SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 15510/2024
In the matter between:
BOLD MOVES 147 (PTY) LTD First Applicant
TEBOGO CHRISTOPHER RAYMOND MAOTO N.O. Second Applicant
PHAHLANI MKHOMBO N.O. Third Applicant
SOUTHERN PALACE GROUP OF
COMPANIES (PTY) LTD (IN BUSINESS RESCUE) Fourth Applicant
and
MS LERATO REFILWE MATITOANE First Respondent
MMATJANYANA GLADYS MAHLANGU Second Respondent
ANY OTHER UNLAWFUL
OCCUPIER OF ERF 1[...] KNYSNA,
REGISTRATION DIVISION J.R, MEASURING 1153
SQUARE METRES AND IS SITUATED AT
J[...] F[...] DRIVE, THESEN ISLAND, KNYSNA Third Respondent
THE GARDEN ROUTE
DISTRICT MUNICIPALITY Fourth Respondent
Neutral citation:
Coram: MPHEGO AJ
Heard: 25 August 2025
Delivered: 23 February 2026
Summary: This is an application initiated by the first to fourth applicants (collectively
“the applicants”), for the eviction of the first to third respondents (“the respondents”)
from their continued occupation of the property belonging to the first applicant. The said
property is described as Erf 1[...] Knysna, situated at J[...] F[...] Drive, Thesen Island,
Knysna (“the property”).
_____________________________________________________________________
ORDER
______________________________________________________________________
1. This application is stayed pending the determination of disputes in the Pending
Application (Gauteng Division, Johannesburg under case number 6406/2023).
2. The applicants are to pay the party-and-party costs of this application up to the date
of this judgment.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
Mphego AJ:
[1] This is an application in terms of the Prevention of Illegal Eviction from Unlawful
Occupation of Land Act, 19 of 1998 ("the PIE Act").
[2] The first, second, third and fourth applicants (“the applicants”) seek an order in the
following terms:
a) That the first, second and third respondents (“the respondents”) and all persons
occupying the property identified as Erf 1[...] Knysna, Registration Division J.R,
situated at J[...] F[...] Drive, Thesen Island, Knysna ("the property"), be evicted
from the property on or before a date to be determined by this court.
b) That in the event that the respondents and all persons unlawfully occupying th e
property do not vacate the property on the date determined by this court, the
sheriff of th e c ourt with jurisdiction at the a bove property be authorised and
directed to remove and eject the respondents and any other unlawful occupiers
from the property and to take all necessary steps to give effect to the order in
paragraph a) above.
c) That the first and second respondents be ordered to pay costs of this application
on attorney and own client scale.
d) Further and/or alternative relief.
[3] It is common cause that the registered owner of the property, Erf 1[...] Knysna,
situated at J[...] F[...] Drive, Thesen Island, Knysna (“the property”) is the first
applicant. The identity of the shareholding of the first applicant is in dispute.
[4] The fourth applicant is in business rescue and the second and third applicants are
the business rescue practitioners (“BRPs”) of the fourth applicant.
[5] Historically, the property was used as a family holiday home by the first and
second respondents (and their family) while their permanent primary residence
was (and is still) in Gauteng.
SUBMISSIONS ADVANCED BY THE APPLICANTS
[6] Counsel for the applicants , Adv Moloi, pointed out that there is pending litigation
relating to the parties in this matter with disputes relating to directorships and
shareholding but that those disputes are not to be determined in this eviction
application. He highlighted that the application is an out ‑and‑out eviction
application, and not a dispute about ownership or directorship and that this court
need only determine whether the requirements to grant an eviction order are met.
[7] Adv Moloi reinforced locus standi by pointing out that the first applicant is the
registered owner of the property and that the fourth applicant is the sole
shareholder of the first applicant, and further that, the second and third applicants
are the business rescue practitioners of the fourth applicant.
[8] The applicant’s case is that (1) there is no valid lease (tacit or express) in place in
respect of the property (2) the respondents pay no rental or contribution and
acknowledge use of the property as a holiday home (3) the responde nts have no
lawful right to occupy the property. The applicants pointed out that the respondents
have alternative accommodation in Gauteng and regard the property as a holiday
home and that the respondents do not fall within any vulnerable categories under
the PIE Act.
[9] According to the applicants, (1) the r espondents have no lease, no consent, and
no other right in law to occupy the property therefore they are “unlawful occupiers”
under the PIE Act (2) the respondents have alternative accommodation in
Gauteng, so eviction would not render them homeless, which supports the just -
and-equitable enquiry under section 4(7) of the PIE Act . On that basis, the
applicants submitted that, with no valid defence rais ed, section 4(8) of the PIE Act
requires the court to grant an eviction order and fix a just -and-equitable date to
vacate.
[10] The applicants further submitted that:
a) The first applicant is the lawful registered owner of the property and this
application was launched in terms of section 4(7)1 of the PIE Act.
b) The BRPs of the fourth applicant acting through the fourth applicant as sole
shareholder of the first applicant , caused the appointment of the second
and third applica nts (BRPs of the fourth applicant) as directors of the first
applicant and procured the removal of the first respondent in terms of the
Companies Act 71 of 2008 (“the Companies Act”) . The applicants’ case is
that the fourth applicant (in business rescue) is the sole shareholder of the
first applicant, since as reflected in the share certificate and share register.
In relation to the BRPs of the fourth applicant, the applicants submitted that
the BRPs of the fourth applicant (100% shareholder of the first applican t)
exercised their authority to ensure proper corporate governance in the first
applicant, relying on section 140(1)(a) of the Companies Act and the
1 “If an unlawful occupier has occupied the land in question for more than six months at the time when the
proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is ju st and
equitable to do so, after considering all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has been made available or can
reasonably be made available by a municipality or other organ of state or another land owner for the
relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled
persons and households headed by women.”
principle in Land And Agricultural Development Bank of South Afr ica v
Lazercore Eight Pty Ltd And Others SA 2024 (6) SA 267 (WCC)2.
c) The respondents are in unlawful occupation of the property and no lease
agreement has been concluded. The respondents occupy the property
without the express and/or tacit consent (of the first applicants or its
directors) and they have no other right in law to occupy the property and are
not entitled to remain in occupation of the property.
d) It is just and equitable for an order granting the eviction of the first to third
respondents.
e) The property does not constitute the primary residence as the first and
second respondents have admitted in the answering affidavit that they do
not ordinarily reside at the property . The primary residence of the first and
second respondents is in Gauteng.
f) The first respondent unlawfully appointed herself as a director of the first
applicant following the alleged resignation of the previous director Mr Lucas
Tseki on 17 May 2021.
g) There is no verifiable record of Mr Tseki’s resignation . The fourth applicant,
through its business rescue practitioners exercised shareholder powers to
lawfully appoint new directors of the first applicant to rectify governance
irregularities. The Companies and Intellectual Property Commission
("CIPC") has recognised the current directorship.
h) The applicants discovered that t he first and second respondents attempted
to unlawfully transfer ownership of the property to the second respondent,
however the transaction was successfully interdicted by an order of the
Pretoria High Court under case number 34687/2022 on 12 July 2022.
i) The fourth applicant is under business rescue, an d its successful
restructuring relies on the realisation of its assets which includes the sale of
the property. The continued unlawful occupation of the property by the first
to third respondents obstructs the validly adopted business rescue plan and
to third respondents obstructs the validly adopted business rescue plan and
prejudicing creditors. The first to third respondents were provided sufficient
2 See para 23.
time to vacate the property but have refused and/or neglected and failed to
do so, which made it necessary for the applicants to bring this application.
[11] In relation to just and equitable considerations, the applicants submitted that:
a) The first to third respondents cannot be said to be lawful occupiers by any
stretch when considering the definition of “unlawful occupier ’ in the PIE Act
and that it has been demonstrated that the first to third respondents do not
have the requisite express or tacit consent of the owner or the person in
charge to occupy the property.
b) The first to third respondents have not demonstrated that they ought to be
allowed continued occupation of the property due to any other right in law nor
do they fall within the exclusions provided for by the PIE Act.
c) The applicants highlighted that (1) the respondents are not vulnerable
persons (2) they have alternative residence (3) they are financially stable
individuals who afford alternative housing and are not at risk of homelessness
(4) the first applicant is owned by the fourth applicant which is under business
rescue and the realisation of its assets i ncluding the property is crucial to its
financial recovery and the interests of its creditors, in line with its adopted
business rescue plan ( 5) the respondents continued occupation of the
property is an attempt to unjustifiably retain control over an ass et they have
no legal right to , and (6) the respondents’ allegation that they spend at least
six months a year living in the property is not a valid reason to not grant the
relief sought given the provisions of section 4(7)3 of the PIE Act.
[12] In relation to the Constitution of the Republic of South Africa , 1996 (“the
Constitution”), the applicants submitted that:
a) Section 25(5) of the Constitution provides that the state must take reasonable
measures to ensure equitable access to land, however, that does not mean
measures to ensure equitable access to land, however, that does not mean
that private property owners, including companies in business rescue, must
3 “If an unlawful occupier has occupied the land in question for more than six months at the time when the
proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and
equitable to do so, after considering all the relevant circumstances ... “
indefinitely provide free housing to persons who have alternative
accommodation and financial means.
b) Limiting the respondents’ continued occupation in te rms of section 36 of the
Constitution is necessary and justifiable to uphold the rights of the lawful
property owner and protect the business rescue process. The applicants
further relied on Dwele v Phalatse [2017] ZAGPJHC 146 4 to support the
granting of an eviction order.
[13] The applicants contended that they have demonstrated that the respondents are
unlawful occupiers as contemplated in the PIE Act. They argued that the
respondents have no legal or contractual right to remain in occupation of the
property and that the respondents’ continued unlawful occupation obstructs the
business rescue process with prejudice to creditors. According to the applicants , it
would be just and equitable for an eviction order to be granted.
[14] The applicants furnished inter alia the following documenta tion in support of the
application:
a) A r esolution passed by the board of the directors of the first applicant
authorising the initiation of legal proceedings.
b) A property valuation document confirming the first applicant’s ownership of
the property.
c) A CIPC document confirming directorship in respect of the first applicant.
d) A notice of appointment as business rescue practitioners.
e) A share certificate reflecting the fourth applicant as the sole shareholder of
the first applicant.
f) A company search document dated 16 May 2022 reflecting company
information in respect of the first applicant.
g) A court order dated 2 August 2022 placing the fourth applicant under
business rescue.
4 See paras 19 to 20.
h) A court order dat ed 12 July 2022 interdicting the attempted transfer of the
property.
[15] The applicants furnished further documents in their replying affidavit, namely:
a) A share register of the first applicant.
b) A written resolution of the sole shareholder of the first applicant.
c) Two notices of acceptance of election as a director, in respect of the first
applicant.
d) A notice from CIPC recognising directorship changes in respect of the first
applicant.
e) A c omplaint lodged with CIPC dated 27 October 2022 regarding a
directorship appointment.
f) A notice to attend a shareholders meeting.
g) A notice of shareholders meeting for the removal of a director.
h) A resolution of the sole shareholder of the first applicant.
i) A l etter to the board of directors of the first applicant dated 21 October
2022.
[16] In relation to the issue of costs, the applicants seek a punitive costs order on the
attorney-and-client scale, as prayed for in their notice of motion and founding
papers. They submitted that this is justified because the matter ought not to have
come before court, the respondents’ answering affidavit is replete with factual
inconsistencies disproved in reply, and the respondents attempted to manufacture
disputes of fact , a conduct which the applicants submitted, warranted a punitive-
costs order.
SUBMISSIONS ADVANCED BY THE RESPONDENTS
[17] The respondents opposed this eviction application on grounds that:
a) There is a bona fide dispute regarding the ownership and shareholding of the
first applicant.
b) There is a bona fide dispute regarding the directorship of the first applicant.
c) The first applicant has not authorised the institution of this application and the
business rescue practitioners (the second and third applicants) have no locus
standi to bring this application.
d) The respondents are not in unlawful occupation of the property.
[18] The respondents highlighted that the applicants do not deal with disputes raised
prior to the institution of this application, and that the disputes are raised in:
a) an application in the Gauteng Division, Johannesburg under case number
6406/2023 (“the Pending Application”); and
b) the respondents' answering affidavit in an eviction application in the Western
Cape Division under case number 2773/2023 ( “the First Eviction
Application”).
[19] The respondent s highlighted that the applicants do not deal with the disputes
raised in the aforementioned proceedings, in their founding affidavit but instead, the
applicants attempt to make out a case in reply by making allegations an d adducing
evidence that purportedl y disproves the respondents' grounds of opposition. The
respondents submit that this is not permitted in reply and in circumstances where
the grounds of opposition were known to the applicants at all material times.
[20] The respondents furnished inter alia the following documents in their answering
affidavit:
a) The notice of motion and founding affidavit in respect of the First Eviction
Application.
b) The Pending Application papers.
c) A statement of account for rates and levies in respect of the property.
d) A WinDeed company report reflecting that the first applicant was a close
corporation incorporated in 2010.
e) Extracts from the Answering Affidavit in the First Eviction Application.
The Plascon-Evans approach
[21] The respondents framed an opposition in line with the Plascon-Evans approach
stating that this court must accept their factual version together with any parts of the
applicants’ case that cannot be seriously disputed, and that this application stands to
be dismissed when approached in line with the Plascon-Evans rule.
[22] The respondents submitted that the below are common caus e facts or
alternatively, facts that must be accepted by this court on the basis of the
Plascon-Evans approach:
a) The first applicant is the registered owner of the property, purchased in 2007
from Citycat Trading 65 (Pty) Ltd.
b) In 2010 or 2012, Mr Sello Mahlangu acquired the membership interest in the
first applicant from its then holder at that time.
c) The first applicant was a close corporation with registration number
2010/102373/23.
d) The first applicant was thereafter converted by Mr Sello Mahlangu into a
private company with registration number 2012/079112/07.
e) Mr Sello Mahlangu (prior to his passing i n 2021), the first respondent, the
second respondent and their families occupied and used the property as a
holiday home over the years.
f) The first respondent was appointed as a director of the first applicant in June
2021.
g) On 21 April 2022, the fourth app licant was improperly placed into business
rescue.
h) On 2 August 2022, a court order set the resolution placing the fourth applicant
into business rescue aside and new business rescue proceedings
commenced in respect of the fourth applicant with the second and third
applicants appointed as BRPs for the fourth applicant.
i) On 21 December 2022, the second and third applicant acting under the fourth
applicant, as shareholders of the first applicant , appointed themselves as
directors of the first applicant (the legality is disputed).
j) On 2 January 2023 there was a purported sale of the property.
k) On 27 January 2023 the “Pending Application” was issued in the
Johannesburg High Court seeking, among other things, to interdict the
second and third applicants from exercising shareholder or director powers in
the first applicant and to set aside the director changes at CIPC.
l) On 16 February 2023, the Applicants issued the First Eviction Application
notwithstanding that the Pending Application had been issued at this stage,
the First Eviction Application failed to deal with any of the material and salient
facts of the matter and represented to the court that it was a vanilla eviction
application.
m) On 25 November 2024 long after this application was issued the applicants
withdrew the First Eviction Application with a tender of costs.
[23] The respondents submitted that it is in the context of the above factual
framework that th is eviction application, and the grounds of opposition must be
viewed.
[24] The respondents emphasised that the disputes of fact on shareholding,
directorship, authority, and lawfulness of occupation cannot be resolved on the
affidavit and must be accepted for purposes of final relief . They submitted that
applying the Plascon‑Evans approach (as reiterated in National Director of Public
Prosecutions v Zuma [2009] 2 All SA 243 (SCA) and Wightman tla JW Construction
v Headfour (Pty) Ltd and another (66/2007) [2008] ZASCA 6), an applicant seeking
final relief on motion must accept the respondent’s version unless it is far ‑fetched or
untenable. According to the respondents, on the accepted version, the first applicant
did not properly authorise these eviction proceedings because the purported
did not properly authorise these eviction proceedings because the purported
directors lacked lawful appointment, so the applicant is not properly before court and
cannot establish entitlement to the relief . Furthermore, on the respondents’ version,
they occupy the property with the authority of the only lawful director and therefore
cannot be unlawful occupiers. They sub mitted that, given these disputes and the
Plascon‑Evans approach, the application should not be decided on affidavit and
should be dismissed rather than referred to oral evidence, which the applicants have
not sought.
Authority, shareholding, directorship and unlawful occupation
[25] Turning to the disputes, the respondents highlighted that what is in disputes is
the ownership of the shares in the first applicant , as well as the directorship in
respect of the first applicant.
[26] In relation to the ownership of shares in the first applicant, t he respondents
submitted that:
a) The fourth applicant (under business rescue) is not the 100% shareholder of
the first applicant and that the estate of the late Mr Sello Mahlangu (who was
a director and owner of the fourth applicant) is the 100% shareholder of
shares in the first applicant.
b) The applicants attached a share certificate to the founding affidavit and a
share register to the replying affidavit , however, the documents are
inconsistent and legally untenable, in that, the share certificate is dated 15
December 2010, when the first ap plicant was still a close corporation and not
a company (it was only converted on 3 May 2012) . The share certificate
further records a juristic person (the fourth applicant) as ‘holder’ during the
close corporation era, which would contravene section 39 of the Close
Corporations Act 69 of 1984 (only natural persons may be members of a
close corporation ). The respondents conten d that because the applicants
insist that the share certificat e is legitimate therefore the applicants concede
that the fourth applicant cannot be a shareholder of the first applicant ,
because the fourth applicant could not have been a member of the first
applicant when the interest was transferred in 2010.
c) In respec t of the alleged share register, the respondents argued that the
‘share register’ was impermissibly produced for the first time in reply, with no
explanation of its origin, who compiled it, when it was compiled, or where it
was kept. The respondents argued that this fatally undermines the reliability
and admissibility of the share register. In addition, the respondents raised that
the share register indicates that the membership interest in the first applicant
was transferred from Reinhardt Trust to the fourth applicant at a time when
the first applicant was a close corporation and could not have taken transfer
of the membership interest in 2010 by virtue of section 39 of the Close
Corporations Act which provides that only natural persons may be members
of a close corporation. The respondents invited this court to place no reliance
on the share register.
d) The fourth applicant cannot be the shareholder, and, on any version, this
court cannot conclude that fourth applicant holds the shares and if the fourth
applicant is not the shareholder, everything that followed , namely the
appointment of the second and third applicants as directors of the first
applicant, the removal of the first respondent as director of the first applicant
and the launching of this appl ication - are all f atally defective . The
respondents argued that the second to fourth applicants had no right to bring
these proceedings through the first applicant because the first applicant did
not authori se the institution of these proceedings, and for this reason this
application stands to be dismissed with costs.
e) In relation to the shareholding of the first applicant, even if the fourth applicant
e) In relation to the shareholding of the first applicant, even if the fourth applicant
is a shareholder of the first applicant (which the responden t argue is
impossible), the appointment of the second and third app licants, and the
removal of the first respondent, as a director was unlawful on the common
cause facts.
f) The second and third applicants (BRPs of the fourth applicant) unilaterally
appointed themselves as directors of the first applicant through their position
as BRPs of the fourth applicant, and convene d a shareholders’ meeting in
terms of section 71 5 of the Companies Act, to remove the first respondent as
a director of the first appli cant without a board (then only the first respondent)
convening a shareholders’ meeting, and without approaching court under
section 61(12) 6 of the Companies Act when a board did not convene a
meeting.
g) Section 61(1) 7 of the Companies Act provides that the board (or a person
specified in the MOI or rules) may call a shareholders’ meeting 8. If the board
fails to convene, the shareholder’s remedy is to apply to court under section
61(12) of the Companies Act for an order compelling the meeting9.
h) In Heatherview Estates Ext 24 Home Owners Association (NPC) v Mahlatse
Trading Enterprise CC (22616/2019) [2019] ZAGPPHC 180 (20 May 2019)
the court approved academic authority, that ‘If a company fails to convene a
meeting for any reason other than those contemplated in Section 61(11) ...
the Act gives a shareholder the power to apply to the court for an order
requiring the company to convene a meeting ’. The respondents added that
this division endorsed the Heatherview decision in Trustees for the Time
Being of the Kromrivier Trust v Trustees for the Time Being of the Hartwig
Family Trust and others (16154/2023) [2025] ZAWCHC 19 (29 January 2025)
at para 39.
5 “Despite anything to the contrary in a company’s Memorandum of Incorporation or rules, or any
agreement between a company and a director, or between any shareholders and a director, a director
may be removed by an ordinary resolution adopted at a shareholders meeting by the persons entitled to
exercise voting rights in an election of that director, subject to subsection (2) …”
6 “(12) If a company fails to convene a meeting for any reason other than as contemplated in subsection
(11) -
(a) at a time required in accordance with its Memorandum of Incorporation;
(b) when required by shareholders in terms of subsection (3); or
(c) within the time required by subsection (7), a shareholder may apply to a court for an order requiring the
company to convene a meeting on a date, and subject to any terms, that the court considers appropriate
in the circumstances.”
7 “The board of a company, or any other person specified in the company’s Memorandum of Incorporation
or rules, may call a shareholders meeting at any time.”
8 PA Delport Henochsberg on the Companies Act 2008 Vol 1 at 231 and 232: ‘General meetings are
ordinarily convened by the directors, and a majority shareholder cannot usurp this power’.
9 Ibid at 233.
i) The applicants admitted that the board (the first respondent) did not convene
a meeting, and equally did not seek a court order under section 61(12) of the
Companies Act. They simply held their own meetings and passed their own
resolutions.
j) The applicants attempt to re ‑characterise what they did as a “written
shareholder resolution” under section 68(1) 10 of the Companies Act but
section 68 regulates the election (not bare appointment) of directors by those
entitled to vote, in ac cordance with section 66(4) of the Companies Act and
the MOI, and presupposes a properly convened process 11. It is common
cause that no such election took place.
[27] The respondents submitted that (1) the purported ‘appointments’ and ‘removal’
are improper, irregular and unlawful , (2) the second and third applicants are not
legitimate directors, and (3) the first respondent remains the only lawful director. In
relation to authority to launch these proceedings the respondents submitted that
without a lawful board authorisation, the first applicant has not authorised these
proceedings and therefore this application should be dismissed with costs.
[28] In relation to costs, the respondents argued for a punitive costs order in that the
application be dismissed with costs on the attorney ‑and‑client scale, and that the
second and third applicants (the business rescue practitioners) be ordered to pay
costs de bonis propriis . The respondents contend this is warranted because the
applicants had knowledge of profound disputes on shareholding and directorship
before launching the application , yet failed to ad dress them in the founding papers,
attempted impermissibly to cure defects in reply, the practitioners unlawfully installed
themselves as directors and removed the first respondent, placed themselves in a
10 “Subject to subsection (3), each director of a profit company, other than the first director or a director
contemplated in section 66 (4) (a) (i) or (ii), must be elected by the persons entitled to exercise voting
rights in such an election, to serve for an indefinite term, or for a term as set out in the Memorandum of
Incorporation.”
11 The respondents referred to Henochsberg which underscores that directors are elected, not appointed,
and that even elected directors can be removed only via the Companies Act’s mechanisms and no such
valid election occurred.
conflict, contravening section 138(1)(e) of the Companies Act, and sought to mislead
the court by omitting salient facts. On that basis, the respondents submitted that the
application should be dismissed with punitive costs and de bonis propriis against the
practitioners.
[29] In relation to the court’s discretion on what is just and equitable, the respondents
submitted that it would not be just and equitable to grant an eviction order as sought
by the applicants because there are unresolved, live disputes about who lawfully
controls and represents the first applicant , which are pending in the Pending
Application, and this court should not grant relief while those issues remain
undetermined.
[30] The respondents emphasised that an eviction order at this stage would cause
irreparable prejudice because if they are evicted and the property is sold to
implement the business rescue plan, and the court in the Pending A pplication later
upholds their case on shareholding and directorship, ‘the horse would have bolted ’,
leaving them to chase a remedy against an entity in business rescue —an outcome
they said is neither fair nor just and equitable.
[31] The respondents submitted that these factors weigh against the granting of an
eviction order on just and equitable grounds.
[32] The respondents further argued that the applicants sought to present the matter
as a ‘vanilla’ eviction while failing to disclose the entrenched disputes in the founding
papers, which is conduct that, the respondents submitted, undermines the equitable
exercise of the court’s discretion and supports the refusal of an eviction order or at
least postponing relief pending outcome from the Pending Application.
EVALUATION
[33] A court seized with an eviction application under the PIE A ct must satisfy itself
that the statutory requirements have been met, that ownership and unlawful
occupation have been established, and that no valid defence has been raised. 12
[34] It is well established that the court must first determine ownership and unlawful
occupation before a further enquiry is triggered, namely an enquiry into whether it
would be just and equitable to grant an eviction order.13
[35] Ownership of the property is not in dispute as the first applicant is the registered
owner of the property . As stated above, the disputes concern the identity of the
lawful shareholder(s) and/or director(s) of the first applicant.
[36] Notwithstanding the CIPC documents filed in support of this eviction application,
those issues are squarely before another court in the Pending Application, which
must determine , (1) the lawful shareholder(s) of the first applicant; (2) the lawful
director(s) of the first applicant and (3) the authority of the BRPs to act on behalf of
the first applicant.
[37] The court in the Pending Application will also have to determine whether the
removal of the first respondent as director was lawful . At this stage , this court does
not have the benefit of a determination of those disputes.
[38] Adv Moloi (for the applicants) maintained that the matter before th is court is
fundamentally an eviction application and that th is court should decide on the
eviction application without determining corporate disputes that are not squarely
before it. This court is not persuaded that i t is appropriate to determine th is eviction
application as though the pending disputes do not exist.
12 Madulammoho Housing Association NPC v Nephawe and another 2023 JDR 0049 (GJ).
13 Madulammoho Housing Association NPC v Nephawe and another 2023 JDR 0049 (GJ).
[39] This court is inclined to agree with the argument of Adv Hoffman (for the
respondents) that it would be inappropriate to grant an eviction order while the
disputes in the Pending Application remain unresolved.
[40] If this court grants an eviction order at this stage an untenable situation would
arise if the court in the Pending Application was to subsequently find that the
impugned appointments, shareholding claims, or the removal of the first respondent
were unlawful.
[41] Accordingly, this court’s ‘hands are tied’ until the disputes relating to who lawfully
represents the owner of the property and who has authority to bring this applicatio n
are resolved by the court in the Pending Application.
[42] The disputes in the Pending Application also bear directly on the enquiry into
unlawful occupation because that court will clarify who is legally authorised to act on
behalf of the first applicant (to grant or withhold consent to the respondents’
occupation).
[43] This court is not able to complete the first step of the enquiry into who is validly
authorised to act on behalf of the owner and whether the property is being occupied
unlawfully. T he second leg of the enquiry (the just and equitable enquiry ) is not
triggered. On the basis of the record before this court , it would not be appropriate to
weigh up the arguments advanced in relation to what is ‘just and equitable’ without a
determination of the disputes in the Pending Application. What is clear for now is
that an eviction order would not be appropriate.
[44] On the Plascon-Evans approach raised by the respondents, the respondents
invited this court to apply the Plascon‑Evans rule so that their factual version is
accepted (together with any applicant’s facts that cannot be seriously disputed), and
on that basis to dismiss this eviction application. This court is not persuaded that this
eviction application should be outright dismissed.
[45] On the issue of costs, which remains in the unfettered discretion of this court,
having regard to the circumstances of the matter , the applicants elected to institute
this eviction application notwithstanding the existence of material disputes. It is
therefore appropriate that the applicants bear the party-and-party costs of this
application up to the date of this judgment.
ORDER
[46] This application is stayed pending t he determination of disputes in the Pending
Application (Gauteng Division, Johannesburg under case number 6406/2023).
[47] The applicants are to pay the party-and-party costs of this application up to the
date of this judgment.
_____________________________
TR MPHEGO
ACTING JUDGE OF THE HIGH COURT
Appearances
For excipients: Adv T Moloi
Instructed by: Diale Mogashoa Attorneys
For respondent: Adv J.M Hoffman
Instructed by: Norman Wink & Stephens