Horseshoe Investments 0023 CC and Another v Elvin Smith and Others

The applicants (Horseshoe Investments 0023 CC and Andre Adriaan Badenhorst) sought eviction of the first to third respondents (Elvin Smith, Christell Christina Pieters, and all unknown persons residing with or under the first respondent) from the farm known as Jakkalsfontein Farm, Malmesbury, Western Cape. The parties entered into a written settlement agreement which was made an order of the Malmesbury Magistrates' Court on 27 May 2025. The settlement agreement provided for alternative accommodation for the evictees through the purchase of Erf 1139, Abbotsdale by the fifth respondent (Department of Agriculture, Land Reform and Rural Development) from the fourth respondent (Swartland Municipality) for the benefit of the first to third respondents. The settlement agreement regulated how the respondents should vacate the farm and provided for eviction by the Sheriff should they not vacate. The settlement was reached after postponements and repeated engagement aimed at securing alternative accommodation, with the first to third respondents receiving legal advice and concluding the settlement freely and voluntarily. The settlement agreement was subject to confirmation on automatic review in terms of section 19(3) of ESTA.

• Whether the Malmesbury Magistrates' Court order should be confirmed on automatic review in terms of section 19(3) of ESTA
• Whether a settlement agreement constituting an eviction order under ESTA was properly concluded with all affected parties
• Whether the time frames contemplated in the settlement agreement and magistrate's court order required adjustment given the delay in finalizing the automatic review

The Malmesbury Magistrates' Court order granted on 27 May 2025 (case no 595/2023) was confirmed on automatic review, subject to paragraph 4 of the Magistrate's Court order being substituted to read: "That the Fourth Respondent ensures that Erf 1139 is made available for occupation by the First to Third Respondents on or before 30 March 2026." In all other respects, the magistrate's court order (including the settlement agreement made an order of court) remained unchanged.

On automatic review under section 19(3) of ESTA, a Land Court may confirm a magistrate's court eviction order where: (1) the settlement agreement was preceded by meaningful engagement aimed at securing alternative accommodation; (2) the affected occupiers received legal advice and concluded the settlement freely and voluntarily; and (3) the settlement agreement provides for alternative accommodation. Where the automatic review process results in delays that render dates in the original order impracticable, the reviewing court has the power to adjust such dates to preserve the practical implementation of the order while confirming the order in all other respects.

The court observed that aspects of the Magistrate's Court order were unclear or not fully particularised, particularly regarding how the sale of Erf 1139 was structured, when it would be concluded, and the milestones for implementation. The court noted that while the record contained no evidence that the fourth and fifth respondents disputed being bound by the order, and nothing suggesting the Magistrate granted the order without full knowledge and appreciation of the rights and obligations of all parties, the settlement agreement provided for execution in counterparts and stated it would not be effective until each party had executed at least one counterpart, yet the signature page in the record only reflected execution by the applicants and the first to third respondents.

This case demonstrates the operation of the automatic review process under section 19(3) of ESTA for eviction orders granted by magistrates' courts. It illustrates the court's approach to settlement agreements in ESTA eviction proceedings, particularly where such agreements involve multiple parties including government departments and municipalities obliged to provide alternative accommodation. The case confirms the court's willingness to make practical adjustments to time frames to preserve the substance of settlements where delays in the review process render original dates impracticable. It also reinforces the importance of meaningful engagement and legal advice in ESTA eviction proceedings involving vulnerable occupiers.