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Abduraouf NO and another v Wanga and Others (149043/2024) [2025] ZAWCHC 413 (28 August 2025)

52 Reportability
Land and Property Law
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Brief Summary

Eviction — Unlawful occupation — Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 — Applicants, as trustees of the Qaasim Abduraouf Trust, sought eviction of Respondents from property unlawfully occupied since 2014 — Respondents claimed rights based on a void Deed of Sale and alleged improvements made to the property — Court held that the Deed of Sale was null and void due to lack of executorship and that Respondents had no legal right to occupy the property — Eviction order granted as just and equitable, with Respondents required to vacate by a specified date.

Comprehensive Summary

Case Note


Qaasim Abduraouf N.O and Another v Dede Arthur Wanga and Three Others

Case number 149043/2024 – High Court of South Africa, Western Cape Division, Cape Town

[2025] ZAWCHC (28 August 2025) – per Njokweni AJ


Reportability


Although the judgment itself is marked “Not Reportable”, it is in fact of considerable precedential value. First, it clarifies the interaction between section 13 of the Administration of Estates Act 66 of 1965 and section 2(1) read with section 28 of the Alienation of Land Act 68 of 1981 in circumstances where a surviving spouse purports to sell immovable property that still vests in a deceased estate.


Secondly, the judgment offers a focused analysis of the requirements for an enrichment (improvement) lien when raised as a defence to eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). The court’s treatment of the bona fide possessor requirement, and its insistence that such a lien be directed at the true enrichment debtor, provides important guidance to practitioners.


Finally, the case underscores the constitutional necessity to weigh owners’ property interests against the housing rights of unlawful occupiers. In doing so, it synthesises Constitutional Court and Supreme Court of Appeal jurisprudence, making it a useful reference for future eviction litigation in the Western Cape and beyond.


Cases Cited


United Building Society v Smookler’s Trustees and Galoombick’s Trustees 1906 TS 623


Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A)


Ndlovu v Ngcobo; Bekker and Bosch v Jika 2003 (1) SA 113 (SCA)


Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)


Resnick v Government of the Republic of South Africa (A536/2011) [2012] ZAWCHC 395; 2014 (2) SA 337 (WCC)


Steenkamp v Bradbury’s Commercial Auto Body CC (2882/2019) [2020] ZALMPPHC 9 (23 January 2020)


D Glaser & Sons (Pty) Ltd v Hall 1979 (4) SA 780 (A)


Legislation Cited


Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”)


Alienation of Land Act 68 of 1981


Administration of Estates Act 66 of 1965


Rules of Court Cited


Uniform Rules of Court, rule 4 (service of process) and rule 6 (motion proceedings) – referenced implicitly in relation to service requirements under PIE.


HEADNOTE


Summary


The applicants, acting as trustees of the Qaasim Abduraouf Trust, sought an order evicting the first and second respondents and all persons holding under them from residential property in Ottery, Cape Town. The respondents had taken occupation in 2014 pursuant to a deed of sale concluded with the then-surviving joint owner. At the time, no executor had been appointed to the deceased spouse’s estate. In 2024 the property was sold to the trust after proper appointment of an executor and subsequent transfer. When the respondents refused to vacate, eviction proceedings were launched under PIE.


Opposing the application, the respondents relied on two principal defences: the 2014 deed of sale (said to vest them with lawful possession) and an alleged improvement lien arising from renovations worth R550 503. They contended that eviction would render their household of six, including minor grandchildren, homeless, and thus would not be just and equitable.


The court held that the 2014 deed of sale was void ab initio for want of compliance with both the Administration of Estates Act and the Alienation of Land Act. Because the respondents were never bona fide possessors, they could not establish an enrichment lien enforceable against the trust. Having considered all relevant personal circumstances and municipal obligations, the court granted eviction, fixing a vacation date and authorising the sheriff to evict if the order was not honoured.


Key Issues


Whether the respondents’ occupation, originally obtained under a void deed of sale, rendered them unlawful occupiers for purposes of PIE.


Whether an improvement (enrichment) lien could be raised against the trust notwithstanding the respondents’ lack of bona fide possession and the absence of enrichment of the trust.


Whether, on the facts, it was just and equitable to grant an eviction order and what conditions should govern the respondents’ departure.


Held




  1. The deed of sale concluded on 7 November 2014 contravened section 13 of the Administration of Estates Act and section 2(1) of the Alienation of Land Act; it was consequently void from inception.




  2. The respondents’ continued occupation after transfer to the trust was therefore without consent or any lawful basis, rendering them unlawful occupiers as defined in PIE.




  3. The requirements for an enrichment lien were not satisfied: the respondents were not bona fide possessors; the alleged improvements were effected without the owner’s consent; any enrichment accrued, if at all, to the deceased estate or the surviving spouse, not to the trust.




  4. Compliance with sections 4(2)–(5) of PIE was established, and the respondents failed to raise a valid defence. Balancing all relevant circumstances, eviction was just and equitable. The court fixed 26 September 2025 as the date for vacating and authorised the sheriff to evict on 29 September 2025, with costs on the attorney-and-client scale.




THE FACTS


The property in question was formerly held jointly by the late Jamal Abdul Nasir and his wife, Ms Labieba Nasir. Following Mr Nasir’s death in August 2013, Ms Nasir purported to sell the whole property to the respondents in November 2014 for R1.3 million. No executor had yet been appointed, and the Master had not issued letters of executorship. The respondents, however, took occupation immediately, anticipating transfer.


Only in March 2017 was an executor appointed to the deceased estate. Acting through an attorney, both the executor and Ms Nasir later sold the property in July 2024. It passed first to Skyscore Investments (Pty) Ltd and, within days, to the applicants’ trust for R900 000. Transfer to the trust was registered in December 2024. The respondents remained in situ, prompting the trustees to deliver a 48-hour notice to vacate in October 2024 and to institute eviction proceedings in December 2024.


The respondents acknowledged receiving notice but refused to leave, asserting improvements totalling R550 503 and claiming that eviction would leave their family, including two minor grandchildren, without shelter. They tendered to repurchase the property for R1 million in an effort to stave off eviction.


THE ISSUES


The court was required to decide, first, whether the respondents’ occupation was lawful or unlawful under PIE, given the void deed of sale and subsequent transfer to the trust. Secondly, it had to determine whether the respondents were entitled to retain possession by virtue of an alleged improvement lien, and, if so, against whom that lien could be enforced. Finally, it had to resolve whether, considering all personal and constitutional factors, an eviction order would nonetheless be just and equitable, and if so on what terms.


ANALYSIS


Njokweni AJ began by emphasising that section 13(1) of the Administration of Estates Act prohibits any person from liquidating or distributing a deceased estate’s assets without letters of executorship. Because Ms Nasir had lacked such authority in 2014, the deed of sale was null. Consequently, the respondents’ initial occupation was never under a valid title, and any consent that might have existed terminated once the deed was revealed to be void.


Turning to the respondents’ reliance on an improvement lien, the court reviewed classic authorities, including United Building Society v Smookler’s Trustees and Brooklyn House Furnishers v Knoetze & Sons, which distinguish enrichment liens from debtor-and-creditor liens. A crucial requirement is that the possessor be bona fide, believing in good faith that he or she is the owner or entitled to possess. Here, the respondents knew, or ought to have known, that transfer had never been effected and that the executor’s consent was required. Their reliance on a contractual clause barring alterations without written consent further undermined their bona fides.


Even assuming the improvements enhanced the property, the court held that any enrichment accrued to Ms Nasir and the deceased estate at the time the work was done, not to the trust which only acquired ownership years later. The enrichment element (and hence the lien) therefore failed.


Under PIE, once unlawfulness was established, the pivotal enquiry became whether eviction would be just and equitable. The court carefully assessed the household composition, employment status, and alleged vulnerability of the occupiers. Notably, the first respondent was employed by the United Nations; the adult children’s circumstances were unexplained; and despite repeated invitations, the respondents declined to complete a personal-circumstances questionnaire. The municipality was alerted and filed no report indicating a scarcity of emergency accommodation.


Balancing the competing rights, the court concluded that the trust had been deprived of possession for almost a year, was paying a mortgage, and faced ongoing losses. Granting a reasonable grace period of one month, combined with sheriff-assisted eviction thereafter, struck an appropriate balance between compassion and the vindication of ownership.


REMEDY


The court granted an eviction order in terms of section 4(8) of PIE. It required the respondents to vacate by 13h00 on 26 September 2025 and authorised the sheriff, with SAPS assistance if necessary, to effect eviction on 29 September 2025 should they fail to comply. Costs were awarded against the respondents jointly and severally on the punitive attorney-and-client scale, reflecting the court’s disapproval of their continued occupation and unmeritorious defences.


LEGAL PRINCIPLES


This judgment restates that any purported alienation of estate property by an unauthorised person is void, reaffirming the supremacy of section 13 of the Administration of Estates Act and the formalities imposed by section 2 of the Alienation of Land Act.


It confirms that an enrichment lien is available only to a bona fide possessor and only against the party actually enriched. Where the property has since changed hands, the lien-holder must show that the current owner is indeed the enrichment debtor—a hurdle the respondents could not surmount.


Finally, the decision underscores the constitutional dimension of PIE: while unlawful occupiers enjoy procedural and substantive protections, those protections do not translate into an indefinite right to remain. Courts must grant eviction once procedural compliance is proved and no valid defence exists, but must tailor the order so that it is “just and equitable”, typically by fixing a humane timeframe and engaging the relevant municipality regarding alternative accommodation.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT

Not Reportable
Case no: 149043/2024

In the matter between:

QAASIM ABDURAOUF N.O First Applicant
(In his capacity as duly authorised Trustee of
THE QAASIM ABDURAOUF TRUST: I[...])

MAJIDA KASU N.O. Second Applicant
(In her capacity as duly authorised Trustee of
THE QAASIM ABDURAOUF TRUST: I[...])

and

DEDE ARTHUR WANGA First Respondent
(AND ALL THOSE HOLDING TITLE UNDER HIM)

TYTY WANGA Second Respondent
(AND ALL THOSE HOLDING TITLE UNDER HER)

ALL THOSE PERSONS WHOSE IDENTITIES ARE TO Third Respondent
THE APPLICANT’S UNKNOWN WHO ARE UNLAWFULLY
OCCUPYING THE PROPERTY COMMONLY KNOWN AS
[...] A[...] AVENUE, TURFHALL ESTATE,
OTTERY EAST 7800

CITY OF CAPE TOWN Fourth Respondent

Neutral citation: Qaasim Abduraouf N.O and Another v Dede Arthur Wanga and
3 Others (Case no 2024-149043) [2025] ZAWCHC (28
AUGUST 2025)
Coram: NJOKWENI AJ
Heard: 27 May 2025
Delivered: 28 August 2025
Summary: Unlawful occup ation of residential property – Prevention of Illegal
Eviction from Unlawful Occupation of Land Act, No.19 of 1998 – improvements lien
– enrichment lien – s28 of the Alienation of Land Act, No.68 of 1981 – just and
equitable relief.
___________________________________________________________________
ORDER
___________________________________________________________________

1. An eviction order is hereby granted against the First Respondent,
Second Respondents and all other persons holding occupation under
them (“the Respondents”), at the immovable property known as ERF
1[...] WETTON TOWNSHIP, IN THE CITY OF CAPE TOWN, DIVISION
CAPE TOWN, PROVINCE OF THE WESTERN CAPE, IN EXTENT 478
(FOUR HUNDRED AND SEVENTY EIGHT) SQUARE METRES HELD
BY DEED OF TRANSFER NUMBER T[...]COMMONLY KNOWN AS
[...] A[...] AVENUE, TURFHALL ESTATE, OTTERY EAST 7800 (“the
property”).
2. The Respondents shall vacate the property by no later than 13h00 on
Friday 26 September 2025.
3. Should the Respondents fail to vacate the property as mentioned in

paragraph 2 above, the Sheriff of this Court and/or his duly appointed
deputy is a uthorised and directed to evict the Respondents from the
Property on Monday 29 September 2025.
4. To give effect to this Order and to the extent necessary, the Sheriff of
this Court and/or his duly appointed deputy is authorised to elicit
assistance from the South African Police Services.
5. The Respondents shall pay the Applicant’s costs of this application,
jointly and severally, the one paying the other to be absolved, on an
attorney and client scale.


JUDGMENT


Njokweni AJ

Introduction

[1] This is an application for eviction of the Respondents from the immovable
property known as ERF 1[...] WETTON TOWNSHIP, IN THE CITY OF
CAPE TOWN, DIVISION CAPE TOWN, PROVINCE OF THE WESTERN
CAPE, IN EXTENT 478 (FOUR HUNDRED AND SEVENTY-EIGHT)
SQUARE METRES HELD BY D EED OF TRANSFER NUMBER
T[...]COMMONLY KNOWN AS [...] A[...] AVENUE, TURFHALL ESTATE,
OTTERY EAST 7800 (“the property”) because they are in unlawful
occupation thereof.

[2] The Applicants are the Trustees for the time being of the Qaasim Abduraouf
Trust (“trust”), namely: Qaasim Abduraouf and Majida Kasu and who are
collectively (“the trustees”) . They are both acting in their official capacity as
trustees of the trust.

[3] The First Respondent is Dede Arthur Wanga, a husband to Tyty Wanga, the

Second Respondent and the Third Respondent s are all persons who
unlawfully occupy the property under the First Respondent, alternatively
under the Second Respondent, collectively (“the Respondents”). The Fourth
Respondent is the City of Cape Town (“the City”) but no substantive relief is
sought against it and is merely cited and joined in this application because
of the nature of its duties as an Organ of State in terms of the Prevention of
Illegal Eviction from Unlawful Occupation of Land Act, No.19 of 1998 (“the
PIE Act”).

[4] The Respondents are opposing the application and relief sought by the
Applicants against them.

Facts

[5] The property was previously jointly owned by and registered in the names of
both Ms. Labieba h Nasir (“Mrs Nasir”) and the late Jamal Abdul Nasir (“the
deceased”) who had passed away on 8 August 2013. Fifteen months after
his death, specifically on 7 November 2014, Mrs Nasir purported to sell the
property to the First and Second Respondents for R1 300 000 by concluding
a written Deed of Sale (“the impugned Deed of Sale”) . In terms of the Deed
of Sale, Mrs Nasir undertook to give to the Respondents vacant possession
of the property on registration of transfer or on 7 November 2014. The
Respondents took vacant occupation of the property on 7 November 2014.
At that time , the estate of the deceased had no t yet been reported to the
Master of the High Court and as such , no executor or executrix had yet
been appointed. Consequentially, Mrs Nasir did not have a right to sell the
property absent consent of a duly appointed executor or executrix. As a
result, th e Applicants contend that the purported Deed of Sale is void ab
initio due to non-compliance with the relevant provisions of the Alienation of
Land Act1, the Deed of Sale was void ab initio.

[6] The Respondents also claim to have effected certain improvements to the

1 Alienation of Land Act, No 68 of 1981.(“ALA”)

property in the amount of R550 503 since they took occupation.

[7] In relevant part, the impugned Deed of Sale inter alia provides:

“If occupation is given to the Purchaser before the date of transfer: … the
Purchaser shall not be entitled to make any alterations on the property
before transfer without the prior written consent of the Seller which consent
shall be at the Seller’s sole and absolute discretion … the Purchaser shall
be obliged to vacate the property upon cancellation o f this agreement for
whatsoever reason, no tenancy being created by any such prior
occupation.”

[8] On 10 March 2017, the Master of the High Court duly appointed Mogamat
Waqarudeen Nasir as the Executor of the deceased estate, the late Jamal
Abdul Nasir and i ssued him with Letter of Executorship. At that stage, the
deceased estate was insolvent and was administered in terms of section 34
of the Administration of Estates Act, No.66 of 1965. On 27 January 2020 ,
Mogamat Waqarudeen Nasir (“the Executor”) executed a Special Power of
Attorney appointing Mustafa Mohamed (“Mr. Mohamed”), a practising
attorney, to act as his attorney and agent and to do everything necessary to
wind up the deceased estate. Similarly, on 2 November 2021, Mrs Nasir
also executed a Special Power of Attorney appointing Mr. Mohamed to act
as her agent and to effect s ale of her undivided half -share in the property
and to sign and execute all documents required to pass transfer of her
undivided half-share in the property.

[9] On 11 July 2024 in execution of his aforesaid mandate , Mr. Mohamed sold
the property to Skyscore Investments (Pty) Ltd (“Skyscore”) for R900 000
and concluded a written Deed of Sale. In turn, on 16 July 2024 , Skyscore
sold the property to the Trust for R900 000 and on 11 Dec ember 2024, the
transfer of the property was registered in the relevant deeds registry in Cape
Town. Accordingly, the benefit and all risk in the property are transferred to

Town. Accordingly, the benefit and all risk in the property are transferred to
the trust. However, due to unlawful occupation of the property by the
Respondents, the trust was unable to take occupation and possession of the

property. And that situation still persists.

[10] On 11 October 2024 , a notice to vacate the property, within 48 hours of
service thereof, was duly delivered by the Sheriff to the Respondents
personally. The Respondents failed to comply with the notice to vacate and
remain in occupation to date of this judgment. This failure to comply with the
notice led to the institution of these proceedings on 18 December 2024. The
property is subject to a regist ered Mortgage Bond (“the Bond”) in favour of
ABSA Bank Limited (“ABSA ”).

[11] In the circumstances, the Applicants contend that the Respondents have no
legal right to remain in occupation of the property and therefore, are in
unlawful occupation thereof. The application is opposed by the
Respondents.

Issues for determination

[12] On distillation of the above relevant facts, the issues for determination have
congealed, and are set out below as being: (1) a re the Respondents in
unlawful occupation; and (2) if so, would it be just and equitable to grant the
eviction order against the Respondents.

Applicable legal principles

Alienation of Land Act (“ALA”)

[13] The Respondents’ defence regarding unlawful occupation of the property is
premised on the relevant provisions of the impugned Deed of Sale. Section
2(1) of ALA provides:

Formalities in respect of Deeds of Alienation
“2. (1) No alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force or effect unless it is

contained in a deed of alienation signed by the parties thereto or by their
agents acting on their written authority.
(2) The provisions of subsection (1) relating to signature by the agent o f a
party acting on the written authority of the party, shall not derogate from the
provisions of any law relating to the making of a contract in writing by a
person professing to act as agent or trustee for a company not yet formed,
incorporated or registered.”

Administration of Estates Act (“AEA”)

[14] Apropos the disposal of property of a deceased person, the relevant
provisions of the Administration of Estates Act2 (“AEA”), provides:

“13 Deceased estates not to be liquidated or distributed without letters
of executorship or direction by Master.
(1) No person shall liquidate or distribute the estate of any deceased
person, except under letters of executorship granted or signed and
sealed under this Act, or under an endorsement made under section
fifteen, or in pursuance of a direction by a Master.”

Improvement liens

[15] “[8] A lien is a right of retention which arises from the fact that one man has
put money or money's worth into the property of another - United Building
Society v Smookler's Trustees and Galoombick's Trustees 1906 TS 623 at
627-628. Liens are generally divided into debtor -and-creditor liens on the
one hand and enrichment liens on the other hand.
….
[11] Enrichment liens are generally regarded as real rights and may take
the form of either improvement or salvage liens, depending on whether they
relate to useful or necessary expense respectively (D Glaser & Sons (Pty)
Ltd supra). They are conferred on a per son irrespective of any prior

2 Section 13(1) of the Administration of Estates Act 66 of 1965.

relationship between him or herself and the owner of the property. To rely on
a salvage or improvement lien, the lien holder must allege and prove:

(i) lawful possession of the object;
(ii) that the expenses were neces sary for the salvation of the thing or
useful for its improvement;
(iii) the actual expenses and the extent of the enrichment of the owner;
and
(iv) that there was no contractual arrangement between the parties in
respect of the expenses.

See Brookly n House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA
264 (A). Harms, Amler's Precedents of Pleadings, 9th Edition p 249.

[12] Salvage and improvement liens are said to be "real" liens. The y are
real rights. They are not created by contract but are based on the equitable
principle that by the law of nature it is only fair that nobody should become
wealthier through the loss and injury of another.

See D Glaser & Sons (Pty) Ltd supra.” 3

[16] It is trite that an improvement lien is only available to a bona fide possessor
of the property who has made improvements to that property. It is a right
recognised by law as a real right which is enforceable against the whole
world, however, it does not e xist in a vacuum but has a basis of an
underlying enrichment claim. It is a just and equitable remedy for no one
should be enriched at the expense of another where the former had made
improvements to a property.

[17] The general requirements for an enrichment claim as pertains to the current
application are that:


3 Steenkamp v Bradbury's Commercial Auto Body CC (2882/2019) [2020] ZALMPPHC 9 (23 January
2020)

(a) the Trust must have been enriched;
(b) the Respondents must have been impoverished;
(c) the enrichment of the Trust must be at the expense of the
Respondents; and
(d) the enrichment must be unjustified or sine causa.

Prevention of Illegal Eviction from Land Act (“PIE”)

[18] In Ndlovu v Ngcobo; Bekker and Bosch v Jika 4, the Supreme Court of
Appeal in a majority judgment, held that PIE disposed of certain common -
law rights relating to eviction. The majority judgment can be summarized as
follows:

…
(b) The definition of an unlawful occupier in s 1 of PIE relates to a person
who occupies land without the express or tacit consent of the owner or
person in charge of such land. In its ordinary meaning the definition of an
unlawful occupier means that PI E applies to all unlawful occupiers,
irrespective of whether their occupation of such land was previously lawful.
…
(c) The effect of PIE is not to expropriate private property. What PIE does is
to delay or suspend the exercise of a landowner’s full propr ietary rights until
a determination has been made whether it is just and equitable to evict the
unlawful occupier and under what conditions.
…
(f) Provided the procedural requirements laid down in PIE have been met, a
landowner is entitled to approach the court on the basis of ownership and
the occupier’s unlawful occupation. In this regard the occupier bears an
evidential onus...”.

… The purpose of this requirement is to provide protection to occupants by
alerting them to the threat to their occupation and the basis thereof; alerting

4 Ndlovu v Ngcobo, Bekker and Bosch v Jika 2003 (1) SA 113 (SCA).

them to the provisions of and the protections and defences afforded to them
by PIE; advising them of th eir rights to legal representation; and informing
them of the date and place of the hearing and ‘to afford the respondents in
an application under PIE an additional opportunity, apart from the
opportunity they have already had under the Rules of Court, to put all the
circumstances they allege to be relevant before the court. In addition, the
period of notice provided for permits the municipality and the occupants
concerned to investigate the availability of alternative accommodation or
land and to explore t he possibility of mediation in terms of s 7 of PIE. The
notice requirement applies even to proceedings leading to the grant of a rule
nisi against occupants.
… the court may grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering all the relevant circumstances,
including the rights and needs of the elderly, children, disabled persons and
households headed by women. In addition to these requirements the court
is required to consider whether land has been made available or can
reasonably be made available by a municipality or other organ of state or
another landowner for the relocation of the defendant, if the latter has been
in unlawful occupation for longer than six months. The period of occupation
is calculated from the date that the occupation becomes unlawful.

… If the requirement of s 4 of PIE are satisfied and no valid defence to
an eviction order has been raised, the court ‘must’, in terms of s 4(8),
grant an eviction order . When granting such an order the court must, in
terms of s 4(8)(a) of PIE, determine a just and equitable date on which the
unlawful
occupier or occupiers must vacate the premises…”.

Application of Law to Facts

[19] It is undisputed that the Respondents reside on the property, and that the
applicant is its registered owner. The Applicant has provided incontrovertible

applicant is its registered owner. The Applicant has provided incontrovertible
documentary proof of ownership of the property by the trust.

PIE compliance

Unlawful occupation

[20] The Respondents justify their unlawful occupation of the property on two
grounds that, they: (1) gained possession of the property in terms of the
impugned Deed of Sale; and (2) have made improvements in the property to
the value of R550 503.

The impugned Deed of Sale

[21] The Respondents gained possession of the property when they purported to
conclude the sale of the property through the impugned Deed of Sale of 7
November 2014. The purported sale of the property to the Respondents is
null and void ab initio . This is becau se section 13(1) of AEA expressly
prohibits disposal of property of a deceased person except under letters of
executorship granted or signed and sealed under this Act, or under an
endorsement made under section fifteen, or in pursuance of a direction by a
Master. It is not in dispute that Mrs Nasir was not issued with Letters of
Executorship when she signed the impugned Deed of Sale. Equally, she did
not act as an endorsement made under section 15, or in pursuance of a
direction by a Master . Moreover, the impugned Deed of Sale obliges the
Respondents to vacate the property upon cancellation of this agreement for
whatsoever reason, no tenancy being created by any such prior occupation.

The improvements made to the property

[22] Tangentially and in relevant part, the impugned Deed of Sale provides:

“If occupation is given to the Purchaser before the date of transfer: … the
Purchaser shall not be entitled to make any alterations on the property
before transfer without the prior written consent of the Seller which consent
shall be at the Seller’s sole and absolute discretion…”.

[23] Neither Mrs Nasir, the Executor, nor Mr. Erasmus ever furnished the
Respondents with prior written consent to make the claimed improvements.

Enrichment claims and lien

[24] The Applicants were not enriched by the claimed improvements. The parties
that were enriched by the alleged improvements (if any) are Mrs Nasir and
the deceased estate. Therefore , the Respondents do not have any lien
against the property of the trust. The trust’s deprivation of use and
enjoyment of its own property by the Respondents is unlawful. The
Respondents have no legal right to occupy the property of the trust and do
so without the consent of the Applicants, the trustees of the trust. The
Respondents have been in unlawful occupation of the property since the
trust purchased the property from Skyscore on 26 July 2024.

[25] Accordingly, the Respondents are unlawful occupiers as envisaged in PIE.
That being the case, a written and effective notice of the proceedings must
be served on both the unlawful occupier and the municipality having
jurisdiction at least fourteen days before the hearing of the proceedings for
the eviction of the defendant. The Applicants have given effective notice of
the application to the Respondents.

The Respondents’ personal circumstances

[26] The purported personal circumstances of the Respondents have been
considered. The current occupants of the proper ty are the First and Second
Respondents, their two adult children (aged 23 and 25), and their two minor
grandchildren (aged 7 and 4 months). The First Respondent is employed by
the United Nations, and the Respondents have offered to purchase the
property for R1,000,000. They claim that eviction would render them
homeless. However, the court finds their claims implausible because: (1)
The First Respondent is employed, reducing the likelihood of homelessness;
(2) The Second Respondent has not disclosed her employment status but
still offered to buy the property; (3) The employment status of their adult

children is undisclosed; and (4) They have not explained their legal
obligation to financially support their adult children or grandchildren.

[27] Courts must balance the rights of landowners and unlawful occupiers with
grace and compassion, promoting a caring society based on good
neighbourliness and shared concern, as emphasized in Port Elizabeth
Municipality v Various Occupiers5.

[28] In cases where no valid defense is raised, courts may grant eviction orders
but ensure occupiers are given sufficient time to find alternative housing, as
noted in Resnick v Government of South Africa6.

[29] The Respondents were informed of their right to present persona l
circumstances, such as the risk of homelessness, to the court . A Personal
Circumstances Questionnaire was provided to assess their need for
alternative accommodation. The Respondents did not complete or submit
the questionnaire, despite multiple opportunities, making it difficult to assess
their risk of homelessness. The Applicants argue that they cannot be
expected to provide free housing indefinitely, especially as they are suffering
financial losses due to the Respondents living rent -free and the legal costs
incurred in pursuing eviction.

Conclusion

[30] For reasons stated above, I am satisfied that the order I make below is just
and equitable.

In the result, I make the following order:

1. The eviction order is hereby granted against the First Respondent, Second
Respondents and all other persons holding occupation under them (“the
Respondents”), at the immovable property known as ERF 1[...] WETTON

5 2005 (1) SA 217 (CC) at paragraph 37.
6 (A536/2011) [2012] ZAWCHC 395; 2014 (2) SA 337 (WCC) (12 October 2012).

TOWNSHIP, IN THE CITY OF CAPE TOWN, DIVISION CAPE TOWN,
PROVINCE OF THE WESTERN CAPE, IN EXTENT 478 (FOUR
HUNDRED AND SEVENTY EIGHT) SQUARE METRES HELD BY DEED
OF TRANSFER NUMBER T[...]COMMONLY KNOWN AS [...] A[...]
AVENUE, TURFHALL ESTATE, OTTERY EAST 7800 (“the property”).
2. The Respondents shall vacate the property by no later than 13h00 on Friday
26 September 2025.
3. Should the Respondents fail to vacate the property as mentioned in
paragraph 2 above, the Sheriff of this Court and/or his duly appointed deputy
is authorised and directed to evict the Respon dents from the Property on
Monday 29 September 2025.
4. To give effect to this Order and to the extent necessary, the Sheriff of this
Court and/or his duly appointed deputy is authorised to elicit assistance from
the South African Police Services.
5. The Respondents shall pay the Applicant’s costs of this application, jointly
and severally, the one paying the other to be absolved, on an attorney and
client scale.


_______________________________
P NJOKWENI
ACTING JUDGE OF THE HIGH COURT


Appearances:

For the Applicant : M Holland
Instructed by : Vezi & De Beer Inc.

For the Respondent : R Randall
Instructed by : Jason Freel & Associates Inc

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