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[2016] ZASCA 151
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Snyers and Another v Mgro Properties (Pty) Ltd and Another (20816/2014) [2016] ZASCA 151; [2016] 4 All SA 828 (SCA) (30 September 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20816/2014
In
the matter between:
ABRAHAM
SNYERS
FIRST APPELLANT
KATRINA
SNYERS
SECOND APPELLANT
and
MGRO
PROPERTIES (PTY)
LTD
FIRST RESPONDENT
MOUTON CITRUS (PTY)
LTD
SECOND RESPONDENT
Neutral
citation:
Snyers
v Mgro Properties (Pty) Ltd
(20816/2014)
ZASCA 151 (30 September 2016)
Coram:
Mhlantla, Leach, Willis, Zondi and
Mathopo JJA
Heard:
19 November 2015
Delivered:
30 September 2016
Summary
:
Land
–
Extension of Security of
Tenure Act 62 of 1997 (ESTA) – notice given of eviction in
terms of s 8 of ESTA not valid if
given before CCMA makes
determination on labour dispute – failure to satisfy the
requirements for a valid notice of eviction
in respect of an occupier
previously employed by landowner – notice properly given to
spouse – right to family life
in terms of s 6(2)(d) of
ESTA prevents eviction of one spouse while the other remains.
ORDER
On
appeal from:
Land Claims Court, Cape
Town (Meer J sitting as court of first instance):
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and is substituted with the
following:
‘
The
application is dismissed with costs.’
JUDGMENT
Mathopo
JA (Mhlantla, Leach, Willis and Zondi JJA concurring):
[1]
This appeal concerns the eviction, under the Extension of Security of
Tenure Act 62 of 1997 (ESTA), of a farm worker and his
family and
whether the referral of a labour dispute between the first appellant
and the employer (first respondent) was still pending
when the
employer issued and served a notice to vacate upon him in terms of
s 8(3) of ESTA. The Land Claims Court (Meer J)
held that there
was no proper dispute pending before the Commission for Conciliation,
Mediation and Arbitration (CCMA) and dismissed
the appellant’s
appeal. This appeal is with the leave of this court. At the hearing
of this matter counsel indicated to us
that a similar matter likely
to affect our judgment,
Klaase
& another v Van der Merwe NO & others,
was pending in the Constitutional Court. Consequently we reserved
judgment to await the outcome of that matter. The
Constitutional
Court handed its judgment in
Klaase
[1]
on
14 July 2016 and this judgment has been prepared with the benefit of
its reasoning.
Background facts
[2]
The facts giving rise to this appeal are as follows: During November
1981 the first appellant, Mr Abraham Snyers (Snyers), commenced
employment as a farm labourer at Hexrivier Citrus for the previous
owners of farm Houtkaprug, Citrusdal in the Western Cape (the
farm)
which produces citrus fruits and tea. Snyers was subsequently
promoted to the position of senior foreman (‘senior spanleier’)
in terms of a written contract which he entered into during February
1982. During 2000, he was transferred to the farm where he
acquired
tenancy as a housing allowance stemming from his employment. His
contract of employment stipulated that his tenancy on
the farm was
conditional to his continued employment and thus would terminate
concurrently and automatically with his employment.
Snyers’
wife, Mrs Katrina Snyers (the second appellant) and their two
children – one of whom is still in school –
reside with
him on the farm through his tenancy.
[3]
On 2 November 2010, Mgro Properties (Pty) Ltd and Mouton Citrus (Pty)
Ltd, the first and second respondents respectively, represented
by Mr
Johan Abraham Mouton (Mouton), acquired ownership of the farm and
concluded a new employment contract with Snyers on 9 November
2010 in
similar terms to those Snyers had concluded with his previous
employer. It was a term of their agreement that it would
be
terminated by either party on four weeks’ notice. Allied to
this agreement was the housing agreement, which was inextricably
linked to the employment agreement in the sense that if the
employment contract terminates the housing agreement would likewise
be terminated. In that case Snyers and his family would be required
to vacate the farm on two months’ notice being given
by the
respondents (the owners).
[4]
About a month later, on 17 December 2010, Snyers tendered his
resignation to the respondents in which he indicated that he would
work until 17 January 2011. In it, he cited inter alia: the
respondents’ management style and human relations on the farm
as his reasons for resigning. In essence the letter created the
impression that Snyers had felt in the circumstances of his work,
that he could no longer contribute meaningfully to his employment
considering his many years of experience. The respondents accepted
his resignation.
[5]
Four weeks later, on 13 January 2011, Snyers ceased working on the
farm. On the same day he referred a constructive dismissal
dispute to
the CCMA. The referral form indicates that it was signed by Snyers at
Citrusdal on 13 January 2011 and it mentions that
same date as the
date upon which the dispute arose.
[2]
However, quite contrary to the aforementioned reasons given for his
resignation, the nub of his referral was that he had sought
his
pension proceeds in respect of his previous employment at Hexrivier
and he alleged that he had been induced by the respondents
who had
told him that he could not access his pension proceeds unless he
resigned. In the course of his long service on the farm,
beginning
from Hexriver, Snyers had accrued a substantial pension over the
course of 29 years before the respondents became the
owners of the
farm. His pension was carried over from his former employer. Rightly
or wrongly he entertained an apprehension that
he might not get his
pension moneys. In the referral form to the CCMA, Snyers described
the dispute as follows:
‘
Ons
het gewerk vir Hexrivier Sitrus. Plaas is oorgeneem deur Mouton
Citrus. Ons moes ons pensioenskema fondse ontvang het en was
eerstens
genome ons moet dit kry, maar is later deur Mouton Citrus ingelig dat
ons eers moet bedank voor ons ons geld kan kry.’
[3]
He
went on as follows in relation to the internal grievance procedure he
had taken before making the referral to the CCMA:
‘
Ek
het eers met Hexrivier gepraat wat genoem het [dat] ons kan ons
pensioenskema geld kry omdat die twee polisse van mekaar verskil.
Die
eienaar Ouas Mouton het aan ons genoem dat ons ons geld kan kry asook
die kontak person van Verso. Ons is later deur Hennie
die personeel
beampte asook die finansiele bestuurder meegedeel dat ons nie ons
geld kon kry nie. Ek het hul vele male geraadpleeg
en het hula an my
genoem dat ek eers moet bedank voor ek die voordeel van die polis kon
kry.’
[4]
On
any additional special features which the CCMA had to be made aware
of, the following was stated:
‘
Ek
het my pensioenskema geld nodig gehad. Die bestuurder en werkgewer
het geweet dat ek enigiets sou doen om net my geld in die
hande te
kon kry. Ek gereeld deur hul kantoor toe geroep oor die
aangeleentheid waar hul van my verwag het om te besluit. Hul motief
was dus van die begin af dat ek moet bedank om vir die pensioen te
kon kwalifiseer dan sou hul nie verder werk vir my meer het
nie. Hul
motief was dus om van my ontslae te raak en het hul misbruik gemaak
van die pensioenskema aangeleentheid.’
[5]
Finally,
in relation to the outcome sought from the CCMA, the following was
stated in the referral form:
‘
Mouton
Citrus se personeel beampte en Henk du Plessis het my herhaalde kere
kantoor toe geroep en gevra of ek wil bedank. Ek wou
nie bedank nie,
maar wou net my pensioenskema geld het. Ek het nie bedank om werk te
verloor nie ek het bedank omdat ek aanhoudend
hul ingelig was dat ek
moet besluit wat ek wil doen. Ek eis dus my werk terug.’
[6]
[6]
On 7 March 2011 the respondents, purporting to act in terms of s 8(3)
of ESTA, served a notice on Snyers giving him a period
of two months
within which to vacate the farm. Under ESTA, an owner’s right
to apply for eviction is dependent on a number
of prerequisites, one
of which is that the right of occupation should be validly terminated
in terms of s 8.
[7]
Sections
8(2)
and (3) of ESTA provide the following:
[8]
‘
The
right of residence of an occupier who is an employee and whose right
of residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the Labour Relations
Act
[66
of 1996]
.
Any
dispute over whether an occupier’s employment has terminated as
contemplated in subsection (2), shall be dealt with in
accordance
with the provisions of the Labour Relations Act, and
the
termination shall take effect when any dispute over the termination
has been determined in accordance with that Act
.’
(My emphasis.)
[7]
The case made out in the CCMA referral form was thus that Snyers
sought his pension proceeds in respect of his previous employment
at
Hexrivier. He had initially been advised that he would receive his
pension proceeds in that regard, but he was later informed
by the
respondents to first resign in order to receive his pension moneys.
The tenor of his referral suggests that the real reason
for his
resignation was that he was told repeatedly by the respondents that
this was the only way through which he would access
his pension.
[8]
When the aforementioned notice to vacate was served on him as
mentioned in para 6 above, Snyers refused to vacate the premises
contending that he was awaiting the outcome of the dispute which he
had referred to the CCMA.
[9]
On 18 March 2011, when Snyers enquired from the CCMA about the
progress of his referral, he was informed that he had to apply
for
condonation as his referral had been made out of time. However, in
terms of the referral forms extensively quoted above, Snyers
had
shown that the dispute had arisen on 13 January 2011, the same day on
which he had made the referral. This was thus the first
time he had
ever learned of any delay in his referral. The relevant condonation
application forms were then sent to him and he
was told to complete
and send them back within two weeks. It is not clear on what basis
Snyers’ referral was thought to have
been out of time. Section
191(1)
(b)
(i)
of the Labour Relations Act 66 of 1996 (LRA) provides that an
aggrieved employee should refer a dispute relating to unfair
dismissal to the CCMA or bargaining council having jurisdiction
within 30 days;
[9]
and
s 190(1) of the LRA stipulates that the date of dismissal is the
earlier of either the date on which the contract of employment
terminated, or the date on which the employee left the service of the
employer.
[10]
It is common
cause, in this instance that without prejudging his labour dispute,
Snyers’ contract of employment was terminated
on 17 January
2011 as a result of his resignation letter. In consequence that he
had time until 17 February 2011 within which he
could refer his
dispute to the CCMA. Nevertheless, on the advice he had been given,
Snyers completed the condonation forms in which
he stated that he
only learnt upon following up on his referral, that he had been 53
days late in making it. He further stated
in the condonation
application that the reason for his unfair dismissal were his
enquiries relating to his pension. Quite clearly,
given the fact that
the referral was made on 13 January 2011, there was no need to file a
condonation application. It would seem
to me that Snyers had no
option but to accede to the advice given to him by the CCMA officer
concerned. As to why he was so advised,
one can only speculate.
[10]
The respondents, yet again, served a notice to vacate on Snyers
during May 2011. He still persisted with his defence that the
employer could not evict him while the dispute before the CCMA was
still pending. I shall revert to the validity of the notices
to
vacate the premises later in the judgment.
Litigation background
[11]
On 1 June 2011 the CCMA gave an order in respect of which it refused
Snyers condonation and ruled that it consequently lacked
jurisdiction
to entertain the dispute which he had referred to it. Despite the
order of the CCMA, Snyers persisted in his refusal
to vacate the farm
and on 31 October 2011, the respondents further caused a notice to
vacate the farm to be served on Mrs Snyers.
Although she had
previously been employed as a seasonal labourer on the farm during
the period before the respondents took ownership,
she (together with
their children) had been occupying the farm through Snyers.
[11]
The respondents thereafter proceeded with prescribed steps including
giving notice to the relevant local authority, the Cederberg
Municipality, Citrusdal, in terms of ESTA in order to evict Snyers
and his family from the farm. The respondents brought an eviction
application in the Land Claims Court, Cape Town which was served by
the sheriff personally on both Snyers and Mrs Snyers on 31
January
2013.
[12]
In the court a quo, the case advanced on behalf of Snyers was that he
was forced to resign under the pretext that he would
receive his
pension money. As a result of that promise, so it was contended, he
was constructively dismissed by the respondents.
Mouton, on behalf of
the respondents, disputed Snyers’ version. He stated that it
had been explained to Snyers that he would
only be entitled to
receive his pension upon his death, resignation or dismissal. Mouton
emphatically stated that Snyers resigned
of his own free will as was
evidenced by the reasons Snyers had given in his letter of
resignation. But an examination of that
letter indicates that the
factors alluded to by Snyers and its tone of exasperation
[12]
were precursors leading up to circumstances related to his
allegations of constructive dismissal. Although nothing is mentioned
in his resignation letter itself about his being forced to resign,
such allegations were apparent in the CCMA referral and condonation
application. The court a quo (Meer J) accepted the version of Mouton
on the probabilities and held that because a dispute was referred
to
the CCMA late on 18 January 2011, there was no dispute pending when
the first notice to vacate and terminating the appellants’
right of residence was given on 7 March 2011. The LCC then held that
both notices were, in fact, valid.
[13]
Before us, it was contended on behalf of the appellants that the Land
Claims Court (LCC) erred when it granted the order evicting
Snyers
because the notices to vacate which had been served on him in terms
of s 9(2)
(b)
of
ESTA were invalid as they preceded the termination of his right of
residence in terms of s 8. The latter would only take effect,
so it
was argued, when his labour dispute against the respondents was
determined by the CCMA on 1 June 2011. In support of his
argument,
counsel urged upon us to accept that the referral was sent to the
CCMA on 13 January 2011. Once again, it was contended
that the LCC
erred when it held that the application was out of time. We were
urged to accept that, prior to determination of the
condonation
application, any notice served during that period is defective and
invalid and further that no fault could be laid
at the door of Snyers
if the CCMA misplaced his original referral form, which had been sent
timeously to them.
[14]
The nub of the appellant’s case is that he was forced to resign
under the pretext that he would receive his pension money.
As a
result of that pressure or promise he contends that he was
constructively dismissed by the respondents and that as the dispute
was still pending before the CCMA, the respondents’ notices of
7 March 2011 and May 2011 were invalid in terms of s 9(2)
(b)
of ESTA.
[15]
The respondents contended that Snyers resigned of his own accord and
disputed the fact that he was forced to resign. The contention
continued that the employer was not aware nor advised of any pending
dispute before the CCMA and thus that there had been no dispute
pending in terms of the LRA when the notices were served. This
submission found favour with the LCC, which held that it was
incumbent
upon Snyers to make out a case that there was a dispute
pending to bring s 8(3) into feature. The LCC held that on the
probabilities,
Snyers had failed to discharge the onus that there was
a timeous referral of the dispute to the Labour Court.
The approach to ESTA
[16]
As mentioned at the outset, we held back from delivering this
judgment pending Constitutional Court judgment in
Klaase
which
is now to hand. At para 51 of that judgment the Constitutional Court
said the following on the interpretative approach to
be adopted in
relation to ESTA:
‘
As
this Court said in
Goedgelegen
[2007 (6) SA 199
;
[2007] ZACC 12
(CC)], ESTA is “remedial
legislation umbilically linked to the Constitution”. It
seeks to protect people, like
Mrs Klaase, whose tenure to land
is insecure. In construing the provisions of ESTA a “blinkered
peering” at the
language in the legislation must be avoided.
An approach that will “afford [occupiers] the fullest possible
protection
of their constitutional guarantees” must be adopted.
This Court, in
Goedgelegen
,
per Moseneke DCJ, remarked:
“
[W]e
must seek to promote the spirit, purport and objects of the Bill of
Rights. We must prefer a generous construction over
a merely
textual or legalistic one in order to afford claimants the fullest
protection of their constitutional guarantees.
In searching for
the purpose, it is legitimate to seek to identify the mischief to be
remedied. In part, that is why it is
helpful, where
appropriate, to pay due attention to the social and historical
background of the legislation. We must understand
the provision
within the context of the grid, if any, of related provisions and of
the statute as a whole, including its underlying
values.”’
(Footnotes omitted.)
On
this same score, in
Molusi & others v Voges NO & others
[2016] ZACC 6
;
2016 (3) SA 370
(CC), the Constitutional Court held
the following (para 39):
‘
The
pre-reform-era land law reflected the common-law based view that
existing land rights should be entrenched and protected against
unlawful intrusions. The land reform legislation – ESTA
in this case – changed that view. It highlights
the
reformist view that the common law principles and practices of land
law, that entrench unfair patterns of social domination
and
marginalisation of vulnerable occupiers in eviction cases, need to
change. ESTA requires that the two opposing interests
of the
landowner and the occupier need to be taken into account before an
order for eviction is granted. On the one hand,
there is the
traditional real right inherent in ownership reserving exclusive use
and protection of property by the landowner.
On the other,
there is the genuine despair of our people who are in dire need of
accommodation. Courts are obliged to balance
these interests.
A court making an order for eviction must ensure that
justice
and equity
prevail in relation to all
concerned. It does so by having regard to the considerations
specified in section 8 read with
section 9 as well as sections 10 and
11 which make it clear that fairness plays an important role.’
(My emphasis; footnote
omitted.)
[17]
In
Molusi
,
the Constitutional Court when interpreting what is ‘just and
equitable’ in terms of s 8 of ESTA held as follows in
para 31:
‘
The
emphasis on the phrase “just and equitable” in sections 8
and 11 of ESTA, to borrow the words used by Sachs J in
PE
Municipality
[
v
Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC)], “underlines the central philosophical and
strategic objective of [the Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act 19 of 1998 (PIE)]”. The Court
said that the phrase makes it plain that the criteria to be applied
are not purely of a technical kind that flow ordinarily from the
provisions of land law. It remarked:
“
The
emphasis on justice and equity underlines the central philosophical
and strategic objective of PIE. Rather than envisage
the
foundational values of the rule of law and the achievement of
equality as being distinct from and in tension with each other,
PIE
treats these values as interactive, complementary and mutually
reinforcing. . . .
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable
principles of an ongoing, stressful and law-governed social process.”
These
remarks were made in a case relating to PIE but they are equally
apposite in this case.’ (Footnotes omitted.)
The
validity of the notices to vacate
[18]
In my view, when the respondents served the notice to vacate on
Snyers, his labour dispute in the CCMA had not yet been determined.
That contravened the provisions of s 8(3) requiring that where
there is a labour dispute relating to the termination of the
occupier’s right of residence, the termination only takes
effect when such dispute is determined in accordance with the LRA.
In
Karabo & others v Kok & others
1998 (4) SA 1014
(LCC) para 14, the LCC, in a judgment by Gildenhuys J (Moloto J
concurring), correctly held that:
‘
The
right of residence of a person which arises solely from an employment
agreement, may be terminated if the person resigns from
his or her
employment or is dismissed in accordance with the provisions of the
Labour Relations Act. Any dispute over whether
a person's
employment has been lawfully terminated must be dealt with in
accordance with the provisions of the Labour Relations
Act, and the
termination shall take effect only when that dispute has been
determined in accordance with that Act.’ (Footnotes
omitted.)
In
para 15, the LCC went on to say:
‘
In
this case, there is a dispute over the validity of the termination of
the employment of the labourers, and this dispute is being
dealt with
under the provisions of the Labour Relations Act. Because the dispute
is still pending, the termination of the employment
for purposes of
the Tenure Act [ESTA] has not yet taken effect.’
And
in para 22, the LCC held:
‘
It
was submitted on behalf of the [farm owners] that the phrase “dispute
over whether an occupier’s employment has been
terminated as
contemplated in [subsec] (2)” refers to a dispute on whether a
termination actually occurred, and not to a
dispute over the
lawfulness of the termination. I do not agree with the submission.
Subsection (3) refers back to [subsec] (2), which
provides that
the right of residence of an occupier may be terminated if he or she
resigns or is dismissed in accordance with the
provisions of the
Labour Relations Act. The termination of the occupier’s
employment as envisaged in [subsec] (3) must, under
the provisions of
[subsec] (2), be in accordance with the provisions of the Labour
Relations Act. This means that the validity
of the termination
is at issue. It is so, as pointed out on behalf of the [farm owners],
that such an interpretation would oblige
the owner of land to
continue housing dismissed employees while a dispute on the validity
of the dismissal is pending. Such a dispute
may take months to
resolve. The interpretation I have given to s[ubsec]s (2) and (3) is,
in my view, the only possible interpretation.
I cannot deviate
from it because the consequences are alleged to be unfair. The
fairness or otherwise of a legal provision is for
Parliament to
decide. I should point out, however, that in suitable
circumstances, the owner or person in charge may be entitled
to
relief under s 15 of the Tenure Act.’
[13]
[19]
Determination of the disputed labour matter is thus clearly a
pre-condition for terminating the occupier’s right of residence
under ESTA. Given the objects of ESTA stated in the above dicta of
the Constitutional Court, it necessarily follows where an occupier’s
tenancy is subsidiary to his or her employment on a farm, that where
a dismissal is disputed, the dispute over its fairness must
be
finally determined before the subsidiary tenancy is terminated.
Accordingly, ESTA does not countenance notice given in terms
of s 8
while a labour dispute remains undetermined. The validity of the
notice so given is vitiated by the lack of determination
of the
labour matter. For these reasons, and as s 9(2)
(a)
of
ESTA makes the granting by a court of an eviction order subject to
the prior termination of the right of residence in terms of
s 8,
[14]
the notices given by the respondents to Snyers were invalid and
consequently vitiated the entire eviction proceedings against him.
[20]
As in the instant case,
Klaase
involved
the eviction under ESTA of a farm employee and his family from a farm
where the employee had obtained tenancy on the farm
by virtue of his
employment. The important difference between this case and
Klaase
however – and on which the latter case turned – is that
in
Klaase
the wife of the farm employee had not been joined in the eviction
proceedings and the court held that further proceedings should
be
suspended, including the execution of the eviction order, pending the
determination of Mrs Klaase’s rights in terms of
ESTA; and that
proceedings in her case be consolidated with the eviction proceedings
against her husband.
[15]
[21]
The majority in
Klaase
(per Matojane AJ with whom Moseneke DCJ, Cameron, Madlanga, Nkabinde
JJ and Wallis AJ concurred) held inter alia that the
spouse of
the farm labourer in similar circumstances to those of Mrs Snyers in
this case had to be joined in the proceedings because
she had a
‘direct and substantial interest in the litigation’ in
that she had continuously and openly lived on the
farm for at least
30 years with the farm owner’s knowledge. The majority thus
held that the LCC had failed to have regard
to the presumption in
s 3(4) of ESTA, which applied in Mrs Klaase’s favour (para
46);
[16]
and that Mrs Klaase
should have accordingly been joined in the eviction proceedings
against her husband (para 47). It was therefore
held that she
had
made out a case that she was an occupier in terms of ESTA and thus
entitled to the protection afforded by the Act (para 65).
Consequently,
the majority upheld Mrs Klaase’s appeal. However, it dismissed
Mr Klaase’s appeal and refused his application
for the
suspension of the execution of the eviction order against him pending
the determination of Mrs Klaase’s rights (para
68).
[22]
The minority (per Zondo J with Mogoeng CJ and Van der Westhuizen J
concurring), on the other hand, held that in a situation
where family
members occupied land ‘under’ or ‘through’
someone else; in event of the valid termination
of the right of the
person under or through whom they occupy the land then the family
members’ right to occupy also comes
to an end (paras 84-86).
For purposes of this judgment, both the majority and minority
judgments in
Klaase
acknowledge,
[17]
as does ESTA
(for example, in the definition of ‘occupier’ in s 1(1)
and s 6(2) of ESTA),
[18]
that
there are two types of occupiers: (a) occupiers whose tenancy arises
solely from their employment; and (b) those who have
the ‘right
in law’ to reside on the land other than through
employment.
[19]
For those
falling in the latter broad category, an occupier’s right of
occupation can be self-standing and independent –
arising from
the presumptions created by s 3 in which case the occupier would
be presumed to have the consent of the owner
and thus enjoy the full
breadth of ESTA’s protection; Mrs Klaase was found by the
majority in
Klaase
to have fallen in this category.
[20]
The occupier’s right can also stem from someone else’s
right of occupation which nevertheless falls short of the
presumptions
created in s 3. Thus while full protection under
ESTA would not extend to the secondary occupier whose right stems
from another
person (the primary occupier), ESTA would afford full
protection to the primary occupier under or through whom the
secondary occupier
at least procedurally would be afforded some
protection.
[21]
Mrs Snyers’ right
to reside on the farm
[23]
In relation to Mrs Snyers’ situation it should be noted that
the Constitutional Court in
Klaase
referred with approval to its earlier decision in
Hattingh
& others v Juta
[2013] ZACC; 2013
(3) SA 275 (CC)
[22]
in which it affirmed the right to family life under s 6(2)
(d)
of
ESTA and held it to be undesirable to separate families. On that
basis alone despite Mrs Snyers having been given proper notice
terminating her right to occupy the farm in terms of s 8, due to
the irregular eviction proceedings brought against Snyers,
if an
application for eviction were allowed against her, while it is
refused against her husband: the result would be to divide
their
family. In
Hattingh
,
Zondo J held as follows for the unanimous Court (paras 35 to 37):
‘
it
seems to me that the reference to “family life” in
section 6(2)
(d)
suggests
that the purpose of the conferment of this right on occupiers was to
ensure that, despite living on other people’s
land, persons
falling within this vulnerable section of our society would be able
to live a life that is as close as possible to
the kind of life that
they would lead if they lived on their own land. This means as normal
a family life as possible, having regard
to the landowner’s
rights. Most people who fall into this section of our society are
people who, under apartheid, were denied
certain rights by landowners
including the right to live a normal family life with their family.
In this regard, I note that the
preamble to ESTA does suggest that
ESTA seeks to deal with a situation that “is in part the result
of past discriminatory
laws and practices”. The object was to
give this section of our society human dignity which they were denied
under apartheid.
Although
I have said that the purpose of section 6(2)
(d)
was to ensure
that, as far as possible, an occupier could enjoy a life that is as
much of family life as is possible, the extent
of that family life in
any specific set of facts will depend upon striking a fair balance
between enabling the occupier to enjoy
family life and enabling the
owner of the land to also enjoy his rights as owner of the land. In
this regard I also note that the
preamble to ESTA includes a
statement that it is desirable that “the law should extend the
rights of occupiers, while giving
due recognition to the rights,
duties and legitimate interests of owners”.
Living
a family life may mean the occupier living with his or her spouse or
partner only or living with one or more of his or her
children or
with one or more members of his or her extended family, depending
upon what the result is when one balances the occupier’s
living
with any one or more of those persons with what the owner of the land
is also entitled to. If, in a particular case, the
balancing produces
a result that is unjust and inequitable to the owner of the land, the
occupier’s right to family life
may be appropriately limited.
If, however, the occupier were to live with his or her spouse or
partner and with one, two or more of his children or other members
of
the extended family and this would not result in any injustice or
unfairness and inequity to the owner of the land, the occupier
would
be entitled to live with those members of his or her family. The
purpose of section 6(2)(d) is to enable occupiers to live
as full a
family life as possible including engaging in cultural activities or
practices, as long as that does not offend the equitable
balance of
the occupier’s rights with the rights of the landowner as
required by section 6(2)(d).
’ (My emphasis.)
In
view of the authority of
Hattingh
,
despite Mrs Snyers’ notice of termination of her right to
reside on the farm having been validly given, it would infringe
on
Snyers’ right to family life and it would be undesirable to
allow her eviction while Snyers remains on the farm pending
the
determination of his labour dispute.
Order
[24]
In the result, the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and is substituted with the
following:
‘
The
application is dismissed with costs.’
________________
R Mathopo
Judge
of Appeal
APPEARANCES:
For
Appellants:
P Hathorn SC
Instructed
by:
J D van der Merwe Attorneys, Stellenbosch
Webbers,
Bloemfontein
For
Respondents:
D C
Joubert SC
Instructed
by:
Bresler & Partners, Citrusdal
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Klaase
& another v Van der Merwe NO & others
2016
ZACC 17.
[2]
As
shall be discussed more in detail later in the judgment, in terms of
s 190(1)
of the
Labour Relations Act 66 of 1995
, the date of
dismissal is the earlier of either the date on which the contract of
employment terminated (subsec (1)
(a)
);
or the date on which the employee left the service of the employer
(subsec (1)
(b)
).
[3]
Loosely
translated this stated: ‘We worked for Hexriver Citrus. The
farm was taken over by Mouton Citrus. We had to receive
our pension
scheme funds and were first told that we would receive them, but
later were informed by Mouton Citrus that we had
to first resign
before we could receive our money.’ (My translation)
[4]
Which
may be translated thus: ‘I first spoke with Hexriver which
mentioned that we could get our pension scheme money because
the two
policies differed. The owner Ouas Mouton mentioned to us: that we
could get our money; as well as the contact person
of Verso. We were
later told by Hennie, the human resources officer and financial
manager, that we could not get our money. I
have consulted them many
times and they called me in to inform me that I have to resign
before I could get the pension proceeds.’
(My translation.)
[5]
Which
may be translated as follows: ‘I needed my pension scheme
money. The employer knew that I would do just about anything
just so
that I could get my money. I was often called to their office on the
matter where they expected me to decide. Their intention
from the
beginning was that I should resign in order to qualify to have my
pension and then they would no longer have me working
for them
anymore. Their purpose was thus to get rid of me through their
manipulation of the pension scheme issue.’ (My
translation.)
[6]
Which
may be translated: ‘Type text or a website address or
translate a
document.
Translate
from:
Dutch
Mouton
Citrus human resources officer and Henk du Plessis called me
repeatedly to the office and asked if I would like to resign.
I did
not want to resign, but only wanted my pension scheme money. I have
not resigned to squander my job, I resigned because
I was constantly
informed that I had to decide whether I wanted to do so. I therefore
claim back my work.’ (My translation.)
[7]
Section
3(1)
of ESTA provides that: ‘Consent to an occupier to reside
on or use land shall only be terminated in accordance with the
provisions of
section 8.
’ See also
[8]
Section
8
comprehensively sets out the requirements for termination of an
occupier’s right of residence. In subsec (1) the following
is
inter alia provided: ‘[s]ubject to the provisions of this
section, an occupier’s right of residence may be terminated
on
any lawful ground, provided that such termination is just and
equitable, having regard to all relevant factors and in particular
to—
(a)
the fairness of any agreement, provision in an
agreement, or provision of law on which the owner or person in
charge relies;
(b)
the conduct of the parties giving rise to the
termination;
(c)
the interests of the parties, including the
comparative hardship to the owner or person in charge, the occupier
concerned, and
any other occupier if the right of residence is or is
not terminated;
(d)
the existence of a reasonable expectation of the
renewal of the agreement from which the right of residence arises,
after the
effluxion of its time; and
(e)
the fairness of the procedure followed by the
owner or person in charge, including whether or not the occupier had
or should have
been granted an effective opportunity to make
representations before the decision was made to terminate the right
of residence.’
[9]
Section
191(1)
of the LRA provides in relevant part:
‘
(a)
If there is a dispute about the
fairness of a dismissal . . . the dismissed employee . . . may refer
the dispute in writing to—
(i)
a [bargaining] council, if the parties to the dispute fall within
the registered scope of that council; or
(ii)
the [CCMA], if no council has jurisdiction.
(b)
A referral in terms of paragraph
(a)
must be made within—
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss
or uphold
the dismissal’.
[10]
Section
190
of the LRA provides:
‘
Date
of dismissal
(1)
The date of dismissal is the earlier of-
(a)
the date on which the contract of employment
terminated; or
(b)
the date on which the employee left the service
of the employer.’
[11]
See
para 22 below on Mrs Snyers’ right to reside on the farm.
[12]
The
resignation letter scribed in Afrikaans mentions the following as
the reasons for Snyers’ resignation: ‘Management
style –
I do not know with whom I work; Communication with people leaves
much to be desired; Unidirectional management
– the team
leader is not given an opportunity to select and lead, he must just
accept your unit and is treated like a mere
worker on Mouton Citrus.
New employees are regarded as nothing by the management. There is no
sense in submitting employees’
ratio. There are just a
lot of reasons, but in the circumstances I would just like to say
that on Friday 17 December I
am resigning. I shall thus work from 17
December 2010 to 17 January 2011.’ (My translation.)
[13]
Section
15
of ESTA provides:
‘
Urgent
proceedings for eviction
(1)
Notwithstanding any other provision of this Act, the owner or person
in charge may make urgent application for the removal
of any
occupier from land pending the outcome of proceedings for a final
order, and the court may grant an order for the removal
of that
occupier if it is satisfied that—
(a)
there is a real and imminent danger of
substantial injury or damage to any person or property if the
occupier is not forthwith
removed from the land;
(b)
there is no other effective remedy available;
(c)
the likely hardship to the owner or any other
affected person if an order for removal is not granted, exceeds the
likely hardship
to the occupier against whom the order is sought, if
an order for removal is granted; and
(d)
adequate arrangements have been made for the
reinstatement of any person evicted if the final order is not
granted.
(2)
The owner or person in charge shall beforehand give reasonable
notice of any application in terms of this section to the
municipality in whose area of jurisdiction the land in question is
situated, and to the head of the relevant provincial office
of the
Department of Rural Development and Land Reform for his or her
information.’
[14]
Section
9(2)
(a)
of ESTA provides that a ‘court may make an order for the
eviction of an occupier if the occupier’s right of residence
has been terminated in terms of section 8.’
[15]
Klaase
para
15.
[16]
Compare
Zorgvliet
Farm and Estate (Edms) Bpk v Alberts en ’n ander
[2001] 1 All SA 62
(LCC) para 14, where Gildenhuys AJ had held: ‘Die
tweede respondent woon in die huis uit hoofde van haar
familieverwantskap
met die eerste respondent, en haar bewoningsreg
hoef nie afsonderlik beëindig te word nie.’ Which
essentially means
that an occupier who lives together in a family
relationship with a farm labourer who has tenancy solely by virtue
of employment
on the farm need not have their right of occupancy be
terminated separately under s 8. This accords with the minority
judgment
in
Klaase
.
[17]
Paragraph
62-64 of the majority judgment and paras 84-87 in the minority
judgment in
Klaase
.
[18]
Section
1(1) of ESTA defines an ‘occupier’ as a person residing
on land which belongs to another person, with the
latter person’s
‘consent or another right in law to do so’.
[19]
See
the presumptions created by ESTA under s 3; compare with s 8(2).
See also
Landbounavorsingsraad
v Klaasen
2005 (3) SA 410
(LCC); and
Venter
NO v Claasen en andere
2001 (1) SA 720
(LCC) para 11.
[20]
Paragraphs
49-66. See also
Conradie
v Hanekom
1999 (4) SA 491
(LCC) para 20.
[21]
See
s 12(1), (2) and (4) of ESTA and
Ntai
& others v Vereeniging Town Council & another
1953 (4) SA 579
(A) at 584-590. See the discussion of the meaning of
“consent” by Juanita M Pienaar & Koos Geyser
‘“Occupier”
for purposes of the
Extension of
Security of Tenure Act: The
plight of female spouses and widows’
(2010) 73
THRHR
248.
[22]
Paragraphs
62. See also para 121 of the minority judgment.