SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable Yes/No
Case No: 2372/2024
In the matter between:
M[…] Z[...] O[...] N.O. First Applicant
CHRISTIAAN WAGENAAR N.O. Second Applicant
(In their capacities as the trustees for the time- being
of the Shisha Trust, T70[…] )
and
S[...] M[...] First Respondent
ANY UNKNOWN UNLAWFUL OCCUPIERS RESIDING
AT 1[...] B[...] STREET, DISTRICT LADYBRAND,
FREE STATE PROVINCE Second Respondent
MATSOPA LOCAL MUNICIPALITY Third Respondent
Case No: 5234/2024
In the matter between:
S[...] K[...] M[...] First Applicant .
N[...] N[...] M[...] Second Applicant
2
and
N[...] M[...] M[...] First Respondent
M[...] Z[...] O[...] N.O. Second Respondent
CHRISTIAAN WAGENAAR N.O. Third Respondent
(In their capacity as trustees for the time- being of the
Shisha Trust, T70[…] )
DANIEL JOHANNES RUDOL PH SCHUTTE N.O. Fourth Respondent
(In his capacity as trustee of the K[...] T[...]
M[...] Testamentary Trust, MT1 […])
MASTER OF THE HIGH COURT, FREE STATE Fifth Respondent
REGISTRAR OF DEEDS, BLOEMFONTEIN Sixth Respondent
CORAM : Hefer AJ
Heard: 21 November 2024
Delivered: 13 February 2025
ORDER
1. Application number 2372/2024 is dismissed with costs.
2. Application number 5234/2024 is dismissed with costs.
JUDGMENT
Hefer AJ
3
[1] In terms of an order of C ourt, dated 24 October 2024, the two applications
under the above case numbers, had been consolidated.
Background:
[2] K[...] T[...] M[...] (the deceased) passed away on 22 May 2000.
[3] On 14 May 1997, a w ill was passed by the deceased. This w ill was accepted
by the Master of the High Court.
[4] Subsequent to this w ill, the deceased has passed a further not less than
thirteen codicil s to his original will. It appears that the Master has accepted
nine of these codicils. Four of them had been rejected for not complying with
the provisions of the Wills Act 7 of 1953.
[5] The relevance of some of these codicil s (both accepted as well as rejected),
will be dealt with herein.
[6] In his w ill the deceased bequeathed Erf 5[…] , Ladybrand as follows:
‘8.1 I bequeath to the Memorial Trust –
8.1.1 My residential property situate (sic) at Erf Nr 5[…] Ladybrand, RSA,
which property is to be transferred in full ownership to my granddaughter N[...] M[...] M[...] when she turns 21 (TWENTY ONE)
years.
8.2 The bequest in clause 8.1 is subject to the following conditions –
8.2.1 The usufruct of my wife M[...] G[...] M[...] as provided for in clause
4.5;
8.2.2 The property contemplated in clause 8.1.1 is to be leased, preferably
to any suitable male offspring of the M[...] FAMILY.’
[7] In the w ill of the deceased he further recorded as follows:
4
‘I rec ord that I have decided to treat my granddaughter N[...] M[...] M[...] more
favourably than my other grandchildren since she, unlike my other grandchildren, had
the misfortune of losing her father at a very young age.’
[8] The property referred to is also known as 1[…] B[…] Street, Ladybrand and
Ms M[...] referred to is the first respondent in case number 5234/2024 ( “the
second application” ).
[9] In terms of a separate clause of the deceased’s w ill, the deceased’s late wife
M[...] G[...] M[...] was awarded usufruct over inter alia
‘my residential property
situate (sic) at Erf Nr 5[...] Ladybrand, RSA’ .
[10] In his codicil dated 15 October 1998 the deceased provided as follows:
‘1[...] B[...] Street, Ladybrand FS
I the undersigned do hereby amend that part of my will that specifically refers to the
property I own and is situated at Plot Nr 1[...] B[...] Street, Ladybrand.
At 21 years my granddaughter M[...] N[...] M[...] born of late son N[...] L[...] M[...] be
assisted by ‘the Trust Committee, its successors, established to conduct the affairs of the Trust Fund to full ownership of the said property and is further charged to initiate
to fully appreciate the norms and values such property i.e. to exercise parental control
as we all called upon to do …’
[11] This codicil was however rejected by the Master due to not complying with the
provisions of the Wills Act.
[12] In a further Codicil dated 8 March 2000, which was accepted by the Master ,
with reference to his original w ill as well as all the other codicil s preceding
such codicil , the deceased further stipulated as follows:
‘1. I hereby confirm, notwithstanding any previous bequeaths, that my house
situated at 1[...] B[...] Street, Ladybrand, is hereby bequeathed to my
daughter (sic) , M[...] N[...] M[...] , to be held in Trust as contemplated in my
5
Codicil dated 15 October 1998, subject to the lifelong usufruct of my wife,
M[...] G[...] M[...] .
2. …
3. Notwithstanding any contrary stipulation in my abovementioned w ill and
codicil s, all fixed properties bequeathed to beneficiaries of Trust in terms of
my abovementioned will and codicil s, shall not be transferred in full
ownership to the said beneficiaries, but shall, on the death of such
beneficiaries, revert back to the Trust in terms of a fideicommissum in favour
of the said Trust, and my trustees are hereby instructed to administer the said
property in favour of the remaining beneficiaries, or in their discretion, my
descendants.
Except where explicitly or by implication amended, all remaining provisions of my
abovementioned Will and Codicil s remain unchanged.’
[13] I now turn to the relief sought in the two applications serving before me.
First application – case number 2372/2024:
[14] After leave had been granted to have a notice in terms of s 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation Act, 19 of 1998 (“PIE” ) issued out of the office of the Registrar of this division, the application
now serves before Court for the eviction of the First and Second Respondents from 1[...] B[...] Street, Ladybrand ( “the property” ).
[15] To make the facts pertaining to this application more lucid, I shall refer to the First and Second Applicants collectively as “the trustees” .
.
[16] According to the trustees, the Shisha Trust is the registered owner of Portion 2 of Erf 5[...] , Ladybrand.
[17] It is common cause that the Shisha Trust duly purchased the property from the First Respondent in the second application, being Ms M[...] during October
2023. The property was duly registered in the name of the Shisha Trust during February 2024.
6
[18] This was subsequent to the property being transferred to Ms M[...] during
2008 in terms of a resolution of the trustees of the K[...] T[...] M[...]
Testamentary Trust ( “the M[...] Trust” ), which resolution was collectively
taken during 2007/2008.
[19] The illegal occupants, according to the trustees are related to Ms M[...] in that
they are her uncle and aunt. The first respondent is one of the surviving children of the deceased. It is unclear , if the identity of the second respondent
is known to the trustees, why the aunt of Ms M[...] was not identified as such
in the citation of the unlawful occupiers by the trustees .
[20] According to the applicant, the first and second respondents have been
occupying the property since the passing of the deceased. The year of the
occupation by the respondents are not provided by the trustees. I must therefore assume that the respondents had been occupying the property more or less for the past 24 years.
[21] The trustees further allege that after the passing of the deceased’s late wife , Ms M […] had several family meetings between 2018 and 202 1 during which
the first respondent was informed that Ms M[...] was of the intention to serve
formal termination of lease due to the fact that Ms M[...] was struggling
financially with her expenses regarding her minor child. It is alleged that Ms
M[...] gave the first and second respondents notice to vacate the property by
way of service of termination of lease letter on the 14
th of February 2022
which was met with no response. No particulars are however provided in regards to the terms of the lease agreement and more in particular with whom
such lease agreement was concluded. The alleged letter of termination dated
14 February 2022 was also not put before me.
[22] It is then further alleged as follows:
7
‘Ms M[...] , who was in an extremely difficult position, having to evict family members
from her property, managed to secure the Applicant Trust as a willing and able
purchaser for the Property. The Applicant Trust was further willing to purchase the
property along with the responsibility of initiating the eviction process against the
illegal occupants.’
[23] The trustees then initiated the eviction process on the 8th of February 2024 by
way of service of a letter of termination duly served by the sheriff. The relevant portions of this letter by Ms K B osman of Coertzen Incorporated
attorneys acting on behalf of the trustees, read as follows:
'We confirm that you obtained the right to occupy the aforesaid premises by virtue of
a verbal lease agreement concluded by yourself and the previous owner, Ms NM
M[...] , during June 2018 .
As it is our instruction that no fixed term was agreed upon in the aforesaid agreement
alternatively that any fixed term already expired, it submitted that the agreement is
presently continuing on a month to month basis. In the preamble you are hereby
given sufficient notice of our client’s formal termination of the relevant agreement and
you are requested to vacate the premises no later than 31 March 2024.’
[24] In support of the application the trustees rely on the fact that the Shisha Trust is the registered owner of the property and as such, it is fully entitled to all rights of a registered landowner, which includes the right to free and undisturbed possession of its property.
[25] The trustees further allege that as the registered owner of the property is responsible for payment of imposts charged by the relevant local authority in
respect of electricity usage at the property, the applicant is being prejudiced by the fact that the first and second respondents made use of electricity, but refuse to make payments for such usage.
[26] In respect of the requirement of the eviction to be just and equitable, it is the contention by the trustees that the first and second respondents appear to be in good health and are in a gainful financial position in that they receive
8
pension monies. The first respondent is also, according to the trustees, an
income trust beneficiary and receives money from the testamentary trust of the deceased twice annually. The first and second respondents are therefore in a financial position to rent alternative accommodation.
[26] In opposition to the application for eviction, the first and second respondents rely primarily on the fact that the transfer of the property to Ms M[...] was
unlawful and therefore stands to be invalidated for the reasons as stated in the second application which will be dealt with herein later.
[27] In addition, the first respondent further alleges that the second respondent consists of his wife who is a pensioner, his son M […] M[...] as well as his
minor granddaughter.
[28] According to the first respondent, the property was not and could not fully be inherited by Ms M[...] because clause 3 of the Codicil dated 8 March 2000
provides that the property in question shall upon the death of N[...] revert to
the testamentary trust. According to the first respondent, N[...] could never
have had full ownership of the property. The first respondent maintains that the transfer and registration of the property has taken place against the
provisions of the w ill and codicil s referred to . He further maintains that first
and second respondents have the right to occupy the property. First respondent however does not elaborate on what this alleged right to occupy consists of.
[29] In the replying affidavit, now deposed to by Ms B osman, the attorney acting
on behalf of the trustees, attention is drawn to the fact that the usufruct on the property was only in respect of the deceased’s late wife who passed away prior to the transfer of the property into the name of Ms M[...]. The remainder of the reply will also be dealt with in respect of the second application.
Second application – case number 5234/2024:
9
[30] The first and second applicants (“ the M[...]s ”), mainly rel y on the provisions of
the codicil to the w ill of the deceased dated 8 March 2000, the wording which
has already been referred to above. According to the M[...]s, from this codicil it
follows that the deceased bequeathed to Ms M[...] only a lifelong usufruct
during her lifetime.
[31] The M[...]s then further refer to the fact that the deed of transfer in terms of
which the property was transferred from the M[...] Trust to Ms M[...] referred to
the following condition as set out in the Last Will of the deceased which reads as follows:
‘I direct that all benefits accruing under this my Will to female beneficiaries shall
devolve upon such female beneficiaries as their sole and exclusive property,
excluded from any community of property arising from an existing or future marriage
of such beneficiary, and shall not be subject to the marital control of any husband to
whom such beneficiary is then married or whom she may thereafter marry.’
[32] The M[...]s further contend that it is evident from the power of attorney under
the signature of Mr Rudolph Schutte, the fourth respondent in the second application, that the transfer to Ms M[...] disregarded the codicil passed on 8
March 2000. In view thereof, it follows, according to the M[...]s, that both the transfer to Ms M[...] as well as that to the Shisha Trust are unlawful whereas
they conferred full ownership rights to the pair, which was contrary to the wishes of the deceased. First applicant stated as follows in this regard in his
founding affidavit:
‘His wish was that the ownership of the property vests in a Trust, for the benefit of all
his descendants. Put differently, it is blatant that the transfer to N[...] M[...] is null and
void, consequently, the transfer to the Shisha Trust suffers the same fat e.’
[33] Mr M[...] then continues as follows:
10
‘We submit that it would be in the best interest that the transfer be declared null and
void, particularly considering the historic land tenure challenges in developing this
country.
Our late father worked tirelessly to acquire land for his descendants. His wish was for
all the land he acquired to remain in trust for our benefit and the benefit of our
children’s children. Setting aside the transfer, is a just and equitable remedy.’
[34] In opposition to the second application, Ms M[...] in the first instance relies on
two points in limine . The first being the misjoinder of Mr Schutte whereas Mr
Schutte is presently a retired attorney and no longer holds office as a trustee
of the erstwhile Trust and therefore is unable to give effect to any order which
this Court may make with regard to the transfer of the property back into the
name of the Trust. Furthermore, it is alleged that Mr Schutte has been replaced by N […] M[...] as executor in the estate of the deceased in terms of
letters of executorship dated 14 April 2023. In this regard it appears strange that the estate of the deceased had not been finalised after 23 years. Be that
as it may, in view of my finding herein, I do not deem further consideration of
this point necessary .
[35] As far as the second point in limine is concerned, Ms M[...] pleads that in view
of the M[...] s’ failure to join the trustees of the M[...] Trust, also constitutes
non-joinder. In this regard, Ms M[...] relies on the fact that in the event of the
Court finding that the transfer of the property into her name was done
unlawfully and ordering that such transfer should be cancelled, then the property will again vests in the Trust. Therefore, according to Ms M[...] the
Trust, through its trustees, have an interest in the outcome in this application.
[36] Whereas the interests of the Trust and in particular the trustees of such Trust cannot be adversely affected should such transfer be set aside and to that extent such trustees is not to be regarded as an interested party to the
application, such point in limine should also fail.
11
[37] In any event I find it misplaced that Ms M[...] asks that the application should
fail and be dismissed with costs on an attorney and own client scale.
Upholding such points in limine would not have resulted in dismissal of the
application .
[38] Ms M[...] , in her opposing affidavit, further raises the nonsensical point that:
‘It is of concern that the first, second, third, fifth and sixth respondents’ residential
and/or registered addresses have not been inserted.
The applicant is required to provide proof of service of this application on all the
respondents’.
Obviously, Ms M[...] and her legal representative loo se sight of the fact that
first respondent, being Ms M[...] indeed depos ed to an opposing affidavit.
The application therefore must have been served on the respondents and in
particular on the first respondent.
[39] The first respondent, Ms M[...] then further contends that the M[...]s failed to
state that the cancellation of the transfer can only be granted if it is found that the transfer is tainted by fraud.
[40] Ms M[...] then further refers to clause 1 of the relevant Codicil dated 8 March
2000, which also has been set out above and which will be dealt with herein later.
[41] Significantly so, Ms M[...] now in opposition to the second application states
that since the property was transferred into her name during 2008 the M[...]s
were liable to pay rent to her as owner of the property in terms of the w ill.
[42] Ms M[...] further alleges that with the exception of a few properties, it was her
grandfather wish that the land remains in a Trust for the benefit of the deceased’s grandchildren. However, the property which is at the centre of this
12
application, was not one of the properties to be held in trust but was
bequeathed to her directly.
[43] In reply, the M[...]s relied upon the fact that it would be in the best interest of
all beneficiaries and descendants of the deceased that the relevant transfers be cancelled.
Discussion :
[44] ‘
The point of departure when interpreting wills is to ‘ascertain the wishes of the testator from
the language used in the Will ’.1
[45] In Cohen NO v Roet z NO and Others
2 the Appellate Division reiterated the
golden rule for the interpretation of w ills is to ascertain the wishes of the
testator from the language used. It was further emphasized that in endeavouring to ascertain the wishes of the testator, the w ill must in general
be read in the light of the circumstances prevailing at the time of the execution.
[46] In Versepput and Another v De Gruschyno and Another
3, Franklin J
stated:
‘In construing a w ill the cardinal principle is to ascertain from the language used
therein the true wishes of the testator. In construing wills, the Court has in the course
of time evolved a number of presumptions, such as the presumption against intestacy
and the presumption that, if the language used in the w ill is ambiguous or doubtful,
that meaning ought to be given to the will which is in accord with the general wishes
of the testator to be gathered from the terms of the will read as a whole, and so as to
make a bequeath effective, rather than which makes it null and void. But these presumptions may only be resorted to if the language of the will is of doubtful import.’
4
1 King and Others NNO v De Jager and Others 2021 (4) SA 1 (CC) at par. [34], p. 18;
Robertson v Robertson’s Executors 1914 AD 503 at 507.
2 1992 (1) SA 629 (A)
3 1977 (4) SA 440 (W)
4 p. 443 C – E.
13
[47] In Parker v Fletcher Est5, Watermeyer AJP (as he then was) stated:
‘Undoubtedly the first rule of construction is that the Court must endeavour to
ascertain the intention of the testator from the terms of the will taken as a whole …’
[48] An important aspect upon a consideration of the w ill of the deceased, which
has not been mentioned before, is that it appears that the deceased was deeply emotionally affected by the death of his son N […] L[...] M[...] . The
following words of the deceased as contained in his Will give insight into his emotions:
‘I herewith record with posterity that, since the tragic death of my beloved son, N[...]
L[...] M[...] , it has always been presently ease, and will for the rest of my mortal days
be the consuming interest and longing that throbs in my bosom to raise efficient funds
in order to fittingly and adequately immortalise with sweet fragrance the tender and
the pleasant memory of my said son.”
[49] Although the codicil to the w ill by the deceased dated 15 October 1998 had
been rejected by the Master, it can be gathered from this codicil that Ms M[...]
is the daughter of the late N[...] L[...] M[...] . This then gives perspective to the
provision in the w ill of the deceased to the effect that he has decided to treat
Ms M[...] more favourably than his other grandchildren since she, unlike the
other grandchildren, had the misfortune of losing her father at a very young
age.
[50] It is the interpretation of clause 1 and clause 3 of the Codicil dated 8 March
2000, that forms the nucleus of this matter , in particular in respect of the
second application .
[51] It is clear that in his l w ill the deceased initially in no uncertain terms
expressed his wishe s Ms M[...] to acquire full ownership of the property
concerned when she turns 21.
5 1932 CPD 202 at 205.
14
[52] If one then considers clauses 1 and 3 of the 2000 Codicil, it immediately becomes clear that the deceased wished to differentiate the beques t in
regards to the 1[...] B[...] Street property from other fixed properties which was
dealt with in paragraph 3.
[53] Even if one disregard the contents of the codicil dated 15 October 1998 which was rejected by the Master, taking into account the contents of the deceased’s will as a whole as amplified by the relevant Codicils and in
particular the 2000 Codicil, it is clear that the intention of the deceased was that Ms M[...] was to attain full ownership of Erf 4[...] Ladybrand when she
turns 21.
[54] For those reasons the second application must therefore fail and that this part
of the M[...]s’ defence in respect of the first application can also not be upheld.
[55] The next question is whether the trustees should be successful in its application to have the respondents evicted from the property.
[56] The trustees first seek an order to the effect that the respondents be declared
to be unlawful occupiers of the property concerned. A court’s discretion to issue a declaration arises when a C ourt is satisfied that the claimant is an
interested person and there is an existing, future or contingent right or obligation.
6
[57] In considering whether to exercise this discretion, the Court may have regard to amongst others whether the claimant is entitled to claim consequential relief.
7
6 Reyneke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A);
South African Mutual Life Assurance Society v Anglo Transvaal Collieries Ltd 1977 (3) SA 642 (A).
7 Ex Parte Nell 1963 (1) SA 754 (A);
Mohammed v Mohammed 1976 (3) SA 151 (T).
15
[58] It must therefore be considered not only whether the respondents are to be
declared unlawful occupiers, but also whether the trustees is entitled to claim consequential relief and in particular the eviction of the respondents.
[59] In Port Elizabeth Municipality v Various Occupiers
8 Sachs J stated as
follows:
‘Simply put, the ordinary prerequisites for the municipality to be in a position to apply
for an eviction order at that the occupation is unlawful and the structures are either unauthorised, or unhealthy or unsafe. Contrary to the pre -constitutional position,
however, the mere establishment of these facts does not require the court to make an eviction order. In terms of s 6, they merely trigger the court’s discretion. If they are
proved, the court then may (not must) grant an eviction order if it is just and equitable
to do so. In making its decision it must take into account of all relevant circumstances,
including the manner in which occupation was effected, its duration and the
availability of suitable alternative accommodation or land.’
9
‘Different considerations could arise depending on whether the land occupied is
public or privately owned. In the case of public land, the State generally has further
land to meet its obligations in terms of s 26 of the Constitution …’
10
‘The municipality launched motion proceedings to seek the eviction of the occupiers.
Many of the facts it alleged in its founding affidavit were disputed by the occupiers in
response. Accordingly, we must accept those facts asserted by the applicant that
remain undenied by the respondent, together with the facts as alleged by the
respondents.’
11
‘Furthermore, persons occupying land with at least a plausible belief that they have
permission to be there can be looked at with far greater sympathy than those who
deliberately invade land with the view to disrupting the organised housing program and placing themselves at the front of the que.’
12
‘The court cannot fulfil its responsibilities in this respect if it does not have the
requisite information at its disposal. It needs to be fully appraised of the
8 2005 (1) SA 217 (CC)
9 p. 232 B – D.
10 p. 232 F – G.
11 p. 242, par. [48]
12 p. 232, par. [26].
16
circumstances before it can have regard to them. It follows that, although it is
incumbent on the interested parties to make all relevant information available,
technical questions relating to onus of proof should not play an unduly significant role
in its enquiry. The court is not resolving a civil dispute as to who has rights under law
land; the existence of unlawfulness is the foundation for the enquiry, not its subject
matter. What the court is called upon to do is to decide whether, bearing in mind the
values of the Constitution, in upholding and enforcing land rights, it is appropriate to
issue an order which has the effect of depriving people of their home.
The Constitution and PIE require that, in addition to considering the lawfulness of the
occupation, the court must have regard to the interests and circumstances of the
occupier and pay due regard to broader considerations of fairness and other
constitutional values, so as to produce a just and equitable result.’13
‘It is clear from what has been said above that the occupiers moved into the land with
what they considered to be the permission of the owner and that they have been
there for a long period of time.’
14
[60] In Occupiers of Erven 87 & 88 Berea v Christian Frederick de Wet NO15
the Constitutional Court in a unanimous judgment held inter alia that:
‘It deserves to be emphasized that the duty that rests on the court under s 26(3) of
the Constitution and s 4 of PIE goes beyond the consideration of the lawfulness of the
occupation. It is a consideration of justice and equity in which the court is required
and expected to take an active role.’16
‘The court will grant an eviction order only where: (a) it has all the information about the occupiers to enable it to decide whether the eviction is just and equitable; and (b)
the court is satisfied that the eviction is just and equitable having regard to the
information in (a). The two requirements are inextricable, interlinked and essential. An
eviction order granted in the absence of either one of these two requirements will be
arbitrary. I reiterate that the enquiry has nothing to do with the unlawfulness of
occupation. It assumes and is only due when the occupation is unlawful.’
13 p. 237, par. [36]
14 p. 244, par. [53].
15 2017 (5) SA 346 (CC)
16 p. 361 D – E.
17
In Port Elizabeth Municipality v Various Occupiers supra , Sachs J stated:
‘The Court is not resolving a civil dispute as to who has rights under land law. The
existence of unlawfulness is the foundation for the enquiry, not its subject matter.’17
[61] The trustees rely upon the termination of a lease agreement. As mentioned already, no details are provided about the terms of such lease agreement. For
purposes of the existence of such lease agreement, I do however take into
consideration the allegations by Ms M[...] to the effect that since 2008 when
the property was registered in her name, the respondents had been liable to paying her rent. This was not denied by the M[...]s in their reply in the second
application .
[62] It further appear s that the alleged lease agreement had been terminated as
per the letter by Coertzen Incorporated dated 8 February 2024. What is however confusing is that this letter states that the respondents had obtained the right to occupy the premises during June 2018. This contradicts the allegation by Ms M[...] that the respondents had been liable for paying rent
since 2008.
[63] More importantly, the trustees rely on the fact that the Shisha Trust as the
registered owner of the property is responsible for payment of impos ts
charged by the relevant authority in respect of electricity usage at the property
and is being prejudiced by the fact that the first and second respondents make use of electricity, but refuse to make payment for such usage. Although they were not obliged to do so, no reasons were provided for the termination of the alleged lease agreement in the letter by Coertzen Inc .
[64] Although it may be held that the respondents are indeed in unlawful occupation of the property, it does not follow that I am obliged to declare them as such if the trustees are not entitled to consequential relief. I am not
17 Par. [32].
18
convinced that the trustees are indeed entitled to such consequential relief , for
the reasons that follow .
[65] As far as prejudice is concerned, I do take into account that the Shisha Trust is the registered owner of the property. This indeed includes the right to free and undisturbed possession of its property.
[66] The trustees do however not provide any information in regards to the proposed use of the property. The only prejudice evident from the founding affidavit is the failure by the first and second respondents to pay for the electricity which they use. The trustees have other remedies to their disposal in this regard. In the absence of any facts and reasons, I can come to no other conclusion that the trustees wish to have the respondents evicted from the property just for the sake of getting rid of them.
[67] Opposed to the interests and rights of the Shisha Trust, are the rights and the interests of the M[...]s and their family .
[68] Of importance also in this regard is that upon a consideration of the w ill of the
deceased as a whole, it is patently clear that it was his wishes that all the
properties concerned was to be conserved for the deceased’s descendants. It is unfortunate that Ms M[...] has effectively ignored the wishes of the
deceased in this regard and also the provision in the deceased’s estate to the
effect that Erf 5[...], Ladybrand is to be leased, preferably to any suitable male
offspring of the M[...] family. This is even more so considering the historic land
tenure challenges also relied upon by the M[...]s but which does not provide a basis for the transfer of the property to the Shisha trust to be invalidated.
[69] The property had indeed been leased accordingly to the respondents of whom Mr S[...] M[...] is the son of the deceased. These respondents have been
occupying the property for the past approximately 24 years. This has been
their home for the past 24 years from which the trustees now wish to have
19
them evicted. Even if it be accepted that other alternative accommodation
may be available to the M[...]s and that they may have the means to afford
such accommodation , with due regard to the broader consideration of
fairness and other constitutional values, it cannot be just and equitable to have the respondents evicted from the property. The discretion I have ,
referred to the Port Elizabeth – matter, is to be excercised in favour of the
M[...]s. It is open to the trustees to negotiate a new lease agreement with the
M[...]s.
[70] The effect of the above is that the first application must also fail.
[71] As far as cost is concerned, there is no reason why the unsuccessful applicant s in each of the two applications not be liable for the costs.
Order
Therefore, I make the following order :
3. Application number 2372/2024 is dismissed with costs.
4. Application number 5234/2024 is dismissed with costs.
J J F HEFER, AJ
Appearances :
On behalf of Shisha Trust and Ms M[...]: Adv N van der Sandt
Instructed by: Coertzen Incorporated
Bloemfontein
On behalf of SM and NN M[...] : Adv TM Ngubeni
20
Instructed by: Zwelibanzi Ngququ Inc.
Bloemfontein