SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 3947/2023
In the matter between:
BLUE POINTER TRADING 322 (PTY) LIMITED FIRST APPLICANT
REGISTRATION NUMBER 2003/014637/07
VILLA MODE (PTY) LIMITED SECOND APPLICANT
REGISTRATION NUMBER 2018/030542/07
And
(1) REPORTABLE: /NO
(2) OF INTEREST TO THE JUDGES: /NO
(3) REVISED.
…………………….
…………………….
DATE05/08/2026 SIGNATURE………...………………
PAUL HERMAN SWANEPOEL FIRST RESPONDENT
ID NUMBER: 5[...]
CHAMAINE BRENDA SWANEPOEL SECOND RESPONDENT
ID NUMBER: 6[...]
THE BELA BELA LOCAL MUNICIPALITY THIRD RESPONDENT
Delivered : 05 August 2026
This matter has been heard in an open Court and is otherwise
disposed of in terms of the Directives of the Judge President of
this Division. The judgment and order are accordingly published
and distributed electronically and circulated to the parties’
representatives by email and published on the SAFFLI on the
Limpopo High Court website. The date for handing down of the
judgment is deemed to be 05 August 2026
Date heard : 11 May 2026
Coram : TSHITEREKE AJ
JUDGMENT
TSHITEREKE AJ:
INTRODUCTION
1. On 03 May 2023, the first and second Applicants, launched motion proceedings
against the parties cited herein as the Respondents, and sought in the main the
following relief:
1.1. That the first and second Respondent are ordered to vacate Chalet 1[...],
Block [...]. situated at the Hideaway Holiday Resort, Bela Bela, Limpopo
Province on the property of the second applicant, within thirty (30) days
from the date of this order, which holiday resort is situated on the property
of the second applicant.
1.2. That should the first and second Respondents and any person who occupy
Chalet 1[...], Block [...] . situated at the Hideaway Holiday Resort, fail to
vacate the said chalet that the Sheriff of the above Honourable Court is
hereby authorised and directed to evict the first and second Respondent
from Chalet 1[...], Block [...], Hideaway Holiday Resort and any person who
occupies the said chalet through the first and second Respondents.1
1Paginated Papers, Applicant’s Notice of Motion dated 11 September 2023
2. I should immediately point out that as required by the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (hereinafter
referred to as the PIE Act) , the Bela Bela Local Municipality , in whose area of
jurisdiction the immovable property is situated was duly served with the founding
papers and elected not to participate in the eviction proceedings.2 Something falls
to be said on the fact that sufficient evidence and information ought to be
provided to the Court in order to determine whether the relief sought would be
just and equitable in the circumstances. 3 I deal with th is germane issue in detail
infra.
3. The papers trace the history of the relationship between the parties on an
immovable property , being a Chalet 1[...], Block [...] situated at the Hideaway
Holiday Resort, Bela Bela, Limpopo Province . In sum, the Applicants and
Respondents entered into a contractual relationship that pertains to an
immovable property being Chalet 1[...], Block [...] situated at the Hideaway
Holiday Resort, Bela Bela, Limpopo Province . I must immediately point out that
Mr Philip Van Den Heever represented the Applicants in the conclusion of the two
contracts referenced to infra.
2Blue Moon Light Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue 2009 (1) SA 470 (W) Paras 53
and 68 wherein the following was stated: the failure by municipalities to discharge the role implicitly
envisaged to them by stature, that is, to report to the court in respect of any factors affecting land and
accommodation availability and the basi c health and amenities consequences of an eviction, especially on
the most vulnerable such as children, the disable and the elderly, not only renders the service of the notice
superfluous and unnecessary costly exercise of the applicants, but more importantly, it frustrates an
important objective of the legislation. It will often hamper the court’s ability to make decisions which are truly
just and equitable.
just and equitable.
3Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), Occupiers of 51 Olivia
Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC),
Residence of Joe Slovo Community, Western Cape v Tubelisha Homes 2010 (3) SA 454 (CC)
4. The competing rights adumbrated herein pertains to the immovable property and
begets the current impasse, with the Applicants, firstly seeking an eviction of the
Respondents from the immovable property , and, secondly, the first and second
Respondents exerting their right to ownership of the immovable property. The
gravamen of the Respondents’ opposition of the eviction application in Court are
two fold , firstly that they acquire d ownership of the immovable property in the
period 15 August 2017, and , secondly that the improvements in the form of
garages constructed in the immovable property (right of retention). 4 I shall
consider these germane and material issues in turn.
THE FACTS
5. In casu, both parties placed reliance on two sets of documents in relation to the
conclusion of the written agreements in the period, August 2017. For the sake of
completeness I refer to these two instruments or documents infra:
5.1. A written sale agreement concluded and signed between the first Applicant
and the Respondents on 15 August 2017.5
5.2. A written contract for occupancy of the immovable property between the
first Applicant and Respondent signed on 17 August 2017.6
4Indexed Bundle Paginated Papers, first and second Respondents’ Answering Affidavit, Page 65
5Indexed Bundle Paginated Papers, first and second Respondent s’ Answering Affidavit, Annexure PS1,
Page 73 - 76
6Indexed Bundle Paginated Papers, Applicant’s Founding Affidavit, Annexure C, Page 21 - 26
6. The inquiry is what to do with these written contracts signed by both parties
before the Court.
7. I must add that in terms of the se two written contracts , the p arties agreed on
payment of an amount in the sum of Three Hundred and Fifty Thousand Rands
(R350 000-00), to enable the Respondents to participate in the share block
scheme at 6[...] E[...] Road, Bela Bela, Limpopo Province . It is necessary in the
circumstances to understand that an arrangement to participate in the share
block scheme meant that the Respondents acquired, inter alia , rights and
obligations tied to the aforesaid arrangement to participate in the holiday resort.
8. It was contended, that, the inter-relationship between the parties involving the
Respondents’ participation , included the primary obligation on the first and
second Respondents, to make payment of the sum of One Thousand and Fifty
Rand (R1 050,00), towards levies every month to the Applicants.
THE DISPUTE BETWEEN THE PARTIES
9. The dispute in the main primarily rests on the failure of the first and second
Respondents to make monthly payment(s) of the sum of One Thousand and Fifty
Rands (R1 050, 00), in relation to the exercise of their rights and obligations in
the holiday resort.
10. The Applicants ’ case is that the first and second Respondent failed to make
payments of monthly levies in the sum of R1 050,00, and proceeds on the
premise that the aforesaid amounts have been due and payable dating back to
the period, November 2022.
11. Moreover, that a notice of cancellation was provided to the first and second
Respondents for such a default in the payment of the outstanding amounts .7 At
the hearing Mr Bruwer further argued t hat the Respondents there and then
elected not to service the debt at the time amounting to the sum of R6 740,40.8
12. It was contended that in view of the non -compliance referred to supra that the
Applicants elected to cancel the agreement by issuing formal correspondence to
that effect to the Respondents.
13. A clause on Default in the written agreement signed on 15 April 2017 ,use the
unequivocal expressions which reads:
In the event of either party failing to pay any of the amounts referred to in this
agreement on due date or breaching any of the terms and conditions hereof and
persisting in such failure or breach for a period of 7 days (seven) days after
dispatch of written notice from the aggrieved party calling upon the defaulting
party to make such payment or remedy such breach, the aggrieved party shall be
entitled at the sole discretion and without prejudice to any of his rights in terms of
this agreement or in law, either to:-
7Indexed Bundle Paginated Papers, Applicant’s Founding Affidavit, Annexure F, Page 43
8Indexed Bundle Paginated Papers, Applicant’s Founding Affidavit, Annexure C, Page 21 - 26
(a) Claim specific performance of the terms of this agreement; or
(b) Cancel this agreement forthwith and without further notice claim and recover
damages from the defaulting party;
(c) Cancel this agreement and retain all amounts paid by the defaulting party as
rouwkoop or as liquidated damages or as payment in respect of the prejudice
agreed upon which has been suffered by the aggrieved party cancelling the
agreement as a result of the defaulting party’s breach of the agreement.
14. The words in both written contracts are clear, and I do not see how one would be
justified in not making a payment as required in terms of the written
agreement(s).
15. In the light of the issues canvassed above one has to peek through the
Respondents Answering Affidavit on the issue relating to the non-payment of
levies at the holiday resort . The non-payment is not addressed at all in the
Respondents Answering Affidavit. Accordingly, I intimated and invited counsel for
the Respondents, to address me on the issue, firstly pertaining to the two written
contracts and secondly the non-payment of monthly levies by the first and
second Respondents . Mr Maabane, accordingly, elected to deal with the later
issue, and only submitted that the Respondents have been paying monthly levies
to a bank account provided to them.
16. With the submission above it was apparent and obvious that there have not been
any payments by the Respondents to the Applicants towards the monthly levies
as agreed. With regard to the aforesaid contention if payments were effected by
the Respondents one would have expected a party placing reliance on such a
manner of payment to attach proof of payments in the answering papers. None
was provided as I alluded supra.
17. I proceed to consider the contents of Paragraph 5.3 in the Respondents
Answering Affidavit which reads: The first Respondent is blatantly misleading the
above Honourable Court in stating that they were sold the right of occupancy, we
were led to believe that we were buying the dwelling, as were allowed to build
garages on the property and have a freedom of testation. The offer of Purchase is
attached hereto marked as Annexure “PS1”.9
18. As reflected in Paragraph 6.2 supra, the second agreement concluded between
the parties recorded that the first and second Applicant sold to the Respondents a
right of occupancy of Chalet 1[...], Block [...] , Hideaway Holiday Resort, Bela
Bela, Limpopo Province.
19. The general contractual principles on agreements will apply as clearly an
agreement to occupy existed between the Applicants’ and Respondent s. A n
agreement was concluded between the parties. The first and second Respondent
9Indexed Bundle Paginated Papers, first and second Respondent s’ Answering Affidavit, Annexure PS1,
Page 65 - 67
have been in occupation of Chalet 1[...], Block [...] , Hideaway Holiday Resort,
Bela Bela, since the period August 2017.
20. A dispute of fact emerges from the Respondents’ Answering Affidavit on this
particular point , and not addressed at all in the Applicants Founding papers.
Counsel for the Respondents submits that not only was the dispute foreseeable,
but was actually foreseen by the Applicants attorneys in relation to the conclusion
of the two agreements in the period August 2017.
21. Notwithstanding these disputes, the Applicants contend that no genuine or material
dispute of fact arises on the papers. They further contend that, even if such a dispute
exists, its resolution is not material to, nor determinative of, the relief sought in the
Notice of Motion. It is well established that while the Court has a discretion in
deciding whether to allow a referral to oral evidence, the Court will dismiss an
application if the Applicant should have realised when launching the application that
a serious dispute of fact, incapable of resolution on the papers, was bound to
develop. In any event nothing turns on this issue in view of the position I have taken
in relation to compliance with the peremptory requirements in terms of the PIE Act. I
deal with these aspects hereunder.
ANALYSIS OF THE MATTER
22. On 18 April 2024 , her Ladyship Justice Deane AJ, authorised and directed
service of a section 4 (2) Notice on the first Respondent, Mr Paul Herman
Swanepoel and there has been compliance with the directions. There is no
dispute between the parties that the P IE Act finds application in these
proceedings.
23. In my opinion t he facts in this case make s it clear that the parties have been
aware about the possibility of an eviction as early as April 2024.
24. Section 26 (3) of the Constitution of the Republic of South Africa Act, 108 of 1996
provides: “No one may be evicted from their home, or have their home
demolished, without any order of court made after consideration of all the relevant
circumstances and that no legislation may permit arbitrary evictions”.
25. The decision on whether an eviction in this matter will be just and equitable ought
to be observed on, inter alia, the information provided in the Answering Affidavit
and the non-availability of a report from the third Respondent, the Bela Bela Local
Municipality.10
26. In Residence of Joe Slovo Community, Western Cape v Tubelisha Homes, 11 the
Court observed as follows : t he Constitution deals expressly with the duties of
councils towards the disadvantaged sections of our society and stated that the
objects of local government include ensuring "the provision of services to
communities in a sustainable manner" and "promoting social and economic
development", and that a municipality must "structure and manage its
administration and budgeting and planning processes to give priority to the basic
needs of the community, and to promote the social and economic development of
the community".
10Occupiers of Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Mark Lewis Steele 2010 (9) BCLR 911
(SCA)
112010 (3) SA 454 (CC) and Blue Moon Light Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue 2009 (1) SA
470 (W)
I am inclined to a view that section 26 (3) of the Constitution imposes on courts
onerous obligations to consider all of the relevant circumstances when the
granting of an eviction order is sought and considered. Essentially, an eviction
order may be granted only if it is just and equitable in the circumstances.12
27. In this regard the duties and responsibilities of municipalities in all evictions must
not be underestimated. 13 Not only the provisions in the eviction legislation, but
other constitutional directives, especially those specifically applicable to local
government must all be applied in a holistic manner.
28. Turning to one substantial fact, the Respondents failed to adequately canvass
their personal circumstances as appear in Para 27 of their Answering Affidavit .
No supporting affidavits and / or documentations are provided to deal with the
income of the second Respondent nor the first Respondent’s indigency
addressed. However, that is not an end of the inquiry in relation to the matter at
hand.
29. In Paragraph 27 of the Respondents Answering Affidavit, the following is stated in
relation to the issue addressed in Paragraph 25 supra:
The contents hereof are vehemently denied. The first Respondent is misleading
the Court in this regard. It is apparent from my identity number that we are
12City of Johannesburg v Blue Moonlight Properties at Para 23 - 39
13City of Johannesburg v Blue Moonlight Properties at Para 23 - 39
elderly. I am a pensioner card holder. I am 66 years of age and the second
Respondent is currently 62 years of age. The Second Respondent is the only
person in our household who currently enjoins the benefits of a monthly income.14
Sic Underlined
30. In my view the correctness of the averments referenced above are not addressed
and challenged by the Applicants. The Respondents are elderly members of the
community, and aged Sixty Nine (69) and Sixty Five (65).
31. Section 4 (7) of the PIE Act makes it clear that the provisions of the sub -section
that follow are peremptory. It also defines the "proceedings" to which the section
applies, namely proceedings for the eviction of an unlawful occupier of land for a
period of more than Six (06) months.
32. In my observations I have to seriously consider the fact that the first and second
Respondents had occupied the immovable property for a period in excess of Six
(06) Months.
33. In fact, their occupation of the immovable property is for an approximate period of
Nine (09) Years.
14Indexed Bundle Paginated Papers, first and second Respondent Answering Affidavit, Page 71
34. This is a weighty consideration in deciding on what would be fair, jus t, equitable
and humane in the circumstances.15
35. In short, and taking into account the contents of Paragraph 27 of the Answering
Affidavit, it is patently clear that the first and second Respondents are vulnerable
members of our societ y and the determin ation of the application I need to
seriously consider the personal circumstances of the Respondents.
36. In a matter such as this where a municipality is tasked with providing emergency
temporary housing for a small family, as it is in this case, it may be feasible for
the Bela Bela Local Municipality to meet th e need effectively.16 I would assume
that in the event that an eviction order is granted, that the Respondents w ill
require fewer amenities, utilities and land, and thereby making it easier for the
Bela Bela Local Municipality to identify suitable accommodation for the
Respondents.
37. In order to minimise the degree of hardship to the Respondents, who are elderly
and in a weaker position, the Bela Bela Local Municipality, ought to have had a
meaningful engagement and discussion with the parties and the legal
representatives spanning back to the period April 2023, when the application for
an eviction was launched. This was essential and necessary to alleviate any
hardship in the event an eviction order is granted by Court.
15Constitution of the Republic of South Africa Act, No 108 of 1996
16Sandile Percival Msibi v the Occupiers of Unit 06 & Another[2025] ZAGPPHC100 (31 January 2025) at
Para 32
38. The Applicants are dominis litis in t hese legal proceedings , and ought to have
adequately engaged the Bela Bela Local Municipality on a proper cause to be
undertaken in relation to the ejectment and eviction sought in the current
application.17
39. The discussions envisaged ought to have centred around the provision of
alternative accommodation in the event an eviction order is granted.
40. In the matter of Emfuleni Local Municipality v Builders Advancement Services
and Others ,18 his Lordship Justice Willis J , concluded in his judgment by
stating that he is bewildered and confused as to how a court is expected to deal
appropriately with evictions, and that clarity is required. In Para 28 of the
judgment, his Lordship stated that the legal remedy for the unlawful occupation of
property is an eviction order and that the making of which must be exercised with
compassion, grace and an awareness of the right of every human being to be
treated with dignity.
41. On a proper reading of the Notice of Motion, it is clear that the order sought by
the first and second Applicant will impact the lives of the Respondents and
members of their households. The Bela Bela Local Municipality in its capacity as
a municipality and responsible government functionary has not meaningfully
participated in these legal proceedings, no report has been furnished and / or
17City of Johannesburg v Blue Moonlight Properties at Paras 71 -104
182010 (4) SA 133 (GSJ)
pledged to render the necessary assistance to the Respondent s and members of
their household in the event that prayer one in the Applicants’ Notice of Motion is
granted by the Court.
42. Insofar as prayer number one is concerned the Applicant s ought to satisfy the
Court that an order to evict the Respondents would be just and equitable, after
consideration of all the relevant circumstances in the matter.19
43. My prima facie view is that the application should be granted. However, granting
the application at this stage seems to be a harsh step to take against the
Respondents in view of all the competing constitutional rights highlighted in the
matter.20It is therefore not reasonable and fair to grant an order at this stage in
view of some of the issues highlighted supra.
44. Bela Bela Local Municipality ought to be before the Court , and meaningfully
engage and participate in the se legal proceedings in order for a proper
determination to be made in casu.
45. I am not going to shut that door to the parties at this stage. Striking the
application from the Court roll to allow the Applicant s and the Bela Bela Local
19Indexed Bundle Paginated Papers Applicant’s Notice of Motion, Page 01 - 04, Government of the Republic
of South Africa v Grootboom 2001 (1) SA 46 (CC), Occupiers of 51 Olivia Road , Berea Township, and 197
Main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC), Residence of Joe Slovo
Community Western Cape v Tubelisha Homes 2010 (3) SA 454 (CC)
20Indexed Bundle Paginated Papers, Applicant’s Founding Affidavit, Annexure C, Page 21 - 26
Municipality to comply with all the procedural requirements envisaged in section 4
(7) of the PIE Act seem more reasonable and appropriate in the circumstances.21
ORDER
46. In the result, I make the following order:-
42.1. That the application is struck from the Court Roll.
42.2. There shall be no order to costs.
TSHITEREKE AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR THE APPLICANTS : Adv AP Bruwer for the first and second
Applicant
083 268 2170
INSTRUCTED BY : Mahumani Incorporated
17 Ismin Office Park, Bendor
Polokwane
Tel: 015 797 1030
21Sandile Percival Msibi v The Occupiers of Unit 06 & Another [2025] ZAGPPHC100 (31 January 2025,Para
34
Email:nswart@mahumaniinc.coza
wendy@mahumaniinc.co.za
FOR THE RESPONDENT : Advocate D Maabane for the first and
second Respondent
072 485 2381/014 717 4977
Legal Aid Board, Modimolle
95 Mandela Drive,Nylsake Sentrum
Modimolle