SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE NORTH WEST HIGH COURT, MAHIKENG
CASE NO: M546/2023
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
PIETER BOTHA N.O Applicant
AND
WJH MARAIS BROERS CC First Respondent
JAN GABRIEL DE VILLIERS PRETORIUS Second Respondent
HENDRIK JACOBUS MARAIS Third Respondent
ALL OCCUPIERS OF THE REMAINING
PORTION 1 OF THE FARM WITPAN 20,
REGISTRATION DIVISION I.P NORTH
WEST PROVINCE, HELD BY DEED OF
TRANSFER T[...] AND PORTION
20 (A PORTION OF PORTION 3) OF
THE FARM ROODEPAN 19, REGISTRATION
DIVISION I.P NORTH WEST PROVINCE,
HELD BY DEED OF TRANSFER T[...]2 Fourth Respondent
LOUIS LE ROUX Fifth Respondent
ALL OCCUPIERS OF THE PROPERTY
SITUATED AT THE REMAINING PORTION
10 OF THE FARM ROODEPAN 19,
REGISTRATION DIVISION I.P NORTH
WEST PROVINCE, HELD BY DEED OF
TRANSFER T[...]3 Sixth Respondent
DATE OF HEARING : 05 February 2026
DATE OF JUDGMENT : 08 April 2026
FOR THE APPLICANT : Adv.Raubenheimer
FOR THE 1st & 2nd RESPONDENT : Adv. Strydom SC
FOR THE 3rd to 6th RESPONDENT : Adv. Botha SC
JUDGMENT
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives via email. The date and time for
hand-down is deemed to be 10h00 on 08 April 2026.
ORDER
Resultantly, the following order is made:
(i) The application is dismissed.
(ii) The applicant is ordered to pay the costs of this application on a
party-and-party basis on Scale C in terms of Rule 67 A of the
Uniform Rules of Court, to be taxed.
(iii) Such costs to include the costs occasioned by the employment of
Senior Counsel (SC).
JUDGMENT
Summary
Application for e viction - Extension of Security of Tennure Act ( ESTA) 62 of
1977 - Prevention of Illegal Eviction from Unlawful Occupation of L and Act
(PIE) 68 of 1969 - its application.
HENDRICKS JP
[1] In this application the applicant pr ays for an order for the eviction of the
respondent from certain farms together with certain ancillary relief. It is
prudent to state th e citations of the respective parties. The applicant is
the duly appointed executor in the estate of the late Helena Lovina
Wallis, in his official capacity, Mr. Pieter Johannes Botha N.O. The first
respondent is WJH Marais Broers CC, a close corporation farming entity.
The second respondent is Jan Gabriel De Villiers Pretorius. The third
respondent is Hendrik Jacobus Marais. As the fourth respondent is cited
‘all occupiers of the remaining o f Portion 1 of the farm Witpan 20 and
Portion 20 of the farm Rood epan 19’. The fifth respondent is Louis Le
Roux. As the sixth respondent is cited ‘all occupiers of the property
situated at the remaining Portion 10 of the farm Roodepan 19’ . At the
hearing of this matter on 05 February 2026, this Court ordered the
joinder of the third and sixth respondents as they have a vested interest
in this matter, as it will become apparent later on in this judgment.
[2] It is common cause that the properties referred to above are three farms
that are all registered in the name of the late Helena L ovina Wallis. The
first and second respondents purchased these farms at an auction that
was held on 30 August 2019, on instruction of NWK Limited , who was
the bond holder. This was with the cooperatio n of the previous executor
of the estate, Mr. Van Wyk. The third respondent, together with his family
reside on the farm Witpan, whilst the fifth respondent together with his
family reside on the farm Rooipan. The relief claimed effected them as
well as their respective families and ‘all those who occupy by, through or
under the first and second respondents’. The applicant is the newly
appointed executor in the stead of Mr. Van Wyk who resigned as
executor of the estate.
[3] The applica nt contends that because the properties (farms) are
registered in the name of the deceased estate, he as executor is entitled
and obliged to protect, recover and preserve estate assets including
instituting proceedings to recover possession thereof from un lawful
occupiers. He allege that the first and second respondents do not reside
on the properties, and that they occupy and control the properties for
commercial farming operations. Based on the agreement concluded at
the auction, possession and occupation of the properties, will be given to
the purchaser on date of registration of transfer in the name of the
purchaser. This is the crux of the appli cants’ case. Because transfer of
the properties has not been registered in the names of the first and
second respondents, the agreement does not confer on them the right of
occupation. It is quite apparent that the respondents do not rely on any
written le ase agreement concluded with the owner , the l ate Helena
Lovina Wallis or the executor, the applicant. The respondents rely on the
conditions of sale and informal agreements. The applicant submitted in
the absence of transfer of the property by registration thereof in the
name of either the first or second respondent , and in the absence of a
lease or written consent granting early occupation, the respondents
occupation is without my right.
[4] It is clear that th is Court is not at the junct ure called upon to determine
the validity of the sale agreement concluded at the auction. This is a
dispute to be resolved in an action instituted. The applicant contended
that even if it were to be assume that the sale agreement on auction is
valid, occupati on of the properties is deferred until registration and
transfer thereof in the name of either the first or second respondent. The
current application is for the eviction of the respondents from these
farms. The opposition by the respondents are based on t he agreement
of sale on auction and informal agreements to occupy the farms to avoid
vandalism; to improve the farms to make it habitable and profitable in
respect w hereof there exist a lien over the farms (property); because
ESTA finds application, this Court does not have the necessary
jurisdiction to deal with this matter; non -compliance with the dictates of
the PIE Act insofar as it relates to one of the occupiers ; and the
respondents (first and second) are bona fide possessors.
[5] Insofar as the applicability of the PIE Act is concerned, it is common
cause between the applicant and the fifth responde nt that the PIE Act is
applicable insofar as he (and his family) are concerned. As alluded to
earlier, the fifth respondent and his family reside on the farm Rooipan.
He is an employee of the first respondent and as such has a right of
residence on the farm. In terms of section 14 (2) of the PIE Act, the
applicant had to give him 14 days written notice, approve d by a court.
This did not happen. There is therefore non -compliance with the PIE Act
in this regard. Whilst small deviation from strict compliance may be
condoned by a court if there is substantial compliance, a court will not
lightly condone substantial non-compliance. This is not a case of placing
form over substance. The legislation make it peremptory that there must
be compliance with the dictates of the PIE Act. 1 No reasons for the non -
compliance with the requirements of the PIE Act was proffered. Non -
compliance with the PIE Act in the sense that the dictates of the act was
ignored can never be regarded as substantial compliance.2 The object of
the PIE Act is to give protection against illegal evictions. 3 Not only does
the fifth respondent reside on the farm Rooipan but his family is also
residing there; that is his wife Liesel and their children as well as other
family members. Liesel and the other family members of the fifth
respondent were not initially joined in these proceedings, although they
might be effected by the relief claimed. This in my view is fatal. The
1 Cape Killarney Property Investments (Pty) Ltd vs Mahamba 2001 (4) SA 1222 (SCA).
2 Moele v Shoniwe 2005 (4) SA357 (SCA).
3 City of Tshwane Metropolitan Municipality v Lombardy Development and Others 2018 ZASCA 177.
Weenen v Transitional Council v Van Dyk 2002 (4) SA 653 (SCA).
prescripts of the PIE Act should have been adhered to insofar as Liesel
and the other family members are concerned. After this Court ordered
that they be joined, notice of these proceedings should have been
effected on them, which did not happen.
[6] An aspect that is central to this application is the fact that the first and
second respondents bona fide purchased these farms on an auction and
bona fide belief that the agreements concluded were valid. They took
occupation of these farms in the bona fide belief that they were entitled
to do so to prevent possible vandalism and theft and they even made
improvements on the f arms in order to make it habitable and profitable.
These improvements increased the value of the farms. On this score,
the first and second respondents raised as a defence the fact that they
are having improvements liens because of the expenses incurred. This
is borne out by evidence of increased valuations. It need to be
emphasized that the first and second respondents contended that they
are bona fide possessors or occupiers and not tenants in terms of any
lease agreement. A bon a fide possessor is someone that possesses
property labeling under the impression that he will become the owner or
is the owner regardless of whether ownership will eventually be acquired
or not.4
[7] The bona fide possessor or occupier is entitled to be reimbursed for all
the expenses incurred in preservation or protection of the property and
also for any improvements made or effected to the property. 5 The first
4 Kommissaris van Binnelandse Inkomste v Anglo American (OFS) Housing Company Ltd 1960 (3) SA 642 (A).
5 Business Aviation Corporation (Pty) Ltd v Rand Airports Holdings (Pty) Ltd 2006 (6) SA 605 (SCA).
and second respondents are bona fide possessors of the properties
(farms). Whether or not NWK had a right to sell the properties is subject
to an action that is pending before this Court. This does not detract from
the fact that the first and second respondents acquire possession of
these properties by buying it on an auction. The improvements made on
these properties gives the first and second respondents a real right (lien)
over these properties . They believe that these properties will become
theirs as a result of the purchase thereof on an auction. Until such time
as these sale agreements are declared invalid and/or are set aside, they
have a lien or right of detention over these properties.
[8] The third, fourth, fifth and sixth respondents are occupying these farms
for residential purposes. As alluded to earlier, i t is common cause that
these properties are farms. The third, fourth and sixth respondents raise
as a defence that the Extension of Security of Tennure (ESTA) Act 62 of
1997 find application and their right s of occupation in terms of this act
are protected. It is trite that a person that occupies under ESTA cannot
be evict ed under the PIE Act. The P IE Act deal with the unlawful
occupiers whilst ESTA deals with lawful occupiers who occupy with the
consent of the owner or person in charge of the land. The third, fourth
and sixth respondents occupy these farms through the firs t and second
respondents in whose employ they are . The farms are land in terms of
ESTSA. ESTA oust the jurisdiction of this Court as it specifically states
that the Land Court (previously th e Land Claims Court) have exclusive
jurisdiction over the land (and land claims) matters.6
6 Skhosana And Others v Roos t/a Roos Se Oors 2000 (4) SA 561 (LCC).
[9] These farms are land within the ambit of ESTA. T his Court as a High
Court does not have jurisdiction to entertain this application insofar as
the third, fourth and sixth respondents are concerned. The application for
their eviction should consequently fail . As alluded to earlier, the fifth
respondent (resort under the PIE Act which find application insofar as he
is concerned. To reiterate, there was substantial non-compliance with the
formal prescripts of the requirements of the PIE Act, which is fatal for the
present application. No notice of the intended eviction was given to the
fifth respondent and his family members. Furthermore, no grounds for
their eviction are set out in the founding affidavit which is to the prejudice
of the fifth respondent and this family as they could not properly prepare
for their defence as was highlighted by counsel representing them.
[10] This application is fata lly defective in that there is non -complaince with
the requirements of the PIE Act and ESTA exclude this Courts’
jurisdiction. As such this application must fail. Insofar as costs are
concerned it should follow the result and be awarded in favour of the
successful litigants, the respondents. The importance and complexity of
this matter warrant the employment of se nior counsel and their
employment are justified. The costs should therefore also include the
costs consequent upon the employment of senior counsel (SC).
Order
[11] Resultantly, the following order is made:
(i) The application is dismissed.
(ii) The applicant is ordered to pay the costs of this application on a
party-and-party basis on Scale C in terms of Rule 67 A of the
Uniform Rules of Court, to be taxed.
(iii) Such costs to include the costs occasioned by the employment of
Senior Counsel (SC).
____________________
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG