Law Reports
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga …

Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others (456/2011) [2012] ZASCA 77; 2012 (5) SA 392 (SCA); [2012] 3 All SA 655 (SCA) (25 May 2012)

82 Reportability

Land and Property Law

Brief Summary

Eviction — Extension of Security of Tenure Act 62 of 1997 — Appellant sought eviction of former employees residing in hostel after dismissal — Dispute over whether right of residence arose solely from employment agreements — Court held that former employees' right of residence was not solely dependent on employment, as no binding agreement to that effect was proven — Appeal upheld, confirming the termination of the third respondent's right to reside based on employment status.

Full Judgment Text (Click to expand)

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[2012] ZASCA 77
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Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others (456/2011) [2012] ZASCA 77; 2012 (5) SA 392 (SCA); [2012] 3 All SA 655 (SCA) (25 May 2012)

REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 456/2011
In
the matter between:
STERKLEWIES
(PTY) LTD t/a HARRISMITH FEEDLOT
................
Appellant
and
M
E MSIMANGA
.....................................................................
First
Respondent
T
R MQINA
..........................................................................
Second
Respondent
DF
TSOTETSI
.........................................................................
Third
Respondent
Neutral citation:
Sterklewies
(Pty) Ltd
v Msimanga & others
(456/11)
[2012] ZASCA 77
(25 May 2012)
Coram:
MTHIYANE DP, FARLAM et WALLIS JJA, KROON
et BORUCHOWITZ AJJA.
Heard
:
18 May 2012
Delivered
:
25 May 2012
Summary:
Eviction
–
Extension of Security of Tenure Act 62 of 1997
–
whether appellant succeeded in proving that the respondents were only
allowed to stay on the farm as long as they were
employed by the
appellant.
ORDER
On appeal from:
Land Claims Court (Mpshe AJ
sitting as court of first instance) it is ordered that:
1 The appeal succeeds.
2 The order of the Land Claims Court is set aside and
the following order substituted for it:
‘
The order of the magistrate is
confirmed save that it is amended in the following respects:
(a) In paragraphs (a) and (b) thereof the words ‘First
and Second’ are inserted before the word ‘Defendants’

wherever it occurs.
(b) Paragraph (c) is deleted.
(c) Paragraphs (d) to (g) are re-lettered as (c) to (f).
(d) Paragraph (d) is amended to read
as follows:
“
It is declared that the Third
Defendant’s right to reside on the premises described in
paragraph (a) of this order and arising
by virtue of his former
employment by the Plaintiff has been lawfully terminated and any
continuing right he may have to reside
on those premises is derived
from the rights of his wife to occupy a room in those premises by
virtue of her employment by the
Plaintiff.”’
JUDGMENT
WALLIS JA (MTHIYANE DP, FARLAM JA et KROON et BORUCHOWIZ
AJJA concurring)
[1] Sterklewies (Pty) Ltd, the appellant, conducts the
business of a feedlot on a property in the Harrismith area. Messrs
Msimanga,
Mqina and Tsotetsi, the respondents in this appeal, were
formerly employed by Sterklewies and resided in the hostel on their
employer’s
premises. I will henceforth refer to them as the
former employees. At the end of internal disciplinary proceedings,
they were dismissed
from that employment in 2004. They challenged
their dismissals unsuccessfully through the processes provided by the
Labour Relations
Act 66 of 1995 (the LRA). Those proceedings came to
an end in the CCMA on 28 November 2007, when an application for
condonation
of their failure to bring those proceedings timeously was
refused. They took no further steps thereafter to challenge their
dismissals.
Proceedings under the LRA have therefore been exhausted.
The present proceedings arise because, notwithstanding their
dismissal,
the former employees have continued to reside in the rooms
previously occupied by them in the company’s hostel. On 16
January
2008, after the conclusion of the proceedings in terms of the
LRA, they were given notice of termination of their right of
residence
in the rooms. Between May and December 2008 the notices
required by s 9(2)(
d
)
of the Extension of Security of Tenure Act 62 of 1997 (the Act) were
served and published requiring the former employees to vacate,
but
they declined to do so.
[2] Sterklewies then commenced proceedings in the
Magistrates’ Court at Harrismith for an order for the eviction
of the former
employees from the hostel. An order was granted by the
magistrate on 10 February 2010, but that was subject to
automatic review
by the Land Claims Court in terms of s 19(3) of
the Act. Mpshe AJ set aside the magistrate’s order on
25 November
2011. This appeal is with his leave.
[3] The Act provides statutory protection against
eviction for occupiers of agricultural land. An occupier is defined
in s 1
of the Act as:
'[A] person residing on land which belongs to another person, and who
has or on 4 February 1997 or thereafter had consent
or
another right in law to do so . . .'
Consent is in turn defined as meaning the:
'[E]xpress or tacit consent of the owner or person in charge of the
land in question'.
In terms of s 3(1) of the Act consent to an occupier to
reside on or use land shall only be terminated in accordance with the
provisions
of s 8. That section refers to the termination of an
occupier’s ‘right of residence’ on the land in
question.
Plainly that is the right to occupy that arises from the
express or tacit consent of the owner of the land. In most cases that
consent will arise from some agreement between the owner and the
occupier, but an agreement, at least if that expression is understood

to refer to a contractually binding arrangement, is not in my view
required. The Act does not describe an occupier as a person
occupying
land in terms of an agreement or contract, but as a person occupying
with the consent of the owner. One can readily imagine
circumstances
in which in the rural areas of South Africa people may come to reside
on the land of another and the owner, for one
or other reason, takes
no steps to prevent them from doing so or to evict them. That
situation will ordinarily mean that they are
occupying with the tacit
consent of the owner and will be occupiers for the purpose of the
Act. Accordingly, when in
Landbounavorsingsraad
v Klaasen
2005 (3) SA 410
(LCC) para 35
1
it is said that ‘consent must originate from an
agreement, or exist by operation of law’, I think that an
unnecessarily
restrictive view of the provisions of the Act.
It suffices that persons claiming the Act’s
protection show that the owner of the land has consented to their
being in occupation,
irrespective of whether that occupation flows
from any agreement or has its source elsewhere. Whatever its origins
it is the right
of residence flowing from that consent that must be
terminated in terms of s 8 before an eviction order can be
obtained.
[4] In the present instance the only basis upon which
Sterklewies claimed to have terminated the former employees’
right of
residence in their rooms in the hostel was that their right
to reside there flowed from their contracts of employment and, with

the termination of the latter, their right to occupy those rooms
terminated. It relied upon the provisions of s 8(2) of the
Act
that provides that:
‘
The right of residence for 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.'
Under
s 8(3)
if there is a dispute over whether an
occupier's employment has been terminated as contemplated in
subsection 2 that dispute falls
to be resolved in accordance with the
provisions of the LRA and the termination of the right of occupation
only takes effect when
the dispute has been determined in accordance
with the LRA. In this case that has been done. The case for
Sterklewies is that after
the conclusion of the proceedings in the
CCMA it gave the former employees notice terminating their right of
residence in their
rooms in the hostel as it was entitled to do in
terms of s 8(2) of the Act.
[5] In its particulars of claim Sterklewies pleaded the
fact of the respondents’ employment and its termination and
went on
as follows:
‘
In terms of the Employment
Agreement between the Plaintiff and the Defendants, the Defendants
were granted permission to reside
on the farm, only for so long as
the Employment Agreement between the Plaintiff and the Defendants
would remain in existence.’
This allegation met with the following response in the
plea:
‘
The contents of this paragraph
are denied and the plaintiff is put to the proof thereof. The
defendants specifically deny that there
was any agreement specifying
that they will reside on the farm only for so long as they are
employed by the plaintiff.’
The issue thus formulated between the parties was
whether the defendants’ occupation of the rooms in the hostel
flowed solely
from the employment agreements that had previously
subsisted between them and Sterklewies. No other issue was raised in
the pleadings.
Sterklewies alleged that the former employees had
received permission to reside in the rooms in the hostel in terms of
the employment
agreements it had concluded with them. The former
employees not only denied this, but went further and pleaded that
there was no
agreement that they would reside on the farm only for so
long as they were employed by Sterklewies. They did not however plead
any positive basis for their right to reside there.
[6] At the commencement of the proceedings before the
magistrate the attorney representing Sterklewies summarised the
issues that
remained in dispute between the parties. The first issue
she mentioned related to the nature of the hostel premises, but the
evidence
established that this was a hostel of a type familiar in
many places in South Africa. It consists of some 28 fairly small
single
rooms, with no ablution facilities or cooking facilities,
those facilities being available in the form of showers and a
communal
cooking and dining area in the premises of the feedlot. The
rooms are provided with electricity and there are some pit toilets
available in the hostel. This was accepted by the end of the trial
and the issue is not referred to in the heads of argument, so
it can
be ignored.
[7] The other two issues were said to be whether the
former employees’ right of residence in and occupation of the
rooms in
the hostel arose solely from their employment agreements and
whether alternative accommodation was available to the respondents.

In his argument at the end of the appellant’s case the
respondents’ attorney sought to narrow the focus even further

by saying that the only issue was the one that arose from the
following paragraph in the particulars of claim:
'In terms of the Employment Agreements between the
Plaintiff and the Defendants, the Defendants were granted permission
to reside
on the farm, only for as long as the Employment Agreement
between the Plaintiff and the Defendants would remain in existence.’
That statement was repeated in the heads of argument,
and in argument before us it was accepted that it had been
established on
the evidence that the former employees did have
alternative accommodation in the area referred to throughout the
evidence as Qwa
Qwa. That evidence, whilst limited, was sufficient to
call for some rebutting evidence from the former employees as it
related
to matters within their exclusive knowledge,
2
but they closed their case without giving evidence.
[8] By the end of the trial before the magistrate there
was thus effectively only one issue for determination, namely whether
the
right of residence of the former employees arose from the
employment agreements. This bears emphasising because at the outset
of
the appeal Mr Phalatsi, on behalf of the former employees, urged
us to give general guidance for magistrates and those engaged in

litigation of the present type in regard to the proper approach to
the Act and the operation of s 8(2) thereof. He contended
for
the first time that s 8(1) is the operative provision and that
s 8(2) is subordinate thereto, so that a person seeking
an order
for eviction under the Act cannot merely rely on s 8(2), but
must also satisfy the court that the requirements of
s 8(1) in
regard to the termination of an occupier’s right of residence
are also satisfied.
[9] Were the position clear-cut I might have been
inclined to decide this question in order to provide the guidance
that Mr Phalatsi
says is desperately needed in magistrates’
courts that deal with cases of this type on a regular basis. However,
it is by
no means clear-cut. Section 8(1) reads as follows:
‘
(1) Subject 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.’
The section thus provides that termination of a right of
residence must be both lawful and just and equitable having regard to
the
specified factors. It would be possible to accommodate the
dismissal of an employee in occupation of premises provided by the
employer
under the broad concept of just and equitable grounds for
terminating the employee’s right of residence. That being so
the
question is why it was thought necessary to include s 8(2)
in the Act. A consideration of its purpose is therefore necessary.
[10] There can be little doubt that s 8(2) of the
Act was inserted to deal with a situation that had frequently arisen
under
the labour law dispensation in operation prior to the enactment
of the LRA. It commonly occurred that workers would be dismissed
and
a dispute would arise in regard to their dismissal. That dispute
would ultimately be referred, through the appropriate mechanisms

under the then
Labour Relations Act
3
to
the Industrial Court for determination. In the meantime the
workers would continue to occupy the hostel or other accommodation
provided to them by their employers. Their presence could prevent the
employer from hiring a new workforce and might be seen as
a deterrent
to the employment of temporary or replacement labour. This proved
frustrating to employers. Their response was to seek
the eviction of
the workers even though the dispute between them was ongoing and
unresolved. Often this was an attempt to obtain
an advantage in the
dispute and as a means to put pressure on workers to reach a
settlement before they were deprived of accommodation
and shipped
home to the TBVC states or the so-called homelands.
[11] Examples of such cases are to be found in the law
reports. In
Coin Security (Cape)(Pty) Ltd v Vukani Guards and
Allied Workers’ Union & others
,
4
the employer alleged that the workers had engaged in a strike and
that, as a result, they had been dismissed, thereby forfeiting
their
right to remain in the accommodation. The court held that on the
workers’ allegations the employer had been in breach
of its
contractual obligations to them and that this had occasioned the work
stoppage. This was a legitimate response to the employer’s

breach of contract and did not constitute a strike. Accordingly the
purported termination of their contracts of employment was
unlawful
and they were entitled not to accept it but to decline to work
further until the employer remedied its breach of contract.
In the
result the application for their eviction failed.
[12] That can be contrasted with
Randfontein Estates
Gold Mining Co (Witwatersrand) Ltd v Forbes
,
5
where the employee alleged that he had been unfairly dismissed on
notice and had referred a dispute concerning the unfairness of
his
dismissal to the Industrial Court. On that ground he opposed an
application for his eviction from the accommodation provided
to him
by his employer. Coetzee J held that, as he had been given notice in
terms of his contract of employment, the termination
of his
employment was lawful and, because his continued occupation of the
house provided by his employer depended upon the existence
of a
contract of employment, his right to occupy the house had also been
lawfully terminated. He cited with apparent approval
6
an earlier dictum
7
to the effect that the contention that in a dispute between employer
and employee labour law and not the common law should apply
held
within it ‘the seeds of a pernicious doctrine’. His
conclusion
8
was ‘that this case before me does not have anything to do with
the provisions of the
Labour Relations Act’ and
that:
‘
The mere fact of submission of
a dispute such as the one alleged by the respondent to the industrial
court for determination of
an unfair labour practice in terms of that
Act does not take away this Court’s jurisdiction to hear an
application for, and
grant, an eviction order.’
[13] Once the LRA came into effect the problem became of
less significance in most workplaces because the Labour Court was
empowered
to grant urgent interim relief in terms of s 158(1)(
a
)
of the LRA and could therefore restrain employers from seeking to
terminate rights to accommodation of workers whilst the parties
were
locked in industrial dispute. However, it seems probable, in a
statute dealing with the right to obtain eviction orders against

occupiers of land, including workers, in rural and agricultural
areas, that the protection of an urgent application before the
Labour
Court was not regarded as adequate. Accordingly ss 8(2) and 8(3)
were included in the Act to ensure that eviction orders
could not be
obtained against dismissed workers in these areas until all disputes
about the validity of the termination of their
employment had been
resolved through the mechanisms of the LRA.
[14] That does not mean, however, that s 8(2) is
necessarily a ground for terminating the former worker’s right
of residence
in isolation from the broad requirement of it being just
and equitable under s 8(1). It is capable of the construction
that
it is a possible specific instance of a just and equitable
ground for termination, but that its prima facie weight as such is
capable
of being displaced by way of evidence that, notwithstanding
the fact that the right of residence flowed from the employment
agreement
and that agreement had been both lawfully and fairly
terminated, it would nonetheless not be just and equitable to
terminate the
former worker’s right of residence. I accept that
this would probably require a strong case, such as one based on
lengthy
residence, old age, ill health, the absence of reasonably
equivalent alternative accommodation and evidence showing that the
continued
presence of the former worker on the erstwhile employer’s
property would not impose a burden on the latter. That would be
a
difficult case to advance when one was, as in the present case,
dealing with accommodation in a hostel, but the possibility remains

that on appropriate facts it could be advanced.
[15] On the other hand s 8(2) could also be
construed as a special provision governing a particular situation
that is to be
applied to the exclusion of the general provisions of
s 8(1). The brocard
generalia specialibus non derogant
9
comes to mind. This is a difficult question, made more difficult by
the fact that the point was not raised in the pleadings or
at the
trial where, as I have said, the parties in very specific terms
limited the issues and did not include any issue arising
under
s 8(1). Nor was it raised in the heads of argument in this court
and we have not had the advantage that full argument
on the point
would provide. It is accordingly undesirable to decide it as it falls
outside the issues properly raised and in dispute
between these
litigants. I need hardly add that it is an issue with constitutional
ramifications and it remains a salutary rule,
even if not always
observed, that if a matter can be disposed of without reaching a
constitutional issue that is the approach that
the court should
adopt.
10
I will accordingly leave the point open and say no more than that, if
it is to be raised, it must be raised by way of allegations
in the
plea of the former worker whose eviction is being sought and
supported by evidence showing that it would, notwithstanding
the
termination of the former worker’s employment, not be just and
equitable to evict him or her from the accommodation provided
by the
employer in terms of the employment agreement.
[16] The Act contemplates two stages before an eviction
order can be made. First the occupier’s right of residence must
be
terminated in terms of s 8 of the Act. The manner in which
this is to be done is not specified. Once the right of residence
has
been terminated then, before an eviction order can be sought, not
less than two months notice of the intention to seek the
occupier’s
eviction must be given to the occupier, the local municipality and
the head of the relevant provincial office
of the Department of Land
Affairs in terms of s 9(2)(
d
) of the Act. That notice is
required to be in a form prescribed by regulations made in terms of
s 28 of the Act.
[17] The notices given to each of the former employees
with a view to terminating their right of residence in the hostel
read in
material part as follows:
‘
In terms of your employment
contract with our client you had a residential right to stay in the
Feedlot hostel.
At termination of your employment contract it was an
explicit term of the contract that such a residential right to stay
in the
hostel shall lapse.’
The letters went on to ‘cancel’ the former
employees’ rights of residence and gave them 30 days notice to
vacate
the premises failing which an application for eviction would
be brought. As the former employees did not vacate their rooms
further
notices of intention to bring eviction proceedings were
served upon them and the bodies upon which such notices must be
served
in terms of s 9(2)(
d
) of the Act. Those notices
said in regard to the grounds upon which the eviction order would be
sought that reliance was placed
upon s 8(2) of the Act and the
fact that the former employees had been dismissed.
11
The case was then conducted in accordance with the pleadings already
referred to and the summary of the issues at the outset of
the
hearing before the magistrate.
[18] It was submitted that when notice is given to
terminate an occupier’s right of residence and that notice sets
out the
grounds upon which the right is being terminated the owner is
irrevocably bound to those grounds and can advance no others in
support
of the claim for an eviction order. I am not sure that this
is correct. After all there is no obligation on the owner of the
property,
when terminating the right of residence to provide reasons
for that decision or to set out grounds therefor. It is not even a
requisite
for the validity of the termination that it be in writing
or comply with any formalities. There seems to be no reason why the
right
cannot be validly terminated by the owner informing the
occupier orally that the right of residence is terminated or will be
terminated
after expiry of a specified period of notice. In most
instances termination of the right of residence is likely to take
place in
a relatively informal exchange between owner and occupier.
It is only at the stage where the owner intends seeking an eviction
order that the owner is obliged, and then only because the prescribed
form requires it, to specify the grounds upon which an eviction
order
is to be sought. Even then anyone with experience of the completion
of similar forms – such as those that an employee
referring a
dispute over their dismissal to the CCMA must complete – will
be aware that they can be couched with a great
deal of generality.
12
A statement that the occupier was a former employee and that in terms
of ss 8(1) and 8(2) it would be just and equitable for
them to
be evicted from the property would satisfy the requirements of the
form but leave the occupier little the wiser as to the
grounds for
their eviction. However, for the reasons that follow, it is
unnecessary to express a final view on these submissions.
[19] The matters mentioned in the previous paragraph
arose because the argument before us was pursued on the basis that
the initial
letter terminating the right of residence had said that
it was ‘an explicit term’ of the employment agreement
that
the right of residence would lapse on termination of the
employment. It was submitted that this coloured the reference in the
s 9(2)(
d
) notice to the termination of the employment of
the former employees and also the allegation in the particulars of
claim that in
terms of the employment agreement the permission to
reside on the farm would subsist only for so long as the employment
agreement
endured. Reference was then made to the employment
contracts themselves and to various passages in the cross-examination
of Mr
Oosthuizen, the main witness for Sterklewies, from which it
appeared that there was no clause in the employment contracts that in

so many words said that the right of residence was dependent on the
continued existence of the employment relationship.
[20] In my view this places far more stress than is
justified on the word ‘explicit’ in the original letter.
The letter
said that the right to reside in the hostel had arisen
under the employment contracts and, with the termination of the
latter,
the right to reside there had lapsed. There was no mention of
a written contract or whether the ‘explicit’ provision

was embodied in a document or had been orally agreed. It seems to me
that the word ‘explicit’ in that context merely
meant
that it was clear that this was agreed as part of the contract. It is
true that there were written employment contracts,
but these were
relatively terse, and for reasons I will expand on did not set out
all the terms of the contract. In any event,
I do not think that it
should be inferred that the reference in the letter was to a written
contract or that portion of the employment
contract that had been
reduced to writing.
[21] I also do not think that the word ‘explicit’
should be equated, as I understood the argument to equate it, with

‘express’, in the sense of a term spelled out
specifically in the language of the written portion of the contract.

Even if the relevant provision was embodied in a tacit term it would
be as much an explicit term, that is, a clear term, as if
it were an
express term. This is so because a tacit term, once found to exist,
is simply blended into the other terms of the contract
and forms an
indistinguishable part of the whole.
13
The reality is that from the outset it was made clear to the former
employees that their right of residence had derived from their

employment agreements and that it terminated when those agreements
were terminated. That is no doubt why, at the commencement of
the
trial, it was recorded that the only issue in dispute was whether the
right to reside in the hostel arose from the employment
agreements.
[22] Once that is accepted there can be no doubt that
the obligation to vacate the hostel on termination of the contracts
of employment
of the former employees was one that was explicitly
embodied in the obligations of the former employees under those
contracts.
The evidence of Mr Oosthuizen makes that clear beyond any
doubt. However, even if it were accepted that the reference in the
letter
was to the written portion of the contracts of employment and
that by ‘explicit’ we should understand ‘express’

to be intended, I do not think that would make a difference. In my
view, on a proper construction of the written portion of the

employment contracts it was indeed an express term that the right to
reside in the hostel was given by the contract and would be

terminated on termination of the contract. It is trite that the terms
of a contract of employment are frequently to be distilled
from more
than one source.
14
They may be found expressly in the contract or letter of employment;
in the terms of a collective agreement;
15
in other documents incorporated therein by reference and in the rules
and policies of the employer, as for example, with a disciplinary
or
grievance procedure.
16
These may stand alone as memorials of parts of the contract of
employment or may be incorporated therein by reference. Tacit terms

may arise from working practices. However, for present purposes I can
confine myself to express terms.
[23] Clause 8 of each employment agreement reads as
follows:
‘
The Employee shall, for the
duration of this employment with the Company, …obey all
reasonable instructions and in all respects
observe the directions
and requirements of the Company.’
Mr Oosthuizen gave evidence on behalf of Sterklewies and
dealt with the right to reside in the hostel. He said that
Sterklewies
had taken over the business in 1996 from an entity called
Vleissentraal and all the employees had re-applied for their jobs, so

that all contracts with Sterklewies dated from this time or later.
17
He said that the company had a clear policy in regard to the right to
reside in the hostel and that was that the rooms were single
quarters
in which employees of the company could reside, free of charge, for
so long as they were employees, but on termination
of employment the
right to reside there ended. He was cross-examined about this
evidence. He said that the policy was embodied
in the rules of the
company and that these rules were clearly conveyed to the employees.
They are written rules that are displayed
on notice boards and are
furnished to employees when they enter into employment. In addition
he gave evidence that he was present
on a number of occasions when
either the former manager or he himself communicated the policy to
the workers orally. It was suggested
to him that exceptions had been
made to this policy but he rejected those suggestions. His evidence
about the policy and rules
of Sterklewies in regard to residence in
the hostel was not challenged. It was put to him at one stage that
the former employees
would testify that it was never a term of their
employment that they would only stay there as long as they were
employed by Sterklewies.
Mr Oosthuizen rejected this suggestion,
relying on the rules and policies of the company, and the former
employees did not give
evidence to support it.
18
[24] There was an express provision in the employment
contracts of the former employees that they would observe the
directions and
requirements of their employer. The rules and policies
published by the company from time to time and displayed on notice
boards
and conveyed to the workers were clearly among those
directions and requirements. The former employees were accordingly
obliged
to observe them and comply with them. That was an express
provision of the written contracts of employment. On the unchallenged

evidence of Mr Oosthuizen those rules included the rules in regard to
residence in the hostel and provided that the right of residence

would terminate on termination of the employment contracts. It was
accordingly an express term of each contract of employment that
the
former employees would vacate the hostel on termination of their
contracts of employment.
[25] Once that conclusion is reached the appeal must
succeed. It is however necessary to make a few comments in relation
to the
judgment in the Land Claims Court. I start with the passages
where the acting judge purported to set out the issues that were not

in dispute. Among those he listed were that the former employees had
been in the employ of Sterklewies since 1980 and had resided
on its
property since 1980. Those statements were factually incorrect and
contrary to the unchallenged evidence of Mr Oosthuizen.
Indeed, it
had been put to the latter that Mr Msimanga and Mr Mqina had
previously been employed by Vleissentraal on a feedlot
in Vrede and
had only moved to the Harrismith feedlot when the one in Vrede was
closed in about 1990. Then the acting judge said
that the three
issues in dispute were whether the employment agreement provided for
vacating of premises on dismissal; whether
the employment agreement
was written or oral and whether Mr Tsotetsi had been dismissed
through a disciplinary procedure. The latter
two were not properly
issues before him. He went on to hold, in the face of the
uncontroverted evidence of Mr Oosthuizen, that
the former employees
could not have known about the company’s rules and said that
there was no evidence that the rules had
been provided to or read to
the former employees. He held that there was no evidence that Mr
Tsotsetsi had been dismissed by a
disciplinary enquiry even though
this was not in issue. Lastly, he said that he was baffled by the
fact that the magistrate had
not referred to the report placed before
the court in terms of s 9(3) of the Act. The short answer to
that was that the report
was inaccurate, entirely unhelpful and not
relied on by the former employees before the magistrate.
[26] It cannot be emphasised too often that courts are
generally speaking bound by the issues that the parties to litigation
have
formulated and it is not open to them to deal with and determine
cases on a different basis. That is particularly the case where
the
court is a court of review of what has transpired in a lower court,
as is the position with the Land Claims Court when exercising
its
jurisdiction under s 19(3) of the Act. As Ngcobo CJ pointed out
in
CUSA v Tao Ying Metal Industries & others
,
19
in the parallel situation of a review by the Labour Court of an
arbitration award by the CCMA, ‘the role of a reviewing court

is limited to deciding issues that are raised in the review
proceedings. It may not, on its own, raise issues that were not
raised
by the party who seeks to review an arbitral award.’ The
only exception is in relation to a pure point of law that properly

arises on the facts and the papers before the reviewing court. The
acting judge in the Land Claims Court disregarded these principles

and in the result erred.
[27] The appeal accordingly succeeds. Some amendment
needs to be made to the magistrate’s order to accommodate the
position
of Mr Tsotetsi, who is married to an employee of Sterklewies
who is entitled to reside in the hostel and is apparently entitled
to
continue to occupy his room together with his wife, but by virtue of
her employment. In my view a suitable declaratory order
in terms of
s 19(1)(
b
)(ii) of the Act should have been issued by the
magistrate in respect of Mr Tsotetsi’s situation. Mr Fischer
SC, appropriately,
did not seek an order for costs against the former
employees. I understood that to relate also to the proceedings in the
magistrates’
court, and in any event do not regard it as
appropriate for there to be an order for costs against the former
employees in that
tribunal. It is a sad sign of the circumstances in
which so many of our fellow citizens find themselves that these adult
men, with
wives and families, should have spent eight years resisting
their eviction from rooms that are either three by two metres or four

by four metres in extent and that lack such basic amenities as
running water and a toilet. To mulct them in costs would not be

right. We were asked by Mr Phalatsi to lay down a general rule in
that regard. However, I do not think it appropriate to try to
do so.
Whilst in general it may not be appropriate in this type of
litigation to make orders for costs against either the erstwhile

employer seeking eviction or the former employees, each case must
turn upon its own facts. An occupier wrongly evicted as a result
of
an order of the Land Claims Court and compelled to seek relief in
this court, for example, should not lightly be deprived of
his or her
costs.
[28] The following order is made:
1 The appeal succeeds.
2 The order of the Land Claims Court is set aside and
the following order substituted for it:
‘
The order of the magistrate is
confirmed save that it is amended in the following respects:
(a) In paragraphs (a) and (b) thereof the words ‘First
and Second’ are inserted before the word ‘Defendants’

them because he said they start working at 7h15 but they are quite
sure they have started at 7h00am.’ There was also a
complaint
that they were not allowed to talk at the disciplinary hearing. The
complaint on the fairness of the dismissal bore
little resemblance
to the actual grounds for the disciplinary action against them.
13
Wilkins
NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at
144B-E.
14
Mark
Freedland,
The Personal Employment
Contract
271 – 276;
Harvey
on Industrial Relations Law and Employment
paras
21 and 22 (loose leaf issue 210); Simon Deakin and Gillian Morris
Labour Law
(5
ed, 2009) 217; André van Niekerk and others
Law@work
(2 ed 2012) 109.
15
See
s 23 of the LRA and particularly s 23(3) thereof.
16
As
in
Denel (Edms) Bpk v Vorster
2004
(4) SA 481
(SCA).
17
Section
197 of the LRA had not then come into force.
18
It
is difficult to see on what basis the employees could have given
such evidence. As Mpati P pointed out in
Mpedi
& others v Swanevelder & another
2004
(4) SA 344
(SCA) para 7 employers do not normally provide
residential facilities on their properties to persons other than
employees and
in some instances their families.
19
CUSA
v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
para 67.

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