SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 62598/2018
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED:
DATE 16 MARCH 2026
SIGNATURE SM MARITZ AJ
In the matter between:
ISAAC MOGOBOSHENG SOMO APPLICANT
and
PRUDENCE MOKHABELA FIRST RESPONDENT
OTHER OCCUPIERS OF ERF 2[...] SECOND RESPONDENT
MAMELODI EXTENSION 3
EMPLOYEES ON ERF 2[...] THIRD RESPONDENT
MAMELODI EXTENSION 3
CITY OF TSHWANE METROPOLITAN FOURTH RESPONDENT
2
MUNICIPALITY
JUDGMENT
MARITZ AJ
A. INTRODUCTION
[1] This is an opposed application for the eviction of the First, Second and Third
Respondents and any person occupying through them, from the immovable
property known as Erf 2[...], Mamelodi Extension 3, Pretoria (“the property”),
brought under the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (“PIE”).
[2] The Applicant, the registered owner since 5 July 2018, seeks an order for
eviction together with a just and equitable date by which the property must be
vacated and, if necessary, a date upon which the eviction may be carried out.
The First Respondent opposes the application and has brought a conditional
counter-application seeking, inter alia, a declarator that she is the intestate
heir of the late Matuku Navel Sekati (“the deceased”) and an order declaring the
sale and transfer of the property to the Applicant to be invalid.
[3] At the hearing, counsel for the First Respondent requested that the matter be
referred for the hearing of oral evidence in terms of Rule 6(5)(g) of the
Uniform Rules of Court, limited to the narrow issue of whether a valid customary
marriage existed between the First Respondent and the deceased. However,
no case for such referral, nor any formal request for the hearing of oral
evidence in terms of Rule 6(5)(g), is made in the First Respondent’s papers. The
only reference to such a request appears in paragraph 5.3 of the First
3
Respondent’s heads of argument. For the reasons that follow, that request is
refused and the application for eviction succeeds.
B. COMPLIANCE WITH STATUTORY REQUIREMENTS OF PIE
[4] Before an eviction order may be granted, the Applicant must satisfy the Court
that the mandatory procedural requirements of PIE have been complied with.
Section 4(2) of PIE requires that the unlawful occupiers and the local
municipality be given written notice of the proceedings at least 14 days before
the hearing, in a form and manner prescribed by the rules. The notice must
inform the occupiers of their right to appear and oppose the proceedings and
to apply for legal aid, if needed.
[5] The Applicant complied fully with these requirements. The founding papers
included the prescribed notice in terms of section 4(2) of PIE as annexure “B”
(pages 001 -11 to 001 -15). On 29 November 2018 this Court granted an ex
parte order (pages 004 -1 to 004 -2) expressly declaring annexure “B” to constitute
the notice contemplated in section 4(2) of PIE and authorising the Sheriff to serve
it simultaneously with the notice of motion and founding affidavit (Annexure
“A”) upon the First to Fourth Respondents in accordance with Rule 4 of the
Uniform Rules of Court.
[6] The returns of service filed of record confirm that the Sheriff effected proper
service:
6.1 Return of Service on the First Respondent and other occupiers (bundle
pages 002-1 and 002 -2) (30 September 2018 served personally upon
the First Respondent);
6.2 Return of Service on the employees (page 002-3) (served on 30
September 2018);
6.3 Return of Service on other occupiers (served on 30 September 2018);
6.4 Return of Service on the City of Tshwane Metropolitan Municipality
(page 002-4) (served on 29 October 2018).
4
[7] Separate returns of service were filed for the Court Order itself on all four
respondents. All returns are dated, signed by the Sheriff and reflect service at
the property and at the municipality. The Fourth Respondent (municipality)
was therefore duly notified, as expressly required by s ection 4(2) of PIE.
Procedural compliance is accordingly beyond dispute, and the statutory
prerequisites for the granting of an eviction order under PIE have been satisfied.
C. FACTUAL BACKGROUND
[8] The deceased died intestate on 22 December 1999. His brother, Ernest
Mthata Sekati, was appointed executor of the estate on 10 January 2000
(Annexure “PM2” to the First Respondent’s answering affidavit). On 5 July 2018
the property was transferred to the Applicant pursuant to a sale concluded by the
executor. The Certificate of Confirmation of Transfer issued by the
conveyancer Margaretha Maria Markram, confirms the registration of transfer and
the purchase price of R60 000 (Annexure “IMS1” to the Applicant’s founding
affidavit). The Applicant paid the outstanding municipal arrears in order to
obtain a clearance certificate (Annexures “IMS2.1” to “IMS2.4”).
[9] The First Respondent has occupied the property since before the deceased’s
death. She alleges a customary marriage was concluded between herself and
the deceased on 9 August 1997. In support of this contention she attaches a
handwritten lobola delegation note recording the agreement between the
respective families and the payment of R8 000 (Annexure “PM1”), together
with two confirmatory affidavits (Annexures “PM4” and “PM5”). In the alternative
she alleges the existence of a permanent heterosexual life partnership
characterised by reciprocal duties of support. She presently resides on the
property with her adult daughter (29), the daughter’s fiancé (31), her son (31),
a granddaughter (6) and a grandson (15).
[10] The decisive evidence appears from the Applicant’s replying affidavit and
[10] The decisive evidence appears from the Applicant’s replying affidavit and
answering affidavit to the First Respondent’s counter -claim. Two lease
agreements concluded after the death of the deceased, during approximately
2007, between the First Respondent and members of the deceased’s family
5
(Annexures “RA1” and “RA2”), form part of the record. In terms of the
agreement marked “RA1”, the First Respondent and the members of the
deceased’s family concluded a lease agreement on or about 19 July 2007,
which agreement was reduced to writing at the offices of the South African
National Civic Organisation (“SANCO”). In terms of this agreement it was
recorded that the First Respondent leased the property and undertook to pay
monthly rental in the amount of R1 500.00 for a period of six months.
Annexure “RA2”, attached to the Applicant’s replying affidavit and answering
affidavit to the First Respondent’s counterclaim, evidences a further lease
agreement concluded between the First Respondent and members of the
deceased’s family, in terms of which the First Respondent was permitted to reside
on the property until the end of December 2009. These agreements further
record that the First Respondent herself requested permission to rent the property
after the family had required her to vacate. She acknowledged the terms
thereof, appended her signature to both agreements, and paid rental in
accordance therewith. The conclusion and signature of these two agreements
(“RA1” and “RA2”) between the First Respondent and members of the deceased’s
family are further confirmed by two confirmatory affidavits deposed to by members
or officials of SANCO who assisted in the drafting of the agreements. This post -
death rental conduct is emphasised in the Applicant’s heads of argument
(paragraph 9).
D. PROOF OF CUSTOMARY MARRIAGE
[11] The First Respondent’s version that she was married to the deceased by
customary marriage is directly contradicted by the objective and
contemporaneous lease agreements concluded by her with members of the
deceased’s family in 200 7 (“RA1” and “RA2”). A person who genuinely
believed herself to be the surviving spouse or heir entitled to the property would
not request permission to remain and thereafter negotiate and conclude rental
not request permission to remain and thereafter negotiate and conclude rental
agreements. This conduct demonstrates that she occupied the property
thereafter as a tenant at the instance of the deceased’s family, and not as
owner or heir.
6
[12] The lobola delegation note ( “PM1”) and confirmatory affidavits ( “PM4” and
“PM5”), while tendered in support, do not outweigh the evidential significance
of the signed lease agreements. A party alleging the existence of a
customary marriage bears the onus of proving compliance with the requirements
of living customary law at the relevant time, as contemplated in section 1 of the
Recognition of Customary Marriages Act 120 of 1998. The lease agreements
render the First Respondent’s version untenable on the papers. The dispute is
therefore not a bona fide dispute of fact in the sense contemplated in Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
634E– 635C. Recent authority likewise confirms that post -death rental conduct in
disputes concerning alleged customary marriage may negate the need for oral
evidence: Moloi v Nkosi [2025] ZAFSHC 153 (15 May 2025) and E M K v E M
B [2025] ZAGPPHC 293 (18 March 2025).
[13] The request for referral to oral evidence is accordingly refused. Such a
referral would cause further unwarranted delay in a matter that has been
pending since 2018, would increase costs, and undermine the summary nature
of proceedings under PIE. Even if a marriage existed, arguendo (for sake of
argument), any claim based on heirship or invalidation of the transfer would lie
against the executor of the deceased estate, who has not been joined in these
proceedings ( Nedbank Limited v Mvula [2024] ZAWCHC 226 (27 August
2024)), and would in any event provide no defence to the eviction sought by
the Applicant.
[14] The First Respondent relies on Hugh Arnold Wormald N.O. and Others v
Lungiswa Snowy Kambule [2005] ZASCA 84 (22 September 2005) as
authority for the approach the Court should adopt, contending that the case is on
all fours with the present matter because no mortgage bond or loan is
registered against the property. That case is distinguishable and does not assist
registered against the property. That case is distinguishable and does not assist
the First Respondent. In Wormald the Supreme Court of Appeal in fact granted
an eviction order under PIE, emphasising that the Act does not expropriate
private property or confer ownership rights on unlawful occupiers (paras 10–12
and 16). The absence of a bond is irrelevant to the statutory test under PIE; the
decisive inquiry remains whether occupation is unlawful and whether eviction
7
is just and equitable. The decision reinforces, rather than undermines, the
Applicant’s entitlement to relief.
[15] The First Respondent further relies on Daniels v Campbell N.O. and Others
2004 (5) SA 331 (CC) and Robinson & Another v Volks N.O. & Others 2004
(6) SA 288 (C) . Daniels concerned the recognition of monogamous Muslim
marriages for purposes of intestate succession and maintenance and does
not advance the factual claim of a customary marriage or life partnership on these
papers. Robinson (the High Court decision) was overturned on appeal in
Volks NO v Robinson 2005 (5) BCLR 446 (CC) , where the Constitutional Court held
that the exclusion of heterosexual life partners from the definition of “ spouse”
does not constitute unfair discrimination. These authorities therefore do not
support the First Respondent’s opposition or counter-application.
E. VESTING OF AN HEIR’S RIGHTS
[16] The First Respondent contends that, as surviving spouse or life partner of the
deceased, her rights as an intestate heir vested immediately upon the
deceased’s death on 22 December 1999. It is trite that the rights of an
intestate heir vest upon the death of the deceased ( Intestate Succession Act 81
of 1987, s 1; Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) paras 60–70).
Such vesting occurs by operation of law and is not dependent upon the
appointment of an executor or the eventual distribution of the estate.
[17] However, vesting does not confer an immediate right of possession,
ownership or control over the administration of the estate. The executor remains
the fiduciary administrator and is empowered, where necessary, to sell estate
assets in the course of administration (Administration of Estates Act 66 of
1965, ss 35 and 47; Nedbank Limited v Mvula [2024] ZAWCHC 226 (27 August
2024) at paras 18–22). An heir’s vested right is therefore a personal right against the
executor and does not constitute a real right in any specific immovable
executor and does not constitute a real right in any specific immovable
property until transfer or distribution has taken place. An heir cannot prevent a
lawful sale by the executor unless the sale is shown to have been fraudulent or
collusive, none of which is alleged in the present matter.
8
[18] In this matter the executor validly sold the property in 2018. The First
Respondent did not challenged the sale at that stage during approximately
nineteen (19) years between the death of the deceased and the transfer of the
property to the Applicant. The lease agreements concluded by her in or about
2007 (“RA1” and “RA2”) further demonstrate that she accepted the status of
tenant and did not assert any vested right as an heir. Even if she were the
heir, which is not established on the papers, such vested right would provide no
defence to the Applicant’s claim for eviction. Any remedy she may have would
lie against the executor, who is not a party to these proceedings.
F. PIE SECTION 4(7) FACTORS AND THE JUST-AND-EQUITABLE ENQUIRY
[19] Because occupation exceeds six months, and indeed has persisted for more
than 26 years, section 4(7) of PIE requires the Court to consider, in addition to
all relevant circumstances under section 4(6), the following factors: (a) the
rights and needs of the elderly, children, disabled persons and households
headed by women; (b) the availability of alternative accommodation; and (c)
the length of occupation.
[20] Length of occupation (s 4(7)(c)): The Respondents have occupied the
property since before 1999. This factor weighs in their favour and is duly
acknowledged. However, length of occupation alone does not create a
protected right where occupation is unlawful and the occupiers have no lawful
tenure (Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
para 42).
[21] Rights and needs of vulnerable groups (s 4(7)(a)): The household includes
two minor grandchildren aged 6 and 15, and is headed by a woman, the First
Respondent. These circumstances have been considered. There is no
evidence of elderly persons or disabled occupiers residing on the property.
While the presence of minors and a female -headed household is a relevant
While the presence of minors and a female -headed household is a relevant
factor, it does not outweigh the Applicant’s rights as registered owner where
no evidence of an alternative accommodation crisis has bee n presented and the
9
occupiers have had many years within which to make alternative
arrangements.
[22] Availability of alternative accommodation (s 4(7)(b)): No evidence has been
placed before the Court of any attempt to secure alternative accommodation,
nor has any concrete proposal been advanced in that regard. The
Respondents have had more than 26 years since the death of the deceased,
and at least eight (8) years since the Applicant acquired ownership of the property,
to arrange alternative housing. The absence of any evidence of alternative
accommodation therefore weighs against the continuation of indefinite
occupation at the Applicant’s expense.
[23] When all the circumstances contemplated in sections 4(6) and 4(7) of PIE are
considered together with section 26(3) of the Constitution (City of
Johannesburg v Blue Moonlight Properties 2012 (2) SA 104 (CC) paras 40 –
47), eviction is just and equitable. The Applicant has been deprived of the use
of his lawfully acquired property since 2018 while remaining responsible for
municipal charges. The occupiers pay no services and have no legal right to
remain. A period of ninety (90) calendar days for vacation provides a
reasonable and fair opportunity for relocation.
G. THE COUNTER-APPLICATION
[24] The conditional counter -application cannot succeed. It is both factually
untenable on the papers and procedurally defective by reason of the non -
joinder of the executor of the deceased estate, whose interests would be
directly affected by the relief sought. Furthermore, no case has been made
out for a declarator. The counter-application accordingly falls to be dismissed.
H. CONCLUSION
[25] In the circumstances, the evidence demonstrates that the First Respondent
occupied the property as a tenant and not as an owner by virtue of the alleged
customary marriage to the deceased, as she contends. By entering into and
10
signing the lease agreements, acknowledging the authority of the deceased’s
family to let the property, and paying monthly rental in terms thereof, the First
Respondent expressly recognised that her occupation was derived from
permission and was contractual in nature. Such conduct is inconsistent with a
claim of ownership or a real right to possession in the property. The Applicant,
as the registered owner of the property, accordingly enjoys a stronger and
legally enforceable right to possession. Upon termination or expiry of the
lease agreements, the First Respondent’s continued occupation became
unlawful. The Applicant is therefore entitled to seek the eviction of the First
Respondent in terms of PIE.
I. COSTS
[26] Once the lease agreements surfaced in the Applicant’s replying affidavit and
answering affidavit to the First Respondent’s counter -claim, the opposition to
the application lacked merit. In the circumstances, the First Respondent
should bear the Applicant’s costs.
J. ORDER
[27] The following order is made:
1. The First, Second and Third Respondents, and any person occupying
through them, are evicted from Erf 2[...], Mamelodi Extension 3,
Pretoria.
2. The Respondents must vacate the property by no later than 14 June
2026.
3. Should the Respondents fail to vacate by the date in paragraph 2, the
Sheriff of this Court (or his deputy) is authorised and directed to evict
them and any person occupying through them, with the assistance of
the South African Police Service, if necessary, within 14 calendar days
(being 28 June 2026) from the date referred to in paragraph 2.
4. The First Respondent’s conditional counter-application is dismissed.
11
5. The First Respondent is ordered to pay the Applicant’s costs on the
party-and-party scale, including the costs of counsel.
BY ORDER
SM MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
PRETORIA, GAUTENG
APPEARANCES
Instructing Attorneys for Applicant: Lamola Attorneys
Counsel for Applicant: Adv K Mpenyana
Instructing Attorneys for First Respondent: M P Molepo Attorneys
Counsel for the First Respondent: Adv B M Shai
Date of Hearing: 19 February 2026
Date of Judgment: 16 March 2026