SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: 22976/2024
In the matter between:
NIZAAM STOFFELS N.O First Applicant
In his capacity as Executor of the Estate of the late
Andrew Mogamat Stoffels Master’s No. 10813/2016
ELTON ANDREW ADAMS N.O Second Applicant
In his capacity as Executor of the Estate of the late
Ellen Stoffels Master’s No. 015149/2021
and
SHANAAZ JOHNSON First Respondent
SHAUN JOHNSON Second Respondent
MARIAM DANIELS Third Respondent
MARNIAN DANIELS Fourth Respondent
And all those holding title under above respondents
THE CITY OF CAPE TOWN Fifth Respondent
Coram: Honourable Justice HM Slingers
Heard: 07 May 2026
Delivered: 04 June 2026
Neutral citation: Nizaam Stoffels N.O & another and Shanaaz Johnson & 4
others 22976/2024 [2026] ZAWCHC … (04 June 2026)
ORDER
(i) the respondents are ordered to vacate the property on / before 30 November
2026 failing which the Sheriff of the above Honorable Court, or his deputy, is
authorised and directed to evict them therefrom on 01 December 2026, or any
day thereafter as close as possible to the aforementioned date.
(ii) the respondents shall not obstruct the marketing and/or selling of the property
and shall not prevent the view thereof by potential purchasers;
(iii) Ms Van Tonder and/ or a representative of the fifth respon dent shall continue
to assist the respondents with their applications for accommodation at
institutions which fall under the Western Cape Social Development’s
Department and is requested to report to the court and to the parties when the
priority housing allocation report has been completed;
(iv) the respondents shall be liable for half of the applicants’ costs on scale B.
JUDGMENT
Introduction
[1] This is an eviction application brought in accordance with section 4(1) of the
Prevention of Illegal and Unlawful Occupation of Land Act, Act 19 of 1998
(‘the PIE act’) in terms whereof the applicants seek the eviction of the
respondents from 3 […] B[…] Avenue, Bonteheuwel (‘the property) . The
application was instituted in October 2024, with the section 4(2) order being
granted on 15 November 2024.
[2] The application first served before me on 11 June 2025 when it was
postponed for the filing of the fifth respondent’s report and to allow the parties
an opportunity to explore court-based mediation.
[3] The parties’ attempt at mediation failed and the respondents were directed to
complete the fifth respondent’s occupants ’ personal circumstances
questionnaire (‘the questionnaire’) . During December 2025, the fifth
respondent was directed to engage with the Department of Social
Development and to file a supplementary report.
[4] The application was argued on 7 May 2026.
The parties
[5] Andrew Moegamat Stoffels (‘Mr Stoffels’) and Ellen Stoffels (‘Mrs Stoffels’)
were married in community of property and were the joint registered owners of
the property.
[6] Mr Stoffels died intestate on 5 October 2015. His estate was duly reported to
the Master and Mrs Stoff els was appointed as the executrix of his intestate
estate. Mrs Stoffels died testate on 21 June 2021. Subsequent to Mrs
Stoffels death, the first applicant was appointed as the executor of Mr Stoffels’
intestate estate under Letters of Executorship issued to him on 12 December
2023. The second applicant was appointed as the executor of Mrs Stoffels
estate under Letters of Executorship issued to him on 6 August 2021.
[7] The applicants bring this application in their official capacities as the
executors of the deceased estates of Mr and Mrs Stoffels.
[8] The first and third respondents are the daughters of the late Stoffels couple
and the sister of the first applicant. The second and fourth respondents are
the husbands of the first and third respondents respectively. At the time of
hearing the application the third and fourth respondents had voluntarily
vacated the property as they were allocated state housing 1. The adult sons of
the respondents, Joshua and Gabrial reside with them on the property.
Unlawful occupiers
[9] Section 4 of the PIE act regulates eviction proceedings and applies to any
proceedings by an owner or a person in charge of land for the eviction of an
unlawful occupier.
[10] The respondents opposed the eviction application primarily on the ground that
they were not unlawful occupiers. 2 The respondents submitted that as the
daughters of Mr Stoffels they were intestate beneficiaries who stood to benefit
from the residue of his estate and that until such time that his estate was
wound up they were not obliged to vacate the property.
[11] The PIE act defines unlawful occupiers as:
‘...a person who occupies land without the express or tacit consent of the
owner or person in charge, or without any other right in law to occupy such
land, excluding a person who is an occupier in terms of the Extension of
Security of Tenure Act, 1997, and excluding a person whose informal right to
land, but for the provisions of this Act, would be protected by the provisions of
the Interim Protection of Informal Land Rights Act, 1996.’
1 Any reference to the respondents is a reference to only the first and second respondents.
2 Initially the respondents challenged the applicants’ locus standi as well as the validity of Mrs Stoffels’
will. However, at the hearing of the application, the court was informed that the respondents were not
persisting with these challenges and that the applicants’ locus standi were no longer in issue.
[12] Whilst attempting to wind up Mr Stoffels’ estate an inventory recorded that his
half share in the property was the only asset in his estate. A municipal rates
account dated 2021 recorded the municipal value of the property as being
R410 000.00. Therefore, the monetary value of Mr Stoffels’ half share in the
property would have amounted to R205 000.
[13] Section 1 of the Intestate Succession Act provides that a surviving spouse
shall inherit a child’s share of the intestate estate or so much of the intestate
estate that does not exceed in value the amount fixed from time to time by the
Minister of Justice, whichever is the greater and that any descendant will
inherit the residue, if any of the intestate estate. At the time of Mr Stoffels
passing, the Minister of Justice fixed a child’s share at the amount of
R250 000.00.
[14] Mr Stoffels half share in the property valued at R205 000.00 in accordance
with the municipal valuation of 2021 is less than a child’s share valued at
R250 000.00. Therefore, M r Stoffels entire intestate estate would have
devolved upon Mrs Stoffels with no residue to be distributed to any of the
respondents.
[15] The respondents take issue with the municipal property valuation being used
to determine the property’s value and argue that the actual value is far higher.
They argue that the use of the municipal valuation fails to consider the period
between 2021 and 2025 that would have resulted in an increase of the
property’s value and which could have resulted in a residue being available to
distribute. Furthermore, the respondents argue that the municipal valuation is
significantly less than the market value and is not an accurate reflection of the
property’s worth. Although the respondents dispute the valuation of the
property at R410 000.00 they have not furnished the court with an alternative
monetary valuation.
[16] Even if the respondents stood to benefit from a residue of Mr Stoffels intestate
[16] Even if the respondents stood to benefit from a residue of Mr Stoffels intestate
estate, such residue would not constitute permission or consent for them to
reside on the property indefinitely. On the contrary, the intestate benefit
would be quantified into a monetary amount and would have to be divided
among all the intestate beneficiaries.
[17] Furthermore, the respondents resist vacating the property on the basis that Mr
Stoffels’ estate has not been finally wound up. However, the estate is
incapable of being wound up without the property being sold. The
respondents are opposed to and obstructed the sale of the property and have
prevented its showing to potential purchasers, thus preventing the sale of the
property and the consequent winding up of Mr. Stoffels’ intestate estate.
[18] The respondents have also disputed the inventory drawn up in respect of Mr
Stoffels estate. Although the inventory purportedly records that the first
respondent signed the inventory, she denies that she had any engagement
with the applicants in respect thereof. The respondents aver that the alleged
inventory fraud is a deliberate attempt to exclude them from the winding up
process. The respondents have reported the alleged fraud to the South
African Police Services but have only done so after the applicants arranged
for the property to be viewed in respect o f the potential sale thereof. To date,
no arrests have been made and neither has the inventory been legally
challenged.
[19] The respondents ignored the applicants’ notice to vacate the property and
continue to reside thereon without the applicants’ permission and/or consent.
[20] In the circumstances, I am satisfied that the respondents are unlawful
occupiers as defined in section 1 of the PIE act.
Mrs Stoffels’ will
[21] In her testamentary will, Mrs Stoffels directed that the property be sold and
that t he proceeds thereof be shared equally between her eight nominated
grandchildren, who include the respondents’ adult sons who currently reside
with them on the property. Furthermore, she provided that a first option to
purchase be offered to a named granddaughter and a second option to
purchase to a subsequent named granddaughter. Both granddaughters
declined the options to purchase.
[22] As both nominated granddaughters declined to purchase the property, the
[22] As both nominated granddaughters declined to purchase the property, the
second applicant endeavoured to sell the proper ty. However, the
respondents, which included the fourth respondent, refused the duly
appointed estate agent access to the property which resulted in prospective
purchasers not being able to view the property. Eventually the property had
to be taken off the market. Consequently, the respective estates of the late
Stoffels couple could not be finally wound up.
The law
[23] The PIE act is not solely directed at preventing illegal evictions but obliges
courts to maintain the balance between illegal evictions and unlawful
occupations. In maintaining this balance, courts seek to ensure justice and
equity to all parties concerned.3
[24] In determining whether to evict the respondents, the court must engage in a
two part inquiry. Firstly, it must determine whether it would be just and
equitable to grant an eviction order. Secondly, should it find that an eviction
order would be just and equitable, the court must then determine a just and
equitable date for implementing the eviction order.4
[25] In determining whether it would be just and equitable to grant an eviction
order, the court must consider all the relevant circumstances which would
include whether a municipality, such as the fifth respondent, has made land
available for the relocation of the occupiers as well as the rights and needs of
disabled persons and households headed by women. However, the weight to
be attached to the relevant circumstances must be assessed in the light of
property owners’ rights under section 25 of the Constitution. The factual
matrix of this matter also requires the court to consider Mrs Stoffels’ right to
testamentary freedom.
[26] Section 4(8) of the PIE act obliges a court to grant an eviction order if the
necessary requirements have been complied with and there is no valid
defence that would entitle the occupiers to remain in occupation as against
3 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para [13]
4 Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC) at para [44] –[45]
the owners or persons in charge of the property. 5 If an eviction would not be
just an equitable, then the occupiers would have a valid defence.
[27] However, a consideration of justice and equity necessarily entails a
consideration of justice of equity to all parties.6
[28] While it may be more likely that in circumstances where no alternative
accommodation is provided, that an eviction will not be just and equitable, it
does not automatically follow that the absence of alternative accommodation
and potential homelessness will render an eviction unjust and inequitable. As
held in Changing Tides , neither PIE nor section 26 of the Constitution
provides an absolute entitlement to be provided with accommodation.7
The factual circumstances
[29] It is common cause that the respondents are not paying any rental in respect
of the property, nor are they paying the municipal water account. The
allegation that the respondents are not maintaining the property and have
gone so far as to knock off tiles and sell furniture belonging to the deceased
estate for their sole benefit have not been denied and must therefore be
accepted as true and correct.8
[30] During the hearing of the application, the applicants handed up an affidavit by
the second applicant which inter alia stated that:
(i) save for the respondents’ sons, Joshua and Gabrial, all the
beneficiaries of Mrs Stoffels’ testamentary agree that the property be
sold;
(ii) the proceeds generated by the sale of the property will assist all of
them to live a better life;
5 Ibid at para [63]
6 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA) at para [12]
7 At para [15]
8 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC) at para [61]
(iii) the proceeds of the sale will go a long way to assist Tyler Stoffels who
was stabbed eight (8) times in a brutal attack in 2025;
(iv) the proceeds of the sale would assist Taylor Stoffels who is expecting
her fourth child;
(v) the estimated market related property value is R800 000.00 and will be
sold quickly as it is situated in a sought after area;
(vi) it is estimated that each beneficiary would receive an amount of
R75 000.00; and
(vii) the transfer of the property would take approximately three (3) months.
[31] While courts are called upon to be proactive in matters of this nature, the
parties are obliged to place all relevant information at their disposal before the
court to facilitate the proper inter rogation of justice and equity by a court
considering an eviction application. This follows from the fact that the parties
may certain information may only be within the peculiar knowledge of the
parties.
[32] In the present matter the respondents have not honestly discharged this
obligation. They have elected to omit key information and have, on occasion,
provided inconsistent information.
[33] As at 1 April 2026, the fifth respondent’s emergency accommodation was at
capacity and there was no availabilit y at any of its emergency housing sites
for the respondents. Furthermore, all the fifth respondent’s temporary
relocation areas (‘TRAs’) are at also at capacity and it is not in a position to
accommodate any of the respondents through any of its existing TRAs.
[34] The fifth respondent furthermore reported that the Department of Social
Development’s (‘DSD’) social worker had assisted the respondents to apply
for placement at a suitable facility and that the outcome in respect of
placement at Eric Miles Che shire Home had been positive. Following the
hearing, Mr Nduli for the respondents furnished the court with correspondence
from Eric Miles Cheshire Home which reported that they were unable to assist
from Eric Miles Cheshire Home which reported that they were unable to assist
the respondents as the costs of the monthly board and lodging fees was
R16 785.56. The fifth respondent was directed to follow up with Eric Miles
Cheshire home and to revert with a status update.
[35] The fifth respondent reported that it was awaiting a completed priority housing
allocation form based on the first respondent’s disability and that the Western
Cape Chief Director in the Social Development indicated that it will assist the
respondents with applications to institutes. However, they cannot compel
such institutes to accept the respondents.
[36] The personal detail s disclosed by the respondents in their personal
questionnaire to the fifth respondent and to the Department of Social
Development (‘DSD’) differed as follows:
(i) the first respondent disclosed in her questionnaire that she has been
residing at the property for 13 years and that she would be homeless if
evicted. The respondents had previously owned their own house
which they lost due to their inability to pay the mortgage bond
payments. This house was sold on auction in 2016. However, the first
respondent told the DSD that she had been residing in the property her
entire life;
(ii) in the questionnaire, the respondents note that they spent a monthly
total of R1113 on insurance. This differs from the DSD report which
only records a monthly amount of R 500 on a funeral policy; and
(iii) in the questionnaire, the respondents record that they are paying a
total of R800 towards electricity. However, it is common cause and
recorded in the DSD report that the respondents are not paying for
water services and that they spend a total of R2400 on electricity -
R1600 more that the R800 noted in the questionnaire.
[37] In respect of Joshua, the court was informed that he is 29 years old, is
employed on a temporary basis and earns a monthly income of R4 800. The
court was not furnished with documentary proof such as a salary slip or a
bank account in support of this information. In the questionnaire, it is
recorded that he receives monthly maintenance in respect of his 6 year old
recorded that he receives monthly maintenance in respect of his 6 year old
son in the amount of R350. In the r eport compiled by the DSD it is recorded
that Joshua pays monthly maintenance in the amount of R700. In the
questionnaire, it is recorded that he spends R500 per month on travelling,
whereas in the DSD report it is recorded that he spends R1 200 per month on
travelling.
[38] The DSD report records that the respondents spend a monthly amount of
R4000 on groceries
[39] In respect of Gabrial, the court is informed that he is 25 years old, is
permanently employed and that he earns a monthly income of R5 500.
However, as with Joshua, the court is not furnished with any documentary
proof such as a salary advice slip or a bank statement. The DSD report does
not record that he is currently residing on the property with the respondents.
[40] The respondents have not provided any information about their adult daughter
who does not reside with them. It is unknown whether she would be able to
accommodate the respondents, her parents.
[41] The first respondent is 53 years old and is wheelchair bound. She is a
diabetic and had the toes on her left foot amput ated and the right leg above
the knee amputated. The first respondent suffers from heart failure and had a
kidney transplant. She has dialysis once a week. She receives R2 400 per
month as a disability grant.
[42] The second respondent is 55 years old and receives a temporary disability
grant of R2400 and looks after the first respondent. The second respondent
had a hip operation in 2004.
[43] After considering all the facts and circumstances, I am satisfied that the
respondents are unlawful occupiers and that they do not have a valid defence
to the eviction application. Consequently, it would be just and equitable to
grant an eviction order.
[44] In respect of a just and equitable date for the implementation of the eviction
application, I note that the first respondent had knowledge of the eviction
application as far back as 24 October 2024 when the section 4(1) eviction
notice was personally served and explained to her. The respondents,
including their adult employed sons, took no steps to find alternative
accommodation since they received notice to vacate and the eviction
application.
[45] I note the first respondent is disabled and that she will require special adapted
accommodation.
[46] Should the property be sold within the anticipated period of 3 months, the
respondents’ sons would receive a total of R150 000.00. This expected
inheritance of R150 000.00 amount together with their joint household income
of R16 100 could possible enab le the respondents to find alternative
accommodation.
[47] In the circumstances, the applicants’ proposal that the eviction application be
implemented within 6 months of date hereof is reasonable.
Costs
[48] In the absence of a costs order, any costs incurred by the applicants in
instituting this application will be paid from Mrs Stoffels estate. This will result
in a reduction of the beneficiaries inheritance.
[49] The respondents, together with Joshua and Gabrial, had the sole benefit of
the property to the prejudice of the rest of Mrs Stofells’ nominated
beneficiaries for an extended period.
[50] In my view the opposition to this eviction application was not warranted.
Furthermore, the respondents were not completely forthcoming nor
transparent with their income and/or expenses.
[51] For these reasons, I am of the view that a costs order against the respondents
would be appropriate.
[52] In the circumstances, I make the following order:
(i) the respondents are ordered to vacate the property on / befor e 30
November 2026 the respondents are ordered to vacate the property on
/ before 30 November 2026 failing which the Sheriff of the above
Honorable Court, or his deputy, is authorised and directed to evict them
therefrom o n 01 December 2026, or any day thereafter as close as
possible to the aforementioned date.
(ii) the respondents shall not obstruct the marketing and/or selling of the
property and shall not prevent the viewing thereof by potential
purchasers;
(iii) Ms Van Tonder and/ or a representative of the fifth respondent shall
continue to assist the respondents with their applications for
accommodation at institutions which fall under the Western Cape
Social Development’s Department and is requested to report to the
court and to the parties when the priority housing allocation report has
been completed;
(iv) the respondents shall be liable for half of the applicants’ costs on scale
B.
_____________________
H M Slingers
Judge of the High Court
04 June 2026
Appearances
Counsel for the Applicant/s: Ms. S van der Merwe
As instructed by: Yazeed Isaacs Attorneys
Counsel for the Respondent\s: Mr. B Nduli
As instructed by: Legal Aid South Africa