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 DIVISION, JOHANNESBURG
CASE NUMBER: A2024/127237
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
In the matter between
CAPRICORN FARMS CC Appellant
And
DAVID HENRY LEVINSON First Respondent
BIG CREEK TRADING 29 CC Second Respondent
TONDOZEST (PTY) LIMITED Third Respondent
MARK ACLAND TANTUM Fourth Respondent
EMFULENI LOCAL MUNICIPALITY Fifth Respondent
Coram: L DE SOUZA-SPAGNOLETTI, AJ
J DLAMINI, J AND M KRUGER, AJ CONCURRING
Heard on: 10 SEPTEMBER 2025
Delivered: 27 OCTOBER 2025
JUDGMENT- FULL BENCH APPEAL
BACKGROUND AND HISTORY
1. This appeal centres around an application brought by the appellant for the
eviction of the first respondent from a property known as Portion 97 (a portion
of Portion 62) of the f arm K […] 577, Registration Division IQ, Transvaal
situated at 9[…] K[…], Vanderbijlpark (the Property).
2. The appellant is owner of the property while the first respondent is a business
man residing on and conducting business from the property . During
proceedings in the Court a quo, there was a fourth respondent who was also
occupying the property but he subsequently left and as such warrants no
further mention. Similarly the fifth respondent , does not figure significantly
save for the fact that it is the municipality in whose area of jurisdiction the
property is situated.
3. It is to be noted that the property is privately owned. It is not, nor could it have
been anticipated in this case that the re shall be any impact on the fifth
respondent, irrespective of whether the first respondent was or is evicted.
4. Judgment in the Court a quo was handed down by Honourable Cajee, AJ on 6
March 2024 with an order in the following terms:
4.1 The application for eviction is dismissed;
4.2 The applicant (appellant) shall pay the first respondent’s costs.
5. In essence, t he reason for dismissal of the application was a failure of the
appellant to comply with the requirements of the Prevention of Illegal Eviction
from and Unlawful Occupation Act 19 of 1998 (PIE) 1. This refers to a
compliance failure in relation to section 4(2) of PIE.
6. This application hinges around whether the lack of section 4(2) compliance is
fatal to the appellant’s case.
7. Crucial to this judgment and the reasons therefor are the following facts which
are not in dispute:
7.1 The identities of the parties;
7.2 The description of the property in question;
7.3 That the appellant is the owner of the property;
7.4 That the first respondent is in occupation of the property;
7.5 That there is no lease agreement entitling the first respondent to
occupation;
7.6 That the first respondent does not make payment of rental or any
payment of any nature to the appellant in respect of occupation of the
property.
7.7 That no notice in terms of section 4(2) of PIE was served on the first
respondent or the relevant municipality;
1 Paragraph 43 of judgment of Court a quo. CL 002-390
7.8 That the first respondent was represented by a private attorney
throughout the proceedings from inception, which proceedings he
opposed;
7.9 The court a quo made a finding that the applicant is the owner of the
property and that the first respondent is in unlawful occupation thereof.
8. The right of occupation as claimed by the first respondent, derived from an
alleged oral agreement between himself and one Dorian Dart, the sole
member of the app ellant. First respondent claims an oral partnership
agreement between himself and the appellant , this dating back to 2009 and
which he alleges , remains in existence 2. No solid evidence was placed
before the Court a quo to support the existence of the alleged partnership and
much has changed since 2009. Whether or not this partnership ever existed
becomes moot as the appellant, duly represented by the curatrix bonis and
subsequent to that the executrix of Dart’s estate, has made it clear that the
appellant has and continues to seek first respondent’s vacation and now
eviction from the property.
9. Dorian D art was involved in a motor vehicle collision in August 2009 which
rendered him incapable of managing his affairs and which incapacity
necessitated the appointment of a curatrix bonis which curatrix deposed to the
founding affidavit in the application in the Court a quo.
10. Subsequent to the aforementioned curatorship appointments, various sale
negotiations apparently took place between the appellant and the f irst
2 Answering affidavit in eviction application, CL 002-138
respondent and also the appellant and fourth respondent. None of these
negotiations bore any fruit and no valid sale agreement was ever concluded.
11. Dorian Dart passed away in 2021 and the status currently is that the first
respondent continues to occupy the property free of charge, this contrary to
the wishes and direction of the appellant who remains the owner of the
property. The deponent to the founding affidavit in the eviction application is
also the late wife of Dorian Dart, Jaqueline Patricia Dart, who was subsequent
to Dart’s death in 2021, appointed as co-executrix of his estate along with the
deceased’s son, Riley Fullard who supports these proceedings . The
appellant appeals the dismissal of its application for eviction of the first
respondent from the property.
12. It is obvious that the estate of Dart should now fall either to his heirs under his
will or to his dependents/family intestate.
13. On 17 March 2025, the first respondent filed a notice to abide
3, noting the
decision in the Court a quo and the date of judgment on 6 March 2024 and
further confirming his intention to abide by the decision of this Appeal Court.
LEGAL FRAMEWORK
14. PIE has its roots, inter alia, in Section 26(3) of our Constitution which dictates
that no one may be evicted from their home without an order of Court made
after consideration of all the relevant circumstances. 4
3 CL 13-1
15. Crucial to this appeal is acknowledgement of the purpose of PIE and its
reason for existing. The Act came into force in 1998 with its purpose being to
address unlawful evictions and to address apartheid- era wrongs during which
people were removed from land without due process.
Section 4 of PIE
16. For the sake of completeness, Section 4 is cited below:
“ 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.
(2) At least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective notice of the
proceedings on the unlawful occupier and the municipality having jurisdiction.
(3) Subject to the provisions of subsection (2), the procedure for the serving of
notices and filing of papers is as prescribed by the rules of the court in
question.
(4) Subject to the provisions of subsection (2), if a court is satisfied that
service cannot conveniently or expeditiously be effected in the manner
provided in the rules of the court, service must be effected in the manner
directed by the court: Provided that the court must consider the rights of the
unlawful occupier to receive adequate notice and to defend the case.
(5) The notice of proceedings contemplated in subsection (2) must—
4 Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others (495/99) [2001] ZASCA 87;
[2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA)
(a) state that proceedings are being instituted in terms of subsection (1)
for an order for the eviction of the unlawful occupier;
(b) indicate on what date and at what time the court will hear the
proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the court
and defend the case and, where necessary, has the right to apply for legal
aid.
6) If an unlawful occupier has occupied the land in question for less than six
months at the time when the proceedings are initiated, a 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.
(7) If an unlawful occupier has occupied the land in question for more than six
months at the time when the proceedings are initiated, a 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, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or
other organ of state or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, disabled
persons and households headed by women.
(8) If the court is satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised by the unlawful
occupier, it must grant an order for the eviction of the unlawful occupier, and
determine—
(a) a just and equitable date on which the unlawful occupier must vacate the
land under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlawful
occupier has not vacated the land on the date contemplated in paragraph (a).
(9) In determining a just and equitable date contemplated in subsection (8),
the court must have regard to all relevant factors, including the period the
unlawful occupier and his or her family have resided on the land in question.
(10) The court which orders the eviction of any person in terms of this section
may make an order for the demolition and removal of the buildings or
structures that were occupied by such person on the land in question.
(11) A court may, at the request of the sheriff, authorise any person to assist
the sheriff to carry out an order for eviction, demolition or removal subject to
conditions determined by the court: Provided that the sheriff must at all times
be present during such eviction, demolition or removal.
(12) Any order for the eviction of an unlawful occupier or for the demolition or
removal of buildings or structures in terms of this section is subject to the
conditions deemed reasonable by the court, and the court may, on good
cause shown, vary any condition for an eviction order.”
GROUNDS OF APPEAL
17. RAISING SECTION (4)(2) NOTICE MERO MOTU
It must be stated that any Court has a discretion to raise issues mero motu . In
this regard, our Constitutional Court 5stated the following:
“Where a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the law is, a court is not
only entitled, but is in fact also obliged, mero motu, to raise the point of law
and require the parties to deal therewith. Otherwise, the result would be a
decision premised on an incorrect application of the law. That would infringe
the principle of legality….”
18. The aforementioned discretion is well entrenched and in the current case, this
Court does not specifically find fault with the mero motu raising of section 4(2)
by the Court a quo.
19. Historically and rightly so, our Courts have placed much focus on the
peremptory nature of the aforementioned subsection. It is an integral and
crucial component of PIE proceedings and is not something to be simply
ignored. The importance of the provision is crucial to a weighing- up and
balancing of interests vis a vis an occupier of land and the owner of such land.
This is echoed in Section 4(4) of the Act which highlights the need for the
Court to consider the rights of the unlawful occupier to receive adequate
notice and to defend the case.
20. The purpose of notification under section 4(2) must be achieved so as to
prevent injustices and also to ensure that an occupier is afforded sufficient
5 FN CUSA v Tao Ying Metal Industries and Others (CCT 40/07) [2008] ZACC 15; 2009 (2) SA 204
(CC); 2009 (1) BCLR 1 (CC) ; [2009] 1 BLLR 1 (CC) ; (2008) 29 ILJ 2461 (CC)
opportunity to be heard. An occupier, even an unlawful one cannot be
unjustly prejudiced, particularly in circumstances where he has occupied land
over a lengthy period of time. It is essential that such occupier be aware of
proceedings or pending proceedings for his eviction so that he is in a position
to place his case before Court.
21. In the case before this Appeal Court, the first respondent has suffered
absolutely no prejudice from the absence of section 4(2) compliance. He has
been aware of the PIE proceedings from the outset. He has had the financial
means to engage the services of his legal representatives and he fought the
application on a level similar to that which the app ellant fought it. Importantly,
the first respondent failed to raise any such prejudice in his papers . In
circumstances such as this and while mention of section 4(2) compliance was
appropriate by the Court a quo, dismissal of the application on such basis has
resulted in a legal absurdity which requires address.
22. SOLE EMPHASIS ON CAPE KILLARNEY JUDGMENT
22.1 The Cape Killarney case 6 is indeed immeasurably different to the
matter at hand. In that case, the property in question had become the
site of an informal settlement consisting of 542 dwellings with some
residents having been living on the property for up to 18 years.
22.2 The purpose of section 4(2) in the Cape Killarney case was stated as
follows:
6 Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others (495/99) [2001] ZASCA 87;
[2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) (10 September 2001)
“Accordingly the purpose of 4(2) is clearly to afford the
respondents in eviction proceedings a better opportunity than
they would have under the rules to put all the circumstances that
they allege to be relevant before the court”
22.1 In the Unlawful Occupiers case
7, the Supreme Court of A ppeal held
that not ever y deviation from the literal prescription (this in reference to
section 4(2) ) is fatal. The question remains whether, in spite of the
defects in the section 4(2) notice, the object of the statutory provision had
been achieved.
22.2 In the Vacation Import case 8, similarly to this case, the question arose
as to whether the applications for eviction were amenable to
determination on their merits when the procedure mandated in section
4(2) of PIE had not been followed. In paragraph 7 of the judgment the
following is stated:
“In the current cases it was abundantly clear on the facts that
service of a notice on the respondents in terms of s 4(2) of PIE
would be a wasteful and unnecessarily costly supererogation.
That they were adequately informed in a manner that would
satisfy the object of the requirements of s 4(5) of PIE was
confirmed by their appearance in court with legal representation
and the terms of the order taken from Saldanha J which
7 Unlawful Occupiers versus City of Johannesburg 2005(4) SA 199 at par 22 to par 24
8 Vacation Import (Pty) Ltd v Bumina and Others; Vacation Import (Pty) Ltd v Ngaleka and Others
(3852/2022;3855/2022) [2023] ZAWCHC 44)
established an agreed tailor-made framework for them to pursue
their intended opposition to the applications. It would be
absurd in the circumstances to decline to entertain the
applications when they came up for hearing after answering
papers and counterapplications had been delivered and the
respondents appeared represented by counsel instructed to
deal with the eviction applications on their merits . (own
emphasis).”
22.3 The aforementioned cannot but resonate strongly with the case before
this Appeal Court.
22.4 In the Weenen Transitional Local Council case
9 the Court stated the
following in relation to section 4(2) compliance:
“ The question whether in a particular case a deficient s4(2)
notice achieved its purpose , cannot be considered in the
abstract. The answer must depend on what the respondents
already knew (own emphasis).”
22.5 It is to be noted that the focus in the Cape Killarney case was ensuring
that all parties be allowed to state their case and to be heard. There
can be no doubt that the first respondent in the matter at hand enjoyed
ample opportunity, and indeed well utilized that opportunity to be heard
9 Weenen Transitional Local Council v Van Dyk (399 / 2000) [2002] ZASCA 6; [2002] 2 All SA 482
(A); 2002 (4) SA 653 (SCA) (14 March 2002)
and to place his case before Court . It would appear, if one applies a
common sense approach, that this may be why section 4(2)
compliance was not raised by the first respondent in his papers.
23. EMPHASIS ON LATE FILING OF REPLYING AFFIDAVIT WHICH LATE
FILING WAS RAISED MERO MOTU
23.1 It is peculiar that this late filing was raised by the Court a quo. There
was no objection to the late filing of the replying affidavit , the first
respondent was well represented, and if circumstances had changed
which the Court a quo appeared to speculate over, the parties would
have had opportunity t o place such changed circumstances before the
Court. This was not done in their papers. The late filing of the repl ying
affidavit in this case ha d no bearing or impact on the outcome of the
matter nor does this Court find it to bear any relevance thereto.
24. FINDING PREJUDICE TO THE FIRST REPSONDENT’S ALLEGED
PARTNER AND CHILD
24.1 There was simply no mention of this, nor any evidence thereof in the
papers before the Court a quo and, bearing in mind the fact that the
first respondent appears to be a man of means with a second
residence, this notion cannot hold any water.
25. PREJUDICE TO THE APPLICANT/APPELLANT
25.1 The prejudice suffered and which the appellant continues to suffer is
clear for all to see. The position of the appellant is currently that it is
prevented from exercising its real rights to and over the property in
question. It sits with an unlawful occupier, one who is utilizing and
enjoying the fruits of such property to appellant’s exclusion , rent free
and while providing appellant no benefit whatsoever - this in
circumstances where the property now forms part of a deceased estate
and which now needs to fall to the beneficiaries of late Dorian Dart’s
estate.
25.2 It is untenable for the status quo to remain and the patent injustice
which continues to exist, falls to be addressed appropriately.
26. LACK OF PREJUDICE TO THE FIRST RESPONDENT
26.1 This Court must draw attention back to the application of PIE which
application falls to the unlawful occupation of land for residential
purposes. The alleged, lawful utilization of the property free of charge
by the first respondent, curious as such allegation seems , does not fall
to be addressed by this Court. Similarly, the improvements he claims to
have been made to the property and any alleged lien that he claims to
enjoy find no application here either. There are appropriate remedies
available to the first respondent in this regard and he cannot hide
behind such allegations as an attempted justification for continued
occupation of the property,
26.2 Of more relevance in this case is the fact that the first respondent is a
business man, was well represented by private legal representation
and is a man of means. He enjoys a second residence, is not destitute
and will not be left homeless should an eviction be granted.
26.3 The Constitutional Court case of Grobler v Phillips and Others
10
supports the contentions of this Court, reinforcing the notion that private
land owners are not encumbered with any obligation to find alternative
accommodation for unlawful occupiers . It was an important
consideration in that case too that an eviction order would not render
the respondent homeless.
26.4 This Court is tasked to ensure that justice is both done and seen to be
done and further to ensure that its finding is just and equitable.
27. OVEREMPHASIS ON PROCEDURAL REASONING (GROUND 7) AND
SUBSTANTIAL COMPLIANCE AND NO NECESSITY FOR A 4(2) NOTICE
(GROUND 8)
27.1 This Court is in agreement with the appellant that undue emphasis was
placed on procedural requirements under PIE. To necessitate
compliance with section 4(2), in this particular set of circumstances
would be irrational and would, as stated afore result in a legal
absurdity.
10 Grobler v Phillips and Others (CCT 243/21) [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR
115 (CC) (20 September 2022)
27.2 There can be no doubt that compliance with s ection 4(2) is a backbone
in the spine of PIE proceedings in the normal course. But in the matter
before this Appeal Court an insistence, after the fact on compliance
with section 4(2) would be simply untenable. It would necessitate
gargantuan cost to the parties and this with prejudice far beyond that
falling within the parameters of these proceedings . It would entail
service of a section 4(2) notice on an individual who w as at all times,
well aware of the eviction proceedings, was at all times lega lly
represented and who enjoyed the benefit of opposing the eviction
proceedings via the services of private legal representation. He fought
the proceedings in exactly the same manner he would have had the
section 4(2) notice been served. To insist in such circumstances that
the appellant commence proceedings afresh by way of a s ection 4(2)
notice, then returning to place an identical case before Court for a
second time, would simply not serve the interests of justice and would
perpetuate a set of circumstances which are already untenable. As
stated afore, the eviction of the first respondent shall have no bearing
on the fifth respondent either.
27.3 In th e case before this Appeal Court , the interests of justice must
prevail which interests dictate a justified deviance from the otherwise
peremptory requirements of section 4(2).
27.4 The first respondent is amply protected by the law in the event that he
seeks to prove the alleged improvements made to the property in
question and/or to claim compensation therefor . These and other
related issues did not fall to be resolved by the Court a quo nor by this
Court, nor do they fall within the ambit or scope of PIE.
27.5 While the first respondent most certainly has a right to general
application of PIE , his circumstances fall far from that which the Act
sought in its purpose. The first respondent enjoyed private, legal
representation throughout the proceedings in the Court a quo. He
admitted to being in employment and also to enjoying a second
residence separate to the property which forms the basis of this
application. He also admits to residing in this second residence situate
at 84 Oxford Street, Ferndale, Randburg on the weeken ds. He admits
to being a businessman
11 and by all accounts appears to be a man of
means. He is not at risk of homelessness in the face of an eviction from
the property in question. Further, the first respondent has, since the
incapacity and subsequent death of Dorian Dart , and in the knowledge
that there is no agreement with the appellant as currently represented
to have him occupy the property , persisted in his occupation which the
Court a quo correctly confirmed is unlawful.
27.6 On the other hand, the appellant owns an asset which fall s into a
deceased estate and which is controlled by an execut rix alternatively
co-executors who have made their intention clearly known. It is a
patent absurdity in these circumstances that first respondent would
allege the existence or continued existence of a partnership which in
11 Paragraph 8 of first respondent’s founding affidavit in the proceedings in the court a quo ; CL 002-
137
effect affords him an open ended, rent free occupation of the property.
Such a notion cannot be accepted by this Court.
27.7 On a balancing of rights and interests, and in the interests of justice,
this Court cannot but find that the appeal is to be upheld with costs to
follow the finding.
This Court makes the following order:
1. The appeal is upheld with costs;
2. The order of the Court a quo is set aside and substituted with the following: -
2.1 The first respondent or his successors in title are ordered to forthwith
vacate, by no later than 60 days of service of this order upon the first
respondent’s attorneys , alternatively should they withdraw from the
matter, upon the first respondent in accordance with the Rules of
Court, the immovable property more fully described as: -
2.1.1 Portion 97(a portion of Portion 62) of the Farm K […] 577,
Registration Division IQ, Transvaal in the extent 4287 hectares,
situated at 9[…] K[…], Vanderbijlpark (The Property).
2.2 Should the first respondent fail to comply with paragraph 2.1 of this
order, the Sheriff of the Court is empowered and ordered if it becomes
necessary, to forthwith attend to eviction of the first respondent from
the property.
3. The first respondent shall pay the appellant’s costs of the appeal and the
costs of the application for leave to appeal on a party and party scale, such
costs including the costs of counsel on both such applications.
___________________________
L. DE SOUZA-SPAGNOLETTI
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Appellant: Advocate Muhammad Amojee
Instructed by HBM&S Incorporated
For the First Respondent: Advocate Baheeyah Bhabha
Instructed by Lerena Attorneys
Heard on: 10 SEPTEMBER 2025
Delivered: 27 OCTOBER 2025