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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-085139
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: YES/NO
REVISED DATE: 20/08/2026
SIGNATURE:
In the matter between·
DERRELICT (PTY) LTD Applicant
and
JAIMON NYANZOU First Respondent
TECLA NYANZOU Second Respondent
ALL UNLAWFUL OCCUPIERS OF THE Third Respondent
PROPERTY KNOWN AS PORTION 321
OF THE FARM WILGERSPRUIT 190, HELD
UNDER DEED OF TRANSFER T[…]
CITY OF JOHANNESBURG Fourth Respondent
METROPOLITAN MUNICIPALITY
JUDGMENT
BENSON AJ.
INTRODUCTION
[1] This is an opposed application for the eviction of the First, Second and Third
Respondents, and all those occupying through or under them, from the property known
as Portion 321 of the Farm Wilgerspruit 190, Registration Division I.Q., Gauteng, held
under Deed of Transfer T[...] ("the property"), brought by its registered owner, Derrelict
(Pty) Ltd ("the Applicant"), under the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 ("PIE").
[2] The application is opposed by the First, Second and Third Respondents on three
preliminary grounds and, in the alternative, on the merits. The Fourth Respondent, the
City of Johannesburg Metropolitan Municipality, was cited by virtue of its statutory
interest in eviction proceedings within its area of jurisdiction under section 4(2) of PlE,
but has not opposed the application, has filed no report, and did not appear.
[3] The property is situated within the jurisdiction of this Court, which is accordingly
seized of the matter. That fact is not in dispute.
THE PARTIES
[4] The Applicant is Derrelict (Pty) Ltd, a private company duly incorporated in the
Republic, registered on 27 March 2023 under registration number 2023/654776/07, with
its registered office at 6[...] L[...] Avenue, Doringkloof , Centurion. The founding and
replying affidavits were deposed to by Gert Botes, a director and shareholder of the
Applicant, who describes himself as its sole director.
[5] The First Respondent, Jaimon Nyanzou, and the Second Respondent, Tecla
Nyanzou, are husband and wife who reside on the property together with their two
minor children, who attend school in Honeydew.
[6] The Third Respondent is cited generically as "all unlawful occupiers" of the
property. Confirmatory affidavits were filed on behalf of five further individuals said to fall
within this class: Silo Khumalo, Henry Peters, Brighton Mandiko, Charles Nyangobe and
Jabulani Dube.
[7] The Fourth Respondent is the City of Johannesburg Metropolitan Municipality,
cited in terms of section 4(2) of PIE.
BACKGROUND
[8] The property, extending to 9.1107 hectares and currently zoned as agricultural
holdings, was registered in the Applicant's name on 2 October 2023 under Deed of
Transfer T[...], following its purchase from the Onverwacht Trust for R3 500 000.00. The
Deeds Office records and the Letters of Authority produced by the Applicant establish
that the property was transferred to the Onverwacht Trust in 2005 by Phillip Pieter
Theunissen and Lorinda Theunissen, and that the trustees of the Onverwacht Trust
were Neville Beukman and Cindy Jane Allen.
[9] Mr Botes, the deponent to the founding affidavit, states that he became aware,
even before transfer, that various persons occupied the property claiming rights derived
from the previous owners or "other sources", which rights he disputes. After acquiring
the property he approached the occupants with a view to reaching arrangements with
them. This resulted in a written lease agreement concluded with the First and Second
Respondents, the negotiation of which is documented in a series of letters passing
between the Applicant's attorneys and the First and Second Respondents between 12
February 2024 and 7 March 2024 (annexures "GB9" to "GB16"), culminating in a signed
agreement dated 5 March 2024 requiring monthly rental of R6 000.00, payable from 31
March 2024. When payment was not made, the Applicant's attorneys cancelled the
agreement by letter dated 11 April 2024 and demanded that the Respondents vacate.
[10] The First Respondent disputes the validity of this agreement, alleging that he
was induced to sign it under duress after Mr B otes told his wife that all other occupiers
had already signed and that he would "lock up the place" if the First Respondent did not
do so.
[11] The First Respondent's version of how he came to occupy the property is that he
moved onto it in 2021 at the invitation of one Rosa De Villiers, said to be the sister of a
previous owner, and that he renovated a vandalised house on the property at a cost of
approximately R150 000.00. The Second Respondent's affidavit confirms this version
only insofar as it relates to her.
[12] The remaining individuals who filed confirmatory affidavits on behalf of the Third
Respondent - Khumalo, Mandiko and Nyangobe - depose to having worked from 1992
for one Riaan Robertson, said to have been the previous owner (or, as suggested in the
Respondents' Heads of Argument, a trustee of the Onverwacht Trust), who is said to
have relocated to South Africa with them in 2005, employed further workers from 2008,
left for Mozambique in 2015, returned in 2017, and died in February 2017, after
allocating portions of the property to those who worked for him. Peters deposes that
Rosa De Villiers, described as the sister of "the deceased", offered to sell him the farm
in 2018 and gave him permission to occupy it in 2017. Dube deposes that he was a
security guard for Robertson and that he was shot and injured by M r Botes and his
security personnel in May 2024, giving rise to a pending criminal charge in the
Roodepoort Magistrates' Court.
[13] The Applicant, in reply, denies that Riaan Robertson or Rosa De Villiers ever held
[13] The Applicant, in reply, denies that Riaan Robertson or Rosa De Villiers ever held
any right, title or trusteeship in relation to the property, points to the documented chain
of title (Theunissen to the Onverwacht Trust in 2005; the Onverwacht Trust to the
Applicant in 2023) and the Letters of Authority identifying Beukman and Allen, not
Robertson, as trustees, and denies that either Robertson or De Villiers were ever in a
position to allocate occupation rights to anyone. No documentary evidence - whether of
Robertson's ownership or trusteeship, of any employment relationship, of payslips, or of
any other kind - is attached to any of the Respondents' affidavits in support of this
history.
[14] Mr Botes further avers that the number of occupants on the property continues to
increase, that dumping and unauthorised building activity is taking place, that illegal
electricity-connections have proliferated notwithstanding the intervention of a dedicated
task team, and that the situation has become increasingly volatile, including an incident
in which he alleges he was assaulted by Dube with a knife. He states that he requires
vacant possession to proceed with a proposed development of the property
(warehousing or a residential scheme), that prospective investors have been deterred
by the unlawful occupation, and that the Applicant remains liable for rates and is at ri sk
from the illegal use of municipal services.
RELIEF SOUGHT AND PAPERS FILED
[15] Adv CJ Welgemoed, who appeared for the Applicant, submits that it is entitled to
an order evicting the First, Second and Third Respondents in terms of section 4(1) of
PIE, granting them two months from service of the order to vacate, authorising the
Sheriff to give effect to the eviction thereafter with the assistance of the South African
Police Service if necessary, and costs against any opposing Respondent on the
attorney-and-client scale.
THE POINTS IN LIMINE
[16] Mr Herbst, who appeared for the First, Second and Third Respondents, raised
three preliminary objections on their behalf: (a) that the deponent to the founding
affidavit lacked authority to act on the Applicant's behalf; (b) that the application invokes
the wrong statute, PIE being inapplicable to occupiers of agricultural land who ought
instead to have been proceeded against under the Extension of Security of Tenure Act
62 of 1997 ("ESTA"); and (c) that the Notice of Motion was required to be served before,
rather than after, the ex parte application for directions under section 4(2) of PIE.
AUTHORITY
[17] Mr Herbst's submission, properly understood, is that a director may not depose to
a founding affidavit on behalf of a company unless a board resolution authorising him to
do so is attached. That submission is unsound. In Ganes v Telecom Namibia Ltd 1, the
Supreme Court of Appeal made clear that a deponent to an affidavit in motion
proceedings need not personally be authorised to depose to it; what must be authorised
is the institution and prosecution of the proceedings. That authority is ordinarily
established by the mandate given to the attorneys of record, not by a resolution
authorising the deponent to swear to the affidavit. The absence of a board resolution
attached to the founding affidavit is accordingly not, without more, a basis on which the
application can fail.
[18] It is also well established that a bare denial of authority in an answering affidavit,
unaccompanied by recourse to Uniform Rule 7(1), does not genu inely place authority to
institute or prosecute proceedings in issue 2. The Respondents did not invoke Rule 7(1).
In any event, Mr Botes is shown by the company's CIPC registration certificate to be its
sole director, and a resolution confirming his authority was produced as annexure "GB6"
to the replying affidavit. This point in limine cannot succeed and is dismissed.
NON-SERVICE
[19] This objection misconceives the scheme of section 4 of PIE. An applicant for an
eviction order is required first to obtain, on an ex parte basis, a direction under section
1 2004 (3) SA 615 (SCA)
2 Firstrand Bank Ltd v Fillis and Another 2010 (6) SA 565 (ECP)
4(2) as to the manner of service on the unlawful occupiers and the municipality. Only
thereafter are the Notice of Motion, founding papers and section 4(2) notice served.
There was therefore no procedural irregularity in the sequence followed by the
Applicant. The Return of Service confirms that the Notice of Motion, founding affidavit
and section 4(2) notice were served on the First, Second and Third Respondents, a fact
in any event placed beyond d oubt by their opposition to the application. This point in
limine is similarly without merit and is dismissed.
[20] For completeness, I record a related matter that emerged from the papers. The
Applicant's Heads of Argument state that the section 4(2) notice was served on "the
Respondents and the City of Tshwane", which appeared inconsistent with the citation of
the Fourth Respondent as the City of Johannesburg Metropolitan Municipality. The
inconsistency is resolved by the Return of Service (Caselines 04), which confirms
service on Ms N Sefalafala , a paralegal in the employ of the City of Johannesburg
Metropolitan Municipality, at Thuso House, 6[...] J[...] Street, Braamfontein,
Johannesburg. The Fourth Respondent was therefore properly served. The reference to
the City of Tshwane appears therefore to be no more than a drafting slip and nothing
further turns on it.
THE APPLICABILITY OF PIE AND THE ESTA DEFENCE
[21] Mr Herbst's remaining point in limine - and, in truth, the Respondents' principal
defence on the merits - is that the application has been brought under the wrong
statute. He contends that the property is agricultural land, that the Respondents are
"occupiers" as defined in section 1 of ESTA, and that the Applicant was accordingly
obliged to proceed under ESTA rather than PIE.
[22] The distinction between the two statutes is well settled. ESTA affords protection
to persons who reside on land belonging to another with the consent, express or tacit, of
to persons who reside on land belonging to another with the consent, express or tacit, of
the owner or person in charge, and whose income does not exceed the prescribed
threshold; PIE, by contrast, applies to persons in occupation without the consent of the
owner or person in charge,· or any other right in law to occupy 3. An occupier who
qualifies under ESTA is expressly excluded from the definition of "unlawful occupier" in
PIE. The two Acts are accordingly mutually exclusive in their application to any given
occupier, and the question of which applies turns, in the first instance, on whether the
occupier can establish the element of consent from a person entitled to grant it.
[23] The Respondents' ESTA case therefore depends on one factual proposition: that
Robertson or De Villiers were legally entitled to grant occupation rights on the property.
Khumalo, Mandiko, Nyangobe and, by necessary implication, Dube rely on an allocation
by Robertson, while the First and Second Respondents rely on permission by De
Villiers. Unless that authority is established, the claim to ESTA protection cannot get off
the ground.
[24] This version cannot be accepted. The decisive difficulty is narrow but fatal:
neither Robertson nor De Villiers is shown to have had any right, title, trusteeship or
authority from which consent to occupy could lawfully have been derived. The
undisputed documentary record shows a 2005 transfer to the Onverwacht Trust from
Phillip Pieter Theunissen and Lorinda Theunissen, and Letters of Authority identifying
Beukman and Allen - not Robertson - as trustees. Against that record, the Respondents
produce no trust instrument, authority document, proof of employment, payslip, lease,
correspondence or other documentary material capable of substantiating the claimed
relationship with Robertson or De Villiers. Applying Plascon-Evans Paints Ltd v Van
Riebeeck Paints (P ty) Ltd 1984 (3) SA 623 (A), read with National Scrap Metal (Cape
Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) and Wightman t/a JW
Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA), those bare assertions do not
raise a real, genuine and bona fide dispute of fact in the face of contrary documentary
proof.
proof.
[25] The position of the First and Second Respondents is weaker still. The
correspondence exchanged between February and March 2024 (annexures "GB9" to
3 Randfontein Municipality v Grobler and Others [2009] ZASCA 129; [2010] 2 All SA 40 (SCA)
"GB16") records a negotiated, amended and ultimately signed lease agreement
concluded over approximately three weeks. That history is inconsistent with the
suggestion that the First Respondent's signature was procured by duress in the legal
sense of an unlawful threat overbearing his free will. No particulars of such a threat,
beyond a single unparticularised remark, are furnished. More fundamentally, the
conclusion of a lease is inconsistent with a claim to have occupied under an
independent and freestanding right derived from Rosa De Villiers, a stranger to the title.
[26] I am accordingly satisfied that none of the Respondents has raised a genuine
dispute of fact as to occupation with the consent of the owner or a person with the right
to grant such consent, and that the Respondents' ESTA defence, however elaborately
argued on the law, is not sustained on the facts before this Court. It follows that the
Respondents do not qualify as "occupiers" within the meaning of section 1 of ESTA, that
they are not excluded from the definition of "unlawful occupier" in section 1 of PIE, and
that PIE is the correctly invoked statute. This point in limine , and the corresponding
defence on the merits, is dismissed.
[27] Again for the sake of completeness, and if I am wrong on the issue of consent, I
address the remaining ESTA points briefly. I am prepared to accept, without deciding,
that the property's present agricultural zoning and non -township status may satisfy the
land-related requirements of section 2 of ESTA relied upon in the Respondents' Heads
of Argument. That does not assist them. Section 1 of ESTA requires both qualifying land
and qualifying occupation with consent, or another right in law, from a person entitled to
confer it. Mkangeli v Joubert 2002 (4) SA 36 (SCA) proceeds on that footing. Since the
Respondents have not established the consent element, neither the property's
classification nor the assumed income threshold can bring them within ESTA.
UNLAWFUL OCCUPATION
UNLAWFUL OCCUPATION
[28] It is common cause that the Applicant is the registered owner of the property and
that the First, Second and Third Respondents reside on it. For the reasons given above,
no lawful right of occupation - contractual or otherwise - has been established by any
Respondent; to the contrary, the one written agreement that did exist, the lease
concluded with the First and Second Respondents, was validly cancelled for non -
payment of rental and has not been revived. I find that the First, Second and Third
Respondents, and all those occupying through or under them, are accordingly in
unlawful occupation of the property as contemplated by PIE.
JUST AND EQUITABLE RELIEF
[29] A finding of unlawful occupation does not, without more, entitle the Applicant to
an eviction order. Section 4(7) of PIE requires the Court, where the unlawful occupation
has endured for longer than six months, to have regard to all relevant circumstances,
including the availability of suitable alternative accommodation or land, and the rights
and needs of the elderly, children, disabled persons and households headed by women,
before granting an order that it considers just and equitable.
[30] The occupation has endured for longer than six months. The enquiry is therefore
not limited to ownership and unlawfulness, but requires a proportionate assessment of
the competing interests placed before the Court, including the circumstances of the
occupiers, the position of minor children, the availability of suitable alternative
accommodation or land, and the prejudice to the Applicant if unlawful occupation
continues.
[31] Of particular relevance is that the First and Second Respondents reside on the
property with their two minor children, who attend school in Honeydew. Their interests,
though not determinative, must be given real weight 4. The Fourth Respondent, cited
precisely because of its statutory responsibilities in this context, has filed no report
addressing the availability of alternative accommodation or land, whether emergency or
otherwise, for the First and Second Respondents and their minor children. In the
otherwise, for the First and Second Respondents and their minor children. In the
4 (Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC ); Occupiers of 51 Olivia Road,
Berea Township v City of Johannesburg 2008 (3) SA 208 (CC)
absence of that information, the Court cannot determine, as at the date of this judgment,
what practical arrangements exist or can be made to prevent the eviction from rendering
the affected children homeless.
[32] Balanced against this are the Applicant's established rights and interests as
owner: its entitlement to the use, enjoyment and disposal of its property; the escalating
scale of unauthorised occupation, dumping and illegal electricity connections; the
increasing volatility on the property, including the violent incidents alleged in the papers;
its ongoing liability for rates; the genuine efforts made before litigation to regularise
occupation by negotiated lease; and the prejudice to its development plans caused by
continued unlawful occupation. The Respondents have placed no evidence before the
Court of any personal vulnerability, whether by reason of age, disability or otherwise,
beyond the presence of the minor children of the First and Second Respondents. Nor
have they produced evidence of an inability to secure alternative accommodation.
[33] The Applicant submits, correctly, that a municipality's constitutional obligation to
provide emergency accommodation, and its associated duty to place information before
the Court, is not triggered automatically merely because the municipality has been cited.
It arises where the circumstances raise a real possibility that eviction will render
occupiers homeless 5. I accept that proposition. The difficulty remains evidential. The
assertion that the Respondents "drive expensive vehicles" and are "seemingly in a
position to borrow money from the bank" appears for the first time in reply, is
unparticularised, and was not answered. It does not however sufficiently exclude the
risk of homelessness in the household of the First and Second Respondents, where
minor children are present. By contrast, the individually identified Third Respondents
are working -age adults, no minor dependants are alleged on their behalf, and no
are working -age adults, no minor dependants are alleged on their behalf, and no
specific vulnerability is advanced. The order must therefore distinguish between those
positions and make clear how the municipal report bears on the timing and conditions of
enforcement.
5 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA) paras 35-41
[34] I do not consider the allegation that Mr Botes shot and injured Dube, or the
cross-allegation that Dube previously attacked Mr Botes with a knife, to determine the
just-and-equitable enquiry. Those matters remain for the pending criminal proceedings
and, if relevant, any civil claim arising from them.
[35] In all the circumstances, it is just and equitable that an eviction order be granted.
The fact that these reports from the relevant municipalities cited in applications such as
these are rarely or reluctantly furnished, is unfortunate to say the least, but it is also just
and equitable that enforcement be structured so that the Fourth Respondent's report is
obtained before any renewed issue concerning the timing or conditions of eviction of the
First and Second Respondents' household is determined. The order that follows
therefore grants eviction, allows a period for voluntary vacation, dire cts the Fourth
Respondent to report on suitable alternative accommodation or land for the First and
Second Respondents and their minor children, and reserves the parties' rights to return
to Court on supplemented papers if the report discloses a material impediment to
enforcement within that period.
COSTS
[36] Costs should follow the result. The First, Second and Third Respondents
opposed the application unsuccessfully, including on an unsubstantiated version of the
history of the property contradicted by the documentary record. I am not persuaded,
however, that this justifies a punitive costs order on the attorney -and-client scale.
Parties are ordinarily entitled to test even a weak defence without attracting punitive
costs, provided the litigation is not conducted vexatiously. A costs order on the ordinary
scale, being Scale B under Uniform Rule 67A, is appropriate. No costs order is made for
or against the Fourth Respondent, which did not participate in the litigation.
ORDER
[37] In the result, I make the following order:
1. The First, Second and Third Respondents, and all those occupying the
property known as Portion 321 of the Farm Wilgerspruit 190, Registration
Division I.Q., held under Deed of Transfer T[...] ("the property"), through or under
them, are evicted from the property in terms of section 4(1) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
2. The First, Second and Third Respondents, and all those occupying
through or under them, are granted three (3) months from the date of service of
this order to vacate the property.
3. The Fourth Respondent is directed to file a report with this Court, within
thirty (30) days of the date of this order, addressing the availability of suitable
alternative accommodation or land for the First and Second Respondents and
their minor children, and identifying any practical steps required to avoid
homelessness if eviction is enforced after the period referred to in paragraph 2.
4. Subject to any further order granted pursuant to paragraph 6, should the
property not be vacated within the period referred to in paragraph 2, the Sheriff of
this Court is authorised and directed to evict all persons who remain in
occupation, and is authorised to enlist the assistance of the South African Police
Service or such other appropriate service provider as may be necessary to effect
the eviction.
5. This order shall be served on the unlawful occupiers by placing copies of it
at conspicuous places on the property to the extent that personal service cannot
be effected by the Sheriff.
6. The Applicant, and the First and Second Respondents are granted leave
to approach this Court on the same papers, duly supplemented, for further or
alternative relief regarding the timing of, or conditions attaching to, the eviction
ordered in paragraph 1, should this prove necessary in light of the report referred
to in paragraph 3.
7. The First, Second and Third Respondents shall pay the costs of this
to in paragraph 3.
7. The First, Second and Third Respondents shall pay the costs of this
application, jointly and severally, the one paying the others to be absolved, on
Scale B as contemplated in Uniform Rule 67A.
BENSON AJ
JUDGE OF THE HIGH COURT PRETORIA
This Judgment was handed down electronically by circulation to the parties/their legal
representatives by email and by uploading to the electronic file on Case Lines. The date
for hand-down is deemed to be 20 August 2026.
Heard: 4 March 2026
Delivered: 20 August 2026
APPEARANCES
For the Applicant: Adv CJ Welgemoed, instructed by J Broodryk
Attorneys, Doringkloof, Pretoria
For the First, Second and Third
Respondents:
Mr Herbst, instructed by Randela Attorneys Inc,
c/o Makula Attorneys Inc, Pretoria
For the Fourth Respondent: No appearance