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
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 2024-044182
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
7 August 2025


In the matter between:-

DIKELEDI EDITH MOFIKO
(In her capacity as executrix of the Estate Late
Matsela Gladys Mfikwe) Applicant

and

PEARL MTHOPHE First Respondent

UNLAWFUL OCCUPIERS OF:
ERF 7[…] JABAVU EXTENSION 2 Second Respondent

CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Third Respondent

Coram: Kahn AJ
Heard: 10 June 2025 plus supplementary Heads of Argument received on 26 June
2025
Judgment Delivered: 7 August 2025

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JUDGMENT

B R KAHN AJ

1 This is an application brought by Ms Dikeledi Edith Mofiko (the ‘applicant’) for
the eviction of the first respondent, Ms Pearl Mthophe, from the residential property
situated at Erf 7 […] Jabavu Extension 2 Township (5[ …] M[…]a Street) (the
‘property’), together with all persons claiming occupation through her. Ms Mthophe
resists the applicant’s efforts to evict her.

The Parties

2 The applicant in this matter is the executrix in the Estate Late Matsela Gladys
Mfikwe (‘Ms Mfikwe ’), who passed away on 22 January 2012 (the ‘estate’), but
remains the registered owner of the property.

3 The first respondent is Ms Mthophe, who – even though there are two other
respondents – I will refer to as the ‘respondent’ (in the singular) for ease of
reference.

4 There are two further respondents ; the second respondent (described in the
singular) as being: “unlawful occupiers of : Erf 7 […] Jabavu Extension 2” – ie, the
property, and the third respondent is the City of Johannesburg Metropolitan
Municipality.

5 The second respondent (whoever they might be) was notionally represented by
the attorneys of record for the respondent (ie, the first respondent) but save for this
feature, played no role in the application.

6 The third respondent, not surprisingly, played no role in the application.

Preliminary Observations

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7 Eviction – to deprive a person of occupation of a building or structure, or the
land on which such building or structure is erected, against his or her will – is a word
that is probably emotive in all jurisdictions but within the South African context ,
against the backdrop of our history - is especially so. The intervention of our
constitutional order demands (in conjunction with legislation intended to ameliorate
what could best be described as the harshness inherent in consequences that flow
from an eviction order) , that if such an order is requested from a Court, it is to be
considered very carefully, humanely and against the backdrop of our Constitution
(the shining light recognising our past and guiding our present and our future) , the
‘Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998’
(‘PIE’) and a multitude of reasoned, and, on occasions, elegantly worded judgments.

8 A judgment that especially resonates is that of the Western Cape Division of
the High Court , in which the appellants are not identified, but the respondents are
Gerald and Lesley Cohen (first and second respondents respectively) and the City of
Cape Town (third respondent), that I will henceforth refer to as ‘the Cohen judgment’.
Which reads as follows:-

“Tread not the tenuous tightrope of evictions unless all is known of the rope,
its strength at the centre where balance is required without falling to either
side. For it’s the perch in that distraught divide that determines justice and
equity to either side. A task requiring wisdom and skill, ensuring dignity in the
exit of one and nurturing patience in the other till justice be seen to be done”.
1

and as a preamble to what follows – and the judicial task of guiding lawyers in the
discharge of their responsibilities – it is as fine a bit of prose as one could hope for.

9 In approaching this matter, I have been guided and bound by not only our

9 In approaching this matter, I have been guided and bound by not only our
Constitution and its warm embrace, but also by statute and judgments, guidance
and requirements of my brother and sister judges - most of whom are more
experienced in addressing the vexed issue of evictions than I – and where, how and

1 A.P. and Another v Cohen and Others (Appeal) (A216/2024; 21188/2023) [2025] ZAWCHC 66 para
1.

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when to strike the tightrope balance if required. I say ‘ if required’ , because the
tightrope balancing act advocated in the Cohen judgment is only of application once
the occupation complained of is found to be unlawful. I am indebted to all of them for
their wisdom, guidance and humanness.

10 It is trite that, as stated in Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v
Gore N.O. and Others
2 that “affidavits in motion proceedings serve to define not only
the issues between the parties , but also to place the essential evidence before the
court. They must contain factual averments that are sufficient to support the relief
sought.”3

11 In this matter, the applicant’s founding papers fall woefully short of what a court
would expect to be presented in an application of this nature, although this – in and
of itself – is not necessarily dispositive of the matter. A court must have regard to all
the affidavits filed in the matter and however compelling or not an applicant’s
founding papers may be, the respondent – in order to protect his, her or its position –
will need to respond in a way that will hopefully facilitate the proper ventilation of the
issues.

12 This observation is true in all matters but is especially true in this matter , where
the facts under oath are somewhat sparse but where the applicant who bears the
onus has chosen – somewhat surprisingly – not to deliver a replying affidavit , with
the result that the only affidavits before the court are the founding affidavit and the
respondent’s answer ing affidavit . There has of course been some assistance
gleaned from the heads of argument , but only insofar as they are a fair reflection of
parties’ cases / positions made out in the affidavits as filed.

13 What renders this matter unfortunate (as will emerge from what is referred to
hereunder) is that neither party appears to have the disposable income or asset
base to litigate at this level, in this court, and I wonder whether, had the provisions of

base to litigate at this level, in this court, and I wonder whether, had the provisions of
Uniform rule 41A been employed, time, money and anxiety might have been saved.

2 Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v Gore N.O. and Others [2015] ZASCA 37; [2015]
JOL33031 (SCA).
3 Fn 2 above, at para 13

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14 Having said that, it is also true that the parties have an inalienable right to
approach this court for such relief to which they believe they are entitled, and where
a party has a grievance or a claim to pursue, then the courts represent societ y’s
safety net – a harbour in a storm of dispute, acrimony and uncertainty.

The Just and Equitable World

15 One of the themes that permeates the various reported eviction judgments has
as its genesis (whether the respondent whose eviction is being sought has occupied
the land in question for more or less than six months), a just and equitable
requirement. S4(6) and s 4(7) of PIE both capture the just and equitable
requirement, but differ in a number of respects, none of which differences are
relevant to this matter.

16 Significantly, both the aforesaid subsections commence with the phrase: “if an
unlawful occupier has occupied the land in question for….”, ( My emphasis ) which
means, very simply, that before a court is to apply its mind to the requirements
relating to the just and equitable imperative embodied in the aforesaid two
subsections, the occupier (the respondent in this matter) must be in ‘ unlawful
occupation’ – which is what begs the very question that is to be answered in this
application and I would think all other eviction applications whether opposed or not.

17 The ‘just and equitable’ world does not however exist in a vacuum; its
application is to be found in an amalgam of authority, such as our Constitution,
statutes, multiple judgments containing careful words, learnings, humane ness –
even Ubuntu – as parts of a jigsaw puzzle that is intended to strike the tight rope
balance referred to in the Cohen judgment, but also to recognise that, as invariably
happens in eviction applications (more particularly when they are opposed), there is
a natural tension between two competing Constitutional and other rights – that of the
owner or applicant (on the one hand) and that of the occupant or respondent (on the

owner or applicant (on the one hand) and that of the occupant or respondent (on the
other hand.)

6

18 Regard ought to be had as well to what is contained in a judgment by Sachs J,
where it was held that: “the Court is not resolving a civil dispute as to who has rights
under land law; the existence of unlawfulness is the foundation for the enquiry and
not a subject matter ”4 (My emphasis) – and so, whilst the founding affidavit must
contain evidence that deals with the unlawfulness of the occupation to provide the
basis of the application, this in and of itself is not enough to succeed in an eviction
application – it (the founding papers) must address the just and equitable
requirements demanded of, inter alia, PIE as interpreted in a multitude of authorities.

19 As I read PIE (and more particularly the two sub sections referred to in
paragraph 15 above), the numerous reported judgments that deal with eviction –
when and in what circumstances can it or should it be ordered and when and in what
circumstances it cannot or should not be ordered – it seems to me that it is clear that
the enquiry is (after the person who claims possession has established his/her locus
standi – whether as owner or pursuant to some other jurisdictional right, such as
lawful control of the property in question) a two -fold enquiry; the first enquiry is
whether the occupation is unlawful or not . Only if a court finds that the occupation is
unlawful, is it then required to consider the second enquiry incorporating the factors
referred to in PIE (as interpreted, implemented and opined upon in numerous
judgments), such as:-

19.1 where the unlawful occupiers have occupied the land in question
for less than six months : “… after considering all the relevant circumstances,
including the rights and needs of the elderly, children, disabled persons and
households headed by women”; and

19.2 where the unlawful occupiers have occupied the land in question
for more than six months: “… after considering all the relevant circumstances,

for more than six months: “… after considering all the relevant circumstances,
including in addition to the rights and needs of the elderly, children, disabled
persons and households headed by women, where the land is available or
can reasonably be made available by a Municipality or other organ of State or
other land owner for the relocation of the unlawful occupier”.

4 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 32.

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Section 4(2) and 4(5) of PIE – Preliminary Proceedings

20 A preliminary observation; t he applicant satisfied the requirements provided for
in s 4(2) read with s 4(5) of PIE. For context purposes, an applicant in eviction
proceedings must, first and foremost, follow the procedures outlined in PIE.

21 For applications instituted in the Gauteng Division of the High Court,
Johannesburg, the Practice Manual together with judgments of this Division, must be
satisfied.

22 There are two applications that need to be instituted to evict an occupant who is
alleged to be in occupation unlawfully; these are (a) the initial ex parte application in
terms of s 4(2) of PIE which, if granted, allows the applicant to proceed with ( b) the
main substantive eviction application which is served on a respondent (which I will
call the ‘main application’ and which was argued in front of me).

Starting Point Once Legal Principles are Recognised

23 Against the aforesaid backdrop, I proceed to consider the case made out by the
applicant in this matter and the respondent’s answer thereto. I enquire firstly into
whether the applicant has made out a case that the respondent is an unlawful
occupier and:-

23.1 if so, I will address the second (just and equitable) enquiry; but

23.2 if not, the second enquiry is academic and will not be addressed.

Applicant’s Case and Respondent’s Answer

24 The applicant is the duly appointed execut rix in the estate. Letters of
executorship were issued to her by the Master of the South Gauteng High Court,
Johannesburg, on 20 April 2012. It is perhaps worth noting that the applicant wears
another hat; that of the heir in the estate, although this plays no role in this judgment.

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25 Ms Mfikwe was at all times material hereto, the registered owner of the
property. The applicant – qua executrix – therefore has locus standi to bring this
application.

26 The property was sold by the executrix (once appointed) to the respondent
pursuant to a sale agreement dated 8 February 2014 (the ‘sale agreement’) although
it is unclear from the papers whether the respondent took occupation prior to the
conclusion of the sale agreement or consequent upon its conclusion. However, given
the applicant’s concession that the respondent ’s occupation of the property was at
some time lawful (at least on the applicant’s version – on the respondent’s version
the occupation remained lawful even at the time of the eviction application being
launched) nothing turns thereon.

27 The reference to the sale agreement being dated in 2014 is not a typographical
error – this is two years after Ms Mfikwe passed away and ten years prior to the
launching of this application.

28 Even though the applicant - surprisingly - made no reference to the existence of
a written and signed sale agreement (ie, the sale agreement) in her founding affidavit
– more particularly given that it became common cause that the executrix / applicant
(who brought the application and signed the founding papers ) was the person who
signed the sale agreement on behalf of the estate (ie, the seller) – the respondent, in
her answering affidavit, attached a copy thereof, which was not disputed by the
applicant.

29 I must therefore accept that the sale agreement attached as annexure PM3 to
the respondent’s answering affidavit is the document that regulated the contractual
relationship between the estate (as the seller) and the respondent ( as purchaser)
and on the respondent’s version, is the document that housed her entitlement to
occupy the property and her shield against eviction.

30 The sale agreement plays an important role in this judgment given its terms and

30 The sale agreement plays an important role in this judgment given its terms and
what occurred (and did not occur) subsequent to its conclusion and importantly,

9

pursuant to the provisions of certain of its clauses , which, given their importance /
significance / relevancy, I refer to specifically hereunder.

31 Clauses 3 and 4 of the sale agreement can be conveniently read together in
spite of the fact that they are inelegantly and poorly worded. They identify the
purchase price, how it is to be paid as well as security for the balance. This is really
the essence of these two clauses.

32 The inelegance (which results in some difficulty in interpreting same) is
however academic because it is common cause that the full purchase price was paid
by the respondent into the trust account of Ellahm Sentso Attorneys ( ‘Sentso’) by
way of two instalments; an initial payment of R145 000 (one hundred and forty -five
thousand rand) on 13 May 2014 and the balance of R35 000 (thirty -five thousand
rand) on 8 September 2014, totalling R180 000 (one hundred and eighty thousand
rand) in all, as required by the terms of the sale agreement. Sentso plays a small –
but highly significant role – in what occurred in this matter.

33 Clause 5 of the sale agreement records that the seller appoints the
conveyancers, namely Sentso, to attend to the registration of transfer , I pause to
mention at this time that the obligation to deliver the property pursuant to the sale
agreement – via the process / mechanism of transfer in the Deeds Office – was the
applicant’s. The relevancy hereof emerges from what is referred to hereunder.

34 Clause 6 of the sale agreement beneath the heading ‘ occupation’ provides that
the respondent (as buyer) will be entitled to occupation of the property once transfer
is registered – but it is common cause that registration of the property has not yet
been transferred to the respondent ( as buyer) and that – even though the date of
occupation is unclear from the papers – the respondent is in occupation because of
the sale agreement and the applicant has conceded during oral argument and in

the sale agreement and the applicant has conceded during oral argument and in
subsequent heads of argument (delivered pursuant to a specific request from me)
that at the very least when the respondent took occupation many years ago, such
occupation was lawful.

10

35 Clause 7 of the sale agreement beneath the heading: “risk and benefit”
provides that the respondent will be responsible for rates and other taxes levied on
the property and will be entitled to the income which accrues from the date of
occupation (and I repeat, the date has not been identified by either party)

36 Clause 9 of the sale agreement beneath the heading: “cancellation for breach”
is a relatively inelegantly worded clause, but sufficiently clear to understand that it
provides for a seven day notice period to remedy any breach, failing which the
aggrieved party shall be entitled, without prejudice to any other right, to cancel the
sale agreement by giving written notice to that effect to the other party.

37 The rest of the breach clause is not relevant to this matter, but it is significant
that it forms no part of the applicant’s case that she (ie , the estate) placed the
respondent in breach (in mora) – if indeed the respondent is in breach. (To be clear;
I am not required to determine whether the respondent is in breach of her obligations
pursuant to the sale agreement and I therefore make no finding in this regard.)

38 What the applicant did however refer to in her founding papers is a letter dated
1 November 2019 (served by the sheriff at the property on 27 November 2019) in
which the applicant makes no reference whatsoever to the sale agreement or any
(alleged) breach thereof but simply asserts that:-

38.1 the property still belongs to the deceased, Ms Mfikwe (which the court
notes is true);

38.2 the respondent is in occupation and/or in control of the property (which
the court notes is true); and

38.3 the respondent, must vacate as the applicant (in her capacity as
executrix in the estate) : “is not taking control of all the assets of the estate
including the property in question” and “intends to finalise the winding up of
the estate” (which begs the question) , which, as demands go – particularly in

the estate” (which begs the question) , which, as demands go – particularly in
eviction matters – was at best, substantially wanting and at worst, quite
ineffectual.

11


39 At some stage, the attorney nominated by the applicant – Sentso –
disappeared as, sadly, did the purchase consideration paid by the respondent into
her law firm’s trust account. This appears to be the nub of the applicant’s ire.

40 The papers filed in the matter do not address Sentso’s fate, so to speak; my
own research reveals a judgment in the case of Law Society of the Northern
Province v Sento5 which was dated 15 October 2019 (some approximately five years
after the sale agreement was concluded and the purchase price paid in full) in which
Sentso is struck off the roll of attorneys.

41 It bears mention that one of the matters considered by the Court hearing the
strike off application was in fact the complaint lodged with what was then the Law
Society of the Northern Provinces by the applicant relating to the misappropriation of
the payment made by the respondent into Sentso’s trust account as required of her
in terms of the sale agreement.

42 Against the aforesaid backdrop, the applicant alleges that attempts to somehow
resolve the situation that had arisen has been unsuccessful and the respondent was
in occupation unlawfully.

43 There is no detail in regard to what the ‘situation’ was (although I think it would
be fair to assume in all the circumstances that it pertained to the misappropriation by
Sentso of the purchase consideration and what was to be done in this regard), what
those negotiations were and when they occurred and perhaps even what was the
point or were the points of departure between the applicant (on behalf of the estate)
and the respondent.

44 At best, there is some vague reference to some discussions between the
applicant and the respondent , presumably as to how to address the seemingly
incompatible positions that existed; on the one hand, the respondent had paid the full
purchase consideration as required (and as provided for in the sale agreement) into

purchase consideration as required (and as provided for in the sale agreement) into

5 Law Society of the Northern Province v Sento (84434/2016) [2019] ZAGPPHC 525 (15 October
2019).

12

Sentso’s trust account and on the other hand, the funds had disappeared (I think it
would be fair to say that the funds had been misappropriated by Sentso) and that the
applicant realised that the funds that were to be received by the estate in respect of
the purchase consideration for the property were no longer in Sentso’s trust account
and therefore were not available to be paid on transfer.

45 I should however , make it clear that the lack of detail in regard to discussions
that were or may have been held between the parties in order to address what was
clearly a distressing situation for both the applicant and the respondent plays no role
in my findings and decision in this matter. I mention it for context and clarity.

46 It appears that the applicant – not having been able to come to some or other
arrangement with the respondent that she considered appropriate given the
misappropriation of the funds comprising the purchase consideration (whatever that
arrangement might have been – the papers are silent in this regard) – determined
that the only avenue open to her to enable her to dispose of the property (and
thereby on her – the applicant’s – version, to enable her to continue with or to finalise
the winding up of the estate) would be to sell the property to a third party (and so
presumably obtain payment from the third party) but to enable her to do so – at least
as the applicant views the matter – the respondent would need to vacate, which s he
clearly refused to do so – hence the eviction application.

47 It was approximately ten years after the respondent had paid the full purchase
consideration that the applicant launched eviction proceedings, but no explanation is
tendered by the applicant as to the reasons for the delay or what efforts were made
– and when those efforts were made – to resolve what she calls in paragraph 11.8 of
her founding affidavit, the: “aim of solving the matter”, but she alleges that the

her founding affidavit, the: “aim of solving the matter”, but she alleges that the
respondent was not cooperative in finding: “the solution”. What that solution is – at
least as perceived by or hoped for by the applicant – is not identified.

48 Save for some reference in the papers as to both the applicant and the
respondent approaching the Legal Practitioners Fidelity Fund (the ‘Fund’) it is clear
that – at least as at the date of issue of the application – the Fund has not refunded

13

the stolen monies to either the applicant or the respondent. The reason I say ‘ either’
one or the other is because:-

48.1 the applicant approached the F und for compensation, which
advised her (rightly or wrongly) that it was for the respondent – not the
applicant – to apply for a refund; and

48.2 there is nothing contained in either the founding affidavit or the
respondent’s answer that informs me whether the respondent approached the
Fund or not,

although I must be absolutely clear that a finding as to whether it is the applicant or
the respondent who would have a claim against the Fund is not required – at least
based on the affidavits in this matter – and I consequently do not make a finding in
this regard.

Is the Sale Agreement Extant or Not?

49 In considering this matter following upon oral argument, it seemed to me that
the question as to whether the sale agreement was or was not extant was a matter
that had not been raised by either of the parties in their papers, heads of argument
or during oral argument and I considered that it was highly relevant in the context of
this matter.

50 As a result, a few days after the hearing of this matter, I asked counsel for the
parties to furnish supplementary heads of argument in regard to the following
enquiries addressed to them:-

50.1 was I able to find, based on the papers, that the sale agreement is
extant?; and

50.2 if extant or not extant, how does that affect the lawfulness of the
respondent’s occupation of the property?

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51 Both legal teams responded to the request referred to in paragraph 50 above.

52 The applicant, in its supplementary heads of argument:-

52.1 accepts that a written and signed offer to purchase (the sale agreement)
exists;

52.2 asserts that the only evidence that is before this court is : “in respect of
the sale of agreement entered into between the applicant and the respondent,
proof of two payments to the transferring attorney and attempt to transfer
thereon which was never completed concluding the sale of the property in
question”, an argument or proposition that is difficult to understand, but
whatever the applicant intends it to mean, it certainly does not mean that the
sale agreement has terminated; and

52.3 concludes (after a somewhat tortuous logic) that : “the alleged sale
agreement does not meet the requirements of the Alienation of Land Act and
cannot be regarded as extant at law”, but it was never part of the applicant’s
case that the sale agreement does not meet these requirements and this is
not the case the respondent was called upon to meet.

53 The applicant is not able to demonstrate that the sale agreement ( which the
applicant herself concluded in her capacity as executrix on behalf of the estate, and
pursuant to which the respondent was in occupation, ) had on some or other basis ,
terminated. Indeed, the applicant advances no legitimate argument to suggest that
the sale agreement is not extant.

54 The respondent of course argued that the sale agreement was extant – and I
think it fair to say – correctly so.

Respondent’s Occupation of the Property; Lawful or Not?

55 As stated above, before I even address the question of whether an order for
eviction would be just and equitable, I need to conclude that the respondent’s

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occupation is unlawful. It follows of course that if I do not find that the respondent’s
occupation is unlawful, the question of justice and equity does not arise.

56 If the original occupation of the property by the respondent was lawful (and I
repeat that this is common cause), when did the occupation become unlawful? – if it
ever did become unlawful. It is here that the sale agreement and what the parties
(and perhaps the applicant in particular) did or did not do in regard thereto becomes
relevant.

57 For context purposes, I have borne the following in mind:-

57.1 the sale agreement is dated 8 February 2014;

57.2 the demand addressed to the respondent on behalf of the applicant
(referred to in paragraph 38 above) is dated 1 November 2019 and served on
27 November 2019 – almost six years after the sale agreement was
concluded and the full purchase price paid; and

57.3 the eviction application was issued on 23 April 2024 – some four and a
half years after the demand to vacate had been served on the respondent but
had not elicited the desired response.

58 I have carefully considered the:-

58.1 affidavits filed by the parties;

58.2 parties’ heads of argument;

58.3 oral arguments presented by the parties’ legal representatives; as well as

58.4 parties’ supplementary heads of argument,

and I am satisfied that the respondent is not an unlawful occupier.

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Reasons for Lawful Occupation Finding

59 The reasons that follow cannot of course be viewed in a vacuum; they need to
be viewed against the backdrop of the findings, observations and common cause
facts referred to above.

60 The applicant alleges and it is the applicant who must prove. This is t rite law.
The applicant’s papers however fall far short of the evidence required to discharge
the onus in regard to the initial enquiry (after establishing locus standi) – ie, whether
the respondent’s occupation is unlawful.

61 It was difficult – nay, impossible – to discern from the applicant when and in
what circumstances the respondent’s occupation – which the applicant conceded
was at least initially lawful – became unlawful but having regard to the applicant’s
founding papers (and I repeat, the respondent’s version in her answering affidavit
was not in any way rebutted by the applicant because she did not deliver a replying
affidavit), the applicant simply says that the respondent is occupying the property :
“without lease agreement” (paragraph 8.1 of the founding affidavit) and in paragraph
10.2 of the founding affidavit, the allegation is made that the occupation of the
property is: “without any agreement” or the applicant’s: “direct express for them to do
so”, and therefore the applicant concludes they (the respondent and any other
occupiers) are occupying the property illegally. The applicant is however wrong
about there being no agreement; it is common cause that there is. It is the sale
agreement dated 8 February 2014; see, inter alia, paragraph 26 above.

62 The applicant has chosen to rely solely on the fact that in her capacity as
executrix, she must finalise the winding up of the estate and by implication (and
perhaps I am being generous to the applicant in this regard) – she seems to suggest
that because the purchase consideration paid by the respondent is no longer
available to the estate, the respondent must vacate the property to enable her – the

available to the estate, the respondent must vacate the property to enable her – the
applicant – to wind up the estate but she, the applicant, does not explain why she
has delayed for approximat ely ten years after the sale agreement was concluded
and payment of the full purchase consideration made, and now wishes to proceed to
discharge her duties as executrix in the estate.

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63 These allegations are however decisively rebutted by the respondent who
asserts that her occupation of the property was taken, and continues to be enjoyed
pursuant to the sale agreement. The applicant (who actually signed the sale
agreement following upon the death of Ms Mfikwe and after letter s of executorship
had been granted to her) made no reference to the sale agreement in her founding
papers.

64 There is also no allegation by the applicant that the:-

64.1 respondent was placed in mora, whether in terms of the breach clause in
the sale agreement (referred to in paragraph 37 above) or otherwise;

64.2 applicant had taken any steps to terminate the sale agreement; and

64.3 sale agreement has terminated,

65 Because the sale agreement had not been terminated prior to this application
having been launched (and I must make clear that I am not suggesting there was or
was not a legal basis for the applicant to bring about a termination; I am not required
to opine on this aspect and therefore I make no finding), I am guided by the reported
judgments of Mashao John Thepangeyga N .O and and Another
6 v Herman Letsoalo
and os, as well as Transnet Ltd v TJ Thebeke and Another 7, both of which find that
an eviction application that is issued prior to a contract (pursuant to which the
occupant / respondent enjoys the right of occupation) terminating, cannot be granted
whilst that agreement is extant or , put another way, until that contract is lawfully
terminated.

66 Consequently, I find that the sale agreement is extant and continues even now
to regulate the relationship between the seller (the applicant) and purchaser (the
respondent). The fact (a) that the respondent took occupation pursuant thereto

6 Mashao John Thepangeyga N.O and and Others (73/2021) [2022] ZASCA 30
7 Herman Letsoalo and os, as well as Transnet Ltd v TJ Thebeke and and Others (35/12) [2012]
ZASCA 197

18

(when she took occupation is not relevant to the lawfulness thereof), (b) the
applicant’s concession that the occupation was at some time lawful, and (c) there is
nothing to demonstrate that what was lawful occupation became unlawful , leads me
to the conclusion that the respondent is in lawful occupation as are those claiming
occupation through her, and that this application must therefore fail.

Order

67 In the result, it is ordered that the:-

67.1 application is dismissed; and

67.2 applicant is to pay the respondent’s costs on scale A.

B R KAHN AJ
Judge of the High Court
Johannesburg

Counsel for the Applicant:
Advocate. B. Socikwa
068 542 6014
bsocikwa@gmail.com
Bsocikwa@rsabar.com
Instructed by: Masina Attorneys Inc.

Counsel for 1st & 2nd Respondents:
Advocate. L.R. Matshidza
062 364 9722
Instructed by: Matsimbi (M.E) Attorneys Inc.