THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no:  399/06
In the matter between
AGRICO MASJINERIE (EDMS) BPK

APPELLANT
and

H SWIERS

RESPONDENT

Coram:
CAMERON, BRAND, HEHER, VAN HEERDEN JJA and
THERON AJA

Heard:
15 MAY 2007
Delivered: 1 JUNE 2007

Summary: Land – eviction from – Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 – ‘unlawful occupier’ – who is – ‘other right in
law to occupy such land’ – does not extend to occupation unlawfully obtained by self-
help – discretion of court to order eviction – s 4(7).
Land – eviction from – Extension of Security of Tenure Act 62 of 1997 (‘ESTA’) –
‘occupier’ – who is – rights of occupier – waiver of rights – when effective –
availability of s 14 rights to occupier who has waived without knowledge of ESTA
rights – repossession of land by occupier without consent of owner or order of court –
effect on ESTA rights.
Land – ESTA - s 20 - interpretation of and pronouncement upon rights relied on as
ESTA rights – jurisdiction of High Court not excluded where party does not claim
performance of functions of court under ESTA.

Neutral citation: This judgment may be referred to as Agrico Masjinerie v
Swiers [2007] SCA 84 (RSA)
____________________________________________________________________

HEHER JA

HEHER JA:
[1] The appellant is the registered owner of the farm Dassenberg No 15,
Malmesbury in the Cape Division which it acquired in 1995 and on which it farms
cattle and grows grapes and grain.

[2] In July 2002 the appellant applied to the Cape Town High Court to evict the
respondent from the farm. It alleged that she had unlawfully built and occupied a
wendy house (with extensions) on the property. The application was opposed. Allie J
dismissed it with costs on 7 September 2004. An appeal to the Full Bench was
likewise unsuccessful. Hlophe JP and Van Reenen J (with whom N C Erasmus J
concurred) delivered separate judgments, both dismissing the appeal. The appellant
appealed to this Court with special leave granted.

[3] The appellant proceeded in the court of first instance on motion. Numerous
disputes of facts arose from the affidavits. Neither party sought then or subsequently
to have the matter referred for the hearing of oral evidence or to trial. The appellant’s
legal right to the relief claimed thus depended upon the uncontested facts in its
founding affidavit and the respondent’s version regarding those facts which were the
subject of a genuine dispute in her answering papers. (As will be seen she filed two
answering affidavits.)

[4] The relationship between the parties has a long history and it will be necessary
to refer to the various averments in that regard in some detail. At the outset however I
should point out that the real questions which required to be considered concerned the
rights of the respective parties under the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) and the Extension of Security
of Tenure Act 62 of 1997 (‘ESTA’). The rights which the appellant had to establish
on paper were those attaching to an owner of land who invokes PIE against an alleged
unlawful occupier as defined in s 1 of that Act1; while it had to seek to defeat the

1 ‘ “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

conclusion that the respondent had the rights of an ‘occupier’2 as defined in s 1 of
ESTA since it was common cause that the respondent had had the consent of the
owner to reside on the farm on 4 February 1997 and had both at and after that date in
fact resided on it. The two sets of rights are mutually exclusive, as the definition of
‘unlawful occupier’ in s 1 of PIE ‘excludes a person who is an occupier in terms of’
ESTA.

[5] The application to court was provoked by the discovery in June 2001 of a
partially completed and apparently unoccupied shack on an outlying part of the farm.
The appellant demolished the structure and removed the materials. At the end of July
2001 it received a letter from the West Coast Law Clinic (‘the Clinic’) representing
the respondent which alleged that (a) the dwelling had been erected with the
knowledge and consent of the appellant’s employees; (b) the respondent had been in
possession of the structure and the land on which it rested at the time of the
demolition; (c) no warning had been given to the respondent; (d) the demolition
without a court order had been unlawful by reason of s 26(3) of the Constitution, ‘the
common law’ and ‘subordinate legislation’. The letter called on the appellant to re-
erect the dwelling and restore possession to the respondent by 3 August 2001 or face
an urgent application to court.

[6] After investigating the allegations the appellant wrote to the Clinic on 8 August
2001 denying that any of its employees had given permission for the erection of the
structure. It offered to replace corrugated iron sheets damaged in the course of
removal or to discuss compensation for them and concluded:
‘We have been approached by the Department for Land Affairs regarding the possibility of selling

Extension of Security of Tenure Act, 1997, and excluding a person whose informal right 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).’
2 ‘ “occupier” means a person residing on land which belongs to another person, and who has or [sic] on 4 February
1997 or thereafter had consent or another right in law to do so, but excluding-
(a)
. . .
(b)
a person using or intending to use the land in question mainly for industrial, mining, commercial or 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’.

off some of our land, in order to accommodate the desire for land of the nearby communities and
the tenants on our farm. Negotiations are under way.’

[7] After further correspondence had been exchanged the Clinic wrote to the
appellant on 5 September 2001 in accordance with instructions from the respondent.
The letter dealt with her birth on and occupation of the farm as well as the fact that
she had previously, in 1995, erected an informal dwelling on the farm at the same
place where the later structure had been erected. The former event took place, so the
letter averred, with the consent of a Mr Stofberg, then the applicant’s farm manager;
subsequently he had mentioned that the owners were offering R25 000 to people who
left the farm voluntarily and he encouraged her to accept the offer. According to the
letter:
‘3.
Our client informed Mr. Stofberg that she would accept this offer. He however informed her
that she must first move from the farm and then she would receive the money. Our client
accordingly, on this basis, moved from the farm in approximately October 1996. She did
however continuously, through family members, make enquiries as to when she would
receive the R25 000 but to no avail. It does appear to be a reasonable inference therefore
that the owners of the farm were not of intention to pay the money to her but only
mentioned the same for purpose of coaxing her with false pretences from the farm.
4.
Nevertheless during or about April 2001 our client, whilst visiting relatives on the farm,
approached Mr. Paul Andrag, a Director of Agrico, and broached the subject of the money
still owing to her with him. Mr. Andrag appeared to be non-committal to this request and
just answered “ja”. Our client then requested permission from Mr. Andrag to re-erect her
informal dwelling on the farm again as she did not at that time have her own
accommodation due to the incident described in paragraph 3 and due thereto that the farm
was her place of residence for most of her life. Mr. Andrag did not reply no at any time and
merely shrugged his shoulders at this request. Our client interpreted his demeanor as
affirmative to her request and therefore commenced during or about April 2001 erecting her
dwelling on the same place where it was for some time before.
. . .
Our client informs that she would be willing to settle this matter should Agrico be willing to
reimburse her for her loss in the sum of R4909,25 and allow her to erect her dwelling at the
premises of her brother Nicolas Swiers, who is also resident on the farm. This will be an interim
measure pending successful negotiation with the Department of Land Affairs.

You will note from the claim documentation that you surely have received from the Department of
Land Affairs that our client is also one of the claimants claiming tenure rights to a portion of the
farm Dassenberg.
Should you therefore agree to settle this matter on the above terms our client will be amenable to
relocate to the land that the Department of Land Affairs intends purchasing from you, to
accommodate her and other tenants and claimants, as soon as the agreement is concluded.’

[8] The parties tried to settle the dispute but without bridging the gap between
them. The appellant ascertained that the respondent had entered into a written lease
agreement with it on 14 October 1995 which permitted her to occupy only the portion
on which her informal dwelling stood at that date subject to a right in the appellant to
terminate the agreement on six months’ notice.

[9] On 20 October 2001 the appellant’s director, Mr A O Andrag, his farm
manager, Mr Loubser, and Mr Gaerdes of the Clinic met on the farm in an effort to
reach agreement. In para 22 of the founding affidavit Andrag describes what
happened:
‘By sodanige ontmoeting is daar tussen Applikant en Respondent ooreengekom dat Respondent nie
weer die plaas sou beset nie. Applikant sou Respondent voorsien van materiaal om ‘n wendyhuis op
te rig, naamlik ses sypanele en sinkplate. Respondent sou die nodige reëlings tref vir die oprig van
die wendyhuis en was van voorneme om dit by haar suster in Pella te gaan oprig. Respondent sou
Applikant in kennis stel waar sodanige material afgelewer moet word.’
Andrag confirmed the substance of the arrangement in a letter to the Clinic on 25
October 2001. His affidavit continues:
‘24.
Ek het verdermeer op 23 Oktober 2001 ontmoet met eerwaarde Wynand by die Pella
sendingstasie om die nodige toestemming te verkry dat Respondent haar wendyhuis op haar
suster se plot in Pella kon oprig. Ek [het] ook gereël dat respondent se naam op die waglys
geplaas word vir die toekenning van ‘n erf te Pella. ‘n Afskrif van my bevestigende skrywe
in die verband word hierby aangeheg gemerk “AOA13”.
25.
Gedurende November 2001 het Mnr Gaerdes my telefonies gekontak en laat weet dat die
Pella gemeenskap glo nie vir Respondent wou toelaat om by haar suster ‘n wendyhuis op te
rig nie. Ek het aan Mnr Gaerdes bevestig dat die ooreenkoms met betrekking tot die
voorsiening van material bly staan het en dat Applikant dit aan Respondent sou beskikbaar

stel ongeag die ligging waar sy dit sou oprig. Dit is egter pertinent gestel dat Respondent
geensins geregtig was om dit op die plaas op te rig nie.
26.
Op 6 Desember 2001 het ek, mnr Gaerdes en me. Linsey Lotter (Blouberg Munisipaliteit:
Pella Projekbestuurder) in Pella ontmoet om die aansoek van Respondent en andere vir erwe
in Pella te bespreek. Tydens hierdie geleentheid het Mnr Gaerdes aan my genoem dat
Respondent die wendyhuis moontlik by haar suster in Atlantis sou opsit.
27.
Op 11 Desember 2001 het Mnr Gaerdes my gebel en bevestig dat Respondent die huis by
haar suster op Atlantis sou oprig. Hy het namens Respondent versoek dat die materiaal by
Respondent se suster, Diana Collins, op Pella afgelewer word.
28.
Op 17 Desember 2001 het ek Mnr Gaerdes geskakel en bevestig dat aflewering van die
materiaal deur die loop van daardie week sou geskied.
29.
Op 20 Desember 2001 is ‘n volledige hout wendyhuis afgelewer by Respondent se suster,
Mev D Collins, te Pella, soos ooreengekom.’

[10] The matter seemed to have been resolved. However, after Christmas 2001 the
respondent moved back to the farm and re-erected the wendy house. When the
appellant became aware of this it sent further letters to the Clinic without receiving a
satisfactory reply. On 21 February 2002 it put the respondent on terms to remove the
structure by 1 March. When Andrag spoke to the respondent she told him that she
was aware of the demand. She said Gaerdes was no longer prepared to act for her
because of her breach of the agreement, she was not willing to leave the farm and the
applicant would have to resort to law.

[11] The appellant launched the application in July 2002. It attached to its founding
affidavit a photograph of a wooden structure which, so it alleged, the respondent was
occupying with a child. It averred that there were no facilities at all, whether for
supply of water, sanitation, cooking or garbage disposal and stated that the situation
was dangerous, unhygienic and an encouragement to other unlawful occupiers.

[12] The appellant alleged that the respondent was able to reside with a sister at
Pella or Atlantis, that application had been made to place her name on the waiting list
for housing at Pella and that subsidised RDP housing was available at Riverlands

some three kilometers from the appellant’s farm.

[13] With in forma pauperis legal assistance the respondent opposed the
application. According to the answering affidavit to which she deposed on 28 August
2002:
13.1 She was a 38 year old, unemployed mother of six children, the youngest an
epileptic and physically disabled. She occupied the structure together with all the
children. They survived on the occasional income of the eldest son (who was 21), the
charity of the Pella community and that of her family members who lived on the
appellant’s farm.
13.2 She was born on the farm on 17 December 1963. Her parents rented a home
there and she lived in that house until 1995. Then she and her children moved to a
part of the farm which was closer to medical facilities for the youngest child. There
she erected a wendy house.
13.3 She concluded a rental agreement with the appellant and occupied the farm
until 1998 under that arrangement. In particular, she stated that on 4 February 1997
she was living lawfully on the farm with the express or tacit consent of the owner.
13.4 During 1997 when the manager, Mr Stofberg, was collecting her rent, he
informed her that the owners were offering R25 000 to those persons who voluntarily
left the farm. She understood this information as an offer to her. In the belief that the
money would enable her to provide better accommodation for her children, so she
deposed, she left the farm. She had not been aware of her statutory rights and was not
made aware of them by Stofberg. She stated that she did not abandon her right to live
on the farm.
13.5 After leaving the farm she regularly made enquiries about receiving the
promised money but never received a satisfactory answer. Eventually she decided to
return home. In April 2001, a Mr Paul Andrag had given her permission to erect her
informal dwelling on the farm.
13.6 On the basis of the facts set out in her affidavit the respondent stated that she
relied on the protection afforded to her by ESTA.

13.7 The respondent admitted that the appellant had undertaken to provide her with
materials for a wendy house which could be erected at Pella but denied that she had
agreed not to re-occupy the farm. On the contrary, she said that she had expressly told
a certain Alfred Andrag that if she could not obtain permission to erect the house at
Pella she could erect it on the farm. Permission had been refused her at Pella. She
moved to Atlantis on a temporary basis on the understanding that Mr Gaerdes was to
launch a statutory claim on behalf of all the residents of the farm under the terms of
the legislation on land reform and restitution.
13.8 Although she was occupying the structure together with her six children,
‘aangesien ek nou ‘n geruime tyd op die plaas woon het ek sekere sanitêre geriewe
opgerig wat voldoende is vir my okkupasie’.
13.9 She rejected the possibilities of alternative accommodation identified by the
appellant. She could not stay with or near her sister at Pella because she was not of
the Moravian persuasion, nor with her sister at Atlantis because there was insufficient
space to accommodate her and the children. Riverlands was not an option because she
was unemployed and it is too far from the medical facilities required by her epileptic
son.

[14] In support of the appellant’s replying affidavit (dated only on 22 December
2003) Stofberg denied making any offer of compensation to the respondent as a quid
pro quo for vacating the property. He stated that he was the appellant’s farm manager
until August 1997 when he left the appellant’s employment. He also denied receiving
any enquiries from the respondent concerning payment of compensation. Paul Andrag
denied giving the permission attributed to him. (The respondent did not rely upon
such permission as a factor in her favour in the appeal to this Court.)
14.1 The appellant admitted that the respondent had been resident on the farm at 4
February 1997 but averred that she had thereafter left voluntarily and had no right to
return without the appellant’s permission.
14.2 The appellant denied that ESTA was applicable to the circumstances of the
respondent. It also denied that any claim for restitution of land had been lodged in

respect of the farm.

[15] On 13 January 2004 the appellant applied for an order authorising it to serve
notices in terms of s 4(2) and 4(5) of PIE, informing the respondent of its intention to
apply on 13 April 2004 for relief in substantially the same terms as that contained in
its notice of motion of July 2002. The service of this notice produced a further
lengthy ‘answering affidavit’ (the respondent now being represented by new
attorneys). In it the respondent again rested her defence on ESTA, alleging that one of
her direct maternal ancestors had been born on ‘the Dassenberg Farm’ as long ago as
9 May 1831. She also made the following statements (which are both more detailed
and, perhaps, not entirely consistent with corresponding averments in her earlier
affidavit):
‘15.
Soos voormeld, is ek op 17 Desember 1963 op die Dassenberg Plaas gebore. Ek het op
Dassenberg Plaas gewoon tot ongeveer November 1998 in ‘n ander struktuur, letterlik ‘n
sinkhok. Dit was op presies dieselfde plek op die plaas waar ek tans woon. Die rede waarom
ek die maand onthou, was dat dit kort voor die Desember skoolvakansie was.
16.
Ene Kobus Stofberg, een van die vorige werknemers (ek dink hy was die plaasbestuurder op
daardie stadium) van Applikant het van tyd tot tyd huurgelde opgeëis van my en van die
ander families, maar omdat ek geen geld het nie, en werkloos is, het ek nog nooit huurgelde
betaal nie. Ek weet nie wat is die omstandighede van die ander families ten opsigte van die
betaal van huurgelde nie, maar ek is bewus daarvan dat daar ‘n hele aantal ander families is
wat nie huurgelde betaal nie. Soos gestel dink ek sommige families betaal wel vir die huur
van grond, ten opsigte van huise wat hulle self opgerig het.
17.
Vir die afgelope sestien (16) jaar woon ek alleen met my ses (6) kinders op die plaas en ek
het soos gestel nog nooit huurgelde betaal nie. Ek ontken ook dat daar enige
huurooreenkoms bestaan tussen my en Applikant of enige ander persoon. Voor hierdie
periode het ek saam met my voormalige eggenoot van wie ek geskei is op die plaas gewoon.
18.
By een van die geleenthede waartydens Kobus Stofberg my woning aangedoen het, het ek
hom om hulp gevra vir ‘n seil om oor my sinkhok se dak te trek omdat die dak baie gelek
het. Een van my kinders, Christopher Moerat, tans nege (9) jaar oud, het op daardie stadium
aan epilepsie gely en ons geneesheer het aan my bevestig dat weens die damp
omstandighede waarin ons gewoon het, het die epilepsie vererger.
19.
Kobus Stofberg het aan my voorgestel dat indien ek van die plaas af trek, ek van ‘n

geleentheid van die plaaseienaars sou kon gebruik maak ingevolge waarvan hulle aan my
R25 000 sou betaal om die plaas te verlaat. Hierdie gelde sou egter eers betaal word nadat
ek die plaas verlaat het, aangesien hulle bang was dat ek die geld sou neem en dan sou weier
om te trek.
20.
Weens die siekte van my kind en die aanbod wat aan my gemaak is, het ek besluit om dit te
aanvaar en die plaas te verlaat. Gevolglik het ek die plaas verlaat in November 1998 en na
die Strand verhuis, waar ek agter in die erf van een van my susters, Marlene Ross, gaan
woon het. Hier het ek gewoon tot ongeveer Januarie 2001 toe ek na Dassenberg Plaas
terugverhuis het. In die funderende eedsverklaring vermeld Andrag dat ek die plaas in 1996
verlaat het, welke datum hy blyk te kry uit ander korrespondensie, maar hierdie datum is
verkeerd. Ek het definitief eers die plaas verlaat in November 1998 en nie voor daardie
datum nie.
21.
Ek het teruggekeer plaas toe aangesien ek nie my geld ontvang het nie en die plaaseienaars
duidelik nie van plan was om hul deel van die ooreenkoms na te kom nie. Aangesien meer
as twee jaar verloop het vandat ek die plaas verlaat het, was die houding van die
plaaseienaars vir my duidelik.
22.
Ek kon nie langer by my suster aanbly nie weens die plaaslike regering se verordeninge oor
die aard van die boustruktuur waarin ek gewoon het. Die struktuur moes afgebreek word en
ek het nie geld gehad om ‘n struktuur van klip en sement te bou nie. Ek het in ‘n
sinkstruktuur gewoon. Gevolglik is ek gedwing om na die plaas terug te keer, juis weens
hierdie verbreking van die ooreenkoms deur die plaaseienaars.

. . .
27.
Op of ongeveer 20 Desember 2001 het die plaaseienaars vir my ‘n aantal
boustruktuurplanke laat aflewer as vergoeding vir die Wendy-huis wat hulle omgestoot het
met die padskraper. My prokureur op daardie stadium het die plaaseienaars oortuig om
eerder die skade wat ek aangedoen is goed te maak. Ek doen aan die hand dat dit afgelei kan
word uit die onderhandelinge tussen my prokureurs en Applikant, waarna Andrag verwys in
sy funderende eedsverklaring.
28.
Met hierdie material het ek ‘n nuwe woonstruktuur opgerig op die Dassenberg Plaas en ek
woon sedertdien in daardie selfde struktuur wat dien as my woonhuis, op presies dieselfe
plek waar ek gewoon het voor 1998.
29.
Ek erken dat daar verskeie onderhandelinge plaasgevind het tussen die plaaseienaars en my
prokureur van rekord op daardie stadium, maar ek dra nie werklik detailkennis van daardie
onderhandelinge nie.
30.
Die werklike kruks van die saak is egter daarin geleë dat dit die wens van die plaaseienaars

was dat ek my Wendy-huis te Pella moes oprig welke oprigting met die toestemming van
die beheerliggaam van die wooneenhede daar moes geskied het. Soos gestel, woon my een
suster daar. Die skrywe aan die predikant daar, is die skrywe om toestemming wat deur
Applikant gerig is op 24 Oktober 2001 en wat as aanhangsel “AOA.13” tot die funderende
eedsverklaring van Andrag dien.
31.
Omdat die nodige toestemming nie gegee is nie, kon hierdie oprigting nie plaasvind nie en
is ek verplig om my huidige woonhuis op te rig waar dit steeds staan op Dassenberg Plaas,
vanwaar dit verwyder is voordat ek die plaas onder valse voorwendsels verlaat het in 1998.
32.
Ek ontken ook dat daar ooit enige ooreenkoms was dat ek enige woonhuis te Atlantis sou
oprig. Ek het nooit so ‘n ooreenkoms aangegaan nie en dra geen kennis daarvan nie. Andrag
het wel aan my die voorstel gemaak dat ek na Atlantis verhuis, maar ek het nooit die
voorstel goedgekeur of daarmee saamgestem nie. Die enigste ooreenkoms tussen ons was
die ooreenkoms wat voorsiening gemaak het vir ‘n tydelike struktuur te Pella, maar wat
skipbreuk gely het weens die toestemming wat nooit in hierdie verband verleen is nie.’

[16] The application was heard by Allie J. She concluded that the respondent was an
occupier (as defined in s 1 of ESTA) until her departure in November 1998 and that
she thereafter retained the protection afforded to an occupier by that Act. The learned
judge dismissed the application with costs.

[17] The appellant appealed to the Full Bench. Two judgments were delivered.
Hlophe JP found that the respondent had never abandoned her intention of residing on
the farm and therefore remained an ESTA occupier throughout her absence and
thereafter. He too held that she had not lost the protection of ESTA. His judgment,
like that of Allie J, did not recognize that an occupier in terms of ESTA is one who
physically resides on the land, which the respondent did not do after November 1998.
Hlophe JP drew inferences and engaged in trenchant condemnation of the motives
and conduct of the appellant. That was unjustified. The learned judge appears to have
lost sight of the fact that he was dealing with allegations on paper untested by cross-
examination.

[18] Van Reenen J (with whom N C Erasmus J concurred) held that after her

departure from the farm the respondent did not qualify as an occupier for the
purposes of ESTA as she neither resided on the farm nor possessed an intention to do
so; nor did she have the express or tacit consent of the owner then or subsequently to
reside on any part of it. He held, however, that the respondent retained rights
conferred on her by ESTA despite no longer qualifying as an occupier. Those rights
included the right to reside on and use the land (s 6(1)). Accepting the respondent’s
version for the purpose of the application proceedings, he found that the respondent
had vacated the property in 1998 without knowledge of her rights under ESTA in
exchange for the offer of R25 000, so that any alleged waiver of her rights to occupy
the land was of no force and effect because of the terms of s 25 of ESTA.3 She
therefore retained her right to reside on and use the land despite her physical absence.
Such right, the learned judge held, fell within the scope of ‘any other right in law to
occupy such land’ as that phrase is used in the definition of ‘unlawful occupier’ in s 1
of PIE. The respondent

3 For the text of the relevant part of s 25, see fn 6 below.

was for that reason not such an occupier and the application for her eviction under
PIE had to fail.

[19] In the appeal before us the respondent’s counsel submitted that the High Court
possessed no jurisdiction to determine the application in the first instance because any
decision involved a determination of the respondent’s ESTA rights. He referred to
s 204 of that Act which confers exclusive jurisdiction on the Land Claims Court (and,
to the extent provided in s 19, on a magistrate’s court). For the reasons which follow I
do not agree with this submission.

[20]   The application was launched on the premise that the respondent was an
‘unlawful occupier’ as defined in PIE. When the respondent relied in her first
answering affidavit upon rights arising from ESTA the appellant’s attitude was that
her reliance was ill-founded. It seems to me that the proper approach to the ‘exclusive
jurisdiction’ for which s 20(2) provides is defined by the terms of s 20(1), ie if a party
whether as applicant or respondent claims performance of any of the functions of a
court in terms of ESTA, only the Land Claims Court has the power, including the
exercise of the powers specified in subparas (a) to (d) of s 20(1), to order or
implement such performance. This power of the Land Claims Court is subject to s
17(2), which provides that proceedings under ESTA may be instituted in the relevant
division of the High Court if all the parties consent to this, and to s 19(1), which gives
the magistrates’ courts jurisdiction in respect of certain proceedings under ESTA.

4 ‘(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;
(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 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 sections 17 (2) and 19 (1), the Land Claims Court shall have the powers set out in subsection (1) to
the exclusion of any court contemplated in section 166 (c), (d) or (e) of the Constitution.
(3)
If in any proceedings in a High Court at the date of the commencement of this Act that Court is required to
interpret this Act, that Court shall stop the proceedings if no oral evidence has been led and refer the matter to the Land
Claims Court.’
The High Court is a court contemplated in s 166(c) of the Constitution.

[21] In the present case the appellant did not claim any such performance. Nor did
the respondent attempt to do so, eg by making a counter-application for restoration of
occupation pursuant to s 14 of ESTA. She was content merely to adopt the stance that
she possessed the rights of an occupier under ESTA and to put the applicant to the
task of disproving her contention. It follows that s 20 was not engaged by either party.

[22] Section 20(3) is so phrased to strike only at proceedings pending in a High
Court at the date of commencement of ESTA before any evidence had been led in
such proceedings. There is no warrant for further restricting the ordinary power of a
High Court to interpret the provisions of ESTA if such an exercise is relevant to the
determination of a dispute before it. In so far as Gildenhuys J held otherwise in
Skhosana v Roos,5  I respectfully disagree. The preliminary submission on behalf of
the respondent must therefore be dismissed.

[23] Despite the obvious unsatisfactory and contradictory features of the
respondent’s version, the appellant’s counsel accepted that a genuine dispute of fact
arose from her averments about the making of the offer by Stofberg and her
acceptance or reliance on that offer and the communication, in so far as needs be, of
such acceptance or reliance to the appellant. The case must therefore be approached
on the basis that in November 1998 her vacation of the property took place after
acceptance of the offer and in anticipation of payment of R25 000; thereafter the
appellant breached the agreement, which breach ultimately caused the respondent to
decide to return to the farm.

5 [1999] 2 All SA 652 (LCC) at para 14.

[24] The second issue argued before us involved the compromise agreement in
terms
of which the appellant delivered a wendy house to the site of the respondent’s sister
in Pella in December 2001. The appellant’s case was that it was a term of that
agreement that the respondent undertook that she would not return to the farm
without its consent. Its counsel submitted that the respondent had not raised a bona
fide dispute of fact in her answering affidavits in relation to that averment: at best for
her she had claimed to have no knowledge of it but she had failed to meet the specific
allegations. In the circumstances her return to the farm in January 2002 without the
owner’s consent was a breach of the agreement and rendered her an ‘unlawful
occupier’ in terms of the definition of such in PIE.

[25] This contention cannot prevail. There is an inherent improbability in the
acceptance by the respondent of such a restriction on her future conduct at the time of
the agreement. It is not in dispute that she understood that Mr Gaerdes was in the
course of bringing a land restitution claim on behalf of the residents of the farm. An
undertaking not to return or an abandonment of her occupational rights would have
been inconsistent with the potential benefits which the success of such a claim might
in due course confer on her. Moreover careful analysis of the affidavits does not bear
out the submission of appellant’s counsel.

[26] The respondent consistently denies that she agreed not to return to the farm.
She points out that the agreement was concluded by her attorney and pleads ignorance
of the detail. She says that her acceptance of the wendy house was premised on the
availability and suitability of accommodation at Pella. The appellant did not produce
an affidavit from Mr Gaerdes (her attorney) in rebuttal. Whether the respondent’s
version depends only on an unexpressed mental reservation or whether the agreement
was as unequivocal as the appellant will have it cannot be determined without the aid
of oral evidence. The respondent’s version was not without inherent probability as I
have earlier suggested. It cannot be robustly dismissed as not raising a genuine

dispute of fact. But the appellant did not seek a reference to oral evidence in the
court a quo and its counsel disavowed such recourse when asked by this Court during
the appeal. For these reasons it is bound to live with the respondent’s denial that she
undertook not to return to the property after December 2001. The appellant, which
has the onus of establishing the terms of the agreement on which it relies, has not
succeeded in showing otherwise.

[27] Failing our outright rejection of the respondent’s denial, appellant’s counsel
relied on an alternative submission that was first raised with clarity in the course of
argument before us and which he developed on the following lines:
27.1 When the respondent left the farm in 1998 she did so of her own volition,
whether in response to the appellant’s offer to pay R25 000 to each resident
who departed voluntarily or for other reasons of her own.
27.2 The respondent decided to return after she was satisfied that the appellant had
no intention of keeping its side of the contractual bargain or simply because it
suited her to do so. In either event she did not rely on any delictual wrongdoing
by the appellant.
27.3 In leaving the farm, the respondent ceased to occupy the premises as
contemplated in ESTA. By the time that she changed her mind she knew that
she had no consent from the owner to again take up residence on the farm.
27.4 If the respondent’s initial departure from the farm arose simply from a decision
by her to change her place of residence, no question of waiver of her rights
under ESTA arose. Such a move was simply a termination of her occupation of
her own accord and brought her ESTA rights to an end. If her acceptance of the
offer amounted to a waiver then such a waiver was by reason of the terms of

s 25(1)6 of ESTA void unless permitted by the Act.
27.5 The conditions for a permitted waiver are to be found in s 25(3), ie a free and
willing vacation of the land by an occupier who is aware of his or her rights in
terms of ESTA at the time that he or she leaves.
27.6 A former occupier who claims not to have vacated the land freely, willingly
and
with knowledge of his or her rights (and, therefore, to have preserved such
rights) is entitled to institute proceedings for restoration under s 14. 7 Although
the express terms of that section only apply to cases of eviction, ie deprivation
against the will of the evictee, in order to make sense of s 25(3), s 14 has to be
given an extended application which recognizes that the remedy of restoration
is also open to the occupier who vacates voluntarily while unaware of his or
her rights.
27.7 The respondent was not shown to have been aware of her rights when she left
the property. ESTA therefore conferred upon her a right to claim restoration in
terms of s 14.
27.8 Until that right has been adjudicated upon as provided for in ESTA and an

6 S 25 provides (in so far as relevant):
‘(1)
The waiver by an occupier of his or her rights in terms of this Act shall be void, unless it is permitted by this
Act or incorporated in an order of a court.
(2)
A court shall have regard to, but not be bound by, any agreement in so far as that agreement seeks to limit any
of the rights of an occupier in terms of this Act.
(3)
Notwithstanding the provisions of subsections (1) and (2), if an occupier vacates the land concerned freely and
willingly, while being aware of his or her rights in terms of this Act, he or she shall not be entitled to institute
proceedings for restoration in terms of section 14.’
7 Section 14 provides (to the extent relevant):
‘(1)
A person who has been evicted contrary to the provisions of this Act may institute proceedings in a court for an
order in terms of subsection(3).
(2)
A person who-
(a)
would have had a right to reside on land in terms of section 6 if the provisions of this Act had been in force on
4 February 1997; and
(b)
was evicted for any reason or by any process between 4 February 1997 and the commencement of this Act,
may institute proceedings in a court for an order in terms of subsection (3).
(3)
In proceedings in terms of subsection (1) or (2) the court may, subject to the conditions that it may impose,
make an order-
(a)
for the restoration of residence on and use of land by the person concerned, on such terms as it deems just;
(b)
for the repair, reconstruction or replacement of any building, structure, installation or thing that was peacefully
occupied or used by the person immediately prior to his or her eviction, in so far as it was damaged,
demolished or destroyed during or after such eviction;
(c)
for the restoration of any services to which the person had a right in terms of section 6;
(d)
for the payment of compensation contemplated in section 13;
(e)
for the payment of damages, including but not limited to damages for suffering or inconvenience
caused by the eviction; and
(f)
for costs.’

order made for restoration, any occupation of the property by her without the
consent of the owner would be a resort to self-help and hence unlawful. That,
submitted counsel, was the legal consequence of an acceptance of the facts set
up by the respondent. On any other interpretation, an ESTA occupier who
voluntarily leaves would have more than the s 14 right of restoration that an
occupier who is unlawfully evicted has. In the result the respondent ceased
being an ESTA occupier and was indeed an unlawful occupier as defined in
PIE.

[28] Counsel for the respondent did not contest the propriety of the interpretation
placed on s 25(3). He sought to counter the argument by submitting that when the
respondent returned to the farm she was merely exercising an extant right to occupy
the land which she had never lost. (In essence this was the route preferred by the
majority in the Full Bench.) That right, he said, was another ‘right in law to occupy
the land’ in terms of the definition of ‘unlawful occupier’ in s 1 of PIE which served
to exclude her from that category. The appellant was accordingly unable to bring its
case within the terms of that Act and the appeal should fail.

[29] I think that the logic of the reasoning of counsel for the appellant is, save for
one reservation the correctness of which it is unnecessary to decide, inescapable. The
legislature, in enacting ESTA, recognized the existence of a large population bound
by history and circumstance to the land on which they live. It intended to provide
ample protection to such occupiers who would in all probability be disadvantaged by
lack of means and inadequacy of education and thus constitute an easy prey to a
landowner seeking to take advantage of them. In these circumstances, and having
regard to the

broad content of the rights of such occupiers arising from ss 25(1)8, 25(6)9 and 2610
of
the Constitution, it may well be that ‘waiver’ should be given a broad interpretation
which includes unilateral abandonment even though the intention of the ESTA
occupier is to take up permanent occupation elsewhere, provided that the occupier is
aware of his or her rights under ESTA at the time of his or her departure from the
land. However, even allowing the respondent the benefit of that interpretation she
faces the problem that the legislature so constructed ESTA as to institutionalise and
canalize all disputes between owners and occupiers (or former occupiers) and thereby
to limit the scope for conflict between them. This it sought to achieve through inter
alia the restoration proceedings provided for in s 14. In particular s 14(3) affords a
wide discretion to a court to make orders which are equitable and appropriate in the
particular circumstances of the proceedings before it. That discretion is not one which
considers only the interest of the claimant. It recognises that restoration may be
impracticable or unfair to the owner. As counsel for the applicant submitted, the
assertion by an evictee of an apparently unassailable right to occupy does not mean
that restoration of occupation will automatically follow. That determination lies solely
in the discretion of the competent court after a consideration of all the relevant
circumstances.

[30] But I think appellant’s counsel was also correct in submitting that it is not only
evictees whom the legislature intended to bring within the remedies of s 14. The only
way to give meaningful content to s 25(3) is to place the occupier who vacates
property, otherwise than freely and willingly and with awareness of his or her rights,
on a par with an evictee. It would seem that the legislature intended that such a person

8‘ (1)
No one may be deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property.’
9‘ (6)
A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws
or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to
comparable redress.’
10‘(1)
Everyone has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realization of this right.
(3)
No one may be evicted from their home, or have their home demolished, without an order of court made after
considering all the relevant circumstances. No legislation may permit arbitrary evictions.’

should be regarded as one who was deprived ‘against his or her will of residence or
use of land or access to water which is linked to a right of residence in terms of’
ESTA.11 That equation is by no means unduly strained and it is consistent with the
overall purpose of the legislation to which I have earlier referred because it has the
effect of bringing the parties together in a controlled judicial environment in order to
resolve the dispute. It also follows that resort to self-help is at odds with the means
provided. The argument for the respondent is flawed in so far as it equates her claim
to a right to occupy with actual occupation. The reality is that, instead of resorting to
her remedies under the statute, the respondent simply moved on to the property
without the owner’s consent or the authority of an order granted in terms of s 14. In
doing so she was not an ESTA occupier and did not become one, but rather occupied
the land without any right in law to do so. She was, therefore, an ‘unlawful occupier’
within the terms of PIE when the application was launched.

[31] It follows that the applicant has established what it set out to prove. That
however does not mean that eviction is the appropriate relief. The respondent’s
present occupation, although unlawful, is not a crime. While it is no doubt an
inconvenience to the appellant, there is no evidence of greater immediate prejudice to
it. The respondent is a single mother of minor children, one of whom has special
needs. She appears to be indigent. The availability of suitable alternative
accommodation is at least doubtful. Her continuous residence on the property
extends, save for one absence of nearly two years, for about thirty-five years. Under s
4 of PIE an application for her eviction would be subject to the exercise of an
equitable discretion because she had unlawfully occupied the land for a period of
more than six months by the time proceedings were initiated in the court a quo. On
the facts which the application procedure requires us to accept she has a claim to
restoration of occupation under ESTA which may result in her once again obtaining
legal residence and use of a portion of the farm. The equities of the situation thus
justify a flexible approach which will offer her the opportunity of regularising her

11 This is the definition of ‘evict’ and ‘eviction’ in ESTA.

occupation. The order I propose recognizes that the continuance of the uncertainty
is undesirable for both parties and should be brought to an end as soon as possible.

[32] The appellant has throughout the protracted proceedings adopted an approach
which does not seek to penalise the respondent by an adverse costs order. Neither
party has achieved outright or final success in the proceedings. It is in all the
circumstances fair that each party should bear its or her own costs in all the courts.

[33] The following order is made:
1.
The appeal succeeds. Each party is to pay its or her own costs.
2.
The order of the court a quo is set aside and replaced with the following order:
‘1.
The appeal succeeds. Each party is to pay its or her own costs of appeal.
The order of Allie J is set aside. The following order is made in
substitution of that order:

“(a) The respondent is placed on terms to institute proceedings in terms
of section 14(1) of the Extension of Security of Tenure Act 62 of
1997 for restoration of her residence and use of land on the farm
Dassenberg No 15, Malmesbury within 4 months from the date of
this order. The appellant may, if so advised, bring counter-
proceedings in terms of sections 9, 10 and 12 of that Act.

(b)
Should the respondent fail to institute such proceedings timeously
or fail to prosecute such proceedings to their conclusion with due
expedition, the appellant is given leave to apply on the same
papers duly supplemented for an order of eviction under the
Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998.

(c)
Each party is to pay its or her own costs.”’

_________________
J A   HEHER

JUDGE OF APPEAL

CAMERON JA
)Concur
BRAND JA

)
VAN HEERDEN JA
)
THERON AJA

)

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
Friday 1 June 2007
Status:
Immediate

The Supreme Court of Appeal delivered judgment on 1 June 2007 in the matter of
Agrico Masjinerie (Edms) Bpk v H Swiers (399/06).

The applicant owns a farm in the Malmesbury district. The respondent lived on the
farm from birth for more than 30 years until 1998. In 2001 she returned to the land
without the owner’s consent and erected an informal dwelling on it which she and
her six children then occupied. The applicant applied to the High Court for her
eviction. It claimed that she was an unlawful occupier in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 1998 (‘PIE’). The
respondent said she was, until her departure in 1998, an occupier in terms of the
Extension of Security of Tenure Act 1997 (‘ESTA’) and that when she left the farm
she did not lose her ESTA rights to occupy the land because she was not made
aware of such rights until much later.

The application failed before a single judge and its appeal to the Full Bench was
dismissed. On appeal the SCA held that the matter had to be decided on the
respondent’s version of the facts because the application had been brought on paper
without a resort to evidence. It found that ESTA was designed to protect vulnerable

farm tenants. ESTA provided remedies for persons evicted and sought to avoid
extra-judicial conflicts between owners and occupiers (or persons who claimed the
rights of occupiers). The respondent was in effect a person evicted who had the
right to claim restoration of residence and use under s 14 of ESTA. She has not
exercised that right but had simply moved back to the property without the owner’s
consent. That, the court found, was a reliance on self-help and was unlawful. The
respondent was in consequence in unlawful occupation within the terms of PIE.
The court exercised a discretion against evicted the respondent because of the
length of time that she had been in occupation before the applicant commenced
proceedings. Instead it ordered her to bring an application for restoration of
possession under ESTA with 4 months and authorized the applicant to bring a
counter-application for her eviction if so advised. The appeal was upheld but the
court gave appropriate directions which should lead to the ultimate resolution of
the dispute.
--ends--