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JUDGMENT
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KEKANA AJ
INTRODUCTION
[1] This is an application for the eviction of the first, second and fifth respondent from the
property described as Portion 6 (A Portion of Portion 2) of the Farm Lowhills 394 (Portion 6),
Registration Division JU, Mpumalanga Province and Portion 8 of the Farm Lowhills 394,
Registration Division JU, Mpumalanga Province (portion 8) (jointly referred to as “the
properties”) in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (PIE Act).
[2] Prior to hearing the present application, I heard an application for the rescission of a
winding-up order brought by the first respondent in his representative capacity. That winding-
up order had resulted in the liquidation of the company which allegedly owned the properties
and the subsequent sale of the properties which are the subject of the present proceedings.
[3] At the commenceme nt of the present matter, Mr Van Rensburg , w ho appeared for the
respondents, submitted that I ought not to hear the application as, in his view, I was conflicted
by reason of having presided over the rescission application. The first respondent in the present
application had acted in a representative capacity and sought to set aside the winding-up order
which had ultimately l ed to the sale of the property to the present applicant. Although not
expressly framed as such, the submission amounted to an application that I recuse myself from
hearing this matter.
[4] The objection came as a surprise. Before the commencement of the day's proceedings, I had
met with counsel in chambers to discuss the order in which the matters would be heard. At no
stage during that discussion did Mr Van Rensburg indicate any concern regarding my hearing
both matters. It was only after the rescission application had been fully argued and concluded
both matters. It was only after the rescission application had been fully argued and concluded
that the objection was raised.
[5] Mr Kruger, who appeared for the applicant , opposed the request for recusal. He drew the
Court's attention to correspondence exchanged between the parties in the rescission application
which, according to him, demonstrated that it was in fa ct the applicants' own legal
representatives who had requested that both matters be allocated to and heard by the same
judge. He submitted that, in those circumstances, the applicants could not, after the completion
of argument in the rescission application, seek my recusal merely because they were
dissatisfied with the fact that I had heard that matter.
[6] Having considered the submissions, I was satisfied that no reasonable apprehension of bias
had been established. The mere fact that a judge has previously heard another matter involving
some of the same parties, or a related factual background, does not, without more, constitute a
basis for recusal. Judges are frequently required to hear successive matters involving the same
litigants or overlapping facts. The question is whether a reasonable, objective and informed
person would apprehend that the judg e would not bring an impartial mind to bear on the
adjudication of the matter. No such facts were advanced in the present matter. My knowledge
of the earlier proceedings arose solely from the proper discharge of my judicial functions, and
there was no sugg estion that I possessed extraneous knowledge or had prejudged any issue
arising in the present application.
[7] In those circumstances, I declined to recuse myself and proceeded to hear the application.
BACKGROUND
[8] Pieriesfontein Boerdery (Pty) Ltd (Pieriesfontein) was allegedly the registered owner of the
immovable properties described as Portion 6 (A Portion of Portion 2) of the Farm Lowhills 394
(Portion 6), Registration Division JU, Mpumalanga Province and Portion 8 of the Farm
Lowhills 394, Registration Division JU, Mpumalanga Province(portion 8) (jointly referred to
as the property)
[9] Pieriesfontein was placed under final winding -up by the court on the 20 th February 2020.
The assets in the Pieriesfontein’s insolvent estate vested in the appointed liquidators, Cloete
Murray N.O and Mirrelle Vallie N.O (the Liquidators). The liquidators arranged for the
property to be auctioned. The applicant was the highest bidder at an online auction and
concluded a sale agreement with the liquidators on the 7 th March 2023. The property was
transferred to the applicant on the 19th October 2023.
[10] The first respondent in his representative capacity as a trustee and beneficiary of the Moller
family trust and the Lowhills family trust is disputing the sale of the pr operty to the applicant
on the basis that the property was owned by the two trusts and not Pieriesfontein.
[11] The first, second, and the third respondents (the respondents) remain on the property
despite the transfer of the property. The parties have been involved in litiga tion since the
transfer of the Property including application by the applicant interdicting the respondents from
carrying on commercial activities on the property, contempt of court and spoliation applications
among others.
[12] The respondents referred to the litigation history between the applicants and the first
respondent either acting personally or in a representative capacity. I have not included that
information herein as it is not pertinent to the present application.
LEGAL FRAMEWORK
[13] PIE Act regulates the eviction of unlawful occupiers. It affords protection to unlawful
occupiers by prescribing procedures and processes that land owners must adhere to when they
want to evict an unlawful occupier from their la nd giving effect to section 26 of the
Constitution. Section 26 requires judicial oversight in every eviction application and obliges
the court to balance the competing constitutional rights of both the property owner and the
occupier.
[14] Section 4(7) of the PIE Act states as follows:
‘If an unlawful occupier has occupied the land in question for more than six months at the time
when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion
that it is just and equitable to do so, after considering all the relevant circumstances, including,
except where the land is sold in sale of execution pursuant to a mortgage, whether land has
been made available or can reasonably be made available by a municipality or other organ of
been made available or can reasonably 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.’
[15] Section 4(8) of the PIE Act provides further that if ‘ the court is satisfied that all the
requirements of this section have been complied with and that no valid defence has been raised
by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and
determine – (a) a just and equitable date on which the unlawful occupier must vacate the land
under the circumstances; and (b) the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated in paragraph (a)’.
[16] The court in Madulammoho Housing Association NPC v Nephawe and another
(22/023954; 21/40262) [2023] ZAPJHC 7(10 January 2023) at para 8 summarised the enquiry
into justice and equity as follows:
‘The principles of justice and equity are, first, that the applicant for an eviction order bears the
onus to establish that it is just and equitable to grant one; second, that evictions that lead to
homelessness are not generally just and equitable; third, that a court has wide powers to require
applicants for eviction orders, organs of state and unlawful occ upiers to produce the
information necessary to enable the formulation of a just and equitable order; and fourth, that
where an eviction would lead to homelessness, the duty to provide the alternative
accommodation necessary to prevent an unlawful occupier from becoming homeless generally
falls on the local authority with jurisdiction over the property.’
LOCUS STANDI OF THE DEPONENT
[17] The respondents firstly challenge the locus standi of Mr Tolmay , the deponent to the
applicant’s affidavit. It is, however, not apparent from the answering affidavit on what basis
this challenge is made. In any event, Mr Tolmay, being the sole director of the applicant, there
can be no question about his authority to depose to the founding affidavit on behalf of the
applicant. There is accordingly no merit in the challenge to his locus standi.
SUBMISSIONS
[18] The applicant submits that it purchased the property lawfully at an online auction
conducted by the liquidators of Pieriesfontein, the former registered owner of the property and
the t ransfer has since been passed to the applicant. It is contended that there is no lease
agreement between the parties and that the applicant has never consented to the respondents
agreement between the parties and that the applicant has never consented to the respondents
remaining on the property. Their continued occupation is accordingly unlawful.
[19] In their answering affidavit, the respondents raise numerous issues, including the history
of the litigation between the parties and the events that culminated in the liquidation of
Pieriesfontein. Essentially, the respondents specifically contend that the property was intended
by the first applicant’s father to be a legacy for his descendants and thus he created the Moller
Family Trust. The first respondent created the Lowhills Family Trust , which according to the
first respondent together with the Moller Family Trust became the owner of the property.
Further that Pieriesfontein was a special purpose vehicle and did not own the property.
ANALYSIS
[20] The respondents' case is, in essence, that Pieriesfontein owned Port ion 6 of the Farm
Lowhills from 1988. During 1995 and 1996, all the shares in Pieriesfontein were transferred to
the Moller Family Trust and the Lowhills Family Trust. According to the respondents,
following the transfer of the shares, Pieriesfontein merel y functioned as a special purpose
vehicle through which the farming operations were conducted, whilst the two trusts became
the true owners of the property. They contend that Pieriesfontein no longer owned any land
and that the trusts were the lawful owners of the immovable property.
[21] On this basis, the respondents argue that the applicant purchased nothing more than "an
empty shell with nothing therein". They further contend that all the assets and proceeds of
Pieriesfontein belonged beneficially to the two trusts as shareholders. Because the trusts were
allegedly not joined in the liquidation proceedings, the respondents submit that the liquidation
order is a nullity, with the consequence that the subsequent sale and transfer of the property to
the applicant are unlawful and liable to be set aside. The respondents therefore dispute the
applicant's ownership of the property and contend that they cannot be regarded as unlawful
occupiers.
[22] These contentions cannot be sustained. The respondents conflate ownership of shares in a
company with ownership of the company's assets. While it is common cause that the two trusts
were shareholders of Pieriesfontein, that fact does not render them owners of the immovable
property registered in the company's name. A company is a separate juristic person and its
assets remain its own, irrespective of the identity of its shareholders.
[23] The title deed dated 17 March 1981 reflects Pieriesfontein as the registered owner o f
[23] The title deed dated 17 March 1981 reflects Pieriesfontein as the registered owner o f
Portion 6 . Likewise, the Certificate of Consol idated Title dated 27 February 2004 records
Pieriesfontein as the registered owner of Portion 8. There is no evidence before this Court that
ownership of either property was ever transferred from Pieriesfontein to the two trusts. The
respondents' assertion that the trusts owned the property is therefore unsupported by the
documentary evidence.
[24] The undisputed evidence establishes that the applicant purchased the property at an online
auction conducted on the instruction of the duly appointed liquidators of Pieriesfontein and that
the transfer of the property has taken place. The property is registered in the applicant's name.
Although there has been extensive litigation between the parties concerning the liquidation of
Pieriesfontein and the subsequent sale of its assets, including challenges to the liquidation order
itself, none of those proceedings has resulted in the transfer to the applicant being set aside.
Until such time as the transfer is impugned by a competent court, the applicant remains the
registered owner of the property.
[25] The respondents also contend, in relation to Portion 8, that they do not reside on Portion
6 but occupy Portion 8, where the two farmhouses are situated. They further allege that Portion
8 was sold as a result of the at tachment of the wrong property. These allegations do not avail
the respondents. The evidence before this Court establishes that Portion 8 likewise formed part
of the assets of Pieriesfontein, was sold by its liquidators, and was transferred to the applicant.
Whether the respondents occupy Portion 6 or Portion 8 does not alter the fact that the applicant
is the registered owner of both properties.
[26] The various attacks directed at the validity of the liquidation proceedings and the sale of
the properties amount to collateral challenges to court orders and transactions that remain in
existence. Those issues are not determinative of the present application. The question before
this Court is whether the respondents have established any legal right entitling them to remain
in occupation of property registered in the applicant's name. They have failed to do so.
[27] In the absence of a lease agreement, the consent of the owner, or any other recognised
legal right to occupy the property, the respondents' continued occu pation is unlawful for
legal right to occupy the property, the respondents' continued occu pation is unlawful for
purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998.
IS IT JUST AND EQUITABLE?
[28] The Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 ("PIE") require that, in addition to determining whether the occupation is
unlawful, the Court must have regard to all the relevant circumstances of the occupiers and
balance those circumstances against the rights of the owner. The enquiry is whether, bearing
in mind the values of the Constitution, it is just and equitable to grant an eviction order and, if
so, the terms upon which such an order shoul d be implemented. See Port Elizabeth
Municipality v Various Occupiers 2005 (1) SA 217 (CC).
[29] In Van der Valk N.O. and Others v Johnson and Others (20449/2021) [2023] ZAWCHC
20 (30 January 2023) at para 26 it is stated as follows:
‘Although the Courts, in determining whether to grant an eviction order, must exercise a
discretion based on what is just and equitable, and although special consideration must be given
to the rights and needs of vulnerable occupants, this cannot operate to deprive a private owner
of its property arbitrarily or indefinitely. If it did, it would mean that occupants are recognised
as having stronger title to the property, despite the unlawfulness of their conduct.
[30] The next enquiry is therefore whether, in all the circumstanc es, it is just and equitable to
order the respondents' eviction.
[31] The respondents have occupied the property for more than six months. It is common cause
that the property has been the first respondent's home for many years. According to the
respondents, it formed part o f the legacy left by his father for the benefit of his descendants
through the Moller Family T rusts. The Court accepts that the property has considerable
sentimental value to the first respondent and that the prospect of losing one's lon g-standing
home is a matter deserving of careful consideration.
[32] The position of the applicant must be weighed against this. The applicant became the
registered owner of the property on 19 October 2023 after purchasing it at a public auction
conducted by the liquidators of Pieriesfontein. As the registered owner, the applicant is entitled
to the use, enjoyment and possession of its property. Although PIE qualifies an owner's
common-law right to immediate possession, it does not extinguish that right or permit an
unlawful occupation to continue indefinitely. The Court is required to strike a balance between
the applicant's constitutionally protected property rights and the respondents' constitutional
protection against arbitrary eviction.
[33] No evidence has been placed before this Court that any of the respondents, or any persons
residing on the property, are elderly persons, children, disabled per sons or that any other
vulnerable persons reside on the property whose circumstances require special constit utional
protection. Equally, there is no evidence that the respondents would be rendered homeless if
an eviction order were granted, or that they would be unable to secure alternative
accommodation.
[34] The respondents have had ample opportunity to place their personal circumstances before
the Court. Instead, their opposition has been directed almost exclusively at challenging the
validity of the liquidation proceedings and, consequently, the applicant's title to the property.
Those issues have been consid ered elsewhere in this judgment and do not establish any legal
entitlement on the part of the respondents to remain in occupation.
[35] It further appears from the papers that the first and second respondents conduct what
appears to be a business from the property. This suggests that the occupation is not exclusively
residential but is, at least in part, commercial in nature. No evidence has been placed before
the Court that relocation would occasion prejudice beyond the inconvenience ordinarily
associated with an eviction.
[36] The Court has not been furnished with a report from the relevant municipality. While such
reports are often of considerable assistance in determining whether an eviction would result in
homelessness or whether emergency or alternativ e accommodation may be required, the
absence of such a report is not, in itself, decisive. Whether a municipal report is necessary
depends upon the facts of the particular case. In the present matter, the respondents have not
alleged that they will be rendered homeless or that they require emergency housing assistance.
Nor have they placed before the Court any facts suggesting that the municipality has a
constitutional obligation to provide alternative accommodation before an eviction order may
be granted.
[37] The applicant has now been deprived of the use and enjoyment of its property for more
than two years since ownership was transferred into its name. During this period the parties
have engaged in extensive litigation. Despite those proceedings, the applicant's registered title
has never been set aside or impugned by any court order. The applicant cannot reasonably be
expected to endure an indefinite deprivation of its property while the respondents remain in
occupation without any recognised legal right.
[38] The Court is mindful that an eviction order will inevitably have significant consequences
for the first respondent, given his lengthy occupation of the property and his emotional
attachment to it. Those considerations weigh in his favour. However, s entimental attachment
to property, however genuine, cannot by itself constitute a legal basis to continue occupying
land owned by another indefinitely. In the absence of evidence establishing homelessness,
vulnerability or other exceptional circumstances, those considerations cannot outweigh the
applicant's proprietary rights.
[39] Having considered all the relevant circumstances, including the duration of the
respondents' occupation, the nature of that occupation, the absence of evidence of homelessness
or vulnerability, the respondents' failure to establish any lawful right to remain on the property,
and the applicant's constitutional and proprietary rights as registered owner, I am satisfied that
it is just and equitable to grant an order for the respondents' eviction.
CONCLUSION
[40] The applicant has complied with the procedural requirement of section 4 and has
established that the respondents are unlawful occupiers as contemplated in the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE"). This Court
has further determined, having regard to all the relevant circumstanc es, that it is just and
equitable to grant an order for their eviction.
[41] The enquiry does not end there. Section 4 of PIE requires the Court to determine a date
that is just and equitable upon which the respondents must vacate the property and, if they fail
to do so, the date upon which the eviction order may be carried out. Justice and equity require
that the respondents be afforded a reasonable period within which to vacate the property
voluntarily before the order is enforced.
[42] Accordingly, the respondents shall be afforded a reasonable period within which to vacate
the property. Should they fail to do so within the period stipulated in the order, the Sheriff of
this Court shall be authorised to evict the respondents, together with all persons occ upying
through or under them, from the property and to take such steps as may be reasonably necessary
through or under them, from the property and to take such steps as may be reasonably necessary
to give effect to the eviction order. In my view costs should follow the event.