2
Summary: Eviction – application for eviction in terms of section 9 of the Extension of
Security of Tenure Act 62 of 1997 – first and second respondents having been
dismissed from employment by previous farm owner as employer – respondents’ right
of occupation of employees residential quarters terminated by new farm owner –
irretrievable breakdown of relationship between farm owner and respondents
rendering continued occupation of employees’ quarters intolerable – respondents no
longer in occupation of premises for some two years due to circumstances unrelated
to the current litigation between the parties – held that the eviction of the respondents
just and equitable.
ORDER
___________________________________________________________________
On application for eviction of the respondents at the suit of the current farm owner.
The following order is made:
1. The first and second respondents’ right of residence on the farm Meulstroom
is hereby terminated.
2. The first and second respondents are directed to vacate the house occupied
by them on Manesrust, Meulstroom farms within 45 days of the date of this
order.
3. Should the first and second respondents refuse, neglect or fail to vacate the
premises within the period stipulated in paragraph 2 hereof, the Sheriff of
the court in the district in which the property is situated is hereby authorised
to evict them.
4. Upon the eviction of the first and second respondents from the premises,
the applicants shall be entitled to demolish the structure/house vacated by
the said respondents.
5. The first and second respondents shall pay the costs of the application
jointly and severally, the one paying the other to be absolved.
6. The applicants shall pay the wasted costs associated with the hearing of the
application before the Free State Division of the High Court, Bloemfontein
on 12 June 2025 on an opposed basis.
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JUDGMENT
PETSE AJ
Introduction
[1] The first applicant, T R Smit Familie Trust, represented by its two trustees in
these proceedings owns several farms in the Vrede district, Free State, collectively
known as the farm Meulstroom. The various farms were all purchased during 2012
from a corporate entity known as Meulstroom Landgoed (Pty) Limited. The two
trustees representing the first applicant are Mr Theo Ruan Smit and Ms Karin Yvonne
Smit.
[2] The second applicant is Mr Ruan Smit who is a farmer and full -time employee
of the Trust as well as manager of the farms and, as previously mentioned, collectively
known as Meulstroom1 and owned by the Trust.
[3] The first respondent is Mr Daniel Doctor Mlambo who is married to the second
respondent, Ms Thoko Beslina Mlambo. Both respondents currently reside at 1107
Zamani location in Memel since they vacated their residence on the farm pursuant to
an order grante d in the magistrate’s court, Memel some 24 months previously. The
respondents previously resided in Meulstroom until the occurrence of certain events
that precipitated the institution of the current proceedings, culminating in them having
to move out of the house they occupied on the farm to their current place of abode. I
shall revert to this aspect later.
Background facts
[4] The two applicants instituted legal proceedings in the Free State Division of the
High Court, Bloemfontein (the high court) by way of notice of motion for an order in the
following terms:
1 The various farms are: Witzenberg 256, in extent 708,8516 hectares; Waterval 1167, in extent 904,555
hectares; Remaining Extent of Manesrus 253 in extent 180,9110 hectares; Draaiwater 252, in extent
441,7992 hectares; Mill-Vale 363, in extent 825,8067 hectares.
4
‘1. That the right of residence of the first and second respondents on the farm
Meulstroom or any property of the first applicant, be terminated by the court.
2. That the respondents be evicted from the house [situated] on Manesrust /
Meulstroom of the first applicant.
3. To the extent that the respondents have not vacated the property at the
[time of] granting of this order, that they do so within 30 (thirty) days from date
of service of the order, failing which the Sheriff be authorised to evict them.
4. That the applicants be entitled to demolish the house on the farm
Manesrust / Meulstroom previously occupied by the respondents.
5. Costs of the application on an attorney and client scale.
6. …’
[5] Broadly stated, the foundation for the relief sought in the notice of motion was
that the relationship between the protagonists had reached such a state of
disintegration that rendered continued co -existence amongst them on the farm
intolerable.
[6] In support of their application, the applicants relied on the founding affidavit
deposed to by Ms Karin Yvonne Smit, in her capacity as a co -trustee of the T R Smit
Familie Trust. For convenience, I shall hereinafter refer to Ms Smit as the deponent.
To the extent relevant for present purpose, the deponent, inter alia, stated:
‘13. This is an application in terms of Chapter 3 and 4 of the Extension of
Security of Tenure Act 62 of 1997 (hereinafter referred to as “the Act”
or “ESTA”) against the Respondents.
14. More particularly:
14.1 It is an application for confirmation of the termination of the right
of the Respondents residence in terms of Section 9(2)(a) and (b) of
ESTA;
14.2 An order for eviction in terms of Section 10 of ESTA;
alternatively
14.3 An order for the eviction in terms of Section 11 of ESTA;
14.4 An order for demolishment of the residential dwelling.
…
5
18. At the time when the property was bought in 2012, the First and
Second Respondents occupied a house close to the Memel/Newcastle
(Muller’s Pass) road, a district road called the “S17”.
19. The First and Second Respondents during that stage were employed
by Meulstroom Landgoed (Pty) Limited, which the First Applicant
accepted.
20. The First Respondent was employed by the First Applicant for a period
of almost 1 (one) and a half years during the period 2012 to 2014. The
First Respondent terminated his employment with the First Applicant
and ceased employment on the 30 th of August 2014. It was unknown
what his position thereafter was. He obtained housing in Zamani in
Memel and only attended to the house on the farm sporadically. The
Second Respondent was also employed by the First Applicant, but she
also terminated her employment.
21. Due to the house situated right next to the S17 Road, the house was
located on the side of the farm next to the road and the First Applicant
had no objection [to] the occupation of the house by the First and
Second Respondents, subject to the First Applicant’s rights as owner to
terminate the residence.
22. The First Applicant however never consented to:
22.1 Any family, save for the First and Second Respondents
personally, residing in the house;
22.2 Any farming activities;
22.3 Any grazing facilities to the First and Second Respondents;
22.4 The Respondents did not have any rights other than their
occupation of the house.’
[7] Thereafter, the deponent proceeded to aver that on 8 March 2024 a Mr Theo
Ruan Smit together with one of the Trust’s employees, Mr Morné James Pruis, were
busy spraying tracers with herbicides at the road reserve running through the farm
Meulstroom to make firebreaks along the boundary fence using a Landcruiser motor
vehicle. This exercise was required in terms of the National Veld and Forest Fire Act2
vehicle. This exercise was required in terms of the National Veld and Forest Fire Act2
and the Local Fire Protection Association Rules which legal prescripts, inter alia,
2 National Veld and Forest Fire Act 101 of 1998 (the Veld Fires Act).
6
provide that farmers who fail to make firebreaks expose themselves to both criminal
and civil liability.
[8] Whilst Smit and Pruis were busy spraying the grass they were confronted by,
amongst others, the first respondent who was in the company of his three sons who
blocked the path of travel of the Landcruiser. The four men, apparently acting in
concert, assaulted Theo Smit. Smith and Pruis realised that their lives were in serious
danger and, as a result, they attempted to flee from their assailants. Theo Smit had by
then suffered some serious bodily injuries and was profusely bleeding from such
injuries. The assailants pursued them and approximately 50 metres from where the
assault had begun, the assailants caught up with Theo Smit and continued to jointly
assault the latter. During the ensuing scuffle the first respondent incited his co -
assailants to dispossess Theo Smit of this cell phone whilst continuing to assault and
swear at him. At that stage Theo Smit had fallen to the ground. Pruis, too, was
dispossessed of the Landcruiser’s keys. Through the intervention of the second
respondent the Landcruiser keys were later handed back to Pruis.
[9] Once Pruis had retrieved the Landcruiser keys, he drove to another area of the
farm where Ruan, who is Theo Smit’s son, was busy in the field. When Pruis and Ruan
reunited with Theo Smit, the latter informed them that his assailants seized his cell
phone and refused to return it to him. When Theo, Pruis and Ruan approached their
assailants in order to retrieve Theo Smit’s cell phone they were attacked again by,
inter alia, the first respondent. Ruan was dispossessed of his firearm, which was in its
holster, by one of the assailants who fired one shot to the ground. A scuffle then
ensued when Ruan attempted to recover his firearm. Whilst still wrestling over the
firearm, the second applicant pleaded with one of the respondents’ sons, by the name
firearm, the second applicant pleaded with one of the respondents’ sons, by the name
of Lindelani, who was part of the attacking group to let go of the firearm, but the latter
did not heed the plea. At that stage, Mfunafikile also took part in the attack by hitting
Ruan in the head. By then the attacking group was in possession of Theo’s cellphone
and Ruan’s pistol. Both Theo and Ruan were bleeding from the injuries inflicted by
their assailants.
[10] Convinced that their assailants were not prepared to restore possession of the
pistol and cellphone, Theo, Ruan and Pruis left and drove to the police station in
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Memel some 12 kilometres away as they could not reach the police telephonically. On
arrival at the police station, they received no assistance with the result that they were
compelled to resort to a private security company in Newcastle named Ithemba, some
60 kilometres away. Despite the intervention of Ithemba , the attacking group still
refused to return the cellphone and the pistol to their rightful owners.
[11] Theo and Ruan were driven to hospital in Newcastle for medical help. Whilst
the hospital staff indicated that Theo and Ruan would be admitted for further
observation due to the seriousness of their bodily injuries, the latter, however, said
that it would be ill-advised of them to stay in hospital overnight whilst Theo’s wife was
left vulnerable and alone at home. I pause here to mention that the averment in the
founding affidavit that Theo and Ruan suffered serious bodily injuries as a result of the
assault at the hands of the first respondent and his sons, acting in concert, is not in
dispute. As a sequel to the assault, Theo and Ruan laid criminal charges against the
respondents and their cohorts at the Memel police station. But the prosecution
declined to press charges against the second respondent on the available evidence.
[12] As a result of the criminal charges laid against them, the first respondent and
his three cohorts were arrested, charged with assault and attempted murder and
caused to appear before the magistrate’s court in Memel. And given the gravity of the
charges they faced, the case was transferred to the Regional Court. All four accused
were admitted to bail subject to the usual conditions. And, insofar as the first
respondent in particular is concerned, the court imposed certain special conditions,
one of which was that he is precluded from entering or being at Meulstroom Farms.
As a result of this latter bail condition, the respondents have not lived in Meulstroom
Farms for some two years now.
Farms for some two years now.
[13] As a further sequel to the events that occurred on 8 March 2024, a firm of
attorneys, acting on instructions from the applicants, gave a written notice of
termination of the respondents’ rights of residence in Meulstroom Farms calling upon
them to vacate their residence on the farm since, besides the 8 March 2024 incident,
they were no longer employees of the applicants. The notice further invited them to
make representations in relation to the content of the notice, if they so wished. The
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notice was served by the Sheriff on the second respondent.3
[14] The events of 8 March 2024 as alleged in the applicants’ founding affidavit
deposed to by Ms Karin Yvonne Smit were confirmed in confirmatory affidavits
deposed to by Theo Smit, Ruan Smit and the medical personnel who attended to
Theo’s and Ruan’s injuries on the day of the assault.
[15] The respondents opposed the application on various grounds. As a preliminary
point, the respondents, relying on section 20 of the Extension of Security of Tenure
Act,4 took the point that the high court lacked jurisdiction to adjudicate the dispute and
therefore could not grant any of the relief sought in the applicants’ notice of motion.
They contended that this Court enjoys exclusive jurisdiction in relation to the ma tters
dealt with therein and the causes of action encompassed by ESTA, more particularly
having regard to the fact that the respondents had not and would not consent to the
jurisdiction of the high court. Consequently, they moved for the dismissal of the
application solely on this ground, ie lack of jurisdiction.
[16] Insofar as the merits of the dispute are concerned, whilst disputing some of the
averments contained in the applicants’ founding affidavit, the respondents did not
meaningfully address the substance of the allegations relating to the fracas that took
place on the farm on 8 March 2024. They adopted the stance that the material
allegations relating to the events of 8 March 2024 were matters that would be
ventilated in their criminal trial in due course. Having regard to their stance, the
respondents stated that it would therefore be ill-advised of them to pertinently respond
to the material averments contained in the founding affidavit. In addition, the
respondents took the point that the whole of the evidence presented in the applicants’
founding affidavit deposed to by Ms Karin Yvonne Smit was hearsay. Moreover, they
asserted that the evidence upon which she relied was ‘pending before the criminal
asserted that the evidence upon which she relied was ‘pending before the criminal
court where it will be contested, challenged, authenticated and disputed’. The first
respondent went on to proffe r a speculative explanation that Theo Smit ‘might have
got injured during the scuffle as the iron spanner over which they were wrestling was
3 The second respondent refused to accept the notice and the Sheriff left it ‘at her feet’, by dropping it
to the ground in front of her, which was proper service on the respondents in terms of the rules since
the second respondent had refused to accept service.
4 Extension of Security of Tenure Act 62 of 1997 (ESTA).
9
long and to win it back it had to be turned around’, and that it was ‘also possible that
Ruan Smit might have got injured during the scuffle over the firearm’.
[17] The first respondent further stated that although he, together with his cohorts,
laid several charges 5 against both Theo and Ruan he was told by the police officers
that they would not be allowed to lay charges against Theo and Ruan because, so the
first respondent asserted, the police officers were dismissive of their case and instead
believed the version of Theo and Ruan over theirs in relation to the events of 8 March
2024. On 29 September 2025 , the respondents filed a ‘supplementary opposing
affidavit’ which did not advance their case in any material way. So much for the factual
matrix.
[18] To promote a better understanding of what is at the core in this litigation, it will
be helpful at this juncture to make reference to certain provisions of ESTA. Section 6
of ESTA, in relevant parts, provides:
‘(1) Subject to the provisions of this Act, an occupier shall have the right to
reside on and use the land on which he or she resided and which he or
she used on or after 4 February 1997, and to have access to such
services as had been agreed upon with the owner or person in charge,
whether expressly or tacitly.
…
(3) An occupier may not—
(a) intentionally and unlawfully harm any other person occupying
the land;
(b) intentionally and unlawfully cause material damage to the
property of the owner or person in charge;
(c) engage in conduct which threatens or intimidates others who
lawfully occupy the land or other land in the vicinity; or
(d) enable or assist unauthorised persons to establish new
dwellings on the land in question.’
5 The alleged charges were: (a) contravention of section 17(a) of the Domestic Violence Act 116 of
1998; (b) crimen injuria; (c) assault with intent to do grievous bodily harm; and (d) attempted murder.
10
[19] On the other hand, section 8, in relevant parts, reads:
‘(1) Subject to the provisions of this section, an occupier’s right of
residence may be terminated on any lawful ground, provided that such
termination is just and equitable, having regard to all relevant factors
and in particular to—
(a) the fairness of any agreement, provision in an agreement, or
provision of law on which the owner or person in charge relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship
to the owner or person in charge, the occupier concerned, and
any other occupier if the right of residence is or is not
terminated;
(d) the existence of a reasonable expectation of the renewal of the
agreement from which the right of residence arises, after the
effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should
have been granted an effective opportunity to make
representations before the decision was made to terminate the
right of residence.
…
(7) If an occupier’s right to residence has been terminated in terms of this
section, or the occupier is a person who has a right of residence in
terms of subsection (5)—
(a) the occupier and the owner or person in charge may agree that
the terms and conditions under which the occupier resided on
the land prior to such termination shall apply to any period
between the date of termination and the date of the eviction of
the occupier; or
(b) the owner or person in charge may institute proceedings in a
court for a determination of reasonable terms and conditions of
further residence, having regard to the income of all the
occupiers in the household.’
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[20] Section 9(2) is of particular significance. It provides:
‘A court may make an order for the eviction of an occupier if—
(a) the occupier’s right of residence has been terminated in terms of
section 8;
(b) the occupier has not vacated the land within the period of notice
given by the owner or person in charge;
(c) the conditions for an order for eviction in terms of section 10 or
11 have been complied with; and
(d) the owner or person in charge has, after the termination of the
right of residence, given—
(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in
question is situated; and
(iii) the head of the relevant provincial office of the
Department of Rural Development and Land Reform, for
information purposes,
not less than two calendar months’ written notice of the intention to
obtain an order for eviction, which notice shall contain the prescribed
particulars and set out the grounds on which the eviction is based:
Provided that if a notice of application to a court has, after the
termination of the right of residence, been given to the occupier, the
municipality and the head of the relevant provincial office of the
Department of Rural Development and Land Reform not less than two
months before the date of the commencement of the hearing of the
application, this paragraph shall be deemed to have been complied
with.’
[21] The relevant parts of section 10 of ESTA must also be referenced. They
provide:
‘(1) An order for the eviction of a person who was an occupier on
4 February 1997 may be granted if—
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(a) the occupier has breached section 6(3) and the court is satisfied
that the breach is material and that the occupier has not
remedied such breach;
(b) the owner or person in charge has complied with the terms of
any agreement pertaining to the occupier’s right to reside on the
land and has fulfilled his or her duties in terms of the law, while
the occupier has breached a material and fair term of the
agreement, although reasonably able to comply with such term,
and has not remedied the breach despite being given one
calendar month’s notice in writing to do so;
(c) the occupier has committed such a fundamental breach of the
relationship between him or her and the owner or person in
charge, that it is not practically possible to remedy it, either at all
or in a manner which could reasonably restore the relationship;
…
(2) Subject to the provisions of subsection (3), if none of the circumstances
referred to in subsection (1) applies, a court may grant an order for
eviction if it is satisfied that suitable alternative accommodation is
available to the occupier concerned.
(3) If—
(a) suitable alternative accommodation is not available to the
occupier within a period of nine months after the date of
termination of his or her right of residence in terms of section 8;
(b) the owner or person in charge provided the dwelling occupied by
the occupier; and
(c) the efficient carrying on of any operation of the owner or person
in charge will be seriously prejudiced unless the dwelling is
available for occupation by another person employed or to be
employed by the owner or person in charge,
a court may grant an order for eviction of the occupier and of any other
occupier who lives in the same dwelling as him or her, and whose permission
to reside there was wholly dependent on his or her right of residence if it is
just and equitable to do so, having regard to—
just and equitable to do so, having regard to—
(i) the efforts which the owner or person in charge and the
13
occupier have respectively made in order to secure
suitable alternative accommodation for the occupier; and
(ii) the interests of the respective parties, including the
comparative hardship to which the owner or person in
charge, the occupier and the remaining occupiers shall
be exposed if an order for eviction is or is not granted.’
[22] I conclude the overview of the statutory framework by making a passing
reference to section 11(2) in terms of which the court may grant an order for eviction
after the termination of the right to residence if the court is of the opinion that it is just
and equitable to do so.
[23] In paragraph 4 above it is mentioned that the applicants instituted these
proceedings in the high court. And, as already indicated, the respondents asserted
that the high court lacked jurisdiction to entertain this application. The respondents’
assertion in this regard did not deter the applicants. Undaunted, they enrolled the
application for hearing on 12 June 2025. On this day, the applicants relented and
conceded that the high court lacked jurisdiction to adjudicate the case since the relief
sought by the applicants lay in the exclusive domain of this Court. Consequently, by
agreement between the parties, the high court (per Van Rhyn J) granted an order in
terms of section 27(1) of the Superior Courts Act 6 transferring the proceedings to the
‘Land Court’. The wasted costs occasioned by the transfer of the proceedings to the
Land Court were reserved for later determination by the court seized with the matter.7
[24] It is necessary to say something about section 27 of the SC Act, albeit briefly.
Section 27 of the SC Act, which is headed ‘Removal of proceedings from one Division
to another or from one seat to another in same Division’ reads:
‘(1) If any proceedings have been instituted in a Division or at a seat of a
Division, and it appears to the court that such proceedings––
Division, and it appears to the court that such proceedings––
(a) should have been instituted in another Division or at another
6 Superior Courts Act 10 of 2013 (the SC Act).
7 The high court order reads:
‘(1) In terms of the provisions of s 27(1)(a) to (b)(ii) of the Superior Courts Act 10 of 2013, the application
is transferred to the Land Court established by s 3 of the Land Court Act, 2023; and
(2) The costs of the present application are reserved for determination by the Land Court.’
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seat of that Division; or
(b) would be more conveniently or more appropriately heard or
determined—
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing
all other parties thereto, order such proceedings to be removed to that
other Division or seat, as the case may be.
(2) An order for removal under subsection (1) must be transmitted to the
registrar of the court to which the removal is ordered, and upon the
receipt of such order that court may hear and determine the
proceedings in question.’
[25] At the hearing of this matter I posed a question to counsel appearing on behalf
of the applicants as to whether the order granted by the high court on 12 June 2025 is
competent and, in particular, whether section 27(1) of the SC Act also encompasses
a transfer of proceedings pending in a Division of the high court to a court other than
another Division of the high court, or another seat of the same Division, from such
Division, to another or from one seat in one Division to another seat within the same
Division. In response, counsel submitted that the wording of section 27(1) is wide
enough to include other courts of equal status like, in this instance, the Land Court.
Whilst I had grave misgivings about the competence of the high court’s order, I
indicated to counsel that I did not consider it necessary to determine this issue
because in terms of section 34 of the Land Court Act8 a Division of the high court may,
in the circumstances specified in section 34, transfer proceedings pending before it to
this Court or visa versa.
[26] Section 34 of the Land Court Act, which is titled ‘Removal of action or
proceedings’ reads:
‘(1) If any action or proceedings have been instituted in the Court sitting in
any area of jurisdiction, and it appears to the Court sitting in that area
that such action or proceedings—
8 Land Court Act 6 of 2023.
15
(a) should have been instituted in the Court sitting in another area
of jurisdiction within the same province; or
(b) would be more conveniently or more appropriately heard or
determined—
(i) by the Court sitting in another area of jurisdiction within
the same province;
(ii) at the seat of the Court if the proceedings have been
instituted in the Court sitting at another area of jurisdiction
within the same province; or
(iii) at another area of jurisdiction if the proceedings have
been instituted at the seat of the Court within the same
province,
the Court sitting in that area may, upon application by any party thereto
and after hearing all other parties thereto, order such action or
proceedings to be removed to the Court sitting at another area of
jurisdiction or to the seat of the Court, as the case may be.
(2) The provisions of this section apply, with necessary changes required
by the context, to the removal of an action or proceedings from—
(a) the Court to a Division of the High Court; and
(b) a Division of the High Court to the Court,
within the same province.
(3) An order for removal—
(a) under subsection (1) must be transmitted to the registrar of the
Court to which the removal is ordered; and
(b) under subsection (2) must be transmitted to the registrar of the
Court or the High Court, as the case may be, to which the
removal is ordered,
and upon the receipt of such order the Court or the High Court, as the
case may be, may hear and determine the action or proceedings in
question.’
[27] Since the Land Court Act had already come into effect 9 when the order of the
high court mentioned in paragraph 23 above was granted, there can be no doubt that
9 The Land Court Act came into effect on 5 April 2024.
16
even if it were found that section 27 of the SC Act found no application in the
circumstances that obtained before the high court on 12 June 2025 the situation is,
however, saved by section 34 of the former Act. This then renders it unnecessary for
present purposes to broach the subject any further.
[28] At the risk of stating the obvious, one must begin with the nature of the relief
sought by the applicants. First, the applicants seek, in the main, an order that the
respondents’ right of residence on the farms Meulstroom owned by the first applicant
has been lawfully terminated pursuant to the written notice given to the respondents
and served on them by the Sheriff on 11 July 2024 at the instance of the first applicant.
The termination of the respondents’ right of residence was a sequel to the incident that
occurred on the farm on 8 March 2024. And, in consequence of the termination of the
right of residence, the first applicants sought the eviction of the respondents from the
farm.
[29] The thrust of the case advanced by the applicants in support of the relief sought
and the factual foundation relied upon have been canvassed above. The applicants’
allegations must of course be considered in the context of the weight of the
countervailing evidence of the respondents. Against that backdrop, it is desirable, in
the first instance, to consider the evidence presented to this Court by the applicants
and then determine whether such evidence sufficiently establishes, on a balance of
probabilities, the applicants’ entitlement to the relief prayed for in the notice of motion.
[30] The proposed approach accords, in my view, and aligns with the views
expressed in Divisional Council, Cape v Mohr ,10 albeit in a different context. There,
the court in dealing, amongst other things, with one of the arguments advanced on
behalf of the respondent that a respondent who seeks an outright dismissal of
proceedings instituted by way of notice of motion must establish that the allegations in
proceedings instituted by way of notice of motion must establish that the allegations in
the founding affidavit do not make out a case for the relief sought. In dealing with this
argument the court there said the following:
‘The procedure in question represents a convenient method of disposing of an
application where there are material and insoluble factual disputes but the
10 Divisional Council, Cape v Mohr 1973 (2) SA 310 (C).
17
applicant has failed to establish a prima facie case. The practice upon which
this procedure is based is not a mandatory or inflexible one; nor is it intended
as a springboard for tactical manoeuvres. Like all practices its purpose is to
achieve a just and expeditious disposal of litigation of this kind. The approach
contended for by respondent's counsel would, in my opinion, result in the
complete negation of this purpose. It would mean, for example, that an
application could be dismissed where an e ssential allegation was omitted
from, or inadequately made in, the original application notwithstanding the fact
that the allegation was made or fully admitted in the opposing affidavits and
there was in truth no issue in regard thereto.’11
[31] At this juncture it will be helpful to refer to the decision of the Supreme Court of
Appeal – then known as the Appellate Division – in Plascon-Evans Paints (TVL) Ltd v
Van Riebeck Paints (Pty) Ltd.12 There, it was stated that where disputes of fact have
arisen in proceedings on notice of motion ‘a final order, whether it be an interdict or
some other form of relief, may be granted if those facts averred in the applicant’s
affidavits which have been admitted by the respondent, together with the facts alleged
by the respondent, justify such an order. The power of the Court to give such final
relief on the papers before it is, however, not confined to such a situation. In certain
instances the denial by t he respondent of a fact alleged by the applicant may not be
such as to raise a real, genuine or bona fide dispute of fact.’13 (Citations omitted.)
[32] Whilst a court should ordinarily be slow to resolve factual disputes on affidavit,
it must, however, not flinch from doing so if the respondent’s version consists of bald
or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausibl e or
so far-fetched or clearly untenable that the court would be justified in rejecting them
so far-fetched or clearly untenable that the court would be justified in rejecting them
merely on the papers. As to why motion proceedings are inappropriate for resolving
factual disputes or probabilities, the Supreme Court of Appeal explained the pos ition
thus:
‘Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
11 Ibid at 232D-G.
12 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (Plascon Evans).
13 Ibid at 634H-I.
18
circumstances are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities.’14
[33] Before dealing with the merits of this application, it is necessary to address a
preliminary point taken by the respondents concerning the status of the applicants’
founding affidavit. It was contended on behalf of the respondents that the applicants’
founding affidavit was inadmissible in its entirety since the deponent to such affidavit
lacked personal knowledge of the incident that occurred on 8 March 2024. Therefore,
so the respondents asserted, her evidence tendered therein was hearsay and
consequently inadmissible. In these circumstances, concluded the argument, the
effect of all this was that what remains after the exclusion of the so -called hearsay
evidence would not justify the grant of the relief sought by the applicants. I proceed
now to consider the respondents’ contention on this score.
[34] It is trite that as a general rule hearsay evidence is inadmissible in legal
proceedings. There are, however, exceptions to this exclusionary general rule. One of
the exceptions for the admission of hearsay evidence is provided for in section 3 of
the Law of Evidence Amendment Act.15 Section 3(1) of the LEAA provides:
‘(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless—
(a) each party against whom the evidence is to be adduced agrees
to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to—
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person
(v) the reason why the evidence is not given by the person
upon whose credibility the probative value of such
14 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1)
SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26.
15 Law of Evidence of Amendment Act 45 of 1988 (LEAA).
19
evidence depends;
(vi) any prejudice to a party which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the court
be taken into account,
is of the opinion that such evidence should be admitted in the interests
of justice.’
[35] Section 3(4) of the LEAA, in turn, defines hearsay evidence as follows:
‘“hearsay evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person other than
the person giving such evidence.’
[36] As will have been observed from a reading of sub -section 3(1)(b) quoted in
paragraph 3 4 above, hearsay evidence will be admitted if the person upon whose
credibility the probative value of such evidence depends himself testifies at such
proceedings. It is as well to remember that in this case the proceedings were brought
on notice of motion. Therefore, the applicants’ founding affidavit served a dual
purpose. First, it set out the nature of the relief the applicants sought and also identified
as well as defined the issues. Second, it contained the essential evidence necessary
to support the applicants’ allegations.16
[37] In this case it is common ground that the applicants’ founding affidavit was
deposed to by a Ms Karin Yvonne Smit in her representative capacity as one of the
trustees of the TR Smit Familie Trust, the first applicant. However, since she was not
present to witness the incident that occurred on 8 March 2024 she lacked personal
knowledge of such events as they unfolded on the farm on the day in question. This
was similarly the position in regard to the nature and severity of the injuries suffered
by the assault victims. But her evidence relating to those events as well as the injuries
suffered by the assault victims was confirmed in confirmatory affidavits deposed to by
16 Bowman v De Sousa Roldao 1988 (4) SA 326 (T); [1988] 4 All SA 174 (T); Commissioner of Customs
and Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N) at 225 -226; Arendse and Others v
Van der Merwe NO and Another (2015/40324) [2016] ZAGPJHC 292; 2016 (6) SA 490 (GJ); [2016] 4
All SA 48 (GJ).
20
persons who had personal knowledge of the matters about which she testified.
Accordingly, with the hearsay content of the founding affidavit having been confirmed
in confirmatory affidavits filed, it must then ineluctably follow that the persons upon
whose credibility the probative value of the hearsay evidence contained in Ms Karin
Yvonne Smit’s founding affidavit depend s, had themselves ‘testified’ in these
proceedings by way of their confirmatory affidavits. That being the case, this fact must
perforce mean that the respondents’ preliminary point is unsustainable.
[38] With the respondents’ preliminary point having been disposed of, this is then
the opportune time to revert to the merits of the application. However, it is necessary
to preface the discussion of this aspect with the following observation, which is this. In
their answering affidavits the respondents elected not to meaningfully deal with most
of the categorical averments made under oath in the applicants’ founding affidavits.
They contented themselves with merely stating that their version of events woul d be
revealed only at their pending criminal trial. Thus, the question as to how the assault
came about and who were the aggressors has, for the most part, not been
meaningfully traversed. That said, I nevertheless advisedly refrain from passing
judgment o n whether the strategy adopted by the respondents in this regard is
tactically sound or not. Suffice it to say that the inevitable consequence of their strategy
is that critical averments in the main founding affidavit have essentially gone
unanswered.
[39] These being proceedings brought on notice of motion in which the applicants
are seeking final relief, the applicants can succeed in their quest for final relief only if,
as Plascon Evans says, the ‘facts averred in the applicant’s affidavits which have been
admitted by the respondent, together with the facts alleged by the respondent justify
admitted by the respondent, together with the facts alleged by the respondent justify
such an order’ and ‘the court is satisfied as to the inherent credibility of the applicant’s
factual averment’. The inevitable consequence of the respondents’ liti gation strategy
in these proceedings therefore provides a pathway to determining this application on
the footing that the applicants’ allegations are correct. Thus, the question whether the
applicants are entitled to the final relief they seek will be dete rmined on the basis of
the correctness of their version which, on the papers before this Court, is as best for
the respondents not seriously disputed.
21
Analysis
[40] At this juncture, it is as well to remember that the principal relief sought by the
first applicant is for a judicially sanctioned termination of the respondents’ right of
residence on the farms Meulstroom. And , by way of consequential relief, the first
applicant prays for the eviction of the respondents from the house that was allocated
to them on the farms at a time when the respondents were employed by both the first
applicant and its predecessor-in-title, ie the previous farmer from whom the farms were
purchased. Insofar as the principal relief is concerned, the applicants have invoked
section 9(2)(a) and (b) of ESTA. And for the eviction of the respondents from the farms
the applicants rely on section 10 or alternatively section 11 of ESTA.
[41] In seeking the termination of the respondents’ right of residence and, following
such termination, the eviction of the respondents from the farms the applicants rely on
section 6(3) of ESTA. In support of this relief, the applicants asserted that the
respondents have, following the events that occurred on 8 March 2024, rendered
continued residence on the farms intolerable for the farm owner and its employees. In
elaboration they averred that the respondents, and in particular the first respondent
and his sons, intentionally and unlawfully assaulted the second applicant and one of
the first applicant’s employees Pruis as a result of which both suffered serious bodily
injuries for which they had to seek medical help.
[42] Since the applicants are in the main seeking termination of the respondents’
right of residence on the farms it is necessary to advert to section 6 of ESTA. Section
6(1) of ESTA which is headed ‘Termination of right of residence’ provides that ‘[a]n
occupier’s right of residence may be terminated on any lawful ground, provided that
such termination is just and equitable’. Of course the termination of such right is
such termination is just and equitable’. Of course the termination of such right is
subject to the factors listed in paragraphs (a) to (e) of sub -section 6(1). For present
purposes, it is only paragraphs (b) and (c) that bear relevance. Respectively, these
two paragraphs require that ‘the conduct of the parties giving rise to the termination’
and their interests ‘including the comparative hardship to the owner…the occupier…if
the right of residence is not terminated’.
[43] As is apparent from the factual narrative set out above, the kernel of the
22
applicants’ case against the respondents is that the latter have made themselves guilty
of the proscribed conduct listed in section 6(3) of ESTA. In particular, in a nutshell it
has been asserted that on 8 March 2024 the respondents intentionally and unlawfully
harmed the second applicant when they viciously assaulted him and one of the first
applicant’s employees, Pruis. Further, it was contended that in engaging in the events
of 8 March 2024 the respondents made themselves guilty of the kind of conduct
proscribed under section 6(3)(c) of ESTA. That the first respondent, acting in concert
with his sons, severely assaulted the second applicant and Pruis brooks no argument
to the contrary. The evidence in this regard is both overwhelming and stark. It has also
emerged from the papers that the respondents have for some time harboured hostility
towards the second applicant for allegedly poisoning their livestock with herbicides.
[44] This then brings me to the fundamental issue that is at the heart of the dispute
between the protagonists. It is this. As a sequel to the events of 8 March 2024 what
this Court must now determine is whether the respondents have committed such a
fundamental breach of the relationship between them on the one hand and the owner
of the farms and certain of its employees on the other that ‘is not practically possible
to remedy’ either at all or ‘in the manner which could reasonably restore the
relationship’ as contemplated in section 10(1)(c) of ESTA. It bears mentioning that
what compounds matters and has in fact led to the hardening of attitudes is that the
respondents are no longer employees of the first applicant. And insofar as the first
respondent is concerned, his situation is aggravated by the fact that he and his sons
are facing serious criminal charges laid against them by the second applicant and
Pruis, one of which is attempted murder. And as against this, the respondents also
Pruis, one of which is attempted murder. And as against this, the respondents also
harbour feelings of resentment and animosity towards the applicants. This is because
they are aggrieved by the fact that the prosecution declined to prosecute the second
applicant and Pruis on counter -criminal charges that they had laid against these two
parties.
[45] On the evidence, it is clear that the respondents feel hard-done by the decision
of the prosecution which they believe was improperly influenced by the fact that the
police and the prosecution were biased against them. As already mentioned, their
perception in this regard has resulted in the hardening of attitudes to such a degree
that the relationship between the respondents and the applicants has irretrievably
23
broken down. And this situation is exacerbated by the fact that one of the bail
conditions imposed by the court in the criminal proceedings precluded the respondents
from residing on or even setting foot on the farms. Consequently, the respondents
have not resided on the farms for two years now. Since the first respondent’s release
on bail, the respondents have through their own endeavours acquired alternative
accommodation at 1107 Zamani location, in Memel. And moreover they have since
taken up employment with a neighbouring farmer. Thus, on the facts of this case, the
respondents appear to have managed to rebuild their lives, both in relation to
alternative employment and place of residence.
[46] Having reached the conclusion that the applicants have established that the
respondents committed a fundamental breach of the relationship between the parties
– that is beyond redemption and can therefore no longer reasonably be restored – the
court must now determine whether it will be just and equitable to sanction the
applicants’ termination of the respondents’ right of residence and, in consequence,
order their eviction from the farms. I have above already alluded to the conduct of the
parties in particular the respondents, that precipitated the termination of their right of
residence.
[47] It is as well to remember that the foundation for the applicants’ case against the
respondents rests, for the most part, on paragraphs (a); (b); and (c) of section 10(1)
of ESTA. In this regard it bears repeating that the catalyst for the conflict raging on
between the parties are the events of 8 March 2024. Much has already been said
about the incident in question and it is therefore not necessary to delve into that issue
here. Apropos this, section 10(1)(c) of ESTA comes to the fore. Before a court m ay
grant an eviction order it is obligated to first satisfy itself in terms of section 10(2) that
suitable alternative accommodation is available to the occupier. And insofar as this
suitable alternative accommodation is available to the occupier. And insofar as this
aspect of the case is concerned, it has already been indicated above that the
respondents have been living in a township in Memel for over two years since the
incident of 8 March 2024. It is necessary to note that since the date of the incident the
respondents have not been residing at the farm but in 1107 Zamani location in Memel.
This is common cause and, in any event, not seriously disputed. This being the case,
the eviction of the respondents from the farm would, in the light of all relevant
considerations, be just and equitable.
24
[48] The conclusion alluded to in the preceding paragraph leads to the next issue,
which is this. Should the respondents be afforded time to ‘vacate’ their residence and,
if so, how long? At the hearing counsel for the applicants submitted that a period of 30
days would be more than adequate for the respondents to remove whatever personal
effects were left behind on the farm. Counsel justified this period on the basis that the
respondents are no longer residing on the farm and therefore a period of 30 days will
not occasion any hardship to them. For his part, the respondents’ legal representative
contended for 90 days. However, I could not understand why he thought 90 days would
instead meet the justice and equity of the case given the prevailing situation. It
appeared that counsel’s submission in relation to this aspect was made without rhyme
or reason as I could not discern any plausible basis therefor. Nevertheless, I shall
indulge the respondents by affording them 15 additional days to the period of 30 days
proposed by counsel for the applicants. Taking into account all relevant factors I
consider a period of 45 days to be more than adequate to enable the respondents to
collect and remove whatever personal possessions that may have been left behind in
March 2024.
Costs
[49] It remains to address the issue of costs. In its notice of motion, the applicants
prayed for costs on an attorney and client scale. However, the prayer for costs on such
a scale was not in any way motivated in the applicants’ founding affidavit. As a general
rule the award of costs is at the discretion of the court, which discretion must be
exercised judicially. But over the years an enduring practice to the effect that costs
follow the event has firmly taken root. Insofar as the award of costs on an attorney and
client scale is concerned, it bears mentioning that a court will not grant costs on such
a scale lightly because, as a general rule, courts look upon such awards with disfavour.
a scale lightly because, as a general rule, courts look upon such awards with disfavour.
Thus, there must exist exceptional circumstances before a court will award costs on
an attorney and client scale. In the context of the facts of this case, I cannot discern
any special consid erations to warrant the grant of a punitive costs order. Therefore,
no punitive costs will be awarded.
[50] Furthermore, there are also costs associated with the hearing before the high
25
court that were reserved for determination by this Court. On 12 June 2025 the high
court granted an order transferring the proceedings then pending before it to this Court
for adjudication. This came about as a consequence of the preliminary point taken by
the respondents that the high court lacked jurisdiction as the relief sought by the
applicants fell within the exclusive jurisdiction of this Court. That the proceedings were
eventually transferred to this Court is clear indication, in my view, that the a pplicants
were, after initially resisting the point, ultimately constrained to concede the preliminary
point taken by the respondents at the door -step of the court. Thus , the costs
associated with the hearing before the high court on 12 June 2025 should be for the
account of the applicants on an opposed scale.
[51] Before making the order, I am constrained to tender my sincere and profuse
apology to the parties for the delay in rendering this judgment. Whilst I had planned to
expedite the preparation of the judgment it was not possible to do so due to a
concatenation of several factors that were beyond my control. The resultant delay is
deeply regretted.
Order
[51] In the result the following order is granted:
1. The first and second respondents’ right of residence on the farm
Meulstroom is hereby terminated.
2. The first and second respondents are directed to vacate the house occupied
by them on Manesrust, Meulstroom farms within 45 days of the date of this
order.
3. Should the first and second respondents refuse, neglect or fail to vacate the
premises within the period stipulated in paragraph 2 hereof, the Sheriff of
the court in the district in which the property is situated is hereby authorised
to evict them.
4. Upon the eviction of the first and second respondents from the premises,
the applicants shall be entitled to demolish the structure/house vacated by
the said respondents.
5. The first and second respondents shall pay the costs of the application
5. The first and second respondents shall pay the costs of the application
jointly and severally, the one paying the other to be absolved.