THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Case No: 2024-124657
Before: Ncube J, Du Plessis J and Pullinger AJ.
Heard on: 9 February 2026
Delivered on: 15 May 2026
(1) REPORTABLE: Yes~/ No □
(2) OF INTEREST TO OTHER JUDGES: Yes~/ No □
(3) REVISED: Yes ~/ No D
Date: 15 May 2026
Signature:
In the matter between :
EMMA SOPHIA DREYER N.O.
WILLEM PETRUS DREYER N.O.
JOHANN SADIE N.O.
[in their capacity as the trustees in the
meantime of DIE EMMA DREYER
TRUST IT 3142/2010]
W&E DREYER BOERDERY CC
WILLEM PETRUS DREYER
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth applicant
2
and
MARIA WITBOOI
First Respondent
WILLIE WILLEMSE
Second Respondent
AND ALL THE OTHER PERSONS
PRESINDING WITH OR UNDER THE
FIRST TO SECOND RESPONDENTS
IN THE PREMISES ON MOOIGELEE
FARM, DIVISION PAARL
Third Respondent
DRAKENSTEIN MUNICIPALITY
Fourth Respondent
THE DEPARTMENT OF
AGRICULTURE, RURAL
DEVELOPMENT AND LAND REFORM
Fifth Respondent
ORDER
1. The appellants’ further evidence is admitted.
2. The first respondent is granted condonation for the late delivery of her
application to adduce further evidence on appeal.
3. The first respondent’s further evidence is admitted.
4. The appeal succeeds in part, and the order of the Court a quo (per Mabasa AJ)
is set aside and replaced with the following:
4.1 The eviction order granted by the Magistrate Paarl on 27 May 2024
against the second respondent and those third respondents whose
occupation is derivative of his is confirmed.
4.2 In respect of the first respondent and those third respondents residing
with or under her, the matter is remitted to the Magistrate’s Court, Paarl,
for the hearing of oral evidence on the following issues:
3
4.2.1 when and on what basis did the first respondent take up
occupation of the dwelling on Mooigeleë Farm;
4.2.2 was the first respondent’s right of occupation of the dwelling on
Mooigeleë Farm lawfully terminated in the circumstances of
paragraph 4.2.1 above;
4.2.3 did the first respondent vacate the dwelling in or about December
2024, or at any time thereafter, with the intention of making her home
elsewhere, and, if so, whether she later returned, or attempted to return,
to the dwelling.
4.3 the witnesses who deposed to affidavits may be called to give evidence
before the Magistrate’s Court, and either party may call such further
witnesses and discover such documents as are relevant to the issues
identified in paragraph 4.2, in accordance with the rules of that court.
5. There is no order as to costs in the appeal or in the court a quo.
JUDGMENT
___________________________________________________________________
DU PLESSIS AJ (with whom NCUBE J AND PULLINGER AJ concur)
Introduction
[1] This is an appeal against the judgment of this court (per Mabasa AJ),1 which
reviewed and set aside an eviction order granted by in terms of the Extension of
Security of Tenure Act2 (“ESTA”) by the Paarl Magistrates' Court3, and dismissed the
eviction application.
1 Dreyer N.O v Witbooi (2024/124657) [2024] ZALCC 45 (9 December 2024).
2 62 of 1997.
3 Dated 27 May 2024 under case number 2022/2093.
4
[2] The appellants are the trustees of the Emma Dreyer Trust, together with W &
E Dreyer Boerdery CC and Mr Willem Petrus Dreyer, the owners and persons in
charge of Mooigeleë Farm (“the farm”), division Paarl.
[3] The first and second respondents, Ms Maria Witbooi and Mr Willie Willemse,
reside in a dwelling (“the dwelling”) on the farm with other family members, who are
cited as the third respondent. For convenience, the first, second and third respondents
are collectively referred to below as “the respondents”.
[4] The Drakenstein Municipality and the Provincial Director of the Department of
Agriculture, Rural Development and Land Reform are cited as the fourth and fifth
respondents, respectively. They do not play any role in this appeal.
[5] The dispute concerns the respondents’ occupation of the dwelling. The
appellants contend that the respondents took occupation of the dwelling in 2020
without their consent, that they never worked for the appellants, that any right they had
to occupy the dwelling was terminated, and that their eviction from the dwelling is just
and equitable.
[6] Ms Witbooi alleges that she has resided in the dwelling continuously since
about 1996; initially with her parents and then in her own right. She contends that the
dwelling is, and has been since 1996, her permanent home. She denies ever vacating
the dwelling or that her tenure has been lawfully terminated.
Proceedings in the Magistrate’s Court and automatic review
[7] In 2022, the appellants initiated the eviction proceedings against the
respondents. Mr Dreyer, for the applicants, alleged that neither of the respondents had
ever been employed by the appellants, that the dwelling had been allocated to Ms
Witbooi’s son, Brendon, as an employee under a written housing agreement, and that
the respondents had unlawfully occupied the dwelling from September 2020.
[8] The application was opposed by the respondents on the aforesaid basis.
5
[9] In compliance with section 9(3) of ESTA, a probation officer’s report was
prepared and filed, addressing the respondents’ personal circumstances and the
consequences of an eviction order to them. The Drakenstein Municipality also filed a
municipal report, inter alia, addressing the availability of alternative accommodation.
After hearing the argument and considering these reports, the Magistrate, on 27 May
2024, granted an order for the respondents' eviction from the dwelling.
[10] As required by ESTA, the Magistrate’s order was referred for automatic review
to the Land Court.
[11] On 9 December 2024, the reviewing Judge set aside the Magistrate’s order and
dismissed the eviction application. The review ing Judge held, in essence, that there
were material disputes of fact regarding (a) whether Ms Witbooi and Mr Willemse were
long-standing occupiers of the dwelling and employees on the farm , as they alleged,
or (b) whether, as the appellants contend, they, in 2020, unlawfully took occupation of
the dwelling after Brandon vacated it, and implicitly (c) whether, in the circumstances,
any right of occupation the respondents enjoyed had been lawfully terminated.
[12] On those competing versions, she held that, applying the test in
Plascon-Evans4, the disputes were genuine and material and could not be decided in
the appellants’ favour on the papers. On that basis, she set aside the Magistrate’s
eviction order and dismissed the eviction application.
Appellants’ application for leave to appeal and to adduce new evidence
[13] On 27 February 2025 , the appellants launched an application for leave to
appeal against the review judgment and order, together with an application to adduce
further evidence in terms of section 19(b) of the Superior Courts Act.5
[14] In the application to adduce new evidence, the appellants sought an order
admitting a series of affidavits and annexures.
4 Plascon‑Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
4 Plascon‑Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
5 10 of 2013. The appellants relied on section 19(b), erroneously, as will be indicated below.
6
[15] The founding affidavit deposed to by the appellants’ attorney explained that,
after the Magistrate’s judgment and the automatic review, new facts had come to light
regarding the respondents’ occupation of the dwelling; in particular, the appellants
contended that they had vacated the dwelling and no longer resided there.
[16] On 7 May 2025 , Mabaso AJ granted the appellants leave to appeal and,
purporting to act in terms of section 19(b) of the Superior Courts Act, granted their
application to adduce further evidence by ordering that the new affidavits be admitted
for purposes of the contemplated appeal.
Application to adduce new evidence
[17] Section 19 of the Superior Courts Act 6 circumscribes the power of Superior
Courts7 when hearing appeals. One of those powers includes, in terms of sub-section
(b), the power to receive further evidence. The parties relied on section 19(b) of the
Superior Courts Act in seeking leave to adduce further evidence. The reliance on this
provision is, however, misplaced.
[18] The Land Court was established as a Superior Court by the Land Court Act.8 It
has the same powers as a division of the High Court in relation to matters falling within
its jurisdiction. 9 The Land Court Act, however, limits the application of the Superior
Courts Act10 to those instances where the Land Court Act does not itself have an
equivalent provision, and then only to the extent that there is no conflict with the Land
Court Act.
[19] As a court of the same status as a division of the High Court, the Land Court
has its own appellate jurisdiction, which includes, in terms of section 17(2)(a) read with
section 3(1)(a), the power to receive further evidence.
6 10 of 2013.
7 As defined in section 1 of the Superior Courts Act.
8 Act 6 of 2023; section 3(2)(a).
9 Section 24(1).
10 Act 10 of 2023.
7
[20] Section 17(2)(a) provides:
“(2) The Court, at the hearing of any appeal in terms of this Act or any law
conferring upon it any appellate jurisdiction, has the power—
(a) to receive further evidence;”
[21] From a plain reading of the words, it is the court, “at the hearing of any appeal”,
that has the power to receive further evidence. In other words, the power to admit new
evidence is thus conferred on the court seized with the appeal, not the court grantin g
the leave to appeal.11
[22] There is no bar to a litigant, when applying for leave to appeal, indicating an
intention to seek leave to adduce further evidence on appeal. Where such evidence
may materially affect the outcome, that may legitimately be taken into account in
deciding whether the threshold for leave is met. But it is not for the court hearing the
leave application to admit the evidence itself; that is a power reserved to the appeal
court, as section 17(2)(a) of the Land Court Act makes clear.
[23] Appeals are generally decided on the facts and law as they stood when the
judgment or order was given.12 There are, however, cases where significant facts arise
after judgment. The law on admitting such further evidence on appeal was considered
in Rail Commuter Action Group v Transnet Ltd t/a Metrorail,13 where the Constitutional
Court cautioned that the power to admit post ‑judgment evidence must be exercised
sparingly and only in exceptional circumstances, when the evidence is weighty,
material and credible.
11 See DE van Loggerenberg Erasmus Superior Court Practice (LexisNexis Online) at Commentary on
Section 19(b) of the Superior Courts Act, which has similar wording.
12 McDonalds Corporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another; McDonalds
Corporation v Dax Prop CC and Another; McDonalds Corporation v Joburgers Drive -Inn Restaurant
(Pty) Ltd and Dax Prop CC 1997 (1) SA 1 (A) at 14A – C.
13 2005 (2) SA 359 (CC) para 43.
8
[24] The Rail Commuter principle was extended by the Supreme Court of Appeal in
Krügel Heinsman Incorporated v Thompson 14 to include interests of justice where
subsequent events materially affect the order that had been made.
[25] Therefore, the court below was not empowered by law to receive further
evidence for purposes of a future appeal. Given the approach we take in receiving the
further evidence in terms of section 17(2)(a), it is not necessary to answer whether
Mabaso AJ’s or der admitting the appellants’ further evidence would be a nullity
otherwise.15
Ms Witbooi’s application to adduce new evidence and condonation
[26] The appellants’ new evidence prompted a responsive application from the first
respondent. Shortly before the scheduled hearing, Ms Witbooi, represented by Legal
Aid South Africa, applied for leave to adduce further evidence on appeal, together with
condonation for its late filing. She sought to place before the Court a supplementary
affidavit dealing with the appellants’ allegation that she had vacated the dwelling in
December 2024, and confirmatory affidavits from fellow occupiers, all refuting that
allegation and stating that she had at all times remained in continuous occupation of
the dwelling.
[27] Because Ms Witbooi’s application was brought on the eve of the hearing of 2
December 2025, she also sought condonation. She explained the lateness by
reference to Legal Aid’s capacity constraints, the practical difficulty in contacting her,
and the time needed to obtain corroborating affidavits once she became aware of the
content of the appellants’ new evidence, and submitted that, given the centrality of the
proposed evidence to her status as an occupier under ESTA, the serious prejudice
she would suffer if it were excluded, the limited inconvenience to the appellants, and
the constitutional protection of tenure in ESTA and section 25(6) of the Constitution ;
the interests of justice favour condonation.
the interests of justice favour condonation.
14 (41/2022) [2023] ZASCA 38 paras 24 to 29.
15 Department of Transport and Others v Tasima (Pty) Limited (CCT5/16) [2016] ZACC 39; 2017 (1)
BCLR 1 (CC); 2017 (2) SA 622 (CC) para 197; Knoop. N.O and Another v Gupta (Execution) 2021 (3)
SA 135 (SCA) at paras 27 to 34.
9
[28] Once the respondents obtained legal representation, their legal representatives
considered it necessary for the Court to have a complete picture of the post‑judgment
facts and filed a supplementary affidavit by Ms Witbooi and confirmatory affidavits from
fellow occupiers, directly traversing the allegation that she had vacated the dwelling
and asserting continuous occupation.
[29] Condonation is not a formality. It is granted in the exercise of a discretion, after
proper consideration of all relevant facts, including the degree of lateness, the
explanation for the delay, the prospects of success, the importance of the issues, and
the prejudice to each party; these factors are interrelated and must be weighed in the
overall interests of justice.
[30] Here, the delay is material: Ms Witbooi brought her application to adduce further
evidence only on 30 November and 1 December 2025, on the eve of the hearing of 2
December 2025, some months after the appellants’ further affidavits had been
“admitted” by Mabasa AJ.
[31] Her explanation rests on Legal Aid’s capacity constraints, the difficulty in
contacting her, and the time needed to obtain corroborating affidavits once she
became aware of the appellants’ allegation that she had vacated the dwelling; while
not perfect, it is reasonable.
[32] The proposed evidence goes to the heart of her ESTA status and directly
answers a new, potentially decisive allegation, whereas the appellants suffer chiefly
the inconvenience of a postponed appeal. In light of the constitutional protection of
tenure in ES TA and section 25(6) of the Constitution, the interests of justice favour
condonation, and it should be, and is, granted.
Admission of the parties’ further affidavits
[33] I consider this case an instance in wh ich significant facts have arisen after
judgment. The litigation commenced in the Paarl Magistrates’ Court in 2022 and was
subject to automatic review in 2024. In 2025, the appellants sought to introduce further
subject to automatic review in 2024. In 2025, the appellants sought to introduce further
affidavits alleging that the respondents had vacated the dwelling, with a view to
10
neutralising the factual dispute identified by Mabasa AJ and rendering the eviction
question and the review outcome built on it effectively moot.
[34] In my view, it would be in the interests of justice that the developments
surrounding the respondents’ occupation of the dwelling since 2022 be considered as
part of the factual matrix because of its materiality.
[35] Taken together, the new affidavits on both sides are weighty, material and, on
the face of it, credible; they bear directly on whether the eviction proceedings have
become moot and on Ms Witbooi’s continued occupation of the dwelling. The further
affidavits crystalise discrete disputes between the parties that must, in the interests of
justice, be determined.
[36] The affidavits should therefore be received as further evidence on appeal in
terms of section 17(2)(a) of the Land Court Act.
Plascon‑Evans, Wightman and the merits of the appeal
[37] Once both sets of affidavits are received, this Court is again confronted with
the same core factual dispute that arose in the Magistrates’ Court and was identified
by Mabasa AJ, now amplified by further affidavits and new facts on both sides. The
question is whether this Court should attempt to resolve that dispute on the papers or
remit the matter for the hearing of oral evidence.
[38] In motion proceedings for final relief, a court may grant an order only if the facts
as stated by the respondent, together with those in the applicant’s affidavits that are
admitted, justify the order . Only where the respondent’s version is so far ‑fetched or
clearly untenable that it can properly be rejected on the papers , may the court depart
from that approach.16
[39] In Wightman t/a JW Construction v Headfour (Pty) Ltd 17 the Supreme Court of
Appeal emphasised that a respondent must seriously and unambiguously engage with
16 Plascon‑Evans Paints Ltd n 4
17 Wightman t/a J W Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA).
11
the facts said to be disputed, and that bare denials or fictitious disputes of fact may be
ignored. But Wightman also cautions that where a respondent puts up a coherent
factual version based on first ‑hand knowledge, the court is not entitled to reject it
merely because it appears improbable . The high threshold for rejecting a version as
“so far‑fetched or clearly untenable” remains.
[40] As regards Mr Willemse, there is, in truth, no real dispute of fact once the further
evidence is received. On Ms Witbooi’s own instructions to Legal Aid, he has vacated
the dwelling, now resides elsewhere , and has filed no affidavit asserting a right of
residence under ESTA. Those third respondents, whose presence is purely derivative,
likewise have not articulated any independent defence to eviction.
[41] In these circumstances, the Magistrate’s order of eviction against the second
respondent and those third respondents who reside only through him was properly
granted and ought to be reinstated.
[42] Ms Witbooi’s position is different. Two issues are central to her ESTA status.
The first is the long ‑standing dispute, already identified by Mabasa AJ, about when
and on what basis she first occupied the dwelling.
[43] The appellants’ case is that when they took over the farm in 2018 , neither of
the respondents was residing in the dwelling; only Ms Witbooi’s son, Brendon, was an
employee‑occupier. They contend Ms Witbooi and Mr Willemse only appeared in that
dwelling after Brendon vacated the dwelling with his family in June 2020. They rely
heavily on the 2018 employment and housing agreement (‘the 2018 agreement”) ,
naming only Brendon’s partner and minor children as occupants, and on the evidence
of their HR manager, Ms Judd, that she met “all households” on the farm. The evidence
is that when Ms Judd met these households, the respondents were not occupants of
the dwelling. The appellants further rely on a letter written to Ms Witbooi in September
the dwelling. The appellants further rely on a letter written to Ms Witbooi in September
2020, which records that her occupation of the dwelling was unlawful and demands
that she vacate it (“the 2020 letter ”). Ms Witbooi did not respond to this letter by
disputing the alleged unlawfulness of her occupation at all and does not address her
failure to have done so in her answering affidavit.
12
[44] Ms Witbooi , in contrast, says she arrived on the farm around 1995 with
Brendon, then nine months old; that she worked on the farm from 1996; and that she
has always lived in the same dwelling, originally occupied by her parents. She
describes a conversation with the previous owner, one Rousseau, in which he
allegedly assured her and other long -term occupiers that they could remain on the
farm even if they did not work for the new owners, and that they could not be “thrown
out”. Her account is supported by confirmatory affidavits from the second respondent
and Ms Geduld, another occupier of the farm.
[45] Ms Witbooi, while not addressing the 2020 letter , does, however, place Ms
Judd’s evidence squarely in dispute, saying “[w]hen the new owners took over to look
at all the homes, and they came to meet us. At no stage did they say to us that we
need to vacate the premises or that we needed to work at the farm in order to stay on
the farm.”
[46] It is correct that Ms Witbooi’s dating is imprecise and that her failure to explain
her omission from the 2018 housing agreement and her inaction when the September
2020 letter accusing her of unlawful occupation was sent are real weaknesses in her
case. Ms Witbooi’s evidence is not, however, a bare denial. She gives a detailed, first-
hand account of her history on the farm, her work, and the basis on which she
understood her right of residence in the dwelling to endure.
[47] Neither the 2018 agreement nor the 2020 letter, important as they are,
conclusively disprove s Ms Witbooi’s presence on the farm before 2018. They are
pieces of evidence which must be weighed. They are not, without more, a basis for
rejecting her version outright as clearly untenable.
[48] On a fair reading, that version is “real, genuine and bona fide ” in
the Wightman sense, even if it may ultimately be found wanting at trial. In this respect,
I agree with the court below. Mabasa AJ correctly held that these disputes of fact could
I agree with the court below. Mabasa AJ correctly held that these disputes of fact could
not be resolved in favour of the appellants under the Plascon‑Evans rule.
13
[49] The court a quo, having found that the disputes could not be determined on the
papers, exercised its discretion to set aside the Magistrate’s order and dismissed the
eviction application. If that w ere the end of the matter, Mabasa AJ’s order would be
upheld.
[50] However, on appeal, this court is faced with a situation where evidence results
in a further dispute arising, in addition to the long ‑standing dispute identified by
Mabasa AJ about the basis and duration of Ms Witbooi’s occupation: the parties now
squarely contest whether she vacated the dwelling in or about December 2024 and, if
so, whether she later returned. The question as to when Ms Witbooi came to occupy
the dwelling must be determined, one way or the other, in the interests of both parties.
[51] Ms Witbooi’s evidence goes to matters of credibility and probability, which are
determined by oral evidence. A court hearing oral evidence enjoys certain advantages,
such as observing the witnesses and having a witness’s evidence tested under cross-
examination.
[52] The question of Ms Witbooi’s comings and goings , together with the existing
dispute about her historic occupation, becomes central to the just determination of the
eviction proceedings. In th ese circumstances, the appropriate course is not finally to
dismiss the eviction application against her, but to remit the matter to the Magistrate’s
Court, Paarl, for the hearing of oral evidence on defined issues.18
[53] In terms of section 17(2)(b) of the Land Court Act, this court can remit the case
to the court of first instance for a further hearing, with such instructions as regards the
taking of further evidence or otherwise as the Court considers necessary. Apart from
the authority to do so in terms of section 17(2)(b), as a court of equity,19 this seems to
be the equitable route to follow. In view of the further evidence now received on appeal,
it is appropriate, not because the court a quo erred on the record before it, but because
it is appropriate, not because the court a quo erred on the record before it, but because
18 This is because a court of appeal should as a rule not make factual findings as a court of first instance,
see Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) at paras 7 and 8.
19 Section 3(1) of the Land Court Act
14
the factual matrix has evolved, to vary its order so as to remit the eviction application
against Ms Witbooi for the hearing of oral evidence.
Order
[54] Accordingly, the following order is made:
1. The appellants’ further evidence is admitted.
2. The first respondent is granted condonation for the late delivery of her
application to adduce further evidence on appeal.
3. The first respondent’s further evidence is admitted.
4. The appeal succeeds in part, and the order of the Court a quo (per Mabasa
AJ) is varied to regulate the further conduct of the eviction proceedings in
light of the further evidence now received, and replaced by the following:
4.1 The eviction order granted by the Magistrate Paarl on 27 May 2024
against the second respondent and those third respondents whose
occupation is derivative of his is confirmed.
4.2 In respect of the first respondent and those third respondents
residing with or under her, the matter is remitted to the Magistrate’s
Court, Paarl, for the hearing of oral evidence on the following issues:
4.2.1 when and on what basis did the first respondent take up
occupation of the dwelling on Mooigeleë Farm;
4.2.2 was the first respondent’s right of occupation of the
dwelling on Mooigeleë Farm lawfully terminated in the
circumstances of paragraph 4.2.1 above;
4.2.3 did the first respondent vacate the dwelling in or about
December 2024, or at any time thereafter, with the
intention of making her home elsewhere, and, if so,
whether she later returned, or attempted to return, to the
dwelling.
4.3 the witnesses who deposed to affidavits may be called to give
evidence before the Magistrate's Court, and either party may call
such further witnesses and discover such documents as are relevant
to the issues identified in paragraph 4.2, in accordance with the rules
of that court.
5. There is no order as to costs in the appeal or in the court a quo.
For the appellant:
For the respondent:
WJ du Plessis
Acting Judge of the Land Court
A Montzinger instructed by Otto Theron
Attorneys
H Julius and L Mgedezi of Legal Aid
South Africa, Stellenbosch Local Office
15