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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case N umbers: 17869/2021 to 17877/2021
17879/2021 to 17885/2021
7533/2022 to 7541/2022
In the matter between:
SARGAS (PTY) LTD
Registration Number: 1968/009480 Applicant
and
JACQUELINE CHARMAINE TIMM 1st Respondent
U PILLAY 2nd Respondent
JACQUES RICHARD BEZUIDENHOUT 3rd Respondent
HENDRICK VOS 4th Respondent
LINDIE HAMMOND 5th Respondent
F DE WET 6th Respondent
T JENNA 7th Respondent
GERRIE SWART 8th Respondent
M STEVENS 9th Respondent
IRENE MUDZINGWA 10th Respondent
ELZONIA LEANDRA JOE 11th Respondent
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JACQUES BRIAN SAWALL 12th
Respondent
PORCI A BONNITA BENJAMIN 13th Respondent
W SAUER 14th Respondent
MS ASPELING 15th Respondent
M QUINE 16th Respondent
HILLARY CHAIMIRIRA 17th Respondent
ROSEMARY CHIMBANI 18th Respondent
CARMELE TTE JOHNSTONE 19th Respondent
JULINE SCHREODER 20th Respondent
ALVIN LINKS 21st Respondent
BARISHFIRTH PONDT 22nd Respondent
DAMIAN HATTING 23rd Respondent
NICOLAAS HULL 24th Respondent
ZANE CAPES 25th Responde nt
AND ALL OTHER PERSONS UNLAWFULLY
OCCUPYING THE PREMISES 26th Respondent
BREEDE VALLEY MUNICIPALITY 27th Respondent
JUDGMENT DELIV ERED ELECTR ONICALL Y ON 5 MARCH 2025
VIVIER, AJ :
Introduction
[1] The Applicant, S argas (Pty) Ltd, is the owner o f an industrial property
known as Erf 8 […], Worcester. This property ( “the property” ) is 40,2926
hectares in extent and falls within the jurisdiction of the 27th Respondent,
the Breede Valley Municipality ( “the Municipality” ).
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[2] The 1st to 26th Respondents ( for convenience, hereinafter collectively
referred to as “the Respondents” ) are occupiers of the property.
[3] The property comprises a commercial section with a factory building and
a number of outbuildings, as well as a residential section consisting of 25
dwelling houses , which is colloquially known as “Hextex Estate” .
[4] The Respondents reside in these houses. The Applicant alleges that , in
July 2021, it terminated the Respondents’ right to occupy the houses .
However, the Respondents failed to vacate the hous es and the Applicant
contends that their occupation thereof has been unlawful since July 2021.
[5] This is an application for the eviction of the Respondents from the
property, in terms of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act , No. 19 of 1998 ( “PIE” ).
[6] The Applicant was previously known as Seardel Group Trading (Pty) Ltd
(“Seardel” ). Its name was changed to Sargas on 28 October 2015.
[7] Seardel purchased the property from Romatex Limited on 29 September
2001 , and it was transferre d to and registered in the name of Seardel on
4 June 2003 (in terms of Deed of Transfer No. T48664/2003).
[8] The business which was previously known as Hextex was conducted as a
division of Seardel. In June 2015 Seardel sold this business as a going
concern a nd an income -generating activity to Winelands Textiles (Pty)
Limited ( “Winelands Textiles” ).
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[9] Winelands Textiles, which subsequently traded under the name Hextex,
leased the property from the Applicant . A copy of the last contract of
lease is attached to th e replying affidavit. It was entered into on 31
January 2020 for an initial period of 3 years, from 1 February 2020 until
31 January 2023 .
[10] The majority of the Respondents were employed by Winelands Textiles
and took up residency in their respective house s by virtue of sub -leases
which they had entered into with Winelands Textiles . There is a paucity of
information in the Respondents ’ answering affidavits in respect of their
respective sub -leases . They in general rely on the bald allegation that
each Respon dent occupie s his/her house in terms of a written or a verbal
lease with Winelands Textiles, which was a benefit of their employment ,
without providing any further details of these sub -leases .
[11] The Applicant is a subsidiary of Deneb Investments Ltd ( “Deneb ”). On 31
January 2020 , Deneb and the Applicant sold their 100% shareholding in
and loan claims owing to them by Winelands Textiles , to K2019630452
(South Africa) (Pty) Ltd.
[12] Some of the Respondents resigned from the employ of Winelands
Textiles , or were re trenched , prior to 2020 . All the Respondents who were
still employed by Winelands Textiles at the beginning of 2020, were
retrenched in July 2020 . This occurred pursuant to the restructuring of
Winelands Textiles which entailed, inter alia , the aforesaid s hare sale
transaction.
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[13] The Applicant , as owner of the property, was not involved in any aspect
of the employer/employee relationship between Winelands Textiles and
those Respondents who were employed by it , nor was it involved in the
landlord / tenant rel ationship between Winelands Textiles and any of the
Respondents.
The litigation history
[14] The Applicant initiated the eviction proceedings in October 2021 when it
launched separa te application s for the eviction of the Respondent s in
terms of section 4 of PIE.
[15] Except for the 19th, 21st, 22nd, 24th and 25th Respondents, all the other
Respondents delivered notices of opposition to the application.
[16] On 21 July 2022 an order was made, by agreement between the parties,
that all the individual applications be consol idated and postponed for
hearing on the “semi -urgent roll ” of this Division. This order also
contained directions for the further conduct of the matter, inter alia the
delivery of answering affidavits. The 5th, 11th and 14th Respondents failed
to deliver a nswering affidavits.
[17] The consolidated applications were enrolled for hearing on 9 September
2022. However, the matter had been allocated to a judge who could not
hear it due to a conflict of interest, and it had to be postponed.
[18] The answering affidavits delivered by Langenhoven Attorneys on behalf
of those Respondents it represented, contained to a large extent the
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same allegations, except for the personal circumstances of the
respective Respondents.
[19] The Applicant delivered one replying affidavit in respe ct of all the
answering affidavits. There was also an overlap in the replying affidavit in
response to the answering affidavits, and the only difference between the
Applicant’s reply in respect of each Respondent was in relation to their
personal circumsta nces.
[20] The Respondents raised three points in limine in their answering
affidavits, one of which challenged the authority of the deponent to the
founding and replying affidavit s, Mr Keith Graham Robson, to have
institute d the eviction proceedings on behalf of the Applicant . The
Respondents contended that the resolution relied upon by the Applicant
did not allow Mr Robson to act for or institute proceedings on behalf of
the Applicant, but merely authorised him to depose to an affidavit on its
behalf .
[21] The ap plication was heard on 4 November 2022. The Court was
requested to determine this point in limine only. The point in limine was
upheld and the application was accordingly dismi ssed, with costs . The
reasons for the judgment were provided on 10 November 2022 .
[22] The Applicant applied for leave to appeal, which was granted on 4 May
2023 , to the full bench of the Western Cape High Court . The appeal was
heard on 26 January 2024 , and upheld in terms of a judgment that was
delivered on 25 March 2024. The order of the Court a quo was set aside
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and replaced with the following order – “The point in limine relating to
the authority of the deponent, Mr Keith Graham Robson, is dismissed
with cos ts.”
[23] The matter was remitted to the former Acting Judge President of the
Western Cape High Court for allocation to a judge, in order to determine
the future course and conduct of the eviction application .
[24] An order was subsequently granted by the former Acting Judge
President, by agreement between the parties, in terms of which the
matter was postponed for hearing to 5 September 2024, and the parties
were directed to file supplementary affidavits, as set out in the order.
[25] A further delay occurred resulting in a postponement of the application ,
for which neither party was to blame . The application was eventually
heard on 15 November 2024.
The position at the hearing of the application
[26] The 15th, 19th, 21st, 22nd, 24th and 25th Respondents did not oppose the
application. The 5th, 11th and 14th Respondents filed notices of opposition,
but failed to deliver answering affidavits. The application was therefore
not opposed by the 5th, 11th, 14th, 15th, 19th, 21st, 22nd, 24th and 25th
Respondents.
[27] At the hearing of the application, Ms S Bosch appeared for the Applicant
and Mr G M Langenhoven of Langenhoven Attorneys appeared for the
1st, 3rd, 4th, 6th, 8th, 9th, 12th, 16th, 18th, 20th and 23rd Respondents.
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[28] The 7th, 10th, 11th and 17th Respondents were unrepresented and
appeared in person.
[29] It is common cause that the procedural requirements set out in section
4(2) to (5) of PIE have been complied with by the Applicant.
[30] The issues for determination are the following:
[30.1] The point in limine as referred to in paragraph [31.1] below .
[30.2] Whether the Applicant is entitled to an order for the eviction of the
Respondents from the property, under sections 4(7) and 4(8) of
PIE.
The point s in limine
[31] In addition to the point in limine based on Mr Robson’s lack of authority,
which was eventually determined in favour of the Applicant on appeal, the
Respondents raise d two further points in limine in the answering
affidavits, namely –
[31.1] the Applicant’s founding affidavit was commissioned by Mr S H
Killian in his capacity as the Sheriff of Wo rcester (“the Sheriff” ).
The Sheriff had a “prima facie financial interest in th e matter” , and
the founding affidavit was therefore improperly commissioned;
and
[31.2] no housing report ha d been provided by the Municipality, and no
meaningful engagement had occurred between the parties.
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[32] In the Respondents’ heads of argument, they relied o nly on one point in
limine , namely the Sheriff’s conflict of interest which resulted in the
founding affidavit not being properly commissioned.
[33] However, d uring argument the Re spondents raised a further point in
limine , namely that the Applicant’s cancella tion of the Respondents’ sub-
leases was invalid. It was contended on behalf of the Respondents that
the Applicant had stepped into the shoes of Winelands Textiles and
purported to cancel the sub -leases, which the Applicant lacked authority
to do. In my vie w, this issue relates to the question as to whether the
Respondents are unlawful occupiers, which I shall deal with below.
[34] I now turn to deal with the point in limine based on the Sheriff’s alleged
conflict of interest.
[35] The Applicant’s founding affidavit was deposed to by Mr Robson and
commissioned by the Sheriff on 12 October 2021.
[36] The Respondents contend that this constituted a conflict of interest , on
the basis of the following allegations in paragraph 10 of the
supplementary answering affidavit filed by the 13th Respondent:
“I aver further that the Sheriff for Worcester has a prima facie financial
interest in the matter, including the prospectively (sic) potential income
which he will receive in the event that he is tasked with executing an
eviction or der.”
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[37] The Respondents therefore contend that the answering affidavit “is
improperly commissioned, and thus is not an affidavit at all, for the
purposes of this application” .
[38] The Respondents allege in their heads of argument1 that the Sheriff
would be t he only person entitled to execute the evictions, if ordered, of
an entire community consisting of 25 households, which would result in
significant charges by the Sheriff . They further allege that “such an
eventuality will result in significant charges by the Sheriff for the work to
be done, which charges may easily run to in excess of R100 000”.
[39] It was contended on behalf of the Respondents that this financial interest
constituted “a significant pecuniary interest” which disqualified the Sheriff
from comm issioning the founding affidavit. These allegation s are
unsubstantiated. None of the answering affidavits contain any evidence in
support thereof.
[40] In my view t he stumbling bloc k in the Respondents’ way to successfully
raise this point in limine , is the pro visions of regulation 7 of the
Regulations which had been promulgated in terms of section 10 of the
Justices of Peace and Commissioner of Oaths Act, No. 16 of 1963 . It
provides as follows :
“7(1) A commissioner of oaths shall not administer an oath or affi rmation
1 Par 41.
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relating to a matter in which he has an interest.
(2) Subregulation (1) shall not apply to an affidavit or declaration
mentioned in the Schedule.”
[41] The exception ref erred to in regulation 7(2), is described as follows in
item 2 of the Schedule:
“A declaration taken by a commissioner of oaths who is not an attorney
and whose only interest therein arises out of his employment and in the
course of his duty.”
[42] Regulation 7(1) therefore did not apply to the attestation of the founding
affidavit by the Sheriff.
[43] The Respondents emphasised that the Sheriff was the only person who
would be entitled to carry out the evictions of the 25 unlawful occupiers, in
the event that the a pplication be granted.
[44] It must be borne in mind that w here an objection is take n that the
provisions of regulation 7 have not been complied with, the onus is on the
person who disputes the validity of the affidavit, to prove by evidence
such failure.2
[45] In my view the Respondents’ allegations with regard to the alleged
financial intere st of the Sheriff, amounts to speculation. It is self -evident
that at the time of the attestation of the founding affidavit, the Sheriff had
2 Ladybrand Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd 1974 (1) SA 490 (O) at
493C -D.
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no basis to assume, and on the probabilities did not assume , that the
eviction application would eventually be successful, and that he might in
future earn substantial fees by carrying out evictions in the event that a
substantial number of the Respondents would not comply with an eviction
order .
[46] In Tambay v Hawa ,3 it was held that “interest” in regulation 7(1) must b e
given a limited meaning and cannot be extended to cover the remote and
indirect interest which an employee of an attorney has in matters dealt
with in that attorney’s office.
[47] In my view, the same principle applies in the present matter. When the
foundin g affidavit was commissioned by the Sheriff, he merely had a
remote and indirect financial interest in the matter, being the fees, he
stood to earn in the event of (a) an eviction order being granted and (b) a
substantial number of the Respondents not comp lying with it.
[48] I therefore hold that there is no merit in the point in limine .
The Applicant’s intended use of the property
[49] All the residential dwellings on the property were constructed with
asbestos roofing. According to the Applicant, these roofs pose a health
risk to the inhabitants thereof. It was for this reason, as well as the fact
that the Applicant intended to develop the property, that it employed an
3 1946 CPD 866.
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asbestos contractor4 to demolish the dwellings. From the Applicant’s
perspective, it became imper ative to initiate eviction proceedings in terms
of PIE against the Respondents, before it could proceed with the
demolition of the buildings and the development of the property .
[50] On 22 December 2021 the Applicant sold the property to Duro Brick
Company (Pty ) Ltd for an amount of R43,5 million. This evidence appears
in the replying affidavit.
[51] The presence of unlawful occupiers, from the Applicant’s perspective,
was disclosed as follows in clause 17 of the contract of sale:
“17.1 The Purchaser record that th e Seller disclosed to it that there are
unlawful occupiers occupying the Property. The Seller has instituted
eviction proceedings against all unlawful occupiers that it could i dentify in
the Western Cape High Court, which eviction proceedings are ongoing.
17.2 The Seller is liable to pursue the eviction proceedings against the
unlawful occupiers in the normal course up to and until date of transfer.”
[52] However, the transaction was unsuccessful. The sale fell through
because the purchaser was unable to obtai n the necessary funding, given
the presence of unlawful occupiers on the property.
The nature of the dispute with regard to the unlawfulness of the
Respondents’ occupation of the property
4 Who was duly registered in terms of the Occupational Health and Safety Act, No. 85 of 1983
(as amended by the Asbestos Abatement Regulations 2020).
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[53] It is common cause that the Applicant is the registered owner of th e
property.
[54] The Respondents who were represented by Langenhoven Attorneys,
conceded in the ir heads of argument that Winelands Textiles was sold to
a third party during 2020.
[55] According to the disposal announcement titled “Category 2 Disposal
Announcement” which was attached to the replying affidavit, the share
sale agreement between the Applicant/ Deneb and the purchaser5 was
entered into on 31 January 2020. The rationale for th is disposal was
recorded as follows in this document:
“Winelands Textiles does n ot meet the required return on capital hurdle
rate, and the Company therefore believes it is in the best interests of the
Deneb Group to dispose of the Assets at this time. ”
[56] It is also common cause that the Respondents who were still employed
by Winelands Textiles in the first half of 2020, and who occupied their
respective house s as a benefit of their employment, were retrenched at
the end of July 2020.
[57] A year later, on 29 Ju ly 2021, the Applicant’s attorneys caused the
following notice (on the attorney s’ letterhead) to be serve d by the Sheriff
on the Respondents :
“We act on behalf of our clients, the registered owner of the immovable
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property, SARGAS (PTY) LTD, Registration number: 1968/009480/07
(‘our client’).
According to a written lease agreement b etween yourself and Hextex, the
lease is terminable with four weeks written notice given by either party to
the contract. In the event that there may be a verbal lease agreemen t,
you are given notice of the cancellation and termination of your right to
occupy the property.
In the premises, kindly accept notice in your capacity as tenant, and with
this formal notice to all occupants of the unit, that the lease agreement
will terminate and be cancelled on 31 August 2021, and you shall have no
alternative but to vacate the premises on or before the aforementioned
date, failing which our client will apply for an eviction order with costs.”
[58] The 3rd, 4th, 6th, 7th, 8th, 9th and 12th Respondents had either resigned or
were retrenched prior to 2020. The 2nd, 17th, 18th and 23rd Respondents
were never employed by Winelands Textiles, and therefore do not occupy
their respective houses as a benefit of their employment.
[59] The Applicant alleges that it waited a further 12 months before it, as the
owner of the property and n ot as the Respondents’ landlord, terminated
the Respondents’ right to occupy their respective houses . This occurred
by means of the notice dated 29 July 2021, as referred to in paragraph
[57] above. I shall refer to this notice as the “notice of terminatio n”. The
Applicant did not, for the purpose of the termination of all the
5 K2019630452 (South Africa) (Pty) Ltd.
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Respondents’ right to occupy the property, distinguish between (a) the
Respondents whose employment were terminated prior to 2020 , and (b)
those Respondents who were retrenched in Jul y 2020.
[60] The Respondents failed to comply with the notice of termination. The
Applicant therefore contends that the Respondents are unlawful
occupiers. This contention is premi sed on the following allegations – the
Respondents and all other persons occupyi ng the property through and
under them, are in unlawful occupation of the property “… as the lease
agreement was duly cancelled, alternatively no lease agreement exists,
and as a result of the subsequent failure to vacate the property” . The
words “the leas e agreement” referred to the Respondents’ respective
sub-leases.
[61] With regard to the Applicant’s attempt to terminate their right of
occupation, by means of the notice of termin ation, the Respondents
admitted that they received this notice, but denied that the Applicant
validly terminated their right to occupy their respective houses, by means
of this notice .
Are the Respondents unlawful occupiers ?
[62] It is trite that the grant or otherwise of an application for eviction in terms
of PIE is predicated upon a thr ee-fold enquiry,6 namely –
[62.1] Does the occupier have any extant right in law to occupy the
6 Head and Another v Morris NO and Others – Appeal (A91/2022) [2023] ZAWCHC 343 (28
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property, i.e. is the occupier an unlawful occupier or not. If the
occupier has no such right, it is the end of the matter and the
application must be refused.
[62.2] Second , would it be just and equitable that the occupier be
evicted.
[62.3] Third, if this answer is in the affirmative, the terms and conditions
of the eviction order must be determined.
[63] An “unlawful occupier” is defined in section 1 as –
“(A) person who occupies la nd without the express or tacit consent of the
owner or person in charge, or without any other right in law to occupy
such land, excluding a person who is an occupier in terms of the
Extension of Security of Tenure Act, 1997, and excluding a person whose
informal right to land, but for the provisions of this Act, would be protected
by the provisions of the interim Protection of Informal Land Rights Act,
1996 (Act 31 of 1996)” .
[64] In Wormald NO and Others v Kambule ,7 it was held that “[a]n owner is
in law entit led to possession of his or her property and to an ejectment
order against a person who unlawfully occupies the property except if that
right is limited by the constitution, an other statute, a contract, or any legal
basis” .
December 2023), at par 43.
7 2006 (3) SA 562 (SCA) at par 11; see also Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113 (SCA) at par 19; Serné NO and Others v Mzymomhle Educare and
Others 2024 JDR 4879 (SCA) at par 28.
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[65] In Chetty v Naidoo ,8 it was hel d as follows:
“It is inherent in the nature of ownership that possession of the res should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some right
enforceable against the owner (e.g ., a right of retention or a contractual
right). The owner, in instituting a res vindicatio, need therefore do no
more than allege and prove that he is the owner and that the d efendant is
holding the res – the onus being on the defendant to allege and esta blish
any right to continue to hold against the owner (cf. Geena v Minister of
Lands 1955 (2) SA 380 (AD) at pp 382E, 383 ). It appears to be
immaterial whether, in stating his claim, the owner dubs the defendant’s
holding ‘unlawful’ or ‘against his will’ o r leaves it unqualified (Krugersdorp
Town Council v Fortuin 1965 (2) SA 335 (T) ) but it goes beyond alleging
merely his ownership and the defendant being in possession (whether
unqualified or described as ‘unlawful’ or ‘against his will’) other
considerati ons come into play.
If he concedes in his particulars of claim that the defendant has an
existing right to hold (e.g. by conceding a lease or a hire purchase
agreement, without also alleging that it has been terminated: Boshoff v
Union Government 1932 TPD 345 at 351; Henning v Petra Meubels Bpk
1947 (2) SA 407 (T) at p 412) his statement of claim obviously discloses
no cause of action. If he does not concede an existing right to hold, but,
nevertheless, says that a right to hold now would have existed but f or a
8 1974 (3) SA 13 (A) at 20F -G.
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termination, which has taken place, then ex facie the statement of claim
he must at least prove the termination , which might in the case of a
contract, also entail proof of the terms of the contract.” (Emphasis
provided.)
[66] In Dreyer and Another NNO v Axzs Industries (Pty) Ltd ,9 the Court
referred with approval to the passage in Chetty , supra , and stated the
following:
“A party who institutes the res vindicatio is required t o allege and prove
ownership of the thing. Since one of the incidents of ownersh ip is the right
to possession of the thing, a plaintiff who establishes ownership is not
required to prove that the defendant’s possession is unlawful. In that
event, the onus to establish any right to retain possession will rest on the
defendant, as long as the plaintiff does not go beyond alleging ownership .
But if the plaintiff fails to establish ownership, the possessor is to be
absolved.” (Emphasis provided.)
[67] All the Respo ndents who were retrenched in July 2020, alleged that they
were, at that stage, entitled to occupy their respective houses by virtue of
either a written or a verbal sub -lease with Winelands Textiles. The
Applicant accepts that this was the case, hence its cancellation , a year
later, of the Responden ts’ sub-lease s by means of the notic e of
termination. I shall return to the question as to whether the Applicant, as
owner of the property and not the sub -lessor , was entitled to cancel or
9 2006 (5 ) SA 548 (SCA). With regard to the evidential onus on a respondent in an application
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could validly have canc elled the sub -leases between Winelands Textiles
and the Respondents.
[68] In my view, the enquiry with regard to the unlawfulness of the
Respondents’ occupation of their respective houses, should commence
with the Respondents whose employment had been terminated before
2020. Was their continued occupation of the ir house s, notwithstanding
the termination of their employment, lawful?
[69] In Davidan v Polovin NO ,10 it was held as follows:
“[11] The jurisdictional requirement to trigger an eviction under PIE is
that the person sought to be evicted must be an unlawful
occupier within the meaning of P IE at the time when the eviction
proceedings were launched . Section 1 of PIE defines an unlawful
occupier as ‘a person who occupies 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’. Consent is defined as ‘the
express or tacit consent, whether in writing or otherwise, of the
owner of person in charge to the occupation by the occupier of
the land in q uestion’.
[12] The starting point is to establish whether the appellant is an
unlawful occupier under PIE. The key question is whether the
appellant enjoyed a right of occupation? PIE applies not only to
for eviction under PIE, see Ndlovu , supra , at par 19.
10 2021 JDR 1781 (SCA) at par 11 to 1 3.
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occupants who occupied land without the initial consent of the
owner or person in charge, it also applies to occupants who had
cons ent to occupy but such consent was subsequently
terminated. In both instances the occupants would be unlawful
occupiers within the meaning of PIE. Consent in eviction
applicati ons is a valid defence.
[13] The first enquiry is whether the appellant had the necessary
express or tacit consent to reside on the property owned by the
Trust. In other words was the oral agreement established?
Whether or not someone has the necessary consent to reside is
a factual question.” (Emphasis provided.)
The Respondents wh ose employment was terminated prior to 2020
The 2nd Respondent – Ursula Alica Apollis
[70] The 2nd Respondent is a 48 year old female who took occupation of
House 1A, Hextex Estate, with her ex -husband, Mr Pillay, who passed
away in 2015. Mr Pillay was employed by Winelands Textiles. The 2nd
Respondent alleges that the late Mr Pillay had signed a written contract of
lease in 2013, but was never provided with a copy thereof. The 2nd
Respondent was re-married in 2018 to Mr Christie Leonard Apollis .
[71] The 2nd Respon dent was not employed by Winelands Textiles. She does
not rely on a lease in her own name for her continued occupation of the
house. She alleges that after her husband’s passin g in 2015, she agreed
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with Ms Jacqui Bakkes , a representative of Winelands Texti les, that she
could remain in occupation of the house. However, t he 2nd Respondent
adduced no evidence of when this agreement was concluded, and on
what basis she was permitted to remain in occupation of the house. She
merely alleges that it was agreed tha t she “could tender (her) rental when
and where possible going forward” . It is unclear from her affidavit to what
extent she regularly paid rent. Since July 2020 Winelands Text iles
refused to accept rental from the 2nd Respondent, and she was advised
that there was “a new owner / manager” of the property who would further
communicate with her. The 2nd Respondent’s answering affidavit contains
no evidence whether this in fact happened.
The 3rd Respondent – Jacques Richard Bezuidenhout
[72] The 3rd Respondent is 49 years old and unemployed . He resides in
House 2A together with his wife, Abigail Bezuidenhout, age 39 . The 3rd
Respondent took up residence in his house in terms of “an oral month to
month lease agreement” . The 3rd Respondent was retrenched in June
2020 . He does not rely on his lease for his continued occupation of his
house , after his retrenchment . I have therefore include d the 3rd
Respondent in this category of Respondents under discussion . The 3rd
Respondent alleges, unsurprisingly, that “there were n o terms relating to
the procedure should I be retrenched” . He alleges that his oral lease was
part and parcel of his employment. By necessary implication, it came to
an end whe n he was retrenched. The 3rd Respondent did not tender
rental after his retrench ment. His explanation for this omission is that he
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was not informed “as to how I could continue to tender my rental” ,
because it had previously been deducted from his salary.
The 4th Respondent – Hendrick Vos
[73] The 4th Respondent ’s answering affidavit was deposed to by his wife , Ms
Juanita Vos, a 47 year old unemployed female. The 4th Respondent and
his wife were both employed by Winelands Textiles. They reside in House
2, Hextex Estate. Ms Vos alleged that it was as a consequence of her
employment by Winela nds Textiles that she was allowed to enter into a
lease with Winelands Textiles. No evidence was adduced with regard to
whether it was a written or verbal lease, or the terms thereof. Ms Vos
resigned in December 2019. It is unclear when the 4th Respondent’ s
employment was terminated.
[74] The 4th Respondent’s answering affidavit contains no evidence with
regard to the basis on which the couple was permitted to remain in
occupation o f the house, after the resignation of Ms Vos in December
2019, bearing in mind t hat the sub-lease was in her name and a benefit of
her employment . They paid rent until the eviction application was served
on them, whereafter Winelands Textiles refused to accept any further
rental from them.
The 6th Respondent – Francois de Wet
[75] The 6th Respondent is a 53 year old male and resides at House 16,
Hextex Estate, together with his wife and their two major daughters and
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one minor daughter, aged 13. The 6th Responde nt was employed by
Hextex since October 2003, and he leased his house in terms o f an oral
agreement. The 6th Respondent alleges that it was as a consequence of
his employment and a benefit thereof that he was allowed to enter into a
lease with Winelands Textiles until December 2019, when he resigned. In
January 2020 the 6th Respondent obtained employment at Breede Valley
Municipality.
[76] The 6th Respondent paid no further rent after his resignation in December
2019 . The explanation proffered by the 6th Respond ent for this omission
was that no indication was given to him “as to how to cont inue tendering
rental for the premises” . The 6th Respondent’s answering affidavit
contains no evidence on what basis he was entitled to remain in
occupation of his house after his resignation.
The 7th Respondent – Tonderai Jena
[77] The 7th Respondent is a 52 y ear old male who has been residing at
Hextex Estate since 2011. No evidence was adduced in respect of the
basis on which this occurred . The 7th Respondent’s three adult childre n
reside with him. The family did not reside in one of the dwellings, but in a
building described as “the clubhouse” . The 7th Respondent was
retrenched in July 2020. The 7th Respondent alleges that “in 2021, the
clubhouse was demolished and we were offered a different unit –
consequently relocating to our current space, house 15, in M ay 2021” .
The 7th Respondent adduced no evidence of the basis on which this
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occurred. The 7th Respondent was unemployed for 2 years following his
retrenchment. He again obtaine d employment in January 2022. The 7th
Respondent did not deal in his answering a ffidavit with the question as to
whether he paid any rental after his retrenchment. I have included the 7th
Respondent in this section because, although he was retrenched in July
2020, he does not rely on any lease or other legal basis for his continued
occupation of the “unit” he occupies.
The 8th Respondent – Gert Johannes Swart
[78] The 8th Respondent is a 60 year old male who resides in House 14,
Hextex Estate . The 8th Responden t has been in occupation of his house
since 24 June 1995, in terms of a written lease agreement. The rental
was deducted from his salary. His employment was terminated in 2015,
after a labour dispute with Winelands Textiles, but he and his family
continued to occupy his house .
[79] The 8th Respondent alleges that “a due representative of H extex ” agreed
that he could remain in occupation of his house, on condition that he
continued to pay rent. In 2017 he started his own business . This venture
failed. As a conseq uence, the 8th Respondent was unable to pay any
rental since approximately 2018. The 8th Respondent ’s answering
affidavit contained no evidence on what basis he was entitled to remain in
occupation of his hous e notwithstanding his failure to pay rent .
[80] The 8th Respondent alleges that soon after the closing of Winelands
Textiles, he an d other tenants formed a tenants association “for the due
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payment of rental, as management was no longer accepting same” .
However, no evidence was adduced with regard to what w as achieved by
this association, if anything, in respect of the continued occupa tion of the
houses and the payment of rental by the Respondents .
The 9th Respondent – Johanna Madelaene Mina Steven
[81] The 9th Respondent is a 55 year old unemployed female who has been
residing at House 13, Hextex Estate, since approximately 2016. The 9th
Respondent was previously employed by Winelands Textiles. Her rental
was deducted from her wages, but she disclosed no information as to
whether she occupied her house by virtue of a written or verbal lease
agreement. She was retrenched in 2017. The 9th Resp ondent was unable
to obtain any form of employment after her retrenchment.
[82] The 9th Respondent continued to pay rent, notwithstanding her
retrenchment in 2017, until April 2019 when Winelands Textiles refused
to accept any further rental from her. The 9th Respondent adduced no
evidence of the basis upon which , if any, she was entitled to remain in
occupation of her house, notwithstanding the fact that she paid no rent.
The 12th Respondent – Jacques Brian Sawall
[83] The 12th Respondent is a 69 year old male pensi oner. He resides with his
66 year old wife, who is also a pensioner, in House 6, Hextex Estate.
They have been in occupation of this house since 2011. Their grandson
lives with them. The 12th Respondent was employed by Hextex from 2011
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until 2019, when he retired. He alleges that the occupation of their
house “was provided on an indefinite basis” , without explaining what this
means, and that until his retirement, the rental was deducted from his
salary.
[84] The 12th Respondent failed to disclose on what basis h e continued to
occupy his house, after his retirement in 2019. He merely alleges that
prior to his retirement, he was advised by a representative of Hextex that
he would not be required to continue paying rent after his retirement.
However, in 2021 he disc ussed the matter with Mr Peter Gaal, the
general manager of Hextex, “who agreed to accept rental of R700,00 per
month” . I am not prepared to accept this evidence. It is not onl y hearsay,
but wholly untenable, given the common cause facts that Winelands
Textiles had been sold to a third party in 2020. In any event, t he 12th
Respondent adduced no evidence with regard to what had happened
pursuant to this conversation with Mr Gaal , particularly with regard to the
payment of rent.
The 17th Respondent – Hillary Chaimirira
[85] The 17th Respondent is a 25 year old self -employed male. He has resided
in House 3, Hextex Estate, since 2017, with his parents. His father was
previously employed b y Winelands Textiles, until he resigned in
December 2019. Winelands Textiles did not thereafter provide the 17th
Respondent “with an alternative account for rental payments” and
informed the 17th Respondent that it would no longer accept rental from
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him. The 17th Respondent’s father thereafter relocated to the Eastern
Cape, in order t o secure permanent employment. The 17th Respondent
adduced no evidence of the basis on which he was entitled, in his
personal capacity, to remain in occupation of the house tha t his father
previously rented from Winelands Textiles.
The 18th Respondent – Rosemary Chimbani
[86] The 18th Respondent is a 36 year old female who resides in House 5,
Hextex Estate, together with her husband. She has resided in this house
since September 2020, when she moved in with her uncle who was
employed by Winelands Textiles and re nted House 5 from it, until his
retrenchment in July 2020. No further rental was subsequently paid by
her uncle, because Winelands Textiles “did not advise him as to how and
when to continue his rental payments” . Her uncle relocated to Pretoria in
Septembe r 2020, where he had secured new employment. The 18th
Respondent likewise failed to adduce evidence with regard to the basis
on which she personally was entitled to remain in occupation of House 5,
after her father’s retrenchment and relocation to Pretoria .
The 23rd Respondent – Damian Hattingh
[87] The 23rd Respondent is a 27 year old male who resides in House 1 […],
Hextex Estate. He has resided in this house since 25 August 2021. It was
previously occupied by Ms Fadila Sampson, who was employed by
Winelands Text iles and paid rental to occupy the house. The 23rd
Respondent adduced no evidence of how it came about that he started
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occupying House 18 , or on what basis he was permitted to do so . It is
evident that he has never occupied the house in terms of any agreem ent
with Winelands Textiles. He merely sought to justify his occupation of the
house on the basis of the following averment – “Hextex is aware of my
occupation and have (sic) previously raised no issues in terms of same,
agreeing to occupation of House No. 1[…]”.
Discussion
[88] It was conceded in the Applicant’s heads of argument that all the
Respondents had the consent of Winelands Textiles, being the “person in
charge” of the property, to occupy their houses.11
[89] It is apparent from the Respondents’ answering af fidavits that the
inhabitants of Hextex Estate are a relatively close community. Several
Respondents allege that after the retrenchment of employees in July
2020, Winelands Tex tiles refused to accept rental offered by them, and
advised the Respondents that Winelands Textiles no longer had anything
to do with the dwellings in Hextex Estate. In June 2020, the inhabitants of
Hextex Estate established a committee with a view to setting up a fund
earmarked for the reparation of “breakages” to which all the Respo ndents
would contribute on a monthly basis. A further purpose of this fund was to
establish a neighbourhood watch. The 8th and 12th Respondents were the
“driving force” in esta blishing this committee. In May 2021 they
approached a representative of Winelan ds Textiles, in order to obtain
11 Heads of argument, paragraph 30.
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copies of their leases. They were unsuccessful, because Winelands
Textiles reiterated its position that it no longer had anything to do with the
houses. On another occasion the 10th Respondent was informed that the
“new owne r of the property” would in future deal with the residents of
Hextex Estate. This position adopted by Winelands Textiles must have
become common knowledge to the other inhabita nts of Hextex Estate, to
whom it had not been directly communicated.
[90] Given thes e facts and circumstances, the Respondents clearly must have
realised that, as far as Winelands Textiles were concerned, there were no
longer valid sub-leases in place, and by necessary implication, the
Respondents no longer enjoyed the consent of Wineland s Textiles to
occupy their houses. However, I make no finding in this regard.
[91] It is common cause that Winelands Textiles was sold in the first half of
2020. I have already allu ded in paragraph [ 55] above to the reason for
this transaction, namely that Wine lands Textiles no longer achieved “the
required return on capital hurdle rate” .
[92] In the notice of retrenchment the Respondents were advised, inter alia ,
as follows:
“Further to our recent consultations with the union and the S189
facilitation process held regarding the restructuring at Winelands Textiles
(Pty) Ltd, we regret to advise you the company will be closing and
operations will cease 31st July 2020 . Consequently your ser vices will be
terminated due to operational requirements.” (Emphasis provided.)
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[93] The Applicant alleges that after the sale of Winelands Textiles, Mr
Robson, in his capacity as Chief Executive Officer of Vega Properties,
being a division of the Applicant, became the person in charge of the
property. This allegation has been admitted by the Respondents.
[94] It follows that when the notice of retrenchment was delivered to the
Respondents at the end of July 2021, on behalf of the Applicant, no
representative of Wi nelands Textiles was any longer a person in charge
of the property. This notice, the content of which I have already quoted in
paragraph [ 57] above, was titled , in bold print – “CANCELLATION OF
LEASE AGREEMENT AND TERMINATION OF RIGHT TO
OCCUPATION: HEXTEX ESTATE (followed by the house number of
each Respondent) .”
[95] It is not necessary for me to determine whether the Applicant had , after
the disposal of Winelands Textiles, consented (expressly or tacitly) to the
Respondents’ continued occupation of the ir hous es. The facts suggest
that it tacitly consented thereto. Be that as it may, t his was conceded, by
implication, on behalf of the Applicant when it was contended that the
notice of termination was a general notice to the Respondents, that their
right to occupy their houses had been terminated. By necessary
implication, prior thereto the Respondents had the Applicant’s consent to
occupy their respective houses.
[96] It is necessary, however, in order to consider the next question, namely
whether the Applicant’s con sent was terminated in terms of the notice of
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termination, to first have regard to the explanation of the word “consent”
by Yacoob J in Residents of Joe Slovo Community v Thubelisha
Homes :12
“I agree that the Supreme Court of Appeal was correct in adopting the
Oxford Dictionary meaning of the word ‘consent’.13 And it is in this primary
sense which the concept of consent is employed in the PIE Act. What is
required by the PIE Act is not just some kind of acquiescence by the
owner or person in charge of land bu t the ‘voluntary agreement’ of the
owner or person in charge. The occupier will not be on the land with the
consent of the owner or person in charge if the owner simply allowed the
person to stay or occupy because he, she or it had no choice but to do
so, or felt under a duty to do so, or for any other reason did not agree
voluntarily . Secondly, the word ‘agreement’ implies something bilateral. In
other words consent as contemplated in the PIE Act is not unilateral
consent but bilateral. It cannot be consen t unless it was first asked for
and later given, or unless it was accepted after it had been given even
though it had not been requested.”
[97] However, Moseneke DCJ adopted a more expansive and generous
approach to the meaning of “consent” in his discussion thereof :14
“It is plain that an unlawful occupier would be one who occupies land
12 2010 (3) SA 454 (CC) at para 55.
13 The Supreme Court of Appeal in Tsaperas and Others v Boland Bank Ltd 1996 (1) SA
719 (A) at 724G -H, said the following in this regard: “The argument ignores the meaning of
‘consent’ . Its primary meaning as a noun is, according to the Concise Oxford Dictionary,
‘voluntary agreement’.”
14 At par 144.
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without consent of the owner or without any other right in law to occupy.
The consent required is of the owner or the person in charge. It may be
express or tacit and it may be in writing or otherwise. This definition is
cast in wide terms. It envisages ex plicit consent but it also contemplates
consent that may be tacit or, put otherwise, that may be unsaid but
capable of being reasonably inferred from the conduct of the owner in
relation to the occupier.”
[98] With regard to the termination of consent Yacoob J stated the following:15
“Even if it is so that consent ought to be more broadly defined than is
considered appropriate in my judgment, it is my view that consent of that
kind wa s terminated by necessary implication. It will be inconsistent to
allow for a br oad definition of consent and for a narrow definition of the
method of termination.”
[99] The Applicant did not deal in the founding or replying affidavits with the
fact that it did not concomitantly with the retrenchments in July 2020,
terminate the Respondent s’ right to occupy the property. It merely allege s
in its supplementary affidavit , in respect of those Respondent s who had
been retrenched, that although their right to occupy the premises
“terminated with their respective retrenchments during July 2020 wh en
Hextex was sold” , it waited a further year (as owner of the property and
not as the Respondents’ landlord) before it terminated the Respondents’
rights to occupy the property.
15 At par 84.
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[100] The notice of termination, on the face of it, conveyed to each
Respondent th at the termination of his/her right to occupy his/her house,
was as a consequence of the termination of the sub-lease. However, the
notice was received by each Respondent after the events that had
occurred during 2000, namely (a) the sale of Winelands Text iles, (b) the
retrenchment of those Respondents still employed by Winelands Textiles,
and (c) the position adopted by Winelands Textiles that it no longer had
anything to do with the houses. I therefore hold that on a conspectus of
all the evidence, the te rmination of the Applicant’s consent was implicit in
these events that culminated in the delivery of the notice of termination.
[101] With regard to the question whether the Responde nts continued
occupying their houses “without any other right in law” to do so , I have
summarised the evidence of the Respondents in paragraphs [ 70] to [8 7]
above. In my view, the 2nd, 3rd, 4th, 6th, 7th, 9th, 12th, 17th, 18th and 23rd
Respondents have failed to discharge the onus in Chetty , namely “to
allege and establish any right t o continue to hold against the owner” . The
8th Respondent, on his own version of his agreement with Winelands
Textiles, was no longer entitled to occupy his house, since approx imately
2018 , when he ceased paying rent because he was unable to do so.
[102] To summ arise, the Respondents under discussion in this section, did not
have the express or tacit consent of the Applicant to remain in occupation
of their houses, after the receipt of the notice of termination . Neither did
they have any other right in law to rem ain in occupation of their houses.
These Respondents, namely the 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 12th, 17th,
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18th and 23rd Respondents , are therefore unlawful occupiers.
The Respondents who were retrenched in July 2020
The 1st Respondent – Jacqueline Timm
[103] The 1st Respondent is a 51 year old unemployed female who was
employed by Winelands Textiles (and the previous owners of the factory)
from 9 September 1993 until 31 July 202 0, when she was retrenched.
She and her husband took occupation of House 1, He xtex Estate, in April
2009. The 1st Respondent alleges that she signed “a standard lease
agreement” but never received a copy thereof. She initially paid the rental
in cash (fo r a period of 6 months) and thereafter it was directly deducted
from her weekly wages. The last deduction was from her final wage on 31
July 2020 . Winelands Textile s thereafter refused to accept rental from the
1st Respondent , and advised her that the company no longer had
anything to do with the houses on Hextex Estate.
The 10th Res pondent – Irene Mudzingwa
[104] The 10th Respondent is a 50 year old female who resides at House 20,
Hextex Estate. The 10th Respondent and her husband were both
employed by Wineland s Textiles, since approximately October 2005. She
alleges that “my husband and I signed a written lease agreement with
Hextex” . Her husband resigned in 2012. They are estranged and he no
longer lives in their house. The 10th Respondent was retrenched in July
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2020, and she subsequently secured employment as a weaver at
Svenmill (Pty) L td in January 2022 . Since July 2020 Winelands Textiles
refused to accept the rental tendered by the 10th Respondent.
The 13th Respondent – Portia Bonnita Benjamin
[105] The 13th Respondent is a 57 year old female who resides at House 7,
Hextex Estate. She was e mployed by Winelands Textiles in August 2002,
and signed a written lease agreement in respect of her house. Although
the 13th Respondent resigned in 2010, she continued to occupy her
house and to pay rent. She was again employed by Winelands Textiles,
since 2016, until her retrenchment in July 2020. The rental was deducted
from her monthly salary, and the last payment was in July 2020.
The 16th Respondent – Mercia Soorjonowa 16
[106] The 16th Respondent is a 63 year old female pe nsioner, who resides in
House 2 […], Hextex Estate. The 16th Respondent and her husband were
both employed by Winelands Textiles, since 2012. They initially rented “a
shared room in house 1” , and in 2020 they moved to House 2 […] which
they rented in terms of a written contract of lease entered into with
Winelands Textiles on 1 February 2020. The 1 6th Respondent alleges
that after the closure of Winelands Textiles she continued to pay rental,
and she attached handwrit ten receipts ostensibly issued by Winelands
Textiles to her answering affidavit , for the period 1 September 2020 to 31
May 2021. The 16th Respondent alleges that “from the end of May 2022” ,
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a representative of Winelands Textiles refused to accept any rental from
her. This date is evidently a typographical error given the date of the l ast
receipt, namely 31 May 2021 .
The 20th Respondent – Juline Schroder
[107] The 20th Respondent is a 68 year old female pe nsioner, who resides in
House 1 […], Hextex Estate, together w ith her 73 year old husband who is
also a pensioner. She alleges that she reside d in her house since July
2000 . It was a benefit of her employment that she entered into a lease
agreement with Winelands Textiles. Her rental was deducted from her
monthly salary . The 20th Respondent was retrenched in July 2020, and
she continued to pay r ental until September 2020. She alleges that since
October 2020 “there were no Hextex representatives available to receive
my rental, nor was I advised as to how further rental payments ought to
be tendered” . No further rental was paid by the 20th Responde nt
thereafter .
Discussion
[108] All the Respondents who were retrenched in July 2020, challenged the
validity of the termination of their respective sub-leases, by means of the
notice of termination, on the basis that the Applicant’s attorneys had no
mandate to terminate the leases.
[109] The notice of termination purported to terminate a written lease
16 The surname used in the citation is the 16th Respondent’s maiden name.
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agreement, alternatively a verbal lease agreement . The founding
affidavit contains no e vidence on what basis the Applicant, as owner of
the property, was entitled to c ancel the Respondents’ sub -leases with
Winelands Textiles. The notice of termination therefore did not constitute
a valid and effective cancellation of the sub-leases.
[110] In order to overcome this difficulty, it was contended on behalf of the
Applicant that t he notice of termination was a general notice to the
Respondents that their right to occupy their houses was terminated, and
not necessarily a notice that their respective sub-leases were terminated .
It was further contended that, as a consequence, the App licant’s consent
in respect of the Respondents’ continued occupation of their houses was
revoked.
[111] In support of this contention, the Applicant relied on the meaning of the
word “consent” as explained in Joe Slovo ,17 and that the termination of
consent can b e implicit. I have already held that there is merit in this
contention. However, the question arises, what was the status of the sub -
leases? Did they constitute “any other righ t in law” vesting in the
Respondents to remain in occupation of their houses?
[112] The core issue is whether the Respondents were , vis-à-vis the Applicant,
entitled to continue occup ying their houses, notwithstanding their
retrenchment, by virtue of their sub -leases. The Respondents contend
they were. The Respondents did not expressly alle ge on what basis they
17 At par 16.
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were entitled to do so . They all rely on the implied assertion that their
sub-leases remained extant, given the Applicant’s invalid and ineffective
attemp t to cancel them .
[113] A sub -lessee’s rights to the leased property are subject to th ose of the
lessee. A sub -lessee cannot acquire more rights than the lessee has, and
a sub -lessee’s rights terminate when the lessee’s rights come to an
end.18
[114] The evidence in relation to the events that occurred in 2020, as described
in paragraphs [ 88] to [ 93] above , in relation to the Respondents whose
employment had been terminated prior to 2020, suggests that when the
notice of termination was delivered (at the end of July 202 1), the main
lease between the Applicant and Winelands Textiles had come to an e nd.
If this was indeed the case, the Respondents’ right s to occupy their
houses as sub -lessees were also terminated .
[115] The Applicant surprisingly adduced no evidence in the founding affidavit
that the main lease with Winelands Textiles had been terminated. Ex
facie the contract of lease, a copy of which was attached to the replying
affidavit, its duration was for a period of 3 years, from 1 February 2020 to
31 January 2023. Clause 26.2 contained the following non -variation
clause:
“No variation of this lease shall be binding unless it is in writing and
18 Ntai v Vereeniging Town Council 1953 (4) SA 579 (A) at 589A; Ellerine Bros (Pty) Ltd v
McCarthy Ltd (245/13) [2014] ZASCA 46 (1 April 2014), at par 5; The Law of South Africa ,
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signed by both the LANDLORD and the TENANT. ”
[116] The Applicant alleges i n paragraph 68 of the replying affidavit:
“The applicant, furthermore, never collected rental from the respondents.
The lease agreement was between the applicant and Hextex, and Hextex
and the respondents had their own agreement in respect of rental and
benefit of employment. I, accordingly, deny that the applicant r efused to
accept rental or that it was ever involved with such rentals.” (Empha sis
provided.)
[117] The Applicant’s use of the past tense in relation to the existence of the
main lease, may imply that it had already come to an end when this
affidavit was deposed to. But these allegations appear in the replying
affidavit, that was deposed t o on 10 August 2022, some 10 months after
the eviction proceedings had been instituted. In any event, there is
insufficient evidence to conclude that the main lease had been te rminated
at the time that the application was launched. In fact, there is eviden ce
that point in the opposite direction. In the contract of sale that the
Applicant entered into with Durobrick,19 in terms of which it sold the
property to the latter in December 2021, the word “Tenants” was defined
as follows in clause 1.1.9 of the contra ct – “Winelands Textiles (Hextex)
Proprietary Limited and Ceres Fruit Juices Proprietary Limited, being the
current tenants of the premises situated on the Property” . This evid ence
suggests that, at that stage, the main lease was still extant.
2nd Edition, Volume 14, Part II, at par 48.
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[118] The Applican t has conceded in its affidavit s that, at the time that the
Respondents were retrenched, they occupied their houses in terms of
their respective sub-leases with Winelands Textiles. The Applicant
alleges, in its replying affidavit, that as a consequence of (a) the
termination of the Respondents’ employment and (b) the sale of
Winelands Textiles, the Respondents were no longer entitled to remain in
occupation of their houses. The Applicant has misconceived the legal
position. An employee’s right to occupy a d welling leased from the
employer, does not automatically terminate when his/her contract of
employment was terminated. The right of residence must be terminated
on its own in addition to the termination of the contract of employment.20
[119] With regard to the Ap plicant’s attempt to cancel the sub -leases, by means
of the notice of termination, the 1st Respondent’s answering affidavit
contained the following allegations:
“82.4 In addit ion, it is denied that our lease agreements were validly
termination (sic) insof ar as reliance are placed on annexure KR5 (1 & 2)
attached to Robson’s Founding Affidavit, especially having regard to the
further allegations why our evictions are necessary.”
Annexure “KR5” referred to in this quotation, is the notice of termination.
[120] All the answering affidavits of the Respondents contain the following
denials:
19 See paragraph [50] above.
20 Snyders and Others v De Jager and Othe rs 2017 (3) SA 545 (CC) at par 71 and 72.
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“I admit that a notice to vacate was served on me as alleged, but deny
that same served to effect valid cancellation of my rights” .
“I deny that I am in unlawful occupation of t he property as alleged,
cancellation not having been properly effected.”
[121] The Applicant did not deal with these denials in the replying affidavit. It
merely took the position that the Respondents’ continued occupation of
their houses was unlawful, for the r easons stated in paragraph [ 118]
above.
[122] In its supplementary affidavit t he Applicant reiterated its position that the
Respondents’ right to occupy the premises terminated as a consequence
of (a) their retrenchment and (b) the sale of Winelands Textiles. The
Applicant further asserted that it granted an indulgence of 12 months to
the Respondents, as the owner of the property and not as their landlord,
before it terminated their right to occupy their houses. However, the
Applicant again failed to adduce evide nce with regard to the termination
of the main lease. The Court is left in the dark with regard to this
important aspect.
[123] As stated in Chetty , when an owner of immovable prope rty “goes beyond
alleging merely his ownership and the defendant being in posses sion” ,
and concedes that “a right to hold would have existed but for a
termination” , the owner must prove the termination.
[124] The Applicant, having conceded that the Respondents had an existing
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right by virtue of the sub -leases to occupy their houses, theref ore bore
the onus of alleging and proving that the sub -leases had been validly
terminated. The Applicant failed to discharge this onus. T he 1st, 10th, 13th,
16th and 20th Respo ndents were therefore lawful occupiers at the time
that the eviction proceedings were launched.
Whether it would be just and equitable to grant an eviction order
[125] The relationship between subsections 4(7) and (8 ) of PIE ,21 as explained
in City of Johannesburg v Changing Tides 74 ,22 is the focus of this
enquiry.
[126] As pointed out by Horn A J in Port Elizabeth Municipality v Peoples’
Dialogue on Land and Shelter and Others ,23 when a court has to
adjudicate upon an application for eviction under PIE, it is dealing w ith
two diametrically opposed fundamental interests. On the one hand there
is the traditional real right inherent in ownership reserving exclusive use
and protection of property by the landowner. On the other hand there is
the genuine despair of people in dire need of adequate accommodation.
21 “(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 j ust 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 h as been made available or can reasonably be made available by a municipality or other
organ of state or another landowner 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 d etermine –
(a) a just and equitable date on which the unlawful occupier mus t vacate the land under
the circumstances; and
(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).”
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It is therefore the duty of the Court to ap ply the requirements of PIE in
order to balance these opposing interests and bring out a decision that is
just and equitable. This requirement relates to both interests, that w hich is
just and equitable not only to the persons who occupy the land illegally ,
but to the landowner as well. The Court must therefore refrain from
applying a purely legalistic approach and have regard to extraneous
factors such as morality, fairness, social values and implications and
circumstances which would necessitate bringing out an equitable
principled judgment. Each case must be decided on its own facts.
[127] This approach was endorsed by SACHS J in Port Elizabeth
Municipality v Various Occupiers .24 It was held that PIE expressly
requires the Court to infuse elements of grace and compassion into the
formal structures of the law. The Court must balance competing interests
in a principled way and promote the constitutional vision of a caring
society based on good neighbourliness and shared concern. The spirit of
Ubuntu, part of the deep cultural heritage of the majority of the
population, suffuses the whole constitutional order.
[128] In City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Others ,25 it was emphasised that a court
must consider an “open list of factors” in the determination of what is just
and equitable in terms of section 4(7) of PIE.
22 2012 (6) SA 294 (SCA), par 25.
23 2000 (2) SA 1074 (SE CLD) at 1079.
24 2005 (1) SA 217 (CC) at 231B and 232B -D.
25 2012 (2) SA 104 (CC), at par 39.
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[129] The availability of alternative land for the relocation of the Respondents,
looms large in this matter. As is apparent from the reports filed by the
Munic ipality, which I refer to in paragraph [16 1] below, the Municipality ’s
position is that there is no medium or long term accommodation available
for the relocation of the Respon dents. There is, however, an emergency
option available on non -serviced land in an informal area with communal
services.
[130] In Changing Tides 74 ,26 the Supreme Court of Appeal provided
guidance in respect of the aspect of the availability of alternative
accommodation, in the context of an eviction at the instance of a private
landowner.27 The Court , at the outset , emphasized that the effect of PIE
is not to expropriate private property. PIE merely delays or suspends an
owner’s full right of ownership in respect of his land, until a determination
has been made whether an eviction would be j ust and equitable, and
under what conditions.
[131] The availability of alternative accommodation is but one of the factors to
be considered in the enquiry under section 4(7). It should not be elevated
to a precondition for an eviction order.28 This factor assume s greater
importance , however, in the second enquiry, namely what is a just and
equitable date for eviction.29 With regard to the first -mentioned aspect,
the Court stated –
26 Supra .
27 Supra , at par 16.
28 This principle was re -affirmed in Baron v Claytile 2017 ( 5) SA 329 (CC), at par 17.
29 Changing Tides , supra , at par 20.
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“The Constitutional Court has said that private entities are not obliged to
provid e free housing for other members of the community indefinitely, but
their rights of occupation may be restricted, and they can be expected to
submit to some delay in exercising, or some suspension of, their right to
possession of the property in order to a ccommodate the immediate needs
of the occupiers. That approach makes it difficult to see on what basis the
availability of alternative land or accommodation bears on the questi on
whether an eviction order should be granted, as opposed to the date of
evicti on and the conditions attaching to such an order.”
[132] With regard to the weight to be attached to the availability of alternative
accommodation as part of the section 4(7) enquiry, the Court stated –
“First it must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors. Under s 4(7) those factors
include the availability of alternative land or accommodation. The weight
to be attac hed to that factor must be assessed in the light of the property
owner’s protect ed rights under s 25 of the Constitution, and on the footing
that a limitation of those rights in favour of the occupiers will ordinarily be
limited in duration . Once the court decides that there is no defence to the
claim for eviction and that it would be just and equitable to grant an
eviction order, it is obliged to grant that order. Before doing so, however,
it must be consider ed what justice and equity demands in relation t o the
date of implementation of that order and it must consider what conditions
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must be attached to that order.” 30 (Emphasis provided.)
[133] I therefore approach the first enquiry on the basis that a limitation of the
Applicant’s rights of ownership in respect of the property, in order to
accommodate the Respondents’ constitutional right of access to
adequate housing, can only be of limited duration. There is no obligation
on the Applicant to continue providing free housing to the Respondents
indefinitely. It has already done so for a substantial period. A refusal to
order eviction because there is no alternative accommodation available to
the Respondents , would effectively amount to an unjust expropriation of
the Applicant’s property. Th is not the effect of PIE, which cannot be used
to expropriate a landowner indirectly.31 The landowner ret ains the
protection of section 25 of the Constitution, not to be arbitrarily deprived
of property.
[134] These principles were recently re -affirmed in Grobler v Phillips :32
“Who then bears the obligation to provide alternative accommodation?
Section 4(7) of PIE clearly states that such obligation lies with a
‘municipality, or organ of state or another land owner’. PIE was enacted
to prevent the arbitrary deprivation of property and is not designed to
allow for the expropriation of land from a private land owner from which
property the eviction is being sought. In Ndlovu the Supreme Court of
Appeal held that ‘(t)he effect of PIE is not to expropriate the land owner
30 At par 25. This summary of the nature of the first enquiry under section 4, was referred to
with approval in Occupiers, Berea v De Wet 2017 (5) SA 346 (CC), at par 44.
31 Ndlovu v Ncobo , Bekker and Another v Jika , supra , at par 17; Wormald NO and Others
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and cannot be used to expropriate someone indirectly and the land
owner retains the protection of [se ction] 25 of the Bill of Rights’. This
court, in Blue Moonlight , held that ‘a private owner has no obligation to
provide free housing’ and that ‘(u)nlawful’ occupation results in a
deprivation of property under [section] 25(1)’ of the Constitution. Section
26(2) of the Constitution guarantees the right to access to adequate
housing and places a positive obligation on the state to realise that right.”
[135] More than 4 years have lapse d since the sale of Winelands Textiles and
the retrenchment of those Respondents who were still employed by it in
2020 . Notwithstanding these events, the Applicant accommodated the
Respondents and delayed the termination of its consent in respect of their
continued occupation of the property, for one year, until August 2021. The
Appli cant’s subsequent attempt to sell the property to Durobrick , was
thwarted by the Respondents’ continued occupation of the property. The
Applicant alleges in the supplementary a ffidavit that for a period of 4
years it has not had the benefit of possession o f the property, not
received any rental income in respect thereof, and been unable to sell the
property or to demolish the existing buildings, as planned. Half of this
time was taken up by the Applicant’s successful appeal against the
judgment upholding th e Respondents’ point in limine ,33 which challenged
Robson’s authority to have instituted the eviction proceedings. In the
meantime it had to continue paying expenses such as sec urity costs and
v Kambule , supra, at par 15.
32 2023 (1) SA 321 (CC), at par 37.
33 As referred to in paragraph [21] above.
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municipal services. These allegations have not been challenged b y the
Respondents in their supplementary affidavits. In my view a further delay
or suspension of the Applicant’s rights of ownership can no longer be
justified, given the footing upon which I must consider this aspect, namely
that such delay or suspension will ordinarily be limited in duration.
[136] I now turn to the Respondents’ personal circumstances that are relevant
to the first enquiry, in addition to what I have already referr ed to in
paragraphs [70] to [8 7] above.
[137] The information with regard to the Resp ondents’ financial circumstances,
as set out in the answering affidavits and supplemented in their
supplementary affidavits, have been summarised in an annexure to the
Applicant’s heads of argument. I requested the Respondents’ attorney to
indicate to what extent the Respondents disagree with any information
recorded in this document. No error or disagreement was pointed out to
me.
The 2nd Respondent – Ursula Alica Apollis
[138] The 2nd Respondent’s husband is employed34 as a glass fitter and earns
an income of ap proximately R6 500,00 per month. The 2nd Respondent
has five children. The youngest two children are still minors. The
household receives a contribution of approximately R2 000,00 per month
from one of the children. All the 2nd Respondent’s children, some of them
with their partners, reside with the 2nd Respondent. The household’s
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monthly income is approximately R15 500,00 and th eir monthly
expenses amount to approximately R11 350,00. The 2nd Respondent
suffers from hypertension, and her husband has undiscl osed “back
issues” that detrimentally affects his ability to work.
The 3rd Respondent – Jacques Bezuidenhout
[139] The 3rd Respondent has been unable to obtain employment since his
retrenchment, and has been doing “odd jobs” to generate an income. His
household is supported by his wife, who has been employed, since June
2018, by Wine & Olive Tourism in Worcester. Her monthly net income
amounts to approximately R7 500,00. The couple’s monthly expenses
amount to approximately R6 000,00. The 3rd Respondent’s wife h as been
diagnosed with tuberculosis of the bone and joints . She also suffers from
an auto -immune disease known as systemic lupus erythematos.
The 4th Respondent – Hendrick Vos
[140] The 4th Respondent is currently employed as a mechanic and earns a net
income o f approximately R17 300,00 per month. The couple’s 19 year old
son live s with them. He is doing casual work to earn pocket money, and
does not contribute to the household expen ses. The household’s monthly
expenses amount to approximately R16 620,00. The 4th Respondent
suffers from hypertension, gout and diabetes, and his wife suffers from
34 By GH4 Graham Harvi.
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gout and hypertension.
The 6th Respondent – Francois de Wet
[141] The 6th Respondent is employed by the Municipality as a senior store
clerk, and earns a gross income of R9 366,80 per month .35 His wife,
aged 52, is unemployed. She was formerly employed by Winelands
Textiles, but retrenched in 2017, and has been unemployed ever since.
Their two major daughters, aged 28 and 21, reside with them, as well as
their youngest daughter, aged 13. The household’s monthly expenses
amount to approximately R10 500,00 (a surplus of R5 100,00) . The 6th
Respondent suffers from diabetes.
The 7th Respondent – Tonderai Jena
[142] The 7th Respondent resides with his three adult children in House 1 […].
The 7th Respondent’s youngest child is unemployed. His second child
works part time and earns approximately R5 000,00 per month, and his
eldest child is a student at the University of the Western Cape. The 7th
Respondent’s net income is approximately R7 000,00 per month. The
total net income of the household is therefore R12 000,00 per month, and
their monthly expenses amount to approximately R3 700,00 (a surplus of
R3 245,00).
The 8th Respondent – Gert Johannes Swart
35 In the answering affidavit this income was stated as R13 02 0,30. According to a pay slip
attached to the affidavit, the gross income wa s R18 018,29 and the net income was
R12 520,94.
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[143] The 8th Respondent is employed and earns app roximately R12 000,00
per month. The 8th Respondent and his family resides in House 1 […]. His
family comprises of his wife, their eldest son with his partner and their two
minor children. Another grandchild, the 8th Respondent’s second son’s
child aged 15, a lso resides with him. This child attends high school. The
couple’s third child lives and works in Hermanus, and earns
approximately R1 000,00 per month. The couple’s eldest son is
unemployed. His partner is employed as a contract worker at Rainbow
Chickens (since approximately December 2022) and earns approximately
R1 700,00 per week. The household’s monthly income is approximately
R18 800,00 , and the expenses approximately R12 500,00 (a surplus of
R6 300,00). The 8th Respondent is unhealthy. He suffers fro m diabetes,
oedema, cellulitis, venous ulcers, mild psoriasis and cholesterol.
The 9th Respondent – Johanna Madelaene Mina Steven
[144] The 9th Respondent , who is unemployed, resides in her house together
with her two adult daughters and their five minor childre n. The 9th
Respondent’s daughters are 39 and 33 years old respectively. The former
is unemployed. The latter is employed at Pool Transport36 and earns
approximately R5 500,00 pe r month. She is the family’s sole provider.
The income is supplemented by the SA SSA grants for the minor children,
in a total amount of R4 450,00 per month. The household’s monthly
income is approximately R9 950,00 and their expenses approximately
R6 350,00 (a surplus, including SASSA grants, of R3 600,00) . The 9th
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Respondent suffers from the following chronic medical conditions –
osteoarthritis, type 2 diabetes, asthma, hypertension and cholesterol.
The 12th Respondent – Jacques Brian Sawall
[145] The 12th Respo ndent and his wife , aged 69, are both pensioners. They
receive a combined monthl y pension of R4 360,00. They have two adult
children who do not reside with them. They are raising and caring for one
grandchild, aged 17, who lives with them. His mother contributes
R2 000,00 per month to the household’s expenses. The couple’s monthly
expenses amount to approximately R5 200,00 (a surplus of R1 160,00) .
The 12th Respondent is a diabetic who has also been diagnosed with
hypertension and cholesterol.
The 17th Resp ondent – Hillary Chaimirira
[146] The 17th Respondent is a self -employed casual worker and earns
approximately R4 000,00 per month. The 17th Respondent has no
dependents. His two cousins reside with him in his house. They are both
domestic workers, and earn R1 000,00 and R4 000,00 per month
respectively. The household expenses amount to app roximately
R6 800,00 per month (a surplus of R2 200,00).
The 18th Respondent – Rosemary Chimbani
[147] Both the 18th Respondent and her husband are employed. She is a
domestic worke r and earns R4 500,00 per month, and her husband is
36 Where is doing her “practical” for her studies in computer information.
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employed as a delivery drive r who earns approximately R4 500,00 per
month.37 The couple has a 4 year old daughter who resides with them.
The 18th Respondent’s brother, aged 27, also resides with them. He is
employed as a general worker for a construction company and earns
approximate ly R4 000,00 per month. The 18th Respondent’s 42 year old
sister , who is unemployed, and her 16 year old daughter also reside with
them. The joint household income is R13 000,0 0 per month, and the
expenses approximately R 6 850,00 (a surplus of R6 150,00).
The 23rd Respondent – Damian Hattingh
[148] The 23rd Respondent resides in House 1 […], Hextex Estate, together with
his wife , aged 27, and their two minor daughters, aged 4 years and 8
months respectively. The 23rd Respondent is employed as an internal
auditor at Agrimark Operations and he earns a net monthly income of
R21 000,00. His wife is employed as a general worker at Rainbow
Chickens and earns R7 500,00 per month. Their monthly e xpenses
amount to approximately R16 500,00 per month (a surplus of
R11 950,00) .
The Respondents who did not oppose the application
[149] The Municipality stated in all three municipal reports that it has been
unsuccessful to obtain any information from the 4th, 15th, 22nd and 24th
Respondents with regard to their personal circumstances, de spite several
attempts to obtain such information from them.
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[150] The 5th, 19th, 21st and 25th Respondents provided the following
information with regard to their personal circumsta nces, to the
Municipality:
[150.1] The 5th Respondent occupies House 3 […]. His household
consists of five adults, one of which is a pensioner, and two minor
children. The household income amounts to approximately
R26 000,00 per month.
[150.2] The 19th Respondent occupies House […]. Her household
consists of two adults, one of which is a pensioner, and t hree
minor children. The household income amounts to approximately
R11 900,00 per month.
[150.3] The 21st Respondent occupies House 1 […]. His household
consists of three adults, one of which is a pensioner, and two
minor children. The household income amounts to ap proximately
R13 000,00 per month.
[150.4] The 25th Respondent occupies House 2 […]. His household
consists of three adults and three minor children. The household
income amounts to approximately R16 700,00 per month.
Other r elevant circumstances
[151] The Respondents occu py houses that served as accommodation for
employees of the factory previously operated by Winelands Textiles. Most
37 The employer was referred to as “Mr D”, and no further details were disclosed.
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of the Respondents, irrespective of whether they initially t ook up
residenc y in their houses in terms of a written or verbal lease, concede
that this was a benefit of their employment. This concession does not
apply to the 2nd Respondent , who was not employed by Winelands
Textiles . The 4th Respondent’s wife, and deponent to his answering
affidavit, resigned in 2019. The 6th Respondent also resigned in 2019.
The 7th Respondent did not explain on what basis he occupied “the
clubhouse” , or moved to another unit in 2021. The 8th Respondent’s
employment was terminated in 2015. The 9th Respondent was retrenched
in 2017. The 12th Respondent retired in 2019. The employer/employee
relationship, which underpinned these Respondents’ right to occupy their
houses, had come to an end long before the sale of Winelands Textiles
and the retrenchment of the other Respondents in 2020.38 This does not
apply to the 3rd Respondent who, on his own version, was not entitled to
remain in occupation of his house after his retrenchment. The 17th, 18th
and 23rd Respondents were not employed by Wi nelands Textiles. They
have no right to occupy their houses in their personal ca pacities.
[152] The Respondents are not people who cannot fend for themselves. Their
ages vary between 48 and 60, except for the 12th Respondent who is 69
years old. The 9th Respondent is unemployed and the 12th Respondent is
a pensioner. A ll the other Responde nts are gainfully employed . I have
already alluded to the committee which they established in June 2020,
led by the 8th and 12th Respondents, with a view to setting up a fund t o
38 Except for the 3rd Respondent who, on his own vers ion, was not entitled to continue
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repair “breakages” at the houses. They also established a
neighbourhood watch and liaised with the South African Police Services
to obtain formal approval thereof. When overhead cables were damaged
during a storm in June 2021, they repaired the damage themselves, by
employing the services of a private contractor. Each household
contributed an amount of R2 340,00 to the costs of the repair work. In
September 2021 two garages and a clubhouse were demolished. The
Respondents mobilised themselves and made enq uiries at the
Municipality as well as the Heritage Western Cape Offices in Cape Town ,
whether the demolition work was lawful.
[153] The Respondents must have realised that the events that occurred in
2020 would have jeopardised their continued occupation of the houses.
Yet they seemingly did not make much effort to find alternative
accommod ation.
[154] With regard to the availability of alternative accommodation, t he 1st
Respondent relied on the following assertions in her second answering
affidavit:
“105. I aver that an abundance of rental properties does not translate to
an abundance of suitabl e and affordable accommodation.
106. The majority of the rentals in the area, that remain close to my
children’s school and place of employment, are in the general amount of
R3 500,00 upwards (for a one bedroom house) and R9 000,00 (for a two
occupying his house after his retrenchment.
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bedroom fla t), as opposed to my erstwhile rental of R1 100,00 per
month for my three bedroom house. Annexed hereto as ‘A2’ is a copy of
the available rentals in Worcester as per Gumtree a nd Property24 on 7
June 2022.
107. I aver thus that if there are rental propert ies available , they are
unaffordable for my family and I at this juncture.” (My emphasis.)
[155] The answering affidavits of the 2nd, 4th, 6th, 7th, 8th, 9th, 10th and 12th
Respondents contain paragraphs with exactly the same allegations . This
was evidently as a consequence of a “copy and paste” exercise . Be that
as it may, n one of the Respondents put up any evidence of what efforts
were made by them since July 2021, when they receiv ed the notice of
termination . The 3rd Respondent filed a relatively short answer ing
affidavit. His affidavit does not contain the aforesaid allegations .
However, he also adduced no evidence of what efforts he made , if any, to
find alternative affordable accommodation.
[156] The represented Respondents filed supplementary affidavits pursuant to
the court order, as referred to in paragraph [24] above. In these affidavits,
the Respondents again failed to put up any evidence of this nature . This
is unsatisfactory . An unlawful occupier in an eviction application under
PIE should place the necessa ry information in this regard before the
Court , as a relevant consideration .39
39 See Patel NO and Others v Mayekiso and Others , unreported WCC case number
3680/16, delivered on 23 September 2016.
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[157] In June 2022 the Applicant’s attorney contacted the Respondents’
attorney in order to discuss the matter . The Applicant’s attorney enquired
from his counterpart , inter alia , “whether the settlement of these
proceedings is possible” . The Respondents’ attorney indicated that he
would take up the matter with his clients and revert, which never
happened. The Applicant adduced this evidence in the replying affidavit.
The Respondents f ailed to engage with this evidence in their
supplementary affidavits.
[158] On 2 December 2022 the Applicant made a “with prejudice” offer to the
Respondents to assist them in finding alternative accommodation. The
offer comprised, inter alia , that (a) the Resp ondents should vacate the
property on or before 30 April 2023, (b) the Respondents would not be
held liable for “any rental or utilities” until they would have vacated the
property, (c) the Applicant would pay an amount of R10 000,00 to each
household, and (d) the Applicant would pay the Respondents’ costs on a
party and party scale up to and until 4 November 2022 when the
application was heard . All the Respondents received this offer. It was
open for acceptance until 13 January 2023. The Respondents reject ed
the offer, made no counter -proposal and failed to tender rental, or to
make a contribution to the municipal services account.
[159] It is regrettable that this offer did not resu lt in further negotiations between
the parties in an attempt to resolve the impa sse. It would perhaps have
been prudent of the Applicant to have taken the initiative in this regard at
a much earlier stage . Instead, t he Applicant attempt ed to cancel the sub -
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leases, with no apparent consideration for the fact that the sub -lessor
was a d ifferent legal entity, albeit a subsidiary jointly owned by Deneb
and the Applicant . However, this does not detract from the essence of the
matter, namely the continued de fact o expropriation of the Applicant’s
property , as a consequence of the Respondents ’ continued occupation
thereof.
[160] I therefore consider that it would be just and equitable not to further allow
the interests of the Respondents to prevail over those of the Applicant. As
stated in Changing Tides , supra ,40 where a private owner of a propert y
seeks the eviction of unlawful occupiers and demonstrates a need for
possession of the land , and there is no valid defence to that claim, it will
be just and equitable to gran t an eviction order. This is consistent with the
jurisprudence that has develope d around this topic.
The municipal reports
[161] In the course of the litigation, the Municipality filed two reports in respect
of the availability of alternative accommodation for the Respondents, in
the event of an eviction order being granted. The first repor t41 was filed on
26 August 2022, and the second report42 was filed on 31 July 2024.
Notwithstanding the fact that the second report was filed almost 2 years
after the first repor t, the content thereof, in relation to the availability of
alternative accommoda tion, was for all intents and purposes the same.
40 At par 19.
41 Dated 25 August 2022.
42 Dated 30 July 2024.
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Accordingly, when the matter was heard on 15 November 2024, I made
an order that the Municipality should file a supplementary housing report
on or before 15 January 2025, and that the parties may file
supple mentary written submissions and/or supplementary affidavits in
response thereto. On 15 January 2025 the Municipality filed a third
report.43
[162] In all three reports the Municipal ity addressed the availability of
alternative accommodation in two categories, n amely “Emergency
Options” and “Medium to Long Term Options” . The medium to long term
options are the following: (a) accommodation in informal areas on
serviced sites; (b) individual housing subsidy to purchase a house; and
(c) provision of housing based on the equitable allocation of houses from
the waiting list. The se option s arise from two housing projects that the
Municipality has implemented , known as New Mandela and Transhe x.
The first project only focusses on the current occupiers on serviced plots,
and in respect of the second project only 190 houses have been
completed and handed over to the beneficiaries . However, no building
contractor has as yet been appointed for the next stage, phase 2 of the
project . In any event, i n order to receive assistance in the Transhex
project, an applicant must qualify for a housing subsidy, the “Project Link
Subsidy” . The Municipality alleges that applications for this subsidy “is
currently closed” . The Municipality also owns and manages
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approximately 2 400 rental unit s, which are all currently occupied. Units
that become available are allocated on a first come, first serve basis from
a waiting list in terms of the Municipality’s housing policy . The outstanding
waiting list has 5 896 applicants. The Municipality’s posit ion is that it is
unable to assist the Respondents with any of the options in the “medium
to long term” category.
[163] The emergency options are the following: (a) accommodation on non-
serviced land in informal areas with communal services; (b) possible
accomm odation in rental units based on availability at the time that an
eviction order may be granted; and (c) accommodating evicted
Respondents temporarily in community halls.
[164] With regard to the first emergency option, the following information is
provided:
“The Municipality has an informal housing area in De Doorns East
(Stofland); unfortunately , in this area there are no vacant plots and the
remaining plots are earmarked for devel opment. The households do not
have access to direct municipal services and use c ommunal ablution
facilities and water points. A significant part of the area has no electricity.
Some parts of the area only have access to street lighting through the
provision of high mast lights. If a household is evicted and relocated to
the area, the Municipality will only be able to provide the communal
ablution and water points. All parts of the area that has electricity, are
43 Dated 14 January 2025.
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occupied and the Municipality will not be able to provide electricity to the
area soon. The household will, if ordered to move to this area, be living in
makeshift structures of corrugated iron or wood in less than 30 square
metres accommodation. The family will be provided by the Municipality
with emergency housing kits which consist of 4 x 76mm x 2,7m poles, 1 x
3m x 15m Plastic (250 microns), 1 x 500g 75mm nails, 1 x 500g 50mm
nails 1 x 500g 100mm clout nails and 5 x 610 x 3,1m galvanised roof
sheets. Alternatively, or in addition to the emergency k it, they can add
their own material to construct the structures, however no perm anent
dwellings are allowed on the land.”
[165] According to the housing report, the third emergency option, i.e.
accommodating families temporarily in community halls, is an exceptional
and very temporary option which the Municipality employed in cases of
disasters or other life -threatening situations. In such event people are
housed only for a few days until accommodation in the informal area are
constructed or repaired.
[166] Notwithsta nding the second emergency option described above, the
report concludes as follo ws:
“The only area where we will be able to provide a plot is in the Rohlihlahla
informal settlement area in Avian Park, Worcester, hence this area is
known for gangsterism and all sorts of social ailments . All parts of the
area that has electricity, are o ccupied and the Municipality will not be able
to provide electricity to the area soon.” (Emphasis provided.)
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[167] This is unacceptable . Given the personal circumstances of the
Respondents, it is difficult to fathom how the Municipality can regard this
area a s suitable emergency housing. Moreover, n o reasons have been
advanced by the Municipality as to why the development of the
“remaining plots” in the De Doorns East (Stofland) informal housing area,
cannot be suspended in order to provide emergency housing f or the
Respondents .
[168] The Applicant and the represented Respondents both filed
supplementary heads of argument, in response to the third municipal
report. In their heads of argu ment, the Respondents strongly criticised
several aspects of the report, and con tended that the Municipality has not
complied with its constitutional duties to provide acceptable alternative
accommodation to the Respondents. However, not to grant an eviction
order because of this breach by the Municipality of its constitutional
obliga tions towards the Respondents, would result in the further de facto
expropriation of the Applicant’s property. In Baron v Claytile ,44 the
Constitutional Court emphasised that a constitutional duty rests on an
organ of state where occupiers are legally evict ed and rendered
homeless, to provide suitable alternative accommodation. It cannot
escape this obligation by simply submitting reports indicating that there is
no suitable alternative accommodation available.
44 2017 (5) SA 329 (CC), par 46.
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[169] I have great empathy for the plight of the Res pondents. Most of them
are of an advanced age, and many of their households include minor
children. Many of the Respondents suffer from serious health issues. I
have given care ful consideration to their personal circumstances set out
in the answering and s upplementary affidavits. It is safe to assume that
the emergency housing presently offered by the Municipality at the
Rohlihla informal settlement area , as referred to in paragraph [16 6]
above, is the last place that they would wish to be relocated to.
Irrespective of this consideration, it would be very difficult for most of the
Respondents to be uprooted from Hextex Estate and relocated to
alternative accommodation. On the oth er hand, they have known for more
than 4 years that the Court may eventually evi ct them. The Respondents
could not simply have assumed that this would never happen. I also
appreciate that the Applicant has reached the end of its tether, with
regard to the Respondents’ continued unlawful occupation of the
property. However, it has not demonstrated a specific urgent need for an
eviction order.
[170] In the light of these circumstances, and in order to afford the Municipality
more time to comply with the constitutio nal obligations it owed to the
Respondents, I consider a period of 6 months to v acate the property to be
just and equitable .
[171] The application was unsuccessful in respect of the Respondents who
were retrenched in July 202 0. However, the fact that these Respondents
have enjoyed free accommodation on the Applicant’s property, at the
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Appli cant’s expense, for more than 4 years, justify a departure from the
general rule that costs should follow the event. In respect of these
Respondents, the parties should pay the ir own costs .
[172] With regard to the costs of those Respondents who unsuccessful ly
oppose d the application for their eviction, they should not be mulcted in
costs, notwithstanding the fact that they have enjoyed free housing at the
expense of the Applicant for many years. In fairness to both sides, these
Respondents should rather be perm itted to utilise their surplus income for
their relocation to other accommodation.
[173] In the result, I make the following order:
1. The 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 12th, 17th, 18th and 23rd Respondents,
as well as the Respondents who have not opposed the application,
namely the 5th, 11th, 14th, 15th, 19th, 21st, 22nd, 24th and 25th
Respondents as well as all persons holding under them (hereinafter
collectively referred to as “the Occupiers” ), are evicted from Erf 8980,
Worcester.
2. The Occupiers are ordere d to vacate Erf 8980, Worcester, by no later
than Friday, 12 September 2025 , failing which the eviction order may
be carried out .
3. In the event that the relief as set out in pa ragraphs 1 and 2 above
should render the Occupiers homeless and should they appl y and
qualify for emergency housing assistance, the 27th Respondent is
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ordered and directed to assist the Occupiers with emergency
housing, in terms of its emergency housing programme.
4. The parties shall pay the ir own costs.
____________________
VIVIER, A J
APPEARANCES
For the Applicant: Adv S Bosch
Instructed by : Steyn Attorneys Inc
For the Respondents : Att Mr G Langenhoven
Instructed by: Langenhoven Attorneys Inc