About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 129
|
|
Nimble Investments (Pty) Ltd v Johanna Malan and Others (556/2020) [2021] ZASCA 129; [2021] 4 All SA 672 (SCA); 2022 (4) SA 554 (SCA) (30 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 556/2020
In
the matter between:
NIMBLE
INVESTMENTS (PTY) LTD
(FORMERLY KNOWN AS
TADVEST
INDUSTRIAL
(PTY) LTD AND OLD
ABLAND
(PTY)
LTD)
APPELLANT
and
JOHANNA (ELSIE)
MALAN
FIRST
RESPONDENT
DOROTHY
MALAN
SECOND
RESPONDENT
CHARMAINE
MALAN
THIRD
RESPONDENT
MOSES
MALAN
FOURTH
RESPONDENT
JACOBUS
MALAN
FIFTH
RESPONDENT
LIZA
PLAATJIES
SIXTH
RESPONDENT
REDEWAAN
BOTHA
SEVENTH
RESPONDENT
ASHLEY
MALAN
EIGHTH
RESPONDENT
THOSE PERSONS
UNLAWFULLY OCCUPYING
COTTAGE NO. 5,
TOPSHELL PARK BADEN
POWELL ROAD,
LYNEDODOCH, STELLENBOSCH,
WITH OR UNDER, FIRST
TO EIGHT RESPONDENTS
NINTH
RESPONDENT
STELLEBOSCH
MUNICIPALITY
TENTH
RESPONDENT
DEPARTMENT OF RURAL
DEVELOPMENT
AND LAND
REFORM
ELEVENTH
RESPONDENT
Neutral
citation:
Nimble
Investments (Pty) Ltd v Johanna Malan and Others
(556/2020)
[2021] ZASCA 129
(30 September 2021)
Coram:
DAMBUZA,
SCHIPPERS AND MBATHA JJA AND CARELSE and EKSTEEN AJJA
Heard:
14
May 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 30 September 2021.
Summary:
Land
– land reform – Extension of Security of Tenure Act 62 of
1997 (ESTA) – whether eviction order just and equitable
–
fundamental breach of relationship between occupier and owner under
s 10(1)
(c)
– occupier unlawfully removing building
materials and erecting illegal structure on land – fundamental
breach of relationship
justifying eviction – opportunity for
representations under s 8(1)
(e)
of ESTA – not
required in the circumstances – appeal upheld.
ORDER
On
appeal from:
Land Claims Court of South
Africa, Randburg (Ncube AJ sitting as court of first instance):
1
The
appeal succeeds.
2
The
order of the Land Claims Court is set aside and replaced with the
following order:
‘
(a)
An eviction order is granted against the first to eighth respondents
and all those occupying the farm known as Topshell
Park in
Stellenbosch, Western Cape (the farm) under them.
(b) The
first to eighth respondents and all those occupying the farm under
them must vacate the farm on or before
31 March 2022.
(c)
Should the respondents and all those occupying the farm under them
fail to vacate it on or before 31 March
2022, the sheriff of the
court is authorised to evict them from the farm by 14 April 2022.
(d) The
tenth respondent is ordered to provide emergency housing of a
dignified nature with access to services
(which may be communal) to
the first to eighth respondents and all those occupying the farm
under them, on or before 31 March 2022.
(e)
There is no order as to costs.’
JUDGMENT
Carelse
AJA (Mbatha JA concurring)
[1]
This
is an appeal against a judgment and order of the Land Claims Court
(LCC) which on automatic review under s 19(3)
[1]
of the Extension of Security of Tenure Act 62 of 1997 (ESTA) set
aside an eviction order granted by the magistrate, Stellenbosch
for
the eviction of the first to ninth respondents.
The
appellant, Nimble Investments (Pty) Ltd is the registered owner of
the farm known as Topshell Park, Portion 128 of the farm
Welmoed
Estate, No 468 (the farm), in the district of Stellenbosch, in the
Western Cape
.
The
appeal is with the leave of the LCC (Ncube AJ).
Background
facts
[2]
At
the outset the appellant submits that the appeal before this Court
turns on whether there was compliance with s 8(1
)(e)
of ESTA and if so, whether there was a fundamental breach of the
relationship between the appellant and the first respondent in
term
of s 10(1)
(c)
of ESTA. The facts relevant to the determination of the issues are
largely common cause and arise mainly from the events that took
place
on 28 November 2016.
[3]
The
first respondent and her husband, the late Mr Malan
(
the
deceased) arrived on the farm in 1974. Mr Malan was employed on the
farm until his death, on 4 October 2005. He was 61 years
old at the
time of his death. In terms of his employment contract the deceased
was given permission by Mr Le Roux, the previous
owner of the farm to
occupy cottage 1 on the farm. The second, third, fourth and fifth
respondents are the adult children of the
first respondent. The sixth
respondent is the daughter-in-law of the first respondent. The
seventh respondent and the eighth respondent
respectively, are the
minor and adult grandsons of the first respondent. On 25 May 2006,
the previous owner launched eviction proceedings
against the
respondents. In 2006, assisted by the Stellenbosch University Law
Clinic, the first respondent entered into a lease
agreement with the
previous owner of the farm in terms of which she would lease cottage
1 at a monthly rental of R500 which settled
the eviction application.
At the same time, she demanded that the electricity be restored to
cottage 1. The first to ninth respondents
lived together in cottage
1. In April 2008, the appellant bought the farm and took over the
lease agreement from the previous owner.
[4]
Initially
when the appellant first purchased the farm in 2008, it wanted to
convert the farm from an agricultural farm to an Agri-Park
and it was
conditional for rezoning purposes that the area where cottage 1 was
located be vacated, if the municipality was to give
approval. Due to
the extension of the Baden Powell Highway in 2012, the appellant
required the land, on which cottage 1 was located,
to relocate the
business of its long-term tenant Topshell Park (Edms) Bpk in order to
meet its obligations. The purpose for the
relocation was to
facilitate the expropriation process. During 2012 and 2013 there were
negotiations with the first respondent
to vacate the farm, during
which the first respondent was represented by the Stellenbosch law
Clinic and that the negotiations
came to naught.
[5]
On
30 June 2016, a meeting was held between the first respondent and the
appellant’s attorneys. At this meeting, and at a
further
meeting held on 11 August 2016, the first respondent agreed to
relocate to cottage 5. The first respondent was not legally
represented at these two meetings. The appellant launched a
relocation application in terms of s 8(7)
[2]
and s 19(1)
(b)
(i)
[3]
of ESTA which was heard on an unopposed basis. The first to ninth
respondents were ordered to vacate cottage 1 and to take up
occupation of cottage 5.
[6]
On
28 November 2016, the first respondent and her family moved from
cottage 1 to cottage 5. During the relocation process the fourth
respondent (the son of the first respondent) and some unidentified
members of the first respondent’s household removed the
roof
tiles, roof sheets and trusses (building material) from cottage 1. In
the presence of police officers and the first respondent,
Mr Van der
Merwe – the site manager and director of the farm, told the
members of the first respondent’s family that
they were not
entitled to do so. They refused to stop. It is not in dispute that
the first respondent knowingly permitted an illegal
structure to be
built with the appellant’s building material next to cottage 5,
without the consent of the appellant, and
further that the first
respondent swore and shouted at the farm manager that cottage 1
belonged to her and that she could do as
she wanted with the building
material.
[7]
The
fourth respondent who lived in cottage 5 was the only respondent that
was identified when the events of 28 November 2016 occurred
and thus
made common cause with the first respondent’s actions. On 18
January 2017, the appellant wrote to the first respondent
demanding
the return of the building material and told her that if she did not
remedy the breach by demolishing the illegal structures
and return
the building material by 1 February 2017, the appellant would launch
eviction proceedings against her. The first respondent
refused to
return the building material and to vacate cottage 5. On 1 February
2017, the first to fifth respondents received notices
to vacate
cottage 5 and were told that their right to reside was terminated on
the ground that the first respondent committed a
fundamental breach
of trust as contemplated in s 10(1
)(c)
of ESTA, as a result of her misconduct
arising out of the events of 28 November 2016. The first respondent
was given one calendar
months’ notice to vacate, on or before
28 February 2017. On 28 April 2017, the appellant launched an
application for the
eviction of the respondents. At the launch of the
application the first respondent was 68 years’ old.
[8]
In
both the appellant’s heads of argument and in its application
for leave to appeal, the appellant concedes that the first
respondent
was not invited to make representations before her right to reside
was terminated. I imagine that the same applies to
the other
respondents who reside in cottage 5. It is common cause that the
first respondent was not afforded an effective opportunity
to make
representations before her right of residence was terminated as
contemplated in terms of s 8(1)
(e)
of ESTA.
[9]
On
28 April 2017, the appellant applied for the eviction from the farm
of the first to ninth respondents. The application was opposed
by the
respondents. The tenth respondent filed a report. There is no
indication in the record if the tenth and eleventh respondents
opposed the application. After considering the affidavits and the
various reports and the hearing of oral evidence on 23 September
2019, the Stellenbosch Magistrate’s Court, granted an eviction
order against the first to ninth respondents.
[10]
The
eviction order came before the LCC on automatic review in terms of
s
19(3)
of ESTA,
[4]
Ncube AJ, after
considering the matter, and in a written judgment dated 7 November
2019, found that the first respondent was a
long-term occupier under
s 8(4)
[5]
of ESTA and stated
that:
‘
.
. . the Applicant is basing the eviction on section 10(1)
(c)
.
In terms of that section, the right of residence of Mrs. Malan may be
terminated if she has committed such a fundamental breach
of the
relationship between her and the owner or person in charge that it is
not practically possible to remedy it, either at all
or in a manner
which could reasonably restore the relationship.
The Applicant contends
that the removal of building material from cottage No 1 constitutes a
fundamental breach of relationship
and it is not practically possible
to restore such relationship. I do not agree. The Applicant has the
option of claiming compensation
for his building material if he so
wishes. The other distinguishing feature in this case is that it does
not appear on the papers
that Mrs. Malan was given the opportunity to
make representations – notices of termination of right of
residence did not
draw her attention to the fact that she can make
representations in terms of section 8 (1)
(e)
of the Act. Under
these circumstances I am unable to confirm the eviction.’ (My
emphasis.)
[11]
A
long-term occupier is a protected class of occupiers under ESTA. The
appellant accepts that the first respondent is a long-term
occupier
[6]
. The first
respondent was an occupier on the land on 4 February 1997 and her
eviction is governed by s 10 of ESTA.
[7]
ESTA is regarded as social legislation, intended to regulate the
eviction of vulnerable occupiers under certain conditions and
circumstances, at the same time recognising the rights of landowners
to seek eviction orders under certain circumstances. The second
to
ninth respondents’ right of residence was terminated but
neither the Stellenbosch Magistrate’s Court nor the LCC
considered the right of residence of the second to ninth respondents.
They may well be occupiers in their own right. The appellant
did not
allege that any of the other respondents were invited to make
representations on why their right of residence should not
be
terminated.
[12]
Against
this background two main issues arise in this appeal. The first is
whether the termination of the right of residence was
just and
equitable both in substance and in procedure.
[8]
The second is, if the termination was just and equitable, would the
eviction be just and equitable? ESTA envisages a two-stage
eviction
procedure: first, a notice of termination of the right of residence
in terms of s 8, and second the notice of eviction
in terms of s
9(2)
(d)
.
[9]
If it is found that the termination of the right of residence was not
just and equitable due to non-compliance with s 8(1)
(e)
then there is no need to determine the second issue. Eviction
proceedings can only commence after the right of residence is
terminated.
[10]
For the
purposes of this appeal the basis upon which the appellant terminated
the first respondent’s right of residence was
on the ground
that the first respondent committed a fundamental breach of trust as
contemplated in s 10(1
)(c)
of
ESTA.
[13]
I
will now proceed to consider whether the termination of the right of
residence was just and equitable, both procedurally and in
substance.
Section 8(1) of ESTA provides:
‘
Termination
of right of residence
–
(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
.’
(My
emphasis.)
[14]
There
are four requirements which must be met in order for an eviction
application to be granted under ESTA. These grounds are located
in s
9(2) of ESTA. The first is whether the respondents right of residence
had been terminated in accordance with s 8; second whether
the
respondents have vacated the farm within the one calendar month as
prescribed; third whether the conditions under ss 10 or
11 were
complied with; and fourth whether the requisite two months’
written notice of the appellant’s intention to
obtain an
eviction order had been given to the respondents, the relevant
municipality and the head of the relevant provincial office
of the
Department of Rural Development and Land Reform.
[11]
The two month’s written notice is subject to a proviso which,
if applicable will render the notice unnecessary.
[15]
In
determining whether the termination was just and equitable ‘all
relevant factors’ in particular, the criteria set
out under s
8(1)
(a)
to
(e)
must
be considered.
In
Snyders
and Others v De Jager and Others
[2016]
ZACC 55
;
2017 (3) SA 545
(CC) para 56, the Constitutional Court held
that:
‘
Section
8(1) makes it clear that the termination of the right of residence
must be just and equitable both at a substantive level
as well as at
a procedural level. The requirement for the substantive fairness of
the termination is captured by the introductory
part that requires
the termination of a right of residence to be just and equitable. The
requirement for procedural fairness is
captured in section 8(1)
(e)
.’
The
appellant accepts that what is required for procedural fairness as
contemplated in subparagraph
(e)
is
set out in
Snyders
.
The Constitutional Court held at paras 73 and 75 as follows:
‘
In
any event, even if it were to be accepted that Ms De Jager terminated
Mr Snyders' right of residence, she has failed to
show, as is
required by s 8(1) of ESTA, that there was a lawful ground for
that termination and that, in addition, the termination
was just and
equitable. At best for Ms De Jager, she purported to show no more
than that there was a lawful ground for the termination
of the right
of residence. She did not go beyond that and place before the
magistrates' court evidence that showed that the termination
of Mr
Snyders' right of residence was just and equitable.
. .
.
Counsel
for the Snyders family also contended that the Magistrate’s
Court should not have issued an eviction order because
the Snyders
family had not been afforded any procedural fairness by way of an
opportunity to be heard before they were required
to vacate the
property. It is common cause that the Snyders family were never
invited to make representations to Ms de Jager on
why they should not
be required to vacate the house before they were actually required to
vacate it. In my view, the submission
by counsel for the Snyders
family has merit. ESTA requires the termination of the right of
residence to also comply with the requirement
of procedural fairness
to enable this person to make representations why his or her right of
residence should not be terminated.
This is reflected in section
8(1)
(e)
of
ESTA. A failure to afford a person that right will mean that
there was no compliance with this requirement of ESTA. This
would render the purported termination of the right of residence
unlawful and invalid. It would also mean that there is no compliance
with the requirement of ESTA that the eviction must be just and
equitable.
’
(My emphasis.)
[16]
To
determine whether the termination is just and equitable, a
consideration of all relevant factors and the specific criteria set
out under subparagraphs
(a)
to
(e)
[12]
is required. Subparagraph
(a)
is not applicable because the reasons given for seeking the eviction
of the respondents is not founded on ‘any agreement,
provision
of an agreement, or provision of law’. In light of my findings
in respect of subparagraph
(e)
,
I express no view on subparagraphs
(b),
(c)
and
(d).
[17]
According
to
Snyders
,
a mere failure to comply with the procedural fairness that is
required by subparagraph
(e)
would
render the purported termination of the right of residence unlawful
and invalid.
[18]
The
appellant conceded that after the events of 28 November 2016 and
prior to the termination of the right of residence of the first
to
ninth respondents there were no discussions and negotiations between
the appellant and the first respondent. The first to ninth
respondents were not legally represented before their right to reside
was terminated. To avoid the consequences of
Snyders
,
the appellant submitted that the first respondent had adequate
opportunity before her occupation was terminated and even after,
but
prior to being required to vacate, to approach the appellant.
[19]
The
appellant relies on the decision in
Le
Roux NO and Another v Louw and Another
[2017]
ZALCC 10
paras 91-93. In that case the LCC referred to
Snyders
and made the following remarks:
‘
These
comments must be read in the context of the particular factual
situation in
Snyders
.
Section 8(1)
(e)
does not contemplate that it will be appropriate in every case that
an opportunity be given to make representations before the
decision
to terminate the right of residence. This is clear from the wording
of section 8 (1)
(e)
which reads as follows: “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.”
In our view, in
circumstances where, unlike in
Snyders
, the right of residence
did derive solely from the contract of employment, procedural
fairness in relation to the possible loss
of the right of residence
will have been a natural consequence of the procedural fairness
afforded in the process of terminating
the contract in accordance
with provisions of the Labour Relations Act as envisaged in section
8(2) of ESTA. For that reason, it
was not necessary for the third
appellant to have afforded Louw a distinct and separate opportunity
to make representations before
the decision was made to terminate the
right of residence. This appears to us to be one of the situations
contemplated in section
8 (1)
(e)
where the words “or
not” and “should have been” apply.
Even if we are wrong in
stating that as a general proposition, we are satisfied that in this
particular case, it was not necessary
to afford Louw a distinct and
separate opportunity to make representations before his right of
residence was terminated, as contemplated
in section 8 (1)
(e)
.
Procedural fairness was afforded through the disciplinary
procedures followed in relation to Louw’s employment and its
eventual
termination
. . . if he had any compelling reason why
the third appellant should not terminate his right of residence,
notwithstanding termination
of his employment, it was up to him to
raise it at the disciplinary enquiry.” (My emphasis.)
In the case before this
Court, there was no enquiry or procedure during which the first
respondent (or any of the other respondents
who lived on the farm)
could have given reasons why their right of residence should not be
terminated.
[20] In
Timothy v Sibanyoni and Others
[2020] ZALCC 8
para 56, the court held:
‘
One
of the factors which the court is expressly required to take into
account when considering this question is the fairness of
the
procedure followed by the owner in terminating a right of residence.
This is required by 10(1)
(e)
,
which in its terms accepts that the occupier need not necessarily be
afforded an opportunity to make representations. The wording
of the
subsection is clear on this point: it provides that when considering
the fairness of the procedure followed by the owner
a factor to be
taken into account is “whether or not the occupier had or
should have been granted and effective opportunity
to make
representations before the decision was taken to terminate the right
of residence.” (Emphasis added.
)
The first highlighted
portion expressly acknowledges that it is not in every case that the
affected person needs to be invited to
make representations. By way
of illustration, an equivocal statement or conduct by the resident in
the owner’s presence may
in appropriate circumstances obviate
such a requirement in which case the owner may stand or fall by his
claim as to what transpired.’
In this case before me
there was no equivocal statement or conduct by the first respondent
which could obviate an invitation to
make representations. This,
however, may not apply to other respondents living on the farm who
could be occupiers in their own
right.
[21] This
Court is bound by
Snyders.
For the reasons stated above, the facts in
Le
Roux
and
Sibanyoni
are clearly distinguishable from the facts in this case. It is common
cause that the appellant did not invite the first to ninth
respondents to make representations before terminating the
respondents’ right of residence.
[22] The
appellant had previously attempted to persuade the first respondent
and her family members to leave the
farm voluntarily against payment
of R100 000 compensation, but through discussions and negotiations
the first to ninth respondents
were relocated on the same land. There
were no discussions or negotiations prior to the termination of the
first to ninth respondents’
right to reside. The first to ninth
respondents should have been granted an effective opportunity to make
representations before
the date on which their right of residence was
to be terminated, in view of the hardship they would endure if
evicted.
[23] As
a result hereof, it is not necessary to decide whether there was a
fundamental breach of trust as contemplated
in s 10(1)
(c)
of ESTA. Neither the first respondent nor any of the other
respondents living on the farm have been granted an effective
opportunity
to make representations as required in terms of s 8(1
)(e)
of ESTA
.
[24] The
President of this Court appointed an
amicus
curiae
to make submissions on the
issues raised in this appeal. We are grateful for the heads of
argument and submissions that were prepared.
No costs are sought by
them.
Z
CARELSE
JUDGE
OF APPEAL
Schippers
JA (Dambuza JA and Eksteen AJA concurring):
[26] I
have read the judgment of my colleague Carelse AJA in which she has
come to the conclusion that the appeal
should be dismissed as the
respondents had not been given an opportunity to make representations
before their rights of residence
were terminated, as contemplated in
s 8(1)
(e)
of the Extension of Security of Tenure Act 62 of
1997 (ESTA). I take a different view. In my respectful opinion the
issues
raised by this appeal are twofold. The
first is whether an order for the eviction of the respondents from
the relevant property
was justified on the ground of a fundamental
breach of the relationship between the first respondent, Mrs Johanna
Malan and the
person in charge, Mr Deon van der Merwe (the site and
farm manager), which was not practically possible to remedy as
envisaged
in s 10(1)
(c)
of ESTA. The second is whether the eviction order was just and
equitable in terms of the provisions of ESTA.
The
facts and proceedings below
[27] The
facts are largely common ground.
The
appellant is the registered owner of the farm Topshell Park in
Stellenbosch, Western Cape (the farm). In September 2019 it obtained
an order in the Stellenbosch Magistrates’ Court for the
eviction of the first to ninth respondents, in terms of ESTA. The
case went on automatic review to the Land Claims Court (LCC) under s
19(3) of ESTA.
[13]
The LCC
(Ncube
AJ)
set
aside the eviction order. The appeal is with its leave.
[28] Mrs
Malan, is a widow and pensioner who lives on the farm, together with
the second to ninth respondents.
The second to fifth respondents are
Mrs Malan’s adult children. The sixth respondent is Mrs Malan’s
daughter-in-law.
The seventh and eighth respondents are the minor and
adult grandsons respectively, of Mrs Malan.
[29] Mrs
Malan and her husband, the late Mr Moos Malan, moved to the farm in
1974 when Mr Malan was employed as
a driver by the appellant’s
predecessor in title. In terms of his employment contract, he was
provided with accommodation
in Cottage 1 on the farm where he lived
until he passed away on 4 October 2005. Mrs Malan continued to live
on the farm and in
2006 concluded a lease agreement with the
appellant’s predecessor in title, in terms of which she leased
Cottage 1 at a rental
of R500 per month.
[30] Neither
Mrs Malan nor any of the respondents however paid any rent to the
appellant. This was not disputed.
It appears from
the founding papers that during the tenure of the lease she was
legally assisted regarding payment of arrear rental.
Not much turns
on this, since before us the appellant contended that the ultimate
reason for the termination of the right of residence,
was a
fundamental breach of the relationship between Mrs Malan and Mr Van
Der Merwe.
[31] In
2012 the appellant was compelled to forgo a portion of the farm
because of the widening of the R310, a
provincial road in
Stellenbosch. As a result, the land required by the appellant’s
anchor tenant, Topshell (Pty) Limited
(Topshell), under a long-term
lease was reduced and it was forced to provide Topshell with a
portion of land on which a number
of cottages including Cottage 1,
were located.
[32] The
appellant then entered into negotiations with Mrs Malan and eight
other households whose cottages were
on the same land as Cottage 1,
with a view to their voluntary relocation to other property with the
appellant’s assistance,
by way of a cash amount and the
provision of building materials. The negotiations with Mrs Malan
which took place over a period
of one year, were unsuccessful.
[33] At
a meeting with the appellant’s attorney on 11 August 2016, Mrs
Malan agreed to move to Cottage 5
and stated that she understood the
process that had to be followed under ESTA in that regard. On 2
September 2016 Mr Van Der Merwe
and Mrs Malan agreed upon the
repairs, changes and improvements that had to be effected to Cottage
5. These included removing a
tree and an interior drywall; installing
a kitchen sink, wall plugs, and switches; and painting the roof,
interior and exterior
of the cottage, Mrs Malan undertook to move to
Cottage 5 as soon as the repairs and improvements were completed.
[34] However,
after the completion of the repairs Mrs Malan refused to move to
Cottage 5. The appellant then applied
to the Stellenbosch
Magistrate’s Court for the relocation of the respondents. On 20
October 2016 that court issued an order
in terms of which Mrs Malan
and all those occupying Cottage 1 under her, were directed to vacate
Cottage 1 and take occupation
of Cottage 5 (the relocation order).
[35] On
28 November 2016 Mrs Malan moved to Cottage 5. What happened that day
was the subject of oral evidence
before the magistrate. The fourth
respondent (Mrs Malan’s son) and other members of her household
removed building materials
consisting of roof sheets and rafters
(which the appellant had promised to its employees), window frames
and various fixtures from
Cottage 1. This happened in the presence of
Mrs Malan, Mr Van der Merwe and police officers whom the latter had
called to the scene
while the building materials were being removed.
[36] Photographs
annexed to the founding papers showed that only the brick-and- mortar
shell of Cottage 1 remained.
The building materials were then used to
erect an unlawful structure right next to Cottage 5, without the
appellant’s consent.
Mrs Malan did nothing to stop the unlawful
removal of the appellant’s building materials. On the contrary,
she swore at Mr
Van Der Merwe and shouted at him that Cottage 1 was
her house and she could do with it whatever she wanted. The illegal
structure,
Mrs Malan testified, had been erected to store her things
because Cottage 5 was too small – it was in fact 9.4 square
metres
bigger than Cottage 1. That structure however, was used to
house persons who previously had not lived with Mrs Malan on the
farm.
[37] On
18 January 2017 the appellant’s attorneys sent Mrs Malan a
notice that her right of occupation had
been terminated on the
following grounds. The unlawful removal and theft of the building
materials (the appellant had laid a charge
of theft with the police)
constituted a material breach of the relationship between the
parties. Mrs Malan had further breached
the relationship by using the
materials to erect an unauthorised and unlawful structure on the farm
in contravention of building
regulations as well as s 6(3)
(d)
of ESTA.
[14]
That structure
was being used to accommodate members of her family who had not lived
with her before. The appellant demanded that
Mrs Malan demolish the
illegal structure and return the building materials by 1 February
2017. She was also informed that she and
members of her family were
required to vacate Cottage 5 and the illegal structure by 1 February
2017, failing which an application
for their eviction would be
brought.
[38] The
illegal structure was not demolished, neither were the building
materials returned. Consequently, on 1
February 2017 the sheriff
served a notice on Mrs Malan and the second to ninth respondents to
vacate the farm by 28 February 2017.
In that notice it was recorded
that the respondents’ residence had already been terminated by
a notice served by the sheriff
on 20 January 2017 (on the basis of a
breach of the lease agreement). The notice stated that the unlawful
removal of the building
materials constituted a serious breach of the
relationship; that Mrs Malan had taken no steps to prevent the
removal; that she
had made common cause with the members of her
family by stating that Cottage 1 was her house and that she could do
with it as she
pleased; and that a complaint had been lodged with the
police.
[39] The
respondents did not vacate the farm and the appellant launched
eviction proceedings on 28 April 2017.
In the founding papers it
alleged that the termination of Mrs Malan’s rights of residence
was just and equitable on three
alternative grounds: (i) she had
failed to pay the rental under the lease agreement; (ii) if she was
an occupier in terms of s
8(5) of ESTA, termination was justified
under s 10(1); and (iii) if she was an occupier contemplated in s
8(4), termination was
warranted in terms s 10(1)
(a)
,
(b)
or
(c)
of ESTA.
[40] Mrs
Malan opposed the application and was legally represented in the
magistrate’s court. None of the
other respondents opposed the
application or asserted any independent right to reside on the farm.
In the answering affidavit Mrs
Malan denied that she had concluded
the lease agreement and said that the appellant had never approached
her for payment of rent,
despite having made arrangements through her
attorneys to pay-off arrear rental. She opposed the application for
eviction on the
basis that she was an occupier as envisaged in s 8(4)
of ESTA: she had resided on the farm for ten years and had reached
the age
of 60. Mrs Malan also raised a special plea that in terms of
s 8(5), her right of residence could be terminated only on 12
calendar
months’ written notice to leave the farm.
[15]
[41] The
magistrate found that the lease agreement was the source of Mrs
Malan’s right to reside on the farm.
She was legally
represented at the time and the lease agreement had been concluded,
presumably ‘to regulate and formalise
her rights as opposed to
not being able to occupy the property further due to her husband’s
demise’. None of the other
respondents had acquired any
independent right to reside on the farm. Further, Mrs Malan had
conceded that her right of residence
had been lawfully terminated in
accordance with s 8(1) of ESTA.
[42] The
magistrate considered the factors set out in ss 11(3) and 9(2) of
ESTA and held that an order of eviction
was just and equitable for
the following reasons. The eviction emanated from the widening of the
R310 road. Mrs Malan conceded
that her right of residence had been
lawfully terminated. The respondents had committed a fundamental
breach of the relationship
contemplated in s 10(1)
(c)
of ESTA. The unavailability of alternative accommodation came about
as a result of the respondents’ own conduct. The appellant
had
offered them the sum of R100 000 plus building materials, but the
respondents wanted a minimum amount of R400 000. Four
of the
five adult respondents were employed elsewhere, but never paid any
rent. The appellant had paid substantial amounts for
water, sewerage
and waste removal on behalf of the respondents and could not be
expected to continue to do so. The respondents
were guilty of
misconduct which could not be condoned in the circumstances. The
appellant had given timeous notice of the eviction
proceedings to the
relevant authorities.
[43] The
LCC, as stated, set aside the eviction order. It concluded that Mrs
Malan was an occupier in terms of
s 8(4) of ESTA. As such, her right
of residence could not be terminated unless she had committed a
breach contemplated in s 10(1)
(a)
,
(b)
or
(c)
. The
LCC found that s 10(1)
(a)
was inapplicable and s 10(1)
(b)
was no basis for termination of the right of residence. It held that
there was no breach as envisaged in s 10(1)
(c)
of ESTA because the appellant had ‘the option of claiming
compensation’ for its building materials if it wished to
do so.
The LCC held that the eviction order could also not be confirmed
because Mrs Malan had not been informed that she could
make
representations in terms of s 8(1)
(e)
of ESTA.
Was
there a breach of the relationship as envisaged in s 10(1)
(c)
of ESTA?
[44] On
the case made out in the founding affidavit, it may be accepted that
Mrs Malan is an occupier as envisaged
in s 8(4) of ESTA. She has
lived on the farm for at least ten years and has reached the age of
60 years. Consequently, her right
of residence could not be
terminated unless she committed a breach contemplated in s 10(1)
(c)
of ESTA.
[16]
[45] Section
10(1)
(c)
of
ESTA provides:
‘
An
order for the eviction of a person who was an occupier on 4 February
1997 may be granted if–
‘
(c)
the
occupier has committed such a fundamental breach of the relationship
between him or her and the owner or person in charge, that
it is not
practically possible to remedy it, either at all or in a manner which
could reasonably restore the relationship.’
[46] The
plain wording of this provision makes it clear that what is
contemplated is an act of breaking the relationship
on the part of
the occupier that is essentially impossible to restore. The LCC has
held that a fundamental breach of the relationship
between an owner
and an occupier contemplated in s 10(1)
(c)
‘relates to a social rather than a legal relationship’
and that this requirement would be met if ‘it is practically
impossible for the relationship to continue due to a lack of mutual
trust’.
[17]
[47] In
determining whether an occupier has committed a fundamental breach of
the relationship envisaged in s 10(1)
(c)
of ESTA, it seems to me that the following factors must be
considered. The history of the relationship between the parties prior
to the conduct giving rise to the breach. The seriousness of the
occupier’s conduct and its effect on the relationship. The
present attitude of the parties to the relationship as shown by the
evidence.
[48]
Klaase
[18]
is
a case in point. There, the Constitutional Court held that absconding
from work and absenteeism; a history of inappropriate conduct;
failure to attend a disciplinary hearing; failure to vacate premises
as agreed; and continuing to live on the premises rent-free
while
being gainfully employed elsewhere, was misconduct for purposes of
s 10(1)
(c)
of ESTA.
[19]
[49] Applying
these principles to the present case, it was common ground that prior
to the incident on 28 November
2016, the relationship between Mrs
Malan and Mr Van der Merwe was one of mutual respect, trust and
co-operation. Mr Van der M
erwe
described their relationship prior to its breakdown, as follows:
‘
I
just also want to point out at this stage, when all this moving over
and this process took place, there was not a breakdown in
trust
between Tadvest, myself and Ms Malan. We were on good speaking terms.
So there were no malicious actions or reasons for us
not to work
together and facilitate this process. You may recall that I said to
you, Monday morning at what time (indistinct) they
should've been out
by [then] but I said: let's give them a couple more hours so that
they can move (indistinct) go to the house
again they started
breaking it down. So the breakdown of the trust relationship only
happened after this whole moving over and
the process where they
started breaking down the house it ended.’
[50] On
28 November 2016 the appellant’s employees who had been given
the rafters and roof sheeting went
to remove these materials from of
Cottage 1. They returned and told Mr Van der Merwe that the materials
were already being removed.
Mr Van der Merwe went to the site where
he found that the appellant’s building materials were being
removed and stacked.
He asked Mrs Malan’s son to stop but was
ignored. He then called the police who came to the scene. Their
presence did not
deter the persons from continuing with the removal
of the building materials. As Mr Van der Merwe was speaking to the
police, Mrs
Malan came out of Cottage 5. She was ‘very upset
and emotional’. She shouted at Mr Van der Merwe that Cottage 1
was
her house and she could do with the building materials whatever
she wanted and, using an expletive, told him to get off the property.
[51] On
hearing this, which Mr Van der Merwe described as ‘really
upsetting’, he left the scene. The
police remained there and
did nothing to stop the wrongdoers. Despite the appellant laying
criminal charges of theft against them,
a few days later Mrs Malan
caused the building materials to be used to erect the illegal
structure annexed to Cottage 5, without
the appellant’s
permission and contrary to building regulations. She then allowed
persons who had not lived on the farm before
to occupy the illegal
structure. As stated in the founding affidavit, this conduct was a
breach of s 6(3)
(d)
of ESTA.
[52] The
erection of the illegal structure continued, despite the fact that
the appellant’s attorneys had
written to Mrs Malan and demanded
that it be removed and the building materials returned. She ignored
this letter. When the matter
was heard in the magistrates’
court – more than two years later – the illegal structure
had still not been demolished.
Mr Van der Merwe described Mrs Malan’s
response, which was unchallenged, as follows:
‘
As
far as I know she didn’t react at all. There was no reaction
from their side, they just carried on for the next two months,
adding
on to the structures around house number 1 and no building material
was returned and there was no communication from their
side to
Abland, Tadvest or myself.’
[53] The
unchallenged evidence was that it was not practically possible to
restore the relationship between Mrs
Malan and the appellant. When
asked about the effect of her conduct on the relationship, Mr Van der
Merwe said:
‘
.
. . as I said before we had a mutual respectful relationship . . .
But after this incident, I mean there are some things that
you say to
another person that can’t be undone and that can’t
change. So the relationship of mutual trust and goodwill
was can I
say, demolished, destroyed in this case. So all direct communication
came to a halt.’
[54] Indeed,
it was common ground that the relationship of trust between Mrs Malan
and Mr Van der Merwe had been
broken: they had no contact nor any
relationship after the incident on 28 November 2016. It was also
common ground that Mr Van
der Merwe had objected to the removal of
the building materials; that he had called the police; that Mrs Malan
had shouted; that
she had been rude to him (she admitted this and
apologised during her evidence); and that she had erected the illegal
structure
without permission.
[55] In
the light of this evidence, Mrs Malan’s explanation for the
fundamental breach of trust – she
had shouted at Mr Van der
Merwe that he was a liar, because he had given her permission to take
what she needed for Cottage 5,
but subsequently withdrew it –
may safely be rejected. This served only to exacerbate an already
broken-down relationship.
Mrs Malan did not need any building
materials for Cottage 5. The appellant had already done the necessary
repairs and improvements
to it – which she had approved and
signed for after an inspection with Mr Van der Merwe.
[56] Further,
on Mrs Malan’s version, there was no reason for Mr Van der
Merwe to go to Cottage 1 where the
building materials were being
removed, call the police or lay charges of theft. It is thus not
surprising that at no stage did
Mrs Malan inform the police that she
had been given permission to remove the building materials. What is
more, she continued with
the removal of the building materials even
after Mr Van der Merwe had told her that he viewed her conduct as
theft. She did this
precisely because she considered that she could
do with the building materials as she pleased and knew that they were
going to
be used to erect the illegal structure.
[57] In
addition, Mr Van der Merwe testified that it was illegal to erect any
structure around Cottage 5 without
approved building plans. It is
thus inconceivable that he would have allowed Mrs Malan to remove the
building materials, or to
erect any illegal structure on the farm
contrary to building regulations. Mrs Malan’s attitude that she
could do with Cottage
1 as she pleased, also explains why she ignored
the appellant’s demand to demolish the structure and return the
building
materials.
[58] In
her evidence, Mrs Malan sought to justify the illegal structure as
being necessary to store her furniture
because Cottage 5 was too
small. This too, was false. The undisputed evidence was that Cottage
5 was bigger than Cottage 1. So,
there would have been enough space
for her furniture. Further, the illegal structure was not erected
immediately to protect Mrs
Malan’s furniture. This merely
underscores the reason for the illegal structure – to house
persons not previously resident
on the farm.
[59] For
these reasons, the submission by counsel for Mrs Malan that it seemed
inevitable that the respondents
were being evicted for business
purposes, is unsustainable on the evidence. So too, the contention
that a fundamental breach of
the relationship was not established
‘over the use of building materials’. The reason for the
eviction initially was
the non-payment of rent. However, it was
ultimately the events of 28 November 2016, Mrs Malan’s conduct
in enabling unauthorised
persons to occupy the farm by erecting an
illegal structure on it and her ongoing refusal to demolish the
structure and return
the building materials, which culminated in the
breakdown of trust to the extent that the relationship could not be
restored. The
misconduct was ongoing and deliberate and took place in
the context of an already deteriorating relationship due to the
failure
to pay rental and utilities, and the refusal to relocate.
[60] The
LCC thus erred in concluding that there was no fundamental breach of
the relationship between Mrs Malan
and the appellant, and that the
appellant could simply claim compensation for its building materials.
The LCC disregarded the nature
and seriousness of the respondents’
conduct and its effect on the relationship between the parties. Apart
from this, the
LCC misconstrued the appellant’s case: its
conclusion was based solely on the respondents’ conduct in
removing the
building materials from Cottage 1. On the evidence
however, the lack of respect and mutual trust in the relationship
between the
occupier and the owner or person in charge, because of
the occupier’s conduct, was beyond dispute.
Was
the eviction order just and equitable?
[61] The
requirements which an owner must meet to prove that termination of an
occupier’s right of residence
was just and equitable depends on
the facts of the particular case.
[20]
In this case the conduct of Mrs Malan and the respondents who removed
the building materials and subsequently erected the illegal
structure, which gave rise to the application for her eviction, is
particularly relevant. So too, the comparative hardship to the
appellant and the respondents. In this regard, the dictum by Nkabinde
J in
Molusi
,
[21]
bears repetition:
‘
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 s 8 read with s 9, as well as ss 10 and 11, which
make
it clear that fairness plays an important role.’
[22]
[62] Section
8(1) of ESTA provides that 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 those listed
in s 8(1)
(a)
to
(e)
.
[23]
These factors include the conduct of the parties giving rise to the
termination; the interests of the parties, including the comparative
hardship to the owner and the occupier; and the fairness of the
procedure followed by the owner, including whether the occupier
had
or should have been given an opportunity to make representations
before termination of the right of residence.
[63] While
any eviction creates hardship for the persons evicted, the
legislature has expressly provided for eviction
on the grounds of a
fundamental breach of the relationship between the occupier and the
owner or person in charge. As stated, the
appellant reasonably
required the land when the R310 road was widened, in order to secure
its anchor tenant under a long-term lease.
It then sought to obtain
Mrs Malan’s consent to leave the farm through a series of
negotiations, but to no avail. On numerous
occasions the appellant
offered R100 000 and building materials as a contribution to the
respondents’ relocation and
if that amount was insufficient, it
was willing to consider reasonable suggestions by them for additional
assistance. The appellant
moreover offered to assist the respondents
financially in purchasing serviced plots in Klapmuts (of which Mrs
Malan would have
become a co-owner) on which emergency housing
structures could be erected by the tenth respondent, Stellenbosch
Municipality (the
Municipality). This assistance too, the respondents
refused.
[64] As
stated, the changes and upgrades to Cottage 5 were done with Mrs
Malan’s approval. Despite this,
she refused to move and the
appellant was forced to apply for the relocation order. The events
leading to the breakdown of the
relationship between Mrs Malan and Mr
Van der Merwe have been described above. The eviction came about
solely as a result of her
conduct. She told Mr Van der Merwe in crude
and insulting terms to get off the property when she misappropriated
the building materials.
She erected an illegal structure with those
materials and enabled unauthorised persons to occupy it. She has no
intention of returning
the materials or demolishing the structure.
Since her refusal to voluntarily relocate to Cottage 5, her conduct
(and that of the
respondents) has been audacious and defiant. In
these circumstances, the belated apology by Mrs Malan during her
evidence for treating
Mr Van der Merwe rudely, rings hollow.
[65] As
to the interests of the parties envisaged in s 8(1)
(b)
,
it must be emphasised that it is only Mrs Malan who is an occupier in
terms of s 8(4) of ESTA. The remaining respondents hold
title under
her. Mrs Malan had been living on the farm for some 45 years when the
case was heard, of which she resided for 14 years
after her husband’s
passing in 2005. In my opinion however, given that it is practically
impossible for the relationship
between Mrs Malan and Mr Van der
Merwe to be restored due to a lack of mutual trust, her continued
residence on the farm is untenable.
This is an inevitable consequence
of an eviction under s 10(1)
(c)
of ESTA. According to the papers, Mrs Malan receives a state pension
and was employed as a domestic worker for many years. She
has family
who own residential property in Stellenbosch and Wesbank in the
Western Cape. Her brother owns a house in Stellenbosch
in which Mrs
Malan’s mother was living at the time of the hearing. There
seems to be no reason why the responsibility of
accommodating Mrs
Malan or assisting her in finding accommodation, should not be borne
by her family.
[24]
[66] The
remaining respondents have been living on the farm, rent-free for
many years. This, despite the fact that
five of the six adult
respondents work elsewhere and receive an income, and that the
remaining adult respondent is of an employable
age. This in itself is
a lawful ground for the termination of the right of residency under
ESTA, if the termination is just and
equitable.
[25]
What is more, for as long as they have been living on the farm, the
respondents have never paid for services such as water, refuse
removal or sewerage, the monthly costs of which are borne by the
appellant.
[67] The
LCC failed to consider this evidence or the appellant’s
interests in not permitting unlawful conduct,
the erection of an
illegal structure on the farm, or its continued occupation by
unauthorised persons. Instead, it had regard only
to the fairness of
the lease agreement, to a limited extent the conduct of Mrs Malan,
and the apparent lack of notice regarding
representations under
s 8(1)
(e)
of ESTA.
[68] This
brings me to s 8(1)
(e)
of ESTA. It states that an occupier’s right of residence may be
terminated on any lawful ground, provided that such termination
is
just and equitable, having regard to, inter alia:
‘
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.’
[26]
[69] It
is a settled principle that when interpreting a statutory provision,
what must be considered is the language,
context and purpose of the
statute and the material known to those responsible for its
drafting.
[27]
Two points must
be made about this provision. First, it is clear from the language
and syntax of s 8(1)
(e)
that Parliament did not require an occupier to be given an
opportunity to make representations in every case.
[28]
The language is clear and explicit and, in my view, must be given
effect to whatever the consequences. Second, on the plain language
of
s 8(1)
(e)
,
the opportunity to make representations applies only in relation to a
decision to terminate the right of residence, and constitutes
the
procedural fairness requirement of that provision.
[29]
[70] In
my opinion, this interpretation is consistent with the immediate
context and is illustrated by the facts
of this very case. Thus, s
9(2) of ESTA draws a distinction between the eviction of an occupier
on the basis of termination of
the right of residence in terms of s
8,
[30]
and the conditions for
an order for eviction in terms of s 10.
[31]
Section 10(1)
(c)
authorises the
eviction
of an occupier on the grounds of a fundamental breach of the
relationship between him or her and the owner or person in charge.
It
says nothing about representations on the part of the occupier. This
is hardly surprising as a relationship of mutual trust
and respect is
fundamental to co-residence. A construction that an owner is required
to grant an occupier an opportunity to make
representations once it
is found that the occupier has committed a fundamental breach of
their relationship which is practically
impossible to continue, is
both insensible and intolerable. It would also render the provisions
of s 10(1)
(c)
nugatory: what is contemplated is whether objectively, the
relationship is at an end.
[71] Thus,
in
Klaase
[32]
there was no suggestion of the occupier being granted an opportunity
to make representations. This was also the case in
Wichmann
,
[33]
in which it was held that there was a fundamental, irremediable
breach of the relationship between the landowner and an occupier
in
terms of s 10(1)
(c)
of ESTA, where the occupier had erected a structure on a farm without
permission and disregarded the landowner’s instruction
to stop
building. The conduct of the other occupiers in intimidating and
assaulting farmworkers was held to be a breach of their
duty under s
6(3), which rendered them liable to eviction in terms of s 10(1)
(a)
and
(c)
.
[34]
In terms of s 10(1)
(a)
,
an order of eviction may be granted if an occupier has committed a
material breach of s 6(3) which has not been remedied. Again,
the
language and context exclude an opportunity to make representations.
[72] Applying
the principles in
Molusi
referred to in paragraph 36 above, I do not think it can be said that
an order for the eviction of the respondents would be unjust,
inequitable or unfair. The appellant did not elect to use the portion
of the farm on which Cottage 1 was located. It was compelled
to do so
because of the widening of a road, and in order to secure a long-term
tenant necessary for its business. To force the
appellant to continue
to provide Mrs Malan with housing in the face of overwhelming
evidence of a fundamental breakdown of their
relationship as
contemplated in s 10(1)
(c)
of ESTA, would place it in an untenable position. The appellant
cannot be expected to continue to tolerate the respondents’
occupation of an illegal dwelling on its land – proscribed by
ESTA itself. Neither can it be expected to continue to support
them
financially by providing free housing and utilities. As was said in
Labuschagne
:
[35]
‘
The
Act was not intended to promote the security of opportunistic
occupiers at the expense and exploitation of the rights and
legitimate
interests of the landowners.’
[73] The
facts show that the appellant has repeatedly tried to assist the
respondents in securing alternative accommodation,
which has
unreasonably been refused. The inference is inescapable that the
appellant’s offers were refused because the respondents
have no
intention of giving up the benefits of free accommodation and
utilities which the appellant currently provides. The appellant
has
indicated on oath that it remains willing to negotiate with the
respondents if they consider that the relocation contribution
of R100
000 is insufficient, and that it remains willing to consider all
reasonable suggestions from the respondents as to how
it could assist
them. There is no apparent reason why the appellant would renege on
this offer.
[74] The
amicus curiae
,
for whose assistance we are grateful, submitted that Mrs Malan had
committed a fundamental breach of trust as envisaged in s 10(1)
(c)
of ESTA. The
amicus
suggested that the matter be remitted to the magistrate because the
report by the Municipality concerning alternative accommodation
was
dated 7 March 2018 and the report in terms of s 9(3) of ESTA, 25 May
2018, and that circumstances may have changed.
[75] In
my view, no purpose would be served by remitting the matter to the
magistrate. First, the appellant remains
willing to assist the
respondents in finding alternative accomodation. Second, the report
by the Municipality makes it clear that
it has adopted an emergency
housing assistance policy to accommodate homeless persons. It is
accordingly obliged to provide the
respondents with alternative
accommodation should they be rendered homeless, despite its claim
that it was unable to provide accommodation
when the case was heard,
because of its policy to provide accommodation close to their former
homes. The Constitutional Court has
held that a municipality is
obliged not only in terms of ESTA, but also s 26 of the Constitution
to provide suitable alternative
accomodation.
[36]
Third, according to the s 9(2) report, the Municipality had
negotiated with the appellant to contribute the sum of R50 000
towards the relocation of Mrs Malan, provided that she agreed to
leave the farm. Finally, any further delay is not justified. The
respondents will be given an adequate opportunity to find alternative
accommodation. The matter has dragged on for nearly five
years now
and the intolerable position in which the appellant finds itself,
cannot be allowed to continue.
[76] In
the result the following order is issued:
1
The
appeal succeeds.
2
The
order of the Land Claims Court is set aside and replaced with the
following order:
‘
(a)
An
eviction order is granted against the first to eighth respondents and
all those occupying the farm known as Topshell Park in
Stellenbosch,
Western Cape (the farm) under them.
(b) The
first to eighth respondents and all those occupying the farm under
them must vacate the farm on or
before 31 March 2022.
(c) Should
the respondents and all those occupying the farm under them fail to
vacate it on or before 31
March 2022, the sheriff of the court is
authorised to evict them from the farm by 14 April 2022.
(d) The
tenth respondent is ordered to provide emergency housing of a
dignified nature with access to services
(which may be communal) to
the first to eighth respondents and all those occupying the farm
under them, on or before 31 March 2022.
(e) There
is no order as to costs.’
A
SCHIPPERS
JUDGE
OF APPEAL
APPEARANCES:
For
appellant: J
L Williams
Instructed
by: Cluver
Markotter Inc., Stellenbosch
c/o
McIntyre van der Post, Bloemfontein
For
first to ninth respondents: L
Mfazi (with him L Tshigomana)
Instructed
by: S
Morgan & Associates, Mitchell’s Plain
c/o
Bekker Attorneys, Bloemfontein.
[1]
‘
Any
order for eviction by a magistrate’s court in terms of this
Act, in respect of proceedings instituted on or before a
date to be
determined by the Minister and published in the
Gazette
,
shall be subject to automatic review by the Land Claims Court, which
may -
(a)
confirm
such order in whole or in part;
(b)
set
aside such order in whole or in part;
(c)
substitute
such order in whole or in part; or
(d)
remit
the case to the magistrate’s court with directions to deal
with any matter in such manner as the Land Claims Court
may think
fit.’
[2]
Section 8(7) of the Extension of Security of Tenure Act 62 of 1997
(ESTA) provides:
‘
If an occupier's
right to residence has been terminated in terms of this section, or
the occupier is a person who has a right
of
residence in terms of subsection (5) -
(a)
the occupier and the owner or person in charge may agree that the
terms and conditions under which the occupier resided on the
land
prior to such termination shall apply to any period between the date
of termination and the date of the eviction of the
occupier . . . .’
[2] ‘
19
Magistrate's courts
.
. .
(b)
shall be competent-
(i)
to grant interdicts in terms of this Act. . . .’
[4]
‘
.
. .
Any
order for eviction by a magistrate's court in terms of this Act, in
respect of proceedings instituted on or before a date
to be
determined by the Minister and published in the
Gazette
,
shall be subject to automatic review by the Land Claims Court, which
may-
(a)
confirm such order in whole or in part;
(b)
set aside
such order in whole or in part;
(c)
substitute
such order in whole or in part; or
(d)
remit the
case to the magistrate's court with directions to deal with any
matter in such manner as the Land Claims Court may
think fit.’
[5]
Section 8(4) of ESTA provides:
‘
Termination of
right of residence –
(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–
. . .
(4) The right of
residence of an occupier who had 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).
Provided that for the purposes of this
subsection, the mere refusal or failure to provide labour shall not
constitute such a
breach.’ (My emphasis.)
[6]
Klaase
and Another v Van Der Merwe N O and Others
[2016] ZACC 17
;
2016 (6) SA 131
(CC
):
Matojane
AJ held the following at para 60:
‘
It
is undisputed that Mrs Klaase lived on the premises continuously for
many years with the knowledge of the second respondent
and his
father before him. By his own admission in the answering affidavit,
the second respondent said that Mrs Klaase came
to live with
her prospective husband in a house that had been made available to
him on the premises. There is no evidence to
rebut the presumption
that the respondents consented to Mrs Klaase’s residing on the
farm. The respondents’
failure to object to Mrs Klaase’s
residing on the farm for decades or taking steps to evict her is
telling. It implies
that they consented to her occupancy. But
prior to the enactment of ESTA that was always with the consent of
the landowner or
farmer.’
[7]
10
Order
for eviction of person who was occupier on 4 February 1997
(1)
An
order for the eviction of a person who was an occupier on 4 February
1997 may be granted if-
(a)
the occupier has breached section 6 (3) and the court is satisfied
that the breach is material and that the occupier has not
remedied
such breach;
(b)
the owner or person in charge has complied with the terms of any
agreement pertaining to the occupier's right to reside on the
land
and has fulfilled his or her duties in terms of the law, while the
occupier has breached a material and fair term of the
agreement,
although reasonably able to comply with such term, and has not
remedied the breach despite being given one calendar
month's notice
in writing to do so;
(c)
the occupier has committed such a fundamental breach of the
relationship between him or her and the owner or person in charge,
that it is not practically possible to remedy it, either at all or
in a manner which could reasonably restore the relationship;
or
(d)
the occupier-
(i) is or was an
employee whose right of residence arises solely from that
employment; and
(ii) has
voluntarily resigned in circumstances that do not amount to a
constructive dismissal in terms of the Labour Relations
Act.’
[8]
In
Snyders
and Others v De Jager and Others
(Appeal) [2016] ZACC 55; 2017 (5) BCLR 614 (CC); 2017 (3) SA 545
(CC).
[9]
In
Aquarius
Platinum (SA) (Pty) Ltd v Bonene and Others
[2019] ZASCA 7
;
[2020] 2 All SA 323
(SCA);
2020 (5) SA 28
(SCA) the
Supreme Court of Appeal at paras 10 and 11 held:
‘
Approximately two
decades ago, this Court found in
Mkangeli and Others v
Joubert and Others
that there had to be a proper termination of
the right of residence. It stated:
“
Once
an occupier's right to reside has been duly terminated, his refusal
to vacate the property is unlawful. Nevertheless, it
does not mean
that the remedy of eviction will necessarily be available. This
remedy is limited by those provisions of ESTA to
which I will
presently return. On the other hand, ESTA places no limitation on
the other remedies attracted by unlawful occupation.
It must
therefore be accepted, I think, that the other remedies, such as the
owner's delictual claim for his patrimonial loss
caused by the
unlawful occupation of his land (see, for example,
Hefer
v Van Greuning
1979
(4) SA 952
(A)) are still available to him. As to the
remedy of eviction s 9(2) provides that a court may only issue an
eviction order
if certain conditions are met. The first such
condition is that the occupier's right to residence must have been
properly terminated
under s 8. Other conditions prescribed by s 9(2)
include the giving of two months' notice of the intended eviction
application
after the right to reside has been terminated under s 8
(s 9(2)
(d)
).
In a case such as the present, where the appellants took occupation
of Itsoseng after 4 February 1997, s 11 also finds application.
This
section provides that a court may only grant an eviction order if it
is of the opinion that it is just and equitable to
do so. In
deciding whether it is just and equitable to grant an eviction order
the court must have regard to the considerations
listed in s 11(3),
but it is not limited to them. Included amongst these is the
consideration 'whether suitable alternative accommodation
is
available to the occupier' (s 11(3)
(c)
)
and 'the balance of the interests of the owner . . . the occupier
and the remaining occupiers on the land' (s 11(3)
(e)
).”
In
Sterklewies
this
Court said the following:
“
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”.’
[10]
Cosmopolitan
Projects Johannesburg (Pty) Ltd v Leoa & Others
[2019] ZALCC 1
para 34, The LCC held:
‘
What is
immediately apparent is that this is a Notice in terms of section
9(2)
(d)
of ESTA which purports also to terminate the first to
fiftieth respondents’ rights of residence in terms of section
8 of
ESTA. As Mr Botha who appeared for the thirty fifth to fiftieth
respondents correctly submitted, this sort of hybrid approach is
impermissible. A section 9(2)
(d)
Notice is correctly and
appropriately issued only after an ESTA occupier’s right of
residence has been validly and fairly
terminated in terms of section
8.’
[11]
‘
9.
Limitation on eviction –
(1)
Notwithstanding
the provisions of any other law, an occupier may be evicted only in
terms of an order of court issued under
this Act.
(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
Rural Development and Land Reform, 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 Rural Development and Land Reform 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.’
[12]
See para 11 above.
[13]
Section 19(3) of Extension of Security of Tenure Act 62 of 1997
(ESTA) provides, inter alia, that any eviction order by a
magistrate’s
court shall be subject to automatic review by the
Land Claims Court.
[14]
Section 6(3) of ESTA provides:
‘
An occupier may
not-
. . .
(d)
enable or
assist unauthorised persons to establish new dwellings on the land
in question.’
[15]
Section 8(5) of ESTA reads:
‘
On the death of
an occupier contemplated in subsection (4), the right of residence
of an occupier or his or her spouse or dependant
may be terminated
only on 12 calendar months' written notice to leave the land, unless
such a spouse or dependant has committed
a breach contemplated in
section 10(1).’
[16]
Section 8(4) of ESTA, in relevant part, reads:
‘
The right of the
residence of an occupier who has a 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; . . .
may not be terminated
unless that occupier has committed a breach contemplated in section
10(1)
(a)
,
(b)
or
(c)
. . . .’
[17]
Ovenstone
Farms (Pty) Ltd v Persent and Another
[2002] ZALCC 31.
[18]
Klaase
and Another v Van Der Merwe and Others
[2016] ZACC 17; 2016 (6) SA 131 (CC).
[19]
Klaase
fn 6 para 43.
[20]
Land
& Landbouontwikkelingsbank van SA v Conradie
[2005] 4 All SA 509
(SCA) para 9.
[21]
Molusi
and Others v Voges N O and Others
[2016] ZACC 6
;
2016 (3) SA 370
(CC) para 39.
[22]
The conclusion by C P Smith
Eviction
and Rental Claims: A Practical Guide
(2021) para 5.7, that it seems that a court does not have to take
all relevant factors into account when considering an eviction
order, but rather the specific factors in ss 10 of 11, whichever
applicable; and that eviction in terms of s 10(1)
(a)
to
(d)
does not have to be just and equitable in addition to the specific
requirements in each instance, is thus incorrect.
[23]
Section 8(1) of ESTA provides:
‘
8
Termination
of right of residence
(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.’
[24]
Rashavha
v Van Rensburg
2004 (2) SA 421
(SCA) para 19.
[25]
Molusi
fn 9 para 43.
[26]
Emphasis added.
[27]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13; 2012 (4) SA 593 (SCA)
affirmed
in
Airports
Company South Africa SOC Ltd v Imperial Group Ltd and
Others
[2020] ZASCA 2; [2020] 2 All SA 1 (SCA); 2020 (4) SA 17 (SCA) para
22.
[28]
Le Roux
NO and Another v Louw and Another
[2017] ZALCC 10
para 91.
[29]
Snyders
and Others v De Jager and Others
[2016] ZACC 55
;
2017 (3) SA 545
(CC) para 75.
[30]
Section 9(2)
(a)
of
ESTA.
[31]
Section 9(2)
(c)
of
ESTA.
[32]
Klaase
fn 6.
[33]
Wichmann
N O and Another v Langa and Others
2006 (1) SA 102 (LCC).
[34]
Wichmann
fn 21 para 43.
[35]
Labuschagne
and Another v Ntshwane
2007 (5) SA 129
(LCC) para 23.
[36]
Baron
and Others v Claytile (Pty) Ltd and Another
[2017]
ZACC 24
;
2017 (10) BCLR 1225
(CC);
2017 (5) SA 329
(CC) para 46.