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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: A127/2025
In the matter between:
GARDEN ROUTE DISTRICT MUNICIPALITY Appellant
And
GONA-HESSE! KHWE ROYAL KINGDOM – NPC First Appellant
CORNELIUS BOTHA Second Appellant
JAN SWARTS Third Appellant
THE FURTHER OCCUPANTS OF ERF […],
DYSSELSDORP AS LISTED BY THE SHERIFF
ON 21 FEBRUARY 2024 Fourth Respondent
THE OUDTSHOORN MUNICIPALITY Fifth Respondent
Coram: GOLIATH DJP, CLOETE J et THULARE J
Heard: 23 January 2026
Delivered: 25 February 2026
ORDER
1. The appeal succeeds.
2. The order of the court a quo striking the appellant’s application from the
roll is set aside and is substituted with the following order:
‘2.1 The application is postponed to the first available date on the opposed
roll in the Eastern Circuit Local Divisio n, Thembalethu, for hearing
before a different Judge;
2.2 The first to fourth respondents shall deliver a further affidavit setting
out all relevant circumstances as envisaged in section 4(7) of the
Prevention of Illegal Eviction From and Unlawful Occupation o f
Land Act 19 of 1998, not less than 10 (TEN) court days before the
hearing referred to in paragraph 2.1 above, failing which the Presiding
Judge may accept that they wish the matter to be determined on the
papers already before the court;
2.3 The fifth respon dent shall deliver the required report in respect of
available alternative accommodation for the first to fou rth
respondents, to assist the Presiding Judge in the event that the
applicant succeeds in the application, by not later than 10 (TEN) court
days before the hearing referred to in paragraph 2.1 above, and to this
end, the first to fourth respondents shall co -operate with the fifth
respondent in providing all relevant information to it, failing which
the Presiding Judge may accept that, in the event of an eviction order
being granted, the first to fourth respondents do not require the
assistance of the fifth respondent in obtaining alternative
accommodation, whether on a temporary basis or otherwise; and
2.4 Costs shall stand over for later determination.’
3. Each party shall pay their own costs in the appeal.
JUDGMENT
Cloete J (Goliath DJP and Thulare J concurring):
Introduction
[1] This is an appeal with leave of the Supreme Court of Appeal against the
judgment and order of the court a quo (Erasmus J) , who found that the
application launched by the appellant (Municipality) for the eviction of the first
to fourth respondents (respondents) fell to be dealt with in terms of the
Extension of Security of Tenure Act (ESTA) 1, and not in terms of the
Prevention of Illegal Eviction From and Unlawful Occupation of Land Act
(PIE)2. Having made this finding, the court a quo struck the Municipality’s
application from the roll for lack of jurisdiction. That court subsequently
refused the Municipality’s application for leave to appeal on the basis that its
order was not appealable. The Supreme Court of Appeal took a different view.
[2] The narrow issue in this appeal is thus whether ESTA or PIE applies to
the eviction application, which has not been withdrawn. If PIE is found to apply
(as the Municipality contends) then the Municipality wil l be at liberty to re -
enrol, and proceed with, its application. Accordingly, and save where strictly
necessary, I do not deal with the factual disputes between the parties. Should we
find in favour of the Municipality, the court dealing with the eviction
application will determine those disputes.
1 Extension of Security of Tenure Act 62 of 1997.
2 Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998.
Relevant background
[3] On 25 January 2024, the Municipality launched the application in terms
of s 4 of PIE in the Eastern Circuit Local Division, Thembalethu, for the
eviction of the respondents from erven […] and 9 […], Dysselsdorp , Western
Cape. At the time, specific individuals were not identified by the Municipality
as falling under the ‘fourth respondent’. Subsequently, the Municipality limited
the relief sought to erf […] (the propert y) and, in respect of the fourth
respondent, to those individuals listed by the Sheriff on 21 February 2024, since
it had never intended to seek the eviction of other individuals. The fifth
respondent (Oudtshoorn Municipality) has not participated in the litigation.
[4] The Municipality’s locus standi is based on its regist ered ownership of
the property in the deeds office registry. It maintains that the respondents are
unlawful occupiers as envisaged in PIE . The second respondent, Mr Botha,
describes himself as the Chief of the first respondent ( Kingdom), and is
adamant that, in this capacity , he is entitled under customary law t o represent,
not only himself, but also the Kingdom and the third and fourth respondents (the
third and fourth respondents are said to be members of the Kingdom) , both
before the court a quo and in the appeal.
[5] When the appeal was argued, certain members of the Kingdom were
present in court and appeared to be in agreement with Mr Botha on this score.
While we are mindful of clear authority under South African law that a
layperson may not represent a litigant, or another litigant 3, in court proceedings,
it became clear at the outset of the appeal that Mr Botha (and members of the
Kingdom present) would not countenance any suggestion that South African
law could take precedence over what they maintain is the position under
customary law.
33 Commissioner for the South African Revenue Service v Candice-Jean van der Merwe (211/2021)[2022]
ZASCA 106; 85 SATC 10 (30 June 2022) paras 45-46.
[6] In addition , and previously on 20 April 2024, Mr Botha delivered an
affidavit in the eviction application in which he dealt with the request by
counsel for the Municipality that the respondents obtain legal representation, as
follows :
‘ …we as the people have the right to determine for ourselves whether we need [a legal
representative] or not and … we are no more under the Admiral law of the sea but the law of
the land, and that is Customary law or International Customary law.’
[7] It was in these particular circumstances that we took the view, for sake of
disposing of the appeal, that Mr Botha could also address us on behalf of the
Kingdom and its members. Any delay which would be caused as a consequence
of engaging further with Mr Botha o n the issue would simply not have been in
the interests of justice, gi ven that this litigation commenced two years ago. In
this regard, the following.
[8] It is apparent from the record that the application first came before
Gamble J on 8 March 2024, when th e learned judge indicated that he required
the municipality to address whether the property constituted ‘land’ for purposes
of ESTA. He directed the parties to file supplementary affidavits on this issue.
The Municipality filed its affidavit on 5 April 2024. The respondents failed to
do so.
[9] On 22 March 2024, Gamble J made a further order . He postponed the
application to 26 April 2024 ‘for purposes of its further conduct’. He granted
the Municipality leave to file a further affidavit explaining wh ether the property
has been designated for agricultural purposes in terms of any law in accordance
with s 2(1)(a) of ESTA. The order also provided for the respondents to deliver
their answering affidavit by 19 April 2024 , and that they were to deal with ‘all
of the entire application and not only the issue of jurisdiction’.
[10] It is not apparent from the papers whether the Municipality filed yet
another affidavit. It had however already addressed Gamble J’s conce rn in the
affidavit filed by it on 5 April 2024. The respondents failed to file their
affidavit, again, by the court ordered deadline of 19 April 2024.
[11] On 26 April 2024, the matter came before Erasmus J , who made an order
in the following terms :
‘1. The respondents shall file any further affidavits in answer to the applicant’s papers by no
later than 3 May 2024.
2. The applicant is granted leave to file any further papers required in this matter on the
respondents at the [following] email addresses …
3. The application is postponed for further virtual case management before Erasmus, J to
Wednesday, 22 May 2024 at a time to be allocated by the court …’
[12] On 3 May 2024, the respondents delivered their answering affidavit. They
did not deal at all with the merits of the application, as previously ordered, but
attempted to deal only with the issue of jurisdiction , as well as disputing the
Municipality’s locus standi . The Municipality delivered its replying affidavit
on 13 May 2024. It would seem that the respondents were thereafter given a
further opportunity to deal with the merits , since they eventually delivered
another answering affidavit on or about 5 September 2024 . From the record it
would seem that the Municipality did not deliver a further replying affidavit.
Judgment of the court a quo and grounds of appeal
[13] On 12 September 2024, Erasmus J handed down an ex tempore judgment.
He referred to a specific point taken by the respondents that the property falls
within ESTA since ‘it is being used for agricultural purposes’. The learned
judge also dealt briefly with the affidavit evidence of the Municipality on this
point as follows :
‘The bottom line is that [ the Municipality was] looking for a “formal” zoning certificate for
this erf, and it turned out it was zoned “undetermined zone” They then argue that it was not
zoned agricultural zone 1 or agricultural zone 2.’
[14] Having found that s 2 of ESTA was determinative of the issue ( I deal
with this below), the learned judge found further as follows :
‘I have come to the conclusion that [the property] in fact falls within the Extension of
Security of Tenure Act for the following reasons :
• The agreement [of lease] refers to the property as a farm. The normal definition and
understanding of what a farm is , is that it includes the use for agricultural purposes .
What are clear indications of w hat the understanding of the applicants were [the
applicant was] at the time of entering into the lease agreement is that the lease
agreement itself referred to quotas for crops to be produced within a particular season .
It is also not unimportant that the extent of the property is some 748 hectares.
• The agreement itself further makes provision for access to what akin to [what the]
Agricultural Act says . And in clause 14 thereof it deals with crops and animals on the
property and that there could be compens ation for crops. Crops can be alienated. If this
is not a clear indication of the use of the land which the occupiers were lawfully given
access to at some stage, then over and above the presumption in section 2(2) of ESTA,
this should be determinative of the matter.’
[15] In summary, the Municipality’s grounds of appeal are as follows:
[15.1] The court a quo erred in relying on the presumption contained in s 2(2) of
ESTA since: (a) the application was not brought in terms of ESTA, and s 2(2)
specifically refers to civil proceedings brought in terms of ESTA; and (b) it was
in any event not necessary for the court a quo to have regard to this
presumption, since evidence was placed before it by the Municipality to show
presumption, since evidence was placed before it by the Municipality to show
that the property falls within the ambit of s 2(1)(a) of ESTA, and as such ESTA
does not apply; and
[15.2] The approach adopted by the court a quo was in direct conflict with the
Full Court d ecision in this Division of Droomer4, which in turn referred to the
decision of the Supreme Court of Appeal in Agrico Masjinerie.5
4 Droomer NO and Another v Snyders and Others (A336/2019) [2020] ZAWCHC 72 (4 August 2020)
Discussion
[16] Dysselsdorp is a small town approximately 13 kilometres from the town
of De Rust, situated just off the N12 national road between Oudtshoorn and De
Rust, Western Cape. The property is one of two neighbouring erven (the other
being remainder erf 9[…]), generally referred to in the area as Bloupunt . On 19
April 2022, the Municipality concluded a written lease with the Kingdom, duly
represented by Mr Botha.
[17] The purpose of the lease was set out in clause 3.1, namely, to enable the
Kingdom to establish ‘ a Gqonaque Eland Game Reserve with an Eland Steak
House; self -game drive , viewing the abundant wildlife and flora, as well as
horse rides; walking; single track mountain bike trails; fishing; paintball; picnic
sites and specific 4x4 tracks , and may not be us ed for any other purpose
whatsoever.’ In terms of clause 11.16, the Kingdom was prohibited from
allowing any other persons to reside on the property without the Municipality’s
prior written permission. The property itse lf was described in clause 1.1.3 as
‘the Farm’.
[18] It is also common cause that the Kingdom at no stage conducted the
business stipulated in the lease; that at least some of the respondents have never
obtained written permission from the Municipality to re side on the property ;
and that the Kingdom failed to comply with its rental obligations under the
lease. The reasons are in dispute. What is not in dispute is that at a meeting held
on 5 December 2022, at which Mr Botha was present, the Kingdom w as
informed that in the event of it not making good on its arrears ‘the lease will
terminate immediately’. No such payment was forthcoming.
5 Agrico Masjinerie (Edms) Bpk v Swiers [2007] ZASCA 84 (1 June 2007).
[19] Section 2 of ESTA provides in relevant part as follows :
‘2. Application and implementation of Act
(1) Subject to the provisions of section 4, this Act shall apply to all land other than land
in a township established, approved, proclaimed or otherwise recognised as such in
terms of any law, or encircled by such a township or townships, but including –
(a) any land within such a township which has been designated for agricultural
purposes in terms of any law; and
(b) any land within such a township which has been established, approved,
proclaimed or otherwise recognised after 4 February 1997, in respect only of a
person who was an occupier immediately prior to such establishment, approval,
proclamation or recognition.
(2) Land in issue in any civil proceedings in terms of this Act shall be presumed to fall
within the scope of the Act unless the contrary is proved.’
[20] In the Municipality’s founding affidavit, which was deposed to by its
Manager, Mr Stratu, it was stated that at the time of conclusion of the lease, the
relevant municipal official, a Mr Dongi, had informed him that the property was
zoned Agricultural Zone 1 , with its primary use being that of agriculture. This
is no doubt why Gamble J raised the issue with the Municipality when the
matter first came before him on 8 March 2024.
[21] In its supplementary founding affidavit , which was deposed to by Ms
Sims, the Municipality’s Manager: Human Settlements, it was explained that
Mr Dongi had conveyed the incorrect information to Mr Stratu, and that the
property is in fact zoned as ‘Undetermined Zone’. This was confirmed under
oath by Mr Cairncross , the Town and Regional Planner of the Oudtshoorn
Municipality. The property’s zoning certificate, also produced by the
Municipality, describes ‘Undetermined Zone’ as follows:
‘The objective of this zone is to enable the Municipality to defer a decision regarding a
specific land use and development management provisions until the circumstances affecting
the land unit have been properly investigated, or until the owner of the land makes an
application for rezoning; or a zoning determination is made by the Municipality. The
objective of this zone is furthermore to create a zone to which land could revert back to when
rights under current zonings, other than Single Residential Zone 1, were not exercised,
especially in cases where changes in the planning conte xt occurred since the current zoning
was granted.’
[22] In Droomer, the Full Court held as follows :
‘[18] … It does not matter that by virtue of its character … [the land] is not practically
suitable for agricultural use [i.e on the facts before the Full Court ]. Nor is it relevant that it
has never been used for agricultural pu rposes. The determinant criterion is its designation for
agricultural purposes in terms of a law . The submission by the appellant’s counsel that the
land had to be in actual use for agricultural purposes was misconceived. The word
“designate” in the relevant sense means to “officially give a specified status ”; zoning is a
commonly encountered means of giving land an officially specified purpose for land use
objectives …’
[23] On the undisputed evidence before the court a quo the property was not
designated for agricultural purposes . Moreover, given what was held in
Droomer, it was irrelevant whether the property had been described in the lease
as a farm; whether any farming had in fact taken place on the property ; and
whether certain clauses in the lease indicated that the parties envisaged the
production of crops for compensation, and made reference to animals, as well as
access to water . Its size was similarly irrelevant. In this regard, the court a quo
unfortunately misconceived the legal position . ESTA simply d oes not apply.
The further error made by the co urt a quo was its finding that the Municipality
failed to prove that the property did not fall within the parameters of ESTA, as
failed to prove that the property did not fall within the parameters of ESTA, as
provided in s 2(2) thereof , given the Municipality’s unchallenged evidence to
this effect. Consequently, the question whether the respondents are ‘occupiers’
for purposes of ESTA, which was also dealt with in Droomer, does not arise for
determination before us.
[24] It follows that the appeal must succeed. It bears mention that counsel for
the Municipality also sought to pe rsuade us to find that the respondents are
unlawful occupiers for purposes of PIE. We decline to do so because this issue
is not before us on appeal. We are cognisant of the Supreme Court of Appeal
decision in Agrico Masjinerie , where it was made clear that the issue of
jurisdiction cannot be considered as a separate, preliminary point in matters
such as th e present. However, although the court a quo did not follow the
correct approach on this score, it was not a ground of appeal advanced by the
Municipality in its notice of appeal , and it is thus fair to infer that it did not
feature in the petition of the Municipality to the Supreme Court of Appeal
either.
[25] The Municipality asks for costs against the respondents. In our view , a
costs order is not warranted. The issue of jurisdiction was raised mero motu by
Gamble J after the Municipality placed incorrect information before him in
relation to the zoning of the property . It was only as a result that the correct
information was provided, and this cannot be laid at the door of the respondents.
Moreover, the findings of the court a quo, and its failur e to follow the correct
approach to determine the matter, should also not redound to the prejudice of
the respondents, which would be the case if they are mulcted with costs as a
result.
[26] The following order is made;
1. The appeal succeeds.
2. The order of the court a quo striking the appellant’s application from
the roll is set aside and is substituted with the following order:
‘2.1 The application is postponed to the first available date on the
opposed roll in the Eastern Circuit Local Divisio n, Thembalethu,
for hearing before a different Judge;
2.2 The first to fourth respondents shall deliver a further affidavit
setting out all relevant circumstances as envisaged in section 4(7)
of the Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act 19 of 1998, not less than 10 (TEN) court
days before the hearing ref erred to in paragraph 2. 1 above,
failing which the Presiding Judge may accept that they wish the
matter to be determined on the papers already before the court;
2.3 The fifth respondent shall deliver the required report in respect
of available alternative accommodation for the first to fourth
respondents, to assist the Presiding Judge in the event that the
applicant succeeds in the application, by not later than 10 (TEN)
court days before the hearing referred to in paragraph 2.1 above,
and to this end, the first to fourth respondents shall co -operate
with the fifth respondent in providing all relevant information to
it, failing which the Presiding Judge may accept that, in the event
of an eviction order being granted, the first to fourth respondents
do not require the assi stance of the fifth respondent in obtaining
alternative accommodation, whether on a temporary basis or
otherwise; and
2.4 Costs shall stand over for later determination.’
3. Each party shall pay their own costs in the appeal.
_____________________________
J I CLOETE
Judge of the High Court
I AGREE
_____________________________
P L GOLIATH
Deputy Judge President of the High Court
I AGREE
_____________________________
D THULARE
Judge of the High Court
Appearances
For appellant: A F Schmidt
Instructed by: Millers Inc - George
For 1st to 4th respondents: Mr Botha, second respondent