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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable/Not Reportable
Case no: 2025-070143
In the matter between:
ARLENE VERONICA GIPPERT First Applicant
VINCENT GREGORY DE MUYNK Second Applicant
and
LEILANI ROCHAT First Respondent
(Identity number: 3[...])
and all those occupying the property through her
ALL OTHER PERSONS UNLAWFULLY
OCCUPYING THE PREMISES AT
1[...] N[...] WAY, NOORDHOEK,
CAPE TOWN, WESTERN CAPE Second Respondent
THE CITY OF CAPE TOWN
MUNICIPALITY Third Respondent
Neutral citation: Arlene Veronica Gippert, Vincent Gregory De Muynk,
Leilani Rochat, All other persons unlawfully occupying the
premises at 1 [...] N[...] Way, Noordhoek, Cape Town,
Western Cape and The City of Cape Town Municipality
Coram: MANGCU-LOCKWOOD J
Heard: 17 November 2025
Delivered: 02 December 2025
____________________________________________________________
ORDER
____________________________________________________________
In the circumstances the following order is made:
1. The first and second respondents , and all those holding title under
them at the property described as 1 [...] N[...] Way, Noordhoek, Cape
Town Western Cape ( ‘the property’) must vacate the property by , at
the latest, Friday 30 January 2026.
2. In the event that the first and second respondents and all those holding
title under them fail to comply with prayer 1 above, the Sheriff or
his/her lawfully appointed deputy is hereby authorized to eject them
from the property from 2 February 2026.
3. The counter -application and the application for referral of certain
matters to oral evidence brought by the first respondent are dismissed.
4. The first respondent is ordered to pay the costs of litigation, including
costs of counsel, on Scale A.
____________________________________________________________
JUDGMENT
____________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] This is an application in terms of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) for eviction of the first
respondent from property co-owned by the two applicants, and which was
previously owned by Mr. Marinus de Muijnk (referred to by the parties as ‘Rien’).
The first applicant is the daughter of Rien, whilst the second applicant - her son - is
Rien’s grandson. Rien is not a party to these proceedings, although he has deposed
to a supporting affidavit in reply.
[2] Rien and the first respondent are both 86 years old. In 1993 the first
respondent moved into the property to live with Rien, who owned the property , as
part of a romantic, cohabiting relationship. It is common cause that their
relationship has come to an end , although the date of the termination is not
common cause . According to Rien and the applicants it was some four or five
years ago, whilst the first respondent states it was only in March 2025.
[3] The nature and circumstances of the relationship are also in dispute.
According to the first respondent they became engaged shortly after they met,
which is vehemently disputed by Rien, who has attached confirmation that the first
respondent was in fact still married to her previous husband when she firs t came to
live with him in 1993, and that she was only divorced on 9 September 2005, some
12 years after their relationship commenced. This, he states is the reason he did not
propose to her, contrary to her allegation of his proposal of engagement.
[4] He ad mits however, that during the course of their relationship he has
provided financially for the first respondent through various means, including the
proceeds of substantial property transactions. He also gave substantial gifts to her
and her children, including a gift of four gold coins valued at approximately R240
000. It was from about 2020 that the relationship turned sour according to him,
apparently as a result of property transactions of that year.
[5] It is furthermore not disputed that Rien transferred the property in question
to the applicants on 4 March 2022. This was about a month after he was diagnosed
with stage-4 colon cancer. However, he and the first respondent have continued to
reside in it, with the applicants living a few metres away in the same street.
[6] This application was precipitated by events related to Rien’s ill-health. As a
result of his diagnosis he requires full-time professional care. The applicants state
that the first respondent has continuously and increasingly created a volatile
environment for the professional carers who attend to Rien on a full -time basis at
the property. The conduct complained of includes intoxication; hurling abuse at the
carers which includes racial insults ; intimidatory and obstructive intervention in
their functions such as locking them out and insisting they remov e his oxygen
mask. Two carers have deposed to confirmatory affidavits to that effect . There are
also allegations of negligence by the first respondent resulting, in one instance , in
Salmonella food poisoning which is confirmed by a medical report.
[7] The first respondent denies the behaviour alleged against her , although that
is done in generalised terms which are lacking in detail and fail to engage with the
seriousness of the allegations. Instead, the essence of he r defence is that the
allegations are not made objectively. By contrast, one of the instances of abusive
behaviour was recorded by one of the professional carers, who subsequently
deposed to an affidavit. The abuse recorded was inflicted by the first respondent’s
daughter, acting on behalf of, and in the presence of the first respondent.
[8] In any event, it is common cause that there has been escalating tension and
hostility between, on the one hand, the applicants and Rien’s carers, and on the
other the first respondent and some of her children. Even in her answering affidavit
the first respondent alleges that the introduction of carers was a means ‘to
marginalize and displace’ her. This, despite the undisputed evidence from Dr
Danielle Klemp of Chariot Health that Rien requires 24-hour palliative care from a
team of medical personnel.
[9] It is also not in dispute that the living circumstances between the first
respondent and Rien have become untenable such that , in the correspondence
leading up to this litigation the first respondent has recorded her willing ness to
engage in mediation regarding ‘the terms a nd manner of [her] departure’, though
she does not admit the allegations of unlawful occupation.
[10] Whilst the main issue raised by the first respondent in her correspondence
was a maintenance claim against Rien, in these proceedings she relies on a lifelon g
right of occupation which she claims was granted by Rien, and was fortified by the
terms of a n alleged partnership agreement signed by Rien in October 2024. In
addition, she claims that it will not be just and equitable to evict her from the
property, citing her personal circumstances which are discussed later.
[11] The first respondent has also brought two applications. First is a conditional
counter-application in which she seeks an order permitting her to continue residing
in the property pending institution of action or application proceedings to resolve
the rights of the parties or the lawfulness of her occupation , and an interdict
preventing her eviction from the property.
[12] The second application is for referral of certain issues in the eviction
application for oral evidence, Rien’s joinder to the eviction application, and that the
transaction in terms of the property was transferred from Rien to the applicants be
set aside as a sham or fraud. She also seeks postponement of the eviction
application so that the issues raised in the referral application can be ventilated. I
shall refer to this second application as the ‘referral application’.
[13] In the referral application, the first respondent claims that, until receipt of
the eviction application she had no knowledge of the transfer of the property ,
notwithstanding that she has been in continuous occupation of the property and in a
life partnership with Rien since 1993. She seeks production of the underlying
documents supporting the property transfer , including proof of payment of the
purchase price.
B. RELEVANT APPLICABLE LAW
[14] Section 25(1) of the Constitution of the Republic of South Africa Act 108 of
1996 (‘the Constitution’) provides as follows:
"No one may be deprived of property except in terms of law of general application, and
no law may permit arbitrary deprivation of property."
[15] Section 26(3) of the Constitution provides:
"(3) No one may be evicted from their home, or have their home demolished, without
an order of court made after considering all the relevant circumstances. No legislation
may permit arbitrary evictions."
[16] The need to balance the interests of landowners and occupiers of land is
reiterated in the Preamble of PIE which provides that:
"AND WHEREAS it is desirable that the law should regulate the eviction of unlawful
occupiers from land in a fair manner, while recognising the right of land owners to apply
to a court for an eviction order in appropriate circumstances.”
[17] Section 4 of PIE provides for the eviction of unlawful occupiers. Since the
first respondent has been in occupation of the property for more than six months at
the time of the eviction application, s 4(7) applies. It reads as follows:
‘(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 executi on 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 elder ly, children, disabled
persons and households headed by women.’
[18] In s 1 ‘unlawful occupier’ is defined as follows:
‘“unlawful occupier” means 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, excluding a person who is an occupier in terms of the Extension of Security of
Tenure Act, 1997 , and excluding a person whose infor mal right to land, but for the
provisions of this Act would be protected by the provisions of the Interim Protection of
the Informal Land Rights Act, 1996 (Act 31 of 1996).’
[19] ‘Person in charge’ is defined in that section as ‘a person who has or at the
relevant time had legal authority to give permission to a person to enter or reside
upon the land in question’.
[20] Sub-sections 4(8) and (9) of PIE provide that:
“(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.”
[21] It is trite by now that the question of the lawf ulness or unlawfulness of the
occupation is not determined in isolation from the justice and equity provisions of
the PIE Act:
“[t]he court will grant an eviction order only where: (a) it has all the information about
the occupiers to enable it to decide whether the eviction is just and equitable; and (b) the
court is satisfied that the eviction is just and equitable, having regard to the information
court is satisfied that the eviction is just and equitable, having regard to the information
in (a). The two requirements are inextricable, interlinked and essential. An eviction
order granted in the absence of either one of the two requirements will be arbitrary. I
reiterate that the enquiry has nothing to do with the unlawfulness of occupation. It
assumes and is only due when the occupation is unlawful.”1
1 Occupiers, Berea v De Wet N.O. and Another 2017 (5) SA 346 (CC), at para 47. Stroebel v Witzenburg
Municipality (A176/17) [2017] ZAWCHC 126 (2 November 2017).
[22] In Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
others2 the Court stated that the purpose of PIE was as follows:
"…what [PIE] does not do is to abolish the common-law right of an owner to the
exclusive enjoyment of his property and the owner's inherent right to the legal
protection of his property. The Act sets out to control in orderly fashion those
situations where it had become necessary to evict persons who had occupied land
belonging to another unlawfully. The procedures prescribed by the A ct which have to
precede removals have made inroads into the rights of property owners to protect
their property against unlawful occupation."
[23] In Ndlovu v Ngcobo; Bekker and another v Jika3 the Supreme Court of
Appeal emphasised that:
"The effect of PIE is not to expropriate the landowner and PIE cannot be used to
expropriate someone indirectly and the landowner retains the protection of s 25 of the Bill
of Rights. What PIE does is to delay or suspend the exercise of the landowner's full
proprietary rights until a determination has been made whether it is just and equitable to
evict the unlawful occupier and under what conditions. Simply put, that is what the
procedural safeguards provided for in s 4 envisage."
[24] In Occupiers of Erven 87 and 88 Berea v De Wet NO and Another (Poor
Flat Dwellers Association as Amicus Curiae)4 the Constitutional Court held that:
“The effect of PIE is not and should not be to effectively expropriate the rights of the
landowner in favour of unlawful occupiers. The landowner retains the protection
against arbitrary deprivation of property. Properly applied, PIE should serve merely to
delay or suspend the exercise of the landowner’s full property rights until a
determination has been made whether it is just and equitable to evict the unlawful
2 Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and Others 2001 (4) SA 759 (E).
3 Ndlovu v Ngcobo, Bekker and Another v Jika (1) (240/2001, 136/2002) [2002] ZASCA 87; [2002] 4 All SA 384
(SCA); 2003 (1) SA 113 (SCA) (30 August 2002).
4 Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC 18; 2017 (8) BCLR
1015 (CC); 2017 (5) SA 346 (CC) (8 June 2017).
occupiers and under what conditions.”
[25] In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others5
the Supreme Court of Appeal held that when determining whether it is just
and equitable to evict the unlawful occupier, the Court must determine whether it
is just and equitable to order eviction having considered all relevant
circumstances; and consider what date would be just and equitable upon which the
eviction order should take effect.
C. DISCUSSION
[26] As previously mentioned, the first respondent’s opposition to the application
is based mainly on alleged assurances made by Rien that she would have a lifelong
right to remain at the property. She states that he repeated these assurances during
a family meeting in 2020 and confirmed them in October 2024 when he signed a
partnership agreement. All of this is denied by the applicants, as well as Rien who
has deposed to an affidavit in reply, including the family meeting of 2020 and the
signature of the partnership agreement by Rien.
[27] What is clear from the first respondent’s version is that the alleged
assurances of a lifelong right of occupation were made verbally and were not
reduced to writing during the existence of the cohabiting relationship , until 2024
which was after the transfer of the property to the applicants. The lifelong right was
also not registered against the title deed of the property. The first respondent did not
5 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116; 2012 (6) SA 294
(SCA); 2012 (11) BCLR 1206 (SCA); [2013] 1 All SA 8 (SCA) (14 September 2012).
pay or exchange anything for the purported right of occupation, and it must
accordingly be assumed to have taken place by way of a donation.
[28] A right to habitation (or habitatio) is a lifelong right to live in a house
owned by another.6 It is a limited real right which confers on the holder the right to
dwell in the house of another, without detriment to the substance of the property.7
[29] If registered against the title deed of the property, the right of habitatio
would be capable of being enforced against the world at large and would in turn
amount to a limited real right in that property.8
[30] In order for a right of habitatio acquired by way of donation, to be valid, it is
must comply with the provisions of the Alienation of Land Act 68 of 1981 (‘the
Alienation Act ’), the General Law Amendment Act 50 of 1956 , and the Deeds
Registries Act 47 of 1937.
[31] The Alienation Act defines “land” as including, “…any interest in land” and
“alienation” of land as including any sale, exchange or donation thereof.
Section 2(1) provides that:
“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”
6 Grobler v Phillips and Others (CCT 243/21) [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR 115 (CC)
(20 September 2022) para 5, ft 2. See Hendricks v Hendricks [2015] ZASCA 165; 2016 (1) SA 511 (SCA) para 6.
7 Hendricks v Hendricks [2015] ZASCA 165; 2016 (1) SA 511 (SCA) para 6.
8 Grobler v Phillips and Others (446/2020) [2021] ZASCA 100 (14 July 2021) para 42. Willoughby’s Consolidated
Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16; Janse van Rensburg and Another v Koekemoer and Others 2011 (1)
SA 118 (GSJ) para 19.
[32] A conferral of a right of occupation by an owner of land to another, whether
by virtue of a sale, exchange or donation, accordingly, falls within the ambit of the
Alienation Act and is required to be in writing and signed by the parties (or their
agents) for that right to be of any force and effect. None of this was done in this
case.
[33] As for the General Law Amendment Act, section 5 provides as follows:
“No donation concluded after the commencement of this Act shall be invalid merely by
reason of the fact that it is not registered or notarially executed: Provided that no
executory contract of donation entered into after the commencement of this Act shall be
valid unless the terms thereof are embodied in a written document signed by the donor.”
[34] Section 65 of the Deeds Registries Act provides as follows:
“65. Registration of notarial deed creating personal servitude:
(1) Save as provided in any other law, a personal servitude may be created by
means of a deed executed by the owner of the land encumbered thereby and the
person in whose favour it is created, and attested by a notary public: Provided
that in the case of a servitude in favour of the public or of all or some of the
owners or occupiers of erven or lots in a township or settlement, the registrar
may, if in his opinion it is impracticable to require such deed to be executed by
the persons in whose favour the servitude is created, register such deed
notwithstanding the fact that it has not been executed by such persons:
Provided further that where it is desired to register a road or thoroughfare in
favour of the public at the same time as the registration of a subdivision which
it serves, it shall in like manner and without the registration of a notarial deed
be permissible to register it in the deed relating to the subdivision and also to
endorse the deed of the remainder accordingly: Provided further that
conditions which restrict the exercise of any right of ownership in immovable
conditions which restrict the exercise of any right of ownership in immovable
property may be included in any deed of transfer of such immovable property
tendered for registration if such conditions are capable of being enforced by
some person who is mentioned in, or, if not mentioned therein, is ascertainable
from the said deed of transfer or from other evidence and such person, if
determinable, has signified acceptance of such right.”
[35] In Scholtz9 this Court considered the application of section 5 of the General
Law Amendment Act to a donation of property encumbered by a mortgage bond ,
made during marriage, and whether the property may validly be donated to another
party, even though no reference is made to th e mortgage bond in the deed of
donation. The Court referred to Stalwo10 where the following was stated:
"Section 2(1), whose objective is to achieve certainty in transactions involving the sale of
fixed property regarding the terms agreed upon and limit disputes, requires an agreement
for the sale of land to be in writing and signed by the parties. That means that the
essential terms of the agreement, namely the parties, the price and subject matter, must
be in writing and defined with sufficient precision to enable them to be identified. And so
must the other material terms of the agreement."; and
“This dictum is instructive. In my view, the same objective must underpin the provisions
of Section 5 of the General Law Amendment Act, namely, to achieve certainty in
transactions.
[36] In Janse Van Rensburg, the Court was called upon, by way of an exception,
to consider whether an oral agreement granting a servitude over immovable property
contravened the provisions of the A lienation Act. In upholding the exception , the
Court placed reliance on Felix11 and stated as follows:
“Once it is concluded that a servitude such as habitatio or
usus or usufructus constitutes a subtraction of the dominium in land it follows that any
agreement granting such right has to be in writing and signed by the parties upon pain of
being declared invalid in terms of the aforesaid sections. For the same reasons, mineral
rights are also to be in writing to be valid. Units in a sectional titles scheme are also
defined as "land" in section 1 of the Alienation of Land Act. All formalities
pertaining to the sale and purchase of units have to comply with section 2(1) of the Act. In
pertaining to the sale and purchase of units have to comply with section 2(1) of the Act. In
the light of these analogous situations, it seems incongruous that a servitude of habitatio,
usus or usufructus orally concluded can be valid and enforceable. In each instance there
is a measure of depravation of the owner's title to the immovable property. As such they
9 Scholtz v Scholtz (4958/2008) [2011] ZAWCHC 125; 2012 (1) SA 382 (WCC) (2 February 2011).
10 Stalwo (Ptv) Ltd v Warv Holdings (PM Ltd and Another 2008 (1) SA 654 (SCA) at para [7]
11 Felix and Another v Nortier NO and Others (2) 1994 (4). SA 502 (SE) at 506D-H.
have to be in writing and signed by the parties to have any force whatsoever.”12
[37] At paragraphs 20 and 21 the Court continued as follows:
“[20] There is an additional reason for holding the proposed amendment excipiable. It
is evident from the contents of paragraphs 15 to 24 thereof that the plaintiffs do not seek
to allege that the oral servitude was obtained because of some quid pro quo, be it the
payment of a purchase price or the exchange of other rights. The proposed amendment
relies expressly on the contents of paragraph 11 of the particulars of claim. In
paragraph 11.5 it is expressly alleged that the plaintiffs were afforded the right of
residence "gratis" and without the need to pay rentals or any other remuneration. In
effect, the proposed amendment can only be interpreted as relying on the personal
servitude of habitatio having been donated to them by the first respondent. In terms of
section 5 of Act 50 of 1956, donations of future entitlements have to be in writing to have
any force or effect. The proposed pleading conflicts with this provision. In addition the
word "alienation" of land in Act 68 of 1981 is defined to include a donation. Any donation
of an interest in land must as of necessity also be in writing and signed by the parties.
The proposed amendment therefore conflicts with the Alienation of Land Act even if the
amendment is to be interpreted as a donation.
[21] In my view I am bound by the findings of Louw AJ in this case as far as he found
that the oral agreement relied upon by the applicants in paragraph 11 of the particulars
of claim, is rendered of no force or effect by the provisions of section 2(1) of the
Alienation of Land Act. In the present instance the proposed amendment is still reliant
upon the source of the applicants' rights being an oral agreement amounting to a
servitude. It is specific performance of that oral agreement which is sought alternatively
servitude. It is specific performance of that oral agreement which is sought alternatively
the proposed amendment relies on that oral agreement to establish a clear right entitling
the applicants to an interdict. That being the case I am of the view that the exception on
this ground against the proposed amendment is well taken.”
[38] In Grobler an occupier of property sought to rely upon an oral right of
occupation of the property for life, which she contended was granted by a previous
owner of the property but was not reduced to writing. It was common cause that the
owner of the property was made aware of this purported right when purchasing the
property but he denied that it was enforceable against successive owners since it
was not reduced to writing or registered against the title deed of the property.
12 At paragraph 18 .
Although t h e reliance on the lifelong r i g h t o f occupation was ultimately
abandoned on appeal, the Supreme Court of Appeal (SCA), made reference to the
matters of Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd, Janse van
Rensburg and Another v Koekemoer and Others, and stated as follows:
“It was accepted that the right, conferred by Mr Rack and in respect of which there was
objective evidence to be found in a subsequent deed of sale of the property, had not been
reduced to writing and had not been registered against the title deed. To qualify as a
right of habitatio enforceable against successors in title this was required.”
[39] It is accordingly settled law that , absent the purported lifelong right of
occupation having been reduced to writing and signed by both parties, and
registered against the title deed of the property, a lifelong right of occupation (or
habitatio) is invalid and unenforceable against, not only the transferor but also any
subsequent owner of the property (in this case the applicants).
[40] To supplement her case, t he first respondent invokes the law relating to
cohabitation. She refers to the High Court judgment of LM v RK13 in this Division
where the Court recognized the existence of a universal partnership. However, that
judgment does not assist her. What is immediately apparent from the first
paragraph thereof is that the eviction proceedings were held separately from those
proceedings in which the plaintiff sought recognition of a universal partnership .
Secondly, as that judgment acknowledged, there are often insuperable difficulties
encountered in proving the nature and consequences of permanent life
partnerships, which are also present here. Thirdly, similar to Bwanya14 which was
referred to in that judgment, the issues for determination in LM v RK related to the
13 LM v RK 2022 JDR 1399 (WCC).
14 Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (4) BCLR 410
(CC); 2022 (3) SA 250 (CC) (31 December 2021).
maintenance and intestate consequences of the relationships, and that was the
context of the judgment.
[41] It may well be that the first respondent is entitled to maintenance or other
claim by virtue of her relationship with Rien. However, tha t is not the same as a
right to remain in occupation of the property which is at issue in this case. As it is,
Rien not only terminated their relationship but asked her to vacate the property as a
consequence of the termination. And it is common cause that the relationship has
indeed been terminated. That being the case, her right to remain in occupation
cannot possibly flow from the cohabitation relationship but must be based on
something else. As the earlier discussion has established, there is no merit o n a
claim based on habitatio. Before I consider the first respondent’s reliance on the
partnership agreement which is the next string to her bow , it is worth mentioning
that her version regarding the nature of her right to live and remain on the property
is not entirely consistent.
[42] In the first respondent’s papers there is also mention of a usufruct, which is
not the same thing as a habitatio. As the SCA explained in Spangenberg15, whilst
the holder of a habitatio has a lifelong right to live on the property or to let the
property out without the right to enjoy its fruits, a usufruct grants a person the right
to occupy a property belonging to someone else and to enjoy its fruits for a limited
period of time whilst ensuring that the property itself is preserved. The latter is not
the nature of a right alleged by the first respondent in these proceedings, for what
she alleges is a lifelong right which persists beyond and above the rights
transferred to the applicants.
15 Spangenberg and Others v Engelbrecht NO and Another (717/21) [2023] ZASCA 100 (14 June 2023) para 20.
[43] Yet, the first respondent’s daughter, Ms Lesley Rochat ( “Ms Rochat”) has
deposed to an affidavit alleging that in 2017 Rien personally assured her that the
first respondent would have a ‘lifelong usufruct over the property’, and that this
was affirmed at a meeting in 2020. The same deponent states that she consequently
drafted the terms of the partnership agreement as conf irmation of Rien’s
assurances. Not only do these averments defy the definitions set out in
Spangenberg above, but they also do not provide detail o f the nature of the alleged
‘lifelong usufruct.’ Moreover, the partnership agreement, to which I now turn, does
not support Ms Rochat’s averments.
[44] The only provisions in the partnership agreement which make mention of
housing provide as follows:
“2. Provision of Support to [first respondent] until death:
[Rien] agrees that upon his death, his estate will be responsible for continuing to provide
the following support for [first respondent]:
(a) Housing: The estate will ensure that [first respondent] is provided with suitable
housing, which may include the continuation of residence in their current home, or
provision of an equivalent home of the same standard close to [first respondent’s]
family.”
[45] The document is not a model of clarity. First, paragraph 2 expressly states
that it seeks to make “provision of support to [first respondent] until death” . It is
not clear whose death this subheading refers to. It is likely a reference to the death
of the first respondent. In other words that the intention is to provide for the first
respondent until her death.
[46] Regardless, it is the body of the text which provides even less support for
what the first respondent and Ms Rochat contend. It expressly seeks to make
provision for the first respondent upon the death of Rien by providing that: “[Rien]
agrees that upon his death, his estate will be responsible for contin uing to provide
the following support for [first respondent ]”. The same intention is clearly set out
in the introductory paragraph, as follows:
“WHEREAS [Rien] is currently ill and wishes to ensure that [the first respondent]
continues to receive the sa me level of support and care in the event of [Rien's] death
before [first respondent]”
[47] In fact, Ms Rochat herself states in her affidavit that the intention was to
confirm the alleged verbal undertaking Rien had made of a lifelong usufruct over
the property should he pass away before the first respondent. Such an interpretation
is also supported by the use of the phrase ‘his estate’ in the subsequent paragraphs,
which seek to ensure that provision will be made for the first respondent from the
proceeds of the estate of Rien. All of this provides the context for clause (a) in the
purported agreement which provides for housing, namely that it i s upon the death
of Rien that housing is to be provided for the first respondent. But Rien is not dead.
And the property in question was in any event transferred from him to the
applicants two years ago. So, the trigger for the provision of housing in clau se (a)
has not occurred.
[48] Turning to the housing provision in clause (a) , it states that the estate is to
ensure that what is to be provided is in the first instance, “suitable housing”, not
necessarily the property in question in these proceedings , although there is also
mention that that suitable housing “may include the continuation of residence in
their current home” . It is clear from this language that what is sought to be
provided is continuation of a similar s tandard of living for the first respondent.
That much is made clear by the remainder of the provision which makes specific
reference to “provision of an equivalent home of the same standard”.
[49] This may explain why the first respondent made no mention of a lifelong
right to remain in occupation of the property in the correspondence leading up to
this litigation, but instead chose to rely on a maintenance claim. What cannot be
denied is that the partnership agreement makes no reference to a lifelong right to
remain in occupation of the property, or of a usufruct , and it accordingly does not
support the first respondent’s and Ms Rochat’s allegations in this regard. In any
event, as the applicants po int out, Rien could not legally confer such a right in
October 2024 since the property had long -been transferred to the applicants by
then. Furthermore, the alleged right was not reduced to writing and registered in
the Deeds Office pursuant to the alleged agreement in 2020 or in 2024.
[50] That being so, to the extent that the first respondent relies on the alleged
habitatio, usufruct, and partnership agreement, she has failed to establish a case.
No other right to remain at the property has been established by her, even on a
prima facie basis, to enable the court to stay these proceedings. There is no
genuine dispute of fact raised in this regard which needs to be resolved by way of
oral evidence because her own case does not establish fa cts necessary for such
claim.
[51] The only possible dispute concerns the issue of the transfer of the property
to the applicants, of which the first respondent claims she had no knowledge until
“sometime in 2025”. It is in this regard that the referral application is brought , so
that it can be shown that the property transaction was a “sham/fraud”.
[52] Uniform Rule 6(5)(g) provides as follows:
“Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and
expeditions decision. In particular, but without affecting the generality of the aforegoing,
it may direct that oral evidence be heard on specified issues with a view to resolving a
dispute of fact and to that end may order any deponent to appear personally or grant
leave for such deponent or any other person to be subpoenaed to appear and be
examined and cross - examined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition or issues, or otherwise.”
[53] It is trite that oral evidence that will not affect the outcome of the claim for
substantive relief and it will not be allowed it will only lead to unnecessary delay
and unnecessary costs being incurred.
[54] The highwater mark of the first respondent’s case in this regard is that the
property is worth substantially more than the alleged purchase price of
R8,100,000.00. In that regard, she seeks the source documents for the transaction,
including the deed of sale setting out the terms and conditions of the sale,
particularly the purchase price, an opportunity to cross -examine the applicants and
Rien.
[55] One of the factors that take into account is that the first respondent does not
specify when exactly she discovered the transfer of the property, and her counsel
could not provide any clarity in this regard when pressed by the court. I accept
however, that it was before 3 April 2025, since it was mentioned by the first
respondent in her letter of that date. Despite that discovery, the first respondent did
not immediately pursue a legal challenge to the transfer, which she had already
discovered was effected in 2022, u ntil the referral application which was launched
as an interlocutory application to these proceedings. In those circumstances, I
consider it unfair to delay these proceedings especially given that her basis for a
right to occupation does not withstand scrutiny.
[56] Another reason I do not consider it appropriate to grant the referral
application is that its intention is ultimately to determine the financial
consequences of the cohabitation relationship between Rien and the first
respondent, which is not the p urpose of eviction proceedings. As I have already
mentioned, the facts surrounding the relationship are fraught with disputes which
may well need ventilation by way of oral evidence. Given that the property has
already been transferred out of Rien’s estate , the issue regarding this particular
property for all practical purposes resolves itself into one of financial
consequences, which the parties may determine elsewhere. Again, it is relevant
here that the first respondent has failed to establish a right to continue occupying
this particular property.
[57] As a result, the counter -application and the referral application must be
dismissed.
D. EVICTION & JUST AND EQUITABLE CIRCUMSTANCES
[58] The first respondent turns 87 years on 17 December 2025. She has become
accustomed to receiving financial support from Rien. Her health has deteriorated
with age and as a result of the stressful living conditions related to this matter that she
also attests to , she states that she has developed a serious heart condition,
myocarditis, asthma and persistent eczema.
[59] As regards her financial means, a lthough she states that she is a pensioner
who receives a state pension of R2200 per month and who is no longer in regular
employment, it is not disputed that, between October 2024 and April 2025, she held
a cumulative sum of R1,132,199.54 in two of her ABSA bank accounts . Her
answer regarding these funds is that they are ‘limited and are already earmarked
for necessary living expenses, medical needs, and legal presentation in these
proceedings’. These are vague averments, made without any supporting
documentation. It is also not disputed that she holds a number of other bank
accounts, whose details have not been disclosed in these proceedings.
[60] By all accounts, the first respondent has become accustomed to an affluent
life. The papers indicate that in April 2024 she underwent a cosmetic breast
augmentation procedure for which she, not Rien, paid in an amount of over
R45,000.00. Together with her daughter, she is both a beneficiary and trustee of The
Whispering Hope Trust, which owns a farm property in Gauteng. This is one of the
possibilities of alternative accommodation pointed to by the applicants.
[61] In addition to all this, on 1 March 2004 Rien caused one of his properties,
Erf 1471, Prince Albert, to be transferred to the first respondent, to serve as a “nest
egg” or investment for her. The first respondent subsequently sold the said property
on 6 January 2022 for R395,000.00, the proceeds of which were all retained by her.
[62] Two further properties co-owned by Rien and the first respondent in Prince
Albert were sold, on 4 October 2020 and 13 October 2020, and 50% of the proceeds
were paid to the first respondent, in the amounts of R180,476.65 and R571,724.71,
respectively. As I have already mentioned, Rien also gifted the f irst r espondent
with four gold coins valued at approximately R240,000.00.
[63] All the above may explain why the first respondent has not alleged that an
order of eviction will render her homeless. Instead, she states that she will not be
able to find “alternative housing that is safe, appropriate and sustainable” to her.
[64] Furthermore, the record indicates that she has access to alternative homes ,
and has 9 children. Two specific properties are mentioned in the papers as possible
alternative accommodation for her, namely in Betty’s Bay and Gauteng. She denies
this, however, stating that she has no legal entitlement to occupy the property in
Betty’s Bay, and that she has not been invited to reside there. Further, she states
that Betty’s Bay is unsuitable because flatlet in question is incomplete, the area is
remote and lacks access to essential facilities, and points to the absence of nearby
infrastructure, specialist doctors and hospitals.
[65] As for the Gauteng property, she states that she has no enforceable right to
occupy it, though she does not deny that it is owned or administered by a trust in
which she, and/or her relatives are involved. She al so states that the property in
question is in a remote rural area, far from medical support, and extremely unsafe.
[66] It is understandable that the first respondent is attached to the property in
question in these proceedings, which has been her home for 30 years. Whilst I agree
that removal from her immediate environment at this stage of her life might bring
instability, I do not agree that that means she cannot fin d accommodation in the
vicinity of the current home. It has not been shown that she cannot do so.
[67] In this regard, the Applicants attached to their papers a list of readily
available alternative accommodation for rental within the vicinity of the property
in question. The first respondent’s response was that the properties do not consider
her ‘personal needs, income level, proximity to medical care or the broader
realities of finding age appropriate housing in a limited budget’ . These are vague
responses, and lack particularity. Only the first respondent , who is also legally
represented, could provide full and specific details regarding her needs in this
regard.16 Also relevant is the fact that the first respondent was served with the
Municipality’s housing questionnaire on 4 September 2025 and she has failed to
complete it.
[68] Finally on this issue, as already discussed, even the alleged partnership
agreement drawn up by Ms Rochat contemplates that alternative suitable housing
may be app ropriate for the first respondent instead of the property in question. In
other words, that she may have to look for alternative housing elsewhere.
[69] When taking into account the first respondent’s response s in relation to all
the alternative accommodation suggested by the applicants , it appears that her
attitude is that it does not suit her wishes or personal preferences, which is not a
relevant consideration when considering an eviction in terms of the PIE Act.17
[70] For all these reasons, I am of the view that it is just and equitable for the first
respondent to be evicted from the property, not least because of the toxic
environment surrounding Rien which is not seriously disputed. He too is a
vulnerable individual, given his age and the state of his health , and deserves peace
in the home.
[71] When considering a reasonable date for the first respondent to vacate the
property, I take into account the fact that Rien has been diagnosed with stage -4
16 Luanga v Pethpark Properties (Pty) Ltd 2019 (3) SA 214 (WCC) at para 47.
17 See Grobler v Phillips 2023 (1) SA 321 (CC) at 36 and 44.
cancer and requires constant care free from interference which has been established
in these proceedings. I also take into account that the first respondent has been
afforded, effectively since March 2025 to vacate the premises. There was also a
time, in April 2025, when she indicated that she would be vacating and instead she
reneged citing in effect, a maintenance claim. I am accordingly of the view that it
is reasonable to grant the first respondent until the end of January 2026 to vacate
the property, to enable her to make arrangements for alternative accommodation.
E. ORDER
[72] In the circumstances the following order is made:
1. The first and second respondents , and all those holding title under
them at the property described as 1 [...] N[...] Way, Noordhoek, Cape
Town Western Cape (‘the property’) must vacate the property by , at
the latest, Friday 30 January 2026.
2. In the event that the first and second respondents and all those holding
title under them fail to comply with prayer 1 above, the Sheriff or
his/her lawfully appointed deputy is hereby authorized to eject them
from the property from 2 February 2026.
3. The counter -application and the application for re ferral of certain
matters to oral evidence brought by the first respondent are dismissed.
4. The first respondent is ordered to pay the costs of litigation, including
costs of counsel, on Scale A.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
Appearances:
For applicants: F. Sievers SC
R. Randall
Instructed by: S. Kimar, Marlon Shevelew & Associates Inc
For first respondent: P. Coston
Instructed by: B. Carnegie, Brett Carnegie Attorneys