IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO: 1989/2024
In the matter between:
PRIMROSE NOSIPHO RUSELO APPLICANT
And
VUYANI PATRICK SOM YO 1 ST
RESPONDENT
ALL OTHER PERSONS OCCUPYING 2 ND
RESPONDENT
THE FARM THROUGH FIRST RESPONDENT 3 RD
RESPONDENT
EASTERN CAPE INDUSTRIAL DEVELOPMENT
CORPORATION (IDC) NGUNI CATTLE
DEVELOPMENT TRUST
JUDGMENT
Nkele AJ:
INTRODUCTION.
[1] This is an application in which the applicant seeks an eviction order against
the respondents from a property known as the Remainder of Farm 179, Komga
Registration Division, Province of the Eastern Cape and Remainder of Portion 3
Farm 180, Komga Registration Division, Province of the Eastern Cape. The applicant
also seeks an order authorising the Sheriff of the above honourable court, duly
assisted by the South African Police Service, to carry out the eviction should the 1 st
respondent, and all other persons occupying the farm through him, not have vacated
the farm within 30 days of the date of the order directing them to so vacate, with all
their movable possessions and livestock. The application is being opposed only by
the 1st respondent, and he has filed opposing papers and heads of argument.
FACTUAL BACKGROUND UNDERPINNING THIS CASE.
[2] On or about the 4 th of March 2019 the applicant concluded a 30 -year long an
Agricultural Agreement lease, with the Eastern Cape Department of Rural
Development and Land Reform. The applicant, therefore, bases his locus sta ndi to
launch the present application on the lease agreement she entered into with the
department.
[3] On or about the middle of 2014, after she took occupation of the Farm, the
applicant applied to the department for subsidies and her application was ref erred to
the 3 rd respondent for consideration. She was one of the few female farming
candidates who were identified to participate in a cattle loan scheme that was
operated by the 3 rd respondent. At the time the 3 rd respondent had introduced a
cattle loan scheme programme for emerging farmers which had, as its main object,
the re-establishment of the Nguni cattle breed back in the Eastern Cape Province.
Following thereto, and on or about November 2014, she was approached by the 1 st
respondent and learnt mor e about that cattle loan scheme. She then agreed to
participate in the scheme, and 27 Nguni cattle were subsequently delivered to her
farm. The arrangement was that she would have them for a period of 5 years.
[4] During or about March 2018 the applicant was approached by the 1 st
[4] During or about March 2018 the applicant was approached by the 1 st
respondent when she requested her to assist the 3 rd respondent by making some
land available from the Farm for purposes of accommodating its cattle. At the time
the cattle were kept at a farm belonging to the University of Fort Ha re in Alice. The
idea was that if the cattle are kept at a farm in Komga it would be easier to make
deliveries to farmers that are in and around the Great Kei region, as it is in close
proximity to them, in terms of location.
[5] It is common cause, or a t least indisputable, that the applicant and the 1 st
respondent entered into a verbal sub -lease agreement on or about November 2018
and the material terms thereof were that:
1.1.1 “The 1 st respondent was to keep the cattle on a camp site situated on the farm for
purposes of herding and grazing;
1.1.2 the 1st respondent was to pay an amount a sum of R 3500.00 per month for the use of the
farm as a contribution towards electricity; and
1.1.3 the sub -lease agreement was to endure until all the cattle on the farm had been delivered
to the farmers around the Great Kei area”. 1
[6] The verbal agreement that the parties concluded relating to the sub -lease of
the farm proceeded harmoniously until such time that the 3 rd respondent was de -
registered in December 2020. That meant that the 1st respondent’s employment as a
Programme Manager had come to an end and he would have to take over the
operations of the 3 rd respondent. That which is the subject of dis pute, between the
applicant and the 1 st respondent, is when was the latter required to vacate the farm
by the former.
THE APPLICANT’S CASE
[7] The applicant bases her claim for the respondents’ eviction from the farm
firmly on the premise that she has t he right to do so, as a tenant in a 30 -year long
agricultural agreement of lease with the department, which lease still endures in that
it has not been terminated. According to her the farm was, in terms of the lease, let
to her, and she has hired it, for purposes of conducting agricultural activities 2and in
consideration thereof she would pay rent in the sum of R 28 000.00 per year, which
amount would escalate at the rate of 6% per annum. In terms of clause 6, she would
be entitled to the following discounts as a category 3 lessee:
be entitled to the following discounts as a category 3 lessee:
1.1.4 75% rental discount during the first year;
1 para 25 page 12.
2clauses 3 and 4 of the lease page 29.
1.1.5 50% discount during the second year; and
1.1.6 25% discount during the third year.
[8] It is the applicant’s case that the reason for the respondents’ occupation and
presence at the farm was that the 3rd respondent’s programme of providing emerging
farmers with the Nguni cattle in the Greater Kei area was still in operation. In fact, the
arrangement was meant for the sole purpose of facilitating easy access to the
farmers in that area by having a camp in the farm which will be closer to the intended
recipients of the scheme operated by the 3 rd respondent. Now that the 3 rd
respondent has been de -registered and, effectively has ceased to exist, the reason
for the 1st respondent’s presence on the farm has fallen away, hence the applicant’s
demand that he vacates it.
[9] The applicant contends that when the 3 rd respondent ceased to operate in
December 2020, she indicated to the 1 st respondent that she wanted to make use of
the camp site that he was using and therefore required him to leave the farm. The
reason why she wanted the respondents to vacate the farm, in addition to the de -
registration of the 3 rd respondent, was that the 1 st respondent was in breach of the
lease agreement i n that he had started to sell the cattle directly from the farm. The
latter reason, the applicant contends, was in breach of the terms of the sub -lease
agreement. In effect, the applicant’s assertion in this regard is that their agreement
never entailed th at the 1st respondent would carry his own private business on the
farm.
[10] After the 1 st respondent was required to vacate the farm, during or about
November 2021, he informed the applicant that he would evacuate the farm at the
end of January 2022 and move the cattle to his brother’s farm in Adelaide. To signify
that undertaking, the 1 st respondent’s last payment of the amount of R 3500.00 was
in November 2021. The 1 st respondent failed to vacate the farm, as agreed in
in November 2021. The 1 st respondent failed to vacate the farm, as agreed in
November 2021, and when the applic ant questioned him as to when he will do so, he
failed to give a definite answer. Instead, what followed was that he instituted legal
proceedings in the Komga Magistrate Court in terms of the provisions of the
Protection from Harassment Act 3. Indeed, the applicant further contends, the
3 section 3(2) of Act No. 17 of 2011.
institution of the harassment proceedings was a ploy on the part of the 1 st
respondent to frustrate and delay the applicant in the process of evicting him from
the farm and, at the same he sought to deflect attention from hi s illegal business of
selling livestock from the farm, in breach of the verbal sub -lease agreement.
[11] It is the applicant’s contention that, despite numerous and repeated requests,
the 1st respondent failed to vacate the farm. To this end the applicant even went to
the extent of engaging the services of legal representatives who gave him a formal
written notice to vacate dated 6 June 2023. The 1 st respondent was not even moved
by that formal written notice to evacuate the farm. What he did was to enlist the
services of his own legal representatives who, on the 9 th of June 2023, only
acknowledged receipt of the written demand to vacate. That prompted the
applicant’s legal representatives to address another letter to his legal
representatives, dated 27 July 2023, which enquired as to when he intends to vacate
the farm; whether he intends to negotiate exit terms; and whether he intends to
oppose the proposed eviction application.
[12] In a response dated 11 July 2023, the 1 st respondent noted the applicant ’s
intention to reassume occupation of the farm under the lease agreement but
requested her to understand the potential impact that the eviction would have on the
livestock. He therefore requested her cooperation for purpose of the welfare of his
pregnant livestock and the financial viability of his farming business. He therefore
requested a period of 3 and half years as, according to him, there were no suitable
farms available for purposes of accommodating his livestock. His reason for
requesting such a lo ng period was that it would take such a long period of time for
the livestock to complete the gestation periods and that if the vacation of the farm
were to be immediate it would have an adverse impact on the true value that he
were to be immediate it would have an adverse impact on the true value that he
would otherwise realise from the livestock.
[13] The respondent’s counteroffer in this regard was rejected in its entirety by the
department per letter dated 18 July 2023. The applicant strongly contends that the
basis of her eviction application is the common law, and the letter da ted 18 July
2023, headed as a notice in terms of the ESTA, was written under the wrong and
mistaken impression that the proceedings would be instituted under the provisions of
that Act. She has since been advised that the provisions of that Act are inappli cable
in the present factual scenario and that the present proceedings are governed by the
common law.
[14] Lastly, it is the applicant’s vehement and strong assertion that any right that
the 1st respondent may have had has long been terminated and his continued stay
and occupation of the farm is downright unlawful. The applicant therefore urges the
court to consider the fact that every attempt to persuade the 1 st respondent to
voluntarily vacate the farm has failed, and that the present proceedings have been
instituted as a last resort and grant the eviction order on that basis.
1ST RESPONDENT’S CASE
[15] In opposition, the 1st respondent raises a point in limine of lack of locus standi
on the part of the applicant. To substantiate that point, the 1 st respondent contends,
with so much vigour and determination, that from the applicant’s own papers it is
quite apparent that from D ecember 2021 she has been employed as Councillor and
that she was married to an individual who was employed by the Amatole District
Municipality. After that marriage came to an end, she became involved in an intimate
relationship with someone in the employment of the Great Kei Municipality.
[16] The applicant asserts that the applicant’s employment as Councillor and her
relationship with people who are in the employment of the state is in breach of the
provisions of clause 28 of the lease agreement the ap plicant concluded with the
department. Clause 28 of that lease agreement provides that:
“28.1.1 If the lessee or lessee’s spouse or common law partner is employed by
the State as a public servant at any time during the lease;
28.1.4 Any unauthorized subl etting or cession of the lease agreement on the
part of the lessee shall constitute grounds for immediate termination of
the lease agreement, without any notification period to remedy the
breach.”
[17] In this regard the 1 st respondent strongly contends t he fact that the applicant
subleased the farm to him and also that they had a tentative agreement to have her
rights thereto ceded to him, once she becomes Councillor, was a clear
demonstration that she was in breach of clause 28 of the lease agreement. Fo r that
reason, the 1 st respondent further contends, the lease terminated automatically in
terms of clause 28 of the lease agreement, hence the assertion that she has no
locus standi to institute the present eviction proceedings against him. The 1 st
respondent further elaborates on this point by stating that as a consequence of the
instances of breach aforesaid the lease, in the circumstances, was terminated the
moment they were committed. To add salt to the already gaping wound, the
applicant was married to a public servant, an employee of the Amathole District
Municipality, and that constituted a material breach in terms of clause 28.1.1 of the
lease which rendered void ab initio and caused it to terminate automatically.
[18] In conclusion, on the point i n limine of locus standi, the 1 st respondent
contends that it is only the department that has the requisite authority and legal
standing to bring eviction proceeding against him, not the applicant. For that reason,
so the 1st respondent contends, the appli cation should be dismissed with costs, on
that ground alone. The gist of the 1 st respondent defence is that she has no right or
authority to evict him from the farm and only the department can do so. Furthermore,
the 1 st respondent strongly disputes that h is occupation of the farm, or by anyone
who is there at his instance, is illegal and therefore it is wrong of the applicant to
make them illegal occupants.
[19] The 1st respondent relies on the fact that the applicant had been away from
the farm since December 2018 and therefore argues that he has been, since then, in
peaceful and undisturbed possession of the farm. He further contents that the lease
peaceful and undisturbed possession of the farm. He further contents that the lease
agreement was signed in March 2019, so the 1 st respondent contends, so when the
applicant left the farm the agreement that gives her a right to be in lawful possession
of the farm was concluded. Furthermore, when the lease agreement was entered
into the applicant promised to communicate it to the department so that in the end,
when she had been appointed as a Councillor, the rights that she had in terms of the
lease could be ceded to him. However, the applicant reneged from that agreement
and, instead betrayed him by concluding a cession agreement with one Mr Moko on
10 August 2022.
[20] In conclusion, the 1 st respondent vehemently asserts that the applicant has
acted in a disingenuous and deplorable manner by repudiating their agreement to
cede her rights to him and that, in the circumstances, if an eviction were to be
granted it would be tantamount to an encr oachment on the sanctity of the sublease
they have entered with the applicant. In this regard the 1st respondent contends, with
much vigour, that it would be a grave miscarriage of justice if the applicant were to
be permitted to act in terms of a lease ag reement that has been terminated by lex
commissaria . In the circumstances the 1 st respondent prays for dismissal of the
application with costs.
THE PERTINENT LEGAL PRINCIPLES
[21] By definition, a lease agreement is a contract in terms of which one party,
otherwise known as the lessor, agrees to give temporary use and enjoyment of his
property to the other, the lessee, in return for payment of a rent 4 to enter into an
agreement of lease which will result in the temporary use and enjoyment of the
property of the lessor by the lessee 5, it is trite that in the event of a dispute as to the
true nature and identity of the contract that the parties have concluded the courts
look at the main intention of the parties, and not the name or label that they giv e to
their agreement.6
[22] As far back as 1927 the Appellate Division of the then Supreme Court of
South Africa authoritatively stated that “ If there is one thing which, more than
another, public policy requires, it is that men of full age and competent
understanding shall have the utmost liberty of contracting, and that their contracts,
when entered into freely and voluntarily, shall be held sacred and enforced by the
4 Graham Glover Kerr’s Law of Salse and Lease LexisNexis 4 th Ed page 329, Francois du Bois et al
Willie’s Principles of South African Law Juta 9 th Ed page 907, Genac Properties JHB (Pty) Ltd v
NBC Administrators CC 1992 (1) SA 566 (A) 576D -E.
5Glover ibid page 333.
6 Oosthuizen v Standard Credit Solution Ltd 1993 (SA 891 (A) 911H -912B; ERF 3183/1 Lady Smith
9Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A) at 953; Ferndale Crossroads
Share Block (Pty) Ltd v Johannesburg Metropolitan Municipality 2011 (1) SA 24 (SCA) at paras 12 -
20.
courts of justice. 7That is a doctrine of privity and sanctity of contract wh ich entails
that contractual obligations must be honoured when the parties have entered into the
contractual agreement freely and voluntarily. The notion of privity and sanctity of
contracts goes hand in hand with the freedom to contract, taking into con sideration
the requirements of a valid contract, freedom to contract denotes that the parties are
free to enter into contracts and decide on the terms of the contract.” 8 Quite recently
the apex court in Beadica 231 and others v Trustees for the Time Being of Oregon
Trust and Others9 lucidly narrated this salient principle of our law, otherwise known
as pacta sunt servanda in the following terms:
“Moreover, contractual relations are the bedrock of economic activity and our economic
development is dependent , to a large extent, on the willingness of parties to enter into
contractual relationships. If parties are confident that contracts that they enter into will be
upheld, then they will be incentivised to contract with other parties for their mutual gain.
Without this confidence, the very motivation for social coordination is diminished. It is indeed
crucial to economic development that individuals should be able to trust that all contracting
parties will be bound by obligations willingly assumed.” 10
[23] The court continued at paragraph 85 as follows “The fulfilment of many of the
rights and promises made by the Constitution depends on sound and continued
economic development of our country. Certainty in contractual relations fosters a
fertile environ ment for the advancement of constitutional rights. The protection of
sanctity of contracts is thus essential to the achievement of the constitutional vision
of our society. Indeed., our constitutional project will be imperilled if courts denude
the princip le of pacta sunt servanda.” According to RH Christie and GB Bradfield
the princip le of pacta sunt servanda.” According to RH Christie and GB Bradfield
the basic idea of a contract is that parties must be bound by the contracts they make
with each other and it would be ridiculous if total strangers could sue or be sued on
contracts with which they were in no way connected. The doctrine which prevents
this ridiculous situation from arising is usually known as the doctrine of privity of a
contract. That essentially means parties who are not privy to a contract cannot sue
or be sued on it.11
7 Wells v South Afr ican Aluminite Company 1927 AD 69 at 73.
8Mohabed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd (183/17) [2017]
ZASCA 176 (1 December 2017) para 23, S v S and Others (59502/2022) (2022) ZAGPJHC (12
January 2022) para 13.
9(CCT 10919) [2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 () BCLR1098(CC) 17 June 2020.
10 para 84 of the judgment.
11 Christie’s the Law of Contract in South Africa LexisNexis 6 th Ed page 269.
[24] It is a generally accepted principle that the right to rescind a contract, in the
event of breach by a guilty party, is an extraordinary one reserved only to the
innocent party in special circumstances. 12The innocent party is not obliged to
exercise the right to rescind, he or she at his or her option. 13 It is entirely dependent
upon the innocent party to waive his or her right of rescission, either expressly or
impliedly. That happens if the innocent party with full knowledge of the existence of
the right 14 he or she abandons it, either expressly or tacitly by conduct plainly
inconsistent with the intention to enforce it. 15 The test to determine the innocent
party’s intention is purely objective and the following factors are taken into account;
namely: the outward manifestation of intention; 16mental reservations, not
communicated, being ignored 17.
[25] In Bekezaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd
Friedman JP observed as follows “ If the act on which it is sought to rely for the
exercise of an election is not unequivocal, regard may be had to the subjective
considerations which motivated the party concerned in order to determine whether
the act in question does in fact constitute an election or not.” 18. Overall, the
fundament al question that has to be answered is whether a reasonable person in the
position of the other party would have concluded 19 that the innocent party knew that
he or she had the right to rescind and intended either to relinquish the right or affirm
the contract.20 The innocent party cannot both approbate and reprobate21.
12 LAWSA Vol 9 para 423 page 321.
13 LAWSA Vol 9 para 423 page 322, Myers v Abrahamson [1952] 1 All SA 267 (C); 1952 (3) SA 121
(C) 123.
14 LAWSA Vol 9 para 424 page 322, Road Accident Fund v Mothupi [2000] 3 All SA 181 (SCA); 2000
(4) SA 38 (SCA) paras 17 – 21.
15 Sewpersadh v Dookie [2008] 1 All SA 286 (D); 2008 (2SA 526 (D) para 23; Spheris v Flamingo
15 Sewpersadh v Dookie [2008] 1 All SA 286 (D); 2008 (2SA 526 (D) para 23; Spheris v Flamingo
Sweet (Pty) Ltd (2008) 1 SA 304 (W), 2008 (4) SA 304 (W) 309, Sewpersadh v Dookie [2009] 4 All
SA 338 (SCA), 2009 (6) SA 611 (SCA) para 16.
16Botha (now Griessel v Finans credit (Pty) Ltd [1989] 2 All SA 401 (A); 1989 (3) SA 773 (A) 792;
Road Accident Fund v Mothupi supra para 49, LAWSA Vol 9 para 424 page 322)
17 LAWSA Vol 9 para 424 page 322.
18 1996 (2) SA 537 (C) 544.
19Southern Witwatersrand Exploration Co v Bisich Mining plc [1997] 3 All SA 691 (W); 1998 (4) SA
767 (W) 778-780.
20 ABSA Bank Ltd v Master of the Supreme Court Natal Provincial Division [1998] 3 All SA 189 (N)
200-203; 1998 (4) SA 15 (N).
21 Schalkwyk v Griesel [1948] 1 All SA 492 (A); 1948 (1) SA 460 (A) 473; Moyce v Estate Late Taylor
[1948] 3 All SA 523 (A); 1948 ( 3) SA 822 (A) 829; LAWSA Vol 9 para 424 fn 8 page 324.
ISSUE FOR DETERMINATION/TO BE DECIDED
[26] In my considered view, the crisp issue that has to be decided in this matter is
whether the applicant has the necessary locus standi and the authority to launch the
present application proceedings in terms of the lease agreement. In the event that it
is demonstrated that the applicant has the necessary locus standi, and in that event
alone, then it will be necessary to consider which regime reg ulates the eviction
proceedings, ESTA or the common law. Lastly, the appropriateness and legal validity
of the 1st respondent’s defence will be considered as well as the question of costs.
ANALYSIS AND EVALUATION
[27] In an endeavour to demonstrate that s he has the locus standi and the
necessary legal standing to launch the present application, the applicant states quite
clearly in her founding papers that she is a lessee in a 30 -year long lease with the
department which was signed as far back as March 200 9. On that basis, the
applicant strongly argues that she has a very strong title to occupy the farm and an
entitlement to resist any infringement and violation of her rights as a lessee. The
institution of the present eviction proceedings is her last endea vour to enlist the
assistance of the court, after all else has failed, to evict the 1 st respondent from the
farm. As is apparent from the papers several attempts were made to get the 1 st
respondent to vacate the farm, but all came to naught as he failed to accede thereto.
Even when he was given formal written notices to vacate, not once but twice, the 1 st
respondent would not budge. Instead, he engaged the services of his legal
representatives to delay his prompt exit from the farm to the extent of opposing this
eviction by raising spurious defences.
[28] On the contrary, the 1 st respondent seems to contend strongly that the
applicant cannot rely on the lease agreement to evict him from the farm because she
applicant cannot rely on the lease agreement to evict him from the farm because she
has been in breach of the material terms thereof in that she, firstly, concluded a sub -
lease with him, in breach of clause 28, which clause clearly prohibits sub -letting.
Secondly, the applicant, at the time that she concluded and signed the lease
agreement with the department in March 2009, she was alre ady in the employment
of a State Organ as Councillor, which is strictly prohibited by clause 28 of the
agreement. Thirdly, the applicant was, at the time the lease agreement was in a
marriage with her husband who was in the employment of the Amathole Distr ict
Municipality, a civil servant so to say. That also was a material breach of the lease, a
breach of a kind that is inexcusable and so material that it automatically resulted in
the termination of the lease agreement, in terms of clause 28 thereof. Fourt hly, the
1st respondent seems to bemoan the fact that the applicant entered into an
agreement of cession with one Mr Moko in August 2022, when she had promised
him to cede all her rights to the farm once she has been employed as a Councillor.
For this prop osition the 1 st respondent relies on the provisions of clause 28 of the
lease agreement which stipulates that any cession is strictly prohibited and if such is
concluded it will amount to a material breach, the sanction of which is automatic
termination of the lease agreement.
[29] At this juncture it is appropriate to have recourse to the applicable legal
principles in order to answer the main issue for consideration in this application,
whether the applicant has the locus to institute these eviction proc eedings and
consider other related issues. Indeed, it is trite that if a lessee sublets in breach of
the prohibition against subletting. Generally, that would be considered to be a
material breach entitling the lessor to cancel the original contract, even if no
cancellation clause exists. 22 In Demos v Saris and Chronis , the court held that a
clause prohibiting “subletting” prohibited also cession because ‘ to hold otherwise,
one would be driven to the illogical position that the lessee could let the whole
premises without the lessor’s consent by ceding his rights but could not let part’. 23
The court further gave a lucid explanation of the meaning, purport and import of the
words “cession”, “transfer” and “assign” as opposed to subletting when he stated that
“the words “cession”, “transfer” and “assign” reflect a juristic act which differs in
concept and in nature from that of subletting premises under a lease. When a lessee
concept and in nature from that of subletting premises under a lease. When a lessee
sublets the leased premises he enters into a contract of lease with the sub -lessee,
who becomes his tenant and while the lessee remains bound, as such, in all
respects, to the lessor. Whatever rights the sub-lessee may acquire he acquires from
the lessee by virtue of the agreement of lease concluded by them; his rights do not
derive from th e lessor. But, when the lessee cedes or transfers his rights under the
lease to a third party, he divests himself of such rights by a dispositive act which can
22Kerr’s Law of Sale and Lease ibid page 534, Abdulla & Co v Kramer Bros 128 CPD 423.
23Per Curlewis J at 114 -115. Miller J in the leading case of Floral Displays (Pty) Ltd v Bassa Land and
Estate Co (Pty) Ltd (see 1965 (4) SA 99 (D) at 100E.
in no sense be said to be the same as the act by which he sublets the premises. It
may be that t he practical result in both cases is similar, in the sense that the third
party, whether he be a sub -lessee of the premises or cessionary of the lessee’s
rights, may enjoy occupation of the premises which the lessor had let to the lessee.
But it does not f ollow from that that a stipulation that the lessee shall not cede or
transfer his rights under the lease also restrains him from entering into an agreement
of sublease in respect of the leased premises”.
[30] On the contrary, the 1 st respondent strongly asserts the applicant does not
have the locus standi to bring the present eviction proceedings for the reason that
the lease agreement between her and the department has automatically terminated,
consequent upon the various instances o f breach committed by her. The 1 st
respondent elaborates that in the circumstances only the lessor can institute eviction
proceedings, not the applicant, as the registered owner of the farm. This is so
because, so the 1 st respondent contends, the applicant , consequent upon the
material breach of the lease agreement, she is no longer the lessee of the farm. He
cannot, under the circumstances, rely on the title of being a lessee as there is no
valid and operational lease agreement anymore, as same had been au tomatically
terminated when she committed the material and inexcusable instances of breach.
[31] Out of these competing and contrasting versions of the parties, the question
that arises is whether indeed the lease agreement has in fact terminated
automatically, as contended for by the 1 st respondent, and whether the 1 st
respondent is the right party to raise the applicant’s lack of locus standi. Generally, it
is accepted that it is the right of an innocent party to a contract to rescind it in the
event of a breach 24. By its very it is an exceptional and extraordinary remedy
event of a breach 24. By its very it is an exceptional and extraordinary remedy
reserved for use only by an innocent party. 25 In the present matter, and that is quite
apparent from the opposing papers, the 1 st respondent wrote to the department to
report his predic ament of being threatened with eviction from the farm and in that
way sought its intervention. No doubt that is a clear demonstration that the 1 st
respondent was well aware of the fact that it is no party to the lease agreement to
which the applicant is a party. It is the 1 st respondent’s own version that the
24 Christie’s The Law of Contract LexisNexis 8 th Edition page 317
25 LAWSA Vol 9 para 423 page 321 .
department did not take any positive steps to solve the impasse he has with the
applicant or make any intervention, as he expected it to. All that this shows, in my
view, is that the department is well aware of the applicant’s several instances of
material breach of the lease agreement, particularly because it acknowledged receipt
of the 1 st respondent’s correspondence reporting them. The only inevitable
conclusion that one is bound to reach is that the department, as the innocent party,
having full knowledge of the instances of breach and the remedies that it has in
terms of clause 28 of the lease agreement, it has elected not to exercise its right to
rescind it. In Xenopoulor and another v Standard Ban k of South Africa it was held
that when party to a contact gives up a remedy there under, that is waiver. The use
of the word ‘election’ to describe such surrender does not dispense with the
requirements of waiver, namely proof that the person who is alleg ed to have waived
a right remedy with full knowledge thereof, decided to abandon it whether expressly
or by conduct plainly inconsistent with the intention of enforcing it. 26
[32] The fact that the department has full knowledge of the several instances of
breach of the lease agreement by the applicant is glaring and apparent from the fact
that it acknowledged receipt of the letter dated 6 September 2023 from the applicant,
not once but twice. So, the department had all time and opportunity to do something
about the breach of the lease agreement reported to it by the 1st respondent. That, in
my view, was a clear demonstration, an outward manifestation, that it has no
intention to exercise its right to rescind the lease agreement. In any event it is a trite
principle of our law that outward manifestation of the innocent party’s intention,
viewed objectively, must demonstrate to a reasonable person whether he or she has
elected to rescind the contract, as a consequence of the material breach of the lease
elected to rescind the contract, as a consequence of the material breach of the lease
agreement27. In my view the fact that it is only the innocent party that can elect to
exercise the right to rescind the contract, in the event of a material breach, persuade
me to conclude that the 1 st respondent has no business in interfering in the lease
agreement between the applicant and the department. He may have reported the
instances in which the applicant has been in breach of the lease, but that does not
give him a right to raise that as a defence in eviction proceedings instituted against
26 2001 (3) SA 498 at 508.
27 LAWSA Vol 9 para 424 page 322.
him. The reaso n is plain; he is not a party to the lease agreement and the remedies
available therein are available only to a party in that agreement.
[33] Even if I may be wrong in coming to the conclusion that the 1 st respondent
cannot argue that the applicant has no locus standi to institute eviction proceedings,
as he is not a party to the lease agreement, there is another related reason why the
applicant should be granted the eviction order sought and that is the doctrine of
privity and sanctity of a contract. That doctrine entails, essentially, that the parties
must be bound by contracts they make and that it would be ridiculous if total
strangers could sue and be sued on contracts in which they were not parties. 28 In
Cosira Development (Pty) Ltd V Sam Lubbe Invest ment CC t/a Lubbe Construction29
the court put the position as follows:
“[11] A myriad of factual disputes and legal conundrums arise from the facts of this matter.
The factual disputes, which undoubtedly exist, lie at the heart of the application for
referral of this application for trial. A number of legal issues, however, arise from the
undisputed facts of this matter. In the view I take of the matter it will not be necessary
to consider the application for a referral for trial as at least one of those is capable of
determination without having recourse to evidence. It concerns the question whether
the applicant has the necessary locus standi to claim the relief it seeks. As will
become more apparent in the judgment the outcome of this issue is decisive of the
matter, and these are my reasons.
[34] At paragraph [14] the court continued in the following manner
“[14] Against this background I turn now to the agreements we are concerned with
in this matter. It must be pointed out that the June 2005 and the August 2005
agreements are entirely distinct agreements providing, in effect, for two
separate agreements. The relationship between parties in all respects is
separate agreements. The relationship between parties in all respects is
governed by the agreements and is therefore contractual. No contractua l
relationship exists between the applicant and Council. A practical and often
used way of linking the transactions would have been by way of a tripartite
agreement, which would have created a contractual relationship between the
original seller (the counc il) and the successive purchaser (the applicant). In
the present matter, although the possibility of the conclusion of a tripartite
28 GB Bradfield and RH Christie Christie’s The Law of Contract LexisNexis 8th Ed page 317.
29 2011 (6) SA 331 (GSJ) paras 11 and 14.
agreement did arise, nothing further happened. The applicant states that a
tripartite agreement was considered prior to the conclusion of the August
2005 agreement but discarded as it would have necessitated “a complicated
lengthy internal procedure…if the applicant was to be made a party to the
agreements already entered into (i.e. the June 2005 agreement)”. It follows
that in the absence of privity of contract between the applicant and the
council I am driven to conclude that the applicant does not have the
necessary locus standi to bring the present application against the council
…and that the application for this reason alo ne, must fail”.
[35] I am in full agreement with the reasoning of the court in Corisa Developments
judgment and I align myself with it in the present matter. I, too, find that in the
present matter there is overwhelming evidence that the 1 st respondent is not a party
to the lease agreement and therefore has no business raising the defences that only
a party thereto is entitled to raise. And because he is not a party to the lease
agreement, his attempt to usurp the contractual remedies provided therein for t he
benefit of an innocent is ill -conceived and ridiculous, to say the list. The fact that he
concluded a sub -lease agreement with the applicant is no justifiable reason to do
what our law does not sanction. In fact, the trite principle of our law is that p arties in
a contract include only those persons who have assumed obligations towards each
other. Therefore, those outside of it are not parties to the contract. 30 Put differently,
being a private transaction, a contract generally creates personal rights an d duties
only for the parties to the contract, and for nobody else 31. There is therefore no way
that this court can be part of that untenable situation and thereby enforce an
illegality.
[36] Our law reports are replete with many examples where the courts have
refused to sanction and enforce illegal arrangements. The decision is of National
refused to sanction and enforce illegal arrangements. The decision is of National
Director of Public Prosecutions v Zuma is but one example where the Supreme
Court of Appeal emphasised that courts are constrained by the doctrine of legality,
that is to exercise only those powers bestowed upon them by the law. 32. The court
cannot therefore lend itself to the enforcement of an illegality. 33 It then follows that
the 1st respondent’s point in limine of lack of locus standi cannot be sustained and it
30 MA Fouche’ Legal Principles of Contracts and Commercial Law LexisNexis 8 th Ed page 100.
31 Dale Hutchison et al The Law of Contract in South Africa Oxford 2 nd Ed page 223.
32 2009 (2) SA 277 (SCA); 2009 (1) SACR 361; 2009 (4) BCLR 393; [2008] 1 All SA 197 para 15.
33 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) paras 77 and 99.
falls to be dismissed. This is so because the main lease agreement between the
applicant and the department is still extant and has not been terminated. So, the
applicant has all the right in law to institute the present eviction proceedings.
[37] What then follows, necessarily, is whether the applicant has complied with the
preliminary legal procedures and applicable legislation, if any, that regulate evictions
in our law. On her part the applicant has argued vehemently that the present eviction
application has been instituted in terms of the common law. In argument her Counsel
even stated that the notice, purportedly in terms of issued the Extension of Security
of Tenure Act , (“ESTA”) was issued erroneously and mistakenly under the
impression that that piece of legislation was applicable, when Infact it was not. It was
therefore argued that this application is governed by common law not by ESTA are
not applicable in these evic tion proceedings. In this regard Mr Ndabeni made
reference to the provisions of section 1(x)(b) which defines the “occupier” to
exclude, in particular, a person intending to use the land in question mainly for
commercial farming purposes.
[38] From the fa cts of this case, and the 1 st respondent’s version in particular, so
the argument goes, it is quite apparent that the respondents, particularly the first two
respondents, are in occupation to advance commercial farming activities and
therefore fall outside the definition of an occupier in ESTA.
[39] On the other hand, the 1 st respondent holds a totally different view and
strongly argues that the present proceedings fall squarely under the provisions of
ESTA and not under the common law. Therefore, the 1st respondent argues strongly,
that the provisions of that piece of legislation should have been complied with. In
particular, the 1st respondent made reference to the fact that the 2nd respondent was
residing and working in the farm and if the eviction orde r is granted, he will suffer
residing and working in the farm and if the eviction orde r is granted, he will suffer
immense prejudice as he will lose not only his employment but also a place to stay.
[40] Gleaned from its preamble, the object of ESTA is protecting occupiers living
on rural or semi -rural land with the express or tacit consen t of the landowner, or by
some other right, unfair eviction. To explain the noble object and mischief sought to
be achieved by ESTA, the apex court had this to say in Baron and Others v Claytile
(Pty) Ltd and Another.
“[10] Two provisions of the Constitut ion are directly implicated: sections 25 and 26. The
preamble to ESTA sets out the purpose for which ESTA was enacted as being to
provide for security of land tenure and to give effect to the provisions of sections 25
and 26 of the Constitution. Section 25 (1) protects the property of the landowner by
guaranteeing that no person shall be arbitrarily deprived of their property. But this
provision serves to protect the ESTA occupier too, albeit indirectly. How so? For
ESTA occupiers to enjoy a form of secure t enure, as envisaged by the Constitution,
we must recognise that ESTA occupiers enjoy rights and entitlements over land they
occupy, and that these rights and entitlements are every bit as worthy of protection as
those of private landowners. This has most r ecently been established in Daniels but
is built on the jurisprudence leading up to it. However, despite this acknowledgement,
occupiers may not rely on section 25(1) directly to protect their interests, since the
subsidiarity principle provides that where legislation was enacted to give effect to
certain constitutional rights, reliance must be placed on the provisions of the specific
legislation and challenged if they do not adequately give effect to the constitutional
right in question.
[11] Section 26 o f the Constitution protects persons from being evicted from their homes
without an order of court after considering all the relevant circumstances. One of the
purposes for which Parliament enacted ESTA was to regulate eviction from land.
[12] Previously occupiers of farmland were not protected under common law. They are
currently protected by the provisions of ESTA. Section 8 of ESTA deals with the
circumstances that may lead to the right of residence being terminated. In the present
circumstances that may lead to the right of residence being terminated. In the present
instance, section 8( 2) is applicable as the rights of residence of the applicants arose
from their employment by the first respondent and these rights of residence were
terminated when they resigned or were dismissed. Section 9 is titled “limitation on
eviction” and sets out the procedure that had to be followed after the applicants’ right
of residence had been terminated. Section 10 applies to eviction of occupiers before
4 February 1997 and is applicable to first, second, third and fifth applicants. Section
11 applies to the eviction of occupiers after 4 February 1997 and is applicable to the
fourth applicant. The fourth applicant will be delt with simultaneously with the other
applicants as section 11 sets out a lower threshold from the grant of an eviction than
section 10. He will not be prejudiced if his position is dealt with in the same way as
other applicants”.34
34 2017 (10) BCLR 1225 (CC); 2017 (5) SA 329 (CC) paras 10 -12; LTC Harms and MR Townsend
Amler’s Precedents of Pleadings LexisNexis 10 th Edition page 191.
[40] It is true that in section 1 of ESTA an occupier is defined as a person residing
permanently on the land in question belonging to another person and who on 4
February 1997 had consent to stay on the land or another right in law to do so.
However, excluded from that definition are the following; (a) a person using or
intending to use the land in question mainly for industrial, mining, commercial or
commercial farming purposes, but includes a person who works the land himself or
herself and does not employ someone other than a family member; or (b) a person
who has an income greater than the prescribed amount (currently R5 000,00).35
[41] In this matter it is not only glaring but also abundantly clear from the 1 st
respondent’s own version that he occupies the farm form commercial purposes. That
is apparent from the 1 st respondent’s answering and the correspondence from his
legal representatives, attached thereto, that he bemoans the fact that if he is evicted,
he will be losing a livelihood and income. That on its own, in my considered view,
make him fall under part of the definition of a person intending to use the land for
commercial farming purposes. No doubt that excludes him from the definition of an
occupier whose interests, rights and entitlements are worthy of a protection in terms
of the ESTA. Secondly, the 2 nd respondent has not opposed this application and for
that reason this court does not have the benefit of his or their version of events
relating to his or their occupancy of the farm, the purpose and duration thereof as
well as his or their current residence, how many are they and any other factor that
the court needs to take into account in considering whether he or they fall under the
definition of an occupier in terms of ESTA. It is, any event, a trite principle that
where an answering affidavit is not delivered by the opposite party within the period
stipulated in Rule 6(5) (d) (ii), the a pplicant may set down the application for hearing
stipulated in Rule 6(5) (d) (ii), the a pplicant may set down the application for hearing
without that answering affidavit. 36 That is what the applicant has done in respect of
the 2nd and 3rd respondents and she is entitled to a judgment against them in their
absence.
35 Klasse and Another v Van der Merwe NO and Others 2019 (9) BCLR 1187 (CC); 2016 (6) SA 131
(CC) paras 49-66, ESATA section 1, Amler’s Precedents of Pleadings ibid page 191.
36 Herbsterm &Van Winsen the Civil Practice of the Superior Courts of South Africa J uta vol 1 page 13
– 37.
[42] What complicates matters for the 1 st respondent in this regard is that he does
not shed any light to answer these questions in the answering affidavit, considering
the fact that in the same affidavit he also states that another employee left because
of the applicant’s harassme nt. It is therefore, that for that reason that I am confident
in my finding that the 1 st respondent, at whose instance the other respondents
occupied, does not comply with the definition of an occupier that they, too, are not
occupiers. Anyway, it was incu mbent the occupier, who invokes the application of
ESTA, to provide that the land in question falls within the definition of that
Legislation.37 The 1st respondent has failed to discharge the onus that rests with him
in this regard. I therefore come to the conclusion that the provisions of ESTA are not
applicable as the 1 st respondent is not an occupier as defined in section 1 of ESTA
and the applicant was perfectly justified in instituting the present eviction
proceedings under common law. That also appli es to the 2 nd respondent, in the
same measure.
[43] What appears to be the 1 st respondent’s main reason for opposing the
eviction proceedings is that he had concluded a sub -lease with the applicant and a
further agreement in terms of which the latter was to cede her rights to the farm to
him and then inform the department accordingly. In short, he aggrieved by the fact
that she betrayed her and reneged from that agreement. Instead, the applicant
concluded a cession agreement with one Mr Moko. It was when h e discovered the
applicant’s betrayal that he reported to the department that the applicant is in breach
of a material term of the lease in that he had concluded a sub -lease and cession
agreement as well as being in a marital relationship with a someone wh o is a civil
servant, which is prohibited by the terms of the lease.
[44] No proof was provided regarding the applicant’s marital status at the time the
[44] No proof was provided regarding the applicant’s marital status at the time the
lease agreement was concluded by the applicant and the department and for that
reason that allegation cannot be sustained, especially in the light of the fact that the
applicant has disputed it. The same applies to that of the applicant having a
37 Piters v Steimmet 2025 (6) SA 201 para 12.
boyfriend employed by a municipality. What seems to be very strange and surprising
is that, when it suits him, t he 1st respondent seems to strongly rely on the provision
the had very same lease that renders sub -letting and cession invalid, which he had
argued is a material instance of breach that automatically leads to the termination of
the lease. When it comes to the sub-lease he concluded with applicant, he seems to
ignore that the application of the provisions of clause 28 prohibit sub -letting and
cession. In my view the 1st respondent cannot be allowed to blow hot and cold. In the
view that I take clause of 28 r enders invalid and make it of no force and effect any
sub-lease or cession concluded in contravention of that provision and applies with
equal force, irrespective of who the parties are, 1st respondent included.
[45] Therefore, I come to the conclusion t hat the sub-lease that the 1st respondent
concluded with the applicant was void and initio ab for that reason he has no leg to
stand on in opposing this application. In other words, while he blames the applicant
for not having the necessary legal standing to institute eviction proceedings, that
argument is, in fact, more applicable to him than to the applicant in the
circumstances of this case. In my view, for as long as the applicant’s lease
agreement has not been terminated by the department, so long will the applicant
continue to occupy the farm in terms of the lease agreement, and the lease
agreement will continue to be valid until terminated by the department. As far as the
question of costs is concerned, it is only fair that the applicant be reimbursed for the
costs she incurred in pursuing this matter up to its finalisation. In any event it is a trite
principle of our law that costs follow the result. I find no justifiable reason to deviate
from that principle, and no reason has been advanced to convin ce me otherwise. As
only the 1 st respondent put up a strenuous opposition, it is quite appropriate that he
only the 1 st respondent put up a strenuous opposition, it is quite appropriate that he
be required to compensate the applicant for all the costs incurred.
[46] In the result I make the following order:
(a) That the 1st, 2nd and 3rd respondents, and all those that occupy the farm
at their instance, are ordered to vacate the farm within fourteen (14)
days from the date of this order;
(b) That the Sheriff of the above Honourable Court together with the
Pound Master, duly assisted by the South African Police Services is
authorised to carry out the eviction order should the First Respondent
and all persons occupying through him not have vacated the property
together with all their possessions and movables, including their
livestock by the date mentioned in prayer (a) above; and
(c) That the 1st respondent be ordered to pay costs of this application.
__________________________
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Attorney for the Applicant : M Ndabeni Attorneys
27 Blakeway Road
MTHATHA
Tel: 047 004 003
Email: Thandondabeni.legal@gmail.com
Instructed by : Kawondera Attorneys
1 Glanville Street
Makhanda
Tel: 043 422 0037
Email: attorneys@kaattorneys.co.za
Attorney for the Respondent : Maphanga Attorneys Inc.
Muizenberg
Tel: 021 001 4768
Instructed by : Yokwana Attorneys
10 New Street
MAKHANDA
Email: Lindo@yokwanaattorneys.co.za
Matter heard on : 4 September 2025
Judgment delivered on : 18 November 2025