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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 23092/2024
In the matter between:
GILLIAM JOHANNES SWIEGERS N.O.
First Applicant
ANNA SOPHIA MUNN N.O.
Second Applicant
CECELIA JACOBA SWIEGERS N.O.
Third Applicant
PIETER SWIEGERS N.O. Fourth Applicant
and
I[...] A[...]
First Respondent
I[...] B[...]
Second Respondent
WAYLON BOTHA
Third Respondent
NAZEEM HENDRICKS
Fourth Respondent
MOOSA IMANI
Fifth Respondent
ALL OTHER UNLAWFUL OCCUPIERS OF ERF 3[...],
MEADOWRIDGE, CAPE TOWN
Sixth Respondent
THE CITY OF CAPE TOWN
Seventh Respondent
And in the intervention application of:
MANNA BOERBOKKE (PTY) LTD Intervening Applicant
Coram: Acting Justice T Sarkas
Heard: 10 June 2025
Further written submissions: 17 June 2025
Housing report: 8 July 2025
Delivered electronically: 26 August 2025
JUDGMENT
SARKAS AJ:
INTRODUCTION
[1] This an application brought by the trustees of the Cielie Swiegers Familie
Trust ( the Trust ) in terms of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 ( the PIE Act), for the eviction of
the first to sixth respondents from the property situated at Erf 3[...],
Meadowridge, Cape Town (the property).
[2] A notice in terms of s 4(2) of the PIE Act was authorised by this Court and
duly served on the respondents.
[3] The eviction application is opposed, and was met with:
3.1. an application for security for costs brought by the first to fifth
respondents (the respondents), which application was abandoned the
day before the hearing; and
3.2. an application to intervene in the eviction application, brought by
Manna Boerbokke (Pty) Ltd (MB).
[4] There is a protracted history to the disputes between the Trust on the one
hand, and the occupiers and MB on the other, spanning a number of court
applications. For present purposes i t suffices to reference the following
background to the occupation of the property:
4.1. It is common cause that t he Trust is the registered owner of the
property.
4.2. MB claims a lien over the property. In this regard, MB alleges that for
an extended period of time, it has been in de facto administrative
control and possession of the property, exercising a lien based on work
performed on the property. These allegations are disputed by the Trust.
4.3. It is also common cause t hat the respondents have no contractual
relationship with the Trust.
4.4. The respondents claim they are entitled to occupy the property by
virtue of the lease agreements they concluded with MB in March 2024.
[5] For purpose of this judgment, I shall assume, withou t deciding, that MB holds
a lien over the property.
OCCUPATION THROUGH A LIEN HOLDER
[6] Essentially, the respondents contend that : MB holds a lien over the property
which gives MB the right to control occupation of the property; they occupy
the property under valid lease agreements concluded with MB; and until the
lien is challenged and set aside, the respondents’ occupation through the lien
holder is lawful.
[7] Consequently, the key question is whether a lien holder may lawfully let the
property over which a lien is being exercised to a third party.
[8] This question was answered i n Rekdurum (Pty) Ltd v Weider Gym Athlone
(Pty) Ltd 1997 (1) SA 646 (CPD) , where th is court found no support for the
proposition that an object over which a retention lien is being exercised may
be commercially exploited by the person exercising such a right. 1 The court
concluded that the statement that a lien holder is entitled to let the property
over which a lien is being exercised to a third party is ‘ completely at variance
with the law relating to liens based on enrichment’ and ‘palpably wrong’.2
[9] This mea ns that the lease agreements that MB concluded with the
respondents are unlawful because MB was not entitled to let the property to
them.
NON-JOINDER AND INTERVENTION
[10] Before turning to the eviction application, it is necessary to deal with the non-
joinder point raised by the respondents, and the application for leave to
intervene brought by MB.
[11] In opposing the evictions application, t he respondents contend that there is a
failure to join MB as a necessary party, given that they occupy the property
through lease agreements concluded with MB. Allied to this, MB contends that
it requires to leave to intervene in the eviction application in order to assert its
1 Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd 1997 (1) SA 646 (CPD) at 653E.
2 At 654A. This position was affirmed by the Full Court in Passano v Erasmus (A163/2023) [2025]
ZAGPPHC 249 (12 March 2025) at para 34. See also Guman NO v Ansari Guman NO v Ansari and
others [2011] ZAGPJHC 124 (23 September 2011), and Miya v Matlhko -Seifert [2022] 4 All SA 401
(GJ).
legal interests in respect of the lease agreements, and to protect its legal and
commercial interests.
[12] The test for whether there has been non-joinder, and also in an application for
leave to intervene, is whether or not the party has a direct and substantial
interest in the subject matter of the litigation, i.e. a legal interest in the su bject
matter of litigation, which may be affected prejudicially by the judgment of the
court.3
[13] In this matter, and c ontrary to what is submitted by the respondents’ counsel,
it is not necessary to adjudicate the lien dispute prior to determining the
eviction application. This is because, even assuming in favour of MB and the
respondents that MB holds a lien over the property , as a matter of law MB
was not entitled to let the property to the respondents . Furthermore, an
eviction order will not affect the alleged lien held by MB.
[14] Consequently, MB is without any legal interest in the outcome of the eviction
application. Its interests are no more than financial, and interests of this
nature are insufficient to justify its joinder.4
[15] Leave to intervene is also sought on the basis that the Trust has made
unsubstantiated, disingenuous and defamatory allegations concerning the role
and conduct of MB. This contention does not entitle MB to intervene because
none of those all egations are directly in issue between the litigating parties in
the eviction application, nor do the impugned allegations have to be decided
in the determination of the merits of the eviction application.5
THE ENQUIRY UNDER THE PIE ACT
3 Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA)
at para 12; South African Riding for the Disabled Association v Re gional Land Claims Commissioner
and Others 2017 (5) SA 1 (CC) at paras 9 -10. See also Matjhabeng Local Municipality v Eskom
Holdings Ltd 2018 (1) SA 1 (CC) at para 92.
4 Aquatur (Pty) Ltd v Sacks 1989 (1) SA 56 (A) at 61J-62G.
4 Aquatur (Pty) Ltd v Sacks 1989 (1) SA 56 (A) at 61J-62G.
5 SA Commercial Catering and Allied Workers Union v Lehapa N.O. (Mostert N.O. Intervening) 2005
(6) SA 354 (W) para 6.
[16] In the eviction application, the enquiry is three-fold:
16.1. First, the court is called upon to determine the lawfulness of the
occupation.
16.2. Second, if the occupation is unlawful, the court must determine
whether an eviction order is just and equitable.
16.3. Third, if an eviction order is just and equitable, the court must
determine a just and equitable date for the implementation of the
eviction order. 6
Lawfulness of the occupation
[17] The jurisdictional requirement to trigger an eviction under the PIE Act is that
the person sought to be evicted must be an unlawful occupier within the
meaning of the PIE Act at the time when the eviction proceedings were
launched. 7 The following definitions in s 1 of the PIE Act are relevant to th is
enquiry:
17.1. An unlawful occupier is defined 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.’
17.2. Consent is defined as ‘the express or tacit consent, whether in writing
or otherwise, of the owner or person in charge to the occupation by the
occupier of the land in question.’
17.3. An owner is defined as ‘ the registered owner of land, including an
organ of state’.
17.4. A person in charge is defined as ‘ a person who has or at the relevant
time had legal authority to give permission to a person to enter or
reside upon the land in question’.
6 Transcend Residential Property Fund Ltd v Mati and Others 2018 (4) SA 515 (WCC) at par 3.
7 Davidan v Polovin N O and Others [2021] 4 All SA 37 (SCA) at par 11.
[18] The respondents are in occupation of the property without the express or tacit
consent of the owner of the propert y, namely the Trust . The respondents do
not contend otherwise.
[19] The respondents’ reliance on the lease agreements concluded with MB to
demonstrate the lawfulness of their occupation is misplaced . A lien holder
does not fall within the definition of a person in charge as contemplated in the
PIE Act because of the absence of the requisite legal authority on the part of
the lien holder.
[20] It follows t hat the respondents are unlawful occupiers as contemplated in the
PIE Act because they occupy the property without the consent of the Trust or
any other right in law to do so.
A just and equitable order
[21] In its determination of a just and equitable order, the enquires that must be
undertaken by a court in proceedings brought in terms of the PIE Act are: 8
21.1. First, the court must decide whether it is just and equitable to all parties
to grant an eviction order , having regard to all relevant
circumstances. Among those circumstances, the availability of
alternative land and the rights and needs of people falling in specific
vulnerable groups are singled out for consideration.
21.2. Second, and once the conclusion has been reached that eviction would
be just and equitable, the court must consider what justice and equity
demand in relation to the date of implementation of that order , and it
must consider what conditions must be attached to that order. 9 In this
second enquiry, the court must consider the impact of an eviction order
8 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) (‘ Changing Tides’) at
para 12-25.
9 Id.
on the unlawful occupiers and whether they may be rendered
homeless thereby or need emergency assistance to relocate
elsewhere.10
[22] At the hearing of the matter, the respondents were directed to complete t he
Personal Circumstances Questionnaires necessary for the seventh
respondent, the City of Cape Town ( the City ), to prepare a housing report
that takes these circumstances into account. These questionnaires were duly
completed y the respondents . At the same time, t he respondents delivered
further affidavits setting out their personal circumstances. Thereafter, the City
delivered the housing report.
[23] Their contents are summarised below.
The first respondent
[24] The first respondent is 36 years old, and states in his affidavit that he is self-
employed and earns approximately R15,000.00 per month.
[25] The first respondent further states that:
25.1. He has three minor children , aged 10, 8 and 4 years old, who attend
school in the area, and who reside at the property with him and their
mother.
25.2. He suffers from hypertension which requires medication.
25.3. Should they be immediately evicted from the property, he and his
family will be rendered homeless as he does not have family members
who can accommodate his family nor any additional funds to secure
alternative accommodation.
25.4. He will need time to accumulate funds to secure alternative
accommodation.
10 Id.
25.5. An eviction order will disrupt his children’s education and his religious
observances at the mosque situated in the area, and sever community
connections.
[26] The applicants dispute the v eracity of th ese statements, pointing to inter alia
inconsistencies with the respondents’ averments in other litigation, the details
in the Sheriff’s returns of service, the unlikelihood of his family residing with
him and the other respondents given that the property consists of only three
bedrooms, and the first respondent’s failure to make full disclosure of the
information required in the questionnaires.
[27] However, I am prepared to accept at face value the personal circumstances
set forth by the first respondent in his affidavit and the questionnaire, including
that he has three minor children who reside with him at the property . The fact
that the first respondent earns R15,000.00 per month is indicative that the first
respondent has the means to meet his family ’s housing needs , particularly
when regard is had to the questionnaire he completed, where in he indicates
that he pays a rental of R10,000.00 per month.
[28] It is also noteworthy that the first respondent fails to complete the section of
the questionnaire requiring information on the steps taken in the meantime to
obtain alternative accommodation.
The second respondent
[29] The second respondent is 58 years old, and states in his affidavit that he is
self-employed and earns approximately R15,000.00 per month.
[30] The second respondent further states that:
30.1. He has three dependents for whom he is responsible. The
questionnaire completed by the second respondent reflects that these
dependants comprise one minor child aged 16 and two adult children
aged 20 and 24, who it seems reside at the property.
30.2. Should he be immediately evicted from the property, he will be
rendered homeless as he does not have family members who can
accommodate him nor any additional funds to secure alternative
accommodation with immediate effect.
30.3. An eviction order will disrupt his religious observances at the mosque
situated in the area, and sever community connections.
[31] In the case of the second respondent, the personal circumstances set forth by
him in his affidavit and the questionnaire reflect that he earns R15,000.00 per
month, which is indicative that the second respondent has the means to meet
his housing needs , particularly when regard is had to the questionnaire he
completed, where in he indicates that he pays a rental of R10,000.00 per
month.
[32] Again, i t is noteworthy that the second respondent fails to complete the
section of the questionnaire requiring information on the steps taken in the
meantime to obtain alternative accommodation.
The third respondent
[33] The third respondent is 32 years old, and states in his affidavit that he is
currently unemployed, but is occasionally employed on a part -time contractual
basis, earning approximately R4,000.00 to R5 ,000.00 per month when he is
working.
[34] The third respondent further states that:
34.1. He is responsible for two dependants who reside with him at the
property, though he fails to provide details of their ages.
34.2. Should he be immediately evicted from the property, he and his
dependants will be rendered homeless as he does not have family
members who can accommodate him nor any additional funds to
secure alternative accommodation.
[35] The paucity of information furnished in relation to his dependants extends to
the third respondent’s failure to complete the section of the questionnaire
requiring information on the steps taken in the meantime to obtain alternative
accommodation.
[36] However, in the questionnaire completed by the third respondent, he indicates
that he pays a rental of R2,000.00 per month. Given content of the housing
report, the third respondent may avail himself of the social housing
programme to meet his housing needs.
The fourth respondent
[37] The fourth respondent is 54 years old and states in his affidavit that he is
employed on a part -time contractual basis, with an income of between
approximately R4000.00 and R5000.00 per month.
[38] He alleges in his affidavit that he has four dependents, and in his
questionnaire indicates that he has no dependants who reside with him at the
property.
[39] The fourth respondent further alleges that:
39.1. He suffers from hypertension and diabetes.
39.2. Should he be immediately evicted from the property, he will be
rendered homeless as he does not have family members who can
accommodate him nor any additional funds to secure alternative
accommodation with immediate effect.
39.3. An eviction order will disrupt his religious observances at the mosque
situated in the area, and sever community connections.
39.4. His ability to earn would be severely compromised because his
landscaping work is conducted in and around the area where he
resides.
[40] The fourth respondent fails to complete the section of the questionnaire
requiring information on the steps taken in the m eantime to obtain alternative
accommodation.
[41] However, the personal circumstances set forth by the fourth respondent in his
affidavit and the questionnaire reflect that he earns at least R4,000.00 per
month, This is indicative that the third respondent has the means to meet his
housing needs , particularly when regard is had to the questionnaire he
completed, where he indicates that he pays a rental of R2,000.00 per month,
and to the content of the housing report , which explains that income levels of
between R1,501.00 and R15,000.00 are required to qualify for the social
housing programme.
The fifth respondent
[42] The fifth respondent is a 31 year old Bangladeshi. He states in his affidavit
that he is employed on a part -time contractual basis, with an income of
between approximately R4000.00 and R5000.00 per month.
[43] In the personal circumstances completed by the fifth respondent, he indicates
that he pays a rental of R2,000.00 per month.
[44] The fifth respondent states that should he be immediately evicted from the
property, he will be rendered homeless as he does not have family members
who can accommodate him nor any additional funds to secure alternative
accommodation.
[45] It is again noteworthy that the fifth respondent fails to complete the section of
the questionnaire requiring information on the steps taken in the meantime to
obtain alternative accommodation.
[46] The issue of alternative accommodation for the fifth respondents is addressed
in the housing report.
The housing report
[47] The housing report sets out the respondents personal circumstances as
detailed in the questionnaires they completed . It is reported that the first,
second, third and fourth respondents will not be assisted with an emergency
housing kit, and it is recommended that these respondents be ref erred to the
Social Housing Programme.
[48] As to the fifth respondent, the City reports that in order for it to consider
providing alternative accommodation or a housing kit, the City requires the
fifth respondent’s identity documentation or any other legal documentation
indicating that he is legally in the country.
[49] In this regard, an offer of alternative accommodation is not a pre -condition for
the granting of an eviction order but rather one of the factors to be considered
by a court. 11
[50] Furthermore, where the affidavits in eviction proceedings are silent on matters
which the respondents should be able to address with relative ease, a
satisfactory explanation should be provided for the omission, and in the
absence thereof a court will be justified in drawing the inference that a bald
assertion of impecuniosity or homelessness is not genuine or credible.12
[51] The facts show that there is a reasonable possibility that the first to f ifth
respondents will be able to secure alternative accommodati on, including
through the social housing programme in the case of the first to fourth
respondents. The respondents have not explained how they have tried and
failed to find alternative accommodation within their available resources, when
it is incumbent on them to have done so. 13
11 Grobler v Phillips and Others 2023 (1) SA 321 (CC) at par 38.
12 Luanga v Perth Park Properties Ltd 2019 (3) SA 214 (WCC) at par 48.
13 Patel N.O. And Others v Mayekiso and Others (WCC 3680/16, delivered on 23 September
2016) at para 33.
[52] The respondents have no defence to the claim for eviction because their
lease agreements with MB are unlawful, and there are no factors justifying the
respondents’ ongoing occupation of the property.
[53] The trustees have explained that the Trust has suffered substantial financial
prejudice as a consequence of the respondents’ occupation of the property,
and it continues to suffer financial prejudice due to lost rental income and
having to pay rates and municipal service charges in respect of the property.
As the registered owner of the property, the Trust has a right to constitutional
protection
[54] I am therefore satisfied that in these circumstances it is just and equitable to
all parties to grant an eviction order.
[55] Given the litigation history between the parties, the applicants ask that this
court direct that the respondents be evicted forthwith.
[56] However, accord ing to the respondents’ account of their personal
circumstances, minor children will be impacted by an eviction order. To
ameliorate any prejudice they may suffer as a consequence of the impact of
an eviction on their schooling , it is necessary to make an order that ensures
that the timing of the eviction provides sufficient time for the affected
respondents to either secure alternative accommodation in the area where
they currently reside, or to arrange alternative schooling for the minor children
closer to where they are able to secure alternative accommodation.
[57] The respondents, on their own version, can afford alternative accommodation
from their own resources in that they can afford to pay the rental amount they
state that they are paying to MB, and will therefore not be rendered homeless
if they are evicted.
[58] In the circumstances, it is just and equitable to provide for the implementation
of the eviction order two months from the date of the granting of this order.
[59] As regards the issue of costs, there is no reason why costs ought not to follow
the result.
ORDER
[60] I accordingly make the following order:
1. The application for leave to intervene is dismissed with costs,
including the costs of counsel on Scale ‘B’.
2. The first to sixth respondents are directed to vacate the property
situated at 2[…] T[…] Way, Meadowridge, Cape Town, also known
as Erf 3[...], Meadowridge, Cape Town (the property) on or before
27 October 2025.
3. In the event that any of the first to sixth respondents fail to vacate the
property on or before 27 October 2025, the Sheriff of this Court or
his/her deputy is authorised and directed to evict the such
respondents from the property.
4. The first to fifth respondents are directed to pay the costs of the
application for eviction and the application for security for costs ,
including the costs of counsel on Scale ‘B’ , jointly and severally, the
one paying, the other to be absolved.
__________________________
ACTING JUDGE T SARKAS
For applicants: Adv DJ Van der Merwe
Instructed by: Wayne Hufkie Attorneys
For respondents: Adv DM Nyathi
Instructed by: TJC Dunn Attorneys
For intervening applicant: Adv Abbas
Instructed by: C Adams