LAND TENURE

Facts and issue: Automatic review emanating from the Magistrate Court, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The magistrate dismissed an eviction application instituted against the respondents from the farm. The magistrate held that no due process was followed to cancel the employment agreement of the first respondent, therefore the application to evict the respondents is fatally flawed and, on that basis, alone, the application was dismissed.

Discussion: The first respondent absconded from his work and the applicant later found that he had obtained employment from a neighbouring farm. The first respondent was dismissed following his abscondment. The first respondent did not have good employment relationship with the applicants. He was issued with various warnings emanating from misconduct during his employment. The second respondent’s relationship with the applicants came to an end when she was summarily dismissed following a disciplinary hearing after she was found guilty of   gross dishonesty. The second respondent was caught selling the produce to others for her own benefit. She admitted to the charge. The second respondent was dismissed and was also given a notice to vacate. She refused to sign the letters. The respondents were served personally with a letter via Sheriff requesting them to make representations as to why their right of occupation should not be terminated. The respondents did not make any representations, and their right of residence was terminated.

Findings: The Magistrate Court had no jurisdiction to determine whether the first respondent’s employment has been terminated in terms of section (8)(2) of ESTA. The applicants have complied with all the procedural requirements specified at section 9 of ESTA. The respondents have continuously refused to vacate the farm. The property is required for accommodation of other employees who are staying outside of the farm. The respondents have not vacated the property within the period of notice given by the applicants.

Order: The respondents are evicted from the farm. The respondents are ordered to vacate the farm on or before 31 December 2024. The Swellendam Municipality is ordered to provide the respondents with temporary emergency accommodation on or before 30 November 2024.

Facts and issue: Automatic review emanating from the Magistrate Court, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). In the Court a quo, the Applicants contended that they were entitled to the eviction order against the respondents because the respondent's right of residence had been terminated in accordance with the provisions of section 8 of ESTA. The respondents had not vacated within the two months given and that the provisions of section 11 of ESTA had been complied with.

Discussion: The respondents disputed that the termination of their right to residence was just and equitable in terms of section 8(1) read with section 9 (2)(a)[4] and section 11, therefore, the eviction order would not be just and equitable. The respondent averred that the notice of termination of rights, which summarily cancelled their oral agreement to reside in the house, was unfair in that they were not given sufficient notice. They expected to continue to occupy the house as the applicant, on previous occasions, threatened with eviction, which later allowed them to continue residing in the house. In the notice purportedly given in terms of section 8 read with sections 9(2)(d)(i) and 11, the applicant seeks to cancel the right of residence in terms of section 8. In the same document, he gives the respondents a notice to vacate and his intention to obtain an eviction order. The hybrid approach of terminating the right of residence and giving notice of intention to obtain an eviction order in the same notice is not acceptable.

Findings: The learned Magistrate did not pay any regard the two-stage procedure that must be followed. Instead, the Magistrate paid much attention to the fact that the respondents admitted that they were unlawful occupiers and occupied the property without the applicant’s consent. Except to mention that the provisions of section 11 had been complied with, the applicant did not expand on how these provisions were complied with. The Magistrate failed to address the non-compliance with sections 8 and 11 of ESTA, so the eviction order was not just and equitable.

Order: The order of the Magistrate is set aside in its entirety.

Facts and issue: The matter comes on automatic review in terms section 19(3) of the Extension of Security of Tenure Act 62 of 1997. The Magistrate, George, granted an eviction order against the respondents who occupied the property when the farm's caretaker gave consent to the respondents' parents to reside on the farm as a security measure. Both parents of the respondents are deceased. The respondents' occupation was based on a rental agreement.

Discussion: The respondents did not appear unwilling to pay but feared they were paying the wrong person. It is inexplicable how the court arrived at the conclusion that the termination of residence was valid when the failure to pay was not wilful. The occupier was not afforded an opportunity to remedy the breach, and they were willing to do so. To the extent there was a breach in terms of section 6(3) of ESTA there was no written notice affording thirty days to remedy such breach and no indication what the nature of the breach was, and the steps required to remedy the breach. There is no indication that the Municipality was engaged or the Department of Land Affairs. Section 12(2) of ESTA enables a court to determine a just and equitable date having regard to relevant factors including the fairness of an agreement between the parties. In considering whether it is just and equitable to grant an eviction the Court must consider the availability of suitable alternative accommodation.

Findings: The eviction according to the Probation Officer will negatively affect the respondents. They are not on a waiting list of the Municipality and have been unsuccessful in securing rental accommodation as it exceeded their means. The date does not consider that the children are required to vacate in the middle of a school year, which will be disruptive and emotionally detrimental, as indicated by the Probation Officer. Commercial interests cannot surpass the wellbeing and the dignity the occupiers and their children are afforded by allowing sufficient time to transition to alternative accommodation.

Order: The order made by the Magistrate C Daniels on 29 July 2024 is confirmed with the following amendments. The respondents will continue to occupy the property until they have to vacate the property on 31 January 2025.

Facts and issue: Eviction application instituted by the applicant in terms of the Extension of Security of Tenure Act 62 of 1997 for the eviction of the respondents on the farm. The applicant is the registered owner of the farm. The applicant contends that the respondents erected a structure on the farm without the applicant’s consent. The respondent, Ms. Julies, failed to remedy the breaches. The respondent denies any breach of any policy or agreement regulating her stay on the property.

Discussion: 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, 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. 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. On the erection of the unlawful structure, Ms. Julies contends that the Applicant’s action of relocating them necessitated the erection of the structure. The respondents’ version raised various disputes of facts. 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.

Findings: 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. 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. The applicant should have foreseen that genuine disputes of fact were likely to arise in the application, but it elected to proceed by way of motion proceeding. The applicant has failed to make out a case for the relief sought.

Order: The application is dismissed.

Facts: Mr Roux and all those occupying through him (respondents) have been residing on the farm since 2017, initially with the consent of Mr Keet, the previous owner. Goedverwachting Farm (applicant) states that the respondents had a limited consent to occupy the property afforded to them by Mr Keet, which was properly terminated. According to Mr Keet, prior to the property being sold to Goedverwachting, he was approached by members of Deneys Swiss Dairy who expressed an intention to purchase the property and run a dairy business on the land. Pursuant to the proposed purchase the respondents were afforded a conditional right of tenancy on condition that the agreed purchase price was paid on the agreed terms. Deneys, according to Mr Keet, breached the purchase agreement and any right to the tenancy of the property was terminated. The agreement of sale was cancelled and the property thereafter sold to Goedverwachting.

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Appeal: Against a decision of the Land Claims Court (LCC) which dismissed an application for eviction in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The issue in this appeal is one of jurisdiction, namely whether Mr Roux falls within the definition of an “occupier” in terms of ESTA. If not, the LCC does not have the necessary jurisdiction. It is not disputed that the farm in question is agricultural land and that at some stage Mr Roux had consent to occupy the farm. The narrow question for determination is whether commercial farming was conducted on the farm, and if so, whether there were persons other than Mr Roux and his family members employed on the farm.

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Discussion: The only defence put up by the respondents is that the land in question belonged to them by virtue of their aboriginal title and because they had purchased the farm. No evidence was provided to support this defence. It was contended that the land was stolen from the Gona-Hesse !Khwe people who are the real landowners and the true indigenous aboriginal people of South Africa. The finding of the LCC that the respondents did not fall within the purview of ESTA was based solely on the probation officer’s report provided by the Department of Agriculture. In terms of section 9(2)(c) of ESTA a court is compelled to obtain a report to ensure the “conditions for an order for eviction in terms of section 10 or 11 have been complied with.” Section 1 excludes from the definition of an occupier a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes. The LCC mentioned that the Probation Report noted that the first respondent operates a farming business which consists of 200 pigs and 18 cattle, a commercial business, and then found that the respondents are simply excluded by section 1 by reason of the commercial enterprise.

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Findings: The probation officer’s report cannot usurp the court’s discretion as to whether an eviction should be granted. The report is not made under oath and is not evidence before the court. Even on Mr Roux’s own version, it contained factual inaccuracies. There is no evidence of any commercial activity at the time the eviction application was launched. The aerial photographs do not reflect this. If indeed a business enterprise were operating on the farm, one would have expected some financial information to be provided. But more importantly, this was not the version put up by the respondents. This court has repeatedly emphasised that the function of judicial officers is to determine the issues before them and to confine themselves to such issues. The probation officer’s report cannot be used as a substitute for evidence. It was incumbent upon the respondents to raise the issue that they did not fall within the definition of an occupier in terms of ESTA and to set out the reasons therefor. The LCC impermissibly took it upon itself to make a finding on an issue that was not in dispute between the parties, without hearing either party on the issue. In doing so, the LCC erred in finding that the respondents were excluded from the definition of “occupier” under section 1 of ESTA and dismissing the application for eviction on this basis. Taking into consideration that the requirements of section 11 of ESTA have been complied with, it is just and equitable to grant an order for eviction against Mr Roux and all those occupying through him.

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Order: The appeal is upheld. The order of the LCC is set aside and substituted with an order that the respondents be evicted from the farm. There is no order as to costs.

NICHOLLS JA (MEYER JA, MATOJANE JA, COPPIN AJA and MBHELE AJA concurring)

Facts and issue: The trust launched an application in the Land Claims Court seeking that the respondents, who are ESTA occupiers, be ordered to forthwith remove all their grazing animals from the applicant’s farm. The LCC held that a tacit agreement had been concluded and tacit consent had been granted by the trust to the respondents to keep livestock and exercise grazing rights on the farm. As the trust had not invoked the provisions of section 8 of ESTA, the termination of the grazing rights by the trust could not be upheld. This appeal is with the leave of the LCC.

Discussion: The LCC took it upon itself to consider whether there could have been a tacit agreement or tacit consent pursuant to which the Mereki children had been grazing their livestock on the farm. This, the LCC did in circumstances where no such case had been advanced by the Mereki children. The finding of the LCC that tacit consent to graze livestock had been granted and that there was a tacit agreement with the trust to that effect was thus not based on any proper factual foundation. the conclusion reached by the LCC rested on a foundation that was purely conjectural, not foreshadowed in the papers and of which the trust had not been forewarned. It follows that neither the approach, nor the conclusion reached by the LCC can be supported on appeal.

Findings and order: The appeal is upheld. The order of the Land Claims Court is set aside and replaced. The respondents are ordered to forthwith remove all their livestock from the applicant’s farm.

Facts: The claim for payment arises from legal work the firm (applicant) alleges it has performed and disbursements for which it is liable, including counsel’s fees, on behalf of the Kwalindile Community in three consolidated cases. These cases involve Kwalindile’s claim for restitution of large tracts of land in and around Mthatha. The claim is opposed by the King Sabata Dalindyebo Municipality and other alleged interested parties including the Zimbane Community which had lodged a competing land claim in respect of a portion of the land claimed by the Kwalindile. The legal firm is M Magigaba Inc Attorneys and Mr Magigaba is a practicing attorney and the sole director.

Application: The application was brought because Legal Aid refused to pay for the fees and disbursements claimed by the applicant since 1 January 2022 pursuant to its continued representation of the Kwalindile in the on-going court hearings that had commenced prior to Legal Aid taking over the management of legal assistance to litigants in these land claims cases. The crisp issues are whether the applicant is entitled to charge fees or incur disbursements for any work performed prior to being accredited and, if it is still not accredited, whether Legal Aid is entitled to withhold accreditation.

Discussion: Section 29(3) of the Restitution of Land Rights Act 22 of 1994 recognises a right to legal representation. Legal Aid took a number of legal points which included that this court lacks jurisdiction because the claim is one sounding in money and that the same case number was used as allocated to the main land restitution proceedings. The points in limine are without merit and are dismissed with costs. The applicant has represented the Kwalindile since 2007 pursuant to its appointment by the Land Claims Commissioner. The applicant has been paid for all fees and disbursements incurred up to the end of December 2021 through the various legal assistance regimes responsible for its management. Legal Aid took over the managing of legal assistance on behalf of the commissioner on 1 January 2022. Legal Aid said that the applicant was never given a mandate by it to continue representing the Kwalindile and that all other legal practitioners who continue to represent the claimants were accredited and are compliant.

Findings: On examining the correspondence between the parties the court is satisfied that there was no termination of the applicant’s mandate. Once the mandate was not revoked then the issue of accreditation which was solely for the purposes of the Kwalindile matter was a regulatory requirement to regularise the payment for fees and disbursements incurred. Since payment can only be effected once accreditation occurs, the amount only becomes due and payable on accreditation. Nor can there be a concern about wasteful or unauthorised expenditure. The expenditure had been authorised when the Commissioner exercised the power under section 29(4) to provide legal assistance to the Kwalindile. The only issue is whether the amounts claimed are within the fees parameters. Both the proper administration of justice and the interests of justice, involving as it does provisions in the Bill of Rights, required the applicant to continue representing the Kwalindile, for which Legal Aid is liable by reason of the invocation of negotiorum gestor.

* See in particular paras [86]-[96].

Order: Legal Aid is ordered to pay the applicant such fees and disbursements as are assessed by it or duly taxed in accordance with its procedures in respect of work done and disbursements incurred in representing the Kwalindile Community during the period from 1 January 2022 to 8 September 2023. Legal Aid shall pay the applicant the party and party costs of the application.

SPILG J

Facts and issue: The applicants have applied, on an urgent basis, for interim relief relocating the respondents, so as to enable their open cast coal mining activities to continue. The respondents are occupiers as defined in the Extension of Security of Tenure Act 62 of 1997. Mining activities have ground to a halt primarily because under the applicable regulations, blasting activities may not be undertaken within a horizontal distance of 500 metres of occupiers’ homes. 

Discussion: In order for mining to continue, it is necessary for blasting to take place within a radius which includes the homes of the respondent’s families, but which will in the next few months extend to a radius that includes the homes of the other affected respondent families. Unless blasting continues in the near future, the applicants will be unable to meet their contractual commitments, and the mine will close. This will result in a loss of numerous jobs, livelihoods and social benefits emanating from the mine. The applicants should succeed in obtaining such relief as will enable them to continue mining activities safely and lawfully while simultaneously ensuring that the legitimate concerns of the respondent families, their dignity and security of tenure are duly protected. The applicants are without alternative remedy. The respondent families have agreed to relocate to the permanent accommodation once built. It is just and equitable that the applicants obtain temporary and interim relief.

Findings and order: The respondents and all persons claiming rights of residence through them are ordered, by 16h00 on 23 February 2024, to vacate their existing homes on the farm and relocate to the temporary housing made available for them by the applicants. 

Facts and issue: The applicants seek an order for the eviction of the respondents from the property.   The applicants are joint trustees of the Trust. The Trust is the owner of the property. It is not in dispute that the respondents are in occupation of the property. Prior to the first respondent taking occupation of the property, the property was under the occupation and control of one Meyer. Meyer was murdered on the property. The existence of the first respondent’s claim rests on the nature of her occupancy, and in turn whether she has a valid lien over the property.

Discussion: The essence of the applicants’ contention is that having occupied the property without their consent, the first respondent and her family are refusing to vacate the property, or pay any consideration for municipal services, despite the fact that they are expropriating rental income which previously used to be paid to the Trust, and despite the fact that they are running a ‘pet shop’ business from the property. A conclusion that the property falls within the scope of the ESTA is inescapable. With the exclusion of Papu, who occupied the property under Meyer during his lifetime until his demise, all the other respondents do not have the consent of the owner of the land and are in unlawful occupation of the property. Unlawful occupiers in the circumstances of the first respondent, and all those who claim occupation under her are not covered by the ESTA. The respondents’ rights in the circumstances  of section 4(7) do not extend to the right of occupation of the property, but their right to dignity, the right not to be treated in a cruel, inhumane and degrading way. It would be just and equitable that the respondents are evicted from the property.

Findings and order: The respondents are ordered to forthwith deliver to the applicants, the property. In the event that the respondents fail to deliver the property to the applicants, and remain in occupation for a period of fourteen days of this order, the Sheriff of the court is authorised to eject the applicants from the property. 

Facts and issue: The appellants appeal against the whole  judgment and order which refused an application for the eviction of the respondents. The farm is owned by the trust. The existing employees’ contracts, including those of the respondents, were not taken over by the trust. The respondents were employed by the previous owner and have been residents on the farm as a result of their employment with the previous owner.

Discussion: The respondents refused an offer of employment from the trust when it became owner of the farm. As the respondents were occupiers by consent, the factors set out at section 8(1) of ESTA, have relevance and ought to have been considered by the court a quo. With regard to section 8(1)(a), there was no agreement between the owner and the respondents for the latter’s continued residence on the farm. The respondents were given an opportunity to be employed on the farm, an opportunity they declined. Given that the circumstances on the farm had changed, the respondents were not entitled to insist on the terms and conditions of their employment. There was no employment relationship between the appellants and the respondents. Nor was there any agreement in terms of which the respondents could claim continued security of tenure on the property. The owner sought to engage with the respondents to offer them employment and to make representations before terminating their right of residence. The respondents declined both offers.

Findings: The respondents have lived rent free for four years at the appellant’s expense and there is no indication that the respondents who are employed, have attempted to find alternative accommodation themselves. The requirements as set out at section 9 read with section 8(1) of ESTA have been met and that the respondents’ eviction is warranted. Their eviction will be rendered just and equitable if it is linked to the provision of emergency accommodation by the Municipality.

Order: The respondents shall vacate the premises by no later than 30 July 2024. The Municipality must provide the respondents with emergency accommodation on or before 15 July 2024 provided they are still on the farm and have not vacated it.

Facts and issue: The judgment considers two appeals which were heard together as they pertain to the eviction of the respondents in both matters from the same farm owned by the same owner. The respondents came to reside on the farm with their parents. Both respondents were employed by the previous owner of the farm. The applicant purchased the farm in and upon doing so provided all occupiers residing on the farm, including the respondents with an opportunity to apply for employment. The respondents did not apply for employment.

Discussion: With regard to section 8(1)(a) there was no agreement for the respondents’ continued residence on the farm. The respondents were given the option to continue residing on the farm if they were to be employed by the Appellants, an option which they rejected. Given the policy of the appellants to provide accommodation for employees only, they required the respondents to vacate the dwellings they occupied so that these could be available to other employees. It would be just and equitable to grant an order for the eviction of the respondents who have been living at the appellants’ expense on the premises since 2014, who have rejected the offer of employment, who work elsewhere, and for whom emergency accommodation is available. 

Findings and order: The appeal succeeds. The respondents shall vacate the dwellings by no later than 28 February 2025. The Municipalities must provide the respondents with accommodation provided the respondents are still on the farm and have not vacated it.

Facts and issue: This matter is an automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997. It concerns the review of an order for the eviction of the first to fourth respondents from the house they occupy on a farm owned by the applicants. The eviction of the respondents was granted pursuant to dismissal and termination of the right of residence of the first respondent, an employee, whose right of residence arose solely from his employment agreement.

Discussion: The first respondent’s dismissal was for gross misconduct, a charge to which he pleaded guilty at an internal investigation and which dismissal was subsequently confirmed by the CCMA. The order for the eviction of the first respondent occurred in accordance with the provisions of sections 8(2) and (3) of the Act read together with section 9(2)(a). The eviction of the first respondent thus stands to be confirmed. The court is, however, unable to confirm the eviction orders granted in respect of the further respondents. It is undisputed that the further respondents have lived on the premises continuously since 2007 with the knowledge of the applicants. Section 3(4) of the Act provides that for the purpose of civil proceedings a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved. The further respondents are thus occupiers whose rights to occupy flow from consent. This being so, an eviction order could only have been granted if each of their rights of residence had been terminated in terms of section 9(2)(a) read with section 8(1) of the Act. Section 8(1) is applicable to persons like these respondents whose rights of residence flow from consent.

Findings: Not only was Section 8 (1) not considered in relation to each of them, but the first two notices relied upon by the applicants for the termination of the rights of residence of all the respondents make no mention of the second to fourth respondents, and the third notice refers to them as occupants whose rights to reside are held insofar as the first respondent continues to have rights of occupation. This is clearly wrong in law and is contrary to the findings of the Constitutional Court in the well-known judgment of Klaase & another v Van der Merwe N.O and & others [2016] ZACC 17.

Order: The order for the eviction of the first respondent is confirmed. The order for the eviction of the second to fourth respondents is set aside.