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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 2023-014224




In the matter between:


In the matter between:

BYRAY HOLDINGS (PTY) LTD Applicant

AND

THE UNLAWFUL OCCUPIERS OF UNIT […]
M[…] B[…] H[…]

First Respondent
THE UNLAWFUL OCCUPIERS OF UNIT 1 […]
M[…] B[…] H[…]
Second Respondent

THE UNLAWFUL OCCUPIERS OF UNIT 3 […]
M[…] B[…] H[…]


Third Respondent
RUI MIGUEL DE FIGUEIREDO N.O., THE
TRUSTEE FOR THE TIME BEING OF THE
LWWS HOLDING TRUST WITH
REGISTRATION NUMBER IT3059/04 (T)
Fourth Respondent
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
1 December 2024
DATE SIGNATURE
2


TANYA ROCHA N.O., THE TRUSTEE FOR
THE TIME BEING OF THE LWWS HOLDING
TRUST WITH REGISTRATIONNUMBER
IT3059/04(T)

Fifth Respondent
MARIA DA CONCICAO DE FREITA
VASCONCELOS N.O., THE TRUSTEE FOR
THE TIME BEING OF THE LWWS HOLDING
TRUST WITH REGISTRATION NUMBER
IT3059/04(T)
Sixth Respondent

MARIO ALEXANDRE DE FIGURIEDO ROSHA

Seventh Respondent

REVENUE ASSET PROTECTION SERVICES
(PTY) LTD

Eighth Respondent
REDLEX 297 (PTY) LTD

Ninth Respondent
EKHURULENI METROPOLITAN
MUNICIPALITY
Tenth Respondent


JUDGMENT


LAMPRECHT, AJ:

Background

[1] This is an opposed application in terms of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998 (PIE) , in which the applicant
seeks the eviction of the first to ninth respondents and all persons occupying under
or through them, from the immovable properties known as Units [ …], 1[…] and 3[…]
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M[…] B[…] Heights, situated at 2[ …] S[…] Street, B […] G[…], Germiston (“the
properties”).

[2] The applicant is the registered owner of the properties, which form part of the
sectional title scheme known as M […] B[…] H[…], registered as such with
registration number ST277/2007. The applicant alleges that the properties are
currently or from time to time being occupied by the first to ninth respondents.

[3] The first to third respondents are described as the unlawful occupiers of Units
[…], 1[…] and 3[…] M[…] B[…] H[…] respectively. The fourth to sixth respondents
were cited in their capacities as trustees of the LW WS Holdings Trust, a trust with
registration number IT 3059/04 (“the T rust”). The seventh respondent is a Mr Mario
Rocha (“Mr Rocha”), the eight respondent a company know n as Revenue Asset
Protection Services (Pty) Ltd (“RAPS”), and the ninth respondent was cited as a
company, Redlex 297 (Pty) Ltd (“Redlex”). It bears mentioning that it is common
cause that Redlex was placed under final winding up during February 2019, some 4
years prior to the issuing of this application. Redlex was nevertheless not cited as a
company in liquidation, nor is there any indication on the papers that the liquidators
were notified of the application, nor what its current status is. The tenth respondent is
the Ekurhuleni Metropolitan Municipality.

[4] Notice of intent ion to opposed w as filed by Suder Attorneys on behalf of the
fourth, fifth, seventh and eights respondents (“the opposing respondents”).

[5] By agreement between the applicant and the opposing respondents, as well
as the applicants and the opposing respondents in case numbers 2022/21241,
2023/014278 and 2023/14248 (also eviction applications in respect of the M […] B[…]
H[…] scheme and where the parties are represented by the same legal
representatives as in this application)( hereinafter referred to as “the other MB
matters”), the outcome of this matter is to determine the outcome of the other MB
matters too.

[6] It is common cause that the provisions of PIE have been complied with in this
application as well as in the other MB matters.
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[7] The properties were previously owned by Rapiprop 149 (Pty) Ltd (“Rapiprop”) ,
which was placed in final liquidation on or about 14 August 2018. Mr Rocha is a
former director of Rapiprop.

[8] The properties were sold by the then joint liquidators of Rapiprop by means of
public auction, with the applicant purchasing the properties at the public auction held
during February 2020.

[9] Transfer of the properties was effected to the applicant during the period
September to October 2020.

The parties’ contentions

[10] The applicant’s core allegations and contentions in its founding and r eplying
affidavits, are to the following effect:
a. An information pack circulated by the auctioneers pre- auction referred to an
“apparent” Head Lease.
b. Units were to be sold as one parcel, subject to any head lease, or
individually, without any leases in place.
c. The applicant purchased the units forming the subject matter of this
application on the fall of the hammer and entered into sale agreements the
same day.
d. Each of the sale agreements provided, in clause 7.5, that the property is
sold without a lease. No lease had been registered against the title deed of
the properties.
e. It is denied that the applicant had knowledge of a long lease at the time of
acquisition, and the applicant had no knowledge of its terms relating to
duration or rental at the time, having only seen a Head Lease, purportedly
entered into between Rapiprop and the Trust during 2009 (“the Head
Lease”), pursuant to eviction applications later instituted in the Germiston
Magistrates Court.
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f. The liquidators are in any event deemed to have repudiated the Head Lease
pursuant to the provisions of section 37(2) of the Insolvency Act, 24 of 1936,
read with relevant provisions of the Companies Act, 61 of 1973.
g. A lease purportedly concluded between the Trust and RAPS during
December 2015 (“the RAPS lease”) makes no commercial sense in several
respects. In any event, it is also a long- term lease subject to the provisions
of section 1(2) of the Formalities in Respect of Leases of Land Act, 18 of
1969 (“the Leases of Land Act”). It has not been alleged that the applicant
has knowledge of this lease or that it was registered in terms of section
1(2)(a)/(b) of the Leases of Land Act.
h. The liquidators are in any event deemed to have repudiated the RAPS
Lease pursuant to the provisions of section 37(2) of the Insolvency Act, 24 of
1936, read with relevant provisions of the Companies Act, 61 of 1973.
i. The respondents failed to formally challenge the sales “ subject to no lease”,
or to have the transfers set aside.
j. The respondents failed to discharge the onus of proving that the applicant
had prior specific knowledge of the Head Lease.
k. The fifth respondent was not empowered to represent the Trust when the
Head Lease was entered into, as she was not a trustee at the time, and the
Head Lease is a nullity. Therefore, the RAPS lease is also a nullity and
invalid.
l. The allegations relating to a pending section 381 enquiry are false and
misleading. Mr Rocha in any event has no standing to request such enquiry
as he is not a creditor.
m. The fifth respondent failed to disclose, in the Germiston proceedings, that
there was another head lease (“the second head lease”) allegedly concluded
between Redlex and Rapiprop during September 2017. The second head
lease is also subject to the provisions of section 1(2) of the Act, and the
section 37(2) Insolvency Act argument is similarly applicable. The second
head lease in any event had the effect of extinguishing all previous rights
that the Head Lease or the RAPS lease may have had.
n. The leases are aimed at creating fictitious rights, justifying the respondents’
illegal occupation of the properties. Mr Rocha, a former director of Rapiprop
and Redlex, failed to co- operate with the liquidators and hand over financial
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records. If the leases were legitimate Mr Rocha would have provided them
to the liquidators and/or registered a claim in the estate, would have made
the applicant or the auctioneers aware of the leases and would have had
records reflecting payments and the like.
o. To the best of the knowledge of the deponent to the applicant’s founding
affidavit, there are no elderly or disabled persons residing at the property,
they are employed and can source alternative accommodation and are not
indigent. The respondents have refused to provide access to the properties.
p. From observations made when visiting the property, the occupants are
economically active, not elderly, in good physical condition and not disabled
and not indigent.
q. It is just and equitable for these reasons and well as additional reasons,
including financial harm to the applicant, for the first to ninth respondents to
be evicted.

[11] The opposing respondents do not contest the applicant’s ownership of the
properties, but oppose the application, pursuant to an answering affidavit by the fifth
respondent, ostensibly on behalf of the Trust, on the basis of the following core
allegations and contentions:
a. Various units in the building (which includes the units forming the subject
matter of this application) are being occupied in terms of the still valid
“Poison Pill” Head Lease, not cancelled, entered into between Rapiprop and
the Trust during November 2009.
b. The liquidators of Rapiprop acted unlawfully in several respects, and the
properties were sold unlawfully, irregularly and unconstitutionally by them.
c. Mr Rocha reported the liquidators ’ conduct by means of a request to the
Master for a Section 381 enquiry, which has commenced, according to Mr
Rocha, who deposed to a confirmatory affidavit.
d. There are ongoing criminal investigations relating to the conduct of the
liquidators.
e. The liquidators and the a uctioneer were aware that the Head Lease was in
place, and this was mentioned in the auction information pack. They
nevertheless unlawfully auctioned the properties , stating and
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misrepresenting in the auction pack that there was an “apparent” Head
Lease.
f. The liquidators were aware, or ought to have been aware of the Head
Lease, but unlawfully failed to disclose the comprehensive terms of the
Head Lease at the time of the auction.
g. The applicant also knew of the existence of the Head Lease and over an
extended period harassed, intimidated and employed violence against the
tenants in units.
h. The Head Lease was never cancelled by the Liquidators, and also not by the
applicant.
i. The Trust is the entity in lawful possession, occupation and control of the
properties.
j. The units were sold subject to the `Head Lease, and the “huur gaat voor
koop” principle in any event applies , with the sale s being subject to the
lease.
k. To the extent that the properties were lawfully sold, the applicant is bound by
the terms of the Head Lease, and cannot apply for the eviction of the
occupants.
l. Mr Rocha cooperated with the liquidators and all papers, electronic
documents, financial statements are in the possession of the “colluding
liquidator” Hannes Muller with the full knowledge of the now late Murray
Cloete. The leases were available to the liquidators , alternatively should
have been available to them. All claims were lodged according to Mr Rocha.
m. Even though the Head Lease was not registered against the title deed of the
properties, successors are bound for the first ten years of the currency of an
unregistered lease. Where the successor had knowledge of the lease, the
“real right” would be enforceable for the entire term of the lease, even if it
exceeds ten years and even though not registered.
n. Occupiers of the units are occupying either in terms of the Head Lease or
the RAPS lease concluded between the Trust and RAPS during December
2015. RAPS has lawful possession in terms of the lease, which is valid from
October 2015 to December 2022, with an option to renew for a further period
of 30 years, not yet taken up by RAPS. Notwithstanding, the Head Lease
still subsists.
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o. It is denied that the seventh or nineth respondents occupy the properties.
The Trust and RAPS occupy the properties lawfully.
p. It is denied that it would be just and equitable for an eviction order to be
granted.

Applicable legal principles/Issues

[12] PIE defines unlawful occupiers as persons who occupy land without the
express or tacit consent of the owner or person in charge, or without any other right
in law to occupy such land.

[13] Providing the procedural requirements of PIE have been complied with, an
owner is entitled to approach a court for an eviction order relying on ownership and
the respondent’s unlawful occupation. An owner is in principle entitled to an order for
eviction unless the occupier opposes and discloses circumstances relevant to the
eviction order.
1

[14] Sections 4(7) to 4(9) of PIE provide as follows:
“(7) If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated, a court may grant an
order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or other
organ of state or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, disabled
persons and households headed by women.
(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine-
(a) a just and equitable date on which the unlawful occupier must vacate the
land under the circumstances; and
9

(b) the date on which an eviction order may be carried out if the unlawful
occupier has not vacated the land on the date contemplated in paragraph (a).
(9) In determining a just and equitable date contemplated in subsection (8),
the court must have regard to all relevant factors, including the period the
unlawful occupier and his or her family have resided on the land in question.”

[15] Where a respondent relies on a right of possession, for instance a lease, the
respondent has to allege the right and bears the onus of proving same.
2

[16] In terms of section 1(2) of the Leases of Land Act:
“(2) No lease of land which is entered into for a period of not less than ten
years or for the natural life of the lessee or any other person mentioned in
the lease, or which is renewable from time to time at the will of the lessee
indefinitely or for periods which together with the first period of
the lease amount in all to not less than ten years, shall, if such lease be
entered into after the commencement of this Act, be valid against a creditor or
successor under onerous title of the lessor for a period longer than ten years
after having been entered into, unless-
(a) it has been registered against the title deeds of the leased land; or
(b) the aforesaid creditor or successor at the time of the giving of credit or the
entry into the transaction by which he obtained the leased land or a portion
thereof or obtained a real right in respect thereof, as the case may be, knew of
the lease.”

[17] Under section 1(2) of the Leases of Land Act, a long lease is not valid against
a creditor or a successor under onerous title of the lessor for more than ten years
unless the lease is registered or the creditor or successor -in-title knew of the lease.
The onus of proving knowledge is on the lessee.
3

[18] Regard being had to relief sought and the parties ‘respective contentions, the
core issues for determination are whether the respondents, or anyone holding
occupying under or through them, are unlawful occupiers as envisaged in PIE, and if
so, whether it is just and equitable for them to be evicted.

10

The unlawful occupation issue

[19] The Head Lease and RAPS lease are long leases within the meaning of
section 1(2) of the Leases of Land Act, which were not registered against the title
deeds of the properties.

[20] It was accordingly incumbent on the respondents to allege and prove that the
applicant “ knew” of the leases , bearing in mind of course that these are motion
proceedings and that the matter falls to be assessed with due regard to applicable
principles regulating motion proceedings.

[21] Knowledge in the context of the Leases of Land Act evidently implies actual
knowledge. The opposing respondents, in their heads of argument, contended that
the mention of a Head Lease in the auction pack was sufficient to cause doubt for the
applicant and that if the requirements of dolus eventualis are met, this would
constitute knowledge for purposes of the Leases of Land Act. The argument was
perpetuated during argument, reliance being placed inter alia on the judgment s in
Grant & Another v Stonestreet & Others
4, and Meridian Bay Restaurant v
Mitchell.5

[22] I disagree. As stated earlier, when regard is had to the express wording of the
Leases of Land Act, actual knowledge is required. The judgments referred to did not
deal with the provisions of the Leases of Land Act. In the Grant matter, the court in
the context of an un registered praedial servitude, reiterated the principle that clear
proof of knowledge is required to hold a purchaser bound by an unregistered
servitude, and that a person who wilfully shuts his eyes and declines to see what is
perfectly obvious, must be held to have had actual knowledge (own underlining). The
court in Meridian dealt with the common law doctrine of notice, and with reference to
other authorities, stated that actual knowledge (or perhaps dolus eventualis )(own
underlining), was required in the context of the doctrine of notice.

[23] In casu, the following considerations are relevant relating to the Head Lease
and the RAPS lease aspects:
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a. The information pack expressly provided that units individually sold were
sold without any leases in place.
b. Clause 2.6 of the extract from the Conditions of Sale, stated that the
properties were sold subject to no lease.
c. The reference to an “apparent ” Head Lease in the information pack is
significant. It to my mind militates against the opposing respondents ’ version
relating to the knowledge aspect. The irresistible inference is that the
liquidators and auctioneers did not have full and proper information relating
to the Head Lease. This is to be seen in conjunction with the applicant’s
allegations to the effect that Mr Rocha failed to co- operate with the
liquidators and hand over financial records , and that i f the leases were
legitimate, Mr Rocha would have provided them to the liquidators and/or
registered a claim in the estate, would have made the applicant or the
auctioneers aware of the leases and would have had records reflecting
payments and the like.
d. In any event, the reference to an apparent Head Lease in the information
pack does not constitute evidence that the applicant had knowledge
(whether actual or amounting to dolus eventualis) of an onerous long lease
extending to 2060.
e. It is telling that the opposing respondents and Mr Rocha, a former director of
Rapiprop, who deposed to an affidavit in this matter, failed to adduce any
cogent evidence indicating how, where and when the liquidators and/or the
auctioneers were advised of the Head Lease, or for that matter, the RAPS
lease. Reliance was placed on vague, bald and unsubstantiated assertions
relating to these aspects and the provision of records. The improper reliance
by the opposing respondents on a document (TAP13 to the answ ering
affidavit) stated to be an affidavit by the co- liquidator, but where sections
reflecting the purported deponent and date purportedly executed have been
blanked out, takes the matter no further. It has no probative value
whatsoever.
f. The failure to take steps to have any of the sales set aside, or to lodge any
claims against the insolvent estate relating to the lease aspect, is similarly
telling.
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g. The section 381 enquiry aspect , to the extent that it could be said to be
pending, takes the matter no further. This is so particularly in circumstances
where the liquidators were appointed as long ago as 2018, the units were
sold and transferred some four years ago, and no steps were taken to set
aside the sales or transfers. The section 381 enquiry aspect ultimately, to
my mind , does not assist the opposing respondents relating to the issue
whether the applicant knew of the leases.
h. The respondents also did not adduce any evidence that the liquidators
intended to continue with any of the leases as envisaged in section 37(2) of
the Insolvency Act, 24 of 1936. To the extent that any of the leases were
valid, they would on that basis be deemed to have been det ermined at the
end of three months from the date of appointment of the liquidators.
i. Additionally, when regard is had to the terms of the Head Lease, RAPS
lease and the second head lease, the continued existence of the Head
Lease or RAPS lease is incompatible with the existence of the second head
lease, allegedly concluded with Redlex, an entity subsequently liquidated.
The various leases cannot co-exist.

[24] I point out, in conclusion that I agree with the applicant’s contentions relating
to the validity of the Head Lease. The fifth respondent was not empowered, regard
being had to the provisions of section 6 of the Trust Property Control Act, 1988, to
represent the Trust when the Head Lease was entered into, as she was not a trustee
at the time, and the Head Lease, falls to be regarded as invalid on that basis alone .
Consequently, the RAPS lease would also be invalid.

[25] Ultimately, the opposing respondents have failed to discharge the onus of
proving or of adducing evidence justifying the conclusion that the applicant was
aware of either the Head Lease or the RAPS lease when acquiring the properties. In
the circumstances the opposing respondents , as well as any persons occupying
under or through them, are unlawful occupiers as envisaged in PIE.

Is an eviction order just and equitable?

13

[26] In considering the PIE Act factors requiring consideration, I take cognisance of
the following:
a. The applicant is a private entity and has no obligation to provide alternative
accommodation.
b. To the best of the knowledge of the deponent to the applicant’s founding
affidavit, there are no elderly or disabled persons residing at the property,
they are employed and can source alternative accommodation and are not
indigent. The respondents have refused to provide access to the properties.
c. From observations made when visiting the property, the occupants are
economically active, not elderly, in good physical condition and not disabled
and not indigent.
d. The opposing respondents, who were best placed to adduce evidence
relating to the circumstances of any occupiers of the properties, failed to do
so.
e. The procedural requirements of PIE having been complied with, and
occupiers of the properties occupying the properties unlawfully, the applicant
is entitled to have them evicted.
f. The applicant evidently suffers financial prejudice should the relief sought
not be granted.
g. The evidence does not reveal any circumstances rendering an eviction order
inequitable.

[27] In all the circumstances I am of the view it is just and equitable for appropriate
eviction relief to be granted, with the effective date being 31 January 2025, which I
consider to be a just and equitable date.

[28] It is inappropriate to grant relief against Redlex in circumstances where it has
been liquidated, was not cited as a company in liquidation, and where it is not
apparent whether the liquidators were notified of the application, nor what its current
status is.

[29] Costs of the application should follow the result.

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[30] In the premises I intend granting an eviction order with related relief , with
similar orders to be granted in the other MB matters , which will be initialled by me,
dated, and marked “X”, and uploaded to Caselines.

[31] The following order is granted:
1. The first to eighth respondents and any persons claiming right and/or all
those that occupy the properties including their family, servants and/or
employees, are ordered to vacate the immoveable propert ies being UNITS
[…], 1 […] and 3[ …] M[…] B[…] H[…] physically situated at 2[ …] S[…]
STREET, B[ …] G[…], G […. (“the propert ies”) by no later than 31 January
2025, failing which they are to be evicted forthwith.
2. Should the first to eighth respondents fail to vacate the property within
the aforesaid time period, the eviction order may be carried out, in which event
the Sheriff of this Court (“the Sheriff”), is hereby authorised and directed to
forthwith evict the first to eighth respondents and all those that occupy the
property by virtue of, through or under their occupation thereof including their
family, servants and/or employees, or short term stay residents from the
property.
3. The sheriff is authorised and directed to take all legal steps to enforce
this Court order including the use of a Locksmith.
4. In the event that the first to eighth respondents and all those that
occupy the property by virtue of, through or under them, including their family,
servants and/or employees, attempt to regain access or possession to the
properties after the eviction order has been executed by the Sheriff, the Sheriff
is hereby authorised and directed to enforce this Court order by evicting the
first to eighth respondents and all those that occupy the property by virtue of,
through or under them, including their family, s ervants and/or employees once
again in terms of this order.
5. The first to eights respondents are directed to pay the costs of this
application jointly and severally, the one paying the other to be absolved.

LAMPRECHT, AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
15


Date of hearing: 24 October 2024 - Open Court

Date of judgment: 1 December 2024

For the Applicant: Adv M Rodrigues instructed by Kaveer Guiness
Inc

For the Opposing Respondents: Mr T Dunn, TTC Attorneys


1 Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA); Barnett v Minister of Land Affairs 2007
(6) SA 313 (SCA).
2 Woerman NO v Masondo 2002 (1) SA 811 (SCA).
3 Grant & Another v Stonestreet & Others 1968 (4) SA 1 (A) at 16H – 17A; Ismail v Ismail & Others
2007 (4) SA 557 (E) para [8].
4 Supra
5 2011 (4) SA 1 (SCA).