SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2802/2025
In the matter between:
AMM PROPERTY DEVELOPMENT
(PTY) LTD FIRST APPLICANT
Registration number: 2007/016160/07
CLAIRE SONJA MARIE AMM N.O. SECOND APPLICANT
Identity number: 4[…]
(In her capacity as co-executrix in the estate of the
late BERNARD ALEX AMM,
Estate Number: 003168/2021)
ELISABETH JANET VAN DER LINDE N.O. THIRD APPLICANT
Identity number: 6[…]
(In her capacity as co-executrix in the estate of the
late BERNARD ALEX AMM, Estate Number: 003168/2021)
and
ALL RESPONDENTS AS LISTED
2
IN ANNEXURE 1
TO THE NOTICE OF MOTION FIRST to THIRTY-
SIXTH RESPONDENTS
ANY AND ALL THE OTHER UNLAWFUL
AND UNIDENTIFIED OCCUPIERS OF
THE FARM FREEWATER 2505,
DISTRICT BLOEMFONTEIN,
PROVINCE FREE STATE
INCLUDING ALL PERSONS OCCUPYING
THE PROPERTY AND/OR ANY
STRUCTURE(S)
ON THE PROPERTY UNDER
ANY OF OTHER RESPONDENT THIRTY-SEVENTH RESPONDENT
MANGAUNG METROPOLITAN
MUNICIPALITY THIRTY-EIGHTH RESPONDENT
Neutral citation: AMM Property Development (Pty ) Ltd and Others v All
Respondents as listed in Annexure 1 to the Notice of Motion and
Others (2802/2025) [2026] ZAFSHC 388 (31 July 2026)
Coram: MOLITSOANE J
Heard: 13 NOVEMBER 2025
Delivered: 31 July 2026
Summary: Eviction – whether the applicants should have instituted an action
based on the extension of Security of Tenure Act 93 of 1997 as opposed to
Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998
3
– whether the jurisdiction of this Court has been ousted – whether it is just and
equitable to order the eviction of the unlawful occupiers – principles restated.
ORDER
1 The first to thirty-seventh respondents are declared unlawful occupiers as
contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act, 19 of 1998, as amended (‘PIE’) of the FARM FREEWATER 2505,
BAINSVLEI, DISTRICT BLOEMFONTEIN (the property).
2 The first to thirty-seventh respondents are ordered to disassemble any
structure(s) which they may have erected and vacate the property within 120
(hundred and twenty) days after service of this order on them.
3 Should the first to thirty-seventh respondents fail or refuse to comply with
the order in para 2 above, the sheriff and/or the sheriff with the assistance of the
South African Police Service and/or the sheriff with the assistance of any private
contractor employed by him (sheriff), is/are hereby authorised and directed to:
a. Evict the first to thirty-seventh respondents and all those persons holding
title under them from the property.
b. Demolish and remove any structures or buildings erected and/or occupied
by the first to thirty-seventh respondents and all persons holding title under them
on said property.
4 The first to thirty-seventh respondents are ordered to pay the costs of this
application which includes the costs of Part A.
4
JUDGMENT
Molitsoane J
[1] This matter concerns an application for the eviction of the first to thirty-
seventh respondents (the respondents) from the property known as Farm
Freewater No. 2505, District Bloemfontein Province of Free State, held under
Deed of Transfer T16783/08. The applicants are shareholders in the property,
owning 75% through AMM Property Development (Pty) Ltd and 25% through
the estate of the late Bernard Alex A MM. The respondents currently occupy a
portion of the property without the consent of the applicants. The have erected
informal homes on the property
[2] The property consists predominantly of arable land, with improvements on
the northern side in the form of a house, two other buildings, and an empty dam
structure. The respondents have been in occupation since at least 2019, without
any form of permission. On 4 December 2024, the applicants’ attorneys formally
notified the respondents of their unlawful occupation.
[3] The respondents’ did not file opposing papers on the merits. Counsel for
the respondents conceded that there was no opposition to the merits of the
applicants’ case. He further conceded that should this court find against the
respondents on the question of law raised, then in that case this Court would be
entitled to order the eviction of the respondents from the property.
[4] The respondents’ opposition rests solely on the contention that the eviction
should have been brought under the Extension of Security of Tenure Act 62 of
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1997 (ESTA) rather than the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE).
[5] The following issues call for determination: ( a) whether the respondents
qualify as ‘occupiers’ under ESTA, thereby ousting the jurisdiction of this Court
under PIE; (b ) whether it is just and equitable to grant an eviction order under
PIE.
[6] Section 1 of PIE defines an unlawful occupier as follows:
‘Unlawful occupier means 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 rights 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 (Act
31 of 1996).’
Section 2 of PIE provides that the Act applies to all land throughout the Republic.
[7] On the other hand, ESTA applies to all land except land in a township or
encircled by a township, with the exception that land in a township that has been
designated for agricultural purposes is included. Section 1 of ESTA defines an
‘occupier’ as follows:
‘occupier means a person residing on land which belongs to another person, and who has or on
4 February 1997 or thereafter had consent or another right in law to do so, but excluding-
(a) . . .
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(b) a person using or intending to use the land in question mainly for industrial, mining,
commercial farming purposes, but including a person who works the land himself or herself
and does not employ any person who is not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount;’
[8] The respondents argue that the property constitutes agricultural land and
therefore ESTA applies. They rely on the: (a) Subdivision of Agricultural Land
Act 70 of 1990 (SALA); and (b) Mangaung Metropolitan Municipality Land Use
Scheme. They further contend that this Court lacks jurisdiction in terms of ss
17(2) and 20(1)- (2) of ESTA .1 The jurisdiction of this C ourt is impugned on the
basis that ESTA applies.
[9] The first enquiry is whether the respondents are ‘occupiers’ for the
purposes of ESTA. Consent to occupy the land is a prerequisite for ESTA to
afford the respondents protection under this Act. It is common cause that the
respondents do not have the consent or permission of the owners of the land they
occupy. This, however, is not the end of the enquiry. Section 3(3) of ESTA
provides that the person who has continuously and openly resided on land
belonging to another person for a period of one year shall be presumed to have
consent unless the contrary is proved. On the other hand, s 3(5) provides that the
1 ‘17. (2) If all the parties to proceedings consent thereto, proceedings may be instituted in any Division of the
High Court within whose area of jurisdiction the land in question is situate.
. . .
20. (1) The Land Claims Court shall have jurisdiction in terms of this Act throughout the Republic and shall have
all the ancillary powers necessary or reasonably incidental to the performance of its functions in terms of this Act,
including the power-
(a) to decide any constitutional matter in relation to this Act;
(b) to grant interlocutory orders, declaratory orders and interdicts;
(b) to grant interlocutory orders, declaratory orders and interdicts;
(c) to review an act, omission or decision of any functionary acting or purporting to act in terms of this Act;
and
(d) to review an arbitration award in terms of the Arbitration Act 1965 (Act No. 42 of 1965), in so far as it
deals with any matter that may be heard by a court in terms of this Act.
(2) Subject to the provisions of section 17(2) and 19(1) , the Land Claims Court shall have powers set out in
subsection (1) to the exclusion of any court contemplated in section 166(c), (d) or (e) of the Constitution.’
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person who have openly resided on land for a period of three years shall be
deemed to have done so with the knowledge of the owner or person in charge.
[10] The SCA dealt with the application of ESTA in Pieters and Another v
Stemmet and Another2 as follows:
‘The application of ESTA
The first enquiry is whether the property qualifies as land situated within a township that has
been ‘established, approved, proclaimed, or otherwise recognised as such in terms of any law’,
or is surrounded by such a township or townships. If the land does not fall within this category,
the enquiry ends, and the provisions of ESTA will apply. However, if the land does fall within
this category, a second enquiry arises: whether the land within such a township has been
‘designated for agricultural purposes in terms of any law’. If it does, ESTA will apply
notwithstanding the property’s location within the defined township area. In terms of s 2(2) of
ESTA, in proceedings brought in terms of ESTA it is presumed that the land in question falls
within the scope of ESTA. What this means is that although the overall burden to prove that
ESTA applies in relation to a specific occupier rest on the occupier who invokes the application
of ESTA, the land in question will be presumed to fall within the scope of ESTA unless the
respondents proved the contrary.
’
Does the property fall within the definition of a township?
The answer to this question is factual. The concept of a township has no fixed definition in
ESTA. In Droomer, Binns-Ward J held:
“The word “township” is not defined in ESTA, but the context in which it is used in s 2 makes
it clear that something more than just a developed area is required. A “township” for the
purpose of the Act means a development or approved subdivision that has been formally
recognised as such in terms of a law. That is the effect of the words “ established, approved,
proclaimed or otherwise recognised as such in terms of any law”. . .’
3 (Citation omitted.)
proclaimed or otherwise recognised as such in terms of any law”. . .’
3 (Citation omitted.)
2 Pieters and Another v Stemmet and Another [2025] ZASCA 60; [2025] 3 All SA 304 (SCA) paras 11-13.
3 Ibid paras 11-13.
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[11] It is not the case of the respondents that the land the y occupy is in a
township. It is also not their case that the land they occupy has been developed as
contemplated in Droomer .4 The uncontested evidence of the applicant is that the
land consists of a house, two other buildings and a dam structure on a farm. In my
view, the land in question does not fall under the definition of township. ESTA
was enacted to protect vulnerable farm dwellers who historically resided on
agricultural land with consent, while PIE addresses unlawful occupation in
general. The respondents do not have any consent as alluded to above. The
applicants have correctly identified and premised their cause of action and
proceeded against the respondents based on PIE. Th is Court thus has jurisdiction
to deal with this application I find that the Land Court ’s exclusive jurisdiction is
not engaged.
[12] The court now has to deal with the issue of whether it would be just and
equitable to evict the respondents from the property. The evidence reveals that on
instructions of the legal representatives of the applicants, the sheriff did some
investigations seeking to identify the particulars of the people who unlawfully
occupy the property. The information gathered also touched on any elderly
persons and children occupying the premises. Section 4(7) of PIE applies and
provides that a court may grant an order for eviction if it is of the opinion that it is
just equitable to grant such eviction. In this case the court is enjoined to consider
all relevant circumstances, including, except where the land is sold in a 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 state or another
landowner for the relocation of the unlawful occupiers including the rights and
4 Droomer NO v Snyders and Others (A336/2019) [2020] ZAWCHC 72 (4 August 2020).
9
needs of the elderly, children, disabled persons and households headed by
women. It would seem that the unlawful occupiers have been residing on the
property for a few years. In the process , the owners of the property have engaged
the police as well as the legal representatives to have the respondents evict the
property.
[13] In circumstances of this nature, the interest of the unlawful occupiers
should be balanced against the rights of the owners of the property to use and
lease their land effectively . It is so that a private landowner has no obligation to
provide free housing and unlawful occupation of his land which may result in a
deprivation of his property under s 25(1) of the Constitution.
[14] From the information provided, some of the respondents receive income
which may enable them to afford accommodation elsewhere. Some of the
respondents appear to work for employers in the surrounding areas. Much as it
may pose some hardship on the unlawful occupiers , they cannot choose to stay at
a place merely because it is convenient to do so.
[16] Two of the unlawful occupiers are above the age of 60. They reside in
structure number 2 and informed the sheriff that they were pensioners. Another
occupier is 66 years old and occupies structure number 26. He also receives
pension. These pensioners are not without income and may be able to get
alternative accommodation.
[17] I am satisfied that it would be just and equitable to grant an order of
eviction against the respondents. Although the respondents were notified to evict
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the premises by 6 December 2024, I am of the view that they would still need
time to acquire alternative accommodation.
[18] I make the following order.
1 The first to thirty-seventh respondents are declared unlawful occupiers as
contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act, 19 of 1998, as amended (‘PIE’) of the FARM FREEWATER 2505,
BAINSVLEI, DISTRICT BLOEMFONTEIN (the property).
2 The first to thirty-seventh respondents are ordered to disassemble any
structure(s) which they may have erected and vacate the property within 120
(hundred and twenty) days after service of this order on them.
3 Should the first to thirty-seventh respondents fail or refuse to comply with
the order in para 2 above, the sheriff and/or the sheriff with the assistance of the
South African Police Service and/or the sheriff with the assistance of any private
contractor employed by him (sheriff), is/are hereby authorised and directed to:
a. Evict the first to thirty-seventh respondents and all those persons holding
title under them from the property.
b. Demolish and remove any structures or buildings erected and/or occupied
by the first to thirty-seventh respondents and all persons holding title under them
on said property.
4 The first to thirty-seventh respondents are ordered to pay the costs of this
application which includes the costs of Part A.
11
___________________
P MOLITSOANE
JUDGE OF THE HIGH COURT
Appearances
For the Applicants: JMC Johnson
Instructed by: Van Der Merwe & Sorour
Bloemfontein
For the Respondents: V A Mnyameni
Instructed by: Legal Aid South Africa
Bloemfontein