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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: CIV APP MG 13/2025
Magistrate's Court Case No: 4394/2024
In the appeal between:
KUTLWANO DIKGWATHLE APPELLANT
and
MBUTI JACOB PHETHENI FIRST RESPONDENT
MATHAPELO PATRICIA PHETHENI SECOND RESPONDENT
Coram: Reddy J; Tsautse AJ
Heard: 13 March 2026
Delivered: 12 June 2026
Summary: Civil appeal — PIE Act — eviction of unlawful occupiers —
sections 4(2) and 4(5) — private pre -litigation eviction notice not a court -
authorised notice — Notice of Motion lacking hearing date and section 4(5)(d)
information — peremptory requirements not met — online rental advertisement
inadmissible as proof of alternative accommodation — Plascon-Evans rule —
uncontested sale defence in answering affidavit — genuine dispute of fact on
ownership and locus standi — appeal upheld.
ORDER
1. The appeal is upheld.
2. The judgment and orders of Additional Magistrate L Loli dated 29 July
2025 are set aside and replaced with the following order:
2.1 The application is dismissed, without prejudice to the right of the
first and second respondents to institute fresh proceedings in
compliance with the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998.
3. The first and second respondents are ordered to pay the costs of the
application in the court a quo, on the party-and-party scale.
4. The first and second respondents are ordered to pay the costs of this
appeal on the party -and-party scale, including the costs of counsel on
Scale B.
JUDGMENT
REDDY J
Introduction
[1] This is an opposed appeal against the judgment and orders of Additional
Magistrate L Loli (the court of first instance). Pursuant to a motion brought by
the first and second respondents (the Phetheni s’) under the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act),1
the court of first instance granted an order for the eviction of the appellant and
other unlawful occupants from Erf 1[...], Extension 3, Tigane, Hartbeesfontein
(the property). It is this crisp issue subsumed within provisions of the PIE Act
that fall for consideration.
Background
[2] The Phethenis’ are the registered owners of the property, an erf of 1 271
square metres in Tigane Extension 3, Hartbeesfontein. In their founding
affidavit the first respondent averred that in approximately 2004 he concluded a
verbal lease agreement with the late Philemon Dikgwathle, (Dikgwathle) in
terms of which the late Dikgwathle occupied the property in exchange for a
monthly rental that varied from month to month. He averred that upon the death
1 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Act 19 of 1998.
of Dikgwathle that agreement terminated by operation of law, and that the
appellant, a member of the deceased’s family, thereafter, remained in
occupation without any right to do so.
[3] On 21 February 2024 the Phetheni s’ issued a private written eviction
notice directing the appellant and the other occupants to vacate within seven
days. On 23 February 2024 the appellant’s family responded, disputing
unlawful occupation and asserting that the late Dikgwathle had purchased, not
leased, the property.
[4] The Phethenis’ thereafter launched motion proceedings praying for an
order evicting the appellant and other unlawful occupants, directing vacation
within 30 days, authorising the Sheriff to execute the eviction in the event of
non-compliance, and ordering costs.
[5] In his answering affidavit the appellant raised a point in limine that the
Phethenis’ had failed to comply with sections 4(2) and 4(5) of the PIE Act and
had not properly identified the "other unlawful occupants". On the merits, the
appellant contended that the late Dikgwathle had purchased the property from
the first respondent. Two affidavits were annexed. First, the affidavit of Mr Piet
Nkemeleng Moeng (the Moeng affidavit), a ward councillor, who deposes that
in 2019 the first respondent himself app roached the municipality requesting
assistance to transfer the property into the late Dikgwathle’s name, thereby
acknowledging the sale.
[6] Second, the affidavit of Ms Sonia Katryn Pheteni (the Sonia Pheteni
affidavit), who deposes that she personally witnessed the written sale agreement
concluded in 2002 at the offices of Mr Zahed Minty in Klerksdorp.
Significantly, Sonia Pheteni confirms that she personally received payments of
the purchase price from the late Dikgwathle on the first respondent’s behalf.
Moreover, Sonia Pheteni observed substantial improvements made to the
property by the late Dikgwathle after taking occupation. The Phethenis ’ elected
not to file a replying affidavit.
[7] The court of first instance dismissed the point in limine , finding
compliance with sections 4(2) and 4(5) of the PIE Act on the basis that the
eviction notice, a private notice to vacate had been given to the occupants and
that the appellant had served a notice of intention to oppose on 24 October
2024. On the merits, the court of first instance rejected the Moeng and Sonia
Pheteni affidavits because the person who drafted the written sale agreement
had not deposed to an affidavit.
[8] The court of first instance reasoned that because the application was
about eviction, not the validity of any contract observing that the first
respondent "should have opted for other avenues" to challenge the contract.
Conclusively the court of first instance found that the Phethenis’ had provided
documentary proof of ownership. Importantly that alternative accommodation
was available as shown by an online property listing; that no elderly, disabled,
or sick persons or minor children resided at the property; and that it was
accordingly just and equitable to grant the eviction order.
Grounds of appeal
[9] The Notice of Appeal advances seven grounds. To this end it was
postulated that the court of first instance erred :
(i) in finding that the first and second respondents complied with sections
4(2) and 4(5) of the PIE Act;
(ii) in treating the private eviction notice as a notice in terms of sections
4(2) and 4(5);
(iii) in accepting the online rental advertisement as proof of the
availability of alternative accommodation, when that advertisement
amounts to hearsay;
(iv) in rejecting the Moeng affidavit and the Sonia Pheteni affidavit
because the person who drafted the written sale agreement had not
deposed to an affidavit;
(v) in failing to appreciate that the appellant’s opposition was based on
the contention that the late Philemon Dikgwathle purchased, not leased,
the property, and that this raised a dispute of fact incapable of resolution
on the papers;
(vi) in not dismissing the application or, alternatively, referring the
question of ownership to oral evidence; and
(vii) in not applying the Plascon-Evans rule, which required the sale
version to be accepted in the absence of a replying affidavit.
Submissions
[10] Advocate Masike, for the appellant, submitted that the eviction notice is a
private pre -litigation notice to vacate drafted by the Phethenis’ own
representatives, not a court -authorised notice under section 4(2) of the PIE Act.
Advocate Masike contended that the Notice of Motion is equally defective as it
neither indicates a hearing date nor notifies the occupants of their right to
appear and to apply for legal aid. Towards this end, Advocate Masike placed
much store on Cape Killarney Property Investme nts (Pty) Ltd v Mahamba and
Others2 for the proposition that section 4(2) of the PIE Act requires court -
directed, court-authorised notice.
[11] Advocate Masike submitted that on the evidence the online rental
advertisement is inadmissible hearsay. He asserted that this is a statement by an
unidentified third party offered for the truth of its contents. Advocate Masike
maintained that an online rental advertisement cannot, without more, prove that
specific, suitable and affordable accommodation is in fact available to these
occupants. Advocate Masike claimed that the court of first instance conflated
the existence of the advertisement with proof of its contents.
[12] Insofar as the merits, Advocate Masike contended that Mr Moeng and Ms
Sonia Pheteni are independent witnesses with personal knowledge of the sale
transaction and should not have been rejected merely because the drafter of the
agreement did not depose to an affidavit. Advocate Masike argued that in the
absence of a replying affidavit by the Phethenis’, the sale version stands
uncontested and must be accepted in terms of the Plascon -Evans rule. The
uncontested sale version, it was submitted, raises a material question regarding
the Phethenis’ locus standi to bring the eviction proceedings, which could not
be resolved on motion.
[13] Mr Baloyi for the first and second respondents did not file heads of
argument, however he contended that the appeal should be dismissed given that
there had been compliance with s 4(2) of the PIE Act. This was founded
primarily on Mr Baloyi’s submission that the appellant in fact participated in the
proceedings and suffered no prejudice. Furthermore, Mr Baloyi submitted that
the court of first instance correctly accepted the online property listing as proof
2 Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others [2001] ZASCA 87; [2001] 4 All SA
479 (A); 2001 (4) SA 1222 (SCA)
of the availability of alternative accommodation and that the court of first
instance was entitled to rely on it. Mr Baloyi further contended that the online
property listing did not constitute hearsay and that the court of first instance
correctly found that there was alternative accommodation available to the
occupants.
The powers of this court on appeal
[14] An appellate court will not disturb the findings of a court of first instance
unless a material misdirection has occurred either in law or on the facts or the
decision is one no reasonable court properly directed could have reached. 3 In
our view the fulcrum of this appeal pivots on questions of law. These can be
subclassed as follows: (i) whether the peremptory PIE Act notice requirements
were met, (ii) whether evidence was admissible, and (iii) whether the correct
approach to disputes of fact in motion proceedings was applied. We address
each in turn.
Analysis
Sections 4(2) and 4(5) of the PIE Act
[15] Section 4(2) of the PIE Act is peremptory. It prescribes that at least 14
days before the hearing, the court must serve written and effective notice of the
proceedings on the unlawful occupier and the municipality having jurisdiction.
Section 4(5) of the PIE Act prescribes the mandatory content:
[16] Section 4(5) of the PIE Act provides:
“(5) The notice of proceedings contemplated in subsection (2)
must—
3 Medicross Healthcare Group (Pty) Ltd v Linde and Associates (A2024/113909) [2025] ZAGPJHC 804; 2026
(1) SA 222 (GJ) (6 August 2025) para 39.
(a) state that proceedings are being instituted in terms of
subsection (1) for an order for the eviction of the unlawful
occupier;
(b) indicate on what date and at what time the court will hear the
proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the right to
apply for legal aid.”
[17] The four requirements in s 4(5) of the PIE Act are cumulative and
peremptory. Each must be satisfied. A notice that is silent on any one of them is
not a compliant notice for the purposes of s 4(2) of the PIE Act.
[18] In Cape Killarney Property Investments (Pty) Ltd v Mahamba and
Others4 the court held that the notice must be authorised and directed by a court
order and served by the court not merely by the applicant. Strict compliance is
required; substantial compliance does not suffice.5
[19] In our view, the court of first instance erred in identifying the private
eviction notice as the s 4(2) notice. A closer examination of the latter
unequivocally establishes that it is a private pre -litigation eviction notice,
drafted and served by the Phethenis' own representatives on 21 February 2024,
six months before these proceedings were instituted. Moreover, ex facie the
document, the following legal shortcomings are obvious. First, it is not a court
document. Second, it was never authorised by any court order. Third, it was not
served by any officer of the court. Fourth, it does not contain the information
4 (495/99) [2001] ZASCA 87; [2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) (10 September 2001).
5 Cape Killarney paras 11 and 13–16.
required by section 4(5) of the PIE Act. In sum, it does not align with the
character of what s 4(2) of the PIE Act requires.
[20] The notice of motion yields no different result. Even if we were to afford
it that status as the intended s 4(2) of the PIE Act notice, which is itself
contestable as it was drafted by the respondents’ attorneys without any court
order directing its service as a PIE notice. It suffers from two fundamental
defects. First, it does not indicate the date and time at which the court will hear
the proceedings.6
[21] It follows the standard Rule 55 of the Magistrates Court Rules opposition
procedure, with the hearing to be fixed only after the opposition time periods
have run. An occupier served with it cannot know when to attend court. Second,
it does not expressly state that the occupier is entitled to appear before the court
and defend the case and has the right to apply for legal aid .7 A general PIE
paragraph drawing attention to factors the court may consider does not
constitute the explicit notification of procedural rights which s 4(5)(d) requires,
directed as it is at ensuring that unrepresented occupiers are specifically
apprised of their entitlement to attend and obtain legal assistance.
[22] The Phethenis’ submission that the appellant in fact participated in the
proceedings and suffered no prejudice cannot cure non -compliance. Section
4(2) of the PIE Act compliance is assessed at the time of service. The fact that
the appellant may have learned of the proceedings through other means and
chose to oppose says nothing about whether a compliant court directed notice
was ever served. Strict compliance is demanded and was not achieved. On our
evaluation the point in limine should have been upheld and the application
6 Cape Killarney para 11.
7 Section 4(5)(d) of the PIE Act.
dismissed without prejudice to the Phethenis' right to launch fresh proceedings
on proper notice. This finding alone is dispositive of the appeal. We proceed to
the remaining grounds for a holistic consideration of the matter and to ensure
certainty should it be reconsidered.
Alternative accommodation
[23] The court of first instance accepted a screenshot of an online property
listing as proof that alternative accommodation is available to the occupants.
This is unsustainable. The advertisement is a statement by an unidentified third
party tendered for the truth of its contents, namely that suitable, accessible, and
affordable accommodation is in fact available for these specific occupants .8
What stands out is that in the absence of a confirmatory affidavit from the
advertiser or a property expert, it is inadmissible hearsay.
[24] The Phethenis’ submission that the court of first instance could take
judicial notice of the general availability of rental accommodation in
Hartbeesfontein is unjustifiable. Judicial notice is confined to facts of common
knowledge beyond reasonable dispute, facts so notorious and generally accepted
that no reasonable person would think of questioning them. 9 The apex Court has
applied this doctrine by dispensing with formal proof of facts it described as
facts so notorious that it is already part of the shared knowledge of the
community. 10
8 Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA) para 14.
9 Schwikkard & Van der Merwe Principles of Evidence 4th ed (2016) at 427–428.
10 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR
851 (CC) (5 June 1997) para 6
[25] Contrastingly, the availability of specific accommodation at affordable
rentals for particular occupants in a specific town is not a matter of common
knowledge; it is a particular fact that varies by location, affordability, and
individual circumstance, and must be proved.
[26] In Msibi v the Occupiers of Unit […] O[…] and Another 11 and that
such a determination may require a proper factual foundation on the papers.
Even on its own terms, the online rental advertisement proves only that a
property was listed online at some point in time; it does not establish that the
listed property was available, affordable, or accessible for these specific
occupants.
The approach to disputes of fact in motion proceedings
[27] The appellant raised a substantive defence in the answering affidavit that
the late Dikgwathle had not leased but purchased the property. This version was
corroborated by the affidavits of Mr Moeng and Ms Sonia Katryn Pheteni. The
court of first instance summarily rejected both affidavits on the basis that the
person who drafted the written sale agreement had not deposed to an affidavit.
This reasoning is misdirected.
[28] The context of these affidavits ought to have been considered within the
body of the appellant’s opposition. Mr Moeng and Ms Sonia Pheteni are not the
drafters of the agreement. They are independent witnesses deposing from their
own personal observation of the transaction and payments. Their evidence is
admissible in its own right. That the drafter did not also file a statement goes at
most to weight, not admissibility. Besides, the court of first instance’s view that
11 Msibi v the Occupiers of Unit […] O[…] and Another [2022] ZAGPPHC 880 (18 November 2022) para 31-
32
the appellant “should have opted for other avenues” to challenge the contract is
misplaced and is no answer to a defence raised in opposition to eviction
proceedings. Our jurisprudence enjoins a respondent in PIE eviction
proceedings to raise in opposition any matter including a challenge to the
applicant’s locus standi as owner which goes to the legal competence of the
application.
[29] Notably, the Phethenis ’ filed no replying affidavit. In motion
proceedings, where an applicant who prays for final relief does not reply to a
defence raised in the answering affidavit, the court must, for the purposes of the
application, accept the respondent’s version of those facts unless it is so clearly
untenable as to be rejected out of hand.12
[30] Put simply, the sale version, advanced with specificity, carefully detailed,
and deposed to by witnesses with intimate knowledge, is not inherently
implausible. It stood as admitted. Accordingly, the factual premise the court of
first instance was bound to apply is that the first respondent sold the property to
the late Dikgwathle in 2002 for a purchase price paid in full, and that the
property was substantially improved by the late Dikgwathle thereafter.
[31] On that uncontested version, a significant question arises. If the first
respondent sold the property to the late Dikgwathle in 2002, how did the City
Council of Matlosana come to hold and sell the same property to the Phethenis ’
in 2022 under Deed of Transfer T000072142/2022? The previous title is
T54887/1990. No account of the chain of title from the late Dikgwathle’s
alleged purchase through to the 2022 deed is offered in the papers. The locus
standi of the Phethenis’ to bring eviction proceedings as lawful owners is, on
12 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634–635.
I
I
the uncontested version, a genuine and material question that could not be
resolved on motion. The court of first instance should have dismissed the
application or referred the ownership question to oral evidence. The failure to
do so constitutes a material misdirection.
Just and equitable considerations
[32] It is not necessary to deal at length with the just and equitable enquiry
given the findings above. We note that with the online rental advertisement
excluded as inadmissible, there is no evidence of available alternative
accommodation. Under section 4(7) of the PIE Act which applies here, since the
occupation has subsisted for well over six months, having commenced in or
around 2004 the court is required to consider, among other things, whether land
has been made available by the municipality for the occupants’ relocation.13
[33] No such evidence was placed before the court. Furthermore, on the
uncontested version, the late Dikgwathle paid the full purchase price and made
substantial improvements to the property. These are material considerations
bearing on the constitutional right of every person not to be evicted from their
home without a court order made after proper consideration of all relevant
circumstances.14 Neither consideration was engaged with by the court of first
instance. This constituted a further misdirection.
Conclusion
[34] From a conspectus of the foregoing, the following is apposite. The
peremptory requirements of s 4(2) and 4(5) of the PIE Act were not met.
Neither the private eviction notice nor the Notice of Motion constitutes a
13 Sections 4(7) and 4(8) of the PIE Act; City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012
(6) SA 294 (SCA) para 25.
14 Section 26(3) of the Constitution of the Republic of South Africa, 1996.
compliant court -authorised PIE notice. The Notice of Motion omits both the
hearing date and the explicit notification of the right to appear before the court
and the right to legal aid, two of the four mandatory section 4(5) requirements.
The point in limine should have been upheld.
[35] Additionally, the reliance on the online rental advertisement as proof of
alternative accommodation was unsustainable, the rejection of the Moeng
affidavit and the Sonia Pheteni affidavit was misdirected, and the failure to
accept the uncontested sale version and its implications for the Phethenis' locus
standi constituted a further material misdirection. In the premises, the appeal
succeeds.
Costs
[36] Costs follow the result. There is no basis for a deviation from this deep
rooted principle. The application in the court of first instance was launched on a
fundamentally defective basis and should have been dismissed at the outset; the
costs of those proceedings follow accordingly. On appeal, the matter raised
questions of law of some complexity concerning the peremptory requirements
of the PIE Act, the admissibility of hearsay evidence, and the correct approach
to disputes of fact in motion proceedings. Scale B is accordingly appropriate.
Order
[37] In the premises, the following order is made:
1. The appeal is upheld.
2. The judgment and orders of Additional Magistrate L Loli dated 29 July
2025 are set aside and replaced with the following order:
2.1 The application is dismissed, without prejudice to the right of the
first and second respondents to institute fresh proceedings in
compliance with the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998.
3. The first and second respondents are ordered to pay the costs of the
application in the court a quo, on the party-and-party scale.
4. The first and second respondents are ordered to pay the costs of this
appeal on the party -and-party scale, including the costs of counsel on
Scale B.
________________________
REDDY J
JUDGE OF THE HIGH COURT, SOUTH AFRICA
NORTH WEST DIVISION
I agree.
_____________________________________
T TSAUTSE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION
Appearances
For the Appellant: Advocate T Masike
Instructed by: Mothibi Attorneys, Mahikeng
c/o Kennedy Kgomongwe Attorneys, Klerksdorp
For the 1st and 2nd Respondents: Mr Baloyi
Instructed by: Khotso Baloyi Attorneys, Klerksdorp