Boplaas 1743 Landgoed (Pty) Ltd v Sophia Julies and Others

The Applicant (Boplaas 1743 Landgoed) brought eviction proceedings against the Respondents under Section 10(1)(a), (b) or (c) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The First Respondent was a long-term occupier in terms of Section 8(4) of ESTA, residing with seven members of her household. The Respondents were previously relocated from a three-bedroom house to a one-room cottage by a court order dated 19 October 2021 (executed on 15 November 2021). Due to the small size of the cottage (suitable for one or two individuals), a makeshift structure made of wooden pallets and plastic was erected to accommodate the household. On 15 December 2021, the Applicant issued a notice of material breach alleging: (i) erection of illegal structures and presence of unlawful occupiers; (ii) failure to remove belongings from temporary storage; (iii) negative social media comments; (iv) organizing and participating in an illegal protest; and (v) making false allegations to authorities. The First Respondent disputed these allegations. The application was dismissed on 26 July 2024 on the basis that there were genuine disputes of fact that could not be resolved on paper. The Applicant then sought leave to appeal this dismissal.

• Whether the court a quo properly applied the Plascon-Evans principles in determining whether there were genuine disputes of fact
• Whether the court a quo properly considered the common cause facts outlined in the joint statement of agreed facts
• Whether leave to appeal should be granted under Section 17(1) of the Superior Courts Act 10 of 2013
• Whether disputes of fact existed regarding: (a) the status of the Second to Ninth Respondents as lawful or unlawful occupiers; (b) the circumstances surrounding the erection of the makeshift structure; (c) the terms of the storage arrangement; (d) the First Respondent's role in social media allegations and protest action

1. The Application for leave to appeal is dismissed. 2. There is no order as to costs.

Where in motion proceedings there are genuine disputes of fact that cannot be decided without hearing oral evidence, and neither party requests that oral evidence be heard or that the matter be referred to trial, the court must apply the Plascon-Evans principle and accept the respondent's version unless the allegations are 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 on the papers. Leave to appeal under Section 17(1) of the Superior Courts Act will only be granted where there is a measure of certainty that another court will differ from the judgment sought to be appealed against, representing a higher threshold than the previous test of whether another court might come to a different conclusion. In ESTA eviction proceedings, factual disputes regarding the status of occupiers under Sections 3(4) and (5) and Section 8(4), the circumstances surrounding alleged breaches, and the necessity of living arrangements must be properly determined and cannot be dismissed without adequate evidence.

The court made observations about the practical realities of farm occupier housing, noting that the makeshift structure was "barely withstand light rain, let alone a windy storm" and that "the roofing, being none, looks like that of an open tent." The court observed that the structure was "constructed out of human necessity, considering seven Respondents in a one-room dwelling." The court also noted that neither party requested that the matter be referred for hearing of oral evidence or trial, implying that such a course might have been appropriate given the factual disputes. The court's observation that the Applicant's submission was "meritless" regarding the protest organization (given that the cease and desist letter was addressed to the actual organizers, not the Respondents) suggests judicial skepticism about some of the Applicant's allegations.

This case illustrates the application of the Plascon-Evans principles in motion proceedings involving ESTA eviction applications. It emphasizes that where genuine disputes of fact exist in motion proceedings, particularly concerning the status of occupiers under ESTA and allegations of breach, the matter cannot proceed without oral evidence. The case reinforces the importance of protecting long-term occupiers under Section 8(4) of ESTA and the strict procedural requirements for eviction. It also clarifies the threshold for granting leave to appeal under Section 17(1) of the Superior Courts Act, requiring a measure of certainty that another court will differ from the judgment under appeal, rather than merely a reasonable prospect of a different conclusion. The case demonstrates judicial sensitivity to the practical realities faced by farm occupiers, including overcrowding and the necessity of makeshift structures.