SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 284/2023

In the matter between:
LEON DE KOCK APPELLANT
and
WANDA LUUS DU PLESSIS FIRST RESPONDENT
ANDRE DU PLESSIS SECOND RESPONDENT
DU PLESSIS (BOLAND)
WELLINGTON ATTORNEYS THIRD RESPONDENT
CITY OF CAPE TOWN MUNICIPALITY FOURTH RESPONDENT

Neutral citation: De Kock v Du Plessis and Others (284/2023) [2024] ZASCA
117 (24 July 2024)
Coram: MAKGOKA, MABINDLA -BOQWANA and GOOSEN JJA and
BAARTMAN and SEEGOBIN AJJA
Heard: 6 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal

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website, and release to SAFLII. The date and time for hand -down is deemed to be
11h00 on 24 July 2024.
Summary: Eviction – Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (the PIE Act) – defence – right to occupation
in terms of oral agreement – alleged agreement cancelled in action proceedings –
aggrieved party not permitted to approbrate and reprobate – contractual defence
extinguished by cancellation – just and equitable order considered.

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ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Dolamo,
Kusevitsky and Nziweni JJ sitting as court of appeal):
1 The appeal is upheld.
2 The order of the full court is set aside and replaced with the following:
‘1. The appeal is upheld.
2. The order of the court of first instance under case number 6374/2020
is set aside and replaced with the following order:
‘1. The applicant’s supplementary replying affidavit is admitted.
2. The first and second respondents (respondents) and all those claiming
occupation through and under them are evicted from erf 4629, Wellington,
with street address 9 Muscadel Street, Wellington (the property), subject to
the conditions set out below.
2.1 The applicant shall lease a residential unit at a retirement home, which
provides frail-care facilities and/or otherwise provides and/or contracts in
medical services for ailing residents, for occupation by the respondents
(a unit).
2.2 The monthly rental of the unit shall not exceed R20 000 per month,
exclusive of any additional costs levied by the retirement home in respect
of frail care or medical treatment actually afforded to the second
respondent, which are not included in the monthly rental of the unit and
which are not covered by the existing medical aid scheme(s) of the
respondents, provided that:

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(a) The applicant shall pay such additional costs which are not so
included or covered.
(b) If the respondents select a unit which exceeds R20 000 per month in
rental, they shall reimburse the applicant any amount exceeding R20 000,
immediately upon the applicant’s written demand.
2.3 The respondents shall within 30 calendar days of this order select a
unit which is available to be occupied by them on or before the date on
which they are obliged to vacate the property for a monthly rental not
exceeding R20 000 and notify the applicant of its particulars, whereupon
the applicant shall lease that unit for residential occupation by the
respondents: Provided that in the event that the respondents fail to select a
unit as contemplated above and/or inform the applicant, the applicant may
either:
2.3.1 pay an amount of R20 000 per month to the respondents, jointly and
severally, as a contribution to such residential accommodation as they may
wish themselves to hire, which payments shall be a complete discharge of
the applicant’s obligations to the respondents; or
2.3.2 call upon the respondents within 10 calendar days thereafter, to rank
the retirement homes mentioned below, in descending order of their
preference:
(a) Huis Vergenoeg (in Main Road, Paarl);
(b) Rusthof Old Age Home (in Klein Nederburg Street, Paarl);
(c) Huis Perelberg (in Botha Street, Paarl);
(d) Rusoord Old Age Home (in Divine Street, Paarl);
(e) Sherwood Nursing Home (in Kenilworth, Cape Town);
(f) Libertas Retirement Home (in Goodwood, Cape Town);

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(g) Oasis Retirement Home (in Century City, Cape Town);
(h) Pineland Place (in Pinelands, Cape Town);
(i) Trianon Care Centre (in Plumstead, Cape Town);
(j) Eureka Retirement Village (in Oakdale, Cape Town);
(k) La Recolte Retirement Village (in Richworth, Cape Town);
(l) De Plattekloof Lifestyle Estate (in Plattekloof, Cape Town).
2.4 In the event the applicant selects the option in 2.3.2 above, he shall
lease an available unit not exceeding R20 000 per month at the highest -
ranking retirement home in the above list for occupation by the respondents
on or before the date of which the respondents are obliged to vacate the
property.
2.5 The respondents and all those claiming occupation through and under
them shall vacate the property by no later than 90 calendar days of this
court’s order.
2.6 In the event that the respondents and all those claiming occupation
through and under them fail to vacate the property on the date appointed in
the preceding paragraph or to which that date has been p ostponed by the
applicant, the sheriff with jurisdiction or his/her lawful deputy is authorised
and directed to carry out the eviction on the court day immediately
following the date to vacate the property or the postponement date by the
applicant.
2.7 The respondents shall in good faith give all reasonable cooperation to
the applicant in securing a unit for residential occupation by them,
including, without limitation, attending any interviews appointed for them
at retirement homes.

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2.8 In the event that a unit has been secured for residential occupation by
the respondents and it is for any reason not reasonably practicable for the
respondents to occupy that unit on the date on which they are obliged to
vacate the property, the applicant may by written noti ce postpone the date
on which the respondents are obliged to vacate the property, to a specified
or determinable later date, without further legal process. Such a notice shall
be prima facie proof that the specified or determinable later date has been
appointed by the applicant.
2.9 In the event that the respondents should wish to store any of their
household furniture and effects upon vacating the property, the applicant
shall pay the reasonable cost of such storage for a period of two months,
reckoned from the date on which the respondents are obliged to vacate the
property or from the specified or determinable later date to which the
applicant has postponed the date on which the respondents are obliged to
vacate the property.
2.10 All communications which may be necessary between the parties shall
be effected by email exchange between themselves or their legal
representatives, as the case may be, which emails shall be deemed to have
been received at 08:00 on the Court day following the day on which they
were dispatched.
2.11 These obligations on the applicant shall be effective and enforceable
for a period of one year from the date of this order.
3. There is no order as to costs’.

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JUDGMENT
Mabindla-Boqwana JA (Makgoka and Goosen JJA and Baartman and
Seegobin AJJA concurring):

Introduction
[1] The appellant, Mr Leon de Kock , appeals with the special leave of this
Court, against an order of the full court of the Western Cape Division of the High
Court, Cape Town (the full court). That court had dismissed his appeal against an
order of a single judge, which had dismissed Mr de Kock’s eviction application
against the first and second respondents.

[2] On 4 June 2020, Mr de Kock launched an application in the Western Cape
Division of the High Court, Cape Town (the high court), for the eviction of the first
and second respondents from the residential property situated at erf 4629, 9
Muscadel Street, Wellington (the property), in terms of s 4(6) alternatively s 4(7)
of the Pr evention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 (the PIE Act).

[3] Mr de Kock is a businessman and the current owner of the property. The
first respondent, Mrs Wanda Luus du Plessis and the second respondent, Mr Andre
du Plessis are retired. They are married and reside in the property . The property
was previously owned by Mrs du Plessis until she sold it to Mr de Kock . Mr du
Plessis practised as an attorney at the property until he ceased to practice.

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[4] Mr de Kock was married to Mr and Mrs du Plessis’ daughter, Nicquelette de
Kock (Nicquelette) in 2006 , until her passing on 26 September 2018. Mr de Kock
and Nicquelette had twins born of their marriage , a boy and a girl, who are
currently 11 years old (the minor children). The relationship between Mr de Kock
and his in - laws was initially very warm, caring and loving . For all intents and
purposes Mr and Mrs du Plessis regarded Mr de Kock as their own son.

[5] During 2015 Mr de Kock and Mrs du Plessis started discussi ng the
possibility of Mr de Kock purchasing the property . At the time, the property was
subject to a mortgage bond of about R1 000 000 in favour of ABSA Bank. The
parties differ as to what led to these discussions. Mr de Kock ’s version is that his
in-laws we re experiencing financial difficulties and the property had become a
financial burden that the couple increasingly could no longer afford. Mrs du
Plessis, on the other hand, alleges that it was Mr de Kock, who proposed buying
the property so he could obtain finance for his business as he did not own
immovable property.

[6] On 6 May 2016 , the parties concluded a deed of sale in terms of which Mrs
du Plessis agreed to sell the property to Mr de Kock at the purchase price of
R4 500 000. Mr de Kock secured a loan of R3 375 000 from ABSA Bank against
the registration of a mortgage bond over the property, which is 75% of the R4 500
000 purchase price . The property was registered in Mr de Kock ’s name on 5
September 2016. Mrs du Plessis was p aid an amount of R3 500 000 as
consideration for the sale.

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[7] From the proceeds of the sale Mrs du Plessis paid R1 000 000 to ABSA
Bank to discharge the existing mortgage bond over the property. She then by
agreement with Mr de Kock, advanced the rem aining balance of R2 500 000 to
him. It was agreed that Mr de Kock would repay the loaned amount, in monthly
instalments of R52 085, over a period of 48 months (loan agreement). Mr de Kock
also agreed to pay 48 instalments of R 25 000 per month , which he alleges
represented a fixed interest of 10% per month on the loan capital . Mrs du Plessis,
on the other hand, understood the amount to have been a contribution towards hers
and Mr du Plessis’ living expenses, since Mr de Kock enjoyed the benefit of the
full proceeds of her property.

[8] After the sale and transfer, Mr and Mrs du Plessis remained in occupation of
the property with Mr de Kock’s consent. According to Mrs du Plessis the
agreement was that she and Mr du Ple ssis could continue to reside at the property
rent-free until the full amount was paid ; namely, repayments for the R2 500 000,
48 monthly payments of R25 000 and the R1 000 000 shortfall outstanding in
terms of the agreement. In mid-2019, Mr de Kock’s rela tionship with his in -laws
started to deteriorate. The source of the fall-out was Nicquelette’s estate and access
to the minor children. The detail of that dispute is however not relevant to the
determination of this appeal.

[9] Mr de Kock engaged the services of an attorney who advised him that the
loan agreement between him and Mrs du Plessis was a credit transaction as
contemplated in s 8(4)(f) of the National Credit Act 34 of 2005 (the NCA) and thus
a credit agreement as defined in s 1 read with s 8 (1) of the NCA. The loan

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agreement was, accordingly, unlawful because Mrs du Plessis was not registered as
a credit provider. On that advice, Mr de Kock ceased to make payments.

[10] As at the end of October 2019, of the R52 085 monthly instalments, Mr de
Kock had paid R1 927 145. In respect of the R25 000 monthly payments, his
version is that he had paid R925 000 while Mrs du Plessis alleges that he had only
paid R875 000.

[11] On 14 October 2019 and 23 October 2019 , Mr de Kock ’s attorneys sent
letters to Mr and Mrs du Plessis notifying them of Mr de Kock’s intention to sell
the property and required them to vacate the property by 31 January 2020. A
further notice was sent on 21 February 2020.

[12] Mr and Mrs du Plessis refused to vacate the p roperty resulting in Mr de
Kock filing the PIE application in the high court on 4 June 2020 . Mr de Kock
alleged that the parties had entered into two distinct oral agreements. The first
agreement was that, after acquiring the property, Mr and Mrs du Plessi s would
remain in occupation of the property, indefinitely and rent free, subject to them
paying for the amenities used and the necessary maintenance. He was advised that
the arrangement was not a proper lease and was therefore terminable at reasonable
notice.

[13] The second agreement was the loan agreement discussed above . ABSA
Bank was prepared to advance a loan of 75% of the purchase price of the property
to him. The R4 500 000 that was stipulated in the deed of sale was a simul ated

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purchase price , which at 75% would yield a mortgage loan of R3 375 000. He
would be required to only invest R125 000 of his own capital in the property.

[14] In defence to the PIE application , Mrs du Plessis alleged that the parties
entered into a single oral agreement constituted of two parts (composite
agreement). According to her, because ABSA Bank was on ly prepared to offer
mortgage financing of only R3 375 000, she agreed to accommodate Mr de Kock
by allowing the property to be transferred to his name against the payment of
R3 500 000 . The balance of R1 000 000 of the purchase price would, upon
transfer, remain due by Mr de Kock to her. Mrs du Plessis therefore agreed to lend
Mr de Kock R2 500 000 of the balance of the proceeds of sale actually paid upon
transfer. The remaining balance of R1 000 000, making up R3 500 000, was due by
Mr de Kock. As already stated, t he R 2 500 000 would be repaid in 48 monthly
instalments of R52 085 per month and the R1 000 000 would be repayable after the
first component of R2 500 000 was fully paid.

[15] Accordingly, until such time the R3 500 000 had been repaid in full, Mr and
Mrs du Plessis would remain in the property free of rent. Mr de Kock could not
freely deal with the property. Full payment of the money and the restoration of the
property, according to Mrs du Plessis , were reciprocal. Because the full loan
account had not been fully redeemed, she retained the right to remain in occupation
of the property in ter ms of the composite agreement. She regarded the attempt to
evict her and Mr du Plessis from the property as a repudiation of the agreement,
which she refused to accept and elected to approbate and enforce it.

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[16] The eviction application served before De Villiers AJ on 9 March 2021 . At
the hearing of the matter, Mr de Kock’s counsel sought to introduce a
supplementary replying affidavit (the affidavit). The purpose of the affidavit was to
draw to the courts’ attention that Mrs du Plessis had , on 4 November 2020,
instituted action in the high court , against Mr de Kock in which she averred that
she had cancelled the oral agreement between her and Mr de Kock. Mr de Kock’s
counsel assumed that the affidavit was part of the record. Upon becoming aware
that it was not, he made an application to introduce it to the record.

[17] The high court ruled against admitting the affidavit on the strength of the
submissions made by Mr and Mrs du Plessis’ counsel and ordered the
expungement of the affidavit from the record. The submissions advanced in
support of the refusal were, firstly, that no leave was sought from the court to
admit the affidavit nor was any agreement obtained from the other party to
introduce the affidavit, it was simply slipped into the court file. This being done
without allowing Mr and Mrs du Plessis an opportunity to deal with the affidavit.
Secondly, the affidavit introduced a new cause of action with no amendment
sought to the notice of motion . Thirdly, ‘the new cause of action’ was entirely
unsustainable on the facts and the law. In this regard, counsel for Mr de Kock
delved into the merits , which was not necessary in determining whether the
affidavit should be admitted.

[18] The high court proceeded to deal with the PIE application and accepted Mr
and Mrs du Plessis’ version and dismissed the application. It found, inter alia, as
follows:

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‘As a result, I find that the sale agreement of the property, the loan and the agreement in terms of
which the first and second respondents occupy the property, are inse verable and constitute one
agreement.’

[19] It further found that the agreement was fraudulent void ab initio as the deed
of sale was inflated by R1 000 000 . On Mr de Kock’s version this was done to
maximise the amount of the mortgage bond that he could obtain from ABSA Bank.
The court also found the loan agreement to be in breach of s 89(2) read with s 90
of the NCA, as it was not an arm’s length transaction. It subsequently dismissed an
application for leave to appeal, which was granted by this Court to the full court of
the Western Cape Division of the High Court, Cape Town.

[20] The full court dismissed the appeal. As the court of first instance , it
dismissed the application to introduce the affidavit . Prior to the hearing of the
appeal, the parties’ attorneys had agreed on documents that would form part of the
appeal record. Mr de Kock’s counsel discovered that the affidavit was not
included. Upon becoming aware of this omission , he made an application , at the
hearing of the appeal, to introduce the affidavit to the record. He explained to the
court that when preparing the index and the bundle for the hearing, Mr de Kock’s
attorneys inadvertently omitted to include the affidavit as part of the documents.

[21] The full court remarked that ‘[o]n appeal, the appellant is bound by the four
corners of the record and must argue thereon ’. It regarded Mr de Kock’s
application to supplement the appeal record as ‘tantamount to an application to
receive further evidence but without meeting the requirements for such an
application’. It further found that the agreement by the parties as to whic h parts of

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the record should be included in the record of appeal was binding. The full court
proceeded to deal with the appeal without the affidavit.

[22] In dealing with the merits of the appeal, t he full court applied t he Plascon-
Evans rule1 and accepted Mr s du Plessis’ version that it was Mr de Kock, who
approached them and requested a loan through a scheme that he had hatched. In the
court’s view, Mrs du Plessis’ version was easy to explain, and not unusual. It found
that the property was sold for R4 500 000 and not R3 500 000 as contended by
Mr de Kock. Further, that the loan agreement was valid and would endure until the
amount owed was fully paid. It concluded that t he ‘purported’ cancellation by Mr
de Kock did not bring the agreement to occupy the property to an end. Aggrieved
by the full court’s judgment, Mr de Kock approached this Court for special leave to
appeal, which was granted on 6 March 2023.

Issues on appeal
[23] The first issue to determine is whether the court of first instance and the full
court erred by refusing to admit the affidavit. Secondly, if the affidavit ought to
have been allowed, what would be its impact on the defence given by Mr and Mrs
du Plessis in the PIE application. Thirdly, if it is fou nd that their right to occupy
the property terminated by virtue of Mrs du Plessis’ cancellation of the oral
agreement in the particulars of claim, whether it is just and equitable to evict them
in terms of the PIE Act.

Admission of the supplementary replying affidavit

1 As formulated in Plascon-Evans Paints (Pty) Ltd v Van Riebeeck Paints 1984 (3) SA 623 (A) at 634-635. The rule
is to the effect that where there are disputes of fact, the matter must be decided on the respondent’s version unless it
is so far-fetched or uncreditworthy that it can be rejected out of hand.

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[24] It is settled that a court has a discretion whether to permit the filing of
further affidavits, which discretion must be exercised ‘against the backdrop of the
fundamental consideration that a matter should be adjudicated upon all the facts
relevant to the issues in dispute’.2 This Court in Dickinson v South African General
Electric Co (Pty) Ltd,3 said:
‘The application had to be approached in the light of all the issues raised and, at least in respect
of the beneficia, a proper adjudication would require an answer by the appellant to the matters
raised by the respondent. In my view the filing of the further affidavit should have been allowed,
and the present enquiry will proceed upon the assumption that it has been admitted.’

[25] In considering whether to admit a further affidavit , the court would ask the
following questions : firstly, whether a proper and satisfactory explanation as to
why the new information in the affidavit was not placed before the court at an
earlier stage, had b een given; secondly, whether any prejudice will be caused by
the admission of the affidavit, which could not be limited by an appropriate costs
order; and thirdly, the relevance and importance of the evidence to the issues it has
to determine.

[26] It is so, t hat a party may not simply file an additional affidavit without first
applying for permission from the court. The form the application should take
depends on the circumstances and the nature of the application. N othing is amiss,
in appropriate cases, with bringing an application from the bar. The kernel of the
procedure is that an application should be brought to the court. The determining
factor being whether the other party would suffer prejudice and how that prejudice
is to be ameliorated.


2 Van Loggerenberg Erasmus Superior Court Practice (2d ed 2022), Vol 2, D1-68.
3 Dickinson v South African General Electric Co (Pty) Ltd 1973 (2) 620 (A) at 628F-G.

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[27] In this instance, it is common cause that the affidavit was not filed by way of
the long form prior to the hearing of the matter. It was served and filed without a
notice of motion on 17 November 2020. That is three months before the hearing of
the PIE application.

[28] Mr de Kock’s legal representatives may be criticised for proceeding on the
basis that the filing of the affidavit was sufficient. His counsel , however, informed
the court that he was not aware that the affidavit did not form part of the record. He
moved for leave to introduce it from the bar. The court ought not to have elevated
form over substance. It should have considered the application against the
principles discussed above. Fundamentally, it should have looked at the allegations
in the affidavit, their purpose and relevance to the issues before it , and whether Mr
and Mrs du Plessis would be prejudiced by its introduction, if so, how that
potential prejudice could be cured.

[29] The affidavit simply sought to place the fact that Mrs du Plessis had
instituted action, which had an impact on the application before it. This allegation
could not have been made in the founding affidavit because it occurred after the
filing of the PIE application. That fact was important and central to the issue in
dispute. There would be no prejudice suffered by Mr and Mrs du Plessis that could
not be dealt with, as the affidavit simply sought to bring to the attention of the
court an existing fact. What the court makes of what was contained in the affidavit
is a different matter.

[30] The affidavit did not introduce a new cause of action . Mr de Kock’s case
was that Mr and Mrs du Plessis h ad no right to occupy the property. He had sent

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them notice to terminate the right to occupy and having refused to vacate the
property, Mr and Mrs du Plessis became unlawful occupiers in terms of the PIE
Act. The issue of whether there was a valid agreement as alleged in Mrs du Plessis’
defence, which gave her and Mr du Plessis the right to occupy the property, until
the amount allegedly owed wa s fully paid, remained the issue in dispute.
Accordingly, the court of first instance should have admitted the affidavit.

[31] The full court did not adequately deal with this issue . It ought to have
considered whether the affidavit was properly excluded by the court of first
instance, from the record. It erred in how it approached the matter. The affidavit
simply sought to place all the facts before the court.

[32] Given the fact that Mrs du Plessis was aware of the affidavit a few months
before the hearing , its omission was clearly erroneous. The agreement by the
attorneys did not bar the court from admitting the affidavit. The attorneys clearly
committed an error . Despite their agreement, the full court was permitted by rule
49(9) to call for the whole record to be placed before it. With these considerations,
the affidavit ought to have been admitted and I proceed on that basis.

The impact of the averments in the action proceedings
[33] In the affidavit, Mr de Kock referred to paragraph 21 of the particulars of
claim where Mrs du Plessis made the following averment:
‘21. The Defendant’s breach and repudiation has been ongoing and in the circumstances, the
Plaintiff has elected to accept the Defendant’s repudiation, and has cancelled the Loan
Agreement, alternatively hereby cancels same.’

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[34] In contract law, an innocent party is entitled to cancel an agreement on
grounds of misrepresentation or breach of contract. Such party must exercise an
election between two inconsistent remedies, whether to cancel or to abide by the
contract.4 An election to cancel necessarily involves an abandonment of the right
of enforcement. A party can therefore not both approbate and reprobate.5 She may
cancel and sue for damages or abide by the contract and claim performance. Once
cancelled, a contract may not be unilaterally revived. In Thomas v Henry and
Another,6 this Court held:
‘Once the innocent party has decided to cancel - and has communicated his decision to the other
party - he has, of course, exercised his election. He then no longer has a choice of remedies and
may not, without the consent of the other party, undo his decision. The concept of election is
therefore not appropriate in regard to conduct which appears to be in conflict with an intention to
rely on the chosen remedy.’

[35] When the aggrieved party, however, decides to abide by the contract, but the
other party persists with the breach, the aggrieved party may change their mind and
cancel, in terms of the repentance principle. ‘Persistence should be understood as a
further indication of intention to repudiate after having been given an opportunity
to reconsider.’7

[36] In the present matter, Mrs du Plessis relied upon the composite agreement
that she would lend money to Mr de Kock, which Mr de Kock agree d to repay, as
stated above. Mr de Kock agreed to let her occupy the property, until the money
was repaid in full. In other words, the property would only be restored to him once
he had paid all the money loaned to him by Mrs du Plessis.

4 Thomas v Henry and Another 1985 (3) SA 889 (A) at 896A.
5 Spheris v Flamingo Sweet (Pty) Ltd and Another [2008] 1 All SA 304 (W) at 309.
6 Thomas fn 4 at 896D-E.

6 Thomas fn 4 at 896D-E.
7 Primat Construction CC v Nelson Mandela Bay Municipality [2017] ZASCA 73; 2017 (5) SA 420 (SCA) para 25.

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[37] In the PIE applic ation, Mrs du Plessis decided to abide by the contract to
preserve her right to occupation and enforce it . Later, in her particulars of claim,
she elected to cancel the contract as she was entitled to do. This means Mrs du
Plessis’ right to receive payment s in the manner prescribed in the agreement with
the reciprocal obligation on Mr d e Kock to allow her to occupy the property until
payment was made in full , were extinguished. Her right , resulting from the
cancellation of the contract, is to receive damages as she may be able to prove.

[38] Mrs du Plessis’ counsel submitted that reliance should not only be placed on
paragraph 21 of the particulars of claim where Mrs du Plessis avers cancellation of
the agreement but also to paragraph 22.3 which states:
‘The Defendant tenders vacant occupation of the property against payment of the amount of
R1 897 935 …together with interest…a tempore morae.’

[39] From this paragraph, he argued, Mrs du Plessis’ claim was one of restitution
and not damages. As a result, until Mr de Kock tenders the return of the total
amount loaned to him, he cannot claim the return of what she had delivered , as the
rights and the concomitant obligation are reciprocal in terms of the agreement.
Therefore, in the absence of that tender, Mr and Mrs du Plessis are not in unlawful
occupation of the property.

[40] Apart for there being no authority for this proposition , it is untenable. Mrs
du Plessis cannot insist on retaining occupation of the property in terms of the
agreement, having cancelled the contract , which entitles her to sue for damages.
Had Mrs du Plessis’ claim been for restitution upon cancellation, she would have
been obliged to tender restitution of what she had herself received . Considering

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these principles, it is evident that, had the court o f first instance and the full court
considered the affidavit, the outcome might have been different. They both erred in
how they approached the matter.

[41] By virtue of her cancelling the contract, Mr and Mrs du Plessis ,
unfortunately, no longer enjoyed the contractual right to remain in occupation of
the property. This finding disposes of the defence of lawful occupation . Having
come to that conclusion , the next question to determine is whether it is just and
equitable to grant an eviction order.

Just and Equitable order
[42] In terms of s 4(7) of the PIE Act, a court may grant an eviction order:
‘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
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.’ (Emphasis added.)

[43] Mr and Mrs du Plessis are an elderly couple. Mr du Plessis is an
octogenarian who is sickly. He was diagnosed with a hospital bacterium in 2007,
following which he underwent numerous medical procedures. In 2015 he was
diagnosed with cancer and his health has since deteriorated. Given his ill-health, he
had to retire from practise at the age of 67 due to the stress associated with it. His
poor state of health requires continuous care, including intensive medical care.
Recently, it has been indicated that Mrs du Plessis is also of poor health, although
the nature of her illness has not been specified . It is also alleged that the couple’s

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financial position has deteriorated since Mr de Kock discontinued all the payments
in 2019.

[44] Mr and Mrs du Plessis also allege that eviction would leave them without a
home, or the means to buy a home, or to finance its purchase, while Mr de Kock
would have had five years free credit with the bonus of evicting his parents-in-law.
They allege that they trusted Mr de Kock as family and had it not been for that
reason, Mrs du Plessis would have sold the property in a normal sale and invested
the money for hers and Mr du Plessis’ benefit. She would not have loaned the
money to anyone. The loan made them dependent on Mr de Kock as they used the
repayments to finance their expenses.

[45] This is a n unfortunate case involving people who once regarded each other
as family and enjoyed a loving relationship. The arrangement they made is
evidence of that . The reality however is that Mrs du Plessis sold the property and
Mr de Kock is the owner. She cancelled the agreement as indicated above and can
no longer enforce the alleged right to occupation on the basis of the agreement.

[46] Mr de Kock alleges that he still owed ABSA Bank R3 100 000 for the
property. He pays regular monthly instalments of R32 403.34 to service the loan by
ABSA Bank. He is desirous of realising his investment in the property by selling it.
He made various offers to settle the matter including paying for alternative
accommodation. His counsel advised the Court that some of these offers still stand.
Since the offers made , were contained in different parts of Mr de Kock’ s papers,
the Court requested that a consolidated document be filed detailing the terms of the
offer.

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[47] On 16 May 2024 , Mr de Kock filed a ‘with prejudice ’ offer to settle,
comprising two alternative parts ‘with the view to satisfying [this Court] that it is
just and equitable . . . to evict [Mr and Mrs du Plessis] ’. Mr and Mrs du Plessis
responded to these with a counteroffer.

[48] From the two alternative offers made by Mr de Kock, one that appears
relevant to the just and equitable enquiry is the second alternative offer . In it , Mr
de Kock offers to ‘hire a residential unit at a retirement home, which provides frail-
care facilities and/or otherwise provides and/or contracts in medical services for
ailing residents, for occupation by [Mr and Mrs du Plessis ] at R20 000 per month,
plus additional costs levied for medical treatment or frail care’.

[49] In their counteroffer, Mr and Mrs du Plessis state that any resolution of the
dispute should involve a clean break and absent any continued connection or
interdependence between the parties. They submit that it would be just and
equitable for them to be paid R1 897 935 to secure alternative housing and care.
They and the other people that claim oc cupation through them would vacate no
later than six months of the order of this Court . They however state that Mr de
Kock should pay all the expenses, charges, levies, water and taxes.

[50] The parties did not settle the matter. The court cannot force a contract on the
parties. Fundamentally, no duty rests on Mr de Kock as a private land owner to
provide alternative accommodation to Mr and Mrs du Plessis. In Grobler v Phillips
and Others,8 the Constitutional Court emphasised that in determining what is just

8 Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR 115 (CC).

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and equitable, the rights of both parties must be balanced and ‘compromises have
to be made by both parties’ .9 Mr de Kock is the owner of the property, which is
mortgaged, and he continues to make loan repayments to ABSA Bank. He is trying
to sell the property but cannot do so with Mr and Mrs du Plessis in occupation. He
has offered to pay for alternative accommodation and any additional costs levied
for frail or medical care. The tender will be made an order of court to the extent
that is just and equitable.

[51] Mr de Kock also offered to pay for the relocation costs. It is important to
note that Mr and Mrs du Plessis will not be rendered homeless should an order
granting their eviction be made. Taking into account and balancing the interests of
all the parties, an eviction order will be just and equitable.

[52] As to the eviction date, while the parties have given their own preferences
based on their offer and counteroffer, the court retains the discretion, weighing all
the circumstances. A period of t hree month s is reasonable, in my view . It will
provide Mr and Mrs du Plessis with an opportunity to select a unit at a retirement
home which provides frail care facilities, they so prefer or from the list provided by
Mr de Kock, subject to the amount offered by Mr de Kock’s for payment of the
unit. Given the circumstances of this case and these being eviction proceedings, it
seems unjust to award costs against Mr and Mrs du Plessis.

[53] The following order is, accordingly, made:
1 The appeal is upheld.
2 The order of the full court is set aside and replaced with the following:

9 Ibid para 40. See also para 44.

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‘1. The appeal is upheld.
2. The order of the court of first instance under case number 6374/2020
is set aside and replaced with the following order:
‘1. The applicant’s supplementary replying affidavit is admitted.
2. The first and second respondents (respondents) and all those claiming
occupation through and under them are evicted from erf 4 […], Wellington,
with street address 9 M[…] Street, Wellington (the property), subject to the
conditions set out below.
2.1 The applicant shall lease a residential unit at a retirement home, which
provides frail-care facilities and/or otherwise provides and/or contracts in
medical services for ailing residents, for o ccupation by the respondents
(a unit).
2.2 The monthly rental of the unit shall not exceed R20 000 per month,
exclusive of any additional costs levied by the retirement home in respect
of frail care or medical treatment actually afforded to the second
respondent, which are not included in the monthly rental of the unit and
which are not covered by the existing medical aid scheme(s) of the
respondents, provided that:
(a) The applicant shall pay such additional costs which are not so
included or covered.
(b) If the respondents select a unit which exceeds R20 000 per month in
rental, they shall reimburse the applicant any amount exceeding R20 000,
immediately upon the applicant’s written demand.
2.3 The respondents shall within 30 calendar days of this or der select a
unit which is available to be occupied by them on or before the date on
which they are obliged to vacate the property for a monthly rental not

25

exceeding R20 000 and notify the applicant of its particulars, whereupon
the applicant shall lease t hat unit for residential occupation by the
respondents: Provided that in the event that the respondents fail to select a
unit as contemplated above and/or inform the applicant, the applicant may
either:
2.3.1 pay an amount of R20 000 per month to the respo ndents, jointly and
severally, as a contribution to such residential accommodation as they may
wish themselves to hire, which payments shall be a complete discharge of
the applicant’s obligations to the respondents; or
2.3.2 call upon the respondents with in 10 calendar days thereafter, to rank
the retirement homes mentioned below, in descending order of their
preference:
(a) Huis Vergenoeg (in Main Road, Paarl);
(b) Rusthof Old Age Home (in Klein Nederburg Street, Paarl);
(c) Huis Perelberg (in Botha Street, Paarl);
(d) Rusoord Old Age Home (in Divine Street, Paarl);
(e) Sherwood Nursing Home (in Kenilworth, Cape Town);
(f) Libertas Retirement Home (in Goodwood, Cape Town);
(g) Oasis Retirement Home (in Century City, Cape Town);
(h) Pineland Place (in Pinelands, Cape Town);
(i) Trianon Care Centre (in Plumstead, Cape Town);
(j) Eureka Retirement Village (in Oakdale, Cape Town);
(k) La Recolte Retirement Village (in Richworth, Cape Town);
(l) De Plattekloof Lifestyle Estate (in Plattekloof, Cape Town).
2.4 In the event the applicant selects the option in 2.3.2 above, he shall
lease an available unit not exceeding R20 000 per month at the highest -

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ranking retirement home in the above list for occupation by the respondents
on or before the date of which the re spondents are obliged to vacate the
property.
2.5 The respondents and all those claiming occupation through and under
them shall vacate the property by no later than 90 calendar days of this
court’s order.
2.6 In the event that the respondents and all tho se claiming occupation
through and under them fail to vacate the property on the date appointed in
the preceding paragraph or to which that date has been postponed by the
applicant, the sheriff with jurisdiction or his/her lawful deputy is authorised
and d irected to carry out the eviction on the court day immediately
following the date to vacate the property or the postponement date by the
applicant.
2.7 The respondents shall in good faith give all reasonable cooperation to
the applicant in securing a unit for residential occupation by them,
including, without limitation, attending any interviews appointed for them
at retirement homes.
2.8 In the event that a unit has been secured for residential occupation by
the respondents and it is for any reason not rea sonably practicable for the
respondents to occupy that unit on the date on which they are obliged to
vacate the property, the applicant may by written notice postpone the date
on which the respondents are obliged to vacate the property, to a specified
or determinable later date, without further legal process. Such a notice shall
be prima facie proof that the specified or determinable later date has been
appointed by the applicant.

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2.9 In the event that the respondents should wish to store any of their
household furniture and effects upon vacating the property, the applicant
shall pay the reasonable cost of such storage for a period of two months,
reckoned from the date on which the respondents are obliged to vacate the
property or from the specified or deter minable later date to which the
applicant has postponed the date on which the respondents are obliged to
vacate the property.
2.10 All communications which may be necessary between the parties shall
be effected by email exchange between themselves or their legal
representatives, as the case may be, which emails shall be deemed to have
been received at 08:00 on the Court day following the day on which they
were dispatched.
2.11 These obligations on the applicant shall be effective and enforceable
for a period of one year from the date of this order.
3. There is no order as to costs’.


__________________________
N P MABINDLA-BOQWANA
JUDGE OF APPEAL

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Appearances

For appellant: S P Rosenberg SC with T Tyler
Instructed by: Snijmann & Associates Inc, Cape Town
Honey Attorneys, Bloemfontein

For first and second respondents: R W F MacWilliam SC with A J van
Aswegen (heads of argument prepared by G
Walters and A J van Aswegen)
Instructed by: Spamer Triebel Inc, Bellville
Symington De Kok Inc, Bloemfontein.