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This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and by being uploaded to CaseLines. The date and time for
hand down is deemed to be 24 November 2025.
MAHON AJ:
INTRODUCTION
[1] This application concerns a dispute about the continued occupation of a
dwelling situated on Portion 78 of the Farm Doornspruit 507, Krugersdorp. The
first and second applicants seek the eviction of the first respondent, together
with the other persons residing with her in what is described as the second
house on the property. The application is brought in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (the PIE Act).
[2] The first respondent resists the relief. Her primary contention, raised as a point
in limine, is that the matter does not fall within the ambit of the PIE Act at all, but
is governed instead by the Extension of Security of Tenure Act, 1997 (ESTA).
If ESTA applies, then this Court would lack jurisdiction and the dispute would
have to be determined in the Land Claims Court. Central to that question is
whether the respondent qualifies as an “occupier” under ESTA, a definition that
requires, among other things, that she earns less than the prescribed monthly
income threshold. The answering affidavit frames her case on the basis that
she is unemployed and survives on social grants, and therefore falls within
ESTA’s protective ambit.
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[3] Beyond the jurisdictional issue, the applicants allege that any right of residence
the respondent once held has been validly terminated, and that her continued
occupation is unlawful. In support of the eviction sought, they rely on their
ownership of the property, the termination of the underlying right of residence,
and the notice procedures undertaken in terms of the PIE Act.
FACTUAL BACKGROUND
[4] The property at issue is Portion 78 of the Farm Doornspruit 507, Krugersdorp.
The first applicant previously owned the farm before selling it to the second
applicant in 2021, upon which transfer was duly effected in October of that year.
The dwelling in dispute is the so-called second house located on the property.
[5] The first respondent’s family has a long historical connection with the farm.
According to the founding papers, the respondent’s late mother commenced
employment with the first applicant’s father in 1979 and was permitted to occupy
the second house pursuant to a verbal agreement concluded with him. The
applicants contend that the terms of this arrangement restricted occupation to
the respondent’s mother and her immediate descendants, prohibited the
erection of additional dwellings or improvements, and provided for termination
in the event of any breach.
[6] The first respondent accepts that her mother was employed on the farm and
that she and her siblings lived with their mother in the second house. However,
she states that her mother only vacated the property in 2012, not 2006 as
alleged by the applicants, and that upon her mother’s departure she and her
own children and grandchildren continued residing on the property with the
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consent of the applicants’ family. She describes the property as her permanent
home, having lived there for more than four decades, with her children and
grandchildren born and raised there.
[7] The applicants allege that after the mother’s departure, the respondent
continued in occupation on the same terms as the earlier verbal agreement, but
that she subsequently breached those terms by allowing unauthorised persons
to reside in the second house and by constructing additional structures. They
rely in this regard on a notice delivered during April 2024 calling upon the
respondents to vacate the dwelling by the end of that month.
[8] The respondent disputes any breach. She maintains that she has never
permitted persons outside her immediate family to live on the property and that
any structure she built was erected with the first applicant’s permission. She
further denies that her rights of residence were ever lawfully terminated in
accordance with ESTA’s procedures, contending that the applicants did not
follow the statutory process for terminating residence rights under that Act.
[9] Following the April 2024 notice, the applicants contend that the respondent’s
continued occupation became unlawful. The respondent, by contrast, asserts
that any notice purportedly terminating her right of residence was invalid both
in form and in substance, and that she remains an occupier protected by ESTA.
[10] It is common cause that several other family members, including the
respondent’s adult children and grandchildren, presently reside with her in the
second house. The identities of those individuals became clear only upon the
filing of the answering and confirmatory affidavits.
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[11] The municipality, cited as the third respondent, did not participate in the
proceedings.
[12] This background sets the stage for the jurisdictional debate between the parties
and informs the assessment of whether the applicants’ reliance on the PIE Act
is well founded.
WHETHER ESTA APPLIES
[13] The respondent’s principal defence rests on the contention that she is an
“occupier” as envisaged in ESTA, and that the applicants ought to have
proceeded in the Land Claims Court in terms of that statute. Because ESTA
and the PIE Act are mutually exclusive, the determination of ESTA’s
applicability is anterior to every other enquiry.
[14] ESTA applies only if all elements of the statutory definition of “occupier” are
satisfied. The definition of “occupier” in section 1 of ESTA contains the following
elements:
[14.1] residence on agricultural land belonging to another , which has not
been incorporated into a formal township;
[14.2] present or historical occupation with consent or other legal right; and
[14.3] the person in “occupation” must not fall within any of the statutory
exclusions.
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[15] For purposes of the present application, the element in issue is whether a
particular exclusion applies, namely, whether the first respondent earns an
income not exceeding the “prescribed amount”.
[16] On the papers, the first two elements of the definition are essentially
uncontested. The property is agricultural land; the second house is situated on
a farm and not within a proclaimed township. The respondent has lived on the
property for decades, and both she and her mother originally did so with
consent. The applicants themselves rely on a purported termination of a prior
right of residence, which necessarily presupposes that such a right once
existed.
[17] The central dispute therefore concerns the income requirement. The onus rests
squarely on the respondent to allege and prove that her income falls below the
prescribed threshold. This principle is well-established: the income component
concerns facts uniquely within the respondent’s knowledge and is therefore for
her to establish.
[18] The respondent avers that she is unemployed, that she survives solely on
social grants, and that she has no other income. These averments are
consistent throughout the answering affidavit and are confirmed by her adult
children in their respective confirmatory affidavits. No suggestion is made of any
employment, informal or otherwise. She also indicates that she cannot afford
rental accommodation and that her household is headed by an unemployed
woman approaching the age of sixty.
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[19] The applicants challenge the adequacy of this disclosure, contending that more
detail should have been provided, such as bank statements or confirming
documentation from the South African Social Security Agency.
[20] While such material would have enhanced evidential weight, its absence is not
fatal to the respondent’s case. The question is whether the averments made
are sufficient to discharge the onus on the probabilities in motion proceedings ,
where, a court must give effect to the version advanced by the respondent
unless it is so far-fetched or untenable that it cannot be accepted. There is
nothing inherently implausible in the respondent’s assertion that she is
unemployed and dependent on social grants, which is consistent with her age,
circumstances and the fact that she receives legal aid representation.
[21] The question then, is whether the cumulative benefit which can be obtained
through social grants, could conceivable provide an income in excess of the
requisite threshold under ESTA.
[22] The regulations promulgated under ESTA provide the necessary detail to
determine the income threshold. Regulation 2 of the Regulations issued under
Government Notice R1632 of 18 December 1998, as amended by Government
Notices 72 of 16 February 2018 and 84 of 23 February 2018, prescribes the
income threshold for purposes of the definition of “ occupier”. These
amendments raise the threshold to R13 625 per month, which remains the
operative amount unless amended by later notice.
[23] Sub-regulation 2(2) provides that, for the purposes of sub-regulation 2(1),
“income” means:
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“(a) a person’s gross monthly cash wage or salary; or
(b) where a person earns money -
(i) other than in the form of a monthly cash wage or salary, the
average monthly amount of such person’s gross earnings during
the immediately preceding year; or
(ii) in addition to a monthly cash wage or salary, such person’s gross
monthly cash wage or salary together with the average monthly
amount of such person’s additional gross earnings during the
immediately preceding year:
Provided that remuneration in kind shall not be taken into account.”
[24] The first issue is whether, on a proper construction of regulation 2(2), social
grants fall within the meaning of “income” for purposes of determining whether
a person exceeds the prescribed threshold. Regulation 2(2) defines income in
expressly exhaustive terms. It refers to “gross monthly cash wage or salary”, or,
in the case of earnings not received as a wage or salary, “the average monthly
amount of … gross earnings during the immediately preceding year ”. The
structure and language of the regulation indicate that “ income” is confined
to earnings derived from work or an income-generating activity. The regulation
contains no reference to transfers, subsidies or benefits that arise as a matter
of statutory entitlement or social protection. The inclusion of the phrase
“remuneration in kind shall not be taken into account ” reinforces that the focus
is on remuneration for work done, and not on general financial support provided
by the State.
[25] Social grants are created by the Social Assistance Act, 2004. They are not
remuneration, compensation, or consideration for labour rendered, nor do they
derive from commercial or productive activity. They are a form of non-
contributory income support, provided on the basis of vulnerability, age,
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disability, or foster-care responsibilities. Each grant is paid at an amount fixed
by the Minister and is not tied to past or present earning capacity. In substance
and legal character, a social grant is a statutory entitlement, not an “earning”. It
follows that, strictly speaking, social grants do not fall within the definition of
income in regulation 2(2). If a person survives solely on social grants, that
person earns no “gross earnings” as contemplated in the regulation.
[26] Even if one assumes that social grants should be taken into account when
assessing the income threshold, the question becomes whether the cumulative
value of all available grants could ever exceed the prescribed ceiling of R13 625
per month. This requires a brief examination of the statutory framework
governing social assistance in South Africa.
[27] Social grants are created and regulated under the Social Assistance Act 13 of
2004. They are non-contributory statutory entitlements, designed to provide
income support to vulnerable groups such as the elderly, persons with
disabilities, and caregivers of minor children. They do not arise from
employment, services rendered, or any form of productive economic activity.
Their quantum is fixed periodically by the Minister of Social Development and
is not variable according to economic output or earnings capacity. Grants of this
nature are therefore legally and conceptually distinct from “ gross earnings” or
“remuneration”, which are the focus of regulation 2(2).
[28] Even if one assumes, for purposes of analysis, that social grants form part of
the enquiry into “income”, the statutory architecture makes it impossible for a
person to exceed the ESTA income threshold solely through grants. The system
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is structured around primary adult grants which are mutually exclusive. A
qualifying adult may receive either an Older Persons’ Grant, or a Disability
Grant, or a War Veterans’ Grant, but never more than one of these
simultaneously. The value of each of these primary grants is well below the
prescribed ESTA threshold, as is the total which one may earn from them
collectively.
[29] These primary grants may be supplemented only by certain caregiving-related
grants. A caregiver may receive Child Support Grants on behalf of eligible
children, Foster Child Grants where court-ordered foster care exists, and, where
appropriate, a Care-dependency Grant for a severely disabled child. The
quantum of each of these grants is modest. The Child Support Grant, even with
the optional “top-up” mechanism, remains by design a low-value support
measure. In addition, a caregiver of a person requiring full-time care may
receive a Grant-in-Aid, which is similarly modest in amount.
[30] The statutory and administrative framework also places limits on accumulation.
A caregiver may not receive unlimited child-related grants. The Child Support
Grant is expressly capped in the operative SASSA framework, preventing
unlimited expansion of the household grant base. The Foster Child Grant is
available only where a child is placed in foster care through a Children’s Court
order, a circumstance that cannot arise in large numbers in the ordinary
household. The Care-dependency Grant is tied to a finding of severe disability
and is available only for the specific child who meets that criterion.
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[31] When these limits are considered together, it becomes evident that even the
most generous hypothetical combination of grants available to a person in the
respondent’s age cohort and circumstances would fall significantly short of the
income threshold prescribed under ESTA. A single primary adult grant, plus the
maximum feasible number of child-related grants permitted under the regulatory
framework, plus a Grant-in-Aid where applicable, produces a combined monthly
total that is, in round terms, several thousand rand below the prescribed
threshold. Even adding optional top-ups to the permissible Child Support Grants
does not bridge the shortfall.
[32] It follows that, whether one approaches the matter from the strict interpretive
standpoint (under which social grants do not constitute “income” for purposes
of regulation 2(2)) or on the more generous assumption that they may be
considered, the outcome is the same. A person who is unemployed and who
survives on social grants alone cannot, as a matter of law and practical reality,
exceed the prescribed ESTA income ceiling. The respondent’s evidence that
she is unemployed, survives through statutory grants, and receives no earnings
from employment thus suffices to establish that her income falls below the
prescribed threshold.
[33] The conclusion that the respondent meets the statutory definition of an
“occupier” under ESTA has an unavoidable jurisdictional consequence. ESTA
and PIE occupy mutually exclusive terrain. Once ESTA applies, an eviction may
be obtained only in accordance with the procedure laid down in sections 8 and
9 of ESTA, and only in the forum designated by the Act. Section 17 expressly
vests jurisdiction for eviction proceedings involving occupiers in the Land
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Date of hearing: 15 August 2025
Date of judgment: 24 November 2025
APPEARANCES:
For the Applicant: Adv PS Van Niekerk
Instructed by: Louw & Heyl Attorneys
For the Respondent: Mr B Ndlovu
Instructed by: Legal Aid South Africa, Krugersdorp Local Office