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[2020] ZASCA 7
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Aquarius Platinum (SA) (Pty) v Bonene and Others (1177/2018) [2020] ZASCA 7; [2020] 2 All SA 323 (SCA); 2020 (5) SA 28 (SCA) (16 March 2020)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1177/2018
In
the matter between:
AQUARIUS PLATINUM
(SOUTH AFRICA) (PTY) LTD
APPELLANT
and
BONENE
SEBAJOA
1ST RESPONDENT
CHITUMBO.
FERNANDO
M
2ND RESPONDENT
CUNA,
ALCIDO
X
3RD RESPONDENT
FEKO,
STEPHEN
L
4TH RESPONDENT
HENENG
JOHN
Q
5TH RESPONDENT
HLOAI.
MABOBOSANE
M
6TH RESPONDENT
KHABO,
ALBERT
7TH RESPONDENT
KHOASE,
RANTHLOISI
8TH RESPONDENT
KHOBAI,
DANIELS
9TH RESPONDENT
KOTELI,
BERINARD
M
10TH RESPONDENT
LLTSOANE,
KETHANGA
11TH RESPONDENT
MABOTE,
THABO
12TH RESPONDENT
MAGULE,
BERNARDO
M
13TH RESPONDENT
MAHASE,
MAKOMENG
P
14TH RESPONDENT
MAKHABENG
L
15TH RESPONDENT
MALIBA,
STEPHEN
M
16TH RESPONDENT
MATELA,
MATELA
B
17TH RESPONDENT
MATHUNYE,
KOSTINA
B
18TH RESPONDENT
MATSOAPE,
ALPHONCE
T
19TH RESPONDENT
MOHALE,
TLOHANG
J
20TH RESPONDENT
MOHOANG,
ZAKARIA
M
21ST RESPONDENT
MOIMA,
SEABATA
E
22ND RESPONDENT
MOKHAHLANE.
MONTINYANE A
23RD RESPONDENT
MOKHALI.
TSOKELO
24TH RESPONDENT
MOKOENA,
MOLEBATSI
M
25TH RESPONDENT
MOLOMO,
NKHETHELENG
26TH RESPONDENT
MOMOANE,
MAPHALE
A
27TH RESPONDENT
MOSHOESHOE,
LELINGOANA
28TH RESPONDENT
MOTABO,
MOTLALEPULA
29TH RESPONDENT
NKHASI,
NTJA
I
30TH RESPONDENT
NKOE,
NKOEJ
31ST RESPONDENT
NQHAI,
SIMON
M
32ND RESPONDENT
PHAMOTSE,
ALFRED
B
33RD RESPONDENT
PHAROE,
SIMON
T
34TH RESPONDENT
RAMABELE
M
35TH RESPONDENT
RAMBO,
LETEKETOA
A
36TH RESPONDENT
RAPOSO,
MANUEL
B
37TH RESPONDENT
SEJELAMPENG,
MOHLALEFI
38TH RESPONDENT
SEKETE,
THABISO
A
39TH RESPONDENT
SEKOAI,
MPHO
J
40TH RESPONDENT
SEKOTOLANE,
TIEHO
J
41ST RESPONDENT
SETHELA,
PETROSE
T
42ND RESPONDENT
SONDI,
SAMUEL
S
43RD RESPONDENT
TEBOHO,
L
44th RESPONDENT
THAABE,
EDWIN
L
45TH RESPONDENT
TSOANE,
ISHMAEL
T
46TH RESPONDENT
TSOANE,
THABO
A
47TH RESPONDENT
BILA,
JOSE
48TH RESPONDENT
BRANTI,
TANDEKILEW
49TH RESPONDENT
CAKATA,
BEKIMBEKO
50TH RESPONDENT
CHAMBALE,
JOAO
51ST RESPONDENT
DLELAPHANTSI,
BUYELEKA YA
52ND RESPONDENT
GAONWE,
TSHIRELETSO
53RD RESPONDENT
GAUDA,
REENTSENG
54TH RESPONDENT
GWENTSHE,
PASCALIS
R
55TH RESPONDENT
KOASHE,
THAPELO
V
56TH RESPONDENT
LESHOBORO,
NAMANE
57TH RESPONDENT
MACHOBANE,
SEKHONYANA W
58TH RESPONDENT
MADLONGO,
MZOLISI
A
59TH RESPONDENT
MAGABAVANA,
XOLILE
L
60TH RESPONDENT
MAKHELE,
LEJONE
P
61ST RESPONDENT
MALAM
BE, ABSALOM
A
62ND RESPONDENT
MASOETSA,
S
63RD RESPONDENT
MAYILA.
MAKABONGWE
64TH RESPONDENT
MKHIZE,
JABULANE
S
65TH RESPONDENT
MOHALE,
LEBUAJOANG
P
66TH RESPONDENT
MOSHAPANE,
THABANG
B
67TH RESPONDENT
MOSOEU,
THABISO
68TH RESPONDENT
MOTSEWABANGWE.
BALEKANE E
69TH RESPONDENT
MSENA,
MOTLATSI
70TH RESPONDENT
NAPE,
MOHATO
P
71ST RESPONDENT
NDONGENI,
RICHARD
D
72ND RESPONDENT
NTSINYI.
TSIETSI
73RD RESPONDENT
PEDRO,
FERNANDO
A
74TH RESPONDENT
PETLANE,
PETRUS
M
75TH RESPONDENT
PHOLO,
THASO
A
76TH RESPONDENT
RAMAKOA,
MASEBO
0
77TH
RESPONDENT
RAMBO,
KGOPOTSO
E
78TH
RESPONDENT
SETWABA,
PINKIE
G
79TH
RESPONDENT
SIPOMPO,
FEZEKILE
80TH
RESPONDENT
TINENTE,
VICTOR
81ST
RESPONDENT
TSENASE,
LEKHOOA
E
82ND
RESPONDENT
TSOANA,
MOJALETA
83RD
RESPONDENT
BELE,
THABANG
A
84TH
RESPONDENT
KHOSA,
SHOKWANA
S
85TH
RESPONDENT
LETJEBA,
NICHOLAS
L
86TH
RESPONDENT
MABOKA,
WRENFORD
M
87TH
RESPONDENT
MABUZA,
JOHANES
88TH
RESPONDENT
MACHOCHOKO,
JOHANNES L
89TH
RESPONDENT
MAHLOMAHOLO,
MAULE
90TH
RESPONDENT
MALULEKE;
BEN
R
91ST
RESPONDENT
MASSANGO,
JOSE
0
92ND
RESPONDENT
MBHELE,
SIPHO
C
93RD RESPONDENT
MOKOENANYANE,
LOBIEANE I
94TH
RESPONDENT
MOLEKO,
TANKISO
M
95TH
RESPONDENT
MONESA,
KOPE
S
96TH
RESPONDENT
MOSO,
TSELISO
97TH
RESPONDENT
MOTSELEKATSI,
MOSIMANEWAKGANG J
98TH
RESPONDENT
NGOBENI,
MBUSO
A
99TH
RESPONDENT
NTSIHLELE,
SELLO
L
100TH
RESPONDENT
QHOAI,
LEPHOI
F
101ST
RESPONDENT
SIGAUQUE,
MANUEL
J
102ND RESPONDENT
TEKANE,
THAKAMANG
103RD RESPONDENT
THABANE
THABO
E
104TH RESPONDENT
KAO,
MOTHEOLANE
C
105TH RESPONDENT
LENYATSA,
NTSAPI
106TH RESPONDENT
LETSOKA,
MAKHA
THA
107TH RESPONDENT
MONYAKE,
RAPU/...E
A
108TH RESPONDENT
MOTSEKI,
RATAELM
109TH RESPONDENT
MUSSUMBE,
BENEDITO
A
110TH RESPONDENT
SEMPE,
SAMUEL
K
111TH RESPONDENT
SETLHAKO,
ISAAC
M
112TH RESPONDENT
SHANGE,
MOSALA
113TH RESPONDENT
DIKILOKHWE,
GATERS
114TH RESPONDENT
FOSA,
SIDWELL
T
115TH RESPONDENT
JAKOBO
MANGALISO
116TH RESPONDENT
KOELE,
SECHABA
E
117TH RESPONDENT
KUNENE,
MOTLATSIE
118TH RESPONDENT
KWENYELA,
DIKOKO
119 RESPONDENT
LEKOMOLA,
THABO
A
120TH RESPONDENT
LENYETA,
MAIWE
121ST RESPONDENT
LETHIBELANE,
EL YUS
K
122ND RESPONDENT
LIKOTSI,
BETHUEL
123RD RESPONDENT
LUSISI,
DAVID
V
124TH RESPONDENT
MAHAO,
TEBOHO
J
125TH RESPONDENT
MALISE.
FRANCIS
M
126TH RESPONDENT
MASOKA,
ANTHONY
P
127TH RESPONDENT
MASWELE.
EDWARD
128TH RESPONDENT
MAZIKWANA,
AUBERTSON S
129TH RESPONDENT
MEMANI,
BATHATHU
A
130TH RESPONDENT
MKA
TSHANE, SIMPHlWE
S
131ST RESPONDENT
MOETA,
TEFO
S
132ND RESPONDENT
MOHLOMi,
ELIAS
P
133RD RESPONDENT
MOKGARA,
JULIUS
M
134TH RESPONDENT
MOKHALI,
RAMABANTA
J
135TH RESPONDENT
MOKOENA,
LEHLOHONOLO P
136TH RESPONDENT
MOLELEKOA,
LETSOKO
137TH RESPONDENT
MONESA,
LEBOHANG
S
138TH RESPONDENT
MOSESANE,
DANIEL
S
139TH RESPONDENT
MOSHE,
T
140TH RESPONDENT
MOTAUNG,
MOITHERI
E
141ST RESPONDENT
MPASI,
PABALLO
142ND RESPONDENT
MPHAHLELE,
KOKETSO
T
143RD RESPONDENT
NGADA,
ROBERT
M
144TH RESPONDENT
NGANGEZWE,
MLANGABEZI
145TH RESPONDENT
NTLAETOA,
MOMO
146TH RESPONDENT
NTSOHI,
TSEK1S0
E
147TH RESPONDENT
PEYANA,
MNTUWOMZI
148TH RESPONDENT
PHAMOTSE.
PHILLIP
L
149TH RESPONDENT
PHATSISI,
TSEBO
150TH RESPONDENT
RABIRI,
PTROSE
P
151ST RESPONDENT
RAMABELE,
SIPHA
J
152ND RESPONDENT
RASMENI,
LARENG
W
153RD RESPONDENT
SEPEAME,
EMANUEL
M
154TH RESPONDENT
SIMELANE,
GERAME
A
155TH RESPONDENT
SINDANE,
TSIDISO
P
156TH RESPONDENT
SITOE,
ALCIDIO
S
157TH RESPONDENT
SITGE,
FILJMAO
M
158TH RESPONDENT
TAU,
ISAAC
M
159TH RESPONDENT
THABO,
JOEL
160TH RESPONDENT
TSOLA,
PETROS
N
161ST RESPONDENT
MOSEBI,
SETHASAKELE MATHEWS
162ND RESPONDENT
KOOMA,
LEFU
163RD RESPONDENT
MOLOPJ;
THABO
164TH RESPONDENT
NTHO,
ROBERT
165TH RESPONDENT
NTHOFE:
ELA,
M
166TH RESPONDENT
SIBIYA,
JOSEPH
L
167TH RESPONDENT
RUSTENBURG
LOCAL MUNICIPALITY
168TH RESPONDENT
THE
PROVINCIAL DIRECTOR, DEPARTMENT OF
RURAL
DEVELOPMENT AND LAND AFFAIRS
169TH RESPONDENT
CIRCLE
CATERING AND ACCOMMODATION
(PTY)
LTD
170TH RESPONDENT
OTTO
JOHAN
WENHOLD
171ST RESPONDENT
Neutral
citation:
Aquarius Platinum (SA) (Pty) v Bonene & others
(1177/2018)
[2019] ZASCA 07
(16 March 2020)
Coram:
MAYA P, SALDULKER, VAN DER MERWE and MOCUMIE JJA and DOLAMO AJA
Heard:
5 November 2019
Delivered:
16 March 2020
Summary:
Land – eviction under Extension of Security of Tenure Act
62 of 1997 (ESTA) – ESTA requires two consecutive steps to
be
taken before an eviction order may be granted – first, the
right of residence of an occupier must be terminated in terms
of s 8
– thereafter, a notice of intention to obtain eviction order
must be given to the occupier in terms of s 9 –
failure to
allege and prove termination of right of residence fatal to
application for eviction.
ORDER
On
appeal from
: Land Claims Court, Johannesburg (Ncube AJ sitting as
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
The
Court:
[1]
This is an appeal against an order of the Land Claims Court (the LCC)
dismissing an application by the appellant, Aquarius Platinum
(South
Africa) (Pty) Ltd, for the eviction of the 1st to the 167th
respondents (the occupiers) under the Extension of Security
of Tenure
Act 62 of 1997 (ESTA). The 171st respondent, Mr Otto Johan Wenhold,
is the owner of two portions of the farm Kroondal
304, Rustenburg,
North West Province (collectively referred to as ‘the farm’).
Mr Wenhold did not participate in the
appeal. Neither did the 168th
respondent, the Rustenburg Local Municipality, the 169th respondent,
the Provincial Director of the
Department of Rural Development and
Land Affairs and the 170th respondent, Circle Catering and
Accommodation (Pty) Ltd (Circle
Catering). The appeal is with the
leave of the LCC (Ncube AJ).
[2]
The material background facts are not in dispute. The appellant
contracted Murray & Roberts Cementation (Pty) Ltd (MRC)
to
perform mining operations at the Kroondal Platinum Mine on the farm
as well as the Marikana Platinum Mine. The occupiers were
employed by
MRC and resided in hostels situated on the farm and at Marikana
Platinum Mine. During 2009 the occupiers and thousands
of their
co-workers participated in an unprotected strike. At the conclusion
of internal disciplinary proceedings, the occupiers
were all
dismissed from that employment. They, however, challenged their
dismissals through the processes provided under the Labour
Relations
Act 66 of 1995 (the LRA).
[3]
However, on 2 September 2009, the appellant approached the North West
Division of the High Court, Mahikeng (the high court)
for an order
evicting the occupiers from the various hostels. On 8 September 2009
the high court granted the eviction order. Pursuant
thereto, the
occupiers were evicted from the hostels. After the eviction of the
occupiers, these hostels were demolished. The occupiers,
however,
successfully challenged the high court’s order in the LCC. On
20 September 2009, Bam JP ordered the restoration
of the occupiers’
rights of residence in terms of ESTA. As a result, the occupiers
resumed residence in reconstructed hostel
facilities on the farm.
Circle Catering manages this hostel on behalf of Mr Wenhold.
[4]
During 2012 the appellant became the employer of the occupiers by
virtue of the provisions of s 197 of the LRA, after determination
of
the agreement between the applicant and MRC. In continued compliance
with Bam JP’s order, the appellant entered into a
lease
agreement in respect of the hostel on the farm with Circle Catering
acting on behalf of Mr Wenhold. Thus, the occupiers continued
to
exercise their rights of residence in terms of ESTA on the farm.
[5]
Protracted labour litigation ensued in the meantime. By 2 December
2014, the litigation in respect of the 1st to 113th respondents
had
been concluded. Their employment with the appellant had therefore
been terminated by 2 December 2014. The litigation in respect
of the
114th to 161st respondents was similarly concluded on 13 November
2015 and as of that date they were no more employed by
the appellant.
The final determination of the litigation in respect of the 162nd
respondent, resulting in the termination of his
employment with the
appellant, took place on 14 April 2016. In respect of the 163rd to
167th respondents, this took place on 26
April 2016.
[6]
On 24 and 25 February 2015, the appellant served notices of the
intention to obtain an eviction order in terms of s 9(2)
(d)
(i)
of ESTA on the 1st to 161st, the 164th and the 166th to 167th
respondents. Similar notices were served on the remaining occupiers
(the 162nd, 163rd and 165th respondents) on 3 June 2016. It appears
therefore that eviction notices were served on the 114th to
161st,
the 164th and the 166th to 167th respondents before the final
termination of their employment. The appellant launched its
application for the eviction of the occupiers on 20 September 2016.
[7]
The LCC decided the matter in favour of the respondents, and
dismissed the application for the eviction of the occupiers. It
found, after considering both ss 8 and 9 of ESTA, that:
‘
[T]ermination
of employment does not necessarily and automatically lead to the
termination of the occupier’s right of residence.
The Act
envisages a two-stage procedure before an order of eviction may be
granted. The first stage is the giving of a notice of
termination of
the right of residence in terms of s 8. The manner in which this kind
of notice is to be given is not prescribed.
The second stage is the
giving of a notice of eviction in terms of s 9 (2)
(d).
The
manner in which this second notice is to be given, is prescribed in
accordance with s 28(i)
(b)
of the Act ’
[8]
The LCC also held that:
‘
[17] [T]he
use of the phrase “may be terminated” in section 8(2)
postulates a situation where the owner or person in
charge has a
discretion. In other words, there will be cases where, despite the
fact that employment has been terminated, but the
owner still in his
or her discretion decides to permit the former employee to continue
to reside on the premises. Therefore, termination
of employment does
not automatically lead to termination of the occupier’s right
of residence. A separate and specific notice
of termination of right
of residence is required.’
Thus,
the LCC found that the appellant failed to satisfy the first
statutory requirement for the granting of an order of eviction.
In
our view, for the reasons mentioned below, the LCC correctly
dismissed the appellant’s application for the eviction of
the
first to the 167th respondents (the occupiers) for failure to comply
with the provisions of s 8 of ESTA.
[9]
It is convenient to set out the relevant provisions of ESTA:
‘
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.
(2) The right of
residence of an occupier who is an employee and whose right of
residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the
Labour Relations Act.
(3
) Any dispute over
whether an occupier's employment has terminated as contemplated in
subsection (2), shall be dealt with in accordance
with the provisions
of the
Labour Relations Act, and
the termination shall take effect
when any dispute over the termination has been determined in
accordance with that Act.
. . .
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.’
[10]
Both
this Court and the Constitutional Court have authoritatively
interpreted these provisions. Approximately two decades ago, this
Court found in
Mkangeli
and Others v Joubert and Others
[1]
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)
).’
[11]
In
Sterklewies
[2]
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.’
[12]
The
Constitutional Court said the following in
Snyders
:
[3]
‘
If a person
has a right of residence on someone else’s land under ESTA,
that person may not be evicted from that land before
that right has
been terminated. In other words, the owner of land must terminate the
person’s right of residence first before
he or she can seek an
order to evict the person. However, it must be borne in mind that the
termination of a right of residence
is required to be just and
equitable in terms of section 8(1) of ESTA. Section 8(2) deals with
the right of residence of an occupier
who is an employee of the owner
of the land or of the person in charge and whose right of residence
arises solely from an employment
agreement. It provides that such a
right of residence may be terminated “if the occupier resigns
from employment or is dismissed
in accordance with the provisions of
the
Labour Relations Act.’
And
at para 56:
‘
Section 8(1)
makes it clear that the termination of a 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).
’
[4]
And
further at para 73:
‘
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
section 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
Magistrate’s Court evidence that showed that the termination of
Mr Snyders’
right of residence was just and equitable.’
[13]
Thus, both the clear meaning of the language of these sections and
their context (the need to protect the rights of residence
of
vulnerable persons) indicate a two-stage procedure.
Section 8
provides for the termination of the right of residence of an
occupier, which must be on lawful ground and just and equitable,
taking into account, inter alia, the fairness of the procedure
followed before the decision was made to terminate the right of
residence.
Section 8
at least requires that a decision to terminate
the right of residence must be communicated to the occupier.
Section
9(2)
then provides for the power to order eviction if, inter alia,
the occupier’s right of residence has been terminated in terms
of
s 8
, the occupier nevertheless did not vacate the land and the
owner or person in charge has, after the termination of the right of
residence, given two months’ written notice of the intention to
obtain an eviction order.
Section 8(2)
must of course be read with
s
8(1)
and provides for a specific instance of what may constitute a
just and equitable ground for the termination of a right of
residence.
[14]
It is common cause that the appellant did not terminate the right of
residence of any of the occupiers. It is clear from the
papers that
the appellant failed to appreciate the need to comply with this legal
requirement. In its founding affidavit the appellant,
on the one
hand, erroneously equated the termination of employment with
termination of the right of residence, and on the other,
stated that
the occupiers’ right of residence had to be terminated by the
court. In their answering affidavit the occupiers
admitted the
termination of their employment, but pertinently denied that their
rights of residence had been terminated. This elicited
the quite
untenable response in the replying affidavit that in the light of the
admission of the termination of their employment,
the occupiers ‘.
. . have failed to provide reasons why they still have rights in
terms of ESTA or in terms of any other
law to continue to occupy the
hostel’. As we have said, it was for the appellant to allege
and prove, in addition to the
termination of the employment of the
occupiers, that their rights of residence had been terminated.
[15]
The appellant only served notices in terms of
s 9(2)
(d)
(i) on
the occupiers. And in respect of a substantial number of them (the
114th – 161st, 164th, 166th and 167th respondents),
this took
place even before their employment was finally terminated.
[16]
It follows that the appellant’s case for eviction of the
occupiers suffered from a fatal defect and therefore the appeal
must
fail.
[17]
In the result we make the following order: The appeal is dismissed
with costs.
__________________
M M MAYA
PRESIDENT
__________________
H
K SALDULKER
JUDGE
OF APPEAL
___________________
C
H G VAN DER MERWE
JUDGE
OF APPEAL
___________________
B
C MOCUMIE JUDGE OF APPEAL
___________________
M
J DOLAMO
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: PL Mokoena SC, with him M Majozi and S Kunene
Instructed
by: Werksmans Attorneys, Johannesburg c/o Symington De Kok,
Bloemfontein
For
1st to 167th Respondent: JJ Botha
Instructed
by: Matshitse Attorneys, Potchefstroom
c/o
Bezuidenhout Attorneys, Bloemfontein
For
168th Respondent: No appearance
M
E Tlou Attorneys & Associates, Mahikeng c/o Moroka Attorneys,
Bloemfontein
[1]
Mkangeli and Others v Joubert and Others
[2002] ZASCA 13
;
[2002] 2
All SA 473
(A);
2002 (4) SA 36
(SCA) paras 12-13.
[2]
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others
[2012] ZASCA 77
;
2012 (5) SA 392
(SCA) para 16.
[3]
Snyders and Others v De Jager and Others
[2016] ZACC 55
;
2017 (3) SA
545
(CC) para 68.
[4]
Snyders fn 4 para 56.