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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-115982
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
21 October 2025
In the matter between:
HENDRIE ANDRIES MARAIS N.O. Applicant
In re:
HENDRIE ANDRIES MARAIS N.O. Applicant
and
ANNAMRIE LORETO First Respondent
JOSE LORETO Second Respondent
MOGALE CITY Third Respondent
Date of Hearing: 20 October 2025
Date of Judgment: 21 October 2025
JUDGMENT
ESTERHUIZEN, AJ
NATURE OF APPLICATION
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[1] This is an application for the authorization of a notice in terms of section 4(2)
of the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act, 19 of 1998 ("the PIE Act").
[2] In addition to the former, the first and second respondents brought an
application for the joinder of a Valerie De Mendonca ("De Mendonca").
[3] For ease of reference the parties are referred to herein as cited in this
application.
I deal first with the joinder application.
JOINDER
[4] The first and second respondents (“respondents”) brought a joinder
application in terms of which they asked for, amongst others that:
“The Fourth Respondent to be joined in the main action is VALARIE
DE MENDOCA,...
The purpose of this application is to join the Respondent as Fourth
Respondent, in terms of rule 28(2) of the rules of this court and the
common law, in the application instituted by the Applicant against the
First and Second Respondents, under case number 2024- 115982, in
the jurisdiction of the above Honourable Court.”
[5] De Mendonca filed an answering affidavit oppos ing her joinder and
respondents did not deliver a replying affidavit to it.
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[6] At the hearing of this matter counsel for the respondents indicated that they
do not persist with the joinder application. The reason for not persisting with
the application, counsel submitted, was due to it having been sought in terms
of the incorrect rule. Notwithstanding this the applicant persisted with their
argument that a punitive cost order should be granted against the
respondents as well as an order de bonis propriis. I return to the question of
costs in dealing with the costs in the main application.
EVICTION - MAIN PPLICATION
The following common cause and background facts, that resulted in this application,
are relevant:
[7] It is common cause that Dinah Johanna Stols ("Stols") , the spouse of the
deceased, and the deceased are the registered owners of 4[…] P[…] J[…]
Street, M[…], Krugersdorp (“the property”).
[8] The first and second respondents have been in occupation of the property
since 2008. They shared occupation with the deceased and Stols until 2015
when the deceased and Stols moved out.
[9] The applicants aver that the first and second respondents had agreed with
Stols and the deceased that the respondents may occupy the property on
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condition that they pay an amount equivalent to the bond instalment being
paid on the property to Standard Bank.
[10] The bond instalment is paid from the banking account of Rudi Scrap Metals
CC ("Rudi Scrap Metals"). The first and second respondents made payment
of the agreed amount into the banking account of Rudi Scrap Metals until
December 2022.
[11] Since December 2022 no further payment had been made by the respondents
to the banking account of Rudi Scrap Metals. Instead, the respondent s
elected from that day onwards to pay the agreed amount into the trust
account of their attorney.
[12] Failing to make payment to the Rudi Scrap Metals account the first and
second respondents have breached the agreement, as alleged by the
applicant, which resulted in the respondents being in unlawful occupation of
the property.
[13] This breach caused the applicant to, on 5 August 2024, address a letter to the
respondents’ attorney informing the respondents that the lease agreement in
respect of the property had been cancelled with immediate effect and that the
respondents were required to vacate the property by the end of September
2024.
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[14] The first and second respondents deny that they are unlawful occupants of
the property. The respondents in turn argued that a verbal agreement had
been concluded in terms of which the first respondent would become the
owner of the property. In terms of that agreement the first respondent would
pay the bond instalments during the lifetime of the deceased and in the event
of the death of the deceased, the proceeds from an insurance policy would be
utilised to settle the outstanding amount owing to Standard Bank, whereafter
the first respondent would take transfer of the property.
[15] The central question is thus whether the first and second respondents enjoy a
right to remain in occupation of the property.
DISCUSSION
[16] Section 4(1) of the PIE Act provides as follows:
"4(1) Notwithstanding anything to the contrary contained in any law or
the common law, the provisions of this section apply to
proceedings by an owner or person in charge of land for the
eviction of an unlawful occupier." (Own emphases)
[17] In section 1 of the PIE Act "Unlawful occupier" is defined as meaning:
"... 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 …” (Own emphases)
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[18] In Davidan v. Polovin N.O. and Others (167-2020) [2021] ZASCA 109 (5
August 2021) the jurisdictional requirement to trigger an eviction under the
PIE Act was succinctly summarised as follows:
“[11] The jurisdictional requirement to trigger an eviction under PIE is
that the person sought to be evicted must be an unlawful
occupier within the meaning of PIE at the time when the eviction
proceedings were launched…
[12] The starting point is to establish whether the appellant is an
unlawful occupier under PIE. The key question is whether the
appellant enjoyed a right of occupation? PIE applies not only to
occupants who occupied land without the initial consent of the
owner or person in charge, it also applies to occupants who had
consent to occupy but such consent was subsequently
terminated. In both instances the occupants would be unlawful
occupiers within the meaning of PIE. Consent in eviction
applications is a valid defence.” (emphases added)
[19] It is common cause that the first and second respondents did have consent to
occupy the property for a period of time but the right to remain in occupation
of the property ceased on cancellation of the agreement in 2024 , which
cancellation is not disputed, the right to have cancelled the agreement is
disputed and dealt with hereinafter . From the date of cancellation and
onwards the respondents have been in occupation of the property without the
consent of the owners. Thus, they are unlawful occupiers as per the definition
contained in the PIE Act. The jurisdictional requirement as referred to in
Davidan supra is thus present and an eviction in terms of s 4(2) of the PIE Act
is triggered.
[20] As stated, the respondents claim that a verbal agreement had been
concluded in terms of which the first respondent would become the owner of
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the property which agreement is denied by the Stols. This averment in any
event does not assist the respondents for the following reasons:
[20.1] it is common cause that t he deceased bequeathed the property,
amongst other assets, to his spouse Stols which is to be sold by the
executor on instructions of Stols.
[20.2] any claim to an agreement regarding the property would be subject to
section 2(1) of the Alienation of the Land Act, 68 of 1981 (“the Act”)
which provides as follows:
"2(1) No alienation of land after the commencement of this act
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." (Own emphases)
“Alienate” is defined in Section 1 of the Act as follows:
"'Alienate', in relation to land, means sell, exchange or donate,
irrespective of whether such sale, exchange or donation is
subject to a suspensive or resolution condition, and 'Alienation'
has a corresponding meaning;" (Own emphases)
Thus, in the absence of the alleged agreement being contained in a
deed of alienation signed by all the parties , the agreement relied
upon by the first respondent is of no force and effect. In Hohl N.O.
and Others v Dalcos and Others (38224/2020) [2022] ZAGPJHC 34
(11 February 2022) the court in very similar circumstances held:
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“[8] The first respondent also makes the claim that, during
2008, he concluded an oral agreement with the deceased
in terms of which the property would be subdivided and
he would acquire a portion of the property. Pending his
acquisition of the property, he and his family would be
allowed to occupy rent -free a new house, which the
deceased and presumably the first applicant had agreed
to erect on the property for him and his family. This claim
is denied by the first applicant. I need not dwell on this
factual dispute too long, for the simple reason that the
claim is not only bad in law but is also so far -fetched, if
regard is had to the other undisputed facts in the matter,
that it can be rejected out of hand.
[9] The claim is bad in law because of section 2(1) of the
Alienation of Land Act, Act 68 of 1981, which provides as
follows:… ‘
[10] The oral agreement, as alleged by the first respondent, is
therefore of no force and effect...” (Own emphases)1
Counsel for the respondents argued that because of a defense of
quasi-mutual assent the provisions of section 2( 1) of the Act and by
implication the Hoh l judgment (which reaffirmed what the SCA had
already concluded in 1980) need not be adhered to. No such
defense is contained on the papers and is for the first time raised
during argument. This argument can be disposed of for two reasons.
1 This judgment reaffirmed what was stated in the matter of Johnston vs Leal (245/78) [1980]
ZASCA 58 (30 May 1980) where the Supreme Court of Appeal in considering the provisions of
section 1 of the Alienation of Lands Act concluded that:
“The result of non- compliance with section 1(1) is, as I have indicated, that the
agreement concerned is of no force or effect. This means that his void up initio and
cannot confer a right of action….
The reason why the legislature selected, inter alia, contracts of the sale of land for
such a special treatment as far as formalities of contract are concerned was, no
such a special treatment as far as formalities of contract are concerned was, no
doubt, that it recognized that such contracts are generally transactions of
considerable value and importance and that the terms and conditions attached
thereto are often intricate.” (Own emphases)
The wording of section 1 was essentially similar to the wording of section 2.1 of the Act.
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• Firstly, it is trite that a party in motion proceedings stands and
falls by its papers.2
• Secondly, the respondents’ own argument do not support their
averment. In support of their argument the respondents referred
to two judgments, the first being that of Pillay and another vs
Shake and another (006/08) [2008] ZASCA 159 (27 November
2008). This matter concerned the developers marketing to
members of the public , interests in a sectional title property
development where each unit in the development was to be
owned by a close corporation. The member's interests in each of
these close corporations were offered for sale. What the SCA
did find in this instance was no different to what was said in Hohl
supra. The court expressly held:
“[43] On appeal to the full bench, as indicated earlier,
the court found it unnecessary to deal with the
quasi-mutual assent point because it held that the
parties' intention had been that there would be no
binding agreements between them unless they
were signed by or on behalf of the buyers and the
sellers. It is important to stress that it accepted, as
counsel on both sides had accepted, that '(t)he
Close Corporations Act 69 of 1984 does not
require the sale of a member's interest to be in
writing even if it relates to immovable property….'
[50] I do not agree with the court a quo's conclusion
that there could be no binding contracts between
the parties unless each was signed by or on
behalf of the buyers and the sellers. In my opinion
2 In Betlane v Shelly Court CC 2011 (1) SA 388 (CC) at para 29.
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it is clear from Goldblatt v Freemantle, supra, and
the authorities cited therein that, in the absence of
a statute which prescribes writing signed by the
parties or their authorised representatives as an
essential requisite for the creation of a contractual
obligation (something that does not apply here) ,
an agreement between parties which satisfies all
the other requirements for contractual validity will
be held not to have given rise to contractual
obligations only if there is a preexisting contract
between the parties which prescribes compliance
with a formality or formalities before a binding
contract can come into existence.”
(Own
emphases)
Because section 2 (1) of the Act prescribes that an agreement must
be in writing this judgment too states that those requirements must be
met and not ignored as argued by counsel for the respondents.
The second judgment which the respondents refer to was that of
Vincorp (Pty) Ltd vs Trusthungry ZRT (061/2017) [2018] ZASCA 35
(27 March 2018). As this judgment dealt with an agreement
pertaining to the sale of wine barrels it cannot assist the respondents’
argument as to the requirements contained in the Act.
[20.3] the first and second respondents paid the agreed upon amount via
Rudi Scrap Metals until 2022 and thereafter continued, so they say,
paying it into the trust account of their attorney. This they did
notwithstanding the deceased having already passed on 16 October
2019. This raises the rhetorical question if the allegation was indeed
correct that the property would transfer to the first respondent on the
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death of her father why would she continue paying for her ‘own’
property and why would the property be bequeathed to Stols?
[21] Therefore, even if the alleged verbal agreement did exist the transaction is
null and void as it failed to comply with the requirements as contained in
section 2(1) of the Act. Notwithstanding this and for the reasons stated and
having regard to the objective facts the first and second respondents ’ version
with regard the property is so far -fetched as to render it untenable and can
thus be rejected.
[22] In terms of Section 4(7) of the PIE Act, 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. In determining what is just an
equitable it requires a consideration as to whether eviction is just and
equitable to all parties meaning both the owner and the unlawful occupiers
(See City of Johannesburg v Changing Tides 74 (Pty) Ltd and others (Socio-
Economic Rights Institute of South Africa as amicus curiae) 2012 (11) BCLR
1206 (SCA) at para [12]). Where an occupier opposes an eviction at the very
least the occupier is required to lay sufficient factual foundation upon which
the Court can make a finding. In Ndlovu supra the Supreme Court of Appeal
held:
“[19] Provided the procedural requirements have been met, the
owner is entitled to approach the court on the basis of
ownership and unlawful occupation. Unless the occupier
opposes and discloses circumstances relevant to the eviction
order, the owner, in principle, will be entitled to an order for
eviction. Relevant circumstances are nearly without fail facts
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within the exclusive knowledge of the occupier and it cannot
be expected of an owner to negative in advance facts not
known to him and not in issue between the parties.”
[22.1] The property is occupied by the first and second respondents and
their major son Brandon, who is 18 years old and who is employed by
the first and second respondents in their businesses.
[22.2] The first and second respondents, according to the applicant, are well
off and conduct three scrap metal businesses and are able to obtain
alternative accommodation elsewhere. These allegations are not
denied.
[22.3] There are no elderly persons or person with disabilities who reside at
the property.
[22.4] The applicants ceased making payments in 2022 contrary to the
agreement to make such payment.
[22.5] The first and second respondents have known since September 2024
that they are required to vacate the property. They had ample
opportunity to find alternative accommodation but provide no
evidence that they have taken any steps in seeking alternative
accommodation.
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[23] The respondents provide no facts as to why it would not be just and equitable
in granting an order for their eviction and all those who occupy the property
through them.
[24] Because all the requirements of section 4 of PIE have been complied with and
because the r espondents have raised no valid defence, section 4(8) of PIE
determines that the court must grant an order for the eviction and in doing so
must consider what is a just and equitable date on which the occupier must
vacate the land.
[25] The Applicant seeks an order whereby the Respondents are to be evicted
within one month from the date of this order. In my view this date is not
reasonable and that more time should be provided to the Respondents to
seek alternative accommodation and to move out of the premises being
unlawfully occupied. In my view a just and equitable order would be to
provide the Respondents until 31 December 2025 to vacate the premises.
COSTS
[26] The applicant argued that it would seek an order that the first and second
respondents pay the costs of the main application on the attorney and client
scale and de bonis propriis. I am of the view that a punitive order is justified in
the main application.
3 This is so because:
3 See Wingate-Pearse v. Commissioner, South African Revenue Service and Others 2019 (6)
SA 196 (GJ) at par [82] - [83].
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[26.1] the defences which were raised were without merit and many of the
issues raised simply had no bearing on the matter.
[26.2] the respondents also had a total disregard to the rules of court by not
filing their heads of argument in time but only on the morning of the
hearing and the raising arguments not dealt with in the papers.
This said and even though a punitive cost order on attorney and client scale is
justified I am of the vie w that a de bonis order in respect of the main
application is not.
[27] Returning to the argument in relation to costs in the joinder application in
which the Applicant sought an order on a punitive scale and de bonis propriis .
A court can grant a cost order de bonis propriis against an attorney in cases
that involve gross incompetence or gross disregard for professional
responsibilities, dishonesty, wilfulness or negligence of a serious degree.
(See: CB and Another v. HB 2021(6) SA 332 (SCA) par [21] and the
authorities referred to therein).
[28] The following are factors supporting the conclusion that favours an order de
bonis propriis and on a punitive scale:
[28.1] The respondents were already made aware of the fact that the
incorrect rule had been used in support of the joinder application
when Mendonza filed her answer to the joinder application in
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December 2024. The respondents elected to ignore this and did not
file a replying affidavit.
[28.2] During the compilation of the joint practice note for the current
application the respondents noted in the practice note that they would
be persisting with the joinder application. They new or should have
known that the incorrect rule had been applied. The joint notice was
uploaded as recent as 29 September 2025.
[28.3] It was only on the morning of the hearing that respondents withdrew
their joinder application on the basis that it was sought in terms of the
incorrect rule. If the first and second respondents had the bona fide
intention of joining the Mendonza then one would have expected
them to have filed a new application in terms of the correct rule as
soon as they became aware that the incorrect rule was utilised. This
they did not do. The only reasonable assumption to be made is that
they were well aware that the application for joinder simply had no
merit and was done for no reason other than to frustrate Mendonza
forcing her to incur legal costs which could have been avoided.
Therefore, I make the following order:
ORDER
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1. The first and second respondents to pay the costs of the joinder application
for the joinder of Valerie De Mendonca jointly and severally on an attorney
and client scale.
2. The attorney to the first and second respondents , Marthinus Johannes Kapp
is ordered to pay the costs of the said join der application, jointly and severally
with the first and second respondents on attorney and client scale.
3. The first and second respondents together with all other occupants who
occupy the property situated at 4 […] P[…] J[…] Street, M[ …] P[…],
Krugersdorp (“the pr operty”) through or under them are hereby evicted from
the property.
4. The first and second respondents and all other occupants shall vacate the
property by no later than 31 December 2025.
5. The Sheriff or his lawful deputy is hereby authorised to take such steps as are
necessary to evict the first and second respondents and all occupiers of the
property should the first and second respondents and all occupiers of the
property not vacate the property by 31 December 2025.
6. The first and second respondents shall pay the costs of the main application
jointly and severally on an attorney and client scale.
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_________________________________
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Counsel for Applicant: Adv M. A. Kruger
Instructed by: Scholtz Attorneys
Counsel for the 1st and 2nd Respondents: Adv E Coleman
Instructed by: Kapp Attorneys Inc