1
IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO: LCC 151/2022
Before the Honourable Flatela J
Date of hearing: 15 November 2024
Date of judgment: 6 January 2025
In the matter between:
BOPLAAS 1743 LANDGOED (PTY) LTD Applicant
and
SOPHIA JULIES First Respondent
WILLEM SMITH Second Respondent
JACQUELINE RUDOLPH Third Respondent
DARREL RUDOLPH Fourth Respondent
BIANCA DE VRIES Fifth Respondent
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
6 January 2025 ..............................................
DATE SIGNATURE
2
RADIWA PARKER Sixth Respondent
SHAIDA JULIES Seventh Respondent
GRANVILLE MALGAS Eighth Respondent
ALL OTHER PERSONS RESIDING WITH OR
UNDER THE FIRST TO EIGHTH RESPONDENTS
IN THE PREMISES ON DU CAP FARM, PAARL Ninth Respondent
DRAKENSTEIN MUNICIPALITY Tenth Respondent
DEPARTMENT OF AGRICULTURE, LAND REFORM AND
RURAL DEVELOPMENT Eleventh Respondent
ORDER
___________________________________________________________________
The following order is made:
1. The Application for leave to appeal is dismissed.
2. There is no order as to costs.
JUDGMENT ON LEAVE TO APPEAL
FLATELA J
Introduction
[1] This is an opposed application for leave to appeal to the Supreme Court of
Appeal or to the Full Bench of the Land Court of South Africa against the whole
judgment and order handed down on 26 July 2024 . On 26 July 2024, I dismissed the
Applicant’s application for the eviction of the Respondent s from its property on the basis
that there were disputes of facts that were foreseeable and that could not be resolved
on paper. I rendered no decision on merits.
3
Brief Background
[2] The genesis of this application is comprehensively outlined in the judgment. I
do not intend to repeat it in this application.
[3] The Applicant brought eviction proceedings against the Respondents on the
basis that they committed a breach as contemplated in Section 10 (1) ( a), (b) or ( c) of
Extension of Security of Tenure Act 62 of 1997 (ESTA) . At the time of the eviction
application, the First Respondent, who had acquired the status of being a long -term
occupier in terms of Section 8(4)1 of (ESTA), was residing with seven members of her
household in a one -room cottage on the farm with an extended room made of wooden
pallets and plastic.
[4] The Respondents were ordered to relocate from a three -bedroom house by a
court order dated 19 October 2021, issued by Magistrate Paarl. The First Respondents
were required to move by 8 November 2021; if they failed to do so, the Sheriff was
authorized to carry out the relocation by November 15, 2021. Since the Respondents
did not relocate by 8 November , the Sheriff proceeded with the relocation on 15
November 2021.
[5] Because of the small size of the house , which the Applicant acknowledged
could accommodate only one or two individuals, a makeshift structure made of plastic
and pallets was built. This was done to provide a sleeping area for one of the First
Respondent's granddaughters.
[6] On 15 December 2021, the Applicant gave the First Respondent, in her
capacity as the head of the household and the only person in the household with direct
connection with the Applicant ”, a notice of material breach which addressed the
1 8. Termination of right of right of residence.
(4) The right of residence of an occupier who has resided on the land in question or any other land belonging to
the owner for 10 years and –
(a) has reached the age of 60 years; or
(b) is an employee or former employee of the owner or person in charge, and as a result of ill health, injury
or disability is unable to supply labour to the owner or person in charge,
may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) ( a), (b) or ( c):
Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute
such a breach.
4
following breaches :
i. The request for the removal of illegal and unlawful structures
erected on the farm and any unlawful additional occupiers at the
promises.
ii. The request for the removal of the First Respondent's property
from the Applicant's storage space.
[7] The First Respondent was requested to ensure that the unauthorized and
unlawful structures are removed within 5 (five) days of receipt of the notice and that the
individuals residing therein relocate from the farm within 5 days of receipt hereof if they
are not permitted to reside.
[8] The notice concluded by stating that “ If you refuse to comply with the requests
set forth therein, our client will be forced to terminate your, Mrs. Sophia, Julies, and all
other persons who occupy the dwelling with or under you, right of residence, after which
you will be required to vacate t he dwelling on the farm.
[9] The Applicant argued that the Respondents did not comply with the written
notice to remove the illegal structure and that any unlawful occupiers should vacate the
farm. Additionally, the Applicant indicated that during the relocation process, they had
agreed to cover the costs of temporarily storing some of the First Respondent's excess
belongings until she could find alternative accommodation for them. T he Applicant
contended that the First Respondent violated the essential terms of their agreement by
not securing alternative storage for her belongings off the farm. Furthermore, the
Applicant provided the First Respondent with a notice to remove her belon gings from
storage by 14 January 2022. Still, the First Respondent did not comply, which the
Applicant considered a significant breach of their trust relationship. In response, the
First Respondent disputed the existence of any agreement regarding the stor age of her
belongings.
[10] The Applicant listed other material breaches as failure to remove all negative
comments against the Applicant on social media, failure to engage in the said conduct,
5
organizing and participating in an illegal protest and false allegations to the Cape
Winelands District Municipality and Human Rights Commission that they were evicted
from previous premises not relocated.
[11] These allegations were disputed by the First Respondent, who deposed to an
answering affidavit and supplementary answering affidavit opposing the Application on
behalf of all the Respondents.
Grounds of Appeal
[12] The Applicant’s main submission is that the court a quo failed to have any regard
to the common cause facts as listed in the statement of agreed facts and facts in dispute
dated 12 April 2024.
[13] The following are the common cause facts:
1.1. that opportunities were provided to the respondents to remedy their breaches and
to make representations before their right to residence was terminated, and failed
to react to the opportunities provided positively:
1.2. a strike/protest took place at the Applicant’s farm:
1.3. the First Respondent spoke with the media at the premises on the day that the
protest erupted:
1.4. the comments placed on social media by members of the household in reaction
to the Applicant’s offer to provide alternative accommodation and the execution
of the relocation order:
1.5. the remedial action taken by the Applicant to respond to various media houses
and complaints lodged at the Cape Winelands District Municipality occasioned by
the comments placed on social media and the protest:
6
1.6. structures were erected at the premises without the Applicant’s consent:
1.7. respondents operated the spaza shop from the premises until after the eviction
application was instituted and after the demand to cease the operation thereof
1.8. the Fourth Respondent broke into the Applicant’s packhouse, as well as the farm
property, before and after these proceedings were instituted, and the criminal
charges were laid against him for breaking an entry and stealing from the
Applicant and other law ful occupiers residing on the farm;
1.9. the temporary storage space provided to the respondents is still to be vacated;
1.10. the authenticity of the documentary proof attached to the founding affidavit;
1.11. the Applicant terminated the respondents’ consent to reside on the farm.
[14] The Applicant contends that the court a quo misdirected itself in the application
of the well -established Plascon -Evans principles in finding that there were disputes of fact,
as stated in paragraph 81 (a) to (f) of the judgment, and that these disputes of fact amount
to bona fide and material disputes, which cannot be considered far-fetched or untenable
or rejected on the papers.
[15] The Applicant further submitted that the court a quo failed to consider at all,
alternatively failed to place sufficient weight on, the extensive common cause facts, as
listed in the parties’ joint Statement of agreed facts and facts in dispute dated 12 April
2024. These common cause facts were not properly considered against the principles set
out in the Plascon -Evans -case and the matter of National Director of Public Prosecutions
v Zuma [2009] 2 All SA 243 (SCA) at paragraph 26 where it is found that motion
proceedings are all about the resolution of legal issues based on common cause facts.
Principles governing applications for leave to appeal.
[16] The principles governing whether leave to appeal should be granted are well
7
established, but I summarise them for convenience;
[17] An application for leave to appeal is regulated by section 17(1) of the Superior
Courts Act 10 of 2013 (Superior Courts Act), which provides:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that –
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2) (a); and
(c) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues between
the parties .’
[18] Section 17(1)(a) of the Superior Courts Act states that leave to appeal may only
be granted where a Judge or Judges are of the opinion that the appeal would have a
reasonable prospect of success and if there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter under
consideration.
[19] In The Mont Chevaux Trust v Tina Goosen & 18 Others2, Bertelsmann J held
as follows:
‘It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new act. The former test of whether leave to appeal should
be granted was a reasonable prospect that another Court might come to a differe nt
conclusion. See Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 342H.
The use of the word "would" in the new statutes indicates a measure of certainty that
another Court will differ from the Court whose Judgment is sought to be appealed
against .’3
2 The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2335 (LCC).
3 Ibid para 6.
8
Discussion
[20] It was contended on behalf of the Applicant that the court a quo should have
determined the matter based on the common factors outlined in the joint statement of
agreed facts and disputed elements submitted by the parties. The matter was
determined based on the common factors outlined in the joint statement of agreed facts
and disputed elements submitt ed by the parties. While there were common facts,
several disputes arose from the affidavits presented , these were genuine disputes of
fact. Neither party req uested that the matter be referred for the hearing of oral evidence
or trial , therefore, I decided the matter on the basis of the papers before me.
[21] It is trite law that where in application proceedings there are disputes of fact
that cannot be decided without the hearing of oral evidence, the court has a discretion
to either (i) dismiss the application or (ii) order that oral evidence be heard in ter ms of
the rules or; (iii) order referral of the matter to trial.
[22] These being motion proceedings, the application fell to be decided in
accordance with the principle laid down in Plascon -Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd 4 . In terms of that principle, an Applicant who seeks final relief in motion
proceedings must, in the event of a dispute of fact, accept the version set up by his or
her opponent unless the latter’s allegations are, in the opinion of the court, not such as
to raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly
untenable that the court is justified in rejecting them merely on the papers.5
[23] The Respondents had filed two sets of answering affidavits , in both sets the
Respondents raised real dispute facts on the following:
a. Unauthorized and unlawful occupiers . The Applicant contended that
there was no agreement between the Applicant and the First
Respondent granting permission to the Second up to the Ninth
Respondent s a right to reside on the farm. Therefore, they are unlawful
4 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51 ; 1984] 2 All SA
366 (A); 1984 (3) SA 623 (A) at 634E -635C.
5 Wightman t/a JW Construction v Headfour and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA);
[2008] 2 All SA 512 (SCA) para 12.
9
and unauthorized occupiers. The First Respondent disputed that
contention and stated that the Second to Ninth Respondents were
occupiers in terms of Sections 3(4) and (5) of ESTA.
b. Erecting an unlawful structure: The Applicant contends that the First
Respondent erected an unlawful structure without the Applicant’s
consent. It is common cause that the Applicant purchased the Farm from
Changing Tides with the First Respondent and the Second up to the
Ninth Respondent s, who were established households on the Farm. In
its version, the Applicant states that the one -bedroom house that the
Respondents were relocated to is only suitable for catering to one or two
individual ’s needs. It also acknowledged that the First Respondent was
a protected occupier in terms of section 8(4) of ESTA, whereas the
Second to the Ninth Respondents resided openly . Additionally, in its
relocation application, it relocated the entire household, not the First
Respondent. The First Respondent conce des that a makeshift structure
was constructed to make space for the Fifth Respondent to sleep. Other
occupants had to vacate, whereas the Fifth Respondent, her
granddaughter Bianca de Vries, had to erect a makeshift structure
adjacent to the dwelling as she had nowhere to sleep in the house; they
were already a family of seven.
c. The structure is a makeshift tent made of plastic and wooden pallets.
From the exhibits of the Applicant in support of this application, one
immediately sees that the said structure would barely withstand light
rain, let alone a windy storm. The roofing, b eing none, looks like that of
an open tent. The Respondent s argued that the structure was
constructed out of human necessity, considering seven Respondents in
a one -room dwelling.
[24] In the notice of breach dated 15 December 2021, the Applicant’s complaint
against the First Respondent was that she enabled or assisted unauthorized persons
in establishing new dwellings on the land. The Applicant contends that post -relocation,
she allowed unlawful and unauthorized persons to reside with her in the allocated
dwelling and construct an unlawful structure. The First Respondent was informed that
10
the unauthorized persons, being the Second to the Ninth Respondents, should vacate
the Farm within (5) days if the Applicant did not permit them to reside in the dwelling
with him. The First Respondent disputed that the second to the Ninth Respondents were
unauthorized, unlawful occupiers
[25] The First Respondent’s failure to remove her belongings from the storage
unit. In its version, the Applicant admits that on the day of the execution of the relocation
order, it agreed to temporarily store what it refers to as the First Respondent’s
“superfluous belongings” until such time the First Respondent can find an alternative
storage facility/location to keep her belongings. The First Respondent disputed that the
storage facility was a temporary arrangement. She was an occupier in terms of section
8(4) of ESTA at the time of relocation.
[26] False social media allegations post relocation (i): The Applicant asserts that
the First Respondent engaged in a concerted defamatory campaign with the sole
purpose of tarnishing their reputation and casting a dark light upon their business
allegations. The purportedly false allegation was about circumstanc es leading up to the
relocation application and execution. These comments culminated in triggering an
unlawful protest that erupted on 4 of March 2022, allegedly inside the Applicant’s
premises. The First Respondent denied engaging in any defamatory campaign against
the Applicant to anyone on any platform but conceded to her daughter, the Seventh
Respondent, being the one engaging on social medi a, she responded to the questions
asked about their relocation.
[27] Protest action: Organizing and allowing an unlawful protest to unfold by illegal
protestors on their premises without their consent. It is common cause that the protest
was organized by Ms. Wendy Pekeur from Ubuntu Rural Women and Youth Movement
together with Ms. Jo -Anne Johannes from Women on Farms Project; they both filed
affidavits confirming the same. The First Respondent denies having had any prior
knowledge about the protest action. In their reply, the Applicants repeat the allegation
without proof.
[28] Granting protestors access to the Applicant’s property: The First
Respondent vehemently denies this allegation. She never gave any entry or access
11
code to enter the Farm during the protest. The First Respondent states that on the day
of the protest, she was approached by Ms. Wendy Pekeur from Ubuntu Rural Women
and Youth Movement together with Ms. Jo -Anne Johannes from Women on Farms
Project to ask h er to talk about her side of the story of the relocation. She did not
partake in the protest.
[29] Making False allegation to the media during the protest (ii – during protest
action): Applicant alleges that the First Respondent made calculatedly alleged and
malicious allegations to the media about the Applicant, one being that she is
discriminated against because of her deceased husband. She denies this statement but
confirms talking to the media person who accompanied Ms. Pekeur and Ms. Johannes
and answered their questions about the situation of her living circumstances with the
sole purpose of tarnis hing and ruining its reputation and good name.
[30] On the Applicant’s version, the protest was arranged by Ms. Wendy Pekeur
from Ubuntu Rural Women and Youth Movement together with Ms. Jo -Anne Johannes
from Women on Farms Project Women on Farm Project. On the day of the protest, the
Applicant addressed a c ease and desist letter to Ms. Johannes and Pekeur, not the
Respondents, via the Sheriff of the Court at the best of its instruction to its Attorneys.
[31] The submission by the Applicant is meritless, and it is rejected.
[32] The Applicant submitted further that the court a quo misdirected itself in failing to
engage with the above common cause facts against the question of whether or not there
was a fundamental breach of the trust relationship, which cannot be restored, and as such,
failed to consider the legal principles prono unced in the judgments of Nimble Investments
(Pty) Ltd v Johanna Malan and Others [2021] 4 All SA 672 (SCA), Ovenstone Farms (Pty)
Ltd v Persent and Another [2002] ZALCC 31, Klaase and Another v Van Der M erwe and Others
2016 (6) SA 131 (CC), Goosen v The Mont Chevaux Trust (148/2015) [2017] ZASCA 89 (6
June 2017) and Isedor Skog N.O. & Others v Koos Agullus & Others [2023] 2 All SA 631 (SCA).
[33] I did not decide on the merits, the matter was dismissed on the basis that the
Respondents had raised genuine disputes of facts that could not be resolved on paper.
[34] I have considered the grounds upon which the application was brought and the
submissions made by counsel for the granting of leave to appeal on the part of the
12
Applicant and those of the counsel on behalf of the Respondents. I am not confident
that another court will come to a different conclusion or that there is some other
compelling reason why leave to appeal should be granted.
[35] As a result, I make the following order:
1. The Application for leave to appeal is dismissed.
2. There is no order as to costs.
________________________
Flatela L
Judge of the Land Court
Date of Hearing: 15 November 2024
Date of Judgment: 6 January 2025
Counsel for Applicant: Ms. Bronwynne Brown
Instructed by Otto Theron Attorneys
Attorneys for Respondents Ms. Fiona Bester
Instructed by: Chennels Albertyn Attorneys