IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between :
SA VE THE WORLD NPC
(Registration No.: 200 l /028144/08)
and
KAREN DU PLESSIS
Not Reportable
Case no: 2025-013497
APPLICANT
FIRST RESPONDENT
ANY OTHER UNLAWFUL OCCUPIERS SECOND RESPONDENT
CITY OF CAPE TOWN TffiRD RESPONDENT
Neutral citation:
Coram: MGENGWANA AJ
Heard: 5 November 2025
2
Delivered electronically: The judgment is handed down electronically
by circulating to the parties or legal representatives by email. The date for
the handing down of the judgment is deemed to be 22 January 2026.
Summary: Eviction - Unlawful Occupant - Section 4 of Prevention Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 - Occupier
- Section 1(1) of the Extension of Security of Tenure Act 62 of 1997 -
Regulation 2 of the Regulations to Extension of Security of Tenure Act -Onus
- Jurisdiction - Whether First Respondent's right to occupy the property has
been terminated.
ORDER
[I] In the result, I grant the following order:
(a) Applicant's application for eviction of the First and Second
Respondents is dismissed.
(b)Applicant is to pay First Respondent's costs on a party-party scale
including costs of Senior Counsel on Scale C.
JUDGMENT
3
MGENGWANA AJ:
Introduction
[1] This is an application for the eviction of the First Respondent and an
those who occupy the immovable property known as "Las Vegas,, which is
situated at Langverwagt Fann, Langverwagt Road, Kuils River ("the
property") therefrom. This eviction application has been brought by the
Applicant in terms of Section 4(1) & (2) of The Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 ("PIE Act").
Factual Background
[2] On or about 1 November 2019, Northern Fanning Company (Pty) Ltd
("the Lessor") entered into a Lease Agreement with Andre Bruyn ("the
Lessee") in respect of the property, which is the subject of this application on,
inter alia, the following tenns:
(a) That the Lessor lets and the Lessee rents the rental property
subject to the terms and conditions contained in the agreement for
a period of twelve (12) months, which period begins on I March
2019 and ends on 29 February 2020 (''the initial rental period),
irrespective of what date this agreement was signed. It is placed
on record that the Lessee has already taken occupation and that
the Lessee will vacate the rental property before 12h00 on the last
day of the initial rental period.
(b) That if the Lessee was not informed that the Lease Agreement
could be renewed then the Lease Agreement would automatically
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continue on a month-to-month basis, on the same terms and
conditions as the Lease Agreement for the initial rental period,
subject thereto that either party may terminate the Lease
Agreement by giving the other party one month's written notice.
( c) That the Lessee would only utilize the property for
accommodation and residential purposes.
( d) That the occupation of the property was limited to the Lessee and
his life partner being the First Respondent in these proceedings,
unless written permission was obtained from the Lessor, which
permission may not be unreasonably withheld. The property may
only be occupied by two (2) people.
( e) That the parties agreed that the Lessee and the First Respondent
are not occupiers for the purposes of the Extension of Security of
Tenure Act 62 of 1997 as amended, ("ESTA").
(t) That the parties placed on record that the Lessee and the First
Respondent were not occupiers in terms of the provisions of
EST A, that neither the Lessee nor the First Respondent were
employed by the Lessor and that the Lease Agreement has the
status of an ordinary Lease Agreement.
[3] After the expiration of the initial rental period, the Lease Agreement
ran on a month-to-month basis, subject to reciprocal one calendar month's
right to terminate the Lease Agreement as contemplated in terms of the
provisions of Section 5( 5) of the Rental Housing Act 50 of 1999 as amended
and in accordance with the provisions of clause 2.2.6 of the Lease Agreement.
5
Similarly, the First Respondent's right to continue occupying the property
under the title of the Lessee was extended.
[4] On or about 6 June 2023, the Lessor entered into an agreement of sale,
in terms of which Langverwagt Farm was sold to Save the World Foundation
NPC ("the Applicant" and "the Church").
[5] Transfer of the property from the Lessor to the Applicant occurred on
11 December 2023. This means, the Applicant became the registered owner
of Langverwagt Farm on 11 December 2023. Naturally, and in accordance
with the principle of huur gaat voor koop, the Applicant became the Lessor
of the property.
[6] Prior to the sale of the property, Mr Stephanus Francois Du Toit Le
Roux, of the erstwhile Lessor informed the Lessee and the First Respondent
that Langverwagt Farm has been sold. At that stage, the monthly rental
payable by Lessee was R8 500 (Eight Thousand Five Hundred Rand) per
month in terms of the month-to-month lease.
[7] On 29 January 2024, the Applicant provided the Lessee with a written
notice that the Lease Agreement would terminate with effect on 28 February
2024, the termination notice was delivered to the Lessee and First Respondent
on 30 January 2024 at the property. Delivery of this notice is not denied by
the First Respondent.
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[8] Despite being furnished with a calendar months' notice to vacate the
property, the Lessee did not vacate the property, but he sent an electronic mail.
through his attorneys, containing a proposal to the Applicant to buy the
Lessee's business or any part thereof instead. This proposal was sent to the
attorneys of the Applicant by the attorneys of the Lessee on 30 April 2024. It
is worth noting that the Lessee also indicated in the aforementioned email,
that the Lessee is willing to vacate the property.
[9] This proposal was rejected by the Applicant who instead extended
Lessee's and the First Respondent's right of occupation to the 31st day of July
2024, on condition that the Lessee and the First Respondent vacate the
property on that date.
[10] No response to this proposal was received, as a result, the Applicant's
new attorneys of record, Van Wyk Van Heerden sent a cancellation notice
incorporating a notice to vacate the property immediately to the Lessee on 5
August 2024. Receipt of this notice is admitted by the First Respondent.
[11] The Lessee unfortunately passed away on 18 August 2024. The
Applicant avers that the death of the Lessee also brought the Lease Agreement
to an immediate halt. This is pleaded in the alternative should it be submitted
by the First Respondent that the cancellation notice did not terminate the
Lease Agreement.
7
[12] Subsequent to the above, the Applicant brought these eviction
proceedings in terms of section 4(1) & (2) of the PIE Act.
[13] The eviction application is opposed by the First Respondent on the
following grounds:
(a) Firstly, the PIE Act does not apply to her because she falls within
the definition of an occupier as defined in Section 1 of ESTA as she is
occupying the property with the consent of the previous owner and the
Applicant in terms of section 24 of the ESTA Act. Based on this, this
court therefore has no jurisdiction to adjudicate this matter.
(b) Secondly, her right of occupation of the residence has never been
terminated and she is therefore not an unlawful occupier. The
purported notices of tennination relied upon by the Applicant are not
addressed to her but to the Late Lessee. Her right of occupation is not
derived from any lease agreement between the Applicant, the erstwhile
Lessor and the Late Lessee.
( c) Thirdly, her continued occupation by consent is furthermore
accentuated by the fact that the horses require omnipresence by herself
in that she has an extremely intimate relationship with all the horses
stabled on the premises and know them by their name and know their
emotional needs and she is able to communicate with them and interpret
their behaviour. This is important to promptly recognize any signs and
symptoms of a medical condition requiring veterinary services or to
medicate them timeously.
8
( d) Finally, she earns an income of less than Rl 3 625 (Thirteen
Thousand Six Hundred and Twenty-Five Rand) per month which is
paid to her in cash. She later says in her answering affidavit that she
earns an amountofR13 300 (Thirteen Thousand Three Hundred Rand).
[14] In reply to the above, the Applicant averred that the Lessee and the
representative of the erstwhile Lessor specifically negotiated occupation of
the property on the basis that it was incidental to the commercial operation of
the Stabling Business. As such, the Lessee, who is now late, entered into a
Lease Agreement and took occupation of the property together with the First
Respondent with a specific intention of utilizing the property for commercial
fanning purposes. In addition to the aforementioned, the First Respondent, in
her answering affidavit, makes the positive avennent that her continued
occupation of the property is required as the horses stabled at the property
require her 'omnipresence'. The allegation is telling, it is clear that her
occupation of the property is to operate a commercial stabling business on the
property. As such, consequently, the First Respondent is not an occupier for
purposes of the ESTA Act as she is operating a commercial undertaking,
namely the Stabling Business, to which the property is incidental.
[15] The aforementioned reply is contained in a Replying Affidavit which
was sent to the First Respondents attorneys on 22 May 2025. On 11 June 2025,
the First Respondent's attorneys sent the Applicant's attorneys an electronic
mail in which they opined that Applicant's Replying Affidavit introduces a
number of new allegations and factual avennents. Based on this, they sought
consent from Applicant's attorneys to file a supplementary affidavit within
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two (2) days, failing which the First Respondent's attorneys will launch an
Application to this Court in terms of Rule 6(5)(e) of the Unifonn Rules of this
Court. The two days passed and no application was launched as threatened.
Issues for determination
[16] Based on the averments made by the First Respondent, this court is
therefore enjoined to make a determination on whether:
(a) The First Respondent is indeed an occupier as defined in Section
1 of ESTA.
(b) It has jurisdiction to hear and determine this matter.
(c) If yes, whether First Respondent's right of occupation of the
property has been terminated which then results in her being an
unlawful occupier.
(d)Ifyes, whether it will be just and equitable to have her evicted.
( e) If yes, what is the just and equitable date on which the eviction
should be carried out.
Applicable legal principles
[ 17] Eviction proceedings in terms of the PIE Act are governed by section
4(1) & (2) which read as follows:
'4(1) Notwithstanding anything to the contrary contained in any law or the common
law, the provisions of this section apply to proceedings by an owner or person in
charge of land for the eviction of an unlawful occupier.
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(2) At least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective notice of the proceedings
on the unlawful occupier and the municipality having jurisdiction.' 1
[18] Section 1 of the same Act defines an unlawful occupier 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 informal right to
land, but for the provisions of this Act, would be protected by the provisions of the
Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996). '2
[19] The definition of an 'occupier' in terms of the ESTA Act is governed
by Section 1(1) of the ESTA Act and it reads as follows:
'"occupier" means a person residing on land which belongs to another person, and
who, on 4 February 1997 or thereafter had consent or another right in law to do so,
but excluding-
(a)
(b) a person using or intending to use the land in question mainly for industrial,
mining, commercial or commercial farming purposes, but including a person
who works the land himself or herself and does not employ any person who is
not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount.' 3
1 Section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation ofLand Act 19 of 1998.
2 Section I (xi) of the Prevention oflllegal Eviction from and Unlawful Occupation of Land Act 19 of
1998. 3 Extension of Security of Tenure Act 62 of 1997.
11
[20] The prescribed amount referred to above is governed by Regulation 2
to the ESTA Act and it reads as follows:
'2. Qualifying income
( 1) The prescribed amount for the purposes of paragraph ( c) of the definition of
"occupier" in section 1(1) of the Act shall be an income ofR13, 625.00 per month.
(2) For the purposes of subregulation (1) "income" means-
(a) a person's gross monthly cash wage or salary; or
(b) where a person earns money-
(i) other than in the fonn of a monthly cash wage or salary, the average monthly
amount of such person's gross earnings during the immediately preceding year; or
(ii) in addition to a monthly cash wage or salary, such person's gross monthly cash
wage or salary together with the average monthly amount of such person's
additional gross earnings during the immediately preceding year:
Provided that remuneration in kind shall not be taken into account. '4
[21] Section 213 of the Labour Relations Act defines remuneration as
follows:
"'remuneration" means any payment in money or in kind, or both in money and in
kind, made or owing to any person in return for that person working for any other
person, including the State, and "remunerate" has a corresponding meaning;' 5
4 Regulations to the Extension of the Security of Tenure Act 62 of 1997.
s Labour Relations Act 66 of 1995.
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[22] Perhaps one should start by citing the following as said by Tshiqi AJ in
Randfontein Municipality v Grob/er and Others:
'ESTA and PJE were adopted with the objective of giving effect to the values
enshrined in ss 26 and 27 of the Constitution. The common objective of both
statutes is to regulate the conditions and circumstances under which occupiers of
land may be evicted. The main distinction is that broadly speaking EST A applies
to rural land outside townships and protects the rights of occupation of persons
occupying such land with consent after 4 February 1997, whilst PJE is designed to
regulate eviction of occupiers who lack the requisite consent to occupy. Occupiers
protected under EST A are specifically excluded from the definition of 'unlawful
occupier' in PIE}· An order for the eviction of occupiers may be granted under
ESTA by a competent court on just and equitable grounds, having regard to the
different consideration s applicable in each instance. The Land Claims Court is a
specialist tribunal established bys 22 of the Restitution of Land Rights Act 22 of
1994 and enjoys jurisdiction, subject toss 17, 19, 20 and 22 of ESTA, to deal with
cases determ ined under ESTA. It follows, therefore, that if the land was occupied
with consent, either express or tacit, the jurisdiction of the High Court to deal with
it is excluded in the absence of consent to its jurisdiction. '6
[23] In dealing with the issue of onus when one is alleging that he or she
falls within the definition of an occupier, Gildenhuys J in Skhosana and
Others v Roos tla Roos se Oord and Others found as follows:
'Some components of the definition of "occupier" (particularly the question of whether the
person concerned is a labour tenant, and also the income of the person concerned) falls
within his or her peculiar knowledge. This supports a conclusion that a person who claims
to be an occupier must prove that he or she complies with all components of the definition.
to be an occupier must prove that he or she complies with all components of the definition.
There are presumptions contained in EST A which will assist such a person to establish
6 Randfontein Municipality v Grob/er and Others [2010) 2 All SA 40 (SCA) at para 4.
13
some components of the definition. These presumptions include a presumption that land in
issue in any civil proceedings in tenns of ESTA falls within the scope of ESTA (unless the
contrary is proved) and also a presumption that, for the purposes of civil proceedings in
terms of ESTA, a person who has continuously and openly resided on land for a period of
one year shall be presumed to have consent unless the contrary is proved. There is
furthermore a deeming provision that, for the purposes of civil proceedings in tenns of
EST A, a person who has continuously and openly resided on land for a period of three
years shall be deemed to have done so with the knowledge of the owner or person in charge.
These provision s would not have been necessary if it fell upon the land owner to prove that
a person whose eviction is sought under common law, is not an "occupier" under ESTA. '7
[24] In confirmation of the aforegoing legal position, Dambuza JA held as
follows in Frannero Property Investments 202 (Pty) Ltd v Selapa and Others:
'[24] Consistent with the basic common law principle that 'the party who alleges
must prove', which is applicable in the determination of the incidence of the onus
in civil cases, the burden to prove that ESTA applies in relation to a specific
occupier rests on the occupier who invokes the application of the Act. The occupier
must bring herself within the ambit of the Act by proving that she complies with an
the components of the definition of an occupier in the Act, including that she is not
excluded from the application of the Act under s I (l)(x) #.#.#.
[26] In relation to the land occupied a presumption that operates in favour of the
occupier is contained in s 2(2) of the Act, to the effect that:
"(2) Land in issue in any civil proceedings in terms of the Act shall be presumed to
fall within the scope of this Act until the contrary is proved."
This presumption meant that once the respondents raised the special plea under
This presumption meant that once the respondents raised the special plea under
EST A, the property had to be presumed to fall within the scope of the Act unless
the applicant proved the contrary. In any event there was no dispute about the fact
1 Skhosana and Others v Roost/a Roos se Oord and Others 2000 (4) SA 561 (LCC) at para 26.
14
that when the property was zoned in 2012, the respondents were already tenants
thereon.
[29] The evidence tendered by the respondents in this regard consisted of a single
sentence in Mr Chivura's answering affidavit, that the "[m]ajority of the
Respondents are unemployed and do not earn an income in excess of R5 000 per
month". Such a bare averment was not adequate for the discharge of the onus on
the respondents to prove that their income did not exceed the prescribed maximum
income. The respondents' income was a matter peculiarly within their knowledge.
Casting the burden of proof on them in this regard was not unduly harsh. On the
other hand, placing such a burden on the applicant would cause undue hardship. '8
[25] In Schoeman & Another v Samsung Electronics SA (Pty) Ltd at 1102-
3 it was said that:
'Remuneration is different from "benefits". A benefit is something extra apart from
remuneration. Often it is a term and condition of an employment contract and often
not. Remuneration is always a term and condition of the employment contract.' 9
[26] Davis AJ (with Papier J concurring) held as follows in Luanga v
Perthpark Properties Ltd10 when dealing with duties of legal representatives
who are opposing eviction proceedings:
'But where an eviction application is opposed and the respondent is legally
represented, the legal practitioner representing the respondent is under a positive
duty, as an officer of the court, to ascertain the relevant facts and place them before
the court. As the Constitutional Court recently affirmed in Occupiers, Berea v De
8 Frannero Property Investments 202 (Pty) Ltd v Selapa and Others 2022 (5) SA 361 (SCA).
9 Schoeman & Another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ I 098 (LC) at 1102-3.
10 2019 (3) SA 214 (WCC) at para 47-48.
15
Wet NO and Another 2017 (5) SA 346 (CC) at para 47, the obligation to provide
the information relevant to the justice and equity enquiry envisaged in s 4 of PIE
rests first and foremost on the parties to the proceedings, and attorneys and
advocates, as officers of the court, must furnish the court with all relevant
information in their possession in order for the court to properly interrogate the
justice and equity of ordering an eviction. There is therefore a duty on legal
representatives in eviction proceedings, as officers of the court, not only to advise
their clients of the obligation to make full disclosure of all relevant personal
circumstances, but to actively seek and assist their clients to present the necessary
information. Legal practitioners representing respondents in eviction applications
cannot hide behind the onus to justify bald, unsubstantiated averments regarding
unemployment, impecuniosity and the risk of homelessness. Nor can an officer of
the court deliberately withhold relevant information in order to benefit his or her
client by causing the eviction proceedings to be delayed because the court does not
have sufficient information before it. Even less so can he or she studiously avoid
acquiring relevant information in order to avoid the obligation to disclose it to the
court. Where the affidavits are silent on matters which the respondent should be
able to address with relative ease, a satisfactory explanation should be provided for
the omission. In the absence thereof, a court may well be justified in drawing the
inference that a bald assertion of impecuniosity or homelessness is not genuine and
credible.'
Applicant's submissions
[27] Counsel for the Applicant submitted as follows with regards to the First
Respondent's income:
16
(a) That in tenns of Regulation 2 of ESTA, the First Respondent's
income is detennined by taking the monthly cash wage or salary
earned by the First Respondent, together with the average monthly
amount of the First Respondent's additional gross earnings during the
immediate preceding year.
(b)That the Applicant alleges that the First Respondent's income is in
excess ofR13 625.00, and, as such, she is not an occupier as defined
in that:
1. The First Respondent is running stable business for her own account.
For the 12-month period prior to the institution of this application, she
has on average stabled 33 horses per month. The minimum amount
charged by the First Respondent amounts to R2 500.00 per month per
horse, for a gross income of R87 500.00 before expenses, and a gross
income ofR41 945.31, after expenses.
n. That the First Respondent did not meaningfully challenge this
allegation nor provide any further information as to the operation of the
Horse Stabling Business.
m. That the Applicant has knowledge of the profitability of the Horse
Stabling Business as it receives monthly pro-rata profit payments from
the First Respondent on behalf of the Horse Stabling Business. In this
regard, the Applicant has received profit-sharing payments in respect
of the horses on average in excess of R20 000.00 per month, initia]ly
from Bruyns and after that from the First Respondent. Consequently,
the First Respondent's allegation that she is merely an employee of the
Horse Stabling Business is unsustainable. The First Respondent states
that the Horse Stabling Business is run by the AB Trust "through" her.
Accordingly, the facts pertaining to her employment contract ( contract,
17
payments to SARS, receipts in respect of her alleged monthly salary)
are exclusively within her knowledge (and control). The Applicant
specifically chaJlenged this in its founding affidavit. The First
Respondent, in response to the Applicant's allegation, has made the
bare denial that she earns R13 300.00 per month, which is paid to her
in cash. This bald averment by the First Respondent stands to be
disregarded (see Frannero) (supra) and Skhosana (supra)).
[28] Counsel for the Applicant further submitted that there are two
components to the First Respondent's salary: payment of her alleged salary of
R13 300 and payment of the nominated occupation of property in the amount
ofR8 500, which is a total ofR21 800 (on her own version). In response, the
First Respondent alleges that the monthly rental/damages for holding over in
respect of the property are being paid by the AB Trust, who is her employer.
However, this response does not assist the First Respondent.
( a) The AB Trust is not the Lessee, yet it makes payment of the rental
amount to the Applicant.
(b) The Applicant is not the employer of the AB Trust and the AB Trust
is not the owner of the land.
( c) There is simply no evidence that the payment is conditional upon her
residing on Langverwagt Farm.
( d) The lease agreement made no such provision, and despite the
cancellation of the commercial lease, the AB Trust has continued to
pay the monthly amount on behalf of the First Respondent, despite
there being no contractual requirement to do so.
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( e) Therefore, a cash payment to a third party on behalf of, and at the
instance of the First Respondent (to discharge her debt) is equivalent
to a cash payment to the First Respondent herself.
(f) Again, these facts are exclusively within the knowledge of the First
Respondent. The First Respondent has not provided a factual basis
for the AB Trust paying her accommodation in cash to a third party
(the exact basis of the monthly cash payment to the Applicant of her
rental remains unclear). The First Respondent has failed to discharge
her onus (i.e. to show that the cash payment made to the applicant is.
part and parcel of her remuneration - rather that a cash payment).
[29] Counsel for the Applicant also submitted that this is not a typical ESTA
situation where a farmer offers accommodation to a labourer as part of their
employment on his own farm. The AB Trust cannot do so as it does not have
any right title or interest in the property. The only basis upon which the AB
Trust can make payment of the rental to the Applicant, is through the direction
of the First Respondent. The payment could also be made to another third
party so chosen by the First Respondent. The point is that the First
Respondent does not meaningfully challenge the Applicant' s allegation that
the rental amount forms part of her cash salary calculation for the purposes of
EST A. The First Respondent simply alleges that the AB Trust pays the rental
on her behalf.
[30] He also submitted that the following further demonstrates that the First
Respondent's version is untenable:
19
(a) The First Respondent and Bruyns specifically held out that they
were not ESTA occupiers .
(b)The First Respondent has never in her correspondence before court
claimed to be an ESTA occupier.
But conveniently, upon filing her answering affidavit on 5 April 2025, the
First Respondent disclosed the basis upon which she claimed protection under
ESTA.
[31] Counsel for the Applicant also charged that the First Respondent failed
to discharge the onus placed on her in that she did not substantiate her
allegations at all.
(a) There are no payslips, bank statements, record or any evidence
under oath from her alleged employer.
(b) There is no employment contract.
(c) There is no response to the Applicant's allegations that there are
staff operating on the AB Trust.
(d)As such, the Applicant's version stands to be accepted; the First
Respondent's income is in excess of the prescribed minimum.
[32] Applicant's counsel also submitted that in terms of the Lease
Agreement, more specifically clause 26 thereof, Bruyns made the concession
on behalf of the First Respondent and himself that they were not occupiers in
terms of the provisions of EST A.
20
[33] It is conceded by the Applicant that a party cannot contract out of the
provisions oflegislation however, it is not disputed that the agreement oflease
came into existence in the following circumstances:
(a) It was incidental to the entering into of the commercial lease for
the stabling business; and
(b) the motivation for requesting to enter into the agreement of lease
was for Bruyns and the First Respondent to be closer to the stabling
business.
[34] Consequently, clause 26 of the lease agreement supports the factual
conclusion that Bruyns and the First Respondent were not occupiers as
defined in ESTA and they were both taking occupation of the property for
commercial purposes.
First Respondent's submissions
[35] The following submissions were advanced on behalf of the First
Respondent:
(a) The Church did not terminate First Respondent's right of
occupation and the purported notices of cancellation that the
Church relies on are in respect of the lease agreement with Bruyns
and not applicable to Karen.
(b)Karen is an occupier as contemplated in ESTA and therefore the
Honourable Court has no jurisdiction to entertain this application.
( c) An eviction order is not justified due to Karen's circumstances
being a single women of 59 years old with serious health
21
conditions. Karen's employability is limited to that of her current
position, which job opportunities are scarce. Karen is also not in a
position to afford alternative accommodation.
[36] Karen raises the lack of jurisdiction of this Honourable Court in that
she alleges that she is an occupier in tenns of EST A.
[37] In tenns of the provisions of ESTA, the Land Court and/or Magistrate's
Court is the Court having jurisdiction to entertain eviction applications
applicable to an occupier as defined in ESTA. No other court has concurrent
jurisdiction.
[38] Land for purposes of ESTA is agricultural land in in terms of Section
2(2) in civil proceedings land is presumed to fall within ESTA unless the
contrary is proven.
[39] Karen bears the onus to prove that she is an occupier as defined in
ESTA.
[40] The Church in its founding affidavit alleges that ESTA is not applicable
based on the following grounds:
( a) Her residential occupation is linked to the commercial business of the
Trust because she is the manager of the stabling business. This ground
has no merit as it confinns that Karen herself is not carrying on a
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commercial fanning business as contemplated m ESTA.
Furthermore, the residential property does not form part of the land
on which the stabling business of the Trust is conducted and leased
by the Trust. The residence itself is not used by Karen for any
commercial business. In any event, the Church's lease agreement
with Bruyns prohibits use of the residence for commercial
purposes.
(b) The Lease Agreement between the previous owner and Bruyns only,
contained a recordal in clause 26 that Karen is not an occupier as
contemplated in EST A. This ground also has no merit as Karen is not
a party to the said agreement and not bound to the recordal between
the parties. Furthermore, this recordal does not override the
provisions of ESTA.
( c) That Karen receives remuneration in excess of the mm1mum
prescribed amount being 13 625. It is clear that the only element of
the definition of occupier challenged by the Church relates to the
quantum of Karen's income. This aspect will be dealt with herein
below.
( d) It is common cause that Karen occupied the house in terms of consent
by the previous owner and thereafter by the Church. On both the
Church and Karen's versions, Karen has consent to occupy the
residential property.
( e) It is common cause that the house occupied by Karen is situated on
land which is agricultural land.
23
[41] It is common cause that the AB Trust entered into a lease to conduct a
commercial stabling business under the name and sty le of Langverwagt
Stables.
[42] It is common cause that Karen is employed by the AB Trust as a stable
yard manager.
[ 43] Karen earns a cash wage of RI 3 300 per month and has no other source
of income or any other means of earning a living. The Church avers that
Karen is not an occupier in terms of ESTA as her income exceeds the
minimum amount contemplated in EST A. This is based on the allegation that
the amount paid for rent in respect of Las Vegas should be regarded as part of
the income of Karens rent in respect of Las Vegas as well as the income of
the Trust's commercial Stabling Business.
[44] Karen disputes these avennents and confirms that all the items referred
to by the Church relate to the business of the AB Trust and not the income of
Karen. AB Trusts pays the rent to the Church and not Karen herself. Karen's
version is corroborated by the Church's admission that the aforesaid items and
payments are founded on the provisions of the commercial lease agreement
with the AB Trust.
[45] It is submitted that it is common cause that Karen earns R13 300 per
month and any amount exceeding such amount is disputed. The facts relating
to the income of Karen fall solely within her knowledge and the Church's
allegations constitute inadmissible hearsay evidence. Karen furnished all
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available evidence regarding her income in that she states her occupation, the
exact amount of her income and that it is paid to her in cash. The only Trustee
of the Trust passed away and cannot make any statement to corroborate this.
Karen as manager pays her wage to herself in cash as well as the wages of the
farmworkers. Payment of wages in cash in the farming industry is notorious
and a generally accepted practice.
[46] Regarding the rent paid by the AB Trust to the Church in respect of Las
Vegas clearly constitutes remuneration in kind which does not qualify as
income. This is so as there exists clearly no obligation of whatsoever nature
for the AB Trust to pay the rent of Las Vegas to the Church save for it being
done in kind.
[47] It is submitted that Karen's version in this regard does not constitute a
bare denial or a bald statement as contended to by the Church. This is in fact
the best evidence.
[ 48) It is also submitted that Karen discharged the onus of proving that she
is an occupier as contemplated in EST A and that the Application therefore
be dismissed with costs on the scale of an attorney and client, including costs
of Senior Counsel on scale C.
[ 49] In the event that the Honourable Court does not uphold the issue of
jurisdiction , the matter is riddled with factual disputes. These factual
disputes are not peripheral but go to the heart of whether relief in terms of
PIE could be granted being a final order of eviction. Having regard to the
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principles laid down in Room Hire matter11, it is submitted that these factual
disputes relate to the following issues:
(a)The source of Karen's right to occupy i.e. lease or express consent by
the previous owner ;
(b)Termination of Karens right to occupy Las Vegas; and
(c) Whether the eviction is just and equitable in the circumstances.
Discussion and findings
[50] In order to bring herself into being an occupier in terms of the ESTA
Act, the First Respondent baldly asserts that her occupation is not derived
from any lease agreement between the Applicant, the erstwhile owner, the AB
Trust and/or Bruyns. She further avers that her continued occupation by
consent is furthermore accentuated by the fact that the horses require her
omnipresence on the property to enable her to promptly recognize any signs
and/or symptoms of a medical condition requiring veterinary services or
timeous medication of the horses. She repeats this averment when dealing
with her personal circumstances where she says that if she is evicted, there
will be no one to care for the equines which will expose the owner and/or the
Applicant to the risk of being guilty of one or more offences in terms of the
Animal Protection Act 71 of 1962. It is quite clear from what she says that her
use of the property, is inextricably linked to the stabling business of the AB
Trust which is commercial in nature. Based on this revelation, this Court finds
that the First Respondent is excluded from the definition of an "occupier"
11 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd I 949 (3) (SA) 1155 (T)
26
EST A Act which specifically excludes people who use the land for
commercial purposes.
[ 51] However, this Court finds that First Respondent did not exclude herself
from the protection provided by the EST A Act by agreeing, in the Lease
Agreement, that she is not to be regarded as an occupier for EST A Act
purposes. This is so because no concrete evidence proving that she was party
to the negotiation and the conclusion of the Lease Agreement was presented
to Court. Signing as a witness does not mean that she knew all or any of the
terms of the Lease Agreement, the First Respondent was only a witness to the
signing of the Lease Agreement by the Late Andre Bruyns.
[52] Coming to the question of whether the First Respondent has discharged
the onus placed on her regarding her monthly income: When attempting to
prove to this Court that her monthly income is below the threshold set out in
Regulation 2 of the EST A Act, the First Respondent tersely and baldly averred
that her income is less than RI 3 625 per month, as set out further down in her
Answering Affidavit and is paid to her in cash. She then averred that apart
from her salary from AB Trust, she has no additional financial support or
alternative means of earning a living. She also averred that her monthly
income is Rl3 300 which makes it difficult for her to secure alternative
accommodation or sustain herself should she be evicted. She did not
corroborate these averments with any documentary evidence, like her salary
advice slip, bank statements or tax returns.
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[53] She also baldly averred that she is employed by the AB Trust but she
did not deem it necessary to furnish this Court with the tenns and conditions
of such employment relationship or a copy of her employment contract. She
also affirmed that the monthly rental of her accommodation is paid for by the
AB Trust but she did not deem it necessary to furnish the Court with the
reasons for this arrangement in her Answering Affidavit. The Court was only
told in argument that the payment of R8 500 for rent made by the AB Trust
for her accommodation constitutes remuneration in kind and should therefore
be excluded from the calculation of the income of the First Respondent as per
Regulation 2 of the EST A Act.
[ 54] EST A Act does not define remuneration in kind, nor does it define
remuneration, this therefore means that this court has to look elsewhere for
the definition of remuneration. Section 213 of the Labour Relations Act
defines remuneration as any payment in money or in kind, or both in money
and in kind, made to any person in return for that person working for any other
person. Simply put, a person gets remunerated after he or she has rendered
services to another person or entity. Most importantly, remuneration is always
the tenn and condition of an employment contract, this is clearly stated in the
Schoeman & Another v Samsung Electronics SA, matter which has already
been cited in this judgment. Therefore, being a tenn and condition of a
contract of employment, remuneration, whether in money or in kind, needs to
be expressly dealt with in an employment contract. As already stated in this
judgment, the First Respondent has failed to furnish this Court with the terms
and conditions of her employment or her employment contract, as a
consequence, this court finds that the monthly rental amount of R8 500 is not
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remuneration in kind as alleged by the First Respondent but is part and parcel,
together with her alleged salary of R13 300.00, of her monthly income. It is
therefore found that the First Respondent's gross monthly income is R21 800
and not R13 300 as alleged, the First Respondent is therefore not an occupier
for the purposes of the ESTA Act as her income exceeds the monthly gross
amount ofR13 625 set out in Regulation 2 of the ESTA Act.
[55] Moreover, the First Respondent did not dispute the allegation made by
the Applicant that the AB Trust has a gross monthly income ofR41 945.31
but did not deem it necessary to take the Court into her confidence and explain
why the AB Trust is only paying her Rl3 300 per month despite its gross
monthly income being R41 945 .31 and/or why the AB Trust could not pay her
more than the R13 300. If the AB Trust had other obligations, these should
have been laid bare in her Answering Affidavit as she is the only person,
according to the pleadings currently in possession of the Court, who is running
the business and the affairs of the AB Trust.
[56] The above finding having been made, it is therefore this Court's finding
that the First Respondent is not an occupier as defined in the EST A Act as she
has been excluded because she is using the property for commercial purposes
and she is earning in excess of the threshold set out in Regulation 2 of the
ESTA Act. This Court therefore has jurisdiction to hear and make a
determination on this eviction application made in terms of the PIE Act.
[57] However, before making a determination on whether it will be just and
equitable to grant an eviction order against the First Respondent, this Court
29
needs to be satisfied that the First Respondent is indeed in unlawful
occupation of the property. To answer this question, the Court needs to
establish whether First Respondent's right to occupy the property was indeed
terminated as alleged. This becomes crucial because in her Answering
Affidavit, the First Respondent averred at paragraphs 41 and 44 thereof that
the termination notices herein were never addressed to her pe~onally. These
avennents are corroborated by annexure "LG 7" which was addressed to the
Late Andre Bruyns and annexure "LG 9" which was addressed to the Andre
Bruyns Family Trust.
[58] The Applicant failed to effectively deal with these avennents in its
Replying Affidavit by furnishing this Court with copies of notices specifically
addressed to the First Respondent which it knew was also an occupant of the
property as clearly stated at paragraph 7.2 of the English translation of the
Lease Agreement.
[59] Instead of dealing with First Respondent's avennents, the Applicant
chose to aver and argue in the alternative that the Lease Agreement was
terminated by the passing away of the Late Andre Bruyns who passed on 18
August 2024. Even if this is accepted but, it does not cure the defect that there
is no basis for alleging that the First Respondent is in unlawful occupation of
the property as no notice notifying her that the Lease Agreement which gave
her a right to occupy the property terminated on the death of the Late Andre
Bruyns on 18 August 2024, and she is therefore required to vacate property
within a reasonable period of time was ever addressed to her personally after
the death of the Late Andre Bruyns. This Court therefore finds that the First
30
Respondent is not an unlawful occupant as defined in section l(xi) of the PIE
Act and can therefore not be evicted in terms of section 4(1) read together
with section 4(2) of the PIE Act. This finding having been made, this Court
deems it superfluous to deal with the question of whether it will be just and
equitable to grant an eviction order against the First Respondent or not.
[60] In the circumstances, this Court grants an Order as follows:
(a) Applicant's application for the eviction of the First and Second
Respondents is dismissed.
(b)Applicant is to pay First Respondent's costs on a party & party scale
including costs of Senior Counsel on Scale C.
ACTING JUDGE OF THE IDGH URT
APPEARANCES:
For the Applicant:
Cape Bar
Instructed by: Leon Frank and Pat1ners
For the First Respondent:
Instructed by:
Mr. S Guldenfennig SC
Cape Bar
Van Wyk Van Heerden Attorneys Inc.
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