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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A303/2024
In the matter between:
BERGRIVIER BOERDERY (PTY) LTD Appellant
and
LYNOL JULIUS PIETERSON First Respondent
LE-ANZE CATHERINE PIETERSON Second Respondent
(Together with all those holding title through respondents and/or
any other persons who occupy the premises vis-à-vis the respondents)
SWARTLAND MUNICIPALITY Third Respondent
Coram: DOLAMO, KUSEVITSKY JJ et MAPOMA AJ
Heard: 21 July 2025
Delivered: 19 May 2026 (delivered electronically)
Summary: Application for eviction of the re spondents from the property
which they formerly owned but had sold to the appellant under
dubious circumstances - whether it would be just and equitable to
evict them - what is just and equitable in the context of evictions.
ORDER
1. An order is hereby granted for the eviction of the first and secon d
respondents as well as any other persons who may be occupying the property
through them from erf 1[…] Korinberg situated at 1[…] P[…] Street
Koringberg;
2. The operation of the eviction order referred to in paragraph 1, supra, is
hereby suspended for a period of One Hundred and Eighty (180) days. The
suspension of the order is on the following conditions:
2.1 that the parties engage in bona fide negotiations for the resolution of
their disputes.
2.2 Failing to reach any agreement following such negotiations within
thirty (30) days from the date of this order , the respondent s shall
institute any legal proceedings for any relief to which they may be
entitled, within thirty (30) days of the expiry of the first thirty (30) day
period from the date of this order;
3. The suspension of the eviction order referred to in paragraph 1 supra
shall fall away and the sheriff of th is court shall evict the respondents from
the property in the event of the parties fail ing to reach any settlement as
envisaged in paragraph 2.1, supra and the respondents failing to institute
legal proceedings for any relief within 60 days of this order, in which event the
respondents shall be liable for costs on a party and party scale C.
4. At any stage prior to the expiry of the thirty (30) day period referred to in
paragraph 2.1 supra, any of the parties shall be entitled, on 10 (ten) days
written notice to the other, to approach a Judge in chambers for directives for
the further conduct of the negotiations or any other matter relating to the
negotiations for a settlement.
JUDGMENT
DOLAMO, J (KUSEVITSKY J et MAPOMA AJ concurring)
Introduction
[1] This is an appeal against the judgment of Lekhuleni J dismissing an
application brought in terms of s 4(1) of the Prevention of Illegal Evictions from
and Unlawful Occupation of Land Act 1 (PIE) for the eviction of the respondents
from a property registered in the name of the appellant. The appeal is with the
leave of the court a quo.
1 Act 19 of 1998.
[2] The appellant is the registered owner of erf 1 […] Korinberg, also known as
1[…] P[…] Street, Koringberg (the property). The appellant purchased the
property from the respondents on 7 December 2017 for R655 000.00, The property
was thereafter registered in the appellant’s name on 26 February 2018. On 28
February 2018 the appellant , represented by its director Johannes B ernard Zulch
Conradie (Bernard) 2, entered into a written lease agreement with the respondents .
In terms of this agreement the respondents leased their former home from the
appellant for a period of two years. On 28 February 2020 the written lease
agreement was terminated by effluxion of time whereafter it continued on a month-
to-month basis. On 28 July 2020 the appellant sold the property and sought to evict
the respondents therefrom so as to give vacuo possessio to the purchaser. This was
resisted by the respondents , which led to the app ellant bringing an application for
their eviction.
[3] The matter was referred for the hearing of oral evidence in terms of rule
6(5)(g). The circumstances under which the respondents purchased the property ,
sold it to the appellant and, thereafter, leased it from the appellant to remain in
occupation of what was their former home are, inter alia, the sources of the
disputes of fact. The circumstances under which the Lynol Pieterson Family Trust
(LPFT), which featured prominently in the proceedings , was formed and the
purpose of its formatio n; what led to its name change; and why the first
respondent (‘Lynol’), who was a founder and trustee, was removed as a trustee ;
what delayed LPFT’s acquisition of a 30% shareholding in the appellant, as
2 Reference to the deponent to the applicant’s affidavit by his first name is not to be construed as any sign of
disrespect but to draw a distinction between him and his father, Johan Conradie. The same applies to the first and
second respondents: mentioning them by their first names is for purposes of distinction.
envisaged when an application for a water use licence was made by the LPFT to
the Department of Water Affairs; and the dismissal of Lynol from his employment
by the appellant, are the other sources of disputes of fact.
[4] The order referring the matter to oral evidence stipulated that evidence be
heard on the following issues:
4.1 Whether the LPFT and/or the respondents are entitled to 30% shareholding
in the appellant company and/or any dividends in return for the LPFT making
available to the appellant its water use rights in terms of the water use
license issued to the LPFT by the Department of Water Affairs;
4.2 Whether the LPFT and the appellant entered into a cooperation agreement
which was annexed to the replying affidavit and whether such agreement
currently governs the relationship between the LPFT and the appellant;
4.3 Whether Bernard, on behalf of the appellant, represented to the first
respondent that he will be entitled to repurchase the property once the
appellant had paid the LPFT dividends , to which the LPFT allegedly was
entitled to by virtue of being a 30% shareholder in the appellant;
4.4 Whether or not B ernard coerced first respondent and/or the second
respondent into selling their property to the appellant;
4.5 Whether the appellant utili sed the LPFT ’s water use allocation in terms of
the water use license since the license was granted in 2014;
4.6 Whether the appellant paid the LPFT any money for any use of the water
allocated under the water use license since 2014; and
4.7 Which party bears the obligation to pay all water use charges , costs, fees,
tariffs, penalties, interests and other amounts which are or become payable
in respect of the water use license and the water extracted in terms thereof.
[5] The court a quo heard the oral evidence of Le-Anze Catherine Pieterson (Le-
Anze); Lynol Julius Pieterson (Lynol) for the respondents and Bernard testified on
behalf of the appellant. I deal first with the common c ause facts that emerged from
the evidence and , where necessary, with the version of each side on those issues
which remain in dispute, to set out the background to this appeal. Thereafter I deal
with the issues in the appeal.
Background
[6] Lynol started working for Johan n Conradie (Johan n), B ernard’s father, in
Porterville in 1984. Bernard was only a year old and Lynol was 24 years old at the
time. He started as a farm labourer and was later promoted to farm manager. He
went only as far as Grade 8 in his formal education. Bernard purchased the farm
Zanddrift Nr 149 in 2010 which is situated in Koringberg, and which was
registered in the name of the appellant, a company formed in that same year. Lynol
continued to work for the Conradies but under the appellant company. Lynol and
his wife purchased their first h ouse in Porterville in 2005 and resided therein, with
Lynol commuting daily for a distance of approximately 64 kilometres between his
home and work in Koringberg.
[7] During 2010 Johan created the LPFT which was registered with the Master
of the High Court in that same year. No trust deed of the LPFT was annexed to the
papers. It is, however, alleged that the purpose of creating the trust was to cater for
the welfare of one or more of the beneficiaries referred to in the trust deed.
According to the appellant t hese beneficiaries were to include those persons who
may from time to time be selected by the trustee s in their absolute discretion to be
beneficiaries in respect of the trust’s income, capital or both . They were to come
from amongst members of the classes consisting of (i) Lynol, (ii) Le-Aze (ii) Lee-
Roy Carlo Pieterson, (iv) Moravia Boerdery (Pty) Ltd, (v) the descendants of these
parties, (vii) any trust established for the benefit of any of the above - mentioned
people, and (vi) the heirs of Lynol, in certain circumstances.
[8] The original trustees of the LPFT were Lynol , Johann, and one Willem
Jacobus Cronje. During or about September 2019 the LPFT’s name was changed to
the Bergrevier Boerdery Werker s Trust and during or about the same time Lynol
was removed as a trustee of this trust. The circumstances under which Lynol was
removed as a trustee of LPFT/ Bergrevier Boerdery Werkers Trust was one of the
issues on which a dispute of fact existed and was dealt with by the court a quo.
[9] The circumstances that led to the dispute between the Conradies and the
appellant, on the one hand, and the Pieterson and the LPFT, on the other, can be
traced back to a water use licen se that was granted to the LPFT. T aking advantage
of the Broad Based Black Economic Empowerment (BBBEE) policies of the
National Government which in the agricultural sector are aimed at fast -tracking
previously disadvantaged individuals’ access to commercial farming , Johan and/or
Bernard used the LPFT to apply for a water use license in favour of the appellant.
On or about 15 December 2015 in terms of the provisions of s 21(a) the National
Water Act,3 the LPFT was granted a water use licence . This enabled the LPFT to
draw water from the Bergrivier Government Water Scheme for the benefit of the
appellant. The licence is valid for a period of twenty years.
[10] It needs to be emphasised that the application for the water use licence
submitted to the Department of Water Affairs was in the name of the LPFT. The
3 Act 36 of 1998.
LPFT was described in the application as a registered Black Economic Enterprise
that was established to hold an equity stake in the appellant which is a commercial
farming enterprise. The Zanddrift farm had 107 hectares of summer water use
rights and required additional water rights to expand its business operations. The
proposal was to acquire additional water use rights on behalf of the future BBBEE
shareholder, being the LPFT. Once granted the rights, the LPFT would use these
rights to acquire 30% shareholding in the appellant.
[11] The water use licence reflects the LPFT as the registered owner of the farm
Zanddrift, which is clearly an error with regard s to the identity of the owner of
Zanddrift. This error can be rectified by applying for an amendment of the licence
to reflect the appellant as the owner of Zanddrift. However, there is no error as far
as the identity of the applicant and to whom the water use licence was granted. It is
therefore not clear why Bernard would allege that the water use license was
erroneously issued to the LPFT when , from the start , the licence was applied for
and was issued in the name of the LPFT. But for the error of naming the LPFT as
the registered owner of the property the licence was issued to the right applicant.
[12] After the LPFT was granted the water use licence the appellant sought to
have access to the water resources which were correctly in the hands of the LPFT .
Bernard admits in reply that the LPFT posse sses these resources by virtue of being
granted a water use licence . In recognition of the LPFT’s ownership of the water
rights t he parties concluded an agreement in terms of which they were to sw ap
assets. In their undated written agreement, the appellant and the LPFT agreed to
exchange the water use rights for shares in accordance with the stipulations of s 42
of the Income Tax Act4 (the asset swap agreement).
[13] The preamble to this agreement states that the LPFT is the licensee of certain
water use rights allocated to the immovable property; that the appellant intends to
increase the number of the authorised shares from 1000 to at least 1250 shares of
the same class in accordance with s 36(3) of the Companies Act 5; and that the
parties are desirous that the trust transfers the water use rights to th e company. The
effect of this transaction w ould have been that the Bernard Conradie Trust (BCT)
would own 80% and the LPFT 20% of the appellant’s shares . The 20%
shareholding by the LPFT would have been 10% less than what was envisaged in
the water use lice nce application submitted to the Department of Water Affairs on
behalf of the LPFT. This agreement, however, has since lapsed.
[14] Bernard used the mistake in naming the LPFT as the owner of the property
in the licence to explain to Lynol the alleged delay in implementing the agreemen t
to transfer 30% shares in the appellant to the LPF T. The parties thereafter entered
into a further agreement on 31 August 2018, ostensibly to give effect to the parties’
intention. The gist of this agreement , called a Notarial Certificate ( or co-operation
agreement), is that the LPFT shall make its resources available for utilisation by
the appellant and , in exchange , the appellant would remunerate /pay the LPFT in
accordance with an agreed formula. I need to point out that in his evidence Lynol
denied the existence of this agreement.
[15] Whilst this agreement is still valid, and the appellant was making use of the
water drawn pursuant the water use licence , there has been no reciprocal
4 Act 58 of 1961.
5 Act 71 of 2008.
performance by the appellant: the appellant did not pay the LPFT for the use of this
water. In the meantime, the LPFT continued to accumulate a debt that is owed to
the Department of Water Affairs in respect of the utilisation of the water drawn
through the use of the licence. This debt at one stage stood at R1,3million . I need
to point out that there were two payments made by the appellant to the LPFT, but a
great deal of debate surrounds the circumstances of these payments. I n my view, it
is not necessary to go into the debate for purposes of determining this appeal.
[16] The LPFT applied several times to the Department of Water Affairs in terms
of s 50(1) read with s 52 of the Act to amend the water use licence to reflect the
appellant as the holder thereof. This rectification /amendment, according to
Bernard, would reflect the true intention of the parties . The net effect of such a n
amendment, if it were to be successful before the LPFT has been allocated the 30%
shares in the appellant, would be that the LPFT will be stripped of any rights to the
licence without acquiring any shares in the appellant.
[17] Bernard states that the reason for the attempts to transfer the water use
licence in to the name of the appellant is to enable the appellant to use it as
collateral security when approaching financial institutions for loans to fund its
business operations. But if that is the case the appellant should have, from the start,
applied for the licence in its own name and not involve the LPFT . It is apparent
from this explanation that the appellant intended to use the LPFT to meet the
requirements of the Department of Water Affairs’ policy to grant water use licences
to previously disadvantaged people, and, once these rights have been granted, to
change/transfer the licence into the name of the appellant . The question is whether
in so doing the appellant intended to reciprocate by allocating 30% of its shares to
the LPFT.
[18] A further development is that during or about 10 November 2022 the
Department of Water Affairs suspended the LPFT’s water use licence for non -
compliance with the conditions of the licence. An appeal by the LPFT against this
suspension is pending before the Water Tribunal.
[19] I revert to the timeline and circumstances that led to the application fo r the
eviction of the re spondents. The respondents’ version is that they sold their house
in Porterville and moved to Koringberg in 2015 at the instance of Bernard. Their
house in Porterville was sold for R230 000.00, and the proceeds of the sale were
paid into the app ellant’s account, ostensibly as Lynol’s investment therein. The
respondents bought the property for R 660 000.00. They paid a deposit of
R142 000.00 using a loan from Bernard. The balance of the purchase price was
financed with a loan from Standard bank which registered a mortgage bond over
the property as security.
[20] The appellant’s version is that during or about 2015 Lynol approached
Bernard with a proposal that he would like to move to Mooresburg to be closer to
his workplace. The respondents could not afford the property which they had
earmarked for purchase in Mooresburg/ Koringberg. They sought the assistance of
Bernard who agreed to lend them the total sum of R201 071. 08 made up of a loan
of R180 000.00 towards a deposit on the purchase price and R21 071.08 being in
the amount in respect of transfer costs . These amounts were paid directly to the
transferring attorneys. The respondents were able to repay R140 000.00 of the loan
amount after their house in Porterville was sold for R230 000.00.
[21] It is not necessary to resolve the above two contradictory version s which, in
my view, are not germane to the issues in this appeal. They are set out purely to
complete the background to the real disputes of fact. The first real dispute of fact is
that during or about 2018 Bernard informed Lynol that the appellant was no longer
able to pay him his monthly salary of R15 000.00 and reduced it to R4 800.00 per
month. Thereafter Bernard approached the respondents with an offer to purchase
their property as, according to him, they were no longer affording the bond
repayments on Lynol’s reduced salary. He offered to purchase the property for
R660 000.00 which represented , not the value of the property, but the balance of
the amount ow ing to Standard Bank. After the sale agreement was concluded, the
respondents were made to sign the lease agreement, referred to supra, in terms of
which they leased the property from the appellant for a period of twenty -four
months at a nominal rental of R450 .00 per week . After the expiry of the twenty -
four-month period the respondents were allowed to remain in the property on a
month-to-month basis.
[22] The respondents’ version on this point is that they signed a twenty -four
months’ lease agreement on the understanding that on the expiry of th is lease
period, in terms of a verbal agreement it would appea r, they would be entitled to
buy back their property from the appellant . This would have been after the LPFT
had been paid dividends by the appellant . It was anticipated, so the respondents
were made to believe, that it was a matter of time before the appellant would start
paying dividends to the LPFT and that the respondents would, from this source of
revenue, be able to buy back their house. The holdup in implementing the payment
of dividends to the LPFT , they were told , was with the Department of Water
Affairs.
[23] The appellant’s version is that Lynol approached Bernard for assistance as he
was in arrears with his bond repayments. Bernard agreed to assist by purchasing
the property for R660 000.00, being the amount that was owed to Standard Bank ,
with the understanding that the respondents can thereafter rent the property from
the appellant. There was also the option, they were told , to buy it back from the
appellant at a later stage, if they could find the money to do so.
[24] During or about June 2020 Bernard demanded that the respondents vacate
the property by 31 August 2020 as he intends to sell it. The reason he advanced for
selling the property was that he needed the money to fund the appellant’s
operational costs. He offered the respondents alternative accommodation .
According to Bernard, they initially accepted and were willing to vacate the
property but later reneged. This led to a breakdown of trust and, consequently,
Bernard dismissed Lynol from the appellant’s employment. The details of the
alleged suitable alternative accommodation are not disclosed anywhere in the
papers.
alleged suitable alternative accommodation are not disclosed anywhere in the
papers.
[25] On the evidence led the court a quo found that the LPFT was entitled to
30% equity in the appellant as a BEE partner . This was pursuant to the water use
rights which allowed water to be drawn for use on the appellant’s farm; that
considering Lynol’s naivety and ignorance of contractual matters, and the
inequality in the bargaining power between him and Bernard, to suggest that he
was deliberately being dishonest and intending to mislead the court when he
denied the existence of the co -operation agreement is incorrect, and that the
discrepancy in his evidence does not go to the heart of the issues in th e matter. It
found as a fact that the LPFT and the appellant had entered into the co -operation
agreement; that the co -operation agreement was still exta nt and governed the
relationship between the parties.
[26] The court a quo further found that the appellant had used and was still using
the water allocated to the LPFT and that this resulted in the latter incurring a debt
of R1 387 984.00. which is due and payable to the Department of Water Affairs;
that the appellant used the water in terms of the co -operation agreement to make
huge profits but failed to pay 30% of the net profi t to the LPFT which was due in
terms of the co-operation agreement; and that the parties must use an independent
forensic accountant to calculate how the amounts owed to the Department of Water
Affairs ought to be apportioned.
[27] The court a quo accepted the version of the respondents with regard to the
reason for the sale of their pro perty to the appellant. It found that the respondents ’
version was the most probable because they were at that stage not in arrears with
their bond repayments and consequently held that Bernard misrepresented facts to
the respondents and through the misrepresentation bought their property for far less
than what it was worth.
[28] On the question of whether it would be just and equitable to evict the
respondents from the property the court a quo found, first, that the PIE Act
prohibits unlawful evictions and regulates the procedure to be followed for the
eviction of unlawful occupiers. The Learned Judge further found that courts are not
permitted to passively apply the Act but must probe and investigate the
surrounding circumstances, particularly where the occupiers are vulnerable
individuals. He further held that the appellant bought the property from the
respondents under dubious circumstances where they did not receive a fair value
and that they have a right to demand a fair value for their property before they can
be evicted; that they require the proceeds of the sale of their property and 30% of
the net profit arising from the ut ilisation of the water use licence to buy their own
property.
[29] The court found that the respondents ha d raised a substantive defence to the
application for their eviction and, consequently, dismissed it. It granted an order in
the following terms:
“The app licant’s application for the eviction of the respondents is hereby
dismissed.
108.2 The findings made in the subheadings above are incorporated into this
order.
108.3 The applicant is ordered to pay the actual costs incurred by the respondents
in opposing the application
108.4 The Registrar of this court is directed to forward a copy of this judgment to
the Department of Labour to investigate the alleged salary reduction of the first
respondent.
108.5 The Registrar is also directed to forward a copy of this judgement to the
master of the High Court Cape Town so that the master can investigate how the
first respondent was removed as a trustee and how their Lionel Peterson family
trust was changed to Bergrivier Boerdery Workers Trust.
108.6 Both parties should jointly appoint an independent forensic accountant to
calculate 30% Share of the trust from 2014. The accountant must also assist in
determining the fair value of the current property when it was sold to the applicant.
[30] The appellant was aggrieved by the findings and order of the court a quo. It
sought and was granted leave to appeal to the Full Court of this Division. The
appellant raised seventy -seven of what it termed grounds of appeal. It is evident
from these multiple grounds of appeal that the thrust of the appellant’s contentions
against the findings and order of the court a quo are that it decided the various
disputes of fact in favour of the respondents without taking into account issues of
credibility, reliability and probabilities.
[31] Furthermore the appellant contends that the court a quo failed to make a
separate determination that the respondents were unlawful occupiers , whether it
would be just an equitable to grant an eviction order, or take into consideration that
the appellant had tendered to provide the respondents with alternative
accommodation; failed to prope rly consider that the property was sold by the
appellant to a third party and that by breaching the agreement to vacate the
property had to be transferred back to th e appellant at additional costs to the
appellant; and failed to accept that the first respondent could resort to the Labour
Relations Act if he was aggrieved by the termination of his employment contract.
[32] Other significant contentions by the appellant are that the application for the
water use rights specifically provided that the rights are be registered in favour of
the appellant and that the condition s for the LPFT to become a 30% shareholder in
the appellant were not met in that the water use right was not registered in the
name of the appellant. The appellant further raised as a ground of appeal the fact
that in refusing the eviction order the court not only decided the factual issues in
dispute but also made additional findings and gave additional directives and orders
outside the scope of the eviction application.
[33] The appellant also brought an application in terms of s 19(b) of the Superior
Courts Act 6 to adduce further evidence at the hea ring of the appeal. The new
evidence relates to subsequent events with regard to the LPFT’s appeal to the
Water Tribunal against the suspension of its water use li cence, which appeal was
still pending at the time of the hearing of this appeal . Counsel for the appellant
submitted that in an eviction appeal ( like in the court of first instance) the court
hearing the appeal must consider whether it would be just and equitable to evict the
unlawful occupiers; and that the new evidence relating to the developments around
the water use lice nce would be rel evant and helpful to the court in the exercise of
its discretion.
[34] The new evidence the appellant sought to lead relates to the issuing of the
shares in the name of the LPFT which are kept in trust pending the fulfilment of
the suspensive condition, which is that the water use licence be transferred into the
name of appellant. This evidence in my view will not assist in the resolution of the
question whether an eviction order is to be granted and whether it would be just an
equitable to order the eviction of the respondents. This because they relate to issues
in an appeal which is still pending before a Water Tribunal. As such their veracity
is still not tested and/or determined. Consequently, they would not be helpful in the
determination of the issues in this appeal. Guided by the decision of the Supreme
Court of Appeal (SCA) in De A guiar v Real People Housing (Pty) L td7 that,
although s 19 (b) of the Superior Courts Act allows for the leading of further
6 Act 10 of 2013.
7 De Aguiar v Real People Housing (Pty) Ltd 2011(1) SA 16(SCA)
evidence, in the interest of the finality of litigation this power must be exercised
only in special circumstances , I find that no special circumstances w ere placed
before this court to satisfy the requirements to accept the new evidence, In t he
result the application is dismissed.
[35] The questions for determination in this appeal are whether the court a quo
erred in deciding the various disputes of fact in favour of the respondents and
whether it did so without taking into account issues of credibility, reliability and
probabilities; erred in not determining whether the respondents were unlawful
occupiers and that it would be just and equitable to order their eviction ; and
whether it erred by dealing with and made findings on issues which allegedly were
not properly before it.
[36] In Mashongwa v Passenger Rail Agency of South Africa8 the Constitutional
Court held that it is undesirable for an appeal court to second guess the well -
reasoned findings of the trial court. Only under certain circumstances may an
appellate court interfere with the factual findings of a trial court. What constitutes
those circumstances are demonstrable and material misdirection and a finding that
is clearly wrong. Otherwise, trial courts are best placed to make such findings. If,
on the other hand, the reasons for the trial court’s conclusions are not satisfactory,
or its findings are plainly wrong, the appeal court is entitled to interfere. The
reason for this approach was stated in in R v Dhlumayo9 as follows:
“The trial Judge has advantages -which the appellate court cannot have -in seeing and hearing
the witnesses and in being steeped in the atmosphere of the trial. Not only has he had the
8 Mashongwa v Passenger Rail Agency of South Africa 2016 (2) BCLR 204(CC) at para [45].
9 R v Dhlumayo 1948(2) 677 (A) at 677
opportunity of observing their demeanour, but also appearance and whole personality. This
should never be overlooked. Consequently, the appellate court is very reluctant to upset the
findings of the trial Judge.”
[37] In S v Monyane and Others 10 the SCA held that the powers of a court of
appeal to interfere with the findings of fact of a trial court are limited. It held that
in the absence of demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will only be disregarded if the
recorded evidence show them to be clearly wrong. A thorough reading of the
record in this matter shows no misdirection by the court a quo in its factual
findings.
[38] Counsel for the appellant contends that the court a quo failed to follow the
approach advocated by SCA in Stellenbosch farmers Winery Group Limited and
Another v Martel et Cie and Others 11( Stellenb osch-Martel) for the resolution of
factual disputes . Consequently, counsel submitted, it failed to take into
consideration all the parties ’ interests, make a value judgment on the true facts
which had to be judicially determined, and give a truly just and equitable remedy.
Such a remedy would have struck a balance between the parties’ competing
interests. Counsel further submitted that the appellant has satisfied all the
procedural requirements for an eviction order and that the court a quo ought to
have granted an order for the eviction of the respondents. He accordingly prayed
that the appeal be upheld and an order for the eviction of the responden ts be
granted.
10 S Monyane and Others 2008 (1) SACR 543 (SCA) at par 15.
11 Stellenbosch Famers Winery and Another v Martel et Cie and Others 2003 (1) SA 11 (SCA) at par 5.
[39] Although the court a quo did not specifically refer to the Stellenbosch-
Martel judgment, it is evident from its analysis of the evidence that it applied the
approach to the resolution of disputes of fact a dvocated in th at judgment. The
Learned Judge compared the backgrounds of the two main witnesses , Bernard and
Lynol, their respective educational backgrounds and sophistication, as well as their
demeanour in the witness box . Based on this approach it was impressed by the
frankness of Lynol and consequently accepted his version.
[40] Counsel for the appellant ’s submission that the court a quo ought to have
found that the respondents are unlawful occupiers, however, cannot be faulted. The
court a quo ought to have found that the respondents were unlawful occupiers as
defined in s 1 of the PIE Act. Section 1 of the PIE Act defines an unlawful occupier
as any person who occupiers land without the express or tacit consent of the owner
or person in charge of such land. This makes the PIE Act applicable to all unlawful
occupiers, irrespective of whether their occupation of such land was previously
lawful12. After the sale of the property to the appellant, albeit in circumstances
pointing to misrepresentation and/or fraud and/or coercion, the respondents
continued to occupy the property in terms of the lease agreement, but their lawful
occupation terminated when they were given notice to vacate the property. The
consequence of this notice is that the respondents became unlawful occupiers as
defined in the PIE Act.
[41] A finding that an occupation is unlawful in terms of the PIE Act does not
necessarily lead to an order of eviction 13. Had the court a quo found that the
respondents were unlawful occupiers, it would have had to determine whether it
12 See Davidan v Polovin NO [2021] 4 ALL SA 37(SCA) at par 12.
13 Grobler v Phillips and Others 2023(1) SA 321 at par 29.
would be just and equitable to order the ir eviction from the property. In Port
Elizabeth Municipality v Various Occupiers14 the Constitutional Court, in outlining
what the phrase ‘just and equitable ’ entailed in the context of the PIE Act , quoted
with approval from the judgment in Port Elizabeth Municipality v Peoples
Dialogue on Land and Shelter and Others that:
‘The use of the term just and equitable relates to both interests , that is, what is just an equitable
not only to the persons who occupied the land illegally but to the landowner as well ….that the
term also impl ies that a court, when deciding on a matter of this nature, would be obliged to
break away from a purely legalistic approach and have regard to extraneous factors such as
morality, fairness, social values and implications and consequences which w ould necessitate
bringing out an equitable, principled judgment’
to hold that the phrase ‘just and equitable ’ makes it plain that the criteria to be
applied are not purely of a technical kind that flow ordinarily from the provision of
the land law. The court further held that it is called upon to go beyond its normal
functions and to engage in active judicial management according to equitable
principles of an ongoing stressful and low government. This has major implications
for the manner in which it must deal with the issues before It, how it should
approach questions of evidence , the procedures it may adopt , the way in which it
exercises its powers and the orders it might make15.
[42] Counsel further contended that the various issues that the court a quo
included in its order were neither pleaded nor fully canvassed in evidence in the
sense that the appellant was not alerted about them and that the court would be
expected to decide them as part of the issues. Counsel found support in three
14 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
15 Port Elizabeth Municipality, supra, at par 36.
judgments of the SCA, namely, Minister of Safety and Security v Slabbert16, where
it was held that a party has to allege in the pleadings the material facts upon which
it relies; National Director of Prosecutions v Zuma 17, that a judgment must be
confined to the issues before the court; and Fischer and Another v Ramahlele and
Others18 that it is in the nature of civil litigation in our adversarial system that the
parties, either in the pleadings or affidavits (which serves both the function of
pleadings and evidence) to set out and define the nature of the dispute, and it is for
the court to adjudicate upon those issues. Counsel contends that in having regard to
the issues which were not before it, the court a quo was influenced in its decision
on the main and the only issue properly before it, viz, what would be a just and
equitable remedy on the relevant facts of the matter.
[43] In the enquiry whether it would be just and equitable to order the
respondents’ eviction, the court is enjoined by s 4(7) of the PIE Act to consider all
relevant circumstances. Section 4(7) of the PIE Act provides guidance on the
factors and circumstances which a court must take into consideration to determine
whether it is just and equitable to grant an eviction order. These factors include,
except where the land is sold in a sale in execution pursuant to a mortgage,
whether land has been made available or can reasonable be made available by a
municipality or other organ of State or another land owner for the relocation of the
unlawful occupier, and including the rights and needs of the elderly, children,
disabled persons and households headed by women.
[44] The use of the word ‘include’ in s 4(7) of the PIE Act is a clear indication
16 Minister of Safety and Security v Slabbert [2010] 2 ALL SA 474 (SCA)
17 National Director of Prosecutions v Zuma 2009 (2) SA 277 (SCA) at par15 and 19.
18 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) at par 13.
that the factors mentioned therein are not the only factors that must be considered;
the court must take into consideration all relevant circumstances, including the
peculiar circumstances of an evictee 19. It is in this respect that the court a quo
engaged with all the peculiar but relevant circumstances of this case . The peculiar
circumstance of the evictees in this matter highlights the importance of
investigating all the relevant circumstances to determine whether it would be just
and equitable to order the eviction of the respondents.
[45] It is permitted by the approach to matters of this nature, where the court
must investigate all relevant circumstances to de termine whether it is just and
equitable to order an eviction, for the court to go beyond its normal functions and
to engage in active judicial management according to equitable principles. The
court a quo was therefore allowed to enquire and pronounce on the issues that were
germane to the determination of what is just and equitable in the circumstances.
[46] In contrast t he appellant presented a carefully curated version of events and
avoided engaging with the peculiar circumstances of this case. The appellant
wields its s 25 of the Constitution rights to property and demand, solely on the
basis of such ownership, irrespective of the ‘unlawful’ and/or dubious manner of
its acquisition of the property , that the court sanctions the eviction of the
respondents without enquiring whether it would be just and equitable to do so.
Whilst the right to ownership of property is protected by the Constitution which
prohibits the arbitrary expropriation of property, it simultaneously through the PIE
Act, a statute adopted to give effect to the protection of proprietary rights and
dignity provisions of the Constitution, prevent s illegal evictions from and unlawful
19 Grobler v Phillips supra at par 38.
occupation of land. To prevent illegal evictions, where the evictees are unlawful
occupiers, courts are enjoined to enquire and determine whether in the
circumstances of a particular case an eviction would be just and equitable.
[47] Counsel for the appellant submitted that although there was no obligation on
the appellant to provide the respondents with alternative accommodation , such
obligation being on a municipality whe re the latter seeks the eviction of unlawful
occupiers, the appellant in this matter offered the respondents alternative
accommodation. Counsel referred us to the judgment of the Constitutional Court
in Grobler v Phillips20 where the court, in granting an eviction order of an 84 year
old woman and her disabled son, held that a private landowner was under no
obligation to provide free housing and that the offer of alternative accommodation
is not a precondition for a grant of an eviction order but is one factor in the just and
equitable calculus. Counsel contended that the offer of alternative accommodation
in this matter is a factor that should persuade this court that it would be just and
equitable to order the respondents’ eviction.
[48] The facts of the Grobler matter are distinguishable from the facts of this
case. The landowner in that matter purchased the property in qu estion in a lawful
manner and offered to move the unlawful occupier to a suitable alternative
accommodation in the same neighbourhood. I have already alluded to the fact that
the particulars of the alleged alternative accommodation offered to the respondents
were not disclosed to determine whether it is suitable. But most pertinently the
appellant’s acquisition of the property points to underhand and unlawfulness and
this court cannot countenance that by ordering the eviction of the respondents . To
do so would not be just and equitable.
20 Grobler v Phillips 2023 (1) SA 321 (CC).
[49] The evidence on the issues the cour t aquo considered exposed the
machinations and underhand dealings leading to the LPFT, in which the
respondents were beneficiaries, applying for and being granted the water use
licence, the attempts by the appellant to have the licence transferred into its name
without quid pro quo performance; the removal of Lynol as a trustee of the LPFT
for flimsy reason which do not bare scrutiny and renaming it the Bergrivier
Boerdery Werkers Trust; Bernard’s economic strangulation of Lynol by unilaterally
amending his conditions of employment by reducing his wages, making it
eventually difficult for him to meet his financial obligations and thereafter
capitalising on his vulnerability to purchase his property for less than its market
value, and eventually dismissing him from the appellant’s employment without
due processes; the attempts to transfer the water use licence into the name of the
appellant before the corresponding allocation of 30% of the appellant’s shares to
the LPFT and/or the refusal to pay the LPFT for the use of its water rights attached
to the water use licence, are all factors that the court a quo, correctly in my view,
took into account to determine whether it would be just an equitable to order the
eviction of the respondents.
[50] The appellant cannot expect to secure the eviction of the respondents against
the background set out supra. The web of deceit described above is at the core of
the respondents losing their home and facing the prospects of eviction. It would not
be just and equitable in these circumstances to order their eviction while this
situation continue to obtain. But the respondents also cannot expect to continue in
occupation of the property in perpetuity . The PIE Act was enacted to prevent the
arbitrary deprivation of property and is not designed to allow for the expropriation
of land from a private landowner from whose property the eviction is sought21.
[51] It is therefore imperative that a balance be struck between the competing
interests of the appellant and the respondents. A just and equitable solution has to
be found to unravel the intractable situation created by all the manipulations and
misrepresentations which led to the respondents losing their home . Without
prescribing how to go about this, one avenue open to the parties is to negotiate for
a fair settlement of all the issues , including but not limited to payments of a just
and fair price for the respondents’ property or reversing the sale, without resorting
to litigation. The only other option to a failure to negot iate a settlement is to
litigate. To do this the respondents, and the appellant if it has any claim against the
respondents, ought be afforded an opportunity to initiate such a process , if they so
wish. It is therefore imperative that a structured order, with time frames, be made
part of the eviction order.
[52] It would not be just and equitable, in my view , to order the eviction of the
respondent before attempts to res olve the problem s are made . The attempts at
finding a solution, however, have to be within a reasonable time frame to avoid the
respondents’ continued occupation of the pro perty indefinitely which may amount
to an arbitrary expropriation of the appellant’s property and at the same time allow
the respondents enough time to vindicate their rights . In the circumstances I make
the following order:
52.1 An order is hereby granted for the eviction of the first and second
respondents as well as any other persons who may be occupying the
21 Grobler v Phillip, supra, at par 37.
property through them from erf 1 […] Korinberg situated at 1 […]
[…] Street Koringberg;
52.2 The operation of the eviction order referred to in paragraph 52.1,
supra, is hereby suspended for a period of One Hundred and Eighty (180)
days. The suspension of the order is on the following conditions:
52.2.1 that the parties engage in bona fide negotiations for the
resolution of their disputes.
52.2.2 Failing to reach any agreement following such negotiations
within thirty (30) days from the date of this order , the
respondents shall institute any legal proceedings for any
relief to which they may be entitled, within thirty (30) days
of the expiry of the first thirty (30) day period from the date
of this order;
52.3 The suspension of the eviction order referred to in paragraph 52.1
supra shall fall away and the sheriff of this court shall evict the
respondents from the property in the event of the parties fail ing to
reach any settlement as envisaged in paragraph 52.2.1, supra and the
respondents failing to institute legal proceedings for any relief within
60 days of this order, in which event the respondents shall be liable
for costs on a party and party scale C.
52.4. At any stage prior to the expiry of the thirty (30) day period referred
to in paragraph 52.2.1 supra, any of the parties shall be entitled, on 10
(ten) days written notice to the other, to approach a Judge in
chambers for directives for the further conduct of the negotiations or any other
matter relating to the negotiations for a settlement.
_________________________
M J DOLAMO
JUDGE OF THE HIGH COURT
I agree
_________________________
D KUSEVITSKY
JUDGE OF THE HIGH COURT
I agree
_________________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
Appearances
for Appellant : Mr. RGL Stelzner (SC)
Instructed by : TSP Inc
for First and Second Respondents : Mr. C Kilowan
Instructed by : P Mbanane Attorneys
c/o Bagwadin Attorneys