land Claims Court (LCC) which
dismissed an application for eviction in terms of the Extension of Security of Tenure Act
62 of 1997 (ESTA). The appellant is Goedverwachting Farm (Pty) Ltd (Goedverwachting),
the registered owner of portion 17 of the farm Goedverwachting, number 442,
Registration Division IR, Gauteng Province (the farm). The first respondent is Adriaan
Johannes Roux (Mr Roux) and the second respondent is all those persons who occupy
the farm through Mr Roux. The third respondent is the City of Johannesburg Metropolitan
Municipality and the fourth is the Minister of Agriculture and Land Affairs. No relief is
sought against the third and fourth respondents. Mr Roux and those occupying through

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him will be referred to as the respondents. This appeal is with the leave of the LCC.

[2] The issue in this appeal is one of jurisdiction, namely whether Mr Roux falls within
the definition of an ‘occupier’ in terms of ESTA. If not , the LCC does not have the
necessary jurisdiction. An ‘occupier’ is defined in terms of s 1 of ESTA as follows:
‘“occupier” means a person residing on land which belongs to another person, and who on 4
February 1997 or thereafter, had consent or another right in law to do so, but excluding–
(a) . . .
(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) . . .’

[3] It is not disputed that the farm in question is agricultural land and that at some
stage, Mr Roux had consent to occupy the farm. The narrow question for determination
is whether commercial farming was conducted on the farm, and if so, whether there were
persons other than Mr Roux and his family members employed on the farm. Subsection
(b) of the definition thus contains an exclusion from the definitio n of occupier and an
inclusion in prescribed circumstances.

[4] The LCC, based on a probation officer’s report in terms of s 9(5) of the Act (the
report), found that Mr Roux was excluded from the definition of occupier because he was
conducting commercial farming on the land, as envisaged in s (1)(b) of the definition of
occupier. It accordingly held that the LCC did not have the jurisdiction to determine the
eviction. The court did not deal with the inclusionary aspect at all, namely whether
Mr Roux worked the land himself and employed only family members. That commercial
farming was taking place is denied by Goedverwachting , who argue that this was not
justified on the facts before court. Moreover, this was not an issue in dispute between the

justified on the facts before court. Moreover, this was not an issue in dispute between the
parties, or pleaded by them.

[5] The respondents’ occupancy is not in dispute. Mr Roux and all those occupying

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through him have been residing on the property since 2017, initially with the consent of
Barend Frederik Keet (Mr Keet), the previous owner. The applicant states that the
respondents had a ‘ temporally limited consent to occupy the property’ afforded to them
by Mr Keet, which was properly terminated. According to Mr Keet , prior to the property
being sold to Goedverwachting, he was approached by members of Deneys Swiss Dairy
(Pty) Ltd (Deneys) who expressed an intention to purchase the property and run a dairy
business on the land. Pursuant to the proposed purchase the respondents were afforded
a conditional right of tenancy on condition that the agreed purchase price was paid on the
agreed terms. Deneys, according to Mr Keet, breached the purchase agreement and any
right it had to the tenancy of the property was terminated. The agreement of sale was
cancelled and the property thereafter sold to Goedverwachting.

[6] Correspondence between Mr Keet’s attorneys and Mr Roux bears this out. A letter
dated 5 June 2017, in which reference was made to a previous letter dated 11 May 2017,
was served personally on Mr Roux on 14 June 2017. It refers to the breach of the sale
agreement and informs Mr Roux and Ms McGovern of the immediate cancellation of the
contract and their concomitant obligation to vacate the premises. Two years later on 14
June 2019, another letter was sent to Mr Roux by Mr Keet’s attorney stating that since
the cancellation of the sale agreement in 2017, the respondents had been in unlawful
occupation and had paid no occupational rental. Mr Roux was invited to a roundtable
conference and to settle the matter , failing which Mr Keet would institute legal
proceedings for eviction. It appears that the respondents did not attend any meeting.

[7] The property was then sold by Mr Keet to Goedverwachting on 9 December 2020
with transfer taking place on 24 June 2021. The Deed of Transfer registered in the Deeds

with transfer taking place on 24 June 2021. The Deed of Transfer registered in the Deeds
Office as T41994/2021 is proof of Goedverwachting’s ownership of the farm. Still, the
respondents refused to vacate the property . This resulted in a notice in terms of s 8 1 of

1 Section 8(1) of ESTA provides as follows:
‘8 Termination of right of residence
(1) Subject to the provisions of this section, an occupier's right of residence may be terminated on any
lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and
in particular to-
(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or
person in charge relies;

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ESTA being dispatched to the respondents. Section 8 of ESTA provides that an
occupier’s right of residence may be terminated if it is just and equitable. It then sets out
factors to be taken into consideration in determining this. Despite receiving the notice, no
response was forthcoming from the respondents.

[8] The present eviction application was launched on 15 September 2022 in terms of
s 92 of ESTA on the basis that the statutory requirements of s 8 had been complied with
and that the consent to occupy had been properly terminated. It is not disputed that
Mr Roux had alternative accommodation in the form of a small holding in the Free State.
It was alleged that his continued occupation of the farm had resulted in the deterioration
and gradual degradation of the property . Attached to the papers are various aerial
photographs which depict a decrepit-looking farmhouse with animals such as donkeys,
chickens and goats freely roaming on the property. These photographs had to be taken
utilising a drone and a helicopter as the respondents had refused representatives of

(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship to the owner or person in charge, the
occupier concerned, and any other occupier if the right of residence is or is not terminated;
(d) the existence of a reasonable expectation of the r enewal of the agreement from which the right of
residence arises, after the effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in charge, including whether or not the
occupier had or should have been granted an e ffective opportunity to make representations before the
decision was made to terminate the right of residence.’
2 Section 9 of ESTA provides as follows
‘9 Limitation on eviction
(1) Notwithstanding the provisions of any other law, an occupier may be evict ed only in terms of an order

of the Court issued under this Act.
(2) The Court may make an order for the eviction of an occupier if-
(a) the occupier's right of residence has been terminated in terms of section 8;
(b) the occupier has not vacated the l and within the period of notice given by the owner or person in
charge;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and
(d) the owner or person in charge has, after the termination of the right of residence, given-
(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in question is situated; and
(iii) the head of the relevant provincial office of the Department of Rural Development and Land Reform,
for information pur poses, not less than two calendar months' written notice of the intention to obtain an
order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which
the eviction is based: Provided that if a notice of applicatio n to the Court has, after the termination of the
right of residence, been given to the occupier, the municipality and the head of the relevant provincial office
of the Department of Rural Development and Land Reform not less than two months before the date of the
commencement of the hearing of the application, this paragraph shall be deemed to have been complied
with.
(3) …’

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Goedverwachting any access to the farm. In addition, it was stated that
Goedverwachting, which was to have operated a cattle farming business, was losing
substantial sums of money by the continued occupation of the property by the
respondents.

[9] Preempting the defence of the respondents that their entitlement to the land was
by virtue of their early occupation of the land as K hoi and San people, attached to the
founding affidavit of the appellant is a document purporting to be an aboriginal title of the
Gona-Hesse !Khwe Royal Kingdom officially endorsed by King Gqona Cornelius Botha
(Mr Botha). A notice of the Kingdom declares that Mr Roux occupies the farm by virtue
of his aboriginal title ‘ and in conjunction with the Customary Law and Const itution of
South Africa (1996 )’. The deponent to the appellant’s affidavit, a director of
Goedverwachting, alleges that this is a fictitiously created document and the stamp it
bears of the Midvaal Municipality was fraudulently obtained . T he date stamp has
allegedly also been tampered with. The Midvaal Municipality has indicated that it has no
knowledge of the document. Nothing was put up to refute this.

[10] Two answering affidavits have been filed. The first is that of Mr Botha, apparently
in the name of the Gonas Customary & Indigenous Law Agency , and in his capacity as
King of the Gona-Hesse !Khwe Royal Kingdom . He states that Mr Roux and the
members of Deneys are members of his kingdom and that the land was stolen from his
forefathers, the Gona-Hesse !Khwe people who are the real landowners and the true
indigenous aboriginal people of South Africa. As such, Goedverwachting and Mr Keet
are in possession of ‘stolen goods’- the land that was stolen from their forefathers and
never returned to them. Mr Botha denies staying on the farm which he describes as a
false accusation by Goedverwachting. He did however assist Mr Roux and the Deneys
Swiss Dairy as they are members of the Gona-Hesse !Khwe Royal Kingdom. Numerous

Swiss Dairy as they are members of the Gona-Hesse !Khwe Royal Kingdom. Numerous
allegations of dishonesty and fraud are made against Mr Keet.

[11] Mr Roux in a similar vein relies on the ‘Gonas Customary & Indigenous Law
System’ to assert ownership of the farm and states that he does not , and will not ,

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unlawfully occupy any land. In relation to the facts contained in the founding affidavit, he
states that Mr Keet sold the property to Deneys and the members of Deneys gave them
‘permission to look after the farm ’. Hilda McGovern , Mr Roux’s daughter , filed a
confirmatory affidavit wherein she confirms that she is a member of Deneys and gave
Mr Roux permission to stay on the farm after Deneys ‘paid’ Mr Keet for the farm. No
evidence of any payment is attached in substantiation.

[12] The only defence put up by the respondents is that the land in question belonged
to them by virtue of their aboriginal title and because they had purchased the farm. No
evidence was provided to support th is defence. What is singularly lacking in both
answering affidavits is any allegation that the land was being operated as a commercial
venture at the time the eviction was sought. Nor is there any description of who worked
on the farm. By relying on their indigenous rights to the land, the issue of whether the
appellant is entitled to evict the respondents in terms of ESTA or whether they are
occupiers in terms of ESTA is not pertinently addressed. Instead, the case made out by
the respondents is that they are in legal occupation by virtue of their indigenous title to
the land, alternatively that they are the owners of the lan d having purchased it from Mr
Keet.

[13] It is very difficult to ascertain the situation of Deneys on the papers before this
court. However, what is evident is that the dairy business did not succeed and Deneys
went into voluntary liquidation at the hands of Ms McGovern who filed a special
resolution in terms of s 352(2) of the Companies Act 71 of 2008. A final liquidation order
was granted on 4 November 2020. It appears that during mid 2022, members of Deneys
unsuccessfully attempted to have the liquidation set aside on the basis that there was
value in the equity and goodwill in the brand of Deneys Swiss Dairy . From excerpts of

value in the equity and goodwill in the brand of Deneys Swiss Dairy . From excerpts of
the affidavits in the various applications , it is evident that the business of Deneys had
stopped operating and had completely closed by December 2019. Mr Roux himself
stated under oath on 9 A pril 2021 that by 6 April 2021 ‘there was not a single item on
the premises that belonged to Deneys Swiss Dairy’.

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[14] The confusion was further compounded by t he respondents’ heads of argument
which were filed late and for which condonation was sought, and granted. In this Court,
as in the LCC, Mr Roux refused legal representation. He insisted that lawyers were not
to be trusted and that his daughte r, Ms McGovern , would argue on his behalf. He
explained that persons with legal knowledge had assisted him in drafting his heads of
argument. Apart from asserting their original aboriginal title to the land, the main thrust
of the heads of argument is that the legal representatives of Goedverwachting had
fraudulently and dishonestly omitted to include portions of the record which would further
Mr Roux’s case. This is an apparent reference to papers where Ms McGovern applied
to be an intervening party in the present case and an application to set aside the
liquidation of Deneys. It was alleged that Deneys is not in voluntary liquidation and that
Ms McGovern was coerced into signing the necessary documents and resolutions. As a
result, an urgent application for the rescission of the liquidation was to be brought, and
a further attempt was made to justify Ms McGovern’s intervention as an interested party
in the se proceedings. Ms McGovern confirmed that both the application for the
rescission of the liquidation of Deneys and the application for Ms McGovern to be
admitted as an intervening party had been heard by the time the matter was heard in
this Court. Both applications were dismissed and have not been appealed. Despite the
heavy reliance on the alleged wrongdoings in respect of these applications in the heads
of argument, these applications are not relevant to the issue before this Court which is
whether a commercial enterprise was being conducted on the farm at the time the
eviction was sought.

[15] As indicated, the finding of the LCC that the respondents did not fall within the
purview of ESTA, was based solely on the probation officer’s report dated

purview of ESTA, was based solely on the probation officer’s report dated
25 October 2022 provided by the Department of Agriculture, Land Reform and Rural
Development. In terms of s 9(2) (c) of ESTA a court is compelled t o obtain a report to
ensure the ‘conditions for an order for eviction in terms of section 10 or 11 have been
complied with’. Section 26(3) of the Constitution requires a court to consider all relevant
circumstances before ordering an eviction. The probatio n officer’s report is merely a
mechanism to place information before a court to enable it to comply with its

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constitutional obligations.3 The content of the report enables the court to get an
indication of what constitutional rights are implicated, includ ing any rights to education
of the children on the property; the availability of alternative accommodation to the
occupier; and any other hardships that the eviction may cause the occupier. Thus the
role of a probation officer’s report is to assist the court in determining whether an eviction
would be just and equitable in the circumstances of a particular case.

[16] The purpose for which such reports are made is clearly set out in s 9(3) of the Act
which provides as follows:
‘For the purposes of subsection (2)(c), the Court must request a probation officer contemplated
in section 1 of the Probation Services Act, 1991 (Act 116 of 1991), or an officer of the department
or any other officer in the employment of the State, as may be determined by the Minister, to
submit a report within a reasonable period-
(a) on the availability of suitable alternative accommodation to the occupier;
(b) indicating how an eviction will affect the constitutional rights of any affected person, including
the rights of the children, if any, to education;
(c) pointing out any undue hardships which an eviction would cause the occupier; and
(d) on any other matter as may be prescribed.’

[17] The sole statement in the report upon which the LCC relied to find that a
commercial enterprise was being conducted on the farm was the following:
‘During the 7 years residing on the farm [Mr Roux] has also indicated that he has been farming
with livestock which consist of 200 pigs and 18 cattle.’
The version apparently given to the prob ation officer by Mr Roux was that Deneys had
entered into an agreement with Mr Keet to acquire the farm for R5 million. This was to be
paid in cash of R900 000; cows to the value of R2 million and livestock feed to the value
of R1,2 million. A total of R4,1 million had already been paid.

of R1,2 million. A total of R4,1 million had already been paid.

[18] Relying on the above, the LCC made the following finding:
‘[36] Section 1 excludes from the definition of an occupier a person using or intending to use the

3 Valley Packers Co-operative Limited v Dietloff and Another [2000] ZALCC 47; [2001] 2 All SA 30 (LCC)
para 7; Nederburg Wines (Pty) Ltd v Nero and Others [2018] ZASCA 119 paras 7-9.

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land in question mainly for industrial, mining, commercial, or commercial farming purposes. On
the facts of this case, the respondents have been occupying the premises since 2017 through
Deneys Dairy wh ich had an intention to purchase the farm for commercial purposes. The
respondents were granted consent to occupy the farm pending payment of the purchase price.
Clearly this was a commercial enterprise, and that it failed, and with the respondents continuing
to occupy the property despite not having fulfilled the suspensive condition does not find for their
consent in occupation of the property nor bring them in the ambit of occupiers in terms of ESTA.
[37] The Probation report notes that the first respondent operates a farming business which
consists of 200 pigs and 18 cattle, a commercial business. The respondents are simply excluded
by section 1 by reason of the commercial enterprise. That their agreed facts st ated to the
contrary, they are wrong in law.’

[19] The first point is that the probation officer’s report cannot usurp the court’s
discretion as to whether an eviction should be granted. Secondly, the report is not made
under oath. It is, therefore, not evidence before the Court. Thirdly, even on Mr Roux’s
own version, it contained factual inaccuracies . These included the duration of his
tenancy on the farm; the identity of the other occupants and his dependency on a state
pension, an anomalous situa tion if the farm w ere a functioning commercial enterprise.
That he received a social grant was vehemently denied by Mr Roux.

[20] The reference to livestock numbers is not sufficient to establish the scale and
nature of any commercial enterprise. The report i tself does not suggest that a
commercial venture was being conducted and no mention is made of a functioning dairy.
There is no evidence of any commercial activity at the time the eviction application was
launched. The aerial photographs taken in 2022 do not reflect this. If indeed a business

launched. The aerial photographs taken in 2022 do not reflect this. If indeed a business
enterprise were operating on the farm, one would have expected some financial
information to be provided. But more importantly, this was not the version put up by the
respondents.

[21] This Court has repeatedly emphasised that the function of judicial officers is to
determine the issues before them and to confine themselves to such issues. It is for the
parties to set out and define the nature of their dispute in the pleadings and the court to

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then adjudicate on the issues so defined. 4 It is not for the judicial officer to create new
factual issues particularly where the parties were not asked for their submissions
whether this was an appropriate approach to the matter, or even whether the issue was
in dispute.

[22] The probation officer’s report cannot be used as a substitute for evidence. It was
incumbent upon the respondents to raise the issue that they did not fall within the
definition of an occupier in terms of ESTA and to set out the reasons therefor. The LCC
impermissibly took it upon itself to make a finding on an issue that was not i n dispute
between the parties without hearing either party on the issue. In doing so, the LCC erred
in finding that the respondents were excluded from the definition of ‘occupier’ under s 1
of ESTA and dismissing the application for eviction on this basis . Taking into
consideration that the requirements of s 115 of ESTA have been complied with, it is just
and equitable to grant an order for eviction against Mr Roux and all those occupying
through him.

[23] As regards costs, Goedverwachting acknowledged because land claims
invariably deal with vulnerable persons , costs are only awarded in exceptional
circumstances. However, it was contended that a costs order was warranted against the
respondents as they ha d been in unlawful occupation since 2017 without paying any
rental. This had resulted in ongoing financial losses. Goedverwachting only took transfer
of the property in June 2021 so any financial losses can only have taken place thereafter.
In any event I am not persuaded that that this is an exceptiona l circumstance which
would justify a costs order against the respondents.

4 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); [2009] 2 All SA
243 paras 15-16; Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd [2022] ZASCA

51; [2022] All SA 607 (SCA); 2022 (4) SA 57 (SCA) para 9; Fischer and Another v Ramahlele and Others
[2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) para 15; Road Accident Fund v MKM
obo KM and Another; Road Accident Fund v NM obo CM and Another [2023] ZASCA 50; [2023] 2 All SA
613 (SCA); 2023 (4) SA 516 (SCA) para 66.
5 Section 11(2) provides that a Court may grant an eviction order in respect of any person who became an
occupier after 4 February 1997 if it is just and equit able to do so while section 11(3) sets what factors the
court should have regard to. These include the length of occupation of the land, the reason for the eviction,
whether there is suitable alternative accommodation and the balance of interests between the owner and
the occupiers.

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[24] Although Goedverwachting seeks the immediate eviction of the respondents, it
was conceded that this would be unduly harsh. I n view of the fact that the respondents
have been residing on the farm for a number of years, it is just and equitable that they
be given a couple of months within which to vacate the property.

[25] In the result the following order is made:
1. The appeal is upheld.
2. The order of the Land Claims Court is set aside and substituted with the following:
‘1. The first and second respondents are to be evicted from portion 17 of the farm
Goedverwachting, number 442, Registration Division IR, Gauteng Province on or
before 31 July 2024.
2. The Sheriff of the Court, together with the assistance of the South African Police
Services, if necessary, is authorised to execute the eviction proceedings against
the first and second respondents should the respondents fail to vacate the property
by 1 August 2024.’
3. There is no order as to costs.


_____________________
C E HEATON NICHOLLS
JUDGE OF APPEAL

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Appearances

For the Appellant: L van Gass
Instructed by: Van Greunen & Associates Inc, Pretoria
Symington De Kok Attorneys, Bloemfontein

For the Respondent: A.J Roux (in person)
H McGovern (in person)