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 HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 21515/2024
In the matter between:
LEON JANSEN VAN RENSBURG N.O. Applicant
and
MAREE FREDA POOLE First respondent
(together with all other occupiers holding
under first respondent)
'
ASHLEIGH POOLE Second respondent
(together with all other occupiers holding
under second respondent)
LAUREN POOLE Third respondent
(together with all other occupiers holding
under the third respondent)
ALL OTHER UNLAWFUL OCCUPIERS Fourth respondent
OF ERF 8[...] CAPE TOWN
(KNOWN AS [...] F[...] ROAD,
RETREAT)
(together with all other occupiers holding
under the fourth respondent)
THE CITY OF CAPE TOWN Fifth respondent
MASTER OF THE HIGH COURT Sixth respondent
And in the counter-application between:
MAREE FREDA POOLE Applicant
and
LEON JANSEN VAN RENSBURG N.O. First respondent
THE CITY OF CAPE TOWN Second respondent
MASTER OF THE HIGH COURT Third respondent
Coram: Van Zyl, AJ
Heard on: 14 May 2025, 28 -31 July 2025; 7 November 2025; final
submissions on 17 November 2025
Judgment: 9 April 2026
Summary: Main a pplication by executor for eviction from property belonging to
deceased estate – counter-application by first respondent that (amongst other relief)
she is to be deemed as surviving spouse under sections 1(1) and 1(1A) of the
Intestate Succession Act, 1987 – referral of issue to oral evidence – on oral
evidence no permanent life partnership e stablished – counter-application dismissed
and main application granted
___________________________________________________________________
ORDER
1. The first respondent’s counter-application is dismissed.
2. The first to fourth respondents, and all those occ upying under them, are
ordered to vacate the immovable property situated at [...] F[...] Road,
Retreat (Erf 8[...] Cape Town) by no later than Saturday, 31 October 2026.
3. Should the first to fourth respondents, or any of those occupying under
them, fail to vacate the property by the date set out in paragraph 2 of this
order, the Sheriff of this Court or the Sheriff of the Magistrates’ Court or
their deputies are authorized and directed to evict such persons by
Monday, 2 November 2026.
4. Each party shall, in re lation to both the main application and the counter -
application, pay their own costs.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. These proceedings are the result of a long and convoluted saga involving at
least two families. At the centre was a man – since deceased – who was
loved by those who knew him, but who was the cause of the trouble.
2. I shall, for the sake of convenience, refer to the parties as they are in the
main application. The applicant is the executor of the deceased estate of the
late Mr David Moodie Louw. 1 I shall refer to him as “David”, as the parties
have done throughout the proceedings. David passed away from Covid -19-
related complications in November 2020.
3. As the appointed 2 executor of the deceased estate, the applicant has a duty
to wind up the estate. As there is not sufficient cash in the estate to settle its
liabilities, the immovable property which lies at the heart of these proceedings
must be sold to defray the estate expenses , and to divide the proceeds
amongst the heirs.
4. In the course of winding up the estate, the applicant brought an application
pursuant to the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE), in which he sought an
1 Letters of executorship were issued by the Master of the High Court on 21 November 2022.
2 Under section 18 (1)(a) of the Administration of Estates Act 66 of 1965. There was an
oblique challenge to the applicant’s appointment in the first respondent’s answering affidavit,
but no relief (such as the setting aside of the Master’s decision or the removal of the
applicant) was sought in relation thereto, and the point was not pursued.
order evicting the first, second, third, and fourth respondents, together with all
occupiers holding under them, from the immovable propert y situated at Erf
8[...] Cape Town. The property is more commonly known as [...] F[...] Road,
Retreat, Cape Town . It is registered in David’s name. He purchased it from
the first respondent on 30 April 2013 for an amount of R560 000.00, and it
was registered in his name on 29 August 2013.
5. David and the first respondent were romantically involved for some time, but
were never married. The second and the th ird respondents are the first
respondent’s daughters.
6. David had a number of children at the time of his death, born from the
marriage to his former wife, Ms Feroza Louw (they were divorced long before
David’s death), as well as from other romantic relatio nships. These children
are all heirs to his deceased estate. David died intestate, and his estate must
thus be wound up under the provisions of the Intestate Succession Act 81 of
1987 (ISA).
The counter-application
7. When the matter was first heard , the f irst respondent brought a counter -
application in which she sought orders to the effect that she be recognized as
David’s surviving spouse for the purposes of the winding -up of the deceased
estate, as contemplated by the provisions of section 1 (1) and 1(1A)3 of the
ISA. She also seeks orders to the effect that the registration of transfer of the
immovable property into David’s name is void ab initio and that the property is
not an asset in his deceased estate, and that the first respondent is the owner
of the property.
8. An order was subsequently granted referring the first issue for the hearing of
oral evidence, that is , whether the first respondent and David were in a life
3 Intestate Suc ccession Act section 1 (1A): “ The word ‘spouse’, wherever it appears in this
section, includes a partner in a permanent life partnership in which the partners have
undertaken reciprocal duties of support.”
partnership immediately prior to his death on 21 November 2020, as
contemplated in section 1(1A) of the ISA.
9. If the first respondent succeeds with th is relief, she will be able to rely on the
wording of section 1(1)(c) of the ISA to inherit from David’s estate, as follows:
“(1) If after the commencement of this Act a person (hereinafter referred to as the
'deceased') dies intestate, either wholly or in part, and-
…
(c) is survived by a spouse as well as a descendant-
(i) such spouse shall inherit a child's share of the intestate estate
or so much of the intestate estate as does not exceed in value
the amount fixed from time to time by the Minister of Justice
by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the
intestate estate; …”
10. The meaning of a " child's share" is given in section 1(4)(f) of the ISA : ''[A]
child's portion, in relation to the intestate estate of the deceased, shall be
calculated by dividing the monet ary value of the estate by a number equal to
the number of children of the deceased who have either survived him or have
died before him but are survived by their descendants, plus one."
11. It appeared from her oral evidence that the first respondent was under the
impression that success on the surviving spouse issue would mean that she
would be able to keep the Retreat property for herself. That is, of course, not
correct. As indicated, the property will inevitably have to be sold to defray the
estate’s expenses and to divide what is left amongst all of the heirs , even of
the first respondent is successful on this issue . Nevertheless, the first
respondent may well be one of those heirs.
12. As the answer to the surviving spouse question largely determines the fate of
the eviction application, I shall start with a consideration of the evidence that
was furnished in this respect. I do not intend to set out the vast amount of
evidence proffered by numerous witnesses over the course of four days .
Eight witnesses gave evidence for the first respondent, namely:
12.1 Tamara Simon Jeftha;
12.2 Charlotte Anthony;
12.3 Rosy Francis Williams;
12.4 Amelia Plaatjies;
12.5 Ashleigh Poole;
12.6 Lauren Poole;
12.7 Ricardo Nathan Masimela; and
12.8 The first respondent.
13. Another eight witnesses testified on the applicant’s behalf, namely:
13.1 Sandre Maart;
13.2 Winston Isaac Wagner Moolman;
13.3 Irezaan Taliep;
13.4 Dean Swarts;
13.5 Joshua Williams;
13.6 Natalie Abigail Louw;
13.7 Melissa Louw; and
13.8 Ms Feroza Louw.
14. It must be remembered that, at the hearing of oral evidence, the affidavits
stand as evidence, save to the extent that they deal with disputes of fact.
Once the disputes have been resolved by oral evidence, the case is decided
on the basis of that finding, together with the affidavit evidence that is not in
dispute. If there is a dispute, the oral evidence must prevail.4
15. The fact that the Court orders oral evidence does not enlarge the scope of the
inquiry, and the fact that oral evidence was ordered does not give either party
the right to a roving commission and to put before the court any facts which
4 Murray NO v Humansdorp Co-Operative 2023 (3) SA 66 (SCA) paras 21-22,
that party thinks it would like the court to be aware of. A party will not be
allowed to lead oral evidence to make out a case which is not already made
out in the affidavits.5
16. The hearing of oral evidence is intended to be on specified issues only. The
court must be on its guard not to formulate its order in such way that the
hearing of ora l evidence is, perhaps unintentionally, converted into a trial. 6
The fact that the Court orders oral evidence does not enlarge the scope of
the inquiry 7 but the ambit of the inquiry may be extended by the terms of
reference and, in special circumstances, also by the judge presiding at the
hearing. That did not happen in the present matter.
17. I have considered the evidence (both oral and on affidavit) carefully, and shall
concentrate on what I regard as the salient aspects. There was much
evidence on issues that do not, in the greater scheme of things, assist in the
determination of the issue.
Were David and the first respondent in a permanent life partnership at the time
of his death?
18. At the outset, t he case of being a "surviving spouse" as contemplated in the
ISA was not the case that the first respondent put to the applicant, as the
executor, in an affidavit deposed to for the purposes of the winding -up of the
estate. In that affidavit, read with the answering affidavit in these
proceedings, her claim a gainst the deceased estate was one for "various
cash amounts" that the first respondent had advanced to David’s company,
known as Mac Con All Works (Pty) Ltd.
19. Similarly, none of the other claims set out in the counter -application featured
in her earlier affidavit submitted to the applicant. The counter-application and
the allegations which the first respondent makes in her affidavit to support
5 Dodo v Dodo 1990 (2) SA 77 (W) at 91I.
6 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699F.
7 Drummond v Drummond 1979 (1) SA 161 (A) at 170H.
that counter-application represent a significant shift from the position that she
had previously advanced against the deceased estate, when she submitted a
claim in the winding-up of the estate.
20. In relation to the surviving spouse issue, I accept the first respondent’s
submission that she could not previously have relied on an entitlement to a
part of David’s estat e. It was only on 31 December 2021 that a majority of
the Constitutional Court in Bwanya v Master of the High Court, Cape Town
and others8 made, inter alia, the following orders:
“7. The omission in section 1(1) of the Intestate Succession Act 81 of 1987 after the
word “spouse”, wherever it appears in the section, of the words “or partner in a
permanent life partnership in which the partners have undertaken reciprocal duties of
support” is unconstitutional and invalid.
8. Section 1(1) of the Intestate Succession Act is to be read as though the following
words appear after the word “spouse”, wherever it appears in the section: “or partner
in a permane nt life partnership in which the partners have undertaken reciprocal
duties of support”.
9. The orders contained in paragraphs 7 and 8 are suspended for a period of 18
months from the date of this order to enable Parliament to take steps to cure the
constitutional defects identified in this judgment.
10. Should Parliament not enact legislation as contemplated in paragraph 9, the
order of invalidity that shall come into operation 18 months after the date of this
order shall have no effect on the validity of any acts performed in respect of the
administration of a deceased estate that has finally been wound up by the date upon
which the order of invalidity comes into effect.”
21. Parliament did not enact legislation as contemplated in paragraph 9 of the
Constitutional Court's order. The declaration of invalidity and reading -in
therefore came into effect on 1 July 2023 . It is common cause that David’s
therefore came into effect on 1 July 2023 . It is common cause that David’s
estate has not yet been finally wound up. Accordingly, to the extent that the
first respondent is able to prove t hat she was in in a permanent life
partnership with David at the time of this death and that they had undertaken
8 2022 (3) SA 250 (CC).
reciprocal duties of support, she is entitled to be recognised as his surviving
spouse.
22. As to the proof of the existence of a life partnership , the Supreme Court of
Appeal in Paixao v Road Accident Fund9 explained the following:
“[29] I appreciate that it is not always easy for defendants in the fund’s position to
refute evidence of a plaintiff dependant’s assertion that the deceased had
undertaken a duty to support him or her. But this concern, I think, is overstated. A
plaintiff’s assertion, without more, that he or she was in life partnership, cannot be
taken as sufficient proof of this fact. (In this case the fund conceded that the
relationship was a life partnership.) Proving the existence of a life partnership entails
more than showing that the parties cohabited and jointly contributed to the upkeep of
the common home. It entails, in my view, demonstrating that the partnership was
akin to and had similar characteristics – particularly a reciprocal duty of support – to
a marriage. Its existence would have to be proved by credible evidence of a conjugal
relationship in which the parties supported and maintained each other. The implied
inference to be drawn from these proven facts must be that the parties, in the
absence of an express agreement, agreed tacitly that their cohabitation included
assuming reciprocal commitments – ie a duty to support – to each other. Courts
frequently undertake this exercise without much difficulty – as this and other cases
such as Amod, Satchwell and Du Plessis demonstrate. Life partnerships therefore
do not present exceptional evidential difficulties for defendants.
…
[39] … that extending the protection of the d ependants’ action only to permanent
heterosexual relationships where there is an agreement to marry requires us to draw
an arbitrary line between those relationships and most others where there is no such
agreement. The proper question to ask is whether th e facts establish a legally
agreement. The proper question to ask is whether th e facts establish a legally
enforceable duty of support arising out of a relationship akin to marriage. Evidence
that the parties intended to marry may be relevant to determining whether a duty of
support exists, as in this case. But it does not mean that there must be an
agreement to marry before the duty is established. And once a dependant
establishes the duty, the law ought to protect it.”
9 2012 (6) SA 377 (SCA).
23. The Court in Bwanya endorsed the approach adopted in Paixao. It is also
clear from the facts in these cases that the reciprocal duties of support are
not limited to financial support, but include love, care, emotional support and
companionship. The Court in Bwanya further described the nature of
permanent life partnerships as follows:
“[55] After all, permanent life partnerships are intimate relationships that are meant
to last until the death of one or both (in the case of simultaneous death) of the
partners. Through agreement – express or tacit – these life partnerships often
feature reciprocal duties of support. They too are the foundation of family life,
whether with or without children. National Coalition for Gay and Lesbian
Equality cites Peter on the features of marriage, which—
‘embrace intangibles, such as loyalty and sympathetic care and affection, concern . .
. as well as the more material needs of life, such as physical care, financial support,
the rendering of services in the running of the common household or in a support -
generating business.’
To my mind these features are not foreign to permanent life partnerships.
[56] In all these respects, permanent life partnerships are very much akin to
marriages. I am not unmindful of the differences, chief amongst which are the public
solemnisation of a marriage and the formalities about termination.
…
[67] I trust that I have debunked the notion of a supposedly across -the-board choice
not to marry. I also trust that, instead, I have foregrounded the vulnerability of
women in permanent opposite -sex life partnerships as one of the central reasons
why some women find themselves in permanent life partnerships. But – if by doing
so – an impression has been created that this is the end of the story in addressing
the “choice argument”, that will serve to devalue permanent life partnerships.
Permanent life partnersh ips must be accorded the necessary respect as they are
Permanent life partnersh ips must be accorded the necessary respect as they are
one of life’s realities; an institution through which many in our society lead their lives,
give and receive love in return, engage in love -making, find solace, seek and get
protection and all manner o f support, form families, enjoy some of life’s myriad
pleasures with those they love, and receive sustenance and – in the case of children
born or raised within those relationships – nurture.”
24. It is also clear from Bwanya that a life partnership need not be perfect in
order to be recognised as having legal consequences. Indeed, one of the
primary motivations for extend ing the laws of succession to life partners was
the recognition that women often find themselves in relationships with men
are abusive or otherwise behave badly.
25. The need for a life partnership to meet the requirements of a conjugal
relationship was also recognised by the Constitutional Court in , for example,
National Coalition .10 The same principle was applied by the SCA in Du
Plessis.11 ”Conjugal" is defined as "relating to marriage or the relationship
between a married couple" or "of or relating to the married state or to married
persons and their relations" or "connected ·with marriage or the relationship
between two married people, especially their sexual relationship"12
26. In Dawood and another v Minister of Home A ffairs and others; Shalabi and
another v Minister of Home Affairs and others; Thomas and another v
Minister of Home Affairs and others13 the Constitutional Cou rt explained the
concept of a marriage as follows:
“Marriage and the family are social institutions of vital importance. Entering into and
sustaining a marriage is a matter of intense private significance to the parties to that
marriage for they make a promise to one another to establish and maintain an
intimate relationship for the rest of their lives which they acknowledge obliges them
to support one another, to live together and to be faithful to one another. Such
relationships are of profound significance to the individuals concerned. But such
relationships have more than personal significance at least in part because human
beings are social beings whose humanity is expressed through their relationships
with others. Entering into marriage therefore is to enter into a relation ship that has
public significance as well”.
27. In the counter-application the first respondent alleges that she met David in
2005. T hey dated for approximately six years before David moved in to live
with her. She alleges that they cared for each other as a married couple
with her. She alleges that they cared for each other as a married couple
10 National Coalition /or Gay and Lesbian Equality and others v Minister of Home Affairs and
others 2000 (2) SA 1 (CC) para 46.
11 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) paras 11-14.
12 See, for example, www.merriam-webster.com and www.collinsdictionary.com.
13 2000 (3) SA 936 (CC) para 30.
would: "We were in a lifelong partnership and had reciprocal duties of
support to one another. I am accordingly his spouse for the purposes of the
Intestate Succession Act and an heir to the deceased estate".
28. As indicated, p ermanent life partnerships are intimate relationships that are
meant to last until the death of one or both of the parties thereto . Through
agreement - express or tacit - these life partnerships must feature reciprocal
duties of support until the date of death. 14 It is this question that was referred
for the hearing of oral evidence , specifically in relation to David and the first
respondent.
29. The version put to the first respondent’s witnesses in cross -examination
included an acknowledgment that David resided with the first respondent until
2020, whereafter he is alleged to have moved to W[...] Road, Northpine (Ms
Feroza Louw’s house) to live with Ms Louw and her daughters . Much was
said in evidence as regards the relationships between David and Ms Feroza
Louw, on the one hand, and David and the first respondent, on the other
hand, over the years up to 2020. T he evidence of the witnesses in relation to
the period leading up to 2020 cannot seriously be disputed. What is clear
therefrom is that David loved women, and he enjoyed the company of others
apart from Ms Louw and the first respondent. He explained his regular and
extended absences from the various households involved with the narrative
that he had to travel a lot for his work. Ironically, most of the witnesse s were
in agreement that David abhorred lying - when other people did it to him.
30. As regards the disputed period in 2020 (prior to David’s death) , the first
respondent’s friends Ms Jeftha, Ms Williams and M s Plaatjies could not
meaningfully contribute to w hether David’s and the first respondent’s
partnership continued, as before, during the Covid -19 lockdown period. Even
so, logic and the probabilities would suggest that, in light of their friendship
so, logic and the probabilities would suggest that, in light of their friendship
with the first respondent and with David , they would have expected to be
informed if the couple had separated.
14 Bwanya v Master of the High Court, Cape Town and others 2022 (3) SA 250 (CC) para 55.
31. Nevertheless, t he applicant ’s instructions prior to the institution of this
application were that, even if the first respondent and David did have a
romantic relationship at some point , he effectively continued to live with Ms
Louw and their children, Natalie and Melissa , at their home in Northpine
intermittently throughout the years, and for a n extended time before his
death. It came out in the oral evidence that David lived there until such time
as he had to go to hospital in November 2020, where he died.
32. In her affidavit Ms Louw list s her and David’s reciprocal duties of support to
each other, even though this court is not called upon to determine whether
the two of them were in a permanent life p artnership. The first respondent did
not list any such examples in her affidavit, but she did give examples of what
she regarded as reciprocal duties of support in the course of her oral
evidence. Ms Louw confirm ed that she was the one who took David to the
hospital when he contracted Covid -19. Shortly before he passed away, he
sent her final messages as, according to her, they had shared a life together.
Ms Louw was the one who arranged a funeral service for him . The first
respondent did not attend.
33. Ms Louw testified that David never truly vacated the house that they shared ,
but continued to live there with Ms Louw and their daughters. It was his
permanent residence until the date of his death. His clothes and his personal
belongings were there . His tools remained there, and all his mail was also
sent to that address. Ms L ouw shared a bed, a bedroom and a bathroom
with David at the Northpine house, until she took him to hospital, because of
his Covid -19 infection . Together with her children and their p artners she
arranged a sixtieth birthday party for him when he was with them at the
Northpine property. The first respondent did not attend. She also a rranged a
memorial service for him. I reiterate that I do not have to determine whether
memorial service for him. I reiterate that I do not have to determine whether
David and Ms L ouw were in a permanent life partnership at the time of his
death, although – on the evidence – it seems to me that David had his bread
buttered (so to speak) on both sides in this respect. But was he committed to
anyone, in particular the first respondent?
34. It was clear from the oral evidence that David chose his place of residence for
purposes of the national lockdown to be the home which he shared with Ms
Louw. The first respondent initially alleged in her affidavit that he remained
with her, in the Ret reat house, during the lockdown. She alleged th at "David,
when not locked in the house with me, was trying to keep his business afloat.
The first respondent's children di d not, in their oral evidence, support her in
this contention. When it became unavoi dable to deny that David was at the
Northpine house during the lockdown, the first respondent alleged that: "when
Dawid contracted Covid-19 about a month before his passing, he stayed in a
separate entrance at Feroza 's house " and “David stayed in Feroza 's
separate entrance, for a brief period prior to his death, to self -isolate during
the lockdown".
35. The first respondent changed her evidence wh ile she testified in court. When
she was asked where David was at the commencement of the lockdown at
the end of March 2020, she said: "I can't specifically remember.” She did not
persist with this version, and various other witnesses' testimony showed such
version, as relayed in her affidavit, was in any event incorrect . The first
respondent herself eventually testified in court that: "David wanted to be near
his workshop, so he stayed at the Northpine house".
36. On consideration, I do not think that t he oral evidence establish es, on a
balance of probabilities, that a permanent life partnership existed between
David and the first respondent at the time of his death. Even accepting the
first respondent’s counsel’s criticism that, with the exception of Ms Taliep and
Ms Louw, all the witnesses called by the applicant were rigid and inflexible in
making any concessions re garding David’s relationship with the first
respondent, it seems to me that their rigidity was focused on aspects that did
not really take the matter further, such as the seemingly neutral fact that
not really take the matter further, such as the seemingly neutral fact that
David resided in Fairways after his divorce from Ms Louw. It seemed that the
witnesses did not want to give away any concession that might detract from
the narrative that David and Ms Louw remained close even after their divorce.
As indicated, however, that is not the issue for determination. I highlight the
relevant evidence.
Ms Tamara Jephta
37. Ms Jephta admitted in cross -examination that her evidence about where
David resided from 2017 onwards was dependent on what other people told
her. She did not have any personal knowledge thereof.
Ms Charlotte Anthony
38. Ms Anthony testified about some events indicating that David was at the
Retreat property after 2017, but when she was asked to confirm where
David's home was, she confirmed that she did not know, as she learnt that he
had died in Tygerberg Hospital. She disavowed any attempt on her part to
describe the relationship between David and the first respondent : s he said
she did not know, as David was more her husband's friend than hers.
Ms Rosy Williams
39. The affidavit of Ms Williams delivered as part of the application differs from
her evidence in court. Ms Williams had known both David and the first
respondent before they met each other. She was friends with David and Ms
Louw, until David commenced a relationship with the first respondent. They
met at a Christm as party at Ms Williams's house in 2005. Ms Louw was also
at that party. Thereafter, Ms Louw was no longer a point of discussion
between Ms Williams and David.
40. Ms Williams explained that during the Covid -19 pandemic she had to drop
food at the Retreat pro perty, but when she was asked where David was at
the time , she did not know. She assumed that he was with the first
respondent, but she did not see him there. Ms Williams last saw David
approximately two weeks before he died, when he was on the road with M r
Mark Anthony.
41. Ms Williams was aware that the first respondent was unhappy with some
activity that David got her involved in, but Ms Wiliams did not know what it
was. This allegedly happened in 2020, when unsavoury characters were sent
by David to the Retreat property, presumably for some business deal.
Ms Amelia Plaatjies
42. The evidence of this witness also differed from her affidavit. Ms Plaatjies and
the first respondent were former work colleagues. They were friends. They
both worked for the same clot hing companies. Thereafter, Ms Plaatjies and
the first respondent obtained a contract to make shirts and fire truck
garments. Ms Plaatjies needed space to work; and th ey worked at the first
respondent's house for approximately eighteen months, until the c ontract
terminated. Ms Plaatjies sometimes saw David at the Retreat prope rty.
During coffee breaks, when the first respondent was not there, Ms Plaatjies
and David chatted and listened to gospel music together.
43. Ms Plaatjies testified that the first respo ndent is a private person who did not
speak about her relationship with David. The permanence of their relationship
was never discussed with Ms Plaatjies. After 2018, all she knew about the
relationship came from the first respondent - Ms Plaatjies has no personal
knowledge thereof.
Ms Ashleigh Poole
44. Ashleigh Poole is the first respondent’s 30-year old daughter. She lives at the
Retreat property with the first respondent and her sister, Lauren. She has
lived there all her life except from 2016 to 2018, when she lived in Goodwood
with her father.
45. She knew that David was the first respondent's partner . They commenced a
relationship in 2006, when Ms Poole was eleven years old. She was
introduced to David as her mother's ''friend”. She and her mother visited
David at Fairways, where the persons she knew as Ricardo and Riley
Masimela were also living. In 2011 or 2012 David moved to the Retreat
property.
46. According to Ms Poole , they would have supper together as a family; they
would have lunch on Sundays; they watched television together. When Ms
Poole was asked how often David was at their house, she explained that he
was there for about two weeks at a time, and then he would be away for two
weeks. In March 2020, at the commencement of the Covid lockdown, David
was not with them at their house. She did not know where he was. She last
saw him in October 2020. She knows that he had contracted Covid.
47. During cross -examination, Ms Poole acknowledged that she ha d no
knowledge of David also living with Ms Louw at No rthpine. She understood
that he only went there to see his daughters, but that he did not sleep over
there.
Ms Lauren Poole
48. Ms Lauren Poole is the first respondent’s second daughter. She is 23 years
old and stays at the Retreat property, where she has li ved her whole life,
save in 2022, when she lived at her father's house in Goodwood.
49. David was her mother's partner from when she was four or five years old, but
she has no specific recollection about when they had met. He was said to be
her mother's “friend". When she was in junior school, David would fetch her
from school. They also visited him at his house in Fairways before he moved
to their house in 2011. Ms Lauren Poole had no knowledge of David living at
Ms Louw’s property.
50. David was a father figu re to her , and they were close. Ms Lauren Poole
believes that David lived at the Retreat property, as he was at their house "a
lot”. Until 2014 or 2015, when David travelled, he brought her airport food, as
he often had to travel by airplane.
51. Ms Lauren P oole also does not know where David was when the Covid
lockdown commenced in March 2020. She thought that he was working ,
because he was not at their house at that time. She was studying online for
her first year of university. She could not give a definit ive answer as to how
many times David was at the Retreat property in 2020. She was asked what
was the longest time that he was away from their house in 2020, but she
could not remember. She saw David a few weeks before he left for the final
time, at the Re treat property , when he was doing business with one of his
friends.
Mr Ricardo Masimela
52. Mr Ricardo Masimela is David’s son. After he matriculated in Graaff -Reinet,
he lived at the Northpine property from 2002 or 2003 with David, Ms Feroza
Louw, and his half-sisters, Natalie and Melissa, for approximately three years.
He returned to Graaff -Reinet after he wr ecked a vehicle belonging to his
father.
53. Mr Masimela testified that David and the first respondent stayed together
after the divorce between David and Ms Louw in 2007. He met the first
respondent in 2009 or 2010. David stayed with him and his brother, Ri ley, at
Fairways at that time, but for less than a year. When they vacated Fairways,
David and Riley Masimela moved to the Retreat property. Riley even tually
moved to Johannesburg for employment.
54. Mr Masimela testified that David stayed at the Retreat property until he died
in November 2020 , but visited Ms Natalie Louw and Ms Melissa Louw
regularly at the Northpine property. He would sometimes sleep over at the
Northpine house. When he was asked how David spoke of Ms Louw, Mr
Masimela testified that David did not speak bad about her, even though they
were divorced. When David stayed over at Northpine, he continued to share
a bed with Ms Louw.
55. Mr Masimela admitted that when he deposed to his affidavit for purposes of
these proceedings, he incorrectly recorded on oath that Mr Riley Masimela
was David's biological child, when he knew since the early 2000's that this
was not the case.
The first respondent
56. The first respondent acknowledged that David continued to live at the
Northpine house after he and Ms Louw were divorced in July 2007. She
testified that David moved from the Northpine house and resided in Fairways
for approximately three years but could not say when he left the Northpine
house. After living at Fairways for approximately three years, David moved in
with the first respondent. He did so under the pretence that he was a boarder.
When the first respondent and her husband divorced, she became the sole
owner of the Retreat property.
57. The first respondent's former husband, from whom she was divorced in 2008,
and her children, were also living in the Retreat house. The first respondent's
ex-husband vacated the Retreat property in 2012. The version of David being
a boarder aligns with the evidence presented by Mr Winston Moolman, who
testified that after August 2013, when David had become the registered
owner of the Retreat property, he (David) was living in separate quarters from
those occupied by the first respondent and her children. David had a bed and
a black computer bag in his own quarters.
58. The first respondent did not give details, either in her affidavit or in her oral
evidence, as to what the living arrangements were at the Retreat prope rty.
This is a crucial gap in her case . She did testify that David was living in a
“separate entrance ” at the Northpine prope rty when he was present at the
latter property, but Ms Louw, her children , and some of the other witnesses
testified that David lived in the main bedroom at the Northpine house and
shared a bed and a bathroom with Ms Louw when he was there.
59. The first respondent testified that she and David had a romantic, sexual, and
loving relationship from 2012 onwards, but that she would not marr y him
because he was too possessive for her liking. He restricted her friendships,
her going to church, and her going to work, a nd he regularly checked up on
where she was.
60. When David moved in with the first respondent, they agreed that he wou ld
pay her a rental of R1 500 per month for his accommodation. He made
payment of such rental until he became the owner of that property on 29
August 2013, from which time it was agreed that he would use those funds to
pay the municipal rates on the property . The firs t respondent admitted in
cross-examination that David did not pay the municipal account regularly. He
fell behind and she had to make more than one loan to pay it.
61. The R1 500 payment was his only financial obligation in his relationship with
the first respondent; and he did not diligently comply with it. He ceased
making payment of th e municipal rates account on the property at least six
and a half months before he died. The first respondent admitted that when
the Retreat house was registered in David’s name, he did not contribute to
the household. He only had to pay the municipal rates account on what was
then his own property. She testified that David "would at time buy food and
David would take us out a lot" but gave no detail or substance to these
allegations, even when she was examined by her own counsel. The first
respondent was the one who bought food and clothing for the household.
62. The first respondent testified that David lived with her at the Retreat property
from 2012 until he passed away in 2020. She testified that "It was only during
the Covid, the last when he got sick when he said he couldn't but as far as I
know we were together until he passed away, although he ·wasn't physically
there with me at the time because he was in hospital”.
there with me at the time because he was in hospital”.
63. The first respondent became angry with David in 2017, 2018 and 2019, when
(so she testified) she had repaid him a loan. They however remained in a
relationship until his death in 2020. She also testified that David regularly
went away for his work, often fo r a week at a time, when they would be in
telephonic contact. The only evidence given by the first respondent about
David’s emotional supp ort of her w as the following : “ Yes, we did have
emotional support. David was a talker and he stimulated me in that way . We
would go out. Ja, we had a family life like normal when David was there ... I
didn't have any suspicion that he did not love us anymore, because that is
what he portrayed towards us".
64. The first respondent testified that David was at her house in 2019, when she
turned 50 years old. She did not have a birthday part y. The only other
evidence given by the first respondent about reciprocal duties of support,
when asked to explain it in cross-examination, was the following:
“MR VAN RENSBURG: All right. Now you say in the affidavits which you filed before
the Court . You say quite a few times that you were life partners and that you
undertook reciprocal duties to support. What is a reciprocal duty of support?
MS POOLE: So in a relationship, whe n I got married the first time my husband paid
all my accounts and I bought the food . The same was with Dav id. It could be
emotional support, it could be physical support, it could be any kind of support which
I received from David in my relationship with him.
MR VAN RENSBURG: He supports you and you support him?
MS POOLE: Correct.”
65. David had a good relationship with the first respondent's children, and h e
helped with the driving of the children when he was in Cape Town . His
relationship with Ms Ashleigh Poole soured towards the end of his life.
66. When the first respondent was asked about the evidence from Ms Feroza
Louw to the effect that a life partnership in fact had continued to exist
between Ms Louw and David after their divorce, the first respondent testified
that she had not been aware of it at all. She said she was shocked to learn of
the ongoing relationship with Ms L ouw, as David had told her at the time of
the ongoing relationship with Ms L ouw, as David had told her at the time of
the divorce that "there will never ever be a Feroza and a David ”. David told
the first respondent that he only went to the Northpine house to support his
children. The first respondent admitted , however, that David went to the
Northpine property also to do maintenance and renovation work , as he told
her that he remained a co-owner of that property.
67. By 2020, David continued to go away for his work on a regular basis. This
continued even during the lockdown period. The first respondent could not
give details of the work that David was doing when he was away . The only
evidence that the first respondent could give about David living with her at the
Retreat house in 2020 was that he went away with Riley Masimela; Riley’s
young child, and Riley's mother. David asked the first respondent to buy an
educational gift worth R300 for Riley ’s child. He gave her the cash and she
bought it, as David was away for work. When David came to collect the gift,
he stayed for the night - this was in October 2020.
68. David t hen went away and the first respondent saw him again , for the last
time, on 7 or 8 November 2020. He had contra cted Covid and decided to
stay in Northpine with Ms Louw and his daughters, allegedly to isolate .
According to the first respondent David did not, however, believe that Covid
existed. No explanation was given as to why he did not isolate at the Retreat
house. The first respondent could not explain why, when David became ill,
he did not come to her as the person who, according to her, was his life
partner. She persisted with a version that he wanted to be close to his
factory, which was what he allegedly told her.
69. The first respondent communicated with David telephonically and via
Whatsapp when he was ill and before he died. She learnt of his death on the
afternoon of 20 November 2020, from Mr Riley Masimela. Some of David’s
clothing remained at the Retre at property. She testified that the photos of
clothing that she had attached to her affidavit were of David’s clothing that
she had bought for him. The photos were taken around the time of his death.
she had bought for him. The photos were taken around the time of his death.
70. In cross -examination it was put to the first responde nt that , contrary to her
own evidence, her daughters had testified that David was no longer living at
the Retreat property in March 2020, when the hard lockdown commenced.
The first respondent did not deny this but was adamant that David ''was at the
house during hard lockdown and afte rwards". When pressed in cross -
examination, she back -tracked and testified that he "slept there for one, two
nights but he was on that side [that is, in Northpine] most of the time
according to my recollection " and "David wanted to be near his workshop, so
he stayed at the Northpine house during that time ". She then denied that
David was at her house "all the time" during the hard lockdown. She also
admitted that David was not at the Retreat property during the first four weeks
of the hard lockdown.
71. The first respondent admitted in cross -examination that David had lied to her
from the time they first met. He told her he was divorced at the time , when
she knew that not to be true. He lied to her when he told her he was travelling
for work, when it transpired that he simply went to the Northpine property.
The first respondent accepted that David's living arrangements with Ms Louw
were unacceptable to her, as she thought David had a relationship only with
her (the first respon dent). Her religious convictions were not compatible with
David’s conduct in this regard. The first respondent accepted that David lied
to her about the life he continued to live with Ms Louw. Tragically, the first
respondent acknowledged that if the vers ion of Ms L ouw and her daughters
about the life that David lived with them was to be accepted as correct, then
David "was a big fat liar".
72. When the first respondent was asked why she did not celebrate David's
sixtieth birthday with him, she testified that he wanted to be with his children ,
and his daughters arranged a tea table for him. David did not inform the first
respondent that Ms Louw and various other persons were also at his birthday
party. The first respondent acknowledged that David was dishonest with her
about these facts.
73. The first respondent could not explain why David went to Tygerberg Hospital,
73. The first respondent could not explain why David went to Tygerberg Hospital,
instead of a hospital nearer to the Retreat property. She could also not
explain why the hospital accounts were sent to the Northpine property
address instead of the Retreat property. He also caused the municipal
accounts for the Retreat prope rty to be sent to the Northpine property
address. The first respondent admit ted that this indicate d that David still
considered his home to be at Northpine : David also chose the Northpine
property as his address for correspondence relating to his Allan Gray
investments. The same was the case with his FNB wealth bank statement s
and his Capitec bank statements , his mortgage bond statements for SA
Homeloans, demands for the payment of medical accounts , a radiology
account, the account for the day he went to the Mediclinic before going to
Tygerberg Hospital, a pathologist's account, and his pension fund documents.
The first respondent admitted that the addresses on the correspondence was
a strong indicator that David considered his home to be at Northpine, and not
at Retreat with her.
74. She also admitted that the version of the Louw family, that David had a life in
Northpine, was the truth. She testified that she was “totally fed up with David
... Because he was procrastinating on transferring my house, which the loan
agreement tha t he had was paid in full to him. So I got fed up of him yes
because I realized that he was procrastinating on that."
75. The first responde nt did not know that the Northpine property had been
awarded to Ms L ouw as her property in the divorce decree of 2007. The first
respondent thought that David retained a 50% ownership thereof, which is
what he had told her. The first respondent acknowledged that David also lied
to her about the Retreat property. She admitted seeing a written agreement in
terms of which he tried to sell two -thirds of the Retreat property to his
daughter Sandre Maart’s husband, and his son Riley during Jule or July
2020. The first respondent alleges that she and David had an oral agreement
that the property would be returned to her. The fact that David tried to sell the
Retreat property to Sandre's husband and to Riley indicates that no such oral
Retreat property to Sandre's husband and to Riley indicates that no such oral
agreement existed as far as he was concerned.
76. The first respondent and David were involved in a clothing business together,
but she testified that he cheated her with money. Even when he received
R240 000 into his bank account from that business venture, he did not make
payment of hi s obligation of R1 500 per month for the municipal rates and
taxes.
77. The first respondent admitted that she and David had "loud voice arguments”,
and David swore at her. She considered leav ing him when he sent
“gangsters” into her home, just prior to Co vid (i.e. , before March 2020), to
''fetch a packet ”. David also arranged that money be given to the se
“gangsters” at the first respondent's home , and she had to keep the
gangsters company while they waited for the money to arrive. The first
respondent believed that this showed that David did not have respect for her
and her daughters , or care d for their safety . The first respondent admitted
that this meant that David did not consider their relationship to be a
permanent life partnership. She testified as follows:
"MR VAN RENSBURG: And he didn't care for your safety?
MS POOLE: ·correct.
MR VAN RENSBURG: Is that normal for a life partnership?
MS POOLE: No, it is not.
MR VAN RENSBURG: Isn't that an indication that he didn't consider it a l ife
partnership?
MS POOLE: If I reflect on that incident, yes.”
78. The first respondent did not know that there was a memorial service held for
David by the Louw family after he died. She only knew about the funeral, and
she did not go, because David’s daughter, Ms Natalie Louw, had told her not
to come. The first respondent alleged that there was a memorial service at
her house, attended by seven people, but it was "informal" and "unplanned";
and she did not even tell her own children or David’s children about it. She
could not show a any document, or even a photo , to prove tha t there was
such a service. The first respondent alleged that "we just said a few words ,
that is all" . The alleged memorial service had not been mentioned n her
affidavits, and she only mentioned it i n court after she had discussed the
evidence with her daughter the night before she was to take the stand.
79. The first respondent did not deny that David came to her house more often at
the beginning of the relationship, than at the end. She could not show a
single communication where David made an expression of love to her. She
could not say whether or not he loved her.
Ms Sandre Maart
80. Ms Maart is David’s daughter. She only learnt this about 16 months before
his death , although they had known each other since her childho od. They
were close, and confided personal issues with each other.
81. David told Ms Maart that he was no longer in a relationship with the first
respondent. This happened at the time when he wanted Ms Maart's husband
and Riley Masimela to pu rchase the Retreat property ( in June or July 2020).
The first respondent would have received none of the proceeds of the sale.
David told Ms Maart that he only went to the Retreat house so that the first
respondent would not get too comfortable there.
Mr Winston Moolman
82. Mr Moolman and David were best friends from 1992 until David’s death.
They saw each other regularly. David often went on road trips , and as far as
Mr Moolman knew Ms Louw would pack his suitcase for him. He continued to
regard Ms Louw a s David’s wife. The Northpine prope rty, where the Louw
family resided, is approximately 100 metres away from Mr Moolman 's house.
83. When Mr Moolman was asked to comment on whether David and the first
respondent had a life partnership with reciprocal duties of support at the time
of his death, he denied it, saying: "Most definitely not. Not in a like similar to a
marriage union, like living together for an extended period of time, no ". Mr
Moolman said that he knew this because he and David shared intimate
details with each other. David did tell Mr Moolman in 2017 that he and the
first respondent had sexual relations.
84. Mr Moolman is an architectural technologist, able to draft and submit plans to
the municipality for approval. He went to the Retreat prope rty to draft a
building plan after August 20 13, when David was already the registered
owner. David told Mr Moolman that he had purchased the Retreat property
and he wanted to do e xtensions to th e house. He said that "the previous
owner is like on a temporary basis still also there now as a tenant ”. When Mr
Moolman inspected the Retreat property to take site dimensions , he saw that
David had separate quarters from the first respondent and her children. That
appeared to remain the case on the other occasions that he went to the
property.
85. In 2020, David was residing in Northpine. Mr Moolman disagreed with the
evidence of the first respondent that David was only visiting his children at the
Northpine house. Ms Natalie Louw did not stay at the Northpine property at
that time, and Ms Melissa Louw at some stage also moved out and resided in
Delft. More often than not David and Ms Louw were alone in the house . Mr
Moolman confirmed that David did not stay in a separate section at the
Northpine property. He slept in the "master bedroom".
86. Mr Moolman confirmed that David loved women, and that he had various
“affairs”. He knew of six women that David had affairs with across the
Western Cape and in G qeberha, including the first respondent . Those affairs
continued "years and all the time. There was always someone.'' During 2020,
however, he was living at the Northpine property.
87. Mr Moolman arranged the memorial service for David at the Northpine house,
because Ms Louw was devastated, and she asked Mr Moolman "sort of take
over things." He did not communicate with the first respondent, as he did not
think about it.
88. In cross -examination, Mr Moolman said that David and Ms Lo uw were
divorced in 2007, but that David continued to refer to her as his "wife". David,
divorced in 2007, but that David continued to refer to her as his "wife". David,
due to rel igious beliefs, did not subscribe to divorce , but believed that one
remained married until death.
89. When Mr Moolman was asked in cross -examination if David and the first
respondent ever had a relationship, Mr Moolman answered as follows: "A
relationship is a very wide word ... You get your intimate, you get your
temporary, you get your merely sexual. So I know of a woman in PE who he
also had a relationship with... All the time ... So I do not know what you mean
by relationship ”. It transpired that David h ad a relationship that lasted 10
years with a woman in G qeberha. When David was in there, he stayed at her
house. Their relationship lasted until David’s death. He went there at least
once every two months; and he saw her whenever he was in the Eastern
Cape.
Ms Irezaan Taliep
90. Ms Taliep is Ms Louw's sister. She was closer to David than to Ms Louw.
David, from the time that he asked his father -in-law to marry Ms Louw in
1988, promised to look out for the best interests of Ms Taliep.
91. Ms Taliep understood that David’s relationship with the first respondent was
more business related. She knew that David was living in Notthpine in the
weeks before he went to hospital. As far as she knew, David had an office in
Fairways as well as at the Retreat property. He had his family home at the
Northpine property, where he was living with Ms Louw, and where they held
their celebrations, including Christmas.
92. In 2015, Ms Taliep and her husband wanted to sta rt a new business venture,
but needed funding. Business Partner s, the finance house, was willing to
provide funding, but collateral security was needed. David agreed to put the
Retreat property up as collateral security for that funding. Ms Taliep knew that
he had purchased the Retreat prope rty from the first responde nt; and how
much he had paid for it. David told Ms Taliep that the first respondent had a
two-year option to purchase back that property, but that option had lapsed by
the time Ms Taliep and David discussed putting the property up as collateral
security in 2015.
93. In the last days before David died, Ms Taliep and Ms L ouw were together at
the hospital. David did not mention the first respondent.
Mr Dean Swartz
94. Mr Swartz knew David from 2007, when he visited his home at Northpine. He
knew him until he died in November 2020. Mr Swartz's parents are
deceased, and David was like a father figure to him.
95. Mr Swartz is in a relationship with David's daughter, Melissa, with whom he
has a child. They have lived together at the Northpine property since 2017.
Before 2017, Mr Swartz lived a short distance away from the Northpine
property, and he regularly visited the re, where he would find David present.
Mr Swartz also worked for David and they had a good relationship.
96. David often went away for work (at most for a wee k or two), but then returned
to his home at Northpine, where he lived together with Ms Louw in the main
bedroom. In cross -examination, Mr Swartz testified that that he saw David
and Ms Louw sitting down to eat together at the Northpine property. David
made jokes, gave Ms L ouw hugs, and kissed her when he le ft the house.
When David fell ill with Covid, Mr Swartz found him in the main bedroom,
where he was lying ill, before Mr Swartz and Ms Louw took him to hospital.
97. The “separate entrance” at the Northpine property was occupied, since about
2019 or 2020, by the nanny of the child that Mr Swart z had with Melissa.
David therefore could not “isolate” there.
98. Mr Swartz confirmed the evidence about the tea party held for David’s sixtieth
birthday. Various pers ons were there, but the first respondent and her
children were not. Mr Swartz first learnt of the existence of the first
respondent and the Retreat property at David’s funeral. David never spoke
about the first respondent or her children to Mr Swartz.
Mr Joshua Williams
99. Mr Williams is in a permanent relationship with Ms Natalie Lauw, David’s
daughter. David was like a father to him, and also supported him in a
business venture. Before David’s death, Mr Williams and Ms Natalie Louw
moved in together in B ellville, where they stayed until David’s death in 2020.
They then moved to the Northpine property.
100. From 2018 to 2020 David lived at the Northpine house - Mr Williams knows
this as he visited there often, as did his partner, Natalie. This happened both
over weekends and during the week, when they had suppers there with David
and Ms Louw. David wo uld often be there watching television, waiting for
lunch. He kept three vehicles there, and had a garage full of too ls. Mr
Williams denied the first respondent 's evidence that David went to the
Northpine property to visit his children, as Natalie lived with Mr Williams in
Bellville. David often visited them in Bellville, where he had breakfast, before
going to work.
101. Mr Williams kn ew nothing about a relationship between David and the first
respondent. He only heard of the first respondent for the first time after
David’s death.
102. Mr Williams attended David’s sixtieth birthday pa rty, and named the persons
who were there. The first respondent and her children were not there.
Ms Natalie Louw
103. Ms Natalie Louw is David’s daughter. From 2018 to 2020 she stayed in
Bellville with her partner, Mr Josh Williams. They now reside at the Northpine
property, which is the house where she was raised. David had asked Natalie
and Mr Williams to move back to Northpine in 2019, where they could share
the bond payments and the household expenses. He asked the same of Ms
Melissa Louw.
104. When Natalie and Mr Williams lived in Bellville, she went to the Northpine
property most days, and slept over there regularly.
105. As far as Natalie was concerned, David continued living at the Northpine
property after his divorce from Ms Louw. Their lives did not change after the
divorce; and the divorce became the subject of a somewhat crude joke of
David about himself, which was even made to third parties. David paid most
of the household expenses at the Northpine property.
106. David was at home in Northpine when Ms Melissa Louw went into labour with
her baby, and he took her to hospital. He spent a lot of time with the child.
Natalie denied the allegation that David went to the Northpine p roperty to
isolate because of Covid. He did not isolate. The granny flat where he was
alleged to be isolating was occupied by the nanny of Ms Melissa Louw's
young child.
107. Shortly after David’s death, Natalie learnt that the first respondent had sent
messages to his cell phone. The messages stated that the first respondent
and David had been seeing each other, and it was upsetting her mother. Ms
Louw paid the medical bills after David’s death.
108. Natalie confirmed the details regarding David’s sixtieth birthday party, as well
as his memorial service, and Mr Moolman’s involvement therein.
109. David had a life policy with Allen Gray, of which Natalie and her sister Melissa
were the beneficiaries when he died.
Ms Melissa Louw
110. Ms Melissa Louw is also David’s daughter. She regarded him to have been in
a relationship with Ms Louw, and not with the first respondent. When David
and Ms Louw divorced in 2007, Melissa was 14 years old. She only found out
about the divorce later. None of the living arrangements changed after the
divorce. David and Ms Feroza Louw continued to share a bedroom and a
bathroom. His clothes, tools , and documents remain at the Northpine
property to this day. He also received his mail there.
111. David paid, amongst other things, most of the household expenses, including
groceries, but Ms Louw also contributed. She was always employed. She
paid for the cleaning and the maintenance of the Northpine house. Melissa
knows that David paid the municipal bills, as she drove him to the
municipality at Brackenfell for that purpose. He also paid for the cars that he
and Ms Louw drove.
112. When Melissa’s baby was born, both her parents came to the hospital.
113. She said that when David went away for work, he could not have gone to the
first respondent, as her mother, Ms Louw, prepared food for him for the long
road.
114. Melissa denied the allegation that David only came to the Northpine property
to visit his daughters; or that he came the re to isolate because of Covid. She
was adamant that he lived there. She confirmed the evidence of previous
witnesses about David’s sixtieth birthday party.
115. When David was taken to the day hospital in November 2020 because of
Covid, he had to wait a long time before he could be assisted. Ms Feroza
Louw waited there with him. Eventually, when it took too long, Ms Louw took
him to the Medi -Clinic, and thereafter to Tygerberg Hospital. Melissa
confirmed the evidence previously given in relation to the memor ial service
after David’s death.
Ms Feroza Louw
116. Ms Louw’s evidence was essentially that she and David were together for 42
years by the time he died. They met when she was 14 , and he was 19. Ater
their divorce, they continued living together as they did before the divorce ,
sharing a bed. David did not believe in divorce, but Ms Louw could not accept
his repeated affairs with other women.
117. In the final decree of divorce, the Northpine property was awarded to Ms
Louw as her sole property.
118. After the divorce , David continued to perform his duties as the man of the
house. He bought the food for the house; and Ms L ouw bought some of the
clothing. On Sundays, they went and bought koeksisters, came home, made
coffee, and then read the Rapport and Sunday Times ne wspapers together.
Their lives were so unchanged that even Ms Louw's sister, who lived next
door, did not know about the divorce until Ms Louw told her about it.
119. Ms Louw gave extensive evidence as to David’s involvement with Melissa’s
baby, and other aspects of their shared life together. At the time of his death,
David's personal possessions and documents were still at the Northpine
property. This included his briefcases with his business documents. When
David worked away from home, Ms Louw sometimes accompanied him on
such trips. The longest he ever went away for work was three weeks. They
regularly spoke on the phone. He would bring souvenirs from the places and
the hotels he visited , and she packed his suitcase and made food for him.
They went on ann ual holidays. David bought a car for her. During the hard
national lockdown in 2020, David was home at the Northpine property.
120. Ms Louw learnt in 2017 th at David had purchased the Retreat property from
the first respondent. Ms Louw was unhappy about that purchase, as there
was a mortgage bond registered over the Northpine property, which David
was paying. There was no mortgage bond on the Retreat property.
121. She admitted that David had numerous extra -marital relationships, which
continued after their divor ce. She accepted this as part of her life with him.
He was the love of her life, and she still cries when she thinks about him.
122. Ms L ouw went to the hospital every day while David was there. She sat
outside his ward, despite the fact that she could not se e him, and asked the
nursing staff to tell him that she was there. She saw his body after he had
died, and paid the medical bills . Ms Louw confirmed, substantially, the
evidence previously given in relation to the memorial service.
123. On a consideration of the oral evidence as a whole, I cannot find that the first
respondent and David were permanent life partners at the time of his death .
Insofar as those close to Ms Louw testified that they regarded there to have
been a life partnership between her and Da vid (I make no finding in that
respect), that does not remove the obstacle for the first respondent that i t is
clear that the first respondent and David ha d very different ideas as to the
nature of their relationship.
124. I have much sympathy for the first re spondent – and, for that matter, for Ms
Louw – as it appears on an objective consideration of the evidence as a
whole that David had consistently been untruthful to both of them (and other
women) over the years, despite his professed religious beliefs and dislike of
lies. He kept up appearances for his own comfort and benefit. Whatever the
first respondent’s belief about her relationship (and one cannot ignore the fact
that she herself may, perhaps naively, have closed her eyes to what was
going on in her dealings with David, given her concessions under cross -
examination), this was not shared by David. In these circumstances, the first
respondent cannot be regarded as David’s spouse for the purpose of the
distribution of his estate under the ISA.
A simulated transaction?
125. As one of the defences against the eviction application, the first respondent
alleges that David obtained ownership of the property by way of a simulated
transaction, that is, a purported sale and transfer concluded purely for the
transaction, that is, a purported sale and transfer concluded purely for the
purpose of generating funds for David. The first respondent admits that she
received a portion of the purchase price to pay of her debts but says that she
repaid the amount to David in instalments. She alleges that she had passed
,
ownership of the property to hi m effectively as security for a loan that he
would give her. There was an informal agreement between them that David
would have the pro perty retransferred into the first respondent’s name when
she had repaid the loan.
126. In relation to the registration of t he property in the deeds registry at Cape
Town, the first respondent seeks an order that directs the registrar of deeds to
cancel the deed of transfer in terms of which the deceased estate is
registered as the owner of the immovable property, under section 6(1) of the
Deeds Registries Act 47 of 1937 ,15 and a declaratory order in terms of which
the previous title deed - in terms of which the first respondent owned the
immovable property - is revived.
127. A simulated transaction is essentially a dishonest transac tion, because the
parties do not intend it to have the legal effect it purports to convey. The
purpose is to deceive by concealing the real transaction. In such a case,
substance rather than form determines the nature of the transaction:16
“Now, as a gen eral rule, the parties to a contract express themselves in language
calculated without subterfuge or concealment to embody the agreement at which
they have arrived. They intend the contract to be exactly what it purports; and the
shape which it assumes is what they meant it should have. Not infrequently,
however (either to secure some advantage which otherwise the law would not give,
or to escape some disability which otherwise the law would impose), the parties to a
transaction endeavour to conceal its real character. They call it by a name, or give it
a shape, intended not to express but to disguise its true nature. And when a Court is
asked to decide any rights under such an agreement, it can only do so by giving
effect to what the transaction really is; not what in form it purports to be. … The
Court must be satisfied that there is a real intention, definitely ascertainable, which
Court must be satisfied that there is a real intention, definitely ascertainable, which
differs from the simulated intention. For if the parties in fact mean that a contract
15 Deeds Registries Act section 6(1): “ Save as is otherwise provided in this Act or in any other
law no registered deed of grant, deed of transfer, certificate of title or other deed conferring or
conveying title to land, or any real right in land other than a mortgage bond, and no cession
of any registered bond not made as security, shall be cancelled by a registrar except upon an
order of Court.”
16 See Zandberg v Van Zyl 1910 AD 302; Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2)
SA 710 (A).
shall have effect in accordance with its tenor, the circumstances that the same object
might have been attained in another way will not necessarily make the arrangement
other than it purports to be. The inquiry, therefore, is in each case one of fact, for the
right solution of which no general rule can be laid down.”17
128. A consideration of the evidence on record in this matter reveals that the sale
of the house to David was not a simulated transaction. There was no reason
for David and the first respondent to " conceal its real character" . As
indicated, if a transaction lacks commercial rationality and was only set up to
evade a peremptory rule of law, then the underlying agreement would be
regarded as simulated. There was none of this present in the transaction
through property was registered into David’s name. There was a genuine
purchase and sale agreement, based on real value which changed hands
between the first respondent and David.
129. In Commissioner for the South African Revenue Service v NWK Lt d,18 the
Supreme Court of Appeal held as follows:
"In my view the test to determine simulation cannot simply be whether there is an
intention to give effect to a contract in accordance with its terms. Invariably where
parties structure a transaction to achieve an objective other than the one ostensibly
achieved they will intend to give effect to the transaction on the terms agreed. The
test should thus go further, and require an examination of the commercial sense of
the transaction: of its real substance and purpose. If the purpose of the transaction is
only to achieve an object that allows the evasion of tax, or of a peremptory law, then
it will be regarded as simulated. And the mere fact that parties do perform in terms of
the contract does not show that it is not simulated: the charade of performance is
generally meant to give credence to their simulation "
130. Whether a particular transaction is a simulated transaction is therefore a
130. Whether a particular transaction is a simulated transaction is therefore a
question of its genuineness. If it is genuine the court will give effect to it, if
not, the court will give effect to the un derlining transaction that it conceals.
17 Zandberg supra at 309.
18 2011 (2) SA 67 (SCA) para 55. My emphasis.
Whether it is genuine will depend on a consideration of all the facts and
circumstances surrounding the transaction.19
131. It is common cause on the papers that the first respondent and David
concluded a written agreement of sale for the prope rty at a purchase price of
R560 000.20 It is also common cause that the property was transferred into
David’s name after proper conveyancing documentation was signed by both
parties, including a transfer duty declaration to the South African Revenue
Service. The first respondent attracts the onus to prove the alleged "real
intent" of the transaction , and she has not met that onus. The transaction
pursuant to which David became the registered owner of the property was
neither simulated nor a sham.
132. In accordance with the common law pertaining to the abstract theory of
transfer, the requirements for the passing of ownership are twofold, namely
delivery - which in the case of immovable property is effected by registration
of transfer in the deeds office - coupled with a so -called real agreement. The
essential elements of the real agreement are an intention on the part of the
transferor to transfer ownership, and the intention of the transferee to become
the owner of the property. Although the abstract theory does not require a
valid underlying contract, ownership will not pass despite registration of
transfer if there is a defect in the real agreement. 21 In Wilken v Kohler 22 it
was held that, where both parties have performed in accordance with the
provisions of an agreement, albeit unenforceable, the purpose of the
transaction has been achieved and there is no reason to interfere with the
existing state of affairs.
19 Roshcon (Pty) Ltd v Anchor Aut o Body Builders CC and others 2014 (4) SA 319 (SCA) para
27.
20 The first respondent initially did not make the agreement available to the applicant. According
to the respondents' atto rney in answer t o a notice under Rule 35(12) : "... If the sale and the
amount is not in dispute then please let us know what the relevance of the offer to purchase
is. It is not clear how the applicant's request for a copy of the offer to purchase takes this
matter any further. The request therefore fell outside of the scope of rule 35(12) ... "
21 Legator McKenna Inc. and another v Shea and others 2010 (1) SA 35 (SCA) para 22.
22 1913 AD 135.
133. In the present matter, there was no fraudulent intent in the real agreem ent
concluded between David and the first respondent. It is common cause that
both parties performed in terms of the agreement. The first respondent does
not provide a reasonable explanation as to why she waited 8 years before
seeking to reacquire ownership of the property . The delay from 2013 up to
this litigation in fact point to the real intention between the parties: Davod
intended to take ownership of the property , and the first respondent intended
to pass it to him.
134. The first respondent says that s he made payment s to David to repay the
alleged loan owed to him. She does not explain why the loan agreement was
not reduced to writing at the same time as the sale agreement in relation to
the property. The consequences of these related transactions cou ld, after all,
have been serious if things went awry. By the time Dawid died the first
respondent had, on her version, contributed about R660 000 towards the
operational expenses of David’s company (Mac Con All Works (Pty) Ltd )
during the period 2013 to 2 016. These amounts constitute, at best for the
first respondent, a loan against the company. The payments were not made
to David’s personal estate.
135. In summary, the important requisites for the sale of the property were all met,
namely: that one party was to sell; and the other to buy ( animus); that there
was a defined and ascertainable thing which was sold and purchased ( merx);
and that t here was a fixed price in money ( pretium).23 The informal
agreement on which the first respondent relies in her answ ering affidavit
therefore did not result confer any rights to the property upon the first
respondent.
136. The applicant raises a further issue in relation to the first respondent’s delay
in seeking to enforce her rights. The first respondent's version is that she
repaid the amount of R549 017.86, as a loan, to David by 3 January 2017.
repaid the amount of R549 017.86, as a loan, to David by 3 January 2017.
This is based on calculations set out in her initial claim against the deceased
23 Carriem v Fareed [2008] ZAWCHC 48 para 21.
,
estate. The alleged claim for the re -transfer of the immovable property to the
first respondent w ould, at best for her, be a debt as contemplated by the
provisions of sections 11 24 and 12 25 of the Prescription Act 68 of 1969. The
right to claim registration of transfer is a debt as envisaged in section 10(1) 26
of the Act.27
137. That debt became due, at the l atest, on 3 January 2017 when the first
respondent had repaid the alleged loan. The debt prescribed on 2 January
2020, which is three years after it became due. In terms of the dictionary
meaning of “debt” accepted in Makate v Vodacom Ltd 28 an obligation to pay
money, deliver goods, or render services is included under the definition , and
would prescribe within three years under the Prescription Act. It is an
accepted principle in our law that the equivalent of delivery of movables is, in
the case of immo vable property, registration of transfer in the deeds office. A
claim to transfer immovable property in the name of another is thus a claim to
perform an obligation to deliver goods in the form of immovable property. It is
thus a “debt” in the dictiona ry s ense accepted in Makate.29 By the time,
therefore, of the institution of the counter -application, the claim to retransfer
of the property had already prescribed.
138. In all of these circumstances, the first respondent cannot succeed in her
claims that the registration of transfer of the immovable property into David’s
name is void ab initio , that she is the owner of the property, and that the
property is not an asset in his deceased estate.
Section 47 of the Administration of Estates Act
24 “Periods of prescription of debts”
25 “When prescription begins to run”
26 Prescription Act section 10(1): “ Subject to the provisions of this Chapter and of Chapter IV, a
debt shall be extinguished by prescription after the lapse of the period which in terms of the
relevant law applies in respect of the prescription of such debt.”
relevant law applies in respect of the prescription of such debt.”
27 Desai NO v Desai and others 1996 (1) SA 141 (A) at 146J -147A (taking into account the
qualification in Makate v Vodacom 2016 (4) SA 121 (CC) para 93 regarding the breadth of
the meaning given to “debt” in Desai).
28 2016 (4) SA 121 (CC) paras 82- 85.
29 eThekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) para 8.
139. A further defen ce on the papers is that the applicant has not complied with
section 47 of the Administration of Estates Act , which applies to the sale of
property of a deceased estate. It provides as follows:
“47 Sales by executor
Unless it is contrary to the will of the deceased, an executor shall sell property (other
than property of a class ordinarily sold through a stock-broker or a bill of exchange or
property sold in the ordinary course of any business or undertaking carried on by the
executor) in the manner and subje ct to the conditions which the heirs who have an
interest therein approve in writing: Provided that-
(a) in the case where an absentee, a minor or a person under curatorship is heir to
the property; or
(b) if the said heirs are unable to agree on the manner and conditions of the sale,
the executor shall sell the property in such manner and subject to such conditions as
the Master may approve.”
140. The immovable property in the present matter has, however, not been sold
yet. The applicant is hesitant to sell it until the unlawful occupiers are evicted,
when the applicant can take control of the property to sell it for its true market
value. The provisions of section 47 therefore do not find application at this
stage.
The eviction
141. The respondents have occupied the im movable property for more than six
months, and thus section 4(7) of PIE is applicable. It reads 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 gr ant 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 ma de available or can
reasonably be made available by a municipality or other organ of state or another
reasonably be made available by a municipality or other organ of state or another
land owner for the relocation of the unlawf ul occupier, and including the rights and
needs of the elderly, children, disabled persons and households headed by women.”
142. In terms of section 4(1) of PIE, only an "owner" of land,30 or the "person in
charge", may commence eviction proceedings against an unlawful occupier.
Given the finding as regards the ownership of the property, there is no
dispute that the ap plicant, as executor, is the person in charge of the
property.
143. The applicant contends that the respondents are "unlawful occupiers," as
defined in section 1 of PIE. In order to qualify as an "unlawful occupier”, who
may be evicted from the immovable prope rty, the applicant needs to show
that the respondents occupy the immovable property without the express or
tacit consent of the "owner"; and that they are "... without any other right in
law to occupy such land . . ."
144. There is no doubt t hat the respondent s do not have the consent of the
applicant to rema in in occupation of the property. I have found that the first
respondent has no right to the property on the basis f her counter -application.
Is it just and equitable that they be evicted? I have indicated that the property
will inevitably have to be sold to defray the estate’s expenses. Various
factors need, however, to be considered.31
145. The property has not yet been sold , and it is unclear when a sale transaction
will take place. Three women and a minor child reside at the property.
Although all three occupant respondents are employed, it must be borne in
mind that their monthly expenses are based on them not being required to
pay for accommodation.
146. On the other hand, the respondents have known since at least March 2024
that the applicant would be seeking their eviction so as to sell the property.
The long period of time which has elapsed from the time that notice was
given to the respondents, during which the respondents had ample
30 An "owner" of land is defined in section 1 of PIE, as "the registered owner of land."
31 See, for example, City of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012 (6) SA 294 (SCA).
opportunity to find a lternative accommodation, supports the argument that it
would be just and equitable for the respondents to vacate the property
without further undue delays.32
147. A court may only evict an unlawful occupier if it is ''just and equitable" to do
so and after con sidering "all the relevant circumstances". 33 Pursuant to the
provisions of section 26(3) 34 of the Constitution of the Republic of South
Africa, 1996, all relevant circumstances must be taken into account, before
an eviction order may be granted. In the present matter, the requirements of
section 26(3) of the Constitution find application pursuant to section 4(7)
of PIE.35
148. On the affidavits, the first respondent is employed as a planner for Cape
Union Mart, earning a salary of about R18 000,00 per month.
149. The second respondent is a student, currently studying towards an LLB
degree through UNISA. She works for a courier company at the Cape Town
International Airport, and earns a net salary of about R15 500,00 per month.
Her minor daughter resides with her at the property.
150. The third respondent recently graduated from the University of Cape Town
with a degree in Social Work. She is currently working as an administrative
clerk at a paddle boat company at the V & A Waterfront, and she earns a
gross salary of R8 000,00 per month.
151. The combined household income of the respondents is R40 000 per month.
They are all in good health. It is reasonable to accept that, with such an
income, the respondents will not be rendered homeless should they have to
vacate the property.
32 Taylor v Hogg [2018] ZAECGHC 64 (10 August 2018) para 15.
33 Section 4(7) of PIE.
34 "No one may be evicted from their home, or have their home demolished, without an order of
court made after considering all the relevant circumstances".
35 Occupiers of erven 87 & 88 Berea v De Wet NO 2017 (5) SA 346 (CC) para 41.
152. A just and equitable order does not mean that only the rights of the unlawful
occupier are given consideration. Those of the property owner should also
be taken into account. The wishes or personal preferences of the occupiers
are not relevant – they cannot choose to remain in the property that they are
occupying unlawfully, and a private owner has no obligation to provide free
housing.36
153. The respondents submit that an eviction order should not be granted in the
absence of a report from the City o f Cape Town. There is no such report filed
of record in the present matter. In Vacation Import (Pty) Ltd v Burmina and
others; Vacation Import (Pty) Ltd v Ngaleka and others,37 the court explained
that, even where a court reaches the conclusion that an ord er of eviction is
appropriate, the court cannot do so without the necessary report from the
municipality, as contemplated in section 4(7) of PIE. The court m ade this
finding in the context of an opposed eviction application in which the unlawful
occupiers had delivered answering affidavits and in which the applicant had
contended that its attempts to gather information were met with
uncooperative responses. The court noted as follows:
“[36] The deponent to the applicant’s founding affidavits testified th at the applicant’s
endeavours to gather pertinent information from the unlawful occupiers were met
with an uncooperative response. In my experience, perhaps not unexpectedly, that
is not uncommon in eviction cases. If, however, the unlawful occupiers are also
uncooperative with the City when it undertakes the mandated investigation, then
they will have only themselves to blame if the court does not take their interests
adequately into account in determining what is just and equitable in the
circumstances. But the necessary investigation must first be undertaken by the City
and properly reported on.”
154. The applicant submits, in response, that the Constitutional Court held in
Mathale v Linda38 that:
Mathale v Linda38 that:
36 Grobler v Phillips and others 2023 (1) SA 321 (CC) paras 36-44.
37 [2023] ZAWCHC 44 (3 March 2023). My emphasis.
38 2016 (2) SA 46 l (CC) para 50. See also Arendse v Arendse and others 2013 (3) SA 347
(WCC) para 45.
"Although there appears to be no absolute requirement for t he provision of
alternative accommodation before a court can order an eviction, the court, in
considering what is just and equitable, has an obligation to determine whether the
parties in question would be homeless. Indeed, a court should hesitate to grant an
eviction where homelessness would result."
155. The requirement of a report from the City is thus only compulsory in the
context of possible homelessness, as the City is the primary organ of state to
address homelessness, should an eviction be ordered. In the present matter
there is no suggestion that the respondents would not be able to find
alternative accommodation, given their employment status and income . The
property will have to be sold to allow the applicant to fulfil his duties as
executor under the Administration of Estates Act.
156. The respondents have, however, lived in the property for many years, and
they will need time to investigate and find other accommodation. As the
property has not yet been sold, I do not think that a period of 3 months a s
suggested by the applicant is appropriate. In my view, a period of 6 months,
reckoned from the end of April 2026, will be reasonable.
Costs
157. The applicant sought a costs order against the respondents. As the applicant
was the successful party, the gen eral rule is that costs follow the event. In
the present matter, however, the circumstances were somewhat unusual.
The respondents’ (and particularly the first respondent’s) predicament was
caused by David’s consistent dishonesty over the years. In thes e
circumstances, I think that fairness dictates that each party should pay their
own costs.
Order
158. In the premises, I grant the following orders:
1. The first respondent’s counter-application is dismissed.
2. The first to fourth respondents , and all those occ upying under them,
are ordered to vacate the immovable property situated at […] F[...]
Road, Retreat ( Erf 8[...] Cape Town) by no later than Saturday, 31
October 2026.
3. Should the first to fourth respondents, or any of those occupying under
them, fail to v acate the property by the date set out in paragraph 2 of
this order, the Sheriff of this Court or the Sheriff of the Magistrates’
Court or their deputies are authorized and directed to evict such
persons by Monday, 2 November 2026.
4. Each party shall, in re lation to both the main application and the
counter-application, pay their own costs.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr L. Jansen van Rensburg
Instructed by: Van Rensburg & Co. Attorneys
For the respondents: Ms A. Christians
Instructed by: Riley Incorporated