IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Appeal Case No: A242/2025
Lower Court Case No: Wynberg 12065/2024
In the matter between:
GARY PETERSON First Appellant
TOUGHEEDAH ABRAHAMS Second Appellant
ALL OTHER UNLAWFUL OCCUPIERS Third Appellant
ZIYAAD ABRAHAMS Fourth Appellant
GESAND ABRAHAMS Fifth Appellant
and
ABIGAIL MARRY NASSON N.O First Respondent
(In her capacity as the executrix of the Estate late
JAMES DENVER PETERSON
THE CITY OF CAPE TOWN Second Respondent
Neutral citation: Peterson and Others v Nasson N.O and Another Case No
A242/2025 [2026] ZAWCHC (28-08-2026)
Coram : LE GRANGE J et MAPOMA, AJ
Heard : 22 May 2026
Judgment : 28 August 2026
Summary : Civil Appeal – against the eviction order granted by the
Magistrate’s Court, Wynberg - in terms of the Prevention of Illegal Eviction
from Unlawful Occupation of Land s Act 19 of 1998 (PIE) – primary grounds -
sale agreement - alleged lien arising from improvements – precarium from the
deceased owner and second appellant - just and equitable outcome.
ORDER
1. The appeal is dismissed.
2. The appellants are ordered to pay costs of the appeal, jointly and
severally, one paying the other absolved, and such cost to include
counsel’s costs on scale B.
JUDGMENT
MAPOMA, AJ (Le Grange J concurring)
[1] This is an appeal against the eviction order dated 28 May 2025, granted by
the Wynberg Magistrates Court in favour of the first respondent, acting as the
executrix of the Estate of the late James Denver Peterson, for the eviction of the
appellants. The appellants also seek condonation for the late noting of the
appeal, as the appeal was noted only on 29 September 2025, almost three
months out of time.
[2] The first respondent opposes both the condonation application and the
appeal itself. Although the first respondent opposed the condonation application
and insisted on dismissing it and striking the appeal off the roll, the Court took
the view that it would be in the interests of justice to hear both the condonation
and the appeal and to consider all the issues to bring the matter to finality.
Relevant Facts
[3] The relevant background facts are as follows. The late James Denver
Peterson (‘the deceased’) passed away on 28 August 2022. He was survived by
his spouse, Roseline Lilian Peterson (Mrs Peterson), with whom he was married
in community of property.
[4] During his lifetime, the deceased and his surviving spouse executed a will in
terms of which the surviving spouse would inherit the half share of the deceased
if she survived him for 10 calendar days, which happened in this case, resulting
in Mrs Peterson being the sole heir of the joint estate.
[5] On 20 July 2023, the first respondent was duly appointed by the Master of
the High Court as the executrix of the joint estate , whereupon she duly took
over the control of the joint estate. The propert y that is the subject matter of
these proceedings is an asset of the joint estate, thus making the first respondent
the person in charge of the property.
[6] On 18 September 2024, the first respondent, realising that t he appellants
occupied the property without her consent, instituted the eviction proceedings in
the Wynberg Magistrate's Court. The appellants opposed the eviction
application, advancing various defences that include, inter alia, that the second
appellant had a sale agreement with Mrs Peterson. The y also averred that the
second appellant had a lien on the property because they made certain
improvement believing that she owned the property.
[7] On 28 May 2025, th e Magistrate, having heard the arguments from both
parties, delivered judgment where she reasoned that the appellants were
unlawful o ccupiers, and that it was just and equitable to evict them. The
Magistrate granted the eviction order and directed in terms of section 4(8) of
PIE, that the first, second, third, fourth and fifth appellants (the appellants)
vacate the property by 9 August 2025.
[8] On 9 July 2025, the appellants lodged the notice of appeal, hence the
condonation application for the late noting of an appeal and the appeal.
Appeal grounds
[9] On appeal , the central issue taken by the appellants is that the Magistrate
failed to properly consider and find that the appellants had a valid defence to the
granting of eviction against them. In this, appellants advanced three grounds in
submitting that the Magistrate erred in her judgment, and that this Court should
grant the appeal.
[10] The first ground is that the Magistrate should have found that the second
appellant had a sale agreement in respect of the property and that she was not an
unlawful occupier. On the back of this contention, it was also contended that by
extension the other appellants occupied the property under the precarium of the
second appellant. The second ground is that the y have a lie n in the property
arising from the improvements effected by the second appellant on the property
at a considerable cost. The third is that the Magistrate failed to properly
consider what is just a nd equitable in terms section 4(7) of PIE , in that she
should have found that the first respondent has no alternative accommodation
and would thus be homeless if eviction was granted.
[11] All the above grounds are heavily contested by the first respondent, who in
short submits that the appeal is without merit.
Issues
[12] The court is therefore called upon to determine whether the appeal should
succeed on the grounds advanced by the appellants. In particular , the Court has
the to determine the appellants were unlawful occupiers an d that it was just and
equitable to evict them. More specifically the Court should determine , first,
whether the second appellant had a valid sale agreement in respect of the
property; second, whether the second appellant h as a valid lien over the
property arising from the alleged improvements on the property, and third and
last, whether the assessment of just and equitable was properly considered by
the magistrate.
Sale agreement
[13] The second appellant avers that she had concluded what she consider s to
be a binding offer to purchase (OTP) with Mrs Petersen, the deceased’s widow.
The document that she submitted as the OPT is ex facie a standard template of a
Deed of Sale that is undated and unsigned. It contains the appellant’s initials at
the bottom of each page but is not signed by neither the second appellant nor
Mrs Petersen.
[14] Section 2(1) of the Alienation of Land Act 68 of 1981 prescribed the
formalities in respect of alienation of land . It provides that no alienation of land
is of any force or effect unless it is contained in the deed of alienation signed by
both parties thereto , or their respective agents, acting in their written authority.
In this case, the claimed deed of sale was not signed by any of the parties. Thus,
it does not meet the requirement s of a valid sale of property. The law is settled
that a contract that does not comply with the requirements of section 2(1) of the
above Alienation of Land Act is null and void ab initio . It follows that the
alleged sale is non-existent.
[15] It must be pointed though that in the recent judgment of the Gauteng
Division in Dlomo v De Klerk and Others,1 the court found that section 2(1) of
the Alienation of Land Act is inconsistent with the C onstitution to the extent
that it fails to protect the vulnerable purchasers of residential land who had paid
full purchase price and subsequently face homelessness because their agreement
was not reduced in writing. Whilst this judgment is a welcome development in
the broader context of land acquisition , it is still subject to confirmation by the
Constitutional Court.
[16] In any event, the Dlomo judgment does not provide any assistance to the
appellants on the facts of this case. This is so because Mrs Petersen had no
authority to sell the property without the authority the first respondent . As Mrs
Petersen was married to the deceased in community of property , the property is
co-owned by Mrs Petersen and the deceased’s estate in two indivisible equal
shares, and as such vests in the first respondent being the executrix in terms of
section 13 read with section 26 of the Administration of Estates Act 66 of 1965,
is the person in control of the property.2
1 (GP) (unreported) case no 2023-078800, 2 October 2025
2 Section 13 of the Administration of Estates Act, Act 66 of 1965 prohibits any person from liq uidating or
distributing the estate of any deceased person except under the Letters of Executorship or by direction of the
Master of the High Court.
[17] During the argument, Counsel for the appellants advanced a nother
contention that the first respondent, through her l egal representative in their
notice to vacate sent to the appellants , intimated that , in the event that the
second appellant had occupied the property based on precarium she might have
received from the deceased , such was terminated by the first respondent , and
was confirmed in the notice to vacate. The appellants’ argument is that until
revoked the precarium denoted her lawful occupation , and that the other
respondents occupied under the second appellant’s precarium.
[18] In my view the c ontention of the precarium allegedly granted by the
deceased or the second appellant is on shacky ground. In Malan v Nabygelegen
Estates,3 Watermeyer CJ defined a precarium as ‘the legal relationship which
exists between parties when one party has the use and occupation of property
belonging to the other on sufferance, by the leave and licence of the other’. By its
very nature, precarium is a personal right that can be revoked at will of the grantor
on reasonable notice .4 A question does arise as to whether , in a case like present ,
precarium arose, where the alleged grantor is deceased, or is the unlawful occupier.
[19] Given that it is a personal right, precarium does not survive the death of the
grantor, unless the re -granted by the new owner.5 In this case , forstaerters there is
no evidence that the deceased granted precarium to the appe llants to occupy. If at
all it existed , the precarium that was presumably granted by the deceased
terminated at the deceased’s death. On the facts, it is obvious that upon the death of
the deceased, whatever precarium if there was any, was not re-granted by the first
respondent as the new owner.
[20] It follows that the other appellants suffer the same fate if theirs is a precaruim
under the second appellant , because a grantor of precarium is assumed to have a
3 1946 AD 562, 573
3 1946 AD 562, 573
4 Adamson v Boschoff and Others 1975(3) SA 221 at 227-D
5 Philander v Makiet 2020 JDR 2099 at para 20
right to use or occupation of the property. Where the purported grantor is an
unlawful occupier, there can be no enforceable precarium, considering the ordinary
principles of property law encapsulated in the maxim nemo plus iuris ad alium
transferre potest quam ipse habet (ie. no one can transfer to another a greater right
than he himself has). Thus, the unlawful occupier cannot pass a personal right that
it does not have. It follows that the submission that the other appellants occupied
the property at the behest of the second appellant who herself was an unlawful
occupier is without merit.
Lien
[21] Regarding the appellants’ contention of lien over the property, it was
submitted that the second appellant the second appellant, believing that she had
validly purchased the property, effect material improvements to it at a cost of
R500 000, and was thus entitled to exercise a right of retention of the property.
The first respondent denies the existence of the lien in this case, contending that
the second appellant was not a bona fide possessor at the time of effecting the
improvements.
[22] It is trite that enrichment lien can be asserted as a defence against eviction.6
In Lakka v Buekes and Another,7 the court stated the legal position as follows:
“It is trite that a bona fide possessor who has preserved or made improvements to
another’s property at his or her expense has a right of retention against the property to
secure compensation for his or her necessary and useful expenses. This is a real right and
an absolute defence against eviction by the owner or any future owners of the property.
The exceptions being where ownership is acquired though a sale in execution where the
purchaser was unaware of the right of retention and the retentor, with full knowledge of
the sale fails to inform the purchaser of this right and sales in insolvency.
6 Passano v Erasmus (A163/2023) [2025] ZAGPPHC 249 (12 March 2025) at paragraph 25
6 Passano v Erasmus (A163/2023) [2025] ZAGPPHC 249 (12 March 2025) at paragraph 25
7 (CA & R 60/2018) [2020] ZANCHC 11 (23 March 2020) at paragraphs 57 and 58.
Where it is the previous owner of property who has been enriched (as in this case the
Visagies) at the expense of the lien holder, it is to him that the lien holder should seek
redress for purposes of a possible enrichment claim, but the right to retention can be held
against the new owner (even though he or she has not been enriched) until the lien holder
has been duly compensated.”
[23] In Pheiffer v Van Wyk and Others,8 the SCA stated the following:
“[12] A real lien (an enrichment lien) is afforded a person who has expended money or
labour on another’s property without any prior contractual relationship between the
parties. The lien holder is entitled to retain possession until his enrichment claim has
been met. It is an established principle of our law that the owner of the property subject
to a right of retention may defeat the lien by furnishing adequate security for the
payment of the debt”
[24] In this case, the real issue is whether , based on the facts, the second
appellant qualifies as a bona fide possessor. Bona fide possession is when the
possessor thinks, on reasonable or probable grounds, that he or she has some
kind of ownership in the property possessed.9 For the purposes of determining
the right of retention, t he Court in this regard has to make an objective
assessment whether, on the objective evidence the second appellant would have
subjectively thought that she had some kind of ownership when she embarked
on improvements on the property.
[25] On the conspectus facts, the second app ellant’s contention that at the time
she made the improvements she reasonably believed that she had a valid
contract of sale implausible and cannot be sustained. In her own words , she
delivered a document purporting to be a deed of sale , that she herself did not
sign, to Mrs Peters en to sign . She did not receive the signed deed of sale , yet
she effected improvements knowing that she was not the owner of the property
she effected improvements knowing that she was not the owner of the property
as ownership of the property could only arise from a duly signed deed of sale .
8 2015 (5) SA 464 (SCA) at 467.
9 Wille’s Principles of South African Law, 9th ed, 452
Further, n owhere does she state that she paid any purchase price for the
property.
[26] Thus, in my view, it is inconceivable that the second appellant could have
thought that she bought the property. She is not a bona fide occupier.
Accordingly, her contention that s he has a lien over the property is not
sustainable and must fail. This takes me to the next issue of whether the second
respondent, the City of Cape Town (‘the City’) did not provide adequate
alternative housing to the first appellant who m, it is averred, would be rendered
homeless should the eviction proceed.
Just and equitable
[27] The attack on the Magistrate’s judgment is that she failed to consider the
personal circumstances of the fi rst appellant and the imminent homelessness in
the event of eviction . The record shows that the Magistrate considered the
municipal report of the City, that was submitted in terms of section 4(7) . In its
report, t he offered the emergency accommodation to the qualifying persons .
This was declined by the first appellant.
[28] In her judgment, the Magistrate properly considered the facts and struck
balance between the interests of the property owner and those of the occupier as
accordance with the principles laid down by the Constitutional Court 10 and the
SCA,11 in her determination of the just and equitable decision. In my view, the
Magistrate cannot be faltered in that regard.
10 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); City of Johannesburg v Blue
Moonlight Properties 39 (Pty) Ltd 2012 (2) 104 (CC)
11 See City of Johannesburg v Changing Tites 74 (Pty) Ltd 2012 (6) SA 298 (SCA)
Costs
[29] It is an established principle that costs follow the results . I find no reason
to deviate from this principle in this case . The first respondent has succeeded in
opposing the appeal and is therefore entitled to an award of costs.
Order
[30] In the result, I would make the following order:
1. The appeal is dismissed.
2. The appellants are ordered to pay costs of the appeal, jointly and
severally, one paying the other absolved, and such cost to include
counsel’s costs on scale B.
_______________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered
_______________________
A LE GRANGE
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Appellants : Adv WA Fisher
Instructed by : Attorneys, Cape Town
Counsel for the 1st Respondent : Adv A Engelbrecht
Instructed by : Strauss Daly Inc, Cape Town