SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case no: 2342/2024
In the matter between:
FREE STATE DEVELOPMENT CORPORATION Applicant
and
TELGOBRITE (PTY) LTD 1st Respondent
ALL UNLAWFUL OCCUPIERS of Erf 8[...],
Bloemfontein, District Bloemfontein,
State Province, better known as 1[...] R[...]
Street, Universitas, Bloemfontein 2nd Respondent
MANGAUNG METROPOLITAN MUNICIPALITY 3rd Respondent
Coram: Opperman J
Heard : 5 December 2024
Delivered : 26 May 2025. This judgment was handed down electronically by
circulation to the parties’ representatives by email and released to SAFLII. The date
and time for hand down is deemed to be 2 6 May 2025 at 15h00.
Summary: Eviction – commercial and residential e viction – Plascon Evans - dictum
__________________________________________________________ ____ __
ORDER
___________________________________________________________ _____
1. The first and second respondents claiming occupation of the property Erf 8[...]
Bloemfontein, District Bloemfontein, Free State Province, better known as 1[...] R[...]
Street, Universitas, Bloemfontein, Free State Province which is held under title deed
number T4 482/1966 (the property) , are declared as unlawful occupiers of the
property.
2. The first and second respondents are ordered to vacate the property within
thirty (30) days of service of this court order.
3. The first and second respondents are ordered to remove all their property,
equipment, buildings, or structures from the property described in para 1 above not
later than the date referred to in para 2 above.
4. In the event of the first and second respondent s’ refusal and/or failure to
vacate the property as ordered in para 2 above, the Sheriff of the above Honourable
Court is authorised and directed:
4.1 To evict and/or cause to evict from the property the first and second
respondents;
4.2 to take all steps and to do all things necessary to carry out the
abovementioned eviction order and to hand possession of the property to the
applicant ;
4.3 to obtain the assistance of the South African Police Services, if
necessary, to give effect to and t o execute the abovementioned eviction order.
5. The first and second r espondents shall pay the costs of this application on party
and party scale B .
________________________________________________________ ________
JUDGMENT
___________________________________________________________ _____
Opperm an J
Introduction
[1] The foundation on which cases of this nature must be adjudicated lies in the
words of the Supreme Court of Appeal:1
‘[11] An owner is in law entitled 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, another statute, a contract or
on some or other legal basis. . . .’
[2] The application here is hybrid on the facts that are common cause. It was
admitted by counsel for the first respondent during the hearing that the first
respondent contracted to the use of the property for commercial purposes . In the
meanwhile, the director of the first respondent (Mr. Tsatsi Johannes Macholo) and his
family and apparently some other people , also came to use the property as a
residential dwelling. The application that lies before court is for an order against the
first and second respondents to vacate the applicant’s property.
[3] The applicant relies on the law of contract and the common law to evict the
first respondent.2 The application is in terms of the Prevention of Illegal Eviction from
1 Wormald and Others v Kambule (524/2004) [2005] ZASCA 84; [2005] 4 All SA 629 (SCA); 2006 (3)
SA 562 (SCA) (22 September 2005) .
2 The pacta sund servanda principle is applicable. In Basson v Chilwan and others [1993] ZASCA 61;
1993 (3) SA 742 (A) at 762H Eksteen JA referred to contractual freedom as:
“The paramount importance of upholding the sanctity of contracts, without which all trade would be
impossible …”
Further,
and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) in regard to the second
respondent .
[4] The case has to be adjudicated on the premises of the applicable law tha t is
also common cause between the parti es. Succinctly , commercial evictions are not
subject to the same rigorous requirements as residential evictions. The se evictions
are characteristically governed by the terms of the lease agreement , other contracts
applicable and common law principles. The use of the property, not its zoning or the
tenant's status, determines whether an eviction falls under commercial or residential.
The PIE Act primarily protects residential tenants from unlawful eviction and applies
to unlaw ful occupiers of land. It ensures that evictions are conducted through a court
order, providing protections for tenants.3
[5] While the PIE Act generally does not apply to commercial evictions, its
principles might be considered if there is no specific contractual process, or if the
eviction involves an unlawful occupation of land. In MC Denneboom Service Station
CC and Another v Phayane4 the Constitutional Court ruled that:
‘[16] Section 26(3) of the Constitution provides:
“No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
“If there is one thing that is more than public policy requires, it is that men of full age and competent
understanding shall have the utmost liberty of contracting, and that their contracts when entered into
freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore, you
have this para -mount public policy to consider - that you are not lightly to interfere with this freedom of
contract.”
Justice Ackermann in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) at
paragraph 26 described it as “a c entral consideration in a constitutional state”. These statements aim
for reasonable certainty, so that parties can go about their business knowing the rules of the game;
constitutional economic integrity is vital.
Moseneke J (as he then was) pointed out i n his dissent in Barkhuizen v Napier [2007] ZACC 5; 2007
(5) SA 323 (CC) at paragraph 98 that:
“Public policy cannot be determined at the behest of the idiosyncrasies of individual contracting
parties. If it were so, the determination of public policy woul d be held ransom by the infinite variations
to be found in any set of contracting parties.”
3 Wormald and Others v Kambule supra , para 11.
4 MC Denneboom Service Station CC and Another v Phayane (CCT 71/14) [2014] ZACC 29; 2015 (1)
SA 54 (CC); 2014 (12) BCLR 1421 (CC) (3 October 2014) .
PIE gives practical effect to this right and regulates the eviction of unlawful
occupiers, even those who reside on commercial premises. Having no right to
reside on the property, Mr Chiloane is an “unlawful occupier” under the Act
and thus enjoys its protections. The Court was required to ensure that PIE’s
requirements had b een met before ordering his eviction . . . .
[17] The eviction of commercial occupants and juristic persons does not,
however, fall within PIE’s remit. As the Supreme Court of Appeal correctly held
in Ndlovu, the Act does not apply to the eviction of juristic persons and
persons that do not use buildings and structures as “a form of dwelling or
shelter”. Mr Phayane therefore was not obliged to comply with the
requirements of PIE in seeking the eviction of Denneboom and persons
working for it or working for Mr Chiloane, provided those persons do not also
reside on the property. The High Court’s order was thus justified in respect of
these persons. ’ (Accentuation added .)
The property and the parties
[6] The property is Erf 8[...] Bloemfontein, District Bloemfontein, Free State
Province, better known as 1[...] R[...] Street, Universitas, Bloemfontein, Free State
Province, which is held under title deed number T4482/1966 (the property).
[7] The applicant is the lawful registered owner of the property . It is important to
note here already that there is not any evidence before court from the first
respondent that he is the lawful owner of the property and that he has a legal right to
occupy the premises. On the version of the first respondent a sale agree ment
between the applicant and the first respondent is in di spute . For purposes of this
case the applicant has shown on a balance of probabilities that the sale agreement
collapsed. The first respondent did not bring any evidence to the application to
demo nstrate that he is the lawful owner. There is not any substantive application
before the court to adjudicate this issue and it is a case for another day if the first
respondent desires to pursue the issue. The first respondent also had ample
opportunity to apply to the court for the filing of additional statements in terms of rule
6 of the Uniform Rules of Court. He did not do so. I quote his answering affidavit
hereunder. I was forced by the arguments of co unsel in their heads of argument and
during the hearing to do so. The arguments were beyond the contents of the papers.
[8] The applicant is the Free State Development Corporation (FDC), a corporation
with main place of business in Bloemfontein, Free State Province. The first
respondent is Telgobrite (Pty) Ltd, a private company with limited liability and
registered business a ddress Odendalsrus, Free State Province, and domicilium
citandi et executandi address at 1[...] R[...] Street , Universitas , Bloemfontein , Free
State Province . The second respondent s are all alleged unlawful occupiers of the
property. As already indicated, Mr. Tsatsi Johannes Macholo and his family, on his
own submissions to the court, also resides on the property. The third respondent is
the Mangaung Metropolitan Municipality . The applicant maintains that the third
respondent was cited solely on the basis of its possible interest in the application and
in terms of the PIE Act. The applicant seeks no specific order or costs order (except if
opposed) against the third respondent . The third respondent , ultimately , did not join
the litigation here. Only the first respondent opposed the application . The director of
the first respondent is involved and within the ambit of the first and second
respondents. He drives the opposition to the application.
The arguments
[9] Counsel for th e first respondent maintains in his practise note that the main
issues are:
‘a) Whether the provisions of PIE A ct are applicable in evicting a juristic
person (the 1st Respondent) from commercial premises;
b) Whether the signed Agreement of Sale was “really” cancelled by the
Applicant;
c) Whether the Eviction Application should be granted ;’
[10] The applicant is adamant that the first respondent attempts to create a dispute
of fact and that ‘the first respondent has an insurmountable hurdle to cross, which
they knew about when blatantly misleading this court by alleging that it bought the
property in question.’ The applicant is seeking final relief and th erefor relies on the
principles pronounced in Plascon -Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty)
Ltd5 (Plascon -Evans ).
The evidence
[11] It is crucial to note that the answering affidavit of the first respondent does not
in any manner whatsoever deal with the issues raised by counsel for the first
respondent in their heads of argument. It claims ownership of the property to be
transferred t o the first respondent. It is in complete contradiction with the arguments
raised during the hearing. Mr Macholo did not present the correct and complete
situation to the court. I am obliged to depict the answering affidavit as a whole:
‘I the undersigned
TSATSI JOHANNES MACHOLO
Do hereby make oath and state that
1.
1.1. I am an adult male person and the director of the 1st respondent,
TELGOBRITE (PTY) LTD a duly registered company in terms of the company
laws of the republic of south Africa , with main place of business situated at
594 NALE STREET, BLOCK7, KUTLWANONG, 9481
1.2. By virtue of the aforementioned, I am duly authorized on behalf of
TELGOBRITE(PTY)LTD to despose to this affidavit
3
1.3. In my capacity, I have in my possession and under my control all of the
documents forming the subject matter of the agreement entered into with the
Applicant.
4
1.4 I confirm that the facts deposed to herein falls within my personal
knowledge unless the context indicates otherwise.
5 Plascon -Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd . (53/84) [1984] ZASCA 51;
[1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984).
JURISDICTION
5
2.1 I humbly submit that the Honourable court has the necessary
jurisdiction to adjudicate the matter in that the property falls within the
jurisdictional area of this Honourable Court
RELIEF SOUGHT
6
3.1. THAT this application brought against 1st respondent in terms of the
Prevention of illegal eviction from and Unlawful occupation of land Act 19 of
1998 (The PIE ACT") in which the applicant seeks an order evicting the
unlawful occupiers be set aside with co sts.
7
3.2 That the applicant transferring attorney MTHEMBU AND VAN VUUREN
ATTORNEYS be ordered to transfer the property as per the sale agreement
as the mandate is before the court
8
3.3 Now that the Mandate is before the court the hounorable to “perfecta ”
the contract for the purpose of transfer and registration.
9
3.4. The applicant to be ordered to pay the costs of transfer/failure of which I
will pay them effective immediately
10
3.5 That Mr Van VUUREN of MTHEMBU AND VUUREN ATTORNEYS be
mandated to transfer effective immediately as the signed documents are in his
possession
11
3.6 THAT the applicant be ordered to release my credit score immediately
as our lease agree ment lapsed 30/04/2019 (Accentuation added .)
FACTUAL BACKGROUND
12
4.1 On or about the 30/01/2019 and at Bloemfontein the 1st Respondent,
represented by a duly authorized representative, Mr TSATSI JOHANNES
MACHOLO and the Applicant there and then represented by lkhraam Osman
entered into the sale agreement of the abovementioned property with the
indefinite clause. The agreement carried with it the occu pational interest OF
R15 000.00 p/m till transfer or registration which was to be done before the
30/04/2019.
13
4.2. The applicant appointed MTHEMBU AND VAN VUUREN ATTORNEYS
to attend to the transfer or registration of the said property as his attorney
record for the purpose of transfer.
14
4.3. A true copy of the SALE AGREMEENT is annexed hereto marked
annexure "TJ1".
Respondent therefore humbly requests that the terms and conditions therein
contained be read in as if specifically, so pleaded.
15
4.4 The transaction came out in two (2) folds from the Applicant
4.4(a) The signed sale agreement the Respondent
4.4(b) The signed transfer documents for the transferring attorney of record
MTHEMBU AND VAN VUUREN ATTORNEYs
16
4.5 The obligations in -terms of the sale agreement where met on my part
within a month of signature thereof by the applicant in the matter. Therefore,
relinquishing all the obligations on my part and making the transaction ready
for second leg that would be the registration.
17
4.6 The applicant as a result thereof he was to instruct the transferring
attorney on the mandate that would be the indefinite clause referred to
paragraph 6.3.5 of the applicant founding affidavit.
18
4.7 To this date the second leg is still with MTEMBU AND VAN VUUREN
ATTORNEYS as to why the property was not transferred if he received the
mandate from the applicant.
19
4.8 The last time I was with Mr VUUREN of MTHEMBU AND
ASSOCIATES he was awaiting the mandate from the applicant in this matter
to transfer. B ut its only now I see the mandate is before the court hence I
approach the court to perfect the contract ready for registration as the
outstanding mandate is before it for the applicant attorney of record to
complete the transfer.
20
4.9 Should it be estab lished that the Applicant Transferring attorney had the
mandate all this time to register or transfer the property in due time therefore
such Attorney to be held liable for loss of business I had to endure over the
years. or should be established that the mandate was unduly withheld by the
applicant in this application there the loss of business should fall flat on his
door upon quantification.
21
Legal background
5.1 Now that a clear legal right has been established in -terms of the offer to
purchase referred to in here as annexure TJ1. That there is a legally binding
contract between the applicant and the 1st Respondent. And or the applicant
or his transferring Attorney are unduly delaying the registration, as it has
become apparently clear. The only remedy available to the applicant or his
transferring attorney of record is for the court to enforce the registration or
transfer at deeds of which is only remedy available in terms of contract law.
22
6. Under the circumstances, it is thus just and equitable that the relief
prayed for by the applicant be set aside
DEPONENT: TJ MACHOLO ’
[12] The answering affidavit above does not address the application before the
court at all. It is a procedurally irregular application for the court to , among others ,
order the transfer of property. This issue was not argued or addressed by counsel for
the first respondent during the hearing of the case.
[13] Part A of the application in the notice of motion here was granted on 23 May
2024 . The first respondent did not reply or answer to it. An order for a notice in terms
of s 4(2) of the PIE Act was granted. The indication is that the court had to regard the
PIE Act applicable to the facts of the case. The notice was properly served . The
notice applies and talks to the private occupation and dwelling of the second
respondent .
[14] The law of contract and common law principles were applied to cause the
application for eviction on the commercial eviction . The evidence presented to the
court shows that the contracts were terminated . At the heart hereof is the basic
principle that commercial transactions, freely and honestly entered into, and not
vitiated by fraud, misrepresentation, duress or public policy, should be respected and
enforced. This is what happened :6
1. The sale agreement entered between the applicant and the first
respondent on 20 February 2019 was cancelled by the applicant by way of
correspondence addressed to the first respondent, on 16 July 2019 and 23
July 2019 . This was due to the first respondent failing to provide the requ ired
clearance certificates and/or guarantees in respect of the purchase price.
Copies of the letters of cancellation dated 16 July 2019 and 23 July 2019 were
entered into evidence as annexures RA1.1 and RA 1.2.
2. On 30 July 2019 the erstwhile attorney of the first respondent
responded to the applicant's notice of cancellation of the sale agreement and
proposed certain amendments to the sale agreement to be negotiated
between the parties and to be included in an addendum to the sale
agreemen t; annexure RA2 refers .
3. The applicant agreed to continue with leasing the property to the first
respondent as the sale agreement cannot proceed and had been cancelled by
the applicant in terms of the contract .
4. On or about 31 October 2019 the first respondent p rovided a proposal
to the applicant in respect of the terms of the lease agreement and the way
forward. The first respondent stated explicitly that the proposal is ‘as a result of
6 Founding and replying affidavit s of the applicant.
cancelled offer to purchase ’. The first respondent, as far back as 30 October
2019, was aware that the sale agreement was cancelled (Annexure RA3 ).
5. The parties enter ed into a lease agreement, which lease agreement
forms the subject matter of this eviction application before Court . The
respondent conducts business from the property in terms of a written and
signed lease agreement concluded between the applicant and the f irst
respondent (founding affidavit FA3).
6. The first respondent breached the agreement by failing to pay all the
rental amounts when due in terms of the agreement as well as to pay the
electricity charges and water consumption as well as rates and taxes levied in
terms of the Agreement . The outstanding balance in terms of the agreement,
as of July 2023 , is an amount of R 1004 451.48 ( one million four thousand four
hundred and fifty -one rands and forty-eight cents) as per FA4.
7. The a pplicant elected to cancel the agreement and to demand that the
first respondent and all other persons occupying the property through it must
immediately vacate the property and allow FDC to take occupation. A copy of
applicant's notice of termination, dat ed 19 November 2019 support s this as
per FA5.
8. Despite written demand, the first respondent neglected and/or failed to
and/or refused to settle the arrear rentals due or vacate the property . On or
about the 16th of November 2022 the applicant caused for notice(s) to be
served on both the first and second respondent by means of Sheriff (FA6.1 to
FA6. 4).
9. The notice to vacate has been properly served on the first and second
respondents , more than a calendar month has elapsed since delivery of the
notices and first and second respondents failed and/or neglected to
respond/react to the notices and/or vacate the property . The first respondent's
rental account continues to be in arrears for more than twen ty business days.
[15] The PIE Act was applied to evict the private occupiers that dwell on the
property in issue. There is not any allegation of hardship or any form of inequitable
consequences alleged by the respondents or even by counsel in their presentation of
the case for the respondents during the hearing. This even so after the notice in
terms of s 4(2) of the PIE Act was served on the respondents.
[16] It has been proven beyond doubt that the first and second respondents are
occupying the property without any form of remuneration to the owner. There is not
any contract, law or legislation that al lows them to stay on the property. None was
averred in the answering affidavit except that the first respondent maintains that he
bought the property and that it must be transferred into his name – this in stark
contrast to the proven facts that the contra cts were terminated. To reiterate : the
arguments launched in the heads of argument and during the hearing were outside
the papers . It was never the case for the first respondent.
[17] As indicated , the Plascon -Evans rule came to the fore and was applied to
make the above findings .7 What is real is that the answering affidavit by the first
respondent is a statement riddled with general unsubstantiated averments . The
allegations are so far -fetched and clearly flawed if measured to the evidence as a
whole , that the court is justified in rejecting it on the papers. All the contracts have
been proven to have been cancelled. A reading of the papers show s that the
cancelation of the contracts due to non-compliance and lapse of tenure or term of
contract was done in detailed and careful obedience to the prevailing law . The
notices of eviction were done and done correctly so. The inherent credibility of the
applicant’s averments in the founding and replying affidavits as corroborated by the
documents attached thereto , results in the reality that the application must be
granted.
[18] All has been done to ensure that the case conclude s justly and equitable.
There is essentially no bona fide dispute of facts as averred by the first respondent.
7 In Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A) the Supreme
Court of Appeal found that the rule formulated in Stellenbosch Farmers’ Winery and Another v Martell
& Cie SA and Others [2002] ZASCA 98; 2003 (1) SA 11 (SCA) required clarification and qualification
where final relief was sought in motion proceedings. The general rule is still that in proceedings where
disputes of fact have arisen on affidavits, a final order , whether an interdict or some other form of
relief, may be granted if the facts averred in the applicant’s affidavits, which have been admitted by the
respondent, together with the facts alleged by the respondent, justify such an order. The power of the
court to give such final relief on the papers before it is, however, not confined to such a situation. In
certain cases, denial by a respondent of a fact alleged by an applicant may not raise a real, genuine or
bona fide dispute of fact. If the respondent i n such a case has failed to apply for the deponent(s)
concerned to be called for cross -examination under rule 6(5) (g) of the Uniform Rules of Court, and if
the court is satisfied as to the inherent credibility of the applicant’s averments, the court may decide
the disputed fact in the applicant’s favour, without hearing oral evidence. Therefore, when factual
disputes ari se in motion proceedings, relief should be granted only if the facts stated by the
respondent, together with the admitted facts in the applicant’s affidavits, justify the order.
This argument is clearly taken to delay the matter . If the first respondent ’s gripe was
with the cancelation of the sale agreement, he had to initiate litigation; he did not do
so.
Conclusion
[19] The law demands that the first and second respondent s be evicted since they
are illegally occupying the property in defiance of the Constitution of the Republic of
South Africa , 1996 and all other prevailing law and legislation . Costs must follow the
cause.
Order
[20] In the result, the following order is made :
1. The first and second respondents claiming occupation of the property Erf 8[...]
Bloemfontein, District Bloemfontein, Free State Province, better known as 1[...] R[...]
Street, Universitas, Bloemfontein, Free State Province which is held under title deed
number T4 482/1966 (the property), are declared as unlawful occupiers of the
property.
2. The first and second respondents are ordered to vacate the property within
thirty (30) days of service of this court order.
3. The first and second respondents are ordered to remove all their property,
equipment, buildings, or structures from the property described in para 1 above not
later than the date referred to in para 2 above.
4. In the event of the first and second respondents’ refusal and/or failure to
vacate the property as ordered in para 2 above, the Sheriff of the above Honourable
Court is authorised and directed:
4.1 To evict and /or cause to evict from the property the first and second
respondents;
4.2 to take all steps and to do all things necessary to carry out the
abovementioned eviction order and to hand possession of the property to the
applicant ;
4.3 to obtain the assistance of the South African Police Services, if
necessary, to give effect to and to execute the abovementioned eviction order.
5. The first and second r espondents shall pay the costs of this application on
party and party scale B .
______ ________________________
OPPERMAN J
Appearances
For applicant : Adv I Sander
Instructed by: Peyper Attorneys
Bloemfontein
For first respondent: Adv T Mofokeng
Instructed by: Mphatswe Attorneys
Bloemfontein