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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
GAUTENG LOCAL DIVISION, PRETORIA
CASE NO: 2024/107191
In the matter between :
HEYTER HENDRIK BRANDT Applicant.
and
RAMON BRANDT First Respondent
THE ILLEGAL OCCUPIERS OF THE PROPERTY
ERF 3[...] W[...] PRETORIA ( also known as
1[...] B[...] AVENUE W[...] PRETORIA Second Respondent
GAUTENG PROVICE
THE CITY OF TSHWANE METROPOLITAN
MUNICIPALITY Third Respondent
JUDGMENT
MODISA AJ
1.
[1] This is an opposed eviction application which is predicated upon the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 ( “PIE”) which was issued on 20
September 2024.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
25 March 2026
DATE SIGNATURE
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[2] On 16 January 2025, the Honourable Madam Justice Pienaar AJ
granted an order in terms of Part A of the notice of motion which reads
as follows:
“1 That the form and contents of the Notice in terms of Section
4(2) of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act, 19 of 1998, as attached hereto as
ANNEXURE “I” be authorised.
2 That the Applicant is directed to serve Notice, together with a
copy of this order on the Respondents in accordance with the
provisions of Rule 4(1) of the Uniform Rules of Court.
3 That the costs of this application be costs in the cause.”
[3] On 12 February 2025, the Notice of Motion, the Founding affidavit of
Hendrik Heyter Brandt, the Court order dated 16 January 2025 and
Annexures in terms of Notice in terms of Section 4(2) of the Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998
(“PIE”) and the notice of the initial Court date – 26 February 2025 was
served on the First Respondent and Second Respondent by leaving
copies at the main gate. No one could be found at the address who is
older than sixteen years of age
.
3
[4] On 5 February 2025, service of all documents as stipulated in paragraph
1.4 supra was effected on the Third Respondent (Ms Tsoai - Legal Clerk,
the responsible employee of the Third Respondent) at T[ …] H[… ] , 3[… ]
M[…] Street, Pretoria which is the offices of the Tshwane Metropolitan
Municipality
[5] The relief claimed by the Applicant which is to be determined by this
Court is founded on PART B of the Applicant’s Notice of Motion in terms
of Section 4(2) of Act 19 of 1998. The relief claimed by the Applicant is
as follows:
“1. That the First and Second Respondents, occupying the
immovable property of the Applicant, be evicted from the
immovable property known ERF 3 […] W[…] , PRETORIA CITY
also known as 1[…] B[…] AVENUE, W […] , PRETORIA,
GAUTENG PROVINCE.
2. That the First and Second Respondents be ordered to vacate
the Applicants immovable property within 30 (thirty) days from
the granting of this order, alternatively within such a reasonable
period the Honourable Court deems just and equitable, from
date of granting this order, failing which the relevant Sheriff
(Pretoria East) be authorised, mandated, and directed to evict
the First and Second Respondents from the immovable property;
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3. That the Sheriff be authorised to request any person, including
members of the South African Police Services, to assist in the
eviction of any occupants from the property.
4. That the First Respondent be ordered to pay the costs of this
application on an attorney client scale, Scale B.
5. Further and/or alternative relief.”
[6] The Applicant, as the lawful owner of the immovable property ERF 3[… ]
W[…] , PRETORIA CITY also known as 1[…] B[… ] AVENUE, W […] ,
PRETORIA, GAUTENG PROVINCE persist with the relief sought in the
notice of motion – Part B thereof.
[7] The Applicant argues that the personal circumstances shows that the
First Respondent and his wife are gainfully employed. It is trite that a
private property landowner is not obliged to provide or fulfil the
municipalities duty to make available 1 , if appropriate, alternative
accommodation to the Respondents or that personal circumstances are
not legally relevant circumstances. In any event, under these
circumstances the Third Respondent is not obliged to do so considering
the financial circumstances of the First and Second Respondents
2. They
1 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA
104 (CC) at par 31 “.. A private owner has no obligation to provide free housing.”
2 The National Housing Code was enacted under section 4 of the Housing Act 107 of 1997. It contains
the national housing policy and sets out the principles, guidelines, and standards to apply to the
various programmes effected by the state in relation to housing.
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elected not to place considerable detail regarding the First Respondent ’s
business and his wife’s Dental practice before this Court.
[8] There is no dispute between the Applicant and any of the Respondents
that the Applicant is the registered owner of the immovable property ERF
3[…] W[… ], PRETORIA CITY also known as 1[…] B[…] AVENUE,
W[…] , PRETORIA, GAUTENG PROVINCE3.
[9] The First and/or Second Respondents are in possession of the
Applicant’s immovable property since June/July 2012.
[10] During or about June/ July 2012 and at Pretoria, the First Respondent
acting personally and Applicant, acting personally, entered into a verbal
lease agreement in respect of the immovable property ERF 3 […] W[…] ,
PRETORIA also known as 1[ …] B[…] AVENUE, W […] , PRETORIA,
GAUTENG PROVINCE P:O W […] PRETORIA (the Applicant ’s
immovable property)
[11] The material express, alternatively implied, further alternatively tacit
terms of the verbal agreement were as follows:
11.1 The First Respondent leased the Applicant ’s immovable property
for an amount of R 12 000-00 per month.
3 Founding affidavit, paragraph 6.1.1 and 6.1.2 on Caselines 006-13 and Answering Affidavit,
paragraph 4.5.1 and 4.5.2 on Caselines 013-15.
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11.2 The rental amount referred to in paragraph 2.4.1 above shall be
renegotiated between Applicant and the First Respondent, from
time to time, but not within the first 24 (twenty -four) months from
date of commencement of the verbal lease agreement referred to in
paragraph 2.3 supra as the Applicant deemed fit at his sole
discretion.
11.3 The First Respondent shall be liable for all property rates and
taxes, services, and electricity consumption of the Applicant’s
immovable property.
11.4 The First Respondent shall attend to the general upkeep of the
immovable property and do all things necessary to maintain and
retain the immovable property in a pristine habitable condition.
11.5 The First Respondent shall not make any alterations, modifications,
variations or additions to the immovable property without the
Applicant’s prior written consent.
11.6 The Applicant provided the First Respondent with unhindered and
undisturbed possession of the immovable property.
11.7 Either the First Respondent or the Applicant, for whatsoever
reason, was entitled to cancel the verbal lease agreement by
providing the other party with reasonable notice of the parties’
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intention to cancel the verbal lease agreement following the initial
24 (twenty-four) months from date of commencement of the lease
agreement during June/July 2012.
[12] It was submitted by the Applicant that he complied with all his obligations
in terms of the verbal lease agreement with the First Respondent.
[13] The Applicant declared that but for a single payment of R 12 000-00 in
the twelve- year lease period, the First Respondent failed alternatively ,
neglected, further alternatively refused to comply with his obligations in
terms of the verbal lease agreement by paying an amount of R 12 000-
00 per month (consecutively, and monthly for a period of 12 years) to the
Applicant.
[14] It is stated on Applicant’s behalf, although the First Respondent
breached the verbal lease agreement concluded in June/July 2012, and
failed to remedy it, whereafter the agreement was validly cancelled, the
Applicant is entitled by virtue of the terms of the verbal lease agreement
to cancel it by giving the First Respondent reasonable notice, which was
in any event done.
[15] The First Respondent together with all occupiers residing in and on the
Applicant’s immovable property, on 28 June 2024 was afforded until 31
July 2024 to vacate the Applicant’s immovable property
4.
4 Founding affidavit, paragraph 7.15 on Caselines 006-18 and Annexure “FA4” on 006-36 to 006-39.
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[16] Any contractual right or any right at all by the First and/or Second
Respondent to occupy the Applicant’s immovable property lapsed and/or
terminated on 31 July 2024. The First and Second Respondents are in
unlawful occupation of the Applicant’s immovable property.
[17] Counsel for the First Respondent conceded that the partnership
agreement has nothing to do with the lease agreement.
[18] It seems to me that the parties are also ad idem that there is no 2020
lease agreement.
[19] Furthermore, Counsel for the First Respondent submitted that if the
Respondents’ version is far -fetched then the relief sought ough t to be
granted. I agree that the Respondents’ version is far-fetched.
[20] Counsel for the Applicant referred to two (2) letters5 wherein nothing was
said about the 2020 lease agreement. I agree with this proposition.
[21] The First Respondent suggests that it was necessary to request this
Court- or claim for declaratory relief. It is submitted on behalf of the
Applicant that this suggestion is ill -considered and patently wrong where
the Applicant’s claim is premised on a possessory claim and to evict the
First and Second Respondents from his premises. The Court has
subject-matter jurisdiction based thereon that both the common law and
section 21(1)(c) of the Superior Court’s Act authorise the High Court in
its discretion, and at the instance of any interested person, to inquire into
5 See caselines 006-29 and 006-32
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and determine any existing, future, or contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential
upon such determination. It is not necessary within the conspectus of
eviction proceedings, and specifically the subject matter at hand to
request for declaratory relief.
[22] The Applicant, as owner of the immovable property, has a direct,
material, and substantial interest in the outcome of these proceedings,
he has an existing, future and continent right therein, relies on a valid
termination of the verbal lease agreement that was concluded in 2012
(supported by the facts presented in the affidavits and more specifically
on the First Respondent’s own version) and the First and Second
Respondent’s unlawful occupation of his immovable property as from 31
July 2024.
[23] The First Respondent furthermore attempts to suggest that a factual
dispute exists, which is holistically misplaced and incorrect. Firstly, the
alleged and disputed partnership agreement, involving the farm of the
Applicant’s company, has no relevance to these proceedings. Secondly,
and if careful consideration is given to the First Respondent’s complaint,
is that a 9-year verbal lease agreement exists, which has been proven to
be incorrect purely on his own version. Further, the basis upon which the
alleged verbal lease agreement was concluded (on his version - with
reference to the disputed partnership agreement) was repudiated and
accepted by him. On his own version, the First or Second Respondent
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have no right or entitlement to remain in occupation of the Applicant’s
immovable property.
[24] Counsel for the First Respondent seems to suggest that there is a
genuine dispute of fact and the matter has to be referred to trial. I am of
the view that there is no genuine dispute of fact.
[25] In consequence and considering that no serious response to the 2012
(the only) verbal lease agreement and the valid termination thereof was
provided by the First Respondent, reliance on a “material factual dispute”
is misplaced and holistically incorrect. The test that finds application in
these circumstances with specific reference to the Motion proceedings is
as follows:
25.1 In motion proceedings disputes of fact must be dealt with in
accordance with the principles laid down in Plascon - Evans
Paints v Van Riebeeck Paints (Pty) Ltd
6 (the Plascon Evans -
rule). This rule is to the effect that, where there is a dispute as to
the facts, a final interdict should only be granted in notice of motion
proceedings if the facts stated by the respondent together with the
admitted facts in the applicant's affidavit justify such an order.
Where it is clear that facts, though not formally admitted, cannot be
denied, they must be regarded as admitted. In certain instances,
the denial by the respondent of a fact alleged by the applicant may
6 1984 (3) SA 623 (A)
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not be such as to raise a real, genuine or bona fide dispute of fact. 7
Vague and unsubstantiated allegations are insufficient to raise real
and genuine disputes of fact. 8 A bare denial of the applicant's
allegations will generally be insufficient to generate a genuine or
real dispute of fact.
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25.2 As a general rule decisions of fact cannot properly be founded on a
consideration of the probabilities, unless the Court is satisfied that
there is no real dispute on the facts in question, or that the one
party's allegations are so far - fetched or so clearly untenable or so
palpably implausible as to warrant their rejection merely on the
papers, or that viva voce evidence would not disturb the balance of
probabilities appearing from the affidavits.10
25.3 The following was stated in Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another11 :
“A real, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports to raise
the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be
instances where a bare denial meets the requirement because
there is no other way open to the disputing party and nothing
7 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163
8 King William’s Town Transitional Local Council v Border Alliance Taxi Association (BATA)
2002 (4) SA 152 (E) at 156I - J
9 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290F
10 Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 197A - B; Malan v Law
Society, Northern Provinces 2009 (1) SA 216 (SCA) at 222B
11 2008 (3) 371 (SCA) at para [13]
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more can therefore be expected of him. But even that may not
be sufficient if the fact averred lies purely within the knowledge
of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred
are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but,
instead of doing so, rests his case on a bare or ambiguous
denial the court will gener ally have difficulty in finding that the
test is satisfied.”
25.4 The First Respondent’s version, wherever it is in conflict with the
Applicant’s version, is so clearly untenable or palpably implausible
that it can and should be rejected merely on paper.
25.5 consequently, the point in limine raised by the First Respondent
ought to be dismissed with costs.
[26] The point of departure in eviction proceedings is encapsulated in Section
26(3) of the Constitution of the Republic of South Africa, Act 108 of 1996
which clearly provides that ‘no one may be evicted from their home, or
have their home demolished, without an order of court made after
considering all relevant circumstances’. In giving effect to its provision,
the section further declares that ‘no legislation may permit arbitrary
evictions’. In compliance with the Constitution and not to permit arbitrary
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evictions, the legislature enacted the P revention of I llegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 ( “PIE Act”).
[27] The PIE Act dictates and regulates the procedures to be followed in
initiating eviction proceedings, and our Courts should direct how to serve
the unlawful occupiers with the owner’s intended application for evicting
them and to afford them the opportunity to answer.
[28] Sections 4 and 5 of the PIE Act are tools available to owner(s) or
person(s) in charge of land to initiate eviction proceedings against
unlawful occupiers.
[29] Section 4(7) of the PIE Act provides as follows :
‘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, 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.’
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[30] Section 4(7) of the PIE Act ensures that no person may be evicted from
their home, or have their home demolished, without an order made after
considering all relevant circumstances.
[31] The Court must decide whether it is just and equitable to grant an
eviction order having regard to all relevant factors.
[32] In Occupiers, Berea v De Wet 2017 (5) SA 346 (CC) the Constitutional
Court held the following in paragraph [47]:
‘It deserves to be emphasised that the duty rests on the court under
section 26(3) of the Constitution and Section 4 of PIE goes beyond
consideration of the lawfulness of the occupation. It is a consideration
of justice and equity in which the Court is required and expected to take
an active role. In order to perform its duty properly the court needs to
have all the necessary information. The obligation to provide the relevant
information is primarily on the parties to the proceedings. As officers of
the court, attorneys and advocates must furnish the court with all
relevant information that is in their possession in order for the court to
properly interrogate the justice and equity of ordering an eviction.’ In
paragraph 43 it was stated: ‘The role played by the court in such matters
was elucidated further in other cases. As a starting point, this Court in
Machele held that “the application of PIE is not discretionary. Courts
must consider PIE in eviction cases. Furthermore, this court in Pitje held
that courts are not allowed to passively apply PIE and must “probe and
investigate the surrounding circumstances”.’
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[33] In Port Elizabeth Municipality v Various Occupiers 2005(1) SA 217
(CC) it was emphasised by the Constitutional Court that the Constitution,
read with the just and equitable enquiry required to be undertaken in the
PIE proceedings, grants our courts a wide discretion in ensuring justice
and equity prevails in relation to all the parties concerned.
[34] In paragraph 28 of the Port Elizabeth matter, it was stated: ‘Section 6(3)
states that the availability of a suitable alternative place to go to is
something to which regard must be had, not an inflexible requirement.
There is therefore no unqualified constitutional duty on local authorities
to ensure that in no circumstances should a home be destroyed unless
alternative accommodation or land is made available. In general terms,
however a court should be reluctant to grant an eviction against
relatively set tled occupiers unless it is satisfied that a reasonable
alternative is available, even if only as an interim measure pending
ultimate access to housing in the formal housing programme.’ In
paragraph 32 it was stated: ‘The obligation on the court is to have regard
to the circumstances, that is, to give them due weight in making its
judgment as to what is just and equitable…. It follows that it is incumbent
on the interested parties to make all relevant information available…
Indeed, when the evidence submitt ed by the parties leaves important
questions of fact obscure, contested or uncertain, the court might be
obliged to procure ways of establishing the true state of affairs, so as to
enable it properly to ‘have regard’ to relevant circumstances’
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[35] In paragraph [33] to [37] of the Port Elizabeth matter, the Constitutional
Court held that:
“‘Just and equitable’
[33] In Port Elizabeth Municipality v Peoples Dialogue on Land and
Shelter and Others, a case with some similarities to the present,
section 6 was helpfully analysed by Horn AJ. He pointed out
that in matters brought under PIE one is dealing with two
diametrically opposed fundamental interests. On the one hand
there is the traditional real right inherent in ownership reserving
exclusive use and protection of property by the landowner. On
the other hand there is the genuine despair of people in dire
need of adequate accommodation. It was with this regard that
the legislature had by virtue of its provisions of PIE set about
implementing a procedure which envisaged the orderly and
controlled removal of informal settlements. It is the duty of the
court in applying the requirements of the Act to balance these
opposing interests and bring out a decision that is just and
equitable. He went on to say that the use of the term ‘just and
equitable’ relates to both interests, that is what is just and
equitable not only to the persons who occupied the land illegally
but to the landowner as well. He held that the term also implies
that a court, when deciding on a matter of this nature, would be
obliged to break away from a purely legalistic approach and
have regard to extraneous factors such as morality, fairness,
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social values and implications and circumstances which would
necessitate bringing out an equitably principled judgment.
[34] Finally Horn AJ went on to emphasise that each case would
have to be decided on its own facts. Hopefully once the housing
shortage had been overcome incidents of unlawful invasion of
property by desperate communities in search of accommodation
would disappear. In the interim the courts would do the best
they could and apply criteria that were just and equitable and
acceptable to all concerned. What remained essential, he
concluded, was that removals be done in a fair and orderly
manner and preferabl y with a specific plan of resettlement in
mind.
[35] The approach by Horn AJ has been described both judicially and
academically as sensitive and balanced. I agree with that
description. The phrase ‘just and equitable’ makes it plain that
the criteria to be applied are not purely of the technical kind that
flow ordinarily from the provisions of land law. The emphasis on
justice and equity underlines the central philosophical and
strategic objective of PIE. Rather than envisage the
foundational values of the rule of law and the achievement of
equality as being distinct from and in tension with each other,
PIE treats these values as interactive, complementary and
mutually reinforcing. The necessary reconciliation can only be
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attempted by a close analysis of the actual specifics of each
case.
[36] The court is thus called upon to go beyond its normal functions,
and to engage in active judicial management according to
equitable principles of an ongoing, stressful and law -governed
social process. This has major implications for the manner in
which it must deal with the issues before it, how it should
approach questions of evidence, the procedures it may adopt,
the way in which it exercises its powers and the orders it might
make. The Constitution and PIE require that in addition to
considering the lawfulness of the occupation the court must have
regard to the interests and circumstances of the occupier and
pay due regard to broader considerations of fairness and other
constitutional values, so as to produce a just and equitable
result.
[37] Thus, PIE expressly requires the court to infuse elements of
grace and compassion into the formal structures of the law. It is
called upon to balance competing interests in a principled way
and promote the constitutional vision of a caring society based
on good neighbourliness and shared concern. The Constitution
and PIE confirm that we are not islands unto ourselves. The
spirit of ubuntu, part of the deep cultural heritage of the majority
of the population, suffuses the whole constitutional order. It
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combines individual rights with a communitarian philosophy. It is
a unifying motif of the Bill of Rights, which is nothing if not a
structured, institutionalised and operational declaration in our
evolving new society of the need for human interdependence,
respect and concern.”
[36] Section 8 of the PIE Act categorically states that the Court must (in pre-
emptive terms) order eviction if (a) all the requirements of section 4 are
met, and (b) no valid defence is raised by the unlawful occupier. The
legislative principle underscoring the aforesaid legal position is found in
subsection 4(8) which reads as follows:
‘(8) If a court is satisfied that all the requirements of this section have
been complied with and that no valid defence has been raised
by the unlawful occupier, it must grant an order for the eviction of
the unlawful occupier and determine-
(a) A just and equitable date on which the unlawful occupier
must vacate the land under the circumstances; and
(b) The date on which an eviction order may be carried out if
the unlawful occupier has not vacated the land on the date
contemplated in paragraph (a).
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[37] The Applicant complied with the requisite obligations imposed on it for
an eviction order.
[38] Counsel for the Appl icant submitted that the First Respondent is a
wealthy businessman, and his wife a HSPCSA registered Dentist who
can afford rental accommodation elsewhere and there is simply no basis
upon which they will be entitled to accommodation from the Third
Respondent. This was not disputed by First and Second Respondents. It
must be emphasised that nowhere in provisions of The National Housing
Code of 2009 is it mandatory or peremptory on local or provincial
government institutions to provide housing programmes or emergency
distress and relief accommodation to parties per se.
[39] The Applicant is the owner of the immovable property, the First
Respondent and/or the Second Respondent are in unlawful occupation
thereof and as a result an eviction order must be granted. The only issue
left for determination is that the Court must determine a reasonable
period for their eviction (or vacating of the Applicants immovable
property) as envisaged in Section 4(8) of the PIE Act.
[40] In the circumstances, the following order is made:
1. T hat the First Respondent’s point in limine is dismissed with costs.
2. That the First and Second Respondents, occupying the immovable
property of the A pplicant, be evicted from the immovable property
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known as ERF 3 […] W[…] PRETORIA ( also known as 1[ …]
B[…] AVENUE W[…] PRETORIA, Gauteng Province.
3. That the First and Second Respondents be ordered to vacate the
Applicant’s immovable property within 90 (ninety) days from the
granting of this order, failing which the relevant sheriff (Pretoria
East), be authorised, mandated and directed to evict the First and
Second Respondents from the immovable property.
4. That the sheriff be authorised to request any person, including
members of the South African Police Services, to assist in the
eviction of any occupants from the immovable property.
5. That the First Respondent be ordered to pay the costs of this
application on Scale B.
___________________________
MODISA AJ
JUDGE OF THE HIGH COURT
PRETORIA
For the Applicant:
Adv Adv ASL Van Wyk
Instructed by: Herman E Smalman Attorneys
For the First Respondent:
Adv D.R Du Toit
Instructed by: Hansen Inc