IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(3) REVISED: YES
In the matter between:
DEBEER: JACOB BERNARD
DE BEER: MARGRIETHA WILHEMINA
And
RABBONI CHRISTIAN SCHOOL (PTY) LTD
DEPARTMENT OF EDUCATION
THE MINISTER OF BASIC EDUCATION
THE MEMBER OF THE EXECUTIVE COUNCIL FOR
CASE NO: 30165/21
FIRST APPLICAN T
SECOND APPLICANT
15t RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
EDUCATION IN THE NORTH WEST PROVINCE 4th RESPONDENT
JUDGEMENT
ALLY AJ
2
(1] This is an opposed application for:
1.1. the ejectment of the Respondent from the property described as
Portion 603 (a portion of Portion 26) of the farm Krokodildrift 446,
Registration Division JQ, Northwest Province;
1.2. the removal by the Respondent of all improvements and building
works effected to the property;
1.3. the restoration of the property by the Respondent to the condition that
the property was in when receiving it;
1.4. the Respondent to desist from effecting any other works or
improvements to the property;
1.5. costs of the application
[2] This Court gave judgment wherein the matter was referred to oral evidence.
This judgment is in respect of the oral evidence led and the pleadings as a
whole.
[3] The Respondent has since amended its defence with leave of the Court and
has joined the second to fourth respondents. The First Respondent also filed
a counterclaim wherein relief is claimed against the second to fourth
respondents and requests the Court, in the event of ruling in favour of the
Applicants, to stay the execution of the judgment for a certain period of time
pending the First Respondent's request to the relevant member of the
executive council responsible for education .
3
[4] The request to the relevant member of the executive council would be to
consider expropriating 'the property'.
EVIDENCE LED AT ORAL EVIDENCE STAGE
[5] As there had been an 'agreement' between the Applicants and the First
Respondent that the First Respondent would have the duty to begin leading
evidence on the issues referred for oral evidence, The First Respondent
called its witnesses.
[6] The First Respondent called the Mr Abraham Jacobus Sipsma, the deponent
to the First Respondent's answering affidavit and present director and
headmaster of the First Respondent.
MR ABRAHAM JACOBUS SIPSMA
[7] The evidence of Mr Sipsma revealed that he was a teacher during the time
his father, Jan, was the headmaster which school was established in 1995.
During this time plans1 were drawn as to how the school was to be
developed.
[8] The plans were supposed to be taken further by Mr Cheyne in terms of
obtaining authorisation for the wishes of the parties but same was not
completed.
[9] It is clear from the evidence of Mr Sipsma that he became involved in the
school at an early stage where he started off as a teacher and then with his
1 Caselines : Section 0112 -0115
4
late father as part of the management of the school. This period was some
20 years in extent.
[1 0] The school management had decided to develop the school and plans2 were
developed for this purpose which included a sports facility and technical
component of the school.
[11] Mr Sipsma testified about the layout of the plan3 as set out in documents
discovered by both the applicants and the first respondent. Presently, the
applicants occupy HEF on the plan and the first respondent DFG. This is
common cause.
[12] Mr Sipsma testified that he became a member of the board of trustees of the
school in 2001. At this time the board of trustees appointed a certain Mr
Cheyne as a land surveyor to do the subdivision of the land in respect of the
two properties.
[13] From the period 2001 to 2008 the work that Mr Cheyne was appointed to
complete was not completed and this was only realised in 2008. It was also
during 2008 that an objection or communication was received from the first
applicant. It was during 2009, however, that a new town planner and land
surveyor was appointed because the school had financial constraints during
the period of 2008. The new land surveyor was a certain Mr De Klerk.
2 Caselines : Section: 0112 - 011 7
3 Caselines : Section: 0162
5
[14] Mr Sipsma Senior passed away in 2015 and Mr Sipsma Junior became
Chairperson of the board of trustees. During this time the board of trustees
was of the view that the subdivision and consolidation plans needed to be
finalised . Mr Sipsma then testified that he approached the first applicant to
finalise the arrangements of the subdivision and consolidation and the first
application stated that Mr Sipsma must make an offer. During this discussion
about the finalisation of the subdivision and consolidation , Mr Sipsma
testified that he presented the first applicant with an agreement from the
lawyers that both parties needed to sign. It was at this point that the first
applicant requested Mr Sipsma to make an offer.
[15] An offer was made to the first applicant through the school's lawyers which
offer was rejected by the first applicant.
[16] Mr Sipsma testified that the first applicant never denied the existence of the
agreement regarding the use of HEF and DFG. He further testified that Mr
Lourens, the applicants' attorney, indicated that there is no written
agreement and denied that there was agreement on the oral agreement.
[17] Cross-examination of Mr Sipsma was directed first at the terms used in
respect of the properties, namely, the perpetual nature of the exchange of
the properties identified as HEF which was used by the applicants and DFG
used by the respondent. Mr Sipsma confirmed that the perpetual nature of
the agreement and the personal servitude came from the respondent's
attorneys. He, however, understood the agreement to be a "ruiltransaksie"
which would continue in perpetuity. When confronted with the use of the
word 'perpetuity' Mr Sipsma accepted that as he understood it, the exchange
6
of the properties and use thereof will continue until finalisation of the
agreement in terms of legislation, that is, that arrangements would be made
with the relevant authorities to obtain the necessary ministerial consent
because the land was agricultural land. Mr Sipsma also conceded that he
was aware from the beginning that ministerial consent was needed for the
subdivision and consolidation of the relevant properties .
[18] Mr Sipsma conceded that in response to the letter4 from the applicants'
attorneys , no mention is made of the fact that they cannot be told to vacate
portion DFG because there was a personal servitude in existence which was
of a perpetual nature.
MR FRANS JOHANNES KRUGER
[19] Mr Kruger was called to testify on behalf of the respondent. He testified that
he was part of the board of trustees from the inception of the school which
was in 1995. He further testified that he was present when discussions were
held about the use of the properties by the school and the applicants. In this
regard he testified that the first applicant had never objected to the use of the
property by the school.
[20] The central point of Mr Kruger's cross-examination centred around whether
he was present at the school in 2015 and when he stated that he had left the
school by then, cross-examination was terminated .
4 Caseli nes: Section: 040 - 041
7
MR JEFFREY BERNARD DE KLERK
[21] Mr De Klerk was called as a final witness for the respondent. Mr De Klerk is
a town planner and has practised privately since 2005 and in the public
service in the early 1970s. He testified that he received instructions from
both parties but he was first approached by the first applicant through a
certain Mr Freddie De Beer. The approach related to a proposed township
establishment on the applicants' property.
[22] He further testified that during this time he was appointed by the respondent
to do a subdivision and consolidation and called it a land exchange process.
As part of this process, he submitted a subdivision and consolidation
application to the Department of Agriculture in terms of Act 70 of 19705. He
had to obtain powers of attorney from both parties which he did.
[23] Mr de Klerk testified that a rezoning application was submitted on behalf of
the respondent and the application was subsequently approved6. He
concluded his testimony to indicate that the first applicant did not object to
the subdivision and consolidation and was actually part of the application
process that unfolded.
CONTENTIONS BY THE PARTIES
5 Subdivision of Agricultural Land Act
8
[24] The applicants ' case is that they own the property and the first respondent is
in unlawful occupation of portion DFG which represents Portion 603.
[25) Furthermore , so the applicants' submit, the first respondent has failed in
proving that they have a right to be in occupation of portion DFG.
[26] The question that arises is whether the first respondent has shown a right to
be in occupation of portion DFG. The evidence of the first respondent's
witnesses , is that the applicants and the first respondent had entered into a
'ruiltransaksie ' an exchange . Mr Sipsma when pressed by Counsel of the
applicants, indicated that after consultation with legal representatives of the
first respondent , this 'ruiltransaksie' was actually one that was in 'perpetuity';
it would exist up until the formalities had been completed . The formalities
related to formalising the agreement in accordance with legislation.
[27] Counsel for the applicants submits that it is common cause that there was an
agreement to use each other's land but that agreement came to an end
when the applicants requested the first respondent to vacate.
EVAULUA TION
[28] The first question that arises is whether on the evidence the first respondent
has proven that a servitude existed and that such servitude bars the
applicants from evicting the first respondent.
[29] The witnesses in my view, have proven on a preponderance of probabilities
that there was an agreement between the applicants and the first respondent
to exchange land. However, that is not the end of the enquiry.
9
[30] The second question is whether this exchange of land was in perpetuity so
as to bar the applicants from evicting the first respondent. On a conspectus
of the evidence, it is my view that the first respondent has been unable to
prove that the agreement , which is common cause, was in actual fact in
perpetuity.
[31] The third and important question is whether the Alienation of Land Act7
applies to this agreement and whether the agreement complies with the
provisions of the Alienation of Land Act.
[32] Section 1 of the Alienation of Land Act8 provides:
" "alienate", in relation to land, means sell, exchange or donate, irrespective of
whether such sale, exchange or donation is subject to a suspensive or resolutive
condition , and "alienation " has a corresponding meaning;"
[33] In my view, the exchange agreement testified to by the witnesses for the first
respondent and which is common cause between the parties, falls squarely
within the definition of 'alienate' in the Alienation of Land Act9.
[34] Section 2(1) of the Alienation of Land Act10 provides:
" No alienation of land after the commencement of this section shall, subject to the
provisions of section 28, be of any force or effect unless it is contained in a deed of
7 Act 68 of 1981 as amended
8 supra
9 supra
10 supra
alienation signed by the parties thereto or by their agents acting on their written
authority."
[35] It is clear from Section 2(1) of the Alienation of Land Act that there is a
requirement for a written agreement for an alienation of land to be valid. I am
of the view that on the evidence before Court, no such 'written agreement'
exists and thus any oral agreement between the parties is in contravention of
the Alienation of Land Act and thus null and void and unenforceable .
[36] In respect of the counterclaim, it is my view that the first respondent, as
stated above, has failed to prove that it has an enforceable right to continued
occupation of portion DFG. Furthermore, it is my view, that it would not be
just and equitable for the applicants to await the response from the second to
fourth respondents regarding an application to expropriate the relevant
portion of the land occupied by the first respondent. In fact, the first
respondent has requested the relevant authorities to assist with no success.
CONCLUSION
[37] Accordingly , there is no other conclusion than that the applicants have
proven that the portion DFG, which is Portion 603, occupied by the first
respondent is the property of the applicants.
[38] The first respondent, in my view, has shown no enforceable right to be in
continued occupation of portion DFG when regard is had to all the evidence.
[39] With regard to the timeline within which the first respondent must vacate the
property , it is my view that a period of 90 days is reasonable and fair in the
circumstances , taking into account that the first respondent is a school.
11
[39] There is no reason why costs should not follow the result and no argument to
the contrary was made by either of the parties. Furthermore, both parties
agreed that the Scale of costs should be at Scale B.
[40] Finally, I must apologise to the parties for any inconvenience caused in
delaying the delivery of this judgment.
[41] Accordingly, an Order in terms of the order marked "X", as amended, is
granted.
ACTING JUDGE OF THE HJGH COU
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 17 June 2026.
Date of hearing:
Date of judgment:
11 April 2025
17 June 2026
Appearances:
Attorneys for the Applicants:
12
LOURENS & SCHWARTZ ATTORNEYS INC
lourensprokureurs@worldonline.co .za/
hof1@ls-ing .co.za
Counsel for the Applicants: Adv. J. Moller
Attorney for the Respondents : JACQUES VENTER ATTORNEYS INC
info@jvprok .co.za
Counsel for the Respondents : Adv. A. Kloppers
13
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
And
RABBONI CHRISTIA
DEPARTMENT OF EDUCATION
THE MINISTER OF EDUCATION
THE MEMBER OF THE EXECUTIVE COUNCIL
RESPONSIBLE FOR EDUCATION IN THE NORTH
WEST PROVINCE
COURT ORDER
0
e No: ~65/2021
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
HAVING heard evidence and read and considered all the documents filed of record
as well as having considered all submissions of Counsel of the parties, the following
Order is made :
14
1. An Order ejecting the First Respondent from the Applicants' property,
namely, Portion 603 (a portion of portion 26) of the Farm Krokodildrift 446
Registration Division JQ, Northwest Province ("the Property") within 90
[ninety} days of this Order;
2. First Respondent is ordered to remove all improvements and building works
to "the property" that they have effected, within 90 [ninety] days of this Order;
3. First Respondent is ordered to restore the property to the condition in which
it was received;
4. First Respondent is ordered to desist from effecting any other works or
improvements to Mthe property" other than as ordered herein;
5. The First Respondent's counterclaim is hereby dismissed with costs;
6. The First Respondent is to pay all the costs of the application including the
hearing of oral evidence and the costs of Counsel in terms of Rule 69 to be
at Scale B.
~E'T~
----cou1•• ~, \\CH •
Counsel for the Ap~1i nt:,AW: J;~~o~:o •
Counsel for the 1st ~es~~ - Kloppers: 076 452 5145