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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

 

CASE NO: LCC 151/2022

 

Before the Honourable Flatela J

Heard On: 15 April 2024

Delivered On: 26 July 2024

1. REPORTABLE: Yes/No

2. OF INTEREST TO OTHER JUDGES: Yes/No

3. REVISED: Yes/No

 

In the matter between:

 

BOPLAAS 1743 LADGOED(PTY) LTD                              Applicant

 

and

 

SOPHIA JULIES                                                                 First Respondent

 

WILLEM SMITH                                                                  Second Respondent

 

JAQUELINE RUDOLPH                                                     Third Respondent

 

DARREL RUDOLPH                                                           Fourth Respondent

 

BIANCA DE VRIES                                                             Fifth Respondent

 

RADIWA PARKER                                                              Sixth Respondent

 

SHAIDA JULIES                                                                 Seventh Respondent

 

GRANVILLE MALGAS                                                       Eighth Respondent

 

ALL OTHER PERSONS RESIDING WITH

OR UNDER THE FIRST TO EIGHTH RESPONDENTS

IN THE PREMISES ON DU CAP FARM, PAARL               Ninth Respondent

 

DRAKENSTEIN MUNICIPALITY                                         Tenth Respondent

 

DEPARTMENT OF AGRICULTURE, LAND REFORM

AND RURAL DEVELOPMENT                                            Eleventh Respondent

 

ORDER

 

The application is dismissed with no order as to costs.

 

JUDGMENT

 

FLATELA J

 

[1]  This is an eviction application instituted by the Applicant, Boodplass 1743 Landgoed (Pty) Ltd, in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) for the eviction of the First to the Ninth Respondents on the Farm commonly known as Du Cap Farm, and fully described as Portion 2 of the Farm Watervliet Estate, No. 1224, Drakenstein Municipality, Division Paarl, Western Cape Province (“the farm”). The Applicant is the registered owner of the Farm, having purchased it from Changing Tides 144 (PTY) Ltd and took ownership of the same on 13 October 2016.

 

[2]  The First Respondent is Ms. Sophie Julies (Ms. Julies), a 66-year-old female pensioner with poor health. She occupies a one-bedroom dwelling on the farm with the Fourth, Fifth, Seventh, Eighth and Ninth Respondents. The Fourth and Fifth Respondents are adult grandchildren of Ms. Julies, the Seventh Respondent is her adult daughter, and the Eighth Respondent is her son-in-law. The Ninth Respondent are Ms. Julies’s two minor grandchildren. Ms. Julies acquired the status of a long-term occupier in terms of section 8(4)[1] of ESTA. None of the Respondents are employed by the Applicant.

 

[3]  The Applicant contends that the basis for seeking the eviction of the respondents was triggered by their conduct. The Applicant avers that the respondents committed a fundamental breach of the relationship between them and the persons in charge of the farm, which is not practically possible to remedy in terms of section 10(1)(c) of ESTA. The application is opposed. Ms. Julies filed an answering and a supplementary answering affidavit on behalf of all the respondents.

 

[4]  The application was served before me on 21 February 2024. The respondents' legal representative, Ms. Bester, informed me that she received instructions from Legal Aid South Africa (Stellenbosch) on the date of the hearing (21 February 2021) and was not in a position to argue the matter as she needed to consult with the respondents to take instructions. The matter was postponed until 15 April 2024 to allow Ms. Bester time to consult with the respondents and file pleadings should the need arise on or before 8 March 2024.

 

Factual Background

 

[5] Ms. Julies and her late husband arrived on the farm in 1979 when her late husband, Hendrick William, was offered employment by the previous farm owner as a Loader Driver/Digger. Ms. Julies was also employed as a domestic worker and a Pack Store Manager. They were provided with accommodation within the Farm in house number 73, a three-bedroom house with a separate kitchen and bathroom. All their children were born on the farm. Ms. Julies retired from her job at the age of 58(fifty-eight) due to ill health. Her husband passed away on 2 October 2011. The Applicant’s predecessors in title allowed Ms. Julies and his family to reside in the house even after her retirement.

 

[6]  During 2020, the Applicant offered Ms. Julies a two-bedroom house off the site in East Paarl at its cost. Ms. Julies rejected the house because the area it was situated in was in Ms. Julies view not safe due to high crime rate and it was far from the medical facilities, the schools. The Applicant gave her an opportunity to look for a house in the area of her choice. The house search a engagements were interrupted by the National Disaster COVID-19 period. They resumed again, but they reached a deadlock.

 

[7]  On 21 September 2021, the Applicant launched an application in the Paarl Magistrate Court for a mandatory interdict in terms of section 19(1)(b)(i)[2] Of ESTA to relocate the First Respondent and all other persons residing under her from House No 73 to House No 53, a one-bedroom dwelling within a farm. The relocation application was not opposed. The Paarl Magistrate Court granted the relocation order on 19 October 2021. The Respondents were ordered to relocate on or before 8 November 2021, and the Sheriff relocated all the respondents, consisting of seven (7) adults and 3 minor children.

 

[8]  The Applicant contends that the house Ms. Julies and her family occupied was not suitable for human occupation because it was close to the packhouse, and that the Applicant needed the premises that Ms. Julies and her family occupied to expand its business operations and to build a much-needed office space

 

[9]  Subsequent to the  respondent’s  relocation, a makeshift structure made up of pallets and plastic was erected to make room for the Fifth Respondent to sleep. It is common cause that the one-bedroom dwelling to which the entire family of seven relocated could only accommodate one or two individuals' housing needs. Also, their belongings could not fit into house 53, so the Applicant agreed to keep some of the respondents’ belongings in the storage; later, the Applicant advised Ms. Julies to remove her superfluous belongings from the storage.

 

[10]  The relocation of Ms. Julies and her family members from a three-bedroom house to a one-bedroom dwelling caught the attention of those who are working with farm dwellers and farm workers, viz Ubuntu Rural Women and Youth Movement and Women on Farms Project. Complaints were filed to the Cape Winelands District Municipality and the South African Human Rights Commission. Protests were staged on the farm; social media posts were written regarding the relocation. Articles about the story were written in the local media.

 

[11]  The breaches complained about are inter-arlia, the erection of structures, failure to remove belongings from the Applicant’s storage, and lodgment of complaints to the Human Rights Commission and Cape Winelands Municipality, false allegations on social media posts, participating in the illegal protests, operating the illegal business of selling sweets, chips, fruits and sweets to children on the farm and the Fourth Respondent breaking into the packhouse.

 

[12]  On 22 February 2022, the Applicant delivered a letter of demand to the Ms. Julies to take his belongings from the storage container and a notice of breach regarding the erection of the unlawful structure without consent. When the First Respondent failed to remedy the breach, the Applicant issued a notice in terms of section 8(1)(e) calling upon the First Respondent to make representations on why their right of residence should not be terminated. The First Respondent failed to make representations.

 

[13]  The First Respondent's right was terminated on 22 April 2022, and they were afforded 30(thirty) days to vacate the farm. They failed to vacate, hence this application.

 

Parties

 

[14]  The Applicant is BOOPLAAS 1743 LANDGOED (PTY) LTD, a company with limited liability duly registered under t the laws of the Republic. The Applicant is the registered owner of a Farm, having purchased it from Changing Tides 144 (PTY) Ltd after taking ownership of the same on 13 October 2016.

 

[15]  The First Respondent is Ms. Sophie Julies, a 66-year-old female pensioner residing in the dwelling.

 

[16] The Second Respondent is Mr. Willien Smith, a major male. According to the First Respondent, Mr. Smith was her life partner and financially supported her. The Second Respondent has since vacated the premises. The Third Respondent is Ms. Jacqueline Rudolph, a major female born in 1993. The Third Respondent is the grandchild of the First Respondent, and she has since vacated the premises.

 

[17] The Fourth Respondent is Mr. Darrel Rudolph, a major male person born in 2001. He is the grandchild of the First Respondent and purportedly suffering from a mental illness caused by substance (drugs) abuse. The Fifth Respondent is Ms. Bianca De Vries, a major female person born in 1993. She is the granddaughter of the First Respondent. The Sixth Respondent is Radiwa Parker, a major female person born in in 1998. The Sixth Respondent has since vacated the farm.

 

[18]  The Seventh Respondent is Ms. Chiahida Julies (cited as SHAIDA), a major female born in 1984. She is the daughter of the First Respondent. The Eighth Respondent is Mr. Granville Malgas, a major male person born in 1984. He is the son-in-law of the First Respondent and life partner of the Seventh Respondent. The Ninth Respondent is minor grandchildren of the First Respondent, all those persons who reside with or stay under the right of residence derived from the First Respondent.

 

[19]  The Tenth and Eleventh Respondents, respectively, are the local Municipality of jurisdiction, Drakenstein Municipality, whereas the Eleventh Respondent is the Department of Agriculture, Land Reform and Rural Development. These Respondents are organs of the State and cited in these proceedings as functionaries to the operation of ESTA.

 

The Parties Pleaded Case

 

[20] It is trite that in motion proceedings, the affidavits constitute both the pleadings and the evidence.[3] It is trite that an Applicant must make out its case in the founding affidavit which must contain sufficient facts upon which a court may find in the Applicant’s favour.

 

[21]  In Director of Hospital Services v Mistry[4] the court , it was held:

'When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is … and as been said in many other cases: “… an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny’.

 

[22]  I now deal with the parties' pleaded case.

 

Applicant’s evidence

 

[23]  Ms. Natasha Murray deposed to the Applicant’s Founding Affidavit. She is the Head of Human Resources and Compliance. In her Founding Affidavit, Ms. Murray contended inter arlia that:

 

[24]  The Applicant became the registered owner of the Farm in 2016, having purchased it from Changing Tides (PTY) Ltd. Ms. Julies and her late husband worked for their predecessors in title, and they received housing as an employment benefit. None of the respondents are employed by the Applicant or ever worked for the Applicant. The Applicant has not signed any housing agreement with the First Respondent. The Applicant recognized and acknowledged the right of the First Respondent to be a long-term occupier in terms of section 8(4) of ESTA.

 

[25]  The Applicant contends that the Second to the Ninth Respondents do not have an interest separate from Ms. Julies and that any right they possess to live in any dwelling on the farm explicitly and solely flows from Ms. Julies’ status.

 

[26]  On or about February 2020, the Applicant proposed to Ms. Julies to purchase an off-site development house for her. The Applicant had already identified the house in Eastern Paarl, Western Cape. After the viewing of the proposed house, an informal discussion was held between the First Respondent, represented by Ms. Jo-Anne Johannes (“Ms. Johannes”) of Women on Farm Projects and Mr. Calvin Kroutz (a council member of the Democratic Alliance political party), regarding the relocation of the respondents to said house.

 

[27]  On or about 10 February 2020, Ms. Julies advised the Applicant that she was not amenable to relocating to the area where the property is situated. She is amenable to relocating to the Simondium area or housing in Languedoc. The Applicant avers that it advised the First Respondent to identify possible housing options of her preference in the desired areas at a reasonable cost. The Applicant tendered to assist the First Respondent in purchasing the property if so identified and agreed upon between the parties. The Applicant contends that the Ms. Julies failed to revert to the Applicant regarding the issue.

 

[28] The Applicant contends that engagements with Ms. Julies were interrupted by the National State of Disaster Lockdown and 19 COVID restrictions. The second mediation process took place from August 2020 to January 2021 to allow the First Respondent sufficient time to find alternative housing options of her own choice, but the First Respondent failed to do so.

 

[29]  The Applicant contends that after Ms. Julies rejected the initial offer, she advised the Applicant that Mr. Kroutz had advised her to cease all communications with it as all discussions would now be had through their respective offices.

 

[30] The Applicant contends that it needed the premises that were occupied by Ms. Julies and her family members to expand its business operations and to build a much-needed office space. The Applicant contends that when Ms. Julies failed to identify the house in her area of choice, it was left with no option but to engage their attorneys of record to address a formal notice to the respondents to engage in informal discussions with them, as well as on the Applicant’s willingness to assist them with finding alternative accommodation.

 

The Relocation Application

 

[31]  During September 2021, the Applicant launched a relocation application in the Paarl Magistrate Court for a mandatory interdict in terms of section 19(1)(b)(i)[5] Of ESTA to relocate Ma Sophie and all other persons residing under her from the three-bedroom house to a one-bedroom dwelling within a farm. The Applicant contends that the basis for instituting the relocation application was Ms. Julies' refusal to voluntarily relocate to the alternative accommodation made available to her by the Applicant, and the premises were no longer suitable for human occupation as it was close to the packhouse, the Applicant intended to convert the premises into much needed office space.

 

[32]  The Applicant conceded that when compared to the previous house that Ms. Julies and her family occupied, the surface is smaller, and the alternative accommodation is large enough to provide for one or two individuals.

 

[33]  The Applicant contends that the relocation application was instituted after all engagement with the First Respondent failed. The Applicant contends that the First Respondent was seemingly not interested in taking part in the process.

 

[34]  The Applicant contends that it was advised that it was not required to accommodate Ms. Julies’ adult children and grandchildren who occupied the premises as its legal duty was to Ms. Julies, the only individual in the household with the status of a protected occupier as envisioned in section 8(4) of ESTA. 

 

[35]  The Paarl Magistrate Court granted the relocation order on 19 October 2021. Ms. Julies and her family were ordered to relocate on or before 8 November 2021, failing which the Sheriff of the Court was authorized to relocate her and all those who resided in her one-bedroom house by 15 November 2021. The Sheriff executed the relocation.

 

Subsequent events after the relocation of the Respondents

 

[36]  Subsequent to their relocation, the Applicant contends that the respondents committed several material breaches of the farm's policies and rules, which constituted a fundamental breach of the trust relationship between them and the respondents, and a relationship of which is not practically possible to remedy.

 

[37]  The Applicant contends that the respondents erected a structure on the farm without the Applicant’s consent. On 15 December 2021, the Applicant gave the First Respondent a written Notice of the Respondents’ material breaches ("the first breach Notice.")

 

[38]  The notice identified the breaches as: a) erecting an unlawful structure on the premises and b) having unauthorized unlawful persons. To remedy the breaches, Ms. Julies was called to:

i.  Remove the illegal and unlawful structure erected on the farm and

ii.  Vacation of all unlawful additional persons on the premises occupied by Ms. Julies, i.e., the Second to the Ninth Respondents.

iii.  The notice also served as a notice of suspension of storage of Ms. Julies’ belongings and

iv.  A demand to remove the said belongings on or before 14 January 2022 from the storage unit on the farm.

 

[39]  The Notice advised Ms. Julies that if she fails to comply with the demands, the Applicant will be forced to terminate her right of residence on the farm and all other persons who reside under her, after which she and all those who reside under her in the dwelling on the farm will be required to vacate it.

 

[40]  Ms. Julies failed to remedy the breaches.

 

[41]  In addition, the Applicant alleges that the respondents engaged in further conduct which resulted in a fundamental breach of the relationship between the parties, namely:

a.  Made or caused others to make negative and slanderous comments against the Applicant on social media and failed to refrain from engaging in the conduct as mentioned above.

b.  Operated an illegal business on the farm (a spaza shop) selling sweets, chips and fruits to children.

c.  The Fourth Respondent illegally broke into and entered the farm’s packhouse.

 

[42]  On 22 February 2022, the Applicant delivered via the Sheriff a "Letter/Notice of Demand and Notice to Make Representations in terms of Section 8(1)(e) of ESTA to the First and Ninth Respondents.

 

[43]  The Letter also served as a final demand to the Respondents to remedy their breaches, identified as:

a.  Failure to remove the erected unauthorised and unlawful structures.

b.  Failure and refusal to cease operating the unlawful business on the Applicant's premises.

c.  Making negative remarks about the Applicant.

d.  Failure to remove the said negative remarks made about the applicant on social media.

 

[44]  The letter also served as a Notice in terms of Section 8(1)(e) of ESTA for the respondents to make oral and/or written representations as to why their residence should not be terminated on the farm within 30 (thirty days) from receipt of the Notice.

 

[45]  The Applicant contends that on 4 March 2022 an “unexpected and illegal protest” erupted on the Farm arranged by Ms. Wendy Pekeur (“Pekeur”) of Ubuntu Rural Women and Youth Movement and Woman on Farms Project inside the Farm. The media was present during the protest. Later that day, the Applicant contends that the First Respondent made false allegations about the Applicant to the media, also  the Seventh Respondent posted several false comments about the relocation application on Woman on Farms Facebook posts.

 

[46]  As a result of the protest and social media comments levelled against the Applicant, three different media houses, the SABC, News24, and Die Son approached the Applicant. Furthermore, the applicant alleges that respondents submitted false allegations to the Cape Winelands District Municipality and South African Human Rights Commission with the exclusive purpose of tarnishing the Applicant’s reputation and good name.

 

[47]  The Applicant contends that on 4 March 2022, Ms. Julies made herself guilty by granting Ms. Pekeur, the Chairperson of Ubuntu and Women on Farms and granting illegal protestors access to the Farm, participating in the illegal protest, and spreading fake news with the sole purpose of tarnishing the Applicant's good name and reputation. Moreover, the fake news and allegations against the Applicant were reiterated to the media.

 

[48]  In light of the above actions of the respondents, the Applicant contends that it is not practically possible to remedy the relationship between the respondents and the Applicant, either at all or to restore the relationship in any manner.

 

Termination of Rights to Reside

 

[49]  On 22 April 2022, the Applicant, via the Sheriff, delivered a "Notice of Cancellation of Right to Residence and Vacation of the Farm Property” to Ms. Julies and the Second to the Ninth Respondents. The notice terminated the respondents' residence for their failure to remedy the breaches they were notified of in the Notices of 15 December 2021, 22 February 2022, and 1 March 2022.[6]

 

[50]  The respondents were given 30 (thirty) days to vacate the Farm. The Applicant offered transportation of the Respondents and their belongings to relocate off the Farm within a reasonable distance and/or to explore alternative accommodation options.

 

[51]  The termination of rights of Residence notice further stated that the Applicant was willing to assist the First Respondent in obtaining finance to purchase alternative housing by providing the services of a bank consultant or the services of the consultant for obtaining an individual subsidy from the Department of Human Settlements.

 

[52]  The Applicant contends that the respondents have breached the following sections of ESTA:

Section 10 (1)(a)

 

[53]  The First Respondent and or Respondents have breached section 6(3) of ESTA in that they failed:

a.  To remove the erected unauthorized and unlawful structures;

b.  Causing damage to the applicant’s property when breaking into the packhouse;

c.  Threaten the safety and security of other legal occupiers and management when allowing access to illegal protesters to the firm without any form of consent and;

d.  Failure to vacate the temporary storage unit.

Section (10) (1) (b)

 

[54]  The Applicant contends that the Respondent committed section (10)(1) breach in that:

a)  There was no agreement concluded between the Applicants and the Respondents in terms of which the Applicant granted the Respondents any right to reside.

b)  The respondents have no rights of residence independent from that of the First Respondent, and there was no agreement concluded with the applicant in respect of their occupancy;

c)  The Applicant respected and honored the First Respondent's rights in terms of section 8(4) of ESTA and followed due process in terms of section 10(1)(b) when the First Respondent committed a fundamental breach of their relationship.

Breaches in terms of section 10(1) (c)

 

[55]  The Applicant contends that the First Respondent and or respondents have committed the following fundamental breaches.

a)  Making negative remarks about the Applicant and failure to remove the said negative remarks made about the applicant on social media.

b)  The First, Seventh and Eighth respondents partook in an illegal protest on the farm and unlawfully gave the illegal protesters access to the final new line.

c)  Failure to cease operating the unlawful business of selling sweets, chips and fruits to children;

d)  The breaking in of the fourth respondent into the farmhouse

e)  Failure to vacate the premises on the farm when requested to do so, which misconduct is of a current and continuous nature

f)  Prejudice suffered by the Applicant ‘

 

[56]  The Applicant contends that prior to the launching of the relocation application, it spent a considerable amount of its resources on legal fees to its attorneys and by dedicated employees of the Applicant to try to resolve the First Respondent and her family's relocation off the farm to their accommodation. The allocation of the Applicant’s resources between the period of 4/20/22 to September 2021, when the relocation application was launched, did not end up naught. Respondents failed to do so actively and in a bona fide manner.

 

[57]  The Applicant contends that these policies were explained to the respondents on several occasions and during an interactive information session attended by the Ms. Julies on 15 January 2020.

 

The Respondents’ submissions

 

[58]  At the outset, the First Respondent denies any breach of any policy or agreement regulating her stay on the property. She averred that:

 

[59]  She currently resides in a one-room house with an extended room made of wood pallets and covered with plastics, with the Fourth, Fifth, Seventh, Eighth, and Ninth Respondents. She avers that her late husband arrived on the farm in 1975 to work for one Benny Potgieter, the Applicant's predecessor, in the title. Ms. Julies contends that she was employed as a domestic worker and a Pack Store Manager and her late husband as a Loader Driver/Digger, respectively, and they were granted the right to reside in a three-bedroom house with a separate kitchen and bathroom. They lived with their children and grandchildren who were born on the farm. Ms. Julies retired from her job at the age of 58 due to ill health. Her husband died on 2 October 2011.

 

[60]  She is a 66-year-old pensioner with chronic illnesses who is receiving a R2100 old age grant from the government. She has been residing on the farm since 1975. She came to work on the Farm when she was 21 years old. She avers that her household consists of vulnerable groups, including women and the disabled.

 

[61]  Ms. Julies contends that when the Applicant took over the farm as a new owner, she was informed that the house they were residing in was needed for the erection of the office space. The office space has still not been built. The Applicant offered her a two-bedroom house in Groene View, but she rejected the property because it was not safe due to the high crime rate, and it was far from schools and medical facilities. The First Respondent contended that the two minor children are attending High School in Kylemore, and they are transported by the school bus, which collects them from the main road close to the gate of the farm. One of the minor children is disabled and has lost the use of her left arm.

 

[62]  Ms. Julies contends further that the identified property was not suitable for her as she is suffering from chronic illness and has lived on the farm for 44 years, and the farm has sentimental value to her. Ms. Julies disputes that she did not look for alternative accommodation. She avers that Mr Tinnie, the probation officer of the Department of Rural Development and Land Reform, assisted her in searching for alternative accommodation.

 

[63]  Ms. Julies disputes that there was extensive consultation, and she was not willing to participate. She avers that she looked for alternative accommodation and even engaged the Eleventh Respondent. She avers further that she participated fully when the parties engaged each other on 22 June 2023.

 

[64]  Ms. Julies contends that the Applicant’s attorney advised her to take her time looking for accommodation, but to her surprise, she was served papers while the parties were still negotiating. Ms. Julies avers that she and the Second to Ninth Respondents have no alternative accommodation, and if they were to be evicted, the eviction would lead to homelessness. Ms. Julies avers that they do not have family members who can accommodate her and her family. She has stayed on the farm for 44 years. She is attached to the property. It is a safe environment, and it is closer to schools.

 

[65]  Regarding the relocation application, the First Respondent contends that it was launched in 2020 during the COVID-19 period, and she could not secure legal representation to oppose the relocation order. She states further that pleadings were served upon the minor child, who informed her that the Sheriff had advised her to go to Stellenbosch to oppose the matter. Ms. Julies states that she went to Stellenbosch only to find that the matter was heard in Paarl. The Pleadings were written in English, and she speaks Afrikaans.

 

[66]  Ms. Julies avers that the current house is a one-room dwelling without a separate kitchen, which is not suitable. The First Respondent's family consists of 7 (seven) family members.

 

On the Alleged breaches of Farm Policy

 

[67]  The First Respondent denies that she has breached the  Farm Policy. She denies ever seeing such a policy. The First Respondent disputes that she has committed a breach as contemplated in sections 10(1)(a) – (c).[7]

 

[68]  Ms. Julies disputes that she breached the provisions of section 10(1)(a) in that she has not harmed any person and has not caused any damage to property, whether material or not.

 

[69]  On the erection of the unlawful structure, Ms. Julies concedes that the Fifth Respondent erected a structure made from wooden pallets and plastic out of necessity as the Applicant had relocated her and a family of seven to a one-room structure, which the Applicant concedes that it is smaller than the previous house and has the capacity of accommodating one or two individuals. The Fifth respondent had no other alternative but to construct a temporary structure. The Applicant’s action of relocating them necessitated the erection of the structure.

 

[70]  Ms. Julies disputes that her adult children and grandchildren derive their right of residence from the right to family. She submits that they are occupiers as defined in Section 3(5) of ESTA and that they ought to have been addressed separately from her.

 

[71]  On storage facility: The First Respondent refutes having reached any agreement with the Applicant about the storage of her belongings. She alleges that on the day of the relocation execution, she was not at home. However, community members called her to inform her that her household was being evicted by the Sheriff. When she arrived at the scene, she found her belongings outside, mostly damaged or broken. The Applicant offered to store her belongings in a storage facility within the farm, with no other option in mind, she accepted the Applicant's offer to store her belongings in the container facility. However, no agreement was reached regarding the fees and the period. She was notified on 17 December 2021 to remove her belongings from the storage by 14 January 2022.

 

[72]  South African Human Rights Commission On the allegations of making false allegations to the Cape Winelands District Municipality: The Applicant alleges that Ms. Julies made false allegations to the Cape Winelands District Municipality and the South African Human Rights Commission about the relocation application, circumstances leading to it, its execution and on about the suitableness of the relocated dwelling. Ms. Julies denies both these allegations.

 

[73]  The Applicant accused Ms. Julies of organizing and allowing an unlawful protest to unfold by illegal protestors on their premises without their consent: The First Respondent denies having had any prior knowledge about the protest action. According to her, the protest action was as much as a surprise as it was to the Applicant. Ms. Julies states that on the day of the protest, she was approached by Ms. Jo-Anne Johannes of the Women on Farms Project and Wendy Pekeur of Ubuntu Rural Women and Youth Movement, whom she believed were accompanied by the media houses at her home, and she was asked questions relating to the relocation from their old house to the new structure. She denied that she provided false information. Ms. Wendy Pekeur of Ubuntu Rural Women and Youth Movement filed a confirmatory affidavit confirming that her organization organized the protest without Ms. Julies knowledge. Ms. Jo-Anne Johannes of the Women on Farms Project also filed a confirmatory affidavit in this regard.

 

[74]  Making False allegation to the media during the protest (ii – during protest action): The Applicant alleges that the Ms. Julies made calculatedly alleged and malicious allegations to the media about the Applicant, one being that she is discriminated against because of her deceased husband. Ms. Julies denies this allegation but confirms talking to the media person who accompanied Ms. Pekeur and Ms. Johannes and answered their questions about her living circumstances.

 

[75]  Ms. Julies denies publishing false social media allegations during the post-protest action. She is not on social media, but she believes that the Seventh Respondent, Chiahida Julies, responded and replied to the social media posts posted by the Women on Farm Project regarding the relocation.

 

[76]  On the allegation of operating the illegal business on the farm, the First Respondent initially denied that she was selling sweets and other goods to the children in the farm; in her supplementary affidavit, the First Respondent contended that prior to the Applicant taking over the ownership of the property, she and her late husband sold chips, drinks and sweets to the children on the farm and when the Applicant took over, they were aware of the fact that they were selling these items. However, she has seized to sell these items.

 

[77]  Regarding the Fourth Respondent's criminal activities, the First Respondent contends that she became aware of the fact that the Fourth Respondent broke in on the Packhouse when the police investigated the matter. She states that the Fourth Respondent was sentenced to two years to house arrest in a different matter under Case Number 23/05/2022, and should the eviction against him be granted, he will be non-compliant, and that would interfere with his sentence. The Applicant terminated the Fourth Respondent’s right of residence in May 2022.

 

Alternative Accommodation

 

[78]  Ms. Julies disputes that she was not actively looking for alternative accommodation. She avers that at the time of her relocation, she was still looking for alternative accommodation and was assisted by Ms. Jo-Anne Johannes of Women on Farm Project. Ms. Julies is also assisted by Mr. Tinnie from the Department of Land Reform and Rural Development. She has since identified ERF 510 Lanquedoc as a possible alternative. Ms. Jo-Anne Johanes filed a confirmatory affidavit confirming that her organization is working together with the First Respondent to secure alternative accommodation.

 

[79]  Furthermore, the First Respondent avers that she has since applied to the Drakenstein Municipality for an RDP house. She also confirmed that the Eighth Respondent is registered on the waiting list for housing under registration number 385449.

 

[80]  In reply, the Applicant reiterated its position as stated in its Founding Affidavit.

 

[81]  It is written that in motion proceedings, the affidavits filed in the application constitute evidence; normally, the affidavits are limited to three sets. In this matter, the court allowed the respondents to file a supplementary answering affidavit, and the Applicant also filed a supplementary reply. The respondents’ version raised various disputes of facts. These relate to the following facts:

(a)  Erection of the unauthorized structure and allowing unauthorised occupiers

(b)  Agreement regarding the storage facility;

(c)  Complaint lodged with the Human Rights Commission;

(d)  Complaint lodged to Cape Winelands Municipality;

(e)  False allegations on social media;

(f)  Ma Sophie's participation in the protests;

 

[82]  The Applicant's position regarding the disputes of facts apparent from the respondents' answering affidavits was that they were not real disputes of facts; thus, there was no application to refer the matter to oral evidence.

 

[83]  It is trite that when the respondent’s version raises bona fide factual and material disputes, the matter must be decided on the respondent version unless it is so farfetched or clearly untenable that it can be rejected on papers Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd ^[8] .

 

[84]  National Director of Public Prosecutions v Zuma[9] The Supreme Court of Appeal explained that:

'Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special, they cannot be used to resolve factual issues because they are not designed to determine probabilities.'

 

[85]  And in Wightman tla JW Construction v Headfour (Pty) Ltd and another[10] , the Court said the following:

‘Recognising that the truth almost always lies beyond mere linguistic determination, the courts have said that an applicant who seeks final relief on motion must, in the event of a conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon­ Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E - 635C..’.

 

[86]  The respondents’ version is not so farfetched that it can be dismissed on paper; it cannot be said that it contains sweeping unsubstantiated allegations by any stretch of the imagination, as the Applicant contends. Ms. Julies’ version is supported by documents and confirmatory affidavits.

 

[87]  After Ms. Julies and her family were relocated from a three-bedroom to a one-bedroom dwelling, there was an outcry from the organizations viz Women on Farms Projects and Ubuntu Rural Women and Youth on organisations. Women on Farm Projects represented Ms. Julies in the initial engagements with the Applicants. They staged a protest, published the matter in their social media accounts and their engaged Municipalities having jurisdiction in the area. The Applicant should have foreseen that genuine disputes of fact were likely to arise in this application, but it elected to proceed by way of motion proceeding.

 

[88]  It is my considered view that the applicant has failed to make out a case for the relief sought in its notice of motion.

 

[89]  In the result, the following order is made:

1.  The application is dismissed with no regard to costs.

 

L FLATELA

JUDGE

LAND CLAIMS COURT

 

Appearances

For the Applicant: Ms Brown       

Instructed by: Otto Theron Attorneys     

For the Respondent: Ms. Fiona Bester  

Instructed by:  Chennels Albertyn Attorneys     

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