Kiepersol Poultry Farm (Pty) Ltd v Phasiya (230/2008) [2009] ZASCA 119; 2010 (3) SA 152 (SCA) ; [2010] 1 All SA 408 (SCA) (25 September 2009)

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Kiepersol Poultry Farm (Pty) Ltd v Phasiya (230/2008) [2009] ZASCA 119; 2010 (3) SA 152 (SCA) ; [2010] 1 All SA 408 (SCA) (25 September 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 230/2008
In the matter between:
KIEPERSOL POULTRY FARM (PTY) LTD APPELLANT
and
GIDEON PHASIYA RESPONDENT
Neutral citation:
Kiepersol
Poultry Farm v Phasiya
(230/2008)
[2009]
ZASCA 119
(25 September 2009)
CORAM: Mpati P, Van Heerden, Jafta, Maya, Snyders
JJA
HEARD: 12 May 2009
DELIVERED: 25 September 2009
SUMMARY
: Land – land
reform – eviction in terms of
Extension of Security of Tenure Act
62 of 1997
– whether occupier still occupies premises/land in terms
of the Act.
ORDER
On appeal from
: Land Claims
Court (Bam JP).
The appeal succeeds. The order of the court below is set
aside and replaced with the following:
‘
1. The respondent is ordered to vacate the house he
currently occupies on the farm Zandspruit by no later than 31 January
2010.
2. Should the respondent fail to vacate the house by due
date, the sheriff is authorised to remove the respondent and his
dependants
from the said house together with all their belongings and
to hand over vacant possession to the appellant.’
JUDGMENT
MPATI P
(Van Heerden JA,
Jafta JA, Maya JA and Snyders JA concurring)
[1] This is an appeal against the judgment of the Land
Claims Court (Bam JP) dismissing the appellant's application for
an
order for the eviction of the respondent from a house on a certain
farm, Zandspruit, in the district of Krugersdorp. The application
was
brought in terms of the
Extension of Security of Tenure Act
>
1
('the Act'). The appeal is with leave of this court.
[2] The appellant, a company with limited liability,
leases the farm Zandspruit from a property holding company, Sojordi
Beleggings
(Edms) Bpk, the owner of the farm. It conducts the
business of poultry farming and processing on Zandspruit. Its policy,
according
to its managing director, is to house its employees on the
land on which it conducts its business. The respondent's father, Mr
Sam Phasiya ('Sam'), was one of the employees of the appellant. He
was the driver of a delivery van and occupied one of the houses
on
Zandspruit with his family. (I shall refer to the house that was
occupied by Sam as 'the premises'.)
[3] It is not in dispute that prior to the year 2004 one
of Sam's three sons, Mr Martin Zolile Phasiya ('Martin'), purchased a
fixed
property and moved out of the premises. It is also not in
dispute that during 2004 Sam was involved in a motor vehicle
accident,
as a result of which he sustained physical injuries for
which he required medical attention. He was not required to drive the
delivery
van again after the accident. He retired on pension in
September 2004.
[4] In the appellant's founding affidavit Mr Jan Hendrik
du Plessis ('Du Plessis'), the managing director of the appellant,
states
that during February 2004 Sam and his wife 'moved out of the
dwelling which they were occupying on the premises [Zandspruit] and

began residing with [their] son Martin in Honeydew'. The other two
sons, the respondent and Mr Lucas Phasiya ('Lucas'), remained
behind
together with the respondent's wife and three minor children. Du
Plessis states further that during the course of 2004 Lucas
and the
respondent were advised that 'they would have to vacate the premises
by the end of January 2005'. It appears that Lucas
then moved out
because, during the course of January 2005, the respondent's employer
(a firm of attorneys) requested that the date
upon which the
respondent was to vacate the premises be extended until 30 April
2005. Du Plessis agreed. When the respondent failed
to vacate the
premises on due date the appellant issued the requisite notices, in
terms of
s 9(2)(d)
3
>
2
of the Act, of his intention to apply for an order to evict the
respondent.
[5] In his answering affidavit the respondent disputes
the allegation that his father left the premises to reside with
Martin. He
states that –
'My father did leave the farm
after the accident but only for a short period, the reason being that
my mother did not have access
to the necessary resources to allow her
to take care of my father. When he left he went to stay with my
brother Martin temporarily
and would return as soon as his medical
condition improved. My father returned to the property after his
condition improved. To
date, he is still resident on the property.'
The respondent states further that Sam 'sometimes visits
either one of my brothers,' and that he (respondent) and his family
therefore
'occupy the farm under my father'. To the respondent's
allegation that Sam 'qualifies as an occupier in terms of
s 8(4)
of [the Act]' and that his rights of residence have neither been
terminated nor relinquished by him, the appellant avers in reply
that
Sam gave up his right of residence during February 2004.
[6] On 31 January 2007 the court a quo granted an order,
by agreement, that evidence be adduced in respect of the respondent's
'special
defence' that he was not occupying the premises in his own
right but under his father, who was still an occupier in terms of
s 8(4)
of the Act. After it had considered the evidence tendered
from both sides, including the evidence of Sam, the court a quo found

that Sam 'never abandoned his homestead at Kiepersol but merely spent
more time at the more comfortable house of his son, Martin,
while
allowing [the respondent] to be keeper of the family home on his
behalf'. The court accordingly dismissed the appellant's
application
for an order of eviction.
[7] An 'occupier' is defined in 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 . . . '.
Section 8(4)
of the Act reads:
'The right of residence of an
occupier who has resided on the land in question or any other land
belonging to the owner for 10 years
and-
(a)
has
reached the age of 60 years; or
(
b
) is
an employee or former employee of the owner or person in charge, and
as a result of ill health, injury or disability is unable
to supply
labour to the owner or person in charge,
may not be terminated unless
that occupier has committed a breach contemplated in
section 10
(1)
(
a
),
(
b
)
or (
c
):
. . . '.
The appellant does not dispute the fact that Sam was an
occupier on the premises, but avers that he gave up his right of
residence
during February 2004 when he allegedly moved out of the
premises to reside with his son, Martin. On the appellant's version
s 8(4)
of the Act does not apply, because Sam's right of
residence was never terminated. It is Sam who abandoned it. And
because the respondent
does not himself claim to be an occupier as
defined in the Act, but rather contends that he occupies the premises
under Sam, the
issue to be decided in this appeal is whether, at the
time the eviction proceedings were commenced, Sam was an occupier in
the
sense that he was still residing on the premises. Counsel for the
appellant conceded in this court that if Sam was still residing
on
the premises at the relevant time, then the appeal must fail.
[8] In
Ex parte Minister of
Native Affairs
3
this court was concerned with the
interpretation of the word 'resides' in
s 10(3)
of Act 38 of
1927.
4
The court said:
'In construing the word
"resides" one must bear in mind what was said by Solomon J
in
Buck v Parker
(1908
TS at p 1104) where the learned Judge said:
"The word 'residence' is
one which is capable of bearing more than one meaning, and the
construction to place upon it in a
particular statute must depend
upon the object and intention of the Act. As was said by Earle CJ, in
Naef v Mutter
(CP p 359), 'Residence has a variety of meanings according to the
statute in which it is used'".'
5
This court has held, recently, that the main purpose of
the Act 'is to regulate the eviction process of vulnerable occupiers
of
land' and that the Act 'generally seeks to protect a designated
class of poor tenants occupying rural and peri-urban land . . .
with
the express or tacit consent of the owner against unfair eviction
from such land'.
6
The term 'residing' in the definition of an 'occupier' in the Act
must thus be construed with this purpose in mind.
[9] In
Mkwanazi v Bivane Bosbou
(Pty) Ltd
7
one of the issues the court was called upon
to determine was the meaning of the term 'reside' in the definition
of 'labour tenant'
in the Land Reform (Labour Tenants) Act 3 of
1996.
8
Gildenhuys J (Moloto J concurring) adopted the meaning ascribed to
the word 'reside'
9
by Baker J in
Barrie NO v Ferris
,
10
viz:
'"[R]eside" means that
a person has his home at the place mentioned. It is his place of
abode, the place where he sleeps
after the work of the day is done .
. .. It does not include one's weekend cottage unless one is residing
there . . .. The essence
of the word is the notion of "permanent
home".'
11
Just as the Act regulates the eviction of vulnerable
occupiers of land, the Land Reform (Labour Tenants) Act regulates the
eviction
of labour tenants.
12
I can find no reason why I should not adopt in this case, as
Gildenhuys J did in
Mkwanazi
,
the meaning ascribed to the word 'reside' by Baker J in
Barrie
NO v Ferris
(supra)
.
There could be no dispute that at least before February 2004 Sam's
permanent home was the premises on Zandspruit. He resided there.
[10] Du Plessis testified that at the beginning of
February 2004 Sam told him that he was no longer staying on the farm
and that
he and his wife had left to live with his son, Martin, in
Honeydew, because it was 'a lot nicer there' than on the farm.
However,
Sam continued to work for the appellant until September 2004
when he was involved in an accident and subsequently went on
retirement.
Thereafter, Du Plessis saw him twice, so he testified,
once when Sam enquired about his pension payout and on the second
occasion
when Sam asked him for a loan when there was a death in his
family. Du Plessis testified further that around February/March 2004

he gave written notice to the respondent that the respondent should
vacate the premises by January 2005. Du Plessis confirmed that
he had
agreed to the request by the respondent's employer for an extension
of the date for vacation of the premises to the end
of April 2005.
The respondent, however, failed to vacate the premises by due date.
During February 2007 and approximately two weeks
before the trial of
this matter, Du Plessis conducted an inspection of the premises.
13
According to Du Plessis, the respondent's wife, who was present,
informed him that she and her husband used the main bedroom while
the
children slept in the smaller room. She also informed him that Sam
did not sleep on the premises but only came to visit 'from
time to
time'.
[11] Mrs Selinah Chunga ('Chunga') is employed by Du
Plessis's mother as a domestic worker. She occupies a house in a
compound close
to the premises. Chunga testified that Sam left the
premises in about September 2004 when his son, Martin, had purchased
a house,
but he continued to work on the farm. In cross-examination
she said that Sam left the farm in February 2004, but moved his
belongings
in September 2004. She did not see him moving his
belongings personally and was informed of this by her children.
[12] The third and last witness for the appellant was Mr
Josias Thilu Mmbodi ('Mmbodi'). His evidence may be summarised as
follows.
He has been employed by the appellant since 1991 and lives
in a compound on Zandspruit. He is employed as a mechanic and also
collects
post, using a company vehicle. Sam worked for the appellant
until September 2005
14
when he was involved in an accident. His duties were to do deliveries
of produce. One morning (he could not remember the date)
Sam informed
them
15
that his son had bought a house for him at Northriding. Normally, Sam
did not work on Saturdays and Mmbodi stood in and performed
his
duties. When Mmbodi knocked off at approximately 13h00 he would
deliver the company vehicle to Sam at Northriding and the latter

would use it to come to work on Mondays. The routine of leaving the
vehicle with Sam on Saturdays lasted until Sam had an accident.
When
it was put to him in cross-examination that Sam would testify that he
had never moved out of Zandspruit and that he merely
occasionally
went to visit his sons, Mmbodi disputed the statement and testified
that at the end of the day's work Sam no longer
went to the premises
and that 'he used to go out, away from the yard'. Mmbodi last saw Sam
in December 2004.
[13] Four witnesses testified for the respondent, namely
Martin, Lucas, Sam and the respondent. As the court below correctly
observed,
their evidence is substantially the same on the question
whether Sam was still residing on the premises at the time of the
institution
of the eviction proceedings. The respondent testified
that he, together with his wife and three children, lives with Sam on
the
premises. He agreed that he and his wife used the main bedroom,
but stated that when Sam was on the premises he (Sam) used the main

bedroom. He maintained that Sam was still fully resident on the
premises. After the accident (in about September 2004) Sam had

stopped working. From that time, Sam would 'typically' stay for a
total of two weeks of every month (about three days per week)
on the
premises, the rest of the month being spent with Martin at his house.
When asked how often Sam was on the premises he answered:
'Well, it
depends, maybe like a week . . . he might be there once or twice a
week.' When his parents were on the premises he and
his wife moved to
the children's room. Under cross-examination the respondent conceded
that after the accident Sam did leave the
premises for a short while
'to stay with my brother'. He maintained, however, that even before
the accident Sam was staying with
Martin for a few days every week,
spending the rest of the week on the premises. According to the
respondent, this pattern had
continued after the accident and his
father's retirement.
[14] The respondent admitted to receiving a notice from
the appellant to vacate the premises. On being asked why he had
approached
his employer to negotiate an extension of time rather than
ask Sam to intervene (especially if Sam was still residing on the
premises),
he said: '. . . there is a time whereby everyone is
confused and then he does not know what to do.' He did not honour the
agreement
to vacate the premises in January 2005, he said, because he
could not just leave his father.
[15] Martin's evidence may be summarised as follows. He
lived on the premises for more than 20 years and moved out during
about
May 2004 when he purchased a three bedroomed house in
Sundowner. His parents used to spend about three nights per week at
his house
from the time he moved into the house. Sam 'took ill' in
about September 2004 when he was involved in an accident, whereafter
he
stayed with Martin for approximately nine weeks. From January 2005
Sam 'rotated' amongst him (Martin), his brother Lucas and the

premises. That arrangement, in terms of which Sam would spend three
days with Martin, two days with Lucas, who by now had his own
house,
and two days on the premises had, according to Martin, already been
in place prior to Sam's accident. It was re-instated
in about January
2005 and continued until Sam suffered a stroke, after which he
remained with Martin for about two months. When
his health improved,
however, Sam reverted to the rotation arrangement. Martin testified
further that before the accident Sam used
to travel between his
(Martin's) house and the farm, on the nights he was staying with
Martin, using the appellant's vehicle. Since
Sam had suffered the
stroke Martin used his own vehicle to convey Sam to and from the
farm. Martin testified that his agreement
with his parents was that
they could stay with him 'for visits', but that they would have to
leave his house once he got married.
His parents had started using
his post office box as their postal address in 2006. This was because
some of the post addressed
to them at the premises had gone astray.
In fact, all the members of his family, even his brother, Lucas,
utilised the post office
box.
[16] Lucas is Sam's eldest son. He lives at Fourways
with his wife and four children in their three bedroomed house. Lucas
testified
that after the accident and after he had suffered a stroke
Sam did not reside permanently on the premises. The three brothers
had
met and decided that Sam and his wife should rotate amongst them,
especially between him and Martin. In terms of that agreement
Sam
would spend three days with Martin and two days with Lucas. In the
past, Sam had already been visiting them as they were 'a
very close
family'. Lucas testified that Sam suffered a stroke 'after he got
news that he [was] not allowed to stay on [the premises]'.
According
to Lucas Sam changed his postal address from that of the appellant to
Martin's postal address because he 'had been told
to move out . . .
'.
[17] Sam testified that he worked for the appellant for
28 years and stopped after he had had an accident in 2004. He was
told by
Du Plessis, he said, that he should not return to work. When
asked where he resided 'currently' he responded as follows:
'I stay with my kids . . .. I
stay three days [with] Martin, two days [with] Lucas and two days
[with] Gideon per week.'
He later said that he spent 'most of my time at Martin's
place because I am not well'. Sam also testified that the respondent
'stays
at my place at Kiepersol . . . where they removed me', but
that he had not left the premises. He said that while he was still
employed
he 'was just visiting Martin'. He confirmed that Mmbodi's
testimony about his delivering the company vehicle to him at Martin's

house was correct but he denied that this occurred every Saturday. He
spent more time at Martin's house because Martin had a vehicle
and a
telephone in the house. He would call Martin when he took ill. Unlike
on the premises there was also a bath in Martin’s
house. He would
not be able to stay with Martin forever, however, as Martin would one
day get married. Sam denied that he had changed
his postal address
and stated that his post was still being sent to the appellant’s
address.
[18] The court a quo appears to have rejected Du
Plessis’s testimony that Sam had told him in February 2004 that he
was staying
with Martin and no longer on the premises. The court
reasoned thus:
‘
There is undisputed evidence
from both Mr Sam Phasiya and from his son, Martin, that Martin only
took occupation of his house during
May 2004 and so Sam Phasiya could
not have [had] prior experience in February that it was “a lot
nicer” there than staying
on the farm . . . It is inconceivable
that Sam Phasiya could have evinced and communicated a resolve to
permanently abandon his
residence on the farm during February 2004
even while still employed on the farm and had not yet been securely
anchored in accommodation
elsewhere.’
I do not share this view. It was never put to Du Plessis
that his evidence on this issue was untrue. What was indeed put to
him
was the following:
‘
. . . I need to put to you
what my instructions are and we will call him Sam for want of a
better term, we’ll say that he never
said to you that he was
vacating the premises in February 2004, he said that his son had
purchased a new house and that he would
occasionally be staying there
and occasionally be staying on the farm . . .'.
Du Plessis’s further evidence that he gave notice to
the respondent in or about February/March 2004 to vacate the premises
was
not seriously challenged either. Although he was unable to pin a
date to it, the respondent admitted to having received written
notice
that he should vacate the premises. In my view, the court a quo’s
rejection of Du Plessis’s evidence on this issue was
unjustified.
[19] There are other aspects of the case that, in my
view, tend to strengthen the appellant’s version. First, Du
Plessis’s testimony
that the respondent’s wife had informed him
that Sam did not sleep on the premises but ‘only comes and visits
from time to
time’ was not challenged. When he was confronted with
this evidence the respondent merely responded: ‘I do not know about
it.’
Second, it is difficult to understand why, if Sam still
resided on the premises, the respondent did not object to the notice
to
vacate the premises and tell Du Plessis that Sam, and not he, was
the occupier. He testified that he conveyed this fact to his employer

when handing the written notice to him. Yet he instructed his
employer, an attorney, to request an extension of time rather than
to
assert Sam’s right of residence as an occupier. When questioned why
he did not ask Sam to intervene by talking to Du Plessis
the
respondent replied that he had been confused. In my view, the
respondent’s conduct of requesting an extension of time within

which to vacate the premises, evinces knowledge on his part that Sam
was no longer residing on the premises. Fourth, there is
contradictory evidence on the question of Sam’s alleged rotation
amongst his sons.
[20] In his evidence-in-chief the respondent testified
that the rotation arrangement had been in place since September 2004.
Under
cross-examination he stated that the alleged rotation commenced
before Sam’s accident. Martin’s version on this point was that

after the accident Sam ‘resided’ at his (Martin’s) house and
that from January 2005 ‘he would basically rotate amongst
myself,
my brother [Lucas] and the farm’. However, Martin also testified
under cross-examination that the rotation arrangement
had been put in
place prior to Sam's accident in September 2004. Lucas was unclear on
when Sam’s rotation had commenced. He testified
that at some stage
after the accident Du Plessis told Sam that the latter was ‘not
allowed to stay on the farm’. Thereafter
Sam suffered a stroke and
they decided that they ‘will keep him more at our place’. Lucas
also testified that before Du Plessis
had informed Sam that he was
not allowed on the farm Sam had already begun to rotate. According to
Sam, however, the rotation commenced
when he took ill, ie when or
after he had had the accident. In my view, these contradictions
cannot be disregarded, particularly
when regard is had to the fact
that the respondent makes no mention whatsoever in his answering
affidavit of Sam’s alleged rotation
amongst his sons.
[21] The court a quo found, despite Chunga's evidence to
the contrary – which turned out to be hearsay – that Sam had not
removed
his furniture from the premises. I agree with this finding.
But the court also held that an important indicator of an intention

‘to abandon one’s residence permanently is to move lock stock and
barrel and take away one’s furniture and clothing’. While
it is
so that the furniture and clothing may be an important indicator that
a person has not left or changed his residence, that
will not
necessarily be a decisive factor. In the present matter Martin’s
house and that of Lucas were fully furnished. It would
thus not have
been necessary for Sam to take his furniture with him. After all, his
other son, the respondent, who, on his own
version, had no furniture
of his own, remained on the premises. Had Sam left with the
furniture, the respondent would have been
left in an empty house. In
these circumstances, not much weight, if any, can be attached to the
fact that Sam had left his furniture
on the premises.
[22] Other factors considered by the court a quo in
arriving at its conclusion that Sam ‘is still the occupier’ of
the premises
were, according to it, ‘the ample and undisputed
evidence that the farmhouse and life itself was always an important
focal point
in the life of Sam Phasiya even after February 2004 and
that he maintained contact with his son [the respondent]', and that
Sam
buried his brother on the farm and still attended church services
at a neighbouring church. It is manifest that Sam at all times
must
have held the view that he was entitled to lay claim to the premises.
This is evidenced by his leaving the respondent on the
premises and
the contact that he maintained with him. But, to repeat what was said
in
Barrie v Ferris NO
16
the
essence
of the word ‘reside’ is the notion of ‘permanent home’. As
indicated, Du Plessis’s evidence that the respondent’s
wife
informed him, shortly before the trial, that Sam did not sleep on the
premises and only visited from time to time was not
disputed. Failure
on the part of the respondent to challenge this evidence, taken
together with his failure to object to Du Plessis’s
notice to him
to vacate the premises and his failure to even inform Sam, on whose
behalf he was allegedly keeping the premises,
about the notice – he
testified to this effect – in my view strengthens the appellant's
version that Sam had ceased to reside
at the premises prior to his
accident and retirement in September 2004. And above all, the court a
quo found Du Plessis to be a
credible witness, correctly so, in my
view. Mr Mmbodi’s testimony that, already before the accident (in
September 2004), Sam
no longer slept at the premises but left the
farm after work, is corroboration for Du Plessis’s version.
[23] I am accordingly satisfied that on the evidence
before the court a quo Sam was no longer an occupier of the premises
as envisaged
in the Act at the time the eviction proceedings were
instituted. In coming to this conclusion I have placed minimal value
on Chunga's
evidence. This is so because according to her Sam left
the premises in or about September 2004. Even on the respondent’s
version
the so-called rotation by Sam commenced before the accident,
which occurred in September 2004. There are other unsatisfactory
aspects
in her evidence which I find unnecessary to enumerate here.
[24] The conclusion I have reached does not dispose of
the matter. The appellant instituted the eviction proceedings ‘in
terms
of [the Act]’. According to the appellant, therefore, the
respondent is an occupier of the premises. It is not in dispute that

during the first half of 2004 the respondent was given notice that he
should vacate the premises in January 2005. In January 2005
the
appellant granted to the respondent an extension of time until 30
April 2005, by which date the respondent was required to
vacate the
premises. The respondent was therefore occupying the premises with
the appellant’s consent. There was no evidence
that the respondent
had an income in excess of R5 000 per month, which would have
taken him out of the definition of ‘occupier’.
17
In a report filed with this court in terms of s 9(3) of the Act,
the project officer in the office of the Acting Provincial
Chief
Director of the Department of Rural Development and Land Reform
records that the respondent and his wife rely on income ‘from
their
low paying jobs’. In my view, it can safely be assumed that the
respondent’s income is not in excess of R5 000 per
month. He
was therefore an occupier as defined in the Act at the time the
eviction proceedings were instituted.
[25] In terms of s 8(1) of the Act an occupier's
right of residence may be terminated on any lawful ground,
‘
provided that such
termination is just and equitable’.
In considering whether such termination is just and
equitable, the subsection requires that regard be had
‘
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.’
This court has held that the question whether or not the
termination of an occupier’s right of residence is just and
equitable
must be considered from the perspective of both the owner
(or person in charge of the land) and the occupier.
18
[26] The appellant gave notice to the respondent that
his occupancy of the premises would be terminated in January 2005.
The period
of occupancy was extended by agreement to 30 April 2005.
There was no suggestion, and there could not have been any in my
view,
of any unfairness in the agreement. As to the provisions of
s 8(1)(b) and (c), the appellant's policy is to house its
employees
on Zandspruit. The respondent is not, and never was, an
employee of the appellant. He occupies the premises in which the
appellant
wishes to house one of its employees. There will, in my
view, almost always be hardship experienced by a person who has to
vacate
land as a result of his/her right of residence having been
terminated. But that hardship has to be balanced against the hardship

suffered by the owner or person in charge of the land. The respondent
occupies the premises without paying any rental while the
appellant
is unable to house one of its employees in terms of its policy. In my
view, this is a clear case where the interests
of the appellant
should take precedence. The provisions of s 8(1)(d) are not
relevant as there could be no expectation of
the renewal of the
agreement. The procedure followed by the appellant in terminating the
respondent’s right of residence cannot
be faulted (s 8(1)(e)).
Having considered all the relevant factors I am persuaded that the
termination of the respondent’s
right of residence on the premises
is just and equitable.
[27] The provisions of s 9(2)(a) and (d) have been
met:
19
The respondent’s right of residence has been terminated in terms of
s 8 and the requisite notices were given (s 9(2)(d)).
20
The respondent, as occupier, has not vacated the premises
(s 9(2)(b)). What remains for an eviction order to be issued is

compliance with the conditions for an order of eviction in terms of
s 11.
21
Section 9(3) reads:
‘
For the purposes of
subsection (2)(c), the Court must request a probation officer
contemplated in section 1 of the Probation Services
Act, 1991 (Act
116 of 1991), or an officer of the department or any other officer in
the employment of the State, as may be determined
by the Minister, to
submit a report within a reasonable period-
(a)
on
the availability of suitable alternative accommodation to the
occupier;
(b)
indicating
how an eviction will affect the constitutional rights of any affected
person, including the rights of the children,
if any, to education;
(c)
pointing
out any undue hardships which an eviction would cause the occupier;
and
(d)
on
any other matter as may be prescribed.
I have mentioned above (para 24) that the report
envisaged in s 9(3) (I shall refer to it as ‘s 9(3)
report’) has
been made available to us, albeit after the matter was
argued. I may mention that only the appellant was legally represented
when
this appeal was argued in this court. The respondent was not
represented at all and no legal submissions were filed on his behalf.

But after arrangements were made by the relevant officer for an
interview with the respondent for purposes of the s 9(3) report,

a request was lodged by Mphilo Attorneys on behalf of the respondent,
to allow them to present argument before us, alternatively
to file
written submissions. The respondent’s lack of representation on the
day of the appeal was ascribed to a lack of funds.
We allowed Mphilo
Attorneys to file written submissions and granted an opportunity to
the appellant’s counsel to respond to them.
[28] In the s 9(3) report the officer concerned has
recorded that no alternative suitable accommodation is readily
available
for the respondent, that the respondent and his mother have
unsuccessfully submitted numerous applications for ‘RDP’ houses

and that it is highly unlikely that they would be given preference in
the allocation of such houses. The report is silent, however,
on
whether or not the respondent is able to rent accommodation, or
whether his brothers, Martin and Lucas, whom we know each owns
a
three bedroomed house, are unable to accommodate him whilst he is
searching for suitable alternative accommodation. It is also
stated
in the report that two of the respondent’s children attend school
‘in and around the subject property’ and that an
eviction order
against the respondent ‘will have a negative impact’ on their
education. The report highlights the difficulty
which the respondent
is experiencing in finding alternative accommodation as an undue
hardship which an order of eviction would
bring about.
[29] It was an express and fair term of the consent
granted to the respondent to reside on the premises that the consent
would be
terminated upon a fixed date, viz 30 April 2005. An order
for his eviction may therefore be granted if it is just and equitable

to do so (s 11(1) of the Act). In deciding whether it is just
and equitable to grant an order of eviction s 11(3) requires

that regard be had to (a) the period that the respondent has resided
on the premises; (b) the fairness of the terms of any agreement

between the parties; (c) whether suitable alternative accommodation
is available to the respondent; (d) the reason for the proposed

eviction; and (e) the balance of the interests of the appellant, the
respondent and the remaining occupiers of the land. I have
already
dealt with (b), (d) and (e) above (para 26) when I considered the
provisions of s 8(1). The respondent has lived on
the premises
since childhood, but only became an occupier from the first half of
2004. He is relatively young at 40 years – he
was born on 21 May
1969 – and should be able to adjust relatively easily to a new
environment.
[30] In my view, it will be just and equitable, in the
circumstances of this case, to grant an order of eviction. I
consider, though,
that the respondent should be afforded sufficient
time within which to secure suitable alternative accommodation. In
deciding what
constitutes sufficient time I also take into account
the fact that two of the respondent’s children attend school in, or
close
to, Zandspruit. Their schooling, at least for the rest of the
current academic year, should not be disrupted.
[31] Before the s 9(3) report was delivered to this
court, the appellant’s attorneys filed a copy of a death
certificate
evidencing Sam’s demise on 27 March 2007. In their
written submissions Mphilo Attorneys argued on behalf of the
respondent, that
the court a quo erred in not enquiring
mero
motu
into the question whether or not the
respondent’s mother was an occupier in her own right. It was
therefore urged upon us that
should it be found that the appellant
was entitled to the relief it seeks, the matter be remitted to the
court a quo for the hearing
of evidence on her right of residence.
[32] The respondent’s mother was not and is not a
party in this matter and her right of residence was never at issue
before the
court a quo. The suggestion that the matter be remitted to
it for the hearing of further evidence has no foundation.
[33] In his heads of argument counsel for the appellant
also sought a costs order against the respondent. Before us, however,
he
made no submissions supporting such an order, although he did not
go so far as to abandon it. In my view, this is not a case where
the
respondent should be burdened with a costs order.
[34] The appeal succeeds. The order of the court below
is set aside and replaced with the following:
‘
1. The respondent is ordered to vacate the house he
currently occupies on the farm Zandspruit by no later than 31 January
2010.
2. Should the respondent fail to vacate the house by due
date, the sheriff is authorised to remove the respondent and his
dependants
from the said house together with all their belongings and
to hand over vacant possession to the appellant.’
………………………
.
L MPATI
JUDGE OF APPEAL
Counsel
for Appellant : R Beaton
Instructed
by : Erasmus Scheepers
PRETORIA
Correspondent : Honey
Attorneys
BLOEMFONTEIN
Counsel
for Respondent : None
Instructed
by : Gideon Phasiya (Respondent) c/o Assenmacher Attorneys
BRYANSTON
Correspondent : None
1
62 of 1997.
2
'Section
9(2) A court may make an order for the eviction of an occupier if-
(
a
) the
occupier's right of residence has been terminated in terms of
section 8;
(
b
) the
occupier has not vacated the land within the period of notice given
by the owner or person in charge;
(
c
) the
conditions for an order for eviction in terms of section 10 or 11
have been complied with; and
(
d
) the
owner or person in charge has, after the termination of the right of
residence, given-
(i) the
occupier;
(ii) the municipality in whose area of jurisdiction the
land in question is situated; and
(iii) the head of the relevant provincial office of the
Department of Land Affairs, for information purposes,
not less than two calendar months' written notice of
the intention to obtain an order for eviction, which notice shall
contain
the prescribed particulars and set out the grounds on which
the eviction is based: Provided that if a notice of application to
a
court has, after the termination of the right of residence, been
given to the occupier, the municipality and the head of the
relevant
provincial office of the Department of Land Affairs not less than
two months before the date of the commencement of
the hearing of the
application, this paragraph shall be deemed to have been complied
with.'
3
1941 AD 53.
4
The notorious Black Administration Act.
5
At 58.
6
Per
Maya JA in
Lebowa Platinum Mines Ltd v Viljoen
2009
(3) SA 511
(SCA) para 9. See also
Hallé
v Downs
2001 (4) SA 913
(LCC) para 12.
7
1999 (1) SA 765 (LCC).
8
The relevant part of the definition reads:
'Labour tenant' means a person-
(a) who is residing
or has the right to reside on a farm; . . .'.
9
At para 8.
10
1987 (2) SA 709
(C).
11
Ibid at 714F.
12
See
Ndlovu v Ngcobo
;
Bekker v Jika
2003 (1) SA 113
(SCA) para 21.
13
The house consists of three rooms, a large room
used as a combined kitchen and sitting-room, a main bedroom, a
smaller room attached
to the kitchen/sitting-room and a bathroom
area.
14
The year 2005 is obviously incorrect as it seems
common cause that it was 2004. The witness conceded that he did not
recall when
asked if he was certain about the year.
15
The witness uses the word 'us', supposedly
referring to himself and other workers.
16
Above, n 9.
17
In terms of s 1(1)(c) of the Act a person
who has an income in excess of R5 000 per month is excluded
from the definition
of ‘occupier’.
18
Land en Landbouontwikkelingsbank van
Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) para 12.
19
Section 9(2) is quoted above at n 2.
20
Referred to above para [4].
21
Section 10 is of no relevance since the
respondent became an occupier after 4 February 1997.