THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 376/2024
In the matter between:
RAYCALDO ROWLAND FIRST APPELLANT
WILLIE ADONIS SECOND APPELLANT
WAYNE BARRON THIRD APPELLANT
ALL THOSE HOLDING TITLE THROUGH FIRST TO THIRD
RESPONDENTS OR OCCUPYING PORTION 79 OF
THE FARM MORNINGSTAR NO. 141, CITY OF CAPE
TOWN, WESTERN CAPE FOURTH APPELLANT
THE CITY OF CAPE TOWN FIFTH APPELLANT
THE HEAD: WESTERN CAPE PROVINCIAL
DEPARTMENT OF AGRICULTURE, LAND REFORM
AND RURAL DEVELOPMENT SIXTH APPELLANT
and
LOGOS CARRIERS CC RESPONDENT
Neutral citation: Rowland and Others v Logos Carriers CC (376/2024) [2026]
ZASCA 36 (24 March 2026)
Coram: MATOJANE, SMITH and KOEN JJA and STEYN and BASSON AJJA
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Heard: 10 March 2026
Delivered: 24 March 2026
Summary: Extension of Security of Tenure Act 62 of 1997 — eviction of occupiers
— application for leave to appeal dismissed — application to amplify grounds of
appeal to include defence of lack of jurisdiction of the Land Court dismissed — alleged
lack of jurisdiction not raised squarely on the pleadings — income peculiarly within
knowledge of deponent — bare assertion lacking particularity insufficient — counter-
claim for court -ordered mediation under s 21 dismissed — occupiers invited to
mediate and declined — court exercised discretion judiciously — appeal against
refusal of application to strike out evidence dismissed — fourth appellant bound by
legal representation — obligation to place relevant facts before court.
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ORDER
On appeal from: Land Court of South Africa, Cape Town (Flatela J sitting as a court
of first instance):
1. The appeal against the refusal to strike out evidence is dismissed with costs.
2. The appeal against the refusal of the counter-claim for court-supervised mediation
is dismissed with costs.
3. The application to amplify the grounds of appeal to include grounds relating to
jurisdiction and the citation of the fourth appellant is dismissed with costs.
4. The application for leave to appeal is dismissed with costs.
5. The first, second and fourth appellants are directed to pay the respondent’s costs
relating to the above applications jointly and severally, the one or more paying the
other to be absolved.
JUDGMENT
Matojane JA (Smith and Koen JJA and Steyn and Basson AJJA concurring):
Introduction
[1] This is an appeal, and an application for leave to appeal, against an order of
the Land Court (formerly the Land Claims Court), per Flatela J, granted on 16 August
2023, which ordered the eviction of the first to fourth appellants from Portion 79 of the
Farm Morning star No. 141, situated in the City of Cape Town, Western Cape (the
property). The order is in favour of the respondent, Logos Carriers CC (Logos) and
was granted in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA).
[2] The Land Court granted partial leave to appeal to this Court on 15 March 2024,
limited to two interlocutory aspects of the proceedings: its refusal to grant a counter -
application, seeking a referral to mediation , and its refusal to strike out certain
evidence adduced by Logos. On 9 April 2024, the appellants applied to this Court for
leave to appeal against the entirety of the judgment and order. On 13 June 2024, this
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Court made an order referring the application for leave to appeal for oral argument in
terms of s 17(2) (d) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) .
The parties were required to be prepared to argue the merits if called upon.
[3] Furthermore, before this Court is a belated application by the appellants to
amplify their grounds of appeal to include: (a) the contention that the Land Court lacked
jurisdiction to grant an eviction order against the first appellant, Mr Rowland, on the
basis that his monthly income exceeds the prescribed maximum for an ESTA occupier;
and (b) the contention that the citation of the fourth appellant as an unnamed group of
occupiers was procedurally incompetent. The application was served on the
respondent only on 13 March 2025, five days before the due date for Logos to file
heads of argument, and was not accompanied by an affidavit explaining the delay.
[4] The fifth and sixth appellants , the City of Cape Town and the Head of the
Western Cape Provincial Department of Agriculture, Land Reform and Rural
Development, were joined as required by s 9 of ESTA and filed affidavits in the Land
Court. They did not participate in the appeal before this Court.
[5] The grounds upon which each application and the appeal fall to be dismissed
are set out in the analysis below.
Factual background
[6] Logos is a small business of which Mr Sidney Volkwyn (Mr Volkwyn) is the sole
member. Mr Volkwyn began his working life as a diesel mechanic and, through years
of hard work, built up a transport business. In November 2019, Logos purchased the
property at a public auction for R2 000 000. The purchase was funded entirely by a
mortgage bond that attracted a monthly repayment of R15 970,36. By the date of the
hearing in the Land Court , Logos had paid approximately R862 380 in mortgage
instalments yet remained wholly unable to use the property. It was consequently
compelled to lease alternative premises for its business.
compelled to lease alternative premises for its business.
[7] The property is a modest smallholding of 1,26 hectares. Logos required it for
two purposes: as a truck depot for its transport operations and as a family home for
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Mr Volkwyn and his family. Adjacent to the property , and registered in the name of a
close corporation of which the first appellant, Mr Raycaldo Rowland (Mr Rowland), is
the sole member, is Portion 78 of the same farm. Mr Rowland stated in his affidavit
that he owns the neighbouring property and resides there.
[8] When Mr Volkwyn visited the property in 2019, accompanied by a
representative of ABSA, whose mortgage had led to the property being auctioned, he
found only two people there. The ABSA representative, Mr van den Berg, confirmed
this account. Transfer of the property to Logos was effected on 2 May 2020. When
Logos sought access to its property thereafter, it was refused entry.
[9] The previous owners of the property confirmed in affidavits that they had
resided on the property for seven years until 2015 ; that during their period of
occupation, they were the only persons resident on the property; and that Mr Rowland
resided on the adjacent Portion 78. No person had advanced any claim of cultural or
other rights in respect of the property during their occupation.
[10] The appellants asserted in their answering affidavit that they occupied the
property with the consent of the p revious owner, whom they did not name. The first
appellant stated that 23 people comprising four households were living on the property,
the Rowland, Adonis, Samuels and Stout families – including six school-going children,
three university students, a person with a disability and a 71 -year-old pensioner. No
member of the Stout family deposed to an affidavit.
[11] Logos allowed the appellants to make representations under s 8(1)(e) of ESTA
before terminating their consent to occupy. The response from the first and second
appellant’s attorney stipulated that his clients would vacate the property if Logos paid
R1 000 000 in compensation. Logos served notice of termination of consent in April
and May 2021, requiring the appellants to vacate by 31 May 2021. The notice was
and May 2021, requiring the appellants to vacate by 31 May 2021. The notice was
served by the Sheriff on persons found on the property and was delivered to the
attorneys then representing the first and second appellants.
[12] Logos made multiple offers to engage the appellants in mediation before
instituting proceedings. Mr Volkwyn stated that he was willing to attend any mediation
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process at a time and place of the appellants’ choosing, with a neutral mediator of the
appellants’ choosing. These invitations went unanswered. Over a period of more than
two years between the termination of consent and the hearing, the appellants took no
steps under s 21 of ESTA or otherwise to initiate any mediation or negotiation process.
[13] Logos launched its application to evict the occupiers in the Land Court under
ESTA on 16 August 2021. The City of Cape Town filed an affidavit confirming that
qualifying evictees would be accommodated under its emergency housing
programme. A probation officer’s report was filed by the sixth appellant as
contemplated in s 9(3) of ESTA, on 29 April 2022.
[14] The probation officer’s report confirmed that the second and fourth appellants
and their families do not have independent access to suitable alternative
accommodation other than their current dwellings on the property. The report further
confirmed that the se occupiers engage in subsistence farming, including keeping
livestock and poultry and cultivating vegetables. The report concluded with a
recommendation that an eviction order should not be granted. Significantly, the report
noted that only the second an d fourth appellants and their dependants lacked
alternative accommodation, a finding consistent with Mr Rowland’s confirmation that
he resides on the adjacent property.
[15] The appellants launched a counter -claim on 26 June 2022 , seeking a referral
to court -supervised mediation under s 21 of ESTA, together with an application to
strike out certain evidence adduced by Logos . This pertains principally to the
correspondence from the first and second appellants’ attorney demanding R1 000 000
in exchange for vacating the property, and to passages in the probation officer’s report
based on that correspondence.
[16] On 16 August 2023, the Land Court granted an order for the eviction of the first
to fourth appellants . It directed the City of Cape Town to make emergency
to fourth appellants . It directed the City of Cape Town to make emergency
accommodation available to those who would otherwise be rendered homeless. The
court furnished written reasons on 30 November 2023. It did not grant the counter -
claim or the application to strike out. On 21 September 2023, an amended eviction
order was issued.
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[17] On 15 March 2024, the Land Court granted partial leave to appeal to this Court,
limited to the refusal of the counter -claim for mediation and the application to strike
out. It is common cause that by the time the matter was heard below, Mr Barron, the
third appellant, had vacated the property, and the order against him was without
practical effect. As Mr Barron does not pursue any relief in the appeal, the costs orders
by this Court will accordingly not apply to him.
Issues for Determination
[18] The following issues arise for determination:
(a) Whether the appeal against the refusal of the counter -claim for mediation
should succeed;
(b) Whether the appeal against the refusal of the application to strike out should
succeed;
(c) Whether the application to amplify the grounds of appeal to include the
jurisdictional point should be granted, and, if so, whether the jurisdictional
ground has merit; and
(d) Whether leave to appeal should be granted against the eviction order.
The Legal Framework
[19] ESTA was enacted to give effect to s 26(3) 1 of the Constitution and to confer
security of tenure on persons occupying farmland who, by reason of past racially
discriminatory legislation, did not enjoy such security. As the Constitutional Court
observed in Molusi and Others v Voges NO and Others,2 ESTA seeks to promote the
achievement of long-term security of tenure and to regulate the circumstances under
which vulnerable occupiers may be evicted fairly, while also recognising the legitimate
rights of landowners.
1 26. (1) Everyone has the right to have access to adequate housing.
(2) …
(3) No one may be evicted from their home, or have their home demolished, without an order of court
made after made after considering all the relevant circumstances. No legislation may permit arbitrary
evictions.
2 Molusi and Others v Voges N O and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) ; 2016 (7) BCLR
839 (CC) para 1.
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[20] An ‘occupier’ is defined in s 1 of ESTA as a person residing on land belonging
to another who, on 4 February 1997 or thereafter, had consent or another right in law
to do so. The definition expressly excludes ‘a person who has an income in excess of
the pr escribed amount’. Government Notice 72 of 2018, which took effect on 16
February 2018, prescribes a maximum monthly income of R13 625 for this purpose.
[21] Section 21 of ESTA provides that ‘a party may request the Director-General to
appoint one or more persons with expertise in dispute resolution to facilitate meetings
of interested parties and to attempt to mediate and settle any dispute in terms of this
Act’. On its plain terms, this provision creates a mechanism for voluntary mediation
initiated by a party’s request to the Director -General. It does not empower a court to
compel the parties to participate in mediation. The Land Court has held that the
peremptory mediation provisions introduced by amendment were not in force for
proceedings instituted before 1 April 2024.3
[22] Section 8 of ESTA regulates the termination of the rights of residence. It
requires that any termination be just and equitable, having regard to the factors
enumerated in ss 8(1) (a) to (e), including the comparative hardship occasioned by
termination and whether the occupier was given an effective opportunity to make
representations before the decision to terminate was taken.
[23] Section 11 of ESTA governs the eviction of occupiers who are neither ‘long -
term occupiers’ as defined in s 10 nor ‘protected occupiers’ as defined in s 8(4).
Section 11(3) requires a court, in determining whether an eviction order would be just
and equitable, to have regard to: (a) the period of residence; (b) the fairness of any
agreement between the parties; (c) whether suitable alternative accommodation is
available; (d) the reason for the proposed eviction; and (e) the balance of interests
between the owner and the occupiers.
between the owner and the occupiers.
[24] The Constitutional Court has consistently emphasised that ESTA must be
interpreted purposively to give full effect to the rights entrenched in the Bill of Rights.
3 Marais NO and Another v Daniels and Others (LCC 130/2023; LCC 63/2023; LCC 98/2023; LCC
27/2023; LCC 145/2022; LCC 163/2023; LCC 162/2023; LCC 105/2024) [2025] ZALCC 38 (30
September 2025).
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In Daniels v Scribante and Another,4 the majority held that the right to human dignity
is an indispensable pivot to the right to security of tenure. The Court affirmed in Baron
and Others v Claytile (Pty) Ltd and Another,5 that the rights of ESTA occupiers are ‘as
worthy of protection as those of land owners’. These principles do not, however,
override the court’s obligation to assess whether the parties before it qualify as ESTA
occupiers and whether the applicable procedural requirements have been met.
[25] The test for leave to appeal is governed by s 17(1) of the Superior Courts Act.
Leave may be granted only where the judges concerned conclude that the appeal
would have a reasonable prospect of success, or that there is some other compelling
reason why it should be heard. In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd,6
this Court confirmed that if unpersuaded of prospects of success, a court must
nonetheless enquire whether a compelling reason in the interest of justice to entertain
the appeal has been established.
Analysis
Counter-claim for mediation
[26] The counter-claim sought a referral to court -supervised mediation under s 21
of ESTA. Section 21 creates a voluntary mechanism for mediation at the instance of
a party before the Director-General; it does not confer any power on a court to compel
participation in mediation.
[27] The proceedings were instituted well before 1 April 2024, so that the
peremptory mediation provisions , which were, by subsequent amendment, stated to
apply to proceedings instituted on or after 1 April 2024, are not engaged. There was
therefore no statutory basis upon which the Land Court could have directed mediation
against either party’s will.
[28] Even on the footing that the Land Court possessed a residual just and equitable
discretion to refer the dispute to mediation, the exercise of that discretion was
4 Daniels v Scribante and Another [2017] ZACC 13; 2017 (4) SA 341 (CC) ; 2017 (8) BCLR 949 (CC)
paras 33-35.
paras 33-35.
5 Baron and Others v Claytile (Pty) Ltd and Another [2017] ZACC 24; 2017 (10) BCLR 1225 (CC); 2017
(5) SA 329 (CC) para 10.
6 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020] ZASCA 17; 2020 (5) SA 35 (SCA) para 2.
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unimpeachable. Logos made multiple good -faith invitations to mediate at a time and
place of the appellants' choosing, with a mediator of the appellants’ choosing. All
invitations went unanswered. The appellants themselves took no steps under s 21 of
ESTA for more than two years. In the context of the principle affirmed in Port Elizabeth
Municipality v Various Occupiers ,7 that an attempt at mediation is ordinarily a
precondition for a just and equitable eviction, it is Logos’s conduct, not the appellants’,
that is consistent with that principle. Counsel for the appellants could not proffer any
basis upon which the discretion exercised by the Land Court could be impugned. The
appeal against the refusal of the counter-claim is accordingly dismissed.
The Application to strike out
[29] The application to strike out targeted principally the correspondence from the
first and second appellant’s attorney demanding R1 000 000 as the price for vacating
the property, and passages in the probation officer’s report drawing on that
correspondence. The material sought to be struck out was largely either common
cause or had been admitted in substance in the opposing papers. It bore directly on
the context in which mediation was offered and refused, and on the assessment of the
appellants’ conduct. The application was accordingly misconceived.
[30] The Land Court stated in its reasons that it considered the contested evidence
in its entirety and had reached its conclusions on the eviction based on all the evidence
before it. The outcome would not have been different had the challenged evidence
been excluded. The application to strike out accordingly fails.
[31] As to costs, the application to strike out was directed at evidence that the
appellants found inconvenient, not at evidence that was inadmissible or irrelevant
The appeal against the refusal of the application to strike out is accordingly dismissed
with costs against those appellants who prosecuted it.
with costs against those appellants who prosecuted it.
[32] As regards the fourth appellant, cited as the class of occupiers of the property,
questions of notice and citation become immaterial once a party is legally represented
7 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12)
BCLR 1268 (CC) para 41.
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before the court. A legally represented party is properly before the court, and it is that
party’s obligation, not the respondent’s, to place before the court all facts within its
knowledge that are material to the exercise of any discretion. One cannot participate
in proceedings through legal representatives, decline to place relevant facts in
evidence, and then, on appeal, seek to impugn a discretion on the ground that those
facts were not considered. The appeal against the refusal of the strike-out application
in respect of the fourth appellant is likewise dismissed.
The Application to amplify the grounds of appeal: the jurisdictional point
[33] The application to amplify, filed on 13 March 2025, was brought shortly before
the respondent’s heads of argument were due , and no explanation was provided for
the four -year delay in raising the point. The jurisdictional challenge rests on the
proposition that Mr Rowland’s monthly income exceeds R13 625.00, the prescribed
maximum for an ESTA occupier under Government Notice 72 of 2018. The answering
affidavit makes only a vague, unsupported assertion that certain occupiers earn above
the prescribed limit; i t provides no objective proof , such as payslips, tax returns, or
similar documentation, and fails to raise, as a point in limine, that the first appellant
falls outside the definition of an “occupier” and that the court therefore lacked
jurisdiction.
[34] A party relying on the income threshold must state the income, provide
objective proof, and clearly plead that the person concerned does not qualify as an
ESTA occupier and that the court lacks jurisdiction. None of these requirements was
met. The issue was accordingly not properly pleaded or placed in controversy, and the
replying affidavit proceeded on the premise that no jurisdictional challenge had been
raised.
[35] The replying affidavit reflects this. Rather than engaging the income point, the
[35] The replying affidavit reflects this. Rather than engaging the income point, the
respondent noted that the occupiers had not stated their income, had not disputed
their status as ESTA occupiers, and had themselves invoked the Act’s protection. A
litigant who asserts the benefit of ESTA cannot, years later and for the first time on
appeal, seek to defeat the court's jurisdiction under that very Act based on facts that
were never presented to the court below and would have required factual investigation.
12
[36] The relevant date for assessing whether an occupier’s income exceeds the
prescribed threshold is when lawful occupation ceases, that is, when the permission
or right to occupy is withdrawn or ceases 8. It was accordingly incumbent on Mr
Rowland, being self-employed, to place evidence of his income at that date before the
court. He failed to do so.
[37] The question of whether an appellate court may entertain a point raised for the
first time on appeal is settled: as held in Paddock Motors (Pty) Ltd v Igesund,9 such a
point may be considered if specific conditions are met —namely, the issue must be
covered by the pleadings, its determination must not cause unfairness to the opposing
party, the relevant facts must be common cause or clearly established on the reco rd,
and there must be no reason to think that additional evidence would have been led
had the point been raised earlier.
[38] The present case does not fall within these exceptions. While the question of
jurisdiction is a legal issue, it is not one devoid of factual implications. Had the
jurisdictional challenge been raised timeously, Logos would have had the opportunity
to clarify the first appellant's true income, sources of income, and residential
circumstances. The bare assertion in the answering affidavit that the first appellant
earns R15 000,00 is unsubstantiated.
[39] The first appellant’s conduct precludes him from raising this point. Throughout
the proceedings below, he squarely placed himself within the ambit of ESTA
protection. His entire case was premised on the assertion that he and the other
appellants were occupiers entitled to the security of tenure guaranteed by ESTA. He
invoked the protective provisions of the Act, demanded compliance with its procedural
requirements, and sought the benefit of its substantive protections.
[40] Only after the Land Court rejected his defences and granted the eviction order
does the first appellant now seek to disavow ESTA’s protection and argue that he was
does the first appellant now seek to disavow ESTA’s protection and argue that he was
8 Lebowa Platinum Mines Limited v Viljoen [2008] ZASCA 163; 2009 (3) SA 511 (SCA) ; [2009] 2 All SA 231
(SCA); (2009) 30 ILJ 1742 (SCA)
9 Paddock Motors (Pty) Ltd v Igesund [1976] 3 All SA 332 (A)
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never an occupier within the meaning of the Act. This opportunistic volte -face cannot
be countenanced. As this Court observed in Telcordia Technologies Inc v Telkom SA
Ltd10, a party cannot be permitted to approbate and reprobate — that is, to take
inconsistent positions as suits its convenience at different stages of litigation.
[41] Even if the first appellant’s income did place him outside ESTA’s definition of
‘occupier’, this would not necessarily deprive the Land Court of jurisdiction to evict him.
Section 22(2)(c)11 of the Restitution of Land Rights Act 22 of 1994 (the Restitution
Act), which established the Land Court and defined its jurisdiction, conferred on the
court the power to decide any issue not ordinarily within its jurisdiction but incidental
to an issue that is within its jurisdiction, if it considers it to be in the interests of justice
to do so. In Venter NO v Claasen12, the Land Court invoked this provision to grant an
eviction order against persons found not to be ESTA occupiers . The court reasoned
that issuing an eviction order was incidental to determining the respondents’ status as
occupiers under ESTA. It held that requiring the applicant to seek eviction from another
court would result in unnecessary delays and costs. Therefore, the eviction order was
deemed to be in the interest of justice and within the court’s jurisdiction under section
22(2)(c)
[42] The eviction application in the current matter concerned multiple members of
several households. If the first appellant alone fell outside ESTA’s protection by reason
of his income, while other household members remained within it, it would be contrary
to the interests of justice to require bifurcated proceedings in different courts to evict
members of the same household from the same property. The ancillary jurisdiction
conferred by s 22(2)(c) of the Restitution Act would therefore have been available.
[43] The application to amplify the grounds of appeal to include the jurisdictional
[43] The application to amplify the grounds of appeal to include the jurisdictional
point is accordingly refused.
The citation of the fourth appellant
10 Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; [2006] 139 SCA (RSA); 2007 (3)
SA 266 (SCA); [2007] 2 All SA 243 (SCA); 2007 (5) BCLR 503 (SCA) para 12.
11 although s 22(2)(c) has since been replaced by substantially similar language in s 24(1)(c) of the Land
Court Act 6 of 2023, it was in force at the relevant time.
12 Venter NO v Claasen en Andere 2001 (1) SA 720 (LCC).
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[44] The contention that the fourth appellant was improperly cited as 'all those
holding title through the first to third appellants or occupying Portion 79 of the Farm
Morningstar No. 141, City of Cape Town, Western Cape' is without merit . The
respondent took reasonable steps to identify all occupiers by repeatedly requesting a
list of residents, but the appellants and their attorneys ignored these requests . The
first appellant concealed their identity while acting as their representative. Notices
were served personally on the first and second appellants, on persons found on the
property, and on the appellants’ attorneys. The citation in this case was not of the
world at large, but of a clearly defined and identifiable group: persons occupyin g
Logos's property. The boundaries of the group were certain and ascertainable. Any
person occupying the property would know that they fell within the definition; any
person not occupying it would know they did not.
[45] As noted in Mtshali and Others v Masawi and Others ,13 citing occupiers as an
unnamed group is standard practice in eviction matters, particularly where they are
defined by reference to a specific property. Had the citation issue been raised in the
Land Court , appropriate directions could have been sought regarding the mode of
service or alternative methods of bringing the proceedings to the attention of all
occupiers. The issue was never raised in the Land Court, and the appellants have not
established that any actual occupiers were denied notice or an opportunity to
participate. The citation was therefore appropriate, and the ground of appeal fails.
The application for leave to appeal against the eviction order
[46] The application for leave to appeal against the eviction order itself must be
assessed on the grounds as pleaded in the notice of motion, that is, without the
proposed amplification, which has been refused.
[47] The grounds of appeal for which the land court granted leave, the refusal of the
[47] The grounds of appeal for which the land court granted leave, the refusal of the
counterclaim for mediation, and the refusal of the application to strike out do not
disclose any prospect of success. They accordingly fall to be dismissed.
13 Mtshali and Others v Masawi and Others [2016] ZAGPJHC 291; 2017 (4) SA 632 (GJ). Para 190
15
[48] The broader grounds advanced in the notice of application, directed at the just
and equitable nature of the eviction order, the adequacy of the treatment of suitable
alternative accommodation, and the departure from the probation officer’s
recommendation were not considered by the Land Court as grounds on which leave
was granted. This Court must therefore assess whether those grounds independently
meet the test in s 17(1) of the Superior Courts Act.
[49] The Land Court exercised a discretion in granting the eviction order under
s 11(3) of ESTA. This Court does not interfere with the exercise of such a discretion
unless the court below misdirected itself in a material respect, the exercise of the
discretion was wrong in principle, or the outcome was palpably wrong. Counsel for the
appellants did not submit that the discretion was wrongly exercised and was unable to
point to any such misdirection.
[50] The balance of interests, assessed against the factors enumerated in s 11(3)
of ESTA, favours Logos. The occupation was, on the probabilities, not established with
the consent of any prior owner. The occupation has deprived Logos of the use of its
property for more than five years, at substantial ongoing expense. The evidence
establishes Logos’s commercial and residential needs. The Land Court addressed the
probation officer’s concern about suitable alternative accommodation by directing the
City of Cape Town to provide emergency accommodation to those who would be
rendered homeless. No bas is has been adva nced on which that exercise of the
discretion can be impugned.
[51] On Mr Rowland’s own evidence, he owns and resides on the adjacent Portion
78 and thus has no cognisable interest in challenging an eviction order from the
property. Section 16(2)(a)(i) of the Superior Courts Act provides that leave to appeal
may be refused where the issues are of such a nature that any decision sought will
may be refused where the issues are of such a nature that any decision sought will
have no practical effect or result. This is an additional basis for refusing leave.
[52] The application for leave to appeal against the eviction order discloses no
reasonable prospect of success , and no other compelling reason exists to justify
granting leave. The application is accordingly refused.
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Costs
[53] All three applications and the appeal are dismissed. The respondent is entitled
to its costs in respect of all those applications. Insofar as it concerns the application to
strike out, that application was designed to frustrate rather than to advance the
proceedings, and there is no reason to protect the appellants who pursued it from the
ordinary costs consequences of an unsuccessful application.
The order
[54] The following order is made:
1. The appeal against the refusal to strike out the evidence is dismissed with
costs.
2. The appeal against the refusal of the counter -claim for court -supervised
mediation is dismissed with costs.
3 The application to amplify the grounds of appeal is dismissed with costs.
4 The application for leave to appeal is dismissed with costs.
5 The first, second and fourth appellants are directed to pay the respondent’s
costs relating to the above applications jointly and severally, the one or more
paying the other to be absolved.
________________
K E MATOJANE
JUDGE OF APPEAL
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Appearances:
For the appellant: P Hathorn SC
Instructed by: Ashraf Mahomed Attorneys, Cape Town
Webbers Attorneys, Bloemfontein
For the respondent: L F Wilkin
Instructed by: Dick Van der Merwe Attorneys, Cape Town
Claude Reid Attorneys, Bloemfontein.